PETROFER (NIG) LTD v. 8 BALLS RESOURCES LTD
(2020)LCN/15208(CA)
In The Court Of Appeal
(OWERRI JUDICIAL DIVISION)
On Tuesday, March 31, 2020
CA/OW/179/2016
Before Our Lordships:
Ayobode Olujimi Lokulo-Sodipe Justice of the Court of Appeal
Ita George Mbaba Justice of the Court of Appeal
Ibrahim Ali Andenyangtso Justice of the Court of Appeal
Between
PETROFER NIGERIA LIMITED APPELANT(S)
And
8 BALLS RESOURCES LIMITED RESPONDENT(S)
RATIO
WHETHER OR NOT SUMMARY JUDGEMENT IS A DISTINCT OR SPECIAL PROCEEDING
I am of the considered view that it is clear as crystal from the provisions of the extant rules of the lower Court re-produced herein before, that “summary judgment” is a distinct, separate or special proceeding, and that the proceeding expressly does not require the filing of a statement of claim until the lower Court grants the Appellant leave to defend the action. The special proceeding of or for “summary judgment” even though commenced by the filing of a motion on notice, in my considered view is different from a motion on notice filed in a case commenced by way of writ of summons or some other form of commencement of an action. In other words, a motion on notice for “summary judgment” is not the same as an interlocutory proceeding by way of motion on notice, taken out in the course of adjudication in a substantive action. PER LOKULO-SODIPE, J.C.A.
WHETHER OR NOT A COURT OF RECORD IS REQUIRED TO KEEP RECORDS OF PROCEEDINGS
The law is settled to the effect that a Court of record such as the lower Court is, is enjoined to thoroughly keep records of proceedings. This is because, the record of proceedings is the only authentic account of what took place inside the Court room – the seat of justice. It is the final reference material of events, step-by-step, stage by stage of all that took place in the seat of justice. See the cases of JOSIAH V. STATE (1985) LPELR-1633(SC); NGIGE V. OBI (2006) LPELR-12920(CA); and CANDIDE-JOHNSON V. EDIGIN (1990) LPELR-20108(CA) amongst many others. PER LOKULO-SODIPE, J.C.A.
WHETHER OR NOT A COURT PROCESS NOT MOVED BY THE PARTY WHO INITIATED IT SHOULD BE DISMISSED
In my considered view, the position of the law would appear to be settled that a Court process which is not moved in Court by a party who initiated it, is as good as having not been filed and should be dismissed. See the case of AGA V. ONAH (2012) LPELR-22103(CA). PER LOKULO-SODIPE, J.C.A.
EFFECT OF FAILURE TO OBSERVE THE PRINCIPLE OF FAIR HEARING
One of the cases in which the matter was examined in recent times, is that of ZENITH PLASTICS INDUSTRIES LTD V. SAMOTECH LTD (2018) LPELR-44056 (SC). In the said case the Supreme Court stated thus: –
“The effect of failure to observe the principle of fair hearing is that the proceedings are null and void, no matter how well conducted. His Lordship, Tobi, JSC had this to say in Orugbo & Anor. Vs Una & Ors. (2002) 16 NWLR (Pt.792) 175 @ 199 A-D:
“The fair hearing principle entrenched in the Constitution is so fundamental in the judicial process or the administration of justice that breach of it will vitiate or nullify the whole proceedings, and a party cannot be heard to say that the proceedings were properly conducted and should be saved because of such proper conduction.
Once an appellate Court comes to the conclusion that there is a breach of the principle of fair hearing, the proceedings cannot be salvaged as they are null and void ab initio. After all, fair hearing lies in the procedure followed in the case, not in the correctness of the decision.
Accordingly, where a Court arrives at a correct decision in breach of the principle of fair hearing, an appellate Court will throw out the correct decision in favour of the breach of fair hearing, See generally: …”
(Underline provided by me). PER LOKULO-SODIPE, J.C.A.
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.(Delivering the Leading Judgment): The appeal is against the judgment delivered on 22/2/2014 by the High Court of Justice, Abia State, Osisioma Judicial Division, presided over by Hon. Justice Obisike Oji (hereafter to be simply called “the lower Court” and “learned trial Judge” respectively).
The Respondent as Claimant/Applicant commenced the proceedings that have resulted in the instant appeal, against the Appellant as Defendant, by a motion on notice dated 18/12/2014, and filed on the same date. The motion which was marked “Undefended List” was brought pursuant to Order 11 of the Abia State High Court (Civil procedure) Rules 2014, and under the inherent jurisdiction of the lower Court. The order which the Respondent prayed for in the motion reads:
“To enter summary judgment in favour of the claimant/applicant in terms of their claim herein as the Defendant/Respondent has no defence to the said suit.”
On pages 7-62 of the records of appeal are the following processes: (i) Pre-action counselling and ADR Statement; (ii) General Form of writ of summons; (iii)Statement of Claim; (iv) List of witnesses for the Claimant and the statements on oath of Claimant’s witnesses; and List of documents for Claimants and the copies of the said documents.
On page 63 of the records of appeal is the affidavit of service under the hand of one Johnson Izuka Ijioma attesting to the service of the processes which issued in the instant case, on the Appellant. The service of the processes is shown to have been effected on the Appellant on 6/10/2015, through its manager.
The Appellant entered a conditional appearance in the case by a memorandum of appearance dated 5/11/2015, and filed on 11/11/2015. The Appellant filed along with the memorandum of appearance a motion on notice dated 5/11/2015. Therein the Appellant prayed for “An order striking out the suit for want of jurisdiction”. The grounds upon which the application was made as set out therein are:-
“1. That the lifespan of the writ of summons has since elapsed.
