CHRISBROS CO. NIG. LTD. v. ECO BANK NIG. PLC.
(2011)LCN/4446(CA)
In The Court of Appeal of Nigeria
On Monday, the 11th day of April, 2011
CA/PH/220/2005
RATIO
APPLICATION FOR ADJOURNMENT: WHETHER WHERE AN APPLICATION FOR ADJOURNMENT IS SOUGHT BY A PARTY TO A CASE, THE APPLICATION MUST FIRST BE RESOLVED BEFORE A DECISION IS REACHED AS TO WHETHER OR NOT TO PROCEED WITH THE HEARING OF THE MATTER
Where an application for adjournment is sought by a party to a case as in the instant appeal, the application must first be resolved before a decision is reached as to whether or not to proceed with the hearing of the matter. Doing otherwise would mean violating the principles of fair hearing. The trial Judge has a duty to record the application for adjournment, hear it and deliver a ruling on it. The question of refusing or granting it is another matter. It is his entire discretion to refuse or grant it. This discretion must be exercised judiciously and judicially and in the interest of justice and fair hearing being the guiding principle and central aim. PER ABUBAKAR JEGA ABDUL-KADIR, J.C.A.
APPLICATION FOR ADJOURNMENT: CONSEQUENCE OF THE COURT IGNORING OR FAILING FAILED TO CONSIDER THE APPLICATION FOR ADJOURNMENT PLACED BEFORE IT
In the instant appeal the trial Court has ignored or failed to consider the application for adjournment placed before it by the Appellant and in so doing breached the Appellant’s right to fair hearing as guaranteed by section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria and this breach is fundamental as it vitiate the proceedings before the Court and renders it a nullity. On the effect of violating Appellant’s right to fair hearing, this Court through Muhammad, JCA, (as he then was) in the case of AILO (NIG) LTD. V. ANKPA COOP. CREDIT & MARKET UNION (supra) at pages 1351 to 1352 states thus:- “Thus the refusal by the learned trial Judge to give a hearing to the defendants and their Counsel and to hear and determine as well, motion filed by learned Counsel for the Defendants on 7th November 2001 and his intention to raise an objection against the Suit amounted in my view, to a Procedural error which violates the Appellants right to (Fair) hearing. It goes into the Fundamental issue of Jurisdiction of the trial Court. When a Court lacks Jurisdiction over a matter before it, it cannot validly exercise any judicial power thereon. Had the learned trial Judge considered the motion before him, he would have perhaps come to a different conclusion. However the basic principle of adjudication is that if a Court lacks jurisdiction and then proceeds to adjudicate on the matter the proceedings thereafter would be a nullity no matter how well conducted. MADUKOLU V. NKEMDILIM (1962) 1 SCNLR 341; AJEKAIYE V. MILITARY GOVERNOR OF BENDEL STATE (1993) 9 SCNJ 242; AJOMALE V. YADUAT (2003) FWLR (Pt. 182) 1913; (1991) 5 NWLR (pt. 191) 266;Â Â OGBANU V. OTI (2000) 8 NWLR (Pt. 670) 582.” PER ABUBAKAR JEGA ABDUL-KADIR, J.C.A.
JUSTICES:
ABUBAKAR JEGA ABDUL-KADIR Justice of The Court of Appeal of Nigeria
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
Between
CHRISBROS CO. NIG. LTD. – Appellant(s)
AND
ECO BANK NIG. PLC. – Respondent(s)
ABUBAKAR JEGA ABDUL-KADIR, J.C.A.(Delivering the Leading Judgment): This is an appeal by the Appellant against the Judgment of Hon. Justice I.N. Akomas, sitting at Abia State High Court, Aba Judicial Division, delivered on 27th day of November, 2001 on the undefended Suit brought under Order 23 Rule 1 of the High Court (Civil Procedure) Rules 1988.
The Plaintiff/Respondent herein filed the Suit on the undefended list on 20/7/2001 at Abia State High Court, Aba before Hon. Justice I.N. Akomas for the sum of N5,545,692.07 (Five Million, Five Hundred and Forty Five Thousand, Six Hundred and Ninety-Two Naira, Seven Kobo) being unpaid loan with accrued compound interest rate of 26.5% per annum of the sum of N1,000,000.00 (One Million Naira) being loan/over draft. Facility granted to the Appellant on 14th April, 1998 as at 31st January, 2001. Payment of the agreed compound interest rate at 26.5% per annum from 31/1/2001 until Judgment is delivered and payment of the agreed rate 26.5% per annum on the Judgment debt until it is fully paid.
