Alhaji Tahiru Adisa V. Teno Engineering Limited (2000)

LawGlobal-Hub Lead Judgment Report

MANGAJI, J.C.A. 

This is an appeal against the judgment of Bdliya J. sitting in the High Court of Borno State, Maiduguri Judicial Division wherein the Respondent as plaintiff obtained judgment in terms of all the reliefs he sought in his statement of claim. That judgment was dated 21st May, 1996 but signed on 24th May, 1996.

Aggrieved by the judgment, the Appellant as Defendant, filed a notice of motion seeking the indulgence of the Court below for the following reliefs:-

“An order granting leave extending time within which to apply to set aside judgment of this Honourable court in suit No.M/66/95 dated 21st May, 1996.

An order setting aside the judgment of this Honourable court in default of defence/pleading dated 21st May, 1996 in suit No.M/66/95.

An order for leave to the Defendant/judgment debtor/applicant to file his statement of defence out of time.

An order for leave to recall all the plaintiff/judgment creditor/respondent’s witnesses and to be cross examined by the Defendant/judgment debtor/applicant.

An order for leave to Defendant/judgment debtor/applicant to call his witnesses to testify.

And for any further order or orders as this Honourable Court may deem just to make in the circumstance.

Dated this 15th day of July, 1996”.

The motion which was supported by a 7-paragraph affidavit was accompanied by three exhibits namely: the drawn up orders of the learned trial Judge dated 13/6/96 in respect of the judgment, the defendant wanted to set aside; a proposed statement of defence; and the proceedings of the Borno State Rent Tribunal, holden at Maiduguri in which the parties to this appeal were parties thereat. The plaintiff hotly contested the motion and relied in so doing on a 13-paragraph counter affidavit and a further counter-affidavit of 7 paragraphs. (See pages 10 to 26 of the record of appeal). The motion which was taken on 10th September, 1996 had its ruling reserved to 4th October, 1996 but for reasons not stated in the record of appeal, appeal was further adjourned to 7th October, 1996. On that day, ruling was duly delivered and the motion on notice dismissed in its entirety. The concluding part of the ruling reads thus:

“There is nothing to show that the judgment of 21/5/96 was delivered without jurisdiction. All the conditions for it to hear the case were satisfied. So, in view of all that I have said in the foregoing paragraphs, I do not think the said prayer of the applicant can be granted. This Court is functus officio when it delivered its judgment on 21/5/96. It has no power to review or set aside the same. It is only the Court of Appeal that has the statutory jurisdiction to set aside same. Consequently, I cannot but to refuse the said prayer. Same be and is hereby dismissed.

With the failure of the 2nd prayer, I cannot see the need to delve into prayers 3 – 6. They are no longer relevant. They must and have collapsed with prayer 2. I would and do hereby dismiss them also”.

It is against the dismissal of his motion that the defendant appealed to this Court on three grounds of appeal dated 21st November, 1996 seeking to have both the ruling and judgment of the court below dated 13th November, 1996 and 21st May, 1996, respectively set aside and a retrial ordered before another Judge of the High Court of Borno State.

Both parties filed their respective briefs of argument in compliance with the Rules of this Court. Henceforth, I shall refer to the defendant as appellant and the plaintiff as respondent for all purposes. Be that as it may, on 15th June, 1998 and before briefs of argument were filed in this Court, learned Counsel for the respondent filed a notice of preliminary objection to the competency of the appellant’s appeal. On 14th May, 1998 however this Court (differently constituted of course) advised learned Counsel to incorporate the preliminary objection in his brief of argument in order to save valuable time and obviate proliferating documents that will do no good either to the parties or the Court. This wise Counsel is well premised especially since the Supreme Court has endorsed the practice of incorporating preliminary objections in briefs of argument being a practice in substantial compliance with Order 3 rule 15(1) of the Court of Appeal Rules. See Agbaka v. Amadi (1998) 11 NWLR (Pt.572) 16: The Respondent’s counsel therefore incorporated his preliminary objection in his brief of argument.

Let me at this juncture give a brief resume of the facts and circumstances giving rise to this appeal for the obvious reason that without doing that, it will not be easy to follow arguments in this appeal.