2. That the Claimant did not seek and obtain the leave of Court to issue and serve the writ of summons out of jurisdiction.
3. The writ was directed at nobody.”
On 22/2/2016, the lower Court delivered its ruling in respect of the Appellant’s motion praying for the striking out of the instant suit for want of jurisdiction. See pages 85-88 of the records of appeal.
Suffice it to say that the lower Court resolved each of the grounds for the motion against the Appellant in its ruling. The motion having been found to be devoid of merit, was accordingly dismissed with N10,000.00 costs to the claimant (i.e. Respondent herein).
Immediately following the ruling delivered on 22/2/204, is the judgment of the lower Court in the instant case. It reads: –
“This suit is brought under the summary judgment jurisdiction of the Court. In it the claimants claims (sic) for:
“1. The sum of N16,154,820 being the balance of the debt owed the Claimant by the defendant after the supply of 709,537 Liters of DPK to Dangote Cement Factory Obajana Kogi State at the defendants (sic) request.
2. The sum of 5 Million Naira being general damages, for the interest that has accrued in the loan the claimant secured from Diamond Bank over the months that the defendant has unlawfully withheld the claimant’s money.
3. The sum of 1 Million Naira being cost of this proceedings (sic).
4. Interest upon the said sum at the rate of 35% from the date of judgment herein in favour of the Claimant until full liquidation of the debt.”
He also filed a motion along with the writ praying Court to enter judgment for the Claimant, as required by the Rules.
Order II Rule 4 provides that:
“4. Where a defendant served with the process referred to in Rule 2 of this Order intends to defend the suit, he shall within 5 days of service file notice in writing of his intention to defend the suit together with an affidavit setting out the grounds of his defence.”
The defendant was served the writ of summons and all the process in this suit on 06/10/2015. It has not filed any Notice of intention to defend and there is no motion for enlargement of time to do that.
The Claimant has in both the motion to the writ and more particularly in the statement of claim and deposition of its two witnesses stated how the principal sum claimed came about. The Claimant supplied 709,537 Liters of DPK to dangote (sic) Cement Factory Obajana Kogi State as requested and contracted with the defendant. The total amount for that came to N99,335,180 out of which the defendant has paid N83,180,820.00 leaving a balance of N16,154,820.00 of the claimed. Annexed to the writ of summons is the statement of bank account of the claimant into which the defendant made the payments. Also annexed to the writ is the Waybills with which delivery was made.
The Claimant has demanded for payment of the balance and the defendant has failed to heed to the demand.
Apart from the principal sum the claimant is also claiming interest. Our Law on that is that interest may be claimed as a right where it is contemplated by agreement between the parties, or under a mercantile(sic) custom or under a principle of equity such as breach of fiduciary relationship where interest is being claimed as a matter of right, the proper practice is to claim entitlement to it on the writ and plead facts which show such as entitlement in the statement of claim. See EKWUNIFE VS WAYNE (W/A) LTD (1989) 5 NWLR (Pt.122) 422, 445; DANIEL HOLDINGS LTD. VS UBA PLC (2005) 23 NSCQR 175.
Even though the claimant has in the writ claimed entitled (sic) to interest, he has not in the whole guarantee (sic) of his statement of claim shown how he came to be so entitled. Those needs (sic) of his claim must therefore fail.
The principal sum claimed by the claimant is a liquidated sum and so such that is contemplated by Order II. The defendant has not, since served writ, shown any intention to defend the suit.
Judgment is therefore entered for the Claimant against the defendant in the sum of Sixteen Million, One Hundred and Fifty Four Thousand, Eight Hundred and Twenty Naira (N16,154,820.00) being the balance of the debt owed the claimant by the defendant for the supply of 709,537 Liters of DPK at the defendant’s request.
I am aware that the claimant expected (sic) money to serve the processes in this suit on the defendant outside of the State. The defendant shall pay cost of this suit to the Claimant assessed at One Hundred Thousand Naira. (N100,000.00).”
Being aggrieved with the judgment of the lower Court, the Appellant initiated the instant appeal by lodging at the registry of the said Court on 21/3/2016, a notice of appeal dated 17/3/2016. The notice of appeal contains 5 grounds of appeal.
I will re-produce the grounds of appeal and their respective particulars for reasons which I will later disclose in this judgment. They read: –
“GROUNDS OF APPEAL
GROUND ONE
The learned trial Judge erred in law when he proceeded to give judgment in the suit without the motion for summary judgment being first moved by the Respondent and thereby occasioned miscarriage of justice.
PARTICULARS OF ERROR
1. The Appellant moved her motion challenging the jurisdiction the trial Court on the 10th of February, 2016 and adjourned the suit to the 22nd of February, 2016 for ruling.
2. Upon delivering her ruling on the appellant’s motion and assuming jurisdiction to hear the suit, the trial Court proceeded suo moto on the same day to deliver judgment against the appellant when the Respondent’s motion for summary judgment was still pending.
GROUND TWO
The Honourable trial Court erred in law when it assumed jurisdiction to entertain the suit despite the fact that leave of the Honourable Court was not first had and obtained to issue and serve the originating process outside Abia State.
PARTICULARS OF ERROR
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1. This suit was instituted in the Abia State High Court of Justice.
2. The originating processes were served on the Appellant in Kogi State outside the jurisdiction of the trial Court.
3. Leave of the trial Court was not first had and obtained by the Respondent before the said originating processes were served on the Appellant outside the jurisdiction of the trial Court.
