CHIBOKA NIGERIA LIMITED & ANOR v. NNATU-NWOSU ENGINEERING WORKS LIMITED
(2011)LCN/4400(CA)
In The Court of Appeal of Nigeria
On Thursday, the 24th day of March, 2011
CA/PH/285M/1999
RATIO
APPEAL: AT WHICH COURT’S REGISTRY WILL AN APPEAL BE INITIATED
An appeal is to be initiated in the Registry of the court which heard the case being appealed against. See Order 6 Rule 2 (1) of the Court of Appeal Rules 2007, section 24 of the Court of Appeal Act. In my view, “the court below” as used in order 6 Rule 2 of the court of Appeal Rules and section 24 of the Court of Appeal Act does not extend to a court where the judgment being appealed against is registered but the court which gave the judgment. PER T. O. AWOTOYE, JCA
ISSUES FOR DETERMINATION: WHETHER AN APPELLANT CAN BE ALLOWED TO ARGUE ON APPEAL A QUESTION WHICH WAS NOT RAISED, TRIED AND CONSIDERED IN THE COURT BELOW
An appellant will not be allowed to argue on appeal a question which was not raised, tried and considered in the court below except it is clear that no further evidence can be adduced which will affect the decision on it. See OKONKWO V. GBOGU (1996) 5 NWLR (PT. 949) 420; KOYA V. USA LTD (1997) 1 NWLR (PT, 481) 251; OWIE V. IGHIWI (2005) 5 NWLR (PT. 917) 184. PER T. O. AWOTOYE, JCA
INTERPRETATION OF STATUTE: INTERPRETATION OF THE PROVISIONS OF ORDER 23(1) OF THE HIGH COURT CIVIL PROCEDURE RULES 1987 OF RIVERS STATE AS IT RELATES TO THE KIND OF ACTION OR CLAIMS TO BE BROUGHT UNDER THE UNDEFENDED LIST PROCEDURE
Order 23(1) of the High Court Civil Procedure Rules 1987 of Rivers State specifies the kind of action or claims to be brought under the Undefended List Procedure. It reads:- “1. Whenever application is made to a court for the issue of a writ of summons in respect of a claim to recover a debt, liquidated money demand or any other claim and the application is supported by an affidavit setting forth the grounds upon which the claim is based and stating that in the deponent’s belief there is no defence thereto, the court shall, if satisfied that there are good grounds for believing that there is no defence thereto, enter the suit for hearing in what shall be called the “Undefended List”, and mark the writ of summons accordingly, and enter thereon a date for hearing suitable to the circumstances of the particular case.” It is in respect of a claim to recover a debt liquidated money demand or any other claim.” The undefended list procedure is not good for assessment of evidence or interest. It does not side-track the law of evidence. It is simply designed to shorten the hearing of a suit where the claim is for liquidated sum. According to TOBI JSC in UBA V. JARGABA (2007) 43 WRN 1 at 25. “The undefended list procedure is designed to secure quick justice and avoid the unjustice likely to occur when there is no genuine defence on the merits to the plaintiffs case. See BANK FOR WEST AFRICA LTD V. UNAKALAMBA(1998) 9 NWLR PT 585page 245. The procedure is to shorten the hearing of a suit where the claim is for liquidated sum. See COOPERATIVE AND COMMERCE BANK (NIGERIA) PLC V. SAMED INVESTMENT COMPANY LIMITED (2000) 4 NWLR (Pt. 653) page 19. In other words, the object of the rules relating to actions on the undefended list is to ensure quick dispatch of certain types of cases, such as those involving debts or liquidated money claims. See BANK OF THE NORTH V. INTRA BANK SA (1969) 1 ALL NLR 91.” Order 23(i) of the High Court Civil Procedure Rules of Rivers State of 1987 was considered by this court in EKERETE V. UBA PLC (2005) 9 NWLR (PT.930) page 401 at 414 where Omage JCA in delivering the leading judgment said “Under the provision of order 23 Rules 1, 2, 3 & 4 of the Rivers State Civil Procedure Rules, the interpretation of the rules has been held to allow of no other application or business on the day fixed for hearing except there is an application by the defendant by motion stating that he has a triable defence … … The above stage of consideration of the plaintiffs right is obtainable only if the plaintiff himself in his claim has deposed to facts, which established his right to claims for a liquidated money demand. See BALOGUN V. OSHUNKOYA (1992) 3 NWLR (PT. 232) 827. It has been decided that a trial court determining a claim under the undefended list procedure cannot expand its jurisdiction by assessing interest claimed in the suit since the procedure is available for efficacious and speedy judgment on a liquidated money demand or for debt where the defendant has no defence.” PER T. O. AWOTOYE, JCA