The Respondent’s claim was supported by a 22 paragraphs affidavit brought under Order 23 Rule 1 of the High Court (Civil Procedure) Rules 1988 deposed to on the 20th of July, 2001. Paragraph 5 of the supporting affidavit stated that on the 14th day of April, 1998 the Plaintiff granted to the Defendant on its request a Loan/Overdraft facility of N1m (One million naira) at an agreed compound interest rate of 26.5% per annum subject to review from time to time in line with the prevailing market conditions paragraph 18 of the same affidavit stated that the unpaid outstanding amount of the loan with interest as at January 31, 2001 was N5,546,692.07 which is now being claimed in the Suit.
The Suit was fixed for hearing on the undefended list on 27/11/2001. The Appellant was served on 21/11/2003. The 24/11/2001 and 25/11/2001 were Saturday and Sunday respectively.
On the 27/11/2001, the Appellant was in Court and presented a letter of application for adjournment on the reasons that the Appellant was not served with sufficient time to file the notice of intention as required by the Rules. The trial Judge after looking at the letter for adjournment asked the Respondent’s Counsel his reaction which he opposed. The trial Judge did not record the application and the objection of the Respondent’s Counsel. He ignored the application for adjournment and without calling of the Respondent to prove his case or call for hearing, entered judgment in favour of the Respondent under Order 23 Rule 4 of the Rules in terms of its claim with N2,000.00 (Two Thousand Naira) cost against the Appellant.
The Appellant being dissatisfied with the Judgment and the Order for costs filed a Notice of Appeal against the Judgment.
The appeal was heard on the 12th January, 2011 and in line with the Rules and Practice of this Court, the Parties duly filed their respective briefs of argument. Counsel to the Appellant Mr. C.I. Ugwoji informed the Court that the Appellant’s undated brief of Argument was filed on 17/8/2005 and the Appellant’s Reply Brief is dated 3/10/08 and filed on 7/10/08. Counsel adopted the two briefs of argument and urged the Court to allow the appeal.
The Respondent even though served with hearing notice on 6/1/11 was not represented in Court by Counsel, his brief of argument which is undated was deemed filed on 23/9/08 is deemed argued under Order 17 Rule 9(4) of the Court of appeal Rules.
The Appellant formulated the following Issues for determination.
1) Whether the Appellant was allowed the statutory period required to file the notice of intention to defend under Order 23 Rule 3 of the High Court (Civil Procedure) Rules 2001 of Abia State High Court before Judgment was entered.
2) Whether there was fair hearing or hearing at all on the 27th of November, 2001 when the Suit was fixed for hearing.
3) Whether the Appellant neglected to file Notice of Intention to defend under Order 23 Rule 3 of the Abia State High Court (Civil Procedure) Rules 2001.
4) Whether the Court below has Jurisdiction to hear and give Judgment in the Suit when the Suit is incompetent or was there a competent Suit before the trial Court having been brought under a repealed law.
5) Whether the affidavit supporting the claim is not in conflict with the claim for Judgment to be entered in terms of the claim or whether the presence of affidavit of service of the writ of summons and Order of Court on the Defendant without more automatically entitled the trial Judge to enter Judgment in the absence of notice of intention to defend.
6) Whether the trial Judge should not have considered the application for adjournment and granted in the interest of justice.
Learned Counsel for the Respondent formulated one Issue for determination and the Issue read thus:-
Whether the learned trial Judge was right after ascertaining due service of the writ of summons and order on the Defendant in delivering Judgment in the suit against the Defendant/Appellant and in favour of the Plaintiff/Respondent under the undefended list on the hearing date when the Appellant neglected to deliver any notice of intention to defend the Suit with an affidavit disclosing any defence on the merit pursuant to Order 23 Rules 3 and 4 of the Abia State High Court (Civil Procedure) Rules 2001.
I have carefully studied the Issues formulated by the Appellant and the sole 8 Issue formulated by the Respondent and also the facts and circumstances of this appeal and I am of the firm view that two Issues can adequately dispose of this appeal and the issues are:-
1. Whether the learned trial Judge was right when he ignored to consider the application for adjournment by the Defendant/Appellant and in so doing breach its right to fair hearing.
