UNION BANK (NIG) PLC v. A.C. MOORE & CO. LTD (2021)

UNION BANK (NIG) PLC v. A.C. MOORE & CO. LTD

(2021)LCN/15798(CA)

In The Court Of Appeal

(AWKA JUDICIAL DIVISION)

On Thursday, September 30, 2021

CA/AW/334/2010

Before Our Lordships:

Chioma Egondu Nwosu-Iheme Justice of the Court of Appeal

Isaiah Olufemi Akeju Justice of the Court of Appeal

Patricia Ajuma Mahmoud Justice of the Court of Appeal

Between

UNION BANK NIGERIA PLC APPELANT(S)

And

A.C. MOORE & COMPANY LIMITED RESPONDENT(S)

RATIO

WHETHER OR NOT ORIGINATING PROCESSES MUST BE PROPERLY SERVED ON A DEFENDANT

The law is that after its issue, a Writ of Summons or any originating process must be properly served on the defendant. The object of the service of Court process is to give notice to the defendant of the claims against him, so that he may be aware of and be able to resist if he so desires the claim against him. Such service must furnish such notice as provided by the rules of Court or such reasonable notice as may be ordered by the Court (where the Court abridge time) to afford the defendant an opportunity to appear and be heard: KIDA V OGUNMOLA (2006) 13 NWLR, PT 997, 377 and AJIBOLA V SOGEKE (2003) 9 NWLR. The issuance of a writ of summons/other originating process and its service on a defendant in a case are conditions precedent for the exercise of jurisdiction which the Court may have over the subject matter of the action and over the defendant. See KIDA V OGUNMOLA (SUPRA). ONONYE V CHUKWUMA (2005) 17 NWLR, PT 953, 90 and TENO ENG LTD V ADISA (2005) 10 NWLR, PT 933, 346. PER MAHMOUD, J.C.A.

THE POSITON OF LAW ON LIQUIDATED DEMAND

Proof of service of the originating process is a condition precedent to activating the use of this order. This condition as found has not been satisfied. This renders the use of this order incompetent as the service of the originating process is a condition sine qua non to the exercise of any jurisdiction on the defendant:
MARK & ANOR V EKE (2004) 5 NWLR, PT 865, 54; ACHUZIA V OGBOMAH (2016) NWLR, PT 1522, 59 and ONWUBUYA & ORS V IKEGBUNAM (2019) LPELR-49373(SC).

“10 (3) where the claim in the originating process is a liquidated demand and the defendant or all of several defendants fail to appear, a plaintiff may apply to a Judge for judgment for the claim on the originating process or such lesser sum and interest as a Judge may order.”
The Supreme Court in the case of MAJA V SAMOURIS (2002) 7 NWLR, PT 765, 78 defined ‘liquidated demand’ as “a debt or other specific sum of money usually due and payable and its amount must be already ascertained or capable of being ascertained as a mere matter of arithmetic without any other or further investigation. Whenever, therefore, the amount to which a plaintiff is entitled can be ascertained by calculation or fixed by any scale of charges or other positive data; it is said to be ‘liquidated’ or made clear.”
See also AKINGBADE V AFRICAN PAINTS (NIG) PLC (2008) and BASAWA V UNITY BANK PLC (2015) LPELR–25913 (CA). PER MAHMOUD, J.C.A.

THE POSITON OF LAW ON SERVICE OF ORIGINATING PROCESSES

The requirement for the service of hearing notice on the defendant/respondent is even more fundamental in the instant case where the originating process, i.e. the writ of summons was never served on the defendant/appellant. The need for service of the originating process on the defendant cannot be over-emphasized. It is what brings to his notice, the pendency as well as the nature of the claim against him so that he can take steps to defend the claim or challenge the suit if he so desires. Hearing notice in the circumstances is not only desirable but a legal requirement. If hearing notice had been issued to the defendant/respondent, he may have appeared in Court and informed the Court about the non-service of the originating process on it. This could have been rectified by the Court making an order for the defendant to be served except if the plan was to foist a summary judgment in an unliquidated money demand through the back door as has been so mischievously done!
The principle is well settled as evident from decided cases cited earlier in this judgment, that failure to issue hearing notice where notice is required as in the instant case renders the entire proceedings void and robs the Court of any jurisdiction to entertain the matter. For this reason and the other reasons given in this judgment, I hold that the judgment of the lower Court delivered on the 27th October, is void and an outright nullity. PER MAHMOUD, J.C.A.

