Abia State Transport Corporation & Ors V. Quorum Consortium Limited (2002)

LawGlobal-Hub Lead Judgment Report

OBADINA, J.C.A.

This is an appeal by the defendants/appellants against the judgment of Hon. Justice M. Oyetunde sitting at Jos High Court, Plateau State. The judgment was delivered on the 29th day of May, 1995 in favour of the plaintiff/respondent in suit No. PLD/J/153/95.

The appellants were the defendants, while the respondent was the plaintiff at the trial court. The respondent was a business consultant based in Jos. In July, 1992, the 2nd appellant engaged the services of the respondent for the procurement of foreign aid from the Japanese Government to enable the 2nd appellant import some vehicles and spare parts for use by the 1st appellant. See exhibit A attached to the affidavit in support of the application for writ of summons on the undefended list. According to the respondent, the respondent rendered the service in Jos and by delivery note dated 18th September, 1992, the 2nd appellant through its agent collected the original copy of the Japanese aid approval totalling 2 million U.S. Dollars (2,000,000.00 U.S. Dollars) by Japanese Government from the respondent in Jos. See exhibit B attached to the affidavit in support of the application for writ of summons on the undefended list. The respondent then demanded from the appellants the sum of 200,000. U.S. Dollars which was the agreed fees due to the respondent. When the appellants would not pay, the respondent instituted the suit leading to this appeal, against the appellants.

The claim which was brought under an undefended list reads as follows:-

The plaintiff’s claim is for:-

(1) The sum of 200,000 U.S. Dollars (N4,400,000.00) being charges for consultancy and sundry services rendered to the first defendant by the plaintiff.

(2) Interest at 21% on the said sum of 200,000 U.S. Dollars from the 1st day of October, 1992 until date of judgment and interest at the rate of 10% from the date of judgment until final liquidation of the debt.

(3) Cost of this suit.

With the leave of the lower court granted on the 29th day of March, 1995, the writ of summons was issued and served on the appellants out of the jurisdiction of the Plateau State High Court; namely, at Umuahia, Abia State.

After the service of the writ of summons under the undefended list on the appellants on the 27th day of April, 1995, the appellants on the 16th of May, 1995 filed their notice of intention to defend the suit with the accompanying affidavit at the High Court Registry, Umuahia, Abia State. The notice was later transmitted on the 22nd of May, 1995 to High Court of Plateau State Registry, Jos. On the 29th of May, 1995, the matter came up before the court for hearing. The plaintiff/respondent, represented by its Managing Director, Mr. E. A. Ofeimum was in court. The learned counsel for the plaintiff/respondent was also present. The defendants/appellants and their counsel were all absent.

The learned counsel for the plaintiff/respondent, Dr. Ameh (SAN) stated as follows:-

The defendants were served on the 27th April, 1995. They have not filed a memo of appearance and they have not filed any notice of intention to defend. In the circumstances, I urge the court to enter judgment in favour of the plaintiff under Order 23 rule 4 of the Rules of the High Court of Plateau State, 1987, in terms of the particulars of claim endorsed on the writ of summons and in accordance with the principles enunciated by the Supreme Court in Ben Thomas Hotel Ltd. v. Sebi Furniture Co. Ltd. (1989) 5 NWLR (Pt. 123) 523 at 529.

After considering the particulars of claim and the affidavit in support, the learned trial Judge stated inter alia as follows:-

The defendants were served on the 27th April, 1995. The defendants have not entered any appearance in this suit and did not file any intention to defend the plaintiff’s claim. Judgment is hereby entered in favour of the plaintiff in terms of the plaintiff’s particulars of claim. i.e. in the sum of 200,000. U.S. Dollars. i.e. (N4,400,000.00) being charges for consultancy and sundry services rendered to the first defendant by the plaintiff in September, 1992 and costs.

Dissatisfied with the decision of the trial Judge the appellants have appealed to this court on four (4) grounds of appeal. From the four (4) grounds of appeal, the appellants formulated three (3) issues for determination, namely:-

(1) Whether the High Court of Justice, Jos, Plateau State has jurisdiction to entertain this suit?.

