RIGHT CHOICE ELECTRONICS LTD. V. KELVIN FESTUS INTERNATIONAL LTD
(2012)LCN/5642(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 6th day of November, 2012
CA/C/173/2010
RATIO
APPLICATION: AN APPLICANT IS BOUND BY THE RELIEFS ON A MOTION PAPER
An applicant is bound by the reliefs on the motion paper. See Okoya vs. Santili (1990) 3SCNJ 83 at 126-127; commissioner for works Benue state vs. Devcom construction Co. Ltd. (1988) 3 NWLR (pt.83) 407 at 420.PER JOSEPH TINE TUR, J.C.A.
APPLICATION: THE JUDGE IS BOUND BY THE RELIEFS SOUGHT IN AN APPLICATION
The learned trial Judge is also bound to grant, upon the success of any application or claim, only the reliefs sought and proved by a party. See Ekpenyong vs. Nyong (1975) SC 71; Obayagbona vs. Obazee (1972) 5 SC 247 at 254.PER JOSEPH TINE TUR, J.C.A.
COURT: WHEN CAN IT BE SAID THAT THE COMMON COURSE OF BUSINESS HAS BEEN FOLLOWED BY THE COURTS
The court may presume that the common course of business has been followed in any particular case. When any judicial or official act is shown to have been done in a manner substantially regular, it is presumed that formal requisites for its validity were complied with. See Sections 167(a) and 168(i) of the Evidence Act, 2011.PER JOSEPH TINE TUR, J.C.A.
WHAT IS NOT DENIED IS DEEMED ADMITTED
What is not denied is deemed admitted.PER JOSEPH TINE TUR, J.C.A.
SERVICE: WHETHER THE SERVICE OF A COURT PROCESS OR ORIGINATING PROCESS BY A COURIER COMPANY IS DEEMED PROPER SERVICE
Service of ‘Originating” or “Court process” by Courier company which term includes writs of summons under the Undefended List Procedure (see Order 1 rule 2 of the High Court (Civil Procedure) Rules, 2009) is provided for under the Rules of the court. Once proved this constitutes proper service under Order 11 rule 1 and 13(1) of the High Court (Civil Procedure) Rules, 2009.PER JOSEPH TINE TUR, J.C.A.
SERVICE: PERSONAL SERVICE: WHAT IS PERSONAL SERVICE
“Personal service” means “1. Actual delivery of the notice or process to the person to whom it is directed – Also termed actual service… 2. An act done personally by an individual.”PER JOSEPH TINE TUR, J.C.A.
SUBSTITUTED SERVICE: MEANING
The noun ‘substituted’ means, “one who stands in another’s place.”
“substitution” is defined as “1. A designation of a person or thing to take the place of another person or thing. 2. The process by which one person or thing takes the place of another person or thing.” see Blacks Laws Dictionary, 8th edition, pages 1470 and 1471.
On the other hand the phrase ‘substituted service” is, that which is “allowed by law in place of personal service, such as service by mail – Also termed constructive service.” See Blacks Law Dictionary, 8th edition, pages 1180 and 1399.PER JOSEPH TINE TUR, J.C.A.
JUSTICE
MOHAMMED LAWAL GARBA justice of The Court of Appeal of Nigeria
UZO I. NDUKWE-ANYANWU justice of The Court of Appeal of Nigeria
JOSEPH TINE TUR justice of The Court of Appeal of Nigeria
Between
RIGHT CHOICE ELECTRONICS LTD.Appellant(s)
AND
KELVIN FESTUS INTERNATIONAL LTDRespondent(s)
JOSEPH TINE TUR, J.C.A. (Delivering the Leading Judgment): Kelvin Festus International Ltd. was the plaintiff before the High court of justice, Uyo, Akwa Ibom state but is now the Respondent in this appeal. The plaintiff/Respondent of No.59 Oron Road, Uyo, Akwa Ibom state allegedly paid for diverse electronics to be supplied by Right choice Electronics Ltd., the defendant in the lower Court but now Appellant of Aba shopping centre complex, opposite No. 54 Asa Road, Aba, Abia state. This was on or about the 7th day of August, 2009. The total consideration was N626,000.00 (Six hundred and twenty six thousand Naira) only. Payment was lodged into the appellant’s account at the United Bank for Africa. Despite repeated demands the appellant would neither supply the electronics nor refund the money. On 29th September, 2010 the Respondent took out a writ of summons supported by affidavit under the undefended List Procedure praying for the following reliefs against the appellant
“1. The sum of N626,000.00 (Six hundred and twenty six thousand Naira only being the money paid to the Defendant for supply of goods which he never did.
2. Interest on the said sum at the rate of 21% per annum from the date of judgment until the total liquidation of the debt.
The writ was issued by C.I. Odo Esq. whose address for service is Elizabeth Chambers C/O No.19 Nepa Line, Uyo, Akwa Ibom state, solicitors to the Plaintiff.”
The Respondent further brought an exparte application on the same day supported by affidavit praying for the following reliefs:
“1. An order for leave to issue and serve writ of summons and other court processes in this suit on the Defendant outside the jurisdiction of this Court at Market Masters Building, Aba shopping centre complex, Opposite No.54 Asa Road, Aba Abia State, Nigeria.
2. An order placing the writ of summons so issued under the undefended List in favour of the Applicant to recover a liquidated debt and to mark the writ of summons accordingly.
3. An order for leave to serve the writ of summons and other court processes in this suit on the Defendant/Respondent at its corporate head office at Masters Building, Aba shopping centre complex, opposite No.54 Asa Road, Aba Abia State outside the jurisdiction of this court, through courier services of TNT Courier services of No.2 Oron Road, Uyo, Akwa Ibom state.
4. AND for such further order(s) as this Honourable Court may deem fit to make in the circumstances of this case.”
The learned trial Judge heard the application and granted the reliefs. The orders were enrolled by the Assistant Chief Registrar of the High Court on the same 29th September, 2010 as follows:
“ORDER
Upon this Motion Exparte coming before this Honourable court:
AND AFTER HEARING C.I. Odo Esq. Of counsel for the plaintiff/applicant praying court for the orders as stated on the face of the motion paper.
AND UPON THE COURT having regard to the argument by Counsel and the facts of the case as disclosed in the affidavit in support of the application.
IT IS HEREBY ORDERED that the Writ Of Summons as shown on Exhibit “C” attached to the affidavit in support of the application be issued, placed on the undefended List and marked accordingly.
It is ALSO ORDERED that the writ of Summons and other relevant processes in this case be served on the Defendant outside the jurisdiction of this Court at Masters Building, Aba Shopping Centre Complex, opposite No.54 Asa Road, Aba, Abia State through a reputable Courier Service.