PATRICIA AJUMA MAHMOUD, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the Anambra State High Court sitting in Onitsha and delivered by Hon. Justice V.N. Umeh on the 27th October, 2008. The Plaintiff/Respondent was purportedly a customer to the defendant Universal Trust Bank PLC (UTB), Bridge-head Branch Onitsha. In the course of that relationship in early 2002 there was an issue of spurious or dud cheques between the plaintiff/respondent and UTB which necessitated UTB’s letter to the plaintiff/respondent on the 18th July, 2002 in these terms: “… RE: SPURIOUS CHEQUE TRANSACTIONS INVOLVING YOUR CURRENT ACCOUNT NO 50123006. As you are aware, your above referenced current account witnessed lodgments of six spurious cheques of various banks on May 13th, 2002. The proceeds of the spurious cheques which amount to N11,640 million was credited to your account on May 21st, 2002 before they were discovered to be fraudulent. We have accordingly reversed the credits (See your copies of debit advice attached). Consequently, your account is now having a debit balance of N11,081,346.34. kindly arrange to clear the debit in order to avoid charges since your account is not enjoying any formal credit.”

Based on this letter, the plaintiff/respondent waited till 1st April, 2008 to take a Writ of Summons against the defendant/appellant who by this time had bought over UTB Plc claiming various sums, totaling N85,419,430,31. In default of appearance, the plaintiff/respondent filed a motion for judgment on the 2nd July, 2008 and filed the written address two months later on the 26th September, 2008. The trial Judge entered judgment in favour of the plaintiff/respondent as claimed except for the general damages for which he awarded N10,000,000 instead of the claimed sum of N20,000,000 bringing the total judgment sum to N75,419,420.31.

The defendant/Appellant contended that they only became aware of the pendency of the suit upon execution of the judgment. That having become aware of the default judgment against them, the defendant/appellant by a motion on notice dated and filed the 25th February, 2009, prayed the Court in these terms:
1) An order of the Court extending the time within which the applicant may apply to set aside the default judgment delivered on the 27th October, 2008.
2) An order of Court setting aside the judgment of his Lordship Hon. Justice V. N. Umeh delivered on the 27th October, 2008.
3) An order staying execution or further execution of the said judgment.
4) An order setting aside the writ of Attachment and sale dated 26th January, 2009.
5) An order letting in the defendant to defend by filling her statement of Defence.

The motion was supported by a twenty paragraph affidavit and some exhibits. It was also accompanied by a written address.

The plaintiff/respondent on its part, on being served with the Motion filed what they termed ‘affidavit of facts’, a counter-affidavit and a written address in opposition to the motion. The records show the plaintiff/respondent as filing further counter affidavits and other processes. After hearing both parties on this motion to set aside the default judgment, his Lordship in his ruling delivered on the 19th July, 2010 refused the application and struck same out.

The ruling refusing the application to set aside the default judgment formed the basis of this appeal dated and filed on the 19th July, 2010, in which the appellant appealed on two grounds. This appeal was however argued on the Further Amended Notice of Appeal dated 7th March 2016 (as the date of filing is too faint and not readable from the stamp).