UNDEFENDED LIST PROCEDURE: THE DUTY PLACED ON THE PLAINTIFF IN AN ACTION UNDER THE UNDEFENDED LIST PROCEDURE
The plaintiff under the undefended list procedure must state his case so clearly that there will be no need for further investigation. His affidavit must speak for itself clearly and plainly since no oral evidence is adduced. Failing this, the undefended list procedure will not be appropriate. It should be noted that the procedure is not meant to guillotine the defence of the defendant and shut him out of justice – See CAVEN PLY LTD & 2 ORS V. PEKAB INTERNATIONAL LTD (2001) 16 WRN 84, THOR LTD V. FCMB (2006) 1 WRN 1. PER T. O. AWOTOYE, JCA
STATUTORY PROVISION: PROVISION OF ORDER 12 RULE 28 OF THE HIGH COURT CIVIL PROCEDURE RULES OF RIVERS STATE AS TO WHETHER PRODUCTION OF AN AFFIDAVIT OF SERVICE SWORN TO BY A BAILIFF OR OTHER OFFICER OF THE COURT IS A PRIMA FACIE EVIDENCE OF SERVICE OF COURT PROCESS
ORDER 12 RULE 28 of the High Court Civil Procedure Rules of Rivers State is directly on this. It states: – “In all cases where service of any writ or document has been effected by a bailiff or other officer of court an affidavit of service sworn to by that bailiff or other officer shall on production without proof of signature be prima facie evidence of service.” PER T. O. AWOTOYE, JCA
SERVICE OF COURT PROCESS: CONSEQUENCE OF THE FAILURE TO SERVE A PROCESS WHERE THE SERVICE IS REQUIRED
Failure to serve a process where the service is required renders the proceedings arising therefrom liable to be set aside. See MBADINUJU V. EZUKA (1994) 8 NWLR (Pt.364) 535; (1994) 105 SCNJ 108. It goes to the root of the case. See CRAIG V. KANSEEN (1943) 1 ALL ER 108, MARK V. EKE (2004) 5 NWLR (PT. 865) 54. PER T. O. AWOTOYE, JCA
JUSTICES:
MUSA DATTIJO MUHAMMAD Justice of The Court of Appeal of Nigeria
EJEMBI EKO Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
Between
1. CHIBOKA NIGERIA LIMITED
2. BEN. C. EVULEOCHA – Appellant(s)
AND
NNATU-NWOSU ENGINEERING WORKS LIMITED – Respondent(s)
T. O. AWOTOYE, JCA (Delivering the Leading judgment): This is the judgment in respect of the appeal lodged by the appellants who were the defendants at the trial court.
The plaintiff had filed a writ of summon claiming against the defendants jointly and severally “the sum of N6,100,000.00 representing the capital and interest of the loan to the 1st defendant through the 2nd defendant and for the agreed interest of 30% per month on the capital of N1000,000.00 to continue from October 1993 until judgment is obtained by the plaintiff.”
The writ of summons and affidavit in support pursuant to Order 23 Rule 1 of the High Court Rules along with other processes were ordered to be served on the defendants with leave of court by substitution by posting on 21/2/94.
On 18/4/94, the trial judge entered judgment in favour of the plaintiffs as follows:-
“JUDGMENT
There is a claim brought under Order 23 Rules 1 of the rules of high Court on the Undefended list.
It is a claim for the sum of N6,1000,000 representing the capital and interest of a 1 million Naira loan to the 1st defendant through the 2nd defendant at an agreed interest of 30% per month from October 1992.
I have read through the statement of claim and the affidavit in support pursuant to Order 23 Rule 1 of the rules of High Court. I hereby give judgment in terms of the writ.”
It is against this judgment that the defendants being aggrieved filed Notice of Appeal on 14/3/2001 containing 5 grounds of appeal.
Parties to the appeal filed and exchanged briefs.
The respondents raised preliminary objections to the appeal by a motion on notice filed on 14/1/2011 which I shall first deal with before going into the main appeal.
The objections go thus:-
“(1) An order striking out the Notice of Appeal filed with the leave of the Honourable court dated 13/3/01 and filed 14/3/01.
