BROAD BANK OF NIGERIA LTD v. ZAMOGAS NIGERIA LTD.
(2011)LCN/4528(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 10th day of May, 2011
CA/K/64/2004
RATIO
PRELIMINARY OBJECTION ON APPEAL: WHETHER A PRELIMINARY OBJECTION WHEN FILED MUST BE DISPENSED WITH FIRST BEFORE DECIDING THE SUBSTANTIVE APPEAL
It is trite law that once a preliminary objection is filed, it must be dispensed with first so as to know the destiny or fortune of the substantive appeal. If the objection yields fruit, when it is cul-de-sac for the appeal. Where it fails, the appeal will be taken on its merits. Moreover, when an objection is raised’ as herein, issue of’ jurisdiction of court is in contention’ There are loads of decided authorities that stand by me on this point, see Adelekon v. ECU-Line NV (2006) 12 NWLR (Pt. 993)33; Uwazurike v. A.G., Fed. (2007) 8 NWLR (Pt.1035); Odedo v. INEC (2008)17 NWLR (Pt.1117) 554: B.A.S. F. (Nig.) Ltd. v. Faith Ent. Ltd. (2010) 4 NWLR (Pt. 1183) 103: Akpan v. Bolo (2010) 17 NWLR (Pt.1223) 421; FBN PLC V. T.S.A. Ind, Ltd. (2010) 15 NWLR (Pt.1216) 247; UBN V. Umeoduagu (2004) 13 NWLR (Pt.890)352; PER OBANDE F. OGBUINYA, J.C.A.
RAISING OF A NEW ISSUE ON APPEAL: WHETHER WHERE A PARTY DESIRES TO RAISE A JURISDICTIONAL POINT FOR THE FIRST TIME ON APPEAL, HE IS OBLIGED TO FIRST SEEK AND OBTAIN LEAVE OF COURT BEFORE DOING SO
It is trite law that a party who wishes to raise a new issue on appeal must seek and obtain leave of court before doing so. This is to avoid that party stealing a match on his opponent by not observing the inviolable rules of fair hearing. Nevertheless, there is a recognized rider to this hallowed principle of law. Where a party desires to raise a jurisdictional point for the first time on appeal, he is not obliged to first seek and obtain leave of court before doing so. The reason is that jurisdiction is the linchpin of all adjudications and any proceedings conducted, no matter how brilliant orderly and fair, without jurisdiction is mired in the web of nullity, See Madukolu v. Nkemdilim (1961) 2 NSCC 374 at 380; Barclays Bank v. CBN (supra); Galadima v. Tambi (supra) Cotecna Int’l Ltd. v. Churchgate (Nig) Ltd (2010) 18 NWLR Pt.1225) 346. The qualification to this ancient principle of law, that leave must be procured before raising new point on appeal, has been confirmed in tons of cases. In the case of Elugbe v. Omokhafe (2004)18 NWLR (Pt.905) 319 at 334, a similar situation confronted the Supreme Court and Katsina-Alu, JSC, us he then was, held: “It is a generally the law that fresh matters cannot be raised on appeal without leave of the court. But the issue of jurisdiction has always been considered exceptional. Therefore the Court of Appeal was in error not to have allowed the parties to fully address it on the question of jurisdiction raised before it.” Similarly, in the case of Moses v. State (2006) 11 NWLR (Pt.992) 458 at 503, the appellant raised for the first time, before the supreme court, without leave, the issue of PW5 being a tainted witness. The apex court re-enforced the decision in the case of Elugbe v. Omokhafe (supra) when Ogbuagu, JSC, stated: “The consequence is long settled in a number of decided authorities to the effect that an appeal court will not ordinarily entertain issue that are fresh and not brought and decided before a lower court, without the leave of the court having been had and obtained ? Let me add quickly, that the only exception are where the issue of jurisdiction is raised as a fresh point, leave is not necessary.” See, also, Owners M/V Gongola Hope v. S.C. (Nig.) Ltd (2007) 15 NWLR (pt.1056) 189; UTB Ltd. v. Dolmetch Pharm (Nig) Ltd. (2007) 16 NWLR (Pt.1061) 520; Aderibigbe v. Abidoye (2009) 10 NWLR (Pt.1150) 592; Agbiti v. Nigerian Navy (2011) 4 NWLR (Pt.1236) 175. Indeed, it is of no moment that the party raising the new jurisdictional question on appeal was a stranger or did not participate in the proceedings in the court below, see Gaji v. Paye (2003) 8 NWLR (pt.823) 583. For completeness, let me observe that the cases of Sakari v. Kunini (supra) and Salami v. Mohammed (supra), which learned counsel placed high premium on this point, are not on hand to his stance. In the first place, the case of Sakari v. Kunini (supra) is a Court of Appeal decision. In this regard, that decision must, willy-nilly bow to the superiority of the Supreme court decisions that I have mentioned on the firm footing of Stare decisis, See Ogunsola v. Nicon (2010) 12 NWLR (Pt.1211) 225. Secondly, the other case of Salami v. Mohammed (supra), a Supreme Court decision, appears to be antithetical to the authorities I have analysed this point only. To begin with the case of Salami v. Nlohammcd (supra) was older in time than the ones I have mentioned. The law is settled that where the decisions of the Supreme Court are in conflict on a point, a lower court, inclusive of this court, is at liberty to follow the decisions that are later in time. The Supreme Court sanctified this point in the case of Osakue V. F.C.E., Asoba (2010)10 NWLR (Pt.1201)1. Using this authority, Osakue’s case, as an index, I am bound to follow the more recent cases that I have highlighted. On account of this current state of the law, that leave is otiose on issues of jurisdiction being raised for the first time on appeal, PER OBANDE F. OGBUINYA, J.C.A.
SERVICE OF STATEMENT OF CLAIM: WHEN A DEFENDANT WHO ENTERS AN APPEARANCE IN, AND INTEND TO DEFEND AN ACTION SHOULD SERVE HIS DEFENCE ON THE PLAINTIFF
…the prescription of Order 25 rule 1 of the Rules is of note. It provides: “25(1) Unless the court gives leave to the contrary, or a statement of claim is endorsed on the writ of summons, the plaintiff shall serve a statement of claim on the defendant, or if there are two or more defendants, on each defendant, and shall do so either when the writ, or notice of the writ, is served on the defendant or at any time after service of the writ or notice but before the expiration of 30 days after the defendant enters appearance. Provided that in land cases, the plaintiff shall, serve his statement of claim on defendant not later than 60 days after that defendant enters appearance, unless the court give leave to the contrary. 2(1) Subject to paragraph (2), a defendant who enter an appearance in, and intend to defend, an action shall, unless the court gives leave to the contrary, serve a defence on the plaintiff before the expiration of 30 days after the statement of claim is serve on him. Provided that in land cases, unless the court gives leave to the contrary, a defendant shall serve his defence on the plaintiff not later than 60 days after the statements of claim is served on him. PER OBANDE F. OGBUINYA, J.C.A.
INDORSEMENT: MEANING OF THE WORD “INDORSEMENT”
An indorsement is a noun variant of the verb, indorse which connotes “to write at the back” of a document, See Brawal (Nig) Ltd. v. Onwadike Ltd. & Anor (2000) 2 SCNQR (Pt.2) 1379 at 1401. PER OBANDE F. OGBUINYA, J.C.A.
STATEMENT OF DEFENCE: WHAT A STATEMENT OF DEFENCE MUST ENTAIL AND WHETHER A DEFENDANT NEED TO WAIT FOR THE PLAINTIFF TO FILE HIS STATEMENT OF CLAIM BEFORE FILING HIS STATEMENT OF DEFENCE
By law, a statement of defence must be a response to a statement of claim, either endorsed on the writ or filed separately from it, and not to an indorsement on the writ simpliciter. An indorsement on the writ no matter how lengthy, verbose or prolix, as in the case in hand, cannot mutate or metamorphose into a statement of claim as to warrant a reaction in the manner of filing a statement of defence, what the respondent did, to my mind, is a serious aberration in adjectival law. In the recent case of Cotecna Int’l Ltd. vs Churchgate (Nig.) Ltd. (2010) 18 NWLR (Pt. 1225) 346, the Supreme Court emphasized the need for a defendant to wait for a plaintiff to file his statement of claim before filing a statement of defence. PER OBANDE F. OGBUINYA, J.C.A.
LEAVE OF COURT FOR EXTENSION OF TIME WITHIN WHICH TO FILE A PROCESS : EFFECT OF FAILURE TO OBTAIN LEAVE FOR EXTENSION OF TIME WITHIN WHICH TO APPEAL WITHIN THE SPECIFIED TIME OR PERIOD
Where a statute or subsidiary legislation (as herein) decrees that leave must be sought and obtained before the doing of an act and it is not procured before accomplishing it, the process filed, in that regard is mired in a nullity. In the case of Auto Import Export v. Adebayo (2002) 18 NWLR (Pt.799) 554 at 584-585, Tobi, JSC opined: “Rules of court provide for the period or time within which a court process should be filed and the rules expect parties to file the process within the period or time stipulated. Because of human failings, exigencies and contingencies, there could be situations where a court process is not filed within the period or time stipulated by the rules. Rules of Court anticipate such situations and make provision for extension of time within which a court process could be filed. The rules allow a party in default to file a court process out of time if he seeks leave… Rules of court are meant to be obeyed. They are not made for the fun or rules qua regulations. Failure to obtain leave for extension of time to appeal within the specified time or period is a substantial irregularity which affects the props and foundations of the appeal. It is beyond mere technicality which this court cannot forgive.” See, also Otu v. A.C.B. Int’l Bank plc (2008) 3 NWLR (Pt.1073) 179. PER OBANDE F. OGBUINYA, J.C.A.
