PETER ANOLIEFO v. MARK OSEGBO
(2018)LCN/11975(CA)
In The Court of Appeal of Nigeria
On Monday, the 16th day of July, 2018
CA/E/215/2010
RATIO
COURT AND PROCEDURE: FAILURE TO GIVE NOTICE OF PROCEEDINGS
“Failure to give notice of proceedings to the opposing party in a case where service of process is required is a fundamental omission which renders the proceedings a nullity. This is because the Court has no jurisdiction to entertain a suit where any of the parties was not served process. See Compaguie Generale De Geophysique (NIGLT) CGG Nig. Ltd vs. Aminu (2015) LPELR-24463 SC. However, a party who has failed or neglected to get his case heard cannot complain of lack of fair hearing. See the decisions of the Supreme Court in Oyeyipo vs. Oyinloye (1987), NWLR (Pt. 50) 356, Chime vs. Ude (1996) 7 NWLR (Pt. 461) 379. A party who chooses to stay away from Court after the opportunity has been given to him to present his case cannot dangle Section 36 (1) of the Constitution as a magic wand before the Court. See Ezechukwu & Anor vs. Onwuka (2016) LPELR-26055 SC. At page 32 of the latter case Peter – Odili JSC in a rather terse language stated the position of the law thus: ‘For emphasis, it needs to be said that since the trial Court had ascertained that the hearing notice was properly served on the Appellants, there was no extra requirement that fresh hearing notice should be served on the Appellants on every adjourned date as the Court was satisfied that the opportunity to be heard was afforded the Appellants and their keeping away was their choice and the repercussions they must live with and it does not lie in their mouth that the Court below ought to have allowed their appeal as they were not served on each adjourned date thereafter.'” PER JAMES SHEHU ABIRIYI, J.C.A.
COURT AND PROCEDURE: STATUTE OF LIMITATION
“Where a statute of limitation prescribes a period within which an action should be brought; legal proceedings cannot be properly instituted after the expiration of the prescribed period. An action instituted after the expiration of the prescribed period is said to be statute – barred. For the purpose of statute of limitation time begins to run from the date the cause of action accrues. See the decisions of the Supreme Court in Osun State Government vs. Dalami Nigeria Ltd (2007) all FWLR (Pt. 365) and Jallco Ltd vs. Owoniboys Tech. Serv. Ltd (1995) 4 NWLR (Pt. 391 534.” PER JAMES SHEHU ABIRIYI, J.C.A.
JUSTICES
OYEBISI FOLAYEMI OMOLEYE Justice of The Court of Appeal of Nigeria
JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria
SAIDU TANKO HUSSAINI Justice of The Court of Appeal of Nigeria
Between
PETER ANOLIEFO Appellant(s)
AND
MARK OSEGBO Respondent(s)
JAMES SHEHU ABIRIYI, J.C.A. (Delivering the Leading Judgment):
This appeal is against the judgment delivered on 21st September, 2007 in the High Court of Anambra State holden at Onitsha.
In the High Court (the Court below), the Respondent took out the writ of summons under the undefended list against the Appellant as defendant. The matter was however transferred to the general cause list by the Court below for a full blown trial.
The claim of the Respondent against the Appellant on the pleadings was for the sum of Four Hundred and Seven Thousand Naira (N407, 000) being the balance of the loan granted to the Appellant by the Respondent and Two Thousand Naira (N2,000) being charges for bounced cheques. The Respondent also claimed interest at the rate of 10% per annum from 10/9/98 till judgment and thereafter at the rate of 5% per annum till judgment debt is fully liquidated.
After the transfer of the suit from the undefended list to the general cause list for hearing both parties filed and exchanged pleadings.
The record of appeal shows that the Respondent virtually did not participate in the proceedings of Court thereafter. Although the Court below heard evidence from the only witness called by the Respondent, it did not consider this evidence and the written address of counsel for the respondent in the judgment complained of because of the failure of the Appellant to either call evidence or file a written address. The Court below entered judgment in favour of the Respondent and against the Appellant because the averments of the plaintiff were unchallenged, uncontroverted and remained the truth.
The Appellant has approached this Court by a notice of appeal dated 28th September, 2007 and filed 2nd October, 2007. The notice of appeal contains two grounds of appeal. From the two grounds of appeal the Appellant presented the following two issues for determination.
1. Did the learned trial Judge accord the appellant a fair hearing, when he failed to serve the appellant hearing notices, and proceeded to deliver judgment in the suit, without hearing and resolving, the appellant’s motion-on-notice dated 17/09/2007 and filed on the same date, seeking to be allowed to put in his defence?