(2) Whether the High Court has jurisdiction to enter judgment in favour of the plaintiff for the sum of N4,400,00.00 (200,000. U.S. Dollars) as cause of action and N2,921.00 as cost against the defendants/applicants?.

(3) Whether the High Court entering judgment summarily against the defendants/appellants despite their notice of intention to defend the action and supporting affidavit which raises defence on its merit, does not constitute a denial of fair hearing?.

From the same four (4) grounds of appeal filed by the appellants, the respondent also identified two issues for determination, namely:-

(1) Whether the High Court of Justice, Jos, Plateau State had jurisdiction to entertain the suit?.

(2) Whether or not there was a notice of intention to defend the suit before the trial court at the time it entered judgment in favour of the respondent?.

A close look at the issues formulated by the parties seems to show that issues Nos. 1 and 2 identified by the appellants are the same and are also similar and the same in substance as issue No.1 distilled by the respondent. Therefore they will all be treated together. Similarly, issue No.3 formulated by the appellants and issue No.2 in the respondent’s brief are also the same in substance. They also will be treated together. Issues Nos. 1 and 2 in the appellants’ brief and issue No.1 in the respondent’s brief can be better put simply as follows:-

Whether the High Court of Plateau State sitting at Jos, had jurisdiction to entertain the suit in this case?.

In his brief of argument, the learned counsel for the appellant referred to the claim of the respondent before the trial court. He said that the respondent alleged that there was a contract between the parties without stating where the contract was entered into by the parties. He referred to Order 10 rule 3 of the Plateau State High Court (Civil Procedure) Rules, 1987 and submitted that the High Court of Plateau State had no jurisdiction to hear and determine the suit. He argued that if there was any contract between the parties, the contract was entered into by the parties in Umuahia, Abia State and not in Plateau State. He submitted that it was the law in force in Abia State that would govern the rights and obligations of the parties to the suit. He referred to the case of I. K. Martins (Nig.) Ltd. v. U.P.L. (1992) 1 NWLR (Pt. 217) 322, and argued that the venue of action in contract would depend on three alternatives, namely:-

(a) Where the contract was made; or

(b) Where the contract ought to have been performed or

(c) Where the defendant resides.

He stated that the performance of the contract ought to be in Lagos and therefore the suit ought to have been instituted either in Lagos or Abia State. He submitted that since the action was instituted in Jos, Plateau State, the Plateau State High Court had no jurisdiction and the entire proceedings were a nullity. He urged the court to allow the appeal and strike out the suit.

In his own brief, the learned counsel for respondent submitted that the High Court of Plateau State before which the suit was heard, had jurisdiction to hear and determine the matter. He referred to paragraph 5 of the affidavit in support of the respondent’s claim on page 5 of the record of appeal and argued that the research on the aid project, agreement and the handing over of the aid’s approval were done in Jos within the jurisdiction of the Plateau State High Court. He submitted that the contract between the parties in this case was entered in Jos and not in Abia State. He urged the court to dismiss the appeal. The question posed by the parties in the issue under consideration is whether the High Court of Plateau State sitting at Jos had jurisdiction to hear and determine the suit in this case.

It is settled law that ‘jurisdiction’ is the authority which a court has to decide matters that are litigated before it or take cognisance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter or commission under which the court is constituted, and may be extended or restricted by similar means. A limitation may be as to the area over which the jurisdiction extends. See Jacob Ndaeyo v. Godwin Ogunnaya (1977) 1 SC 11 at 24. See also Halsbury’s Laws of England, 4th Edition, Vol. 10, page 323, para. 715. It is now equally well settled in our civil jurisprudence that where the issue arises as to whether a court, can in law, entertain a suit or not, it is the claim of the plaintiff to which reference must be made to get an answer to the question. See Adeyemi & Others v. Opeyori (1976) 9-10 SC 31 at 49.

