Mr Isaac Olu V. Mr Sunday Iranloye (2007)
LawGlobal-Hub Lead Judgment Report
IGNATIUS IGWE AGUBE, J.C.A.
By a writ of summons dated the 23rd day of May 2005 and filed same day, the plaintiff/Respondent Sunday Iranloye commenced an action under the “Undefended List” procedure against the Defendant/Appellant and claimed as follows: –
“1. The sum of N600,000.00 being money paid by the defendant in respect of property at No.27, Offa Road, G.R.A. Ilorin under false representation as an estate agent commissioned by the owner of the property.
“2. Interest on the sum of N600,000.00 at the rate of 10% per annum from November, 2004 until final liquidation thereof.”
In line with Order 23 Rules 1 and 2 of the Kwara State High Court (Civil Procedure) Rules 1989 the plaintiff/Respondent supported the application for the issuance of the writ of Summons with an affidavit of twelve paragraphs setting for the grounds upon which the claim is based which are as follows: –
“3. That some time in November 2004, the defendant approached me as an estate agent commissioned by Chief Obaro (hereinafter known as the owner) to sell off the property at No.27 Offa Road, G.R.A. Ilorin.
“4. That the owner wanted the property sold for the sum of Four Million Six Hundred Thousand Naira only (N4,600,000.00) only and the defendant was to collect the money on his behalf.
“5. That on the 19th November, 2004 I paid a deposit of Six Hundred Thousand Naira only (N 600,000.00) to the Defendant and a receipt was issued. A copy is hereby attached and marked exhibit’ A’.
“6. That I later discovered that the Defendant was not an agent of the owner as he earlier claimed.
“7. That I have since concluded arrangements with the owner of the property for the sale and was advised by the Owner to ask for a refund of the deposit made to the defendant.
“8. That all attempts I have made to recover the deposit sum from the defendant have proved abortive.
“9. That I know that the defendant has the means to pay the deposit sum of N600,000.00 but refused to pay.
“10. That unless this Honourable Court gives judgment against the defendant for the sum of N 600,000.00 the defendant will not pay.
“11. That the Defendant will not be prejudiced if this application is granted.”
There was also a motion Exparte dated 21st March, 2005 supported by an affidavit of the same contents as above reproduced which motion prayed for the Writ of Summons and the Supporting Affidavit filed therein to be entered for hearing under the “UNDEFENDED LIST’ and accordingly so marked.
On the 3rd day of May, 2005 the trial Court Per R. O. ELELUHABEEB made the Order placing the suit under the Undefended List and accordingly adjourned the case to the 7th day of June 2005 for hearing.
From what can be gathered from the Record of proceedings it would appear that it was not until the 8th day of February 2006 that the case was heard under the Undefended List, the Defendant having not filed any Notice of intention to Defend as envisaged by Rule 3(1) of Order 23 of the Rules of Court under which the suit was brought.
Indeed on that 8th day of February 2006, the Registrar disclosed that the Defendant was duly served with the Writ of Summons and accompanying affidavit on the 21st of March, 2005.
Learned Counsel for the plaintiff Mrs. Ronke Adeyemi in asking the Court to give the plaintiff judgment under the Undefended List stated at page 30 of the Record of proceedings lines 30-34 inter alia: –
“However, after the commencement of this suit the Defendant paid to us some amount of money i.e. N80,000.00 remaining a balance of N420,000 .00 yet unpaid.
I urge the court to therefore enter judgment for the plaintiff in the sum of N420,000.00 only.”
The Court in its judgment held: –
“This is a Suit brought under the Undefended List pursuant to Order 23 Rule 1 of the 2005 High Court Civil Procedure Rules. The defendant had since been duly served and he has not filed any notice of intention to defend as enjoined on him by the provisions of Order 23 rule 3(1) of the same High Court Civil Procedure Rules. Rather, the defendant was said to have made part payment of the sum of N180,000.00 to the plaintiff – leaving a balance of N420,000.00 yet unpaid.
In compliance with Order 23, rule 4 of the 2005 High Court Civil Procedure Rules, Kwara State, judgment is hereby entered for the plaintiff in the sum of N420,000.00 … only plus the 10% interest as contained on the writ of summons.”
