HAJIA AISHA KAMARIAM MONGUNO V. BLUEWHALES & COMPANY & ORS.
(2010)LCN/3785(CA)
In The Court of Appeal of Nigeria
On Thursday, the 13th day of May, 2010
CA/A/227/2009
RATIO
APPEAL: CIRCUMSTANCES WHERE GROUND OF APPEAL WILL STILL BE COMPETENT
Even though setting out the particulars of the misdirection or error is required, where the Ground of Appeal is couched in such a way, which incorporates or contains particulars of misdirection or error complained of and their nature, it will still be competent though particulars are not set under a separate heading.UBA v. Achoru (1990) 21 NSCL Pt. 3 page 526;
Fadco Ind. Nig. Ltd v. IBWA (1998) 9 NWLR Pt. 565 page 309; David v. Zabia (1998) 7 NWLR Pt. 556 page 105.
Where however particulars are stated but they do not relate to the Ground of Appeal, it will still leave such Grounds bare of particulars and thus incompetent. PER ABDU ABOKI, J.C.A
APPEAL: PURPOSE OF THE REQUIREMENT OF STATING THE PARTICULARS OF A GROUND OF APPEAL
The purpose of the requirement of stating the particulars of a Ground of Appeal is to inform the Respondent and the Court of the particulars of error or misdirection alleged in the Ground of Appeal to enable the Respondent meet the case of the Appellant and the Court to determine the nature of the error or misdirection complained of. See Silencer & Exhaust Piper Co. Ltd v. Farah (1998) 12 NWLR Pt. 579 page 624. PER ABDU ABOKI, J.C.A
APPEAL: WHAT IS THE RULE OF THE COURT IN RELATION TO GROUND OF APPEAL
Where the Ground of Appeal gives adequate or sufficient information as to the nature of the misdirection or error that satisfies the relevant rule of Court requiring particulars of the misdirection to be supplied. See Ojelade v. Soroye (1998) 5 NWLR Pt. 549 page 284.
What is required by the rule of Court is that a Ground of Appeal should not be vague or general in terms and should disclose a reasonable Ground of Appeal such that the Respondent is given sufficient notice of the precise nature of the Appellant’s complaint. See Aderounmu v. Olowu (2000) 2 SCNJ 180; Hambe v. Hueze (2001) 2 SC 26 at 34. PER ABDU ABOKI, J.C.A
WORDS AND PHRASES: MEANING OF AFFIDAVIT
The Black’s Law Dictionary Eight Edition at page 62 defines ‘affidavit’ as:
“A voluntary declaration of facts written down and sworn to by the declarant before an officer authorized to administer oaths such as notary public.” PER ABDU ABOKI, J.C.A
JUSTICES
MARY PETER-ODILI Justice of The Court of Appeal of Nigeria
JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria
ABDU ABOKI Justice of The Court of Appeal of Nigeria
Between
HAJIA AISHA KAMARIAM MONGUNO Appellant(s)
AND
1. BLUEWHALES & COMPANY
2. GOODLUCK ADEKWEH
3. ALHAJI SHEHU KOLLERE Respondent(s)
ABDU ABOKI, J.C.A (delivering the leading judgment) : This Appeal is against the Ruling of the High Court of the Federal Capital Territory delivered on the 24th day of June, 2009 by Hon. Justice A. M. Talba.
The brief fact of the case is that this suit now on Appeal was placed by the learned trial Judge, who was the vacation Judge on the undefended list. The Respondents allege that the Appellant was served the Writ of Summons by one Bello Dogora, a Bailiff of the trial Court but that the Appellant refused to acknowledge the service and the Bailiff duly swore to a Certificate of Service which was filed in the Court Records.
On the 28th day of August, 2007 when the matter came up for hearing under the undefended list, the Appellant did not file her Notice of Intention to defend the action and did not appear personally neither was she represented. The trial Court considered the case and entered Judgment for the Respondents in the sum of N1,850,000.00 (One Million, Eight Hundred and Fifty Thousand Naira) with interests at 10% until liquidation and the sum of N5,000.00 (Five Thousand Naira) as cost against the Appellant.
The Appellant alleges that after the Judgment, the Respondents waited for three months within which the Appellant has a right of Appeal to expire before attempted to execute the Judgment; whilst the Respondents claim that they served the Appellant with the Certificate of Judgment on 5th November, 2007 through one Garba, a Bailiff of the trial Court after first attempt on 3rd October, 2007 failed as the Appellant travelled out of the Country.
On 27th November, 2007, Judgment was executed in the presence of the Appellant who through her lawyers paid the sum of N1.190,000.00 (One Million One Hundred and Ninety Thousand Naira) out of the Judgment sum with a promise to complete the outstanding sum the next day. However, on 28th November, 2007 the Appellant filed a Motion on Notice praying the trial Court to set aside the Judgment delivered on 28th August, 2007; this Motion was later withdrawn and substituted with the Motion on Notice dated 16th February, 2009 seeking among other things the setting aside of the Judgment of 28th August, 2007. The Motion was argued and dismissed on the 24th day of June, 2009.
The Appellant not satisfied by that decision filed a Notice of Appeal dated the 25th day of June, 2009. The Appellant also filed her Brief of Argument dated the 24th day of July, 2007 on the 28th day of July, 2009. The Respondents’ Brief of Argument dated the 6th day of October, 2009 was filed same day. The Appellant also filed on 6Ih November, 2009 a Reply Brief dated same day. From the five Grounds of Appeal, three issues were distilled on behalf of the Appellant for the determination of this Appeal as follows:
1. Whether from the circumstances and facts of this case the learned trial judge was right to hold that the Appellant was served with the Writ of Summons and other originating processes in this suit before judgment was entered on the undefended list,
2. Whether it is not a grave denial of the Appellant’s right to fair hearing when the learned trial Judge failed to considered and determines all the issues canvassed by the Appellant before the learned trial Judge dismissed the Appellant’s Motion on Notice dated the 16th February, 2009.
3. Whether in the circumstances of this particular case the learned trial Judge was right to hold that the proper mode of challenging the judgment delivered on the 28th August, 2007 is by way of an Appeal and not by Motion to set aside the judgment”.
The following issues were also raised for the determination of this Appeal on behalf of the Respondents:
“1. Whether from the circumstances and facts of this case the learned trial judge was right to hold that the Appellant was served with the Writ of Summons and other originating processes in this suit before judgment was entered under the undefended list?
2. Whether it is a grave denial of the Appellant’s right to fair hearing when the learned trial Judge considered and found that some issues canvassed by the Appellant touch on the substantive matter before he dismissed the Appellant’s Motion on Notice dated the 16th February, 2009?
3. Whether in the circumstances of this particular case the learned trial Judge having found that there was a valid service of the processes on the Appellant, was right to hold that the proper mode of challenging the judgment delivered on the 28th August, 2007 is by way of an Appeal and not by motion to set aside the Judgment?”
