INTEGRATED BUILDERS V. DOMZAQ VENTURES NIGERIA LIMITED.(2004)

INTEGRATED BUILDERS V. DOMZAQ VENTURES NIGERIA LIMITED.

(2004)LCN/1615(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 6th day of July, 2004

CA/I/99/2000

 

JUSTICES

SAKA ADEYEMI IBIYEYE   Justice of The Court of Appeal of Nigeria

VICTOR AIMEPOMO OYELEYE OMAGE   Justice of The Court of Appeal of Nigeria

OLUFUNLOLA OYELOLA ADEKEYE   Justice of The Court of Appeal of Nigeria

Between

 

INTEGRATED BUILDERS Appellant(s)

AND

DOMZAQ VENTURES (NIG.) LTD. Respondent(s)

 

IBIYEYE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of Kolade, J. of Ibadan Judicial Division of the Oyo State High Court of justice delivered on the 2nd day of March, 1993.
The ruling is sequel to a judgment based on a writ of summons taken out against two defendants with an accompanying affidavit dated 17th day of June, 1993, setting out the grounds upon which the claim therein (the writ of summons) is based. The claim endorsed on the writ of summons is as follows:
“The plaintiff’s claim against the defendants is for:
1. The sum of N422,000.00 (Four hundred and twenty-two thousand Naira) being the cost of the electrical cables supplied to the defendants which fell due for payment on February, 1993 and which the defendants have not paid despite repeated demands.
2. Interest on the said sum of N422,000.00 (Four hundred and twenty-two thousand Naira) at the rate of 15% per month from 20th February, 1993, until payment.”
The trial court in the absence of the defendants on the 10th of August, 1993, allowed the plaintiff to adduce evidence on the claim endorsed on the writ of summons (supra) followed by the address of the learned Counsel for the plaintiff. Based on the evidence of Mr. Idom Razak Omokeowa, the Managing Director of the plaintiff, the trial court entered judgment for the plaintiff, inter alia, as follows:
“This case has been entered in the undefended list. According to the affidavit of the bailiff each of the defendants was served with the writ of summons as well as the supporting affidavit on the 24th day of June, 1993. None of them has given any notice of intention to defend…
In the light of the above (probably of the evidence of the only witness for the plaintiff given in the absence of the defendants) I hereby enter judgment in favour of the plaintiff in the sum of N422,000.00 (Four hundred and twenty-two thousand Naira) being the cost of electrical cables supplied by the plaintiff to the 1st defendant which amount fell due for payment on 2nd February, 1993…”
In view of the foregoing judgment, the 1st defendant reacted by filing a motion on notice dated the 6th day of October, 1994.The 1st defendant sought the following reliefs from the said motion on notice:
“(i) An order setting aside the judgment delivered in this suit on 10th day of August, 1993, in so far as it concerns the 1st defendant.
(ii) Order setting aside the writ of summons and statement of claim served on the 1st defendant.
(iii) Staying execution of judgment delivered in this case.
And also take notice that the grounds upon which this application is brought and adjudicated are, inter alia, that:
(1) Neither the writ of summons nor the affidavit setting forth grounds upon which claim is based was served on the secretary to or Director of the 1st defendant at all, and
(3) The trial was in breach of the constitutional right of the 1st defendant to fair hearing”.
The trial court considered the twenty paragraph affidavit and twenty one paragraph counter-affidavit filed by the 1st defendant/applicant and plaintiff/respondent respectively and dismissed all the three reliefs sought by the 1st defendant/applicant.
The 1st defendant now appellant was dissatisfied with this ruling and appealed to this court on three grounds of appeal. He identified the following issues for the determination of the appeal:
“(1) Whether the court below is right in entering judgment in favour of the plaintiff against the defendant who was not served hearing notice.
(2) Whether the court below is right in holding that a written agreement (in form of local purchase order) can be altered or varied by oral agreement in such a way or in any form that would affect the total sum payable as agreed by the parties.
(3) The amount due to the plaintiff stated in exhibit ‘A’ which the local purchase order tendered by the plaintiff at pages 20-22 of the record puts the amount outstanding for payment to the plaintiff by the defendant at a total of N397,705.00. The plaintiff, however, claimed that the written agreement was varied by an oral agreement between it and the 1st defendant, shooting the total money payable to the plaintiff by the 1st defendant from N397,705.00 to N422,000.00.”
