Queen Omabuwa V. Madam Martha Owhofatsho & Anor (2005)

LawGlobal-Hub Lead Judgment Report

AMINA ADAMU AUGIE, J.C.A.

This is an appeal against the Ruling/Final Decision of Bazunu, J., of the High Court of Justice, Warri, Delta State, in a Land matter wherein the Appellant as Defendant was absent throughout the hearing till Judgment was delivered on the 25th of November 1993. This appeal arose from the trial Court’s refusal to set aside the default Judgment entered in favour of the Respondents as Plaintiffs, who were granted – a Declaration that they are entitled to the “piece of parcel of land lying and situate at Rubber Plantation Layout, Agbassa – Warri, Warri Local Government Area, etc” and, – a Perpetual Injunction restraining the Appellant, her servants, her agents, etc., entering/remaining/interfering/ or in any way dealing with Plaintiff’s peaceable possession of the said piece of land.

To better understand the issues at stake in this appeal, it is necessary, in my view, to set out the proceedings in the lower Court that led to this appeal –

i. The Respondents filed their Statement of Claim out of time with the leave of Court on the 2nd of October 1990.

ii. On the 28th of February 1991, the Appellant as Defendant was granted an extension of 7 days from that day to file her Statement of Defence and Plan, which she filed on 6th of March 1991.

iii. On the 5th of November 1991, Counsel for the Plaintiffs applied to have the case “set down for hearing since pleadings have been fully exchanged”. The application was submitted to the learned trial Judge “for fixture, please”, and he minuted thereon – “Please fix for 10/12/91”.

iv. On the 10th of December 1991, the matter was “adjourned to 7/2/92 for hearing”, because parties were absent.

v. On the 7th of February 1992, the Defendant was absent and the matter was “adjourned to 2/3/92 for hearing”, on the application of the Plaintiffs’ counsel.

vi. On the 2nd of March 1992/ the Defendant was absent, but hearing commenced with the testimony of the 2nd Plaintiff as PW1, and the matter was “adjourned to the 20/3/92 for further hearing”.

vii. On the 20th of March 1992/ the 2nd Plaintiff was present; the Defendant was absent; PW2 testified; the Plaintiffs closed their case; the Plaintiffs’ counsel addressed the Court; and the case was “adjourned to 30/4/92 for Judgment”.

viii. On the 30th of April 1992, there is no record of the parties present but the learned trial Judge delivered Judgment wherein he held as follows –

“The Defendant was duly served with the writ of summons and thereafter entered an appearance to the writ. Pleadings were then filed and exchanged. Each party filed a party survey plan. When the case came up for hearing, the 2nd Plaintiff and his counsel were present while the Defendant and her counsel were absent in Court. The 2nd Plaintiff then led evidence in proof of their case and called one witness, the Surveyor. —It was stated earlier in this Judgment that both the Defendant and his (sic) counsel were not in Court when the Plaintiffs led evidence to prove their case, even though she filed a Statement of Defence and plan. I shall therefore ignore the Statement of Defence of the Defendant as no evidence has been adduced to prove it. —The sum total of the foregoing is that as the evidence of the Plaintiffs is not controverted in any way, I hold that the Plaintiffs have proved their case against the Defendant on the preponderance of evidence and are therefore entitled to the reliefs claimed”.

1. On the 4h of August 1992/ the Plaintiffs applied for a Writ of Execution against the Defendant, and the Warrant for Possession of Premises was duly signed by the learned trial Judge.
2. The Certificate of Execution of Warrant of Possession is dated 14th of September 1992 and on the 18th of September 1992, the Defendant’s counsel filed a Motion on Notice dated 17th September 1992 praying for the following-

(1) Extension of time within which to apply for an Order setting aside the Judgment by default delivered on 30/4/92 in respect of this matter.

(2) An Order setting aside the said Judgment by default delivered on 30/4/92 in respect of this matter.

