IKEDURU LOCAL GOVERNMENT AREA v. BARR. KENNETH C. UZOECHI
(2013)LCN/6645(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 11th day of December, 2013
CA/PH/575/2008
RATIO
EFFECT OF THE SUCCESS OF A PRELIMINARY OBJECTION ON THE COMOETENCE OF AN APPEAL
The effect of the success of a preliminary objection on the competence of an appeal generally forecloses the hearing of the appeal by going through the whole length of the arguments canvassed in it. BASF Nig. Ltd. v. Faith Enterprises Ltd. (2010) 1 SCNJ 223 at 249; D.S. Yaro V. Arewa Construction Ltd. & Anor. (2007) 6 SCNJ 418; Ralph Uwazuruike V. A.G. Federation (2007) 7 SCNJ 369 at 380; Mosoba V. Abubakar (2005) 6 NWLR (pt. 922) 460; NEPA V. Ango (2001) 15 NWLR (pt. 737) 627 at 645 – 646. Per TOM SHAIBU YAKUBU, J.C.A.
WHETHER A GROUND OF APPEAL MUST BE A COMPLAINT AGAINST THE RATIO DECIDENCI OF THE TRIAL COURT
It is elementary, that a ground of appeal must specifically attack the finding and/or decision of the trial court, so a ground of appeal cannot be valid and competent if it is general, vague, argumentative and imprecise. Therefore, a ground of appeal must disclose a reasonable complaint against a ratio decidendi in the decision being appealed against. Furthermore, a valid and competent ground of appeal must have its particulars stating clearly the nature of the alleged error or misdirection of the court below in arriving at her decision. This much was reiterated by the Supreme Court more recently in Prof. Olufeagba & ors. v. Prof. Shuaibu Oba AbdulRaheem & Ors. (2010) 17 WRN 23; (2009) 12 SCNJ 349 at page 373 where Fabiyi, JSC said:
“The particulars to a ground of appeal must be in tandem with it. If the particulars are at cross-purpose to the ground of appeal, it becomes defective and liable to be struck out. See Honika Sawmill (Nig) Ltd. V. Hoff (1994) 2 NWLR (pt. 326) 22; (1994) 2 SCNJ 86; Nwadike v. Ibekwe (2004) 24 WRN 32; (1987) 11 – 12 SCNJ 72; (1987) 2 NSCC 1219; (1987) 12 SC 14; (1987) 4 NWLR (pt. 67) 718.” Also see Baido V. INEC (2012) 31 WRN 27 at 59. Per TOM SHAIBU YAKUBU, J.C.A.
JUSTICES
UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria
JOHN INYANG OKORO Justice of The Court of Appeal of Nigeria
PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria
Between
IKEDURU LOCAL GOVERNMENT AREA Appellant(s)
AND
BARR. KENNETH C. UZOECHI Respondent(s)
PHILOMENA MBUA EKPE, J.C.A. (Delivering the Leading Judgment): This appeal is against the Judgment of High Court of Imo State, sitting at Iho, whereby the Defendant/Appellant was ordered to pay to the Respondent/Plaintiff the sum of N3, 892,444.30 as claimed, including interest at the rate of 10% per annum from October, 2007 till the 23rd day of October 2008.
The facts briefly stated here are that by a writ of summons dated the 25th day of July 2008 and filed on the 28th day of July 2008, the Respondent as plaintiff in the lower court brought an action against the Appellant as defendant in the court below claiming as follows:
“1. The sum of N3, 892,444.30 (Three Million, Eight Hundred and Ninety Two Thousand, Four Hundred and Forty Four Naira, Thirty Kobo, only), being debt resulting from unpaid salary and allowances for September, 2007 due to the plaintiff from the defendant made up as follows:
(a) Salary N292,444.30
(b) Imprest N450,000.00
(c) Entertainment N500,000.00
(d) Utility N500,000.00
(e) Security Vote N700,000.00
(f) Vehicle Maintenance N450,000.00
N3, 892,444.30
2. Interest at the rate of 10% per annum from October 2007 until Judgment.”
The writ of summons was supported by a 16 paragraphs affidavit sworn to by the Respondent on pages 3 – 8 of the record of appeal.
