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AUGUSTINE ITA AKPAN & ANOR v. MR. UDUAK ISOBARA (2019)

AUGUSTINE ITA AKPAN & ANOR v. MR. UDUAK ISOBARA

(2019)LCN/13600(CA)

In The Court of Appeal of Nigeria

On Monday, the 1st day of July, 2019

CA/C/76/2015

 

JUSTICES

MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria

OBANDE FESTUS OGBUINYA Justice of The Court of Appeal of Nigeria

YARGATA BYENCHIT NIMPAR Justice of The Court of Appeal of Nigeria

Between

1.AUGUSTINE ITA AKPAN
2.DR. (MRS.) EDNA ITA AKPAN Appellant(s)

AND

MR. UDUAK ISOBARA Respondent(s)

RATIO

THE CARDINAL RULE OF INTERPRETATION OF STATUTES

The first is the ordinary ? meaning canon otherwise known as the Literal rule of interpretation. That is, the words of a statute are to be taken in their natural and ordinary signification and import unless the con indicates that they bear a technical sense. In other words, the proper approach to the interpretation of clear and unambiguous words of a statute is to follow their literal and grammatical meaning except such construction will lead to absurdity or would be contrary to the intention of the statute. See YUSUF V. OBASANJO (2005) 18 NWLR 956; EHUWA V. ONDO STATE I. E. C. & ORS (2006) 10 NWLR (PT. 1012) 544 @ 588; K. S. I. E. C v. P. D. P (2005) 6 NWLR (PT. 920) 39; A. G. LAGOS STATE V. A. G. FED. (2014) 9 NWLR (PT. 1412) 217 SC; UTOMUDO V. MIL. GOV. BENDEL STATE (2014) 11 NWLR (PT. 1417) 97 SC; UKACHUKWU V. P.D.P (2014) 17 NWLR (PT. 1435) 134 SC; REGD. TRUSTEES, A.O.N. V. N. A. M. A (2014) 8 NWLR (PT. 1408) 1 SC; OLANREWAJU V. OYESOMI (2014) 11 NWLR (PT. 1418) 258 SC. PER OWOADE, J.C.A.

WHETHER OR NOT THE TRUTH FINDING PROCESS MUST CONFORM TO PROCEDURES AND THE DUE PROCESS OF LAW

In any event, the ends of justice cannot be served by searching for the truth at any costs. The truth finding process must necessarily conform to procedures and due process of law. While the paramount consideration is the truth, the Judge is not permitted to search for the truth by any means. See OGBODU V. ODOGHA (1967) N.M.L.R 221; EVOYOMA V. DAREGBA (1968) N.M.L.R. 389; DURUMINIYA V. C. O. P. (1962) N.N.L.R 70; R. V. WILCOX (1961) ALL N.L.R.631.
Indeed, the rules of Court must be obeyed because Courts do not administer justice in the abstract and the justice administered by the Courts is justice according to the law. See CHUBA CHUKWUOGOR & ORS V. CHUKWUMA CHUKWUOGOR (2007) ALL FWLR (349) 1154; ALALE V. OLU (2001) 7 NWLR (PT. 711) 119 @ 127; SUNDAY OKODUWA V. THE STATE (1988) 5 NWLR (PT. 76) 333. PER OWOADE, J.C.A.

THE CONSEQUENCES OF LACK OF JURISDICTION OF THE COURT
There is abundant case law on the consequences of lack of jurisdiction and (or lack of fair hearing) to the effect that such proceedings are a nullity. See N.I.I.T ZARIA V.DANGE (2008) 9 NWLR (PT. 1091) 127; O.O.M.F. LTD. V. NACB LTD. (2008) 12 NWLR (PT. 1098) 412; NKWOCHA V. MTN (NIG.) COMM. LTD. (2008) 11 NWLR (PT. 1099) 439; AMECHI V. OKOYE (2008) 2 NWLR (PT. 1101) 546; ESSIEN V. EDET (2004) 5 NWLR (PT. 867) 519; UBA PLC V. CONTRACT RESOURCES (NIG.) LTD. (2004) 5 NWLR (PT. 867) 468; JOHN ANDY SONS & CO. LTD. V. MFON (2006) 12 NWLR (PT. 995) 461; FABS LTD. V. IBIYEYE (2008) 14 NWLR (PT. 1107) 375. PER OWOADE, J.C.A.

MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Akwa Ibom State High Court of Justice, presided over by Hon. Justice Pius P. Idiong delivered in the Uyo Judicial Division on 17/10/2014.

The respondent who was the Claimant in the Court below instituted this action against the Appellants claiming the sum of N14,500,000.00 being
The sum of money Claimant paid as full payment to the Defendants for the purchase of two parcels of land situated along Airport Road, Ibiaku Ishiet ? Uruan Local Government of Akwa Ibom State, which parcels of land were acquired by the Government of Akwa Ibom State and ought not to have been sold by any individual, a fact which the Defendants knew but fraudulently concealed from the Claimant.

The Respondent also claimed N200,000.00 as the cost of the action as well as interest of 10% per annum from the date of the judgment until final liquidation of the judgment sum.

?The Appellant filed notice of intention to defend where upon the Respondent filed ?Further affidavit of the Claimant?. The learned trial Judge

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delivered his judgment on 17th October, 2014, where upon the trial Judge entered judgment in the sum claimed, interest at 10% from the date of judgment until the entire sum is liquidated as well as cost of N30,000.00.

The reasoning of the trial Judge in coming to a conclusion which seems to be a mix-up of the Undefended List procedure and a trial under the General Cause list could be found at pages 59 to 64 of the Record of Appeal. First, at pages 59-60 that:
(1) I think there is no dispute at all on the issue of collection of the sum of N10,000,000.00 with respect to the said first parcel of land see paragraph 4 of the Defendant?s affidavit. The only issue which arises has to do with ownership of the second parcel of land for which the Defendants have admitted that the Claimant paid the sum of N4,500.000. By the said paragraph 4 of the Defendant?s affidavit, it is their case that the same comprises of three plots of land which respectively belonged to three different other persons. Surprisingly, the Defendants did not name the said three persons who were alleged to have previously owned the said land. I think if the alleged three persons

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existed, the Defendants would have mentioned their names. No wonder, the Claimant in his further affidavit dated 28/05/2014 has denied the existence of such persons, instating that he negotiated for the said second parcel of land with the 1st Defendant who also exerted the agreement of sale thereof in his name. According to the Claimant, throughout the period of the negotiation, the 1st Defendant never mentioned or made reference to a third party as the owner(s) of the said land. See paragraphs 5 and 6 of the Claimant?s further affidavit. So this Court does not believe that the 1st Defendant purportedly sold the said second land on behalf of any person and that must be so in the face of the overwhelming documentary evidence before this Court. See in particular Exhibit E. So the purported defence that the said sale of the second parcel of land was an act of a third party does not avail the Defendants or any of them.

Second, at pages 60-62 of the Record of Appeal that;
(2) On what I think is the more serious question of whether the Defendants had the land which the (sic) purported to sell to the Claimant, this defence of the Defendants is that

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the land has never been acquired by the government. In other words, the Defendants are claiming that the land was theirs and therefore in their possession at the time of the sale. See paragraphs 6 and 15 of the Defendant?s Affidavit. That is why in paragraph 16 of the said affidavit, the Defendants have averred that they have a defence to this action since in their view, there is nothing to prove that the land was deserved (sic) by the government.
?I have already shown that the said Defendant?s affidavit was filed on 09/05/2014. But in reaction thereto, the Claimant has filed further affidavit of 11 paragraphs and attached thereto is one document, marked Exhibit ?H? which is the Notice of nevocation (sic) of existing right to land along the Airport Road at Ibaiku Eshiet and Ibiaku Obio Ndobo in Uruan Local Government Area. According to the Claimant, the land in question, in the instant case forms part of the larger land which Notice of Acquisition was given in Exhibit H. Although the said further affidavit along with the said exhibit was filed on 28/05/2014 for hearing, the Defendants did dispute the fact that the land in dispute

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in this case forms part of the said acquired land. By their said omission, the Defendants have admitted that the land in dispute forms part of the acquired land comprised in Exhibit H. Consequently, the Court is under a duty to believe and that the said fact as established. See HENRY STEPHENS ENGINEERING LTD. v. S. A. YAKUBU (NIG.) LTD. (2009) 10 NWLR (PT. 1149) 416; DOKUBO ASARI V. FRN (2007) 12 NWLR (PT. 1048) 320 @ 356 and A.G, ANAMBRA STATE V. OKEKE (2002) 12 NWLR (PT. 782) 572.