Notwithstanding the above judgment, at page 11 of the Record of proceedings the Defendant/Appellant had filed a motion on Notice dated 30th day of May, 2005 on the 6th day of June, 2005 praying the lower Honourable Court for the following Orders: –
- An Order granting the defendant/Applicant leaves to enter appearance out of time in the suit.
- An Order granting the Defendant/Applicant leaves to file his Notice of intention to defend the suit on the merit out of time.
- An Order of the Lower Court to deem as properly filed and served on the plaintiff the Memorandum of Appearance and the Notice of Intention to Defend the Suit which were attached to the application and marked Exhibits A and B respectively.”
In the affidavit in support of the motion, paragraph 5 thereof averred that Chief Akin Osewa the principal Counsel in the office of Akin Osewa and Company, Legal Practitioners of No.14 Unity Road, Ilorin informed the deponent Mr. Segun Omolade a litigation officer in the said chambers who deposed to the affidavit on behalf of the Defendant/Applicant, that the failure to have filed the defendants memorandum of appearance and his Notice of Intention to Defend the Suit before then was the fault of the said principal partner who misplaced the documents given to him by the defendant.
It was also averred that it was in the interest of justice that the memorandum of Appearance and the Notice of Intention to Defend be deemed filed and served on the plaintiff. The said memorandum of Appearance is at page 13 of the Record of proceedings and the Notice of Intention to defend at page 14 respectively.
In the interest of justice I hereby reproduce some of the salient averments in the affidavit in support of the Notice of Intention to Defend inter alia: –
I, Prince Isaac Olu, male, Nigerian and Business man of Muritala Mohammed Way, Ilorin hereby make Oath and state as follows: –
“(1). that I am the defendant in this Suit.
“(2). that I am a registered estate agent by vocation.
“(3). That sometimes in November, 2005 one Chief Obaro who is the owner of the property known as NO.27 Offa Road, Ilorin Commissioned me to sell for him the said property.
“(4). that the said Chief commissioned me through his son to sell the said property.
“(5). That sequel to this Commission I placed my Notice Board marked FOR SALE (sic) with my telephone No. on the said property.
“(6). that when the plaintiff saw the Notice Board, he telephoned me to know my office.
“(7). that the plaintiff then came to my office and informed me that he was interested to buy the said property.
“(8). that I informed him the price which the owner of the property would accept.
“(9). that I then took the plaintiff to the house.
“(10). that we meet (sic) the son of the owner of the property who telephoned the father who was then resident at Abuja.
“(11). that the plaintiff then negotiated to buy the property at the sum of Four Million, Five Hundred Thousand Naira only.
“(12). that the plaintiff informed me that he could not pay for the house immediately.
“(13). that after the conclusion of the negotiation for the price the defendant agreed with me to pay the usual 10% of the cost of the house as agency fees to me.
“(14). that this 10% agency fee amounted to Four Hundred and Fifty Thousand Naira only.
“(15). That some days later the plaintiff came to me to say that he could not immediately pay the whole N4,500,000.00 for the house but that he would deposit the sum of N600,000.00 in order to show that he actually desired to buy the house.
“(16). That the plaintiff went secretly to the plaintiff to pay the whole price of N4,500,000.00 to the owner of the house so that he could avoid paying to me the sum of N450,000.00 which is 10% agency fees.
“(17). That the plaintiff later came to me to ask for the deposit of N600,000.00 which he deposited with me for the house.
“(18). That I then told the plaintiff to pay the agency fees or that if he refused to pay the agency fees I will deduct the sum of N450,000.00 from the N600,000.00 which he deposited with me.
“(19). That I told the plaintiff that immediately I took him to the house and the price negotiated and payment made my job as an estate agent is completed and I am therefore entitled to the 10% agency fees which we both agreed upon before he sidetracked me to pay directly to the landlord without informing me so that he could avoid the payment of agency fees which I am entitled to take from him.
“(20). That the plaintiff then appealed to me to take only N300,000.00 but I refused because he played me out in order to avoid the payment of the agency fees which I am legally due to take.
