BUNGUDU v. YARO
(2022)LCN/16086(CA)
In The Court Of Appeal
(KADUNA JUDICIAL DIVISION)
On Friday, June 10, 2022
CA/K/356/2015
Before Our Lordships:
Amina Audi Wambai Justice of the Court of Appeal
Bitrus Gyarazama Sanga Justice of the Court of Appeal
Abubakar Mahmud Talba Justice of the Court of Appeal
Between
MOHAMMED BELLO BUNGUDU APPELANT(S)
And
MR. EDACHE YARO RESPONDENT(S)
RATIO:
FOR A GROUND OF APPEAL TO BE COMPETENT IT MUST FLOW FROM COMPETENT GROUND OR GROUNDS OF APPEAL
I am however mindful of the settled law that for a Court to have jurisdiction to consider an issue formulated for determination, the issue must flow from competent ground or grounds of appeal. See NSIRIM V. AMADI (2016) 6 NWLR (Pt. 15O4) 42, KLM ROYAL DUCHRE AIRLINE V. ALOMA (2017) LPELR–42588 (SC).
For the ground of appeal to be competent, it must flow from or relate to the decision appealed against and challenge the ratio decidendi of the decision. See EGBE V. ALHAJI & ORS (1990) 1 NSCC (Vol. 21) (Pt. 1) 306 AGWU & ORS V. JULIUS BERGER (NIG) PLC (2019) LPELR–47625(SC). AKILU V. ODUTAN (2000) 13 NWLR (Pt. 685) 446, 461. In INEC ANAMBRA STATE V. OKONKWO (2008) LPELR-4315 (CA). The Court held that a ground of appeal must challenge a decision a Court made pronouncement on and what the Court decided but not on what it did not decide.
Where ex facie the ground of appeal upon which an issue is distilled does not arise or flow from the decision appealed against, it is within the inherent jurisdiction or power of the Court to consider whether it has the jurisdiction to look into the issue or not. AMINA AUDI WAMBAI, J.C.A.
THE GROUNDS OF APPEAL AND ISSUES FOR DETERMINATION MUST BE CONFINED TO THE RATIO DECIDENDI
It is trite that for this Court to be seized of jurisdiction to look into Appellant’s 2nd issue, ground 2 upon which the issue is based must not only emanate from the judgment of 2/7/2014 but must also attack a ratio decidendi of the decision. The appellant must therefore confine his grounds of appeal and issues for determination to the ratio decidendi of the decision of 2/7/2014. He is not permitted to flirt outside the confines of the said decision to raise complaint alien to the decision appealed against. Therefore, where as in this case, the ground does not challenge any pronouncement of what the lower Court decided in its judgment of 2/7/2014, this Court will be deprived of jurisdiction to look into the issue. It would have been a different thing how the Appellant appealed the post-judgment proceedings. Having not done so, by this, Court lacks jurisdiction to entertain issue 2 as formulated by the Appellant. In the circumstance, only Appellant’s issue 1 deserves consideration. AMINA AUDI WAMBAI, J.C.A.
THE SINS OF THE COUNSEL SHOULD NOT BE VISITED ON THE LITIGANTS AND ITS EXCEPTION
It is truly an established principle of law as enunciated in a long line of cases that litigants should not be made to suffer for the fault of counsel. In other words, the sins of counsel should not be visited on the litigants SEE IBODO V. ENAROFIA (1980) 5-7 SC 42; OSALUMHENSE V. AGBORO [2005] 16 NWLR (Pt. 951) 204. DOHERTY V. DOHERTY (1964) 1 ALL NLR 299; AHMADU VS. SALAWU (1974) 1 ALL NLR (Pt. 2) 318 and BOWAJE VS. ADEDIWURA (1976) 6 SC 143.
However, this principle is not immutable, inflexible, or stone cast. It is not a principle that is permanently fixed like Rock of Gibraltar or mount Zion that never shifts. It has its exceptions and limitations.
First, the principle is limited to procedural irregularities or blunders committed by Counsel in the manner of filing processes and conducting proceedings. See AKANBI V. ALAO & ANOR. (1989) ALL NLR 424 at 440 and BAMAIYI V. THE STATE (2003) 7 NWLR (Pt.848) 47 at 64 PARAGRAPHS “B”-“C”.
