Tuoyo Holdings Limited V. Niger-benue Transport Company Limited & Anor. (2006)
LawGlobal-Hub Lead Judgment Report
STANLEY SHENKO ALAGOA, J.C.A.
This is an appeal against the ruling of Onajite Kuejubola J. sitting at Warri High Court in Suit No. W/312/97 delivered on the 23rd March 1999 setting aside a default judgment delivered by that court against the 2nd respondent on the 23rd June 1998. The appellant as plaintiff had brought the suit against the respondents claiming the sum of N250,000.00 and interest thereon at 21% per annum for outstanding rent. Following the failure of the 2nd respondent to enter appearance and file a statement of defence, the appellant filed a motion for judgment against the 2nd respondent on the 27th April 1998. On the 23rd June 1998, the learned trial Judge entered judgment against the 2nd respondent.
On the 21st October 1998 the 2nd respondent filed a motion to set aside the judgment on the premise mainly that the mandatory forty eight hours notice as required by law had not been given to it before the motion for judgment was moved and granted as the said motion for judgment was served on the 22nd June 1998 and granted on the 23rd June 1998. In its ruling the court granted the 2nd respondent’s motion and set aside the default judgment entered in favour of the appellant. It is against that ruling setting aside the default judgment that the appellant has now appealed to his court upon a Notice of Appeal filed on the 24th February 2000. The Grounds of appeal are as follows-
GROUND 1
The learned trial Judge erred in law when he heard and allowed the 2nd respondent application of 20/10/99 without first granting leave to the 2nd respondent to move the application.
GROUND 2
The learned trial Judge misdirected himself when he held that he had no jurisdiction to entertain the plaintiffs application of 29 April 1998, without first resolving the conflicts in the 2nd respondent’s affidavit.
GROUND 3:
The learned trial judge misdirected himself in fact and in law when he granted the 2nd defendants application of 20 October 1998 on the ground of lack of fair hearing and failed to take congnisance of the Supreme Court’s decision of F.A.T.B. V. EZEGBU (1993) 6 NWLR (pt.297) pg. 1 at ratio 4.
GROUND 5:
The learned trial Judge misdirected himself on the facts when he held that the appellant’s motion for judgment dated 29th April 1998
was served on the 2nd respondent on 23/6/98 being the very day the motion was heard and granted.
GROUND 6:
The ruling is not contemporaneous with the weight of evidence and relevant authorities cited in the matter.
RELIEF SOUGHT:
An order setting aside the ruling of the Delta State High Court, Warri Judicial Division delivered on 23rd March, 1999 by Honourable Justice Onajite Kuejubola and substituting same with an order striking out the 2nd defendant’s application dated 20/10/98.
When this appeal came up for hearing on the 5th June 2006, counsel for the appellant H.O. Ogbodu Esq adopted and relied on his client’s brief dated 6th July 2001 and filed same day. He urged this court to allow the appeal. F.O. Orbih Esq counsel for the 2nd respondent adopted and relied on his client’s brief of argument dated 12th October 2001 and deemed filed on the 5th December, 2001. He urged this court to dismiss the appeal.
Arising from the five grounds of appeal, the appellant on page 2 of its Brief of Argument distilled the following three issues for the determination of this court –
(1) Whether the appellant gave the 2nd respondent adequate notice of the hearing of its motion for judgment.
(2) Whether the learned trial Judge was correct to have refused to call oral evidence to resolve the conflicting affidavits as to the date of service of the motion for judgment.
(3) Whether the learned trial Judge erred in law in setting aside her judgment of 23rd June 1998 without a thorough consideration of the facts before her.
The 2nd respondent distilled the following three issues for the determination this court –
(1) Whether the appellant gave the 2 respondent adequate notice of the hearing of the motion for judgment.
(2) Whether the learned trial Judge erred in law in setting aside the default judgment of the 23rd June 1998.