IT TS FURTHER ORDERED that the case be and is hereby adjourned to 2nd day of December, 2009 for mention.
ISSUED AT UYO UNDER THE SEAL OF COURT AND HAND OF THE PRESIDING JUDGE 16TH DAY OF NOVEMBER, 2009.
EMMANUEL E. ESSIEN ASST. CHIEF REGISTRAR.”
When the Writ of Summons and the enrolled orders were served on the appellant their learned Counsel did not file a Notice of Intention to defend the suit supported with an affidavit disclosing a defence on the merit as provided under Order 23 of the Akwa Ibom State Civil Procedure Rules, 1989. The appellant rather filed an application on notice praying for the following reliefs:
“1. An order setting aside the service of the processes in this suit on the defendant.
2. An order to set aside the exparte order for substitution service made on the 16th November, 2009.
AND FOR SUCH further order(s) as this Honourable court may deem fit and expedient to make in the circumstances.”
The affidavit in support of the motion was deposed to by Ogochukwu Mgbii, a Director of the appellant.
Paragraphs 7-7 of the affidavit reads thus:
“1. That I am a Director in the Defendant Company.
2. That I have the consent and authority of other Directors as well as the Defendant in this suit to depose to the affidavit.
3. That the Defendant is a registered Limited Liability Company registered with the corporate affairs commission.
4. That I was informed by the Defendant Counsel Dr. Njoku U.C. Njoku, and I verily believe him that the writ of summons and other processes of court cannot be served on the Defendant on record by substituted means.
5. That the Honourable court granted an order for substituted (sic) on the 16th November, 2009.
6. That attached herewith and marked Exhibit “A” is a copy of the said court order.
7. That I swear to the affidavit in good faith believing the contents to be true and correct in accordance with the oaths Act, 2004.”
Having heard argument from learned counsel to the parties His Lordship dismissed the application on 10th August, 2010 on the grounds that the appellant was not served by substituted means. In the absence of a Notice of Intention disclosing a defence on the merit, His Lordship entered judgment in favour of the Respondent. Being aggrieved with the ruling the appellant appealed to this court on 29th September, 2010 on four grounds.
The learned counsel to the appellant filed Appellant’s brief on 16th March, 2011. A Reply brief was filed on 7th June, 2011 by the appellant. The Respondent’s brief was filed by her learned counsel on 1st April, 2011. When the appeal came up for hearing on 27th September, 2012 the Court was reliably informed by learned Counsel to the Respondent of the death of Dr. Njoku U.C. Njoku Esq. learned Counsel to the appellant hence his non-appearance in Court. In the absence of the appellant’s representative in Court the Appellant’s brief and Reply brief were deemed adopted and duly argued. See order 18 rule 9(4) of the court of Appeal Rules, 2011. The learned counsel to the Respondent also adopted the Respondent’s brief of argument. Learned counsel to the appellant formulated three issues for determination by this Court to wit:
“1. Whether the learned trial judge was right when he held that service on a company by a substituted means to wit through a Courier service is proper service.
2. Whether the learned trial Judge was right not to follow the Supreme Court decisions in Mark vs. Eke (2004) 5 NWLR (Pt.865) page 54 R.6 (Judicial precedent).
3. Whether the learned trial Judge was right in dismissing the preliminary objection of the appellant and enter final judgment as per writ of summons of the claimant/Respondent the same day without giving the defendant/appellant opportunity to file their notice of intention to defend.”
The Respondent’s issues for determination were formulated in the brief as follows:
“1. Whether the learned trial Judge was right when he held that service of court process on the Defendant/Appellant by Courier company is a proper service.
2. Whether the learned trial Judge was right in dismissing the preliminary objection of the appellant and enter final judgment for the claimant/Respondent the same day without giving the Defendant/Appellant opportunity to file their notice of intention to defend.”
ISSUE ONE AND TWO: APPELLANT’S COUNSEL’S ARGUMENT
I shall consider issues one and two together since that is how they were argued by the Respondent in her brief.
The learned Counsel to the appellant’s argument in issue one and two is that service of process is governed by statute or rules of Court, citing Blacks Law Dictionary, 6th edition page 1429 and Kida vs. Ogun Mola (2006) 13 NWLR (Pt.997) 377.That as the service of the originating summons on the appellant was by substituted process this was erroneous in law. The appellant was not under any obligation to file any notice of Intention to defend the suit but to promptly bring an application to set aside the service. Learned counsel cited the authority of the supreme court in Mark vs. Eke (2004) 5 NWLR (pt.865) 54 ratio 6 as holding that an order for substituted service cannot be made on a registered company. It was argued that the procedure of substituted service is not applicable to a registered company. That proper service could not be waived by any party, citing F.C.M.B. Plc vs. N.I.M.R. (2009) 9 NWLR (pt.1147) ratio 7.
Counsel contended that the learned trial Judge erred to have declined to follow the Supreme Court decision in Mark vs. Eke (2004) 5 NWLR (pt.865) 54, citing Tsamiya vs. Bauchi Native Authority (1950) SCNLR 220; Federal Administrator-General vs. Adeshola (1960) WNLR 56; Salako vs. Salako (1965) LLR 136; Afribank (Nig.) Plc vs. Geneva (1999) 12 NWLR (Pt.652) 567. It will amount to judicial anarchy and legal confusion if lower courts refuse to be bound by the judgments of the Supreme Court. This court should set aside the ruling of the learned trial Judge.
RESPONDENT’S REPLY:
Learned Counsel to the Respondent replied that there was no application by the Respondent before the lower court for service of the processes on the appellant to be by substituted means, hence the decision in Mark vs. Eke supra did not apply. Learned counsel referred to order 12 rule 4 of the Akwa Ibom State High Court (Civil Procedure) Rules, 1989 governing suits under the undefended List procedure and section 78 of the companies and Allied Matters Act, 1990. It was argued that these provisions governs the service of processes on registered companies such as the appellant. Counsel urged that this appeal should be dismissed.
ISSUE THREE: APPELLANT’S ARGUMENT
Learned Counsel to the appellant contended that the suit was initiated under the Undefended List procedure.
When service of the process on the appellant was defective, the appellant promptly protested, citing Dickson Okon vs. Okoli (2005) 16 NWLR (pt.846) 397 and F.C.M.B. Plc vs. N.I.M.R. (2009) NWLR (pt.1147). Counsel contended that once the issue of proper service was promptly raised by the appellant, this touched on the issue of jurisdiction which had to be determined by the lower Court before proceeding to a hearing and determination of the suit on the merit. It is only when a party had been properly served that he shall file a Notice of Intention to defend the suit, citing Ntekim vs. Okon Local Government (2010) NWLR (Pt.1219) 209. Counsel argued that having dismissed the application to set aside the service on the appellant on 10th August, 2010 in the absence of Counsel or a representative of the appellant the learned trial Judge should have allowed the appellant time to file a Notice of Intention to defend the suit. That the trial breached the right to fair hearing under section 36(1) of the constitution of the Federal Republic of Nigeria, 1999. The court was urged to set aside the judgment and allow the appeal.
