Stabilini Visinoni Ltd V. Ernest Ejike (2001)
LawGlobal-Hub Lead Judgment Report
DAHIRU MUSDAPHER, J.C.A.
By a writ of Summons marked on the undefended list, the plaintiff claimed against the defendant the sum of N1, 019, 000. 00 (One million and Nineteen thousand naira) being money allegedly owed the plaintiff by the defendant on a contract of supply of cement between them. When the suit came up before the trial court on the 10th of February 2000, the defendant was not served, the plaintiff successfully moved an application for substituted service and the matter was adjourned to 9/3/2000. Counsel appeared for the defendant under protest and had prior to the appearance filed all application for an order to discharging the ex-parte order for substituted service. The motion to discharge the ex-parte order could not proceed on that day and was adjourned to the 28/3/2000. The court was also informed that negotiation was going on to settle the matter between the parties. On the 28/3/2000 the learned counsel for the plaintiff was in court and informed the court when the ease was called that the learned counsel for the defendant was in court but had to leave to attend to another court and hath of them agreed to have the matter stood down for 12.00 noon.
When by 12.40, the defendant’s counsel still absent, the learned counsel for the plaintiff successfully applied to the court to strike out the defendant’s application to discharge the order of substituted service. The motion was struck out by the learned trial judge. Thereafter the learned counsel for the plaintiff applied for judgment to be entered in favour of the plaintiff in accordance with the provisions of the undefended procedure rules. The learned trial judge agreed and entered judgment against the defendant in the terms of the plaintiff’s claims. It is against the judgment entered against it, the defendant company hereinafter referred to as the appellant has appealed to this Court. The plaintiff shall hereinafter he referred to as the respondent. The Notice of appeal contains four grounds of appeal and in his brief for the appellant; the learned counsel has formulated and submitted three issues for the determination of the appeal.
The issues are:-
- Whether the trial court: without first satisfying itself that the appellant had been served with the Originating processes in this matter, had the requisite jurisdiction to proceed with the hearing of the matter and to further enter judgment against the appellant on the 28th March 2000.
- Whether the trial court was right in law to have proceeded with the hearing of the matter strike out the appellant’s application and to further enter judgment against the appellant on 28th March, 2000 in the entire circumstances of the case
- Whether the appellant was afforded fair hearing in the proceedings in the lower court in the entire circumstances of the case.”
The respondent on the other hand has formulated the following issues:-
- Did the trial court first satisfy itself that the appellant had been served with the Originating Processes in this matter before assuming jurisdiction to proceed with this matter as it did?
- In the circumstances of the case, was the trial court right in law to have proceeded with the hearing with the hearing of the matter strike out the defendant/appellant’s application and to enter judgment against the appellant on the 28th March 2000?
- Was the defendant/appellant afforded fair hearing in the proceedings in the lower court in the entire circumstances of the case?”
Issue No. One
It is submitted for the appellant, that the appellant was never served with the Originating processes when judgment was entered against it. It is clear from the records that the bailiff was unable to serve the appellant company and the respondent filed an application to serve the appellant by substituted means at No. 14 Galla Street, Abuja, The application for substituted service was granted on 10th of February, 2000 and the matter was adjourned to 9th of March 2000 for report of service. Meanwhile on the 24th day of February, when the appellant became aware of the substituted service, and also when no service was effected on it, the appellant applied to set aside the substituted service order. On the 9th day of March when the matter was called, there was no evidence whatever that the appellant was served with the Writ of summons, the appellant appeared through counsel under protest and the matter was adjourned to the 28/3/2000. The trial court on the 28/3/2000 without satisfying itself that the appellant was served proceeded to enter judgment in the matter. It is submitted that without proof of service, the trial court acted without jurisdiction, when it proceeded to hear the matter and enter judgment against the appellant. Learned counsel referred to SKENCONSOLT (NIG) VS. UKEY (1981) NSCC 1, ODUTOLA VS. KAYODE (1994) 2 NWLR (Pt. 324) 1. It is further submitted that the appearance for counsel for the appellant under protest did not cure the fundamental issue of non service of the processes on the appellant. See RAMONI VS. JINADU (1986) 5 NWLR (Pt. 39) 100. For the respondent, it is submitted that the learned trial judge satisfied himself that the appellant was served before it proceeded to enter judgment in the matter. The appellant filed II memorandum of appearance dated the 24/2/20011 (See page 13 of the records of proceedings) and indeed counsel appeared on the 9/3/2000. See ODUA INVESTMENT COMPANY LTD VS. TALABI (1991) 10 NWLR (pt. 523) 1 at 51. UNITED NIGERIAN PRESS LTD VS. TIMOTHY ADEBANJO (1969) ALL NLR 422. It is further submitted that a close examination of all the facts and the conduct of the appellant clearly indicated that the appellant were properly served with the Originating Processes and the learned trial judge was satisfied in entering judgment against the appellant. Learned counsel cited and relied on ‘THIRD EYE COMMUNICATIONS LTD VS. ISHOLA (1999) 2 NWLR (Pt. 592) 549, CONSORTIUM MC 3632 LOT 4 VS. NEPA (1992) 7 SCNJ 1 at 8. It is finally argued that the SKENCONSOLT and the RAMONI cases supra do not apply to the facts of this case.
