PAN OCEAN OIL CORPORATION (NIG) LTD v. THERMOSTEEL (NIG) LTD
(2020)LCN/15328(CA)
In The Court Of Appeal
(ASABA JUDICIAL DIVISION)
On Thursday, July 16, 2020
CA/AS/338/2019
Before Our Lordships:
Ayobode Olujimi Lokulo-Sodipe Justice of the Court of Appeal
Mohammed Ambi-Usi Danjuma Justice of the Court of Appeal
Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal
Between
PAN OCEAN OIL CORPORATION NIGERIAN LIMITED APPELANT(S)
And
THERMOSTEEL NIG. LTD RESPONDENT(S)
RATIO
WHETHER OR NOT REASON MUST BE GIVEN FOR DECISIONS
In MR EMMANUEL AGBANELO v UNION BANK OF NIGERIA LIMITED (2000) LPELR –234(SC) per KARIBI-WHYTE, JSC.
“It is an elementary and essential ingredient of the judicial function that reasons are to be given for decisions. It is the more important where appeals lie from the decisions. In any case, the reasons for decisions enable the determination on appeal whether the decisions was merely intuitive and arbitrary or whether it is consistent with established applicable principles. If judgments were to be delivered without supporting reasons, it will be an invitation to arbitrariness, a rule of merely tossing the coin and likelihood to result in juridical anarchy. However, a judgment will not be set aside merely because the reasons given were bad if the judgment itself is right.”
See; MRS CAROLINE AGBODIKE v MR EMEKA AGBODIKE (2016) LPELR – 40953(CA) where PEMU JCA held;
“Rulings, Judgments all come within the ambit of the word DECISION’’ And a sound decision “within the meaning of the word, must provide REASONS for the decision, to give it legal effect. Therefore, any decision without reasons for it is liable to be set aside.’’
See also; UDO v EKPO & ANOR 2016 LPELR-41383 (CA); FRN v IKUFORIJI (2016) LPELR – 43745(CA); GABBY STORES (NIG) LTD v MAGAJI &ANOR (2015)LPELR – 40381(CA); OBMIAMI BRICK & STONE (NIG) LTD v ACB LTD (1992) LPELR – 2177 (SC); ALHAJI (DR) ALIYU AKWE DOMA & ANOR v IDEPENDENT NATIONAL ELECTORAL COMMISSION & ANOR (2012) LPELR – 7822 (SC). PER OBASEKI-ADEYEMO, J.C.A.
ESSENTIALS OF A GOOD JUDGEMENT
The Apex Court in MBANEFO v MOLOKWU & ORS (2014) LPELR – 22257 (SC) in defining the essentials of a good judgment held thus;
“While a trial Court has uninhibited discretion in the style of writing its judgment. There are some steps it must follow in reaching a fair judgment which include the following: (a) it should start by first considering the evidence led by the plaintiff to see whether he has led evidence on all material issues he needs to prove. At this point, there is no question of proof or belief or non – belief of the witness. If the plaintiff failed to lead evidence or if the evidence led by him is so patently unsatisfactory, then he has not made out a prima facie case in which case the trial Court does not need to consider the case of the defendant; (b) the next step is for the trial Court to evaluate the evidence and in so doing, it was to bear in mind the following processes; (i) on whom the onus of proof lies; and (ii) whether the particular type of evidence called requires any special approach; (c) after evaluating the evidence, the trial Court should then make its findings which having regard to the party on whom the onus lies, then determine its ultimate effect. It is to be said that any other approach by the trial Court different from the methods above stated will give an unfair advantage to the defendants and create an unfair trial with the implication that the Court was unfair in trial to one of the parties to the dispute. See Anuforo v. Obilor (1997) 12 NWLR (Pt. 530) 661. It is note – worthy that a trial Court while writing its judgment has to display a clear understanding of the facts in the case, the issues involved and the relevant applicable laws. Again, the Court of trial is expected to draw the correct conclusion and an appropriate finding on the evidence before it. Then follows that the judgment would show a fair and even handed treatment of the materials proffered by the parties before that Court. It is for these cautionary steps that a trial Court is enjoined not to start its judgment by first considering the defendant’s case and its weakness unless it has first considered the plaintiff’s case otherwise it could produce a situation of a pre – judgment before all the facts and materials necessary have been taken in by the Court in a balanced process. See Trade Bank Plc v Chami (2003) 13 NWLR (Pt. 836) 158 at 196; Mogaji v Odofin (1978) 4 Sc 9; Anuforo v Obilor (1997) 11 NWLR (PT. 530) 661; Okpokpo v Uko (1997) 11 NWLR (Pt. 527) 94; Ogundulu v Philips (1973) 1 NMLR 267; Asiemo v Amos (1975) 2 SC 57; Ojogbue v Nnubia (1972) 6 SC 227.”
