MR. CHINEDU UKACHUKWU & ANOR. V. MR. SYLVESTER NKPADO
(2012)LCN/5647(CA)
In The Court of Appeal of Nigeria
On Thursday, the 8th day of November, 2012
CA/L/161/11
RATIO
“it is trite on effect of violation of the principle of ‘audi alteram partem’ causing injustice to any party, as it did to the present Appellants, any judgment delivered amounts to a miscarriage of justice and should be declared a nullity See:- Yakubu v. Gov. Kogi State (1995) 8 NWLR (Pt.414) 386; U.B.N. Ltd. v. Nwaokolo (1995) 6 NWLR (Pt.400) 127; Mr. Yesufu Amuda Garba & Ors. v. The University of Maiduguri (1986) 2 S.C. 128 at 271; Madukolu & Ors. v. Nkemdilim & Ors. (1962) 1 All NLR 582.. “PER BAGE, J.C.A.
“This court has since pronounced on this issue that those letters of counsel, did not and could not take the place of a due process of court, to make a party bound by it. This court in the case of Amuwah Transport Nig. Ltd v. Oyinlola Atanda Transport Nig. Ltd (1998) 6 NWLR (Pt. 555) 684 at 690 paragraph c, stated:- “When deciding a case a court of trial must give parties opportunity of a fair hearing by being satisfied that all the due processes of court have been served on all the parties.”PER BAGE, J.C.A.
“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 – see Integrated Builders V. Domzaq Ventures (Nig.) Ltd. (2005) 2 NWLR (Pt. 909) 97; Otobaimere v. Akporehe (2004) 14 NWLR (Pt.894) 591; & Ngige v. Achukwu (2005) 2 NWLR (Pt. 909) 123. In other words, no Court has jurisdiction to entertain any Suit in which processes are not served or properly served.”PER AUGIE, J.C.A.
JUSTICES
AMINA ADAMU AUGIE Justice of The Court of Appeal of Nigeria
SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria
RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria
Between
(1). MR. CHINEDU UKACHUKWU
(2). MR. SUNDAY ANABIKE – Appellant(s)
AND
MR. SYLVESTER NKPADO – Respondent(s)
HON. JUSTICE SIDI DAUDA BAGE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Honourable Justice L. A. Okunnu sitting in the High Court of Lagos State, Ikeja Division in Suit No: ID/963//2008.
The Respondent’s claim in the lower court are contained in the Writ of Summons and statement of claim (Pages 1 – 7 of the record) which were basically for an order of court setting aside the sale of Respondent’s property at 32 Lawrence Daniel Close, Ajao Estate Lagos, or in the Alternative an order directing the 1st Defendant (1st Appellant herein) to return to the claimant (Respondent herein) the sum of N2,400,000 (Two Million Four Hundred Naira) the Respondent Invested in the property.
After pleadings, the suit was set down for pre-trial conference in line with the High Court of Lagos State Civil Procedure Rules 2004.
Pursuant to the provisions of Order 25 Rule 6 of the Rules of Court, judgment was entered dismissing Respondents claim on 15/10/2009 (page 71 of the record) for being absent in court, at the time the case was called.
By a motion on Notice dated 19/10/09, the Respondent brought an application to set aside the judgment dismissing his claim and to re-list and/or reschedule the date for continuation of pre-trial conference. The Appellants filed counter Affidavit’
Before the resumption of the Pre-trial conference on 26/11/2009 Appellants were duly notified of resumption of pre-trial conference and the notice was duly acknowledged by counsel. The suit was subsequently adjourned to 7/1/2010 at 10:00am for continuation on which day Appellants and counsel were absent and pre-trial conference was further adjourned to 25/2/10. Notice of adjournment to 25/2/10 was duly received by Appellants. On the 25/2/2010 Appellants and counsel again were not in court to participate in Pre-trial Conference Inspired of notice to them, and had not yet complied with clear Pre-trial orders of court. The Honourable Judge invoked the sanction provisions of order 25 Rule 6 of the Rules of Court and entered judgment for the claimant.
It is against the said judgment; that the Appellant have appeared to this court vide their Notice of Appeal dated 6/12/10 filed with the leave of this court granted on 1/12/10. From the Four (4) grounds of Appeal contained in said Notice of Appeal, the Appellants formulated the sole issue for determination in this appeal to wit:-
“were the High Court of Lagos (Civil Procedure) Rules 2004 (particularly Order 25 Rule 6 thereof) and/or the Constitutional Issue of fair hearing duly observed by the trial judge in the proceedings of 25/02/10 when she entered judgment in this suit for the claimant?