The Respondents in their Brief of Argument raised a Preliminary Objection. It is trite that when a Preliminary Objection is raised in a matter, the Court ought to accord the resolution of same a priority before proceeding to consider the Appeal. See:William v. Ibejiako (2008) 15 NWLR Pt. 1110 page 367 at 380;Bamisile v. Qsasuvi (2007) 9 NWLR Pt. 1042 page 225 at 256;
Abiola v. Olawoye (2006)13 NWLR Pt. 996 page 1;U.B.N Plc v. Umeoduagu (2004) 13 NWI R Pt. 890 page 362.
On the Preliminary Objection, learned Counsel for the Respondents, Edwin I. Agbu, pointed out that the Appellant raised five Grounds of Appeal in her Notice of Appeal dated 22/7/2009 and that the Appellant gave seven particulars of errors in law in support of Ground three of the said Notice of Appeal.
He contended that the Appellant’s Ground three is fair hearing and that it is trite law that for a Ground of Appeal to be competent in law, the particulars in support of it must naturally flow from the Ground itself and referred to the case of:Danlami v. Gambo (2004) 45 WRN 96.
Learned Counsel maintained that in the instant case, particulars one to seven of Ground three are directly in conflict with the Ground itself as they are not related to fair hearing. He referred the Court to particulars 2, 4, 5, 6 and 7 at pages 156 and 157 of the Records.
Edwin I. Agbu submitted that, the learned Counsel for the Appellant is trying to canvass issues unsupported by particulars of fair hearing in his Ground of Appeal. He further submitted that it is not for a Counsel to mix particulars and allow the Court to filter through them by discarding the ones they deem relevant and retaining relevant ones.
Learned Counsel maintained that it is the job of Counsel to properly frame particulars and issues therein and that where the particulars of a Ground of Appeal are inconsistent with the Ground, then the Ground is incompetent and ought to be struck out. He submitted that Ground three of the Notice of Appeal should be struck out.
Edwin I. Agbu also pointed out that, there was no failure by the trial Court to consider the issues submitted to it by the Appellant and argued that the particulars presented are totally misleading and not based on the Ruling of the trial Court.
He submitted that the trial Court made finding on those issues (issues 2-4) and found that they touch on the substantive matter and ought to be challenged by appealing the main Judgment and referred the Court to paragraph 3 at page 151 of the Records.
Learned Counsel further submitted that all arguments of the Appellant bothering on non-finding/failure to consider issues by the trial Court should be discountenanced and struck out. He referred the Court to the case of Globe Fishing Industries Ltd. v. Coker (1990) 7 NWLR Pt. 162 page 265 at 300.
Edwin I. Agbu stressed that a look at the Appellant’s particulars of Ground 3 of the Notice of Appeal reveals that the particulars expanded the Ground itself and that this should not be the case. He referred the Court to the cases of:Balonwu v. Obe (2007) 5 NWLR Pt. 1028 page 488 at 592;Avalogu v. Agu (1989) 1 NWLR Pt. 532 page 129;Wele v. Bagunjoko (2007) 6 NWLR Pt, 125 at 132.
He urged the Court to strike out Ground three in the Appellant’s Notice of Appeal for being incompetent.
In his response, Learned Counsel for Appellant F. R. Onoja, submitted that, Ground three in the Notice of Appeal complain basically about the failure of the learned trial Judge to determine the issues canvassed by the Appellant at the lower Court and that the particulars given relate to each specific issue that was not determined.
He further submitted that the purpose, of particulars is to show the specific points in the decision appealed against that support the Ground of Appeal and maintained that the preliminary objection is therefore misconceived and ought to be dismissed.
Learned Counsel contended that this Court, in any event, is not confined to determine an Appeal by reference to the Grounds of Appeal set forth by the Appellant and referred the Court to Order 6 Rule 5 of the Court of Appeal Rules.
Even though setting out the particulars of the misdirection or error is required, where the Ground of Appeal is couched in such a way, which incorporates or contains particulars of misdirection or error complained of and their nature, it will still be competent though particulars are not set under a separate heading.UBA v. Achoru (1990) 21 NSCL Pt. 3 page 526;
Fadco Ind. Nig. Ltd v. IBWA (1998) 9 NWLR Pt. 565 page 309;David v. Zabia (1998) 7 NWLR Pt. 556 page 105.
Where however particulars are stated but they do not relate to the Ground of Appeal, it will still leave such Grounds bare of particulars and thus incompetent.
The purpose of the requirement of stating the particulars of a Ground of Appeal is to inform the Respondent and the Court of the particulars of error or misdirection alleged in the Ground of Appeal to enable the Respondent meet the case of the Appellant and the Court to determine the nature of the error or misdirection complained of. See Silencer & Exhaust Piper Co. Ltd v. Farah (1998) 12 NWLR Pt. 579 page 624.
Where the Ground of Appeal gives adequate or sufficient information as to the nature of the misdirection or error that satisfies the relevant rule of Court requiring particulars of the misdirection to be supplied.See Ojelade v. Soroye (1998) 5 NWLR Pt. 549 page 284.
What is required by the rule of Court is that a Ground of Appeal should not be vague or general in terms and should disclose a reasonable Ground of Appeal such that the Respondent is given sufficient notice of the precise nature of the Appellant’s complaint. See Aderounmu v. Olowu (2000) 2 SCNJ 180; Hambe v. Hueze (2001) 2 SC 26 at 34.
In the instant case, the complaint of the Respondent is that the Appellant gave seven particulars of error in law in support of Ground three of the said Notice of Appeal. He conceded that the said Ground of Appeal is complaining of lack of fair hearing but that the particulars did not naturally flow from the Ground. He made specific reference to particulars 2, 4, 5, 6 and 7 at pages 156 – 157 of the Records and urged the Court to strike out the said Ground.
The said Ground with its particulars is hereby reproduced for ease of reference as follows:
“Ground Three: Error in Law
The learned trial Judge erred in law and did extreme violence to the principle of fair hearing enshrined in the constitution of the Federal Republic of Nigeria 1999 by not considering and determining the issues and grounds of jurisdiction canvassed by the Appellant in the lower Court and thereby occasioned a miscarriage of justice to the Appellant.
Particulars of Error in Law
(1) The learned trial Judge did not consider and if thought fit, to determine one way or the other the fundamental issue that the entire suit was commenced and determined during the annual vacation of the lower Court and the Court has no jurisdiction to have entertained the matter during the annual vacation.
(2) The learned trial Judge did not consider and if thought fit, to determine whether the 1st Respondent is a juristic person in law and therefore whether the action before the lower Court was competent or not.
(3) The learned trial Judge did not consider and if thought fit, to determine whether there was any urgency about the action to require its being entertained during the annual vacation of the Court.
(4) The learned trial Judge did not consider and if thought fit, to determine whether failure to obtain leave of the court in chambers before hearing the matter during the vacation is fatal to the Respondents’ case.
(5) The learned trial Judge did not consider and if thought fit, to determine whether the Respondents not being Legal Practitioners can claim the legal fees awarded to the Respondents in the judgment.
