SAVANNAH BANK OF NIG. PLC & ANOR V. CROWN STAR & COMPANY. LTD & ANOR(2002)

SAVANNAH BANK OF NIG. PLC & ANOR V. CROWN STAR & COMPANY. LTD & ANOR

2002)LCN/1149(CA)

In The Court of Appeal of Nigeria

On Thursday, the 18th day of April, 2002

CA/L/27/2001

 

JUSTICES

GEORGE ADESOLA OGUNTADE   Justice of The Court of Appeal of Nigeria

PIUS OLAYIWOLA ADEREMI   Justice of The Court of Appeal of Nigeria

CHRISTOPHER MITCHELL CHUKWUMAH-ENEH   Justice of The Court of Appeal of Nigeria

Between

 

  1. SAVANNAH BANK OF NIG. PLC
    2. MR. MBULAR Appellant(s)

AND

  1. CROWN STAR & CO. LTD
    4. MRS. KATE OKPAREKE Respondent(s)

ADEREMI, J.C.A. (Delivering the Leading Judgment): Before the court below, the respondents, as plaintiffs in that court claimed against the appellants as defendants jointly and severally the following reliefs:
(1) A declaration that the 1st plaintiff is not indebted to the defendant under and by virtue of the contract in 1994 for the purchase of 2,000 metric tonnes of cement from the 1st plaintiff by one Jemcil (Nig.) Ltd.
(2) An order compelling the defendants to release the C plaintiff’s Peugeot 505 Station Wagon Reg. No. RV1685 DB forthwith and to make good all the necessary repairs to the said vehicle:
(3) An order of injunction restraining the defendant whether by itself, its privies, agents or assigns or however constituted from taking step or further step whether by way of complaint, report or any manner whatsoever to cause security agencies including the police force, the S.S.S. to arraign the directors of the 1st plaintiff and the 2nd plaintiff before any tribunal or otherwise by virtue of the contract between Jemcil (Nig.) Ltd. and the 1st plaintiff.
(4) An order of injunction restraining the defendant whether by itself, its privies, agents or assigns or however constituted from harassing or further harassing or disturbing the plaintiffs in their normal business or private engagement.
(5) special and general damages of N25,000.000.00 only as follows:-
(a) Special damages of N1,260,000.00 being cost of alternative transportation’s from June 12, 1995 to February 11,1997.
(b) General and exemplary damages of N23, 000.000.00 including for disruption of business or business activities, nervous shock, false imprisonment, harassment, trespass to property, conversion, misuse of government agencies infringement of the plaintiff’s human rights.
(c) Such further or other sums as the court shall hold the plaintiffs entitled to for the acts of the defendants.
Pleadings were filed and exchanged between the parties, Thereafter the case suffered a number of adjournments from the 26th of May, 1997 when both sides were represented by their different counsel and the case was adjourned for mention on 1st July, 1997 on which date by consent of both counsel, the case was adjourned for hearing on 17th and 18th September, 1997 for trial. The case came up before the court below on 17/9/97, 14/10/97, 2/12/92, 19/2/98, 24/3/98, 21/10/98, 19/4/99, 25/11/99, without the defendants and their counsel appearing in court. It was on 18/12/99 the date to which the case was adjourned from 25/11/99 for trial to commence that proceedings started in the case, Suffice it to say that neither the defendants nor their counsel were in court on 25/11/99 when the case was fixed for hearing on 8/12/99. Perhaps I should also say that evidence-in-chief of the plaintiff lasted from 8th December, 1999 till 17th February, 2000 when cross-examination was further adjourned to 6th March, 2000 and the trial Judge making an order that hearing notice be served on the defendants before the next date of adjournment. On 6th March, 2000 while the 2nd plaintiff was present, the case was again adjourned to 5/4/2000, I shall hasten to add that there is nothing on the record to show that the defendants were ever served with the hearing notice as ordered by the court. On 5/4/2000 in the absence of the defendants and their counsel, the plaintiff’s counsel (Mr. Anumudu) announced, the close of the plaintiffs’ case and the defence and addresses of counsel were adjourned to 26/4/2000, There is no record that the trial Judge sat on 26/4/2000 but the proceedings of 17/5/2000 show that the plaintiffs and their counsel were present in court and Mr. Anumudu, counsel for the plaintiffs drew the trial Judge’s attention to the fact that the defendants were served with the hearing notice. It was on that date (17/5/2000) after hearing Mr, Anumudu that the case was adjourned for judgment on 10/7/2000. Judgment was eventually delivered on 6/9/2000. The defendants thereafter brought an application dated 13th September, 2000 seeking leave extending the time within which to apply to set-aside the judgment and to set same aside, they also sought, inter alia, leave to recall the plaintiffs’ witnesses and for the defendants to call their witnesses. The application was supported by a 