On the other hand the Respondent did not formulate any issue, but proceeded on arguments based on the sole issue as formulated by the Appellants.
Learned counsel to the Appellants Mbamalu Esq, submitted that this suit was dismissed on 15/10/09 for want of diligent prosecution. The claimant, now Respondent by motion date 19/10/09 prayed for the setting aside of the order dismissing the suit and a further order relisting the suit for continuation of pre-trial conference. The claimants’ motion aforesaid in 25/2/10 in the absence of the Defendants /Appellants without hearing notice to them was not only heard, entertained and granted by the trial court on the same day. Judgment was entered to the Respondent in terms of his statement of claim.
Learned counsel further submitted that the proceedings of the lower court in this suit on 25/02/10 breached Section 36 of the Constitution of the Federal Republic of Nigeria 1999 See:- Amanchukwu v. Federal Republic of Nigeria (2009) All FWLR (Pt.465) 1672 at 1679 paragraphs G – H.
Learned counsel submitted further that the trial judge can not in law sanction the appellants when in the first place the provisions of Order of 25 Rule 1(2) requiring the judge to “Cause to be issued to the parties and their legal practitioner a pre-trial conference notice as in FORM 17 ——–” was not done. The law here is that, the judgment must first be set aside, and the suit relisted before pre-trial conference can be rescheduled again invoking Order 25(1) & (21 of the Rules of the Lower Court.
Learned counsel submitted further that No hearing Notice Cognizable in law was given to the Appellants of the entire proceedings of 25/02/10. The learned trial judge erroneously treated as a hearing notice of the events of 25/02/10, a letter from the Respondent’s counsel informing him of the proceedings of 26/11/09. The letter aforesaid with the affidavit of its service is not a hearing notice. It was not backed by any court order. It was merely a correspondence borne out of professional camaraderie. See Ancel v. Coop , Bank (2004) All FWLR (Pt. 209) 1039 at 1063 Paragraphs A: Anuwah Transp.ort (Nig.) Ltd v. Ovinola Atanda Transport (Nig.) Ltd (1998) 6 NWLR (Pt. 553) 684 at 609.
Learned counsel submitted further that even if the respondent counsel’s letter could go for a hearing Notice, it clearly related to the proceedings of 26/11/09 and cannot be employed to Justify the one sided proceedings of 25/2/10.
Learned counsel further submitted that the trial court was in grave error by deeming as adopted, the Appellants written address against the Respondent’s motion dated 19/10/09. Unlike the Rules of this court no provisions of the Rules of the High Court of Lagos State empowers the lower court to deem as adopted, counsel’s address who was absent, having not been competently notified of the proceedings where his address was deemed adopted See: Maja v. Samouris (2002) FWLR (Pt. 98) 825 at 836 – 837: Menkiti v. Menkiti (2000) FWLR (Pt. 2) 293 at 385.
Learned counsel submitted further that, this court should hold that the judgment delivered on 25/02/10 relying on Order 25 Rule 6 without hearing the Appellants was in breach of their constitutional right to fair hearing See:- AGF V. Abacha (2011) All FWLR (Pt. 566) 445 at 474
In reply to the Appellants counsel’s submission, C. E. Ike Esq, learned counsel to the Respondent submitted that, the learned pre-trial judge was right to have entered judgment against the Appellants in the light of the clear wordings of Order 25 Rule 6, rules of the lower court. There is absolutely no breach of Section 36 of the 1999 Constitution by the proceedings of the lower court. The position before the proceedings of 25/2/10 was, after the proceedings of 15/10/2009 when Respondent’s claims were dismissed. Respondent’s application for extension of time of pre-trial period was granted within a space of 7 week after it was made. Appellants were aware of the application, having been served with the acknowledge copy of the application for extension of pre-trial period attached as an Exhibit to the Respondents motion dated 19/10/2009. The Appellants were then written a formal letter duly acknowledge by counsel informing counsel of resumption of pre-trial conference on 26/11/2009 (pages 88 – 89 of the record).