2. Is the action, the subject of this appeal, statute – barred?
The Respondent adopted the two issues submitted by the Appellant for determination.
Arguing issue 1, learned counsel for the Appellant referred the Court to dates the suit was adjourned without the Court issuing hearing notices on the Appellant and how in the absence of the Appellant the Court closed the defence of the Appellant and adjourned for judgment after taking the address of learned counsel for the Respondent. Learned counsel for the Appellant pointed out that although the matter was adjourned to 19th September 2007, for judgment, the Appellant filed a motion on 17th September, 2007 to be allowed to defend the suit and the motion was fixed for 19th September, 2007 the day the judgment was to be delivered. The judgment was not delivered on that day but on 21st September, 2007 without hearing the motion to allow the Appellant defend the suit. According to learned counsel for the Appellant although both parties were in Court, the Court proceeded to deliver judgment without allowing the Appellant?s Counsel to move his motion for leave to put in his defence.
Learned counsel for the Appellant submitted that the proceedings of the Court below on 28th November, 2006, 30th November, 2006, 13th February, 2007, 5th March, 2007 and 23rd July 2007, the days on which no hearing notices were issued on the Appellant were a nullity. It was submitted that the Court is bound to make sure that the other party is aware of the pending proceeding. It was submitted that where the trial Court fails to ensure that hearing notices were served, before proceeding with the proceedings the hearing for the day/s the hearing notice/s was not serve is a nullity. The Court was referred to Mankanu vs. Salman (2005) 4 NWLR (Pt. 915) 270 at 292, S.P.D.C. N. Ltd vs. Esowe (2008) 4 NWLR (Pt. 1076) 72 at 82 and S.P.D.C. vs. Niger Optical Ser. Co. (2004) 7 NWLR (Pt. 872) at 420 – 435.
It was submitted that it was a violation of justice for the Court below to proceed and deliver judgment without determining one way or the other the motion on notice filed on 17th September, 2007 and pending before it. It was submitted that a Court of law is enjoined to determine pending applications before judgment is delivered. We were referred to Ogboru vs. Ibori (2005) 13 NWLR (Pt. 942) 319 at 420.
It is no defence, it was submitted, that the attention of the Court was not drawn to the motion particularly when a decision on the motion is relevant to the outcome of the case. We were referred to Mokwe vs. Williams (1997) 11 NWLR (Pt. 528) 309 at 321.
It was submitted that the neglect or refusal by the Court below to determine the motion dated and filed 17th September before delivering its judgment, amounted to the Court below denying the Appellant, fair hearing. The Court was referred to Savannah Bank (Nig) Ltd vs. S.I.O Corporation (2001) 1 NWLR (Pt. 693) 194 at 208.
On issue 2, learned counsel for the Appellant submitted that the matter was transferred to the general cause list because the Appellant raised the issue of statute of limitation in the notice of intention to defend. Learned counsel for the Appellant also submitted that the issue of statute of limitation was raised in the statement of defence of the Appellant and the Respondent did not reply to it. The Respondent is therefore deemed to have accepted that he was last paid on 15th November, 1999 and that the action became statute barred on 15th November, 2005 while the action was instituted on 22nd December, 2005.
This means that the facts averred to by the Appellant in paragraphs 12 and 13 of the statement of defence are unchallenged, uncontroverted and deemed accepted, it was submitted.
It was submitted that the facts pleaded in paragraphs 12 and 13 of the statement of defence are supported by the evidence led by the Respondent.
It was submitted that when Exhibit B is placed side by side with the evidence of the only witness for the Respondent, it becomes clear that payment was made on 15th September, 1999 and that thereafter the Appellant did acknowledge the debt. The Court was referred to Section 20 (1) of the Actions Law, Cap 3, Revised Laws of Anambra State of Nigeria 1991.
It was submitted that the cause of action, in this suit accrued in 1998 as pleaded in paragraphs 7 – 9 of the statement of claim and the dates of the two cheques that bounced. It was submitted that six years from 10th September, 1998 will be 10/9/04 while six years from 15th September, 1998 will be 19th September, 2004. On when a cause of action accrues, the Court was referred to FRIN vs. Gold (2007) 11 NWLR (Pt. 1044) 1 at 18 and Egbe vs. Adefarasin (1987) 1 NWLR (Pt. 47) 1.
The Court below, it was submitted, was bereft of jurisdiction to hear the matter.
It was contended that even if the cause of action arose on 15th November, 1999 when the Appellant paid the sum of One Hundred Thousand Naira (N100, 000) to the Respondent, the action would still be statute barred.
