Maltilda Kwashi V. Julius B. Pusmut (2009)
LawGlobal-Hub Lead Judgment Report
ZAINAB ADAMU BULKACHUWA, J.C.A.
By a writ of summons filed on 10th May, 1993 before the High Court of Justice Jos, Plateau State, the respondent as plaintiff initiated this action before the said court against the defendant/appellant wherein by a further Amended Statement of Claim dated 22/6/1998 the following reliefs were claimed;
(1) A DECLARATION that the acts of the 1st defendant constitute a breach of contract thus entitling the plaintiff to cancel or revoke the transaction in respect of No.4 Hwolshe Gigiring Jos as he did.
(2) A declaration that the plaintiff has been is and remains the lawful owner of the property in issue R of O No. PL4741.
(3) An order requiring the 1st defendant to hand over the title documents particularly the R of o No. PL4741, to the plaintiff.
(4) An order compelling the 1st defendant to refund all the sums of money received by her as rent on the plaintiff’s said property, or such other sum as the court may determined (sic) as the rental value of the property with effect from January 1993 to the date of the court’s appointment of an interim manager.
(5) N200, 000.00 general damages for breach of contract/ agreement.
The facts giving rise to this appeal as borne out by the records is to the effect that the plaintiff/respondent was the owner of the property covered by a .Certificate of Occupancy No.4741 lying and situate at NO.4 Hwolshe Giring, Jos a property he acquired while in the employment of Savannah Bank of Nigeria Plc. Sequel to court actions between the plaintiff/respondent and the Savannah Bank, the Bank was granted an order of interim attachment of the plaintiff’s property including the above property. The Bank a owed the plaintiff to secure-a buyer for the property, the defendant was contacted and upon the agreement entered by the parties to this appeal and the Bank, the defendant paid the Bank N450, 000.00 as the purchase price for the property and the Bank obtained the consent of the Governor to assign the said property to the defendant and it was so assigned.
The plaintiff’s case however was that the purchase price was N780, 000.00 and the agreement was that the defendant would pay N450, 000.00 to the Bank and pay the balance of N330, 000.00 to the plaintiff. That the said amount was not paid in full but piecemeal, leaving an outstanding balance of N20, 000.00 as at the time the action was initiated.
Pleadings were filed and exchanged and trial commenced though the defendant was never in court she was represented by counsel. Two witnesses testified for the plaintiff, one was cross-examined by the defendant’s counsel, but before the other witness could be cross-examined counsel withdrew his representation for the defendant. The matter proceeded and after address by plaintiff’s counsel, the lower court entered judgment as per the plaintiff’s claim.
The defendant being dissatisfied has now appealed to this court on six grounds of appeal filed on the 14/3/2000. The defendant as appellant before this court on the 11/5/04 sought and was granted the leave of this court to raise and argue fresh issues in the terms of grounds 1, 5 and 6 of the Notice and Grounds of Appeal and time was enlarged within which the appellant may file brief of argument incorporating issues as raised in the said grounds.
Parties in this appeal filed and exchanged briefs of argument, which they adopted at the hearing of this appeal. In the appellant’s brief as settled by Paschal N. Mammo Esq., the following issues were distilled;
(1) Whether there was proof of service of the processes on the defendant as to justify the conclusion of the trial Judge that the defendant was not interested in the proceedings.
(2) Whether the plaintiff proved his case on the evidence adduced and the documents tendered as to entitle him to the reliefs sought.
(3) Whether the defendant was accorded a fair hearing in the said proceedings in order to defend herself.
The respondent in an amended respondent’s brief deemed filed by an order of this court of 25/6/07 as settled by Ubong Esop Akpan Esq., raised and argued a preliminary objection therein and also distilled two issues for the determination of the appeal to wit;
(1) Whether a party who failed to take an objection to an irregularity in a proceeding can later complain on lack of fair hearing.
(2) Whether a contract existed between the plaintiff and defendant and what is the effect of a breach of such contract.
I will first examine the preliminary objection on the merits before looking into the substantive appeal.