The three grounds and their particulars upon which the appellant premised its appeal are:
A) ERROR OF LAW
The learned trial Judge erred when he refused to set aside the default judgment entered against the defendant on the 27th day of October, 2008 when he knew or ought to know he was not imbued with the requisite jurisdiction in the first instance.
PARTICULARS OF ERROR
1. The defendant/Appellant clearly showed in the application to set aside the said judgment that the bank was not served with the originating processes and the motion for judgment thus robbing the Court of the requisite jurisdiction.
2. The plaintiff/respondent failed and/or refused to disclose to the trial Court the correct position of the banking transaction which involved fraudulent cheques.
3. The plaintiff/respondent’s claims were not for simple debt or liquidated money demands.
4. Order 10 Rule 11 and Order 20 Rule of High Court of Anambra State (Civil Procedure) Rules, 2006 on which the trial Court relied provided for setting aside judgment by default in the given circumstance.
5. The defendant/Appellant’s affidavit in support of the motion to set aside disclosed a good defence and triable issues
6. The Originating processes as filed and seen in the Records were defective and therefore robbed the Court of jurisdiction.
7. The learned trial Judge neglected the clear principles of natural justice. The trial Judge’s holding led to grave miscarriage of justice.
B) ERROR OF LAW
The learned trial Judge erred when he held as follows:
“Since there is sufficient proof of service of the processes on the defence which service conferred jurisdiction on the Court (the bedrock and competency of Court to adjudicate in a matter, the judgment so entered is valid and can only be set aside on appeal, more so as the defence has only stated that it has a good defence on the merit without exhibiting proposed statement of defence and depositions of witness to enable the Court decide whether or not it has a good defence to the action. The defendant having failed to do so, this application fails. See Williams V HOPE RISING VOLUNTARY FUNDS SOCIETY (1982) 1 ALL NLR (Part 1) Page 1”
PARTICULARS OF ERROR
1. The learned Trial Judge misapplied the rule of holding in Williams V Hope Rising (Supra).
2. There was no proof of service of the processes at the material time in the record of the Court except the bailiff’s affidavit in support of the Respondent’s Counter affidavit deposited (and back-dated) after the judgment and the application to set aside.
3. The judge failed to properly resolve the issue of service especially when it was made an issue in the application.
4. The trial Judge had already entered judgment and signed the Writ of execution so the issue of filing a Statement of Defence and depositions did not arise in the given circumstance.
5. The various affidavits and further affidavits in support of the motion to set aside the judgment clearly showed fraud and disclosed solid and triable defence.
6.The trial Judge’s holding occasioned a grave miscarriage of justice.
C) ERROR OF LAW
The learned trial Judge erred in law when he relied on the mere and tainted depositions of the Bailiff Egonu, filed after the motion to set aside the default judgment was filed when there were no proper earlier proofs of service (as known to Form and law) of the originating processes and the motion for judgment before the Court at the time of giving the judgment of 27th October, 2008.
PARTICULARS OF ERROR
1. The bailiff who purportedly served the processes only filed an affidavit in support of the respondent’s counter-affidavit without stating that there were formal proofs of service.
2. The trial Judge in his ruling made no specific reference to the proof of service.
3. The respondent only brought the two proofs of service of the originating processes and he motion for judgment after the Appellant had raised the issue in the motion to set aside and the Court’s ruling
4. The respondent brought the said proofs by way of additional/supplementary records thus showing that same were not in the original record at the time of delivering the ruling.
5. The holding of the trial Judge as above led to a grave miscarriage of justice.

The Appellant’s amended brief upon which their appeal was argued, dated and filed on the 20th May, 2016, was settled by MR. C. H. Onyiuke. The Appellant distilled three issues therefrom for the determination of Court thus:
1. Whether the trial Judge rightly refused to set aside the default judgment especially given the disclosure in the affidavits in support of the application to set aside (GROUND 1 of the Further Amended Notice And Grounds)
2. Whether in the given circumstances non-filing of a statement of Defence and witnesses’ deposition are a veritable ground to refuse to set aside a clear default judgment especially as it has been shown there was no proof of service of Court processes (Ground 2 of the Further Amended Notice And Grounds)
3. Whether there were valid and unimpeachable proofs/affidavits service of the originating processes and a certain motion for judgment as now filed by the respondent as supplementary records before the Court in the first instance when it entered the default judgment (GROUND 3 of the Further Amended Notice And Grounds).

The Appellant also filed a reply brief on the 6th January, 2017. This was deemed as properly filed and served on the 30th April, 2019.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

In arguing the appeal, MR. C. H Onyiuke, of counsel for the appellant adopted both briefs as their legal arguments in support of their appeal.

The Respondent’s brief was settled by MR. B. C. Uzuegbu, of counsel and filed on the 12th August, 2016. The brief was deemed as properly filed and served on the 6th December, 2016. In it, counsel adopted the three issues as raised by the appellant. This is a refreshing development from the now established practice where respondents think to be in opposition necessarily involves filing distinct and separate issues from those of the appellant. On the contrary, the respondent is able to respond more effectively to the issues formulated by the appellant where he adopts them rather than formulate his own issues.