JUSTICES
MARY U. PETER-ODILI Justice of The Court of Appeal of Nigeria
JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria
OBANDE F. OGBUINYA Justice of The Court of Appeal of Nigeria
Between
BROAD BANK OF NIGERIA LTD Appellant(s)
AND
ZAMOGAS NIGERIA LTD. Respondent(s)
OBANDE F. OGBUINYA, J.C.A. (Delivering the Leading Judgment): In the High Court of Kano State, presided over by Hon. Justice W.A. Umar Rano, the appellant bank filed a specially endorsed Writ of Summons, in suit No. K/389/2001, on 15/06/2001. On the said Writ of Summons, the appellant endorsed its claims for declarations, order and injunction against the respondent. See page 3 of the record.
On being served with the appellant’s writ, the respondent entered appearance on 06/07/2001, See page 105 of the record.
Subsequently, respondent filed a statement of defence containing a counter-claim on 22/01/2002 as contained on pages 86 -89 of the record.
Before the lower Court, the matter came up for mention, on 16/06/2003. On that day, the appellant and its counsel were absent. The respondent’s counsel prayed the court below to strike out the matter and applied for a date to prove the respondent’s counter-claim. The learned trial Judge granted the double-barrelled application and ruled: “The plaintiff’s claim is struck out. Case is adjourned to 9/7/2003 for the defendant to prove his counter claim- Hearing notice to the plaintiff.” See page 5 of the record.
On 09/07/2003, the Court below did not sit and the matter was adjourned to 18/07/2003. On 18/07/2003, the respondent adduced evidence in support of its counter-claim by fielding two witnesses, DCCW1 and DCCW2. Thereafter, on the application of the learned counsel for the respondent, the court below adjourned the case to 21/07/2003 for Judgment. On that 21/07/2003, the learned trial Judge delivered his Judgment wherein he rendered judgment to the respondent in sum of N13,330, 657 .56, ten percent (10%) post judgment interest on that judgment sum and N22,000.00 costs.
Sequel to that judgment, the appellant filed a motion on notice, on 27/08/2003, to, inter alia, set aside the judgment and execution on it. The said motion was heard, argued and opposed, on 06/10/2003.
The learned trial Judge, in a considered ruling delivered 27/10/2003, dismissed the appellant’s application.
Aggrieved by the decision of the court below, the appellant filed a four-ground of appeal, dated 17/10/2003, on pages 202 204 of the record, praying this court for: “An Order setting aside the judgment of the lower court and in its place order a retrial de novo before the same judge. ”
When the appeal came up for hearing on 08/02/2011, the registrar informed the court that the parties were served with hearing notices on 01/02/2011 against that day’s proceedings. Surprisingly, both parties and their counsel were absent from the court.
Incidentally, both parties had filed their briefs of arguments in respect of the appeal. Hence the court, taking shelter under the provisions of Order 17 rule 9 (1) of the Court of Appeal Rules, 2007, treated the appeal “as having, been duly argued” and reserved it for judgment. Before I delve into the consideration of the main appeal, I will first attend to the preliminary objection filed by the respondent against it. The reason is a familiar one. It is trite law that once a preliminary objection is filed, it must be dispensed with first so as to know the destiny or fortune of the substantive appeal. If the objection yields fruit, when it is cul-de-sac for the appeal. Where it fails, the appeal will be taken on its merits. Moreover, when an objection is raised’ as herein, issue of’ jurisdiction of court is in contention’ There are loads of decided authorities that stand by me on this point, see Adelekon v. ECU-Line NV (2006) 12 NWLR (Pt. 993)33; Uwazurike v. A.G., Fed. (2007) 8 NWLR (Pt.1035); Odedo v. INEC (2008)17 NWLR (Pt.1117) 554: B.A.S.F. (Nig.) Ltd. v. Faith Ent. Ltd. (2010) 4 NWLR (Pt. 1183) 103: Akpan v. Bolo (2010) 17 NWLR (Pt.1223) 421; FBN PLC V. T.S.A. Ind, Ltd. (2010) 15 NWLR (Pt.1216) 247; UBN V. Umeoduagu (2004) 13 NWLR (Pt.890)352;
on the premise of this position of the law, I will kick-off with the examination of the respondent’s preliminary objection. The respondent’s notice of preliminary objection, filed on 08/02/2005, inclusive of the ground, reads:
“TAKE NOTICE that the respondent will at the hearing of this appeal raise objection and challenge the competence of grounds No. A, B and C of the Appellant’s Grounds of Appeal, argued in its brief of Argument as being incompetent as the grounds do not flow from the decision of the lower court appealed against.
FURTHER TAKE NOTICE that the Respondent will be challenging the issues framed by the appellant numbered 2.1: 2.2 and 2.3 on page 3 of the Appellant’s Brief of Argument as being incompetent not flowing the decision of the lower Court.
THE GROUND OF OBJECTION is that the grounds of appeal and the issues framed on them do not arise from the decision of the lower Court.”
From pages 6-9 of the respondent’s brief of argument, filed on 08/02/2005, arguments were proffered in support of the objection.
Learned counsel for the respondent, I. A. Yusuf, Esq., submitted that grounds A. B and C of the appellant’s grounds of appeal did not flow from the decision of the lower court and leave of this court was not obtained before they were filed. He submitted, regarding ground A, that the court below did not make a finding on whether or not the statement of defence, filed by the respondent, was proper or legal. It was his further-submission that the appellant failed to react to the respondent’s statement of defence and counter-claim, served on its counsel, until the lower court gave judgment in favour of the respondent. He then took the view that the appellant, having not challenged the statement of defence and counter-claim, needed leave of the court to file a ground touching on it. He placed reliance on the cases of: Saraki v. Kunini (2000) F.W.L.R. (Pt.18)309 at 319; Salami v. Mohammed (2000) FWLR (Pt.18)382 at 390.
With regard to grounds B and C, learned counsel contended that they were incompetent too in that the issues raised from them did not flow from the judgment being appealed against. He noted that the appellant was served with the respondent’s counter-claim and hearing notices, but it refused to appear before the court below to challenge it on issues of fair hearing and jurisdiction. He further contended that the appellant needed leave of the court to file the two grounds, B and C, and having not obtained it, they, alongside ground A, should be struck out. He cited the case of C.C.T.C.S. v. Ekpo (2001) FWLR ((pt.82) 2058 at 2070. He concluded that when they, grounds A, B, and C, were struck out the remaining omnibus ground, ground D, would not sustain the appeal because the only evidence before the court below were that of the respondent and nothing on the other side of the imaginary scale. Finally, he urged the court to strike out the entire appeal.
Contrariwise, in the appellant’s reply brief of argument, filed on 23/03/2005, its learned counsel, C.S Igunnbor, Esq, stoutly, argued that the appeal questioned the jurisdiction of the court below to have heard and granted the respondent’s purported counter-claim.
Referring to the provisions of Order 25 rule 16 of the Kano State High Court (Civil Procedure) Rules, 1988, he admitted that a counter-claim could be contained in a statement of defence as did the respondent.
He added that the respondent conceded that the appellant did not file any statement of claim in the proceedings before the court below, but a writ with an endorsement which was struck out on 16/06/2003.
He further argued that grounds of appeal which questioned a court’s jurisdiction to entertain any suit were competent grounds that required no leave. He conceded that grounds of appeal must challenge the decision of a court. He, however, maintained that the rule of law that an appeal must flow from the judgment being appealed against did not apply to grounds of appeal on jurisdiction for obvious reasons. He went on to enumerate those reasons as follows: That at whatever stage the issue of jurisdiction, which can be taken up for the first time before any court, was raised the fundamental vice complained against would be inextricably attached to the judgment appealed against which had been tainted by nullity situation. He added that it would never be too earlier late or premature to raise issue of jurisdiction.
He relied on the cases of: Barclays Bank Ltd. v. CBN (1976)6 SC 175. Galadima v. Tambi (2000) 11 NWLR (Pt.677)1. He urged the Court to overrule the objection.
Flowing from the arguments of both learned counsel, it can be discerned that the respondent’s objection is predicated on the terminal reason that the appellant’s grounds (A, B and C) of the appeal did flow from the decision of the court below and it required leave of court to raise them.
A perusal of the appellants grounds A, B and C of the appeal shows that they revolve around the competence of the court below to conduct the entire proceedings before it. That is to say, the jurisdiction of the court below vis-a-vis the entire proceedings is the tauchstome or fulcrum of those three grounds. It is trite law that a party who wishes to raise a new issue on appeal must seek and obtain leave of court before doing so. This is to avoid that party stealing a match on his opponent by not observing the inviolable rules of fair hearing.