“(21). That what I am legally entitled to give to the plaintiff is the sum of N150,000.00 after deducting the sum of 10% (N450,000.00) agency fees from the said sum of N600,000.00 which he deposited with me.
“(22). that the plaintiff is merely engaging the instrumentality of the judicial system to deprive me of the agency fees which I am legally entitled to claim from him.
“(23). That unless I am allowed to defend this suit on the merit the equities of this case will be hidden under the dry legality of a written document and the plaintiff will succeed in depriving me of the agency fees which I am entitled to take from me (sic) as an agent.
“(24). That I am entitled to collect from him as an estate agent 10% agency fees for the services which I have provided for him and for which he must pay me.
“(25). that it is therefore in the interest of justice to grant me leave to defend the Suit.”
From my dispassionate perusal of the entire record of proceedings it does not appear that the lower court gave any consideration to the motion filed by the Defendant/Appellant on the 6th day of June, 2005 a day before the suit was billed for hearing under the Undefended List on the 7th of June,
2005.
The most curious of the circumstances of this case is that by the Records of the Lower Court a case which was adjourned to the 7th of June 2005 for hearing under the Undefended List was not heard until eight months later on the 8th day of February, 2006, yet a motion filed on the 6th day of June 2006 was not heard.
In any case following the judgment of the lower court on the 8th of February, 2006, the Defendant/Appellant was aggrieved and has accordingly appealed by filing a Notice of Appeal with three Grounds on the 17th day of February, 2006.
Below are the Grounds of Appeal reproduced albeit without their particulars: –
‘GROUND 1:-
The Learned trial Judge erred in law when he entered judgment in favour of the Plaintiff/Respondent when the writ of Summons marked Undefended List) and the enrolled order was not personally served on the Defendant/Appellant.”
‘GROUND2:-
The Learned trial judge erred in law when he entered judgment in favour of the Plaintiff/Respondent on the 8th February, 2006 when no hearing notice was personally served on the defendant/Appellant against the 8/2/06 hearing date.
‘GROUND 3:-
The lower Court erred in law when he assumed jurisdiction in the matter when the Defendant/ Appellant was not properly served with the Originating Processes to clothe the Court with jurisdiction.”
Briefs of Arguments were exchanged by the respective Counsel on both sides and on the 14th day of March, 2007 same were adopted in Court.
In the Brief of Argument of the Appellant the sole issue which was distilled out from the three Grounds of Appeal was: “whether the Lower Court had jurisdiction to enter judgment against the Applicant but in favour of the Respondent as the Court did on the 8th of February, 2006 when the
Appellant was not personally served with the Respondent’s writ of Summons marked “Undefended List” or any of the hearing notices upon which the Lower Court grounded his judgment or whether the Lower Court did not deny the Appellant of his constitutional right to fair hearing when he entered judgment in favour of the Respondent against the Appellant on the 8th of February, 2006.
On the other hand the Learned Counsel for the Respondent in the Respondent’s Brief raised a preliminary objection to the Appeal and in the alternative formulated also a sole issue which in is his view is:
“Whether Appellant could be allowed to swiftly turn around and raise a spurious allegation of lack of jurisdiction and/or fair hearing against the Lower Court for lack of personal service on him after he had taken substantial and/or enormous steps in the proceedings (Grounds 1, 2 and 3″).
Arguing the appeal, Kayode Alawode Esq. for the Appellant submitted that the entering of judgment of the Lower Court in favour of the Respondent was done without jurisdiction and accordingly breached the Appellant’s constitutional right to fair hearing in that on the 16th day of May, 2005 the Bailiff of the trial Court, one Mr. Sunday Agboola deposed to an Affidavit of service to the effect that he served the Appellant personally with the writ of Summons (marked Undefended List) but that a careful perusal of the acknowledgement of the said summons shows that it was one Bamikeye v Bunmi of No.14 Murtala Mohammed, Ilorin (Not the Appellant) that was served with the said process.
The service of the processes he therefore contended is faulty as no Order for substituted service was sought and obtained to warrant the service of the Court processes meant for the Appellant as can be attested to by the Record of proceedings.
