IKOM LOCAL GOVERNMENT v. CHENLEX GROUP LIMITED
(2011)LCN/4552(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 18th day of May, 2011
CA/C/85/2010
RATIO
SERVICE OF HEARING NOTICES: CONSEQUENCE OF THE FAILURE TO EFFECT SERVICE OF THE HEARING NOTICE ON THE APPELLANT BEFORE JUDGMENT WAS ENTERED IN FAVOUR OF THE RESPONDENT
The failure to serve hearing notice on the appellant before judgment was entered in favour of the respondent is a fundamental vice which has rendered the proceedings leading to the judgment void and the said judgment has to be set aside as being a nullity. PER KUMAI BAYANG AKAAHS, J.C.A.
SERVICE OF COURT PROCESS: CONSEQUENCE OF FAILING TO EFFECT SERVICE OF COURT PROCESS ON THE ADVERSE PARTY ON THE COURT PROCEEDING
The law is firmly settled that the service of a court process on a party, where it should be served is one of the fundamental conditions precedent to the exercise of jurisdiction by a court. Thus, if service of process is necessary or required and there is no concrete or irrefutable proof that such service has been effected on the adverse party, either personally, through counsel or by substituted means as ordered by a court; any decision or judgment emanating from such a proceeding is a nullity. Authorities abound to the effect that failure to serve a party with requisite processes in a proceeding is a fundamental breach which will render the said proceeding null and void. See U. B. A. Plc. v. Ajileye (1999) 13 NWLR (Pt. 633) 116; Management Entp. Ltd. v. Otusanya (1987) 2 NWLR (Pt, 55) 179; Scott Emuakpor v. Ukavbe (1975) 12 SC 4I; Okereke v. Ejiofor (1996) 5 NWLR (Pt. 434) 90. PER MASSOUD ABDULRAHMAN OREDOLA, J.C.A.
JUSTICES
KUMAI BAYANG AKAAHS Justice of The Court of Appeal of Nigeria
MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria
ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria
Between
IKOM LOCAL GOVERNMENT Appellant(s)
AND
CHENLEX GROUP LIMITED Respondent(s)
KUMAI BAYANG AKAAHS, J.C.A. (Delivering the Leading Judgment): The plaintiff’s claims against the Defendant jointly and severally as endorsed on the Writ of Summons issued in suit No.HM/101/2002 on 8/5/2002 are as follows:
1. The sum of N17,426,085.20 (Seventeen Million, Four Hundred and Twenty-Six Thousand, Eight-Five Naira, Twenty kobo) being special and general damages for breach of contract with interest at the rate of 36% per annum with monthly rates from June, 2001 until the judgment sum is liquidated.
2. The return of the plaintiff’s building material left on site but detained by the Defendants, or their value, and N10,000,000.00 (Ten Million Naira) general damages for detinue.
The defendants filed a Memorandum of appearance on 19/6/2002. On 24/7/2002 the plaintiff filed the Statement of Claim. On 28/1/2003 the court heard a motion dated 13/1/2003 but filed on 15/1/2003 and granted the defendant’s counsel leave to enter appearance out of time (See page 33 of the records). On 13/2/2003 the Defendant filed a Motion seeking to strike out both Writ of Summons and Statement of Claim on the grounds:-
1. The court lacked competence to entertain the suit.
2. The writ is incurably defective since it does not qualify to be a specially endorsed writ.
3. The Statement of Claim was filed without regards to the Rule of Court.
From 28/1/2003 to 30/1/2004 five adjournments were recorded and all this took place while the defendant was absent from court. It was on 7/4/2004 that Mr. Egodo appeared for the Defendant and announced that he had just taken over the defence from Mr. Anjor who had been elevated to the Bench (See page 37). He sought for adjournment which was granted to 11/5/2004. Counsel was not in court on 11/5/2004 when the court adjourned to the next day to hear the motion. On 12/5/2004, Mr. O. N. Agbor who was representing the plaintiff informed the court that the parties have settled and filed their terms of settlement on 3/5/2004. He prayed the court to adopt the terms of settlement filed by the parties as consent judgment of the court. He also applied for the striking out of the name of the 2nd defendant. The court then ruled thus:
“Settlement report as stated by plaintiffs counsel is admitted and sustained by reference to the terms of settlement duely (sic) signed and filed by the parties on 3/5/2004.