Nevertheless, there is a recognized rider to this hallowed principle of law. Where a party desires to raise a jurisdictional point for the first time on appeal, he is not obliged to first seek and obtain leave of court before doing so. The reason is that jurisdiction is the linchpin of all adjudications and any proceedings conducted, no matter how brilliant orderly and fair, without jurisdiction is mired in the web of nullity, See Madukolu v. Nkemdilim (1961) 2 NSCC 374 at 380; Barclays Bank v. CBN (supra); Galadima v. Tambi (supra) Cotecna Int’l Ltd. v. Churchgate (Nig) Ltd (2010) 18 NWLR Pt.1225) 346.
The qualification to this ancient principle of law, that leave must be procured before raising new point on appeal, has been confirmed in tons of cases. In the case of Elugbe v. Omokhafe (2004)18 NWLR (Pt.905) 319 at 334, a similar situation confronted the Supreme Court and Katsina-Alu, JSC, us he then was, held:
“It is a generally the law that fresh matters cannot be raised on appeal without leave of the court. But the issue of jurisdiction has always been considered exceptional. Therefore the Court of Appeal was in error not to have allowed the parties to fully address it on the question of jurisdiction raised before it.”
Similarly, in the case of Moses v. State (2006) 11 NWLR (Pt.992) 458 at 503, the appellant raised for the first time, before the supreme court, without leave, the issue of PW5 being a tainted witness. The apex court re-enforced the decision in the case of Elugbe v. Omokhafe (supra) when Ogbuagu, JSC, stated:
“The consequence is long settled in a number of decided authorities to the effect that an appeal court will not ordinarily entertain issue that are fresh and not brought and decided before a lower court, without the leave of the court having been had and obtained … Let me add quickly, that the only exception are where the issue of jurisdiction is raised as a fresh point, leave is not necessary.”
See, also, Owners M/V Gongola Hope v. S.C. (Nig.) Ltd (2007) 15 NWLR (pt.1056) 189; UTB Ltd. v. Dolmetch Pharm (Nig) Ltd. (2007) 16 NWLR (Pt.1061) 520; Aderibigbe v. Abidoye (2009) 10 NWLR (Pt.1150) 592; Agbiti v. Nigerian Navy (2011) 4 NWLR (Pt.1236) 175. Indeed, it is of no moment that the party raising the new jurisdictional question on appeal was a stranger or did not participate in the proceedings in the court below, see Gaji v. Paye (2003) 8 NWLR (pt.823) 583.
For completeness, let me observe that the cases of Sakari v. Kunini (supra) and Salami v. Mohammed (supra), which learned counsel placed high premium on this point, are not on hand to his stance. In the first place, the case of Sakari v. Kunini (supra) is a Court of Appeal decision. In this regard, that decision must, willy-nilly bow to the superiority of the Supreme court decisions that I have mentioned on the firm footing of Stare decisis, See Ogunsola v. Nicon (2010) 12 NWLR (Pt.1211) 225.
Secondly, the other case of Salami v. Mohammed (supra), a Supreme Court decision, appears to be antithetical to the authorities I have analysed this point only. To begin with the case of Salami v. Nlohammcd (supra) was older in time than the ones I have mentioned. The law is settled that where the decisions of the Supreme Court are in conflict on a point, a lower court, inclusive of this court, is at liberty to follow the decisions that are later in time. The Supreme Court sanctified this point in the case of Osakue V. F.C.E., Asoba (2010)10 NWLR (Pt.1201)1. Using this authority, Osakue’s case, as an index, I am bound to follow the more recent cases that I have highlighted.
On account of this current state of the law, that leave is otiose on issues of jurisdiction being raised for the first time on appeal, I hold that the appellant did not cut corners when it filed those three grounds of appeal without any permission from this court.
Having regard to the foregoing, the respondent’s preliminary objection, which is intended to nip the appeal in the bud, is rendered impotent to terminate it (the appeal) in limine. The reasons I have adduced make it incapable to fly high for the respondent. I, therefore, hold that the preliminary objection is highly wanting in merit. It fails accordingly, I hereby overrule it.
With the preliminary objection fallen flat, the hurdle mounted or erected on the terrain of the appeal by the respondent is dismantled. To this end, I am duty bound to take the appeal on its merits. As I already noted, at the down of this judgment, both parties filed their briefs of argument for and against the appeal.
In the appellant’s brief of, argument, filed on 26/05/2004, three issues for determination were identified therein viz:
“2.1 Whether the court was seized with jurisdiction to determine and adjudicate on the counter claim allegedly filed pursuant to an endorsement to the Writ of Summons which was struck out.
2.2 Whether from the way the entire proceedings were conducted and in particular the failure to serve on at least two occasions the hearing notices on the appellant, the appellant was given fair hearing in the circumstances of this case.
2.3. Whether the Judgment delivered on the 21st July, 2003 in breach of the mandatory provisions of Order 40 Rules 2 and 3 of the Kano State Civil Procedure Rules did not occasion grave injustice to the appellant.”
On the contrary, in the respondent’s brief of argument, three issues for determination were crafted. One (the first) of those issues related to the defunct preliminary’ objection and ipso facto, one too many here. The two remaining, relevant issues were:
“2. Whether or not the respondent was entitled to judgment of the lower court on its counter claim in the absence of any defence to it by the Appellant who was served with the Respondent’s Counter-claim but refused to appear before the lower court to contest the counter claim.
3. Whether or not the appellant was denied any fair hearing by the lower court in the circumstance of this case having failed to attend court or join issue with the Respondent on the counter claim despite hearing notices served on the appellant’s counsel.”
I have married the two sets of issues for determination together.
To my mind, the issues formulated by the appellant are more comprehensive and apt for the resolution of this appeal. This is more so when the respondent’s issue two is, in substance, in the mould of the appellant’s issue one. Again, the respondent’s issue three can be subsumed under the appellant’s issues two and three. In the end, I will employ the issues framed by the appellant in the determination of this appeal.
ISSUE ONE:
On this issue, learned counsel for the appellant informed the court that the respondent entered appearance and filed a purported statement of defence and counter claim to the endorsement on appellant’s writ. He further notified the court that the court below, without satisfying the law, struck out the appellant’s claim in the writ on 16/06/2003. He then referred to the provision of Order 25 rules 1 and 2 of the Rules and submitted that the said statement of defence, which incorporated the counter-claim, was an illegal process which the court below ought not to have considered. He further submitted that no leave was obtained to file that illegal process and that there was absence of due process and fulfillment of condition precedent for the exercise of the Court’s jurisdiction. He added that those defects deprived the court below of its jurisdiction and vitiated the proceedings conducted before it. He relied on the cases of: Madukolu v. Nkemdilim (1962) 2 SCAZR 341; FRN v. Ifegwu (2003) 5 NWLR (Pt.842) 113; Military Administrator of Benue State v. Abayilo (2001) 5 NWLR (Pt.705)19.
Learned counsel took the view that as the court below struck out the appellant’s claim, as indorsed on the writ’ the writ had no life upon which the court could invoke its jurisdiction to determine the counter-claim.
He persisted that it was the plaintiff s claim that determined the jurisdiction of court, citing Ikine V. Edjerode (2001) 18 NWLR (Pt.745)466 at 499. He repeated that the court below had no jurisdiction to hear the counter-claim and that where a court had a litis without jurisdiction, no matter how well conducted, it should be set aside. He referred to the case of A.-G., Anambra state v. A.-G., Fed. (1993)6 NWLR (Pt.302)692. He maintained that there was no litis inter partes to warrant the court below to hear the counter-claim, upon its striking out the appellant’s claim, under its judicial powers in section 6 (6)(b) of the Constitution. In support, he cited the cases of LPD v. Fawehinmi (1985)2 NWLR (Pt.7)300 at 364; Ikine v. Edjerode (supra).
It was learned counsel’s further submission that a counter-claim was a cross action. He cited the cases of Oregbade & Ors v. Onitiju (1962) 1 All NLR 33 and Dabup V. Kolo (1993) 9 NWLR (Pt.317)254 to support this view. He further submitted that after striking out the appellant’s claim, there was nothing for the respondent to cross and its counter-claim ought to have been struck out. He still persisted that whatever the court below embarked on after the striking out of the appellant’s claim was an academic exercise which the law frowned upon. He cited the case of Budejo V. Fed. Min. of Education (1996)8 NWLR (Pt.464) 15 at 50. He urged the court to resolve that issue in favour of the appellant.
For the respondent, on issue one, its learned counsel intimated the court that the respondent filed the statement of defence with counter-claim to the appellant’s indorsed statement of claim and served same on its counsel, Messrs Ibrahim Umar & Co. He then contended that the respondent filed a proper defence and counterclaim to the appellant’s claim. He further contended that the indorsement on the appellant’s writ contained more than brief statement of claim as provided in order 5 rule 2 of the Rules, but a full statement of claim in accordance with Order 25 rule 1 of the Rules.
He added that the appellant never filed any other statement of claim. He further contended that the issue of legality or illegality of the statement of defence and counter-claim was not raised at the court below and could not, be raised before this court with leave. He relied on the case of Tahir v. Udeagbala Holdings Ltd. (2005) FWLR (Pt.240) 120.
Learned counsel insisted that the court below had the jurisdiction to hear the counter-claim and that the striking out of the appellant’s claim did not divest it of the necessary jurisdiction to proceed with the counter-claim. He maintained that the counter-claim was a separate action independent of the appellant’s claim. He referred to Oregbade V. Onitiju (supra); Order 4 rule 2(3) of the Rules.