RESPONDENT’S REPLY:
The learned Counsel to the Respondent drew this court’s attention to the fact that a suit commenced under the Undefended List procedure required the appellant to file within the prescribed time a Notice of Intention to defend the suit supported by an affidavit disclosing a defence on the merit. Being a special procedure, the Court had the option to proceed to judgment on 10th August, 2010 when the application to set aside the service was dismissed but there was no Notice of Intention to Defend the suit. Agro Miller Ltd. vs. UCMB (1997) 10 NWLR (Pt.525) 469 at, 477-478: Monguno vs. Bluewhales & Co. & 2 Ors. (2011) 2 NWLR (Pt.1231) 275 at 5310 and Nigeria ports Authority vs. Eyamba & Ors. (2005) 12 NWLR (Pt.939) 448-449 were cited in argument.
Learned Counsel further drew the Court’s attention to the ruling of 10th August, 2010 wherein the appellant was not in court nor represented by counsel. In the absence of a Notice of Intention to Defend the suit, it was argued that the learned trial Judge acted judiciously to have entered judgment in favour of the Respondent. Counsel urged this Court to dismiss the appeal and affirm the judgment of the trial Court.
REASONS FOR JUDGMENT:
On 21st October, 2010 the appellant filed an application praying for leave that this Court of Appeal should allow her to depart from the Rules of this court to enable her compile the records of appeal. The appellant further prayed that the records so compiled, annexed, and marked as Exhibit “A” be deemed as properly filed and served on the Respondent. Both prayers were granted on 3rd February, 2011. This appeal is being determined on the records compiled by the appellant without objection from the learned Counsel to the Respondent.
ISSUE ONE AND TWO:
The writ of summons was taken out by the Respondent in the High Court of justice, Akwa Ibom State, Uyo on 29th September, 2010. The then applicable Rules of the Court was the High court (Civil Procedure) Rules, 1989. But in the course of proceedings the Government of Akwa Ibom state enacted the High court (civil Procedure) Rules, 2009 which came into effect on 1st day of December, 2009.
The argument of Counsel at the lower Court, and the ruling and judgment of the learned trial Judge were delivered on 10th August, 2010 under the 2009 Rules of that Court. This appeal shall be determined by this Court under the High Court (Civil Procedure) Rules, 2009. Order 7 rule 1(1) and (2) of the Rules supra provides that:
“1(1) Service of originating process shall be made by a Sheriff, Deputy Sheriff, Bailiff, special Marshal or other officers of the court. The Chief Judge may also appoint and register any Law Chambers, Courier Company or any other person to serve Court processes.
(2) A person given the responsibility of serving court processes under sub-rule I of this Rule shall be called a process server.
(3) xxx
2. The process server shall serve an originating process by delivering to the party to be served a copy of the process duly certified as prescribed by order 6 rule 2(3).
3. xxx
4. All processes in respect of which personal service is not expressly required by these Rules or any applicable law shall be sufficiently served with an adult person resident or employed at the address for service given under Order 4 rule 6.
5(1) where personal service of an originating process is required by the Rules or any applicable law and a Judge is satisfied that prompt personal service cannot be effected, the Judge may upon application by the claimant make such order for substituted service as may seem just.
(2) Every application to the Judge for substituted service shall be supported by an affidavit setting forth the grounds upon which the application is made.
xxx
9(1) subject to any statutory provision regulating service on a registered company corporation or body corporate, every originating process or other process requiring personal service may be served on the organization by delivery to a direction secretary, trustee or other senior, principal or responsible officer of the organization, or by leaving it at the registered, principal or advertised office or place of business of the organization within the jurisdiction.
(2) Where service under sub-rule 1 of this Rule cannot be effected, the Judge upon application of the claimant may make such order of substituted services as in Rule 5(1) of this Order.
xxx
1(1) After serving any process, the process server shall promptly depose to and file an affidavit setting out the fact, date, time, place, mode of service and description of the process served and shall, except in the circumstance mentioned in Rules 5 and 12 of this order, exhibit the acknowledgment of service.
(2) After service, the affidavit shall be prima facie proof of service.
(3) Where service was effected by a courier company or such organization, production of a delivery note or waybill by the process server or company duly signed by the addressee or his agent or servant, shall be prima facie proof of service of the process.”
Section 78 of the Companies and Allied Matters Act Cap-C20 Laws of the Federation of Nigeria vol.3, 2004 page C20-56 reads thus:
“78. SERVICE OF DOCUMENTS ON COMPANIES:
A Court process shall be served on a company in the manner provided by the Rules of Court and any other document may be served on a company by leaving it at, or sending it by post tom, the registered office or head office of the company.”
From the exparte application and reliefs granted the plaintiff/Respondent at the lower Court which I have reproduced, no where did the Respondent apply that the processes under the Undefended List procedure should be served on the appellant by way of substituted service
“…at its corporate head office all Masters Building, Aba shopping centre complex, opposite 54 Asa Road, Aba, Abia state outside the jurisdiction of this court…”substituted service was not one of the a prayers in the motion exparte of 29th October, 2009. The specific prayer in the motion paper was that the appellant should be served “… through Courier services of TNT Courier services of No.2 Oron Road, Uyo, Akwa Ibom State.”
That was the relief the learned trial Judge granted the Respondent on 16th November, 2009.
An applicant is bound by the reliefs on the motion paper. See Okoya vs. Santili (1990) 3SCNJ 83 at 126-127; commissioner for works Benue state vs. Devcom construction Co. Ltd. (1988) 3 NWLR (pt.83) 407 at 420.
The learned trial Judge is also bound to grant, upon the success of any application or claim, only the reliefs sought and proved by a party. See Ekpenyong vs. Nyong (1975) SC 71; Obayagbona vs. Obazee (1972) 5 SC 247 at 254.
The reliefs granted by the learned trial Judge as evidenced in the enrolled order by the Assistant chief Registrar on 16th day of November, 2009 are not at variance with the reliefs the applicant sought in the exparte application. It is the learned Counsel to the appellant who suo motu introduced and canvassed the issue of substituted service in argument in the lower court and before the court of Appeal.