I have considered the three issues as raised and adopted by the parties. It is perhaps wise to first deal with issue (3). This issue questions the service or lack of service of the originating process and hearing notice on the appellant. For a proper consideration of these issues, it is in my view pertinent to consider the records, especially of the proceedings on the date the motion for judgment resulting in this appeal was considered and taken. The relevant proceedings are to be found at pages 242–243 of the record. For clarity and ease of reference I reproduce them:
“HOLDEN AT ONITSHA
BEFORE HIS LORDSHIP HON. JUSTICE V. N. UMEH
ON MONDAY THE 22ND DAY OF SEPTEMBER, 2008
O/85/2008
Between:
A.C. Moore & Co. Ltd
AND
Union Bank of Nig. Ltd
Plaintiff is present represented by Anthony Ejiofor
(Director in the company).
B.C. Uzuegbu Esq with him is Amaka Uzuegbu (Mrs) appearing for Plaintiff/Applicant.
Mr. Uzuegbu prays that he be permitted to move the motion for judgment.
Court: it is observed that there is no written address filed.
Counsel asked for a very short date to get one filed. He apologises.
Court: Application granted. Adjournment 6/10/2008
Sgd
V.N. Umeh
Judge
22/09/08
HOLDEN AT ONITSHA
BEFORE HIS LORDSHIP HON. JUSTICE V. N. UMEH
ON MONDAY THE 6TH DAY OF OCTOBER, 2008
O/85/2008
BETWEEN:
A.C. MOORE & COY. LTD
AND
UNION BANK OF NIG. LTD
Plaintiff is present and represented by Anthony Ejiofor (Director)
Dedendant is absent and not represented.
B.C. Uzuegbu Esq., with him, Abel Oforma Esq. for Plaintiff/applicant.
Mr. Uzuegbu moves for judgment under Order 10 Rule 2 and Order 20 Rule 9 HCRs 2006. All the originating processes have been served. Motion is dated 30/6/08 and filed 2/07/08. Accompanying the application are exhibits and an affidavit of seven paragraphs. Also filed a written address on 26/9/08.
Counsel apologizes for the lateness in filing the written address. He prays to adopt same and moves in terms.
Judgment reserved till Monday 27th October, 2008.
Sgd V.N. Umeh Judge
6/10/08
HOLDEN AT ONITSHA
BEFORE HIS LORDSHIP HON. JUSTICE V. N. UMEH
ON MONDAY THE 27TH DAY OF OCTOBER, 2008
O/85/2008
BETWEEN:
A.C. MOORE & Company. Ltd
AND
Union Bank of Nig. Ltd
JUDGMENT
Judgment is hereby entered in favour of the plaintiff by invoking the combine effect of Order 10 Rules 2 and 3 and Order 20 Rule 9 High Court Civil Procedure Rules 2006 in his favour.
The details of judgment will be produced within the next 7 days Sgd V.N. Umeh<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>Judge 27/10/08.”

It is apparent from these proceedings that the appellant was absent from Court and unrepresented by counsel. Curiously however, these three proceedings were conducted as if the matter involved was an ex parte one. More than that, there is nowhere on the three occasions that the trial Judge recorded the presence/absence in Court of the defendant/appellant but did so consistently in respect of the plaintiff/respondent. On the 6th October, 2008 however, when the motion for judgment was taken, the trial Judge did record that the defendant was absent and unrepresented. But he did nothing to satisfy himself that the defendant was properly served with hearing notice, the writ of summons and the motion for judgment before assuming jurisdiction, service being a condition precedent thereto. The only inference that can be drawn therefrom is that the defendant/appellant was not present in Court on all the three occasions. This position is strengthened by the fact that his Lordship without fail recorded the presence in Court of parties in the subsequent proceedings of 20/03/2009, 13/05/2009, 28/05/2009, etc. It is interesting that in the proceedings of 22nd September, 2008, the matter was coming up for the first time. It was not an ex parte matter; yet the trial Judge never recorded the fact of the absence of the defendant and his non-representation by counsel. Neither did he satisfy himself whether the respondent or his counsel was served with hearing notice by the bailiff of the Court. On the said date, his Lordship was prepared to take the motion for judgment except that the motion was not ready for hearing. The following exchange transpired:
Mr. Uzuegbu prays that he be permitted to move the motion for judgment.
Court: it is observed that there is no written address filed.
Counsel asked for a very short date to get one filed. He apologizes.
Court: Application granted. Adjournment 6/10/2008.