GROUND THREE
The Honourable trial Court erred in law when it proceeded to give judgment on (sic) the suit on the 22nd February, 2016 which was the date fixed only for ruling on the Appellant’s motion challenging the jurisdiction of the Honourable trial Court to entertain the suit thereby occasioning miscarriage of justice.
PARTICULARS OF ERROR
1. The Appellant moved her motion challenging the jurisdiction (sic) the trial Court and the trial Court adjourned the suit to the 22nd of February, 2016 for ruling.
2. Upon delivering her ruling on the appellant’s motion and assuming jurisdiction to hear the suit, the trial Court proceeded suomoto on the same day to deliver judgment against the appellant when the Respondent’s motion for summary judgment was still pending.
3. That the business of the Court on the 22nd of February, 2016 was for the Court to deliver ruling on Appellant’s objection and not for hearing of the substantive case.
GROUND FOUR
That the judgment of the Honourable Court denied the Appellant fair hearing as the Court foreclosed the opportunity legally opened to the Appellant to file his defence.
PARTICULARS
1. That the Appellants filed a motion challenging the jurisdiction of the trial Court and was awaiting the ruling of the Court on the validity of the service of processes on her before taking any further step in the action.
2. That although 22nd February, 2016 was fixed for ruling on the matter only, the trial Court proceeded on that day, upon delivering her ruling against the Appellant, to deliver judgment as well.
3. That the trial Court acted mala fide as her decision to enter judgment without first fixing a date for hearing of the substantive motion for summary judgment was to foreclose any opportunity of the Appellant’s filing their Notice of Intention to defend and other processes out of time with the leave of Court.
4. That the Appellant whose processes were ready and awaiting filing depending on the outcome of the ruling of the Court were thereby shut out and denied an opportunity to defend the suit.
GROUND FIVE
The learned trial Court erred when it gave judgment in favour of the Respondent despite the fact that evidence adduced by the Respondent was not sufficient to establish his claim.
PARTICULARS OF ERROR
1. The materials placed before the trial Court by way of affidavit evidence were not sufficient to establish the Respondent’s claim.
2. The purported contract agreement between the parties was not exhibited.
3. That the terms of the said agreement (if any) were not made available before the Court.
4. The judgment was therefore not founded on credible evidence.”
The relief sought by the Appellant as contained in the notice of appeal are: (i) to allow the appeal; and (ii) to set aside the judgment of the High Court of Justice Osisioma delivered on Monday 22nd February, 2016.
The appeal was entertained on 30/1/2020. Learned counsel Happiness – Okere (Mrs.) holding brief for Omeje Aruwa,in urging the Court to allow the appeal, relied on and adopted the Appellant’s brief of argument dated 10/7/2017 and filed on 28/7/2017, but deemed as having been properly filed on 6/12/2017. In the same vein, learned counsel ChukaIguh, relied on and adopted the Respondent’s brief of argument dated 10/4/2018 and filed on 13/4/2018, in urging the Court to dismiss the appeal.
The Appellant formulated 5 issues (which were not tied to the grounds of appeal), for the determination of the instant appeal. They read: –
“1. Whether the judgment of the trial Court delivered without the motion to hear the suit as Undefended being first heard and determined was valid in law.
2. Whether the Honourable trial Court was right to have proceeded to give judgment on the substantive case on a date fixed for ruling on motion on notice.
3. Whether the Appellant was denied fair hearing by the trial Court.
4. Whether the Honourable trial Court was vested with jurisdiction over the case even though leave to issue and serve the originating process outside Abia State had not been obtained.
5. Whether the judgment of the trial Court was in line with evidence adduced.”
I am the considered view, that the Respondent adopted the 5 issues formulated by the Appellant for the determination of the instant appeal without qualification. This in my considered view remains the position, as the Respondent even though it stated in its brief of argument that “the issues that call for determination as stated by the Appellant include”, never set out any other issue or issues aside from the issues formulated by the Appellant as re-produced herein before. The Respondent would certainly appear not to have paid particular attention to the meaning of the word “include” and this must be responsible for the manner in which the word “include” was used under the heading “Issues for determination” in its brief of argument. Be that as it may!
I have said herein before that I was re-producing the 5 grounds of appeal and their respective particulars for reasons which I will later disclose in this judgment. The reason for doing this in the main, is that all the arguments advanced by the Appellant in its brief of argument, only go to add more flesh as it were, to the copious particulars as contained in the notice of appeal and which in my considered view, have sufficiently laid bare the positions of the Appellant on the issues it has formulated for the determination of the instant appeal. This, being the case, I see no useful purpose it will serve for me to embark on another review of the arguments advanced on the issues formulated by the Appellant. The Appellant in his brief of argument argued his issues 1-3 together; while issues 4 and 5, were argued separately. The Respondent equally adopted the same approach. I however, consider it more expedient to first resolve the challenge to the jurisdiction of the lower Court to have entertained the instant action on the basis of the non-procurement of the leave of the said lower Court prior to the issuance and service of the originating process in the instant action on the Appellant as raised by issue 4, of the issues formulated by the said Appellant. This is because if the issue is resolved in favour of the Appellant, it becomes obvious that there will be no need to consider the other issues formulated for the determination of the appeal. The position of the law is sufficiently settled to the effect that any proceeding of a Court in a matter in which it is found to lack jurisdiction, including the decision of the said Court, is null and void. See amongst many others, the cases of ONI V. CADBURY NIGERIA PLC (2016) LPELR-26061(SC); SUBURBAN TELECOMS LTD V. SOLUTION PLUS LIMITED (2016) LPELR – 40336 (CA): and AGBODEMU V. AGBOOLA(2014) LPELR-23794 (CA).