The plaintiff now respondent raised preliminary objection to issues (2) and (3) as raised above before identifying only the following single issue:
“Was the proceeding before the High Court a nullity and was it vitiated by the complaints of the applicant as to non-service.”
It is apparent from the state of the brief filed by the respondent that certain preliminary points have been raised for the consideration of the court before dealing with the instant appeal. It is now well settled that an appellate court should first consider a preliminary objection raised during an appeal and express its opinion on whether it agrees or not because a successful preliminary objection may have the effect of disposing of the appeal. It matters not, if the objection is frivolous, it should not be ignored. See Nwanwata v. Esumei (1993) 8 NWLR (Pt. 563) 650 at 666 and Tambco Leather Works Ltd. v. Abbey (1998) 12 NWLR (Pt. 579) 548 at 554. It is also pertinent to state that it is a cardinal principle of administration of justice to let a party know the fate of his application whether properly or improperly brought before the court. In view of the foregoing, this court has a bounden duty to consider the preliminary points raised by the respondent and rule on them. Thus, the learned Counsel for the respondent pointed out that the appellant raised only three issues from the five grounds of appeal it filed. He argued that the 2nd and 3rd issues raised by the appellant are not covered by any of the five grounds of appeal. He therefore urged the court to discountenance the submissions made thereon and relied on the case of Ugo v. Obiekwe (1989) 1 NWLR (Pt. 99) 566.
The learned Counsel for the respondent also contended that the appellants did not raise any issues on grounds 3, 4 and 5 of the grounds of appeal and he urged the court to strike out those grounds as they are deemed to have been abandoned. The appellant did not proffer any reply to the objection raised by the respondent. Despite that lapse, the court shall consider the respondent’s objection on its merit. Issues 2 and 3 adumbrated by the appellant have already been reproduced (supra). The said two issues relate to whether or not a written agreement can be raised by an oral agreement. It is pertinent for ease of reference to reproduce grounds 1, 2, 3, 4 and 5 without their particulars. Thus, the said grounds of appeal read:
“1. The learned trial Judge erred in law in holding that on authorities (default) judgment sought to be set aside cannot be so set aside except by way of appeal despite the fact that there is evidence that no hearing notice was served on the appellant.
2. The learned trial Judge erred in law when he held:
‘Consequently this court has no power to set aside a judgment given under undefended list. It is not a default judgment but a judgment given on the merits.’ Thereby it came to wrong decision in dismissing the defendants’ application’
3. The learned trial Judge erred in law when he had (sic) that the service of process in this case were (sic) properly and validly served on the appellant, a limited liability company without proof by the respondent that the person on whom the said processes were served was a secretary or principal member of the appellant’s company.
4. The learned trial Judge erred in law in failing to resolve the conflict in the affidavits as to whether Mrs. Bakare was introduced to the Managing Director of the respondent by the appellant’s Managing Director as a person who had authority to receive process or document on behalf of the appellant’s company.
5. The trial court erred in law when it refused to set aside its judgment of 10th August, 1993, when it is clear that the interest awarded in that judgment is outrageously higher than the rate permitted by statute.”
At the hearing, the learned Counsel for the appellant and the respondent adopted and relied on their respective briefs of argument.
I have had a hard look at the issues 2 and 3 raised by the appellant and the five grounds of appeal filed by it and I found no basis for sourcing the said two issues from any of the grounds of appeal. It is settled that issues for the determination of an appeal must arise from and relate to the grounds of appeal filed and no more. Conversely any issue for the determination of an appeal which has no ground of appeal to support it is worthless and it should be struck out. See Osinupebi v. Saibu & Ors. (1982) 7 SC 104 at pp. 110 and 111 and Ugo v. Obiekwe & Anor. (1989) 1 NWLR (Pt. 99) 566 at 580.