It was submitted that the action was statute barred and liable to be dismissed.
On issue 1, learned counsel for the Respondent submitted that fair hearing entails giving a person the opportunity to be heard before a decision is reached. Learned counsel for the Respondent pointed out that the Appellant’s counsel filed a notice of intention to defend. The Court transferred the suit to the general cause list after taking argument from counsel.
On 30/11/2006, Appellant and his counsel were absent from Court. The Court heard evidence and ordered that hearing notice be served on the Appellant or his counsel against 7th December, 2006 for continuation of hearing. The Court was referred to page 62 line 20 of the record of appeal. That the A.C.R issued a hearing notice and got the bailiff of Court to serve on Appellant’s counsel on 5th December, 2006. The Court was referred to page 001 of the supplementary record of appeal and another hearing notice dated 23rd April, 2007 served on the Appellant’s counsel. That Appellant’s counsel appeared on 26th April, 2007 and requested for time to put in Appellant’s defence and was obliged. The Court was referred to page 64 of the record of appeal.
On 11th May, 2007 Appellant’s counsel filed Appellant’s list of witnesses, Appellant’s list of exhibits and statement on oath of the Appellant’s witness. On 18th June, 2007 Appellant’s counsel filed Appellant’s deposition.
Learned counsel for the Respondent reproduced a portion of the judgment of the Court below pointing to the fact that the suit was adjourned on several occasions to enable the Appellant defend the suit but he failed, refused and neglected to come to Court.
With regards to the motion filed 17/9/2007, it was submitted that the motion was smuggled into the record of appeal as it never existed before the Court below. If the motion had existed before the judgment was delivered, Appellant’s counsel would have drawn the attention of the Court to it, it was contended.
The Appellant’s counsel, it was pointed out, had applied on 26th April, 2007 for extension of time to put in the Appellant’s defence and the prayer was granted with costs of N5, 000. There was therefore no need for a motion on notice praying for extension of time to put in the Appellant’s defence. The motion it was argued is part of the Appellant’s manipulations to give the impression that he was deprived of fair hearing which is not the case.
On whether the action was statute barred or not, it was pointed out that the Appellant is asking the Court to make a pronouncement that the Respondent’s claim was statute barred.
Yet he is at the same time urging the Court to set aside the judgment of the Court below and remit the suit to the Onitsha High Court for retrial. But in his brief or argument, the Appellant, is urging the Court to allow the appeal, set aside the judgment of the Court below and dismiss the claim.
It was submitted that the two prayers are inconsistent. On the one hand, the Appellant is alleging that he did not get fair hearing as no hearing notices were served and his motion was not heard. On the other hand, the Appellant is asking the Court to pronounce that the suit is statute barred.
It was submitted that if the Appellant is calling on the Court to allow his appeal, to set aside the judgment of the Court below and dismiss the Respondent’s claim, it presupposes that the Court below – conducted a fair and proper trial.
It was submitted that on 3rd April, 2006 counsel addressed the Court below on the issue of whether or not the suit was statute barred but the Court below overruled the Appellant’s contention that the suit was statute barred and the suit was transferred to the general cause list. The Appellant, it was submitted, did not appeal against the rejection of the Appellant’s contention that the suit was statute barred.
Failure to give notice of proceedings to the opposing party in a case where service of process is required is a fundamental omission which renders the proceedings a nullity. This is because the Court has no jurisdiction to entertain a suit where any of the parties was not served process. See Compaguie Generale De Geophysique (NIGLT) CGG Nig. Ltd vs. Aminu (2015) LPELR-24463 SC. However, a party who has failed or neglected to get his case heard cannot complain of lack of fair hearing. See the decisions of the Supreme Court in Oyeyipo vs. Oyinloye (1987), NWLR (Pt. 50) 356, Chime vs. Ude (1996) 7 NWLR (Pt. 461) 379. A party who chooses to stay away from Court after the opportunity has been given to him to present his case cannot dangle Section 36 (1) of the Constitution as a magic wand before the Court. See Ezechukwu & Anor vs. Onwuka (2016) LPELR-26055 SC. At page 32 of the latter case Peter – Odili JSC in a rather terse language stated the position of the law thus:
‘For emphasis, it needs to be said that since the trial Court had ascertained that the hearing notice was properly served on the Appellants, there was no extra requirement that fresh hearing notice should be served on the Appellants on every adjourned date as the Court was satisfied that the opportunity to be heard was afforded the Appellants and their keeping away was their choice and the repercussions they must live with and it does not lie in their mouth that the Court below ought to have allowed their appeal as they were not served on each adjourned date thereafter.’