2. Whether the Appellant was allowed the statutory period required to file the notice of intention to defend under Order 23 Rule 3 of the High Court (Civil Procedure) Rules 2001 of Abia State High Court before Judgment was entered.
On Issue No. 1. Learned Counsel to the Appellant submits that on 27th of November, 2001 when the matter was fixed for hearing, the Appellant Counsel wrote for an adjournment with reasons stated in the application letter for adjournment dated 27/112/2001.
The Appellant was physically represented in court by its Managing Director. That trial judge looked at the letter for adjournment and sought the Respondent Counsel’s response which he opposed the adjournment. That the trial Judge did not record these Proceedings. He ignored the application and without anything more and without calling on the Respondent to argue his application on the undefended list went ahead and entered Judgment in terms of the claim as per writ. Counsel for the Appellant argues that if there was a hearing or a fair hearing, the trial Judge should have considered the application for adjournment and ruled on it one way or the other and then call on the Respondent to argue his case before entering Judgment. That the neglect to consider and or ignore the application for adjournment is fundamental breach of the rules of natural justice and fair hearing which lead to the entering of Judgment without hearing or fair hearing to the detriment of the Appellant. Counsel submits that the law is settled that where a person’s legal right or obligation are called into question, he should be accorded full opportunity to be heard before any adverse decision is taken against him with regard to such rights or obligations. It is an indispensable requirement of justice that an adjudicating authority to be fair and just shall hear both sides, give them ample opportunity to present their cases – Reference made to THOMAS ENIYAN OLUMESAN V. AYODELE OGUNDEPO (1996) 2 SCNJ 172 AT 186 TO 187.
Counsel argues that this was not done in this case that if there was a hearing or fair hearing, the trial Judge would have observed and applied the rules as to priority of hearing two opposing applications, in the instant matter the application fixed for hearing on the undefended list and the Appellant’s application for adjournment. That the Court below should have taken the cause which would have best ensure the doing of substantial justice to the Parties because the facts and circumstances of the case so warrants and there was no inhibiting factors against taking the cause of justice. That the application for adjournment ought to be heard first and ruled upon. That even if the application is not granted it would have been heard, recorded and ruled upon – reference made to OLUMESAN V. OGUNDEPO (supra).
Further Counsel for the Appellant contends that the granting or refusal of adjournment is entirely within the discretion of the Court, that the Court below did not exercise the discretion according to common sense and justice in ignoring or refusing the adjournment. That it is well settled that if judicial discretion has been exercised bona fide uninfluenced by irrelevant consideration and not arbitrarily, the Appeal Court will not ordinarily interfere. But in this case where guiding principle is not followed and when the refusal was not done judiciously and judicially on sufficient materials before the trial Court, the Court duty to balance this discretionally power to ensure a fair hearing on the merit was ignored, the Court of Appeal is at liberty to interfere – reference made to UNIVERSITY OF LAGOS & ANOR. V. M.I. AIGORO (1985) 1. SC 265; ALADETOYINBO V. ADEMUMI (1990) 6 NWLR (PT.134) 8 98 AT PP 108 – 109.
It is also the submission of Counsel to the Appellant that the effect of the non consideration or hearing of the application for adjournment had the effect of defeating and indeed defeated the rights of the Appellant – reference made to JAMES NTUKIDEM & ORS. V. ASUQUO OKO & ORS. (1986) 12 SC. 126.
Counsel to the Appellant contends that the refusal and failure to record and rule on the application for adjournment one way or the other is a denial of fair hearing. That the law is settled that, a Court must consider a process before it. Refusal to hear a Process is a breach of the Constitutional right to fair hearing and contravene Section 36(1) of the Constitution of Nigeria 1999 and the effect is that the Court lacked Jurisdiction to entertain the Suit placed before it and the proceedings conducted amounted to a nullity and same should be set aside. Counsel referred to AILO NIG. LTD. V. ANKPA COOP CREDIT & MARKET UNION LTD. (2001) ALL FWLR (PT. 210) 1336 AT PP 1350, 1352; ASUQUO ETIM V. THE REGISTRAR TRUSTEES OF THE PRESBYTERIAN CHURCH OF NIGERIA (2004) ALL FWLR (PT. 227) 574 PP. 584 – 587.