On the said date when the motion for judgment was moved, the plaintiff’s Counsel casually informed the Court that all the originating processes had been served. He did not show or exhibit any affidavit of service. The trial Judge made no effort to confirm this assertion even knowing fully well that it is only proof of service of the originating process that gives him jurisdiction and is also one of the conditions precedent to the hearing of this suit under ORDER 10 of the Rules of the trial Court, 2006.

On the 27th October, 2008 this was what transpired in Court:
“HOLDEN AT ONITSHA
BEFORE HIS LORDSHIP HON. JUSTICE V. N. UMEH
ON MONDAY THE 27TH DAY OF OCTOBER, 2008
O/85/2008
BETWEEN:
A.C. MOORE & Company. Ltd
AND
Union Bank of Nig. Ltd
JUDGMENT
Judgment is hereby entered in favour of the plaintiff by invoking order the combine effect of Order 10 Rules 2 and 3 and Order 20 Rule 9 High Court Civil Procedure Rules 2006 in his favour.
The details of judgment will be produced within the next 7 days Sgd V.N. Umeh
Judge
27/10/08.
Plaintiff is present
B. C. Uzuegbu Esq with Amaka Uzuegbu (Mrs) for the Plaintiff.”

The question is whether a trial Court, (Excluding the Supreme Court sitting in its original jurisdiction) has the power to deliver judgment and give its reasons later? I would not have posed this question or least of all seek any answer to it except that it borders on the competence of the judgment in question. This is contained at pages 62–66 of the record. I will come to this later as it epitomizes one of the bizarre conducts of the trial Judge in the instant case.

The law is that after its issue, a Writ of Summons or any originating process must be properly served on the defendant. The object of the service of Court process is to give notice to the defendant of the claims against him, so that he may be aware of and be able to resist if he so desires the claim against him. Such service must furnish such notice as provided by the rules of Court or such reasonable notice as may be ordered by the Court (where the Court abridge time) to afford the defendant an opportunity to appear and be heard: KIDA V OGUNMOLA (2006) 13 NWLR, PT 997, 377 and AJIBOLA V SOGEKE (2003) 9 NWLR. The issuance of a writ of summons/other originating process and its service on a defendant in a case are conditions precedent for the exercise of jurisdiction which the Court may have over the subject matter of the action and over the defendant. See KIDA V OGUNMOLA (SUPRA). ONONYE V CHUKWUMA (2005) 17 NWLR, PT 953, 90 and TENO ENG LTD V ADISA (2005) 10 NWLR, PT 933, 346.

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A careful perusal of the records does not reveal anywhere that proof of service or affidavit of service is exhibited showing that the writ of summons in the instant case was served on the respondent. It is not enough as stated by the plaintiff/respondent’s counsel perfunctorily, when moving his motion for judgment thus:
“All the originating processes have been served.” Neither is the so called “Affidavit of facts” procured by the plaintiff/respondent and sworn to on 18th March, 2009 by one MR. B. O. Egeonu purporting to be a bailiff who served the originating process on the defendant/appellant on the 16th April, 2008 of any moment in these proceedings. A confirmation that this affidavit was procured is evident, firstly from the date it was sworn, one year after the alleged service! Secondly, paragraph 2 of the affidavit gives away the plaintiff/respondent’s game. It states as follows:
“That on 16/4/2008, Chief Anthony Ejiofor, the Managing Director of the Plaintiff company took me in his car to NO. 3 Atani road to effect the service of the process aforesaid.”

