In The Court of Appeal of Nigeria

On Friday, the 12th day of May, 2000



ISAAYO SALAMI                                                                                 Justice of The Court of Appeal of Nigeria

VICTOR AIMEPOMO OYELEYE OMAGE                                          Justice of The Court of Appeal of Nigeria

OLUDADE OLADAPO OBADINA                                                        Justice of The Court of Appeal of Nigeria



    2. ENGR. A. M. YUSUF – Appellant(s)


SNC LAVALIN NIG. LTD. – Respondent(s)


SALAMI, J.C.A.: (Delivering the Leading Judgment): In this appeal, the defendants are appealing against the refusal of the trial court to set aside its decision in an action brought under undefended list.
The plaintiff commenced an action in Zamfara State High Court of Justice under the undefended list claiming against the defendants jointly and severally the sum of N400,000.00 being the amount drawn on an Africa International Bank Ltd. cheque by the plaintiff, which was irregularly cleared and paid, by the first defendant to the second defendant. The defendants were duly served with the writ of summons and hearing notices fixing the matter for hearing against the 7th June, 1999 and certificates of service were duly deposed to by the court’s bailiff.
The defendants neither filed their respective memorandum of appearance nor notice of their intention to defend the claim and affidavit disclosing defence on the merit. On the date fixed for hearing, the matter was heard on the undefended list and judgment entered against both defendants pursuance of Order 22 rule 4 of the Sokoto State High Court (Civil Procedure) Rules, 1993, applicable in Zamfara State of Nigeria.
On receipt of the judgment, the defendants filed a motion on notice seeking the setting aside of the judgment but the application was refused by the trial court. The applicants were aggrieved by the refusal to set aside the judgment and appealed to this court on 3 grounds of appeal.
The parties filed and exchanged briefs of argument. The appellants in their brief formulated one issue even though they filed three grounds of appeal along with their notice of appeal. The appellants’ only issue reads as follows:-
“Whether having regard to the conflicting dates on the hearing notices issued by the court and a proper construction of the rules of court concerning a writ taken out under the “undefended list” judgment was properly entered for the plaintiff in the court below.”
On the other hand, the respondent’s brief of argument also contains the following issue for determination:-
“Whether in the factual circumstances of this case, the learned trial Judge was right in entering judgment against the appellants and refusing to set aside.”
It seems to me that the appellants’ only issue is a compound one as it rolls two separate issues, one of issuing multiple hearing notices and the other of construction of the relevant rules, into one. Not only is this approach contrary to practice and procedure of this court such approach invariably leads to a muddle.
While an issue may be framed from one or more grounds of appeal it is not encouraging to fragment a ground of appeal into several issues or merging different issues emerging from separate grounds of appeal into one.
The appellants’ main grouse is that the suit was prematurely heard and determined by the trial court. It was contended in the appellants’ brief that court should determine the effect of the learned trial Judge’s instruction to the court’s Registrar to adjourn the matter to the 23rd June, 1999 for hearing after the appellant’s Counsel pleaded with the court that he had to travel to his home town. He referred the court to pages 14 and 17 of the record for a copy of the fresh hearing notice issued against 23rd June, 1999 and the bailiff’s affidavit of service of the hearing notice. Learned Counsel referred the court to paragraphs 3, 4, 5 and 6 of the affidavit in support of the motion to set aside the judgment and paragraphs 3 and 4 of the counter-affidavit and contended that if averments in both affidavits are read together the conclusion is that after a change in the date of hearing by both counsel as well as the trial Judge in Chambers the court mistakenly sat on 7th June, 1999. Counsel then submitted that by the agreement to shift the hearing date forward the trial court lacked jurisdiction and further submitted that it is trite law that where a court sits without jurisdiction or competence the proceedings however well conducted is a nullity: See NB.N Ltd. v. Weide & Co. Nig. Ltd. (1996) 8 NWLR (pt. 465) 150, (1996) 9/10 SCNJ 147; 160. Learned Counsel for appellant further contended that there seems to be no dispute that Counsel on both sides agreed and were asked by the learned trial Judge to take a fresh date. Learned counsel for appellant argued that it was no longer necessary for him to write the court contrary to his alleged agreement with his learned friend having met the trial Judge and agreed with her verbally and submitted that learned Counsel for respondent ought to have reminded the court.
Learned counsel argued that failure to write the court for an adjournment against the 7th June, 1999 was a mistake on his part and submitted that inadvertence of Counsel should not be visited on his client: Onwunari Long John v. Chief C.N. Blakk & Others (1998) 5 SCNJ 68. 87-88, (1998) 6 NWLR (Pt.555) 524 and Iyalabani Co. Ltd. v. Bank of Baroda (1995) 4 SCNJ 1,4, (1995) 4 NWLR (Pt.387) 20.
Learned Counsel for appellant finally submitted that learned Counsel having agreed with his learned friend for the appellant that the case be adjourned to the 23rd June, 1999 for hearing, learned Counsel for respondent was estopped from moving the court for judgment on the 7th June, 1999. He further submitted that his action in so doing amounted to approbation and reprobation and such is not permitted in law on the same fact. He relied on the cases of Ogualaji v. Attorney General Rivers State (1997) 6 NWLR (Pt. 508) 209, (1997) 5 SCNJ 240, 248 and Agidigbi v. Agidigbi & Others (1996) 6 NWLR (Pt. 454) 300, (1996) 6 SCNJ 105, 119.