(3) A consequential Order setting aside the Execution of the said Judgment enforced by the Plaintiffs/Judgment Creditors/Respondents against the Defendant/Judgment Debtor/Applicant on 14/9/92.

i. On the 23rd of September 1992, the Defendant filed another Motion for an Injunction restraining the Plaintiffs from destroying the property.

ii. On the 21st of October 1992, the Plaintiffs filed a Motion for the committal of the Defendant to prison for contempt of Court. Hearing commenced on 19th January 1993 and was concluded on 25th January 1992. The learned trial Judge delivered his Ruling on the 8th of April 1993 dismissing the application.

iii. On the 6th of May 1993, hearing of the Motion to set aside the default Judgment commenced and was concluded on the 10th of June 1993. The learned trial Judge delivered his Ruling on the 25th of November 1993, wherein he held as follows –

“The Respondents in paragraph 7 @ of their Counter Affidavit averred that the Applicant was served with hearing notice through her solicitor on 9/1/92 and that the Affidavit of Service is Exhibit UKM3. I have examined Exhibit UKM3 and I am satisfied that it /s proof of service of a hearing notice on the Applicant’s solicitor, which in my view is good service. I am therefore satisfied that the Defendant/Applicant was duly served with a hearing notice. Further to the above Order 37 rule 3 provides that if the Plaintiff fails to make an application under rule 1, the Defendant may, within 14 days after the expiration of the time limited for the Plaintiff to make his application, apply to the Registrar for the case to be set down for trial. Thus the Applicant was at liberty to apply that the matter be set down for hearing where the Plaintiff failed to do so within 30 days of the close of pleadings. —Having regard to the fact that pleadings were settled on 6/3/91 and hearing notice was issued on 9/1/92 and in view of Order 37 Rule 3, I regard the attitude of the Applicant to the case as not only being guilty of delay but most nonchalant. —The sum total of the forgoing is that the Applicant has not satisfied me why I should exercise my discretion in her favour. The Application fails and it is accordingly dismissed”. (Italics mine)

iv. On the 28th of January 1994, the Defendant filed a Notice of Appeal with four Grounds of Appeal in this Court.

v. In compliance with the rules of this Court, parties filed their respective Briefs.

In the Appellant’s Brief of Argument prepared by Dr. G. I. Emiko, the following Issues were formulated as arising for determination in this appeal –

1. Whether a party on its own or with Court or by the Court on its own without notice to all parties can extend the time stated in the High Court (Civil Procedure) Rules within which a process is to be carried out.
2. Whether the learned trial Judge was right when he failed to consider and pronounce on the issue of lack of jurisdiction effected by the nullity of the default Judgment raised in the address of the Defendant/Appellant.
3. Whether the learned trial Judge did not misdirect himself when he stated that the Defendant “stopped putting appearance in Court in spite of a hearing notice served on her” without considering:-

(i) The Court’s Record;

(ii) The record on the Court’s file and the Reply to Further and Better Counter Affidavit filed by the Defendant on 13/11/92 and the Exhibit EA6attached to the said Affidavit”.

4. Whether the learned trial Judge was right in considering the five principles stated in the case of WAPIM V. N. T. C. (1987) 2 NWLR (pt 56) 299 @ 301 when the 1st prayer for extension of time to apply to set aside the Judgment by default had been granted instead of considering the principle as stated by Ademola C. J. F. in the case of B. G. D. C. &. D. C. V. Mar Di Shola Spetsai (1962) 2 NCSS 314 2316 where it was stated that all the Court needs do is to satisfy itself that the party applying for the setting aside of Judgment has a good defence and in doing so to look at the Statement of Defence.

The Respondents however contend in their Brief prepared by A. J. Oshiokpelua, Esq., that the following Issues arise for determination –

1. Whether non-compliance with Orders 37 & 22 (3) of the Defunct Bendel State High Court (Civil Procedure) Rules 1988 rendered the proceedings of the lower Court a nullity.
2. Whether the trial Judge was not right in holding that there was proof of service of hearing notice vide the affidavit of service.
3. Whether the trial Judge was not right when he refused to set aside the default Judgment.

Some of the Appellant’s Issues are a bit academic, and are not necessary in resolving the live issues in this matter; I will therefore adopt the Respondents’ Issues in dealing with this appeal. In my view, they are more succinct and bring to the fore the essence of the Complaints in the Appellant’s Grounds of Appeal.