The second Notice of Appeal is found at page 23 – 25 of the record and the Appellant relies on same and withdraws the notice of appeal filed on the 2nd day of October, 2008. On the 29th day of July 2008, the Respondent urged the lower court by an oral application to place the suit on the undefended list The lower court did same but failed to record the date fixed for the hearing of the case. See page 9 of the record of appeal.
The appellant claims that they were not properly served and secondly that the Respondent did not give to the Appellant the statutory one month pre-hearing notice pursuant to Section 164(1) of the Imo State Local Government Administration Law No 15 of 2000.
The Appellant on the other hand rejected the Respondent’s claim and stated categorically that the Appellants had been properly served and that the Appellant had also been given notices of their intention to sue prior to the date of the hearing of the suit.
The matter however, came up for hearing on the 23rd September 2008 and on application by learned for the Respondent, Judgment was entered in his favour against the Appellant in the sum aforementioned.
It is also the claim of the Appellant that they were not given a fair hearing as the Appellant was not present in court on the day of Judgment. Being dissatisfied with the said judgment the Appellant thus has appealed to this court in a notice of appeal dated 8th day of October, 2008 containing 3 grounds of appeal. See pages 13 to 16 of the record of appeal. The grounds of appeal without their particulars are as follows:
GROUND ONE
Error in law
The trial court erred in law when it failed to give the defendant a fair hearing.
GROUND TWO
Error in law
The trial court erred in law when it heard the suit under the Undefended List when it was not competent to do so.
GROUND THREE
Error in law
The trial court erred in law when it heard an incompetent suit.
The Appellant however has formulated two issues for determination as follows:
“1. Whether the Appellant was given a fair hearing by the lower court (formulated from ground 1 of the grounds of appeal).
2. Whether the lower court was competent to hear the case (formulated from grounds 2 and 3 of the grounds of appeal)”
The Respondent on his own part has adopted the two issues formulated by the Appellant which issues shall be relied on and dealt with in the course of this appeal
ISSUE ONE: Whether the Appellant was given a fair hearing by the lower court.
Learned counsel for the Appellant submitted that the lower court did not give the appellant a fair hearing and cited S. 36 (1) of the Constitution of 1999. He postulated that this right to a fair hearing is not only a constitutional issue but also a principle of common law as well as of customary law. That this constitutional provision is entrenched in the twin pillars of justice namely.
(i) that a man shall not be condemned unheard or what is commonly known as audi alteram partem and
(ii) that a man shall not be a judge in his own cause or nemo judex in causa sua
He also cited the case of BILL CONSTRUCTION CO. LTD. V. IMANI & SONS LTD. (2007) CHR 28 at Page 35, Paras. A – F, OKOROIKE V. IGBOKWE (2001) 14 NWLR (Pt. 688) 498 at Page 505 Para. D.
That pursuant to Order 23 Rule 1 of the High Court (Civil Procedure) Rules of Imo State, 1988, it is the duty of the court to fix the hearing date for a suit placed for hearing on the Undefended List. Learned counsel further stated that in this case, the order for placing the case for hearing on the Undefended List was made on the 29th day of July 2008 (see page 9 of the record of appeal). That no date was fixed for hearing of the case by the trial court and no hearing notice was ordered to be served on the Appellant, Counsel also emphasized the fact that no hearing date was endorsed on the writ of summons. Learned counsel further argued that on the 23rd day of September 2008, both parties were absent in court but that the Plaintiff’s counsel applied to court for judgment and the court granted his prayer and entered judgment against the Appellant (see page 11 of the record). Counsel concluded that there is nothing in the record of appeal to show that the trial court ever fixed the case for hearing or communicated any such date to the Appellant. He further concluded that the Appellant was never given a far hearing, a denial which vitiates the entire proceedings and renders it liable to be set aside. He then cited the case of ODUTOLA V. KAYODE (1994) 3 KLL 1 at 9.
