LINUS NWAJAGU & ORS v. FRANCIS OKOLI & ORS (2014)

LINUS NWAJAGU & ORS v. FRANCIS OKOLI & ORS

(2014)LCN/7072(CA)

In The Court of Appeal of Nigeria

On Monday, the 31st day of March, 2014

CA/E/298/2012

RATIO

DUTY OF COURT: EVALUATION OF EVIDENCE

The burden of proof is on him who asserts. In a declaratory relief, even where the defendant fails to testify, it will not alleviate the burden of proof on the plaintiff. In Ogunripe v. A.G. Kwara State (1993) 8 NWLR (Pt. 313) 558, at 568 this court per Achike JCA (as he then was of blessed memory) observed thus:- “But we hasten to add that it will be wrong for a plaintiff to assume that he will be entitled to judgment as a matter of a course, because the defendant had failed to tender evidence. The trial court is still under a duty to evaluate the evidence adduced by the plaintiff, and must be satisfied that the evidence is credible and sufficient to sustain the claim. This is so because the legal burden on the plaintiff on any person who asserts is to prove his claim on the balance of probabilities and is in no way mitigated by the opposing sides election to blow a muted trumpet”. Also in Kwajaffa v. Bank of the North (2004) LL FWLR 222 the Supreme Court held that a declaratory relief cannot be granted merely on default of defence or admission. PER ADZIRA GANA MSHELIA, J.C.A.

JUSTICES

ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria

IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria

EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria

Between

1. LINUS NWAJAGU
2. DENNIS NWAJAGU
3. ONYEBUKWA NWAJAGU
4. OBINNA IFEMKPA
5. OSITA ONYEAGBA Appellant(s)

AND

1. FRANCIS OKOLI
2. EPHRAIM ALAEBO
3. CLEMENT OKOLI
(for themselves and on behalf of Ude and Onwugamba families of Ndikpa village, Umunze). Respondent(s)