It is apt to refer to the averments in the affidavits in support of the application to set aside the judgment of the trial court and the counter- affidavit to which the court was directed in the appellant’s brief. Paragraphs 3, 4, 5 and 6 of the affidavit in support read as follows:-
“2. That upon my briefing by the applicants/judgment debtors I understood that the matter was fixed for hearing on the 7th of June, 1999.
3. That because I was already booked to travel down to my home town (Erin-lle in Kwara State) to attend my late father’s burial ceremony scheduled for the 5th of June, 1999 I met my Lord, the presiding Judge and explained the situation of things to him.
4. That the Registrar was called and was instructed to change the date to date earlier agreed on by myself and Counsel to the plaintiff.
5. That upon the said instruction, the court Registrar fixed the case for the 23rd of June, 1999 and issued a fresh hearing notice to that effect. Find attached herewith a copy of the said hearing notices marked Exh. ‘A’.”
There is confusion in the paragraphing of the counter-affidavit which is not elegantly numbered. It seems to me that the second set of numbering is subparagraphs of paragraph 3. I believe the appellants had in mind sub-paragraphs (3) and (4) of paragraph 3 in the appellant’s briefs of argument. I however, recite herein for completeness paragraph 3(1), (2), (3), (4), (5) and (6) which read as follows:-
“(1) That service of the writ of summons (undefended list) and the hearing notice in suit ZMS/GS/9/99 was effected personally on all the judgment debtors on 20/5/99 and the case was slated for hearing on 7/6/99.
(2) That when Mr. J. O. Alabi met with Mr. Lasco P.M. of Counsel, he only indicated that he would be appearing for 2nd judgment-debtor but he was scheduled to travel to his home town for burial ceremony of his late father.
(3) That Mr. Lasco then advised Mr. Alabi that despite that a date was agreed all between them, it was necessary that he should write a letter to the court against the 7/6/99 seeking for an adjournment.
(4) That the hearing notice served on the 1st judgment-debtor as exhibited to the supporting affidavit was neither served on the judgment creditor nor the 1st judgment debtor (sic).
(5) That on 7/6/99 when the matter was listed for hearing neither of the judgment-debtors was in court nor was any communication made to the court explaining their absence.
(6) That before judgment was entered, the court ascertained from the available records that the judgment-debtors were all served against 7/6/99.”
It can be garnered from the paragraphs of affidavit in support of the application and the counter-affidavit that there was never an occasion when the court sat with both Counsel present and formally adjourned the case to 23rd June, 1999.
It can further be garnered from both affidavits that learned Counsel agreed to the matter being adjourned to a later date not necessarily 23rd June, 1999 which learned counsel for appellant is insisting upon. It is unlikely that both Counsels can adjourn a matter to a particular date without taking the convenience of the court into account. The respondent’s version to the effect that learned Counsel for respondent was informed by learned Counsel for the appellant that 7th June, 1999 was not convenient for him and he was advised to write the court asking for an adjournment which advice was not followed is more probable. It explains why there was no communication on the court’s record asking for an adjournment. In the absence of such communication copied to the respondent’s Counsel, the latter would be entitled to assume that the learned Counsel for appellants had changed his mind on the request for postponement of the hearing date or was no longer acting for any of the defendants.
Furthermore, on the date fixed for hearing, none of the defendants was in court. Learned counsel failed to arrange for a Counsel to hold his brief. If the defendants, who must have been informed by their counsel of his inability to be in court, were not sufficiently interested in their case to motivate their appearance in court what duty of care does learned Counsel for the plaintiff owe them? Certainly none.
Finally on the point of postponement, learned Counsel for the appellant adroitly and cautiously avoided the question of issuing and serving hearing notices on the respondent and the second appellant. The hearing notice exhibited to the affidavit in support of the application and marked Exhibit A was addressed to the “Manager Afribank Nigeria Plc.”. Learned Counsel for appellant was fortuitously silent over the issue of service on the second appellant and the respondent herein. The bailiff, according to the submission of the learned Counsel for appellant, in the appellant’s brief did not only serve the first appellant but also deposed to an affidavit of service on the first appellant. The relevant affidavit of service is at page 17 of the record of proceedings. There are certain errors on the face of the document which either renders it invalid or suspect. The person to be served is entered in the column provided for the date the service was effected and the date was inserted in the portion provided for the party upon whom service was to be effected. Paragraph 1 of the affidavit of service roughly reads as follows:-
“That on the day of 1st defendant, I served upon 23rd June, 1999…” It shows that the document allegedly prepared on 25th May, 1999 was served on 23rd June, 1999, the very day to which appellants’ Counsel claims the matter was adjourned even though one M. Mojisola signed for it on 26/5/99. All documents or processes served on the first appellant bear its rubber stamp impressions but the affidavit of service and the hearing notice allegedly adjourning the case to 23rd June, 1999, no where carried the stamp impressions. It is equally significant to note that while no one acknowledged receipt of the hearing notice one ‘Modele Mojisola’ signed for the seriously defective affidavit of service on behalf of Afribank Nig. Plc. Gusau, on 26/5/99. It is the hearing notice that is usually signed for and not affidavit of service which are made invariably after effecting service as evidence of service.