It is the Appellant’s contention that neither party can on its own without leave of Court and notice to the other side extend the time given in the High Court Rules for the doing of any act or taking of any procedural step; that the Court cannot suo motu extend time without notice to all parties concerned; and that where such extension of time is done without leave of Court or notice to all the parties, it amounts to a nullity of the proceeding taken thereafter. It was further submitted that the contention in this appeal, is how and when the date for hearing was fixed – was it according the High Court Rules? If not, has the Court the jurisdiction to waive this or does this amount to a nullity? The Court was referred to the procedure for setting down of cases for hearing in Order 37 rules 1 – 5 of the Defunct Bendel State High Court (Civil Procedure) Rules 1988 (hereinafter referred to as the High Court Rules), which is applicable to Delta State, and which provides as follows –

1. The Plaintiff shall within thirty days of the close of pleadings apply to the Registrar for the case to be set down for trial.
2. The application shall be in writing and shall contain the following information –

(a) That the pleadings in the case have closed, and

(b) The number of witnesses the Plaintiff intends to call and the probable length of time the case will take.

3. If the Plaintiff fails to make an application under rule 1, the Defendant may, within fourteen days after the expiration of the time limited for the Plaintiff to make his application apply to the Registrar for the case to be set down for trial and in that event the provisions of rule 2 of this Order shall apply mutatis mutandis to his application.
4. – (1) If neither the Plaintiff nor the Defendant makes an application under these rules, the Registrar shall certify that fact to the Court or Judge in Chambers after the time limited for both parties to make the application.

– (2) The Judge or Court upon receipt of the certificate of the Registrar shall cause the case to be listed for striking out and the parties to the case shall be so notified.

5. – (1) Upon the case coming up for striking out, the Court or the Judge shall strike it out unless good cause be shown why the case should proceed to hearing.

– (2) A Plaintiff who does not want his case to be struck out under paragraph (1) of this rule shall file in Court within three days of the service upon him of the notice of striking out an affidavit containing the reasons for his failure to comply with rule 1 of this Order. (Italics mine)

The Appellant further argued that by the provisions of Order 37 rule 1 (supra), the Respondents had up to the 5th of April 1991 from the 6th of March 1991, to apply to the Registrar for the case to be set down for hearing, but they did not apply within this time for the case to be set down for hearing, and citing William &. Ors V. Hope Rising Voluntary Funds Society (1982) 1-2 SC 145, submitted that rules of Court as regards time must first be obeyed; when they are not obeyed, the party in default must seek for an order of extension of time; the fact that extension of time is applied for does not mean that the application will be automatically granted but the Applicant must proffer reasons; and if no reason is given for the non-compliance, the time cannot be extended and this can invalidate proceedings. Arguing that non-compliance with Order 37 rule 1 of the High Court Rules is not a mere irregularity but substantial enough to nullify the proceedings that ensued, this Court was urged to distinguish the case of U.T.C. V. Pamotel (1989) 2 NWLR (pt. 103) 244 from William &. ors V. Hope Rising Voluntary Funds Society (supra), and this case.

The Respondents are however of the view that non-compliance with Orders 37 & 22 of the High Court Rules, does not render the proceedings in the lower Court a nullity, even as they conceded that the steps required by rules 1 – 5 of Order 37 were not taken, and that none of the parties applied for extension of time to set down the case for hearing. They however argued that the Respondents wrote an application to the Registrar, which was forwarded to the learned trial Judge, who minuted on it that the case be fixed for hearing on 10th December 1991; that Order 37 did not specify that the application must be by way of Motion on Notice, therefore the application forwarded outside 30 days, is in its form proper; that what is of paramount importance is the intendment of the rules, which are meant to set the stage for the parties to litigation to get ready for trial, pleadings having been filed and exchanged; and that the learned trial Judge was right to suo motu extend the time which is implicit in the fixture of the case – citing Dike Nworah (1978) 11-12 SC 1; Erisi V. Idika (1987)4 NWLR (pt. 66) 503.

In the alternative, it was submitted that Order 37 rules (1) & (2) are procedural steps and non-compliance with them, as in this case, is a mere irregularity, in line with Order 2 rule 1 of the High Court Rules, which provides as follows –

“Where in beginning or purporting to begin any proceedings, or at any stage in the cause of or in connection with any proceedings, there has been a failure to comply with the requirements of these rules, whether in respect of time, place, manner, form or content or in any other respect, the failure may be treated as an irregularity and if so treated, will not nullify the proceedings, or any document, Judgment or Order therein”.