It does not apply where counsel completely fails, refuses or neglects to perform his duty or where the litigant is not vigilant and is an equal partner in the sin committed. The litigant must not be indolent or go to sleep merely because he has briefed a counsel. In GOV BENUE STATE V. NIGERIAN CONSTRUCTION CONSORTIUM LTD (1997) 3 NWLR (Pt. 495) 610 the Court held that it is not enough for a litigant to entrust its case to counsel and go to sleep.
Therefore, where the sin is committed by both the counsel and the litigant or where the sin committed is not on procedure, the overburdened excuse of mistake of counsel can not avail the party. AMINA AUDI WAMBAI, J.C.A
THE SATISFACTION OF THE COURT OF THE SINS COMMITTED BY BOTH THE COUNSEL AND THE LITIGANT
Therefore, where the sin is committed by both the counsel and the litigant or where the sin committed is not on procedure, the overburdened excuse of mistake of counsel can not avail the party.
In any event, the application of the principle depends on the fact of each case as pointed out by NNAEMEKA-AGU JSC in IROEGBU V. OKWORDU (1990) 6 NWLR (Pt. 159) 643 at 669. Thus,
“I think it should be regarded as settled by a long line of decided cases that the Courts do not normally punish a litigant for the mistakes of his counsel … But in my opinion, the Courts will not regard this as a universal talisman, the waiver of which will act as a panacea in all cases. The Courts must be satisfied not only that the allegation of the fault of counsel is true and genuine but also that it is availing having regard to the circumstances of the particular case.” AMINA AUDI WAMBAI, J.C.A.
A CERTIFIED TRUE COPY OF THE RECORD OF APPEAL AS COMPILED AND TRASMITTED TO THE APPELLATE COURT IS BINDING ON THE COUNSEL AND THE COURT
It is elementary that the certified true copy of the record of appeal as complied and transmitted to the Appellate Court is binding on all parties, their Counsel and the Court. Neither of the parties can go out of the record of appeal to canvass any argument nor can the Court draw any findings or conclusion outside the record. See OLUFEAGBA V. ABDUR-RAHEEM (2009) 18 NWLR (Pt. 1173) 384, GARUBA V. OMOKHODION (2011) 15 NWLR (Pt. 1269) 145.
Therefore, in determining an appeal, the compiled and transmitted record of the lower Court duly authenticated is the only reference document as to what transpired at the lower Court. Nothing can be added or deleted from it. It is like the scripture that tells the story of what happened at the lower Court and binds the parties and the Court of its contents.
Furthermore, unless properly and successfully impugned, the law presumes the authenticity and correctness of the record of appeal complied and transmitted to the Appellate Court. The contents of the records of appeal as compiled and transmitted are therefore deemed authentic, correct and binding. See HASKE V. MAGAJI (2009) ALL FWLR (Pt. 461) 887, 90. AMINA AUDI WAMBAI, J.C.A.
THE DEFINITION AND BENEFITS OF A SUMMARY JUDGMENT PROCEDURE
The summary judgment procedure has been described as a special and peculiar procedure designed as a vehicle for quick delivery of justice where the defendant does not have a defence or cannot meaningfully defend the claim. UBA V. ALH. BABANGIDA (2007). See also S.P.D.C. LTD V. ARHO-JOE NIG LTD (2006) All FWLR (Pt. 331) 1330 at 1345 C-E, AUBERGINE COLLECTIONS LTD V. HABIB BANK LTD. (2002) FWLR (Pt. 128) 1276 at 186 B – D.J
It is a truncated form of hearing designed to secure quick justice due to the absence of an issue to be tried. It is a procedure that is geared towards the attainment of speedy but substantial justice in cases in which a Defendant really has no defence to the claim of the claimant against him and there is nothing worth being further investigated by the Court beyond what is contained in the affidavits of the parties.
The procedure may be likened to that of the undefended list procedure utilized for the disposal with dispatch of cases which are virtually uncontested or where there can be no doubt that the plaintiff is entitled to judgment and it would be inexpedient to allow the defendant to defend for the mere purpose of delaying the suit. Where the claim of the plaintiff is clear, certain and is one that is uncontested by the defendant or which the defendant does not have any good defence to, the defendant would not be allowed to apply delaying tactics to deny the plaintiff his claim. AMINA AUDI WAMBAI, J.C.A.
