Shell Petroleum Dev. Company of Nig. Ltd V. Lucky Esowe (2007)

LawGlobal-Hub Lead Judgment Report

ALI ABUBAKAR BABANDI GUMEL, J.C.A.

: By a motion on notice dated 30th October, 2001, the appellant herein, as 2nd Defendant/Applicant before the lower Court, sought for 2 main reliefs.

They are:

1. An order setting aside or discharging the order made on the 6th August, 2001, for stay of execution of the judgment in Suit No. HCO/30/93 pending the determination of the appeal filed against the said judgment by the applicant.
2. An order stopping the Respondents from further pursuing the process or course of the execution of the said judgment, pending the determination of the motion for stay of execution on its merit.

This motion was argued on 28th January, 2002 and ruling reserved for 25th February, 2002. In its’ ruling, the lower Court refused this application and struck out same. The appellant was dissatisfied with this ruling and appealed to this Court by way of a notice of appeal dated 7th March, 2002. The appeal is predicated on 2 grounds. The Appellant filed its brief of argument on 27th November, 2003. The Appellant’s brief was served on the Respondents’ Counsel on 12th December, 2003.

The Respondents’ failed and neglected to file their brief(s). This apparent disinclination and lack of interest by the Respondents to contest this appeal, led and prompted learned Counsel to the Appellant, Mr. Isaac Jemide, to file an application dated 17th February, 2005 for this appeal to be heard and decided on the appellants’ brief alone. This application was heard and granted on 22nd November, 2006. At the hearing of the appeal before us on 25/4/07, Learned Counsel to the appellant adopted and relied on the appellant’s brief of argument.

The appellant’s brief identified and formulated only one issue from the 2 grounds of appeal. The issue is: –

“Was the judge of the lower Court legally justified in refusing to set a side his order of 16th October, 2001 striking out the appellants application for stay of execution of the judgment of 31st July, 2001?

The background to this appeal is that on 31/7/02, the Ogwashi-Uku division of the Delta State High Court, presided over by Hon. Justice Ogbodu, delivered a judgment in suit No. HCO/30/93 and awarded damages against the 2nd defendant/appellant on the basis of the vicariously liability of the 2nd defendant/appellant for the negligent driving of the 1st defendant in the suit. 2nd defendant/appellant was not satisfied with this judgment against which it filed a separate notice of appeal and a motion for stay of execution of the said judgment. Both the notice of appeal and the motion for stay were filed on 6th August, 2001.

The motion for stay was struck out on the 16/10/01 on the ground that neither the applicant, (appellant herein) nor its counsel was present in court when the motion was called for hearing. When the appellant through its counsel, discovered that this motion was struck out, the motion reproduced herein above was filed and argued on 28/1/02. In the ruling of 25/2/02, the lower court held that it could not set aside its order striking out the motion for stay of execution due to the non-appearance of the applicant and its counsel and held further that it was functus officio.

In arguing the lone issue for determination before this court, learned counsel Mr. Jemide, explained that the main grounds for the application to set aside the order of 16/10/2001 were listed in the schedule to the application and paragraphs 5, 6, 7, 8, 9, 10, 11, 12 and 13 of the affidavit in support. These paragraphs, according to Mr. Jemide, show that neither the appellant nor its counsel had notice of the hearing of the motion for stay of execution slated for 16/10/2001. Learned counsel maintained that none of the aforementioned paragraphs of the affidavit in support was either denied or controverted by the respondents. He remarked that there was indeed no counter-affidavit and submitted that the lower court should have accepted that neither the appellant nor its counsel was served with any hearing notice for 16/10/01. After these preliminary issues, learned counsel Mr Jemide went further to underscore the main gravamen in the case of the appellant when he pointed out that it was beyond any doubt that the appellant, as the applicant in the motion for stay of execution, was not served with any hearing notice against 16th October, 2001 and none was either served on its Counsel before the motion was struck out on the ground of the absence of the applicant and its Counsel. Learned Counsel referred to the proceedings of the lower Court on 16/10/01 on pages 9 – 10 of the record of appeal and pointed out that the learned trial Judge did not bother to check if the applicant or its Counsel had been served with Hearing Notice for that day before proceeding to strike out the motion on the application of the learned counsel to the respondents. Still on this issue of Hearing Notice, learned counsel was of the view that the learned trial Judge did not seem to appreciate the importance of ensuring that the applicant or its counsel had been given due notice of the hearing date of the motion for stay of execution. He further remarked that if the learned trial judge had searched the case file to ascertain whether or not the applicant or its counsel had been served with hearing notice for 16/10/01, he would not have struck out the motion. He pointed out that paragraph 10 of the affidavit in support, which was not denied, averred that neither the applicant nor its counsel was served with any hearing notice. Upon this, Mr. Jemide added that indeed the onus is not on the applicant to show that it had no notice of the hearing date but on the respondents to show that the applicant or its counsel was served with the appropriate hearing notice. Learned counsel maintained that this onus was not discharged by the respondents.