It is also trite that a ground of appeal for which an issue not identified is deemed to have been abandoned and is liable to being struck out. See Are v. Ipaye (1986) 3 NWLR (Pt. 29) 416 and Umoru v. The State (1990) 3 NWLR (Pt. 138) 363 at 379 and Chukwuogor v. Obuora (1987) 3 NWLR (Pt. 61) 454.
In the instant case, it is apparent that issues 2 and 3 in the appellants brief of argument relate to variation of written agreement by oral agreement which are not raised from the five grounds of appeal are incompetent and should be discountenanced. Furthermore, no issues were raised from grounds 3, 4 and 5 of the grounds of appeal. The consequence is that those grounds of appeal are deemed to have been abandoned. The consequence in each of the two sets of irregularities referred to above are that issues 2 and 3 with the submissions thereon as well as grounds 3,4 and 5 of the grounds of appeal should be struck out. They are accordingly struck out. The preliminary objection is thereby sustained. I agree with the learned Counsel for the respondent that the only surviving issue is issue 1.
I have considered the single issue raised by each of the parties and I am of the view that they are not too dissimilar. The intendment is the same. I accordingly, prefer to use the issue distilled by the appellant for the determination of this appeal.
On issue 1, the learned Counsel for the appellant referred to Order 2 rule 1 of the Oyo State High Court (Civil Procedure) Rules, 1988 (hereinafter referred to as the 1988 Rules) which relates to the person eligible to serve processes like writs of summons, notices, petitions, pleadings, orders, summonses, warrants and all other proceedings and that such person shall provide affidavit of service of the process or processes he effected. Learned Counsel argued that nowhere in the eighty page record of proceedings in the court below is an affidavit of service of any court process shown nor any hearing notice served on the appellant. He further argued that notes on the court’s files in the record of proceedings are silent on the vital aspect of the principle of natural justice with regard to fair healing by putting the other party on notice. He therefore urged the court to hold that the judgment is perverse and should be set aside.
In reply, the learned Counsel for respondent said that after initiating the case in the lower court by a writ of summons supported by an affidavit verifying the facts upon which the respondent’s claim was based, it (the case) was entered in the undefended list. The writ of summons and the accompanying affidavit were served on the 1st defendant/appellant who did not file any notice of intention to defend the action within the stipulated time or at all. The trial court thereafter proceeded to enter judgment in favour of the plaintiff against the 1st defendant whilst the claim against the 2nd defendant was dismissed. The complaint of the appellant in the court below when it sought to set aside the judgment and in this court is that the proceedings and the judgment are a nullity since the appellant was not served the originating/processes in the manner required by the rules of court.
The learned Counsel for the respondent conceded that if indeed the originating processes were not served on the appellant, the proceedings thereat were a nullity and that the trial court has jurisdiction to set them aside.
Learned Counsel submitted that with regard to the service of the writ of summons and the affidavit on the appellant, the lower court was right in holding that they were properly served on Mrs. Bakare, the secretary to the 2nd defendant, the Managing Director, of the appellant. He argued that the respondent had substantially complied with the rules of court on service of processes since service also includes leaving them (processes) at the office of the corporation or company. He finally urged the court to hold that the lower court was justified in its conclusion.