IT IS THE FACTS OF EACH CASE THAT DETERMINES THE APPLICABILITY OF THE PRINCIPLES OF FAIR HEARING
Fair hearing principle however, is largely based on the facts and circumstances of each case. In other words, the facts of each case determines whether the principles of fair hearing have been breached or not. Outside the facts, the principle is mere abstract and theoretical principle or even dead. It is only the facts of the case that influences and determines the applicability of the principle. See GOV. IMO STATE V. E.F. NET (SUPRA) at 63. Thus, fair hearing in the context of the summary judgment procedure only means giving equal opportunity to both parties to present their cases as provided by Order 11 Rules 1 – 4. The essence of Order 11 Rule 4 is to afford the defendant an opportunity to present his own side of the case to show prima facie that he has a good defence or a triable issue which materially conflicts with that of the Plaintiff and which cannot be resolved but by oral evidence. It is sufficient that the Defendant presents a defence which at least casts doubt on the Plaintiff’s case. He can only do this through his statement of defence, counter affidavit and in particular the exhibits annexed to his defence. AMINA AUDI WAMBAI, J.C.A.
AMINA AUDI WAMBAI, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of Hon. Justice M.M.B. LADAN of Kaduna State High Court II, Zaria delivered on 2nd July, 2014 in suit No. KDH/Z/63/2014 which entered summary judgment in favour of the Respondent against the Appellant.
The Appellant is a businessman and deals among other things in selling cars. The Respondent indicated his interest in buying a Toyota Camry – 2000 Model which the Appellant agreed to supply to the Respondent at N900,000.00 out of which amount the sum of N650,000.00 was to be paid and the balance of N250,000.00 to be paid after delivery. The Respondent paid the said sum in four installments but the Appellant failed to supply the vehicle to the Respondent after the expiry of the agreed period and has still not supplied the vehicle or refunded the money to the Respondent despite repeated demands.
Premised on these facts, the Respondent as plaintiff instituted the action leading to this appeal at the lower Court against the Appellant praying for a refund to him by the Appellant of the sum of N650,000.00 being the sum Appellant collected from him for the purchase of a Toyota Camry in 2011; special damages of N250,000.00 being the legal fees the Appellant made him to incur and the sum of N500,000.00 as general damages.
The Respondent also filed along with the Originating Process an application (motion on Notice) for summary judgment. All processes were served on the Appellant but his Counsel did not appear on the adjourned date nor did he file any process. Consequently, the Respondent’s motion for summary judgment was heard and granted. Summary judgment was accordingly entered for the Respondent against the Appellant in terms of the Respondent’s reliefs.
The Appellant was displeased and through his Counsel Garba Sadiq Bala Esq. filed a Notice of Appeal on 12/11/2014 predicated upon two grounds of appeal from which he nominated two issues for determination in the Appellant’s brief of argument filed on 14/3/2016, to wit:-
(a) Whether the learned trial Judge was in error when he proceeded to enter summary judgment against the appellant for refusal of his Counsel to file any defence on his behalf while the appellant was in Court to explain the absence of his Counsel?
(b) Whether the learned trial Judge was in error when during the pendency of a Motion to set aside the Execution of the Court judgment and to stay the Auction of the Appellant Car before hearing the Appellant Honda Civic Car was attached Auction?
Auta Maisamari Esq. who settled the Respondent’s brief of argument filed on 13/4/2016 submitted two issues for determination viz:-
(a) Whether ground 2 of the Notice of Appeal is Competent the appeal being against the decision of the trial Court entered into on the 2nd July, 2014 and not anything done prior or subsequent thereto.
(b) Whether by the refusal of the Defendant/Appellant to file any defence to the action and potency of the claim of the Plaintiff/Respondent did not make the judgment of the trial Court good and unimpeachable.
It is apt to state that Respondent’s first issue for determination is a challenge to the competence of Ground 2 of the grounds of appeal. I hasten to declare the issue as incompetent on the well settled law that an issue for determination cannot be used to challenge the competence of an appeal. In other words, a preliminary objection cannot be raised as an issue for determination. EFCC V. AKINGBOLA (2014) LPELR–24257 at 47 -49, ODUNZE V. NWOSU (2007) 13 NWLR (Pt. 1050) 1.
This rule in my humble view extends to challenging the competence of a ground or grounds of appeal through an issue for determination. The learned Respondent’s counsel in making the challenge to the competence of ground 2 the subject of his first issue for determination seems to have lost sight of the law that an issue for determination and a preliminary objection or application to strike out ground of appeal serve different purposes and cannot be used interchangeably. In fact, they are mutually exclusive.