Furthermore, order 7 rule 1 and 13(3) of the High Court (Civil procedure) Rules, 2009 empowers the Chief Judge to employ his judicial discretion to appoint and register any Law Chambers, Courier Company or any other person to effect personal service of court processes. The onus is on the appellant to show that the courier company that effected service of the originating processes was not duly appointed or registered by the chief Judge of Akwa Ibom State to carry out such a quasi-judicial exercise or function.
The court may presume that the common course of business has been followed in any particular case. When any judicial or official act is shown to have been done in a manner substantially regular, it is presumed that formal requisites for its validity were complied with. See Sections 167(a) and 168(i) of the Evidence Act, 2011.
Furthermore, prayer 3 on the exparte application described “Masters Building, Aba shopping centre Complex, opposite No.54 Asa Road, Aba Abia State” where service of process was to be effected as the Defendant/Respondent’s “Corporate head office.” There is no evidence to rebut this assertion.
What is not denied is deemed admitted.
Service of ‘Originating” or “Court process” by Courier company which term includes writs of summons under the Undefended List Procedure (see Order 1 rule 2 of the High Court (Civil Procedure) Rules, 2009) is provided for under the Rules of the court. Once proved this constitutes proper service under Order 11 rule 1 and 13(1) of the High Court (Civil Procedure) Rules, 2009.
“Personal service” means “1. Actual delivery of the notice or process to the person to whom it is directed – Also termed actual service… 2. An act done personally by an individual.” The noun ‘substituted’ means, “one who stands in another’s place.”
“substitution” is defined as “1. A designation of a person or thing to take the place of another person or thing. 2. The process by which one person or thing takes the place of another person or thing.” see Blacks Laws Dictionary, 8th edition, pages 1470 and 1471.
On the other hand the phrase ‘substituted service” is, that which is “allowed by law in place of personal service, such as service by mail – Also termed constructive service.” See Blacks Law Dictionary, 8th edition, pages 1180 and 1399.
The argument of Counsel in this appeal calls for a close examination of the facts upon which the case of Mark vs. Eke (2004) 5 NWLR (Pt.865) 54 was determined by the Supreme Court. This will enable the Court to see whether the decision should have been followed and applied by the lower Court to set aside the service of the originating process on the appellant.
In that case Gabriel Eke was the plaintiff while the defendants were (1) Kalu Mark and el Mar-Prik Industries Nig. Ltd. The Plaintiff instituted the suit under the Undefended List Procedure pursuant to order 23 of the High Court (Civil Procedure) Rules, 1998 of Imo State applicable to Abia State claiming N1,992,255.16k (one million, nine hundred and ninety two thousand, two hundred and fifty five Naira sixteen kobo). The writ of summons and the supporting affidavit was placed on the undefended cause List. By an exparte application supported by an affidavit the plaintiff applied on 8th November, 1993 and the Court granted him leave to serve the writ of summons and all other relevant court processes on the defendants by substituted means, namely, by “… pasting same at the door of the office of the defendants at No.102 school Road, Aba, or by delivering same on any adult employee of the 2nd defendant at No.102 School Road, Aba.. The learned trial Judge granted the application, “…On 23rd November, 1993 a bailiff of the High court, Aba deposed to an affidavit to that effect, namely, that, “…on the 23rd day of November, 1993 at 11:30am, I pasted upon the defendant’s doors the writ of summons/statement of claim, a true copy whereof hereunto annexed issued out of this court, High court Registry, Aba upon the defendant by pasting the same personally to the defendant’s address No.102 School Road, Aba…” The return date ordered by the Court was 7th December, 1993.
The plaintiff’s counsel moved the court for judgment on 16th December, 1993 since the defendants were not in Court on that day. The prayer for judgment was granted because, as the learned trial Judge held, upon service of the writ on 23rd November, 1993 none of the defendants filed a Notice of Intention to defend the suit. Execution was levied against the defendants on Friday, 7th January, 1984 in the presence of the plaintiff, Court bailiffs and several police men. The defendants applied on 10th January, 1994 to have the judgment and execution set aside on the grounds they were never served with the writ of summons. That they only became aware of the suit when the writ of fifa was served on them. They further prayed for stay of execution and the setting aside of the writ of execution and the release of their attached properties. The defendant deposed to an affidavit in which he denied service of the Court processes; that they were never pasted at the doors of their offices. The claim was also not only completely denied but the 1st defendant went on to explain the circumstances leading to their joint venture and how the matter was mutually settled and terminated. The plaintiff filed a counter-affidavit to show that the defendants were served with the originating summons by pasting same on the door of their office at No.102 School Road, Aba. A copy of the affidavit of service sworn to by the bailiff was attached to the counter affidavit.
Though there were conflicting affidavits as to whether the defendants were actually served the processes, the learned trial Judge heard oral argument and refused the application on the grounds that a judgment under the undefended List procedure being one on the merit, only an appeal court could set it aside, citing UTC (Nig.) Ltd- vs. chief Pamotei (l989) 2 NWLR (pt.103) 224 at 299. The learned trial Judge also refused to set aside the substituted service since according to him the mode of service was covered by order 12 rule 5 of the High court (Civil Procedure) Rules, 1989 which provided that:
“(1) where it appears to the court (either after or without an attempt at personal service) that for any reason personal service cannot be conveniently effected, the Court may order that service be effected:
(a) By delivering of the document to some adult inmate at the usual or last known place of abode or business of the person to be served…”
The defendant’s appeal to the court of Appeal was dismissed on 6th March, 1997. The appellants were not satisfied hence they further appealed to the Supreme.
Having heard learned counsel in argument and read the reasoning adumbrated by the trial Court and the Court of Appeal, the Supreme Court in allowing the appeal held at page 77 paragraph “H” to page 78 paragraphs “A” to “F” as follows:
“…both the court below and the trial court were in error to have held that the trial court had no power to set aside the judgment because the judgment in this matter was a judgment obtained under the undefended list where as in this case the aggrieved defendant complains of non-service of the process, he is raising a fundamental issue which goes to the jurisdiction and the competence of the court to enter the judgment. In such a case, where the defendant proves non-service on him, the whole proceedings become a nullity and the trial court has the jurisdiction to set it aside. It needs to be emphasized, that it is now settled law that the failure to serve process, where the service of process is required such as in this case, is a failure which goes to the roots of the case; see Craig vs. Kanssen (1943) KB 256 at 262. It is the service of the process of the court on the defendant that confers on the court the competence and the jurisdiction to adjudicate on the matter. It is clear that due service of the process of the court is a condition precedent to the hearing of the suit. Therefore if there is a failure to serve the process, where the service of the process is required the person affected by the order, but not served with process, is as mentioned above entitled ex debito justitiae to have the order set aside as a nullity. See Nbadinuju vs. Ezuka (1994) 8 NWLR (Pt.364) 5. I accordingly resolve issue number one against the respondent…”
In this appeal learned Counsel to the appellant conceded in the appellant’s brief that the appellant had been served the processes as follows:
“My Lords, Appellant submits that he is not denying service rather his contention is that as a company registered under the Corporate Affairs Commission, he is not properly served for there is a procedure to serve processes of court to a company which the Respondent did not comply with.