It was further argued that there was service of the hearing notice on the parties, and the Appellant could not have suffered any injustice or hardship from the failure to bring a formal application for extension of time, since it is trite law that it is not every procedural error that will vitiate the proceedings of a Court; citing Dike V. Nworie (1990) 5 NWLR (pt151) 418; that the case of William &. Ors V. Hope Rising Voluntary Funds Society (supra) is clearly inapplicable to this case, since in that case, there was an application before the Court, which did not include a prayer for extension of time, and had nothing to do with the administrative functions of the Registrar of Court; that the duties of the Registrar and the Judge in relation to an application to set down a case for hearing are administrative matters preceding trial; and that the trial Judge was entitled to take due cognizance of Exhibit UKM1, even though irregular, and act on it by fixing a date for hearing as hinted in UBA V. Dike Nworah (supra).

Now, in the Hope Rising case (supra) the Appellants instituted an action in the Lagos High Court; the Respondents were absent at the hearing and the Judge gave Judgment to the Appellants. The Respondents then applied to the Court praying for an order for extension of time within which to set aside the Judgment, an order to re-hear the trial on its merit and an order setting aside the Judgment obtained by the Appellants. The learned trial Judge granted these reliefs. On appeal, the Court of Appeal dismissed the Plaintiffs (Appellants) appeal, and the Appellants further appealed to the Supreme Court.

At the Supreme Court, it was contended for the Appellants that the learned trial Judge had no basis for the exercise of his discretion in granting the Respondents their application to set aside the Judgment, as the Respondents had applied out of time and gave no explanation why they did. The Supreme Court held that once the time fixed by the Rules of Court for bringing an application to set aside a Judgment has expired, the Applicant must show good reasons why the application was not brought within the time and that the application has merit, and as this was not done in the case, the trial Judge should not have exercised his discretion in granting the Application. Idigbe, J.S.C. also held as follows –

“When a Court is called upon to make an order for extension of time within which to do certain things (i.e. extension of time prescribed by the Rules of Court for taking certain procedural steps), the Court ought always to bear in mind that Rules of Court must prima facie be obeyed – – – Non-compliance with Rules of Court do not prima facie invalidate proceedings unless reasons for such non-compliance are not advanced to the Court, and in addition, the party in breach fails to put before the Court sufficient material to exercise its discretion to waive or overlook the omission. The Rules (i.e. Rules of Court) are there to be observed; and if there is non-compliance (other than a minimal kind), that is something which has to be explained away. Prima facie if no excuse is offered, no indulgence should be granted’.

In U.T.C. V. Pamotel (supra), the Plaintiffs/Respondents took out a specially indorsed Writ on 9/4/84; the Appellant entered appearance on 16/5/84 but took no further steps. The Respondents later filed a Summons for Judgment, which was granted on 25/6/84. On the same day, the Appellant filed a Motion for extension of time to file its Statement of Defence. Two days after, on 27/6/84, the Appellant brought a Motion for leave to set aside the summary Judgment. The trial Court granted the Application, set aside its earlier summary Judgment, and granted the Appellant leave to defend the action. The Respondents appealed to the Court of Appeal, which held inter alia that the only way to show cause under Order 10 rule 3 (a) of the Lagos State High Court Rules is by the Defendant filing an Affidavit, which shows the defence and that a proposed Statement of Defence is irrelevant before or after entering summary Judgment.

In unanimously allowing the appeal, the Supreme Court held that the duty of the Court is to decide the rights of the party and not punish them for errors, hence where the Defendant has a good defence and is willing and ready to defend the action, it is clearly inequitable to shut him out by technical rules relating to the form in which the defence has been brought; that the Rules are designed to assist the parties in putting forward their case before the Court; and they are not intended to deny parties of the opportunity of presenting their case thereby resulting in injustice. Karibi-Whyte, J.S.C. observed therein as follows-

“It is conceded that to hold tightly to the words of Order 10 r.3(a) is a strict observance of the Rules, but such inflexibility in the absence of clear words is like returning to the period of the formulary system in England when the forms and not the substance of the action was the conclusive consideration. In United Australia Ltd. V. Barclays Bank Ltd. (1941) A.C. p. 29 Lord Atkin has cautioned against such approach in actions which have a tendence to be governed by the form rather the substance when he said-

“When these ghosts of the past stand in the path of justice clanking their medieval claims, the proper course for the Judge is to pass through them undeterred.”