What is of particular moment in the sole issue for the determination of the instant appeal is service of processes and particularly originating processes. It is settled that service of process on parties (plaintiff and defendant) in a case so as to enable them appear to prosecute and defend the case respectively and of course ensuring their due appearance and that of their respective counsel in court are foundational conditions to be seen to have been fulfilled before a court can have competence and exercise jurisdiction over the case. This situation accords with the principle of natural justice.
One of the prime elements of natural justice is that both sides to a case shall not only be heard but they shall also be seen with the naked eyes of the law to be heard. Failure to serve a process where service of a process is required renders null and void any order made against the party who should have been served with the process. See Craig v. Kanseen (1943) 1 All ER 108 at 113, Madukolu & Ors. v. Nkemdilim (1962) 2 SCNLR 341, S.G.B. (Nig.) Ltd. v. Aina (1999) 9 NWLR (Pt. 619) 414 and U.B.A. Plc. v. Ajileye (1999) 13 NWLR (Pt. 633) 116 at 125 and Oke v. Aiyedun (1986) 2 NWLR (Pt. 23) 548 at 99.
I have observed from the state or the record of proceedings including the master file that despite the denial of the appellant that process was served on it, I found at pages 23 and 24 of the master record that there is affidavit of service by the senior bailiff of Oyo State High Court, Mr. A. Oyerinde, that the writ of summons, statement of claim and affidavit were served on the appellant and the 2nd defendant. The essence of affidavit of service is to prove that the process emanating from the court has been brought to the notice of the litigant whose presence is required in court. The said affidavit is no doubt consistent with the requirement of O. 12 r. 28 of the 1988 Rules. It is therefore prima facie evidence of service on the appellant and the 2nd defendant.
It is not in doubt that the appellant is a limited liability company for which mode of service of process has been provided for in O.12 r. 8 of the 1988 Rules. O. 12 r. 8 of the 1988 Rules reads:
“8. When the suit is against a corporation or a company authorized to sue and be sued in its name or in the name of an officer or trustee, the writ or other document may be served subject to the enactment establishing that corporation or company or under which it is registered as the case may be, by giving the writ or document to any director, secretary or other principal officer, or by leaving it at the office of the corporation or company.” (Italics for emphasis)
The foregoing provision sets out two modes of effecting service of process on a juristic person such as a limited liability company or a corporation. Thus, the modes are by giving which connotes handing over the process or by leaving the process at the office of the corporation or company. It further sets out the officers in the company to whom the process can be served by way of giving or handing over by the sheriff, deputy sheriff, bailiff or officer of the court as stipulated in O. 12 r. 1 of the 1988 Rules. The officers to whom the named officials can serve processes on are “any director, secretary or other principal officer.” The operation of this provision is that in view of its distinctive purport only one of the three sets of officers can be served process at any given time. All these options as well as leaving the process at the registered office can not be recoursed to in one exercise.
It will make for better elucidation if the affidavit of service relied upon by the respondent is reproduced for an incisive review. Thus, the affidavit of service reads, inter alia,
“In The High Court of Justice
Oyo State of Nigeria
Ibadan Judicial Division
Affidavit of service suit No.I/556/99
Between:
Domzaq Ventures (Nig.) Ltd …       Plaintiffs
And
Integrated Builders Ltd. & Anor ….     Defendant(s)
1. A. Oyerinde, S/Bailiff of High Court, Ibadan, make oath and say that on he 24th day of June, 1993 at 2.50p.m. 0’clock, I served upon Integrated Builders Ltd. a writ of summons, affdt. s/claim, a true copy whereof is hereunder annexed issued out of this court at H/Ct. Ib upon 1st deft. Upon the complaint of plaintiff by delivering the same personally to the Secretary – Mrs. Abiodun Bakare at 8 Awosika Avenue, Bodija, Ib.