(2) An order striking out the Notice of Appeal in CA/PH/285/99 it is incompetent.
(3) An order striking out the Brief of Argument itself based on CA/PH l2}5l99 because it is incompetent.
(4) That the Honourable court lacks jurisdiction to entertain the appeal.”
The grounds of the said objection are as follows:-
“1. That the said Notice of Appeal in CA/PH/285/99 was originally filed on 11/11/99 without the leave of the Honorable court and was consequently struck out by the Honourable Court of Appeal on 07/03/01.
2. The Notice of Appeal filed with the leave of the Court of Appeal on 14/03/01 which was given on the 07/03/07 was later adopted by the Appellants in their further affidavit sworn to on the 09/11/07 for this appeal which was served on us in the court is being used in this appeal as the second Notice of Appeal without the Court of Appeal NUMBER of the Appeal which further Renders it incompetent and void.
3. That the Brief of Argument of the Appellants based on the incompetent Notice of Appeal was filed on 13/12/07 and served on us on 22/04/08 is also incompetent because it is tainted with illegality and should be struck out.
4. That the Honourable Court lacks jurisdiction to entertain this appeal on the Ground that the appeal in its entirety offends the SHERIFF AND CIVIL PROCESS (JUDGMENT ENFORCEMENT) ALL, SECTIONS 104, 105, 106, 107, 108, 109 & 110 CAP 407 VOL. 22 LAWS OF THE FEDERATION 1990. The judgment of Port Harcourt High Court which is currently registered in the Owerri High Court Registry Imo State as a FOREIGN JUDGMENT IN HOW/436/94
The said judgment was Executed on 27/07/95 but the attached property has not been sold because of this appeal.”
The appellants also filed written address in support of the objection he contended that the Notice of Appeal in Appeal No. CA/PH/285/99 dated 11/11/99 and filed 11/11/99 which was struck out on ground of incompetence leave of court not having been obtained before it was filed could not validly be used to commence another appeal, the Notice of Appeal itself being void.
He added that the defective Notice of Appeal was also used to file the Brief of Argument and therefore submitted that the Brief ipso facto was void. He cited MACFOY V. UAC LTD (1961) P.C. 1169, ATULEYE V. ASHAMU (1987) 1 NWLR (pt.49) page 267 and AWOTE V. OWODUNNI (1986) 5 NWLR (Pt. 46) Page 941.
He urged the court to strike out the two Notice of Appeal as the(sic) well as the Brief of Argument on the ground of incompetence.
He further submitted that even if the court failed to strike out this appeal based on earlier submissions, this court lacked jurisdiction to entertain this appeal on the ground that the judgment in PHC/703/93 of the High Court of Rivers State was duly and properly Registered in the owerri High court Registry in Imo state on 1/11/94 as a foreign judgment in HOW/436/94 hence no appeal could properly be made in respect of that judgment from the Home state, Rivers State, to the Court of Appeal. He referred to sections 104 – 110 0f the Sheriffs and civil Process (Judgments Enforcement) Act of 1990. He referred to CIVIL Procedure IN NIGERIA CAP 38 paragraph 2 pages 827 particularity at Page 828 by FIDELIS NWADIALO and ELECTRICAL AND MECHANICAL CONSTRUCTION CO. LTD V. TOTAL NIGERIA LTD & ANOR (1972) 1 ALL NLR (PT.2) 293.
In his reply K.C. Nwufo for the appellants submitted that the preliminary objection was incompetent and an abuse of court process. He stated that the Notice of Appeal in this appeal was dated 13/3/2001 and filed on 14/3/2001. He also stated that the correct Record of Appeal in this case was Exhibit PB.
He submitted further that the judgment being appealed against was delivered in suit No. PHC/703/93 and not in suit No. How/436/94 and so the provision of section 104 – 110 0f the sheriffs and civil process (Judgment Enforcement) Act and the case of ELECTRICAL & MECHANICAL CONSTRUCTION CO. LTD v. TOTAL NIGERIA LTD would not be applicable.
He urged the court to dismiss the preliminary objection as being unmeritorious.
I have carefully considered the submissions of learned counsel on both sides on the preliminary objection.
The correct Record of Appeal in this appeal is the one attached the further to Affidavit of Miss Peace ogbonna. The Notice of Appeal is on page 18- 20 of the record. By the said Notice of Appeal, it was filed pursuant to leave granted by the court of Appeal on 7/3/2001. I have compared the Notice of Appeal in the discarded Record of Appeal marked Exhibit PA with the one in Exhibit PB which is the new Record of Appeal.