On how to determine whether or not a court has jurisdiction to hear and determine a suit filed before it, the West African Court of Appeal (WACA) had the following to say, per Coussey, J.A.:-

… In the first place it is a fundamental principle that jurisdiction is determined by the plaintiff’s demand and not by a defendant’s answer which, as in this case, only disputes the existence of the claim, but does not alter or affect its nature. In other words ordinarily it is the claim and not the defence which is to be looked at to determine the jurisdiction – See also Lagoon City Development Corporation Ltd. v. The Attorney-General of the Federation & Oths. (2002) 14 NWLR (Pt. 786) 1 at 28.

In the present case, the respondent, as plaintiff at the lower court instituted this action on the undefended list against the appellants as defendants. In the affidavit in support of the claim on the undefended list which is more or less the pleading and the evidence of the plaintiff/respondent, the respondent stated inter alia, that the contract between the appellants and the respondent was entered in Jos for the procurement of foreign aid from Japanese Government to import some vehicles and spare parts for the use of the 1st appellant. The respondent further deposed in the affidavit in support of his claim that the research on the aid project, agreement and even the handing over of the aid’s approval were done in Jos, within the jurisdiction of the lower court. For clarity purposes, paragraphs 3, 4 and 5 of the affidavit in support of the claim read as follows:

(3) That I know as of fact that on or about the month of July, 1992, the second defendant retained the services of the plaintiff for the procurement of foreign aid from Japanese Government to enable it import vehicle and spare parts for use by the first defendant. Copy of the approval letter is hereto attached and marked exhibit A.

(4) That the plaintiff accepted the offer and prosecuted same effectively.

(5) That the said job was carried out in Jos and by delivery note dated 18th September, 1992, the 2nd defendant through its agent collected the original copy of the Japanese aid approval totalling 2,000,000. U.S. Dollars by the Japanese Government from the plaintiff in Jos.

A copy of the delivery note is hereto attached and marked exhibit B.

In the notice of intention to defend allegedly filed by the appellants, the appellants admitted that in the month of July, 1992, a proposal between the respondent and the 2nd appellant whereby the respondent offered to secure U.S. $27 Million Dollars aid from Japanese Government was made. The appellant however denied that any agreement was entered into by the parties.

Exhibit A referred to in the said affidavit in support of the claim by the respondent is a letter dated 27th July, 1992 from the appellants to the respondent in Jos accepting the proposal made to the appellants by the respondent in Jos, in relation to the Mass Transit Aid from Japanese Government. The proposal being referred to in exhibit A was written by the respondent from Jos. Similarly the original copy of the Japanese Aid approval for the sum of $2,000,000 (Two million) U.S. Dollars was collected by the appellant from the respondent in Jos. See exhibit B equally, exhibits C1 and C2 written by the appellants to the respondent in Jos acknowledged that the respondent had performed his own aspect of the contract and promised to pay the respondent.

In the circumstances, a close study of exhibits A, B, C1 and C2 attached to the affidavit in support of the claim seems to show that the contract between the appellants and the respondent was entered and performed in Jos, Plateau State for the procurement of Foreign Aid from Japanese Government to enable the appellants import vehicles and spare parts for use of the 1st appellant. The proposal in relation to the procurement of the foreign aid was made in Jos and the original copy of the said Japanese aid approval was collected from the respondent by the appellants in Jos, Plateau State. It seems to me that the contract between the parties was entered by the parties and performed in Jos, Plateau State.

As regards the venue in which a suit may be heard and determined, the venue in which a suit may be heard and determined is an aspect of jurisdiction of the court. It could be geographical or administrative jurisdiction within a State, which by the rules of court may be compromised in case of a suit filed in the wrong venue, or such a suit could be transferred to the appropriate venue, the reason being that by section 234(1) of the 1979 Constitution, (which is the applicable Constitution in this case) there is only one High Court of a State and judicial divisions are created for convenience only. See Ukpai v. Okoro (1983) 2 SCNLR 380 at 388; Egbo v. Laguma (1988) 3 NWLR (Pt. 80) 109 at 125; University of Nigeria, Nsukka v. Orazulike Trading Co. (1989) 5 NWLR (Pt. 119) 19 at 25-26.