In the instant case the Court below showed its frustration with the Appellant not only in its judgment but earlier during the proceedings. In the judgment at page 66 – 67 the Court below stated thus:
‘This suit was adjourned on several occasions to enable the defendant defend this suit, but he failed, refused and neglected to come to Court to defend this suit.’
In the course of proceedings the Court below had reason to order the Appellant twice to pay costs of N5,000 each for delaying the proceedings of the Court.
In his brief of argument, the Appellant’s counsel has pretended that the Appellant was not well that was why he did not attend Court. That the evidence of this is attached to an affidavit in support of a motion he filed after the lower Court had adjourned the suit for judgment. Surely that cannot be the place to find the evidence of ill – health of the Appellant. I have gone through the proceedings of the Court from when the matter was first mentioned in Court up to the date of judgment.
The Appellant’s counsel nowhere attempted to excuse the absence of the Appellant from Court. Although Appellant’s counsel attended Court to urge the Court to dismiss the suit for being statute barred and was in Court after service of Respondent’s address on him, he did not tell the Court that the Appellant was not well. He only asked for the Court’s indulgence to allow the Appellant defend the suit. Therefore the claim by Appellant’s counsel that the Appellant was not well has no basis. It is not borne out by the record of appeal. Appellant merely refused to attend Court and put up a defence, if he had any.
The learned counsel for the Appellant gleefully urged the Court to set aside the proceedings of 28th November, 2006, 30th November, 2006, 13th February, 2007, 5th March, 2007 and 23rd July, 2007 having been conducted without service of hearing notices on the Appellant. On 3rd April, 2006 when the suit was adjourned to 11th July, 2006 for hearing learned counsel for the Appellant was in Court. On the 11th July, 2006 when hearing was to commence, appellant’s counsel was absent and did not excuse his absence. On 21st September, 2007 when the judgment was delivered, the learned counsel for the Appellant was in Court though no service of hearing notice was effected on him. On the date fixed for address, that is 26th April, 2007 Appellant’s counsel was in Court although no hearing notice was served on him.
The learned counsel for the Appellant has referred to certain dates the case was adjourned to which are not in the record as adjournments off record. All these show that the Appellant was aware of the various adjournments of the matter. Yet he only chose to attend Court on 14th February, 2006 and 3rd April, 2006 to urge the Court to dismiss the suit for being statute barred.
When the matter was adjourned for hearing, he refused to attend Court until the day it was fixed for address. He appeared on that day 26th April, 2006 to mock the Court below with a request that the Appellant be allowed to defend himself. Although the Court below over – indulged him by granting the prayer, the Appellant made no attempt to defend the suit uptil the date judgment was delivered. I am not unmindful of the claim by the Appellant’s counsel that he filed a motion to be allowed to defend the suit a couple of days to the date fixed for judgment. If that it so, that motion to say the least was an insult to the Court below.
The Court below had already over – indulged him by allowing the Appellant defend himself as far back as 26th April, 2006. This probably explains why the Appellant’s counsel refused to draw the attention of the Court below to the motion filed on 17th September, 2007 on date the judgment was delivered even though he was present in Court. He knew he would incur the wrath of the Court if he drew the attention of the Court to such a motion.
It is clear from the foregoing that the Appellant deliberately chose to stay away from the trial after having failed to persuade the Court below to dismiss the action on the ground that it was statute barred. He came to Court to disrupt the case that had been fixed for address and came again to disrupt the Court from delivering judgment with a purported motion for a prayer already granted him on 26th April, 2007 to defend the suit.
The Appellant was given the opportunity to defend himself and he deliberately abused the opportunity. He cannot therefore accuse the Court of not making orders for hearing notices to be served on him and that no hearing notices were served on him on some specified dates the matter came up for hearing. There was no need for service of fresh hearing notice on every adjournment of the case. See Ezechukwu & Anor vs. Onwuka (supra). Parties should cooperate not only between or amongst themselves but with trial Courts for the speedy dispensation of justice. The attitude of hide and seek which the Appellant seeks to promote in this case should not be encouraged. When parties are before trial Courts, they should if for any reason they were not in Court at any previous adjournment of the case enquire from the Registry of the trial Court when the matter is coming up again; and not relax expecting hearing notices to be served on them. Where they have made such enquiries, they should attend Court on the next adjourned dates not as in this case where the Appellant’s counsel apparently made such enquiries and only attended Court on some of the dates convenient to him.