Learned counsel submitted further that, on the 26/11/2009 as a result of a public holding the suit was adjourned till 7/1/2010 at 10: am for Pre-trial conference. At the proceedings of 7/1/2010 Appellant’s and counsel were absent in court and the Honourable Judge reminded Respondents’ counsel who was in court to comply with the courts directive to formulate new issues. After the proceedings of 7/1/2010 respondents counsel formulated fresh issues for determination, Appellants counsel was served with the fresh issues for determination, and again notified of the continuation of Pre-trial conference for 25/2/10. The notice was duly acknowledged by Appellant’s counsel (page 110 of the record). However, at the adjourned date of 25/2/2010 Appellants and counsel again were not in court. On that date too, Appellants were yet to comply with two pre-trial orders of court of 25/6/2006. In the circumstance therefore, the Appellants should be deemed to have waived their rights. See: NDIC V. Sheriff (2004) 1 NWLR (Pt. 855) 563.
Learned counsel furthered his submission that, plethora of decided cases abound on the duty of a court with respect to fair hearing principle, to provide for the litigants an independent and impartial platform to determine their civil rights and obligations within a reasonable final. The right of a party to fair hearing within a reasonable time imposes also a correlative duty on a court not to allow itself to be bogged down by the antics of a party who by his action has voluntarily opted out of the proceedings. See:- Achuzia V. Ogbomah (2004) All FWLR (Pt..227) 521: Solanke v. Somefun (1974) 1 S.C 141: Khalil v. Yar’Adua (2004) All FWLR (Pt.225) 138.Learned counsel submitted further that to argue after granting Respondents motion to relist suit and continue Pre-trial conference, the court ought to cause to be issued to parties and counsel fresh “form 17” notice for pre-trial conference, that argument is misconceived Order 25 Rule 6 from which the pre-trial judge derives the power of sanction either dismiss claimant’s claims or enter judgment against the Defendant is quite clear that such a judgment made under the order is not final if an application is made within 7 days to set it aside.
Learned counsel submitted further that it is conceded that notices were by way of counsels letter to Appellant’s counsel but the letters on the two occasions were duly received and acknowledged by Appellants counsel. The Appellants by that became aware of the pendency of the suit they were duty bound out of the respect for the court to appear on the date so notified. See Achuzia v. Ogbomah Supra.
Learned counsel further submitted that contrary to the Appellants submission, the pre-trial judge was right to deem as adopted Appellants processes before the court there is nothing in the rules of the lower court that precluded the court from doing so. The important thing is that the pre-trial judge thoroughly considered the processes in her Ruling since the Appellant had refused to participate in the proceedings. See: Newswatch Communications Ltd v. Atta (2006) 1 NWLR (Pt. 211) 225.
Learned counsel submitted finally that the pre-trial judge’s discretion in the proceedings of 25/2/10 cannot be faulted considering the peculiar circumstances of this case. There was no miscarriage of justice and this court should dismiss the appeal.
On the part of the court, submissions of counsel is carefully examined. The controversy in this appeal is brought to a very narrow margin. The grouse of the Appellants is that the proceedings of the pre-trial conference of the 25/02/10 was done in gross violation of their constitutional right to fair hearing, which is guaranteed by Section 36 of the Constitution of the Federal republic of Nigeria. The Appellants contention is that no hearing Notice Cognizable in law was given them, of the entire proceedings of 25/02/10. The Respondent at page 6 of their brief of argument admitted in paragraph 4.10 that the two (2) notices served on the Appellants (which is conceded) were by way counsel’s letter to Appellants counsel, but both duly acknowledged by the same counsel. These notices informed the learned trial judge’s decision to enter judgment in default of the appearance of Appellants at the pre-trial stage. The main issue therefore in this appeal is to determine whether those letters of counsel can satisfy the due process of court to be served on the parties, which also will serve as the foundation for the court in the first place to assume jurisdiction.
The learned counsel to the Respondent conceded or admitted that the hearing notices served on the Appellants were his letters two (2) in number. It is trite that facts admitted need no further proof. The Supreme Court per Aniagolu JSC (as he then was) Chief Chukwuemeka Odumegwu Ojukwu v. Dr. Edwin Onwudiwe & Ors (1984) S.C 15 at 88, stated thus:-
“Another principle deeply enshrined in our jurisprudence is that admissions made do not require to be proved for the simple reason, amongst others that “out of the abundance of the heart the month speaketh”
and that no better proof is required than that which an adversary wholly and voluntarily owns upon.”