Belgore, J.s.c. also had this to say @ 296 –

“Rules of procedure are made for the convenience and orderly hearing of cases in Court. They are made to help the cause of justice and not to defeat justice. The Rules ate therefore aids to the Court and not masters of the Court. For Courts to read rules in the absolute without recourse to the justice of the cause, to any mind, will be making the Courts slavish to the Rules. This certainly is not the raison d’etre of Rules of Court”.

It was submitted for the Appellant in this case, that the issue in U.T.C. V. Pamotel (supra), which is the justice of strict adherence to the particular format in which a process of Court is to take, must be distinguished from that of time prescribed by the Rules within which certain procedural steps are to be taken as in the Hope Rising case (supra); that the decision in Pamotel (supra) is that where failure to comply with strict Rules of Court will lead to injustice, or where strict compliance with Rules of Court will lead to injustice, the Court will not insist on such non-compliance or compliance as the case may be; and that it was not the non-compliance with the Rules, that the Supreme Court waived but the strict compliance with the Rules, as there was substantial compliance with the Rules.

It was further submitted that the strict compliance with the Rules of Court was waived to enable the Defendant put in his defence to the claim so that justice is attained at the end; that what was uppermost in the minds of the Justices of the Supreme Court, was justice after hearing both parties; and that in the present case, the non-compliance with the Rules of Court has resulted in the deprivation of the Appellant of her defence, and thus injustice on her part.

I agree with the Appellant. Justice is a two way street – justice for the Plaintiff and justice for the Defendant. Justice simply means fair treatment (in law), and the justice in any case demands that the competing rights of the parties must be taken into consideration and balanced in such a way that justice is not only done but must be seen to be done. In this case, there is no contesting the fact that there was non-compliance with the steps provided in Order 38 rules 1 – 5 of the High Court Rules for setting down a case for hearing. The Appellant’s contention is that since these Rules were not complied with, the Court had no jurisdiction to hear the case, and if the Court had no jurisdiction to hear the case, and the case was heard, then the hearing is a nullity, citing Skenconsult (Nig.) Ltd. V. Ukey (1981) 12 NSCC 1. The Respondents on the other hand argue that noncompliance with the Rules is a mere irregularity, which did not affect the validity of the proceedings, citing Order 2 rule 1 of the High Court Rules.

Now, by Order 37 rules 1 & 2 of the High Court Rules, the Respondents had thirty days within which to apply to the Registrar for the case to be set down for trial, and if they failed to so apply, the Appellant had fourteen days thereafter to make a similar application. By rule 4 of the same Order, the Registrar was supposed to have notified the Court or Judge that none of the parties had applied to have the case set down for hearing, and the Court or Judge was supposed to have caused “the case to be listed for striking out and the parties to the case shall be so notified”. By rule 5 the Court or Judge shall strike out the case “unless good cause be shown why the case should proceed to hearing”.

None of the above steps were complied with in this case. The Respondents admitted in paragraph 7 (a) of their Counter-Affidavit dated 5/10/92 that they filed the application to set down the case for hearing on the 5/11/91, nearly seven months after the close of pleadings. The Registrar forwarded the application to the Judge, who minuted thereon – “Please fix for 10/12/91”, without any questions asked as to the delay in making the Application long after the thirty days provided for by the Rules. I must point out here that one of the complaints in the Hope Rising case (supra) was that under the Lagos State High Court Rules, the Respondents were expected to bring the application to set aside the Judgment within 6 (six) days yet their application was not filed until the 23rd (twenty third) day after the Judgment, and even then, that no explanation whatsoever was offered for their delay in filing the said Application.