Refer My Lords to section 78 of CAMA.
What the Defendant/Appellant is contesting is improper service. There is a world of difference between non-service and improper service. See the case of NEPA vs. Uruakpa (supra).”
See paragraph 2.00 of appellant’s brief.
On when there was conflict of affidavit as to whether service was actually effected the supreme Court reasoned at page 79 paragraphs “B” to “D” in the case of Mark vs. Eke supra as follows:
“Now, where a process has been served, it is necessary for the court to have before it evidence of that fact. service of the process especially the originating process is an essential condition for the court to have the competence or the jurisdiction to entertain the matter. Further failure to comply with this condition would render the whole proceedings, including the judgment entered, and all subsequent proceedings based therein, wholly irregular, null and void. That is why the proof of the service of the process on a defendant is very fundamental to the issue of the jurisdiction and competence of the Court to adjudicate.”
Where a limited liability company disputes that the processes were not served or were not served at her registered office, the Supreme Court held in Mark & Anor. vs. Eke supra at page 79 paragraph “E” to page 80 paragraph “A”-“E” that:
“…Now, the affidavit of service sworn to by the bailiff shows that there are two defendants, one an individual, (the 2nd appellant); the first appellant and two, a limited liability company; the bailiff stated that he effected the service by substituted means. He Claims, “I pasted upon the defendant’s doors…” In my view, this is not good enough. The affidavit of service must be a proper affidavit of service proving due service of the writ. The second appellant as the 2nd defendant is a limited liability company. The mode of service on a limited liability company under the relevant rules of Court is different from service of process on a natural person such as the 1st appellant The Companies and Allied Matters Act by Section 78 makes a provision as how to serve documents generally or any company registered under it. By this, a court process is served on a company in the manner provided by the rule of court. A service on a company, as this provided, must be at the registered office of the company and it is therefore bad and ineffective if it is done at a branch office of the company; see Watkins vs. Scottish imperial insurance Co. (1889) 23 QBD 295.
The procedure is by giving the writ to any director, trustee, secretary or other principal officer at the registered office of the company or by leaving the same at its office. That is why, I am of the view that the affidavit of service by substituted means sworn to by the bailiff is not enough to prove that 2nd appellant was duly served with the originating summons. I cannot see the need or the necessity of making a substituted service on a corporation such as the 2nd appellant See Ben Thomas Hotels Ltd. vs. Sebi Furnitures Ltd. (1989) 5 NWLR (Pt123) 529. The need for substituted service arises because personal service cannot be effected and since personal service can only be effected on natural or juristic persons, the procedure for substituted service cannot be made to a corporation like the 2nd appellant herein. Sloman vs. Government of New Zealand (1875) 7 CPD 565; Hillyard vs. Smyth (1889) 36 WR 7. So, no matter how you look at it, the 2nd defendant, the 2nd appellant herein, could not be said to have been properly served. The affidavit sworn by the bailiff could not be sufficient proof of service of the process on the 2nd appellant. So in the situation such as this, there is even no need for the trial Judge to call for oral evidence to resolve the contradictory positions taken by the parties, the respondent had offered no credible evidence to show that the 2nd appellant was served with the originating process. Therefore based on the available credible evidence the 2nd appellant had shown that it had not been served with the originating process.
Regarding the 1st appellant upon whom substituted service was effected by the bailiff in Eke vs. Mark supra the Supreme Court held where there are irreconcilable conflicts in the affidavit of service of process at page 80 paragraph “F” to page 81 paragraphs “A” to “E” of the judgment as follows:
Now with reference to the 1st appellant, a natural and juristic person, an order of substituted service of the process could be ordered where it is found necessary to adopt the procedure. The procedure for substituted service’, is invoked where the defendant is untraceable or is evading service. But the rates provide that the court must be satisfied, that personal service cannot be conveniently affected. Where it is necessary to adopt the procedure of substituted service, the plaintiff makes an application to the court by an ex-parte motion. The affidavit in support should state the grounds on which the application is based. The abortive efforts to personal service must also be recounted. The record of the proceedings in the instant does include the application for the order. In any event, as shown, the bailiff swore that he pasted the writ on the door of the premises of the appellants, against that is the affidavit sworn to by the 1st appellant, that no such thing was done and that he only became aware of the existence of the suit when the respondent went to attach certain goods in the execution of the purported judgment. The trial Court was clearly faced with two conflicting affidavit on the issue of service, on the other hand, the appellants claimed not to have been served and the respondent by the bailiff’s affidavit assert that there was service, in such a situation in my view, the trial Court should have called for oral evidence to enable him determine the truth. See National Bank vs. Are Brothers (1977) 6 SC 97; Pharmacists Board vs. Adebesin (1975) 5 SC 43; Mbadugna vs. Nwosu (1993)9 NWLR (Pt.315) 110. It is now elementary law that in the face of direct conflict on crucial and material facts, the learned trial Judge must call for oral evidence from the defendant or such other witnesses as the parties may call. Both the learned trial Judge and the lower Court were in error to have glossed over the issue and adjudged the issue as an after thought. The lower court was also in error to have held that there were sufficient facts upon which the court could come to the conclusion that the appellant were served, when the lower court failed to mention the other pieces of evidence. Such a finding is perverse since it is not supported by any evidence on printed record. I am of the view that there was no material available to enable the lower court resolve the differences as contained in the two affidavits, recourse must be had to calling oral evidence to arrive at the truth whether the appellants were served with the originating process or not, I accordingly resolve the 2nd and 5th issues in favour of the appellants.”
The case of Mark vs. Eke supra has no application to the facts before the lower Court. The learned trial Judge was not bound to follow that decision. It is the ratio decidendi of a judgment of a superior Court that binds lower courts. The facts of the case and the reasoning upon which the decision was arrived at are the material factors to be considered. Where the facts and reasoning are not on all fours or similar, there may be room for the lower Court to distinguish what a learned Counsel presents or cites as binding precedent. The lower Court will not be bound to follow such a decision or precedent. In Osborne to Rowlett (1880) 13 Ch. D 774 at 785 Jessel, M.R. held that:
“…The only thing in a Judge’s decision binding as an authority upon a subsequent Judge is the principle upon which the case was decided.”