By the notice of preliminary objection as contained in the respondent’s brief, the respondent contends that a notice of appeal and an appellant’s brief cannot be the means by which;
(a) The factual issue of non-service of hearing notices and originating processes can be raised;
(b) Fresh issues of fact, in respect of which no evidence exists;
(c) The printed record of the lower court is contradicted.
On the first ground as raised above the respondent referred to page 14 of the record of proceedings of the lower court which is an affidavit of service by one Olayiwola Shoyoye a senior bailiff of the Lagos High Court to the effect that he had served the defendant a copy of the order for substituted service, writ of summons and the statement of claim at her residence NO.4 King George IV Street, Onikan, Lagos on the 22/6/93 at 3.40pm and contends that the said affidavit is a matter of fact which is evidence that has been placed before the lower court and the court in the circumstances is entitled to rely on it particularly as there was no counter affidavit by the defendant challenging the facts deposed therein. That the affidavit of service is conclusive evidence of ‘the service of the court processes on the defendant and counsel’s address in his brief is only supposed to deal with the evidence as adduced before the trial court not as an avenue to challenge the facts before the lower court.
The appellant in a reply brief filed on the 6/7/07 submitted that the affidavit of service in question is not conclusive proof/means of service. That even though it forms part of the record of appeal, it cannot be read in isolation of other documents in the record to determine the genuineness and authenticity of the circumstances in which it was made. That the said presumption is not absolute and can be rebutted by facts contrary to what was deposed therein. That an averment in an affidavit which is not challenged but is in conflict with probability and reason should not be believed by the court or given any credence.
On the second ground of the preliminary objection the respondent submits that the appellant had failed to seek and obtain the leave of this court before introducing the new points which were canvassed before this court and urged us to in the circumstances regard them as incompetent and discountenance them.
The appellant in the reply brief did point out that they have sought and obtained the leave of this court before filing the grounds upon which the issues complained against were formulated from. This is a fact as shown by the records of this court, on the 11/5/04 appellant vide his motion filed on 20/6/03 sought and obtained the leave of this court to raise and argue fresh issues in the terms of grounds 1, 5 and 6 of his grounds of appeal and to incorporate issues to be raised from the said grounds in his brief of argument.
The issues as raised therefore are-with the leave of court they are therefore competent before us.
To look at the first ground of the preliminary will amount to determining the appeal at a preliminary stage, as the issue is competent it will best be determine on the merit in the appeal.
I, in the circumstance, I find no merit in the preliminary objection and hereby overrule it.
The issues for the determination of this appeal as distilled by the appellant are germane, I will adopt them accordingly.
ISSUE 1
Whether there was proof of service of the processes on the defendant as to justify the conclusion of the trial judge that the defendant was not interested in the proceedings.
The appellant on this sought to show that she was never served with the court processes, in particular the initiating process i.e. the writ of summons and the statement of claim. She maintains that after the filing of the writ of summons which commenced the action on 10/5/93 an exparte application was also filed on the same day for the issuance and service of the writ out jurisdiction. That the said application was moved and granted by the court on the 28/5/93. That on 14/6/93, two copies of the court order and the writ of summons were dispatched by the Registrar of the lower court to the Deputy Sheriff of the Lagos High Court for service and on 22/6/93 the Bailiff of the lower court deposed to an affidavit of service wherein he deposed to have served the appellant by IMNL courier, that however the said airway bill even though addressed to the appellant was received on the 16/6/93 at 4.12p.m by one Scholar. That the affidavit of service of Matthew Akwe Osame which is in connection to the said IMNL waybill sworn on 22/6/93 gives the date of service as 15/6/93 and the person said to be served in the affidavit is the appellant and submits on’ the above that the affidavit is unreliable and cannot be proof of the service of the said process.
The appellant also refers to page 23 of the case file and page 5 of the record which is a copy of the writ of summons with an endorsement by an officer of the lower court to the effect that the appellant was served with the writ of summons on 10/5/93 and points out that this contradicts both the affidavit of service and the IMNL air bill.