(6) The learned trial Judge did not consider and if thought fit, to determine whether the Respondents being a non juristic person is conferred with locus standi to bring the action in the first place.
(7) The teamed trial Judge did not consider and if thought fit, to determine whether failure of the Respondents (Being legal practitioners) to comply with the condition precedent in the mandatory provision of Section 6 of Legal Practitioner’s Act is fatal to the Respondents’ case.”
A careful reading of the said Ground three reveals that there is no misrepresentation or ambiguity as to the complaint of the Appellant under this Ground of Appeal. See Adeleke v. Asani (2002) 8 NWLR Pt, 768 page 26;Odonigi v. Oyeleke (2001) 6 NWLR Pt. 708 page 12.
I am in agreement with the submission of the learned Counsel for the Appellant that the purpose of particulars is to show the specific points in the decision appealed against that support the Ground of Appeal and that the Court is not confined to determining an Appeal by reference to the Grounds of Appeal set forth by the Appellant.
The Court of Appeal has the discretion to rest its decision on any Ground not set forth by the Appellant provided the Respondent has been given sufficient opportunity of contesting the case on that Ground. See Order 6 rule 5 of the Court of Appeal Rules, 2007.
The argument advanced on behalf of the Respondent in this Preliminary Objection is crass technicality.
In Odonigi v, Oyeleke (supra) at 198, the Supreme Court per Kalgo J.S.C said:
“the days of sticking to technicality as oppose to substantial justice have gone by and this Court has shifted from undue reliance on technicality to doing substantial justice between the parties before it”
I see no merit in this Preliminary Objection and it is hereby dismissed.
I have perused the issues as distilled by both the Appellant and the Respondents for the determination of this Appeal and I have adopted the issues as distilled by the Appellant for the determination of this Appeal.
Issue One:
“Whether from the circumstances and facts of this case the learned trial judge was right to hold that the Appellant was served with the Writ of Summons and other originating processes in this suit before judgment was entered on the undefended list”
Learned Counsel for the Appellant, F. R. Onoja, referred the Court to the Ruling dismissing the Appellant’s application on page 150 of the Records and submitted that the Appellant’s complaint in the trial Court is that, she was not served with the Writ of Summons and other originating processes in the suit before the Judgment. He maintained that the complaint was clearly sated in the affidavit in support of the Motion to set aside that Judgment.
Learned Counsel submitted that the trial Court did not evaluate the evidence before concluding that the Appellant was indeed served and that the trial Court placed reliance almost entirely on the fact that there was a certificate of service without evaluating the certificate itself to see whether it established the fact of service. He maintained that at the trial Court, they relied on the decision of the Supreme Court in Okoye v. Centre Point Merchant Bank Ltd. (2008) 15 NWLR Pt 1110 page 335 but it appears that the lower Court did not consider and advert his mind to the principles of law restated in that case.
F. R. Onoja contended that the law is settled that where a party complains that he was not duly served with Court processes, it becomes the duty of the Court to satisfy itself that there was indeed such service. He referred to the cases of:Okesuji v. Fatai Alabi Lawal 0991) 1 NWI.R pt. 170 page 661 at 673;Okoye v. Centre Point Merchant Bank Ltd. (supra) at pages 352 – 353.
Learned Counsel stressed that the learned trial Judge did not conduct any enquiry to establish whether the Appellant was truly served and went ahead to reach the conclusion that the Appellant was served based only on the fact that a Certificate of Service was filed in Court.
He maintained that the lower Court considered the Appellant’s argument that a Certificate of Service is not a proper proof of service in law as being ‘a technical argument’ which was promptly overruled.
Learned Counsel for the Appellant submitted that the law is settled that proof of service of originating processes is by affidavit of service and referred the Court to Order 11 Rule 28 FCT (Civil Procedure Rules), 2004 and the cases of: Okove v. CentrePoint Merchant Bank Ltd. (supra) John Kennedy v. INEC & ors (2009) 1 NWLR Pt. 1123 page 614.
He further submitted that, there is nothing in the Rules of Court or any law that provides for a Certificate of Service and that that form is not known to law and should not have been relied upon by the lower Court.
F. R. Onoja contended that the certificate of service relied on by the lower Court is not an affidavit of service as required by law. He further argued that even if a certificate of service is considered as being one and the same thing as an affidavit of service, the mere filing of the certificate of service (or even an affidavit of service) does not absolve the trial Court of the need to fully evaluate the evidence of the parties where a party complains of non-service.
He maintained that the lower Court ought to have scrutinized the certificate of service carefully to satisfy himself; that the Appellant was indeed properly served in accordance with law all the processes and that the Court also had a duty to evaluate the affidavit evidence of the parties before reaching a conclusion that the Appellant was served. Learned Counsel referred to the case of:
John Kennedy v. INEC & ors (supra) at page 640:Okoye v. CentrcPoint Merchant Bank Ltd. (supra) at pages 352 – 353.
Learned Counsel maintained that had the lower Court evaluated the certificate of service, which is at page 40 of the Records, the Court will have noted the significant omissions contained in it. He pointed out that there is no evidence of how the Bailiff identified the Appellant or to show whether the Appellant was served with a Hearing Notice or an affidavit in support of the writ of summons as required or the time of the day when the service was allegedly effected.
He also pointed out that the Bailiff alleged that he dropped the processes on the floor and informed the Appellant that it is a Court process against her. Learned Counsel argued that this mode of service is curious because the Rules of the High Court of the FCT does not allow ‘dropping’ of Court processes and referred the Court to Order 11 Rule 27 of the FCT (Civil Procedure Rules), 2004.
Learned Counsel submitted that a Bailiff can only inform the person to be served about the processes where violence is threatened or where the Bailiff is prevented by violence from serving process.
He maintained that there is nothing in the certificate of service to even remotely suggest that the Appellant, a woman violently resisted service or threatened violence and that if indeed, the Appellant refused service, the proper thing would have been for the Respondents to apply for an order of substituted service but they did not obtain such an order.
Learned Counsel submitted therefore that the lower Court was in error not to have taken all these issues into consideration in refusing to set aside the Judgment. He urged the Court to agree with them and reverse the decision of the lower Court.
He submitted that as the Appellant had vehemently denied service, the lower Court had the duty to carefully scrutinize all the evidence presented by both parties and that the failure to do so has occasioned a grave miscarriage of justice to the Appellant because it will never be known whether the Appellant was served and given a fair hearing.
F. R. Onoja submitted that where such a doubt exists, it must be resolved in favour of the Appellant and referred the Court to the case of:
Okoye v. Centre Point Merchant Bank Ltd. (supra) at pages 352 – 353.
Learned Counsel for the Appellant urged the Court to allow the Appeal on this issue.
In his response on this issue, learned Counsel for the Respondents Edwin I. Agbu, submitted that it is trite that in evaluating as to whether a Defendant, as in this case, has been served or not so as to confer jurisdiction on the lower Court to hear and determine the suit before it, it only needs to satisfy itself by the Records of Court and where the Records are not sufficient in the opinion of the Court, by oral evidence of the Bailiff and/or the parties as the circumstances may be.