The above notwithstanding, Learned Counsel for the Appellant further submitted that the trial Court relied on the terse and unsubstantiated oral testimonies of both the Registrar and the Learned Counsel for the Respondent to assume jurisdiction and give judgment against the Appellant.
He noted that the proof of service on the writ on Bamikeye Bunmi was for the hearing of the case on the 8th of February, 2006 ten months after the purported service but that the lower court sat twice on the 3rd May, 2005 and 8th February, 2006 of which hearing dates were not communicated to the Appellant personally.
Learned Appellant’s Counsel also alluded to the several applications filed by Akin Osewa and Company for the Appellant which the court refused to entertain nor fixed dates for hearing but was hell bent on not affording the Appellant an opportunity to be heard. He reiterated that the refusal to hear the Appellant’s application breached his fundamental right to be heard and participate in the trial.
Citing the cases of ADEYEMI VS. IKE OLUWA (1993) 9 S.C.N.J. (pt.11) 299 and LEEDO VS. BON LTD (1998) 7 S.C.N.J. 328 he urged the court to hold that the failure to give the Appellant the opportunity to be heard and the refusal to serve the Appellant with notice of the proceedings is fatal to the decision of the trial court and goes to the competence and jurisdiction of the court.
Still on the issue of service and jurisdiction he placed reliance on the case of CARIBEAN TRADING AND FINANCE CORPORATION VS. NNPC (1999) 6 NWLR (pt.197) 356 to pray the court to allow the Appeal and set aside the decision of the Lower Court.
In the Respondent’s Brief Learned Counsel for the Respondent by the Notice of preliminary objection urged the court to strike out the entire appeal as it is incompetent for non-compliance with order 23 Rule 3(1) of the Kwara State High Court (Civil Procedure) Rules 1989. He observed that the appellant was served with the processes on the 8/5/05 as shown at page 30 of the Records but he never filed the motion until 6/6/05 whereas the case was fixed on the 7/6/05 and worse still neither the Learned Counsel for the Appellant nor the Appellant showed up on the 7/6/05 to move the motion earlier filed at his instance.
On the authority of MOBIL PROD. NIG. UNLTD. VS. MONOKPO (2003) 18 NWLR (pt.852) 346 at 413 para. FG, the Appellant had abandoned the motion even though it is the duty of every court of law to hear any motion brought before it in compliance with the rule of audi alter am partem; and the court was willing to hear the motion but the Appellant abandoned same Learned Counsel further submitted.
Furthermore, having failed to file his defence to the suit five days before hearing as laid down by the Rules and in line with the decisions in PLANWELL WATER-SHED LTD VS. OGALA (2003) 18 NWLR (PT.852) 478 AT 488 PARA.C, USI ENT. LTD VS. KOGI STATE GOVT. (2005) 1 NWLR (PT.908) 494 AT 513-514 and N.A.B.LTD VS. FELLYKEME NIG. LTD (1995) 4 NWLR (PT.387) 100 AT 114 PARA. C-E, the purpose of Undefended List procedure is to ‘obviate unnecessary wastage of time in trying a straight forward matter of debt or similar claim.”
Relying on the authorities of PLAN WELL WATESHED VS. OGALA Supra at 491-492; U.T.C. LTD. VS. PAMOTEI (1989) 2 NWLLR (pt.1103) 244 and NISHSIZAWA VS. JETHWANI (1984) 12 S.C.234 he submitted that the procedure for challenging a judgment given under the undefended List suits based on default of appearance has been established in the above cited cases and that against the backdrop of these cases the Appellant has failed to comply with the above decisions for the following reasons:-
- He did not apply to the lower court within 6 days for a set aside of the judgment hereby challenged.
- He has not filed any affidavit showing that he has good defence to the action before the lower court.
- He has failed or refused to seek extension of the statutory 6 days to enable him apply for a set aside.
- His earlier motion on page 11 of the Record does not avail him and stands discountenance.
- He has also not sought the leave of this court on the same issue for a set aside to enable him defend the suit before the lower court.