Now, it is settled law that a defendant in an action began by Writ of Summons Or other Originating Processes must be served with he processes before the court will have jurisdiction to proceed with the matter. See N.A.A. VB. ORJIAKOR (1998) 6 NWLR (Pt. 553) 265, COMPLETE COMM. LTD VS. ONOH (1998) 5 NNWLR (Pt. 549) 197, BAYERO VS. F.M.B.N. (1998) 2 NWLR (Pt. 530) 509, LEEDO PRESIDENTIAL MOTEL LTD V. B.O.N. LTD (1998) 10 NWLR (Ft. 570) 353.
Where there is no effective service of Court Processes the trial court would have no jurisdiction or competence to deal with the matter in court and if it did so, the whole proceedings shall be a nullity. It is therefore incumbent on court to verify and satisfy itself that a defendant in action is served with the court processes. See ADEWUMIVS. SGB LTD (1998) 6 NWLR (Pt. 552) 154, OKESUJI VS. LAWAL (1991) 1 NWLR (PI. 170) 661.
Now, this matter was called on the 18/1/2000, the respondent herein moved a motion ex-parte for leave of court to enter the matter on the undefended list and to also set a date for hearing. The matter was set for hearing on the 10/2/2000. On 10/2/2000, the respondent moved the court for an order for substituted serve of the Writ of Summons on the appellant, the reasons for failure to effect personal service was that the security guards of the appellant company employed hostile gestures to the bailiff. The application was accordingly granted and the matter was adjourned to 8/3/2000. Before the adjourned aforesaid date, the appellant filed a memorandum of appearance under Order 13 rule 1 of the High Court Civil Procedure Rules. The memorandum of appearance was filed by the appellant on the 24/2/2000. Simultaneously with the memorandum of appearance, the appellant filed an application praying the court to discharge the order of substituted service it had earlier granted to the respondents. The application to discharge the order for substituted service did not say in the affidavit in its support that the ex-parte order for substituted service was not carried out. When the matter was mentioned in Court On the 9/3/2000, learned counsel appeared for the appellant “under protest” and the appellant counsel asked for a short adjournment. What he said to the court is very revealing. He said:
“Negotiation is going on. We ask for a short adjournment. ”
and the matter was adjourned to 28/3/2000. The sum total of these in my view is sufficient to satisfy the trial judge that the appellant was served with the originating processes. The fact that the appellant had entered appearance by the memorandum filed on the 24/2/2000 clearly indicated that the appellant was served with the originating processes and the reasons contained in the affidavit in support of the motion to set aside the order for substituted service notwithstanding. Whatever complaint, the appellant had merely amounts to an irregularity. See ODUA INVESTMENT CASE supra.
Considering the undisputed facts of this case and the conduct of the appellant, I am of the firm view that the learned trial judge was satisfied that the appellant was served with the originating processes at least on 91312000, when Counsel appeared “under protest” and when a memorandum of appearance was filed in the matter. I accordingly resolve the first issue against the appellant.
Issue No. two
It is submitted that the learned trial judge was in error to have entered judgment against the appellant and to have struck out its application for setting aside the order for substituted service. It is argued that on the 9/3/2000 the appellant were not served with the originating processes. It is submitted that when the matter was adjourned to the 28/3/2000 it was adjourned either to enable service on the appellant or to hear the result of the negotiations between the parties and not for hearing. Since the matter was adjourned for mention and not for hearing, the trial court was in error to have heard the matter on the 28/3/2000. See UBA KANO VS. BAUCHI MEAT PRODUCTS CO. LTD (1978) ALL NLR 242, MBADINUJU VS. EZOKA (1994) 8 NWLR (pt. 364) 535.
For the respondent, it is submitted that the learned trial judge acted within his discretion when he struck out the appellant’s application to set aside the order for substituted service. It is argued that the matter was placed on the undefended list and was adjourned and fixed for hearing on the 10th February 2000, from t8th January 2000. So, on the 28th day of March 2000, the court was right in hearing the matter vide BEN THOMAS HOTELS LTD (1989) 12 SCNJ 171, AGUEZEVS. PAN AFRICAN BANK LTD (1992) 4 NWLR (pt. 233) 76, KOLO VS. TAIBU (2001) 4 NWLR (pt. 702) 200. That since the matter had been fixed for hearing since the 10/2/2000, the learned trial judge was right to have heard the matter on the 28/3/2000. The cases of UBA KANO and MBADINUJU supra do not apply.
