ELEBA v. J.M.S. INTERNATIONAL LTD
(2010)LCN/4046(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 23rd day of November, 2010
CA/PH/249M/2008
RATIO
HEARING NOTICE: CONSEQUENCE OF THE FAILURE TO GIVE HEARING NOTICE OF PROCEEDINGS TO A PARTY IN A CASE WHERE SUCH SERVICE IS REQUIRED ; WHETHER A COURT HAS A DUTY TO WAIT FOR A PARTY WHO IS ABSENT BUT WAS DULY SERVED WITH THE PROCESSES OF COURT
Failure to give hearing notice of proceedings to a party in a case where such service is required is a fundamental error which nullifies such proceedings because the court has no jurisdiction to entertain it. See MARK V. EKE (2004) 5 NWLR (Pt. 865) 54; ONNAYE EPHAREBA (1998) 11 NWLR (Pt. 575) 598. It is not the duty of a court or tribunal to wait for a party who is duly served with the processes of court but is absenting court. The court is free to commence hearing if satisfied that the parties to the case were duly served. See NYAMATI ENTERPRISES LTD V. NDIC (2006) ALL FWLR (Pt. 293) 356. PER T.O. AWOTOYE J.C.A
DEFAULT JUDGMENT: WHETHER ONE OF THE PRINCIPLES THAT SHOULD GUIDE A COURT IN SETTING ASIDE A DEFAULT JUDGMENT IS THE CONDUCT OF THE DEFENDANT FROM THE TIME OF THE SERVICE-OF THE WRIT ON HIM TO THE DATE OF JUDGMENT WAS SUCH THAT WAS WORTHY OF SYMPATHETIC CONSIDERATION
In setting aside a default judgment as in the case now on appeal the principles that should guide the court are well set out in MOHAMMED v. HUSSENI (1998) 14 NWLR (pt.5B4) 108 at 130, cited by the learned trial judge one of the principles is whether the conduct of the defendant from the time of the service-of the writ on him to the date of judgment was such that was worthy of sympathetic consideration. PER T.O. AWOTOYE J.C.A
DUE COMPLIANCE: EFFECT OF ANY JUDGMENT GIVEN WITHOUT DUE COMPLIANCE AND IN BREACH OF A PARTY’S FUNDAMENTAL RIGHT TO FAIR HEARING
Any judgment which is given without due compliance and which has breached fundamental right of fair hearing is a nullity and is capable of being 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) 2g0 Deduwa v. Okorodudu (1976) 9 – 10 SC 329, Amadi v. Thomas Aplin & Co. Ltd. (1972) 4 SC. 228. Sadau v. Kadir (1956) 1 FSC 39 (1956) 1 SCNLR 93. But a party to a legal dispute cannot claim breach of fair hearing where he has willfully absented himself from the hearing or failed to give evidence when called upon to do so. PER T.O. AWOTOYE J.C.A
DISCRETION OF COURT: CIRCUMSTANCE UNDER WHICH THE COURT WOULD READILY EXERCISE ITS DISCRETION TO EXTEND THE PERIODS PRESCRIBED FOR DOING AN ACT
This court, would readily exercise its discretion to extend the periods prescribed for doing an act if it is shown to the satisfaction the court that the failure by a party to do the act within the period prescribed was caused by the negligence or inadvertence of his counsel. (See T.A. Doherty & another V.R.A. Doherty (1964) 1 ALL NLR 299 and G.B.A. Akinyede v. The Appraiser (1971) 1 all N.R. 162). PER T.O. AWOTOYE J.C.A
NEGLIGENCE OF COUNSEL: WHETHER COURT CANNOT VISIT THE NEGLIGENCE OR INADVERTENCE OF COUNSEL ON A LITIGANT
A court should not visit the negligence or inadvertence of counsel on a litigant. See LONG JOHN v. BLACK (1998) 6 NWLR (pt. 36) 95; AHENBI v. ALEO (1989) 3 NWLR (pt. 108) 118 Bello JSC (as he then was) had thus to say on this point TUNJI BOWAJE V. MOSES ADEDIWURA ( [)76) 6SC 143 at 147. PER T.O. AWOTOYE J.C.A
Before Their Lordships
M. D. MUHAMMADJustice of The Court of Appeal of Nigeria
I. THOMASJustice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYEJustice of The Court of Appeal of Nigeria
Between
ARCH G. N. ELEBAAppellant(s)
AND
J.M.S. INTERNATIONAL LTD.Respondent(s)
T.O. AWOTOYE J.C.A (Delivering the Leading Judgment): This is an appeal against the decision of Rivers State High Court:
Port Harcourt judicial Division delivered on L911212005 between J. M. S. International Ltd. v. Arch. G. N. Eleba.