The appellant yet referred to’ pages 12 and 30 of the records where the Registrar of the lower court wrote to the Deputy Sheriff of the Lagos High Court in compliance with the order of the court and reacting to the said letter an affidavit of service sworn to on the 23/6/93 by one Olayiwola Shoyoye a Senior Bailiff of the Lagos High Court to the effect that the defendant was served on the 22/6/93. He also refers to the letter of the registrar of the lower court of 17/7/93 to the Deputy Sheriff of the Lagos High Court wherein copies of the writ of summons were forwarded for service within the jurisdiction of Lagos State, and .an endorsement on the forwarding letter by the plaintiff that he personally took the writ for service to the Deputy Sheriff Lagos State High Court on the 14/6/93 and pointed out that even on that the date was altered.
From the above the appellant arrived at the conclusion that the inconsistencies in the identified documents will only point to the fact that the contents thereof are false returns and self contradictory and an abuse of the court process and in effect there was no personal service on the defendant.
He submits that a writ of summons which is an originating process must be served personally on a defendant to enable the court assume jurisdiction.
By his paragraph 4.02 the appellant introduced a new dimension into the matter by alleging that counsels who claimed to have appeared for the defendant, there was nothing to show that they were briefed by the defendant to represent her in court, that her absence throughout the proceedings will only lead to the assumption that she was never served and so had no knowledge of the proceedings of the lower court.
I restrained myself from making any pronouncements on the first ground of the preliminary objection as I felt that the appellant having obtained the leave of this court to complain about the mode of service should be allowed to ventilate his complaint without being shut out at the ‘preliminary stage.
The appellant to my mind in a most absurb brief is attempting to revise, amend I challenge and introduce new dimension not contained in the record of appeal.
This court is bound by the printed record and cannot go outside it to introduce what is not there nor can parties do so. See Texaco Panama Inc. Vs. Shell PDCN Ltd. 2002 5 NWLR (Part 759) 209 at 234 per Kalgo JSC.
“… The parties and the court are bound by the contents of that record as it is presumed correct unless the contrary is proved. See Sommer Vs. FHA 1992 1 NWLR (Part 219)548. There is nothing to the contrary in this case. Furthermore an appeal court is fully and correctly entitled to look at or refer to the record of appeal before it in consideration of any matter before it.” See also Orugbo Vs. Una 2002 6 NWLR (Part 792) 175.
In the instant matter the appellant is challenging the contents of a record that is properly transmitted to this court. There are ways and means by which a party to an appeal can do so, certainly not by submissions in a brief of argument.
I am restricted by the records in the instant appeal. Going by the records I am satisfied at page 14 thereof that there is an affidavit of service sworn to by Olayiwola Shoyoye, a senior bailiff of the Lagos High Court to the effect that he had served the originating processes on the defendant.
An affidavit is a deposition which is made under oath. Its contents are therefore sacrosanct and can only be controverted by another deposed affidavit not by analysis as sought to be done in the appellant’s brief.
A close look of the record also shows at page 39 thereof the defendant was granted leave by the lower court on 20/10/03 to enter appearance out of time as well as file and serve her statement of defence. Was represented by counsel at most of the sittings of the court that fully participated in the proceedings and even cross-examined the PW1 at the courts proceedings of 30/10/98 (see pages 80-83 of the records).
Having participated so far the appellant cannot be heard complaining at this stage that she was never served with the originating processes in this matter.
Here I am more disposed to upholding the respondent’s submission that the right to impugn or challenge the proceedings of a court is apparently waived where there is failure to protest or take objection at the earliest opportunity. See Amarachukwu Vs. FRN 2007 5-6 NWLR Part (1029)1. The appellant had not done so and cannot be heard complaining now.
In the circumstances this issue must be resolved against the appellant and I so hold.
I will first look on issue 3 as it touches on the jurisdiction of the lower court before resorting to issue 2 should it be resolved against the appellant.
Issue three question whether the appellant/defendant was given fair hearing by the lower court. In his submission appellant made reference’ to proceedings before the lower court and was emphatic that the appellant was not afforded hearing, most particularly as no hearing notice was issued on the defendant after cessation of legal representation as to put the defendant on notice of the pendency of the matter.
After a close look at the records of proceedings the following facts arise;
(1) The defendant was represented by one J. Y. Pam in the proceedings when two witnesses testified for the plaintiff and counsel completed the cross-examination on the 30/10/98, when matter was adjourned to 11/12/98.