He held the view that it was the appellant’s claim that was struck out and not its writ before the court so that the striking out did not affect the life of the writ. He agreed that it was the plaintiff s claim that determined the jurisdiction of the court. He, however, added that where the plaintiff s claim was struck out, discontinued or dismissed, then the claim in the counter-claim would determine the jurisdiction of the court. He then concluded that the case of Ikine V. Edjerode (supra) was inapplicable and urged the court to resolve the issue in favour of the respondent.
ISSUES TWO AND THREE:
On these fused issues, learned counsel for the appellant argued that the hearing notice, dated 13/06/2003, fixed the matter for mention, before the court below, on 16/06/2003 and that it had no jurisdiction to treat it as a hearing date, instead of for mention, by striking out the appellant’s claim on the writ. He relied on the case of NNNP Ltd. V. Oteh (1992) 4 NWLR (Pt. 237) 626 at 633. He added that the order of the court below made on 16/06/2003, to serve the hearing notice on the appellant for the fixture on 09/07/2003 and, not on its counsel, was never obeyed. He noted that the court below did not sit on 09/07/2003 and its registrar issued hearing notice to the counsel for appellant for the fixture on 18/07/2003- on which day evidence was received and concluded in respect of the counter-claim.
He further argued that the counter-claim was adjourned from 18/07/2003 to 2/07/2003 for Judgment without complying with the mandatory provisions of Order 40 rules 2 and 3 of the Rules – that parties must be served hearing notice to hear judgment. He insisted that that non-compliance occasioned miscarriage of justice to the appellant and deprived it of its constitutional right to fair hearing, that will warrant the appeal court to set it aside. He placed reliance on the cases of: Skenconsult (Nig) Ltd. V. Ukey (1981) LSC 6 at 26: SBN Ltd. v. Star & Co. Ltd. (2003)6 NWLR (Pt.815) 1 at 17. He maintained that from the way the court below handled the entire proceedings, the appellant was not afforded reasonable opportunity to prove its claim or defend and deny the counter-claim and thereby occasioned a breach of its right to fair hearing. In further support, he cited the case of Mohammed V. Husseini (1998) 14 NWLR (pt.584) 108. He further relied on the case of M. F. Kent (West Africa) Ltd. v. Martchem Ltd (Nig.) Ltd. (2000)8 NWLR (Pt. 669) 459 at 412 wherein a failure to comply with Order 40 rules 2 and 3 of the Rules was interpreted to mean a constitutional breach that occasioned injustice. Finally, based on those arguments, he urged the court to resolve those issues in favour of the appellant and, ultimately, allow the appeal.
Arguing per contra, on issues two and three, learned counsel for the respondent posited that the appellant was not denied fair hearing because it was represented by a law firm of Ibrahim Umar & Co., that filed its suit, which was served with the respondent’s statement of defence and counter-claim and hearing notices. He stated that the counsel and the appellant, which ought to monitor the progress of its case, both decided not to come to the court below to prosecute the appellant’s case or defend the counter-claim. He referred to the case of Mohammed v. Kpelai (2001) FWLR (Pt.69) 1404 at 1415 on the need for a party to monitor the progress of its case.
Learned counsel persisted that the appellant’s suit was for hearing on 16/06/2003 when its claim was struck out. He added that the appellant’s counsel was served with hearing notice against 18/07/2003 and that the appellant was accorded fair hearing. He further posited that the appellant having failed to attend court on 18/07/2003 should not complain about the judgment of the court below delivered on 21/07/2003. He took the stand that adjournment of the judgment from 18/01/2003 to 21/07/2003 did not occasion any miscarriage of justice to the appellant.
Learned counsel, stoutly, contended that the provision of Order 40 rule 2 of the Rules was not breached because the court below did not reserve its judgment on 18/07/2003, but adjourned it to 21/07/2003. He drew a distinction between when a judgment was reserved, when no date was fixed for its delivery, and when it was adjourned. He explained that parties would be notified of judgment when it was reserved. He maintained that the court below adjourned the case, at the close of hearing, on 18/07/2003 to 21/07/2003 for judgment. On the strength of the contentions, learned counsel urged the court to resolve those issues in favour of the respondent and, ultimately, dismiss the appeal.
Replying on points of law, through the appellant’s reply brief of argument, filed on 23/03/2005, learned counsel for the appellant submitted that the indorsement on the writ could not assume the mandatory provision of Order 25 rule 1 of the Rules. He cited the case of UBA v. Eyo (2003) 12 NWLR (Pt.834)332. He observed that the respondent, on page 84 paragraph a of the record, conceded that the appellant failed to file a statement of claim.
He further submitted that even if the respondent could validly the a statement of defence to the appellant’s indorsement on the writ, that defence, which was filed on 22/01/2002, was filed outside the 14 days after its appearance without any leave or application for extension of time by the court below and so invalid, learned counsel also postulated that the respondent’s counter did not satisfy the requirement of Order 25 rule 16 of the Rules on how and when it could be put in use and so the court below had no jurisdiction to entertain it. He referred to the case of UBA V. Eyo (supra). He finally, urged the court to allow the appeal.
In resolving the three issues in this appeal, I will take them on the trot, beginning with issue one. The reason is that the subrata of the three issues centre on jurisdiction – the competence or power of a court to adjudicate on a matter in controversy, civil or criminal, submitted before it. To this end, I will kick-start the resolution with issue one – “whether the court was seised with the jurisdiction to determine and adjudicate on the counter claim allegedly filed pursuant to an endorsement to the writ of summon which was struck out. To do justice to this issue (one), one must, as a prelude and matter of necessity, have recourse to find out whether the respondent’s statement of defence was properly filed before the court below. This is because, the counter-claim, the determination of which is the epicentre of this issue, was incorporated with the respondent’s Statement of defence. It is axiomatic that the appellant did not file a statement of claim. This much is admitted in the respondent’s brief. It filed a six-paragraph indorsement on the writ on pages 3 and 4 of the record. The said indorsement, in its entirety, reads:
“INDORSEMENT
1. The plaintiff is a financial institution having its Headquarters at Lagos and a Branch office located along Post Office Road Kano within the Jurisdiction of this Court.
2. The Defendant is a limited Liability company with its office at No. 28E Ado Bayero Road Kano and operating a corporate – current Account No.CB0000048 with the plaintiff at its Kano Branch.
3. The Defendant without any prior approval connived with some officers at the Branch of the plaintiff and obtained N9 Million unathorised over draft from the plaintiff’s branch at Kano.
4. The plaintiff after discovering the authorized (sic) act of the Defendant now charged all its necessary interest & commissions prevailing at the lime-
5. The Defendant in the course of business 1992 – to date substantially paid except for an outstanding sum of N1, 010.016.41.
6. INSPITE OF the foregoing, the Defendant now goes around, blackmailing and inseminating that the plaintiff owes it money as a result of unconventional charges which the Defendant could not verify.
WHEREAS the plaintiff claim against the Defendant is as follows:-
(a) A declaration that the act of the Defendant in conniving and obtaining direct Credit from the Branch without due authorization from the plaintiff’s head office is illegal, null and void.
(b) A declaration that the Defendant is not entitle (sic) to any refund whatsoever by reason of his unlawful Act.
(c) An order of court directing the Defendant to pay the plaintiff the sum of N1.917,016.41 as unpaid outstanding in the account.
(d) AN ORDER OF perpetual injunction restraining the Defendant, its Agents privies (sic) or any person acting out on its behalf from further denting the image of the plaintiff within or outside the Banking Industry”
In order to discover whether the indorsement constituted a process that warranted the filing of the respondent’s statement of defence, the prescription of Order 25 rule 1 of the Rules is of note. It provides:
“25(1) Unless the court gives leave to the contrary, or a statement of claim is endorsed on the writ of summons, the plaintiff shall serve a statement of claim on the defendant, or if there are two or more defendants, on each defendant, and shall do so either when the writ, or notice of the writ, is served on the defendant or at any time after service of the writ or notice but before the expiration of 30 days after the defendant enters appearance.
Provided that in land cases, the plaintiff shall, serve his statement of claim on defendant not later than 60 days after that defendant enters appearance, unless the court give leave to the contrary.
2(1) Subject to paragraph (2), a defendant who enter an appearance in, and intend to defend, an action shall, unless the court gives leave to the contrary, serve a defence on the plaintiff before the expiration of 30 days after the statement of claim is serve on him.
Provided that in land cases, unless the court gives leave to the contrary, a defendant shall serve his defence on the plaintiff not later than 60 days after the statements of claim is served on him.”
I have matched this provision with the indorsement on the writ.
To start with, the appellant’s claim on the writ is boldly captioned, INDORSEMENT. It is not titled a statement of claim. An indorsement is a noun variant of the verb, indorse which connotes “to write at the back” of a document, See Brawal (Nig) Ltd. v. Onwadike Ltd. & Anor (2000) 2 SCNQR (Pt.2) 1379 at 1401. Since the claim was headed an indorsement, the appellant ought to have, by virtue of Order 25 rule 1 of the Rules, served the respondent with a statement of claim thirty days after the respondent had entered appearance.