ADZIRA GANA MSHELIA, J.C.A. (Delivering the Leading Judgment): By a writ of summons dated 12-10- 10 and filed same day, the respondents herein, as plaintiffs commenced suit No. AG/89/2000 in the High Court of Anambra State at Aguata against the appellants herein as defendants jointly and severally for:
a. A declaration of court that the plaintiffs are the owners of all the piece or parcel of land known as and called Okpulo Ndikpa situate at Ndikpa village Umunze.
b. An order of court setting aside and nullifying any purported sale (s) of the plaintiffs land to the 4th and 5th defendants by the 1st, 2nd and 3rd defendants as same was void ab initio.
c. N100,000.00 (One Hundred Million Naira) being special and general damages for trespass, the special damages having been pleaded in paragraph 23 of the statement of claim.
d. An order of perpetual injunction restraining the defendants, their agents, privies, heirs, successors and workmen from further trespass into the plaintiffs’ land without the consent and authority of the plaintiffs first had and obtained.
The respondents filed alongside the writ of summons a statement of claim of 28 paragraphs, list of witnesses, written statement on oath of 30 paragraphs of Clement Okoli and a 13 paragraph statement on oath of Richard Eke. The appellants were duly served with the processes. Appellants did not file their defence but on 11/10/2011 filed Terms of Settlement. The respondents on 28-10-2011 filed a motion for summary judgment under order 11 Rule 1 of Anambra State High Court Rules. On 14-11-2011 when the trial court sat for the first time since the institution of the suit, the respondents’ counsel informed the court that the respondents had two motions. Counsel withdrew his motion for interlocutory injunction and went ahead to move the motion for summary judgment and the court adjourned for ruling to 6/12/2011. The appellants then filed a motion for extension of time to file their statement of defence, frontloaded all their processes and sought for an order to deem all as properly filed and served the appropriate fees having been paid. The respondents filed a counter-affidavit of 7 paragraphs in opposition to the appellants motion for extension of time. The trial court however did not hear the appellants motion but heard only the motion for judgment and entered judgment in favour of the respondents on 6-12-2011 in the following terms:
(1) The Plaintiffs are the owners of all the piece or parcel of land known as and called “Okpulo Ndikpa” situate at Ndikpa village Umunze.
(2) Any purported sales of the said land to the 4th and 5th defendants by the 1st, 2nd and 3rd defendants is hereby declared null and void and set aside accordingly.
(3) General damages of N10 million naira is awarded to the plaintiff for the trespass by the Defendants.
(4) The Defendants are hereby restrained, either by themselves, their agents, privies, heirs, successors and workmen from further trespass into the said land without the consent and authority of the plaintiff first had and obtained.
See pages 284 – 285 of the record.
Following the summary judgment, the appellants on 9-12-2011 brought a motion for setting aside the summary judgment.
The respondents filed a counter-affidavit to the motion for setting aside on 25-01-2012. On 26-01-2012, respondents were not in court despite being aware of the date and the motion for setting aside was moved by the appellants and the court adjourned to 28/2/2012 for the respondents to reply. On 28-6-2012, the court delivered its ruling on motion for setting aside the default judgment in favour of the respondents. In other words, the application to set aside the summary judgment filed by the appellants was refused on the 28th of June, 2012, hence this appeal.
The appellants being dissatisfied with the said ruling filed a Notice of Appeal on 10-07-2012 containing 5 (five) grounds of appeal.
In accordance with the practice of this court, parties filed and exchanged their respective briefs of argument. Appellants’ brief of argument settled by O. J. Enenmoh Esq. was dated 21-9-2012 and filed on 24-9-2012. While respondents’ brief of argument settled by Chief (Dr.) E. E. Egbunonu Esq. was dated 22-10-2012 and filed on same date. When the appeal came up for hearing both counsel adopted their respective briefs of argument. Mrs. Enenmoh urged the court to allow the appeal on behalf of the appellants.
While Mr. Nsofor Esq. urged the court to dismiss the appeal.
The appellants formulated four issues for determination as follows:-
(1) Whether the court below was right in refusing to set aside a summary judgment for declaratory reliefs obtained under Order 11 Rule 1 of the High Court of (Anambra State) Civil Procedure Rules 2006 in an action commenced under the general writ of summons order 3 of the said High Court Rules of Anambra State.