He referred the Court to page 24 of the Records and maintained that the Appellant was served on 13/08/2007, that the certificate of service sworn to and the events that transpired leading to the swearing of the certificate of service are contained therein. Learned Counsel pointed out that on the hearing date of 28/8/2007, the trial Court after perusing through the Records before he was satisfied that the Defendants was duly served and entered Judgment in favour of the Respondents.
Learned Counsel submitted that there is nothing in the proceedings to show or suggest that the Defendant was not served and referred the Court to page 133 of the Records.
Edwin I. Agbu, pointed out that the Appellant claimed that no service of the writ of summons was given to her and in proof of this claim sought to rely on the certificate of service sworn to by the Bailiff of Court dated 13/8/2007 contending that a certificate of service is not affidavit of service and as such amount to no service at all.
He further pointed out that the Appellant in her paragraphs 2, 4, and 5 of the affidavit in support of her motion dated 16/2/2009 deposed to the fact that she was never served with any process of Court while in her written address she tacitly admitted being served but challenged the mode of service on her not minding that under this circumstances all the Court need prove is prima facie evidence of service and nothing more.
Learned Counsel stressed that in further proof of this claim, the Appellant sought to also rely on the tag on the certificate of service document showing Order 5 Rules 16 (1) 16(3) and argued that the Order does not connote service of originating processes. He submitted that the Appellant’s argument is erroneous and too technical and that the trial Court was right in that a certificate of service is a proof of service of the originating processes it proclaims on its face until otherwise proved. He referred the Court to the case of:Schroder v. Major Q989) 2 NWLR Pt, 101 page 1 at 11.
He maintained that there is in the Records at page 24 a certificate of service, Exhibit ‘S’ sworn to by certain Bello Dogara, Bailiff of Court on 13/8/2007 showing that a writ of summons was served on the Appellant; that the certificate of service is stamped, dated and signed by Commissioner for Oath. Learned Counsel contended that this singular act alone proves that the depositions therein are done under oath as envisaged by the Rules of Court.
Edwin I. Agbu, submitted that it is irrelevant that the Form does not bear the appropriate heading as contained in the Rules so as to rob the document of its objectives and achievements and referred the Court to the case of : Falobi v. Falobi (1979) 9 10 SC 1.
He further submitted that the argument of the Appellant borders on procedural technicality which has little or no place in modern practice. Edwin I. Agbu, maintained that the true position of the law on certificate of service is that the production of such document is a prima facie evidence of proof of service until the contrary is proved. He referred the Court to the case of:
Remawa v. N. A. C. D. Ltd (2007) 2 NWLR Pt. 1017 page 155 at 159.
He submitted that Exhibit ‘S’ at page 24 of the Records clearly shows that the Appellant refused to receive the processes thereby compelling Bello Dogara, Bailiff of Court to drop it on her floor.
Learned Counsel contended that the Appellant’s claim that no facts were given as to whether service was personal or not is bogus as certificate of service further shows conversation between the Bailiff and the Appellant at page 24 of the Records. He also referred the Court to Section 149 (c) of the Evidence Act Cap E – 14 LFN 2004 and urged the Court to arrive at no other conclusion but that both the writ of summons and its supporting affidavit were served on the Appellant.
On the Appellant’s claim that the time the service was effected was not stated on the certificate of service, learned Counsel referred the Court again to Section 149(c) of the Evidence Act and maintained that the onus is on the Appellant to prove that service of the processes was done outside the provisions of the law and not for the Respondents to prove that the Appellant was served in line with the provisions of the law and that in the absence of this proof by the Appellant, the only duty of Court is to invoke the above provisions of the Evidence Act.
He also pointed out that the Appellant claims that the name of the person who was served was not inscribed in the certificate and maintained that the certificate has only one Defendant by the name Hajia Aisha Kamariam Monguno who the service of Exhibit ‘J’ was done unto/against.
Learned Counsel further contended that in the cases of Tasam Nig. Ltd. v. South Texas Projects (2004) 8 NWLR and Kide v. Ogunmola (2006) 6 SC 147 cited by the Appellant, the Courts did not rule that the production of certificate of service amount to no service at all but that the Court frowned at the non-production of any evidence of service at all.
He urged the Court to hold that the trial Court’s finding that there is a proof of service on the Judgment Debtor/Applicant was valid to sustain the Judgment.
The Black’s Law Dictionary Eight Edition at page 62 defines ‘affidavit’ as:
“A voluntary declaration of facts written down and sworn to by the declarant before an officer authorized to administer oaths such as notary public.”
Exhibit ‘S’, the Certificate of Service sworn to by Bello Dogara, a Bailiff of the trial Court is pertinent in the determination of this issue and it is hereby reproduced thus:
“FORM 3
Order 5 Rules 16(1) and 16(3)
CERTIFICATE OF SERVICE
IN THE HIGH COURT OF JUSTICE OF THE FEDERAL CAPITAL
TERRITORY, ABUJA
SUIT No: CV/1293/07
(1) Bluewhales & Company
Between: (2) Athaji Shehu Kollere (3) Goodluck Adekweh… Plaintiff
and
Hajia Aisha Kamariam Monguno … Defendant
(Name, description being a person described in 0. 5, r. (1)
I Bello Dogara
Certify;-
(1) That on the 13th day of 08, 2007
At …o ‘clock I served upon Hajia Aisha Kamariam Monguno a true copy of which is hereunto annexed, by delivering the same person a true copy of which is hereunto annexed by Bello Dogara High Court of Justice, Abuja that I served the def. the writ of summons at her residence No. I Monrovia St. Wuse Abuja that she refused to receive the writ and dropped it on her floor. 1 told her it is Court process against her.
(Sgn)
Signed
Clerical Asst
Description”.
In NNPC v. Establishment Sima of Vaduz (1990)112 SCNJ 35 at 38. the Supreme Court per Belgore J.S.C (as he then was) said of the content of an affidavit thus:
“Affidavit contains nothing more than facts a person swearing to it believes to be true, even though not necessarily the truth, and as such it is not law but facts. The facts contained in such affidavit will sway the Judge one way or the other in deciding where justice of the case demands his direction should go.”
Although the document at page 100 of the Records is titled ‘Certificate of Service’, it is an affidavit deposed to by Bello Dogara stating that on 13/08/2007, he served a writ of summons on the Defendant named as Hajia Aisha Kamariam Monguno at her residence No. 1 Monrovia St. Wuse, Abuja, that she refused to receive the writ and he dropped it on her floor and told her that it is a Court process against her.
The document was signed by somebody whose description is a clerical Assistant and stamped Commissioner for Oaths, Federal Capital Territory Abuja and dated 13/8/07. It is my firm opinion that the document satisfied all the features of an affidavit and I have no doubt in my mind that it is an affidavit of service contemplated under Order 11 rule 28 of the High Court of the Federal Capital Territory (Civil Procedure), 2004.