The jurisdiction of the court as to venue in which a suit may be heard and determined could also be territorial; for instance, where a suit ought to have been brought in one State was brought in another, as is being alleged by the appellants in this case. In that case, the jurisdiction of the court in the wrong State is non-existent and it cannot be conferred even by agreement or consent of the parties as it is a fundamental vice. See Ndaeyo v. Ogunnaya (1977) 1 SC 11 at 25; Onyema v. Oputa (1987) 3 NWLR (Pt. 60) 259 at 294.

The issue in the present case is one of territorial jurisdiction raised by the appellants. It was important for the court to resolve jurisdiction satisfactorily. Since it was not obvious on the face of the claim, and since the claim was brought under undefended list procedure and supported by affidavit and exhibits, it appears to me on the authorities of Adeyemi v. Opeyori (1976) 9-10 SC 31 at 51-52 and Anthony Aburime v. The Secretary, Assemblies of God Mission, Ewu Ishan (1952) 14 WACA 185 at 186, that the learned trial Judge would be right to rely on the affidavit evidence in support of the claim for this purpose. I think it is well settled that the type of evidence required to resolve issue of jurisdiction could be oral or affidavit. See I. K. Martins (Nig.) Ltd. v. U.P.L. (1992) 1 NWLR (Pt. 217) 322 at 332.

As indicated earlier in this judgment, it seems to me from a close study of the affidavit in support of the claim and exhibits A, B, C1 and C2 attached thereto, that the contract between the parties was entered into by the parties in Jos and that the respondent also performed its own part of the contract in Jos, Plateau State.

On determination of venue of instituting action for breach of contract, Order 10 rule 3 of High Court (Civil Procedure) Rules, Plateau State provides as follows:-

10(3) All suits for specific performance, or upon the breach of any contract, shall be commenced and determined in the Judicial Division in which such contract ought to have been performed or in which the defendant resides or carries on business.

Under this rule, venue depends on three alternatives. It could be where-

(1; the contract ought to have been performed; or

(2) the defendant resides; or

(3) the defendant carries on business.

A plaintiff is obviously entitled to rely on any of the alternatives.

The plaintiff/respondent in the present case, in paragraph 5 of the affidavit in support of the claim based the venue of the suit on the first alternative. Paragraph 5 of the said affidavit in support of the claim reads:-

(5) That the said job was carried out in Jos and by delivery note dated 18th September, 1992, the 2nd defendant through its agent collected the original copy of the Japanese Aid Approval totalling 2,000,000 U.S. Dollars by the Japanese Government from the plaintiff in Jos.

A copy of the delivery note is hereto attached and marked exhibit B.

I think the presumption goes so far as to expect that the plaintiff/respondent who is the alleged creditor should be sought by the defendants/appellants, the alleged debtors to be paid where he lives or carries on business. This appears perfectly logical and fair since, so far, there is no clear indication by contract as to where the debt should be paid, apart from what the rules of court say about venue for instituting action in case of failure to pay. I refer to National Bank Ltd. v. Shoyoye (1977) 5 SC 181, and quote at page 192, if only as a lead on the point, a passage from the judgment of the Supreme Court delivered by Obaseki, JSC:-

“We may once more turn our attention to the writ of summons. The defendants’ address for service therein stated lies within the jurisdiction of the court and in the absence of evidence to the effect that at the date of the issue of the writ the defendants were not resident in or carrying on business within the jurisdiction of the court or that the agreement for payment of money was to be performed within the jurisdiction of the court, the court has no legal justification to decline jurisdiction. It is the law that where no (place of) payment is expressly or impliedly specified by the contract, the general rule is that it is the debtor’s duty (his place of residence notwithstanding) to seek the creditor in order to pay him at his place of business or residence if it is within the country or realm”.

Looking at the affidavit in support of the claim, the contract between the parties was to be performed by the respondent and was indeed performed by the respondent in Jos, Plateau State. Ordinarily, the respondent would be expected in the performance of the contract with the appellants to write letters from its office in Jos to Japanese authority for the procurement of the foreign aid for the appellants.

This is exactly what the respondent said it has done and the aid was given. In the circumstances, it is my view that the Plateau State High Court, sitting at Jos had jurisdiction to hear and determine the claim as it did. I therefore answer issues Nos. (a) and (b) in the appellants’ brief in the affirmative.