The registrar who was called and instructed to issue fresh hearing notice by the learned trial Judge is a necessary and competent witness. He ought to have been invited to depose to an affidavit supporting learned Counsel for appellant’s claim that he approached the learned trial Judge for an adjournment and the registrar was accordingly instructed to cause hearing notices to be issued to the parties. He is further to explain why he did not issue hearing notices on the respondent and the second appellant, and if he did, why those parties were not served. Failure to serve the other two parties to the proceedings particularly the respondent remains a hurdle for appellants to scale.
The appellants did not relieve themselves of one burden. The burden of the court relating Counsel’s verbal request for adjournment, if he ever made one, to the appellants. There is nothing on record from the commencement of the suit up to the judgment connecting learned Counsel to this case or his clients. How then does he expect the learned trial Judge to know, not to talk about remembering, that the appellants were being represented by the learned counsel. Learned trial Judge, like all other Judges, is human, he is not a piece of computer hardware in which all sorts of information are stored. He had his own, apart from problem of office, personal problem to contend with. If learned counsel for appellant had filed memorandum or memoranda of appearance or written a letter, as he was counselled by learned Counsel for the respondent, such process or letter would probably have served as a reminder to the court. The case of Ogulaji v. A.G. Rivers State (supra) and Agidigbi v. Agidigbi (supra) are inapplicable. The position would have been different if some processes had been filed showing Mr. Alabi as Counsel: Adewunmi v. Plastex Ltd. (1986) 3NWLR (Pt. 32) 767. A mere discussion between Counsel is not enough.
In the circumstances, there is nothing before the court ousting its jurisdiction or competence on 7th June, 1999 when it entered judgment in favour of the respondent. The case of National Bank of Nigeria Ltd. v. Weide & Co. Nigeria Ltd. (supra) is, therefore, not apposite having regard to the peculiar circumstance of this case. There is nothing on record, as I observed earlier in this judgment, that the matter was formally adjourned in court as it is being insinuated by learned Counsel for appellants in his submission. And if there were he failed to direct our attention to it. To sustain their posture in their brief they have to successfully challenge the record. Generally, it is trite that extraneous evidence will not be accepted in substitution for judicially or legally admitted evidence Ezeakabekwe v. Emenike (1998) 11 NWLR (pt. 575) 529, (1998) 62 LRCN 4855 at 4875, Odje v. Ovien (1992) 7 NWLR (Pt. 253) 309. The finding of the learned trial Judge to the effect that appellants had been served with processes showing 7th June as return date and not 23rd June before proceeding to judgment had not been appealed against and it subsists until it is set aside. See Ibrahim v. Barde (1996) 42 LRCN 1919, 2027 (1996) 9 NWLR (pt.474) 513 cited in the respondent’s brief and Adebayo v. Shonowo (1969) 1 All NLR 176,194 where the Supreme Court per Coker JSC said:-
“………but until the judgment, however, perverse it may prove to be when the true facts are elicited; is set aside it subsists as a judgment and must be deemed to constitute the cover under which the amount was paid……
This is trite law but if authority be needed for the proposition reference can be made to the decision of the House of Lords in Jonesco v. Beard (1930) AC 298.”
This court cannot, in the absence of a ground of appeal attacking the finding of the court that appellants were served against 7th June, 1999, contrary to their claim that the matter was adjourned to 23rd June, 1999, accept their version which is impliedly rejected by the trial court. It subsists until set aside and cannot be set aside unless and until there is a successful appeal based on competent ground of appeal against it.
The submission of the learned Counsel for the appellants predicated upon the cases John v. Black (supra) and Iyalabani v. Bank of Baroda to the effect that although blunders may occur from time to time and it may amount to injustice to insist that because of a blunder during interlocutory or in the course of proceedings has been committed the party blundering must necessarily incur the penalty of not having the dispute between him and the adversary determined upon the merits is clearly misconceived. The learned Counsel for the appellant is acting under misapprehension of the law since he does not appear to appreciate that the dispute between the parties, in the suit resulting in this appeal, has been determined on the merit. Having regard to the peculiar procedure applicable to cases brought under Order 22 of the High Court (Civil Procedure) Rules, styled “The undefended list”, the defendant or defendants are required under the provisions of rule 3(1) thereof to deliver in writing notice of intention to defend coupled with an affidavit disclosing a defence on the merit not less than five days before the date fixed for hearing. Where any defendant, as in the instant case, neglects to deliver the notice of intention to defend together with affidavit as prescribed in rule 3(1) the court would be entitled to treat the case as undefended suit under rule 4 and enter judgment in favour of appellant without calling upon the plaintiff to summon witnesses to prove its case.