APPELLANT’S ISSUE 4 – WHETHER THE HONOURABLE TRIAL COURT WAS VESTED WITH JURISDICTION OVER THE CASE EVEN THOUGH LEAVE TO ISSUE AND SERVE THE ORIGINATING PROCESS OUTSIDE ABIA STATE HAD NOT BEEN OBTAINED.
Suffice it to say that the position of the Appellant on this issue is that the question of the service of the originating process and its accompanying documents outside the territorial jurisdiction of the Abia State High Court, without the prerequisite leave of Court having being first obtained, robbed the lower Court of its adjudicatory authority to entertain this suit.
The position of the Respondent on the issue under consideration, is to the effect that the non-obtaining of the leave of lower Court before serving the originating process in the instant case outside Abia State, is not fatal to the competence of the said Court to have entertained the instant action. This is because, the Abia State High Court (Civil Procedure) Rules, 2014 (hereafter to be simply referred to as “the extant rules of the lower Court”), contain no provision requiring it (Respondent) to obtain the leave of the lower Court before a writ of summons, can be served out of Abia State. That the only situation when the rules of the lower Court require that leave of the said Court be obtained in respect of service, is as provided for under Order 8(1) therein; and that this is in respect of a writ to be served outside the country. That the situation in the instant case, is totally different, as the writ of summons is meant for service in Kogi State which is within Nigeria. Dwelling further on this issue in his brief of argument the Respondent stated: –
“Also SECTION 96 OF THE SHERIFF AND CIVIL PROCESSES ACT states that
1. A writ of summons issued out of or requiring the defendant to appear at any Court of state or the capital territory may be served on the defendant in any other state or the capital territory.
2. Such service may, subject to any rules of Court which may be made under this act be affected in the same manner as if the writ was served on the defendant in the state or capital territory in which the writ was issued.
The above provision is also silent on the issue of leave, rather it gave a go ahead to serve a writ outside the state subject to the rules of Court. With respect to your Lordships, the rules of Abia state High Court did not provide that leave must be sought and obtained in other to serve outside Abia state.
SEE; COMPLETE COMM. LTD V ONOH (1998)5 NWLR (PT 549)197 AT P. 223 PARAG-H.
Here the Supreme Court which is the Apex Court in the land, Held that, A writ of summons can be issued and served outside the state without first seeking and obtaining the leave of Court. This is also supported by Section 96 supra of the Sheriff and Civil Processes Act.
With respect My Lordships I humbly submit that the Court enter Judgement for the Respondent in Issue 4 canvassed above as the Appellants argument is misleading and misconceived. Service of writs is regulated by the rules of each state high Court.”
N.B. The portion of the Respondent’s brief of argument re-produced above has been deliberately so re-produced. I have not bothered to insert the word “sic” in any part therein, as doing this would have resulted in the re-produced portion of the said brief to have been inundated with the word “sic” to a point of miscomprehension.
The position of the lower Court in respect of the issue under consideration as contained on page 87 of the records of appeal (and which the Respondent having not appealed against, is duty bound to do defend) reads: –
“The quick and straight answer to the objection of the defence counsel is that this application falls within what is referred to as “Jankara Practice”. Counsel for the applicant manufactured what he termed provisions of our Rules of Court without citing where those provisions are contained. The only Rules of Court cited by the counsel are Order 13 Rule 16 and Order 1 Rule 4(2) AND (3), and that is on the heading of his Motion paper. Those rules cited have nothing to do with the issues raised in the motion paper.
Counsel agreed that it is our 2014 Rules that is applicable to this suit. That Rule came into force on 24/7/2014. This suit was taken out on 18/12/2012.
Nowhere in that Rule is it stated that a writ of summons requiring to be served in another State of Nigeria not Abia State will require leave of the Court to issue it.”
(Underline provided by me).
It is in the defence of the aspect of the ruling of the lower court re-produced herein before, that the Respondent has made the submissions in the portion of its brief of argument re-produced above, for goodness’ sake. This is more so as the Respondent who has accused the Appellant of having misconceived the position of the law in respect of the issue at hand, would itself in my considered view, appear not to have been too forthright in its reliance of Section 96 of the Sheriffs and Civil Processes Act, by not factoring into its submissions, the provision of Section 97 of the said Act. The Respondent in my considered view would also appear to have engaged in a diabolical submission in respect of its reliance on the ratio decidend in the case of COMPLETE COMM. LTD V. ONOH (1998) 5 NWLR (PT 549) 197 AT P. 223 PARA G-H, it cited, and which it claimed flowed from the Supreme Court. I have searched the Law Reports available to me (i.e. LPELR) extensively, for any decision of the Supreme Court, as cited by the Respondent. I could not find any. The case of COMPLETE COMM. LTD V. ONOH as cited by the Respondent, that I found in the LEPER, is a decision of this Court; and having regard to the summary of the judgment in the case as contained in the LPELR, there is nothing pertaining to issuance and service of a writ of summons therein. Be that as it may!