Sworn to at High Court, Ibadan
This 24th day of June, 1993.
Sgd.
Bailiff
It is apparent from the affidavit of service reproduced (supra) that one Mrs. Abiodun Bakare received process on behalf of the appellant. The question is does Mrs. Abiodun Bakare come within the category of officers who could be given process by way of service on a company. In order to answer this question, there is need to consider the affidavit evidence filed by the parties in respect of the appellant’s application filed on 6th of October, 1994. Paragraphs 12, 13 and 14 of the affidavit and paragraphs 5, 6, 7, 8 and 9 of the counter-affidavit are relevant and the said paragraphs in the affidavit read:
“1. Kehinde Fagorusi, Male, Nigerian citizen, litigation clerk of No. 80, Fajuyi Road, Ekotedo, Ibadan, hereby make oath and say as follows:
12. That Engineer Adedoyin Adelekun informed me and I verily believe that one Mrs. Abiodun Bakare was purportedly served with the writ of summons on behalf of the 1st defendant.
13. That Engineer Adedoyin Adelekun informed me and I verily believe him that Mrs. Abiodun Bakare is his personal secretary.
14. That Engineer Adedoyin Adelekun informed me and I verily believe him that Mrs. Abiodun Bakare is neither secretary to the Director of the 1st defendant/applicant nor a principal officer of the 1st defendant/applicant.
(Italics for emphasis).
The paragraphs of the counter-affidavit read:
“I, Idom Razak Omokeowa, Nigerian, businessman of N58/666A, Iwo Road, Ibadan do make oath and say as follows:-
5. That at the commencement of business with the 1st defendant, its Managing Director, the 2nd defendant told me and I verily believe that Mrs. Abiodun Bakare is a senior officer of the 1st defendant attached to “him” as personal secretary.
6. That I know as a fact that the defendants have since then held out to the plaintiff and other customers of the defendants the said Mrs. Bakare as a principal officer of the 1st defendant.
7. That all letters written by me to the 1st defendant were received by the said Mrs. Abiodun Bakare. Copies of the pages of our dispatch book signed by the said Mrs. Bakare are attached herewith as exhibits ‘A’ and ‘A1′.
8. That similarly the same woman received the letter addressed to the 1st defendant by our solicitors on 24th April, 1993 as shown in the page of our solicitors’ dispatch book signed by the woman. The page of the dispatch book is attached as exhibit ‘B’.
9. That the writ of summons together with the affidavit setting forth grounds of this action firmly annexed thereto was served on the defendants through the said Mrs. Abiodun Bakare.”
(Italics for emphasis).
A critical analysis of the averments in the affidavit and the counter-affidavit showed that in the former affidavit the deponent who has clearly deposed on behalf of the 1st defendant that Bakare who signed for the seemingly vexed writ of summons and the supporting affidavit as well as other documents is the personal secretary of the 2nd defendant and was neither a secretary to the appellant nor a principal officer of the appellant. The deponent in the counter-affidavit who is the Managing Director of the respondent ostensibly failed to refute the status of Mrs. Abiodun Bakare as declared in the affidavit. The deponent instead averred that Mrs. Abiodun Bakare is a senior officer of the appellant as opposed to principal officer referred to in O. 12 r. 8 of the 1988 Rules. The Managing Director of the appellant also deposed that since the said Mrs. Abiodun Bakare regularly acted on behalf of the appellant she was deemed to have been held out as a principal officer of the appellant. The language of O. 12 r. 8 of the 1988 Rules is clear and does not admit of any aid of interpretation. The concept of principal officer referred to in the said rule does not subsume senior secretary or personal secretary. The practice whereby Mrs. Abiodun Bakare performed statutory