The two are different.
I have deeply perused the Notice of Appeal in the new Record of Appeal and I am unable to see any incompetence in it. It is in compliance with order 6 Rules 1- 3 of the court of Appeal Rules. I am also unable to see how the incompetence of the former Notice of Appeal affects a distinct Notice of Appeal as contained in the extant Record of Appeal marked Exhibit PB. This ground of objection therefore lacks merit.
I have also considered the objection of the Respondent to the effect that this appeal should have emanated from owerri High court and not the Home state having regard to fact that the judgment was registered in Owerri High Court. I respectfully disagree.
The Sheriffs and civil Process Act is to make provision for the appointment and duties of sheriffs the enforcement of judgments and orders and the service execution of civil process of the courts through out Nigeria. It has nothing to do with appeals.
In fact section 108 of the said Act specifically provides for the limit of the control and jurisdiction of the court in which a judgment is registered. It states:-
“108. The court in which any such certificate of a judgment has been registered shall, in respect of the issue of process upon the certificate and the enforcement of the judgment, have the same control and jurisdiction over the judgment as if the judgment were a judgment of such court.”
The court in which a judgment is registered has no power, jurisdiction or control in any form over an appeal against the said judgment.
An appeal is to be initiated in the Registry of the court which heard the case being appealed against. See Order 6 Rule 2 (1) of the Court of Appeal Rules 2007, section 24 of the Court of Appeal Act. In my view, “the court below” as used in order 6 Rule 2 of the court of Appeal Rules and section 24 of the Court of Appeal Act does not extend to a court where the judgment being appealed against is registered but the court which gave the judgment. This ground of the objection also fails.
In the circumstance the preliminary objection of the Respondent fails. It lacks merit. It is accordingly dismissed.
Now to the main appeal.
In his brief of argument, K.C. Nwufo for the appellant formulated 5 issues for determination. The issues are:-
“(i) whether the judgment of the court below is a nullity having regard to the fact that it was entered under the Undefended List Procedure without ensuing that the Appellants were served with the writ of summons?
(ii) whether the learned trial judge was right to hear and determine the suit under the undefended list procedure when the claim before him was not on liquidated claims or debt?
(iii) whether the learned trial judge was right when he held the 2nd Defendant/2nd Appellant jointly liable for a debt purportedly owed the plaintiff/Respondent by the 1st Appellant?
(iv) whether the learned trial judge was right to entertain and determine the suit that was based on an unenforceable Agreement that was tainted with illegality?
(v) whether the learned trial judge was right to have awarded interest on the judgment sum in a manner inconsistent with the law?”
The Respondent on the other hand formulated 4 issues for determination.
They are as follow:-
“2.1 Whether this appeal is not Statute Barred under the Limitation Law Section 16 of Rivers State 1988?
2.2 Whether the High Court of Rivers State had Jurisdiction to hear and determine matters brought under Order 23 of the Undefended List of the High Court of Rivers State (Civil Procedure) Rules 1987? (Base on Ground 1).
2.3 Whether the Appellant were properly served with the writ of summons together with the Affidavit in support, at No. 12 Oludi Road Port Harcourt (Base on Ground 3).
2.4 Whether the agreement entered into between the parties dated 13/5/1992 was tainted with illegality? (Base on Ground 4).”
ON ISSUE ONE the appellant submitted that the judgment of the lower court was a nullity since the appellants were not served with the writ of summons in the said suit.
He cited NATIONAL BANK OF NIGERIA LTD SKEN CONSULTS NIGERIA LTD. & ANOR V. GODWIN SEKONDY OKEY (1981) 1 SC 1 AT 9, MACFOY V. UAC LTD (1962) AC 152 AT 160.
ON ISSUE TWO learned counsel for the appellant submitted that it was wrong to have determined the suit under the undefended list procedure when the claim before the court was not on liquidated claim or debt. He stated that the purported loan agreement did not state what the extra interest of 30% would be in a month.
He argued further that the plaintiff did not file any motion exparte for an order placing the suit for hearing under the UNDEFENDED LIST. He referred to the case of ALHAJI UMARU MOHAMMED BABA V. HABIB NIGERTA BANK LTD (2007) 7 NWLR (PT.712) Page 496 at 504.