An issue for determination is a proposition of law or fact in dispute between the parties necessary for determination by the Court, the determination of which would affect the result of the appeal. A preliminary objection on the other hand is aimed at truncating the hearing of the appeal and terminating its life in limine. It follows that raising a preliminary objection as an issue for determination clearly defeats the purpose of a preliminary objection. Therefore Respondent cannot challenge the competence of an appeal or a ground of appeal through an issue for determination.
In the circumstance, the Respondent’s 1st issue as formulated is incompetent having been raised by a wrong procedure.
I am however mindful of the settled law that for a Court to have jurisdiction to consider an issue formulated for determination, the issue must flow from competent ground or grounds of appeal. See NSIRIM V. AMADI (2016) 6 NWLR (Pt. 15O4) 42, KLM ROYAL DUCHRE AIRLINE V. ALOMA (2017) LPELR–42588 (SC).
For the ground of appeal to be competent, it must flow from or relate to the decision appealed against and challenge the ratio decidendi of the decision. See EGBE V. ALHAJI & ORS (1990) 1 NSCC (Vol. 21) (Pt. 1) 306 AGWU & ORS V. JULIUS BERGER (NIG) PLC (2019) LPELR–47625(SC). AKILU V. ODUTAN (2000) 13 NWLR (Pt. 685) 446, 461. In INEC ANAMBRA STATE V. OKONKWO (2008) LPELR-4315 (CA). The Court held that a ground of appeal must challenge a decision a Court made pronouncement on and what the Court decided but not on what it did not decide.
Where ex facie the ground of appeal upon which an issue is distilled does not arise or flow from the decision appealed against, it is within the inherent jurisdiction or power of the Court to consider whether it has the jurisdiction to look into the issue or not.
In the case at hand, the Appellant’s second issue challenges the post-judgment procedure of execution of judgment which took place after the summary judgment of the 2nd July 2014 appealed against. There is no appeal against the post-judgment proceedings leading to the attachment and the auctioning of the Appellant’s vehicle which is the subject of the complaint in ground 2 upon which issue 2 is predicated.
The Appellant’s Notice of appeal is strictly and unambiguously against the decision of the lower Court delivered on 2/7/2014 and not against any other decision.
The appeal will be determined on the Appellant’s 1st issue as the sole issue in the appeal.
ISSUE FOR DETERMINATION
(a) Whether the learned trial Judge was in error when he proceeded to enter summary judgment against the appellant for refusal of his Counsel to file any defence on his behalf while the appellant was in Court to explain the absence of his Counsel?
APPELLANT’S SUBMISSION
Arguing this issue, learned Counsel submitted that the lower Court was in error to have entered summary judgment against the Appellant for the refusal of his Counsel to file a defence on his behalf though Appellant was in Court to explain the absence of his Counsel.
Counsel referred to page 26 of the record to argue that the record shows that a Counsel held brief for the substantive Counsel whose brief Appellant had perfected and believing that the Counsel would file the defence but unfortunately the Counsel did not do so.
He drew our attention to the general principle of law that negligence or fault of Counsel should not be visited on the litigant particularly when the mistake, fault or inadvertence as in this case related to procedural matters like the instant one of filing a defence.
That the entering of judgment against the Appellant for the negligence, mistake or inadvertence of his Counsel for filing the defence, amounts to punishing the Appellant for the fault or mistake of his Counsel which the Courts do not normally do and have pronounced should not be done – Citing the cases of FRANCIS V. CITEC INTL ESTATE LTD. (2010) 13 NWLR (Pt. 730) 403, OGUNDOYIN V. ADEYEMI (2001) 13 NWLR (Pt. 730) 403, IROEGBU V. OKWORDU (1990) 6 NWLR (Pt. 159) 643.
It was further submitted that the law is trite that when a party cannot do an act within the stipulated period especially if that act is procedural as in the instant case, the party should be given time to do the act. BOWAJE V. ADEDIWURA (1976) 6 SC 143 at 142 AKINYEDE V. APPRAISER (1971) 1 ALL NLR 162, urging us to resolve the issue in favour of the Appellant and to hold that the learned trial Judge was in error to have entered judgment against the Appellant for the mistake inadvertence of his Counsel who failed to file the defence though the Appellant was in Court.