(2) Whether the refusal of the court below to look at all the processes before it and dealing with them one way or the other before delivering the judgment does not amount to denial of the appellants right to fair hearing.
(3) Whether the court below was right in refusing to set aside summary judgment given in a declaratory relief in the absence of proof by the respondents.
(4) Whether the court below had the jurisdiction to enter judgment for default of pleadings under Order 11 Rule 1 of the High Court of Anambra State (Civil Procedure) Rules, 2006 and refused to set same aside.
On the part of the respondents, two issues were formulated for determination. The issues are:-
1. Whether the trial court had the jurisdiction to enter summary judgment in respect of the motion filed by the respondents at the lower court as it did.
2. Whether the trial court was right in delivering the summary judgment when an application for extension of time to file statement of defence and frontloaded documents was filed by the appellants and pending before the court.
I have examined the issues formulated by parties. I have noted that appellants issues 1 and 4 are similar with the respondents’ issues 1 and 2. I will therefore adopt the issues formulated by the appellants in determining this appeal.
As clearly stated in the brief of argument, learned counsel for the appellants argued issues 1 and 4 together. For convenience, I would add issue 3 as they are all related. Learned counsel commenced his argument by referring to the provisions of Order 11 Rule 1 and Order 3 Rule 1 of the High Court of Anambra State (Civil Procedure) Rules, 2006. It is the contention of learned counsel that actions for declaration of title is commenced under Order 3 of the High Court of Anambra State (Civil Procedure) Rules, 2006. While action for liquidated money demand are commenced under Order 11 of the said High Court Rules.
According to counsel, the respondents commenced this action under Order 3 while the motion for summary judgment was brought under Order 11 rule 1 of the Anambra State (Civil Procedure) Rules, 2006 on 28-10-2012. That the motion filed on 28-10-2012 for summary judgment was only accompanied by supporting affidavit and a written address. Counsel argued that it is a fundamental principle of law that Rules of court are meant to be obeyed and the word “shall” in the interpretation of status is mandatory. Counsel referred to Order 20 Rules 6 and 12 in support of his contention. It is the view of appellants’ counsel that summary judgments are resorted to by courts and given to the plaintiffs without the necessity of a plenary trial of an action. That they are devices for prompt and expeditious disposal of controversy without trial where there is no dispute as to either material facts, or if only a question of law is involved. See U.B.A. v. Jargaba (2007) 21 N.S.C.Q.R. 144 at 146 ratio 7. That the purpose of summary judgment is to enable the plaintiffs obtain summary judgment without trial where his case is patently clear and unassailable. It is not designed to shut out a defendant who can show that there is a triable issue. Reliance placed on Okambah Ltd v. Alhaji Sule (1990) 11 SCNJ 1 ratio 1.
According to learned counsel, matter under summary judgment are brought specifically under order 11 of the High Court Rule and where good defence is shown the matter will be transferred to the general cause list. That there is no provision in the High Court Rules or any other law for transferring suits commenced under order 3 to order 11 of the High Court Rules. According to him, the only option left for an action commenced under order 3 where there is default of pleading by a defendant is to apply for default judgment under order 20 Rule 6 of the High Court Rules. Learned counsel contended that order 11 cannot be invoked to grant default judgment. Learned counsel submitted that the court below lacked the jurisdiction to grant the reliefs sought in claim brought by writ in an application for summary judgment and ought to have set aside same when the application for setting aside was brought timeously. That the trial court has the jurisdiction to set aside its own judgment where the conditions have been met by the appellant. See Sanusi v. Yoola (1992) 11/12 SCNJ 142 at 142 ration 3. He urged the court to hold that the trial court has the requisite jurisdiction to set aside this default judgment. He urged court to resolve issues 1 and 4 in his favour.
Issue 3 is whether the court below was right in refusing to set aside summary judgment given in a declaratory relief in the absence of proof by the respondents. Learned counsel submitted that it is trite principle of law that a party who seeks declaration of title to land must establish and prove his claim by credible evidence notwithstanding any admission made by the defendant.