21-paragraph affidavit and an 11-paragraph affidavit of urgency and another 21paragraph further-affidavit. The plaintiffs/respondents who were the judgment-creditors in the lower court brought an application dated 5th October, 2000 praying the lower court to strike out the motion dated 13th September, 2000. That motion is supported by a 7-paragraph affidavit. The defendants/appellants filed a 7-paragraph counter affidavit in opposition. Sequel to taking arguments on the application dated 5th October, 2000 the learned trial Judge in a reserved ruling delivered on 18th January, 2001 upheld the prayer of the plaintiff/judgment – creditor/applicant and consequently dismissed the application of the defendants/appellants dated 13th September, 2000.  In granting the application of 5th October, 2000 the learned trial Judge said inter alia:
“It is plaintiff’s application in question and the defendants application dated 13th September, 2000, have been argued together as I cannot dismiss an application unless I hear the merit thereof.
The substance of the defendants application dated 13th September, 2000 is that there was no service of the hearing notice issued on them. This is borne out in the affidavit in support of the application. There is no doubt that the application the defendants is seeking is for declaratory reliefs and is therefore equitable. There is the counter-affidavit to which exhibits K – MI are attached. There is nothing in the further affidavit deposed to on the 5th day of October, 2000 dissociating the defendants from the recipients of these documents which advised the applicants of the hearing dates. Moreover, there is the affidavit of the service of the hearing notice issued by the registrar of this honourable court on the defendants. There is no direct denial of this document by the applicant except a glib assertion that the defendants were not served. There is no doubt that the time within which the defendant may ask for setting aside of the judgment/proceedings had elapsed. The rules of this honourable court on the issue was interpreted by the Supreme Court in Williams v. Hope Rising Voluntary Funds Society (1982) 12 SC 145. A party that is seeking for the court’s indulgence must give reasons for and explain away, his delay. The affidavit filed by the defendants herein have not given any reason for the delay in bringing this application. I cannot in the circumstances grant the first prayer to wit. “an order granting leave extending time within which to apply to set-aside the judgment of this honourable court dated 6th September, 2000…. If I cannot grant this relief, I cannot grant any other relief prayed for ….. In the circumstance I hold that the defendant’s application does not deserved any sympathetic consideration. It is accordingly dismissed with N2,100.00 costs awarded in favour of the plaintiff, and the plaintiff/judgment – creditor/respondents’ objection is hereby upheld.”
It is against this ruling that the defendant/appellants have appealed to this court on six grounds. Distilled from the six grounds of appeal are five issues for determination, as set out in their brief of argument they are in the following terms:
(1) Whether the learned trial Judge was right when she held that she had no jurisdiction to entertain the application to set-aside her default judgment on the ground that she was functus officio.
(2) Whether the lower court had the jurisdiction to entertain the substantive suit filed by the respondents as debtors, principally praying the court for an order of declaration that they were not indebted to the 1st appellant.
(3) Whether the learned trial Judge was right when she held that the appellants were given a fair hearing before judgment was delivered against them
(4) Whether the learned trial Judge was right when she dismissed the appellants application, to set-aside her default judgment when same was not argued.
(5) Whether the Deputy Sheriff of Lagos State was a necessary party to the application to set-aside the  judgment of the lower court. However, the respondents identified four issues for determination and couched in their brief of argument they are as follows:- (1) Was the learned trial Judge right to hold that he was funtus officio after delivering the judgment of 6/9/2000? (2)  Were the appellants denied fair hearing by the trial court?