Thereafter, the respondent, by virtue of rule 2(1) of Order 25 of the Rules, would react to that statement of claim by filing a statement of defence and serve same on the appellant within thirty days. Even the provision of Order 5 rule 2, which deals with contents of a writ of summons, does not make a statement of claim part of a writ. In arriving at the above view, I used, as a beacon or compass, the hallowed principle of law that a document, the writ herein, must be construed holistically in order to discern the import of it. In the case of Nigerian Army V. Aminu-Kano (2010)5 NWLR (Pt.1188) 429 at 457, Muhammad, JSC, stated:
Although exhibit P45 is not an Act of parliament or a piece of any Legislation, it is a document written with a particular purpose. In order to read the mind of the maker author of that document it is necessary to subject such document to an appropriate rule of interpretation that a passage is best interpreted by reference to what precedes and what follows it. This makes it mandatory for one to read the whole passage or document and every part of it should be taken into account.”
That is not all. The provision of order 25 rule 1 of the Rules supra is clear, precise and unambiguious as to when a statement of claim is endorsed on a writ. On that score, I employed the popular and ubiquitous canon of interpretation, the literal, rule, to the construction of that prescription. The famous liberal rule of interpretation is not confined to construction of legislations only, it extends its tentacles to subsidiary statutes like the Rules herein. In the case of Berliet v. Kuchalla (1995) 12 SCNJ 147 at 154, Onu, said:
“I am of the view that it is firmly established that what falls for determination in this appeal, is the
construction to be given to Order 27 rule 8 of the Kano State High Court (Civil Procedure) Rules….
As it is glaring that the provisions of the above Statute are clear and free from any ambiguity, the position in law is that those words shall be so construed as to give effect to their ordinary or literal meaning and enforced accordingly.”
See, also, Kraus Thompson Org. Ltd. V. N.I.P.S.S. (2004)17 NWLR (Pt.901) 44: Uwazurike v. A.-G., Fed (2007)8 NWLR (Pt.1035)1; Dingyadi V. INEC (No.2) (2011) 18 NWLR (Pt.1224)154.
It is in the light of the foregoing that I hold, tenaciously, to the view that the respondent jumped the gun when it filed its statement of defence without the appellant serving any statement of claim on it. By law, a statement of defence must be a response to a statement of claim, either endorsed on the writ or filed separately from it, and not to an indorsement on the writ simpliciter. An indorsement on the writ no matter how lengthy, verbose or prolix, as in the case in hand, cannot mutate or metamorphose into a statement of claim as to warrant a reaction in the manner of filing a statement of defence, what the respondent did, to my mind, is a serious aberration in adjectival law. In the recent case of Cotecna Int’l Ltd. vs Churchgate (Nig.) Ltd. (2010) 18 NWLR (Pt. 1225) 346, the Supreme Court emphasized the need for a defendant to wait for a plaintiff to file his statement of claim before filing a statement of defence.
There is yet another loose end or flaw that bedeviled that Statement of defence that is, assuming, without conceding, that the indorsement qualified as a statement of claim. It was filed on 22/01/002 as shown on pages 86 and 89 of the record. The respondent entered an unconditional appearance to the appellant’s suit on 06/07/ 2001, see page 105 of the record. Going by the provisions of order 25 rule 2(1) of the Rules, the respondent was required to file and serve the said statement of defence on the appellant within thirty (30) days after the statement of claim was served on it.
Now, there is nothing on the record to indicate when the appellant served the writ on the respondent. However, since the respondent entered appearance on 06/07/2001, I infer that it must have been served with the writ before entering appearance. The law gives me the nod to draw such inference, see Akpan V. Bob (2010)17 NWLR (Pt.1223) 421. It follows that the statement of defence ought to have been filed and served on the appellant within thirty (30) days from 07/07/2001. id est, 07/08/2001. That was not done. It was filed months after the entry of appearance. To add fuel to the flames for the respondent’s case, there is void of evidence on the record to show that it obtained leave of court to file that statement of defence as ordained by Order 22 rule 3 of the Rules.
The respondent’s failure to procure that required leave of court is a serious albatross around the validity of its statement of defence. The reason is simple. Where a statute or subsidiary legislation (as herein) decrees that leave must be sought and obtained before the doing of an act and it is not procured before accomplishing it, the process filed, in that regard is mired in a nullity. In the case of Auto Import Export v. Adebayo (2002) 18 NWLR (Pt.799) 554 at 584-585, Tobi, JSC opined:
“Rules of court provide for the period or time within which a court process should be filed and the rules expect parties to file the process within the period or time stipulated. Because of human failings, exigencies and contingencies, there could be situations where a court process is not filed within the period or time stipulated by the rules.
Rules of Court anticipate such situations and make provision for extension of time within which a court process could be filed. The rules allow a party in default to file a court process out of time if he seeks leave…
Rules of court are meant to be obeyed. They are not made for the fun or rules qua regulations. Failure to obtain leave for extension of time to appeal within the specified time or period is a substantial irregularity which affects the props and foundations of the appeal. It is beyond mere technicality which this court cannot forgive.”
See, also Otu v. A.C.B. Int’l Bank plc (2008) 3 NWLR (Pt.1073) 179.
In the absence- of filing the statement of defence without the permission of the court below, it is not worth the paper it is printed on.
It is, at best, a paper tiger that is incurably incompetent. Given that the statement of defence was incompetent, what then was the fate of the counter-claim incorporated in it? To my mind, the incompetence inherent in that statement of defence did not infect the respondent’s counter-claim. The latter can be winnowed or sifted out from the former without any harm to the law. In holding this respectful, view, I find ample justification in the immutable rule of law that a counter-claim is a cross action. A counter-claim, in law, is neither parasitic/symbiotic on nor’ tied to the apron strings of a defendant’s defence. It stands aloof on and is invariably independent and separate from the plaintiff s action’ The extinction of a plaintiff’s suit does not mean that a counter-claim against it must peg out of a court. Nor, does it follow that it must yield fruit where plaintiffs matter is a non-starter. Even though an independent action, in the eyes of the law, the same law allows a defendant to encapsulate or wrap his counter-claim in his statement of defence.
In the case of Ogbonna v. A. -G., Imo State (1992) 14 NWLR (Pt. 220) 647 at 675, Nnaemeka – Agu, JSC, stated:
“I believe it has been settled by several decided cases that a counter-claim is to all intents and purposes a separate action, although the defendant, for conveniences and speed, usually joins it with his defence… Indeed, not only can a defendant apply for summary Judgment on his counter-claim but also a plaintiff may counter-claim on the defendant’s counter-claim.” See, also, Oregbude & Ors V. Onitiju (supra); Dabup V- Kolo (supra); Dan Hause V. Panatrade (1993) 7 SCNJ 100; Ige V. Farinde (1994) 7-8 SCNJ 284: Usman V. Garke (2003) 14 NWLR (Pt.840)261.
My viewpoint that the respondent’s invalid statement of defence did not contaminate its counter-claim is further consolidated by the stipulation in Order 4 rule 2(3) of the Rules that: “A counter-claim may be proceeded with notwithstanding that Judgment is given for the plaintiff in his action, or that the action is stayed, discontinued or dismissed” Hence, even with the defunct of the appellant’s claim, by dint of the proceedings of 16/06/2003, on page 5 of the record, the respondent’s counter-claim remain unscathed and extant before the court below. In my humble, view it matters not that the counter-claim was filed in response to the indorsement on writ. This, again, is grounded on the independent features or attributes of a counter-claim.
This is more so when the time for filing a counter-claim is not circumscribed under the applicable Rules.
In this light, the learned trial Judge was at home with the law when he proceeded to adjudicate the respondent’s counter-claim after weeding out the appellant’s claim before him. In the aggregate, I resolve this issue (one) against the appellant.
With the resolution of issue one, I now proceed to tackle, headlong, issues two and three which are fused or amalgamated together in the arguments of counsel. The nuclei of the two fused issues are: whether the court below properly struck out the appellant’s claim and whether it was given fair hearing in the proceedings before it.
A convenient starting point is to determine the legality or otherwise of the decision of the court below in striking out the appellant’s claim. Here, the proceedings of 16/06/2003 are germane.
Being cardinal, I will cull them from page 5 of the record as follows:
“16-6-2003
Mallam Maiyaki for the defendant/counter claimant
Mallam Maiyaki: The plaintiff is absent and unrepresented despite being served twice with a Hearing Notice. I apply that the case be struck out, and we ask for a date for proof of our counter claim. We also apply that a Hearing Notice be served on the defendant.
Court: The plaintiff’s claim is struck out. Case is adjourned to 9/7/2003 for the defendant to prove his counter-claim. Hearing Notice to the plaintiff.
SIGNED
HON. JUDGE 16/6/2003”
As can be garnered from the above proceedings, the appellant’s claim was struck out at the behest of the counsel for the defendant/respondent. The hearing notice which was referred to in the proceedings and which invited the appellant to attend court on that day, 16/06/2003, was the one dated 13/06/2003. It is found on page 59 of the record. In that hearing notice, the matter was fixed for Mention, not for hearing.