On 27th February, 1995, the Respondent took out a writ of summons against the appellant which writ was accordingly signed by the Registrar in compliance with the order of the court below. The endorsement on the writ however, was dated 22nd June, 1995. In it, the respondent’s claim are:-

(a) “The plaintiff’ss claim is for:

A declaration that the plaintiff is entitled to the assignment of the landed property covered by the certificate of occupancy No.NE/12 384 otherwise known as Plot No. B2003 at No.2, Church Road, Wulari ward, Maiduguri against all legal representatives, assigns, privies, trustees, agents, heirs or any persons claiming through the Late Alhaji Yusuf Adisa, by virtue of and under the agreement (Deed of Assignment) dated 10/2/91 between the plaintiff and the Late Alhaji Yusuf Adisa.

(b) An order that any person(s) acting in whichever capacity on behalf of the Late Alhaji Yusuf Adisa and the heirs is bound by the said agreement validly signed by Alhaji Adisa in respect of the said property covered by certificate of occupancy No.NR/12384 and known as plot No. B2903 at No.2 Church Road, Wulari Ward, Maiduguri.

(c) An order directing the legal representative or whosoever benefiting or claiming or has interest in the estate of Alh. Yusuf Adisa to specifically perform the said contract between the plaintiff and the Late Alhaji Yusuf Adisa.

(d) An order that by virtue of the agreement dated the 10/2/91 the late Alhaji Yusuf Adisa under a valid agreement undertook to assign to the plaintiff the property covered by the Certificate of Occupancy herein before mentioned, and in furtherance of the said agreement the plaintiff has performed part of his obligation under the contract.

(e) An order that the defendant as the legal representative of the late Alhaji Adisa and the heir is bound to perform the contract by assigning all the legal and equitable interest on the property to the plaintiff.

(f) An order of perpetual injunction restraining the defendant or any other person(s) claiming or having interest over the said property aforesaid through the late Alhaji Yusuf Adisa from trespassing or entering the said property, and

(g) The costs of this suit.

Upon the receipt of the writ of summons, Joe Kyari Gadzama, (SAN) Counsel for the appellant filed before the court below a memorandum of appearance for and on behalf of the said Appellant dated 24th May, 1995. (see page 9 of the record of appeal). In July, 1995 the respondent filed before the Court below his statement of claim dated July 6th, 1995. The appellant however, did not file any pleading up to 13th March, 1996, when the suit was mentioned and further adjourned on the ground that the respondent was not ready with his witnesses. On 1st April, 1996, the date to which the suit was adjourned to, during the court’s previous sitting; the court noted that the Appellant though absent, was duly served with hearing notice. The Respondent thus, opened his case and called three witnesses within two dates of adjournment after which he closed his case. Address by Counsel was taken on 6th May, 1998 after which judgment was adjourned to 21st May, 1995, judgment could not however be delivered on that day in which event it was further adjourned to 24th May, 1996. On the said date, judgment was accordingly delivered.

When a copy of the drawn up orders of the Court below was served on the appellant, he then caused his counsel to file a motion on notice seeking for five principal reliefs as can be seen at page 1 of this judgment which included a prayer seeking the leave of the Court below to set aside its judgment of 24th May, 1996 on the ground that no service of hearing notices was ever made on Appellant’s Counsel and that the said judgment was indeed a default judgment. The said motion was heard and in a reserved ruling delivered on 13th November, 1996, the Court below dismissed the application as lacking in merit. That ruling spurred up this appeal.

As I observed earlier on, the Appellant filed three grounds of appeal. I need reproduce them in view of the preliminary objection which took exception to ground 1 of the grounds of appeal. These grounds are couched thus:-

“1. The decision is against the weight of evidence.

2. The High Court of Justice, Maiduguri erred in law when the Judge substantially refused the motion and dismissed same despite the fact that, the Appellant proved all the necessary conditions for setting aside the judgment of the trial Court which was entered in default of defence (pleading).

Particulars of Error

The Appellant was not served with hearing notices for each of the proceedings of the trial Court. The appellant did not file statement of defence and as such, parties did not join issues.

The Appellant did not call any witnesses to cross-examine the witnesses of the Respondent at the trial Courts.

The Appellant gave substantial and cogent reasons for his absence in court during the trial.

The Appellant was prepared to pay costs and comply with the conditions of granting the application.

The trial Court lacked jurisdiction to hear and determine the matter as the proper procedure was not adopted by the Court.

There was no application by the respondent at the trial court to urge the court to enter judgment in default of defence (pleading) as prescribed by rules of court”.