Order 22 rules 3(1) and 4 of the High Court (Civil Procedure) Rules, provide as follows:-“3(1) If the party served with the writ of summons and documents as provided in Rule 2 hereby delivers to the Registrar, not less than five days before the day fixed for hearing, a notice in writing that he intends to defend the suit, the court may give him leave to defend upon such terms as the court may think just.
4. Where any defendant neglects to deliver the notice of defence and affidavit prescribed by rule 3(1) or is not given leave to defend by the court, the suit shall be heard as an undefended suit, and judgment given therein, without calling upon the plaintiff to summon witnesses before the court to prove his case formally.” (Italics mine)
The defendants were required under Order 22 rule 3(1) to give notice of intention to defend the suit “not less than five days before the day fixed for hearing” on the writ of summons and documents served on him as provided under Order 22 rule 2. The rule envisaged a situation whereby the notice of intention to defend as well as affidavit showing a defence on the merit would have been given or filed “not less than five days before the day fixed for hearing” and not before an adjourned or subsequent adjourned dates. The appellants were expected to have filed notice of defence “not less than five days” before 7th June, 1999 and not before 23rd June, 1999, as contended by them even if the matter were adjourned to 23rd June, 1999. On that adjourned day, assuming the court granted the appellants such concession, which is not conceded, it would perfectly be within the competence of the court, if the appellants neglected to give notice of their intentions to defend as well as deposing to affidavit disclosing defence on the merit, “not less than five days before” 7th June, 1999 to enter judgment in favour of the respondent; U.T.C. (Nig.) Ltd. v. Pamotei (1989) 2 NWLR (Pt. 103) 244; U.A.C (Technical) Ltd. v. Anglo-Canadian Cement Ltd. (1966) NMLR 349 and Olubusola Stores v. Standard Bank of Nigeria Ltd. (1975) 4 SC 51.,
Through the proceedings in the court below the appellants did not comply with the provisions of Order 22 rule 3(1) of the Rules to enable the trial court consider them for exercise of its discretion. See Williams v. Hope Rising Voluntary Funds Society (1982) 1-2 SC 145.
It is now fashionable for learned Counsel for defendant in an action brought under undefended list to seek to set aside such judgment after it had been entered on the date fixed for hearing as if such judgment was a default one. Even if defendant is present in court and had not delivered notice of intention to put in defence along with an affidavit showing defence on the merit he will not be entitled to participate in the proceedings. See U.A.C. Technical Limited v. Anglo Canadian Cement Limited (1966) NMLR 350. Such judgment is a judgment on the merit which can be set aside only on appeal or by another suit on the ground of fraud: Ainsworth v. Wilding (1896) 1 Ch. D 673 and Kinch v. Walcott (1929) AC 482, 493. The appellants, in the instant case, have not, in the circumstance here, appealed against the judgment of the learned trial Judge entered in favour of the respondent on 7th June, 1999. The judgment cannot be set aside by the trial court as that court lacks competence under the provisions of Order 22 of the High Court (Civil Procedure) Rules to set its own decision under the undefended list aside. Such decision can only be set aside on successful appeal to this court.
Having resolved the appellants only issue against them grounds 1 and 2 from which they are framed fail and are dismissed. The appellants did not formulate any issue from ground 3 of the grounds of appeal and it is deemed abandoned. Ground 3 of the grounds of appeal is consequently dismissed.
The appeal fails and it is dismissed by me. The decision of the learned trial Judge, Kulu Aliyu J. is affirmed. The respondent is entitled to the costs of this appeal which is assessed at N4,000.00