Now, the matter came up on the 9/3/2000, when the learned counsel for the appellant appeared in court and asked for an adjournment on the grounds that settlement “‘as been negotiated by the parties. The matter was earlier on fixed for hearing on that date an adjournment granted on the 9/3/2000 simply meant that the hearing of the matter was adjourned to the 28/3/2000 and the learned trial judge was entitled to proceed to hear the matter on that date. On the question of striking out the appellant’s application to set aside the ex-parte order for substituted service, I am of the view that since the appellant counsel asked for an adjournment to the 28/3/2000 and refused to appear in Court on that date, the learned trial judge was in order when he struck out the application for want of diligent prosecution. I also resolve the second issue against the appellant.
Issue NO.3
This issue is concerned with the question whether the appellant was afforded fair hearing by the trial court. It is submitted that the appellant did not receive fair hearing when the learned trial judge granted the respondent leave to serve the processes by substituted means when there was no basis for it and the learned trial judge was in error when he struck out the application to discharge the order for substituted service when the application Wa6not fixed for that day.
The trial judge was also in error when he heard the matter and entered judgment when the matter was not fixed for hearing but for mention and report to the court on the issue of settlement. All these, accordingly could amount to a breach of fair hearing as guaranteed by the Constitution. No opportunity was given to the appellant to present his case. Learned counsel referred to and relied on OLUMESAN VB. OLADIPO (1996) 2 NWLR (pt. 433) 628. ASTER VS. GACHI (1997) 2 NWLR (Pt. 510) 609. KUUSU VS. ADOM (1990) 1 NWLR (pt. 127) 421.
The learned counsel for the respondent on the other hand submitted that appellant was afforded fair hearing in the suit and relied on the cases of KOLO and AGUEZE supra and added that the principle of AUDI ALTERAMPARTEM has no application in cases filed under the undefended list procedure. In the instant case, the appellant was given every opportunity permissible under the law, he cannot now complain of denial of fair hearing. UNITED BANK FOR AFRICA PLC VS. KWEN (2000) 3 NWLR (Pt. 648) 223, AJIDAHUN VS. AJIDAHUN (2000) 4 NWLR (Pt. 654) 605.
Now, the procedure under the undefended list is a special procedure designed to ensure quick dispensation with certain categories of civil claims such as those involving debts or liquidated money claims. In OLUBOSA STORES V. STANDARD BANK (1975) 4 S.C. 51, COKER JSC said at 56:-
“The provisions dealing with actions on the undefended list are apparently technical and we think that they are purposely created in that way in order to ensure that by asking the plaintiff to comply strictly with those Rules injustice is being avoided to a defendant where freedom to defend a case has been rather restricted. The provisions of the Rules are designed as they are in order to ensure safeguards Which must necessarily be available to a defendant if the Rules are followed strictly and if those Rules are complied with, the defendant need suffer no prejudice in his defence if he himself and on his part has complied with the Rules.”
Where the proper procedure is followed, the question of fair hearing is irrelevant in action under undefended list procedure. See ADAMU VS. SADI (1997) 5 NWLR (pt. 504) 205.
I have shown when considering the first issue that the appellant by entering appearance and by filing a memorandum of appearance must be taken to have been served with the originating processes and if he claims not to have been served, the appellant is duty bound to establish that fact. See OKEREKE VS. EJIOFOR (996) 3 NWLR (Pt. 434) 90.
When the matter was adjourned at the instance of the appellant on the 9/3/2000 to 28/3/2000 the matter was adjourned for hearing and not for mention. See AZUMI VS. PAN-AFRICAN BANK LTD (1996) 8 NWLR (pt. 467) 462.
On the issue of striking out the appellant’s application, I am of the view that the court has the power to terminate any proceeding before it where an applicant fails to appear or fails to move his application, It is clear from the records that the appellant’s counsel in the court below on the 9/3/2000 as appearing for the defendant/applicant. The learned counsel asked for an adjournment to the 28/3/2000 which was granted and the learned counsel failed to turn up on the 28/3/2000 to move the application. In my considered view, the learned trial judge was clearly justified in striking out the application. I also resolve the third issue against the appellant.
In the result, all the Issues having been resolved against the appellant, this appeal is doomed to fail and I accordingly reject it. I affirm the decision of the trial court. I award the respondents costs of N7, 500.00 inclusive of out of pocket expenses.
Other Citations: (2001)LCN/0993(CA)