Out of these three grounds of appeal, learned Counsel for the Appellant identified three issues as arising there from. On his part, learned Counsel for the Respondent identified two issues for determination. These issues as identified by both learned Counsel are hereunder reproduced respectively viz:

“Whether the lower Court adopted the proper procedure before default judgment was entered?.

Whether the Appellant had satisfied the basic conditions for the default judgment of the lower Court to be set aside?.

Whether the lower Court was right in refusing to set aside its default judgment in view of the fact that the judgment was not in the merit?.

Whether the conditions precedent to set aside the judgment of the trial Court delivered on 21/5/96 had been fulfilled by the Appellant in the circumstances of this case?.

Whether the trial Court lacked jurisdiction to hear and determine the matter as it did taking into consideration the procedure adopted vis-a-vis the claims of the respondent before the trial court?”.

There is no doubting that though the two sets of issues for determination identified by learned Counsel are differently phrased, the appellant’s first issue is same with the respondent’s issue(b), while the appellant’s second issue is same with that identified by the respondent as issue(a). The only outstanding issue is the third issue identified by the appellant. In the event, and in order to consider all issues in contention in this appeal I shall adopt the issues identified by learned counsel for appellant.

Let me at this juncture consider the objection raised by learned Counsel for the Respondent on the propriety of incorporating an omnibus ground as done by the Appellant in this appeal. His reason is that the appellant is not attacking the findings of fact made by the lower Court in its judgment signed on 24th May, 1996. Indeed that, that judgment is not directly a subject of this appeal. Learned Counsel therefore submitted that the omnibus ground is therefore incompetent and should be struck out. I couldn’t agree more.

However, for some glaring reasons, I do not feel it appropriate to go the whole hog considering the authorities cited by learned Counsel on the purport of an omnibus ground of appeal.

In his reply brief, page 4 thereof, learned Counsel for the Appellant addressed this objection. He however, considered the omnibus ground of appeal raised by him against the background of the motion on notice filed by him seeking for several reliefs including that which seeks to act aside the judgment of the Court below signed on 24th May, 1996. Clearly learned Counsel are operating at different wave lengths. While the Appellant’s Counsel had in mind his motion on notice of 15th July, 1996 and the proceedings subsequent thereto learned Counsel for the Respondent had in his mind’s eyes the judgment of the court below of 24th May, 1996. Whatever may be the case, Appellant’s issues for determination have put to rest the dust raised by the preliminary objection. A very close consideration of the three issues raised, show that all of them relate to the procedure and the basic conditions for entering default judgment. Non of the issues went to the merit of the findings of fact of the Court below and the weight attached thereto. Evidently therefore, ground 1 of the grounds of appeal finds no relevant issue for determination as one culled there from. Since no issue for determination is apparently identified from ground 1 of the grounds of appeal, it is deemed abandoned. See Egbe v. Yusufu (1992) 6 NWLR (Pt. 245) 1; Ogbuanyinya v. Okudo (No.2) (1990) 4 NWLR (Pt.146) 551; Baridam v. State (1994) 1 NWLR (pt.420) 250; Calabar East Coop. Thrift & Credit v. Ikot (1999) 14 NWLR (Pt. 638) 225 among others. I should perhaps point out that, it is basic that issues for determination must relate to and arise from the grounds of appeal- Obala of Otan-Aiyegbaju v. Adesina (1999) 2 NWLR (Pt. 590) 163; Adelaja v. Alade (1999) 6 NWLR (Pt. 608) 544; Yakassai v. Incar Motors Ltd. (1975) 5 SC 107; Adeniji v. Adeniji (1972) 4 S.C. 10.That ground of appeal, not having an issue identified arising there from therefore, is deemed abandoned. See Ojegbe v. Omatsone (1999) 6 NWLR (Pt. 608)591; Adigun v. Ayinde (1993) 8 NWLR (Pt. 313) 5 16; Baridam v. State (1994) NWLR (Pt.250) 250. Ground 1 of the grounds of appeal therefore is hereby struck out.

