CHIEF SUNDAY EVONG v. MESSRS OBONO, OBONO AND ASSOCIATES
(2011)LCN/5042(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 31st day of May, 2011
CA/C/156/2010
Before Their Lordships
JAFARU MIKA’ILUJustice of The Court of Appeal of Nigeria
MASSOUD ABDULRAHMAN OREDOLAJustice of The Court of Appeal of Nigeria
ISAIAH OLUFEMI AKEJUJustice of The Court of Appeal of Nigeria
Between
CHIEF SUNDAY EVONGAppellant(s)
AND
MESSRS OBONO, OBONO AND ASSOCIATES
(REGISTERED LEGAL PRACTITIONERS & CONSULTANTS)Respondent(s)
RATIO
THE FUNDAMENTAL PRINCIPLE OF FAIR HEARING
The principle of fair hearing is fundamental to all court procedure and proceedings, and like Jurisdiction, the absence of it initiates proceedings, however speedy and well conducted.
It is to be noted that the interpretation or word “shall” in an enactment, does not always connote mandationess. It often connotes permissiveness or directory. The order 21 Rule 1 (2) of the High court writ procedure Rules of cross River state, 2008 ought to allow the constitutional provision to prevail to enable the respondents to be heard on the substantive suit.
The supreme court has cautioned on the rules of court being used to choke, throttle or asphyxiate justice in the case of DUKE vs. AKPABUYO LOCAL GOVERNMENT (2005) 24 NSCQR 401;
“It is important to understand the nature of Rules of the court, our courts have held that rules of court are meant to be obeyed. They provide supports in the administration of justice, but it must be understood, that being rules or regulations to assist the court in its effort to determine issues of controversies before the court, care must be exercised in not elevating them to the status of a statute as they are subsidiary instruments. They are to be the just determination of a case and therefore not immutable.” PER MIKA’ILU, J.C.A.
DEFINITION OF A LIQUIDATED CLAIM
It is to be noted that a liquidated claim has been defined in the case of A.M.U & SON LTD vs. LION BANK plc. (2006) ALL FWLR (pt.293) 330 at 331 as follows:-
“a claim for an amount previously agreed on by the parties or that can be precisely determined by operation of the law or by the terms of the parties agreement.”
Thus a liquidated demand has been defined in the case of FLEMINGDOM DEV. (NIG) LTD Vs. ANAEMENE (2006) ALL NWLR (pt.301) 1915; 1926 as follows:-
“money which is ascertainable without investigation or indeed which is ascertained. If the sum being claimed or adjudged due and payable goes beyond arithmetical calculation, then it is not a liquidated demand.”PER MIKA’ILU, J.C.A.
THE CONSEQUENCE OF A PARTY FAILING TO COMPLY WITH THE PROVISIONS OF A STATUTE
Where a party in Litigation fails to comply with the provisions of a statute in initiating a process, the apex court in OKOLO VS. U.B.A (2004) 17 NSCQR 105; 109 held as follows:-
“it must be stated unflinchingly that where the statute and subsidiary legislation prescribe the mode of initiating a process or proceedings before the court and it is not followed, the only reasonable conclusion is that the party affected which fails to comply with the requirements can not be taken seriously.”
It is to be noted that jurisdiction is the pillar upon which the entire case stands. That filing an action in a court of law presupposes that the court has jurisdiction. But once the defendant shows that the court has no jurisdiction, the foundation of the case is not only shaken but is entirely broken. The case crumbles, in effect, there is no case before the court for adjudication. PER MIKA’ILU, J.C.A.
JA’AFARU MIKA’ILU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of cross River State Ugep Judicial Division, by Micheal Edem, J. The judgment was delivered on 6th July, 2010. In the court below, the Respondents claim was by way of undefended list filed on 20th May, 2010 purportedly claiming professional fee of N1,000.00 for professional services. Upon the service on the appellant, he filed a motion on 17th June, 2010 to extend time within which appellant can file and serve his memorandum of appearance Notice of intention to defend the suit and counter-affidavit and an order deeming them to be properly filed and served.
