Stirling Civil Engineering Nig V. Mr. Philip Nwosu (2007)

LawGlobal-Hub Lead Judgment Report

MUHAMMAD LADAN TSAMIYA, J.CA.

This is an appeal against the decision of Taraba State High Court, (herein referred to as the trial court I delivered on 8/7/2004.

In the trial court, the plaintiff took out a writ on the undefended list. The particulars briefly are as follows:-

Particulars of Claim

1. The plaintiff is a business man, contractor and general supplier and carry on business in the following names and styles.

(a) U.K. and Sons Nigeria,

(b) O.K. Stores,

(c) I.G. Group of Company,

(d) Our Brother Investment Nigeria.

2. That the defendant is Civil Engineering Company and has operational office in Jalingo Taraba State.
3. That the plaintiff employed some staff to run the above named business outfits for him in Argungu in Kebbi State, Bauehi, in Bauchi State and Maiduguri, in Borno State.
4. That the plaintiff using his four different business names supplied materials to the defendant between 2001 and 2002 totaling the sum of Eight Million, two hundred and ten thousand One hundred and fifty Eight Naira only.
5. That the defendant has failed to pay for these supplies despite repeated demands.

Where upon the plaintiff claims against the defendant as follows:

1. The sum of N6,840,308.00 (Six Million. Eight Hundred and Forty-Thousand, Three Hundred and Eight Naira Only). Being the sum outstanding for sundry item of general goods the plaintiff (trading in the name and style of “UK & SONS NIGERIA” AND OKO Stores”, respectively) supplied to the defendant at its request in 2001/2002 for the defendant’s project at Argungu Kebbi State.
2. 30% interest per annum on the said sum of N6.840.308.00 (six million, eight hundred and forty thousand ,three hundred and eight Naira only). Calculated from January 1st 2003 till date of writ and thenceforth 10% interest per annum on the judgment debt till full liquidation.
3. The sum of N564, 590.00 (five hundred and sixty four thousand, five hundred and ninety naira only). Being the sum outstanding for items of general goods the plaintiff (trading in the name and style of “IG. Group of Company”) supplied to the defendant at its request in 2002 for the defendant at its request in 2002 for the defendant’s project at Bauchi, Bauchi State.
4. 30% interest per annum on the said sum of N564, 590.00 (five hundred and sixty four thousand, five hundred and ninety naira only). Calculated from January 1st 2003 till date of write and thenceforth, 10% interest per annum on the judgment debt till full liquidation.
5. The sum N805.260.00 being the sum outstanding for sundry items of general goods the plaintiff (trading in the name of style of OUR BROTHER INVESTMENT NIGERIA) supplied to the defendant at its request in 2002 for the defendant project at Mafa Maiduguri Borno State.
6. 30% interest per annum on the said sum of N6,840,308.00 calculated from January 1st 2003 till date of writ and, thenceforth 10% interest per annum on the judgment debt till full liquidation.
7. Cost of this action.

The plaintiff, himself made (the following) deposition in the supporting affidavit of the particulars of claims.