By bringing the life span of the appellant’s claim to an abrupt end on 16/06/2003, a date the matter was scheduled for mention, the lower court ignored the law. The law had been settled, by a legion/retinue of cases, that a judgment obtained by a party on a date a matter is stated for mention; not for hearing, is enveloped in a nullity, See Olubusola Stores V. Standard Bunk of Nigeria Ltd. (1975)4 SC 51; (1975) 9, NSCC 137: Kano V. B.M.P.C. Ltd. (1978) 9-10 SC 51; N.N.N.P. Ltd. V. Oteh (supra).
In the case of Mbadinuju v. Ezuku (1994)10 SCNJ 109 at, 122, the appellants sued respondent in the High Court for a declaration that they were the owners of a parcel of land in the possession of the respondents; On 18/07/1971, pleadings were ordered. In January, 1978, the appellants filed a motion for extension of time to file their statement of claim while the respondent filed an application for judgment for the appellants’ default to file their statement of claim. Both motions were filed for hearing on 01/02/1978, but the court did not sit.
On 13/02/1978, the case came up, but only the counsel for the respondent was present. There was no record of notification of the parties on the fixture of 13/02/1978. Nonetheless, the Learned trial Judge struck out both motions and the substantive suit. Later on, on 21/02/978, the case up again and the both motions were granted and withdrawn respectively. Thereafter, pleadings were duly filed and exchanged.
After hearing, judgment was awarded to the appellants. The court of appeal allowed the respondent’s appeal to it. The appellants’ appeal to the Supreme Court was allowed. Ogundare, JSC, declared:
“In the case of the main suit, it could not have been listed for 13/2/78 for hearing since pleadings have not been filed. At best, it could only have been for mention.
Even then, there is nothing to indicate that the parties were aware that the case was to come up that day. It had been held by this court that it is wrong for a Judge to treat a date fixed for mention of a case as one for hearing, any judgment entered contrary to this amounts to a nullity”.
See, also Obunde Ogbuinya, Understanding The Concept Of Jurisdiction In The Nigerian Legal System, Snaap Press Ltd., 2008, 142-144 for detailed analyses.
Flowing from the above, the proceedings of 16/06/2003 in the court below in so far as it concerned the termination of the appellant’s claim, seriously ran foul of the current position of the law. Those proceedings were caught in the intractable web of nullity. The telling effect of that is graphically captured by Nnaemeka-Agu, JSC, in the case of Okoye v. Nigeria, Const. & Furniture Co. Ltd. (1991)6 NWLR (Pt.199)501 at 538, that: “… when a judgment or order is a nullity it is as if it was never given or made. It can be set aside without much ado”. See, also, Bello vs INEC (2010) 8 NWLR (Pt.1196) 312. Beyond that, such a null order or proceeding is a barren or pyrrhic victory as it bestows no right on the beneficiary party nor does it impose any obligation on the victim partly, See Ajiboye v. Ishola (2006) 13 NWLR (Pt.998) 628; Oyeneyin vs Akinkugbe (2010) 4 NWLR (Pt.1184) 265. The net effect of these is not a moot question. The appellant’s claim was intact and extant before the court below. It was not in the least harmed by that non-existent null proceeding as the court below was derobed of jurisdiction to weed it out from its proceedings.
Jurisdiction, the competence or power of a court to deal with all matters in controversy submitted before it, is the nucleus of all adjudications. It is to adjudications what air is to human beings.
Indeed, it oxygenates all proceedings in court. His Lordship, Bello, CJN, graphically captured the indispensable nature of jurisdiction to adjudication in the case of Uti v. Onoyivwe (1991)1 SCNJ 25 at 49 when he said:
“Moreover, jurisdiction is blood that gives life to the survival of an action in a court of law and without jurisdiction, the action will be like an animal that has been drained of its blood. It will cease to have life and any attempt to resuscitate it without infusing blood into it would be an abortive exercise…”
See, also, Okoro v. Egbuoh (2006) 15 NWLR (pt.1001) 1; Inakoju v. Adeleke (2007) 4 NWLR (pt.1025) 427; Dapianlong v. Dariye (2007) 8 NWLR (pt.1036 332. For want of jurisdiction on the part of the court below. I resolve this issue two in favour of the appellant.
Now, I will berth on the tertiary issue, whether the Judgment delivered on 21/01/22003, by the Court below, was in breach of Order 40 rules 2 and 3 of the Rules and occasioned grave injustice to the appellant. A dispassionate resolution of this critical and vexed issue, heavily, turns on the construction of Order 40 rule 2 of the Rules which states:
“40 -2. If the Court reserves judgment at the hearing, parties to the suit shall be served with notice to attend and hear the judgment, unless the court at the hearing states the day on which judgment will be delivered, in which case there shall be no further notice.
This provision is a clear as it is comprehensible. It is plain and devoid of any ambiguity. To this end, I will, again, deploy or invoke the ubiquitous and all-pervading canon of interpretation, the literal rule. to construe it. See Berliet V. Kachalla (supra); Uwazurike V. A.- G., Fed. (supra): Kraus Thompson Org. Ltd v. N.I.P.S.S (supra); Dingyadi v. INEC (supra).
The provision can be bifurcated into two limbs vis-a-vis service of hearing notice. The one limb, the first deals with when judgment is reserved by the High Court of Kano State. The other limb, the second, relates to when the Court states the date for delivery of Judgment.
Under the first limb, hearing notice must be served on the parties notifying them the date of judgment. Whereas, under the second limb, the need for hearing notice is dispensed with.
As already noted, when the court below did not sit on 09/07/2003 for hearing the respondent’s counter-claim, the appellant, via its counsel, Ibrahim Umar Esq, was served with hearing notice, dated 14/07/2003, on page 61 of the record, against the hearing date of 18/07/2003. On that 18/07/2003, the court below, before hearing the counter-claim, on page 2 of the record, ruled:
“Since the plaintiff is aware of today’s date but refused to come to court. I will allow the defendant to prove their counter claim. I will proceed to hear this case now.”
The respondent’s counsel, Mallam Maiyaki, fielded two witnesses, DCCW1 and DCCW2, and closed the case for the respondent. Thereafter, he applied for a date for judgment. The Court below granted the application thus: “Adjourned to Monday 21/7/2003 for judgment.” The judgment was delivered on 21/07/2003. Those proceedings are contained on pages 6-21 of the record.
I have, painstakingly, dissected what transpired in the court below, between 18/07/2003 and 21/07/2003, in order to amply demonstrate that the court below did not, at the end of the proceedings on the counter-claim, reserve judgment thereon. To reserve judgment on a matter means/connotes, “to not give your opinion about something until a latter time when you have more information,” See Longman Dictionary of Contemporary English, page 1398. it follows, from the adjournment of the suit to 21/07/2003 for judgment by the court below, that the judgment on the counter-claim was not adjourned ad infinitum or sine die so as to come within the four walls of a reserved judgment. That is to say, the proceeding fell outside the remit of the first limb of the prescription of Order 40 rule 2 of the Rules. To bear out my view, I draw on the recent case of Cotecna Int’l ltd v. Churchgate (Nig) Ltd. (supra), at page 387, wherein Galadima, JSC:
“…It would appear to me and I am of the view that the delivery of judgment earlier than scheduled date without notice to the appellant will not nullify the judgment unless the appellant can show that it has resulted in a miscarriage of justice. The appellant has not shown that any miscarriage of justice has occasioned because its counsel was not present when the judgment was read. It is not shown that of the appellant’s counsel had listened to the judgment which was delivered in the open court, the decision could have been otherwise.”
In this appeal, the appellant was unable to show that the rendition of the judgment in the court below, on 21-07-2003, inflicted any miscarriage of justice on it. On this score, I hold the view that the appellant was not entitled to be served with a hearing notice against the judgment or date of 21/01/2003 as canvassed by its learned counsel.
The corollary of the above is that the proceeding comes within the domain of the second limb of that provision in that the court below “adjourned to Monday 21/7/2003 for judgment.” By that definite fixture for 21/07/2003, for judgment on the counter-claim, the proceeding comes within the province of the rider or proviso encapsulated for the second limb of that provision. This limb does not make room for hearing notice to be served on parties, the appellant herein, when a particular date is slated for judgment as happened in the court below. To show that a party is not endowed with the right to be- served with any hearing notice, if the circumstance under the second limb plays out, the provision uses the mandatory word “shall” and coupled it with the negative no. The use of the word “shall” makes it obligatory that that second limb shall be obeyed to the letter, see Ogidi v. State (2005)5 NWLR (Pt.918)286; Onochic V. Odogwu (2006)6 NWLR (Pt.975) 65; Ugwu v. Ararume (2007) 12 NWLR (pt.1048) 367; Odedo v. INEC (2008) 17 NWLR (Pt.1117) 554; Agip (Nig) Ltd. v. Agip Petroli Int’l (2010) 5 NWLR (pt.1187) 348.
In a word. the court below did not in the least infract the mandatory provision of Order -10 rule 2 of the Rules.