The Respondent on the other hand sought to counter the submissions proffered by the Appellant’s counsel on issue No. 1. He submitted that to determine whether or not the Appellant was given a fair hearing at the court below, he too cited Order 23 of the High Court (Civil Procedure) Rules of Imo State 1988, which governs cases on the Undefended List. He further submitted that if the party served with the writ of summons or affidavit intends to defend the action on the merits, he shall file a “notice of intention to defend” and if he fails to do so, the court shall then proceed and give judgment to the plaintiff.
Learned counsel for the Respondent argued that the Appellant was served with a writ of summons clearly marked “UNDEFENDED LIST” together with an affidavit and exhibits by the court bailiff on the 4th day of September 2008 on which was endorsed the hearing date of the 23rd day of September 2008. He referred to the submission of the Appellant’s counsel that no hearing date was endorsed on the writ of summons which was served on the Appellant.
Learned counsel for the respondent clearly stated that the Appellant has admitted the receipt of the writ of summons on which was endorsed the hearing date. Counsel has stated that the writ of summons which the appellant referred to is the copy in the court’s file and that the writ that was served on the Appellant had been clearly endorsed with the hearing date of 23rd September 2008. That the writ of summons referred to in the court’s file does not have the hearing date endorsed on it. That the endorsement is usually made on the writ that is served on the other party. Learned counsel further argued that in order to prove that the copy of the writ of summons served on the appellant was not endorsed with the hearing date, the Appellant ought to have produced or exhibited the said writ that was served on him which he claims was not endorsed with any hearing date. Counsel again submitted that allegations of fair hearing must be proved by credible evidence considered from an objective stand point. He then cited the case of OMONIYI V. CENTRAL SCHOOL BOARD AKURE (1988) 4 NWLR (PT. 89) 449 AT 462. He further argued that the Appellant cannot be allowed to find sanctuary in the court’s omission to state the hearing date on the record book when in fact the writ of summons that was served on the Appellant was endorsed with the hearing date. He then referred to the Supreme Court authority in the case of OKOLI Vs. MORECAB FINANCE LTD. (1007) 30 NSCQR (Pt. 1) 453 at 424 where the Apex Court stated as follows:
“A defendant who has no real defence to the action should not be allowed to dribble and frustrate the plaintiff and cheat him out of judgment he is legitimately entitled to, by delay tactics arrived at not of offering any real defence to the action, but at gaining time within which he may continue to postpone meeting his obligation and indebtedness.”
Learned counsel then urged the court to hold that the Appellant was given a fair hearing by the lower court. ON ISSUE NO 2, whether the lower court was competent to hear the case, learned counsel for the Appellant submitted that the lower court was not competent to hear the case. He then referred to the celebrated case of MADUKOLU Vs. NKEMDILIM (1962) 1 ALL NLR, 587 At 595, where the apex court named the 3 circumstances when a court is competent to hear a case thus, when:
“1. It is properly constituted as regards members and qualifications of the members of the bench, and no member is disqualified for one reason or another; and
2. The subject matter of the case is within jurisdiction, and there is no feature in the case which prevents the court from the exercise of jurisdiction.
3. The case comes before the court initiated by due process of law, and upon fulfillment of any condition precedent to exercise of jurisdiction.”
And that the 2nd and 3rd conditions referred to above were not met before the lower court gave judgment in the case. Counsel referred to the mandatory provision in the Local Government statute where it provides that before a suit is commenced against any Local Government in Imo State, the Local Government must be served with a pre-action notice at least one month preceding the commencement of the action. He cited S. 164(1) of the Imo State Local Government Administrative Law No. 15 of 2000, which states as follows:
“164(1) No Suit shall be commenced against a Local Government until one month at least after written notice of intention to commence the same has been served upon the Local Government by the intending plaintiff or his agent…..”