(3) Was the trial court right to hold that the Deputy Sheriff of the Lagos High Court is a necessary party to the appellants’ application? (4) Was the learned trial Judge right after upholding the objection of the respondents to strike out and/or dismiss the appellants’ application? I have examined the application dated 13th September, 2000 brought by the defendants/judgment debtors/applicants, the present appellant, before, the court below praying in the main, for an order to set-aside the judgment delivered on 6th September, 2000 it was predicated on non-service of the hearing notice on the defendants. I have also had a careful study of the arguments of Mr. Gadzama, SAN learned counsel for the appellants, before the court below on 26th October, 2000. In his reply to the submissions of Mr. Akpamgbo, SAN moving the applications dated 5th October, 2000 on behalf of the plaintiffs/respondents Mr. Gadzama, SAN had submitted, on the issue of fair hearing that no hearng notices were served on the defendants in the court below; and he referred to the decision in Mohammed v. Husseini (1999) SCNJ; (1998) 14 NWLR (Pt.584) 108 for the consequence in law, of such lapse. Suffice it to say that, Mr. Akpamgbo, SAN had argued strenuously that the defendants were given the oppol1unity or reasonable opportunity of being heard at the trial. In his ruling, the learned trial Judge held inter alia that from the arguments of both learned Senior Advocates of Nigeria and learned counsel for the appellants the afore-mentioned applications were argued by them before her. I cannot but agree with the view expressed by the learned trial Judge. But, the all-important question to be answered is: were the defendants/appellants accorded fair hearing at the trial in the sense that they were served with hearing notice? Issue No.3 in the appellants’ brief raise the issue of fair hearing. I shall in this judgment first deal with these two issues, as they are very fundamental. Fair hearing and fair trial mean the same thing. Indeed, one involves the other, there is no difference see Unongo v. Aku & Ors. (1983) 2 SCNLR 332, (1983) 11 SC 129. Right to fair hearing or fair trial is guaranteed by the Constitution see section 36 of the 1999Constitution. The question then is what does the right imply? First and foremost it implies that both sides to a dispute brought before a court of law must be seen to be given an opportunity to reply thereto; no surprises are allowed to be sprung by either side on the other. Of course, the judex must not have personal interest in the case before him, he must be seen to be impartial and to be without bias. The Judge must not hear evidence or receive representation from one side behind the back of the other.
In my view, flowing from the above, fair hearing or trial must mean no other thing than a trial conducted strictly in accordance with all the legal rules formulated to ensure that justice is not only done but seen to be done to the parties to the cause. It is very much in the interest of justice that parties should be afforded reasonable opportunity for their rights to be investigated and determined on the merits. See Nnajiofor & Ors. v. Ukonu (1985) 2 NWLR (Pt. 9) 686, and Psychiatric Hospital Management Board v. Edosa (1999) 13 NWLR (Pt.636) 572, (2001) 2 SC 180. One fundamental way of ensuring that fair hearing principles are seen to be adhered to is that processes which include hearing notices must be served on parties to a cause. The service of process which includes hearing notice on the plaintiff so as to enable him appear to defend the reliefs sought against him and due appearance by the parties or their counsel are fundamental conditions precedent required before the court can be said to have competence and jurisdiction to go into adjudication, given that all other essential conditionalities are in place see Skenconsult (Nig.) Ltd. & AN v. Sekondy Ukey (1981) SC 6. It is well settled law and practice that a court of law must not give judgment against a person who has not had an opportunity to defend the suit in the sense that hearing notice, which will bring to his notice the date, time and place of the trial, has not been served on him. It would amount to a grave error on the part of a judex to proceed to enter judgment or make an order against a party who is shown not to have been given the opportunity to appear in court. I shall now proceed to examine the facts of this case to see whether the defendants/appellants were served with the hearing notice. In reviewing the facts of the case, I said borne out of the facts gathered from the record of proceedings, that on 17th February, 2000 when the evidence-in-chief of the plaintiff was brought to a close, the trial Judge adjourned the cross-examination to 6th of March, 2000 with an order that hearing notice be served on the defendants. I have travened the whole record of proceedings there is no  where any official document which can authenticate service of hearing notice on the defendants. However, something that smacks of service of the hearing notices on the defendants as having been effected is contained in the proceedings of 17th May, 2000 when Mr. Anumudu, the learned counsel for the plaintiffs/respondents was recorded as having said and I quote:
“The defendants are not in court again as usual despite the hearing notice was served on them”.