ON ISSUE THREE, learned counsel for the appellant contended that the learned trial judge was wrong when he held the 2nd appellant jointly liable for a debt purportedly owed the defendant by the 1st appellant. He submitted that the 1st appellant being a corporate body was a legal entity completely different from any of its Directors shareholders officials or employees. He added that the 2nd appellant was merely the Managing Director of the 1st appellant and so the 2nd appellant ought not to have been made a party in the suit let alone being held liable for the debt allegedly owed by the 1st defendant/appellant. He cited SOLOMON v. SOLOMON (1897) AC 22 cited with approval by the supreme court in ANTHONY EHIDIMHEN V. AHMADU MUSA & ANOR (2000) 4 SCNJ 3225 at 335.
ON ISSUE FOUR learned counsel submitted that the loan agreement was tainted with illegality and thus was unenforceable. He relied on section 13 – 15 of the Money Lender’s Law. He referred to NWANKWO v. NZERIBE (2004) 13 NWLR (pt.890) page 422 at 434, FIRST BANK OF NIGERIA LTD & ANOR V. MOBA FARMS LTD & 2 ORS (2005) 8 NWLR (pt. 928) at page 492. He submitted that the learned trial judge ought to have dismissed the suit.
ON ISSUE FIVE, learned counsel submitted that the learned judge was wrong when he awarded interest on the judgment sum at the rate of 30% per month contrary to the provision of ORDER 40 RULE 7 of the Rivers State High Court (Civil Procedure) Rules of 1987. He cited FIRST BANK OF NIGERIA LTD V. MOBA FARMS LTD (supra) at 519.
He finally urged the court to allow the appeal, set aside the judgment of the lower court and dismiss the suit in its entirety.
R. I. Nwosu for the Respondent was earlier stated formulated four issues for determination.
On ISSUE ONE he submitted that this appeal was statute-barred.
He referred to section 16 of the Limitation Edict of 1998 of Rivers State of Nigeria. He said the appellant appealed about 14 years after the right of action accrued. He cited EGBE V. ADEFARASIN (1987) 1 NWLR (PT.47) page 1 at 3; SAVANNAH BANK V. PAN ATLANTIC (1987) 1 NWLR (PT. 49) Page 21-2 AT PGE 215.
ON ISSUE TWO learned counsel submitted that the High Court of Rivers State had unlimited jurisdiction to hear and determine matters brought before it under Order 23 of the undefended list. He relied on section 236 of the 1999 Constitution and section 22 of the High Court Law of Eastern Nigeria. He cited also ONYEMA V. OPUTA (1987) 3 NWLR (PT. 60) Page 259 at 262.
He submitted that the trial judge complied with the provision of Order 23 of the High Court Rules.
He submitted further that the phrase “to recover debt liquidated money demand on any other claim as issued in Rule 1 of order 23 of the Rules gave the trial court wide discretion as to the application of the undefended list. He referred to AGUEZE v. PAB LTD (1992) 4 NWLR (pt.233) page 76; UTC NIG. LTD v. PAMOTE (1989) 2 NWLR (Pt.103 Page 244.
He submitted also that the appellant did not act timeously in the appeal. He relied on WANKA v. UBN (1991) 9 NWLR (Pt.213) page 112.
ON ISSUE THREE he submitted that the appellants were properly served with the processes by substitution. He submitted that the ruling of 13/5/96 of the High court was not appealed against.
ON ISSUE FOUR, learned counsel for the respondent contended that the agreement subject – matter of this action now on appeal was not tainted with illegality. He submitted that the money lender’s Law did not apply to the agreement. He cited NWANKWO v. NZERIBE (2004) 13 NWLR (PT. 890) Page 422 at 425
He posited that issues of illegality or fraud were never raised at the lower court and so grounds 2 -3 and 5 of the grounds of Appeal and issues formulated thereon should be struck out.
He finally urged the court to dismiss the appeal.
I have carefully considered all the argument canvassed by learned counsel on both sides and gone through the Record of Appeal.
An appellant will not be allowed to argue on appeal a question which was not raised, tried and considered in the court below except it is clear that no further evidence can be adduced which will affect the decision on it. See OKONKWO V. GBOGU (1996) 5 NWLR (PT. 949) 420; KOYA V. USA LTD (1997) 1 NWLR (PT, 481) 251; OWIE V. IGHIWI (2005) 5 NWLR (PT. 917) 184.
In this appeal there was no evaluation of evidence by the lower court. There was no evidence of compliance or non-compliance with the Money Lender’s Law on the face of the documents before the lower court.