Third, the learned trial Judge held on page 62 of the Record as follows:
(3) Having thus proved the revocation of the right of the Defendants to the same, it is therefore true that from the date of the revocation of the existing or deemed existing right of occupancy of the land in 2010, it follows that when the Defendants purported to sell the said parcels of land to the Claimant in 2013, they did not have title to the said property to transfer to the Claimant. Whether the Defendant did so intentionally and therefore fraudulently is a different question altogether, the pertinent question here, however, is whether the Defendants have a duty to refund the said money to the

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Claimant in the circumstance. I think the answer to that question must be in the affirmative. So I agree with the Claimant that the Defendants have no defence to the demand by the Claimant for the refund of his said money.

And, in what seems to be a post-script to the Judgment, the learned trial Judge added at pages 63-64 of the Records that:
Shortly after reading the above judgment, Ekaette George, Esq. of Counsel who apparently had sneaked into the Court while the judgment was being read stood up and informed the Court that the Defendants had filed additional argument in the case. Although the Court had apparently become fractious at that point, I have referred to the case file and no such process is filed therein. Even if the said process had been filed and brought to the attention of the Court, I am sure it would still not influence the judgment of the Court after all, under the undefended list procedure of this Court, there is no provision for argument of parties whether that argument is written or verbal.

?Dissatisfied with the judgment, the Appellants filed a Notice of Appeal containing only the omnibus ground of Appeal on 30/10/2014.

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However, on 03/12/2014, the Appellants filed Additional Grounds of Appeal containing two grounds of appeal. The Additional Grounds of Appeal together with their particulars are as follows:
ERROR IN LAW
The learned trial judge erred in law in entering judgment for the Claimant only on the admission by the Defendants that the Claimant paid the sum of N14,500.000.00 being the cost of the land.
PARTICULARS OF ERROR
(a) What is the contention in this case is not that the sum of N14,500.000.00 was paid to the Defendants in respect of the sale of land but that the Defendants accepted the said sum of N14,500.000.00 knowing very well that the land had been acquired by the Government of Akwa Ibom State.
(b) The Claimant who alleged that the land sold to him by the Defendant had been acquired by the Government of Akwa Ibom State had a duty to have proved the acquisition to enable judgment be entered in his favour.
?(c) Failure by the Claimant to disclose that the land sold to him had been acquired by the Government of Akwa Ibom State in his affidavit in support of the case, and the Defendants having raised the issue in their counter

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affidavit, the Court ought to have transferred the case to the general cause list, order pleadings for the case to be determined by evidence.
(d) There was no evidence in the affidavit in support of the application of the Claimant to warrant judgment to be entered under the undefended list procedure.
ERROR IN LAW
The learned Judge erred in law by relying on the further affidavit and Exhibits attached thereto and filed on 28th May, 2014 by the Claimant in entering judgment under the undefended list procedure.
PARTICULARS OF ERROR
(a) The procedure under the undefended list is a special procedure which does not call for the use of further affidavit.
(b) Order 11 of the High Court (Civil Procedure) Rules, 2009 of Akwa Ibom State that governs procedure under the undefended list is explicit and excludes the use of further affidavit by the Claimant.
(c) Without the use of further affidavit filed by the Claimant on 28th May, 2014, the Defendant?s counter affidavit disclosed a defence on the merit.
(d) The further affidavit of the Claimant purporting to show that the land had been acquired by the

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Government of Akwa Ibom State was not enough to warrant the Judgment to be entered in favour of the Claimant without calling evidence to establish that fact.
(e) The Court ought to have transferred the case to the general cause list to enable parties call evidence to establish whether the land was within the area acquired by the Government of Akwa Ibom State or not.

Appellant?s brief of Argument dated 08/12/2016 was filed on the same day. It is settled by A. A. Asuquo, Esq. The Respondent?s Brief of Argument dated on 06/02/2017 was filed on 09/02/2017. It is settled by Uyo-Obong Udom, Esq.

Learned counsel for the appellants nominated a sole issue for the determination of the Appeal. It is ?whether the learned trial Judge was right in entering judgment for the Respondent under the Undefended List Procedure and basing his judgment on the said Further Affidavit?.

Learned counsel for the Respondent also nominated a sole issue for determination, couched as follows:
Given the documentary evidence in this matter, was the trial Court not justified to have given judgment to the Claimant Respondent under the Undefended

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List Procedure, rather than transferring to the General Cause List? (Grounds 1 & 2 of the Appellants Additional Grounds of Appeal).