That plaintiff must succeed on the strength of his own case and not on the weakness of the defence. Cited in support are: Ohiaeri v. Akabeze (1992) 2 SCNJ 76 at 78 ratio 1, Salu v. Egeibon (1994) 6 SCNJ 223 at 223 at 228 ration 16; Gankon v. Ugochukwu (1993) 6 SCNJ 263 at 265 ratio 13 and Dike v. Okoloedo (1999) 7 SCNJ 248 at 251 ratio 6. He argued that in a declaratory action like this one, onus is always on the plaintiffs to satisfy the court that he is entitled, on the evidence adduced by him, to a declaration of title. See Titilayo v. Olupo (1991) 9 – 10 SCNJ at 125 ration 14, and Sanusi v. Amoyegun (1992) 4 SCNJ 177 at 179 ration 9.
It is therefore the primary duty of the plaintiff to prove his claim and until he does so, he cannot succeed. See also Nkwo v. Iboe (1998) 27 NWLR (Pt.558) 354 at 356. It is the view of learned counsel that the burden is on him who asserts. In a declaratory relief, even where the defendant fails to testify, it will not alleviate the burden of proof on the plaintiff. Reliance placed on Akinyele v. Afribank Plc (2005) 17 NWLR (Pt. 955) 504 at 506 and 507 ratios 2 and 3.
Learned counsel further submitted that in the case at hand, respondents did not adduce any evidence at all to prove their case which involved a declaratory relief. That the statements on oath filed by the respondents was not adopted and hence did amount to evidence. The respondents were also not cross-examined on their depositions in their statement on oath as it was not adopted. He argued that court below ought to have set aside the default judgment as the respondents are not entitled to the judgment on declaratory relief, without proof. Learned counsel contended that in setting aside a judgment obtained in default of either appearance or pleading, the court must among other things consider the following:-
a. The reason for the appellants’ default.
b. Whether there has been undue delay in bringing the application to set aside so as to prejudice the party in whose favour the judgment subsists.
c. Whether the latter party in whose favour the judgment subsists would be prejudiced or embarrassed upon an order for re-hearing of the suit being made, so as to render such course inequitable.
d. Whether the applicant’s case is manifestly unsupportable and
e. The applicant’s conduct through out the proceedings from the service of the writ upon him to the date of judgment, such as to make his application worthy of sympathetic consideration. See Etokhana v. Progress Bank of (Nig.) Plc (1997) 10 NWLR (Pt.526) 616 at 620 ration 3.
That in the present case, the court did not conduct any hearing in court from the date of the institution of the suit till after one year during which period the parties went to settle out of court and eventually filed terms of settlement. See pages 308, 105 – 107, 123 – 125 and 273 of the record of appeal. That default judgment was delivered on 6/12/2011 and the appellants filed the application for setting aside on 9/12/11 and has not been guilty of delay in bringing the application. That respondents would not have been prejudiced if the application is set aside as it was brought timeously. That appellants’ case is supportable as can be seen from the statement of defence and counter claim filed by them on 23/11/2011. See pages 108 – 116 of the record. As to the conduct of the appellants, they were under impression that the matter would be settled out of court. That appellants have satisfied the requirements but the court below refused to set aside same.
Reference made to Etokhana v. Progress Bank of (Nig.) Plc (supra) 620 ration 3. He urged the court to also resolve the issue in favour of respondents.
The response of the respondents are contained under issue 1.
Learned counsel submitted that the trial court acted within its jurisdiction when it entered summary judgment in favour of the respondents on the 6th day of December, 2011 based on the motion for judgment. It is his view that the respondents were within their rights when they brought the application for summary judgment about one year of instituting their suit and appellants failed and/or neglected to file their statement of defence and any other processes connected therewith within time. According to counsel, it does not matter whether the respondents came by order 11 Rule 1 of the Anambra State High Court (Civil Procedure) Rules, 2006 or order 20 of the same High Court (Civil Procedure) Rules, 2006 in bringing the application. What is paramount is the answer to the question, whether justice had been done in the case? Learned counsel referred to the provisions of Order 5 Rule 2 of the Anambra State High Court (Civil Procedure) Rules, 2006, which provides that no proceedings shall be defeated by reason of non-compliance with time, place, manner or form. Reliance was also placed on order 5 rule 3. According to learned counsel the combined reading of the provisions referred to supra and decided authorities, clearly showed that the respondents’ motion for judgment dated 28-10-2011 was rightly heard. That an application does not fail merely because it was brought under a wrong order/rule of court. He cited Olaniyan v. Oyewole (2008) 5 NWLR (Pt. 1079) 114 at pages 140 – 141 wherein it was held that rules of court are not designed to defeat the ends of justice and foreclosing fair trial of cases. See also FSB International Bank Ltd. v. Imano (Nig) Ltd. (2000) 11 NWLR (Pt.679) 620 at 634, 635 and 640 and UTC (Nig.) Ltd. v. Pamotei (1989) 2 NWLR (Pt.103) 244.