I shall therefore refrain from commenting on such issues as raised in the brief of the parties.
The issue formulated by both parties in this appeal can be summarized this way.
“Whether the trial court was right in the circumstances of the case to have entered judgment in favour of the plaintiff on 18/4/94.” I shall consider this appeal in this light.
Should this action have been heard under the UNDEFENDED LIST PROCEDURE?
Order 23(1) of the High Court Civil Procedure Rules 1987 of Rivers State specifies the kind of action or claims to be brought under the Undefended List Procedure. It reads:-
“1. Whenever application is made to a court for the issue of a writ of summons in respect of a claim to recover a debt, liquidated money demand or any other claim and the application is supported by an affidavit setting forth the grounds upon which the claim is based and stating that in the deponent’s belief there is no defence thereto, the court shall, if satisfied that there are good grounds for believing that there is no defence thereto, enter the suit for hearing in what shall be called the “Undefended List”, and mark the writ of summons accordingly, and enter thereon a date for hearing suitable to the circumstances of the particular case.”
It is in respect of a claim to recover a debt liquidated money demand or any other claim.” The undefended list procedure is not good for assessment of evidence or interest. It does not side-track the law of evidence.
It is simply designed to shorten the hearing of a suit where the claim is for liquidated sum. According to TOBI JSC in UBA V. JARGABA (2007) 43 WRN 1 at 25.
“The undefended list procedure is designed to secure quick justice and avoid the unjustice likely to occur when there is no genuine defence on the merits to the plaintiffs case. See BANK FOR WEST AFRICA LTD V. UNAKALAMBA(1998) 9 NWLR PT 585page 245. The procedure is to shorten the hearing of a suit where the claim is for liquidated sum. See COOPERATIVE AND COMMERCE BANK (NIGERIA) PLC V. SAMED INVESTMENT COMPANY LIMITED (2000) 4 NWLR (Pt. 653) page 19. In other words, the object of the rules relating to actions on the undefended list is to ensure quick dispatch of certain types of cases, such as those involving debts or liquidated money claims. See BANK OF THE NORTH V. INTRA BANK SA (1969) 1 ALL NLR 91.”
Order 23(i) of the High Court Civil Procedure Rules of Rivers State of 1987 was considered by this court in EKERETE V. UBA PLC (2005) 9 NWLR (PT.930) page 401 at 414 where Omage JCA in delivering the leading judgment said
“Under the provision of order 23 Rules 1, 2, 3 & 4 of the Rivers State Civil Procedure Rules, the interpretation of the rules has been held to allow of no other application or business on the day fixed for hearing except there is an application by the defendant by motion stating that he has a triable defence … … The above stage of consideration of the plaintiffs right is obtainable only if the plaintiff himself in his claim has deposed to facts, which established his right to claims for a liquidated money demand. See BALOGUN V. OSHUNKOYA (1992) 3 NWLR (PT. 232) 827. It has been decided that a trial court determining a claim under the undefended list procedure cannot expand its jurisdiction by assessing interest claimed in the suit since the procedure is available for efficacious and speedy judgment on a liquidated money demand or for debt where the defendant has no defence.”
The plaintiff under the undefended list procedure must state his case so clearly that there will be no need for further investigation. His affidavit must speak for itself clearly and plainly since no oral evidence is adduced. Failing this, the undefended list procedure will not be appropriate. It should be noted that the procedure is not meant to guillotine the defence of the defendant and shut him out of justice – See CAVEN PLY LTD & 2 ORS V. PEKAB INTERNATIONAL LTD (2001) 16 WRN 84, THOR LTD V. FCMB (2006) 1 WRN 1.
Now the claim of the plaintiff was for N6,100,000 representing the capital and interest. The defendants according to the supporting affidavit defaulted for about one year. According to paragraph 11 of the plaintiff’s affidavit the defendants were expected to pay back the loan on 12/6/92. The plaintiff instituted the action on 8/10/93. How did the plaintiff then arrive at the claim of N6,100,000 being claimed? This requires evidence.
The plaintiff has to prove its case see section 137 of the Evidence Act.
The loan granted was N1,000,000 and the interest payable was 30% per month. see exhibit A attached to the affidavit of plaintiff on page 5 of record of appeal.
Furthermore, the procedure under the undefended List Procedure is well laid down in order 23 of the High court civil Procedure Rules. It emphasizes that the writ of summons and the affidavit in support be served on the defendants. Unless the service is done the procedure is stalled.