5. That U.K. & SONS NIGERIA and O.K.O. STORES in Argungu Kebbi State were at all times materials to this case run by Mr. Chukwudi Okorkwu who represented me in all transaction he had with the defendant.
6. That I know as a fact that between 2001 and 2002, the defendant through its officers bought sundry items of general good including engine oil, tyres, vehicles spare parts, building and plumbing materials, etc. from me through U.K. & SONS NIGERIA and OKO STORES for their use in their Argungu project.
7. That I know as a fact that total cost of items supplied by U.K. & NIGERIA and OKO STORES which have not been paid for till date amount to N6.840.308.00 (six million, eight hundred and forty thousand, three hundred and eight naira only”.)
8. That I know as a fact that IG GROUP OF COMPANY was at all times material to this case, run by Mr. Ignatius Iwu who represented me in all transaction with the defendant.
9. That I know as a fact that the total cost of items supplied by IG GROUP OF COMPANY which have not been paid for till date amount to 564,590.00 (five hundred and sixty four thousand, five hundred and ninety naira only).
10. That I know as a fact that OUR BROTHER INVESTMENT NIGERIA was, at all times material to this case run by Mr. Tochukwu Nwanekezi who represented me in all transaction with the defendant.
11. That I know as a fact between 2001 and 2002, the defendant through it officers bought sundry item of general goods including engines oils, tyres, vehicle spare parts, building and plumbing materials etc. from me through OUR BROTHER INVESTMENT NIGERIA for their use in their Mafa MDG project.
12. That I know as a fact that the total cost of item supplied by OUR BROTHER INVESTMENT NIGERIA which has not been paid for till date amounts to N805.260.00 (eight hundred and five thousand, two hundred and sixty naira only).
13. That I know as a fact that the defendant was later given a discount of N200, 000.00 (two hundred thousand naira only) and also made various payment amounting to about N1,301,500.00 (One million three hundred and one thousand five hundred naira only). Leaving an outstanding balance of N805.260.00 (Eight hundred and five thousand two hundred and sixty naira only) which has remained unpaid till date.
14. That all my effort to get the defendant to settle this debt have proved abortive as it has failed, refused and/or neglected to redeem same in spite of the numerous promises of its officers to do so. Attached hereto are the various demand letter written to the defendant by my solicitors ONYI OKAEGBU & CO (Goldstar Chambers) urging them to settle the debts, to no avail.

They are marked exhibit VII. VIII. IX and X respectively.

22. That I know as a fact the willful failure of the defendant to settle this debts has practically cripple my business as the total sum of N8, 210,158.00 (eight million. Two hundred and ten thousand, one hundred and fifty eight naira only). Owed me constitute the major part of my trading capital.
23. That I usually made a net profit of 5% per month (60% per annum). On monies I invest in my supply business.
24. That I have been paying in excess of 35% per annum to my bankers from whom I borrowed part of the money I used to service the orders of the defendant.
25. That I know as fact that the defendant has no defence in this action.

On 9/6/2004,the ex-parte application seeking the suit to be placed on the undefended list was granted, and the case was adjourned to 24/6/2004 for hearing. On the same 9/6/2004 the defendant was served through its Jalingo Branch Office by throwing the court processes at the officer of the defendant who allegedly refused service. On the return date of 24/6/2004 through its counsel. The defendant filed two applications before the trial court, namely:

1. The application for leave of the trial court to file and serve memorandum of conditional appearance out of time: and
2. The application for an order setting a side the writ of summons on ground of certain defects therein.

When the case was called for hearing neither the defendant nor its counsel was in court. At a point when learned counsel for the Plaintiff was addressing the court, the counsel for the defendant came in and announced his appearance. He apologies for being late and informs the court about their processes they filed. The trial court then granted leave to him to serve the two applications filed, to the plaintiff counsel and allowed to be taken by the court as filed. Upon being served, the counsel for the plaintiff who was then arguing his substantive case urged the court to enter Judgment for the plaintiff inspite of the application before it. He argued that because of the special nature of the undefended list procedure which stipulated steps a defendant intending to defend the suit should take hut in this case the defendant did not take any. He also urged the court to discountenance the two applications as the defendant has not filed the proper papers supposed to be filed, which are a notice of intention to defend with an affidavit disclosing defence or application for leave to do so out of time.

The learned counsel for the defendant in response urged the trial court to hear their two applications just then filed and served and which are pending before it as they are in order and allowed by the rules of the trial court.

Having heard of the submissions of both counsel to the parties, the learned trial Judge adjourned to 8/7/2004 for ruling.

In his ruling delivered on 8/7/2004 the learned trial Judge considered the merits of the two applications pending before him, and dismissed the application seeking to set a side the writ. After dismissing the said application the learned trial Judge went a head and entered judgment in favour of the plaintiff on the said undefended list.

Being dissatisfied, the defendant appealed to this court on three grounds of appeal, from which the defendant (herein referred to as the appellant) distilled three issues for determination, which read as follows:

(i) Whether the failure by the trial court to hear the two applications filed by the defendant/appellant before it did not amount to a denial of fair hearing in the circumstance.

(ii) Whether the special procedure under the undefended list of the rules of the lower court does not permit the taking of any other procedural steps under the rules other the one stipulated under it.