Responding, learned Counsel for the Respondent reproduced the provisions of Order 11 Rules (4) and (5) of the Kaduna State High Court (Civil Procedure) Rules 2001 on the procedure for summary judgment and submitted that as at 2/7/2017 (sic) (it is 2014) when the Respondent moved his motion for summary judgment the Appellant had omitted, neglected and/or refused to file his defence to the action and thus, the burden of proof on the Respondent became lightened. That the learned trial Judge cannot be faulted for a breach of Appellant’s right to fair hearing for complying with Order 11 of the said Rules of the lower Court.
The Appellant’s submission and reliance on the cases of BOWAJE V. ADEDIWURA (Supra) etc, that a litigant should not be punished for the mistake of his Counsel, he submitted, is untenable and inapplicable because a litigant can be punished for a willingly or deliberate refusal of his Counsel to do a duty incumbent on him. He argued that had the Counsel filed the necessary processes in defence of the action but made mistakes, then the Court might hold that as a mistake of Counsel.
He contended that Appellant cannot ask the Court to punish the Respondent and subject him to torture by upturning the judgment of the lower Court which he had started executing.
The proper course of action for the Appellant learned Counsel argued, is to sue the Counsel for negligence. Citing the case of N.B.A V. KALU (2015) 17 NWLR (PT. 1487) 199, 219.
On the Appellant’s argument that the Court should not visit the sin of counsel on litigant on a procedural mistake, it was submitted that there was no procedural mistake. The Appellant and his counsel were not in Court on the date of hearing nor was any defence filed before the Court on his behalf and that since the proceedings of the Court are not conducted according to the whims and caprices of parties, the lower Court rightly entered judgment for the Respondent urging us to resolve the issue against the appeal.
RESOLUTION OF APPEAL
The issue here is the propriety of the learned trial Judge entering summary judgment for the Respondent.
The procedure for summary judgment is set out in Order 11 of the Kaduna State High Court (Civil Procedure) Rules 2001 (hereinafter simply referred to as the Rules of the lower Court).
By Rule 4, a defendant who is served with the said processes and documents referred to who intends to defend the suit shall not later than the time prescribed by the rules for filing a defence, file
(a) A statement of defence,
(b) Deposition of witnesses
(c) The exhibits to be used in the defence; and a written address in reply to the application for summary judgment.
Order 11 Rule 5 (2) provides that:
“Where any defendant fails or neglects to comply with the provisions of Rule 4 of this Order, or it appears to the Judge that the defendant has no good defence to the claim the Judge may enter judgment for the plaintiffs.”
The Respondent in compliance with Rule 1 filed his originating processes, the statement of claim, the exhibits, his deposition on oath together with an application for summary judgment, a supporting affidavit stating his grounds for believing that the Appellant has no defence to his claim, and a written address. These processes were served on the Appellant.
The Appellant was required by Rule 4 (2) if he intended to defend the suit, to file, not later than the period prescribed for filing a defence, a statement of defence, deposition of witness(es), the exhibits to be used in his defence and a written address in opposition to the application for summary judgment. The Appellant filed none of these processes. The undisputed fact in this appeal is that the Appellant did not file any defence or any process to deny the Respondent’s claim against him. The contention of the Appellant’s Counsel is that the failure to file a defence to the Respondent’s claim was as a result of mistake or inadvertence of his former counsel whom the Appellant had briefed to file the necessary processes but failed to do so. That the lower Court was in error to have visited the mistake on the Appellant by entering judgment for the Respondent thereby punishing the Appellant for the mistake of his Counsel.
It is truly an established principle of law as enunciated in a long line of cases that litigants should not be made to suffer for the fault of counsel. In other words, the sins of counsel should not be visited on the litigants SEE IBODO V. ENAROFIA (1980) 5-7 SC 42; OSALUMHENSE V. AGBORO [2005] 16 NWLR (Pt. 951) 204. DOHERTY V. DOHERTY (1964) 1 ALL NLR 299; AHMADU VS. SALAWU (1974) 1 ALL NLR (Pt. 2) 318 and BOWAJE VS. ADEDIWURA (1976) 6 SC 143.
However, this principle is not immutable, inflexible, or stone cast. It is not a principle that is permanently fixed like Rock of Gibraltar or mount Zion that never shifts. It has its exceptions and limitations.
