Noclink Ventures Ltd & Anr. V. Chief Oke Muo Aroh & Anr. (2007)
LawGlobal-Hub Lead Judgment Report
JIMI OLUKAYODE BADA, J.C.A,
This is an appeal against the Ruling of the High Court of Anambra State holden at Onitsha in Suit No:-0/22/2002 Noclink Ventures Ltd. & 1 other Vs. Chief Okey Muo Aroh & 1 other delivered on 20/5/2005.
The appellants by their Statement of Claim had claimed against the respondents jointly and severally the sum of N12,000,000.00 being debt due from the respondents to the appellants.
Even though the Respondents did not appear in court nor filed any defence, in a judgment delivered on 11/3/2003, the sum of NI2,000,000.00 was awarded in favour of the appellants with N20,000.00 cost against the respondents.
By a motion dated 27/7/2003 and filed on the same date, the 2nd respondent had prayed for
– An order setting aside the Judgment of the lower court delivered in suit No:-0/22/2002 on the ground that the court entered the said judgment without jurisdiction.
The trial court heard the application and the said judgment delivered on 11/3/2003 was set aside.
Dissatisfied with the decision to set aside the said Judgment, the appellants now appealed to this Court.
The appellants formulated two issues for determination as follows:-
(1) Was the trial Judge right in holding that the Provisions of Order 9 rule 42(3) of the High Court Rules of Anambra State 1988 did not apply to the present case and was there enough evidence placed before the court to dislodge successfully the presumption raised by the proof or affidavit of service of the Bailiff that the respondents had been properly served with the processes in the case.
(2) Whether the trial judge was right or justified in raising the issue of the mutilation of the affidavit of service “suo muto” and yet not affording the parties opportunity to address him on the issue, and in setting aside even the Judgment obtained against the 1st Respondent who had not complained that he was not properly served.
The Respondents also formulated three issues for determination as follows:-
(1) Whether it is not Order 26 rule 4(1) of the Anambra State High Court (Civil Procedure) Rules 1988 that is applicable in an application to set aside a judgment obtained in default of pleadings as in this suit.
(2) Whether pre-action Notice was served on the 2nd Defendant/Respondent in keeping with Sections 158 and 159 of the Anambra State Local Government Laws 1991 and the rules as prescribed by the practice Direction.
(3) Whether the trial court was not right in setting aside the judgment of 11th March 2003.
At the hearing of this appeal learned counsel for the appellants even though filed the appellant’s brief of argument failed to show up in court. On the other hand learned counsel for the 2nd Respondent referred to the 2nd Respondent’s brief of argument filed with the leave of court on 3/6/2006. He adopted and relied on the said brief of argument. And he urged that the appeal be dismissed.
The issues formulated by learned counsel on behalf of the parties are similar, however the issues set out by the 2nd Respondent are considered relevant and apt to determine this appeal.
ISSUE 1
The learned counsel for the appellants referred to the Statement of Claim and submitted that once the claim is served before the matter is heard and default judgment entered, the applicable rule to set aside the judgment would be Order 9 rule 42(3) of the High Court (Civil Procedure) Rules of Anambra State 1988. He also referred to Order 9 rule 42(2) of the same High Court rules.
He pointed to the fact that judgment was delivered in this matter on 11/3/2003 while the motion on notice to set it aside was filed on 22/7/2003 which was more than four months after the date of delivery of Judgment.
He submitted that the application ought to have been made not later than 30 days from 11/3/2003 and yet there was no application from the 2nd respondent for an extension of time by the court. Therefore that the application of the Respondent to set the judgment aside was incompetent and that it ought to have been dismissed. He referred to the following cases:-
– Sanusi vs. Ayoola (1992) NWLR Part 265 at 275.
– Aina Vs. Abiodun (2005) 10 NWLR Part 933 Page 375.
– Akinriboya Vs. Akinsole (1988) 3 NWLR Part 540 Page 102.
– Williams Vs. Hope Rising Voluntary Funds Society (1982) 1-2 SC Page 145.
On the other hand learned counsel for the 2nd Respondent submitted that under the High Court (Civil procedure) Rules of Anambra State 1988 the applicable rule in an application to set aside a judgment obtained in default of pleadings is Order 26 rule 4(1) and not Order 9 rule 42(2).
In order to appreciate the submissions of counsel on both sides it would be necessary to set out the relevant rules of court referred to in this judgment as follows:-
Order 9 rule 1 of the High Court (Civil Procedure) Rules of Anambra State 1988 provides:-
“In every suit, unless otherwise expressly prescribed by these rules, or any written law in force in the State from time to time, written pleadings shall be filed and served as prescribed by this rule.”