Further learned Counsel for the Appellant argues that the letter of adjournment although cannot take the place of notice of intention to defend and affidavit on the merit, but it is an important, though insufficient step in the process to give him all opportunity to defend in the interest of justice. It should warrant an adjournment to give him opportunity to put his defence, even if the letter is a blunder – reference made to U.T.C. NIG LTD. V. PAMOTEL (1989) 2 NWLR (PT. 103) 244 PP. 299; AZUMI V. PAN AFRICAN BANK LTD (1996) 8 NWLR (PT. 467) 462; OJIKUTU V. ODEH (1954) 14 WACA 640.
Finally Counsel for the Appellant submits that where an adjournment is sought by a party to a case as in this one, the application must first be resolved before a decision is reached as to whether or not to proceed with the hearing of the matter. That it is his entire discretion to refuse or grant it. This discretion must be exercised judiciously and judicially in the interest of justice and fair hearing being the guiding principle and central aim, that the trial Court failed to do by ignoring and non consideration for the application for adjournment. Counsel to the Appellant urged us to set aside the Judgment because the trial Court did not on 27/11/2001 exercise this discretion judiciously and judicially which deprived the Appellant the opportunity to put his defence on the merit.
In his brief of argument, Counsel to the Respondent did not respond to the submissions of Counsel to Appellant on the trial Court, non consideration of the Appellant’s written application for adjournment but at page 4, paragraph 2.2 conceded that the Appellant put in an application for adjournment which he contends was contrary to Order 23 Rule 3 of Rules of Court, the Abia State High Court (Civil Procedure) Rules 2001.
On Issue No. 1 – It is clear that the Appellant’s letter for application for adjournment was before the Court as shown on page 15 (b) of the record of proceedings and also on the day of the proceedings that is the 27th of November, 2001 when the matter came up for hearing the Appellant was in Court being represented by its Managing Director. Counsel to the Appellant was not in Court for the reasons stated in the said letter. There was nothing in the proceedings of 27th November, 2001 to show that the learned trial Judge considered the application for adjournment as sought by the Appellant.
Now the law is settled that where there is an application before the Court such as the application for adjournment, the Court is under an obligation to consider the application and determine it, one way or the other. Granting or refusal of an adjournment is entirely within the discretion of the Court which must be exercised judiciously and judicially. The refusal and failure to record and rule on the application for adjournment, one way or the other is a denial of fair hearing. The Law is settled that a Court must consider a process before it. Refusal to consider and hear a process is a breach of constitutional right to fair hearing and contravene section 36 (1) of the Constitution of the Federal Republic of Nigeria 1999 and the effect is that the trial or proceedings conducted is a nullity. In AILO (NIG) LTD AND ANOR. V. ANKPA COOP. CREDIT & MARKET UNION LTD (2004) ALL FWLR (PT. 210) 1336 at 1351, this Court through Muhammad, JCA, (as he then was) states thus:-
“Another instance of allegation of denial of hearing is the refusal of the trial Court to hear and determine a motion filed by the defendants before proceeding to judgment.” I think the law is well settled that a Court, trial or appellate must consider a Court process before it, including a motion. Refusal to hear a process or motion is a breach of the constitutional right to fair hearing and contravenes section 36(1) of the Constitution of the Federal Republic of Nigeria 1999. Tobi, JCA (as he then was) in the case of OKORO V. OKORO (1998) 3 NWLR (PT. 540) 65 at page 74 B – C had this to say:-
“A Judge, trial or appellate, has no right to refuse hearing a Court process before him, including a motion. A motion may be down right stupid, irregular or unmeritorious or an abuse of the judicial process; the Judge must hear it and rule one way or the other. He cannot prevent an Applicant his motion for whatever reason. Refusal of a Judge to hear a motion is clearly a breach of the Constitutional right of an Applicant to be heard and that is no only against Section 33(1) of the Constitution (if one may say so naively) but also against the natural justice rule of audi alteram partem”.
In the appeal at hand there was no consideration and hearing at all of the application for adjournment by the Appellant, so it will appear an understatement as a matter of law to contend that the Appellant were denied a fair hearing.
Again in the case of THOMAS ENYAN OLUMESAN .V. AYODELE OGUNDEPO ( 1996) 2 SCNJ 172. The Supreme Court held thus.
” Accordingly, a hearing can only be said to be fair when inter alia, all the parties to the dispute are given a hearing or an opportunity of a hearing. If one of the parties is refused or denied a hearing or is not given an opportunity of being heard such a hearing cannot qualify as a fair hearing under the AUDI ALTERAM PARTEM rule. The right to fair hearing is a fundamental constitutional right guaranteed by the 1979 Constitution and its breach in any trial nullifies such trial. It is unnecessary for any person alleging a denial of fair hearing to establish any injury or prejudice to himself before he may invoke his right of fair hearing.”
