Prof. Dupe Olatunbosun V. Mr. Anthony Annenih (2008)
LawGlobal-Hub Lead Judgment Report
CHIOMA EGONDU NWOSU-IHEME (Ph.D), J.C.A.
This is an appeal against the Judgment of the High Court of Edo State Benin Division in suit NO.B/505/95. The Judgment was delivered by Sadoh, J. on the 8/2/96.
The Respondent who was the plaintiff in the lower court filed a suit on the 12/7/95 claiming the sum of One Million, Eight Hundred Thousand Naira against the Appellant who was the Defendant at the lower Court. By an application dated the 2/11/95 which was granted, the Respondent issued and served the writ and statement of claim on the appellant who was resident outside the jurisdiction of the said Benin High Court.
The Respondent was also granted an order to serve the said writ of Summons, the statement of claim and other processes of Court on the Appellant by Substituted Service, the said processes were served on the Appellant. In spite of service of these processes on the Appellant, he never entered appearance and did not file a statement of defence to the suit.
At the expiration of the period provided by the Rules for entering appearance and filing statement of defence, the Respondent brought an application praying the Court for an order entering Judgment in his favour. The said motion and further affidavit of the Respondent in support were served on the Appellant.
Rather than take steps known to law in reaction to the motion and further affidavit served on him, the Appellant’s response was only by way of a counter affidavit and he was not in court in response to the motion for Judgment.
On the 8th of February 1996, the Court below delivered its final judgment and entered Judgment for the Respondent. On the 24/10/96, about Eight months later, the Appellant brought an application praying the lower court for the following reliefs:
“I. An order enlarging the time within which the defendant/Applicant may enter his appearance, the time allowed by the rules of court having expired.
- An order deeming the memorandum of appearance attached to the affidavit herewith and marked Exhibit 1 as properly filed and served.
- An order enlarging the time within which the Defendant/Applicant may apply to set aside the judgment of this Honourable Court dated 08/02/96.
- An order setting aside the judgment of this Honourable Court dated 08/02196 entered against the Defendant/Applicant in default of Appearance and defence.
- An order granting leave to the Defendant/Applicant to defend this suit.
- An order relisting this suit for hearing and determination on its merit.
- An order enlarging the time within which the Defendant/Applicant may file his statement of defence the time allowed by the rules having expired.
- An order deeming the statement of defence attached to the affidavit herewith and served, the appropriate fees having paid”.
The above application was heard and on the 17th of December 1996, in its Ruling the lower court dismissed the application to set aside its Judgment delivered on 8/2/96.
Aggrieved by both decisions of the lower court, the Appellant filed this appeal seeking the following reliefs;
(a) An order allowing this appeal and setting aside the Judgment of the trial court complained of.
(b) An order sending this case back to the lower court for re-trial.
(c) Any further orders.
The Grounds of appeal are as follows;
- The Learned trial Judge erred in law when he refused to set aside the Judgment entered in default against the defendant on 8th February 1996.
- The learned trial Judge erred in law when he held that the defendant failed to satisfy the conditions for setting aside a default Judgment. There is nothing on record to show that the additional Grounds of appeal were filed or served.
The Appellant formulated three issues for determination, while the Respondent raised one issue for determination.
For the Appellant they read;
(i) Whether the trial court was right not to set aside its Judgment having regard to the various fundamental irregularities afflicting the writ of summons in the Case, service of same as well as the motion for Judgment and better and further affidavit of the plaintiff.
(ii) Whether on the materials placed before the court by the defendant, the trial Judge was right in refusing to extend time to set aside the Judgment.
(iii) Whether on the affidavit filed by the defendant trial Judge was right in holding that the defendant failed to satisfy the conditions for setting aside the default Judgment.
For the Respondent it simply reads;
(1) Whether the learned trial Judge erred in law when he refused to set aside this Judgment of 8/2/96.
In my view the three issues formulated by learned Senior Advocate for the Appellant could be compressed into one issue. To that effect, I prefer the only issue formulated by learned counsel for the Respondent, which subsumes all the other issues as formulated by the Appellant. I will therefore look at this appeal in that perspective.
In his argument on the issue for determination, learned Senior Counsel for the Appellant Contended that the Judgment of the 8/2/96 being a default Judgment that the lower Court had jurisdiction to set it aside. He cited the Case of TOM V. AMOH (1992) 1 NWLR (PT.217) 306 at 310.