Counsel argued that it is merely technical to argue as done by the appellants that Order 11 does not avail the respondents and for that reason the said motion ought to have been struck out. Learned counsel conceded that the court has inherent jurisdiction to set aside its judgment when the conditions have been met by the appellants. He said appellants did not satisfy the court of their willingness to defend the suit as such the court was right to have refused to set aside the said judgment of 6th December, 2012. It is erroneous to argue that the court lacks jurisdiction because the application was brought under order 11 of the Anambra State High Court (Civil Procedure) Rules, 2006.
The respondents took out a writ of summons in respect of this suit pursuant to Order 3 Rule 3 of the Anambra State High Court (Civil Procedure) Rules, 2006. Order 3 Rule 1 provides for, where an interested person claims a declaration. For clarity, order 3 Rule 1 provides:-
“Subject to the provisions of these rules or any applicable law requiring any proceedings to be begun otherwise than by writ, a writ of summons shall be the form of commencing all proceedings.”
It is evident from the record that respondents commenced the suit under rule 8 and sought reliefs which included declaratory relief and injunction on 12-10-2010. See pages 1 – 2 of the record.
However, the motion for summary judgment clearly showed that same was brought pursuant to order 11 Rule 1 of the High Court of Anambra State (Civil Procedure) Rules, 2006 on 28-10-2012. Order 11 Rule 1 provides:-
“When a plaintiff believes that there is no defence to his claim, he SHALL file with his originating process the statement of claim, the exhibits, the depositions of his witness and an application for summary judgment which application shall be supported by an affidavit stating the grounds for his belief and a written address in respect thereof.” As rightly observed by appellant’s counsel the motion for judgment was only accompanied by supporting affidavit and a written address.
This clearly showed that order 11 rule 1 was not complied with. I agree with the submission of appellants’ counsel that respondents should have brought the motion for summary judgment under order 3 of the High Court Rules for default of appearance. A careful perusal of the summary judgment delivered on 6-12-2011 showed that the reason why judgment was entered in favour of the respondents was because appellants failed to enter appearance or file counter-affidavit after being served with the motion for summary judgment. The learned trial judge clearly made reference to order 3 when he said: “In the supporting affidavit deposed to by the 3rd plaintiff. Clement Okoli, the Plaintiff averred among other things that the defendants were served with the processes filed by the plaintiffs and that the forty two days allowed by the High Court Rules have since elapsed and the defendants failed to enter appearance and or file their statement of defence.”
A claim under order 11 is designed to enable a plaintiff obtain summary judgment without necessarily proceeding to trial.
Equivalent to the undefended list procedure, it is meant for a quick disposal of cases, which are virtually uncontested. See Dala Air Services v. Sudan Airways (2005) 3 NWLR (Pt 912) 394 and Dalko v. UBN Plc. (2004) 4 NWLR (Pt. 862) 123. I agree with appellants’ counsel that the summary judgment should have been brought under Order 3 and not Order 11 Rule I of the High Court Anambra State (Civil Procedure) Rules, 2006. But that notwithstanding, as rightly submitted by respondents’ counsel, an application does not fail merely because it was brought under a wrong order or rule of court. Had it been that the claim of the respondents were not for declaratory reliefs, I would have agreed with respondents’ counsel that the trial court had jurisdiction to enter summary judgment in favour of the respondents. However,
in a declaratory action the onus of proof lies on the plaintiff and he must succeed on the strength of his own case and not on the weakness of the defence except where the case of the defence supports the plaintiff s case. See Nkwo v. Iboe (1998) 7 NWLR (Pt. 558) 394 at 356; Salu v. Egeibon (1994) 6 SCNJ 223 at 228, Mobil Producing Nig. Unltd. v. NSESCO Nigeria Ltd. (2010) LPELR – 4491 (CA); Kodilinye v. Odu (1935) 2 WACA 336 at 337 and Odozien v. Odozien (1998) 13 NWLR (Pt.580) at 147.