(iii) Can the provision of Order 2 rule 1 of the rules of trial court be used suo motu by the trial court to cure an irregularity on the writ of summons or non-compliance with the rules of the court even where there is a timely objection raised under Order 2 rules 2 of the said rules on the said irregularity or non-compliance.

The above issues are contained in the appellant’s brief of argument which he exchanged with the plaintiff (herein referred to as the respondent).

In the respondent’s brief of argument are three issues for determination, which read:

l. Whether the two applications filed by the appellant and served on the respondent in open court on the date fixed for hearing of the suit on the undefended list were not heard and whether the court’s handling of the applications occasioned a miscarriage of justice.

2. Whether the trial court was in error when it proceeded to enter judgment for the respondent when the appellant deliberately failed refused and/or neglected to file a notice of intention to defend as expressly stipulated in C the rules of court.
3. Whether the purported irregularity on the writ of summons cannot be cured by the provisions of Order 2 rule 1.

The appellant’s issues are virtually in pari materia with the respondent’s issues above. I will commence the treatment of this appeal by dealing with the issues raised by the appellant.

Issue One

In canvassing argument under this issue, it was the contention of the appellant that the procedure adopted by the learned trial Judge in reaching his decision violated the right of the appellant to a fair hearing guaranteed by section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria (herein referred to the Constitution). What procedure did the learned trial Judge adopted? The appellant in its brief of argument asserted that the learned trial Judge failed to hear and determine the two applications riled before him on 14/6/1004 i.e. the two applications: the appellant refers us to pages 26-35 of the records of this appeal. It also contended that there was nothing from the records to show that the said two applications duly filed and served on the respondent were heard determined, In support of this contention the appellant refers us to pages 38 – 39 of the records, It was further contended that the decision of the learned trial Judge was based on the erroneous assumption that the said applications, especially the one on preliminary objection as to the jurisdiction of the trial court, have been argued.

The appellant also draw our attention to the fact that the contents of pages 41 – 45 are contrary to what was recorded at pages 38 – 39 of the records, Furthermore, the appellant cited some cases in the brief which established that, where a court fails to hear an application duly filed by a party before it which is objection to the jurisdiction or the Court, any subsequent proceedings thereby no matter how well conducted is rendered a nullity as same constitutes violation of the constitutional provisions of section 36 of the Constitution on fair hearing. The cases include:-

Amoo v. Alabi (2003) 7 SCNJ 213 at 215 ration 1- 4; (2005) 12 NWLR (Pt. 835) 537

Ugurut Usani v. Donald Duke & Ors. (2004) 7 NWLR (Pt. 871) 116 ratios 6 – 8 and 20.

The respondent in his brief of argument conceded that none of the two applications said to have been filed and served was formally argued, and the trial court in its ruling considered their merits and dismissed the one praying the court to set aside the writ of summons and all other court processes served on the appellant. Thereafter, the trial court went ahead and considered the substantive claim on the undefended list action and entered judgment for the respondent. That this procedure adopted by the trial court was right notwithstanding the two applications filed, because the appellant fails to file its notice to defend the action with an affidavit disclosing a defence on the merit within stipulated time (in this appeal, 24/6/2004) or leave to do so, over files inadequate process in the proceedings, both instances of which the appellant committed.

The respondent also contended that in proceedings under the undefended list proceeding, once a return date is fixed (as in this case) the only duty of the trial court on that day is to deliver judgment, and the case of Thomas Hotels Ltd. P. Sebi Furnitures Ltd. (1989) 5 NWLR (Pt. 123) 523 at 529 & 532 ratio 3 was relied on to support the contention. Also relied is Order 22 rules 1-4 of the rules. It was argued that the appellant in the case, acted in misconception to assume that there is a room for filing such in adequate processes for him to be allowed to be argued.

On pronouncing of the trial court on the two applications without first taking formal arguments from the appellant, the respondent argued that it is an insignificant misdirection or error which does not occasion any miscarriage of justice on the part of the appellant.