When the motion came up on 26th June, 2010 for argument the Respondent through his counsel Chief Okoi Obono Obla, objected by a written address, and evidence of penalty paid as stipulated by the Rules of court. He cited orders 2; Rule 1 (2), 12 Rule 1 (1), 10 Rule 3 (1) in support of his objection.
In his reply, the appellant averred that even if there was non-compliance, order 11 Rule 1 (1), (2) and (3) which deals with non-compliance with Rules does not stipulate a striking out of the whole process and such non-compliance is punished by award of court to rectify or amend. In a ruling of the court, it struck out the motion and went ahead to determine the suit in favour of the Respondent, hence this appeal.
In the appellant brief of argument three issues have been formulated for determination of this appeal. They are as follows:-
(1) Whether the Appellant was given fair hearing
(2) Whether the claim of the Respondent is a liquidated claim.
(3) Whether the suit is competent.
Thus the issues formulated by the Respondent are in essence similar to the issues formulated by the appellant. I will therefore consider the issues as formulated in the appellant brief of argument.
The first issue is whether the appellant was given fair hearing. Thus issue No. 1 is whether on the face of the records and upon a dispassionate and clear view the appellant was heard or given an opportunity to be heard on the substantive claim under the undefended list. It has been argued by the appellant counsel that the records reveal that the Respondent filed his writ, supported by an affidavit and a Bill of charges on 20th May, 2010. Being out of time to take any step in the suit the appellant filed on 11th June, 2010, a motion on Notice for extension of time within which to defend the suit and a counter-affidavit, and a deeming order Exhibited in the motion were a memorandum of appearance, Notice of Intention to defend the suit and counter-affidavit all duly filed and appropriate fees paid. Each process for which a deeming order was asked viz Memorandum of Appearance, Notice of Intention to defend the suit, and a counter-affidavit were all assessed N3,800.00 shown on the face of the memorandum appartly for penalty under order 13 Rule 5 of the High court (civil procedure) Rules of cross River State 2008.
However one of the reasons for striking out the appellants motion was non-payment of penalty. Even if the penalty was well assessed, which is not the case here, the apex court has held it is an error of the registry which can not vitiate proceedings or be visited on the litigant. Refer to AKPOJI vs UDEMBA (2008) 37 NSCER 158; 162.
The appellant counsel has further argued that on the 2nd ground of objection which is non-filing of memorandum of appearance, the rules of court, order 5 Rule 4 permits the court to grant an order extending time and payment of penalty. That this was the motion which the trial court settled without hearing the substantive suit. Thus the provision of order 13 Rule 1 (1) of the Rules is cured by Order 5 Rule 4.
That on the non-filing of a written address to accompany a motion, order 21 Rule 1 (2) of the Rules does not provide for striking out as a penalty but leaves the court with discretion to order the filing of one in the interest of justice, and not shutting out the appellant in a crucial trial as the undefended list. Where the Rules require a striking out of process, it clearly stipulates it, as in order 7 Rule 1 (2) dealing with the mode of commencing civil proceeding.
It is to be noted that on 6th July, 2010 the day fixed for ruling on the appellants motion for extension of time, the court struck out the motion and went on to deliver judgment on the substantive suit in favour of the Respondent without giving the appellant an opportunity to file a written address or file another motion and an address.
The Judge had power under the Rules of court to adjourn in the interest of justice address. Refer to Order 30 Rule 3.
The trial Judge instead of limiting himself to the ruling on the motion at hand he went on to use the very counter-affidavit which was part of the motion he had struck-out to decide the substantive suit.
The right to fair hearing is a fundamental constitutional right guaranteed by the constitution under section 36(1) of the 1999 constitution. The attributes of fair hearing include that the court or tribunal heard both sides not only in the case but also on all material issues in the case before reading a decision which may be prejudicial to any party in the case. It envisages giving parties the opportunity of presenting their respective cases without let or in advance from the beginning to the end. Thus fair hearing is all about fairness, which is the determining factor for the application of natural justice. Refer to OYEWOLE vs AKANDE (2009) 39 NSCQR, 213.
