National Assembly & Ors V. Cee Chris Investment Co. Ltd (2007)
LawGlobal-Hub Lead Judgment Report
OYEBISI F. OMOLEYE, JCA
This is an appeal against the judgment of U. M. Kusherki J. of the High Court of the Federal Capital Territory, sitting in Abuja, delivered on 1/3/2001.
The trial court duly granted the Respondent leave to issue against the Appellants, a Writ of Summons pursuant to Order 23 of the High Court of the FCT, Abuja (Civil Procedure Rules) 1990 claiming the sum of Seventy-five Million Naira (N75, 000, 000=) being an outstanding debt owed the Respondent for a contract job done for the Appellants in respect of which a payment certificate was alleged to have been issued by the Appellants to the Respondent.
The Respondent in addition claimed 21% interest of the said unpaid debt from the date the payment certificate was issued until judgment is delivered in the case and 10% interest until the final liquidation of the debt.
The Appellants’ grievance is that the Writ of Summons served on them was not marked “Undefended List” but it only directed the Appellants to enter appearance in respect thereof. However, the Appellants entered an appearance, filed a Notice of Preliminary Objection challenging the jurisdiction of the Court to entertain the suit and also filed the Notice of Intention to Defend the suit. On the return date 12/2/2001, counsel for both parties addressed the Court. Learned counsel for the Appellants urged the trial court in the interest of justice to transfer the case to the General Cause List based on the averments of the Affidavit in support of the Notice of Intention to Defend and the Notice of Preliminary Objection challenging the jurisdiction of the Court.
Learned counsel for the Respondent opposed the transfer of the case to the General Cause List on the ground that both the Notice of Intention to Defend and Memorandum of Appearance were filed out of time by the Appellants. Respondent’s counsel urged the court to proceed to enter judgment in favour of the Respondent.
After listening to the addresses of both counsel, the learned trial Judge adjourned the case to 1/3/2001 for the delivery of his judgment.
On 1/3/2001, the learned trial Judge delivered his judgment in the case in favour of the Respondent against the Appellants for the sum of Seventy-five Million Naira (N75, 000, 000=), the unpaid debt Dissatisfied with the said judgment of the trial court, the Appellants filed this appeal to this court.
The notice of appeal filed by the Appellants challenging the decision of the trial court is on pages 23 – 26 of the record of proceedings. It contains six (6) grounds, with their particulars, they are reproduced hereunder verbatim for ease of reference:
“i.) ERROR IN LAW:
The judgment is a nullity.
PARTICULARS OF ERROR
1) On the 8th day of February, 2001, the appellants filed a notice of Preliminary Objective challenging the jurisdiction of the court to hear the suit.
2) The court on the 12th day of February, 2001 went ahead to hear the suit on the merits without hearing ‘argument on the issue of jurisdiction.
ii) ERROR IN LAW
The honourable learned trial judge erred in law in holding that no notice of intention to defend was filed by the defendant/Appellants.
PARTICULARS OF ERROR
The defendant/Appellants on the 8th day of February, 2001 filed in notice of intention to defend the suit together with an affidavit setting out their defence, on merits.
iii) ERROR IN LAW
The Honourable learned trial judge erred in law in holding that the Defendants/Appellants’ Notice of intention to defend did not disclose a defence on the merits,
PARTICULARS OF ERROR
i ) The affidavit in support of the notice of intention to defend challenged the jurisdiction of the honourable court to try the suit.
ii) The affidavit in support of the notice of intention to defend raised the issue.
iii) The affidavit in support of the notice of intention to defend stated that the contract was not executed by the plaintiff.
iv) ERROR IN LAW
The Honourable learned trial judge erred in law by entering judgment in favour of the Plaintiff/Respondent.