On the alternative submissions on the sole issue for determination it was contended on the authorities of PLANWELL WATERSHED LTD Supra, USI ENT. LTD Supra and NAB LTD Supra that consequent upon the suit being marked as Undefended, ample evidence shows that the Appellant was sufficiently served with the processes as confirmed by the Registrar of the court on the 8/5/2005 and the Appellant’s motion filed on page 11 of the Record together with the other accompanying processes and that a perusal of the accompanying affidavits would reveal that Appellant never raised the issue of not being served but that without conceding that he was not served, the appellant had taken substantial steps which preclude him from raising the issue of non-service.
Citing again, ADEGOKE MOTORS VS. ADESANYA (1989) 5 S.C. N.J. 80 at 89 and ODUA INVESTMENT CO. VS. TALABI PER OGUNDARE J.S.C. Counsel took the view that since the writ was valid any defect in service was a mere irregularity which can only render the writ violable but not void and that Appellant cannot now complain in view of the steps earlier taken after the service of the writ he now challenges.
Learned Counsel noted that the Appellant did not enter appearance in protest or unconditionally(?) nor did he complain at any point of improper service except in the affidavit in support of the motion for stay of execution where that issue was raised for the first time.
Finally he remarked that paragraph 5.8 of the Appellant’s brief is a grave indictment on the lower court. However, the Learned Respondent’s Counsel posited, the Appellant has woefully failed to substantiate the allegation that the lower court was just hell bent on not hearing the Appellant. The case of KLIFCO NIG. LTD VS. N.S.I.T.F.M.B. (2005) 6 NWLR (P.T922) 445 was finally called in aid to urge the court to dismiss the Appeal and discountenance the allegation of the Learned Appellant’s Counsel against the learned trial Judge.
It is pertinent to note that the Appellant filed a reply Brief which in the main urged the court to overrule the preliminary objection to the appeal which according to the Learned Counsel for the Appellant is misconstrued insisting that the case of MOBIL PROD. NIG. UNLIMITED VS.MONOKPONO rather does not support the Appellant’s case as the lower court fixed any date for the hearing of the Appellant’s motion before entering judgment in favour of the Respondent nor did he hear the said motion at all.
Now, the provisions of Order 23 Rule 1 of the High Court (Civil Procedure) Rules of Kwara State 1989 which provides for the ‘Undefended List’ procedure envisages a situation where a party who claims to recover a debt or liquidated monetary demand applies for a writ of Summons and supports the application and writ with an affidavit setting forth: –
I. The grounds upon which the claim is based and
- Stating that in the deponent’s belief there is no defence thereto the claim.
The plaintiff having set forth the above parameters the discretion now shifts to the court who “shall, if satisfied that there are good grounds for believing that there is no defence thereto, enter the suit for hearing under the “undefended List” and mark the writ of summons accordingly and enter thereon a date for hearing suitable to the circumstance of the particular case.”
From the foregoing provision the court has a judicial and judicious discretion to exercise and must satisfy itself that the deponent’s belief that there is no defence to the claim is meritorious before entering the case into what shall be called the “Undefended List.” Besides the two conditions or parameters must co-exist before the court can place the suit under the undefended list.
On a cursory look at the plaintiff/Respondent’s affidavits in support of the Application for the writ and the motion paper they may have disclosed the grounds upon which the claim is based but with the greatest respect the Respondent never stated in any paragraphs of the affidavit that he verily believed that the Appellant had no defence to the claim in the writ of summons.
However, the court went on to exercise its discretion to enter the suit under the undefended list and adjourned the case to the 7th day of June, 2005 for hearing.
Between the 3rd day of May, 2005 and 7th day of June, 2005 when the case was to be heard the Appellant filed a motion on Notice for leave for the Defendant to enter appearance out of time; leave to the Defendant to file his Notice of intention to defend the suit on the merit out of time and to deem the memorandum of Appearance and the Notice of Intention to Defend the Suit as duly and properly filed and served on the plaintiff.
Throughout the length and breadth of the entire record of proceedings there is no where it was reflected that the motion was fixed for hearing on any particular date. No Hearing Notice has been tendered as to the hearing date of that motion assuming we agree as the Learned Counsel for the Appellant has argued that the Appellants were served with the writ of summons and the accompanying order placing the case under the Undefended List.