Adding a further dimension to this appeal, learned counsel referred to the cases of ADEBAYO V. OKONKWO (2001) FWLR (PT.75) 465 and BAMAIYI V. THE STATE (2001) FWLR (PT.48) 956 and submitted that the proceedings of the lower court on 16/10/01, as it related to the motion for stay of execution and the order striking it out were a violation of the .applicants’ constitutionally guaranteed right to fair hearing and therefore were a nullity. He added that the service of hearing notice in the circumstance of this matter was indispensable and in the absence of such service the order of 16/10/01 in the absence of the applicant and its counsel was made without jurisdiction and therefore liable to be set aside by the lower Court itself. He supported his position with the decisions in Somai Co. (Nig.) Ltd. v. Adzege (2001) FWLR (Pt.68) 1104; (2001) 9 NWLR (pt. 718) 438; Scott-Emuakpor v. Ukavbe & Ors. (1975) NSCC 435 at 436 and 438; and International Bank Lid v. Baioppiys Ent. Ltd. (2003) FWLR (Pt. 179) 1339 at 1346 D-E.

It was submitted that because the order striking out the motion for stay of execution, as was done by the lower Court, was unconstitutional for being of breach of the right to fair hearing, the lower Court ought to have set it aside for being a nullity. Based on this submission, learned counsel, Mr. Jemide referred to a part of the ruling of the lower court of 25/2/02 and maintained that the learned trial judge was swayed by irrelevant and extraneous reasons in refusing to set aside his order of 16/10/01. The part of the ruling which learned counsel attacked is at page 37 lines 25-30 of the record of appeal. Because it would become relevant later in this judgment, I would like to set it out. It goes thus: –

“I think the important development in this matter which counsel, in .my opinion, deliberately did not want to advert its (sic) mind is the well known fact that execution of the judgment had already been carried out and completed on 7th November, 2001, or so. That being the case, what is there to be stayed? Nothing.”

According to Mr. Jemide, this conclusion of the learned trial Judge has no legal or factual basis as there was nothing on record before him to support the view that execution of the judgment had been completed on the 7/11/2001 because the motion to set aside the order striking out the motion

for stay of execution was filed on 6/11/01. Learned Counsel observed very strongly that the application upon which the ruling of 25/2/02 was made was not for stay of execution of the judgment of 31/7/01, but for setting aside the order of the Court made on 16/10/01 striking out the motion for stay of execution.

Learned Counsel, Mr. Jemide argued that the correct position of the law is that when a court makes an order in breach of a party’s right to fair hearing, for example as in the instant case, when no hearing notice has been served on a party so entitled to be served, an aggrieved party is entitled to apply for that order to be set aside for being nullity. He added that such an order remains a nullity because the condition precedent to the exercise of jurisdiction by the Court was totally absent and therefore the order was made without the requisite jurisdiction. In such a situation, learned Counsel added, the very court or judge which made the offending order has an inherent power and jurisdiction to set it aside. Mr. Jemide suggested that the view expressed by the learned trial judge that he could not set aside his own order in the circumstance was legally faulty.

Based on all his arguments and the decided cases referred to in his brief, learned counsel Mr. Jemide remained unshaken in his view that the learned trial judge has no legal justification whatsoever for refusing to set aside his order made on 16/10/01, striking out the appellant’s motion seeking for stay of execution. In conclusion; learned counsel urged this Court to answer the only issue for determination in the negative and hold that the learned trial judge was in error when he refused to set aside his order of 16/10/01 in the ruling of t he lower Court of 25/2/02. He’ also urged this Court to hold that the order of 16/10/01 was a nullity, having been made without jurisdiction and same ought to have been set aside by the learned trial Judge. He finally urged us to allow the appeal and set aside the order of the lower court of 16/10/01, striking out the appellant’s motion for stay of execution.