Learned counsel for the Appellants reminded us that the Respondent commenced this action against the Appellants under a special procedure ? Undefended List Procedure as per the provision of Order 11 Rules 8-12 of the High Court Civil Procedure Rules, 2009 of Akwa Ibom State. He referred to the case of ATAGUBA & CO V. GURA (NIG.) LTD. (2005) 8 NWLR (PT. 927) 429 @ 448 and submitted that the steps guiding the procedure can be summarized as follows:
(a) The Claimant must believe that the Defendant has no defence to his liquidated money demand.
(b) The Claimant must satisfy the Court by motion ex-parte to the effect that by his claim, the Defendant will not have any defence to the action. This will enable the Court to place the suit for hearing and determination under the Undefended List Procedure.
(c) The Court will then order that the registrar should issue and mark the Writ Undefended accordingly and then serve the processes on the Defendant.
(d) Where the Defendant has a defence, he

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should say so by filing notice of intention to defend supported by affidavit. The processes as filed will then be served on the Claimant.
(e) On the return date, the Judge will be seized with two positions, either to enter judgment based on the papers filed, or grant leave to the Defendant to defend the action.

He submitted that there is nothing in the rules of the High Court of Akwa Ibom State under Order 11 Rules 8-10 that permits a Further Affidavit to be filed by the Claimant on receipt of the notice of intention to defend and an affidavit in support. Also, that where the Claimant served with notice of intention to defend and an affidavit in support tries to react to the said affidavit, the Court should immediately hold that the Defendant has in fact disclosed a defence on the merit. He buttressed this submission by referring to the cases of CHUBA V. CHUKWUOGOR (2007) ALL FWLR (349) 1154; ALALE V. OLU (2001) 7 NWLR (PT. 711)119 @ 127; SUNDAY OKODUWA & ORS V. THE STATE (1988) 5 NWLR (PT. 76) 333; ODOM & ORS V. THE PEOPLE?S DEMOCRATIC PARTY & ORS (2015) 6 NWLR (PT. 1486) 527. All for the view that rules of Court are meant to be

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obeyed and followed as they are made to regulate practice of the Court in the exercise of the jurisdiction the constitution confers it.

He submitted that in the instant case, the Appellants filed their Notice of Intention to defend with affidavit on 9th May, 2014 and caused same to be served on the Respondent. That on receipt of the Notice of Intention to defend and the affidavit in support, the Respondent on 28th May, 2014 filed a further affidavit. That to the further affidavit of the Respondent is attached Exhibit ?H?. That the learned trial Judge extensively used the further affidavit of the Respondent and in fact based his entire findings and judgment on the further affidavit.

He submitted that since the rules of Court did not provide that the Claimant, in an action under the Undefended List can react to the Notice of Intention to defend by filing further affidavit, the learned trial Judge findings, relying on the further affidavit was a finding made without jurisdiction. Besides that, said counsel, the learned trial Judge went beyond his jurisdiction in arriving at his findings, he denied the Appellants fair hearing on the matter of

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the use of the further affidavit of the Respondent. He submitted that even though the affidavit was tagged ?Further affidavit? same was a reaction to the affidavit of the Appellants. Paragraph 3 thereto reads:
That I have seen the affidavit of the Defendants in support of their intention to defend.

Appellants counsel submitted that the sum of N14,500.000.00 was consideration for plots of land sold by the Respondent to the Appellants. That while the contention of the Respondent is that the Appellants sold plots of land within the area of land acquired by the government of Akwa Ibom State to him, and so the consideration earlier paid over to the Appellants by him (Respondent) should be returned to him. The Appellants on the other hand admitted receiving the consideration for the land but were emphatic that the land had never been acquired by the Government of Akwa Ibom State as alleged by the Respondent.

He submitted that from these facts, the Court was confronted with a slim issue of whether the government actually acquired the land or not. The Court, said counsel ought to have transferred the case to the general cause list to enable

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pleadings be filed than relying on the further affidavit of the Respondent.