Issue No. C raised by the appellants read as follows:

Whether the High Court entering judgment summarily against the defendants/appellants despite their notice of intention to defend the action and supporting affidavit which raises defence on its merit, does not constitute a denial of fair hearing?.

Issue No.2 identified by the respondent seems to be similar and the same in substance as issue No. C raised by the appellants. It reads:-

Whether or not there was a notice of intention to defend the suit before the trial court at the time it entered judgment in favour of the respondent?.

The two issues will be treated together.

In arguing the issue, the learned counsel for the appellants referred to the writ of summons issued under undefended list by the respondent against the appellants. He said the summons was served on the appellants with the hearing date fixed for 29/5/95. He argued that on the 22/5/95, the appellants through their counsel filed a joint notice of intention to defend with an affidavit in support of their defence. He however stated that the affidavit in support of the defence was sworn to at the Umuahia High Court Registry, Abia State and later filed at the Jos High Court Registry, on the 22nd of May, 1995. He said that on the 29th of May, 1995, a date fixed for the hearing of the case, the learned trial court entered judgment for the plaintiff/respondent against the defendants/appellants, despite the fact that the defendants/appellants had filed a notice of intention to defend the action. He argued that the notice of intention to defend disclosed a defence on the merit. He submitted that since the defendants/appellants had delivered a notice in writing that they intended to defend the action and attached to the notice an affidavit setting out the grounds of the defence which raised a defence on the merit, the trial court ought to transfer the case to the general cause list for hearing. He argued that the only thing the defendants/appellants were required to do was to file a notice of intention to defend with an affidavit raising a defence on the merit. He contended that once the defendants/appellants had shown the intention to defend, the undefended list procedure could not justifiably be embarked upon.

He referred to paragraphs 7,8,9,11,12,13 and 14 of the affidavit in support of the notice and submitted that the notice of intention to defend filed by the appellants disclosed a defence on the merit, and the suit ought to have been transferred to the general cause list for hearing. He relied on Order 25 rule 3(1) of the High Court of Plateau State (Civil Procedure) Rules, 1987, and Agwuneme v. Eze (1990) 3 NWLR (Pt. 137) 244.

The learned counsel referred to the contention of the respondent’s counsel that the appellants did not file any notice of intention to defend the action as required by the High Court (Civil Procedure) Rules of Plateau State, in that, all the assessments on the purported notice of intention to defend, showed that the notice was filed at Umuahia High Court Registry, Abia State. The learned counsel conceded that the affidavit in support of the notice to defend the suit was Bwomto at the Umuahia High Court, Registry, Abia State, but he argued that the notice and the affidavit in support were filed at the Jos High Court Registry, Plateau State, on the 22nd of May, 1995. He referred to section 80 of the Evidence Act, Cap. 112 of the Laws of the Federation of Nigeria, 1990 and submitted that any affidavit sworn before any Judge, officer or other person in the commonwealth, may be used in court in all cases. He said the High Court Registry, Jos, Plateau State received the notice of intention to defend and the affidavit in support and stamped same on the 22nd of May, 1995. He referred to section 33(1) of the 1979 Constitution and submitted that the appellants were not given a fair hearing. He urged the court to allow the appeal.

In his brief of argument, the learned counsel for the respondent referred to Order 23 rule 3(1) of the High Court of Plateau State (Civil Procedure) Rules, 1987, and argued that a defendant who is served with a writ of summons and affidavit under the undefended list is required to file notice of intention to defend with an affidavit disclosing a defence. He stated that the filing of the notice of defence and affidavit in support of same as stipulated in Order 23 rule 3(1) of the Rules is restricted to Plateau State, by virtue of section 3(1) of the Civil Procedure Edict, 1987. He referred to Order 54 rule 2(5) and (6) of the High Court of Plateau State (Civil Procedure) Rules, 1987 and the Sixth Schedule thereunder and submitted that no process could be used in any proceedings before the High Court of Plateau State unless proper fees are paid into the revenue of Plateau State.