(3) Whether there was any conflict in the affidavits to warrant calling oral evidence to resolve the date of service of the motion for judgment.
It is instructive to note that counsel for the 1st respondent E.E. Oghonoghor though present in court when this appeal came up for hearing on the 5th June 2006 informed this court that he did not deem it necessary to file 1st respondent’s brief of argument and as such no brief was filed for the 1st respondent.
After a proper perusal of the Briefs of argument and the record of appeal, I think that the only issue for determination in this appeal is whether the learned trial Judge erred in law in setting aside the default judgment of the 23rd June 1998. I hold this view because all the other issues distilled for determination by this court have this singular issue as its main theme or focal point. There is no gainsaying that all the various issues formulated dovetail into this issue and so in the treatment of this issue all the other issues as canvassed in the respective briefs will be considered.
The appellant has contended that it not only filed a motion for judgment dated 23rd June 1998 but also served same on the 2nd respondent at least five clear days before the motion came up for hearing, being aware of the provision of the rules of court which states that there must be at least two clear days between the service of the motion on Notice and the day named in the motion for hearing, but the 2nd respondent has denied this claim saying that there is no iota of proof of that assertion. I think it is necessary for me to deal with this point right away. I have gone through the proceedings in the record of appeal and I do not find the appellant’s claim of having served the said motion for judgment at least five clear days before the date fixed for the hearing of the motion substantiated. Having disposed of this point, let me now say that the position of the law as to service and hearing of motions is dealt with by Order 8 Rule 17 of the defunct Bendel State of Nigeria High Court (Civil Procedure) Rules 1988 applicable to Delta State which provides as follows –
“Unless the court gives special leave to the contrary, there shall be at least two clear days between the service of a notice of motion and the day named in the notice for hearing the motion.”
This is a mandatory provision because of the use of the word “shall”.
The crux of the matter in this appeal is whether this mandatory provision was strictly complied with. In its motion to set aside the judgment of the court the 2nd respondent had deposed to the fact that it was not served with the motion for judgment but in a further affidavit in support of the motion deposed to on the 24th November 1998, the 2nd respondent had averred that it was served with the said motion on the 22nd June 1998. This averment is contained in paragraph 5 of the said further affidavit in support of the motion. On page 19 of the Record of Appeal, the Chief Bailiff of the High Court of Warri, one Umolo Daniel deposed to having effected service on the 23rd June 1998. The learned trial Judge relied on this deposition coming as it were from the court’s record to hold that service of the motion for judgment was effected on the 2nd respondent on the 23rd June 1998. The appellant has contended that there is conflict in the affidavits which calls for resolution by oral evidence. The case of DAILY TIMES OF NIGERIA PLC V. HON JUSTICE AMAIZU & ORS (1999) 12 NWLR PART 631 page 439 at 456 was relied on wherein the Court of Appeal held that, “when a court is faced with affidavits which are irreconcilably in conflict, the court should in its resolution of the conflict first hear oral evidence from deponents if any and their witnesses” . (underlining mine/or emphasis)
Are the affidavits irreconcilably in conflict with one another? Granted that they are conflicting, which affidavit should the court rely on? It is the duty of court bailiffs to serve processes of court to litigating parties to a suit. No other persons can exercise that function except expressly directed to do so by the trial court. Where service of a process is so effected on parties by a bailiff who follows this up with an affidavit of service, a court should accept and act upon such service as authentic and to the exclusion of any other purported service except there are strong and compelling reasons to the contrary.
As has been noted the court bailiff had deposed to an affidavit to the effect that service of the motion for judgment was effected on the 2nd respondent on the 23rd June 1998. What the learned trial Judge did and rightly too in my view was to accept and act on that affidavit. Even if one were to consider the two dates that had been highlighted i.e. 22nd June 1998 and 23rd June 1998 of what use would oral evidence be to resolve the conflict in dates since the motion for judgment was taken by the court on the 23rd June 1998 less than two days from the service of the motion for judgment and in contravention of Order 8 Rule 17 of the High Court (Civil Procedure Rules) 1998 of Bendel State applicable to Delta State. Had the trial court the jurisdiction to entertain the motion for judgment?