Appellant?s counsel submitted that it is a fundamental principle of law that he who alleges must prove, and that the Respondent who alleged in his first affidavit that the land was within the area of land acquired by the Government of Akwa Ibom State had the duty to have established that fact by credible evidence in his said affidavit, this counsel said he failed to do. He referred to the provisions of Section 131-135 of the Evidence Act 2011 and the case of BABA-IYA V. SIKELI (2006) 3 NWLR (PT. 968)508 @ 535 and added that since the Court had no duty to go outside that affidavit (that is the verifying affidavit in support of the ex-parte application the Court ought to have so held and then transfer the case to the general cause list for hearing and determination. That the document tagged ?further affidavit? had no place under the undefended list procedure and so the learned trial Judge wrongly gave credence on it and made a basis of his judgment.

He urged us to resolve the sole issue in favour of the Appellants, set aside the judgment of the trial Court and

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order that the suit be transferred to the general cause list for hearing and determination.

Learned counsel for the Respondent in justifying the position taken by the Court below submitted that the Appellants admitted receiving the sum of N14,500.000.00 (Fourteen Million, Five Hundred Thousand Naira) claimed by the Respondent, particularly in their paragraph 14 of the Affidavit in Support of Intention to defend. However, that, in paragraphs 6, 9, 10 and 11, the Appellants denied that the land had been acquired by the State Government and even challenged the Respondent in paragraph 9 to show evidence that the land had indeed been acquired by Government.

Respondent?s counsel submitted that the only purported defence the Appellants had was that there was no evidence of notice of acquisition of the land brought before the Court. In other words, if there was documentary evidence of the acquisition before the Court the Appellants would have conceded that they had no defence to the claim. Respondent?s counsel further submitted that a close look at Exhibit H (that is the Notice of Acquisition of the land by Government) and Exhibit D and E, the

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Powers of attorney between the parties, it would be seen that Exhibit D and E are exactly the same area of land described and acquired in Exhibit H.

Having regards to the above facts, he (Respondent?s counsel) opined that it would have been a waste of precious judicial time to have proceeded to transfer the matter to the general cause list. He offered the following reasons.
(a) The Undefended List Procedure is employed to expedite action.
(b) That whether or not the Defendant discloses a defence on the merit or not is at the discretion of the Court.
(c) That the Courts are at all times enjoined to do substantial justice.
(d) That although Order 11 Rule 8-12 of the Akwa Ibom State High Court Procedure Rule 2009 dealing with undefended list procedure under which this matter was brought does not provide for the use of a further affidavit, it does not also prohibit its use.
(e) An undenied averment is deemed admitted.
(f) By Order 5 Rule (1) of the High Court Rules 2009, the trial Judge has discretion to treat non-compliance as irregularity.
(g) Procedurals Rules should not be elevated to the status of substantive law

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to defeat the ends of justice.

On (g) above, Respondent?s counsel referred to the cases of AREMO V. ADEKANYE (2004) ALL FWLR (PT. 224) 2113 @ 2132; AGBONIKA V. UNIVERSITY OF ABUJA (2014) ALL FWLR (PT. 715) 350; NNPC V. SELE (2004) ALL FWLR (PT. 223) 1859 @ 1914; ABUBAKAR V. NASAMU (NO. 2) (2012) 17 NWLR (PT. 1330) 582-583.

He submitted that a situation where exhibit H had conclusively decided that the land in issue had been acquired since 2010, there was no dispute to be tried again that could have justified transferring the matter to the general cause list. That a valid defence that could have required a transfer to the general cause list would have been where the Appellants denied collecting the money from the Respondent.

He submitted that the learned trial Judge properly evaluated the evidence and ascribed the necessary weight to the evidence proferred by the Respondent. He urged us to dismiss the Appeal.

RESOLUTION OF ISSUE
It seems to me that the starting point for the resolution of the issue in this appeal is the provision of Order 11 Rules 8-12 of the High Court (Civil Procedure) Rules 2009 of Akwa Ibom State.

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8.-(1) Where a Claimant in respect of a claim to recover a debt or liquidated money demand believes that there is no defence to his claim, he shall make an application to a Court for the issue of a writ of summons in respect of the claim to recover such debt or liquidated money demand and shall support the application by an affidavit setting forth the grounds upon which the claim is based and stating that in the deponent?s belief there was no defence thereto.
(2) The Court shall, if satisfied that there are good grounds for believing that there is no defence thereto, enter the suit for hearing in what shall be called the ?Undefended List?, and mark the writ of summons accordingly, and enter thereon a date for hearing suitable to the circumstances of the particular case.
9. There shall be delivered by the Claimant to the Registrar upon the issue of the writ of summons as aforesaid, as many copies of the above-mentioned affidavit as here are parties against whom relief is sought, and the Registrar shall annex one such copy to each copy of the writ of summons for service.
10.-(1) If the party served with the writ of summons and