In Odozien v. Odozien supra this court stated thus:
“I would like to say it loud that a declaration of right is purely discretionary remedy. It is never granted as a matter of course. The court must be satisfied of the desirability of granting it and the only way to satisfy the court is by the plaintiff presenting a very strong and cogent case in his statement of claim and adducing convincing evidence in support thereof. Such is the burden which the plaintiff must discharge, and the plaintiff cannot discharge it by placing reliance on absence of statement of defence.”
In another related case of Maya v. Samouris (2002) 7 NWLR (Pt.765) 78, (2002) 3 S.37 the Supreme Court had this to say:-
“…the requirement for oral evidence arises from the fact that the court has a discretion to grant or refuse a declaratory relief and that its success depends entirely on the strength of the plaintiffs own case and not on defence. A declaratory relief, is only a discretionary relief, the court has a discretion whether or not to grant a motion for judgment in default of defence in respect of such a claim, the fact that the plaintiff is entitled to such judgment on the face of his statement of claim notwithstanding”.

Appellants’ counsel had submitted that the learned trial judge summarily entered judgment in favour of the respondents without the respondents adducing evidence, at all to prove their case which involved declaratory relief. It is to be noted that the statement on oath filed by the respondents was not adopted and hence did not amount to evidence. The respondents were also not cross-examined on their depositions in their statements on oaths as it was not adopted. The respondents as plaintiffs made allegations of facts in their pleading and failed to discharge the burden of proving those facts by credible evidence as required by law. Therefore the trial court ought not to have granted the respondents’ summary judgment under the circumstance. I hold that the trial court erred in granting summary judgment to the respondents for the claims in this case on the grounds of default of appearance and pleadings by the defendant as such judgment is not backed by law and has occasioned miscarriage of justice against the appellants. I will therefore resolve issues 1, 3, and 4 in favour of the appellants.
The complaint of the appellants under issue two relates to the refusal of the court below to look at all the processes filed and pending before it and dealing with them one way or the other before delivering its judgment. The question is whether it amounts to denial of appellant’s right to fair hearing. Learned counsel for the appellants submitted that the essence of fair hearing under the constitution is a hearing which is fair to both parties to the suit be they the plaintiff or defendants. That it does not contemplate a standard of justice in which the court must be fair to both sides to the conflict. See Ekiyor v. Bomer (1997) 9 NWLR (Pt 519) 1 at 3 ratio 2. According to counsel, respondents instituted this action on 12/10/10 but the matter did not come up in court until 14/11/2011.
He said both parties did not come to court before 14/11/2011 because the parties went for settlement out of court, after the suit was instituted. That the terms of settlement was filed on 11-10-2011, while a counter-affidavit was field on 28-10-2011. The application for summary judgment was filed on 28-10-2011. The complaint of appellants’ counsel is that the lower court only gave audience to the respondents to move the motion for summary judgment and to withdraw the motion for interlocutory injunction.
The appellants’ counsel was not allowed to reply on point of law.
According to counsel before the date fixed for judgment, he filed a motion for extension of time to file their statements of defence, statement on oath of witnesses and other relevant processes and paid default fees but the court went ahead and delivered the default judgment. Counsel further submitted that he also filed a counter-affidavit to the motion for summary judgment on 23/11/2011 but though he was in court, he was not allowed to move the motion for extension of time. That it is a denial of justice for the court to shut its eyes against material documentary evidence before it, relevant to the issue in controversy between the parties. Referred in support is the case of Ekiyor v. Bomor (1997) 9 NWLR (Pt.519) 1 at 3 ratio 3. That the court is bound to place parties on equal footing in presenting their cases in court. Appellants’ further complaint is that respondents were granted three adjournments to appear in court and oppose the application for setting aside. He argued that the court below did not grant fair hearing to the appellants by not allowing their counsel to either reply on point of law to the motion for summary judgment or move the application for extension of time before proceeding to give default judgment to the respondents. Learned counsel submitted that appellants were not accorded fair hearing as such the proceeding should be declared a nullity. See Abana v. Obi (2005) 6 NWLR (Pt. 920) 183 ratio 9. Reference was also made to Ekiyor v. Bomor (supra) ratios 1 and 8 in support of the contention that where a proceeding of a court is rendered a nullity, it must be set aside. That the court below ought to have set aside the default judgment and urged the court to so hold. He urged the court to resolve issue 2 in favour of the appellants.
In response to issue two, learned counsel for the respondents submitted that every citizen is entitled to be heard fairly before any decision affecting his civil rights and obligations is taken. See S.36(1) of the 1999 constitution as amended. That this constitutional provision is not at large. According to counsel, the appellants came up with a motion for extension of time before the motion for summary judgment was heard. That ordinarily, the court would have considered their application and taken a decision one way or the other but the conduct of the appellants was sluggish and disclosed an unnecessary waste of time. Learned counsel submitted that from the record of appeal at pages 30 – 35 it is clear that the said motion was dated and filed on the 28th of October 2011 and was moved by the respondents and judgment delivered on the 6th day of December, 2011 as shown at page 282 – 285 of the record of appeal. He said the appellants’ motion for extension of time was not taken by the court. Learned counsel conceded that it is a cardinal principle of the administration of justice to let a party know the fate of his application placed before the court. It was his view that all applications properly paid for and filed in court ought to be taken unless the court finds otherwise like in this case. Reliance was placed on the case of NALSA & Team Associates v. N.N.P.C. (1991) 8 NWLR (pt. 212) 652 at 676. 652 at 676. The appellants had not shown why the lower court ought to have taken the said motion. Counsel also submitted that there was no genuine attempt by the appellants to settle involving all parties.
That since the issue of setting aside the summary judgment relates to discretion, the trial court depending on its perception of the appellants application had the inherent power to exercise its discretion as it deemed fit provided it was exercised judicially and judiciously.
Appellants’ counsel had complained that on 14-11-2011 though he was in court when the motion on notice seeking for summary judgment filed by the respondents was moved, the court did not allow him to reply on point of law and the court also failed to consider the counter-affidavit he filed on 23-11-2011. It is evident from the date of filing that the counter affidavit was filed after the motion for summary judgment filed by the respondents was argued. The appellants however, filed a motion on notice seeking for an order setting aside the summary judgment delivered on 6/12/2011. It is not in dispute and the proceedings of 26/01/2012; 28/02/2012; 27/03/2012; 19/04/2012 and 05/06/2012 bear this out that though appellants’ counsel was in court, he was not given opportunity to move his motion on notice seeking for extension of time within which to file his statement of defence.
The learned trial judge conceded to this fact in his ruling refusing to set aside the summary judgment on 28-6-2012. The learned trial judge in his ruling at page 320 of the record stated thus: “The operative factor is that the defendants if he feels he has a defence shall file his pleadings, and deposition for the court to consider. I must add here quickly, that mere filing does not prove the requirement. The party has to give life to the motion by moving and arguing it before the court. Where as in this case, the defendant’s counsel had opportunity but did not move or argue the motion, he cannot be heard to complain that the court had no jurisdiction to hear and enter judgment for the plaintiff.” The appellants could not have moved the application without the permission of the court as such it was wrong for the learned trial judge to say that appellants’ counsel refused to move the application. No matter how frivolous the application may be, the trial court is duty bound to hear it and give decision one way or the other. In Nalsa & Team Associates v. N.N.P.C. (1991) 8 NWLR (Pt.212) 652 at 676 it was held that the court has a duty to hear all applications properly before it. It is evident that the trial court did not consider the material documentary evidence placed before it. There was a breach of the rule of natural justice audi alteram partem and the hearing on the motion cannot be described as fair, as enshrined in Section 36(1) of the 1999 constitution which provides:-
“In the determination of his civil rights and obligations, including any question or determination, by or against any government authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its Independence and impartiality,”