I have carefully read the brief of argument filed on behalf of the appellant. I have also had the opportunity of reading most of the decided cases referred to in the brief as well as the entirety of the 50 page record of appeal. It is indeed correct to say that the sole issue for determination in this appeal is whether the learned trial judge was justified in refusing to set aside his order of the 16/10/01, striking out the 2nd Defendant/ Applicant/Appellant’s motion for stay of execution. In due course, I would proceed to answer this question based on the materials presented to this Court in this appeal.

The application of the appellant at the lower court was for an order to set aside an order which led to the striking out of its application for stay of proceedings. The order was made on 16/10/01. The grounds for the application are as set out at page 23 of the record of appeal and they are: –

1. The hearing date of the motion having been fixed in the absence of the applicant, the applicant was entitled to a hearing notice as to the date the motion would be heard;
2. Having regard to (1) above, the order striking out the said motion in the absence of the applicant and/or his counsel without the service of a Hearing Notice on the Applicant or its counsel, was made in breach of the Applicant’s right to fair hearing as guaranteed by 8.36 of the 1999 Constitution of the Federal Republic of Nigeria; and
3. In the light of (1) and (2) above, the order striking out the motion f or stay of execution was null and void and liable to be set aside by this Honourable Court.

Further to these grounds, there is a 17 paragraph affidavit to support the application. It is instructive to note at this stage that the respondents did not file any Counter-affidavit to this application. Since an appeal is a re-hearing, it is necessary to look at the averments in the paragraphs of this affidavit. I believe that a consideration of the relevant averments of the affidavit would be immensely beneficial and helpful to the determination of this appeal. I find paragraphs 3, 4, 5, 6, 7, 8, 9, 10, 11, 12 and 13 at the centre of the complaint of the appellant. They are here reproduced; VIZ;

3. That on the 6th of August, 2001, I filed a Notice of Appeal against the judgment in the above suit, as delivered by this Honourable Court ..
4. That on the same day, I also filed on behalf of the applicant a motion for stay of execution of the judgment pending the determination of the appeal filed as in paragraph 3 above.
5. That other than a. counter affidavit left at my gate at 3, Okoro Street, Warri on the 15/10/01, with my security man by an unknown person, no other document’ or hearing Notice of the motion was served on me or my client.
6. That to my surprise, when I visited the Ogwashi-Uku High Court registry on the 29th of October, 2001, to ,find out what was happening, and to file an amended Notice of Appeal and a further affidavit, I was informed by the Registrar, and I verily believe, that the Motion for Stay of

Execution had been struck out in the absence of the Applicant, and his counsel on the 16th of October, 2001.

7. That neither my client nor I as Counsel was given any Notice that the motion would be heard on the 16th of October, 2001 when it was struck out.
8. That the absence of the applicants and/or his counsel on the 16/10/01 when the motion was on struck out was due to the fact that, they were not aware that the motion was coming up on that day.
9. That after showing my surprise and displeasure to the registrar, I saw the judge on chambers and told his Lordship that neither I nor my client had notice of the hearing of the motion on 16/10/01 when it was struck out.
10. That a search of the case file in my presence disclosed that there no Notice of the hearing of the Motion served on me.
11. That on the 29th of October, 2001, at the High Court, the registrar informed me, and I verily believes, that he gave a copy of the Motion with hearing date thereon to the 1st plaintiff who under took to same on me.
12. That the 1st Plaintiff did not serve the motion with hearing date on it on me as he undertook to do.
13. That I truly believes that his failure to so do was deliberate and designed to over reach the applicant.

Learned Counsel, Mr. Jemide fully addressed the issues raised in these paragraphs of the affidavit before the lower Court. However, the lower Court failed to see good cause why its order of 16/10/01 should be set aside. After setting out the 3 grounds for the application at page 37 of the record, the learned trial Judge in his ruling of 25/2/02, observed as follows:

“The foregoing (referring to the grounds for the application) was the fulcrum upon which counsel for the applicant articulated his argument for the order to be set aside or discharged. I think the important development in this matter which counsel, in my opinion, deliberately did not want to advert its (sic) mind is the well known fact that execution of the judgment had already (sic) carried out and complete on 7th November, 2001, or so. That being the case. What is there to be stayed? Nothing, I would think that since applicant’s grouce (sic) regarding the striking out of its application are what could be considered as error of law, applicant’s remedy, in my view lay on appeal against the order.”