Why did the plaintiff’s Managing Director have to take “one of the most tried and tested Bailiffs in the Anambra State judiciary, MR. B. O. Egeonu,” in the words of the plaintiff/respondent in his counter-affidavit, to serve a process on a mega bank like the defendant/appellant who he clearly does not need a pointer for? More importantly, service of processes of Court is regulated by the rules of Court. Where all parties in a case are represented by counsel who have both or all appeared before the Court, the Court no doubt has power to order that service be ‘by counsel.’ Even this mode of service is clearly provided for by Order 7 Rule 2 (2) of the 2006 Rules of the trial Court. In respect of originating processes however, ORDER 7 Rules 1 (1) & 2 (1) of the Anambra State High Court (Civil Procedure) Rules 2006 is not only very clear but mandatory. I reproduce them:
“7 (1) (1)
Rule “1 (1) service of originating process shall be made by a sheriff, Deputy Sheriff, Bailiff; Special Marshall or other officer of the Court…”
“2(1) The process server shall serve an originating process by delivering to the party to be served a copy of the process duly certified as prescribed by Order 6 Rule 2 (3).”
Order 7 goes further to provide for how service of process is to be proved in Rule 13 thus:
“13 (1) After serving any process, the process server SHALL promptly depose to and file an affidavit setting out the fact, date, time, place and mode of service, describing the process served and SHALL exhibit the acknowledgment of service.
13(2) After service the affidavit shall be prima facie proof of service”.
The usual procedure and the established practice is for a Court hearing a matter to record whether it is satisfied that the opposing party has been served and further that the Court is satisfied with the proof of service placed before it before hearing the matter. See UBA PLC V EFFIONG (2011) 16 NWLR (PT 1272), 84.

The trial Judge in this case seemed to be completely unaware of the provisions of the Rules of Court as to service of originating processes and conveniently or more appropriately pretentiously relied on the Ipixi dixi of the plaintiff’s counsel that all processes were served on the defendant/appellant. I can only say that the trial Judge knew what he was doing! This view is fortified by the nature of the judgment. Does the trial Judge have the competence to deliver judgment and postpone the date for giving the reasons or details of the judgment? I would think not, as this prerogative to deliver judgment and give reasons later lies only with the Supreme Court. I see no provision in the Rules of the trial Court, 2006 under which this matter was determined that justify this practice reserved for the apex Court which they fall back to in very exceptional circumstances. Order 35(1) of the Rules of the trial Court which deals with delivery of judgment provides: “1. The Judge shall, at the pre-trial conference or after trial, deliver judgment in open Court and shall direct judgment to be entered.”
This rule in my firm view does not give the trial Court the power to pronounce its judgment and give its reasons in writing at a later date. This Court stated that much in the case of FMBN V UWADIALE (2004) 10 NWLR PT 882, 626 when it was held:
“The Supreme Court is the only Court in the land that can pronounce its judgment after hearing an appeal and reserve its reasons for the judgment to a later date which reasons it will later reduce into writing.”
In the circumstances, the two judgments delivered and written by the trial Court which amount to pronouncing its judgment and giving its reasons at a later date in writing renders the judgment(s) incompetent. The purported Judgment at page 243 of the records is the pronouncement while the reasons for the judgment given in writing is contained at page 62 thereof. It is irrelevant that they both bear the same date as the trial Judge after pronouncing the judgment at page 243 specifically stated:
“The details of Judgment will be produced within the next 7 days.”
At best therefore, having ‘pronounced’ the judgment at page 243, the trial Judge on the authority of KADUNA TEXTILES LTD V OBI (1999) 10 NWLR, PT 621, 138 became functus officio with respect to the suit and could not deliver another judgment in respect thereof. This renders the purported judgment at page 62 incompetent. And since the pronouncement at page 243 does not state the nature of the action, the issue in controversy, review of the cases of the parties, make specific findings of fact, give conclusion and reasons for the decision, it is not a valid judgment within the meaning of the decision of this Court in CIROMA V ALI (1999) 2 NWLR, PT 590, 317.

Of significance is the manner the judgment was sought and obtained in default of appearance under ORDER 10 of the Rules of Court.
ORDER 10 Rule 2 & 3PROVIDE:
“10(2) Where any defendant fails to appear, a plaintiff may proceed upon default of appearance under the appropriate provisions of these rules UPON PROOF OF SERVICE OF THE ORIGINATING PROCESS. (Emphasis Provided).
Proof of service of the originating process is a condition precedent to activating the use of this order. This condition as found has not been satisfied. This renders the use of this order incompetent as the service of the originating process is a condition sine qua non to the exercise of any jurisdiction on the defendant:
MARK & ANOR V EKE (2004) 5 NWLR, PT 865, 54; ACHUZIA V OGBOMAH (2016) NWLR, PT 1522, 59 and ONWUBUYA & ORS V IKEGBUNAM (2019) LPELR-49373(SC).