Between the 6th or 7th of June 2005 when the Appellants motion was filed or the case was to be heard and the 8th of February, 2006 when the case was subsequently heard under the Undefended List, the Court’s Record shows nothing that transpired so as to warrant the non hearing of the Respondent’s Motion.
There is therefore no amount of ingenious argument or citation of avalanche of cases that will extricate the lower Court from the charge of being hell-bent on depriving the Appellant of his right to being heard on the claim against him.
There is no doubt that Rule 3(1) of the said Order 23 provides thus: –
“3 (1). If the party served with the writ of Summons and affidavit delivers to the Registrar not less than five days before the day fixed for hearing, a Notice in writing that he intends to defend the Suit, together with an affidavit disclosing a defence on the merit, the Court may give him leave to defend upon such terms as the court may think just.”
We agree that the Appellant filed his Motion for leave and extension of time a day to the hearing of the case. But on the other hand, the hearing did not take place on the 7th of June 2005 until almost about 10 months later on 8/2/06, yet the Appellant’s motion was not given a mention or a hearing.
Indeed no hearing Notice was given to the Appellant in spite of the long adjournment except for the ipse dixit of the Registrar which has not been backed by any affidavit of service.
The above notwithstanding Order 22 Rules 3(1) and (2) of the Kwara State High Court (Civil Procedure) Rules 1989 provides that “the court may, on such terms as it thinks just, by Order extend or abridge the period which a person is required or authorized by these provisions, or by any judgment, order or direction, to do any act in any proceedings”
Secondly “the Court may extend any such time as is referred to in paragraph (I) above although the application for extension is not made until after the expiration of that period.”
In the instant case although the time within which to file the Notice of Intention to defend had expired the Appellant brought an application for leave to file the Notice out of time and for him to proffer a defence on the merits. In the eight point affidavit of Segun Omolade of the chamber’s of the Appellant’s Counsel, he had stated the reason why the memorandum of Appearance and the Notice of Intention to defend were not filed as at when due in paragraph 5 thereof which is that Chief Akin Osewa the Principal Counsel in the said chambers misplaced the documents which were given to him by the Defendant/Appellant for the preparation of his case.
Again, the Defendant in a copious affidavit of twenty-five paragraphs in my view raised triable questions of law and facts which should have warranted the learned trial Judge to stand and stare at the said motion instead of simply treating it with the under served ignominy and levity as his lordship did.
I think that in this case the learned trial Judge fell into the same error as Anya C.J. in AMALGAMATED LTD VS. ALHAJI F. JIBRIN (1981) 2 PLR 513 where a Defendant who did not file his Notice of Intention to Defend as at when due brought a motion seeking leave to file the Notice out of time and his Lordship held that the procedure adopted in filing the motion for extension of time within which to file the Notice of Intention to Defend was novel and out of tune with the Rules. He therefore discountenanced the motion. See Per Salami J.C.A. in EDEM VS. CANON BALL LTD (1998) 6 NWLR (pt.553) 298 at 309 where he took a similar view that Order 23 of the Cross River State High Court (Civil Procedure) Rules 1989 which is in pari materia with the Kwara State Rules, does not provide for extension of time to file Notice of Intention to defend.
However, Abdulahi J.C.A. in his revolutionary view which represents the current judicial thinking, departed from the strict adherence to technical rules of procedure where in a case with a similar scenario as we have found ourselves (BULET INT. (NIG.) LTD. VS. ADAMU
(1997) 3 NWLR (pt.447) 343), two questions called for determination namely:
- Whether a court of law has jurisdiction upon the application of a party to extend time within which to file a Notice of Intention to defend and
- Whether on the face of the Defendant/Appellant’s motion on Notice dated October, 1994 to which the proposed notice of intention to defend was annexed (as in our instant case), the trial court was right to have refused the motion for extension of time.
His Lordship held inter alia: –
In an action of the undefended list, once the defendant disclosed a defence on the merit in an affidavit in support of applications for both an enlargement of time to file notice of intention to defend the action, where the defendant is out of time and deeming the Notice of Intention to defend as properly filed and served as in the present case, the court ought to allow the defendant to defend the action which must then be transferred to the general cause list.”