I have also researched into many cases dealing with the issuance of a writ of summons with leave of a Court; and service of such a writ of summons. The lower Court clearly found itself bound to apply the provisions of its extant rule (particularly as the parties were ad idem on the applicability of the said rules), in determining its competence to entertain an action that was commenced by a writ of summons in an action commenced in “2012”, and before the coming into force of the extant rules of the said Court. In doing this, the lower Court and indeed the parties have not demonstrated that the provisions of the rules of the lower Court as at the time the instant case was “supposedly” commenced in 2012 and those contained in the extant rules of the said Court, are in parimateria, especially in respect of the issue of issuance and service of a writ of summons outside Abia State. While it is no doubt, the correct position of the law that rules of procedure applicable to a matter are always the current one in force; it must however be appreciated that when an objection as it relates to jurisdiction, is taken on the basis of an act or omission made or alleged to have been made, under a given law or enactment that was in existence at a point in time and alleged to be applicable to a matter, prior to the coming into force of a new one, it is still the earlier law or enactment, that must be considered in resolving the issue. In other words, the applicable rules of the lower Court that must be considered in the resolution of the correctness or otherwise of the position of the Appellant on this matter, are the rules of the lower Court in force as at 2012 when the lower Court stated that the instant suit was “taken out”. See the case of SPDC LTD V. ENYIOKO (2018) LPELR-45272 (CA). In other words, if the previous rules of the lower Court did provide that a plaintiff must first apply for leave prior to the issuance and service of a writ of summons outside the territorial jurisdiction of the said Court, then the lower Court, if it had to come to a decision on the issue, must see the good sense in deciding the objection of the Appellant based upon the provisions of the enactment or rules of Court, pursuant to which the action the competence of which the Appellant was challenging, was instituted in 2012. I am of the considered view that it is simply an absurdity to determine the merit of an objection to the lower Court’s jurisdiction in respect of a case instituted under a particular rules of Court, on the basis of the provisions of the rules of Court later in time and which were not in force as at the time of the commencement of the suit in question. Conversely if an action was commenced after the commencement of the extant rules of the lower Court and the said rules do not provide for the issuance and service of a writ of summons with the prior leave of the Court, then any application challenging the jurisdiction of the lower Court on the basis of such a non-existent provisions of the extant rules, would have no basis and a challenge in that regard must be resolved against the objector (i.e. the Appellant).
I have painstakingly perused the processes filed in the Respondent’s action, and I have discovered that the statement contained in the ruling of the lower Court that “this suit was taken out on 18/2/2012”, and which has resulted in the exposition made herein before, is nothing but a slip. The Respondent’s action was commenced on 18/12/2014, and by virtue of that fact, it is the extant rules of procedure of the lower Court that were in force of as at the time of the institution of the instant case, that must be applied by the lower Court in resolving the challenge to its jurisdiction to entertain the instant case. It is to be noted that the extant rules of the lower Court came into force on 24/7/2014 and “revoked” the 2009 rules of the said Court that came into force on 1/7/2009. See Order 1 Rule 1, of the extant rules of the lower Court. It reads: –
“The Abia State High Court (Civil Procedure) Rules 2009, which came into force on 1st day of July, 2009 is hereby revoked.”
The extant rules of the lower Court also contain provisions as to the continued application of the “revoked” 2009 rules, as well as when the extant rules of the lower Court apply to matters before the said Court. In this regard. See Order 1 Rule 4(1) of the extant rules of the lower Court which provides: -“Except as otherwise stipulated hereafter these Rules shall not apply to any cause or matter part-heard on the date when these Rules come into operation.”
and Order 4(2)which provides: –
“Where an action is filed and no further step is taken other than the filing, other subsequent procedure shall be under these rules.”
as well as Order 4(3) which provides: –
“In all other cases where causes or matters are pending the Court shall give such directions as may be necessary or expedient to ensure conformity with the requirement of these Rules.”
I have painstakingly perused the relevant provisions of the extant rules of the lower Court and I cannot but say that it is clear as crystal that there is no provision in the said rules requiring the initiator of an action to first procure the leave of the lower Court before the service of the originating process or processes in his action, on any other party whether or not the service is to be effected outside Abia State. See in this regard, the provisions of Order 7 headed “Service of Process” of the said rules and which are to the effect that it is where the service of an originating process is to be effected out of Nigeria and where the service of foreign process are involved, that a Judge may allow the service of such process(es) outside Nigeria.
Having regard to the originating process and other processes that issued and or were filed in the instant case, as contained in the record of appeal, I am in no doubt that the Appellant must have been laboring under a serious misapprehension of the law that the provisions of the revoked 2009 rules of the lower Court which came into force on 1/7/2009, and which were expressly “revoked” by Order 1 Rule 1 of the extant rules of the said Court were still operative in respect of the Respondent’s action. Otherwise, how can one explain the submission by the Appellant in its written address in support of the motion on notice by which it challenged the jurisdiction of the lower Court to entertain the instant case, as contained on pages 70-75 of the records of appeal and wherein it is stated on page 71 thus: –
“The Abia State High Court (Civil Procedure) Rules 2014 provides for the mandatory condition for leave to be sought and obtained before the issuance and service of any writ outside jurisdiction of the Court.
The Rules of this Honourable Court provides for a very concise and unambiguous definition of “out of jurisdiction” as follows:
“Out of jurisdiction’ in this order means outside Abia State”.
Suffice it to say that as the provision of the rules of the lower Court which the Appellant relied on in respect of its stance before the lower Court, and which stance the Appellant is still holding on to in the instant appeal, (even though it did not cite the provision of the rules of the lower Court re-produced above in the instant appeal), is not contained in the extant rules of the said Court, it becomes obvious in the circumstances, that the challenge to the jurisdiction of the lower Court based on a non-existent provision of the extant rules of the said Court, must fail as it has no foundation.