per PETER – ODILI, JSC (PP. 42 – 43, PARAS. C – G)
This honorable Court also on the essential components of a good judgment, held in OYEKOLA & ORS v AMODU (2017) LPELR – 42391 (CA) thus;
“The Supreme Court in the case of ORO V FALADE (1995) 5 NWLR PP 407 – 408 stated what constitutes a good judgment. Ogwuegbu JSC held that: “The constituent parts of a good judgment include the following: a. The issues or questions to be decided. b. The essential facts, namely the case of each party and the evidence, or in appeals, the argument in support of each; c. The resolution of the issues of fact and law. d. The conclusion or the general inference from the facts and the law as resolved and e. The verdict and consequential orders.…”
Per DONGBAN – MENSEM, JCA (P. 16, PARAS B – F)
See also; OMOTOLA & ORS v STATE (2009) LPELR – 2663 (SC); LAGOS STATE URBAN RENEWAL AUTHORITY & ANOR v OKOLO & ORS (2010) LPELR – 4421 (CA); OVUNWO & ANOR v WOKO & ORS (2011) LPELR – 2841 (SC). PER OBASEKI-ADEYEMO, J.C.A.
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A. (Delivering the Leading Judgment): This appeal stems from the decision of the High Court of Delta State, sitting at Effurun (hereinafter referred to as the lower Court), coram Hon. Justice M. N. OBI. The judgment was delivered on the 18th day of July, 2018 wherein the learned trial judge summarily entered judgment in favour of the Respondent against the Appellant in the absence of Appellant.
A brevity of the facts is that; on 4th November, 2011, the Appellant entered into an agreement with the Respondent to render services of monitoring the Appellant’s oil facilities in OML 98. The agreement was subsequently renewed and it expired on 31st May, 2016. On 20th March, 2018, the Respondent instituted an action against the Appellant under summary judgment proceeding, claiming the sum of N 10, 905, 235. 74 (Ten Million, Nine Hundred and Five Thousand, Two Hundred and Thirty-five Naira, Seventy-four Kobo). On the 18th of July, 2018 when the matter came up for the second time before the lower Court after leave was granted to issue and serve the writ of summons outside jurisdiction. The learned trial judge proceeded to entertain the Respondent’s application for summary judgment and after moving the application in terms of the motion paper, the learned trial judge entered judgment in favour of the Respondent in the following terms;
“Judgment is hereby entered in favour of the Claimant as per the Claimants claim contained in paragraph 12 of the statement of claim.”
Dissatisfied with the judgment, the Appellant filed her Notice of appeal on 17th March, 2020 and its brief of argument was dated on 25th March, 2020 while its Reply brief was filed 4th June, 2020 both were settled by Ayo Asala (SAN); Obare P. Dafiaghor AcArb; U. A. E Akporherhe (Mrs); E. E Aboli Esq., O. M Kuejubola Esq. of Ayo Asala (SAN) & Associates. Two issues were formulated for determination thus;
“i. Whether the learned trial judge was right when he failed to give any reason for the judgment delivered on 18/7/2018.
ii. Whether the proceedings and subsequent judgment of the learned trial judge delivered on 18/7/2018 is in breach of the appellant’s right to fair hearing and therefore liable to be set aside for lack of jurisdiction.”
In like manner, the Respondent filed its brief of argument on 28th May, 2020 and settled by R. A. Ekpe, Esq of Roland A. Ekpe & Co, wherein the following issues were distilled for determination;
“1. Whether given the facts and circumstances of this case, the learned trial Judged(sic) was right in entering judgment in favour of the Respondent?