That is a bare assertion by the counsel of the plaintiffs/respondents – the opponents of the defendants, that the defendants were served with the hearing notice. In the ruling delivered on 18/1/2001, the learned trial Judge referred to one affidavit of service of the hearing notice. I have painstakingly read the whole processes before me, I could not find any affidavit of service. Proof of service of hearing notice is paramount. From the facts available, I cannot hold that any hearing notice was served on the defendants. The result therefore, is that the judgment was delivered without any evidence showing that the defendants were granted the opportunity of being heard. What then must a court of law which is also a court of equity do? I think the answer to this question is in the dictum of Lord Atkin in Evans v. Bartlam (1937) 2 A.E.R. 646 when at page 650 he said and I quote: “The principle obviously is that, unless and until the court has pronounced a judgment upon the merits or by consent, it is to have the power to revoke the expression of its coercive power where that has been obtained only by a failure to follow any of the rules of procedure.”
The dictum of Lord Atkin quoted supra was given an approval by the Supreme Court in Okafor & Ors. v. A.-G., Anambra State (1991) 6 NWLR (Pt 200) 659. Such power to be exercised in the circumstances I have set out above are said to be inherent in the sense that they are necessary attributes to render the judicial function effective in the administration of justice. It is something that is compelled by the interest of justice. It has always been exercised in many cases where the court has given judgment in default. Lord
Greene M.R. has painted the principle in very glowing words when in Craig v. Kansen (1943) 1 A.E.R 111 he said at page 113 and quote
“…..An order which can properly be described as a nullity is something which the person affected by it is entitled exdebito Justitiae to have set-aside. So far as the procedure for having it set-side is concerned, it seems to me that the court in its inherent jurisdiction can set its own order; and that an appeal from the order is not necessary.”
Again, Lord Greene’s dictum was given an approval in the Okafor case cited supra. Guided by the above principles. Having held that the judgment of the court below is a nullity the defendants/appellants are entitled ex debito justitiae to have it set-aside see Okafor’s case. The application brought by the defendants/appellants which is dated 13th September, 2000 has prayed for an order granting leave extending the time within which to apply to set-aside the said judgment dated 6th September, 2000. In paragraph 10 of the supporting affidavit the appellants deposed thus: “That apart from the writ of summons and the statement of claim no process of court was served on the defendants directly until Tuesday, the 12th September, 2000 when some of the properties were attached.”
Paragraph 10, set out above, in my view, explains the reason for the delay in making the application. I pause to answer issue No. 1 on the appellants brief. From all I have been saying supra, this issue is answer in the negative. I also answer, issue No.1 on the respondents brief in the negative. Having held that the defendants/appellants were not served with hearing notices and consequently that they were denied fair hearing I answer issue No.3 on the appellants’ brief issue No.2 on the respondents brief in the negative.
I have held that the judgment is a nullity. In law any order made by a court of law predicated on a null judgment is itself null and void. So, the execution carried out is null and void. It is as good as having not taken place. The Deputy Sheriff of Lagos State is therefore not a necessary party to the application to set-aside the judgment of the court below consequently, I answer issue No. 1 on the negative. Issue No.4 on the respondents’ brief is non sequitor following all I have been saying issue No.2 in the appellant’s brief reads:
“Whether the lower court had the jurisdiction to entertain the substantive suit filed by the respondents as debtors principally praying the court for an order of declaration that they were not indebted to the 1st appellant?
The first relief claimed is in the following terms:  “A declaration that the 1st plaintiff is not indebted to the defendant under and by virtue of the contract in 1994 for the purchase of 2000 metric tonnes of cement from the 1st plaintiff by one Jencil (Nig.) Ltd.” A claim for declaratory relief is an invitation to the court to make a pronunciation as to what is the position, in law, of a state of affairs. However, from the trend of judicial authorities declaratory reliefs are not to be lightly granted. The power to so do should be exercised sparingly, with great care and very jealously. A display of high sense of responsibility and a full realisation that judicial pronouncements are not to be made unless there are circumstances that dictate their making.