See also:- Seismograph services (Nig.) Ltd v. Chief Keke Ogbenegweke. Evnafe (19761 9 & 10 SC. 135: Mosheshe General Merchants Ltd v. Nigeria Steel Products Ltd (1987) 4 SC 152 at pp. 159 – 170 and 171: Ezeoke and Ors v. Moses Nwagbo & Anor (1988) 1 NWLR 616 at 626.
Now let me return to whether those two letters of the counsel to Respondent, served on the Appellants, for the Pre-trial conference, have satisfied the due process of court to be served on parties for appearance before the court. This court has since pronounced on this issue that those letters of counsel, did not and could not take the place of a due process of court, to make a party bound by it. This court in the case of Amuwah Transport Nig. Ltd v. Oyinlola Atanda Transport Nig. Ltd (1998) 6 NWLR (Pt. 555) 684 at 690 paragraph c, stated:-
“When deciding a case a court of trial must give parties opportunity of a fair hearing by being satisfied that all the due processes of court have been served on all the parties.”
In the instant appeal, it is a fact already admitted that, the due process of court was not served on the Appellants, which negatively impacted on the proceedings of the 25/02/10 before led lower court.
Let me add here also that it is trite on effect of violation of the principle of ‘audi alteram partem’ causing injustice to any party, as it did to the present Appellants, any judgment delivered amounts to a miscarriage of justice and should be declared a nullity See:- Yakubu v. Gov. Kogi State (1995) 8 NWLR (Pt.414) 386; U.B.N. Ltd. v. Nwaokolo (1995) 6 NWLR (Pt.400) 127; Mr. Yesufu Amuda Garba & Ors. v. The University of Maiduguri (1986) 2 S.C. 128 at 271; Madukolu & Ors. v. Nkemdilim & Ors. (1962) 1 All NLR 582..
On the whole therefore, in the absence of any competent hearing notice from the lower court, served on the Appellants, the proceeding of the 25/02/10 and the judgment rendered on that date relying on Order 25 Rule 6 of the High Court of Lagos State (Civil Procedure) Rules 2004 amounted to a miscarriage of justice and it is hereby set aside by this court.
In the final analysis this appeal is meritorious, and it is hereby allowed by this court.
(1) The judgment delivered by Hon. Justice L. A. Okunnu in Suit No: ID/963/2008 delivered on the 25th of October 2010 is hereby set aside by this court.
(2) This file is by order of this court be remitted back to the Hon. Chief Judge of Lagos State for reassignment to another judge for trial de novo.
(3). Parties to bear their own costs.
AMINA A. AUGIE, J.C.A: I have read the lead Judgment just delivered by my learned brother, Bage, JCA, and I absolutely agree with his reasoning and conclusion.
He has highlighted the facts of the case, and dealt extensively with the sole issue at stake in this appeal. I have nothing useful to add except to reiterate the point made. 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 – see Integrated Builders V. Domzaq Ventures (Nig.) Ltd. (2005) 2 NWLR (Pt. 909) 97; Otobaimere v. Akporehe (2004) 14 NWLR (Pt.894) 591; & Ngige v. Achukwu (2005) 2 NWLR (Pt. 909) 123. In other words, no Court has jurisdiction to entertain any Suit in which processes are not served or properly served.
In this case, the Appellants were not served with hearing notice of the proceedings of 25th of February 2010 because in the eyes of the law, the correspondence between counsel does not qualify as hearing notice. The Respondent’s counsel was on his own when he elected to serve the Appellants’ counsel by letter; there was no Court order to back the letter. Consequently, the lower Court fell into serious error when it proceeded to treat the letter as proper service that will enable it assume jurisdiction. It is a different matter altogether if the lower Court had made an order authorizing service of process through the said Respondent’s Counsel. But there was no such order, and the aftereffect of this monumental error is that the Judgment of 25th February 2010 is a nullity, which must be set aside by this Court. In the circumstances, I also allow the appeal, and I abide by the consequential orders in the lead Judgment including costs.
RITA NOSAKHARE PEMU, J.C.A: I have read in draft the judgment just delivered by my brother Sidi Dauda Bage J.C.A.
I agree entirely with his opinion and conclusion that the appeal be allowed.
I also abide by the consequential order made that there shall be no order as to costs.
Appearances
O.F. Anichebe (Miss.)For Appellant
AND
Chidi Ike,
C. Okechukwu (Miss.)For Respondent