In this case, the Respondent’s argument is that the duties of the Registrar and the Judge in relation to an application of this nature are administrative matters, and failure to comply with the Rules is a mere irregularity, which should be condoned. But I do not agree. It is true that where a litigant has done all that the law required of him to commence an action, such an action endures in spite of any administrative lapse that would vitiate an otherwise competent action -see C.B.N. V. Adedeji (2004) 13 NWLR (pt 890) 226. But the Respondents cannot be said to have done all that the law required of them to commence this action. Far from it – it is as if they went to sleep after filing this action, only to wake up nearly seven months after the close of pleadings, realized they had a matter in Court, and strolled down to the Court to apply to have the case fixed for hearing. The learned Judge clearly erred in giving the Respondents a date for hearing without questioning or asking for the reasons for the delay. This is more so as Order 37 rule 5 (2) specifically provides that “a Plaintiff who does not want his case to be struck out under paragraph (1) of this rules shall file in Court within three days of the service upon him of the notice of striking out an affidavit containing the reasons for his failure to comply with rule 1 of this Order”.

Despite the part he played in this comedy of errors, the learned trial Judge used the Appellant’s failure to apply for the case to be set down against her. He said-

“Further to the above Order 37 rule 3 provides that if the Plaintiff fails to make an application under rule 1, the Defendant may, within 14 days after the expiration of the time limited for the Plaintiff to make his application, apply to the Registrar for the case to be set down for trial.

Thus the Applicant was at liberty to apply that the matter be set down for hearing where the Plaintiff failed to do so within 30 days of the close of pleadings. —Having regard to the fact that pleadings were settled on 6/3/91 and hearing notice was issued on 9/1/92 and in view of Order 37 Rule 3, I regard the attitude of the Applicant to the case as not only being guilty of delay but most nonchalant”. (Italics mine)

The days of bowing to technicalities may be over in our Courts, but in my view, the Respondents were the ones guilty of delay in commencing this action they filed as Plaintiffs, not the Appellant. The justice of this case is therefore in favour of the Appellant. The learned trial Judge also held that he was satisfied that there was proof of service of a hearing Notice on the Appellant’s solicitor, which is being contested by the Appellant who alleges that she was not served with any hearing notice. I will not go into the arguments canvassed by counsel as to the smuggling in of the proof of service/affidavit of service in the Court’s file, and the non-pagination of the records or not. I agree with the Respondents that these issues were not raised in the lower Court. What is more, these are serious allegations against persons who are not here to defend themselves.

Be that as it may, the Appellant submitted that the hearing notice on page 32 of the Court’s file states the Appellant’s Solicitors name and address to be S. A. Omabegho, 39 Cemetary Road, Warri, instead of Emiko & Associates, 27 Okere Road, Warri, and argued that if any hearing notice was served at all, it was served on the wrong counsel – S. A. Omabegho, citing I. T. T. (Nigeria) Ltd. V. Margaret Eyo Okpon (1989) 2 NWLR (pt 103) 337, & Obimonure V. Erinosho (1966) 1 All NLR 250. Furthermore, that if the Court finds that it was served on the wrong counsel, then the whole proceeding is a nullity.

The Respondents conceded that the hearing notice issued for service to the Appellant was addressed to S. A. Omagbeho of No. 39 Cemetary Road, Warri, and in the proof of service, the Solicitors for the Appellant were shown to have been served personally through the Secretary to the Law Firm of Emiko & Associates at Okere Road, Warri. They however argued the onus was on the Appellant to rebut the assertion, that they were not served; that what was available at the hearing of the Application was the Affidavit of Service, being the best proof which the trial Court rightly acted upon and found as a fact, citing Order 12 rule 28 of the High Court Rules; Ejowhomu V. Edok-Eter Ltd. (1986) 5 NWLR (pt. 39) 1; & Uzoechi V. Onyenwe (1999) 1 NWLR (pt 587) 339.

It is clear from the High Court Rules, that after a party has commenced his action, the next step is to ensure effective service of the processes on the other party, which ensures that the action has been commenced by due process of law, and that the other party has notice of the action against him, which obliges him to enter an appearance in Court or file appropriate processes of his own. It also gives the Court competence to proceed with the action as the action then comes before the Court initiated by due process of law. Failure to serve a process where service of a process is required renders null and void any Order made against the party who should have been served with the process – see Madukolu V. Nkemdilim (1962) 1 All NLR248; Skenconsult (Nig.) Ltd. V. Ukey (supra); Integrated Builders V. Domzaq Ventures (Nig.) Ltd. (2005) 2 NWLR (pt. 909) 97; Otobaimere V. Akporehe (2004) 14 NWLR (pt 894) 591; & Ngige V. Achukwu (2005) 2 NWLR (pt. 909) 123. In this case, the learned trial Judge held as follows –