The learned trial Judge was proper in acting upon it in determining that the Appellant at the trial Court was served with the writ of summons before Judgment was entered against her under the undefended list procedure.
The Appellant’s affidavit dated 28/11/2007 in support of Motion on Notice to set aside the decision of the lower Court is also pertinent and is reproduced as follows:
“Affidavit in Support of Motion on Notice
I, Haija Aisha Kamarian Monguno, adult, Female, Muslim, Nigeria Citizen of No. 1 Monrovia Street wuse II, Abuja do solemnly make oath and state as follows:-
(1) That I am the Judgment debtor, applicant in this matter and by virtue of my position aforesaid. I am conversant with the facts of this mater and I depose to this affidavit from the facts within my personal knowledge.
(2) That I only became aware of this action and the Judgment of this Court on the 27th of November, 2007 when the bailiffs of the Honourable Court and several armed policemen came to my residence to levy execution against my movable properties.
(3) That the bailiff showed me a writ for the attachment of my movable properties and I was able to see the name of Alhaji Shehu Kollere on the processes showed to me in the course of the execution.
(4) That I know that Alhaji Shehu Kolere who was the agent that introduces the property that I bought upon which the action was brought.
(5) That I know Alhaji Shehu Kollere and myself agreed that I will pay the sum of N250, 000.00 only as agency fees to Alhaji Shehu Kollere.
(6) That as far as I know, I never agreed to pay any of the respondents any other sum of money other than the sum of N250,000.00 which I paid to Alh. Shehu Kollere as full and final payment of agency fees as agreed.
(7) That the facts stated above were not brought to the attention of the Court before Judgment was entered.
(8) That in order to prevent the attachment of my properties, and in order to get enough time to contact my solicitors, I paid the sum of N1,190,000.00 by Zenith Bank Managers Cheque to the bailiffs of Court and thereafter consulted with my solicitors. A copy of the managers Cheque dated 27/11/07 referred to is hereby annexed to this affidavit and marked as Exhibit ‘A’.
(9) That I depose to this affidavit in good faith, believing same to be true and in accordance with the oath Act.”
The deponent of the said affidavit who is the Appellant in this Appeal did not depose to the fact that no service of the writ of summons was effected on her before Judgment was entered. She only indicated that she became aware of the Judgment of the trial Court on 27th November, 2007 when the Bailiff of the trial Court and several policemen came to levy execution against her moveable properties and that she was shown a writ of attachment by the Bailiff.
I have also examined the further and better affidavit dated 11/12/07, there is nothing on it to indicate that the Appellant was not served with the writ of summons before Judgment was entered against her.
I am satisfied that the Appellant was served with the writ of summons and other originating process in this suit before Judgment was entered on the undefended list against the Appellant. This issue is resolved in favour of the Respondents.
Issues Two:
”Whether it is not a grave denial of the Appellant’s right to fair hearing when the learned trial Judge failed to consider and determine all the issues canvassed by the Appellant before the teamed trial Judge dismissed the Appellant’s Motion on Notice dated the 16th February, 2009.”
Learned Counsel for the Appellant, F. R. Onoja, submitted that in their Motion on Notice dated 16/2/2009, the Appellant prayed the lower Court to set aside the Judgment delivered on 28/8/2007 on the following Grounds:
“(1) That the Judgment debtor/Applicant was not served with the writ of summons and other originating processes in the action as required by law to enable the Applicant defend the action.
(2) That the action was commenced and judgment was delivered during the annual vacation of the High Court of the Federal Capital Territory, Abuja in August, 2007 which robs the Court of jurisdiction to entertain the action at the material time.
(3) That there was nothing about the action to require its being entertained during the annual vacation of the Court and no order of the Court was obtained in Chambers to hear the matter during the vacation.
(4) That the Plaintiffs not being legal practitioners cannot claim the legal fees awarded to them in the Judgment.
(5) That the f Plaintiff is not a juristic person and therefore did not have the legal capacity to bring the action in the first place”.
(6) That if even the Plaintiffs are legal practitioners they did not comply with the condition precedent contained in the mandatory provisions of Section 6 of the Legal Practitioner’s Act
He maintained that the trial Court only considered and determined the first ground but failed to consider and rule on the remaining five grounds one way or the other.
Learned Counsel referred the Court to page 151 of the Records on the trial Court’s reason for not pronouncing on the 2nd ground that the proceedings and judgment was conducted during the annual vacation of the Court which makes the entire proceedings a nullity in law.
He contended that the position taken by the trial Court is very sad because the Motion on Notice was argued on the written addresses filed along with the Motion pursuant to the Rules of the trial Court.
F. R. Onoja, submitted that, in their written address they argued the issue that the matter was entertained during vacation under issue 2 and also cited several authorities to buttress his argument; so it is not true as was held by the trial Court that they did not proffer argument on the issue.
He urged the Court to hold that the trial Court was in error not to have determined that particular issue. Learned Counsel submitted that the law is settled that a Court of law must as a matter of principle deal with and determine one way or the other all the issues placed before it as failure to do so amounts to a grave miscarriage of justice and an abdication of judicial duty. He referred the court to the the cases of:Edet v. State (2008) 14 NWLR Pt. 1106 page 52;Ajanaku v. Williams (2009) 3 NWLR Pt. 1129 page 617;Action Congress v. Jang (2009) 4 NWLR Pt, 1132 page 475;
Fed. Min. of Health v. Cometh Shipping Agencies Ltd. (2009) 9 NWLR Pt. 1145 page 193.
Learned Counsel submitted that the trial Court did not also consider the 3rd, 4th, 5th and 6th issues placed before the Court and that the Court did not advance reason for not considering these issues even when they are issues touching on substance. He further submitted that the issues in question relate to a challenge to the legal personality of the 1st Respondent and that the Respondents not being legal practitioners cannot claim legal fees which was awarded in the Judgment and that even if the Respondents were legal practitioners, they did not comply with the condition precedent in Section 6 of the Legal Practitioner’s Act before bringing the action.
F. R. Onoja, argued that these issues are fundamental issues that goes to the root of the jurisdiction of the trial Court and that the law is trite that where there is a defect in competence of a Court of law to hear a matter, the proceedings no matter how brilliantly conducted will be a nullity and that in such a case an Appeal is not necessary as the same Court that conducted the matter has inherent jurisdiction to set aside the proceedings ex-debito justitiae. He referred the Court lo the cases of:Mark v. Eke (2004) 5 NWLR Pt. 864 page 54;Odutola v. Kavode (1994) 2 NWLR Pt. 324 page 1;
Sken Consult (Nip;) Ltd v. Ukev (1981) 1 SC 6;Edem v. Akamkpa L. G. (2000) 4 NWLR Pt. 654 page 70.
Learned Counsel submitted that the defects in the competence of the case of the Respondents in the trial Court are so fundamental that had the learned trial Judge considered and determined those grounds, which are mainly grounds of law, the possibilities exist that the trial Court would have set aside the judgment complained of.