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affidavit delivers to the Registrar, before the day fixed for hearing, a notice in writing that he intends to defend the suit, together with an affidavit disclosing a defence on the merit, the Court may give him leave to defend upon such terms as the Court may think just.
(2) Where leave to defend is given under this Rule, the action shall be removed from the Undefended List and placed on the ordinary Cause List; and the claimant shall then comply with Order 3 Rule 2 (i) (b) (c) within such time as the Court may direct.
11. Where any defendant neglects to deliver the notice of defence and affidavit prescribed by Rule 10 (1) or is not given leave to defend by the Court, the suit shall be heard as an undefended suit, and judgment given thereon, without calling upon the claimant to prove his case formally.
12. Nothing herein shall preclude the Court from hearing or requiring oral evidence should it deem fit, at any stage of the proceedings under Rule 11.
?A careful look at the provision of Rules 10 and 11 of Order 11 of the 2009 Civil Procedure Rules of Akwa Ibom State would confirm the position of the law as stated in the case of

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ATAGUBA & CO V. GURA (NIG.) LTD. (2005) 8 NWLR (PT. 927) 429 @ 448 and as expressed by the learned counsel for the Appellants that (e) on the return date, the Judge will be seized with two positions: either to enter judgment based on the papers filed, or grant leave to the Defendant to defend the action.
In other words, when the Defendant files his Notice of Intention to defend under Rule 10 (1), the Court would either grant him leave to defend and remove the action from the Undefended List in accordance with Rule 10 (2) and transfer the Suit to the general cause list OR by Rule 11 where leave is not granted to defend the suit shall be heard as an Undefended Suit ?and judgment given thereon without calling upon the Claimant to prove his case formally?.
There are two rules of interpretation of statutes which interrelatedly justify the above position of the law relating to the Undefended List Procedure. The first is the ordinary ? meaning canon otherwise known as the Literal rule of interpretation. That is, the words of a statute are to be taken in their natural and ordinary signification and import unless the con indicates

20

that they bear a technical sense. In other words, the proper approach to the interpretation of clear and unambiguous words of a statute is to follow their literal and grammatical meaning except such construction will lead to absurdity or would be contrary to the intention of the statute. See YUSUF V. OBASANJO (2005) 18 NWLR 956; EHUWA V. ONDO STATE I. E. C. & ORS (2006) 10 NWLR (PT. 1012) 544 @ 588; K. S. I. E. C v. P. D. P (2005) 6 NWLR (PT. 920) 39; A. G. LAGOS STATE V. A. G. FED. (2014) 9 NWLR (PT. 1412) 217 SC; UTOMUDO V. MIL. GOV. BENDEL STATE (2014) 11 NWLR (PT. 1417) 97 SC; UKACHUKWU V. P.D.P (2014) 17 NWLR (PT. 1435) 134 SC; REGD. TRUSTEES, A.O.N. V. N. A. M. A (2014) 8 NWLR (PT. 1408) 1 SC; OLANREWAJU V. OYESOMI (2014) 11 NWLR (PT. 1418) 258 SC.
Again, by the specific provision of Rule 11 of Order 11 of the 2009 Akwa Ibom State Civil Procedure Rules that ?is not given leave to defend by the Court, the suit should be heard as an Undefended Suit and judgment given thereon, without calling upon the Claimant to prove his case formally. The above underlined portion of Rule 11 Order 11 ?without calling

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upon the Claimant to prove his case formally? actuates the application also of the negative ? implication canon- The expression of one thing implies the exclusion of others (expressio unius est exclusio alterius) and in the con of our discussion in this appeal excludes any permission and liberty i.e the Claimant to furnish ?further affidavit? as was done in the instant case or indeed any other form of formal proving of the Claimant?s case outside the provisions of Rules 11 of the Akwa Ibom State (Civil Procedure) Rules 2009.
It is within the above con that one would understand and even appreciate the contention of the appellants in this appeal that the reliance on the Respondent?s ?Further affidavit? to find against the Appellants is alien to the Undefended List Procedure, in excess of jurisdiction and indeed a denial of fair hearing to the Appellants. The learned trial Judge by relying on the said ?Further affidavit? of the Respondent to ground the Appellants liability acted ultra vires and in excess of the jurisdiction conferred on him under Order 11 Rules 8-12 of the High Court Civil Procedure Rules 2009 of Akwa Ibom State.