{Underlining mine for emphasis}

One should not loose sight of the fact that the application before the lower Court was for an order to set aside the striking out the motion for stay of execution. There is nothing in the record to show that the application for stay of execution was ever argued before the lower Court. In its ruling of 25/2/02, the relevant part of which I reproduced repetitively herein, the learned trial Judge appeared to have been under some misconception when he tended to make pronouncements as if he was giving a ruling on a fully argued motion for stay of execution, otherwise why did he have to observe that there was nothing to be stayed?

It is a cardinal principle of adjudication in this country that when an issue is not placed before a Court of law, it has no business whatsoever to deal with it. In this case the issue was whether the proceedings of the lower Court on 16/10/01 were a nullity for the failure of the Court to issue and serve the appellant with the requisite hearing notice for the hearing of its motion for stay of execution filed on 6/8/01. And whether the order striking out the motion ought to be set aside or discharged for having been made without jurisdiction. Therefore, the issue of whether stay of execution should be g ranted or not n ever came into question before the learned trial Judge on 16/10/01. It was therefore wrong for the Court to have taken up the issue. See OLUSANYA V. OLUSANYA (1983) 1 SCNLR 134.

More fundamental than the above observation is the complaint of the appellant that it was not served with any hearing notice for the proceedings of the Court scheduled for 16/10/01. Learned Counsel, Mr. Jemide, made a statement on Oath that there was a total failure to serve Hearing Notice on the applicant or its Counsel. The service of Hearing Notice is aimed at informing concerned parties, that proceedings would take place before a particular Court in respect of a particular matter before a particular Judge at a particular location on a particular date and hour or so soon thereafter.

Where service of a Court process is required to be made and the Court, through its relevant Officers (Bailiffs), failed to effect the service of the required process, that failure is a fundamental vice that could taint any proceedings subsequent to the failure to serve the process with illegality. According to the Supreme Court in SKENCONSULT V. UKEY (supra) a party entitled to be served with a process of Court and was denied could apply ex-debito justitiae to have any order or judgment made in any proceedings at which he was not present to be set aside because service is also a condition precedent to the exercise of jurisdiction by the Court of whose registry the process was issued. See also NATIONAL BANK V. GUTHRIE (1993) 4 SCNJ 1 AT 17.

The proceedings of the lower Court of 16/10/01 and the ruling of 25/2/02 wherein the Court refused to set them aside must both attract a special attention and scrutiny. The proceedings of 16/10/01 are at pages 9 to 10 of the record of appeal, particularly lines 12 to 30 at page 9 lines 1-8

at page 10. VIZ:

IN THE HIGH COURT OF JUSTICE

DELTA STATE OF NIGERIA

IN THE OGW ASHI-UKU JUDICIAL DIVISION

HOLDEN AT OGWASHI-UKU

BEFORE THEIR LORDSHIP HON. JUSTICE I.E. OGBODU

JUDGE, ON TUESDAY THE 16TH DAY OF OCTOBER, 2001

SUIT NO. HCO. HCO/30/93

BETWEEN:

SHELL PETROLEUM DEVELOPMENT

COMPANY OF NIGERIA LIMITED) 2ND DEFENDANT/APPLICANT

AND

1. LUCKY ESOWE
2. PATRICK ESOWE PLAINTIFFS/RESPONDENTS
3. JOHN ESOWE

Defendant/Applicant/Judgment Debtor – absent

1st and 2nd Plaintiffs/Respondents/Judgment Creditors present. 3rd absent.

I.O. Okonjo Esq. for Plaintiffs/Respondents/Judgment Creditor.

Court: Learned Counsel for respondent/judgment/Creditor applies for the motion filed by applicant for the motion filed by applicant for stay of execution be struck out on the ground of the absence of counsel and applicant.

On that ground this application is hereby struck-out for lack of prosecution.

Cost to 1st Plaintiff/respondent is N1,500.

(Sgd.) Hon. Justice I.E. Ogbodu

Judge.

16/10/01

These proceedings must be allowed to speak for themselves. In paragraphs 7 and 10 of the affidavit in support the appellant and its counsel forcefully maintained that they were not served with hearing notice for the proceedings of 16/10/01. Where a process of court, such as hearing notice, has been served, it is necessary for the Court to have before it evidence of that fact. Proof of service is particularly needed if a party allegedly served failed to appear in Court in response to the process allegedly served.