PARTICULARS OF ERRORS
i) As at the time the case was heard on the merits, there was before the court below a notice of Preliminary Objection challenging the jurisdiction of the court to try the suit, and this was brought to the attention of the honourable learned trial judge.
ii) The Honourable learned trial judge went ahead to hear the suit on the merits without hearing argument of parties or their counsel on the issue of whether or not the trial court had jurisdiction to entertain the suit.
iii) There is evidence on record to the effect that from the date the defendants were served with the writ of summons and the return date, it was not possible for the defendants to have filed their notice of intention to defend 5 clear days before the return date, ERROR IN LAW The judgment is a nullity as it contravenes the provisions of Chapter IV of the Constitution of the Federal Republic of Nigeria, 1999.
vi) ERROR IN LAW
The judgment is against the weight of evidence.”
From the six grounds of appeal, the Appellants formulated three (3) issues for the determination of the appeal in their brief of argument filed on 2/5/2001. The issues are reproduced hereunder verbatim as follows:
“1. Whether the Honourable Learned Trial Judge was right in hearing the case on the merits and entering judgment against the Appellants without first and foremost disposing off the Notice of Preliminary Objection challenging the jurisdiction of the Court to hear the case (this issue is based upon Grounds 1, 4 and 5of the Appeal).
- Whether the Honourable Learned Trial Judge was right in holding that the Notice of Intention to Defend the Suit filed by the Appellants does not disclose defence on the merits( this issue is based upon Grounds 3 and 6 of the Appeal) and
- Whether the Honourable Learned Trial Judge was right in holding that ‘No Notice of Intention to Defend the Suit’ was Ned by the Appellants (this issue is based upon Ground 2 of the Appeal).”
Upon failure by the Respondent to file its Respondent’s brief of argument within the statutory period after service on it with the Appellants’ brief, the Appellants brought an application pursuant to the provisions of Order 6 Rule 10 of the Court of Appeal Rules, 2002 for the appeal to be heard on the Appellants’ brief only in default of the Respondent’s brief. This court granted the application on 11/4/2006. The appeal was then fixed for hearing and parties were duly served to that effect.
At the hearing of the appeal on 7/11/2006, both the Respondent and its counsel were absent from court.
Mrs. S. O. Omoloba, learned counsel for the Appellants adopted the Appellants’ brief of argument and urged the court to allow the appeal.
The Respondent was duly served with all processes and hearing notices but it failed to appear either in person or through any counsel. It also did not file the Respondent’s brief of argument. It is hereby deemed that the Respondent is not interested in contesting the appeal. Therefore this appeal shall be determined on the Appellants’ brief of argument only in default of the Respondent’s brief of argument pursuant to the provisions of Order 6 Rule 10 of the Court of Appeal Rules, 2002. For ease of reference the provisions are hereunder reproduced as follows:
“10. Where an appellant fails to file his brief within the time provided for in rule 2 of this Order, or within the time as extended by the Court, the respondent may apply to the Court for the appeal to be dismissed for want of prosecution If the respondent fails to be his brief, he will not be heard in oral argument except by leave of the Court. Where an appellant fails to file a reply brief within the time specified in rule 5, he shall be deemed to have conceded all the new points or issues arising from the respondent’s brief.”
I have examined the three issues identified by the Appellants in their brief of argument. It is a settled principle of law that the Court of Appeal has the mandate to adopt or modify or formulate new issues that in its view would adequately tackle the complaints of an appeal. I rely on the cases of:
(1) Aduku v. Adejoh (1994) 5 NWLR (pt. 346) p. 582 and
(2) Ikegwuoha v. Ohawuchi (1996) 3 NWLR (pt. 435) p.146.It is my humble view that although the three issues are quite okay for the proper resolution of the complaints of the appeal, I observe that all three issues are contiguous, interrelated, interwoven, laced and can therefore be conjoined. I shall therefore take all the three issues together.
Learned counsel for the Appellants submitted that the Appellants were served a Court Order with a Writ of Summons attached to it in respect of an action commenced against them by the Respondent under the Undefended list Procedure on 4/2/2001.