“10 (3) where the claim in the originating process is a liquidated demand and the defendant or all of several defendants fail to appear, a plaintiff may apply to a Judge for judgment for the claim on the originating process or such lesser sum and interest as a Judge may order.”
The Supreme Court in the case of MAJA V SAMOURIS (2002) 7 NWLR, PT 765, 78 defined ‘liquidated demand’ as “a debt or other specific sum of money usually due and payable and its amount must be already ascertained or capable of being ascertained as a mere matter of arithmetic without any other or further investigation. Whenever, therefore, the amount to which a plaintiff is entitled can be ascertained by calculation or fixed by any scale of charges or other positive data; it is said to be ‘liquidated’ or made clear.”
See also AKINGBADE V AFRICAN PAINTS (NIG) PLC (2008) and BASAWA V UNITY BANK PLC (2015) LPELR–25913 (CA).
Liquidated money demand more often than not arises from a contract rather than from a tort.
It is the nature of liquidated demand that necessitated the summary judgment procedure to enable a party obtain judgment without the rigours of a full trial.
From the claim of the plaintiff/respondent, there is no dispute that the claim cannot by any imagination, no matter how far stretched, be a claim for liquidated money demand. This is a claim founded on computation of interests by a firm of accountants employed by the plaintiff and based on a claim arising from their relationship with the defendant bank. Nothing can be more unliquidated than the plaintiff’s claim in the instant suit. It is incompetent to bring and determine this claim under ORDER 10, not being a liquidated demand claim as provided by the rules. The claim was therefore incompetently brought for being offensive to the rules of Court. Any judgment flowing therefrom is also rendered incompetent.

Another pertinent reason why this judgment is incompetent is the failure to issue and ascertain proof of hearing notice to the defendant/appellant before this so-called motion for judgment was heard on the 6th October, 2008. As I have already found, the trial Court on record entered in the record that the respondent was absent and unrepresented. The trial Judge never confirmed from the registry whether there was proof of hearing notice on the defendant/appellant. This failure is fatal as it affects the jurisdiction of the Court to hear the matter. Oguntade, JSC expressed it very unequivocally in the case of IYOHO V EFFIONG & ANOR (2007), 11 NWLR, PT 1044, 31, when he held thus:
“…a party not served with the hearing date of proceedings leading to a judgment or order made against him is entitled ex-debito justitiae to have the proceedings set aside as a nullity….”
See also SKENCONSULT (NIG) LTD & ANOR V GODWIN SEKONDY UKEY (1981) 1 SC 4 AT 14 & 15 LEEDO PRESIDENTIAL MOTEL LTD V BANK OF THE NORTH (1998) 10 NWLR, PT 570, 353 and COMPACT MANIFOLD & ENERGY SERVICES LTD V PAZA SERVICES NIG LTD (2019) LPELR–49221 (SC).
The requirement for the service of hearing notice on the defendant/respondent is even more fundamental in the instant case where the originating process, i.e. the writ of summons was never served on the defendant/appellant. The need for service of the originating process on the defendant cannot be over-emphasized. It is what brings to his notice, the pendency as well as the nature of the claim against him so that he can take steps to defend the claim or challenge the suit if he so desires. Hearing notice in the circumstances is not only desirable but a legal requirement. If hearing notice had been issued to the defendant/respondent, he may have appeared in Court and informed the Court about the non-service of the originating process on it. This could have been rectified by the Court making an order for the defendant to be served except if the plan was to foist a summary judgment in an unliquidated money demand through the back door as has been so mischievously done!
The principle is well settled as evident from decided cases cited earlier in this judgment, that failure to issue hearing notice where notice is required as in the instant case renders the entire proceedings void and robs the Court of any jurisdiction to entertain the matter. For this reason and the other reasons given in this judgment, I hold that the judgment of the lower Court delivered on the 27th October, is void and an outright nullity.

Having so found, I deem it unnecessary to consider issues (1) and (2) as raised by the appellant, same having become an academic exercise. Consequently, I hold that this appeal succeeds and it is hereby allowed. The judgment of the trial Court is struck out for being a nullity.

CHIOMA EGONDU NWOSU-IHEME, J.C.A.: I agree.

ISAIAH OLUFEMI AKEJU, J.C.A.: I agree.