The plaintiff/Respondent on 11/10/2001 instituted an action against the Appellant claiming:
“1) The sum of 5 Million Naira only which the defendant has refused to pay the Plaintiff despite repeated demand.
2) Interest therein at 10% from the date of judgment until the sum is liquidated.”
In line with the Rivers State High Court Rules the Plaintiff filed motion exparte praying that the suit be heard in the “UNDEFENDED LIST”. The motion exparte was supported by 21 paragraphs affidavit and several documentary annextures. The Plaintiff/Appellant deposed in paragraph 18 of the affidavit that the Defendant had no defence to the action.
In response after being served the Defendant filed Notice of Intention to Defend out of time and later sought Ieave for court to regularise the Process.
The suit was later transferred to the general cause list. The plaintiff filed statement of claim on 4/7/2002 and served the Defendant on the same day.
When the Defendant did not file and serve his statement of Defence as required by the rules of court, the Plaintiff applied that final judgment be entered in his favour in default of the Defendant filing his statement of defence. The Defendant was served with the motion for judgment on 30/10/2002. The Motion on Notice was argued on 76/6/2003 when the Defendant did not appear in court did not file statement of Defence on counter – affidavit to oppose the application for judgment despite having been served. The further hearing of the application was adjourned to 15/ 10/2003 and further adjourned to 13/11/2003 when the judgment was delivered in favour of the plaintiff.
On 7/1/2004 the defendant filed an application praying as follows:-
“1. An order for extension of time to apply to set aside the Default judgment made on 13/11/2003 against the defendant.
2. An order of court setting aside the said judgment made by the Honourable court on 13/11/2003.
3. An order staying the execution of the judgment inclusive of all process of execution.
4. An order relisting the case for hearing on the merit.
5. An order for extension of time to file the defendant/Applicants’ statement of Defence/Counter Claim out of time.
6. An order deeming the statement of Defence/Counter claim filed on 6/3/2003 here to attached as EXH/A as properly filed as served out of time.
7. For such orders as the Honourable Court may, deem fit to make in the circumstance.”
He supported the application with 40 paragraphs affidavit claiming that he had filed his statement of defence since 1/3/2002. The Plaintiff opposed the application by filing 23 paragraphs of counter -Affidavit.
After hearing the parties the learned trial judge on 19/12/2005 delivered a ruling dismissing the application and awarding cost of N5,000 in favour of the plaintiff/Respondent.
The Defendant/Appellant being dissatisfied with the Ruling had filed Notice of Appeal with 6 Grounds of Appeal and 3 additional grounds of appeal.
In his brief of argument deemed filed on 29/10/2009, the Appellant formulated 3 issues for determination namely:-
“(1) Whether the lower court did not lack jurisdiction by reason of the breach of the appellants constitutional right to fair hearing occasioned by the non-service of hearing notices on the appellant or his counsel before the court entered the default judgment.
(2) Whether in refusing to grant reliefs contained in the motion on notice dated 07/01/04 the learned trial Judge did not visit the sin(SIC) inadvertence and mistakes of the Appellants’ counsel on the Appellant.
(3) Whether the learned trial judge exercised his discretion judiciously and judicially in refusing to grant the reliefs/prayers contained in the motion on notice filed on 7/1/04.”
ON ISSUE NO. 1
Learned counsel for Appellant submitted that it was trite law that where an adjournment was made at the instance of the court the proper step was to cause hearing notices to be served on the parties. He cited ASSOCIATION OF NIGERIA COOPERATIVE EXPORTERS LTD V. COOPERATIVE BANK PLC (2004) ALL FWLR (pt. 209) 1039 at 1062; So MAI SONKA LTD V. ADZEGE (2001) FWLR (Pt. 68) 1104 at 1119.
He submitted further that where notice of proceedings was required failure to notify any party concerned was a fundamental omission which entitled the party not served and against whom any order was made in his absence to have the order set aside on the ground that a condition precedent to the exercise of jurisdiction to make the order and not been fulfilled. He cited WEMA BANK V. ODUI-AJA (2000) FWLR (Pt.17) 138 at 142 – 143; FALADU V. KWOI (2002) FWLR (Pt. 113) 36s at374.
