CHIEF & MRS. BENSON ANOKA v. MISS FELICIA REFORGOR IKPO
(2013)LCN/6059(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 26th day of March, 2013
CA/C/189/2010
RATIO
“It is trite law that an affidavit or further affidavit constitutes evidence. The issues in contention in this appeal were to be determined on an application supported by affidavit evidence. See Banque De L’Afrique Occidental vs. Alhaji Baba Sharfadi & Ors. (1963) NNLR 21; Nwosu vs. Imo State Environmental Sanitation Authority & Ors. (1990) 4 SCNJ 97 and Bamaiyi vs. The state (200 11 4 SC (Pt.1) 18 at 32-33.” Per TUR, J.C.A.
“The rule of audi alteram partem demands that the court must hear both sides at every material stage of the proceedings before handing down a decision. If any of the parties is refused or denied a hearing or is not given on opportunity of being heard, such hearing cannot qualify as fair hearing under the audi alteram partem rule; See Olumesan v. Ogundepo (1996) 2 NWLR (Pt.433) 628 at 644, Gukas v. Joe International Breweries Ltd (1991) 6 NWLR (PT.199) 614 at 623, Agwarangbo V Nakande (2000) 9 NWLR (PT.672) 341. Fair hearing under the undefended list procedure implies that the defendant was served with the plaintiff’s claim and affidavit in support; and, given on opportunity to respond thereto. It also implies that the affidavit evidence of the parties is property evaluated by the court and finding made thereon; the matter thereafter either transferred to the general cause list, if a defence on the merit has been disclosed; or judgment entered against the defendant.” Per OTISI, J.C.A.
JUSTICES
UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria
JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria
ONYEKACHI A. OTISI Justice of The Court of Appeal of Nigeria
Between
CHIEF & MRS. BENSON ANOKA Appellant(s)
AND
MISS FELICIA REFORGOR IKPO Respondent(s)
UZO I. NDUKWE-ANYANWU, J.C.A. (Delivering the Leading Judgment): This is a suit brought under the Undefended List procedure. The Respondent as Claimant had paid a total of N1.6m to the Appellants as defendants for the delivery of a Mack 30 tons Truck within a month. The truck was not delivered and the deposit of N1.6m was not refunded.
Upon the institution of the suit under, the Undefended List procedure, the Appellants filed a memo of conditional appearance and an intention to defend this suit.
On the 25th day of June, 2010 this suit was heard by another judge. The defendants were unrepresented. The plaintiff asked for extension of time to enable the proceedings to continue under the Undefended List. The plaintiff also informed the Court that he had filed a further affidavit. This application was granted and the suit was adjourned for judgment.
Judgment was entered in favour of the Plaintiff/Respondent against the defendants/Appellants. The trial judge held inter alia as follows:
“1. Defendants are hereby ordered to pay to Claimant the sum of N1,480,000.00 being balance of money paid by Claimant to Defendants (sic) supply of 30 tons made (sic) truck vehicle which defendants defaulted.
2. Interest at the rate of GOPA is hereby awarded in the Principal sum from today until the liquidation of the judgment sum.”
Being dissatisfied, the Appellants filed their notice and three grounds of Appeal on 12th day of July, 2010 The Appellants filed their Appellants’ brief on 11th day of February, 2011. The Appellants articulated two issues for determination as follows:
“1. Whether the proceedings of 25th day of June, 2010 were not a violation of the right of fair hearing of the Appellants when the suit was heard without the appellants and no hearing notice was issued and served.
2. Whether the “Mr & Mrs” can confer legal status on married couples to sue and be sued.”
The Respondent filed his brief on 10th day of March, 2011 and articulated two issues also as follows:
“1. Whether the appellants who failed to take advantage of fair hearing process can claim that the court has denied them of their right to fair hearing.
2. Whether the defendants/appellant can be jointly sued in law.”
On the day slated for hearing the appeal, the Appellants’ counsel was absent in court though served. However the Appellants’ brief was already in the file and the court took it as having been argued. The Respondent also adopted his brief and urged the court to dismiss this appeal and affirm the judgment of the trial judge.