In the case above cited the learned trial Judge did not consider the Notice of intention to defend and the supporting affidavit but merely confined himself to the Notice for extension of time.
However in our instant case, the Learned trial judge did not bother to give any of the processes, filed by the Defendant/Appellant any consideration at all in spite of the copious triable issues disclosed in the affidavit in support of the Notice of lntention to Defend and reasons offered for filing the memo of appearance and the Notice late.
Learned Counsel for the Respondent has relied on the case of MOBIL PRODUCING UNLIMITED VS. MONOKPONO (2003) 18 NWLR (pt.851) 346 at 412.413 which in my humble view rather seals the doom of his preliminary objection and calcifies the sanctity of the Appeal of the Appellants against the breach of his fundamental and constitutional right to fair hearing.
In that case Uwaifo J.S.C. quoted with approval the dictum of Tobi J.C.A. as he then was in ERIOBUNA VS. OBIORAH (1999) 8 NWLR (pt.616) 622 after citing a long line of cases on the need for the court to entertain and decide on the merit of any application brought before it by any party not withstanding the perceived strength or weakness of such an application thus:-
“A Court of law or a tribunal has a legal duty in our adjectival law to hear any court process, including a motion before it. The process may be down right stupid, unmeritorious or even an abuse of court process. The court must hear the party or parties and rule one way or the other. A judge, whether of a court of law or tribunal, has no jurisdiction to come to a conclusion by resorting to his own wisdom outside established due process that a motion cannot be heard because it has no merit. That does not lie in the mouth of a judge in our adversary system of adjudication.
The failure on the part of the learned tribunal to hear the motion of the 1st appellant filed on 1st May, 1999 is against the provisions of section 33(1) of the 1979 Constitution on fair hearing and particularly the natural justice rule of audi alteram partem.”
The authorities have emphasized the essential and mandatory duty of courts to hear any motion or applications before them and can not refuse same unless there are of the extenuating or debilitating circumstances like the punishment of a contemn who cannot be heard until he has purged himself of such contempt.
Indeed the Emeritus Justice of the Supreme Court came out in his erudite best when he insisted that a party ought to be heard as of right and that if for any reason the application is brought down right irregularly, or is in-expeditiously brought to the attention of the court, that is no excuse for the court to discountenance it when it later comes to his knowledge and he proceeds to give a judgment or make an order more particularly when a decision on the motion was likely to have had a bearing on the judgment or order.
This is exactly the scenario that has been created in this case. Some fifty three years ago the West African Court of Appeal was confronted with the situation we have found ourselves in OJIKUTU VS. ODEH (1954) 14 WACA 640 where a suit was brought under the undefended list and the relevant rule required the defendant to file a Notice of defence and affidavit five days before the hearing date as in our case. The Defendant’s Counsel put up the Notice two days before hearing and at the hearing the plaintiff’s asked for judgment and the Counsel for the Defendant conceded to the blunder committed by him in not filling the affidavit to regularize the situation but the Learned Judge refused him and gave judgment to the plaintiff.
On Appeal by the Defendant, Thesiger L.J. posited that:
“Blunders must take place from time to time, and it is unjust to hold that because a blunder during interlocutory proceedings has been committed, the party blundering is to incur the penalty of not having the dispute between him and his adversary determined upon the merits.”
Learned Counsel for the Respondent has cited PLANWELL WATERSHED LTD VS. OGALA and other cases on the expeditious nature of Undefended List procedure. There is no doubt that Belgore J.S.C (as he then was) who delivered the lead judgment of the Court aptly stated that: “The reason for the rule is to obviate unnecessary wastage of time in trying a straight forward matter of debt or similar claim.”
Learn Counsel for the Respondent has again argued that a judgment given against a party under the undefendable list procedure may be set aside by the court upon an affidavit filed by the defendant showing that he has a good defence to the action.
I think that the Appellant in this case has a right to appeal against a breach of his fundamental right to fair hearing when the court deliberately refused to serve him with hearing Notice as to the date of hearing of the case on the 8/2/2006 and also failed to consider his motions for extention of time to file a defence.