He further contended even if the defendant did not file any process he was entitled to a hearing notice. He cited FALADU V. KWOI (supra) at 375.
He added that failure to serve a hearing notice on a party who was entitled to it vitiated the proceedings. He cited -REX VS INANG (2003) FWLR (pt. 170) 1469 at 1489.
He urged the court to hold that the default judgment entered against the defendant was void by reason of non-service of hearing notice on the defendant.
ON ISSUE NO.2
On issue 2 he submitted that a court should not visit the sin of the counsel on the litigant. He cited INDU CON. (NIG) LTD V. WISE PART (2003) FWLR. (Pt. 187) 880 at 884; BOWAJE V. ADEDIWURA (1976) 6 SC 143.
He added that the plaintiff/Respondent would have been adequately compensated in cost if the Learned Trial Judge had granted the reliefs in the motion. He relied on LENAS FIBRE GLASS LTD. v. FURTADO (1987) 5 NWLR (pt. s94) 220 at 234.
ON ISSUE NO. 3
Learned counsel submitted that the trial court did not give regard to all the materials before deciding to refuse his application.
He cited IDEOZU V. OCHOMA (2006) 4 MJSC 91 at 121 and other cases.
He further submitted that the finding of the learned trial judge that the Defendant/Applicant did not depose in his affidavit any reason why the application was not brought within 6 days of the entering of the default judgment was perverse and a misapprehension of the facts before the court. He contended that the case WILLIAM V. FIOPE RISING VOLUNTARY FUNDS SOCIETY (1982) 1-2 SC 145 at 159 which the learned trial judge relied heavily upon was distinguishable from the facts of this case.
He finally urged the court to set aside the ruling of the lower court and order a retrial of the suit.
The Respondent in his brief formulated one issue for determination viz:-
“Whether or not the Defendant/Appellant was entitled to an order setting aside the judgment of the trial court given against the defendant/appellant in default of his filing pleadings.”
Learned counsel for the Respondent submitted that under Order 27 Rule 10 of the High Court of Rivers State (Civil Procedure)
Rules 1987 the power to set aside a judgment in default of pleadings was entirely at the discretion of the court. He cited WILLIAM V. HOPE RTSTNG VOLUN-|ARY FUNDS SOCTETY (1982) 1- 2 SC 145; UGWU VS ABA & CRS; (1965) l ALL NLR 438 and other cases he referred to several parts of the ruling of the trial judge. He cited cutting MIRCHANADANI VS PINHEIRO (2001) 3 NWLR (Pt. 701) Page 571, that the mistake of the applicant was a product of ineptitude or lack of argument.
He urged the court to resolve the sore issue in favour of the plaintiff/Respondent and dismiss the appeal.
The Appellant filed a reply brief where he further submitted that it was settled law that where a party was entitled to a notice of proceedings such as hearing notice and there was failure to serve him such a failure was a fundamental defect which went to the root of the competence and jurisdiction of the court to deal with the matter.
He cited MBADINUJU V. EZUKA (1999) 8 NWLR (pt. 364) 535 at 566; OBIMONURE V. ERINOSHO (1966) 1 ALL NLR page 250 at 252-253; SKEN CONSULT (NIG) LTD V. UKEY (1981) 1 SC AT 25-28.
He finally urged the court to allow the appeal.
I have carefully considered the submissions of learned counsel on both sides and the record of proceedings.
Failure to give hearing notice of proceedings to a party in a case where such service is required is a fundamental error which nullifies such proceedings because the court has no jurisdiction to entertain it. See MARK V. EKE (2004) 5 NWLR (Pt. 865) 54; ONNAYE EPHAREBA (1998) 11 NWLR (Pt. 575) 598.
It is not the duty of a court or tribunal to wait for a party who is duly served with the processes of court but is absenting court. The court is free to commence hearing if satisfied that the parties to the case were duly served. See NYAMATI ENTERPRISES LTD V. NDIC (2006) ALL FWLR (Pt. 293) 356.
In setting aside a default judgment as in the case now on appeal the principles that should guide the court are well set out in MOHAMMED v. HUSSENI (1998) 14 NWLR (pt.5B4) 108 at 130, cited by the learned trial judge one of the principles is whether the conduct of the defendant from the time of the service of the writ on him to the date of judgment was such that was worthy of sympathetic consideration. I shall view this appeal in the light of the above.