Against the backdrop of the foregoing, there is no injustice, a fortiori grave injustice, caused to the appellant in the determination of the respondent’s counter-claim by the court below. It is my view that the hearing notice served on the appellant, in respect of the hearing of the counter-claim, was in force and potent until 21/07/2003 since judgment was not reserved on 18/07/2003. I am afraid, the conduct of the appellant, in relation to the respondent’s counter-claim, is a classic example of a party given an equal opportunity for fair hearing, but it, in its infinite wisdom, failed to avail itself of the opportunity. In this wise, the lack of fair hearing, if any, cannot be laid on the door stop of the court or an adverse party. Such a defaulting party has himself to blame. Thus, in the case of Newswatch Comm. Ltd. V Atta (2006)12 NWLR (Pt. 993) 144 at 170 – 171 , Tobi, JSC, stated-
“The constitutional principle of fair hearing is for both parties in the litigation. It is not only for one of the parties. In other words, fair hearing is not a one-way traffic but a two-way traffic in the sense that it must satisfy a double carriage-way, in the con of both the plaintiff and the defendant or both the appellant and the respondent. The court must not invoke the principle in favour of one of the parties to be disadvantage of the other party undeservedly. That will not be justice. That will be injustice.
It is the duty of the court to create the atmosphere or environment for a fair hearing of a case but it is not the duty of the court to make sure that a party takes advantage of the atmosphere or environment by involving himself in the fair hearing of the case. A party who refuses or fails to take advantage of the fair hearing process created by the court cannot turn around to accuse the court of denying him fair hearing. That is not fair to the court and counsel must not instigate his client to accuse the court of denying him fair hearing.
The fair hearing principle formerly entrenched in section 33 of the 1979 constitution and now section 36 of the 1999 constitution, is not for the weakling slumbered, the indolent or the lazy litigant, but it is for the party who is alive and kicking in the judicial process by taking advantage of the principle at the appropriate time. The principle is not available to a party who sets a trap in the litigation process against the court and accuse the court of assumed wrong doing even such so-called wrong doing is, as matter of fact, propelled or instigated by the party, through his counsel.”
See, also Okeke v. L.P.D.C. (2005) 15 NWLR (Pt.949) 471; M.M.S. Ltd. v. Oteju (2005) 14 NWLR (pt.945) 517; Inakoju v. Adeleke (2007) 4 NWLR (pt.1025) 427.
On account of this current state of the law, the appellant’s clamour that it was denied fair hearing over the adjudication of the counter-claim is, with due respect, self-induced. On that premise, the appellant should lick its wounds over the determination of the counterclaim.
That determination is unimpeachable. I will, therefore, not tinker with it.
More than that, the appellant was duly served with the respondent’s counter-claim. I draw the inference from the appellant’s affidavit in support of its motion on notice, contained on pages 44 – 50 of the record. The law gives me the licence to make the inference, See Akpan V. Bob (supra). The appellant, despite that service, did not find it wise and necessary to meet the case of the respondent in the counter-claim by filing a reply. By law, “In the absence of a defence to a counter-claim no issue has been joined, the court is in duty bound in such a situation to enter judgment for the claim in the counter-claim,”
See Dubup V. Kolo (supra)/(1993)9 NWLR (Pt.317) 254 at 270, per Olatawura, JSC. This is another bane that beset the appellant’s seeming strong stance in this appeal. In the end, I resolve this issue (three) against the appellant.
On the whole, having regard to the above analyses, it is obvious that the appellant’s appeal partly bears fruit for it. It succeeds in part.
For clarity, the null proceeding of the court below which did away with the appellant’s claim/suit cannot stand. In the circumstance, I set aside the order or proceeding of the court below made or conducted on 16/06/2003 – striking out the appellant’s claim. Accordingly, I order that the appellant’s claim/suit be tried de novo before another Judge of the High Court of Kano State. For the avoidance of doubt, the proceedings of the respondent’s counter-claim are valid and unhurt by my earlier order I order that parties bear their respective costs of prosecuting and defending the partially successful appeal.
MARY PETER-ODILI, J.C.A.: I agree.
JOSEPH TINE TUR, J.C.A.: My Lord OBANDE F. OGBUINYA, JCA made available an advance copy of the judgment just delivered and I concur in the conclusions arrived at. I shall add the following comments of mine taking together all the issues raised by the parties for determination in this appeal. In doing so I want to be guided by the Supreme Court judgment in Adeigbe & Anor vs Kusimo & Ors (1965) NMLR 284 where Ademola CJN held at page 287 that:
“There seems to be a confusion of thought between jurisdiction and regularity; between the competence of the Court to hear the case and the propriety of a bench who had not heard all the evidence adjudicating on the case.”
This matter was aptly put in a judgment of this court in the Appeal Bagriel Madukolu v. Johnson Nkemdilim (6) where Bairaman F.J., put it thus:
“A court is competent when:-
(1) It is properly constituted as regards members of the bench, and no members is disqualified for one reason or another; and
(2) The subject matter of the case is within its jurisdiction, and there is no feature in the which prevents the court from exercising its jurisdiction; and
(3) That case before the court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.”
He continues:
“Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided: the defect is extrinsic to the adjudication. If the Court is competent, the proceedings are not a nullity; but they may be attacked on the ground of irregularity in the conduct of the trial…”
Having read the proceedings and heard arguments from learned Counsel appearing for the parties I am of the humble opinion that the case came before His Lordship initiated by due process upon the fulfillment of all conditions of law and upon fulfillment of all conditions precedent to the exercise of jurisdiction. The Court was properly constituted by the learned trial Judge presiding. The learned trial Judge had jurisdiction over the subject-matter in dispute. But the judgment can be attacked on the grounds of irregularity in the conduct of the trial as I shall show.
Learned Counsel are advised to distinguish when a Court is competent to adjudicate over a given subject-matter from whence there are irregularities in the course of commencing proceedings or conducting the trial leading to judgment.
The plaintiff took out a writ of summons at the High Court of Justice Kano, Kano State on 14-06-2001 with the following indorsement:
“INDORSEMENT
1. The plaintiff is a financial institution having its Headquarters at Lagos and a Branch office located along Post Office Road Kano within the Jurisdiction of this Court.
2. The Defendant is a limited Liability Company with its office at No. 28E Ado Bayero Road Kano and operating a corporate – current Account No. CB0000048 with the plaintiff at its Kano Branch.
3. The Defendant without any prior approval connived with some officers at the Branch of the plaintiff and obtained N9 Million unathorised over draft from the plaintiff’s branch at Kano.
4. The plaintiff after discovering the authorized (sic) act of the defendant now charged all its necessary interest & commissions prevailing at the time.
5. The Defendant in the course of business 1992 to date substantially paid except for an outstanding sum of N1,919,016.41.
6. INSPITE OF the foregoing, the Defendant now goes ground, blackmailing and insinuating that the plaintiff owes it money as a result of unconventional charges which the Defendant could not verify.
WHEREAS the plaintiff claim against the Defendant is as follows:-
(a) A declaration that the act of the Defendant in conniving and obtaining Direct Credit from the Branch without due authorisation front the plaintiff’s head office is illegal, null and void.
(b) A declaration that the Defendant is not entitle (sic) to any refund whatsoever by reason of his unlawful Act.
(c) Art order of court directing the Defendant to pay the Plaintiff the sum of N1,917,016,41 as unpaid outstanding in the account.
(d) AN ORDER OF Perpetual injunction restraining the Defendant, its Agents privies (sic) or any person acting out on its behalf from further denting the image of the plaintiff within or outside the Banking industry”
No statement of claim accompanied the writ of Summons. A writ of Summons is distinct from a statement of claim. A writ of Summons is a Court’s written order, in the name of a State or other competent legal authority, commanding the addressee to do or refrain from doing some specified act. On the other hand a statement of claim is the plaintiffs initial pleading in a civil case. See Blacks Law Dictionary, 8th edition, pages 1445 and 1641. The writ of Summons taking out by the plaintiff on 14-06-2001 conveyed the following instructions to the defendant:
“YOU ARE HEREBY commanded that within eight (8) days after the service of this writ ort you, inclusive of the date of such Service, you do cause an appearance to be entered for you in the suit of MESSRS BROAD BANK OF NIGERIA LIMITED and in default of you so doing the plaintiff may proceed therein and Judgment may be given in your absence.
Dated this 14th day of June, 2001
Registrar
N.B:
This writ is to be served within 12 Calendar months from the date of issue or if renewed within 6 Calendar months from the date of such renewal and not afterwards. The defendants may enter appearance personally or by a legal Practitioner by handing in the appropriate forms duly completed at the Registry of the High Court of the Judicial Division in which this action is brought or by sending them by registered Post to the Registrar. If the Defendant enters appearance he may also deliver a defence to the Solicitors for the plaintiff within 14 days from the last day of the time limited for appearance unless such time is extended by the Court or Judge otherwise judgment may be entered against him without notice unless he has in. the meantime been served with Summons for judgment.”
Within 8 days of service of the writ of Summons inclusive the date of service the defendant should have personally or through her Solicitor or by registered post caused an appearance to be entered for her in the suit failing which the plaintiff could have proceeded to ask for judgment in her absence.
Judgment can be had on the writ of Summons if the defendant, upon proof of service, did not enter an appearance nor file a defence to the writ.
Order 1 rule 1, 2(1) (a)-(e) of the High Court (Civil Procedure) Rules 1988 applicable to Kano State provides the kind of actions that are to be commenced by writ of Summons. They are as follows:
“1. Subject to the provisions of any Act, Civil Proceedings may be begun by writ, originating summons, originating motion or petition as hereinafter provided.