In EMEADI VS. NNAMANI (2007) 3 NWLR (PT. 1021) 219 AT 227 the court of Appeal Per Rowland J.C.A. recently held that the granting of adjournment is within the discretion of the court which must be exercised judiciously and judicially and that where a trial court adjourns a case for ruling and continuation of hearing but later converts it to judgment without serving fresh hearing notices on the parties that would amount to a breach of the 1999 Constitution.
With this authority the preliminary objection of the Respondent’s Counsel must collapse and is accordingly dismissed.
We shall now turn to the main issue for determination which is whether the lower court had jurisdiction to have entered judgment against the Appellant when the Appellant was not served personally with the writ of summons marked Undefended List or the hearing Notices upon which he grounded his judgment or whether the lower court did not deny the Appellant his constitutional right of fair hearing when he entered judgment in favour of the Respondent against the Appellant.
I must note from the onset that the issue as couched by the Appellant amounts to formulating two issues within one and the rules frown at proliferation of issues on the same ground. Be that as it may the Respondent agrees that only one issue calls for determination which is whether the Appellant can raise the issue of jurisdiction on ground of want of personal service.
I shall proceed without any hesitation to state here that the Appellant cannot complain of service of the writ of summons which he claimed was served through one Bamikeye Bunmi since he was seized of the originating processes even belatedly and he had reacted by filing the motions for extension of time and leave within which to enter appearance and to file the Notice of Intention to defend and the accompanying affidavits.
However, I am minded to remark here that the refusal and/or neglect to serve the Appellants with the hearing Notices of the Subsequent hearing of the case or even fixing the motions filed by the Appellant for hearing was a fundamental vice which went to the root of the proceedings conducted on the 8th day of February, 2006 in the absence of the appellant. In the case of CARRIBEAN TRADING & FID. CORP VS. N.N.P.C. Supra NIKI TOBI J.C.A. (as he then was) again stated the obvious that “The issue of non-service of court process affects the jurisdiction of the court and once raised, the court is bound to look at it – so also is the case in respect of allegation of defect in service, either within or outside the jurisdiction of the court. See page 367 of (1991) 16 NWLR (pt. 197) 352”. See further ODUA INVESTMENT CO. LTD VS. TALABI (1997) 7 S.C.N.J. 600 at 617 paragraph 35 to 40 where Ogundare J .S.C. delivering the lead judgment of the Supreme Court stated inter alia: –
“All the authorities are agreed that where an act is void then it is in law a nullity. It is not only bad, but incurably bad. Any non-compliance or defect that goes to the competence or jurisdiction of a court is fatal; it renders the proceedings a nullity “however well conducted and decided, the defect is extrinsic to the adjudication” – Per Bairamian F. J. (as he then was) in MADUKOLU & ORS VS. NKEMDILIM (1962) A.N.L.R (pt. 2) 581 at 59. See MACFOY VS. U.A.C. (1962) A-C, 152 at 160 P.C.
The above authorities agree with LEEDO VS. BON LTD (1998) 7 SCNJ 328, AYOGU VS. NNAMANI (2005) ALL FWLR (pt.283) 46 at 58 para G-H and EGOLUM VS. OBASANJO (1999) 7 NWLR (pt.611)355.
I am afraid that the submission of learned counsel for the respondent and the cases of ADEGOKE MOTORS VS. ADESANYA on invalid or defect in service would not apply to a situation where the Appellant was not apprised of the last hearing date which was 8/2/06 after an adjournment for ten months.
Coupled with the deprivation of the Appellant’s right to have his motion and his Notice of Intention and Affidavits in support heard, I hold that it was a clear travesty of justice to proceed to give judgment against the Defendant/Appellant in his absence and without giving him a hearing.
Accordingly the sole issue in this appeal is resolved in favour of the Appellant.
The judgment of the learned trial Judge PER R. O. ELELU – HABEEB J. is hereby set aside and in its stead, I order a retrial of the case before another Judge who shall consider the merits or demerits of the motion filed by the Defendant/Appellant on the 6th day of June, 2005.
I award N5,000.00 costs against the Respondent.
Other Citations: (2007)LCN/2420(CA)