Flowing from all that has been said is that the lower Court was eminently right in the manner in which it disposed of the challenge to its jurisdiction to have entertained the instant case as presented before it by the Appellant. In any event, I consider it pertinent to state that inasmuch as the extant rules of the lower Court do not provide to the effect that a writ of summons to be issued for service outside its territorial jurisdiction but within Nigeria, requires the leave of the said Court before it is issued, then it becomes obvious that it is only the service of the originating processes that issued in the instant case on the Appellant, that could rightly be set aside. The issuance of the originating process cannot be voided for the non-procurement of leave to issue the same as the extant rules of the lower Court do not require the grant of the leave of the lower Court in that regard. Accordingly, Appellant’s issue 4, is resolved against it.
APPELLANT’S ISSUES 1, 2 AND 3
These issues have been set out herein before. I also don’t see the need to review the submissions of the Appellant on the issues as I have said herein before to the effect that the Appellant’s submissions on the issues it formulated for the determination of the appeal, were nothing more than an expansion of the particulars of the grounds of appeal.
Dwelling on the issues under consideration, the Respondent engaged in a discuss of the nature of the undefended list procedure. It is also the stance of the Respondent that the Appellant failed to comply with the provisions of the extant rules of the lower Court as contained in Order 11 Rule 4, given the failure to file notice in writing of its intention to defend together with an affidavit setting out the grounds of its defence. That the undefended list procedure, having regard to its nature does not allow for preliminary objection. That what it allows, is the affidavit of defence. That even if the Appellant was desirous of filing a preliminary objection, it should first of all abide by the rules guiding the procedure. That is, the Appellant, first of all should have filed its affidavit of defence and notice of intention to defend, before contemplating to file any preliminary objection. That where a defendant fails to file the notice of intention to defend and affidavit of defence and files a preliminary objection on the ground of lack of jurisdiction together with an affidavit deposing to facts showing the effects of such jurisdiction, it can be sufficient defence under the undefended list procedure and considered by the Court. This is because, the aim of the Court, presently, is to do substantial justice between the parties. It is the stance of the Respondent that the lower Court considered the preliminary objection brought by the Appellant as its defence and found it to be frivolous and filed just to waste the precious time of the said Court. The Respondent also stated that under the undefended list procedure, where the defendant does not file a notice of intention to defend together with an affidavit on the day fixed for hearing, judgement will be given to the plaintiff without his calling evidence to prove his claim. The Respondent concluded by saying that once the defendant fails to file his notice of intention to defend accompanied by affidavit of defence within the prescribed time provided by the rules, then the Court will give judgment in favour of the plaintiff and that the lower Court properly proceeded to enter judgment in its (Respondent’s) favour in the instant case.
Order 11 of the extant rules of the lower Court deals with summary judgment. Order 11 Rule 1(1) reads: –
“This order shall apply only to money demands.
Sub-rule (2) of Order 11(1) reads: –
“The provisions of Order 3 Rule 2 shall not apply to any proceedings brought under this order.”
Order 11 Rule 2 reads: –
“Where a claimant believes that there is no defence to claim, he shall file with his writ of summons, a motion on notice for summary judgment which shall be accompanied by an affidavit stating the grounds for the belief.”
Order 11 Rule 8 reads: –
“Where a Judge grants the Defendant leave to defend the suit the claimant shall within 30 days thereof file in the registry his statement of claim along with the list of his witnesses, their written statements on oath, and the documentary exhibits and a list of his non-documentary exhibits he intends to use at the trial.”
The provisions of Order 3 Rule 2, which the provision of Order 11 Rule 1(1) specifically exclude in a summary judgment reads: –
“Order 3 Rule 2(1)
All civil proceeding commenced by writ of summons shall be accompanied by:
(a) Statement of Claim;
(b) copies of every document to be relied on at the trial, other than any book or treatise, to be relied on; provided that dispute survey plans need not be filed at the commencement of the suit; but shall be filed within such time as they may be ordered by the Court upon any application made under Rule 3 of this Order.
(c) list of non-documentary exhibits,
(d) list of witnesses to be called at trial;
(e) written statements on oath of the witnesses; provided that the statement on oath of a witness requiring subpoena from the Court need not be filed at the commencement of the suit; but shall be filed and served at least 7 working days before he testifies.”