OMAGE, J.C.A: This appeal is founded on the one main complaint which is whether the averment is true that the learned trial Judge before the date fixed for hearing of the suit being 7th June, 1999, instructed the Registrar of court to alter the date of hearing to 23rd June, 1999, in the presence of both respondent and the appellants’ counsel. So went the deposition of the appellants’ counsel in his affidavit in support of the motion to set aside the judgment of the lower court, which derived from a hearing in an undefended suit procedure which took place on 7th June, 1999.
The only issue raised from the three grounds of appeal filed by the appellant read as follows:- “Whether having regard to the conflicting dates on the hearing notices issued by the court and a proper construction of the rules of court concerning a writ taken out under the ‘undefended list.’
Judgment was properly entered for the plaintiff in the court below.”
The respondents claim before this court below is for the sum of N400,000 which the plaintiff said he gave by cheque to the 2nd appellant to be delivered to the company, Team Mates Drillers for Eddas Ventures Ltd. who are subcontractor, the 2nd appellant works for Team Mates Drillers. The respondent as plaintiff in the court below stated in the affidavit in support of the motion for judgment, that the 2nd appellant did not deliver the said cheque to Team Mates Drillers, or to Ebba Eddas Ventures but paid the said cheque into the .personal account of the 2nd defendant with the 1st appellant Afribank Nig. Plc. The latter encashed the cheque in favour of the 2nd appellant. Consequently, the money N400,000 paid by respondent to Team Mates Driller for the drilling of a bore hole for the plaintiff did not reach the Drillers, and the drilling contracted for was not done. To recover his money, the respondent on 2nd April, 1999, issued a writ of summons under the undefended suit procedure against the Afribank Nig. Plc, as the 1st defendant and Engineer A. M. Yusuf as the 2nd defendant. Upon service of the process on the defendants, with knowledge that hearing in the claim will take place on the 7th day of June, 1999, the defendants’ Counsel averred that he went prior to the hearing date in the company of the plaintiffs counsel to the learned trial Judge to request for a postponement of the hearing date to 23rd June, 1999. Appellants Counsel said the Judge agreed and instructed the registrar to issue a hearing notice to 23rd June, 1999 in the suit.
On the 7th June, 1999, the case was heard and judgment was awarded in favour of the respondent. The respondent in his brief has stated the position of the law that judgment was awarded to the respondent because there was not before the court on that date notice of intention to defend the claim as of 7th June, 1999.
The averment is clear that the appellant was served the writ of summons in the suit on 20th May, 1999 and the appellants Counsel by his own showing was due to travel for the burial of his father on the 5th day of June, 1999, any discerning person would ask the question. Was there not ample time to have placed a notice of intention to defend between 20th May, and 5th June, 1999. If indeed appellant wishes to defend. The answer to the above question is the main issue upon which the court below refused the appellant’s application to set aside the judgment of the court. The resolution of the issue is the content the content of the judgment of my learned brother Isa Ayo Salami JCA. I am in agreement with the reasoning and conclusion that there is no merit in the appeal, and it should be dismissed. I too would dismiss the appeal. I do, and affirm the judgment of the court below. I abide by the consequential order as to costs.

OBADINA, J.C.A: I have had the privilege of reading in draft, the judgment of my learned brother, Salami, JCA. His Lordship has lucidly dealt with all the issues arising for determination of the appeal. I agree entirely with his reasoning and conclusion that the appeal is unmeritorious.
I therefore dismiss the appeal and abide by the consequential orders contained in said lead judgment.
Appeal dismissed.



  1. B. O. Ibitoye, Esq. (with him, J.O. Alabi, Esq.) For Appellant



  1. M. Lasco, Esq. For Respondent



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