The Supreme – further held at pases 186 – 187 thus :-
“Whether the application for an adjournment would be granted or refused is to a totally different matter. What is important in the situation is that the application for an adjournment having been made, the same ought to have been addressed, considered and ruled upon one way or the other before the application for dismissal would be taken. The grant or refusal of an adjournment is entirely within the discretion of the Court. A Court is not bound to grant every application but may refuse an unreasonable application”.
Therefore, a pending application for adjournment should be regarded as a hurdle or an obstacle and it is only after the trial Court had scale over it that it can proceed to treat the Respondent’s Suit one way or the other. Where an application for adjournment is sought by a party to a case as in the instant appeal, the application must first be resolved before a decision is reached as to whether or not to proceed with the hearing of the matter. Doing otherwise would mean violating the principles of fair hearing. The trial Judge has a duty to record the application for adjournment, hear it and deliver a ruling on it. The question of refusing or granting it is another matter. It is his entire discretion to refuse or grant it. This discretion must be exercised judiciously and judicially and in the interest of justice and fair hearing being the guiding principle and central aim.
In the instant appeal the trial Court has ignored or failed to consider the application for adjournment placed before it by the Appellant and in so doing breached the Appellant’s right to fair hearing as guaranteed by section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria and this breach is fundamental as it vitiate the proceedings before the Court and renders it a nullity.
On the effect of violating Appellant’s right to fair hearing, this Court through Muhammad, JCA, (as he then was) in the case of AILO (NIG) LTD. V. ANKPA COOP. CREDIT & MARKET UNION (supra) at pages 1351 to 1352 states thus:-
“Thus the refusal by the learned trial Judge to give a hearing to the defendants and their Counsel and to hear and determine as well, motion filed by learned Counsel for the Defendants on 7th November 2001 and his intention to raise an objection against the Suit amounted in my view, to a Procedural error which violates the Appellants right to (Fair) hearing. It goes into the Fundamental issue of Jurisdiction of the trial Court. When a Court lacks Jurisdiction over a matter before it, it cannot validly exercise any judicial power thereon. Had the learned trial Judge considered the motion before him, he would have perhaps come to a different conclusion. However the basic principle of adjudication is that if a Court lacks jurisdiction and then proceeds to adjudicate on the matter the proceedings thereafter would be a nullity no matter how well conducted. MADUKOLU V. NKEMDILIM (1962) 1 SCNLR 341; AJEKAIYE V. MILITARY GOVERNOR OF BENDEL STATE (1993) 9 SCNJ 242; AJOMALE V. YADUAT (2003) FWLR (Pt. 182) 1913; (1991) 5 NWLR (pt. 191) 266;Â Â OGBANU V. OTI (2000) 8 NWLR (Pt. 670) 582.”
With the foregoing Issue No. 1 is resolved in favour of the Appellant against the Respondent.
With the resolution of Issue No. 1 in favour of the Appellant against the Respondent Issue No. 2 becomes academic as the whole proceeding conducted on the 27th November, 2001 is a nullity as nothing can be based on the said proceedings, accordingly Issue No. 2 is discountenanced.
In the result this appeal succeeds and it is hereby allowed. The proceedings conducted by the High Court of Abia State No. 1 Aba on the 27th November, 2001 and the Judgment contained therein by I.N. Akomas J. are declared a nullity and hereby set aside.
The suit is remitted to the Chief Judge of Abia State to be assigned to another judge of Abia State High Court other than I. N. Akomas, J for hearing de novo on its merits.
There is no Order as to costs.
HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I have read the judgment just delivered by my learned brother A. J. ABDUL-KADIR, J.C.A. I am of the view that the appeal has no merit and should be dismissed. It is hereby dismissed. I abide by all the orders made in the lead judgment.
MOJEED ADEKUNLE OWOADE, J.C.A.: I read in dreaft the judgment just delivered by my learned brother ABUBAKAR JEGE ABDUL-KADIR, J.C.A. I agree with the reasoning and conclusion. I also allow the appeal. I abide with the consequential order.
Appearances
Mr. C. I. Ugwoji For Appellant
AND
Counsel to the Respondent not in court at the hearing of the appeal. For Respondent