I think it is neater and accords with the good tenets practice of law if, in a commercial transaction, a person perceives that the other party is owing him some amount of money for him to seek a redress in the court of law to have that person pay his just debt. It is he who is asserting that money is owed to him who has the duty of proof. It may be incongruous to good practice of law for one party to ask the court to pronounce that he is not owing the other in a transaction they both entered into. The rule is that the burden of proof always rests on the party who asserts the affirmative of the issue not the negative. As was said by Viscount Mangham in Joseph Corporation Ltd. (1942) A.C.154at 174 and I quote.
“It is an ancient rule founded on consideration of good sense and it should not be departed from without strong reason”. This decision of the House of Lords in England was quoted with approval by the Supreme Court in Messrs Lewis & Peat (N.R.I.)  Ltd v. Akhimien (1976) 1All NLR (Pt. 1) 460. In U.B.N. Ltd. v. Penny Mart Ltd. (1992) 5 NWLR (Pt. 240) 228 Ogundare, JCA (as he then was) put the issue very succinctly when at pages 245 – 246 he said.”
“One may now ask: what is the wrongful act of a creditor which gives a debtor a cause of complaint to seek to have it declared that he is owing his creditor a certain amount? And what is the consequent damage to him if his creditor fails to tell him (the debtor) how much the latter owes? The answers to these two questions must in my respectful view, be in the negative. One would think that it is for the debtor to pay to his creditor what he considers to be his indebtedness and if the creditor disputes this, it is for the latter to sue for what he considers to be the balance. The debtor may then setup the facts on which he has based his calculations as a shield to the creditor’s action; these facts cannot in my humble view, be a sword.”
Evidence that will serve as a shield and not as a sword, is what, generally, must be led at the trial of a case of debt by the party who denies owing the other party. A cursory reading of the reliefs claimed in this case will undoubtedly convey to one’s mind that the plaintiff who is denying any indebtedness will be leading evidence that will serve as a sword when the trial commences. I have related all the reliefs claimed to the averments in the statement of claim. The seizure of the plaintiff’s vehicle, whether rightly or wrongly – a matter yet to be decided – constitutes some injury to the plaintiff for now; he is being deprived of its use. The present injury having taken place. It cannot be said that further injury will not take place. It must always be remembered that in a case of this nature a court of law must readily be involved in the process of balancing the magnitude of an evil foisted on one party against the chances of re-occurrence. It is apposite to recall the words of Lord Brougham in Earl of Ripon v. Hobart (1834) 3 MY & K 169 when at page 176 he said and I quote:
“Proceeding upon practical views of human affairs, the law will guard against the risks which are so imminent that no prudent person would incur them .” Also, Lord Denning put the issue more pungently in Pyx Granite & Co. v. Min. of Housing and Local Government (1958) 1 Q.B. 554 when at page 571, he observed,
“If a substantial question exists which one person has a real interest to raise, and the other to oppose, then the court has discretion to resolve it by a declaration….” The Judicial Committee of the Privy Council, in substance, approved of Lord Denning’s observation in its decision in Ibeneweka v. Egbuna (1964) 1 WLR 219. The facts of this case are quite distinguishable from those of the U.B.N. Ltd. case supra. The result, therefore is that, following all the principles of law that I have reviewed supra, issue No.2 on the appellant’s brief of argument must be answered in the affirmative. I so answer it.
In the final analysis, I adjudge this appeal to be meritorious it is accordingly allowed. The judgment dated 6th September, 2000 and the ruling dated 18th January, 2001, both by the lower court, are hereby set-aside. The case is remitted to the Chief Judge of the High Court of Lagos State for re-assignment to another Judge for retrial of the substantive suit.
The appellants are entitled to the cost of this appeal which I adjudge in their favour at N5,000.00

OGUNTADE, J.C.A.: I read before now a copy of the lead judgment by my learned brother Aderemi, JCA. I agree with his reasoning and conclusion. I would also allow this appeal with N5,000.00 costs in favour of the appellant.

CHUKWUMA-ENEH, J.C.A.: I agree.
Appeal allowed.

 

Appearances

J.K. Gadzama, SAN (with him, Messrs Obi and Nkire)For Appellant

 

AND

C.O. Akpamgbo, SAN (with him, Messrs Isaac Anunobi, Chris Njoku and Chris Okon)For Respondent

 

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