Ikom Local Government V. Chenlex Group Limited (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

KUMAI BAYANG AKAAHS, J.C.A. (Delivering the Leading Judgment)

The plaintiff’s claims against the Defendant jointly and severally as endorsed on the Writ of Summons issued in suit No.HM/101/2002 on 8/5/2002 are as follows:

1. The sum of N17,426,085.20 (Seventeen Million, Four Hundred and Twenty-Six Thousand, Eight-Five Naira, Twenty kobo) being special and general damages for breach of contract with interest at the rate of 36% per annum with monthly rates from June, 2001 until the judgment sum is liquidated.
2. The return of the plaintiff’s building material left on site but detained by the Defendants, or their value, and N10,000,000.00 (Ten Million Naira) general damages for detinue.

The defendants filed a Memorandum of appearance on 19/6/2002. On 24/7/2002 the plaintiff filed the Statement of Claim. On 28/1/2003 the court heard a motion dated 13/1/2003 but filed on 15/1/2003 and granted the defendant’s counsel leave to enter appearance out of time (See page 33 of the records). On 13/2/2003 the Defendant filed a Motion seeking to strike out both Writ of Summons and Statement of Claim on the grounds:-

1. The court lacked competence to entertain the suit.
2. The writ is incurably defective since it does not qualify to be a specially endorsed writ.
3. The Statement of Claim was filed without regards to the Rule of Court.

From 28/1/2003 to 30/1/2004 five adjournments were recorded and all this took place while the defendant was absent from court. It was on 7/4/2004 that Mr. Egodo appeared for the Defendant and announced that he had just taken over the defence from Mr. Anjor who had been elevated to the Bench (See page 37). He sought for adjournment which was granted to 11/5/2004. Counsel was not in court on 11/5/2004 when the court adjourned to the next day to hear the motion. On 12/5/2004, Mr. O. N. Agbor who was representing the plaintiff informed the court that the parties have settled and filed their terms of settlement on 3/5/2004. He prayed the court to adopt the terms of settlement filed by the parties as consent judgment of the court. He also applied for the striking out of the name of the 2nd defendant. The court then ruled thus:

“Settlement report as stated by plaintiffs counsel is admitted and sustained by reference to the terms of settlement duely (sic) signed and filed by the parties on 3/5/2004.

ORDER

1. The name of the 2nd defendant is struck out from the suit as prayed by the Plaintiff’s counsel.
2. The terms of settlement drawn up and signed by the parties, which said terms was filed on 3/5/04, is hereby admitted and marked in evidence as exhibit ‘AA’.

JUDGMENT

The court hereby adopts entirely Exh. ‘AA’ as its judgment and enter the same, as the CONSENT judgment of the court in the case.

CONSEQUENTIALS ORDERS

1. The parties are bound by the terms in exhibit ‘AA’ and are estopped from further relitigating on this very matter.
2. This case is accordingly determined and disposed”. (See page 39 of the records)

(see page 39 of the records)

Mr. Egodo next appeared on 23rd June 2004 and informed the court that the had filed a motion for an order to set aside the judgment of the court and the motion was adjourned to 21/7/2004 for argument. On the adjourned date, Mr. Egodo was absent. There is no indication of what happened on 21/7/2004 but the matter came up again on 27/7/2004 when Mr. Agbor moved the court to dismiss the motion to set aside the judgment. The court agreed with the submission made by Mr. Agbor and proceeded to hold that the judgment entered on 12th May, 2004 was a consent judgment which cannot be set aside. He struck out the motion filed on 18/5/2004 as being incompetent and awarded costs of N500.00 against the Defendant/Judgment Debtor, Mr. Egodo filed another motion on 30/7/2004 but it was struck out. Following this development, the Defendant filed its Notice of Appeal and formulated the following three issues from the four grounds of appeal filed:-

1. Whether the learned trial Judge was right in entering judgment in the case without disposing of the question whether or not he had jurisdiction.
2. Whether having regard to the facts and circumstances of the case, the judgment of the lower court is not a nullity.
3. Whether the judgment of the trial court qualifies as a consent judgment.

The Respondent formulated four issues for determination. They are:

1. Whether the repeated/several absence of the Appellant and its counsel from court without excuse did not amount to an abandonment/waiver of the preliminary objection.
2. Whether the defects or non-compliance complained of by the defendant affected the jurisdiction of the court or amounted to mere irregularities that can be waived or abandoned.
3. Whether there is a dispute as to the signing or authenticity of the terms of settlement filed by the parties.
4. Whether the defendant/appellant was ever denied a fair hearing in the matter by the lower court.

Learned counsel for the appellant argued that at the time the court summarily entered judgment on 12/5/2004 there was a pending motion challenging the jurisdiction of the court and submitted by relying on ASUQUO v EDET (2008) ALL FWLR (Pt.401) 970 at 982 that whenever the issue of jurisdiction is raised, it has to be decided upon first since any proceedings conducted by the court without jurisdiction is null and void and an exercise in futility- The case of S.P.D.C.N v ESOWE (2008) 4 NWLR (Pt. 1076) 72 was cited to support the contention that parties to case cannot by their consent vest the court with jurisdiction as the competence of a court to adjudicate on a matter is a legal and constitutional prerequisite.

This issue is enough to dispose of this appeal. Learned counsel for the respondent argued that both the former counsel were aware of the hearing dates but refused/neglected to appear to activate and argue the motion filed objecting to the competence of the action. He also contended that the attention of the court was not drawn to the motion and that a court of law cannot conduct a case for one party as it is the duty of the party to the case to activate and adumbrate any process filed in the court. He went on to assert that the motion filed on 13th February, 2003 urging the court to strike out both the Writ of Summons and the Statement of Claim for incompetence were complaints centred on mere irregularities and this does not affect the substance of the case.