function in error will not clothe the several errors made by her with legality. Laws and rules are not made to operate in breach but to be obeyed by citizens in order to satisfy the spirit and intendment for which they are promulgated. In the instant case, it is not in doubt that O. 12 r. 8 of the 1988 Rules was observed in breach by the parties. Such breaches are inexcusable vis-a-vis the implementation of statutory provisions. In effect, the argument of the learned counsel for the respondent that Mrs. Bakare was held out by the appellant to commit illegalities in the performance of statutory functions cannot be sustained. It is untenable. Since the writ of summons and the accompanying affidavit of the respondent were not regularly served on the appellant and the 2nd defendant, the appellant cannot be held to be aware that any action had been initiated in the Ibadan Division of the Oyo State High Court of Justice by the respondent against the appellant. In these circumstances, the respondent failed through and through to comply with O. 12 r. 8 of the 1988 Rules as regards service of process, that is to say, the initial writ of summons and accompanying affidavit in a case against the appellant and the 2nd defendant placed on the undefended list.
The best notification to parties in respect of any litigation is one communicated personally on the individuals involved or if the parties are juristic persons by strict compliance with statutory requirement on service which invariably is personal service on the categories of persons named.
It is basic that service of process on parties (plaintiff and defendant) in a case operates so as to enable them and/or their counsel to prosecute and defend an action is a fundamental condition to be seen to have fulfilled before a court can have competence and exercise jurisdiction over the case. This accords with the principle of fair hearing which connotes that both sides to a case shall not only be heard but shall also be seen to have been heard. In other words, justice shall not be denied to anybody (that is justitia nemini neganda est).
Proceedings in a trial court conducted without due process being served on the parties or one of the parties amount to a nullity. See Madukolu & Ors. v. Nkemdilim (1962) 2 SCNLR 341; Skenconsult (Nig.) Ltd. v. Ukey (1981) 1 SC 6 at 26. In the instant case, the appellant was not regularly served due process, that is to say, the writ of summons and an accompanying affidavit in a case placed on the undefended list by the court below before judgment was entered against it. This, in my view, is an outrage against the principle of fair hearing and it affected the competence of the trial court. A defect in the competency of a court is fatal as it will render the proceedings before it a nullity however well conducted or decided. Such defect is extrinsic to the adjudication. See Lawal & Ors. v. Younan (1961) 1 SCNLR 303; (1961) All NLR 245 at 254, (1959) WRNLR 155. The consequence of the foregoing is that a person who is affected by an order of the court which can be properly described as a nullity is entitled as a matter of right (ex debito justitiae) to have it set aside in order to meet the end of justice. In the instant case, there is established proof of absence of service of the initiating process on the appellant. In consequence, the lower court lacked jurisdiction to enter judgment in favour of the respondent. Issue 1 is accordingly resolved in favour of the appellant.
In the final analysis, the appeal succeeds and it is allowed. The ruling of the court below delivered on the 22nd March, 1995, is set aside as it lacked jurisdiction to entertain suit No. I/556/95. The three reliefs sought in the lower court sequel to the judgment it delivered on the 10th day of August, 1993 are meritorious and accordingly allowed. Since there was no valid adjudication in the court below, the only available remedy is that the matter shall be re-listed so that a differently constituted court can hear it. I award costs of N5,000.00 against the respondent in favour of the appellant.