He urged this Court to invoke its powers under the Court of Appeal Act and determine the issues on its merits.
In his response on this issue, learned Counsel for the Respondents submitted that it is trite and as a general rule that a Court must consider and determine all issues submitted to it for the just determination of the case between parties. He referred the Court to Sections 6 and 36 of the Constitution of the Federal Republic of Nigeria, 1999.
He maintained that the Courts are however not always bound by this rule of fair hearing where failure will neither prejudice nor lead to injustice to the parties and would not vary the decision of the Court.
Learned Counsel argued that issues 2 and 6 of the Appellant’s Motion before the trial Court are strictly on the merit of the case or substantive suit and has nothing to do with setting aside a Judgment on the merit more especially Judgment on the undefended list. He contended that the said issues/argument do not in any form come under any of the known grounds or principles in setting aside a final Judgment and that at best they are grounds of Appeal or issues that can be raised in a fresh suit to set aside the Judgment.
He submitted that the Appellant shall not be allowed to appeal the Judgment and have it heard in this Court under any guise.
Learned Counsel maintained that a long line of authorities/decided cases are in agreement that a final Judgment can only be set aside where there is no service of process so as to deny the Court jurisdiction and where there is established prima facie proof of fraud.
Edwin I. Agbu argued that, the Appellant’s assertion that the trial Court did not consider and determine all issues particularly issues 2 to 5 are not correct but misleading. He submitted that a Court considers and determines any issue before it when it make a finding on that issue by giving legal reasons on it.
He maintained that the trial Court indeed made a finding on the issues and particularly on the issues of juristic personality of the 1st Respondent when it ruled thus:
“In conclusion, it is my view that the second to the fourth issues raised by the Applicant’s counsel touches on the substantive matter. And same can only be challenged on appeal”.
He urged the Court to resolve this issue in their favour.
I have carefully perused the Ruling of the trial Court delivered on 24/6/09 on the application by the Appellant seeking to set aside the decision of the trial Court delivered on 28/8/07.
The reliefs sought in the application as contained on pages 74 – 75 reads:
“(1) An order of the Honourable Court setting aside the proceedings and the judgment delivered on the 28th day of August, 2007 in this suit, on grounds of lack of service of the writ of summons and other originating processes, and for want of jurisdiction in the Court.
(2) An order of the Honourable Court staying execution, further execution, or the taking of any step by the respondents to realize the fruit of the judgment delivered on the 28th day of August, 2007 pending the determination of this Motion on Notice.”
The Appellant raised six Grounds in support in support of the said application; she alleged that the trial Court did not consider them in the determination of the application. The first Ground complained that there was no service of the writ of summons and other originating processes in the action as required by law to enable the Applicant defend the action. The trial Court indeed made a finding on this Ground at pages 150 – 151 of the Records where it stated thus:
“The fact remains that the judgment debtor/applicant was indeed served with the writ of summons.”
The second and third Ground alleged that the action was commenced and Judgment delivered during vacation of the High Court of the Federal Capital Territory, Abuja in August, 2007 which robs the Court of jurisdiction to entertain the action at the material time.
These Grounds were adequately considered by the trial Court on page 151 of the Records and it said thus:
“The other issue raised by learned Applicants Counsel in connection with jurisdiction is that the judgment delivered on 28/8/2007 was delivered during vacation. The learned Counsel did not proffer argument, it is therefore deemed as having been abandoned.”
The fourth and fifth Grounds of the application were argued by learned Counsel to the Applicant as issues three and four and so recorded by the trial Court on page 148 of the Records. The trial Court made its findings on them on page 151 thus:
“In conclusion, it is my view that the second to the fourth issue raised by the applicant’s counsel touches on the substantive matter. And same can only be challenged on appeal.”
The sixth Ground in my opinion is subsumed in the finding of the trial Court on the fourth and fifth Grounds of the application is also a matter that calls for hearing of evidence and the reopening of the matter already determined on 28/11/2007.
I am satisfied that the trial Court made a finding on all the Grounds canvassed by the Applicant/Appellant before reaching at its decision to dismiss the application. This issue is also resolved in favour of the Respondents.
Issue three:
“Whether in the circumstances of this particular case the learned trial judge was right to hold that the proper mode of challenging the judgment delivered on the 28th August, 2007 is by way of an Appeal and not by Motion to set aside the judgment”
Learned Counsel for the Appellant submitted that by Order 47 Rules 4 and 5 of the High Court of FCT Civil Procedure Rules, 2004, no matter can be heard during annual vacation without complying with the condition precedent in Order 47 Rule 5(1) and (2).
He maintained that the above Rules refer to civil matters which clearly includes a civil claim under the undefended list and that while it is not in doubt that matters may be heard during vacation, the circumstances and conditions upon which any civil matter can be heard during any vacation has been clearly spelt out.
Learned Counsel pointed out that they include the fact the parties must consent to it where the matter is already pending or where an application is made on summons that the matter be heard during vacation.
He submitted that, in the latter case the matter must be of an urgent nature and that the condition precedent for bringing an urgent matter during the vacation must be fulfilled exactly. Learned Counsel further submitted that in the instant case, there is nothing urgent about a claim to recover an alleged debt under the undefended list and that even if it were an urgent nature, no application by summons was made by the Plaintiffs/Respondents to the Court in Chambers that the matter be heard during vacation.
F. R. Onoja maintained that, the clear implication is that the condition precedent in Order 47 Rule 5 has not been met and that it can therefore be said that the action has not been initiated in accordance with due process of law which robed the trail Court of jurisdiction to have entertained same. He referred to the case of:Madukolu v. Nkemdilim (1962) 1 ALL NLR 587 or (1962) 2 SCNLR 341.
Learned Counsel pointed out that, the Respondents have conceded the point that the trial Court can set aside its Judgment ex debito justitiae where the Court lacked jurisdiction to entertain the matter. He submitted that the instant case is clearly deserving of an Order setting aside the proceedings and Judgment commenced and delivered during the annual vacation but that the trial Court did not consider and determine that issue. He referred to the case of;Onwuka v. Ononuju (2009) 11 NWLR Pt. 1151 page 174 at 192.
He submitted that, had the trial Court considered and determined the argument by the Appellant that the Court lacked jurisdiction to entertain the matter during the annual vacation, perhaps the trial Court would have arrived at a different conclusion and set aside its own Judgment but the trial Court did not do that, hence this Appeal.
Learned Counsel further submitted that the Appellant has suffered a great miscarriage of justice when the trial Court failed to determine such a fundamental issue. He urged the Court to resolve the issue in favour of the Appellant.
In his response on this issue, Edwin I. Agbu, learned Counsel for the Respondents submitted that a Judgment obtained under the undefended list is a final Judgment and cannot be re-opened for adjudication as the Court has become functus officio. He referred the Court to Order 18 Rule 4 of the Court of Appeal Rules, 2007;Mohammed v. Husseini (1998) 12 SCNJ 136 at 164.