The resultant situation of the appeal with the striking of ground 1 of the grounds of appeal, leaves the appeal with two germane grounds of appeal. Thus, three issues for determination apparently are distilled from them. In this event, there appears to be proliferation of issues for determination, a situation vehemently depreciated by the Supreme Court and this Court since as things are now, there are three issues for determination from the two grounds of appeal. See Agu v. Ikewibe (1991) 3 NWLR (Pt.180) 385 at 401; A.-G., Bendel State v. Aideyan (1989) 4 NWLR (Pt.118) 646; Ugo v. Obiekwe (1989) 1 NWLR (Pt.99) 566; Santana Med Serv v. N.P.A. (1999) 12 NWLR (Pt.630) 630 189; Anie v. Uzorka (1993) 8 NWLR (Pt. 309) 1 at 16 among a host of other decided cases. I shall however take a liberal view of the matter involved. When the Appellant filed his brief and identified three issues as arising from the appeal, he had three grounds of appeal legitimately filed. In his brief of argument, the Appellant argued his second and third issues together because the outcome of one must necessarily have bearing on the other. Indeed, they are supposed to form one issue. In effect the appeal has been argued in the appellant’s brief as if only two issues were culled out for determination. Whatever it is, the 648 Nigerian Weekly Law Reports 15th January, 2001 (Mangaji, J.C.A.) question of proliferation of issues for determination in this appeal is neither here nor there. In that respect I have put it to rest.

There is yet another preliminary objection raised by learned Counsel for the respondent. The objection is that on 28th September, 1998, learned Counsel for the Appellant moved this Court for leave to file appellant’s brief of argument out of time. This Court accordingly extended time by 21 days from that date for filing brief. When Appellant’s Counsel filed the motion on notice he exhibited along with it a proposed appellant’s brief of argument. Learned Counsel pointed out that, the brief of argument eventually filed by the Appellant’s Counsel was different from the one exhibited along with the motion on notice. He therefore submitted that, the brief filed on 25th September, 1998 being substantially different from the one exhibited along with the motion paper is incompetent and void since it is not known to the Court. He stressed that the leave granted by this court for the appellant to file his brief of argument was predicated, and based on the proposed brief of argument exhibited. He therefore urged us to discountenance the brief.

In his reply brief, learned Counsel for the Appellant submitted that the brief he filed on 28/9/98 is substantially the same with the one he exhibited along with his motion on notice. He said, the only difference lies in the fact that he had to re-type the contents of the proposed Appellant’s brief to eliminate typographical and grammatical mistakes which he noticed. He submitted further that, the proposed appellant’s brief being only a proposal could be altered where it is found expedient to do so. He relied on the definition of the word ‘proposed’ contained in Chambers 20th Century Dictionary, 1983 Edition at page 1032 and Black’s Law Dictionary, 6th Edition at page 1219.

“I think the objection raised is made to appear more difficult than it otherwise is. The appellant’s motion on notice dated 20th April, 1998 which gave birth to the furore raised in this objection prayed this court for the following reliefs:

1. An order granting to the Appellant/application to file its (sic) brief of argument out of time,
2. And for such further order or orders of this Honourable court may deem fit in the circumstances”.

This Court granted the motion as prayed and in terms of the motion paper.

Time was extended by 21 days from the date of the ruling within which the Appellant may file his brief of argument. It should be realised that there was no prayer by the appellant seeking the proposed appellant’s brief exhibited thereto to be deemed as properly filed and served neither was there any order deeming the proposed Appellant’s brief properly filed. So even if there was a proposed appellant’s brief of argument as indeed there was, this Court would not have countenanced it or deemed it filed there was no specific prayer to that effect. It must be stressed that a court of law has no power to grant any substantial relief not asked for by a party. See Awosile v. Sotunbo (1992) 5 NWLR (Pt.243) 514; Nig. Housing Development Society Limited v. Mumini (1972) 2 SC 57; Egwuatu v. Egwuatu (1992) 4 NWLR (Pt.237) 594; A.-G., Anambra State v. Okafor (1992) 2 NWLR (pt.224) 396; Edoho v. A.-G., Akwa Ibom State (1996) 1 NWLR (Pt.425) 488. Understandably, a court of law not being a charitable institution can award less but not more than what is claimed by a party. See Limon v. Mohammed (1999) 9 NWLR (Pt. 617) 116 at 132; Ekpenyong v. Nyong (1975) 2 SC 71; Ademola v. Sodipo (1992) 7 NWLR (Pt.253) 251; Akapo v. Hakeem-Habeeb (1992) 6 NWLR (Pt.247) 266 at 296; Union Beverages Limited v. Owolabi (1988) 1 NWLR (pt.68) 128.