Thereafter the Appellants on 7/2/2001 flied a Memorandum of Appearance. On 9/2/2001 both a Notice of Intention to Defend and a Notice of Preliminary Objection were filed by the Appellants in response to the claims endorsed on the writ of summons of the Respondent. All these processes were filed before the return date, 12/2/ 2001 which was earlier on entered by the trial court. Counsel went further to state that on the return date, the attention of the learned trial Judge was drawn to all the said processes filed and served by the Appellants, the crux of which was that the trial court lacked jurisdiction and competence to entertain the suit. Rather than attend to this issue, the trial Judge went ahead to hear the case as an undefended suit and gave judgment against the Appellants.
Appellants’ counsel argued that failure of the trial Judge to first determine the issue of jurisdiction raised by refusing to hear the Appellants on the Preliminary Objection challenging the competence of the action amounts to a denial of the Appellants’ right to fair hearing as enshrined in the provisions of Section 36 of the Constitution of the Federal Republic of Nigeria, 1999. The Appellants denial of fair hearing in the case is a contravention of the principle of “audi alteram pattem”. This infraction rendered the judgment of the trial court a nullity. He relied on the cases of:
(1) Maiwada v. Hussaini (2000) 6 NWLR (Pt. 662) p. 698 at p.704;
(2) Rankol Clinic & Maternity Hospital v. Supreme Finance & Invest. Co. Ltd & Anor (1999) NWLR (Pt. 612) p. 619;
(3) U.B.A. Ltd Vs. Achoru (1990) 6 NWLR (Pt. 154)p. 254;
(4) R. Vs. Chancellor of the University of Canbridge (1723) 1 T.L.R. p. 557atp. 576
(5) Prof D. Olatunbosun v. N.I.S.E.R. (1988) 3 NWLR (pt. 80) p. 25 and
(6) A. – G., Anambra State & 13 Ors v. A. – G., Federation & 16 Ors. (1993) 6 NWLR (pt. 302)p. 692.
Appellants’ counsel contended that the judgment of the trial court has occasioned a miscarriage of justice to the Appellants.
The procedure to be employed in suits commenced under the undefended list is established and very clear, This is as mapped out in Order 23 Rules 1-5 of the High Court of the Federal Capital Territory, Abuja (Civil Procedure Rules) 1990, For ease of reference, the Rules are hereunder reproduced as follows:
“ORDER 23
THE UNDEFENDED LIST
- Whenever application is made to a court for the issue of a writ of summons in respect of a claim to recover a debt, liquidated money demand or any other claim and the application is supported by an affidavit setting forth the grounds upon which the claim is based and stating that in the deponent’s belief there is no defence thereto, the Court shall, if satisfied that there are good grounds for believing that there is no defence thereto, enter the suit for hearing in what shall be called the “Undefended List’; and mark the writ of summons accordingly and enter thereon a date for hearing suitable to the circumstances of the particular case.
- There shall be delivered by the plaintiff to the registrar upon the issue of the writ of summons as aforesaid, as many copies of the above-mentioned affidavit as there are parties against whom relief is sought, and the registrar shall annex one such copy to each copy of the writ of summons for service.
- (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.
(2) Where leave to defend is given under this rule, the action shall be removed from the Undefended List and placed on the ordinary Cause List; and the Court may order pleadings, or proceed to hearing without further pleadings.
- Where any defendant neglects to deliver the notice of defence and affidavit prescribed by rule 3(1) of this Order or is not given leave to defend by the Court, the suit shall be heard as an undefended suit and judgment given thereon, without calling upon the plaintiff to summon witnesses before the Court to prove his case formally.
- Nothing herein shall preclude the Court from hearing or requiring oral evidence, should it so think fit, at any stage of the proceedings under rule 4 of the Order.”