He relied to support this contention on the following cases:

I. Oyefolu & Or. v. A. -G., Lagos State (2001) 7 SCNJ 1085 at 117L 12-14; and

2. James Ogundele v. Dare Julius Fasu (1999) 9 SCNJ 105at 112-113: (1999) 12 NWLR (Pt. 632) 662.

Also the respondent contended it is insignificant omission on the part of the trial court failure to hear the formal argument of the appellant before considering its two motions, but since the failure to do so does not occasion a miscarriage of justice, this court should not allow the appeal. He finally urged this court to resolve this issue in favour of the respondent, and hold that no breach to the appellant’s B right to fair hearing has been committed by the trial court.

Issue Two

Under this issue, the appellant in his brief of argument critically examined the mandatory provision of Order 22 rule1 combined with the provisions of Order 13 rule 7 and 2 rules 2 of the Rules. The appellant submits that the former rule does no totally exclude a party from taking any other procedural steps allowed by the Rule as done by it when it brought an application to set a side the writ issued and served on the respondent pursuant to Orders 22 rule 2 and 13 Rule 17 of the High Court Rules. The respondent cited in support of this contention the following cases:

I. N. D. I.C. V. C.B.N. (2002) 3 SCNJ 75 at P. 78 ratio 1, (2002) 7 NWLR (Pt. 766) 272; and

2. N.D.C.I. v. Akahall & Sons Co. Ltd. (2004) 6 NWLR (Pt. 869) 245 at pages 254 – 256 ratio 7 and 8.

It was also submitted that, the trial court’s holding that, the suit before it being on undefended list procedure, the appellant could not raise any objection by filing a motion to that effect, thereby refusing to hear the said objection and dismissing the said application and thereafter proceeded to enter judgment for the respondent. This has no support in law or rules applicable to the trial court. The appellant further contended that since he is challenging the competence of the Court via filing the said applications timeously challenging the suit instead of filing a notice of intention to defend, is the correct step in the right direction, because if it files an intention to defend the suit accompanied by an affidavit disclosing defence will amount to waiving its right to later bringing an application to set a side the writ. Objection must be filed timeously and before taking any steps in the proceedings, and it cited in support of this contention, the cases of:

1. Ezomo v. Oyakhire (1985) INWLR (Pt.2) 195. ratio 5 & 6:
2. Adegoke Motors Ltd. v. Adesanya (1989) 5 SCNJ 80, ratios 3-6, (1989) 3 NWLR (Pt. 109) 250: and
3. Adejumo v. David Hughe & Co. Ltd. (1989) 5 NWLR (Pt.120) 146 at 149 ratios 1 & 2.

The appellant also contended that since the provisions of Order 22 of the rules do not deal with the procedure for setting aside (albeit) a defective writ of summons, then express provisions of Order 2, rule 2 and order 13 rule 7 of the Rules which make provisions for objection, should over ride the provisions of Order 22 to the extent of their being specific on the issue relating to objection on the defective writ. The reliance was made on the Latin maxim: ‘Expressio unius est eyclusion aliterius’ Expressum facit cessare tacitum’ meaning the express mention of a thing excludes all others, and ‘Express facit cessare tacitum’ meaning, that which is expressed makes that which is implied to cease, i.e. super cedes it or controls its effect. It further contended that by the Latin maxim which says, ‘Statutum Speciale statuto special man dero gat’- meaning, one special statute does not take from another special statute: the provisions of Orders 2 rules 2 and 13 rules 7 being different from Order 22 of the Rules, the later provisions therefore cannot take away the effect of the former provisions as to render them inoperative.

In his view, the respondent contended that the learned trial Judge was right to proceed on the set course to judgment after duly considering and pronouncing on the two applications brought by the appellant. He cited the case of Ben Thomas Hotels Ltd. P. Sebi Furniture Ltd. (1989) 5 NWLR (Pt. (23) 523 at 539 para. 8, where the Supreme Court stated what the trial court has to do on the return date. The appellant asserted that Order 22 of the Rules clearly stated the duty on defendant in action under the undefended list, which, according to him, the respondent deliberately refused to take. That the appellant took a reckless gamble in the trial court which failed.