In the event, the proposed appellant’s brief of argument exhibited along with the notice of motion was of no consequence. It was an idle document that did not advance in a jot the Appellant’s cause moreso as there was no prayer seeking for the indulgence of the Court to make a specific order affecting the document. Since the Appellant was given an extention of time by 21 days within which he would file his brief of argument, he was not bound to utilise the idle document which he exhibited along with his notice of motion. And for any brief of argument he filed to be valid, he had to do it within 21 days from the date of the grant of his motion. I am not told that the appellant’s brief in this appeal was filed outside the 21 days granted. This objection is ill-founded and misconceived. I accordingly dismiss it.

I now came to the nitty-gritty of the objection. By now it should be realized that preliminary objections have taken the better part of this appeal. Although however, preliminary objections find solid support in our Rules of court – See 0.3 r.15 of the Court of Appeal Rules – I am never left in doubt that it is not meant to take dominance or role appeals are meant to serve. With due respect to learned counsel for the respondent his brief is but only a catalogue of preliminary objections. Learned counsel for the respondent incorporated in his brief a notice of preliminary objection spanning twelve pages apart of course from the preliminary objections I considered earlier on in this judgment. In the notice of preliminary objection he had an index having the following items:-

1. Brief introduction;
2. Legal issues for determination within the preliminary objection;
3. Argument of issues for determination;
4. Summary and conclusion.

I must observe unfortunate as it is that learned counsel has introduced a novel practice in the procedure of raising preliminary objection especially where such objections are incorporated in the brief of argument. Not only are the preliminary objections unbearably prolix, they also contained issues for determination as arising there from. Issues for determination in cases on appeal to the Supreme Court and this court are identified from the grounds of appeal filed by the appellant. The practice of filing briefs of argument in civil and criminal proceedings in the Supreme Court is provided for under Order 6 of the Supreme Court Rules. Order 6 Rule 5(1) (2) & (3) of the Supreme Court Rules provide specifically as follows:-

“The appellant shall within ten weeks of the receipt of the record of appeal referred to in Order 7 file in the court and serve on the respondent a written brief being a succinct statement of his argument in the appeal. The brief, which may be settled by counsel, shall contain what are in the appellant’s view the issues arising in the appeal. If the appellant is abandoning any point taken in the court below, this should be as stated in the brief. Equally, if he intends to apply in the course of the hearing for leave to introduce a new point not taken in the court below, this should be indicated in his brief.

The respondent shall file in the court and serve on the appellant his own brief within eight weeks after service of the brief of the appellant on him.

The appellant may also file in the court and serve on the respondent a reply brief within four weeks after service of the brief of the respondent on him but except for good and sufficient shown, a reply brief shall be filed and served at least three days before the date set down for the hearing of the appeal”.

From the above, it is clear that the practice of identifying issues for determination from the grounds of appeal finds support from the Supreme Court Rules itself. In this Court, the practice of identifying issues for determination as arising from the grounds of appeal is correspondingly provided for under Order 6 rules 3(1) of the Court of Appeal Rules (1981)as variously amended.The practice did not evolve as it were from no where. The beauties of any practice lie in its origin otherwise it becomes void of grace.

As for identifying issues for determination as arising from a preliminary objection. I must confess, I cannot say where it derives its validity. I have never experienced such a practice nor have I ever come across any authority which sanctions it. Learned Counsel did not as well draw our attention to any legislation or decided case which gives backing to such a practice. One might even ask where is the body of the preliminary objection from which the issues for determination have been distilled? I should perhaps reproduce the notice of preliminary objection dated 15th February, 1998 and filed in this court on 13th June, 1998. It reads as follows:-

“Notice of preliminary objection pursuant to section 15(1)of the Court of Appeal Act and Order 3 rules 5, 6, 8 and 15 and Order 6 rule 2 of the Court of Appeal Rules and under section 6(6) (a) of the 1979 Constitution of the Federal Republic of Nigeria (as amended).

Take Notice that this Honourable Court will be moved on the day of… in the month of …1998 at the hour of 9 O’clock in forenoon or so soon thereafter, as Counsel on behalf of the Respondent/Applicant can be heard for:

(a) An order striking out the appeal No.CA/J/111/97 for void and contrary to the provision of the law. And

(b) Such further order or other orders as the Honourable court may deem fit to make in the circumstance”.