What is the meaning of fair hearing? The apex court per Sir Ademola CJN, provided an answer in Mohammed v. Kano Native Authority (1968) 1 ALL NLR 424, 428 – 429, 1968 ANLR 411, 413 wherein it was said:-
“It has been suggested that a fair hearing does not mean a fair trial. We think a fair hearing must involve a fair trial, and fair trial, of a case consists of the whole hearing. We therefore see no difference between the two. The true test of a fair hearing, it was suggested by counsel is the impression of a reasonable person who was present at the trial whether from his observation, justice had been done in the case. We feel obliged to agree with this.”
See also Longe v. First Bank Nigeria Plc (2010) 2-3 SC 2-3 SC (Pt. 111) 61.

The learned trial judge raised the issue in his ruling at page 320 of the record that the appellants memorandum of appearance was filed out of time without leave of court. Even if the appellants were not properly before the court, respondents were not relieved of the burden of proving their case being claim for declaratory reliefs. Failure to hear the application filed by the appellants is fatal to the proceedings and renders same a nullity. Even if the trial court would come to the same conclusion the procedure adopted was wrong. Having regard to the circumstances, the learned trial judge ought to have granted the application to set aside the summary judgment and determine the suit on merit. See Ekiyor v. Bomor (1997) 9 NWLR (Pt. 519) 1 at 10 Madukolu & Ors. v. Nkemdilim (1962) 2 SCNLR 341; (1962) 1 ANLR (Pt.4) 587 – 590 and Nwokoro & Ors v. Onuma & Or (1990) 3 NWLR (Pt.136) 22. The decision of the trial court is therefore a nullity.
Accordingly, issue 2 is resolved in favour of the appellants.
The net result is that this appeal succeeds and it is allowed by me. The summary judgment delivered by Anigbogu J. of High Court Aguata Anambra State delivered on 6-12-2011 and the Ruling refusing to set aside the summary judgment delivered on 28-06-2012 by Anigbogu J. of High Court Aguata Anambra State are hereby set aside. The case is remitted back to the Chief Judge Anambra State for assignment to another judge to be heard and determined afresh (denovo). Parties to bear their own costs.

IGNATIUS IGWE AGUBE, J.C.A.: I agree.

EMMANUEL AKOMAYE AGIM, J.C.A.: I had read the erudite judgment just delivered by my learned Sister ADZIRA GANA MSHELIA, JCA. I am in complete with the reasoning and conclusions therein.
I agree that the appeal has merit and is therefore allowed.
The Anambra State High Court Judgment delivered on 6-12-2011 and ruling on 28-6-2012 refusing to set aside the said Judgment in suit NO AG/89/2000 are hereby set aside. The said suit NO AG/89/2000 shall be heard de novo by the Anambra State High Court. Parties shall bear their own costs.

Appearances

Mrs O. J. OnenmohFor Appellant

AND

I.C. NsoforFor Respondent