In the well known case of MADUKOLU V NKEMDILIM (1962) 2 SCNLR 341 the Supreme Court held that before a court can exercise jurisdiction over a suit or any proceeding the following conditions must be satisfied –
(1) That the subject matter of the case is within jurisdiction of the court and there is no feature in the case which prevents the court from exercising its jurisdiction.
(2) That the case comes before the court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of its jurisdiction.
The 2nd respondent having been served with the motion for judgment less than two days before the date fixed for the hearing of the said motion for judgment, most certainly there was a feature in the case which prevented or could have prevented the court from exercising its jurisdiction on that day and the said motion for judgment was not properly before the court on the 23rd June 1998 when it was taken. Rules of court are not made for fun but are made to be obeyed. To insist on carrying on with a proceeding in clear violation of the rules of court would amount to a breach of the fundamental right of fair hearing and the “audi alteram partem” rule.
What then is the right course of action for the court to take than to set aside the default judgment which it had entered oblivious at the time of the true state of facts as to service of the motion for judgment. The appellant has contended that before a trial court can set aside a default judgment, certain factors must be taken into consideration which are itemized as follows –
(a) Whether the applicant has good reasons for being absent at the hearing.
(b) Whether the applicant has shown that there are good reasons for his delay in bringing the application.
(c) Whether the respondent will not be prejudiced or embarrassed if the order for re-hearing is made.
(d) Whether the applicant’s case is manifestly unsupportable.
(e) Whether the applicant’s conduct throughout the proceedings is deserving of sympathetic consideration.
All these it is contended ought to be resolved in favour of the applicant before the judgment should be set aside. Reliance was placed on the case of SHELL PETROLEUM DEVELOPMENT CO NIG. LTD V. UDI (1996) 6 NWLR PART 455 page 483 at page 500.
Let me go on to say that all these conditions must of necessity be predicated on proper service on a party as without proper service on a party any subsequent proceeding is a nullity and is liable to be set aside on appeal.
It is a cardinal principle of law that a court has powers to set aside its own judgment entered in default for good cause shown. More so as in this case where judgment was entered when proper service had not been effected on the 2nd respondent. See ALHAJI MOHAMMED TOM & ANOR V. MR. ALPHONSUS SULE AMEH (1992) 1 NWLR PART 217 page 306 page 319 para C where it was held that; “Where a judgment of default of appearance or defence has been entered before the proper time or there has been no service or no sufficient service, or it has been entered for a greater amount than is due, or there has been a breach of good faith, it will be set aside…”
The appellant has submitted that in an application for setting aside a default judgment, the affidavit in support of the motion must state facts showing a defence on the merits. A copy of the proposed statement of defence should be attached as an exhibit to the affidavit. The reason for the default in filing the statement of defence should be stated and the application should be made promptly and as soon as the order for judgment is given. Reliance was placed on CIVIL PROCEDURE IN NIGERIA By Fidelis Nwadialo pages 269-371 and to the case of U.T.C V. PAMOTEI (1989) 2 NWLR PART 103 page 244 at page 285.
Let me for the umpteenth time say that without proper service on a party to a proceeding action with respect to that proceeding can neither commence nor continue as the entire proceeding is a nullity. The learned Judge was therefore right in setting aside the default judgment of the 23rd June 1998. The sole issue for determination is therefore resolved in favour of the 2nd respondent and against the appellant. The Appeal therefore fails and is accordingly dismissed. The Ruling of Onajite Kuejubola J. delivered on the 23rd March 1999 is hereby affirmed.
There shall be N5,000.00 (Five thousand naira costs) in favour of the 2nd respondent against the Appellant.
Other Citations: (2006)LCN/2029(CA)