The steps under the procedure starts with the making of an application by a plaintiff to court for the issuance of a Writ of Summons in respect of a claim to recover a debt, liquidated money demand or any other claim. The application must be supported by an affidavit setting forth the grounds upon which the claim is based and stating that the applicant believes there is no defence thereto. If the court is satisfied that indeed there are good grounds for believing that there is no defence thereto, it shall enter the suit for hearing in what shall be called the “Undefended List” and cause the Writ of Summons to be so marked appropriately. The court shall also enter thereon the hearing date as the circumstances of each case deserve.
The marked Writ of Summons with the affidavit in support shall thereafter be served on the defendant who if he desires will be required to file a notice of intention to defend together with a supporting affidavit setting out the grounds of his defence.
The notice of intention to defend must be filed and or delivered to the registrar of the trial court in not less than five (5) days before the date already fixed for the hearing of the suit.
On the hearing / return date, the court after hearing the parties and if it is satisfied that the defendant’s notice and the grounds averred to in the supporting affidavit disclose a defence on the merit to the action, shall give an order that the suit be transferred to the ordinary or general cause list. If however the trial court finds otherwise, then the case shall be heard as an undefended case and judgment shall be given thereon without necessarily calling upon the plaintiff to adduce evidence or summon witnesses to prove his case.
In both scenarios, what is required is for the court to reach a definite and unequivocal decision on whether or not the defence put forward by the defendant has raised a “triable issue”.
I will now at this juncture apply the above principles of law to the facts and circumstances of this case. I have carefully examined the processes including the exhibits filed by the parties. I found that the Respondent was duly granted leave by the trial court to issue its Writ of Summons under the Undefended List on 2/2/2001. The Writ of Summons with the Affidavit in support of the Writ of Summons were attached to the Enrolled Order of court and served on the Appellants. See pages 5 – 10 of the record of proceedings.
One germane point raised in the Appellants’ brief is whether in fact they were served with a marked and or properly endorsed writ of summons as required under the provisions of Rules 1 & 2. Rule 1 provides “inter alia” and I quote:
“the court shall, if satisfied that there are good grounds for believing that there is no defence thereto, enter the suit for hearing in what shall be called the “Undefended List’; and mark the writ of summoms accordingly and enter thereon a date for hearing suitable to the circumstances of the, particular case.” (The underlined is for emphasis)
From the wordings of those provisions, it is mandatory for the writ of summons to be marked with the words: “Undefended List”. A copy of the affidavit shall be annexed to the marked writ of summons for service on the defendant, in this case the Appellants – see Rule 2.
The word ”shall” under Rules 1 & 2 is very operative.
The word ”shall” is a word of command and it denotes direction, compulsion, a mandate, an obligation and gives no room for discretion. In whatever way it is used, whether in a mandatory or directory sense, there has to be a fulfilment of such mandate or directive. See the cases of:
(1) M. H Tanko v. E Caleb& 3 Ors. (1999) 8 NWLR (pt. 616)p. 606;
(2) Captain E.C.C. Amadi Vs. N.N.P.C (2000) 10 NWLR (Pt. 674) p.76 and
(3) A. L. Abimbola v. I.F. Aderoju & 3 Ors. (1999) 5 NWLR (pt. 601) p.100.
Also in the case of:
N A. Adewumi & Anor. v. A. – G., Ekiti State & 6 Ors (2002) 2 NWLR (Pt. 751) p. 474, the Supreme Court held that the word “shall” used in Order 5 Rule 11 and Order 11 Rule 7 of the High Court of Ondo State (Civil Procedure) Rules as applicable in Ekiti State, makes the provisions mandatory, pre-emptory and failure to comply therewith is a fundamental error in the proceedings of the trial court.
I wish to refer to the” Writ-of Summons at page 5 of the record of proceedings. This is what was served on the Appellants along with the other processes. On the face of the Writ of Summons, it is very patent that it was not properly marked as required under the provisions of Rule 1. The words “Undefended List” were not entered and or marked on the Writ of Summons. This is an error that goes to the root of the procedure under the undefended list and renders the issuance and service of the Writ of Summons defective.