He maintained that trial Courts are very cautious in applying the known principles for setting aside a final Judgment on the undefended lest they sit on Appeal on their Judgment except where the Judgment was obtained without jurisdiction or where the Judgment was obtained by fraud.
Learned Counsel contended that the Appellant’s claim and contention that the Judgment was obtained by fraud was withdrawn before the ruling of 24/6/2009 and referred the Court page 142 of the Records.
Edwin I. Agbu, pointed out that the Appellant’s cardinal contention is that the 1st Respondent is not a juristic person and therefore lacks the locus to institute the action in the first place. He maintained that in a deliberate effort to prove this, the Appellant submitted to the trial Court Exhibit ‘A’ being the Corporate Affairs Commission’s Report of the 1st Respondent attached to her affidavit in support of the Motion seeking to set aside the Judgment of 28/8/2007 and that the Exhibit was intended to persuade the trial Court to hold that the 1st Respondent lacked the locus to sue.
Learned Counsel submitted that the efforts and arguments of the Appellant on the issue of juristic personality of the 1st Respondent however diligent it may appear is taken too far and evidence based as the Respondent had deposed in their paragraph 3 of the affidavit in support of the undefended list that:
“The 1st Plaintiff is a body Corporate established in Nigeria under the Companies and Allied Matters Act (CAMA) 1990 LFN to carry on the Business as legal practitioners and property consultants.”
Edwin I. Agbu maintained that, the failure of the Appellant to deny the above averment at the hearing of suit in the Court below by filing affidavit of merit and notice of intention to defend means that all averments therein are deemed admitted and cannot be allowed to re-open the argument on the juristic personality of the 1st Respondent by this Motion. He referred the Court to page 5 of the Records.
He submitted that based on the above deposition and the fact that there are two other Respondents in the suit, the issue of whether or not the 1st Respondent is a juristic personality is not apparent on the face of the writ and the trial Court was correct to have determined the suit.
Learned Counsel maintained that where this is the case, the proper procedure for the Appellant was to file her notice of intention to defend the suit together with affidavit disclosing lack of capacity of the 1st Respondent to so sue. He referred the Court to the case of: UTC v. Pamotei (1989) 2 NWLR Pt. 103 page 224.
Edwin I. Agbu submitted that where the Appellant failed to file her notice of intention to so defend, the only option left for the Appellant after Judgment is to Appeal the Judgment (substantive Judgment) or file a fresh action seeking to set aside the Judgment disclosing fundamental defects therein because the mode of challenging jurisdiction is not always same in all cases more especially undefended list Judgment. He referred the Court to the case of:UBN Plcv. Benue Cement Co. Plc (2003) 51 WRN.
Learned Counsel further submitted that the Appellant by attaching the Corporate Affairs Commission’s Report of the Is1 Respondent to her affidavit in support of the motion seeking to set aside the Judgment of 28/8/2007, seeking to lead oral evidence and asking the trial Court to make findings on it was indirectly asking the trial Court to sit on appeal on its own case and directly delving into the substance of the case that can only be challenged on appeal.
He maintained that, the trial Court cannot resolve this issue comfortably while resisting the temptation of rehearing the suit and receiving both oral and documentary evidence therein when no defense or affidavit of merit were filed by Appellant.
Edwin I. Agbu contended that the only option left for the trial Court was to satisfy itself whether or not the Appellant was indeed served as Appellant have deposed in her affidavit in support of the motion seeking to set aside the Judgment that her failure to appear and defend the action was because she was not served.
Learned Counsel stated that they agree with the Appellant’s Counsel that other issues as raised relate and are connected to the issue of legal personality of the 1st Respondent. He submitted also that the argument on the issues is strictly on the merit of the case or substantive suit and have nothing to do with setting aside a Judgment on the merit more especially Judgment on the undefended list.
He maintained that the issues/arguments do not in any form come under any of the known grounds or principles in setting aside a final Judgment and that at best they are grounds of Appeal or issues that can be raised in a fresh suit to set aside the Judgment and the Appellant shall not be allowed to Appeal the Judgment on this Motion under any guise.
Learned Counsel submitted that a long line of authorities/decided cases are in agreement that a final Judgment can only be set aside where there is no service of the process so as to deny the Court jurisdiction and where there is established prima facie proof of fraud.He referred to the cases of:Vulcan Gases Ltd. v. G. F. I. G (2001) FWLR 1213 Pt. 53 at 1;
Remawa v. NACB CPC Ltd. (2007) 2 NWLR Pt. 1017 page 155 at 179.
On the issue of the Court sitting and hearing the suit during vacation without the consent of the parties, leave of Court and the matter not being urgent, learned Counsel for the Respondents submitted that matters under the undefended list are summary Judgment matters and by their very nature non contentious, urgent, calculated to save time and the spirit of commerce. He referred to Order 21 Rules of Court.
Learned Counsel maintained that undefended list is a special procedure which if allowed to operate under Order 47 will defeat its intendments and objectives. He submitted that Order 47 strictly applies to matters already filed before the commencement of the vacation which hearing them will require the consent of the parties concerned and does not apply to matters filed during the annual vacation and concluded therein as in the present suit.
Edwin I. Agbu submitted that a vacation Court is a constituted Court of competent jurisdiction under the Chief Judge and the Judge of Court under whose directions all matters filed therein are heard under the Abuja Rules. He pointed out that vacation Court sits at the discretion of the Chief Judge which Order 47 is subject to in the first place and all matters filed during annual vacation, like in this suit, are heard by the Court without any preconditions.
Learned Counsel contended that where a suit is filed before vacation, a party wishing the vacation Court to hear it must seek the consent of the other party to the suit, file affidavit of urgency disclosing reasons why they should be heard and with the leave of Court proceed. He maintained that, it is inconceivable that Order 47 Rules of the High Court of the FCT, Abuja seeks to compel and constrain a Defendant who does not intend to defend an action under Order 21 Rules of Court against her to rely on it as her defense to the action.
He submitted that Order 47 Rules of High Court of the FCT, Abuja does not automatically deprive the Court of its jurisdiction as a Court of competent jurisdiction and that where the Rules apply, an Applicant wishing to challenge the jurisdiction of Court thereto must file particulars of omissions and lead evidence showing non compliance with the Rule.
Learned Counsel submitted that the Applicant was duly served but chose not to defend the suit and that she cannot prove miscarriage of justice occasioned by this suit being heard during annual vacation.
A Judgment obtained under the undefended list procedure is a Judgment on the merits and can only be set aside on Appeal. However, a trial Court can set aside its Judgment given under the undefended list procedure where the Court gave its decision without jurisdiction or where the decision was obtained by fraud. See:Remawa v. NACB C.F.C. Ltd (2007) 2 NWLR Pt. 1017 page 155;
Duke v. Akpabuvo Local Govt. (2005) 19 NWLR Pt. 959 page 130;Mark v. Eke (2004) 5 NWLR Pt. 865 page 54;Edem v. Akamkpa Local Govt. (2000) 4 NWLR Pt. 654 page 70;
Tor Tiv v. Wombo (1996) 9 NWLR Pt. 471 page 161.