Order 9 rule 42(2) of the High Court (Civil Procedure) Rules of Anambra State 1988 provides:-
“If the defendant fails to file a statement of defence as prescribed by these rules or by the Order of the court, the Plaintiff on his application shall be entitled to judgment on the face of the statement of claim provided that where damages are claimed, the court shall take evidence before quantifying the damages entitled by the Plaintiff on the Statement of Claim.”
Order 9 rule 42(3) of the same High Court rules provides:-
“Any Judgment or Order obtained by virtue of this rule shall be a final judgment, but the court had power to vary or reverse such Judgment or Order on an application by the affected party brought not later than thirty days from the date of such Judgment or Order.”
Order 26 rule 4(1) of the High Court (Civil procedure) Rules of Anambra State 1988 provides:-
“An application to set aside for irregularity any proceeding, any step taken in any proceeding or any document, judgment or order therein shall not be allowed unless it is made within a reasonable time and before the party applying has taken any fresh steps in the Proceedings after becoming aware of the irregularity.”
A perusal of the above quoted rules of court showed that Order 9 Rule 42(2) (supra) envisages due service of the court processes on the Defendant before it can be applicable.
Also Order 9 rule 42(3)(supra) states the status of the Judgment obtained after pleadings have been filed and served properly.
On the other hand Order 26 rule 4(1) (supra) in my own view applies in all circumstances where the party seeking to have such Judgment set aside is complaining of any irregularity either in the issuance or service of the court processes or want of jurisdiction by the trial court among other issues.
Thus in an application to set aside Judgment obtained in default of pleadings under Order 26 rule 4(1) of the High Court (Civil Procedure) Rules of Anambra State, it is not necessary to ask for leave for extention of time. But under Order 9 rule 42(3) of the same High Court Rules in an application to set aside a judgment in default of appearance after pleadings have been filed and served an order for extention of time within which to apply to set aside the judgment must be obtained if the application is made after the expiration of thirty days from the date of judgment. See Rufus Akinnuli Vs. O.E. Avo Odugbesan (1992) 8 NWLR Part 258 Page 172 at 189.
The cases of – Sanusi Vs. Ayoola (supra), – Aina Vs. Abiodun (supra) and – Akinriboya Vs. Akinsole (supra) are not relevant because they are based on High Court of Lagos State Civil Procedure Rules (1972) and (1994) and Ondo State High Court (Civil Procedure) Rules (1987) respectively.
The case of Williams Vs. Hope Rising Voluntary Funds Society (supra) is also not relevant to the case under consideration.
In view of the foregoing Issue I is resolved against the appellant since order 26 rules 4(1) of the High Court (Civil Procedure) Rules of Anambra State is the applicable rule to set aside the judgment obtained in default of pleadings as in the instant case.
ISSUE 2
Learned counsel for the appellant stated that the only complaint of the 2nd Respondent was that it was not served with Pre-Action notice as required by the statute.
It was not shown anywhere in the Appellant’s brief of argument that the 1st and 2nd Respondents were served with the said Pre-Action notices as required under Section 11(1) and (2) of the State Proceedings Law of Anambra State and Sections 158 and 159 of the Local Government Laws of Anambra State because 1st Defendant is a Public Officer and 2nd Defendant is a government agency.
Section 11(1) and (2) of the State proceedings Law of Anambra State is hereby set out as follows:-
“11(1) No action or proceeding shall be or be instituted under this law unless it is commenced within twelve months next after the act neglect or default complained of or, in the case of a continuing damage or injury, within twelve months next after the ceasing thereof.
Provided that if the action or proceedings be at the instance of any person for a cause arising while such a person was a convict prisoner, it may be commenced within twelve months after the discharge of such person from prison or in the case of a continuing damage or injury, within twelve months next after the ceasing thereof, whichever shall last occur.
(2) No action shall be instituted-
(a) against the State; or
(b) against a public officer in respect of an act done in pursuance or execution or intended execution of, any written law, or of any public duty or authority or in respect of any alleged neglect or default in the execution of any such written law, duty or authority, until the expiration of a period of three months after notice in writing has been, in case of the state delivered to the Secretary to the Government, and, in the case of a Public Officer, deliver to him, stating the cause of action, the name, description and place of residence of the proposed Plaintiff and the relief which he claims; and the Plaint when eventually prepared shall contain a statement that such notice has been so delivered and date on which it was delivered.
Provided that nothing herein contained shall be construed as affecting the provisions of any law which limits the liability of the Government or any department thereof in respect of any act or omission of its servants.”
By virtue of the laws referred to above, no suit shall be commenced against a Public Officer or Local Government without the pre-action notices being served upon the Public Officer and the local government by the intending plaintiff. The provisions of the law are mandatory in order to clothe the legal action against the Local Government, being a juristic person. In the instant case the consequence of the appellant not complying with the laws is detrimental to the action as instituted and it robs the court of jurisdiction to entertain the action.
