Afribank Nigeria Plc & Anor V. Snc Lavalin Nig. Ltd. (2002)

LawGlobal-Hub Lead Judgment Report

SALAMI, J.C.A.

In this appeal, the defendants are appealing against the refusal of the trial court to set aside its decision in an action brought under undefended list.

The plaintiff commenced an action in Zamfara State High Court of Justice under the undefended list claiming against the defendants jointly and severally the sum of N400,000.00 being the amount drawn on an Africa International Bank Ltd. cheque by the plaintiff, which was irregularly cleared and paid, by the first defendant to the second defendant. The defendants were duly served with the writ of summons and hearing notices fixing the matter for hearing against the 7th June, 1999 and certificates of service were duly deposed to by the court’s bailiff.

The defendants neither filed their respective memorandum of appearance nor notice of their intention to defend the claim and affidavit disclosing defence on the merit. On the date fixed for hearing, the matter was heard on the undefended list and judgment entered against both defendants pursuance of Order 22 rule 4 of the Sokoto State High Court (Civil Procedure) Rules, 1993, applicable in Zamfara State of Nigeria.

On receipt of the judgment, the defendants filed a motion on notice seeking the setting aside of the judgment but the application was refused by the trial court. The applicants were aggrieved by the refusal to set aside the judgment and appealed to this court on 3 grounds of appeal.

The parties filed and exchanged briefs of argument. The appellants in their brief formulated one issue even though they filed three grounds of appeal along with their notice of appeal. The appellants’ only issue reads as follows:-

“Whether having regard to the conflicting dates on the hearing notices issued by the court and a proper construction of the rules of court concerning a writ taken out under the “undefended list” judgment was properly entered for the plaintiff in the court below.”

On the other hand, the respondent’s brief of argument also contains the following issue for determination:-

“Whether in the factual circumstances of this case, the learned trial Judge was right in entering judgment against the appellants and refusing to set aside.”

It seems to me that the appellants’ only issue is a compound one as it rolls two separate issues, one of issuing multiple hearing notices and the other of construction of the relevant rules, into one. Not only is this approach contrary to practice and procedure of this court such approach invariably leads to a muddle.

While an issue may be framed from one or more grounds of appeal it is not encouraging to fragment a ground of appeal into several issues or merging different issues emerging from separate grounds of appeal into one.

The appellants’ main grouse is that the suit was prematurely heard and determined by the trial court. It was contended in the appellants’ brief that court should determine the effect of the learned trial Judge’s instruction to the court’s Registrar to adjourn the matter to the 23rd June, 1999 for hearing after the appellant’s Counsel pleaded with the court that he had to travel to his home town. He referred the court to pages 14 and 17 of the record for a copy of the fresh hearing notice issued against 23rd June, 1999 and the bailiff’s affidavit of service of the hearing notice. Learned Counsel referred the court to paragraphs 3, 4, 5 and 6 of the affidavit in support of the motion to set aside the judgment and paragraphs 3 and 4 of the counter-affidavit and contended that if averments in both affidavits are read together the conclusion is that after a change in the date of hearing by both counsel as well as the trial Judge in Chambers the court mistakenly sat on 7th June, 1999. Counsel then submitted that by the agreement to shift the hearing date forward the trial court lacked jurisdiction and further submitted that it is trite law that where a court sits without jurisdiction or competence the proceedings however well conducted is a nullity: See NB.N Ltd. v. Weide & Co. Nig. Ltd. (1996) 8 NWLR (pt. 465) 150, (1996) 9/10 SCNJ 147; 160. Learned Counsel for appellant further contended that there seems to be no dispute that Counsel on both sides agreed and were asked by the learned trial Judge to take a fresh date. Learned counsel for appellant argued that it was no longer necessary for him to write the court contrary to his alleged agreement with his learned friend having met the trial Judge and agreed with her verbally and submitted that learned Counsel for respondent ought to have reminded the court.

Learned counsel argued that failure to write the court for an adjournment against the 7th June, 1999 was a mistake on his part and submitted that inadvertence of Counsel should not be visited on his client: Onwunari Long John v. Chief C.N. Blakk & Others (1998) 5 SCNJ 68. 87-88, (1998) 6 NWLR (Pt.555) 524 and Iyalabani Co. Ltd. v. Bank of Baroda (1995) 4 SCNJ 1,4, (1995) 4 NWLR (Pt.387) 20.

Learned Counsel for appellant finally submitted that learned Counsel having agreed with his learned friend for the appellant that the case be adjourned to the 23rd June, 1999 for hearing, learned Counsel for respondent was estopped from moving the court for judgment on the 7th June, 1999. He further submitted that his action in so doing amounted to approbation and reprobation and such is not permitted in law on the same fact. He relied on the cases of Ogualaji v. Attorney General Rivers State (1997) 6 NWLR (Pt. 508) 209, (1997) 5 SCNJ 240, 248 and Agidigbi v. Agidigbi & Others (1996) 6 NWLR (Pt. 454) 300, (1996) 6 SCNJ 105, 119.