2. Whether the lower Court had jurisdiction to entertain the case?”
APPELLANT’S SUBMISSIONS
The Appellant submits that the trial judge was wrong when he failed to give any reason for the judgment and cited the cases of AGBANELO v UBN (NIG) LTD (2000) 7 NWLR (PT. 666) 534; OGBORU & ANOR v UDUAGHAN & ORS (2012) LPELR – 8287 SC in contending that it is the duty of every Court in the determination of a matter before it is to state the reasons for its conclusion in order not to leave the parties in the dark as to how the Court arrived at its decision.
It is the further submission of the Appellant that the judgment of the lower Court at page 83 of the record does not satisfy the conditions for a good and valid judgment as the trial judge did not review and/or consider the application for summary judgment including the 20 paragraph affidavit evidence and the various attachment before coming to the conclusion in the judgment, neither was any reason given by the lower Court judgment, ONYERI & ORS v NWOSU & ORS (2015) LPELR – 25751 (CA); OGBORU v UDUAGHAN (SUPRA) were cited in aid.
Relying on IKENYA v PDP (2012) 12 NWLR (PT. 1315) 493, Appellant submits that where no reason is given for a judgment, such judgment is invalid and liable to be set aside.
On issue 2, it is the Appellant’s contention that the proceedings and subsequent judgment of the learned trial judge delivered on 18th July, 2018 is in breach of its right to fair hearing and are therefore liable to be set aside.
Considering the entire proceedings of the lower Court, the Appellant submits that the proceedings were conducted in breach of the Appellant’s right to fair hearing and enumerated certain reasons for its submissions. And went on to submit that the lower Court did not confirm service of any originating process on the Appellant when the matter came up on 18/7/2018 after 3 months from the last adjourned date.
He posits that the learned trial judge did not see the need for issuance and service of hearing notice on the Appellant before proceeding to entertain the application for summary judgment and deliver judgment immediately despite the fact that the application was not fixed for that date.
ASHIRU v AYOADE (2006) 6 NWLR (PT. 976) 405 at 425 – 426 was cited in submitting that the determination of an action timeously cannot be at the expense of justice being sacrificed on the altar of speed, which will work injustice to a party in the action.
In conclusion, the Appellant urges the Court to allow this appeal and set aside the judgment of the lower Court for the following reasons; 1. The judgment delivered by the learned trial judge falls short of the constituents of a good and valid judgment, ii. The learned trial judge did not give any reason for the judgment delivered on 18th July, 2018 and thereby rendered the judgment a nullity, iii. The proceedings and the judgment of the learned trial judge delivered on 18th July, 2018 were conducted in breach of the Appellant’s right to fair hearing.
RESPONDENT’S SUBMISSIONS
The Respondent submits that given the facts and circumstances of the case; the trial judge was right in entering judgment in its favour. That it is necessary for this Court to consider the circumstances of the case leading to the said judgment to appreciate the issue at hand. That the originating processes together with the motion for summary judgment all dated and filed on the 20th day of March, 2018 were duly served on the Appellant on the 16th April, 2018 through one Mrs. Olaitan Adedeji, the acting Head of Legal services of the Appellant, who acknowledged receipt of same by signing on the face of some of the processes. The date and time of service of the processes as deposed to by the Bailiff of the lower Court coincides with the date and time endorsed by Mrs. Olaitan Adedeji on the said processes.
Respondent submits further that all Court processes were duly served on the Appellant in accordance with the provision of the law relating to service of Court processes on the Appellant’s acting Head of Legal services but the Appellant did not only fail to enter an appearance to the suit, she failed to file her statement of defence, depositions of her witnesses, the documents she intends to use for her defence and a written brief in response to the application for summary judgment as required by Order 11 Rule 4 of the Rules of the lower Court; UNITED NIG. PRESS LTD v ADEBANJO (1969) LPELR – 25571 (SC) was cited in aid.