The above dicta of Jessel, M.R., is predicated on the judicial belief that “like cases should be treated alike”
See Dias: Jurisprudence, 4th edition, page 164; Adetoun Oladeji (Nig.) Ltd. vs. N.B. Plc (2007) 5 NWLR (Pt.1027) 415 and Fawehinmi vs. Abacha (2000) 4 SC (Pt.11) 1; Board of Customs & Excise vs. Bolavinwa (1968) NMLR 350. A court of law should not blindly adhere to judicial precedent without carefully examining the authority and comparing it with the facts in the suit under consideration. See Pelfaco vs. W.A.O.S. Ltd. (1997) 10 NWLR (Pt.524) 222 at 225.
I hold that in this appeal, the learned trial Judge was not bound to follow the judgment of the Supreme Court in Eke vs. Mark supra. I resolve issues one and two in favour of the Respondent.
ISSUE THREE:
In the determination of the question raised in issue three I shall draw attention to order 11 rule 8(1) of the High Court (Civil Procedure) Rules, 2009, Akwa Ibom State which enjoins a claimant in a claim to recover a debt or liquidated money demand to support the application for the issuance of the writ of summons with an affidavit setting forth the grounds upon which the claim is based and stating that in the deponent’s belief there was no defence thereto. Order 11 rule 8(2) then prescribes what the Court shall do at that stage:
“(2) The Court shall if satisfied that there are good grounds for believing that there is no defence thereto, enter the suit for hearing in what shall be called the “undefended List”, and mark the writ of summons accordingly, and enter thereon a date for hearing suitable to the circumstances of the particular case.”
A hearing date should be fixed at the time the Court is satisfied by the claimant that there is no defence to the claim. Thereafter the burden is on the party served to show why the suit should not be placed on the Cause List or heard as “undefended” on the date entered for hearing.
Order 11 rule 10(1) of the 2009 Rules further stipulates the time as to when the party served the writ of summons shall deliver to the Registrar a Notice of Intention to defend the suit and an affidavit disclosing a defence on the merit:
10(1) If the party served with the writ of summons and affidavit delivered to the Registrar, before the day fixed for hearing, a notice in writing that he intends to defend the suit, together with an affidavit disclosing a defence on the merit, the Court may give him leave to defend upon such terms as the Court may think just.
(2) xxx.”
A Notice of Intention to defend the suit and an affidavit disclosing a defence on the merit is to be delivered in the Registry of the court “before the day fixed for hearing” the summons. See order 11 rule 10(1) supra.
In this appeal when the Court granted leave on 16th November, 2009 and entered the writ of summons on the cause List as ‘undefended’, rather than fixing a day for hearing the summons, the Court’s enrolled Order clearly shows the kind of order the court made, namely, “IT IS FURTHER ORDERED that the case be and is hereby adjourned to 2nd day of December, 2009 for mention.”
This, I believe was to ensure that the originating processes were served on the appellant out of jurisdiction for her to appear on the mention date before the Court would fix a hearing date. But this is a matter of conjecture which courts of law and equity should not embark upon without evidence. The appellant filed the application to set aside the service of the processes on 30th November, 2009 before 2nd December, 2009 fixed for mention. Ruling and judgment was delivered in favour of the Respondent on 10th August, 2010. From the records compiled by the appellant it is crystal clear that the learned trial Judge heard argument from learned counsel, dismissed the application to set aside the service of process and entered judgment in favour of the Respondent on 10th August, 2010 when there is no indication if the suit was ever fixed for hearing. That is not reflected in the records compiled by the appellant.
As the learned trial Judge had entered the suit on the Cause List for mention on 2nd December, 2009 without indicating when hearing shall commence there was no obligation on the appellant to deliver a notice in writing of intention to defend the suit together with an affidavit disclosing a defence on the merit “…before the day fixed for hearing…” when no hearing date had been entered on the processes served on the parties as required by order 11 rule 10(1) of the Rules supra.
The learned trial Judge lacked the competence or jurisdiction to have acted under order 11 rule 11 of the Rules supra to hear the suit as undefended and give judgment in favour of the Respondent in the absence of a hearing date. The Respondent obtained judgment on a platter of gold without the learned trial Judge being guided by a very essential condition precedent stipulated under the provisions of order 11 rules 8(2), 10(1) and (2) of the High court (Civil Procedure) Rules, 2009.
Had a date been fixed for hearing before or after 2nd December, 2009 that ought to have been communicated to the appellant and clearly indicated in the records compiled. In Madukolu vs. Johnson Nkemdilim (1992) 1 All NLR 587 the then Federal Supreme Court held at page 595 that:
‘A Court is competent when-
(1) It is properly constituted as regards members of the bench, and no member 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 case which prevents the Court from exercising its jurisdiction, and
(3) The case comes before the Court initiated by due process of law, and upon fulfilment of any condition precedent to the exercise of jurisdiction.”
Regarding what orders to make if the Court was incompetent to adjudicate or where a condition precedent to the exercise of jurisdiction had not been fulfilled, the supreme court held in the same judgment that:
“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…”
See also Laniyan vs. Dadeowo & Ors. (1971) All NLR 169 at 172-173.
In my judgment the suit came before the lower Court initiated by due process. The court was properly constituted and had the jurisdiction to entertain the claim.
However, in the course of adjudication there was an irregularity arising in the conduct of the proceedings that violated an essential condition precedent for entering judgment in favour of the Respondent which I have highlighted. The complaint of the appellant relates to the soundness of the judgment. This is the test to apply when considering a submission on the issue of jurisdiction. See Adeigbe & Anor vs. Kusimo & Ors. (1965) NMLR 284 at 287. This makes the judgment of the lower Court unsatisfactory. The question is: should the judgment be allowed to stand?
The authority of Nigerian Ports Authority vs. Eyamba & Ors. (2005) 12 NWLR (Pt.959) 409 per Omokri, JCA cited by learned Counsel to the Respondent fully recognizes the fact that the defendant is not only to enter appearance as required by Order 14 rule 1 of the Cross River state (civil procedure) Rules, 1987 within the period stipulated in the Rules when served the processes but page 449 paragraph “A”-“B” of the judgment His Lordship held that under that Rule, Omokri, JCA, “…it is of essence that not less than five days before the date fixed for hearing of this action to cause a notice of intention to defend with an affidavit disclosing a defence on the merit to be delivered to the Registrar if he intends to defend the action. The effect of failure to enter a notice of intention to defend by the appellant within the time stipulated is that he will not be allowed to defend the action except with leave of the Court.”