ISSUE 1:
Counsel to the Appellants submitted that this suit was placed under the Undefended List by Hon.Justice Emilia Ibok and fixed for hearing on 16th day of April, 2010. The Appellants filed their Memorandum of Appearance, a preliminary Objection and a notice of intention to defend. Nothing was heard again until 9th day of July,2010 the date the judgment was delivered by another Judge,Hon.Justice Anjor.
From the record, Justice Anjor had presided over the proceedings of 25th day of June, 2010 without the defendants/Appellants. The Respondent also filed a further affidavit which was not served on the Appellants but relied on by the trial judge.
Counsel submitted that the suit came before Hon. Justice Anjor for the first time on 25th day of June, 2010. He ought to have adjourned the matter for the defendants/Appellants to be served with the further affidavit and Hearing Notice.
Counsel submitted that the proceedings of 25th day of June, 2010 was a nullity since the Appellants were not served with hearing notice and not heard thereby breaching their fundamental right of fair hearing. See Ojukwu vs. Obasanjo (2004) 12 NWLR Pt.886 page 169; Esseien vs. Edet (2004) 5 NWLR Pt.867 page 519. The trial judge sacrificed fair hearing on the altar of speedy disposition of cases. See Pam vs. Mohammed (2008) 16 NWLR Pt.1112 page 1.
The Respondent filed his further affidavit and upon that, the trial judge heard the suit and adjourned for judgment. Counsel urged the court to resolve this issue in favour of the Appellants and allow this appeal.
In reply the learned counsel to the Respondent submitted that on the 9th day of July, 2010 the Appellants were represented and did not complain when the judgment was read. The Appellants had by that acquiesced to the improper procedure and therefore cannot complain now. See Obisi vs. CNS (2004) 8 MJSC page 141.
Counsel argued that fair hearing is for both parties as enshrined in Section 36 of the 1999 Constitution. In civil cases, a balance has to be struck between the plaintiffs right to have his case heard expeditiously and the defendant’s right to put across his defence to plaintiffs suit. A party who has been afforded the opportunity to put across his defence and who fails to take advantage of such opportunity cannot later turn around to complain that he was denied a right to fair hearing. Counsel argued that the Appellants had filed their notice of intention to defend the suit and therefore the next stage was the judgment. Counsel urged the court to resolve this issue against the Appellants and dismiss this appeal.
The courts have held in a plethora of cases that:
“The undefended list procedure is adopted when it is perceived that the defendant could not possibly have any defence to the claim. A suit is maintainable under the undefended list if it relates to a claim for a debt or liquidated money demand. It is a procedure meant to shorten the hearing of the suit.”
S.B.N. Plc vs. Kyentu (1998) 2 NWLR (Pt.536) 41 Garba vs. Sheba Int. (Nig) Ltd. (2002) 1 NWLR (Pt.748) 372
Haido vs. Usman (2004) 3 NWLR (Pt.859) 65.
A party who wants his suit to be placed under the Undefended List Procedure will file his affidavit at the time he is taking out the writ. He will depose to the facts that the court will look at and conclude that indeed the defendant has no defence. See SBN Plc vs. Kyentu (supra).
A defendant who intends to defend this suit must file his notice to defend the suit together with an affidavit disclosing a defence on the merit. See Haido vs. Usman (supra)
The trial court must give a return date for hearing, where the suit is placed under the Undefended List. If the defendant does not file an affidavit with his notice of intention to defend, the trial Judge would proceed an intention to defend, the trial judge would proceed to judgment on the return date. Ben Thomas Hotel Ltd. vs. Sebi Furniture Ltd. (1989) 5 NWLR Pt.123 page 523.