In the instant case, the trial Court after considering all the issues raised that would have denied it jurisdiction came to the conclusion that the matter was properly before it particularly when the Defendant/Appellant was properly served with the writ of summons as has been disclosed by Exhibit ‘S’, the Certificate of Service sworn to by Bello Dogara Bailiff of the trial Court who carried out the exercise. I also see no circumstance which indicates that the trial Court has no jurisdiction to entertain the matter.
The Defendant/Appellant/Applicant having neglected to put up any defence, the duty of the Court on the date fixed for hearing is to give Judgment. See SPDC Ltd. v. Arho-Joe Nig. Ltd (2006) All FWLR Pt. 331 page 1330: Oloko v. Ube (2004) AH FWLR Pt. 227 page 562 at 571; Ben Thomas Hotel Ltd. v. Sebi Furniture Ltd. (1989) 5 NWLR Pt, 123 page 523.
The Applicant/Appellant raised the issue of fraud in the Judgment in its application dated 28/11/2007 and also gave particulars of the said fraud at pages 25 – 26 of the Records. However, the Applicant while arguing the application of 28/1/2009 withdrew the allegation of fraud as disclosed in the proceedings of 28/1/2009 at pages 141- 142 of the Records.
In an application dated 16/2/2009 which is the subject of this Appeal as can be gleaned from pages 74 – 76 of the Records, the issue of fraud was not part of the Applicant’s case in that application. The said pages 74 -76 of the Records are reproduced thus:
“IN THE HIGH COURT OF THE FEDERAL CAPITAL TERRITORY
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
SUIT NO. FCT/HC/CV/1293/07
MOTION NO. M/1803/09
BETWEEN
1. BLUEWHALES & COMPANY
2. GOODLUCK ADEKWE
3. ALH. SHEHU KOLLERE
JUDGMENT CREDITORS/RESPONDENTS
AND
HAJIA ISHA KAMARIAM
MONGUNO…
JUDGMENT DEBTOR/APPLICANT
MOTION ON NOTICE
BROUGHT PURSUANT TO THE INHERENT JURISDICTION
OF THE HONOURABLE COURT
TAKE NOTICE that this Honourable Court shall be moved on…day of… 2009 at the at the Hour of 9 o’clock in the forenoon or so soon thereafter as counsel can be heard on behalf of the above named Applicant for the following reliefs:-
(1) An order of the Honourable Court setting aside the proceedings and the judgment delivered on the 28th of August, 2007 in this suit, on grounds of Jack of service of the writ of summons and other originating processes, and for want of jurisdiction in the Court.
(2) An order of the Honourable Court staying execution, further execution, or the taking of any step by the respondents to realize the fruit of the judgment delivered on the 28th August, 2007 pending the determination of this Motion on Notice.
AND FURTHER TAKE NOTICE that the grounds for this application are:
(1) That the Judgment debtor/applicant was not served with the writ of summons and other originating processes in the action as required by law to enable the applicant defend the action.
(2) That the action was commenced and judgment was delivered during the annual vacation of the High Court of the Federal Capital Territory, Abuja in August, 2007 which robs the Court of jurisdiction to entertain the action at the material time.
(3) That there was nothing urgent about the action to require its being entertained during the annual vacation of the Court and no order of the court was obtained in chambers to hear the matter during the vacation.
(4) That the plaintiffs not being Legal Practitioners cannot claim the legal fees awarded to them in the judgment.
(5) That the 1st plaintiff is not a juristic person and therefore did not have the legal capacity to bring the action in the first place.
(6) That if even the plaintiffs are Legal Practitioners they did not comply with the condition precedent contained in the mandatory provisions of Section 6 of the Legal Practitioner’s Act. Dated the 16th day of February, 2009.
SIGNED
F. R. ONOJA, ESQ.
COUNTRY CHAMBERS
3rd FLOOR, CITY PLAZA
PLOT 596 AHMADU BELLO WAY
GARKI II,
ABUJA
The argument of Counsel to the Applicant which did not include the issue of fraud and the reply of Counsel for the Respondents are contained in the proceedings of 20/5/2009 at page 145 of the Records and it is reproduced as follows:
“20-05- 2009
1st Respondent in Court
F. R. Onoja for the applicant.
Appl. Counsel: The Respondent counsel is not in court. He is on his way.
Court: Ikechukwu Obidike for the respondents holding the brief of Emmanuel Ilo.
Appl.Counsel: Our motion on notice is dated 16/2/2009.Motion No. M1803/09. We are praying for an order of court to set aside the proceeding and judgment on 28/8/2007 in this suit Our ground
is that there was no service of the originating process. And that this court lacks the jurisdiction to enter judgment at that time.The application is supported by an 11-paragraph affidavit with one annexture. We rely on the affidavit.
We have filed a written submission and we seek to adopt same as our argument.
We seek to refer to the case of Okoye Vs CPMA Ltd (2008) 15 NWLR (Pt. 110) 335.
We urge the court to set aside the judgment Resp. counsel: In response we had filed a 13-paragraph counter affidavit with one annexture,
it is filed on 24/2/2009. We had filed a written address and we seek to adopt same as our oral argument.
In the instant case there is an affidavit of service, which shows that the applicant was duly served.
So the instant case is different from the earlier case cited. The judgment in this case has been executed.
The service on the judgment debtor/applicant was not in doubt. We urge the court to dismiss the application.
The case is adjourned to 24/6/2009 for ruling.
Signed: HON. JUSTICE A.M. TALB – PRESIDING JUDGE
2/4/2009”
I am satisfied that in the circumstances of this particular case the learned trial Judge was correct when he held at page 151 of the Records thus:
“I therefore hold that the proper mode of challenging the judgment delivered on 28/8/2007 is by appeal”.
The Appellant has not on this issue presented any compelling argument to warrant the setting aside of the findings of the trial Court. This issue is also resolved in favour of the Respondents.
On the whole, there is no merit in this Appeal and it is hereby dismissed. I will not make any Order as to Costs.
MARY U. PETER-ODILI, J.C.A: I have had the privilege of reading the draft judgment of my learned brother, ABDU ABOKI, J.C.A, which decision and reasonings I agree with. I have nothing else to add except to say that I abide by all the orders of my brother made.
JIMI OLUKAYODE BADA, J.C.A: I have had the privilege of reading in a draft form the lead Judgment just delivered by my learned brother ABDU ABOKI, J.C.A. His Lordship has dealt with the issues in this appeal appropriately.
The appeal lacks merit and I too dismiss it. There shall be no order as to costs.
Appearances
F. R. OnojaFor Appellant
AND
Chief O. J. Onoja;
M. A. Ebute;
D.A. Omachi,
Famokun Adedamola;
E. O. AgudaFor Respondent