The Respondent contends and was not contradicted in her belief that the Appellant had no defence to the claim. The Appellant up till now has not contradicted that deposition nor explained her absence, in the Appellant’s affidavit in support of her motion for setting aside the judgment of the lower Court dated 4/12/18 but filed 5/12/18, the Appellant did not state anywhere that she had a good defence to the claim and did not disclose any.
UGBOAJA v AKINNTOYE SOWEMIMO (10/7/08) (2008) 16 NWLR (PT. 1113) 278; GODSGIFT v STATE (2016) 261 LRCN 75; LONGE v FIRST BANK PLC (2010) 6 NWLR (PT. 1189); VEE PEE INDUSTRIES LTD v COCOA INDUSTRIES LTD (2008) 13 NWLR (PT. 1105) 486; AKPAN v UMOH (1999) 11 NWLR (PT. 627) 349 were cited in submitting that a party who is duly served with processes but fails to react to the issue in contention is deemed to have conceded the issue to his opponent, and the Appellant’s failure to file a statement of defence, counter affidavit and a written brief in response to the Respondent’s claim and motion for summary judgment adds up to a clear admission and an affirmation of the Respondent’s belief that the Appellant has no defence to claim.
The Respondent further submits that the Appellant failed to show how the failure of the lower Court to give reasons for its judgment occasioned miscarriage of justice to the Appellant. That this issue viewed against the background of the facts of the case is purely academic.
On issue 2, Counsel submits that the Respondent’s claim for the sum of N10, 905, 235. 74 (Ten Million Nine Hundred and Five Thousand Two Hundred and Thirty – five Naira, Seventy – four Kobo) was within the jurisdiction of the lower Court; CUSTOMARY COURT OF APPEAL, EDO STATE v AGUELE (2017) LPELR – 44632 (SC); MADUKOLU v NKEMDILIM (1962) SCNLR 341 were cited in aid.
Counsel further submits that the writ of summons was duly endorsed for service outside the jurisdiction of the lower Court in compliance with the provisions of Section 97 of the Sheriffs and Civil Process Act. NIC OIL NETWORK SERVICES (NIG) LTD v BAMOD OIL (NIG) LTD (2014) LPELR – 24629 (CA); CHELLARAMS PLCS. v ADEYEMI (2018) LPELR – 46016 (CA); MOBIL PRODUCING (NIG) LTD v EFFIONG (2011) LPELR – 9055 (CA) was cited in submitting that the only way to challenge an affidavit of service is by deposing to a counter affidavit.
Respondent opines that the Appellant who was duly served with Court processes and thus given an opportunity of being heard, but failed to utilize it, cannot subsequently complain that her fundamental right to fair hearing was breached. The lower Court duly satisfied itself that the Appellant was served; the lower Court was in order to have exercised its discretion to proceed with the case to judgment.
In conclusion, Respondent urge the Court to dismiss the appeal and uphold the decision of the lower Court.
APPELLANT’S REPLY
The Counsel submits that the Respondent failed to address issue one raised by the Appellant and it is therefore deemed that the Respondent concedes to the Appellant’s contention under this issue. FULANI v STATE (2018) LPELR – 45195 (SC).
In reply, to the Respondent’s submission in paragraphs 3. 26 & 3. 30 of her brief, the Counsel submits that the mere fact that the Appellant did not file defence at the trial Court is not an excuse for the learned trial judge not to give reason for his judgment. A judgment of Court either by default or failure to file defence must contain the reason for the judgment. That without the reason for the judgment, there is no way that the aggrieved party can adequately exercise his constitutional right of appeal against the judgment.
On the whole, Counsel urges the Court to allow the appeal and set aside the judgment of the lower Court.
RESOLUTION
For avoidance of doubt the Appellant’s grouse is twofold, the parties have both formulated issues for the determination of this appeal, I find that the issues distilled by the Appellant covers all necessary areas of concern in this suit; it shall therefore be adopted in resolving this appeal.