Learned counsel deliberated on the use of the word “SHALL” which he argued may carry a mandatory or merely a directory connotation depending on the con in which it is used. He then referred to the cases of A.D.H. LTD V. AMALGAMATED TRUSTEES LTD (2007) ALL FWLR (Pt. 392) 1781 page 1811 paras. A – B; OJU LOCAL GOVERNMENT V. INEC (2007) ALL FWLR (Pt. 383) 101 at 126 Paras. E – G., and further submitted that the word “shall” used in the con or S. 164(1) of the Imo State Local Government Administration Law 2000 conveys a mandatory intention. He also cited the case of UNIVERSITY OF NIGERIA TEACHING HOSPITAL MANAGEMENT BOARD V. NNOLI (1994) 8 NWLR (Pt. 363) 376 At 419; ONOCHIE V. ODOGWU (2006) ALL FWLR (Pt. 317) 544 at 569 – 570 Paras. H – A. That the purport of the service of the pre-action notice is to bring the grievance of the party who intends to commence an action to the knowledge of the proposed defendant to enable him decide whether to settle and compromise the intending plaintiff’s claim or allow the matter to run its course in the law court. That the said provision is therefore made for the benefit of the proposed defendant. He referred to the case of INTERNATIONAL TOBACCO PLC Vs. NAFDAC (2007) ALL FWLR (Pt. 382) 1981 at 1999 – 2000 Paras. G – A.
Learned counsel argued that the pre -action notice was not served on the Appellant before the action was filed on the 28th day of July 2008. He referred to page 10 of the record of appeal where there is an affidavit of service sworn to by the bailiff of the lower court stating that he served a Notice of Intention to sue on the Appellant on the 4th day of September 2008, and that this service was done 40 days after the commencement of the suit, in clean violation of the aforementioned Imo State Local Government Law. That the effect of the failure of the Respondent to serve the Appellant with the statutory pre-action notice renders the suit incompetent and liable to be struck out.
Learned counsel for the appellant further drew the court’s attention to the fact that apart from the non-service of the pre-action notice on the Appellant, the court processes were not served on the Appellant. He then cited S. 165 of the Imo State Local Government Administration Law 2000, which provides as follows:
“The notice referred to in Section 170(sic) and any summons notice or other document required or authorized to be served on a L.G. in connection with any suit by or against such L.G. shall be served by delivering the same to or sending it by registered post addressed to the Secretary to Local Government;
Provided that the court may, with regard to any particular suit or document, order service on the Local Government to be effected otherwise and in that event, service shall be effected in accordance with terms of that order.”
Learned counsel then referred to the 3 ways by which a Local Government shall be served with court processes in Imo State namely:
1. By personal delivery to the Secretary to the Local Government or
2. By sending same by registered post addressed to the Secretary to the Local Government at the principal office of the Local Government, or
3. In any other manner ordered by the Court.
Counsel further emphasized the fact that the word SHALL used in the said Section 165 of the Local Government Administration Law was used in a mandatory sense and must be complied with. See ONOCHIE V. ODOGWU (supra) at Pages 569 – 570 Paras. H – A. That there is nothing on record to show that the first two modes of service were employed in this case. He further stated that there is nothing on record to show that any application was made to the lower court to order service to be effected in any other mode than as provided in that section of the Local Government Administration Law. Learned counsel again referred to page 10 of the record of appeal where the lower court deposed to an affidavit of service stating that he served the “Writ of Summons” on the Appellant by “delivering same personally to Ikeduru Local Government at the Ikeduru Local Government on 6th September 2008. Learned counsel opined that service on a Local Government Council as claimed by the said bailiff is no service at all as a Local Government not being human cannot be served personally. He referred to a case of CHIAZOR V. TUKUR (2007) ALL FWLR (Pt. 354) 394 at 410 Para. E. He concluded that the non service of the processes accounts for the failure of the Appellant to be present in court on the date the matter was heard and judgment delivered which renders the entire court proceedings at the lower court a nullity. See
1. DAEWOO NIG. LTD. Vs. UZOH (2008) ALL FWLR (Pt. 399) 456 at 474 H-B.
2. AHMED vs. ADEYEMI (2007) ALL FWLR (Pt. 395) 462 at 481 paras. A – C. He then urged this court to hold that the 2nd and 3rd conditions for the competence of a court as enunciated in MADUKOLU V. NKEMDILIM (supra) were not satisfied. Counsel then submitted that the appeal be allowed on the following conditions.