I am of the considered view that it is clear as crystal from the provisions of the extant rules of the lower Court re-produced herein before, that “summary judgment” is a distinct, separate or special proceeding, and that the proceeding expressly does not require the filing of a statement of claim until the lower Court grants the Appellant leave to defend the action. The special proceeding of or for “summary judgment” even though commenced by the filing of a motion on notice, in my considered view is different from a motion on notice filed in a case commenced by way of writ of summons or some other form of commencement of an action. In other words, a motion on notice for “summary judgment” is not the same as an interlocutory proceeding by way of motion on notice, taken out in the course of adjudication in a substantive action. This being the case, I simply do not see any legal basis for the position of the Respondent that “summary judgment” does not admit of the filing of a preliminary objection to challenge the jurisdiction of the Court entertaining such matter, procedure, or proceeding. The raising of a preliminary objection to challenge the jurisdiction of the lower Court was a legal option open to the Appellant as it felt that the processes served on it in the Respondent’s action, were such that robbed the lower Court of its jurisdiction inasmuch as the Appellant was of the view that the conditions required before the issuance and service of the processes in the case on it, were not fulfilled prior to the service of the said process on it (Appellant). After all, if the Appellant had succeeded in establishing that the processes served on it, especially the originating processes, were issued and or served in breach or in violation of the provisions of the extant rules of the lower Court, the said Court by law, could not have properly gone on with the case. The lower Court in the event that its prior leave was not sought and obtained before the issuance of the originating process, would have had no choice but to have declared the said processes void. And in the event that it was the non-procurement of prior leave to serve the processes in question that the Appellant established, then the said Court would have had no choice but to have set aside the service of the processes effected on the said Appellant. Either way the lower Court would not have been in a situation to have properly proceeded with the case, as it is inconceivable how a Court can validly continue to entertain a case in which the originating process is void; or a case in which the service of the process(es) served on a defendant even though valid, is set aside. In my considered view, it would therefore appear that the insistence as it were, by the Respondent, that the Appellant ought to have filed its notice in writing of the intention to defend the case together with an affidavit setting out the grounds of its defence, does not take into consideration that doing so while the challenge to the jurisdiction of the lower Court was yet to be resolved, might have unwittingly exposed the Appellant to the invocation of the doctrine of waiver as it were, at the instance of the Respondent or the lower Court. The position of the law that a preliminary objection cannot be properly filed in respect of a motion on notice in my considered view, therefore cannot be properly imported into “summary judgment” under the extant rules of the lower Court.
Indeed, I am of the considered view that the Respondent would appear not to appreciate that the attack unleashed by the Appellant regarding how the lower Court went ahead to deliver its judgment in favour of the said Respondent immediately after delivering its decision on the preliminary objection challenging the jurisdiction of the said Court to entertain the instant case, is simply an indictment of the vires or powers of the lower Court to have done this without the motion for summary judgment having been moved. A discuss of the nature of “summary judgment” and how a Court comes to a decision in a “summary judgment” per se is no answer to the position of the Appellant as laid bare herein before. Having regard to the provisions of the extant rules of the lower Court re-produced herein before, it is in my considered view clear as crystal that the lower Court can only properly act on the affidavit evidence placed before it, in the motion brought for summary judgment in entering judgment in the instant case. The lower Court cannot act on averments in the statement of claim (which in any event is no evidence on which a Court can act in the absence of oral or documentary evidence in proof of the averments contained therein) and which in any event should not be filed in a “summary judgment” proceeding, until after leave to defend has been granted to the defendant in the action.
The question therefore is, what procedure was adopted by the lower Court in respect of the motion on notice for summary judgment brought before it by the Respondent? The law is settled to the effect that a Court of record such as the lower Court is, is enjoined to thoroughly keep records of proceedings. This is because, the record of proceedings is the only authentic account of what took place inside the Court room – the seat of justice. It is the final reference material of events, step-by-step, stage by stage of all that took place in the seat of justice. See the cases of JOSIAH V. STATE (1985) LPELR-1633(SC); NGIGE V. OBI (2006) LPELR-12920(CA); and CANDIDE-JOHNSON V. EDIGIN (1990) LPELR-20108(CA) amongst many others.
The instant case, in my considered view, is a showing of very poor record keeping by the lower Court. There is absolutely nothing ex-facie the ruling the said Court delivered on 22/2/2014, to show how the said ruling which was in respect of the Appellant’s challenge to the jurisdiction of the lower Court to entertain the Respondent’s case, dovetailed into the judgment delivered by the said Court, in respect of the Respondent’s motion for summary judgment. Indeed, there is nothing in the records of appeal showing that the Appellant’s motion challenging the jurisdiction of the lower Court to entertain the instant case was entertained together with the Respondent’s motion for summary judgment or even separately, on any particular date. In my considered view, the position of the law would appear to be settled that a Court process which is not moved in Court by a party who initiated it, is as good as having not been filed and should be dismissed. See the case of AGA V. ONAH (2012) LPELR-22103(CA).
I have painstakingly read the brief of argument of the Respondent – the party that filed the motion for summary judgment. In no portion or part of the said brief did the Respondent disclose that it moved its motion for summary judgment at any time prior to the judgment delivered by the lower Court, in its favour. The position of the Respondent in the instant appeal, is that the affidavit in support of the Appellant’s motion challenging the jurisdiction of the lower Court to entertain the instant case, constituted sufficient defence to the motion for summary judgment. That said affidavit (which by the Respondent’s stance also doubled as a counter-affidavit) was sufficient defence under the undefended list procedure and was sufficient defence to be considered by the lower Court in the summary judgment proceeding.
I must however state, that I definitely find the submission by the Respondent as highlighted above somehow preposterous. Even if the submission is well reasoned or well-grounded (which is not conceded), the question then is, whether the stance of the Respondent as highlighted above, relieved it (Respondent) of the duty of moving its motion on notice for summary judgment, at the conclusion of the ruling in respect of the Appellant’s motion that was dismissed; or to have respectfully brought to the attention of the lower Court, the pendency of the motion for summary judgment and to have indicated its readiness to move the said motion? The position of the law as enunciated by this Court a long time ago in the case of NWOKEDIASO V. ONUOHA (2000) LPELR-12004 (CA) is that where a party does not move his motion, the motion is deemed abandoned. I hereunder re-produce the relevant portion of the judgment of this Court in the case under reference. It goes thus: –
“Appellants’ issues 3 and 4 are subsumed by the 2nd Respondents issue no 3. It is manifest that the plaintiff filed a motion for judgment in default as no statement of defence was filed. From the minutes at page 18 of the record of appeal, there is no indication that A.M. Umeozulu Esq, Learned Counsel for the Plaintiff, moved the motion. He only ‘ask for judgment in terms of the claim.’