Flowing from the facts of this case as summarized above and the record before the Court, the Respondent claimed for the following before the lower Court;
a) The sum of N10, 905, 235. 74 (Ten Million Nine Hundred and Five Thousand Two Hundred and Thirty – five naira, Seventy – four Kobo) being outstanding balance of debt the defendant owes the claimant under an agreement executed between the parties, whereby the claimant provided monitoring services in respect of the defendant’s facilities in OML 98 Edo and Delta State between 2011 and 2016 under which the claimant submitted various invoices amounting to the total sum of N15,563, 271. 45 (Fifteen Million Five Hundred and Sixty – three Thousand Two Hundred and Seventy – one Naira, Forty – five Kobo) out of which the defendant only paid the sum of N4, 658, 035. 71 (Four Million six hundred and Fifty – eight Thousand and Thirty – five Naira Seventy – one Kobo) leaving a balance sum of N10, 905, 235. 74. The defendant has failed neglected and/or refused to pay the aforesaid sum of N10, 905, 235. 74 despite repeated demands for same by the claimant. The series of contracts were executed in Effurun within the jurisdiction of this honourable Court.
b) 20% interest per annum on the aforesaid sum of N10, 905, 235. 74 from the date of judgment till the final liquidation of same.
See paragraph 12 of the statement of claim at page 4 of the record.
The lower Court in its judgment granted the claim in these terms;
“Judgment is hereby entered in favour of the claimant as per the Claimants Claim contained in paragraph 12 of the statement of claim.”
The above is the grouse of the Appellant, that there is no reasoning for the judgment. In MR EMMANUEL AGBANELO v UNION BANK OF NIGERIA LIMITED (2000) LPELR –234(SC) per KARIBI-WHYTE, JSC.
“It is an elementary and essential ingredient of the judicial function that reasons are to be given for decisions. It is the more important where appeals lie from the decisions. In any case, the reasons for decisions enable the determination on appeal whether the decisions was merely intuitive and arbitrary or whether it is consistent with established applicable principles. If judgments were to be delivered without supporting reasons, it will be an invitation to arbitrariness, a rule of merely tossing the coin and likelihood to result in juridical anarchy. However, a judgment will not be set aside merely because the reasons given were bad if the judgment itself is right.”
See; MRS CAROLINE AGBODIKE v MR EMEKA AGBODIKE (2016) LPELR – 40953(CA) where PEMU JCA held;
“Rulings, Judgments all come within the ambit of the word DECISION’’ And a sound decision “within the meaning of the word, must provide REASONS for the decision, to give it legal effect. Therefore, any decision without reasons for it is liable to be set aside.’’
See also; UDO v EKPO & ANOR 2016 LPELR-41383 (CA); FRN v IKUFORIJI (2016) LPELR – 43745(CA); GABBY STORES (NIG) LTD v MAGAJI &ANOR (2015)LPELR – 40381(CA); OBMIAMI BRICK & STONE (NIG) LTD v ACB LTD (1992) LPELR – 2177 (SC); ALHAJI (DR) ALIYU AKWE DOMA & ANOR v IDEPENDENT NATIONAL ELECTORAL COMMISSION & ANOR (2012) LPELR – 7822 (SC).
This honorable Court per OSEJI, JCA has also held in OKONKWO & ANOR v NWAOSHAI (2016) LPELR – 41418 (CA) thus;
“Every Court and moreso, a superior Court of record has the bounden duty to entertain and hear any motion placed before it by litigants, one way or the other. The Court must give reasons for its decision. In the instant case, the one sentence Ruling/Order by the Lower Court notwithstanding the affidavit and counter affidavit evidence presented by the feuding parties, as well as the written submissions in support of same is no doubt an aberration that could not be allowed to stand. The Ruling/Order of the lower Court did not state any reason or reasons for granting the order to recall the CW1. It renders it vague and unacceptable. See AGBANELO VS UBN LTD (2000) 7 NWLR (PT. 666) 534; OJOGBUE VS NNUBIA (1972) ALL NLR 226; OVUNWO VS WOKO (2011) 17 NWLR (PT. 1277) 522. To my mind, the act of the Lower Court in rendering a Ruling/order in one sentence from well contested motion on notice smacks of nothing but an unfair hearing to the parties and such Ruling/Order cannot be sustained or supported by an appellate Court. See S. B. N PLC VS B. A. O MOTORS (NIG) LTD (2004) 7 NWLR (PT. 873) 579.”