He contended that the writ of Summons being one to be served outside the jurisdiction of Edo State, must be endorsed in accordance with Sections 97 and 99 of the Sheriffs and Civil Process Act. He submitted that the writ of summons filed by the Appellant at the lower court was not in conformity or substantial compliance with the provisions of the said section 97 of the Sheriff and Civil Process Act.
He cited the Case of NNPC V. ELUMAH (1997) 3 NWLR (PT.492) 195 at 204.
SKEN CONSULT V. UKEY (1981) 1 Sc. 6. NWABUEZE V. OKOYE (1988) 4 NWLR (PT.91) 661.
He argued further that failure to serve a writ without proper endorsement as stipulated under Section 97 is not a mere irregularity, but a fundamental defect that renders the writ incompetent. And any Judgment entered based on a writ fraught with such fundamental defect is a nullity. He cited BELLO V. NBN (1992) 6 NWLR (PT.246) 206 at 218. ADEGOKE MOTORS LTD. V. ADESANYA (1989) 3 NWLR (PT.10a) 250 at 290.
Learned Senior Counsel for the Appellant argued that the Appellant in reaction to the motion for Judgment served on him filed a counter affidavit through his Nephew as he was sick having been released from Kirikiri Maximum Security Prison, and attached a medical report to the said affidavit seeking an adjournment till when he is fit enough to travel to Benin and engage a counsel for his defence. That when the lower court adjourned the Judgment to 8/2/96, he was not issued hearing notice, and therefore was not afforded a fair hearing. He cited JULIUS BERGER V. FEMI (1993) 5 NWLR (PT.295) 612 at 620.
On the Ruling of the lower court refusing to set aside the Judgment of 8/2/96 and other prayers therein, the Appellant conceded that before the court can exercise such discretion in favour of any applicant, there must be basis for such exercise of discretion. That an appellate Court will not ordinarily interfere with the exercise of such discretion, unless it is not exercised judicially. He cited F.F.A. V. ABOSEDE (1988) 2 NWLR (PT.537) 177 at 185 OCHUDO V. OSENI (1998) 13 NWLR (PT.580) 103 at 120. ANATOGU V. ANATOGU (1998) 6 NWLR (PT.552) 42 at 56.
He further referred to the Case of N.A. WILLIAMS & ORS V. HOPE RISING VOLUNTARY FUNDS SOCIETY (1982) 1-2 SC, 142 at 152, referred to by the lower court in its Ruling dismissing the application to set aside its Judgment, and submitted that the lower court did not give adequate consideration to the materials placed before him in coming to his conclusions.
In his argument on the issue for determination, learned Counsel for the Respondent submitted that the issue as to whether any fundamental irregularities afflicted the writ of summons or not was never raised at any stage in the lower court. He conceded that being an issue of jurisdiction it could be raised at any time even on appeal, but that such an issue must form a separate ground of appeal, and must be obvious in the pleadings of parties in the court below. He Contended that Sections 97 and 99 of the Sheriff & Civil Process Act does not impose a format which must be followed by a plaintiff issuing a writ outside the court’s Jurisdiction.
He argued further that it is the duty of the Registrar of the High Court of Edo State to perform the function of endorsement of the words indicating Service outside Jurisdiction before issuing same. He Cited Order 5, Rules 1, 11(2) and 15 of the High Court Civil Procedure Rules 1988 Bendel State applicable to Edo State, and contended that a party cannot be punished for the negligence or tardiness of the Registrar in the performance of his duty, and cited B.B.N. LTD. V. OLAYINWOLA & SONS LTD. (2005) 3 NWLR, (PT. 912) 456 Paragraphs E – F. ODUA INVESTMENT CO. LTD. V. TALABI (1997) 10 NWLR. 523.
On the allegation of denial of fair hearing, learned Counsel for the Respondent contended that having not been raised in any of the Grounds of Appeal, not even in the application which ruling of the 17/12/96 is being challenged. Counsel referred to the numerous steps taken by the Respondent up to and after the service on the Appellant of the motion for Judgment, of which the Appellant responded by merely filing a counter affidavit rather than file his defence, a practice he described as unknown to our legal system.
He argued that the conduct of the Appellant at all material times within the period of service of court processes on him portrayed him as not only unserious, but treated the business of the court with levity.