He submitted that the notice of intention to defend delivered at the Jos High Court by the appellants on the 22nd of May, 1995 was not filed in compliance with Order 23 rule 3(1) of the Rules. He said all the appellants did at the Jos High Court Registry was to deliver the notice and not file the document. He said the Registry only acknowledged receipt of the process on the 24th of August, 1995.

The learned counsel stated that the processes delivered to the Registry of the Plateau State High Court as constituting a notice of intention to defend were not paid for. He submitted that in the absence of any official assessment of the necessary fees and payment of same as required by the High Court of Plateau State (Civil Procedure) Rules, 1987, the trial court was right in entering judgment for the respondent.

He urged the court to dismiss the appeal.

The main question that calls for an answer in the issue under consideration is whether or not the appellants, as defendants, filed a notice of intention to defend as required by law.

Order 23 of the High Court of Plateau State (Civil Procedure) Rules, 1987 makes provision for undefended list procedure. It provides as follows:-

(1) Whenever application is made to a court for the issue of a writ of summons in respect of a claim to recover a debt or liquidated money demand or any other claim and such application is supported by affidavit setting forth the grounds upon which the claim is based and stating that in the deponent’s belief there is no defence thereto, the court shall, if satisfied that there are good grounds for believing that there is no defence thereto, enter the suit for hearing in what shall be called the undefended list, and mark the writ of summons accordingly, and enter thereon a date for hearing suitable to the circumstance of the particular case.

(2) There shall be delivered by the plaintiff to the Registrar upon the issue of the writ of summons as aforesaid, as many copies of the above mentioned affidavit as there are parties against whom relief is sought, and the Registrar shall annex one such copy to each copy of the writ of summons for service.

(3)(i) If the party served with the writ of summons and affidavit as provided in Rules 1 and 2 hereof delivers to the Registrar not less than 5 days before the date fixed for hearing a notice in writing that he intends to defend the suit, together with an affidavit disclosing a defence on the merit, the court may give him leave to defend upon such terms as the court may think best.

(ii) Where leave to defend is given under this rule, the action shall be removed from the undefended list and placed on the ordinary cause list; and the court may order pleadings, or proceed to hearing without further pleadings.

(4) Where any defendant neglects to deliver the notice of defence and affidavit prescribed by rule 3(1) or is not given leave to defend by the court, the suit shall be heard as an undefended suit, and judgment given thereon, without calling upon the plaintiff to summon witnesses before the court to prove his case formally.

The contention of the appellants is that the appellants, as defendants, filed a notice of intention to defend with an affidavit disclosing a defence.

The learned counsel for the appellants referred to section 80 of the Evidence Act, which allows affidavit sworn to before an appropriate officer of court within the common wealth to be used in all cases where affidavits are admissible and submitted that the affidavit sworn to at the High Court Registry, Umuahia, Abia State is admissible and disclosed a defence on the merit. The respondent argued that the appellants did not file the notice of intention to defend in accordance with the provisions of the Plateau State High Court (Civil Procedure) Rules.

A look at the notice of intention to defend alleged to have been filed by the appellants shows clearly that the notice with the attached affidavit in support thereof was assessed, filed and stamped at the High Court Registry, Umuahia Abia State on the 16th of May, 1995 but on the 22nd of May, 1995, it was stamped received at the High Court Registry, Jos, Plateau State.

The issue therefore is whether a court process duly assessed, filed and stamped at the High Court Registry, Umuahia, Abia State, and transmitted to the High Court Registry, Jos, Plateau State, where it was stamped received, was properly filed at the High Court of Plateau State.

It is not in dispute that an affidavit can be sworn to before an appropriate officer or person in one country or State and be taken to another country or State for use, under section 80 of the Evidence Act, Cap. 112, Laws of the Federation, 1990.

What is in issue in this case is the question of filing. Should the affidavit after being sworn to, be filed in a court other than the court where it is to be used? I suppose not. The correct procedure would have been after the affidavit in support of the notice of intention to defend has been sworn to, it should be attached to the notice of intention to defend and the two be forwarded to the court where it would be used for filing. It must also be pointed out that notice of intention to defend the suit is different from the affidavit in support thereof. What the rules require is that the notice must be filed with an affidavit disclosing a defence on the merit and I think, it can only be properly filed in the court where it is to be used.