The appellant further draws our attention to the fact that Order 22 of the Rules provides a special procedure, designed to aid the cause of justice and to cut off the cumbersome procedures of other sort of trials in matters where the defendant apparently has no defence in a claim for liquidated sum of money. That the overwhelming documentary evidence on record clearly shows that the appellant had no defence to the claims against it. That the trial court therefore was right and that all the cases cited by the appellant arc not relevant and arc in applicable as they deal with preliminary objections not on the undefended list.

Issue Three

The complain of the appellant is whether the provisions of Order 2 rule1 for the Rules (supra) can cure the irregularity on the writ of summons even when there is objection timeously raised for that irregularity. That invoking the provisions of Order 2 rule 1 of the rules to cure the irregularity, on non-compliance with the provisions of Orders, 5 rule 12, 11 rules 31 and 32 and 13 rule 7 of the Rules, is B an error in law so weighty as to affect the judgment of the trial court and should be set aside. The case of Schroder v. Major & Co. (Nig) Ltd. (1989) 2 SCNJ9 2 10 ratios 1 and 2; (1989) 2 NWLR (Pt. 101) I was relied to SUPP0l1 its contention. It further contended that if the said sub-rules 1 is allowed to superceded or render in effective the C provisions of Orders 2 rule 2 and 13 rule 7 then the latter are made ineffective and useless, especially if used against a party who did not waive his right.

In his response, the respondent submitted that the irregularity complained of by the appellant is that the respondent failed to endorse his and/or his counsel’s address of service within jurisdiction on the writ of summons, and the failure is a mere irregularity which can and was cured by the provision of Order 2 rule 1 (1) of the Rules. That trial court by virtue of Order 2 rule 1(2) thereof can and has well cured the irregularity by invoking sub-rule (1) of rule I of order 2. That since no miscarriage of justice shown to have been caused, it will be absurd and defeat the intention of the legislature if the trial court judgment is set aside.

On issue one of the appellant’s issues, it is necessary to consider the provisions under section 36(1) of the Constitution. This subsection provides as follows:

“36(1) In the determination of his civil lights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.”

Clearly, when ever the need arises for the determination of the civil rights and obligations of every Nigerian, this above provision guarantees to such a person. a Cair hearing within a reasonable time. ‘Fair hearing’ has been interpreted by courts.

What is fair hearing” In INEC & Anor MUSA & Ors. (2003) 3 NWLR (Pt. 806) 72 Sc. fair hearing has been interpreted to mean in essence, giving equal opportunity to the parties to be heard in the litigation before the court. Where parties are given opportunity to be heard, they cannot complain of breach of fair hearing.

The appellant as stated above complained of denial of fair hearing, and referred us to a number of pages on the records of this appeal.

From the records of this appeal it is common ground that the respondent filed a suit against the appellant. It is common ground that the suit was placed under undefended list. It is common ground that the return date was fixed to 24/612004. It is not in dispute that the processes of the court including the writ of summons and affidavit in support were served on the appellant on 9/6/2004. It is common ground that the appellant did not take any step until on the return date when it filed two applications namely:

1. The application, with supporting affidavit, seeking leave of the trial court to file and serve memorandum of conditional appearance out of time, and same be deemed as properly filed and served; and
2. The application, with its supporting affidavit, for an order setting a side the writ of summons and all other processes served on the appellant on ground of irregularities contain therein.

It also common ground that the two applications filed was served on the respondent on the return date and in the open court while arguing his case and with the leave of the court. Also not in dispute is the fact that, on receipt of the two motions, the respondent’s counsel opposed the application to set aside the writ of summons and did not object the other application which was consequently granted. It is not in dispute that the appellant replied to the respondent’s opposition and at the same time asked the trial court to hear him on his application to set aside the writ. It is not in dispute that, after opposing the application and reply to opposition, the trial court adjourned for ruling. That in its ruling the trial court evaluates the application to set aside writ and its affidavit and after considering the said application on merit dismissed it and proceeded to enter judgment in favour of the respondent before the said application was formally moved and argued. In short, the application was not heard.

Since the issue under consideration is the complain of denial of fair hearing as guaranteed by section 36(1) of the Constitution, the question now arises, was there such a denial from the facts and circumstance of this case? A hearing can only be fair when all parties to the dispute are given a hearing or an opportunity of being beard.