(P. 11, PARAS A – F)
See also; DAUDU v FRN (2018) LPELR – 43637 (SC); FCDA STAFF MULTI – PURPOSE COOPERATIVE SOCIETY & ORS v AMBROSE SAMCHI & ANOR (2018) LPELR – 44380 (CA); BOBAI v ACHI & ANOR (2015) LPELR – 25901 (CA); EFCC v. DADA (2014) LPELR –24256 (CA).
The Apex Court in MBANEFO v MOLOKWU & ORS (2014) LPELR – 22257 (SC) in defining the essentials of a good judgment held thus;
“While a trial Court has uninhibited discretion in the style of writing its judgment. There are some steps it must follow in reaching a fair judgment which include the following: (a) it should start by first considering the evidence led by the plaintiff to see whether he has led evidence on all material issues he needs to prove. At this point, there is no question of proof or belief or non – belief of the witness. If the plaintiff failed to lead evidence or if the evidence led by him is so patently unsatisfactory, then he has not made out a prima facie case in which case the trial Court does not need to consider the case of the defendant; (b) the next step is for the trial Court to evaluate the evidence and in so doing, it was to bear in mind the following processes; (i) on whom the onus of proof lies; and (ii) whether the particular type of evidence called requires any special approach; (c) after evaluating the evidence, the trial Court should then make its findings which having regard to the party on whom the onus lies, then determine its ultimate effect. It is to be said that any other approach by the trial Court different from the methods above stated will give an unfair advantage to the defendants and create an unfair trial with the implication that the Court was unfair in trial to one of the parties to the dispute. See Anuforo v. Obilor (1997) 12 NWLR (Pt. 530) 661. It is note – worthy that a trial Court while writing its judgment has to display a clear understanding of the facts in the case, the issues involved and the relevant applicable laws. Again, the Court of trial is expected to draw the correct conclusion and an appropriate finding on the evidence before it. Then follows that the judgment would show a fair and even handed treatment of the materials proffered by the parties before that Court. It is for these cautionary steps that a trial Court is enjoined not to start its judgment by first considering the defendant’s case and its weakness unless it has first considered the plaintiff’s case otherwise it could produce a situation of a pre – judgment before all the facts and materials necessary have been taken in by the Court in a balanced process. See Trade Bank Plc v Chami (2003) 13 NWLR (Pt. 836) 158 at 196; Mogaji v Odofin (1978) 4 Sc 9; Anuforo v Obilor (1997) 11 NWLR (PT. 530) 661; Okpokpo v Uko (1997) 11 NWLR (Pt. 527) 94; Ogundulu v Philips (1973) 1 NMLR 267; Asiemo v Amos (1975) 2 SC 57; Ojogbue v Nnubia (1972) 6 SC 227.”
per PETER – ODILI, JSC (PP. 42 – 43, PARAS. C – G)
This honorable Court also on the essential components of a good judgment, held in OYEKOLA & ORS v AMODU (2017) LPELR – 42391 (CA) thus;
“The Supreme Court in the case of ORO V FALADE (1995) 5 NWLR PP 407 – 408 stated what constitutes a good judgment. Ogwuegbu JSC held that: “The constituent parts of a good judgment include the following: a. The issues or questions to be decided. b. The essential facts, namely the case of each party and the evidence, or in appeals, the argument in support of each; c. The resolution of the issues of fact and law. d. The conclusion or the general inference from the facts and the law as resolved and e. The verdict and consequential orders.…”
Per DONGBAN – MENSEM, JCA (P. 16, PARAS B – F)
See also; OMOTOLA & ORS v STATE (2009) LPELR – 2663 (SC); LAGOS STATE URBAN RENEWAL AUTHORITY & ANOR v OKOLO & ORS (2010) LPELR – 4421 (CA); OVUNWO & ANOR v WOKO & ORS (2011) LPELR – 2841 (SC).
I am not ignorant of the fact that styles of writing judgments would differ; every judge has his preferred format for writing judgments, however, “A judgment without a clear cut or discernible reason(s) for its decisions is to say the least a disservice to both the winner and loser in the litigation before that Court. To the winner, he may not to be able to defend his pyrrhic victory, while to the loser, he may need the ingenuity of an experienced counsel to couch grounds of appeal against such a judgment without any “ratio decidendi.”, see; DERIBA v STATE (2016) LPELR – 40345 (CA).