A distinction has to be drawn between cases in which in entering a suit under the Undefended List the Court fixed the return date to be for “mention” and where it is for “hearing”. This distinction was also recognized by Omokri, JCA (of blessed memory) in NPA vs. Eyamba & Ors. supra. In UBA Ltd. vs. Inmmarches Nig. Ltd. (2003) 6 NWLR (Pt.817) 529 the learned trial Judge fixed the Undefended suit for mention. The judgment was cited before the Court of Appeal in N.P.A. vs. Eyamba supra. At page 450 of the judgment Omokri, JCA (of blessed memory) distinguished the case in the following language:
“The lone case Of UBA Ltd. VS. Inmmarches Nig. Ltd. (2003) 6 NWLR Pt.817) 529 is inapplicable to the facts and circumstances in this case on appeal. It is not in pari materia with this case. In the above cited case the matter was adjourned for mention. In the meantime the appellant filed an application for extension of time to file notice of intention to defend the suit.
Further the trial judge after granting the motion exparte of the respondents on 6th November, 2002 at page 56 lines 1-7 of the record set the return date for hearing not mentioned) for the 11th December, 2002. On 11th December, 2002 the court did not sit because counsel for the defendant, nor appellant, Prof. Osipitan, SAN, was absent from the Court.
The case was adjourned to 27th January, 2003 following a letter for adjournment written by the learned SAN- On 27th January, 2003 when the matter came up for hearing professor Osipitan raised his preliminary objection. This is clearly distinguished from the UBA Ltd. (supra).
The conclusion I reach is that the learned trial Judge was correct to have entered judgment as it did since the appellant did not file any notice of intention to defend…”
Thus, where the suit was fixed for hearing on the return day, if the party served failed or neglected to file a notice of Intention to Defend the suit supported with an affidavit disclosing a defence on the merit, it would be perfectly right for a learned trial Judge to enter judgment in favour of the claimant. But if the return date was for mention, it would be preposterous to require the party served to file a Notice of Intention supported by an affidavit disclosing a defence on the merit. A trial Judge would err to enter judgment against a party served on the day the suit was fixed for mention. The Supreme Court has held that treating mention date as hearing date is wrong.
A judgment obtained on a day fixed for mention of a suit cannot be allowed to stand. See Mbadinuju vs. Ezuka (1994) 10 SCNJ 109 at 137; UBA Kano vs. Bauchi Meat Products Co. Ltd. (1978) 9 & 10 SC 51; N.W.N. Ltd. vs. Oteh (1992) NWLR (Pt.237) 626; Olubosola vs. Standard Bank (1975) All NLR 123; Chevron Nig. Ltd. vs. Warri North Local Government council (2005) 5 NWLR (Pt.812) 28.
Fixing a date for hearing a suit initiated under the Undefended List Procedure is a condition precedent to be proved by a claimant before a court is called upon to enter judgment in favour of a claimant in the absence of a Notice to defend the suit coupled with an affidavit disclosing a defence on the merit.
Moreover, there is no provision for fixing a suit for mention under the Undefended List procedure. A suit entered on the Undefended Cause List can only be fixed for hearing. The express mention of “hearing” in order 11 rule 8(2) and 10(1) of the High Court (Civil Procedure) Rules, 2009, Akwa Ibom State automatically excludes the word “mention”. See Udoh vs. Orthopaedic Hospital Management Board (1993) 7 SCNJ (Pt.2) 456 at 444; Military Governor of Ondo State vs. Adewunmi (1988) 3 NWIR (Pt.8) 280; Ben Thomas Hotel Ltd. vs. Sebi Furniture Ltd. (1989) 5 NWIR (Pt.123) 523.
Immediately the ruling was read dismissing the application, learned Counsel to the Respondent asked for judgment and the Court obliged his request by holding at page 25 lines 8-19 of the record of proceedings as follows:
“By Order 77 rule 11 of the High Court (Civil Procedure) Rules of Akwa Ibom state where the defendant fails or neglects to deliver this notices of defence and affidavit as prescribed, the plaintiff will be entitled to judgment. The plaintiff has asked for judgment. I have no reason not to give judgment in accordance with the claims.
Consequently judgment is hereby given in favour of the plaintiff as per the Writ of Summons. It is hereby ordered that the defendant shall pay to plaintiff the sum of N626,000.00 only being the money paid to the defendant for the supply of goods which it never did. The defendant shall also pay to the plaintiff interest on the said amount at the rate of 10% per annum from the date of this judgment. The defendant shall pay to the plaintiff cost assessed at N10,000.00 only.”
This judgment cannot be allowed to stand.
I allow the appeal, set aside the judgment of the lower Court and direct that the Honourable Chief Judge of Akwa Ibom state shall re-assign the suit to another judge for hearing and determination. There shall be no order as to costs.
MOHAMMED LAWAL GARBA, J.C.A.: My learned brother Joseph Tine Tur, JCA has availed me of the draft of the lead judgment delivered by him in this appeal. As usual, His Lordship has fastidiously considered and dealt with the germane issues which require determination in the appeal.
The appeal is against the decisions of the High Court of Akwa Ibom State sitting at Uyo contained in a ruling delivered on 10/08/2010 in suit No. HU/UND/448/2209. The suit was initiated under the undefended list procedure provided for in Order 11 of the High Court Civil procedure Rules, 1989 and the Appellant who was Defendant thereto and resident outside the jurisdiction of the High Court was ordered to be served through a reputable courier service. The case was fixed for mention thereafter on the 2/12/2009 and before which date, the Appellant had filed a motion primarily praying for an order setting aside both order for substituted service and the service itself. The Appellant did not file a notice of intention to defend the action as required by the provisions of Order 11, Rule 3 of the High Court Rules. After hearing the parties in respect of the motion by the Appellant, the High Court in the ruling appealed against refused the reliefs sought therein and dismissed it.
The High Court also went ahead in the same ruling, to enter judgment in favour of the Respondent on the ground that the Appellant had not filed a notice of intention to defend the action together with an affidavit disclosing a defence on the merit. The Appellant’s dissatisfaction with the two decisions in the ruling, resulted in the present appeal. I have read the grounds of the appeal contained on the undated and uncertified copy of the notice of appeal which appears at pages 27 – 29 and 33 – 35 of the record of appeal. For me, there are only two (2) valid grounds of appeal known in law of the four (4) grounds set out on the notice of appeal. These are grounds ONE and TWO while the other two (2) grounds do not comply with the provisions of order 6, Rule 2(2) and 3 of the court of Appeal Rules, 2011 for which reason, they are liable to be struck out or discountenanced in the appeal. Be that as it may, since even a single valid ground of an appeal is sufficient to sustain it, the appeal is sustainable on the two (2) valid grounds. The learned counsel for the Appellant did not in his brief of argument indicate from which of the grounds contained on the notice of appeal, he had raised the three (3) issues he submitted for determination in the appeal. Looking calmly at the Appellant’s issues which were adopted by the learned counsel for the Respondent, issues 1 and 2 are essentially the same couched in different forms, but questioning whether service by a courier service on a company was proper service in law.