The first issue formulated by the Appellant states Whether the lower court did not lack jurisdiction by reason of the breach of the appellant’s constitutional right to fair hearing occasioned by the non-service of hearing notices on the appellant or his counsel before the court entered the default judgment.
There is need to restate what preceded the entry of the said default judgment. The Plaintiff filed his statement of claim on 4/7/2002 and served same on defendant in the same date the defendant did not file his defence within time hence on7/6/2002 he sought for and was granted extension of time to file his statement of defence.
The defendant did not file the Statement of Defence till 6/3/2003
When the defendant did not file his statement of defence on time the Plaintiff filed a motion for judgment which was served on the defendant on 30/10/2002.
The motion for judgment was supported by all paragraph affidavits.
Paragraphs 3 – 6 of the affidavit are very permit. They read:-
“(3) That the Defendant was duly served with the Statement of Claim in this suit on the 4/7/2002 through the Defendant’s Solicitors Messrs S. C. DIKE & CO. and same was signed for by Mr. Geoffrey Ikechi, a Secretary in the said Chambers.
(4) That the Defendant’s time of filing and serving his Statement of Defence has since expired and the Defendant has failed and/or neglected to file and serve his statement of defence until now.
(5) That from the conduct of the Defendant, I believe that he is not desirous of defending this action and has no defence to the claims.
(6) That I am informed by UCHE F. EWULE ESQ. Solicitor responsible for the conduct of this matter and I verily believe same that by reason of the Defendant’s inaction or reticence, the Plaintiff is entitled to judgment in his matter.”
Inspite of having been served the defendant did not file a counter-affidavit to controvert the above averments and did not appear in court. On the date fixed for hearing of the motion up till the time the motion for judgment was moved and granted the defendant neither filed a counter – affidavit nor appeared in court.
A hearing notice is not a magic potion used to heal every self inflicted affliction
In A.G. RIVERS STATE VS UDE (2006) 17 NMLR (Pt.1OOB) Page 437, the Appellant instituted an action claiming possession, rents and mesne profit against the Respondents in respect of the property at No 2 Ekpeye Umeji Street, Diobu Port Harcourt.
Pleadings were settled and hearing commenced. The Appellant opened the case by calling only one witness who gave evidence in chief. Counsel for the Respondent then sought for adjournment and the case was adjourned to 24/2/97, 25/2/97 and 4/3/97, 22/5/97 and 26/5/97 when counsel for the Respondent eventually came to court Plaintiff/Appellants case was concluded after cross-examination of the sole witness. The matter was then adjourned for defence to commence.
DW1 later gave evidence but during examination in chief defence counsel sought an adjournment to produce same documents from the Supreme Court. The matter suffered several adjournments with the Respondent and his counsel absenting themselves from court. The court later forced the defence to close his case. The court took the address of the Plaintiff/Appellant and entered judgment for Plaintiff/Appellant on 3/8/98.
The Respondent was dissatisfied with the judgment and appealed. The Court of Appeal allowed the appeal only on the ground that the trial court ought to have given the respondents notice of the adjournments and ordered a re-trial.
The Appellant further appealed to the Supreme Court.
Delivering the leading judgment of the court Mustapher JSC on pages 456 – 457 held thus to say:-
“Any judgment which is given without due compliance and which has breached fundamental right of fair hearing is a nullity and is capable of being 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) 2g0 Deduwa v. Okorodudu (1976) 9 – 10 SC 329, Amadi v. Thomas Aplin & Co. Ltd. (1972) 4 SC. 228. Sadau v. Kadir (1956) 1 FSC 39 (1956) 1 SCNLR 93.
But a party to a legal dispute cannot claim breach of fair hearing where he has willfully absented himself from the hearing or failed to give evidence when called upon to do so.”
And on page 457 his lordship said further:-
“The Court of Appeal was in error to have held that the trial judge was wrong to have exercised his discretion to close the case of the Respondents when they failed to appear in court. When it was the Respondents who asked for and were granted an adjournment to appear in court in a certain date to prosecute their claims before the court. They refused to appear in court and had failed to find out what was happening in the court. They simply abandoned their case and accordingly the Respondents were not entitled to fresh- hearing date under the circumstance.
I accordingly resolve the issue in favour of the Appellant.
See also TAIWO AJANI V. SHITTU GIWA (1986) 797 3 NWLR (Pt.32) 797 at 806 – 807.