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By the same token, the Appellants were denied their constitutional right to fair hearing because there was no other procedure left for them to ventilate their position or react to the Respondent?s ?Further affidavit? which is not provided for under the rules to answer to the further depositions of the Respondent.
The argument of the learned counsel to the Respondent to the effect that the important thing in the proceeding in the Court below was that the Appellants admitted the receipt of the sum of N14,500.000.00 is in a sense simplistic. This is because the said sum of N14,500.000.00 or the money claimed properly becomes a liquidated debt to be tried under the Undefended List when the parties must have settled factual question of the acquisition of the pieces of land purchased by the Respondent from the Appellants by the State Government.
?In any event, the ends of justice cannot be served by searching for the truth at any costs. The truth finding process must necessarily conform to procedures and due process of law. While the paramount consideration is the truth, the Judge is not

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permitted to search for the truth by any means. See OGBODU V. ODOGHA (1967) N.M.L.R 221; EVOYOMA V. DAREGBA (1968) N.M.L.R. 389; DURUMINIYA V. C. O. P. (1962) N.N.L.R 70; R. V. WILCOX (1961) ALL N.L.R.631.
Indeed, the rules of Court must be obeyed because Courts do not administer justice in the abstract and the justice administered by the Courts is justice according to the law. See CHUBA CHUKWUOGOR & ORS V. CHUKWUMA CHUKWUOGOR (2007) ALL FWLR (349) 1154; ALALE V. OLU (2001) 7 NWLR (PT. 711) 119 @ 127; SUNDAY OKODUWA V. THE STATE (1988) 5 NWLR (PT. 76) 333.
There is abundant case law on the consequences of lack of jurisdiction and (or lack of fair hearing) to the effect that such proceedings are a nullity. See N.I.I.T ZARIA V.DANGE (2008) 9 NWLR (PT. 1091) 127; O.O.M.F. LTD. V. NACB LTD. (2008) 12 NWLR (PT. 1098) 412; NKWOCHA V. MTN (NIG.) COMM. LTD. (2008) 11 NWLR (PT. 1099) 439; AMECHI V. OKOYE (2008) 2 NWLR (PT. 1101) 546; ESSIEN V. EDET (2004) 5 NWLR (PT. 867) 519; UBA PLC V. CONTRACT RESOURCES (NIG.) LTD. (2004) 5 NWLR (PT. 867) 468; JOHN ANDY SONS & CO. LTD. V. MFON (2006) 12 NWLR (PT. 995) 461; FABS LTD. V. IBIYEYE (2008) 14 NWLR (PT.

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1107) 375.

In the circumstance, the sole issue in this appeal is resolved in favour of the Appellants. The appeal is meritorious and it is allowed.

The judgment and Orders of Pius P. Idiong J in Suit No HU/UND/105/2014 delivered on 17/10/2014 in the High Court of Akwa Ibom State, Uyo Judicial Division are hereby set aside. Suit No. HU/UND/105/2014 is accordingly remitted to the Hon. Chief Judge of Akwa Ibom State for assignment to another Judge for trial on the general cause list.
The parties to the appeal shall bear their respective costs.

OBANDE FESTUS OGBUINYA, J.C.A.: I had the privilege to peruse, in draft, the leading judgment delivered by my learned brother: Mojeed Adekunle Owoade, JCA. I am in total agreement with the reasoning and conclusion in the well-articulated judgment. I, too, allow the appeal in the terms chronicled in the leading judgment. I abide by the consequential orders decreed in it.

YARGATA BYENCHIT NIMPAR, J.C.A.: I was given the privilege of reading in advance the judgment of my learned brother, MOJEED ADEKUNLE OWAODE, JCA, just delivered. I too agree that where

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rules of fair hearing are breached, the proceedings becomes vitiated because it is fundamental and a constitutional requirement that parties be given fair hearing in all proceedings. I also abide by the other orders made therein the lead judgment.

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Appearances:

A. A. ASUQUO, ESQ.For Appellant(s)

UYO-OBONG UDOM, ESQ.For Respondent(s)

 

Appearances

A. A. ASUQUO, ESQ.For Appellant

 

AND

UYO-OBONG UDOM, ESQ.For Respondent