“1. The Appellant was not given notice of the date fixed for the hearing of the case at the lower court and thus was not given a fair hearing.
2. The processes filed in the lower court were not served on the appellant.
3. The Respondent did not serve the Appellant with any pre-action notice prior to the commencement of the action at the lower court”
In his reply to issue No. 2, learned counsel for the Respondent submitted that the lower court was competent to hear the case before it. He also adopted the authority in the case of MADUKOLU & ORS. Vs. NKEMDILIM giving the three circumstances in which a court is competent to hear and determine a matter when:
“1. It is properly constituted as regards members and qualifications of the members of the bench and no member is disqualified for one reason or another; and
2. the subject-matter of the case is within jurisdiction and three is no feature in the case which prevents the court from exercising its jurisdiction; and
3. the case domes before the court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.
Learned counsel stated that in complying with S. 164(1) of the Imo State Local Government Administration Law No. 15 of 2000, the Respondent, a seasoned legal practitioner and chairman of the Transition Committee (Ikeduru Local Government) from the 20th April, 2007 to the 5th October 2007 personally and by a letter dated 7th February 2008 notified the Appellant of his intention to commence legal proceedings if his salary and allowances for the month of September, 2007 were not paid (see page 6 of the record of appeal). That to further buttress his demands the Respondent sent a second reminder dated 1st March 2008 to the Appellant at page 7 of the Record of Appeal. That apart from these two letters from the Respondent indicating his intention to sue, the Special Adviser to the Governor on Local Government and Chieftaincy Affairs also wrote a letter to the Appellant dated 5th March 2008 on the same issue at page 8 of the record of appeal and there was no reaction from the appellant.
Learned counsel also referred to the assertion of the appellant that the Respondent’s notice of intention to sue was served 40 days after the commencement of the suit. Respondent’s counsel reiterated the fact that the two notices of intention to sue were both served on the Appellant in February and March 2008 by the Respondent himself who is a legal practitioner. Counsel further argued that a notice of intention to sue is not usually served by a court bailiff since the matter at that stage had not yet been brought to court. That since this suit, the subject matter of this appeal, was brought under the Undefended List pursuant to Order 23 of the High Court (Civil Procedure) Rules 1988 of Imo State, the Plaintiff/Respondent had obtained the Order of Court to place the suit on the Undefended List on the 29th day of July 2008 (see page 9 of the Record).
In a further submission by learned Respondent’s counsel, he stated that following the said order, the defendant (Appellant) was then served with a copy of all the processes in the suit which had already been filed in court and included, (a) the Writ of Summons (b) the affidavit showing that the defendant (Appellant) had no defence to the suit (c) the two Notices of Intention to sue served by the Plaintiff (Respondent) and (d) the letter written to the defendant (Appellant) by the Special Adviser to the Governor on Local Government and Chieftaincy Affairs – all stapled together.
That what can be gleaned from the above statement is that it was not the Court Bailiff that served the pre-action notices, but that what was served on the Appellant on the 4th day of September 2008 was the writ of summons, affidavits and exhibits attached to the writ of summons which were copies of the Pre- Action notices Counsel further explained that: Under the Rule governing matters on the Undefended List in Imo State, a Plaintiff files a Writ of Summons with an affidavit together with all the documents he intends to rely on in the action. That in this case the documents included the two Pre-Action Notices which were served on the defendant (Appellant) by the Plaintiff (Respondent) before the matter came to court. There was therefore no violation of Section 164(1) of Imo State Local Government Administration Law 2000.
Learned counsel for the Respondent further explained that all the processes in this suit including the Pre-Action Notices were personally delivered to the Secretary to the Local Government who was also at the time the Director of Administration and General Services. That since the then administration had not had an elected Local Government, it is well known fact that during any period of Transition Committee in Local Government Administration, the Director of Administration and General Services (DAGS) performs the functions of the Secretary in addition to his own Statutory duties that all the court processes in this suit, together with the Pre-Action Notices were therefore served on the Director of Administration and General Services.