“The Respondents in paragraph 7 @ of their Counter Affidavit averred that the Applicant was served with hearing notice through her solicitor on 9/1/92 and that the Affidavit of Service is Exhibit UKM3. I have examined Exhibit UKM3 and I am satisfied that it is proof of service of a hearing notice on the Applicant’s solicitor, which in my view is good service. I am therefore satisfied that the Defendant/Applicant was duly served with a hearing notice”. (Italics mine)

The essence of an Affidavit of Service is to prove that the process emanating from the Court has been brought to the notice of a litigant whose presence is required in Court – see Integrated Builders V. Domzaq Ventures (Nig.) Ltd. (supra). In this case, the learned trial Judge was satisfied from the Affidavit of Service that there was proof of service on the Appellant’s counsel, but the hearing notice itself bore the name and address of one counsel, S. A. Omabegho, while the Affidavit of Service indicated that the hearing Notice was served on the Appellant “through her Solicitor Emiko & Co”. The Bailiff may have served the wrong hearing notice to the right Solicitor or the right hearing notice to the wrong Solicitor, but that is neither here nor there. The least the trial Court could have done in this case was to order fresh hearing to be served on the Appellant’s Solicitor on “record, to ensure that she was indeed served. Certainly, any doubts raised by the conflicting names of counsel in the hearing notice and Affidavit of Service should have been resolved in favour of the Appellant, and I so hold.

But that is not all, as the Appellant pointed out, a look at the record of proceedings from the 10th of December 1991 to the 30th of April 1992 when Judgment was delivered, shows that the learned trial Judge did not order any hearing notice to be issued throughout the proceedings. The Respondents however argued that the Court having found that there was proof of service, was under no obligation to order fresh hearing notices to be served on parties, citing Obmiami Brick & Stone (Nig.) Ltd. V. A.C.B. Ltd. (1992) 3 NWLR (229) 260. I must quickly say that the authority of Obmiami Brick & Stone (Nig.) Ltd. V. A.C.B. Ltd. (supra) does not apply in this case. In that case, two witnesses testified before the Respondent stopped appearing, and the Supreme Court held-

“No Court has a right to force a party to give evidence. After both parties to a dispute had been duly notified of the hearing date and a party for no justifiable reason decides to/ so to say, opt out of the proceedings, the case presented by the other party once it is not discredited in any legal way should be the case to be considered on its merit. The intention of the other party why it refuses to take part is not the business of the Court” (Italics mine)

The general rule is that a party to a case is entitled to be notified of every date on which the Suit is set down, and in the absence of notice, the proceedings become a nullity and must be set aside – see Faladu V. Kwoi (2003) 9 NWLR (pt 826) 643. Where a Court adjourns a case beyond a date when the litigants had notice of hearing of the case, the Court has a duty to notify them of the subsequent adjournment – see Ude V. A. G. Rivers State (2002) 4 NWLR (pt.756) 66; & Mobil (Nig.) Ltd. V. Pam (2000) 5 NWLR (pt 657) 506. Service of process is a sine qua non for any effective adjudication. In this case, apart from the defect in the hearing notice purported to have been served by the Court Bailiff, the learned trial Judge made no attempt to order hearing notices to be served on the Appellant, despite the fact that she and her counsel were absent from Court throughout the hearing of the case that culminated in the Judgment delivered on the 30th April 1992. The entire proceedings are therefore a nullity, and I so hold. This Issue is also resolved in favour of the Appellant.

Having reached this conclusion in the appeal, it follows that the Judgment delivered on the 30th of April 1992 is null and void for want of jurisdiction on the part of the trial Court. It will serve no purpose therefore for me to consider the last Issue regarding the principles to apply in setting aside a default Judgment. Suffice it to say, that the appeal is meritorious and it is allowed. The entire proceedings in Suit No. W/30/90 is hereby declared a nullity. The Judgment of Bazunu, J. delivered on the 30th of April 1992, and the Ruling delivered on the 25th of November 1993, are hereby set aside. The Appellant is awarded costs assessed at N2, 000.00.

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Other Citations: (2005)LCN/1714(CA)