In the instant case, the appellant’s motion for extension of time was struck out merely for non-filing of a written address, thus not giving the appellant the opportunity to be heard on the substantive undefended list claim. Even for the purported non-payment of penalty for inter filing, assessments and payments endorsed on the face of the processes show extra Assessment and penalty of N3,800.00 the face of the memorandum of Appearance.
On not allowing the Rules of court to suit 6 Justices, Onnogen, JSC in Ogu Oko Ltd Vs NACB (2008) 34 NSCER (pt.2) 1057, 1081 stated that
“All that I am saying is that in the distransaction of Justice of justice to all and sundry, the rules of court are available to and the court in balancing the scale of justice between the parties in respect of their contending claims. The intention of the Rules is to do justice by according the parties their right to fair hearing, not to deny same”
The appellants counsel submits that in the instant case the court below used wrong application of the Rules to prevent the appellant from reaching the arena of Justice. His motion for extension of time was struck out on the wrong application of Rules without an opportunity or an adjournment to enable the appellant file a written address.
The principle of fair hearing is fundamental to all court procedure and proceedings, and like Jurisdiction, the absence of it initiates proceedings, however speedy and well conducted.
It is to be noted that the interpretation or word “shall” in an enactment, does not always connote mandationess. It often connotes permissiveness or directory. The order 21 Rule 1 (2) of the High court writ procedure Rules of cross River state, 2008 ought to allow the constitutional provision to prevail to enable the respondents to be heard on the substantive suit.
The supreme court has cautioned on the rules of court being used to choke, throttle or asphyxiate justice in the case of DUKE vs. AKPABUYO LOCAL GOVERNMENT (2005) 24 NSCQR 401;
“It is important to understand the nature of Rules of the court, our courts have held that rules of court are meant to be obeyed. They provide supports in the administration of justice, but it must be understood, that being rules or regulations to assist the court in its effort to determine issues of controversies before the court, care must be exercised in not elevating them to the status of a statute as they are subsidiary instruments. They are to be the just determination of a case and therefore not immutable.”
The learned counsel has stressed that order 10 Rule 3 (1) does not say that the affidavit contemplated under it must be headed “Affidavit disclosing a Defence on the merit”, but an affidavit the content of which must be seen disclosing a defence. To hold that it can be an affidavit headed and christened “Affidavit Disclosing a defence on the merit” is misleading and adherence to technicality. It is enough that the affidavit whether “counter Affidavit, or respondent’s affidavit” disclosed a defence on the merit.
The learned counsel for the appellant here has submitted that the affidavit anticipated by order 10 Rule 3 (1) is one that must attack or counter the Respondent’s affidavit if it must disclose a defence. That it is one that states the contrary of the Respondents affidavit. To state otherwise is to indulge in an academic exercise and more so in the realm of momendture (sic)
With the above the learned appellant counsel urges this court to vitiate the proceedings of the trial court and uphold this appeal on this ground, relying on EKPETO vs. WANOGHO (2004) 20 NSCER 333; 337 and ALSTHOM VS. SARAKI (2005) 21 NSCQR 185; 188.
Issue No.2 is whether the claim of the Respondent in the must below is a liquidated claim. It is to be noted that a liquidated claim has been defined in the case of A.M.U & SON LTD vs. LION BANK plc. (2006) ALL FWLR (pt.293) 330 at 331 as follows:-
“a claim for an amount previously agreed on by the parties or that can be precisely determined by operation of the law or by the terms of the parties agreement.”
Thus a liquidated demand has been defined in the case of FLEMINGDOM DEV. (NIG) LTD Vs. ANAEMENE (2006) ALL NWLR (pt.301) 1915; 1926 as follows:-
“money which is ascertainable without investigation or indeed which is ascertained. If the sum being claimed or adjudged due and payable goes beyond arithmetical calculation, then it is not a liquidated demand.”
The learned counsel for the appellant has argued that from the two definitions of a Liquidated claim four things stand out which are:-
(a) That the amount must have been previously agreed by the parties, or
(b) That it can be precisely determined by operation of the law, or
(c) That it can be precisely determined by the terms of the parties agreement, or
(d) That it does not go beyond arithmetical calculation.