In a suit brought under the Undefended List Procedure, the trial court is expected to consider the evidence in the affidavit filed by the defendant in support of his notice of intention to defend the suit. The trial court must peruse the affidavit to ascertain whether it discloses any defence on the merit. Once the Court is satisfied that the affidavit does not disclose of, any defence on the merit, the court will proceed with the hearing of the suit under the Undefended List and enter judgment without calling the defendant to answer or be heard even if he is in court.
In exercising the court’s discretion in a suit brought under the Undefended List, it is mandatory that the court will make a specific finding one way or the other, that there is no defence to the plaintiff s claim. This is a condition precedent to the validity of any trial conducted under this procedure. Kabiru vs. Ibrahim (2004) 2 NWLR Pt.857 page 326; Haido vs. Usman (supra). However where there is conflict in the affidavit of the parties, the only thing the trial Court will do is to enter the suit in the general cause list, where evidence would be taken to resolve the conflict. Ebong vs. Ikpe (2002) 17 NWLR Pt.797 page 504.
In the present case the defendants/Appellants filed their notice of intention to defend together with their affidavit of 13 paragraphs. Nothing was recorded on the return date 16th day of April, 2010 in the Record. On the 25th June, 2010 presided over by Hon.Justice Anjor, the record reads thus:
“Parties absent.
U. E. Eba for Plaintiff.
Defendant unrepresented.
Eba Esq: The suit was commenced under the undefended List and upon service on Defendant; they filed Notice of Intention to defend. We have also filed a further affidavit applies for extension of time to enable the Proceedings continue.
Court: 1.Application for extension of time to continue the proceedings under Undefended List is granted as prayed and;
2. Matter adjourned for Ruling on 9th day of July, 2010.”
The trial judge did not record whether the Appellants were served with Hearing Notice. Furthermore, there was no record that the Appellants were served with the further affidavit of the Respondent. Also the trial judge did not make a finding one way or the other whether the defendants in their affidavit disclosed a defence on the merit or not. This is a requirement of the law that before the trial judge proceeds to hear the suit he must make a specific finding one way or the other. This was not done.
In the absence of the Appellants, the suit was heard and adjourned for judgment. The Appellants were therefore absent and not afforded an opportunity to be heard.
The trial judge held that the Appellants had started paying back the debt and as such had admitted the claim. This might be so, but a party must have knowledge that his case is coming up for hearing with a Hearing Notice. More so, the law says that the trial Judge must make a specific finding whether the affidavit of the defendant discloses a defence on the merit. This was not done. It therefore means that the maxim audi alterem partem. Let the other party be heard was not observed. Therefore it would not be wrong to say that there was no fair trial or hearing.
Fair hearing within the meaning of Section 36(1) of the 1999 Constitution means a trial conducted according to all the legal Rules formulated to ensure that justice is done to the parties. It requires the observance of the twin pillars of the Rules of Natural Justice, namely, audi alterem partem and nemo judex in causa sua. Eshanake vs. Gbinije (2002) 1 NWLR Pt.961 page 228.
Trial courts are enjoined to ensure that hearing notices are issued on parties before embarking on the trial of any matter before them. Bamgboye vs. UNILORIN (1999) 10 NWLR Pt.622 page 290; Awoniyi vs. The Registered Trustees of the Rosicrucian Order; Amorc (Nig.) (2000) 6 SC Pt.1 page 103.
In the present case the Respondent filed a further affidavit that was not served on the Appellants and utilized by the trial Judge in reaching his decision. This is a breach of fair hearing.
“It is trite law that once there is a breach of fair hearing, the whole proceedings in the course of which the breach occurred and the decision arrived at by the court becomes a nullity” – ANPP vs. INEC (2004) 7 NWLR Pt.871 Page 16; All Peoples Party vs. Ogunsola (2002) 5 NWLR Pt.761 page 484; B.O.N. Ltd. vs. Adegoke (2006) 10 NWLR Pt.983 page 339.
The Appellants were not accorded a fair trial in this case. The decision reached by the trial Judge is therefore a nullity. The first issue is resolved in favour of the Appellants.