In the circumstance it is my view that the judgment of 11/3/2003 was delivered without jurisdiction. And a judgment delivered without jurisdiction no matter how well written confers no right on any of the parties to it nor does it confer any obligations whatsoever.
In the case under consideration the failure to serve preaction notices on the 1st and 2nd Respondents in accordance with Section 11(1) and (2) of the State Proceedings Law of Anambra State and Sections 158 and 159 of the Local Government Laws of Anambra State 1988 is a fundamental defect which rendered the action incompetent ab initio.
Consequently this issue is also resolved against the appellant.
ISSUE 3
On the issue of affidavit of service, learned counsel for the appellant referred to the finding of the learned trial judge where he held as follows:-
“I hold that where there are unexplained gaps as to entries in an affidavit of service the usual presumption of service granted to properly filed affidavits of service will not avail the bailiff. I hold that the omission of time of service and the persons who acted as pointers and absence of places where 1st and 2nd defendants were served are enough for the court to allow the 2nd Defendant/applicant to call on the bailiff to explain the lapses.”
Learned counsel argued further that the bailiff was not called to give evidence to clear the lapses before holding that Exhibits NM1 and NM2 do not amount to prima facie evidence of service of the processes in the suit on the defendant.
Counsel referred to:- Attorney General of Anambra State Vs. Okeke 2003) FWLR Part 112 Page 175 at 190.
It was also contended by learned counsel for the appellant that the learned trial Judge raised the issue of defect in the affidavit “Suo Motu” and that parties were not afforded the opportunity to address on the issue. He submitted that it is tantamount to a denial of fair hearing.
He referred to the following cases:-
– Sande Vs. Abdnlahi (1989) 4 NWLR Part 136 Page 389 at 382.
– Ayoola Vs. Adebayo (1969) 1 All NLR Page 159.
Learned counsel finally urged that the ruling of the trial Judge dated 20/5/2005 be set aside and restore the judgment of 11/3/2003 delivered in favour of the appellants.
On the other hand, counsel for the 2nd respondent maintained that no process of court relating to this suit was ever served on the 1st and 2nd Respondents.
And furthermore that the entries on the face of the affidavits cast doubts as to their propriety.
In my own view a trial court can raise an issue suo motu and it is not in all cases that an address would be necessary as in the instant case for looking at the affidavit of service in the court’s file.
The view expressed in Fayemi Vs. Local Government Service Commission of Oyo State and another (2005) 6 NWLR Part 921 Page 280 at 285 ratio I is apposite where it was held as follows:-
“A trial court being a court of acts and law has the right to raise any issue “suo motu” as the interest of parties demands. A court exists to determine disputes and to examine with due care and microscopic sense all matters before it in its pursuit of justice. It is there not to trap any party to set in motion what the parties have not brought. It will however amount to injustice for the trial court to close its eyes to any irregularity latent and patent on the record without suo motu dealing with it. The rationale behind this is for the trial court to maintain its role as an independent arbiter.”
In the instant case the trial judge was therefore right to raise “suo motu” that on the face of the affidavit of service under consideration in the case file the deponent failed to disclose who pointed out the defendants to him since he did not know the defendants before that date and also the persons the deponent purportedly served, and also the time and place of such service.
See – Sodipo vs. Lemminkainen OY (1986) 1 NWLR Part 15 Page 220.
– Ijebuode Local Government vs. Adedeji Balogun & Co. (1991) 1
– NWLR Part 166 Page 136 referred to.
It was also submitted that the appellants did not file any counter-affidavit in opposition to the application to set aside the judgment.
In my view since the appellants did not find it necessary to file a counter affidavit, the facts deposed to in the affidavit in support of the application to set aside the judgment by the lower court are taken as unchaIlenged and uncontroverted.
See – Uzondu vs. Uzondu (1997) 9 NWLR Part 521 Page 466.
– Ajewole Vs. Adetimo (1996) 2 NWLR Part 431 Page 391.
– Ondo State vs. A.G. Ekiti State (2001) 17 NWLR PART 743 Page 706 at 731 ratio 21.
In view of all I have said so far on this issue, it is also resolved against the appellant, and I hold that the trial court was right in setting its judgment of 11th March 2003 aside as far as the 1st and 2nd respondents were concerned.
In the final analysis, it is my view that this appeal is unmeritorious, it is fails and it is accordingly dismissed.
The 2nd Respondent is entitled to costs which is fixed at N7,500.00 against the appellants.
Other Citations: (2007)LCN/2275(CA)