As I pointed out earlier, learned counsel for the Appellant claimed to have filed a motion on 17th September, 2007 which was fixed for hearing on 19th September, 2007, the same date the judgment of the Court had been adjourned to. Unfortunately the judgment was not delivered on that day but on 21st September, 2007. This means that the Court did not sit on the date fixed for the motion. Learned counsel for the Appellant did not show this Court if the motion was then fixed for another date and what date if it was fixed for another date what that date was. Having failed to do so, he cannot accuse the Court of not hearing the motion which was filed after the matter had been adjourned for judgment. Apart from this, learned counsel for the Appellant was in Court on the 21st September, 2007 when the judgment was delivered and he did not inform the Court that he had a motion on notice which he wanted to move. As I pointed earlier, the learned counsel for the Appellant was dumb to the Court about the motion in order not to incur the wrath of the Court against him since the motion was praying for an order to allow the Appellant to defend the suit which prayer was already granted him as far back as 26th April, 2007. Learned counsel for the Appellant knew that the motion filed on 17th September, 2007 for the same prayer after the matter had been adjourned and fixed for judgment was intended to mock the Court below. That is why he could not draw the attention of the Court to the motion seeking to be allowed to defend the suit having been granted the indulgence earlier.
Appellant having been granted the prayer to be allowed to defend the suit, the Court below did not have to hear the motion filed for the same prayer.
From all I have stated above, issue 1 should be resolved against the Appellant in favour of the Respondent. I accordingly resolve the said issue 1 against the Appellant and in favour of the Respondent.
Where a statute of limitation prescribes a period within which an action should be brought; legal proceedings cannot be properly instituted after the expiration of the prescribed period. An action instituted after the expiration of the prescribed period is said to be statute – barred.
For the purpose of statute of limitation time begins to run from the date the cause of action accrues. See the decisions of the Supreme Court in Osun State Government vs. Dalami Nigeria Ltd (2007) all FWLR (Pt. 365) and Jallco Ltd vs. Owoniboys Tech. Serv. Ltd (1995) 4 NWLR (Pt. 391 534.
On 3rd April, 2006, learned counsel for the Appellant urged the Court below to dismiss the suit because it was statute barred on the following mono – sentence argument:
‘That a period of six years has expired therefore making the action statute barred.’
Learned counsel for the Respondent opposed the application for the dismissal of the suit on the ground that it was not statute barred. That the Respondent is not a money lender. That the Respondent only granted a friendly loan to the Appellant. The Court below did not rule one way or the other, that is whether or not the suit was statute barred. It did not rule on the issue either in the judgment.
But learned counsel for the Appellant has not complained against the failure of the Court below to rule one way or the other on whether the action was statute barred.
However, since the Court below did not dismiss the suit as prayed on the ground that it was statute barred, the inference is that the Court took the position that the action was not statute barred. That was why it proceeded to determine the matter on the merit.
No Court should leave its decision to inference. The Court must always take a decision one way or the other and pronounce on it.
Both in the Court below and in this Court the learned counsel for the Appellant has not shown why the action is statute barred. Section 20 of the Actions Law, Cap 3, Revised Laws of Anambra State was not relied upon in the Court below. That section deals with actions in simple contract or tort. He has made no attempt to show into what category this action falls. Did the action arise from a contract between the parties? Was it based on any tortious action against the Appellant by the Respondent? The Court is left to conjecture. I have read the statement of claim over and over and I am of the view that the claim neither sounds in contract nor tort. I have read the statement of defence too and it nowhere suggests that the action is in respect of a contract between the parties or a tortious action against the Appellant.
The arguments and submissions of learned counsel for the Appellant that the action was statute barred are baseless.
Issue 2 is therefore resolved against the Appellant and in favour of the Respondent.
Both issues having been resolved against the Appellant and in favour of the Respondent, the appeal is hereby dismissed.
Respondent is awarded One Hundred Thousand Naira (N100,000) costs which shall be paid by the Appellant.
OYEBISI FOLAYEMI OMOLEYE, J.C.A.: I had the opportunity of reading in draft form the leading judgment in this appeal just delivered by my learned Brother, James Shehu Abiriyi, J.C.A.
I am at one with His Lordship for the reasons stated in the said leading judgment that the appeal is devoid of merit and also dismiss it. I abide by the consequential orders made therein including that of costs.
SAIDU TANKO HUSSAINI, J.C.A.: I agree.
Appearances:
Chudi Obieze, Esq.For Appellant(s)
A. Ubah, Esq.For Respondent(s)