Because of certain consequences adverse to him of such failure, the Court must be fully and absolutely satisfied that service was actually effected. A proof of service is generally enclosed. It is a well known and well defined practice of our courts for proof of service of all processes, where necessary, to be enclosed in the case filed of the action concerned so that on the date for hearing, the judge, by referring to the file can easily and readily see whether there was any such document and accordingly whether or not service has been effected.

There is an unchallenged evidence in paragraphs 7 and 10 that neither the appellant not its counsel were served with Hearing Notice. An uncontradicted or unchallenged evidence must be used against the party who ought to have contradicted or challenged the evidence but failed to do

so. Taking the proceedings of the lower court of 16/10/01 into perspective, it could clearly be seen that the learned trial Judge was well aware that the 2nd Defendant/Applicant (appellant herein) was absent in Court and was not represented by Counsel either. It was because of this conspicuous absence of the appellant and its counsel that led .learned counsel to the Plaintiffs/Respondents/Respondents, Mr. I.O. Okonjo to apply for the appellant’s motion to be struck out. Without much ado or the necessary inquiry, the learned trial Judge decided thus: –

“On that ground this application is hereby struck out for lack of prosecution.”

In my view, it was necessary for the learned trial Judge to, in the circumstance, first and foremost satisfy himself that the appellant was fully aware that the motion filed on 6/8/01 for an order for stay of execution was for hearing on 16/10/01-. The method of becoming aware of a date for hearing in our rules of Court is by the service of a hearing notice on either the party personally or on its counsel as circumstance may permit.

The service of a hearing notice is more than just a procedural step in the adjudication of a matter. It is more serious than that. It is a substantive issues as it goes to the jurisdiction and competence of the Court to go ahead with the matter. A hearing notice was necessary in the circumstance of the instant case. The 2nd Defendant/ Applicant/Appellant was fully entitled to be served with a hearing notice for the proceedings of 16/10/01.

The failure of the Court to serve hearing notice was fatal to the proceedings of 16/10/01. It was a fundamental omission which deprived the Court of the necessary competence and jurisdiction to conduct any proceedings on the motion for stay of execution. In that circumstance, the best option open to the Court was to adjourn the matter to a further date with a consequential order that hearing notice be duly served on the Appellant.

The issue of jurisdiction is fundamental. It cannot be assumed.

Where a Court exercises jurisdiction on a matter it must be able to show, if challenged, from what law or statute it derives its jurisdiction. The ruling of the lower Court of 25/2/02 is bereft of any substance on the issue of jurisdiction. The learned trial Judge avoided the issue and failed to address it. In his argument on the motion to set’ aside, learned Counsel Mr. Jemide submitted before the lower Court thus: –

“….. .it is a mandatory requirement that before any court proceeds to deal with a motion, there must be evidence that all the parties involved have been notified of the hearing of the motion on that particular day. It does not matter whether one is an applicant or respondent. Also, it is not true that it is the duty of the applicant to find out the date of hearing. Once, as it is in this case, date was fixed in chambers by the judge in the absence of the applicant that date must be brought to the notice of the applicant. If that does not happen, then the condition precedent to the courts exercise of jurisdiction does not exist and so the Court will have no jurisdiction to make any pronouncement.” See lines 17 to 31 at page 33 record of appeal.

This is a very pungent and poignant submission. It is very crucial.

The learned trial Judge did not assess or evaluate the evidence in support of t he submission. There is a very credible evidence in the affidavit in support to give some weight to this submission, such as paragraphs 7 and 10 of the affidavit. The issue of jurisdiction cannot be waived by the parties or by the Court. The competence of a court to adjudicate on matter is a legal and constitutional prerequisite. See ODOFIN V. AGU (1992) 3 NWLR (PT .229) 350. Once the Court is held for any reason to lack jurisdiction, no matter how well the proceedings are conducted, they are void. See MADUKOLU V. NKEMDILLIM (1962) 2 SCNLR 341.

Based on all the foregoing, this appeal is meritorious and it is hereby allowed. The order of the lower Court striking out the motion filed on 6/8/01 for an order for stay of execution is hereby set aside for being a nullity, having been made without jurisdiction. In consequence of this order it is hereby ordered that the appellant’s motion for stay of execution, if circumstances permit, shall be heard and determined on the merits by another judge of the Delta State High Court.

I assess costs in the sum of N5,000.00 in favour of the appellant against the respondent.

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Other Citations: (2007)LCN/2470(CA)