That the Appellant who did not even file a memorandum of appearance and statement of defence despite being served all the relevant processes of Court Cannot be heard to complain of lack of fair hearing. He cited the Case of OKOCHA V. HERWA LTD. (2000) 15 NWLR (PT.690) P.249 at 258 and also Order 13 Rule 1 of the High Court (Civil Procedure) Rules of Bendel State applicable to Edo State, which makes it mandatory for a defendant to enter appearance before his case can be considered by the Court.
He described the word “SHALL” used in the said Rules as a Condition precedent for a defendant to enjoy the audience of the Court.
On whether the learned trial Judge erred in law when he refused to set aside the Judgment of 8/2/96, counsel submitted that the learned trial Judge evaluated the evidence before him, and relying on the Case of N.A. WILLIAMS & ORS V. HOPE RISING VOLUNTARY FUNDS SOCIETY supra identified Five factors to be Considered in granting or refusing an application to set aside a default Judgment, and came to the conclusion that the Appellant did not satisfy any of those Conducting and in its ruling on the 17/12/96 dismissed the said application as unmeritorious.
To determine this appeal it is necessary to say that the single issue for determination as identified by me is all encompassing, and therefore tied together and touches almost all relevant aspects of this appeal.
On the issue raised by the Appellant concerning service of the writ of summons outside jurisdiction, it is my humble view that Section 97 & 99 of the Sheriff and Civil Process Act did not contemplate endorsement of the format Contained in the said Section 97 word for word. All that is required is a Clear indication on the face of the writ that it is for service outside jurisdiction. It is therefore not to be copied to a ridiculous extent as to occasion injustice on the side of the parties when all that is required is to differentiate a writ for service outside jurisdiction, and those to be Served within the jurisdiction of the Court.
The Supreme Court per Pats-Acholonu JSC (of blessed memory) brought out the very essence of Section 97 of the Sheriffs and Civil Process Act in the Case of B.B.M. LTD. V. S. OLAYIWOLA & SONS LTD. (2005) 3 NWLR, (PT.912) Page 434 at 457, Para A, when he stated;
“The term “shall” in the Con of Section 97 of the Sheriffs and Civil Process Act, appears to mean or can be understood as conveying the message that a Writ of Summon to which the provisions of the Section relate should be endorsed or in other word have on the face of it the words that such a writ shall be served outside the jurisdiction of the Court.”
It should also be noted that it is primarily the responsibility of the Registrar of the Edo State High Court to endorse the said writ, once a party has paid the filing fees, he is no longer in control of how, and when his writ is endorsed. A party cannot therefore be punished for the negligence or tardiness of the Registrar in the performance of his duties.
See the Case of B.B.M. LTD V. OLAYINWOLA & SONS LTD. Supra at Page 456.
It should also be borne in mind that there is a whole world of difference and clear distinction between the validity of a writ, and the Service of the writ. If a writ is valid, any default in service becomes a mere irregularity which may make such a writ voidable, but definitely not void. See the Case of ADEGOKE MOTORS V. ADESANYA (1989) 3 NWLR (PT.I0a), where the supreme court per Oputa JSC stated:
“There must be a difference and distinction between the validity of a writ of summons and the validity of the service of the same writ. If a writ is valid, any default in service becomes a mere irregularity which may make such writ voidable but definitely not void.”
Again, still on the validity of a writ of summons Ogundare JSC had this to say:
“There is a distinction between the validity of a writ and the validity of the service of the writ and I agree there is, I am at a loss to fathom how any defect in the service of the writ can make the writ which is valid to be voidable. I would think that it is the service alone that would be voidable.”
Let me lean on the superior opinion and admonition of Pats-Acholonu JSC in the same case of B.B.N. LTD. V. S. OLAYIWOLA & SONS LTD. (supra) Page 453, paragraphs B-G to wit:-
“Indeed the Court should wherever possible admit of no technical Constrains but concern itself with the validity of the writ. It is important to restate for emphasis that Section 97 of the Sheriffs and Civil Process Act prescribes and demands that a writ proposed for service outside the jurisdiction of the Court shall in addition to any other endorsement be endorsed “to be served out of the state”. A Careful examination for the prescription of the Act shows that a writ to be served out of the jurisdiction which does not have such endorsement is irregular procedurally speaking, but nowadays courts are shying away from over reliance on mere technicality I believe that where the prescription of the law is mandatory even if only on a procedural level, a court in its quest to do justice ought generally to be imbued with the dictates of reason and the nature of the particular Case to seek to accommodate a party that appears to have run foul of the dictates of procedural law .”