This is derivable from the ground of appeal though the Appellant’s issues emanate from the ground of appeal ONE.
I am in complete agreement with my learned brother in the lead judgment on the resolution of issues I and 2 against the Appellant and in favour of the Respondent. The service of the processes in the case against it was not ordered to be and was not in fact by substituted means, but by a reputable courier service. The Respondent had acknowledged the service of the processes in question, but embarked on the futile exercise, in the mistaken understanding by the learned counsel of the fact and circumstances of the case of MARK v EKE, set out in the lead judgment to set the service aside, on the ground that it was not proper service. I cannot better or even add to the proficient explanations of the inapplicability of that case to the present appeal set out by my learned brother in the lead judgment, but would emphasise that the ratio of the case is not apposite to the Appellants’ case and does not avail it in the appeal.
On the issue 3, the general interpretation given to the Rules of the High Court on the undefended list procedure, is that they provide for a quick or fast way of deciding cases involving liquidated money demands in respect of which, prima facie, there is no defence, providing reasonable notice and opportunity to a Defendant to answer it. The attitude of the superior courts has been that where a Defendant was served with the initiating processes of a suit filed under the undefended list, he was required to, apart from or in addition to any other step he may deem necessary to take in reaction to the processes, file his notice of intention to defend, the action if he disputed the claim, along with an affidavit disclosing a defence on the merit, within the time stipulated by the Rules. The positions of the courts has been that even where a Defendant enters a conditional appearance because he intended to object to the processes of the case, he was under a duty to file the notice of intention to defend within the time stipulated by the Rules before the return date fixed for the hearing of the suit. See OGBANU v OTI (2000) 8 NWLR (670) 582 at 591; MALEY v ISAH (2000) 5 NWLR (658) 651 at 666 – 667; ATAKULU v FAMBE (2001) 9 NWLR (717) 179 at 186 – 7.
However, before the requirement arises, a date must have been fixed or set down on the initiating processes served on the Defendant, for hearing as the return date of the case. Fixing or setting out the return date as the date for hearing of the case, on the processes served on the Defendant is therefore a condition precedent to the requirement that a defendant shall file or deliver the notice of intention to defend within the time stipulated in the Rules. Where no date is fixed or set down as the return date for the hearing the case under the undefended list then no obligation or duty exists and is owed by a defendant to deliver or file a notice of intention to defend the action, under the Rules.
In the Appellants’ case, there is no record that the processes of the case served on it bore or contained a date fixed or set down as the return date for the hearing of the suit under the undefended list. What is contained in the enrolled order of the High Court dated 16/11/2009, which appears at page 11 of the record of the appeal is that:-
“IT IS FURTHER ORDERED that the case be and is hereby adjourned to 2nd day of December, 2009 for mention.”
The order of the High Court was therefore that initiating processes filed and marked ex parte under the undefended list, were to be served on the Appellant and the case was adjourned to the 2/12/2010 for mention and not fixed or set down for hearing on the return date. There is no record of the proceeding, if any, that were conducted on the 2/12/2009, the date the case was adjourned for mention, in the record of the appeal. Indeed, there is no record in the record of the appeal of any proceedings conducted by the High Court in the case. All that are contained in the record of appeal are copies of processes filed, enrolled order, d ruling of the High Court appealed against and the notice of appeal against it. In the circumstances, there is no record before us of the date when the case was fixed or set down for hearing under the undefended list as required by the Rules of that court. All that is available is the ruling appealed against in which the Appellants’ motion was dismissed and judgment entered in favour of the Respondent on the ground that there was no notice of intention to defend from the Appellant. Because the court can only properly use the record of the appeal before it in the determination of the appeal, the case against the Appellant was adjourned for mention on 2/12/2009 only for judgment to be entered on 10/8/2012 in favour of the Respondent. The law as restated in the lead judgment is that it is wrong for a court to treat a date fixed for the mention of a case as one for hearing and any judgment entered on such a date, would be a nullity.
In addition to the cases cited on the point in the lead judgment, see EASTERN BREWERIES PLC v INUEN (2000) 3 NWLR (650) 662 at 675; NBC v EZEIFO (2001) 12 NWLR (726) 11; ALADEGBEMI v FASANMADE (1988) 3 NWLR (81) 129.
Although the record of appeal shows that the judgment appealed against was entered on the 10/8/2010 and not on the 2/12/2009 when the case was adjourned for mention, in the absence of any record showing that the case was indeed fixed or set down for hearing under the undefended list to the knowledge of the Appellant, it should in the peculiar circumstances of the case have been afforded the opportunity to have a notice of intention to defend the action, when the High Court dismissed the motion to set aside the service of the originating processes on it. For that reason, I agree with the resolution of the issue 3 and the consequential orders made in the lead judgment.
UZO I. NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form the judgment just delivered by my learned brother Joseph Tine Tur, JCA. I agree with his reasoning and final conclusion.
The Undefended List Procedure is adopted when it is perceived that the defendant could not possibly have any defence to the claim. A suit is maintained under the Undefended List if it relates to a claim for a debt or Liquidated money demand. This procedure is meant to shorten the hearing of the suit. S. B. N Plc Vs. Kyentu (1998) 2 NWLR pt 536 page 41, Garba vs. Sheba Int. (Nig Ltd 2002) 1 NWLR pt 748 page 5 page 372. Haido vs. Usman (2004) 3 NWLR pt 859 page 65.
Under the rule, a writ marked “Undefended List” must have a return date for hearing but where the case has been fixed for anything other thon hearing, say to mention, the suit cannot be entertained as hearing. Like in the instant case, the court adjourned the suit for mention. On that date, the suit can only be mentioned. Where the suit is then fixed for hearing, this gives the defendant a chance to file his intention to defend together with an affidavit disclosing his defence on the merit. The trial court having heard this suit on a date set down for mention forecloses the defendant’s right to be heard. The defendant’s right for fair hearing has therefore been breached. The hearing was therefore done without jurisdiction. A court that lacks jurisdiction to hear a suit is therefore on a frolic of its own. Everything done is therefore a nullity and cannot stand.
For this and the more robust reasoning of my learned brother in the lead judgment, this appeal is meritorious and therefore allowed. I abide by all the other consequential costs in the lead judgment.
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Appearances
For Appellant
AND
C.I. ODOFor Respondent