The judgment of the lower Court IS BEREFT OF any reasoning, analysis or conclusion on any aspect of the Respondent’s case, it also lacks a demonstration of a full dispassionate consideration of the issues properly canvassed and heard. I have read the Claimant’s affidavit evidence, the written address together with an analysis of the exhibit and the judgment must reflect the result of such exercise. We are unable to say that the judgment in this case as it stand did this and we cannot allow it to stand.
On the second issue, the processes to be served by the Defendant was the Enrollment Order to be served on the Appellant at her address; the Ark Towers, Plot 17, Ligali Avenue, Victoria Island, Lagos state, outside the jurisdiction of the honorable Court. This service was duly acknowledged by one Mrs Olaitan Adedeji, thus;
“Received by;
Olaitan Adedeji (Mrs)
Ag. Head, Legal Services
Signed
16/04/18″
and the respective times for both Originating processes.
The Respondent’s counsel who was counsel for the Claimant at the lower Court at page 4 paragraph 3.8, and page 5 paragraph 311 and 3.12 of his brief had admitted thus;
On the 23rd day of May, 2018, the Respondent filled a notice of motion for an order setting down the suit for hearing. The lower Court fixed the said motion for hearing for the 18th day of July, 2018. The motion was duly served on the appellant on the 20th day of June, 2018 at 10.20am… The suit came up on the 18th July 2018. As at that date there were two pending motions before the lower Court. Upon being satisfied that the appellant was duly served with the processes of Court, the trial Judge was perfectly at liberty to proceed with the case, in the absence of any application for adjournment… The lower Court was satisfied with the affidavits of service and the endorsement of the appellant on the faces of the pending motions. The appellant on the faces of the pending motions. The counsel opted to withdraw the motion dated and filed on 23rd May, 2018 for setting down the suit for hearing and moved the respondent’s motion for summary judgment in terms of the motion paper because the appellant had filed no defence and written brief…’’
A brief look at the records reveal that at pages 143-145; Motion exparte for leave to issue and serve the summons on the Defendant was heard on 26th March, 2018, there was no return date. The processes served were (see pages 68; Enrolment of Order, Motion on notice to set down the suit for hearing dated 20th March, 2018, fixed for “Wed., the 12th, July, 2018’’, while Summary judgment application filed on 30th May, 2018 served and received on 16th April, 2018 by the Defendants was not fixed for hearing on the face of it. At page 38 of the records is the Court’s copy, it is endorsed that it was moved and granted on the 18th, July, 2018 but was on the face of it fixed for hearing for “3rd May, 2018’’. The posers that arises there from are;
i) Motion for summary judgment served did not carry any date for hearing. See page 68.
ii) The Court endorsed copy carried the date of 3rd April, 2018 as hearing date. See page 38
iii) When was the motion adjourned or re-fixed if at all?
iv) There is no proceeding in the record indicating this.
v) No hearing notice to this effect was communicated to the Defendant from the record of appeal.
The Appellant’s counsel did not receive notice of the new date of the application before hearing in Court on 18th July, 2018.
At page 77 of the record, during proceedings, the lower Court did not verify service or what was served; from the Court’s file even though, it was the second time the matter coming up before the Court. It was for the motion to set down the suit for hearing fixed for that day, “the 18th May, 2020”, the Defendant withdrew the motion for setting down which was struck out but right after this, the Court proceeded to hear the Application for Summary judgment without putting the Appellant on notice for hearing of same, and granted same summarily. See; MRS IFEANYI OBIOZOR v BABY NNAMUA (2014) LPELR – 23041(CA); ALHAJA (CHIEF) WAIDI OLATUNJI v LASSIS ADEDAPO &ORS (2013) LPELR – 22155(CA).
The lower Court ought to have adjourned to issue hearing notice to the Defendant (who had no notice that it had been changed from 3rd May, 2018) before proceeding to hear the Application for Summary judgment. It was the application for setting down that was fixed but instead the substantive action, this amounted to a breach of fair hearing of the Claimant’s right, which at the final result deprived her from presenting her case.