However, section 3(1) of the Civil Procedure Edict of Plateau State, 1987, restricts the High Court of Plateau State to follow only the High Court (Civil Procedure) Rules of Plateau State. It provides as follows:-

(3)(1)The provisions contained in the Rules set out in the Schedule to this Edict and hereinafter called the Rules shall be the Rules of Civil Procedure to be followed in the High Court of Plateau State.

This means that unless otherwise stated in the Rules, the provisions of any other High Court Rules shall not be followed.

Order 54 rule 1(1) of the High Court of Plateau State (Civil Procedure) Rules, 1987 makes it mandatory that the fees set out in the First, Second, Third, Fourth and Fifth Schedules thereunder shall be payable by any person commencing the respective proceedings or desiring the respective services for which they are specified in those schedules.

Order 54 rule 2 of the Rules also provides:-

54(2) The regulations set out in the Sixth Schedule shall be observed by all officers of court concerned with the rendering of services, and or collection of fees payable, under the provisions of the foregoing order.

The Sixth Schedule referred to under Order 54(2) provides:

No summons, warrant, writ or subpoena shall except by special order of the court be issued until:-

(a) all fees payable thereon as contained in the appropriate schedule of fees shall have been paid; and

(b) an account thereof, initialled as received shall have been set forth by the officer issuing the process both in the margin and in the counterfoil thereof.

From the combined provisions of section 3(1) of the Civil Procedure Edict, 1987 and Order 54 rule 2 of the High Court of Plateau State (Civil Procedure) Rules and Schedule six made thereunder, it seems a court process cannot be said to have been properly filed in the High Court of Plateau State unless the process is duly assessed and the fees payable are duly paid. Order 54 of the Rules does not exempt anybody from paying fees payable under the Sixth Schedule on court processes.

In the present case, Order 23 rule 3(1) of the High Court of Plateau State (Civil Procedure) Rules enjoins a defendant who is served with a writ of summons and affidavit under the undefended list and who wishes to defend, to file a notice of intention to defend with an affidavit disclosing a defence. On the face of the notice of intention to defend and the affidavit in support alleged to have been filed by the appellants, it is evident that the notice with the supporting affidavit was duly assessed, filed and stamped at the Registry of the High Court, Umuahia, Abia State on the 16th of May, 1995. The notice was later brought to the Registry of the High Court of Plateau State, Jos where it was stamped received on 22/5/95.

On the whole, it seems to me the receipt of the said notice of intention to defend with the supporting affidavit at the Registry of the High Court of Plateau State, Jos on the 22nd of May, 1995 cannot properly be regarded as filing in the Registry of Plateau State High Court within the combined provisions of Order 23 rule 3(1) and Order 54 rule 2 of the High Court of Plateau State (Civil Procedure) Rules, 1987. A critical look at the notice and the affidavit in support shows that it was filed at the Registry of the Abia State High Court, Umuahia. The assessments made therein read:-

Oath – N5.00

Filing – N25.00

Service – N10.00

Mige – N15.00

Exh. – N5.00

N60.00 Fee Official;

and the process was stamped,

The Judiciary

High Court Umuahia, Abia State

Date – 16-5-95.

To my mind, there cannot be better evidence to show that the notice of intention to defend was filed at the High Court Registry, Umuahia, Abia State than the above quoted endorsement. There is a lot of difference between swearing to an affidavit and filing the affidavit. If it is the swearing simpliciter, the assessment would show the oath fee only. Where the assessment includes the oath fee, the filing fee, the service fee and mileage fee, then it is the actual filing of the process in question.

In this case, all the above assessments were made at the High Court Registry, Umuahia, Abia State on the 16th of May, 1995. I think the process was filed in Abia State. It is more than merely swearing to the affidavit in support. If the said notice had been filed at the High Court Registry, Umuahia, Abia State, as shown above, it cannot be said that the same process had been properly filed at the High Court Registry, Plateau State, Jos. The same process could not have been filed in the two courts at the same time. It might certainly be that it was filed in one and transmitted to the other. It is therefore my view that the notice of intention to defend the suit with the affidavit thereof allegedly filed by the appellants in this case was not properly filed, in compliance with the provisions of the Plateau State High Court (Civil Procedure) Rules, 1987.