Counsel again submitted that when the Court Bailiff stated in his affidavit of service (page 9 of the record) that he personally delivered the court processes to Ikeduru Local Government, he meant that those processes were personally delivered to the Director of Administration and General Services. That if the Appellant believed in the veracity of their claim, they ought to have applied to the court below to set aside the said judgment. Learned counsel concluded that at the time the lower court assumed jurisdiction to entertain the Suit there was no feature in the Plaintiff’s (Respondent’s) Claim to prevent the Lower Court from entertaining the action. The action was brought on the Undefended List, which is governed by Section 23 of the High Court (Civil Procedure) Rules 1988 of Imo State, but that the Appellant refused to file Notice of Intention to defend because it had no defence, but turned round in the end to appeal against an undefended action. He then urged the court to hold that the court processes in this suit had been properly served on the Appellant and that there were no features in the Undefended List Action which prevented the lower court from entertaining the suit and finally urged this court to dismiss the appeal.
The two questions that readily come to mind are:
1. Was the Appellant in the circumstances duly informed of the next hearing date? and;
2. Was the lower court indeed competent to adjudicate on the matter before it?
In general legal parlance, fair hearing within the meaning of S. 36(1) of the 1999 Constitution means, a trial concluded according to all the legal rules formulated to ensure that justice is done to the parties. It requires the observance of the twin pillars of the rules of natural justice namely audi alteram partem and nemo judex in causa sua
See the case of ESHENAKE Vs. GBINIJE (2006) 1 NWLR (Pt. 961) 228.
The term fair hearing within the constitutional con referred above is that a trial ought to be conducted in accordance with all the legal norms designed to ensure that justice is done at all cost to the parties. The principle of fair hearing then presupposes that both sides must be given an opportunity to present their respective cases. It also implies that each side has the right to know what case is being made against it and be given ample opportunity to react or respond thereto. In order to determine whether or not the Appellant was given a fair hearing, it is pertinent to state the Rule of Court which governs the particular Court proceedings. In this case, ORDER 23 of High Court (Civil Procedure) Rules of Imo State, 1988 which governs cases on the undefended list clearly states thus:
“It is the duty of the court to fix the hearing date for a suit placed for hearing in the Undefended List.
The date is thereafter communicated to the Defendant through the service of a hearing notice, or by endorsement on the Writ of Summons to be served on the Defendant or by the serving of the order granting leave to place the suit for hearing in the undefended list”.
It is the grouse of the Appellant that in this case, the court below placed the suit on the Undefended List on the 29th day of July 2008 and thereafter no date was fixed for hearing and no hearing notice was ordered to be served on the Appellant to enable him appear in court to defend the suit. The Respondent on the other hand clearly states that even though, the learned trial Judge had omitted to state the hearing date in the record book but that the writ of summons served on the Appellant was endorsed with the hearing date and so the Appellants were well aware of the hearing date as was endorsed on the writ of summons. For purposes of clarity, I shall hereby reproduce the entire proceedings at the trial court of the 29th day of July 2008 as follows:
IN THE HIGH COURT OF IMO STATE OF NIGERIA
IN THE MBAITOLI/IKEDURU JUDICIAL DIVISION
HOLDEN AT IHO
BEFORE HIS LORDSHIP HON. JUSTICE NGOZI OPARA J.
THIS TUESDAY THE 29TH DAY OF JULY 2008
SUIT NO: HMI/93/2008
BETWEEN:
Barr Kenneth C. Uzoechi
Vs.
Ikeduru Local Government
Plaintiff present. Defendant absent. Ibeneme Njoku Esq for the Plaintiff. No appearance for the defendant. Ibeneme Njoku Esq applies orally on Order 23 Rule 1 of the Rules of this Court for the suit to be placed on the undefended list.
Court: Order as prayed. This suit is hereby placed on the undefended list.
SGD
NGOZI OPARA
JUDGE
29/07/2008
What can be gleaned from the above proceedings is that the Plaintiff/Respondent on the said date applied for the matter to be placed on the undefended list. The trial court of course granted the order as prayed and nothing more. It is clear therefore that apart from the order placing the matter on the undefended list, no other order was made by the trial court for the next hearing date. The enrolled order as couched by the learned trial Judge simply read thus.