2 (1) Subject to any provision of an Act or of these rules by virtue of which any proceedings are expressly required to be begun otherwise than by writ, the following proceedings shall be begun by writ, that is to say, proceedings:-
(a) in which a claim is made by a plaintiff for any relief or remedy for any tort or other civil wrong;
(b) in which a claim made by the plaintiff is based on an allegation of fraud;
(c) in which a claim made by the plaintiff for damages for breach of duty (whether the duty exists by virtue of a contract or of a provision made by or under a law or independently of any contract or any, such provision) or where the damages claimed consist of or include damages in respect of death of any person or in respect of personal injuries to any person or in respect of damage to any property;
(d) in which a claim is made by the plaintiff in respect of the infringement of a patent, trade mark, copy, right, intellectual or any other proprietary interest of whatever kind;
(e) in which a claim for a declaration is made by an interested person:
Provided that any proceedings except those that are expressly required to be began otherwise than by writ and which do not fall under any, of the categories listed (a) to (e) :
above, may also be begun by writ. ”
A defendant can ask for further and better particulars to be supplied by the plaintiff upon service of the Writ of Summons before or after entering appearance to enable him file a defence to the writ. See Order 3 rule 1 of the Rules supra. Order 5 rule 10 and 11 of the High Court (Civil Procedure) Rules supra further provides very clearly that:
“10. Before a writ is issued, it shall be endorsed:-
(a) with a statement of claim or if the statement of claim is not endorsed on the writ, with a concise statement of the nature of the claim made or the relief or remedy required in the action begun thereby;
(b) where the claim made by the plaintiff is for a debt or a liquidated demand only, with a statement of the amount claimed in respect of the debt or demand, and for costs.
11 (1) Before a writ is issued it shall be endorsed:-
(a) where the plaintiff sues in a representative capacity with a statement of the capacity in which he sues;
(b) where a defendant is sued in a representative capacity, with a statement of the capacity in which he is sued.
(2) Before a writ is issued in an action brought by a plaintiff who in bringing it is acting by order or on behalf of a person resident outside the jurisdiction, it shall be endorsed with a statement of that fact and with the address of the person so resident-”
Thus, a plaintiff is at liberty to proceed on the writ alone or accompany the writ with a statement of claim. A statement of claim when filed however superscedes the writ of Summons. See Owena Bank (Nig) Ltd vs NSCC Ltd (1993) 4 NWLR (Pt.290) 698 at 714 paragraph “H” and Udechukwu vs Okwuka (1956) 1 FSC 70. But a generally indorsed writ of Summons as in this case cannot be regarded as a pleading or statement of claim. See Murray vs Stephen (1887) 19 GBD 60 and Walls vs Jackson (1883) 23 Ch. D. 204.
The suit first came up on 16-06-2003. The plaintiff and his learned Counsel were absent though twice served hearing notice. The learned Counsel to the defendant prayed that the writ of Summons should be struckout. The learned trial Judge acquiesced and struck out the suit. The learned Counsel next applied for a date to prove the Counter-claim. The learned trial Judge adjourned the suit to 09-07-2003 to enable the defendant prove the counter-claim. The learned trial Judge was right in directing that fresh hearing notice should issue to the Plaintiff.
My humble view is that a counter-claim is a separate cause of action; it is a cross action. See Ogbonna vs Attorney-General of Imo State (1992) SCNJ (Pt.1) 26; Alhaji Yusuf Dan Hansa & Co, Ltd vs Penatrade Ltd (1993) 7 SCNJ (Pt.1) 100 and Order 25 rule 16 of the High court (Civil Procedure) Rules 1988 applicable to Kano State which provides that:
” 16. Where any defendant seeks to rely upon any facts as supporting a right of set-off or counter-claim, he shall, in his statement of defence, state specifically that he does so by way of set-off or counter-claim as the case may be, and the particulars of such set-off or counterclaim shall be given.”
The defendant is at liberty to file a counter-claim and proceed to trial in the absence of a statement of claim.
On 18-07-2003 when the case came up learned Counsel to the defendant/counter-claimant intimated the Court that despite service plaintiff was absent in Court. The Court allowed the counter-claimant to prove her case by calling two witnesses. Learned Counsel closed his case and asked a date for judgment. Judgment was reserved to 21-07-2003- On that date judgment was delivered in favour of the Defendant/Counter-claimant. An application for the setting aside of the judgment in order to allow the plaintiff time to defend the counter-claim, to set aside execution carried out on 30-07-2003 by the bailiffs of the Court, to allow the plaintiff time to file a statement in support of the claim and a defence or reply to the counter-claim, argued on 06-10-2003, was dismissed on 27-10-2003. I have carefully examined the record of proceedings. I have not seen when the defendant took a plea to the writ of Summons filed by the plaintiff before the learned trial Judge fixed the case for mention nor the plaintiff s writ was read and the defendant pleaded not liable. In other words there is nothing on record to show that the suit was mentioned before hearing commenced.
On the very day the suit came up it was struck out on the application of Counsel to the defendant/counter-claimant and the defendant proceeded thereafter to prove the counter-claim on 18-07-2003. The Supreme Court has held in numerous cases that it is wrong for judgment to be entered in favour of a party when the Court had only fixed the case for mention. See Mbadinuju vs Ezuka (1994) 10 SCNJ 109 at 137; Kano vs Bauchi Meat Products Co. Ltd. (1978) 9 & 10 SC 51 and NNN Ltd vs Oteh (1992) 1 NWLR (Pt.237) 626. Striking out of a writ or suit constitutes judgment or an order in favour of the counter-claimant.
My humble opinion is that the learned trial Judge could have proceeded on 16-06-2003 on the indorsed writ without a statement of claim as this is permitted by the Rules of the Court which I have already alluded to. But this would have been regular only if the case had been fixed not for mention but for hearing as the authorities show. Thus the learned trial Judge erred in this circumstance to have struck out the indorsed writ on 16-06-2003 when the case first came for hearing without a mention date. A mention date is to ensure that the parties have all been served the processes and the case is ready for hearing. On the mention day the indorsed writ would have been read and the defendant asked to plead to the claim, to admit or deny liability.
If the defendant had denied liability the parties could have taken a date for hearing. On the hearing date if the plaintiff had not appeared nor was represented the learned trial Judge would have struck out the plaintiff’s writ on the application of learned Counsel to the defendant/counter-claimant. For the reasons given I think the proceedings were so irregular that the order striking our the plaintiffs indorsed writ ought not to be allowed to stand.
The order is set aside and the proceedings should be heard by another judge.
In the case of the counter-claim there is evidence that the plaintiff though served twice did not appear at the hearing. Neither did she file a defence to the counter-claim.Order 35 rule 1(a) and (b) of the High Court (Civil Procedure) Rules, 1988 provides that:
The pleadings in an action are deemed to be closed:-
(a) at the expiration of 30 days after service of the reply or, if there is no reply but only a defence to counter-claim, after service of the defence to counter-claim; or
(b) if neither a reply nor a defence to a counter-claim is served, at the expiration of 30 days after service of the defence.”
In the Court below there was no reply or defence to the counter-claim as at the time the defendant led evidence to prove the counter-claim.Order 37 rule 2 and 3 of the Rules supra provides that:
“37 (2) If, when a trial is called on the plaintiff appears, and the defendant does not appear’ then the plaintiff may proof (sic) his claim, so far as the burden of proof lies upon him.
(3) If, when a trial is called on the defendant appears and the plaintiff does not appear, the defendant, if he has no counter-claim, shall be entitled to judgment dismissing the action, but if he has a counter-claim then he may prove such counter-claim, so far as the burden of proof lies upon him.”
Therefore the learned trial Judge was right in permitting the Defendant/counter-claimant to prove the counter-claim on 18-07-2003.
Learned Counsel to the appellant has made heavy weather of the provisions of Order 40 rule 2 and 3 of the High Court (Civil Procedure) Rules, 1988. The Order and rules provides as follows:
“40 (2) If the court reserved judgment at the hearing, parties to the suit shall be served with notice of to attend and hear judgment, unless the Court at the hearing states the day on which judgment will be delivered, in which case there shall be no further notice.
(3) All parties shall be deemed to have notice of the decision or judgment if pronounced at the hearing, and all parties served with notice to attend and hear judgment shall be deemed to have notice of the judgment when pronounced. ”
Be it noted that notwithstanding service of hearing notices the plaintiff/appellant never put up appearance hence learned Counsel to the defendant/counter-claimant proceeded to prove the counter-claim on 18-07-2003. The learned trial Judge fixed judgment on 21-07-2003. My humble opinion is that the provisions of Order 40 rules 2 and 3 of the Rules would have applied if the appellant/plaintiff had appeared at the hearing but the judgment was reserved, namely, no date was fixed for the judgment. But where a date was fixed for judgment on 21/07/2003 there was no need to serve the plaintiff/appellant with fresh hearing notice.
I have therefore come to the conclusion that the learned trial judge was right to have delivered judgment on 21/07/2003 in favour of the defendant/counter-claim and I dismiss this head of compliant.
I abide by the orders of my learned brother OBANDE F. OGBUINYA, JCA.
Appearances
S.C. Igundbor, EsqFor Appellant
AND
I.A. Yusuf, EsqFor Respondent