First, the principle is limited to procedural irregularities or blunders committed by Counsel in the manner of filing processes and conducting proceedings. See AKANBI V. ALAO & ANOR. (1989) ALL NLR 424 at 440 and BAMAIYI V. THE STATE (2003) 7 NWLR (Pt.848) 47 at 64 PARAGRAPHS “B”-“C”.
It does not apply where counsel completely fails, refuses or neglects to perform his duty or where the litigant is not vigilant and is an equal partner in the sin committed. The litigant must not be indolent or go to sleep merely because he has briefed a counsel. In GOV BENUE STATE V. NIGERIAN CONSTRUCTION CONSORTIUM LTD (1997) 3 NWLR (Pt. 495) 610 the Court held that it is not enough for a litigant to entrust its case to counsel and go to sleep.
Therefore, where the sin is committed by both the counsel and the litigant or where the sin committed is not on procedure, the overburdened excuse of mistake of counsel can not avail the party.
In any event, the application of the principle depends on the fact of each case as pointed out by NNAEMEKA-AGU JSC in IROEGBU V. OKWORDU (1990) 6 NWLR (Pt. 159) 643 at 669. Thus,
“I think it should be regarded as settled by a long line of decided cases that the Courts do not normally punish a litigant for the mistakes of his counsel … But in my opinion, the Courts will not regard this as a universal talisman, the waiver of which will act as a panacea in all cases. The Courts must be satisfied not only that the allegation of the fault of counsel is true and genuine but also that it is availing having regard to the circumstances of the particular case.”
In the case at hand, Counsel for the Appellant at paragraphs 2.4 to 2.6 of his brief of argument as part of the “Statement of material facts” stated that the Appellant was in Court on the said 2nd July, 2014; called his Counsel on phone who said he was on his way coming but never did; made an indication to explain to the Judge but was not recognized or given audience. These statements however, are not supported by the record. The record of proceedings of the said date, 2/7/2014, at pages 27 to 28 does not indicate the presence of the Appellant in Court. Contrarily, it shows that the Appellant as well as his Counsel were absent. At the top right side of the record at page 27 it is recorded “parties absent” and lower down the page to page 28 it is recorded as follows:
“The defendant was duly served with the processes of the Court. The defendant was represented at the adjourned date 24th June 2014 by Hajara Salisu Esq who held brief of the substantive Counsel to the defendant, A. Mano Esq. However, the defendant is not in Court and is not represented by Counsel”.
It is elementary that the certified true copy of the record of appeal as complied and transmitted to the Appellate Court is binding on all parties, their Counsel and the Court. Neither of the parties can go out of the record of appeal to canvass any argument nor can the Court draw any findings or conclusion outside the record. See OLUFEAGBA V. ABDUR-RAHEEM (2009) 18 NWLR (Pt. 1173) 384, GARUBA V. OMOKHODION (2011) 15 NWLR (Pt. 1269) 145.
Therefore, in determining an appeal, the compiled and transmitted record of the lower Court duly authenticated is the only reference document as to what transpired at the lower Court. Nothing can be added or deleted from it. It is like the scripture that tells the story of what happened at the lower Court and binds the parties and the Court of its contents.
Furthermore, unless properly and successfully impugned, the law presumes the authenticity and correctness of the record of appeal complied and transmitted to the Appellate Court. The contents of the records of appeal as compiled and transmitted are therefore deemed authentic, correct and binding. See HASKE V. MAGAJI (2009) ALL FWLR (Pt. 461) 887, 90.
In the instant case, no part of the compiled and transmitted record of appeal has been challenged or impugned by the Appellant. The implication is that the Appellant and his Counsel as well as the Respondent and this Court are bound by the record as compiled and transmitted.
Significantly, also the said statement of Appellant’s Counsel contained at paragraphs 2.4–2.6 are merely speculative. This is so because these so-called statements of facts are not deposed to in an affidavit but only contained in the Counsel’s address which cannot take the place of the required affidavit. These facts which conflict with the records of appeal and ought to have been properly supported by an affidavit for the Court to rely on them. It is not in the province of the counsel to provide such facts not derivable from any process emanating from the Appellant before the lower Court or from any deposition in an affidavit filed by the Appellant. The said purported facts are merely speculative which is outside the realm of the function of the Court. The Courts do not act on speculation but on hard evidence. See the case of IKENTA BEST (NIG.) LTD V. ATTORNEY GENERAL, RIVERS STATE (2008) NWLR (Pt. 1084) 612.
