United Bank for Africa Plc V. Ifeanyichukwu Okonkwo & Anor (2003)
LawGlobal-Hub Lead Judgment Report
MAHMUD MOHAMMED, J.C.A.
I
n suit No. E/427/99 instituted in the High Court of Justice of Enugu State at Enugu, Ifeanyichukwu Okonkwo as plaintiff sued Mode Nigeria Limited as defendant for the sum of N13,700,000.00 being the total price of sand, timber, stone and iron rods supplied to the defendant at its request. Following the admission of this claim by the defendant, judgment was entered for the plaintiff against the defendant in the sum claimed by the plaintiff with interest on 4/4/2000. Before then however, the defendant had obtained the leave of the trial High Court to issue and serve third party notice on the United Bank for Africa Plc. to appear and defend the claim against it by the defendant for the same amount claimed by the plaintiff against it in the main action.
Having regards to the importance and relevance of the proceedings of the trial court of 4/4/2000, the same are hereby quoted below at page 29 of the record: –
-29
HOLDEN AT ENUGU
ON TUESDAY THE 4TH DAY OF APRIL, 2000
E/427/99
IFEANYICHUKWU OKONKWO
Vs.
MODE NIG. LTD.
Plaintiff present. Defendants absent.
1.O. Okoh for the plaintiff.
2.Okeke for the defendant.
Mr. Okoh refers to his motion for judgment against the defendant.
Mr. Okeke does not oppose the application.
Mr. Okoh says the claim is for the sum of N13,700,000.00 and the interest on the same amount at the rate of 20% from 1st September, 1999 until judgment is given and then 10% interest on the debt until the whole debt is fully liquidated. Says the defendant admitted liability of this debt, in his statement of defence paras. 1, 2, 3,4, 8 and 9. Mr. Okoh says he is not opposed to the application but asks for adjournment to enable the defendant and the 3rd party to discuss who pays the debt. Mr. Okoh asks for N5000.00 costs.
COURT: Judgment is hereby entered in favour of the plaintiff against the defendant as follows:
1.The defendant to pay to the plaintiff the sum of N13,700,000 being debt owned to the plaintiff.
2.The defendant is also to pay to the plaintiff interest at the rate of 20% on the debt, from 1st September, 1999 up till today when the judgment is given.
3.The defendant is to pay 5% interest on the debt until the debt is fully liquidated.
4.The defendant is to pay the plaintiff the sum of N5,000.00 as costs including out of pocket expenses.
The case is adjourned to 9th May, 2000 for the heating of the suit between the defendant and the 3rd party. Hearing notice to issue to the 3rd party.
(Sgd.) J.C.N. UGWU
CHIEF JUDGE
4/4/2000″
Although from the record of the trial court quoted above the Third party action between the defendant and the United Bank for Africa Plc as the Third party was specifically adjourned to 9/5/2000 for bearing with a further order for hearing notice to issue for service on the Third party, by an ex-parte motion dated 7/4/2000 and filed at the trial court the same day, the defendant sought for the following relief against the Third party
“Leave to enter judgment in favour of the defendant/applicant against the Third party indemnifying the defendant against the judgment of this Honourable Court, delivered against the defendant, on 4th April, 2000 in the same terms thereto. The named Third party having made a default in entering an appearance after it was duly served.”
This ex-parte motion was duly heard by the trial court on 12/4/2000 and in spite of the fact that the claim of the defendant against the Third party was earlier adjourned to 9/5/2000 for hearing, the trial court proceeded and entered judgment for the defendant against the Third party before the date fixed for the hearing of the matter without affording the Third party a hearing. The proceedings of the trial court leading to that judgment are contained at page 34 of the record of the trial High court. The record reads:
“34
HOLDEN AT ENUGU
ON WEDNESDAY THE 12TH DAY OF APRIL, 2000
E/427/99
IFEANYICHUKWU OKONKWO
Vs.
MODE NIGERIA LTD.
Vs.
UNITED BANK FOR AFRICA PLC.
Defendant/applicant present. Others absent.
A.U. Chilota for Mozia for the defendant/applicant.
Mr. Chilota asks for judgment of this court’s on 4/4/2000 in favour of the defendant/applicant against the 3rd party in the suit for failure of 3rd party to respond to this suit.
COURT: Judgment is hereby entered in favour of the defendant/applicant and against the 3rd party as follows:
1.The 3rd party to pay to the defendant/applicant the sum of N13,700,000.00 being debt owed to the defendant/applicant. The 3rd party to pay 20% interest on the debt to the defendant/applicant from 1st September, 1999 up to 4th April, 2000 when judgment was given in favour of the plaintiff. The 3rd party also to pay 5% interest on the judgment debt from 5th April, until the whole debt is liquidated to the defendant/applicant.