The 2nd issue is now an academic exercise as I have found that the whole proceedings held in the trial court is a nullity. This appeal is allowed. I upturn the judgment of the lower court, it being a nullity. This suit is to be remitted to the Chief Judge of Cross River State who will assign it to another judge for trial de novo.
I make no orders as to costs.
JOSEPH TINE TUR, J.C.A.: I read in advance the lead judgment delivered by my Lord Uzo I. Ndukwe-Anyanwu, JCA and I concur with the reasons and conclusions. I shall add the following comments.
It is trite law that an affidavit or further affidavit constitutes evidence. The issues in contention in this appeal were to be determined on an application supported by affidavit evidence. See Banque De L’Afrique Occidental vs. Alhaji Baba Sharfadi & Ors. (1963) NNLR 21; Nwosu vs. Imo State Environmental Sanitation Authority & Ors. (1990) 4 SCNJ 97 and Bamaiyi vs. The state (200 11 4 SC (Pt.1) 18 at 32-33.
Order 10 rules 14 of the High Court (Civil Procedure) Rules, 2008 of Cross River State sets out the procedure to follow in suits brought under the undefended procedure to wit:
“1. Where application is made to a Court for the issue of a writ of summons in respect of a claim to recover a debt or liquidated money demand and such application is supported by an affidavit setting forth the grounds upon which the claim is based and stating that in the deponent’s belief there is no defence thereto, the Court shall, if satisfied that there are good grounds for believing that there ,s 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.
2. There shall be delivered by the plaintiff to the Registrar upon the issue of the writ of summons as aforesaid, as many copies of the above mentioned affidavit as there 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.
3(1) If the party served with the writ of summons and affidavit delivers to the Registrar 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 giving under this rule, the action shall be removed from the Undefended List and placed on the Ordinary Cause List; and the Court may order pleadings, or proceed to hearing without further pleadings.
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 thereon, without calling upon the plaintiff to summon witnesses before the Court to prove hrs case formally.”
Matters requiring proof under the procedure are by affidavit and counter-affidavit supported if possible, with documentary exhibits as the case may be. The suit came before Emilia Ibok J., who fixed same for hearing on 16th day of April, 2010. When Anjor J., became seised of the suit on 25th day of June, 2010, upon noticing the absence of the appellant or his Counsel, his Lordship should have ascertained whether they were notified of the hearing date of 25th day of June, 2010 or not before proceeding. Moreover, there was no evidence that the further affidavit had been served on the appellant or learned Counsel. Nevertheless his Lordship proceeded to the determination of the substantive application to the detriment of the appellant. The result is that further affidavit evidence was considered in the absence of proof that the appellant had been served. The worst aspect of this appeal is that on 25th day of June, 2010 Eba, Esq. of Counsel to the respondent applied for “…extension of time to enable the proceedings continues.” The prayers were granted by the Court. However, the proceeding was “adjourned for Ruling on 9th day of July, 2010.” Judgment was entered in favour of the Respondent. The learned trial Judge granted a relief not asked by the Respondent. See Ekpenyong vs. Nyong (1975) 2 SC 71 at 80; Ochonma vs. Unosi (1965) NMLR 321 at 323. A hearing that was conducted by the Court without notice to the party affected is a nullity. The appellant is entitled in law and in conscience to have the judgment set aside by the lower Court or on appeal. See Lawrence Scott-Emuakpor vs. Ukavbe (1975) 12 SC 41; SGB (Nig.) Ltd. vs. Adewunmi (2003) FWLR (Pt.158) 1181. Accordingly the judgment of the lower Court is set aside. I abide by the orders of my Lord.
ONYEKACHI A. OTISI, J.C.A.: I have had the opportunity of reading in draft the Judgment just delivered by my learned Brother, Ndukwe-Anyanwu JCA. I am in complete agreement with both the reasoning and conclusion. I will only add a few comments in support.