It is therefore my firm but humble view that the defects if any writ relating to endorsement before service and during service of the writ are mere irregularities that cannot affect the jurisdiction of the Court to consider the suit.
On the issue of fair hearing raised by the Appellant, a look at the Eight reliefs sought by the Appellant in his application of the 24/10/96, to set aside the Judgment of the lower court which Ruling was delivered on 17/12/96, would clearly show that no where did the Appellant mention, complain or raise the issue of denial of fair hearing.
It is also important to notice that he did not make it a Ground of appeal.
Be that as it may, to determine whether or not the Appellant was denied fair hearing, it is important to trace the history and the circumstances of this Case.
Let me start by saying that the Appellant did not deny the fact that he was aware of the existence of the suit filed by the Respondent against him. He never denied Service of the writ of summons and statement of claim filed by the Respondent. It is on record that the Appellant did not file a memorandum of appearance let alone statement of defence. When the Respondent served him a motion for Judgment, his reaction was by way of a counter affidavit, a rather unusual and very strange approach.
One would have expected a more serious, reasonable and realistic reaction, but the Appellant opted for a casual, carefree, indifferent and a most unserious posture.
In the said counter affidavit, he alleged that he was incarcerated and fell sick when he was released, and therefore needed time to brief a counsel in Benin for his defence. He attached a medical report to the said counter affidavit. The medical report was issued in December 1995, and in the counter affidavit, the Appellant’s Nephew averred that he was released from the said Kirikiri Prisons in July 1995. One therefore wonders why the Appellant could not brief a counsel anywhere in Nigeria between the month of July 1995 and December 1995. The medical report issued in December 1995, about Five months after he was released, is in my view of no effect whatsoever.
Fair hearing is not an abstract term available to a party at all times and in all circumstances, even when a party has displayed unseriousness and nonchalance. Fair hearing must be real and must be considered in the light of facts and circumstances surrounding the case.
Failure by the Appellant to file a memorandum of appearance or statement of defence despite being served all the relevant court processes, and his not being represented in court on the 11/2/96 the day the motion for Judgment was fixed, portrayed him as not only unserious, but that he was very nonchalant over the matter pending in court, almost bothering on contempt for court proceedings. A party who alleges that he was denied fair hearing must prove specific acts of such denial. See the Case of IFEANYICHUKWU EJEKA V. THE STATE (2003) 7 NWLR (PT.819) Page 408 at 421 Paragraphs C – E.
Where a party to a suit has been accorded a reasonable opportunity of being heard in a manner prescribed by law as in this Case, and for no satisfactory reason or explanation he fails or neglects to attend the sitting of the court, he cannot later be heard to complain of fair hearing. See the Case of OKOCHA V. HERWA LTD. (2000) 15 NWLR (PT.690) Page 249 at 258, Paragraphs G – H In the above Case, Oguntade JCA as he then was, had this to say about fair hearing;
“It is not fair or just to the other party or parties as well as the court, that a recalcitrant and defaulting party should hold the Court and other parties to ransom. The business of the court cannot be dictated by the whims and caprices of any party. Justice must be even handed.”
The Appellant has therefore failed woefully to establish any specific act of denial of fair hearing.
On whether the learned trial Judge erred in law when he refused to set aside the Judgment of 8/2/96, It is clear from my observations above that at every point the Appellant was accorded reasonable perfectly in order and within the law on the 17/12/96 he dismissed what I consider a most frivolous and ridiculous application.
Where the findings of fact by a trial court are supported by evidence before the court, or are proper conclusions and inferences to be drawn from the evidence, the Court 0 f Appeal cannot interfere with such findings. See AREWA ILES PLC V. FINETEX LTD. (2003) 7 NWLR, (PT.819) Page 322 at 355 Paragraphs E – G.
Consequent upon my observations above, all the issues raised by the Appellant which I compressed into one major issue are resolved in favour of the Respondent against the Appellant. In the result, it is my view that this appeal is most ridiculous and unmeritorious. It is hereby dismissed.
The Judgment of the lower Court delivered on the 8th of February 1996 and the Ruling of the 17/12/96 refusing to set aside its Judgment are hereby affirmed.
I award Fifty Thousand Naira Costs to the Respondent against the Appellant
Other Citations: (2008)LCN/2914(CA)