The service of a motion for judgment on any reasonable litigant will spur him to action. The consciousness that judgment might be entered against him without him giving evidence will cause any innocent litigant a measure of uneasiness- an uneasiness generated by the consciousness that he has a defence. He is scared by the cold ands of truth. He cannot later come to court to claim that he was not given a hearing notice. Was he given the motion for judgment? Why did he absent himself. I am convinced that the conduct of the defendant does not deserve any worthy consideration. See MUHAMMAD V. HUSSENI (supra).
I resolve this issue against the Appellant.
ISSUE NO. 2
Whether in refusing to grant reliefs contained in the motion on notice dated 07/01/04 the learned trial Judge did not visit the sin inadvertence and mistakes of the Appellants, counsel on the Appellant.
A court should not visit the negligence or inadvertence of counsel on a litigant. See LONG JOHN v. BLACK (1998) 6 NWLR (pt. 36) 95; AHENBI v. ALEO (1989) 3 NWLR (pt. 108) 118 Bello JSC (as he then was) had thus to say on this point TUNJI BOWAJE V. MOSES ADEDIWURA ( [)76) 6SC 143 at 147.
This court, would readily exercise its discretion to extend the periods prescribed for doing an act if it is shown to the satisfaction the court that the failure by a party to do the act within the period prescribed was caused by the negligence or inadvertence of his counsel. (See T.A. Doherty & another V.R.A. Doherty (1964) 1 ALL NLR 299 and G.B.A. Akinyede v. The Appraiser (1971) 1 all N.R. 162).”
Did the trial judge visit the sins of the defendant’s counsel on the defendant?
I do not think so. The Defendant himself was served with the motion for judgment. He was aware of the date the motion came up for hearing yet he was absent. I have gone through the supporting affidavit to Defendant’s /Applicant’s motion for extension of time. He did not explain the reason for his absence. I resolve this issue in favour of the Respondent.
ISSUE NO. 3
Whether the learned trial judge exercised his discretion judiciously and judicially in refusing to grant the reliefs/prayers contained in the motion on notice filed on 7/1/04.
Adjournments and control of proceedings are matters within the discretion of the trial judge which discretion must be exercised judicially and judiciously. see COOKEY TRADERS LTD v. GENERAL MOTORS CO. LTD (1992).I NWLR (PT.223) 132 At 147; UDO V. THE STATE (1988) 3 NWLR (Pt. 82) 316.
In view of the aforestated, the learned trial judge exercised his discretion judiciously and judicially in refusing to grant the reliefs/prayers contained in the motion on notice filed on 7/1/04.
According to KATSINA ALU JSC (as he then was) in A.G. RIVER5 STATE V UDE (supra) at461 “It seems to me that” “party who is given ampler opportunity to prosecute his case, contemptuously ignores the court” “cannot turn around on appeal and claim that he was not given a fair hearing. Such a party does not deserve further indulgence. There must be an end to litigation.”
The Appellant does not deserve any indulgence.
This appeal fails in its entirety. It is accordingly dismissed with costs assessed at N50,000.00 in favour of the Respondent.
M.D. MUHAMMED, J.C.A (OFR):. My learned brother Awotoye JCA has adequately considered and determined the issues raised in the appeal such that I shall only be repeating the points he so lucidly made in the leading judgment
I shall say one thing purely by way of emphasis undoubtedly, the 1999 constitution requires and mandatory so too, that no person’s rights and/or obligations shall be curtailed until such a person is heard first. S.36 of the constitution, which imposes this requirement ask that only opportunity be offered to such person to enable him state of the case. It does not confer on the defendant the right to hold the court to ransom. He has himself to blame where he stays away from court and judgment is entered against him. In the instant case the lower court is right when it proceeded since the Appellant had been properly served but chose to stay away. I agree with my lord that the appeal has no merit. For this and more so the fuller reasons in the lead judgment I dismiss the appeal too. I abide by all the consequential orders in the lead judgment including order on costs.
ISTIFANUS THOMAS, J.C.A:. I read in advance, the read judgment of my learned brother, Awotoye, JCA. I whole heartedly agree that the appeal has no merit, and I hereby dismiss the appeal.
I abide with the orders made in the read judgment including costs.
ISTIFANUS THOMAS, J.C.A:. I read in advance, the lead judgment of my learned brother AWOTOYE, JCA. I whole heartedly agree that the appeal has no merit, and I hereby dismiss the appeal, I abide with the orders made in the lead judgment including costs.
Appearances
C.I. EnweluzoFor Appellant
AND
Uche F. Ewule KSC with E. A. EssienFor Respondent