OMAGE, J.C.A.: I have had the privilege to read in advance, the lead judgment of my learned brother, S.A. Ibiyeye, JCA; in this appeal; I agree that the only way in which judgment delivered an undefended list may be set aside, is if there is a defect in the service of the processes in the court below. In the instant appeal, the record of proceedings show that there was service of the process viz; in the court below writ of summon and statement of claim on the defendant appellant when the matter was filed on a regular suit. The records show that service to be at variance with the requirements of Companies and Allied matters Act on service of process of court on corporate bodies. Eventually, the claim was placed on the undefended cause list. When this was done the prescribed notice and affidavit of facts of claim were not served on the defendant who should have been respondent in that proceedings. In the absence of service on the defendant of the requisite papers when the plaintiffs claim was placed on the undefended list, there was no service; at law of the proceedings of the undefended list provided and the proceedings and; judgment is right to be set aside. A judgment is final otherwise if given on an undefended list where all the rules are complied with. In the instant appeal, I agree that there is no service of the process for hearing of the claim under the undefended list procedure, and the appeal succeeds.
I also direct that the proceedings be set aside and the claim be heard in another court when proper service of process has been concluded.

ADEKEYE, J.C.A.: I had read in draft, the judgment just delivered by my learned brother S.A. Ibiyeye, JCA. The respondent raised a preliminary objection that the appellant did not raise any issues in grounds 3, 4 and 5 of the grounds of appeal, while issues 2 and 3 are not covered by any grounds of appeal. As observed by my learned brother – in the leading judgment – issues for determination must be based on the grounds of appeal any issue that does not relate to any grounds of appeal is incompetent and shall be liable to be struck out. It is not permissible to canvass or tender argument in support of such an issue. Also, a ground from which no issue is formulated is deemed abandoned and is liable to be struck out. Consequently, issues 2 and 3 are incompetent – and should be struck out, while no issues are raised from grounds 3, 4 and 5 of the grounds of appeal;- they are therefore deemed abandoned – they are equally struck out. Madagwa v. State (1988) 5 NWLR (Pt. 92) 2 pg. 60, African Petroleum Ltd. v. Owodunni (1991) 8 NWLR (Pt. 210) pg. 391, Okoye v. Nigeria Construction Furniture Ltd. (1991) 6 NWLR (Pt. 199) pg.501, A.B.U. v. Molokwu (2003) 9 NWLR (Pt. 825) 265, Astraco (Nig.) Ltd. v. Trade Bank Plc. (2003) 6 NWLR (Pt. 815) 22.
The only issue left to be canvassed complained of non-service of hearing notice on the defendant.
Generally, where proceedings are begun other than as provided by the rules, such proceedings are incompetent.
A court can only exercise jurisdiction in respect of any matter when the case comes before it by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction. Madukolu v. Nkemdilim (1962) 2 SCNLR 341. Order 2 rule 8 of the Oyo State High Court (Civil Procedure) Rules, 1988, provides for service of processes like writ of summons, notices, petitions, pleadings etc. Order 12 rule 8 of the 1988 Rules provides for service on a liability company – which shall be on any director, secretary or other principal officer or by leaving it at the office of the corporation or company. Service of process shall be effected by the bailiff who shall swear to an affidavit of service to that effect. Service on any liability company shall be as provided in the rules, shall be on the director of the company, secretary or any principal officer.
Service in this case cannot be said to have been properly effected or in accordance with the rules. Notice to a defendant of a case filed under the undefended list is mandatory under the rules of court. Where there is a failure to give such notice and a judgment in default is entered against the defendant, the proceedings before the trial court although ostensibly valid shall be ex debito justitiae be set aside because of the fundamental vice or irregularity which goes to the competence of the court. In such a situation, the trial court is competent to set aside its judgment given in such circumstances or even the judgment of a court of co-ordinate jurisdiction. The trial court shall verify if the defendant was served by looking at the copy of the affidavit of service sworn to by the bailiff.
Any judgment entered by the trial court on the undefended list will be declared a nullity if application is made by the defendant to have the judgment set aside on the ground that he was not aware of the proceedings. SGBN v. Adewunmi (2003) 10 NWLR (Pt. 829) pg. 526, Obimonure v. Erinosho (1966) 1 All NLR 250, Mbadinuju v. Ezuka (1994) 8 NWLR (Pt. 364) pg. 535.

Moreover, a hearing cannot be said to be fair if any of the parties is refused a hearing or denied the opportunity to be heard, present his case or call witness. Military Governor of Imo State v. Nwauwa (1997) 2 NWLR (Pt. 490) pg. 675, Saleh v. Monguno (2003) 1 NWLR (Pt.801) pg. 221.This court has rightly ordered a retrial – because of the irregularity in the procedure which has rendered the trial a nullity and this court cannot hold that there has been no miscarriage of justice. I agree that it is in the interest of justice to order a retrial of the case. Duru v. Nwosu (1989) 4 NWLR (Pt. 113) pg. 24, Morenikeji v. Adegbosin (2003) 8 NWLR (Pt. 823) pg. 612.
In unison with my learned brother in the lead judgment – the appeal succeeds and it is allowed. The ruling of the court below delivered on the 22nd of March, 1995, is set aside as it lacked jurisdiction to entertain suit No. 1/556/95. The matter shall be re-listed before a different court of Ibadan Judicial Division. I abide by the order as to costs.

Appeal allowed.

 

Appearances

Appellant unrepresentedFor Appellant

 

AND

  1. A. Abiose, Esq.For Respondent

 

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