The appellant counsel has argued that arising from the foregoing, the respondents claim in the court below is not liquidated claim as it not justified or supported by any previously agreed bill. The bill cannot be precisely determined by operation of the laws or determined by any arithmetical calculation. While a legal practitioner is entitled to be paid adequate remuneration for his services to his client under Rules 8 (1) of the Rules of Professional conduct for legal practitioners, such remuneration is subject to the general rules of contract, that is, consensus ad idem. The remuneration or bill is not determined by the party or subjected to the whims of the party. The learned counsel has argued that if the trial judge had carefully considered the counter-affidavit of the appellant, he would have seen that the appellant had a defence to the claim of the respondent that necessitated evidence on both parties to establish.
The learned appellant counsel has reiterated that the appellant’s affidavit reveals that no bill was ever agreed upon, but several payments were made directly by the appellant and through people to respondent on demand, and that the issue of bill came out not in advance of the writ of summons but alongside it. In other words, there was no previously agreed bill and the appellant had no time to contest the bill before the respondent filed his suit. The appellant counsel urges that in the face of all this information, the court below should have allowed a full scale trial through oral evidence of parties.
The appellant counsel has opined that there is no doubt that the respondent’s professional services were hired in filing a suit for the appellant and it is not automatic that a bill issued by him must be paid accept a bill based on a previous agreement. That in the instant case, there was no previously agreed bill and the transaction does not qualify to come under a liquidated demand or claim, and granting the claim of the respondent is to destroy the age-old practice of the court enforcing only the parties contract and not making one for them.
The learned appellant counsel has averred that assuming but without conceding that the claim is liquidated, it is not the law that a claim that is not defended must be granted automatically. Thus the Supreme Court in the case of MARTKEM LTD VS. M. F. KENT WEST AFRICA LTD (2005) 22 NSCQR 1037; 1039 held as follows:-
“Even if , as was the case here, the evidence in a case went in one direction in that it was unchallenged, the trial evidence was sufficient to establish the claims made by the party in whose
favour the unchallenged evidence was given.”
This is in line with section 16(3) (b) of the Legal practitioners Act (2004) which provides as follows:-
“In any case in which a legal practitioner satisfies the court on an application made either exparte or if the court so direct after giving the proscribed notice.
(a)
(b) That on the face of it the charges appear to be proper on the circumstances, and
The appellant’s counsel had added that even if the striking out of the appellant’s motion for extension of time had left him technically without a defence to the Respondent’s claim, a careful examination would have revealed to the trial Judge that the claim was not liquidated and ought not to have received the treatment under the undefended list procedure. That there was no evidence of a previously agreed bill.
The learned appellant counsel has further averred that the Supreme court in the case of NWORAH vs. AFAMAKPUTA (2010) 42 NSCQR (pt 1) 302, 340 stated as follows:-
“Even in the case of U.T.C vs. CHIEF PAMOTEI & ORS (supra) the following, inter alia, appears:-
“Even where a defendant neglects (I will add fails) to deliver a notice and an affidavit as required by the rules, may on an affidavit disclosing a defence on the merits and satisfactorily explaining his neglect, be let in to defend on terms.”
With the above the learned counsel for the appellant urges this court to resolve this issue in favour of the appellant.
The next issue is whether the suit in the court below was competent. The learned appellant counsel here has averred that the recovery of professional fees by a legal practitioner from his client through the court is governed by the Legal Practitioners Act, 2006. That section 15(3) (d) of the Legal Practitioners Act 2004 presupposes the existence of a written agreement between the legal practitioner and his client. Refer to OYEKANMI vs. NEPA (2001) FWLR (pt.34) 404; 409 that under section 16 (2) (b) and (3) (a) and (b) it stipulates a condition precedent for the institution of a suit for the recovery of charges, namely the service of a bill of charges on the client for one month before the institution of the action. That in the instant case the appellant was on oath in his affidavit and stated that he was never served any bill of charges by the legal practitioner before instituting the suit.