The suit that occasioned in this appeal was heard under the undefended list procedure as provided for in Order 10 of the Cross River State High Court (Civil Procedure) Rules 2008. The undefended list procedure is a special procedure whereby the High Court is empowered to give judgment in a suit based solely on affidavit evidence of the parties without recourse to the necessity of a formal hearing, if the requirements of the rules are satisfied. The case is heard and determined based on the affidavit evidence presented before the court as such there is no room for form of hearing of evidence and tendering of exhibits.
Under this procedure, the plaintiff deposes to an affidavit in support of his claim. After service of the writ, a defendant who has a defence to the claim is required to file a notice of intention to defend the action together with an affidavit disclosing a defence on the merit. This affidavit must not contain merely a general statement that the defendant has a good defence to the action. Rather, such general statement must be supported by particulars which is proved would constitute a defence. The defendant’s affidavit must condescend to particulars and should as far as possible, deal specifically with the plaintiff’s claim and affidavit and state clearly and concisely what the defence is and what facts are relied on to support it. It should also state whether the defence goes to the whole or part of the claim, and in the latter case it should specify the part. When the court goes through the affidavit and comes to the conclusion that it discloses a defence on the merit, the court would give leave to the defendant to defend the action and remove the suit from the undefended list to the general cause list to be dealt with according to the rules of court. See: John Holt & Co. (Liverpool) Ltd. v. Fajemirokun (1961) All N.L.R. 492; Peter Tiwell (Nig.) v. Inland Bank (1997) 3 NWLR (pt.494) 408: Bulet International Nig. Ltd vs. Adamu (1997) 3 NWLR (PT 493) 348.
Where the defendant fails or neglects to file a notice of intention to defend with an affidavit in support, or where the affidavit in support of the notice of intention to defend discloses no defence, the case shall not be transferred to the general cause list. See: Pan Atlantic shipping v Rhein Mass GMBH (1997) 3 NWLR (PT 493) 248; Okunriboye v Skye BAnk (2009) 2-3 MJSC 42.
The rule of audi alteram partem demands that the court must hear both sides at every material stage of the proceedings before handing down a decision. If any of the parties is refused or denied a hearing or is not given on opportunity of being heard, such hearing cannot qualify as fair hearing under the audi alteram partem rule; See Olumesan v. Ogundepo (1996) 2 NWLR (Pt.433) 628 at 644, Gukas v. Joe International Breweries Ltd (1991) 6 NWLR (PT.199) 614 at 623, Agwarangbo V Nakande (2000) 9 NWLR (PT.672) 341.
Fair hearing under the undefended list procedure implies that the defendant was served with the plaintiff’s claim and affidavit in support; and, given on opportunity to respond thereto. It also implies that the affidavit evidence of the parties is property evaluated by the court and finding made thereon; the matter thereafter either transferred to the general cause list, if a defence on the merit has been disclosed; or judgment entered against the defendant.
The Appellant herein filed a notice of intention to defend with the affidavit in support. The Respondent in reaction filed a further affidavit. At the proceedings on 25/6/2010, the Appellant was absent and unrepresented by Counsel. The trial court was informed by Respondent’s Counsel that a further affidavit had been fifed. The trial court then adjourned for Judgment. There is no record that the Appellant was either served with the further affidavit or given an opportunity to respond thereto by being served with a hearing notice. The trial court relied on that further affidavit in entering judgment in favour of the Respondent. In my considered view, these are serious lapses which have caused unfairness in the proceedings. The Appellant was therefore not accorded fair hearing.
Where proceedings and judgment of a lower court are vitiated by unfairness, the said proceedings and judgment amount to a nullity and may be set aside either by the court that gave it or by an appellate court. See: Bamgboye V. University of Ilorin (1999) 10 NWLR (Pt.622) 290: Deduwo v. Okorodudu (1976) 9 – 10 SC 392; Amadi v. Aplin (1972) 4 SC.228.
For these reasons, and, for the fuller reasons given in the lead judgment, I also declare that the judgment of the lower court amounts to a nullity. I abide with the Orders made in the lead judgment.
Appearances
F. O. OnyebuekeFor Appellant
AND
U. E. EbaFor Respondent