It is a well settled principle of law that where a special procedure is prescribed for enforcement of a particular right or remedy, non- compliance with or departure from such a procedure is fatal to the enforcement of the remedy. See Barraclough v. Brown (1897) AC 615. See also Raymond S. Dongtoe v. Civil Service Commission Plateau State & Oths. (2001) 9 NWLR (Pt. 717) 132, (2001) 86 LRCN 1203 at 1232.

Order 23 of the High Court (Civil Procedure) Rules of Plateau State, provides for the undefended list procedure, whereby rule 3(1) thereof enjoins a defendant who is served with a writ of summons and affidavit under the undefended list procedure to file and deliver a notice of intention to defend the suit, together with an affidavit disclosing a defence on the merit. Rule 4 of the Order provides for the consequence of the failure to comply with rule 3(1) of the Order. It says:

(4) Where any defendant neglects to deliver the notice of defence and affidavit prescribed by rule 3(1) or is not given leave to defend by the court, the suit shall be heard as an undefended suit, and judgment given thereon without calling upon the plaintiff to summon witnesses before the court to prove his case formally.

I think the failure of the appellants to file the notice of intention to defend the suit and the affidavit in support thereof in the High Court of Plateau State in accordance with the Rules of the court is fatal to the appellants’ defence. The purported notice of intention to defend the suit, together with the affidavit in support of the defence was not properly before the court. In the circumstance, the learned trial Judge was right in my view, when he said inter alia, in his judgment that:-

the defendants were served on the 27th April, 1995.

The defendants have not entered appearance in this suit and did not file any intention to defend the plaintiff’s claim.

Having found, rightly in my view that the appellants did not enter appearance and did not file notice of intention to defend the respondent’s claim, I think the trial Judge was entitled to enter judgment in accordance with Order 23(4) of the Plateau State High Court (Civil Procedure) Rules, 1987, as he did.

The learned counsel for the appellants argued that the appellants were not given a fair hearing. The question arises:- What is the meaning of fair hearing?

In Isiyaku Mohammed v. Kano Native Authority (1968) 1 All NLR 42, Ademola, CJN, delivering the judgment of the Supreme Court defined fair hearing as follows:-

It has been suggested that a fair hearing does not mean a fair trial. We think a fair hearing must involve a fair trial and a fair trial of a case consists of the whole hearing. We therefore see no difference between the two. The true test of a fair hearing is the impression of a reasonable person who was present at the trial whether from his observation, justice has been done in the case.

It is well settled that the fundamental basis underlying the principle of fair hearing is the doctrine of ‘audi alteram partrem’ which means, please hear the other side. See Akande v. The State (1988) 3 NWLR (Pt. 85) 681 at 690.

In the present case, the appellants conceded that the plaintiff/respondent served on the defendants/appellants out of jurisdiction, a writ of summons under undefended list and the return date for hearing was fixed for 29th May, 1995. According to the appellants, the appellants, on the 22nd of May, 1995, through their counsel filed a notice of intention to defend the suit and an affidavit in support of their defence.

On the 29th of May, 1995, when the matter came up for hearing, the defendants/appellants did not attend the court. Their counsel was also absent from court. There is no evidence that the appellants sent any message to the court asking for adjournment. Fair hearing is nothing short of an opportunity to be heard. It seems to me that in so far as the appellants had been duly served and were aware that the case was coming up on the 29th of May, 1995, and did not attend the court, they cannot complain that the learned trial Judge dealt with the case in accordance with the provisions of Order 23 rule 4 of the High Court of Plateau State (Civil Procedure) Rules. It seems to me that the appellants were given a fair hearing, an opportunity to be heard.

In the final analysis, I think there is no merit in the appeal.

The appeal therefore fails and is accordingly dismissed.

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Other Citations: (2002)LCN/1291(CA)