Order 23 Rules 3 of the Rules read:-
3(1) If the party served with the Writ summons and affidavit delivers to the Registrar, not less than five days before the day fixed for hearing, a notice in writing that he intends to defend the suit, together with an affidavit disclosing a defence on the merit, the court may give him leave to defend upon such terms as the court may think just.”
It is the service of the writ of summons and the affidavit on the defendant that enables him to respond. Without the service of the processes the processes hang and are impotent.
How does one prove that the service is done? ORDER 12 RULE 28 of the High Court Civil Procedure Rules of Rivers State is directly on this.
It states: –
“In all cases where service of any writ or document has been effected by a bailiff or other officer of court an affidavit of service sworn to by that bailiff or other officer shall on production without proof of signature be prima facie evidence of service.”
I have gone through the Record of Appeal I am unable to see any proof that the defendants were served with any process. Failure to serve a process where the service is required renders the proceedings arising therefrom liable to be set aside. See MBADINUJU V. EZUKA (1994) 8 NWLR (Pt.364) 535; (1994) 105 SCNJ 108. It goes to the root of the case. See CRAIG V. KANSEEN (1943) 1 ALL ER 108, MARK V. EKE (2004) 5 NWLR (PT. 865) 54.
In this appeal, the record of appeal does not show that the appellants were served with the processes filed in the lower court. This is fatal to the proceedings in the lower court.
One last issue to touch. Is this appeal statute-barred by virtue of the Limitation Law of River State? The answer is No. The limitation Law Rivers State is a state enactment. The right of appeal from the High Court is guaranteed by the provision of the Constitution and any Law inconsistent with the provision of the constitution is void to the extent of the inconsistency see section 1(3) of the 1999 Constitution. A State Law cannot limit or affect in any way a right of appeal not created by it. The right of appeal from the High court to the Court of Appeal is provided for under section 240 – 243 of the 1999 Constitution. The Limitation Law of Rivers State can therefore not limit in any way the right of appeal of the appellant to the court of Appeal from the High Court. This issue was raised by the Respondent in his brief of argument.
True the “action” used in the Limitation Law of Rivers State is defined to be wide enough to include “any proceeding other than criminal proceeding) in a court established by law. See section 42 of the Limitation Law of Rivers State CAP 80. However, the scope of the word action cannot having regards to the provision of the constitution extend to an appeal from High Court to Court of Appeal.
I resolve this issue in favour of the appellant.
I hold that the trial court erred to have heard this suit under the ‘UNDEFENDED LIST for the above reasons. I have deliberately refrained from touching on the substance of the case to enable another trial court determine the merits or otherwise of the case.
This appeal succeeds. I hereby set aside the judgment of the trial court delivered on 18/4/1994.
In its place I order that this case be sent back to be reassigned by the Hon. Chief Judge of Rivers State to be heard de novo by another High Court Judge.
I award N50,000.00 as cost in favour of the appellants.
DATTIJO MUHAMMAD, J.C.A.: My learned brother Awotoye JCA has admirably considered the issues raised in the appeal in the lead judgment.
I agree with him that the appeal has merit and join his lordship for all that he articulated to allow the appeal. I also abide by the consequential orders he decreed.
EJEMBI EKO, J.C.A.: I read in draft the judgment just delivered by my learned brother, T.O, AWOTOYE, JCA.
It is my considered view, in agreement with the lead judgment, that the undefended list procedure laid down in Order 23 of High Court (Civil Procedure) Rules, 1987 of Rivers State does not oust the right of the defendant to fair hearing. The right to fair hearing is a basic concept of the Rule of Law and a basic fundamental right guaranteed by section 36 (1) of the 1999 Constitution (in pari materia with Section 33 (1) of the 1979 Constitution).
Without service of the court processes, in any suit, on the Defendant, no court of law has jurisdiction over the Defendant. There lies the importance of the service of originating processes on the Defendant. Any judgment or decision delivered against the Defendant in any suit, as in the instant case, in disregard of this basic principle of fair hearing is a nullity ab initio. It confers or vests no right in the Plaintiff over the subject matter of the decision.
I also agree that this appeal be and is hereby allowed. The consequential orders made in the lead judgment are hereby adopted by me.
Appearances
K. C. Nwofo Esq. For Appellant
AND
R. I. Nwofo Esq. For Respondent
