Mrs. Wasem Agena & Anor V. Mr. James Katseen (1998)
LawGlobal-Hub Lead Judgment Report
OPENE, J.C.A.
In the High Court of Benue holden at Gboko, the plaintiff who is now the respondent filed an action against the appellants claiming the sum of N42,390.00 (Forty-two thousand, three hundred and ninety naira) as special and general damages for negligence. The respondent filed his statement of claim and the appellants also filed a joint statement of Defence. There were several adjournments and the appellants were absent on all occasions including the 25/9/92 when the respondent testified and called one witness and closed his case and the matter was then adjourned to 19/10/92 for address. The respondent’s counsel addressed the court on 19/10/92 after which the trial court on 7/1/93 delivered judgment in favour of the plaintiff/respondent in which he was awarded the sum of N33.390.00.
The appellants then applied to set aside the judgment and their application was dismissed on 16/9/93. Aggrieved by the decision, the appellants have now appealed to this court.
In the appellant’s briefs of argument, 2 issues are identified for the determination of the appeal and they read as follows:-
- Was it proper for the learned trial Judge not to have set aside the judgment when there was no proof of service of the Hearing Notice on the defendants/appellants?
- Whether the learned trial Judge, considering all the circumstances of the case, exercised his discretion judicially and judiciously in refusing the application to set aside the judgment obtained in default of appearance.
In the respondent’s brief of argument the respondent raised a preliminary objection and it states:-
NOTICE OF PRELIMINARY OBJECTION
The respondent at the hearing of the appeal intend to rely upon the following preliminary objection to ground (1) of the appellant’s grounds of appeal contained at page 59 to wit:
(1) That a Ground of Appeal cannot be both an “error in law” and a misdirection” at the same time as contained in Ground 1 of the said Ground of Appeal.
(2) The said Ground is vague, imprecise and in capable of comprehension.
(3) That by virtue of the authority of Nwadike v. Ibekwe (1987) 12SC. 14 at 55-57; (1987) 4 NWLR (Pt.67) 718 per Nnaemeke – Agu J.S.C. (as he then was) the ground is incompetent both in law and in fact.
The respondent thereupon urged this court to strike out the said ground of appeal as it is incompetent.
On a careful perusal at the case file, it is shown that on 9/5/96 that the appellants filed a motion on notice praying this court for leave to amend the Notice/Grounds of Appeal by deleting the words “and misdirected himself on the facts’ and that the motion was moved on 15/5/96 and it was granted on that day whereby appellants were given 7 days to file an amended Notice/Grounds of appeal. It further shows that the appellants filed an amended Notice of appeal on 21/5/96 which within the “seven days period” that the court allowed them to file an amended Notice of appeal.
The effect of this amendment is that the basis of the preliminary of objection has been knocked off and it has been overtaken by events.
Further, this amendment only deleted the words “and misdirected himself on the facts” it does not change or alter the nature of the Ground or appeal in any way and it also did not bring in any additional ground of appeal which will of course necessitate the filing of a new brief of argument. I am therefore of the view that the amended Notice of appeal has taken a good care of the situation and this being the case, the preliminary objection has nothing to sustain it and it is accordingly struck out.
The only issue that calls for determination in this appeal is whether the appellants were served with any Hearing Notice before the trial court heard and disposed the matter at the lower court.
It was argued in the appellants’ brief of argument that the 1st appellant was served with the Civil Summons/Statement of Claim on 3/4/91 and that she filed a defence on 3/5/91 and that no process was served on her until the bailiffs of the court sought to execute the judgment and can away her properties.
In respect of the 2nd appellant it is stated that he was purportedly served with the “Civil Summons/Statement of Claim” and the Hearing Notice on 19/11/91 to appear in court on 11/12/91, that on 11/12/91 that it was not shown on the records that the court sat on that day and that no fresh Hearing Notice was served on him.
The respondent in his brief of argument submitted that the appellants were served with all court processes in the case and that the Hearing Notice was duly served on them. He argued that a counter-affidavit was filed in respect of the application to set aside the judgment and that the appellants’ counsel was served with the said counter-affidavit on 9/7/93 and that he had ample time to file a reply to the counter-affidavit and that the said counsel while arguing the motion admitted that the appellants were served with Hearing Notices for the substantive case. He submitted that where facts were deposed to affidavit adverse to the interest of a party who does not contradict such facts by replying thereto on oath that such adverse facts are deemed admitted need no proof.