ORDER
1. The name of the 2nd defendant is struck out from the suit as prayed by the Plaintiff’s counsel.
2. The terms of settlement drawn up and signed by the parties, which said terms was filed on 3/5/04, is hereby admitted and marked in evidence as exhibit ‘AA’.
JUDGMENT
The court hereby adopts entirely Exh. ‘AA’ as its judgment and enter the same, as the CONSENT judgment of the court in the case.
CONSEQUENTIALS ORDERS
1. The parties are bound by the terms in exhibit ‘AA’ and are estopped from further relitigating on this very matter.
2. This case is accordingly determined and disposed”. (See page 39 of the records)
(see page 39 of the records)
Mr. Egodo next appeared on 23rd June 2004 and informed the court that the had filed a motion for an order to set aside the judgment of the court and the motion was adjourned to 21/7/2004 for argument. On the adjourned date, Mr. Egodo was absent. There is no indication of what happened on 21/7/2004 but the matter came up again on 27/7/2004 when Mr. Agbor moved the court to dismiss the motion to set aside the judgment. The court agreed with the submission made by Mr. Agbor and proceeded to hold that the judgment entered on 12th May, 2004 was a consent judgment which cannot be set aside. He struck out the motion filed on 18/5/2004 as being incompetent and awarded costs of N500.00 against the Defendant/Judgment Debtor, Mr. Egodo filed another motion on 30/7/2004 but it was struck out. Following this development, the Defendant filed its Notice of Appeal and formulated the following three issues from the four grounds of appeal filed:-
1. Whether the learned trial Judge was right in entering judgment in the case without disposing of the question whether or not he had jurisdiction.
2. Whether having regard to the facts and circumstances of the case, the judgment of the lower court is not a nullity.
3. Whether the judgment of the trial court qualifies as a consent judgment.
The Respondent formulated four issues for determination. They are:
1. Whether the repeated/several absence of the Appellant and its counsel from court without excuse did not amount to an abandonment/waiver of the preliminary objection.
2. Whether the defects or non-compliance complained of by the defendant affected the jurisdiction of the court or amounted to mere irregularities that can be waived or abandoned.
3. Whether there is a dispute as to the signing or authenticity of the terms of settlement filed by the parties.
4. Whether the defendant/appellant was ever denied a fair hearing in the matter by the lower court.
Learned counsel for the appellant argued that at the time the court summarily entered judgment on 12/5/2004 there was a pending motion challenging the jurisdiction of the court and submitted by relying on ASUQUO v EDET (2008) ALL FWLR (Pt.401) 970 at 982 that whenever the issue of jurisdiction is raised, it has to be decided upon first since any proceedings conducted by the court without jurisdiction is null and void and an exercise in futility- The case of S.P.D.C.N v ESOWE (2008) 4 NWLR (Pt. 1076) 72 was cited to support the contention that parties to case cannot by their consent vest the court with jurisdiction as the competence of a court to adjudicate on a matter is a legal and constitutional prerequisite.
This issue is enough to dispose of this appeal. Learned counsel for the respondent argued that both the former counsel were aware of the hearing dates but refused/neglected to appear to activate and argue the motion filed objecting to the competence of the action. He also contended that the attention of the court was not drawn to the motion and that a court of law cannot conduct a case for one party as it is the duty of the party to the case to activate and adumbrate any process filed in the court. He went on to assert that the motion filed on 13th February, 2003 urging the court to strike out both the Writ of Summons and the Statement of Claim for incompetence were complaints centred on mere irregularities and this does not affect the substance of the case.
