Teno Engineering Limited. V. Alhaji Taliru Yusuf Adisa (2005)

LAWGLOBAL HUB Lead Judgment Report

BELGORE, J.S.C.

An action on General Cause List at the High Court of Borno State sitting at Maiduguri was filed by the appellant. The cause of action involves interest in certain right of occupancy. The appellant, as plaintiff served the statement of claim on the respondent. Respondent, instead of filing statement of defence did nothing. The appellant then proved his case on his pleadings and trial court gave judgment in his favour. The respondent, as defendant by way of motion, moved the trial court to set aside its judgment and allow him file the statement of defence to the action. The supporting affidavit clearly alleged that he was never served with the hearing notice of the case; the action being a personal one. Trial court refused to set aside the judgment and an appeal was lodged at Court of Appeal, Jos Division.

All issues argued before Court of Appeal in the main rested on the propriety of grounds of appeal and the issues on them which that court dealt with extensively and resolved in favour of respondent. However, there was a major issue as to whether, in a personal action the appellant as defendant was never served with hearing notice for each day of hearing at the trial court. This is a fundamental defect of trial in default of statement of defence. Trial court never indicated in its record whether the appellant was actually served with hearing notice. It is on this issue alone that Court of Appeal set aside the judgment in default and ordered trial de novo before another Judge of Borno High Court. This grounds the appeal to this court.

The only issue worthy of consideration is whether the respondent had fair hearing at trial High Court; that is to say, did he have notice of hearing of the case. According to his affidavit when he applied to set aside the judgment, the service was not on him but on his employer. The action was against the appellant in person. If the hearing notice was served on him personally or on his solicitor, there would have been no problem. The deposition in his affidavit that he was not served the hearing notice remains uncontroverted as no affidavit of service was shown to court.

On the basis of this failure to serve the hearing notice on the respondent, the Court of Appeal allowed his appeal and ordered trial de novo. This is the right decision and upon this I dismiss this appeal and affirm the decision of Court of Appeal. I award N10,000.00 as costs in this appeal.

SC.301/2000