He referred to: Ajomale V. Yaduat (1991) 5 SCNJ 178 at 179; (No. 1) (1991) 5 NWLR (Pt.191) 257; Egbuna v. Egbuna (1989) 6NWLR (Pt. 106) 773 at 774.
It was also argued that the contention of the appellants that Hearing Notices were not served on them is misconceived having not been borne out of the facts of this case and that the trial court correctly applied the principles governing the facts and circumstances of this particular case and exercised its discretion judiciously and judicially.
On examination of the records of proceedings, it shows at Pp.13 and 14 that when the case first came up before the trial court on 29/10/91 that the respondent’s counsel was in court and that the appellants and their counsel were absent that the clerk of court stated that only the 2nd defendant was served and that the 1st defendant was yet to be served and that the matter was adjourned to 11/12/91 for mention.
There is nothing to show that the court sat on 11/12/91. On 13/2/92 which is the next sitting of the court after that of 29/10/91, it shows that the defendants and their counsel were also absent but the clerk of court stated that the 1st defendant was served on 19/11/91 and it was at that stage that the case was adjourned to 3/4/92 as the court observed that all the parties had been served.
When the clerk of court stated that the 1st defendant was served on 19/11/91, he did not say that he was served with a Hearing Notice for any particular day.
However, after the court’s sitting on 29/10/91 and the service on the 1st defendant on 19/11/91, the next adjourned date was 11/12/91 and the service on the 1st defendant would definitely be for that 11/12/91 on which date, the court did not sit. It therefore follows that it is the duty of the trial court to issue a fresh Hearing Notice on the appellants when the court sat on 13/2/91. There is nothing in the records of proceedings to show why the court did not sit on 11/12/91 and how the matter came up before the court on 13/2/92.
The issue of service of a Hearing Notice on a party intimating him of the hearing date is very fundamental to administration of justice and its importance cannot be over emphasized as it is that service of the Hearing Notice that confers on the trial court the jurisdiction to entertain the matter, when a matter comes up before a trial court it is its duty to fully satisfy itself that a party to the case was duly served and is aware that the matter is coming up before the court that day. It is not for the trial court to assume that the party must have been served with the court process at one stage and that he should be aware of the trial date.
In Okorafor Mbadinuju & Ors v. Chukwunyere Ezuka & Ors. (1994) 10 SCNJ 109; (1994) 8 NWLR (Pt.364) 535 it was held that failure to notify the parties of the date for hearing of the matter renders the proceedings null and void as the court lacks jurisdiction to entertain the matter. See also: Sken Consult (Nig) Ltd v. Ukey (1981) 1 SC 6.
I have also looked at the affidavit in support of the motion to set aside the judgment and the counter-affidavit, there is nothing in them to show that the appellants were aware that the case was coming up before the trial court on 13/2/92 as they both stated what happened in the court before the trial Judge which is not different from what is recorded in the record of proceedings.
As I have earlier observed, the record of proceedings show that when the matter came up on 13/2/92 and it was observed that the court did not sit on 11/12/91, it is the duty of the court to order a fresh Hearing Notice to be issued on the defendant/appellants and the matter adjourned to another day and if on that day, it was found that the appellants were duly served to appear in court on that day and that they failed to do so that the trial court would then proceed to hear the matter.
Further still, the matter was on 13/2/92 adjourned to 3/4/92 for hearing, on 3/4/92 the court again did not sit and when the court salon 6/4/92, it was observed by the court that the court did not sit on 3/4/92 because it was a public holiday and the matter was adjourned to 27/5/92 for hearing but no Hearing Notice was also issued on the appellants informing them about the trial date.
If the learned trial Judge had directed his mind to all these gaps that occurred between the date of service on the appellants and the hearing date, obviously he would have caused hearing notice to be issued on the appellants before hearing the case.
Further, if he has also directed his mind to this when the motion to set aside the judgment came up before him, he would surely set aside the judgment and hear the matter on the merits as the trial that he has conducted is a nullity.
On the whole, it has been clearly shown from the record of proceedings that the appellants were not aware of the trial date and that the learned trial Judge was in error in not causing Hearing Notices to be issued on the appellants before he embarked on the trial of this matter.
I am of the firm view that the appeal is meritorious and that it should be allowed. In the final result, I allow the appeal. I set aside the ruling of Hwande J. delivered on 16/9/93 and also the default judgment entered in favour of the respondent on 7/1/93.
I hereby order that the case be remitted to Benue State High Court for trial by another Judge.
The appellants are entitled to costs which I assess and fix at the sum of N1, 000.00.
Other Citations: (1998)LCN/0434(CA)