It is thus, clear that contrary to the claim of the Appellant’s Counsel, the Appellant has not shown that he was in Court on the date fixed for the hearing of the Respondent’s motion for summary judgment. His Counsel was also absent and no statement of defence or any process was filed.
Having so found and reached this conclusion, I am on the same page with the Respondent’s Counsel that the excuse of mistake of Counsel does not avail the Appellant.
The duty of the Court on the date fixed for hearing the motion for summary judgment is to consider, whether the defendant has disclosed any defence on merit or raised any triable issue to warrant the grant of leave to the defendant to defend the suit. Where the Court finds that the defendant’s defence has not disclosed any defence on merit or a triable issue, or as in the instant case, the defendant failed to file any defence and there is no application before it for enlargement of time, the duty of the Court is to proceed to enter judgment for the plaintiff as per his claims, against the defendant. See OBI V. MOTINGA INTERNATIONAL NIG. LTD. (2018) LPELR 44147 (CA). In the similar case of GITTO CONSTRUCTION GEN. NIG. LTD V. INNOVATE AND COMPANY ENTERPRISES & ANR (2015) LPELR–25725 (CA). I had course to reiterate the law as follows:
It is to be re-stated here that the proceedings leading to the default judgment was a summary judgment procedure.
The initiating writ of summons, statement of claim and other processes as well as the motion for summary judgment were served on the defendant bearing the date of its hearing, 29/10/2010. On the said 29/10/2010 neither the defendant nor any statement of defence or even an application by the defendant was before the Court. The Respondent then moved its motion for summary judgment which the Court granted. These facts are not denied.
Order 11 Rules 4 and 5(2) of the Rules of the lower Court provide for such situation and what should happen,
Order 11 Rules 4: …
Order 11 Rule 5(2) Reads thus: …
Pursuant to Order 11 Rule 5(2) the learned trial Judge proceeded to enter default judgment in favour of the Respondent as the Appellant was absent from Court, and there was no explanation for his absence and most importantly there was not before the Court any statement of defence or even an application for extension of time to file same. By the letters of the Rules of Court, and the decision of the Courts, it was proper for the trial Court to enter judgment in favour of the Respondent against the Appellant who though given an opportunity of being heard, failed or neglected to utilize the opportunity. The trial Judge was not bound, contrary to the Appellant’s contention, to grant an unsolicited adjournment of the case or order service of hearing notice on the Appellant who had knowledge and notice of the hearing date but failed to appear, and who placed no material before the Court warranting the adjournment of the case.”
By the clear wordings of Order 11 Rule 5 where the plaintiff has complied with Rule 1 the burden shifts to the Defendant to satisfy the Court that he has a good defence or disclose other facts that would entitle him to defend the action.
In the case at hand, there was before the Court no document to show that the appellant had any defence to the Respondent’s action. There was no record of any defence whatsoever to the Respondent’s claim for the Court to look at. All that was before the Court was the Respondent’s unchallenged claim against the Appellant.
The summary judgment procedure has been described as a special and peculiar procedure designed as a vehicle for quick delivery of justice where the defendant does not have a defence or cannot meaningfully defend the claim. UBA V. ALH. BABANGIDA (2007). See also S.P.D.C. LTD V. ARHO-JOE NIG LTD (2006) All FWLR (Pt. 331) 1330 at 1345 C-E, AUBERGINE COLLECTIONS LTD V. HABIB BANK LTD. (2002) FWLR (Pt. 128) 1276 at 186 B – D.J
It is a truncated form of hearing designed to secure quick justice due to the absence of an issue to be tried. It is a procedure that is geared towards the attainment of speedy but substantial justice in cases in which a Defendant really has no defence to the claim of the claimant against him and there is nothing worth being further investigated by the Court beyond what is contained in the affidavits of the parties.
The procedure may be likened to that of the undefended list procedure utilized for the disposal with dispatch of cases which are virtually uncontested or where there can be no doubt that the plaintiff is entitled to judgment and it would be inexpedient to allow the defendant to defend for the mere purpose of delaying the suit. Where the claim of the plaintiff is clear, certain and is one that is uncontested by the defendant or which the defendant does not have any good defence to, the defendant would not be allowed to apply delaying tactics to deny the plaintiff his claim.