Section 16 (2) (a) of the Legal practitioners Act 2004 provides as follows:-
“Subject as aforesaid, a legal practitioner shall not be entitled to begin an action to recover his charges unless;
(a) a bill for the charges containing particulars of the principle items included in his bill by him, or in the case of a firm by one of the partners or in the name of the firm, has been served on the client personally or left for him at his last address as shown to the legal practitioner or sent by post addressed to the client at the address, and
(b) the period of one month beginning with the date of delivery of the bill has expired.”
With the above the appellant counsel has concluded that the respondents suit in the court below was in competent thus divesting the trial court of the jurisdiction to entertain it. Thus a court is said to have jurisdiction and competence to hear matter when;
(1) It is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or the other,
(2) The subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction; and
(3) The case comes before the court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction. See MARK vs. EKE (2004) 17 NSCQR 60, 66; MADUKOLU & ORS VS. NKENDILIM (1962) ALL NLR 589 – 590.
The learned appellant counsel has maintained that Respondent’s non-service of the bill of charges on the appellant one month before the institution of the suit, and the absence of a written agreement in line with section 15(3) (a) and 16(2) (a) (b) of the Legal Practitioners Act, Cap 11, Laws of the Federation of Nigeria, 2004, constituted a condition precedent to the exercise of jurisdiction and a feature in the case which prevents the court from exercising its jurisdiction.
Where a party in Litigation fails to comply with the provisions of a statute in initiating a process, the apex court in OKOLO VS. U.B.A (2004) 17 NSCQR 105; 109 held as follows:-
“it must be stated unflinchingly that where the statute and subsidiary legislation prescribe the mode of initiating a process or proceedings before the court and it is not followed, the only reasonable conclusion is that the party affected which fails to comply with the requirements can not be taken seriously.”
It is to be noted that jurisdiction is the pillar upon which the entire case stands. That filing an action in a court of law presupposes that the court has jurisdiction. But once the defendant shows that the court has no jurisdiction, the foundation of the case is not only shaken but is entirely broken. The case crumbles, in effect, there is no case before the court for adjudication.
The parties can not be heard on the merits of the case, Refer to Okolo vs. UBN (2004) 17 NSCQR 105; 110. Having gone over the brief of argument of the appellant and that of the respondent I am of the view that this appeal should be allowed and the ruling of the lower court of 6th July, 2010 should be set aside for the following reasons:-
(1) On the date adjourned for ruling on the appellant’s motion to regularize his position, it was wrong and against the rule of fair hearing to dismiss the motion and go ahead to deliver judgment on the substantive suit relying heartily on the already dismissed affidavit. Fair hearing demands that the appellant be offered an opportunity of an adjournment to regularize himself.
(2) For an action to fall under the undefended list procedure it must be fully a liquidated claim which is for an amount previously agreed on by parties or that it can be precisely determined by operation of the law or by the terms of the parties agreement. The Respondent’s claim fell short of the requirements of a liquidated demand.
(3) That the non-service of the bill of charges on the appellant one month before the institution of his action, and the absence of a written agreement in line with section 15(3) (d) and 16(2) (a) (b) of the Legal Practitioners Act 2004 constituted a condition precedent to the exercise of jurisdiction and a feature in the case which prevents the court from exercising its jurisdiction.
Finally it is clear that the appeal has merit and it is hereby allowed and the ruling of the lower court of 6th July, 2010 is hereby set aside. I make no order as to costs.
MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: I read in advance the lead judgment of my learned brother, Ja’faru Mika’ilu, JCA. I am in agreement with the conclusion reached therein. I agree that the appeal has merits and I also allow the appeal. I abide by the consequential orders made in the said judgment, including that on costs.
ISAIAH OLUFEMI AKEJU, J.C.A.: My learned brother, Ja’faru Mika’ilu, JCA gave me the opportunity of reading the draft of the lead judgment just delivered. I agree with the reasoning and the conclusion therein. I allow the appeal and abide by the consequential orders in the lead judgment.
I make no order as to costs.
Appearances
Omini Ubi Usang, Esq.For Appellant
AND
Chief Okoi O. Obono-Obla Esq.For Respondent