“Order as prayed. The suit is hereby placed on the Undefended List.”
There is however, no gainsaying the fact that this is a court of record and every application granted or order made therein must be clearly stated in the record book. It is therefore mandatory that a date for hearing is fixed by the court and same communicated to the defendant to afford him an opportunity of coming forward to defend the suit. Anything short of the requisite notice is fundamental and will be tantamount to a breach of fair hearing.
The procedure under the provisions of Order 23 is not intended to shut out a defence completely. See SANTORY CO. LTD Vs. ELABED (1998) 12 NWLR (Pt. 579) 538. The purpose of the procedure under the Undefended List is to enable the Plaintiff obtain summary judgment without trial, where his case is patently clear and unassailable. See the case of SODIPO Vs. LEMINKANEIN AND ORS. (1986) NWLR (Pt. 15) 220. The defendant must also be given an opportunity to defend the action.
In the instant case, I have carefully gone through the record of proceedings and I am unable to see where the trial court either fixed a date for hearing or caused the defendant to be notified of the next hearing date. This right to a fair hearing can be breached when there is a hearing in the absence of a party who had had no notice of the date fixed for hearing or where a party is not afforded the opportunity of being heard or where an order is made even in his presence, but without affording him an opportunity to be heard before the order is made and the court proceeds to pronounce on same without hearing from the parties. See BELLVIEW AIRLINES LTD Vs. ALUMINIUM CITY LTD (2008) ALL FWLR (Pt. 434) 1559 at Page 1617 Paras. E – H.
It is therefore the duty of the court to fix the hearing date for a suit placed for hearing on the Undefended List and thereafter have the date duly communicated to the Defendant through service of a hearing notice or by endorsement on the writ of summons to be served on Defendant or by the serving of the order granting leave to place the suit for hearing in the Undefended List.
I tend to throw my weight behind the reasoning of learned counsel for the Appellant that the appellant was not given a fair hearing by the lower Court. Suffice it to say however, that a denial of fair hearing vitiates the proceedings and makes it liable to be set aside. See the case of A.N.P.P V. INEC (2004) 7 NWLR (Pt. 871) 16, ALL PEOPLES PARTY Vs. OGUNSOLA (2002) 5 NWLR (Pt. 76) 484, B.O.N LTD Vs. ADEGOKE (2006) 10 NWLR (Pt. 983) 339.
The court must be mindful of its duty to do justice between the parties at all times. One of the main issues for determination is whether there is evidence or proof that the hearing date was properly communicated to the Defendant/Appellant. Like I stated earlier in this judgment, no hearing date was fixed on the matter. Also no hearing notice was ordered to be served on the Appellant and no other form of notice was given to it as to the date fixed for hearing of the case. The Respondent himself admits that the trial court “inadvertently” failed to record the date for hearing in his record book. Page 9 of the record is a clear indication of the lapse of the trial court.
As for the endorsement of the hearing date on the Writ of Summons a cursory look at pages 1 – 2 of the record of appeal shows that there had been no indication of the date for hearing on the writ of summons. There is no proof of such endorsement even though the Respondent claims that the said writ of summons had been clearly endorsed with the hearing date. This again is fundamental as the Appellant ought to be clearly notified of the hearing date so as to afford him an opportunity of defending himself if necessary and as required by law. Issue One, is therefore resolved in favour of the Appellant
Issue Two, is whether the lower court was competent to hear the case. Learned counsel for the Appellant holds that the lower Court was not competent to hear the matter as some of the conditions precedent were not met before the lower Court adjudicated over the case. The Appellant maintained that there was no service of the pre-action notice on the Appellant and also that the court processes were not served on them. The two glaring issues that call for determination here are:
(a) Non service of the Court processes on the Appellant.
(b) Non service of Pre-Action notice on the Appellant
The mode of service of Court processes against a Local Government in Imo State is provided for in S. 105 of the Imo State Local Government Administration Law and it reads thus:
“The notice referred to in Section 170(sic) and any summons, notice or other document required or authorized to be served on a Local Government in connection with any suit by or against such Local Government shall be served by delivering the same to or sending it be registered post addressed to, the Secretary to Local Government at the principal office of the Local Government;
Provided that the court may, with regard to any particular suit or document, order service on the Local Government to be effected otherwise and in that event, service shall be effected in accordance with terms of that order.”