The Appellants were therefore not obliged to file the Notice of Intention to Defend the purported suit of the Respondent. The reason is that they were not served with a properly marked writ of summons. By the combined effect of Rules 1, 2 and 3, the Appellants must have been served with the “marked” writ of summons, that is the writ of summons marked “Undefended List” and the affidavit in its support before they can be expected to deliver and or turn in their notice of intention to defend with the appropriate accompanying affidavit setting out grounds of defence on the merits. With due respect to the learned trial Judge, his consequent finding that the Appellants were served with the endorsed writ of summons was misconceived and not born out of proper consideration of the processes filed before him.
The above defective process notwithstanding, the Appellants still went ahead to file a Memorandum of Appearance on 7/2/2001.
That was within time, I say within time because even if as founded by the trial court that the Appellants were served on 2/2/2001 with the Writ of Summons, the endorsement on the Writ of Summons that was served on them required that they enter an appearance within eight days. By the time they filed their Memorandum of Appearance on 7/2/2001, time was yet to expire or run out against them.
For further proper articulation of the complaints of the appeal, it is trite to observe that although the procedure under the undefended list is simple, it is technical. It is a special procedure, the courts have been enjoined to interpret its provisions and apply them simply to the cases before them. Basically, the onus is on the court to determine whether a writ of summons taken out should be heard under the undefended list. To properly discharge this onus, all the processes served must be scrutinized with an eagle eye. With due deference to the learned trial judge, it is his duty to ensure that proper service had been effected on the Appellant. He failed to scrutinize the processes otherwise he would have discovered that the writ of summons was in fact not properly endorsed. Every step of the procedure all the way is salutary and must not be short circuited or circumvented. It is foundational that the writ of summons must be marked “Undefended List” before it can qualify to be issued as such.
Serving the Appellants with an ordinary writ of summons not properly endorsed is definitely outside the contemplation of the procedure under consideration. Failure to comply with any part of the procedure renders the entire procedure ineffective. Non-compliance even though procedural can not be classified as a mere irregularity which the court can gloss over.
The effect of non-compliance rubbishes the jurisdiction of court. The issue of service of proper court process is fundamental as it is one of the major materials used in laying the foundation upon
which the structure of an action is constructed. It is a time-hallowed principle of law that if there is no proper service of all necessary and proper processes, the court is devoid of competence to adjudicate upon a suit. See the cases of:
(1) Madukolu v. Nkemdilim (1962) ALL LR (Pt.2)p.581;
(2) Ogbaegbe v. FBN Plc (2005) 18 NWLR (Pt.957) p.357;
(3) Ajibola v. Sogeke (2003) 9NWLR (Pt.826) p.494;
(4) B.B. Apugo & Sons Ltd v. Orthopeadic Hospital Management Board (2005) 17 NWLR (pt. 954) p.305; and
(5) Okumodi v. Sowunmi (2004) 2 NWLR (Pt.856) p.1
On the issue of the preliminary objection of the Appellants, it is worthy of note to re-emphasis that the Notice of Preliminary Objection was filed by them on 09/02/2001, it was thereafter duly served on parties in the trial court. Most importantly, the objection was primarily that of law. It challenged the competence of the trial court to adjudicate upon the suit already commenced before it rightly or wrongly and I have found it was wrongly commenced and this is not being superfluous but rather adequate in the consideration of the vital points raised in the appeal.
For purposes of ease of reference and better appreciation I hereunder restate the grounds of the preliminary objection of the Appellants filed in the trial court as follows:
1 The State High Court lacks jurisdiction to entertain the matter.
- The action is premature.
3 There is no compliance with the provisions of Order 23 Rule 1 of the High Court of the Federal Capital Territory, Abuja (Civil Procedure Rules) 1990.