2.The 3rd party to pay the sum of N5,000.00 to the defendant/applicant as costs including out of pocket expenses.
(Sgd.) J.C.N. UGWU
CHIEF JUDGE
12/4/2000
It is against this judgment that the United Bank for Africa Plc which is the Third party, has now appealed to this court. The Third party which is now the appellant had challenged the judgment of the court below of 12/4/2000 against it on 3 grounds of appeal contained in its notice and grounds of appeal filed at the court below on 17/7/2000.
In compliance with the rules of this court, briefs of argument comprising the appellant’s brief the respondents’ brief incorporating arguments on the respondents’ preliminary objection to the hearing of the appeal and the appellants reply brief of argument respectively, were duly filed and served before the appeal came up for hearing on 8/5/2003. I shall first deal with the preliminary objection to the hearing of this appeal raised by the plaintiff/respondent and the defendant/respondent in a joint respondents’ brief of argument filed by them in this court on 2714/2003. The preliminary objection was filed on 6/12/2002 and attacked the appellants’ appeal on the following grounds:
(a) The appeal is incurably defective, the Third party/appellant having not exhausted the remedies legally available at the Enugu State High Court, at the date of instituting its appeal against a default judgment.
(b) The failure of the Third party/appellant to fulfill the condition precedent, before initiating the appeal is fatal, and robbed the court of its jurisdiction.
(c) The mandatory provision of Order 3 rule 3(4) of the Court of Appeal Rules (1981) has not been complied with, therefore, the statutorily prescribed method for the exercise of right is breached, and the Court of Appeal lacks the jurisdiction to entertain the appeal.
(d) The Third party/appellant lacks the locus standi to initiate the appeal.
(e) The appeal is an abuse of process of court.
(f) The appeal is academic, hence the final decision in the matter decreed on 26-7-2000 is live and well, and no appeal has been filed against it.
(g) Deployment of court process mala fide to wit: filing a notice of appeal, during the time the Enugu State High Court power is still extant and notice of discontinuance of motion for setting aside a default judgment, after argument had closed and ruling fixed for 26/7/2000, were meant to over reach the respondents/objectors.
However, having regard to the records contained in the file of this appeal, it is quite clear that the respondents had earlier raised the same preliminary objection to the hearing of this appeal by their own motion dated and filed on 30/5/2001. The ruling on the preliminary objection No. CA/E/158M/2000 was delivered by this court on 4/2/2002. In the leading ruling of Muhammad, JCA and concurred by Ubaezonu, JCA (as he then was) and Fabiyi, JCA the preliminary objection to the hearing of this appeal was dismissed in the following words:-
“Resultantly, one sees no merits in the objection raised and the same is hereby overruled. Appeal is adjudged competent and the 3rd party/appellant/respondent’s application for extension of time to file its brief of argument out of time will accordingly be taken”.
It is quite clear therefore that the respondents’ preliminary objection to the competence of this appeal had been duly heard and determined by this court in its decision delivered on 4/2/2002. This court therefore no longer has jurisdiction to look into the objection again having earlier decided that the appeal is competent. In other words, the respondents having earlier raised their objection by a motion on notice which was heard and ultimately determined against them by this court, it is very wrong for the respondents to again file another preliminary objection to the hearing of the same appeal which objection had earlier been dismissed. An attempt to revive it at the hearing of the appeal is not tenable under the law. This appeal therefore remains valid and competent and I shall proceed to determine it on the merit.
In the appellant’s brief of argument, the following 3 issues were formulated for the determination of the appeal from the 3 grounds of appeal filed by the appellant. The issues are:-
1.Was the judgment of the High Court delivered ex-parte on the 12th April, 2000, not a nullity?
2.If it was not a nullity, was the third party notice issued on 15th December, 1999, competent to commence third party proceedings?
3.If the answer is in the affirmative was there proper third party proceeding or proper application to support a valid judgment against the appellant which was the third party?
In the joint brief of argument filed by the respondents however, the 2 issues identified therein are:-
1.Whether by the legal implication/effect of the dismissal order by the Enugu State High Court against the appellants motion for the setting aside of the default judgment, which constituted a final decision dated 26/7/2000, upon which there is no appeal, the present appeal on said default judgment of 12/4/2000 has become an academic question?
2.Whether any purported defect in the 3rd party notice of 15th December, 1999 is not curable by the provisions of the High Court of Enugu State (Civil Procedure) Rules (1988) Order 26 rule 5 to wit –
No proceedings; in the court, and no process, order, ruling, judgment issued or made by the court shall thereafter be declared void solely by reason of any defect in procedure or writ or form, as prescribed by these rules.
To the effect that the judgment of 12th April, 2000 is a valid and competent judgment.
As the issues formulated in the appellant’s brief of argument have been formulated in the alternative, I shall proceed to determine the appeal on those issues.