There are therefore 3 ways by which a Local Government shall be served with court processes namely:
1. By personal delivery to the Secretary to the Local Government or
2. By sending same by registered post addressed to the Secretary to the Local Government at the principal office of the Local Government, or
3. In any other manner ordered by the Court.
It is the submission of learned counsel for the Appellant that there is nothing on record to show that any of the above mentioned modes was used in this case and also that no application was made to the lower Court to order service to be effected in any other mode other then as provided in S. 165 of the Local Government Administration Law. However, at page 10 of the record, a bailiff of the lower Court deposed to an affidavit of service that he served the writ of summons on the Appellant “by delivering same personally to Ikeduru Local Government on the 4th day of September 2008”. It is the contention of the Respondent that all the processes in this suit including the pre-action notices were personally delivered to the secretary to the Local Government who at the time was also, the Director of Administration and General Services. It is however, noted that during a Transition period, such as in this case, the Director of Administration and General Services performs the functions of the Secretary in addition to all his other statutory duties. It was therefore not out of place that the said Court processes in this suit together with the pre-action Notices were served on the Director of Administration and General Services. This, in my humble opinion constitutes adequate service and proper notification. The Respondent was then the Chairman of the Transition Committee of the Ikeduru Local Government and had caused to be issued the two Pre-Action Notices on the Secretary of the Transition Committee.
Regulations of the right of access to court abound in the rules of procedure and are legitimate. Such regulations like the requirement of pre-action notice are therefore recognized procedural provisions. In a situation where a pre-action notice is prescribed by an enactment, where the requirement of the notice is that it should be served on a particular person, service on any person other than the person stipulated is a non compliance with the provision. See ANMADI VS. NNPC (supra)
The other point to be considered is whether the Respondent actually issued the appellant with the requisite pre-action notices as required by the Local Government Statute. It is on record that a letter dated 1st February 2008 was sent to the Appellant by the Respondent in person. On the 1st of March, 2008, a second letter was also dispatched to the Appellant as a reminder of the Appellant’s indebtedness to the Respondent. In fact there is also on record a third correspondence to the Appellant by the Special Adviser to the Governor on Local Government and Chieftaincy Affairs dated the 5th day of March, 2008. On the same issue of indebtedness. All these correspondences to my mind are clear indications of the Respondents intention to sue and indeed constitute pre-action notices. I am therefore inclined to agree that the Respondent fulfilled his own side of the bargain by issuing the required pre-action notices to the Appellant as required by law. If a debt is owed, it only stands to reason that the so called debtor should be informed and be given adequate notice of the creditor further action as a way of finding a means of recovering the debt owed by the other party. On this premise, I tend to agree that the Appellant was given the requisite pre-action notice as required by law.
However, even though I am likely to agree with learned counsel for the Respondent that the Appellant was served with the pre-action notices, the Appellant however was not properly served with a hearing notice to enable him come to court and defend himself. The Appellant was therefore not given notice of the date fixed for the hearing of this case at the lower court and this has constituted a breach of the Appellant’s right to fair hearing. In the final analysis, this appeal is hereby allowed and the judgment of the lower court delivered on the 23rd day of September, 2008 allowing the claim of the Respondent is hereby set aside. I make no order as to costs.
UWANI MUSA ABBA AJI, J.C.A.: I have had a preview of the lead judgment of my learned brother, P. M. Ekpe, JCA just delivered and I agree with his Lordship that the appeal fails and it is hereby dismissed.
PRONOUNCEMENT:
PHILOMENA MBUA EKPE, J.C.A.: Honourable Justice John I. Okoro, JCA has been elevated to the Supreme Court and thus can no longer make any contribution on this judgment.
Appearances
A. I. Nwachukwu, Esq.For Appellant
AND
Ibeneme Njoku, Esq.For Respondent