If one of the parties refused a hearing or not given an opportunity to be heard, the hearing cannot qualify as fair hearing, and the party cannot be said to have been heard or given an opportunity to be heard, Without fair hearing, the principles of natural justice are abandoned, and without the guiding principle of natural justice, the concept of the Rule of Law cannot be established and grow in the society. See Otapo v. Sunmonu (1987) 2 NWLR (Pt. 58) 587 at 605 para. D. of the report.

The test of fairness in the proceeding at the court of 1st instance is the impression of a reasonable person who was present at the trial, whether from his observation, justice has been done in the case.

In this case, it cannot be said that there was a fair hearing having regard to the facts and circumstances leading to the ruling of the trial court. The records of this appeal however did not show that the application to set aside the writ was formally heard and that the respondent counsel was allowed to defend his action in filing such application instead of filing a notice of intention to defend the suit.

The procedure followed by the trial court was not right. Because at page 39 of the record of appeal and specially, last paragraph therein, Mr. Panyi, learned counsel for the appellant was recorded as saying that:-

“We finally submit with due respect that the only option availing the defendant is the procedure under which we have come to court. We urge this Honourable Court to proceed to hear our application so far filed in the respective order as we earlier stated.”

The trial court then adjourned for ruling to 8/7/2004 without hearing the appellant on the motions. That was not well done. To my mind that acts does not tally with the dictates of substantial justice. When processes such as the applications left pending before the trial court, were the only documents filed by the defendant instead of the motion of intention to defend with an affidavit prescribed by the Rules, such applications/processes must be allowed to be heard before being determined on merits. It is pertinent that all pending applications in a suit be thrashed so as to avoid want of fair hearing. A court should not, per-chance, give room for such complains. See Otapo v. Sunmonu (supra); Nnamani v. Nnamani (1996) 3 NWLR (Pt. 438) 591 at 597, this court (in Lagos Division) per R.D. Muhammad. JC.A. decided that:

“It is a cardinal principle of our administration of justice that all applications properly brought before our courts must be heard. A party to a cause or matter is entitled and must be given the opportunity to be heard before a decision can be given against him. See Otapo v. Sunmonu (1987) 2 NWLR (Pt. 58) 587. The principles of fair hearing demands that every application must be heard on its merits; Nalsa and Team Associates v. N.N.P.C. (1991) 8 NWLR (Pt. 212) 652. Any breach of the principle will nullify the proceedings.”

I am not unmindful of the fact that the special procedures provided for by the provisions of Order 22 of the Rules are no doubt designed to ensure quick dispensation of justice. But definitely not at the expense of fair hearing. See Ogbonna v. Ukaegbu (2005) 17 NWLR (Pt. 954) 432 at 445 para. of the report. It is not the intention of the undefended list procedure to shut out the defendant from being heard. In A.P.P. v. Ogunsola (2002) 5 NWLR (Pt. 761) 484, it was held that a court lacks competence to grant or refuse an application which has not been argued before it. Since the said applications brought properly by the appellant were in fact not heard by the trial court and yet it went ahead and determined them, it means, the appellant was denied the opportunity to canvas and argue the issues involved. So they were not heard on their merits. This is a violation of the principles of fair hearing which renders the proceedings a nullity, and I so hold.

Having reached this decision, the appeal therefore succeeds and it is allowed. The ruling of A. Ali J. dated 8/7/2004 in suit No. TRSJ/19M/2004 in which he entered judgment in favour of the respondent in the sum of Eight Million. Two Hundred and ten Thousand. One Hundred and Eight Naira (N8.210, 108.00) only, which is liquidated money or a dent owed the plaintiff/respondent by the defendant/appellant is hereby set aside. The matter is hereby sent back to the State C.J. for re-assignment to another Judge different from A. Ali J. to hear and determine on merits both the applications and the substantive suit. The sum of N10, 000.00 is assessed against the respondent and in favour of the appellant.

In view of this above decision, there is no need to examine the remaining issues 2 & 3 raised for consideration.

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Other Citations: (2007)LCN/2491(CA)