The first issue for determination is whether the judgment of the court below delivered on 12/4/2000 is not a nullity. In support of this issue, it was argued for the appellant by its learned counsel that the judgment of the court below delivered on 12/4/2000 was a nullity on two grounds. In the first ground, it was argued that the third party proceeding was determined prematurely as the judgment of the trial court was delivered before the date fixed by the court for the hearing of the case. This is because on 4/4/2000, the trial court had expressly adjourned the third party proceeding to the 9th May, 2000 for hearing.
That the order of adjournment was not varied by the trial court before the same court entered judgment in the third party proceeding between the (defendant/respondent in this appeal) and the Third party (appellant in this appeal.) Relying on the case of Robert Okafor & Ors. v. Attorney-General, Anambra State & Ors. (1991) 6 NWLR (Pt.200) 659 at 678, learned counsel for the appellant argued that the judgment of the court below was a nullity.
The second ground upon which the judgment of the trial court was a nullity, argued the learned counsel for the appellant, emanated from the failure to serve the hearing notice on the third party appellant before the hearing of the case and subsequent entering of the judgment against the appellant which was against the cardinal rules of audi alteram partem in the administration of justice. The cases of Skenconsult (Nigeria) Limited v. Ukey (1981) 1 SC 6 at 27 and Joseph Eboh v. Rose Ogbu (1994) 5 NWLR (Pt. 347) 703 at 715 were relied upon in support of this argument.
For the respondents however, it was contended that the appellant not having appealed against the final order of the court below of 26/7/2000 dismissing the appellant’s application to set aside the judgment of 12/4/2000 now being appealed against, the present appeal can not stand as the issues in the default judgment are no longer alive having become purely academic and as such this court can not be involved in the resolution of academic question as stated in Adebayo v. Babalola (1995) 7 NWLR (Pt. 408) 383.
In the determination of this issue, it is not at all in doubt from the record of the court below earlier quoted in full in this judgment that the trial court after entering judgment for the plaintiff/respondent on 4/4/2000, had adjourned the case of the defendant/respondent against the third party appellant to 9/5/2000 for hearing with the order that hearing notice was to issue for service on the third party appellant. However, before the date fixed for the hearing of the case, on the application ex-parte by the defendant/respondent, the court below entered judgment for the defendant/respondent against the third party appellant on 12/4/2000.
The fact that the case between the defendant/respondent and the Third party appellant was heard and determined before the actual date fixed by the trial court for the hearing of the case and also the fact that the same case was heard and determined without affording the third party appellant a hearing are quite plain on the face of the record of the trial court. Therefore, there is no doubt whatsoever that the judgment of the court below of 12/4/2000 is not regular having been delivered prematurely and this mistake on the part of the court below had clearly resulted in a procedural irregularity which involved fundamental breach of the constitutional right to fair hearing.
Although this issue of denial of fair hearing is the main and fundamental issue for determination in this appeal, it was not identified and treated in the respondents’ brief of argument which dwelled in the main on the alleged incompetence of the appeal, a matter that had long been determined by this court between the parties.
It is well settled that any infringement of the constitutional right to fair hearing renders the act subsequent to such a breach a nullity. See Adigun v. Attorney-General. Oyo State (1987) 1 NWLR (Pt.53) 678; Obode v. Olomu (1987) 3 NWLR (Pt.59) 111 and Okafor v. Attorney-General, Anambra State (1991) 6 NWLR (Pt.200) 659 at 678. Therefore applying the law to the present case in this appeal, the outcome will not be in doubt.
The act of the trial court in hearing the case against the Third party appellant and delivering judgment against it before the actual date fixed for the hearing of the case between the parties, is a breach of the appellant’s constitutional right to fair hearing guaranteed under section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria and had rendered the proceedings of the court in hearing the case up to and including the judgment of the trial court of 12/4/2000, now on appeal a complete nullity and I so declare it. Thus, the appeal having succeeded on the first issue for determination alone, taking into consideration the result arrived at and the fact that the issues as framed by the appellant in the appellant’s brief of argument are in the alternative, I need not go into the remaining two alternative issues.
In the result, I am of the firm view that the third party appellant in this appeal is entitled ex debito justitiae to have the judgment in suit No. E/427/99 delivered on 12/4/2000 set aside for being a nullity.
Accordingly, this appeal succeeds and the same is hereby allowed. The judgment of the trial court of 12/4/2000 against the appellant is hereby set aside for being a nullity. Consequently, the claim of the defendant/respondent against the third party appellant in the third party proceedings is hereby remitted to the court below for hearing by another Judge of the Enugu State High Court other than the learned trial Chief Judge.
There shall be N6,000.00 costs to the appellant against the respondents.
Other Citations: (2003)LCN/1424(CA)