There is no doubt that the appellant’s counsel was not diligent in the handling of this matter. When the matter was adjourned on 7/4/2004 to 11/5/2004, the appellant’s counsel was present in court but on the adjourned date, learned counsel was absent without any excuse. Learned counsel was again present in court on 23/6/2004 when the motion to set aside the judgment entered on 12/5/2004 was adjourned to 21/7/2004 for hearing. Nothing was recorded on 21/7/2004 but on 27/7/2004, learned counsel for the appellant was absent from court when the court ruled that the consent judgment entered on 12/5/2004 could not be set aside. What cannot be explained is that on the 12/5/2004 when the court entered judgment on the supposed agreed terms of settlement and when it heard the motion on 27/7/2004 refusing to set aside the judgment, hearing notices had not been served on the appellant. If the judgment had been entered on 11/5/2004 and not 12/5/2004, the appellant would not have been heard to complain since the counsel was in court on 7/4/2004 when the matter was adjourned to 11/5/2005 for hearing. Again the court was aware since 28/1/2003 that a preliminary objection had been filed and it was the court that adjourned it to 20/3/2003 for hearing. Although Mr. Anjor who was still counsel to the appellant wrote seeking for adjournment which was granted to 13/5/2003 nobody appeared on the said 13/5/2003 and it was one E. Okpa, an Assistant Chief Registrar II who adjourned the matter to 10/7/2003. Nothing was heard of the case until 9/10/2003 when the ACR II adjourned it to 25/11/2003, 29/1/2004 and 30/1/2004. The learned trial judge presided on 30/1/2004 and adjourned the matter to 19/2/2004 without ordering hearing notice to be served on the Appellant (See page 36 of the records). And so by 12/5/2004 when judgment was entered, the motion challenging the jurisdiction to entertain the case had not been disposed of. It does not lie with learned counsel for the respondent to argue that it was the appellant’s responsibility to bring to the court’s attention that a motion was still pending. Learned counsel equally had a responsibility to draw the court’s attention about the pending motion. Until the motion challenging the competence of the court filed was determined, no judgment could be validly entered in favour of the respondent. The failure to serve hearing notice on the appellant before judgment was entered in favour of the respondent is a fundamental vice which has rendered the proceedings leading to the judgment void and the said judgment has to be set aside as being a nullity. See SOMACO ENT. LTD. V. NEW NIGERIA BANK PLC (2006) ALL FWLR (PT.193) 195; INTAGRO LTD. V. BASSEY (2008) ALL FWLR (PT.419) 450; UMEADI V. NNAMANI (2007) 3 NWLR (PT.1021) 219; TENO ENGINEERING LTD. V. ADISA (2005) ALL FWLR (PT.260) 183.
The appeal has merit and it is accordingly allowed. The judgment entered by the lower court in favour of the Respondent on 12/5/2004 is hereby declared a nullity and it is accordingly set aside. The suit is remitted to the Cross River State High Court, Ikom, for hearing by another Judge other than Eneji, J. I. I make no order on costs.
MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: I have had the privilege of having a preview of the lead judgment just delivered by my learned brother, Akaahs, JCA. I agree entirely with his reasoning and conclusion reached therein, that the appeal has merit and must perforce succeed. Let me add the following for emphasis.
It is glaring from the record of appeal that as at the time the consent judgment in question was entered by the lower court, a major complaint challenging the jurisdiction of the said court was still pending and yet to be determined one way or the other. Additionally, there was a logjam regarding whether or not, the appellant herein deserves to be served with fresh hearing notice in respect of an adjournment date which was taken or given in the absence of both the appellant and its counsel.
The law is firmly settled that the service of a court process on a party, where it should be served is one of the fundamental conditions precedent to the exercise of jurisdiction by a court. Thus, if service of process is necessary or required and there is no concrete or irrefutable proof that such service has been effected on the adverse party, either personally, through counsel or by substituted means as ordered by a court; any decision or judgment emanating from such a proceeding is a nullity. Authorities abound to the effect that failure to serve a party with requisite processes in a proceeding is a fundamental breach which will render the said proceeding null and void. See U. B. A. Plc. v. Ajileye (1999) 13 NWLR (Pt. 633) 116; Management Entp. Ltd. v. Otusanya (1987) 2 NWLR (Pt, 55) 179; Scott Emuakpor v. Ukavbe (1975) 12 SC 4I; Okereke v. Ejiofor (1996) 5 NWLR (Pt. 434) 90.
In view of the above and the more detailed reasons in the lead judgment of my learned brother, Akaahs, JCA, I also allow the appeal. I endorse and adopt the orders in the said lead judgment including the order on costs.
ISAIAH OLUFEMI AKEJU, J.C.A.: I had the opportunity of reading the draft of the lead judgment of my learned brother, K. B. Akaahs, JCA just delivered. I agree with the reasoning and the conclusion that the appeal has merit. I allow the appeal and I abide by the consequential order remitting the suit to the Hon. Chief Judge of Cross River State High Court for hearing by another Judge.
I make no order as to costs.
Appearances
O. N. EgodoFor Appellant
AND
Eche TakonFor Respondent