(2) Matter was next called on.22/6/1999 when J.Y. Pam withdrew his representation for the defendant with the leave of the court. Matter was then adjourned to 23/7/1999 for cross-examination.
No hearing notice was ordered to issue on Mr. Dongkum (counsel who’ was supposed to take over from Mr. Pam) or on the defendant.
(3) When the court resumed sitting on the matter on the 23/7/1999 the defendant was absent and unrepresented PW2 who was to be cross-examined was also absent. Kwende for the plaintiff informed the court that the PW2had been subpoenaed but was not in court and further observed that the absence of the defence portrays to the court that they are not interested ‘in’ cross-examining a subpoenaed witness who was absent. They then closed their case and asked for a date for defence. The court then adjourned the matter for defence to the 17th November, 1999. No hearing notice was ordered to issue on the defendant.
(4) On 17th November 1999, the defendant was absent and unrepresented, the court stood down the matter for defence to 11.00a.m. When it resumed at the said time, plaintiff’s counsel observed that it should be presumed that the defence are no longer interested in the suit and the court in adjourning the matter for address to 22/11/99 also observed that the defendant is deemed to have abandoned the suit. No hearing notice was ordered to issue on the defendant.
(5) On 22/11/99 the defendant was also absent and unrepresented. The plaintiff addressed the court and the matter was adjourned for judgment to the 17/12/09 without a hearing notice ordered to be issued on the defence.
(6) Judgment was delivered on the said 17/12/99 in the absence of the defendant.
Looking at the above stated facts could the appellant be said to have received fair hearing before the lower court.
Fair hearing had been glaringly defined in the decisions of our courts of record see Pam Vs. Mohammed 2008 16 NWLR (Part. 1112) 1 at 49;
“The very essence of fair hearing under Section 36 of the Constitution of the Federal Republic of Nigeria 1999 is a hearing which is fair to both parties to the suit, be they plaintiffs or defendants or prosecution or defence. The section does not contemplate a standard of justice which is biased in favour of one party and to the prejudice of the other. Rather it imposes an ambidextrous standard of justice in which the court must be fair to both sides of the conflict. The hearing must be fair and in accordance with the ‘twin pillars of justice, read as pillars of justice, namely audi alteram partern and nemo judex in causa sua per Onu JSC at 421. See also Ndu vs. State 1990 7 NWLR (Part 164) 550.
A party who will be affected by the result of a judicial inquiry must be-given an opportunity of being heard, otherwise, the action taken following the inquiry will be unconstitutional and illegal. See Ogundoyin Vs. Adeyemi 2001 12 NWLR (Part
730) 403 at 423 per Onu JSC. See also Akande Vs. State 1988 3 NWLR (part 85) 681
To be accorded fair hearing in any trial a party must;
(1) Be entitled to a counsel of his choice;
(2) Be afforded the opportunity to call all necessary witnesses in support of his case;
(3) have the opportunity of cross-examining or challenging the evidence of witnesses called by his adversary;
(4) Have the same right as his adversary through his counsel to address the court on the law in support of his case.
Applying the above principles to the instant Case the appellant was not accorded fair hearing. As at the time her counsel withdrew his representation in the matter, the defendant should have been served a fresh hearing notice, and on any other subsequent adjournment. The respondent was of the view that the defendant was indolent in the defence of her case as she was given ample opportunity to be heard and present her case. I do not agree, from the records and the circumstances of the case the defendant was not given equal chance as that of the plaintiff in the presentation of her case before the lower court as the court failed to put heron notice on the pendency of the matter. The right to fair hearing is in the circumstances breached, and the proceeding in the lower court is a nullity.
Having concluded as above, issue 2 cannot be considered as it relates to the findings of the lower court on the evidence adduced which has been rendered a nullity.
This appeal therefore has merit and I so find. The lower courts decision of 17/12/99 is hereby set aside. The mater is remitted back to the Chief Judge of the High Court of Plateau State for rehearing by another Judge other than Naron ‘J’.
Cost of N30, 000.00 in favour of the appellant
Other Citations: (2009)LCN/3410(CA)