On the allegation of denial of fair hearing, a lot has been, is being and will continue to be said and written on the concept, ideals, and the fundamental nature of fair hearing. Our law reports are replete with judicial decisions on the subject. Fair hearing in adjudicatory process simply means a trial conducted according to all legal rules formulated to ensure that justice is done to the parties. See PAM VS. MOHAMMED & ANOR. (2008) LPELR – 2895 (SC).
Fair hearing principle however, is largely based on the facts and circumstances of each case. In other words, the facts of each case determines whether the principles of fair hearing have been breached or not. Outside the facts, the principle is mere abstract and theoretical principle or even dead. It is only the facts of the case that influences and determines the applicability of the principle. See GOV. IMO STATE V. E.F. NET (SUPRA) at 63. Thus, fair hearing in the context of the summary judgment procedure only means giving equal opportunity to both parties to present their cases as provided by Order 11 Rules 1 – 4. The essence of Order 11 Rule 4 is to afford the defendant an opportunity to present his own side of the case to show prima facie that he has a good defence or a triable issue which materially conflicts with that of the Plaintiff and which cannot be resolved but by oral evidence. It is sufficient that the Defendant presents a defence which at least casts doubt on the Plaintiff’s case. He can only do this through his statement of defence, counter affidavit and in particular the exhibits annexed to his defence.
The law has long been settled that the summary judgment procedure or its earlier sibling, the Undefended list procedure, do not infringe on the defendant’s right to fair hearing. I therefore discountenance the Appellant’s submission on this regard.
I am also at one with the Respondent’s Counsel that the principle that the mistake of Counsel should not be visited on the litigant does not apply in this case. Furthermore, it is also the law that a party who engages the services of an unserious counsel will have himself to blame. He floats or sinks with the counsel.
Therefore, contrary to the submission of the Appellant’s Counsel, the learned trial Judge was right when he held at page 28 of the record.
It’s obvious that the defendant did not comply with the provision of Order 11 Rule 4 of the Rules of this Court. In that instance, I have no alternative but to proceed under Order 11 Rule 5 (2) of the rules of this Court 2007 and enter judgment for the plaintiff.
We cannot fault him having acted in accordance with the law. in the circumstance, the sole issue is resolved against the appeal as we find no merit in this appeal. It is accordingly dismissed. The decision of the Court below delivered on 2/7/2014 is hereby affirmed.
BITRUS GYARAZAMA SANGA, J.C.A.: I have read a draft of the judgment just delivered by my learned brother A.A WAMBAI, JCA,
I agree with My Lord that this appeal lacks merit for the main reason that the Appellant deliberately failed to respond to the originating processes served on him by the Respondent wherein the learned trial Judge rightly entered judgment in favour of the said Respondent pursuant to Order 11 Rules 4 and 5 of the Kaduna State High Court (Civil Procedure) Rules, 2001 under the Summary Judgment Procedure.
My brother in the leading judgment painstakingly reviewed the facts and evidence in support thereof and reached the inevitable decision that the lower Court was right and thus this appeal is bereft of merit. I join my brother in the leading judgment in also dismissing this appeal for lacking in merit and affirm the decision of the lower Court in Suit No. KDH/Z/63/2/14 delivered on 2/7/2014.
ABUBAKAR MAHMUD TALBA, J.C.A.: I had the privilege of reading in draft, the judgment just delivered by my learned brother AMINA AUDI WAMBAI, JCA.
I entirely agree with the reasoning and conclusion that there is no merit in the appeal. The rules relating to actions on the undefended list/summary judgment procedure have been made rather technical so as to guarantee that justice is done to a defendant whose liberty to defend an action has been somehow curtailed. The plaintiff is required to comply strictly with the rules and equally the defendant is required to comply strictly with the rules. The provision of the rules are designed as they are in order to ensure the safeguards which must necessarily be available to a defendant if rules are followed strictly and if those rules are complied with, the defendant need no prejudice in his defence if he himself on his part has complied with the rules.
Having failed, refused and/or neglected to file a defence in compliance with the rules, the learned trial Judge was right when he proceeded to enter summary judgment against the Appellant. The Appellant should also blame himself for refusing or neglecting to check on his counsel to ensure that he did the right thing. The appeal is worthless in the extreme and it is also dismissed by me. I abide by the consequential order in the leading judgment.
Appearances:
Garba Sadiq Bala, Esq, For Appellant(s)
Auta Maisamari, Esq, For Respondent(s)