I completely agree with the counsel on both sides of the divide in this appeal that the defendants should have been put on notice of the new stance taken by the plaintiff. They should be heard on the new stance before judgment was entered. See… The defendants are entitled to have the judgment entered against them behind their backs set aside in the prevailing circumstance. See…
An application by a party to a suit is not just filed for the fun of it. Where a party files an application before a Court for any relief, it is the duty of such a party to move his application. Failure to do so, as in this matter, may be taken as a withdrawal of the application. See…”
It is certainly not the business of a Court to move a motion on behalf of any of the parties to an action before it, that filed the same. Of course, a Court upon the mention of a motion often times indulges a party to simply move in term. This however cannot be taken as a Court moving a motion on behalf of an applicant therein. It is still the appropriate party that moves the motion in terms. It is very disturbing that the lower Court before which the Respondent never moved its motion, and which never noted that it gave the Appellant any leeway or opportunity to do anything in the proceedings immediately after it delivered its ruling in the Appellant’s motion challenging its (lower Court’s) jurisdiction to entertain the instant case, stated in its judgment thus: –
“The defendant was served the writ of summons and all the process in this suit on 06/10/2015. It has not filed any Notice of intention to defend and there is no motion for enlargement of time to do that” It is glaring from what the lower said as re-produced above, that the said Court was aware that the Appellant by law, could have called upon it to exercise its discretion in its favour by seeking for extension of time to file its notice in writing of its intention to defend the Respondent’s suit together with an affidavit setting out the grounds of its defence. The worrisome aspect of the statement of the lower Court as contained in its judgment, is how the said Court expected the Appellant to have brought up the matter of an application for extension of time within which it was supposed to have taken the steps required of it under “summary judgment” proceeding, when the lower Court by proceeding to deliver its judgment in the instant case without even having the benefit of the Respondent moving its motion for summary judgment, shut very firmly too, the doors of justice as dictated by its own rules against the Appellant from taking the course of action it accused the Appellant of not taking. I am of the considered view that from whatever angle one considers the manner the lower Court acted in giving the Respondent summary judgment in the instant case, one cannot run away from the fact that the said Court knew it was part of the dictates of fair hearing in the instant case, to have afforded the Appellant the opportunity to do the needful that it did not do within the stipulated time or period; and decided to ascribe the non-making of necessary application for this purpose, to the Appellant, thereby creating an impression that the omission to do the needful, was not as a result of any act of omission or commission on its (lower Court’s) part, but on the part of the Appellant. Whether or not there has been a breach of fair hearing has for ages been frequently considered by the Courts when the issue is raised for resolution. One of the cases in which the matter was examined in recent times, is that of ZENITH PLASTICS INDUSTRIES LTD V. SAMOTECH LTD (2018) LPELR-44056 (SC). In the said case the Supreme Court stated thus: –
“The effect of failure to observe the principle of fair hearing is that the proceedings are null and void, no matter how well conducted. His Lordship, Tobi, JSC had this to say in Orugbo & Anor. Vs Una & Ors. (2002) 16 NWLR (Pt.792) 175 @ 199 A-D:
“The fair hearing principle entrenched in the Constitution is so fundamental in the judicial process or the administration of justice that breach of it will vitiate or nullify the whole proceedings, and a party cannot be heard to say that the proceedings were properly conducted and should be saved because of such proper conduction.
Once an appellate Court comes to the conclusion that there is a breach of the principle of fair hearing, the proceedings cannot be salvaged as they are null and void ab initio. After all, fair hearing lies in the procedure followed in the case, not in the correctness of the decision.
Accordingly, where a Court arrives at a correct decision in breach of the principle of fair hearing, an appellate Court will throw out the correct decision in favour of the breach of fair hearing, See generally: …”
(Underline provided by me).
Flowing from all that has been said, is that Appellant’s issues 1, 2 and 3, are all resolved in its favour without any qualification. Appellant’s issue 5 which attacked the correctness of the judgment of the lower Court appealed against, in the circumstances has become a non-issue; especially given the resolution of Appellant’s issue 3, which raised the issue of denial of fair hearing by the lower Court, in the Appellant’s favour.
In the final analysis, the instant appeal is very meritorious and it succeeds. Accordingly, the judgment of the lower Court delivered in the instant case on 22/2/2014, is hereby set aside. However as the lower Court has been found to be correct in its position that it has jurisdiction to entertain the Respondent’s case, the order of this Court, is that the instant case be remitted to the Chief Judge of Abia State, for it to be re-assigned to another Judge of the High Court of that State, for hearing.
I make no order as to costs as the whole imbroglio in this case, was at the instance of the lower Court.
ITA GEORGE MBABA, J.C.A.: I had the privilege of reading in draft the lead judgment by my learned brother, A.O. Lokulo-Sodipe JCA and I agree with his reasoning and conclusion that the Appeal is meritorious.
I too allow it and abide by the consequential orders in the lead judgment.
IBRAHIM ALI ANDENYANGTSO, J.C.A.: Having read in advance the lead judgment of my learned brother Hon. Justice Ayobode Olujimi Lokulo-Sodipe, JCA, I am satisfied that the appeal has merit and should be and is hereby allowed. I abide by orders therein made by my learned brother A.O. Lolulo-Sodipe, JCA.
Appearances:
Mary Happiness-Okere (Mrs.) holding brief for Omeje Aruwa. For Appellant(s)
Chuka Iguh For Respondent(s)