In GENERAL ELECTRICAL COMPANY v AKANDE & ORS (2010) LPELR – 8097 (SC) the apex Court held thus;
“It is totally wrong for all Courts below to take an appeal which has not been fixed for hearing on a particular date. The Court cannot hear an appeal on a date fixed for hearing of a motion without the consent of both parties and the Court.”
per MUNTAKA – COOMASSIE, J.S.C (P. 7, PARAS. A-B).
Also, in the case of ONONYE v CHUKWUMA & ORS (2005) LPELR – 7526. The Court held in this scenario held thus;
“What is truly alarming, and which agitates my mind, is that the learned trial Judge not only entertained the motion on notice “to commit the defendants to prison” but also proceeded to grant the said application on the same day the motion was filed, behind the appellant’s back. A motion is an application to a Court directing something to be done in the applicant’s favour. Ordinarily, a motion is to be made only after a notice has been given to the parties affected. It is true that in certain cases, it may be made ex-parte but in this case, the said motion filed on the 4th of May, 1999, was a motion on notice, and “notice” simply means knowledge or cognizance. In other words, to give notice is to bring matters to a person’s knowledge or attention – see Osborn’s Concise Law Dictionary, 6th Ed.
The learned trial Judge could not have been that ignorant as not to know that.”
per AUGIE, J.S.C (PP. 31-32, PARAS. C-B)
Furthermore, it is trite that should the Court be inclined to take the application for summary judgment, it can only with the consent of both parties, having not been the case, the lower Court was duty bound to adjourn the application mandatorily and order hearing notice on a new date for the application to ensure they become aware of the new date.
Fair hearing is a fundamental factor in every judicial proceeding, see; CHUKWUMA v FRN(2011) LPELR – 863(SC); PAM & ANOR v MOHAMMED & ANOR (2008) LPELR- 2895 Where apex Court held that;
“…the parties must each be notified of the relevant dates on which the matter will be heard.’’
It is however imperative to state here that these acts rendered the proceedings and judgment null and void, therefore, the issues 1 and 2 are resolved in favour of the Appellant.
On the whole, this appeal has merit and is allowed, the judgment of Hon. Justice MICHAEL NDUKA OBI of the High Court of Delta State, Effurun Judicial Division delivered on the 10th February, 2017 is hereby set aside. The case file is hereby directed to be returned to the Chief Judge of Delta State for reassignment to be heard expeditiously.
Parties are to bear costs.
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I agree.
MOHAMMED AMBI-USI DANJUMA, J.C.A.: I agree with my Lord, Abimbola Osarugue Obaseki-Adejumo, JCA that this appeal be allowed and the Judgment of the trial Court set aside and an expeditious retrial by another Judge to be designated by the Honourable Chief Judge, Delta State be conducted. There is no doubt that the adjournment of the motion for summary Judgment was taken without the Appellant having been first notified of the hearing date thereof. He was absent.
The said application was taken whereas, in fact it was the application for the Court’s order setting down the case for hearing that was fixed for the day.
It was only the service of the motion to set down the motion for summary, Judgment for hearing that was served. The withdrawal of the said motion on the date fixed for its hearing, i.e 18th May, 2020, did not entitle the Court to proceed brevi-manu to determine the motion for summary Judgment without first ensuring that the said motion had been served on the Appellant.
My learned brother has aptly addressed this issue with reference to apt applicable decisions such that I do not need to regurgitate and supply more authorities in this trite position of the law.
I have nothing more useful to add other than to emphasize, that for this non service of a hearing notice relating the motion and the consequential breach of the right of fair hearing, even if there had been any reason whether valid or not given in justification of the decision appealed, the Judgment/decision would in any case still have been a nullity.
This null decision is set aside and quashed.
There shall be an expeditious retrial of this case before another Judge as shall be designated by the Chief Judge of Delta State, and upon the assurance of the appropriate service of all the processes as required by law for the hearing thereof.
Appearances:
Ayo Asala, SAN with him, O. P. Dafiaghor (Miss.) and O. R. Alorge (Miss) For Appellant(s)
A. Ekpe with him, C. C. Ugwukwu For Respondent(s)