On 12/2/2001, the return date, both counsel made oral submissions and in particular, Appellants’ counsel “inter alia” drew the attention of the learned trial Judge to the notice of preliminary objection filed by them. Rather than call upon counsel to argue same, there was a kind of deliberate amnesia on the part of the learned trial Judge. The only response from him at the end of oral submissions of both counsel was simply an order of adjournment of the case to 1/3/2001 for the delivery of his judgment. When the court reconvened on 1/3/2001, the learned trial judge after the announcements of counsel’s appearances went straight to deliver his judgment. No questions were raised or entertained either by the court or counsel. Anyone and I would have thought that the learned trial judge would have had ample time to have a re-think about his posture, the case having been adjourned for over two weeks before his judgment was delivered. Alas, he just completely swept the notice of preliminary objection under the carpet and pretended that it did not exist before him. I am indeed baffled by the attitude of the learned trial judge.
It appears to me and I think I am right that in the circumstance, the appropriate thing would have been for the preliminary objection to be argued by the Appellants’ counsel, replied to by the Respondent’s counsel and ruled upon by the learned trial Judge as appropriate. This would have availed the Appellants the opportunity of being heard on the issue and also enabled the trial Judge determine whether or not he had jurisdiction to proceed with entering judgment in the case under the undefended list.
The issue of jurisdiction is fundamental that if raised at the earliest opportunity, it behoves and is imperative for the court to determine it first before proceeding further with the trial of the suit.
This would have forestalled the nullity of the trial. Lack of jurisdiction is an incurable vice. Proceedings and judgments delivered by a court which lacks jurisdiction are rendered a nullity. See the cases of:
(1) Adisa v. Oyinwola (2000) 10 NWLR (Pt. 674) p.116;
(2) Abdulsalam v. Salawu (2002) 13 NWLR (pt.785) p.505;
(3) Mogaji v. Matari (2000) 8 NWLR (Pt.670) p.722;
(4) Obayiuwana v. Ede (1998) 1NWLR (Pt535) p.670;
(5) Ogbu v. Orum (1981) 4 SC p.1 and
(6) Oke v. Oke (2006) 17 NWLR (pt.1008) p.224.Furthermore, refusal of the learned trial judge to avail the Appellants an opportunity to argue their preliminary objection was also bad. They can not be said to have been given a fair hearing in the circumstances of the case by the learned trial Judge. It is trite that a hearing cannot be said to be fair if any of the parties is refused a hearing or denied the opportunity to be heard or present his case.
An essential condiment of fair hearing is that a court must hear both sides to a case and consider all material issues before reaching a decision. See the cases of:
(1) Udo-Akagha v. Palco Ltd (1993) 4 NWLR (Pt.288) p.434:
(2) Kotoye v. C.B.N (1989) 1 NWLR (Pt.98) p.419;
(3) Adigga v. A.- G., Oyo State (1987) 1 NWLR (Pt.53). p.678 and
(4) Saleh v. Munguno (2003) 1 NWLR (pt.801) p.221
Although the procedure under the undefended list is intended for the purpose of obtaining a summary judgment in claims for the recovery of debts or liquidated money demands without necessarily proceeding with the rigours of a full fledged trial to ensure quick dispensation of justice, it is not an exception or opposed to the principle of fair hearing under the “audi alteram partem” rule. The procedure is not meant to dish out justice to only the plaintiff/applicant without giving the defendant an equal opportunity, of being heard at all.
On the whole, having found that the writ of summons was not properly issued and served on the Appellants, coupled with the refusal of the trial court to avail the Appellants an opportunity of being heard on the preliminary objection challenging the Jurisdiction of the court, the proceedings and judgment of the trial court was vitiated thereby rendering them a nullity.
This appeal succeeds on the whole and it is hereby allowed.
The proceedings and the judgment of the High Court of the Federal Capital Territory, holden at Abuja per U. M. Kusherki J. delivered on 01/03/2001 is accordingly set aside.
I make no order on costs.
Other Citations: (2007)LCN/2210(CA)