The above notice was accompanied by an 8 paragraph supporting affidavit.

Now looking at the above notice of preliminary objection, where can one justifiably cull out an issue for determination as arising there from? Certainly, no issue for determination can be identified from the above catatonic phraseology to justify the requirements of our rules. Indeed, counsel is not left at large willy-nilly to feign a practice in legal procedure in order to advance his cause. In the event, I shall consider learned Counsel’s preliminary objection but certainly not based on the issues he deemed as identified from his notice of preliminary objection. I should as well warn that Counsel should always endeavour to file documents always bearing in mind the requirement of the law.

The first arm of the preliminary objection relates to service of processes of court on the respondent. I think I should reproduce the objection here:-

“…the respondent is a party directly affected and was neither served of the notice and ground of appeal in respect of this appeal by the registrar of the court below or cause to be served by any officer of the court but ironically and unjustly a typist of the lower court filed and signed a remittance form for the submission, of the compiled record of proceeding alleging therein that respondent was served.”

Learned Counsel submits that the Registrar not having participated in the compilation and transaction of the record of appeal, the record in this appeal should be discountenanced. Further learned Counsel submitted that, the proceedings of the Court between 29/3/95 and 13/6/96 are surreptitiously excluded from the record of appeal. Learned Counsel alluded to his letter of complaint to the Chief Judge of Borno State about what he termed ‘illegality’ committed by the ‘Typist’ who compiled the record of appeal in this matter. He urged that the record now at hand be declared null and void and of no effect.

In his reply brief, learned Senior Counsel for the Appellant submitted that, all conditions precedent to the hearing of the appeal were not satisfied. He reasoned that the record of appeal had been properly compiled and all necessary fees had been paid.

In his brief of argument which he adopted during the hearing of this appeal without further viva voce submission, learned Counsel for the respondent relied for the above objection on Order 3 rules 6, 8, 13 and Order 6 rule 2 of the rules of this Court. His main ground is that, the officer who signed for he compilation, certification and transmission of the record of this appeal is one Sunday – a typist.

That to that extent, the record is rendered void since Sunday is not a Registrar. He contended that under the rules of this Court only a Registrar who can validly participate in the settlement of record of appeal, its certification and transmission.

Order 3 rules 6, 8 and 13 of the Court of Appeal Rules provide inter alia as follows:-

“6(1) The registrar of the court below shall after the notice of appeal has been filed, cause to be served a true copy thereof upon each of the parties mentioned in the notice of appeal. It shall not be necessary to serve any party not directly affected.

(i) The Registrar of the Court below shall after the expiration of the time prescribed for filing notice of address for service summon the parties before him to:

(a) settle the documents to be included in the record of appeal;

(b) fix the amount to be deposited by the appellant to cover the estimated cost of making up and forwarding the record of appeal;

(c) fix the amount to be deposited by the appellant or secured by bond for the due prosecution of the appeal and the payment of any costs.

(2) The said Registrar shall whether any of the parties amend or not, provided that notice has been duly served on these parties who filed an address for service, proceed to settle and determine those matters in accordance with the provisions of rules 9, 10 and 11 of this order”.

“13(1) The Registrar of the court below shall transmit the record when ready together with:-

(a) a certificate of service of the notice of appeal;

(b) a certificate that the conditions imposed under rules 10 and 11 of this order have been fulfilled;

(c) either (i) seven copies of the record for the use of the Justices together with, where stencil was used for production of the record, copies of such stencils duly and carefully preserved, or…”

Undoubtedly, settlement of documents to be included in the record of appeal, the amount to be paid for it and indeed the responsibility of compiling the whole record of appeal, its certification and transmission to this Court is the duty of the Registrar of the court below. Who then is ‘the Registrar’? The Court of Appeal

Rules defined ‘Registrar’ to mean:-

“…the Chief Registrar, Deputy Chief Registrar, Assistant Chief Registrar, Senior Registrar, or Registrar of the court, or any other officer of the court by whatever title called exercising functions analogous to those of a Registrar of the court”.

Similarly, the rules of this court defined the term, ‘Registrar of the court below’, to:-

“include the Chief Registrar and any Registrar of whatever grade of the court below, and any officer of the court below exercising functions analogous to those of the Chief Registrar of the Federal High Court, High Court of a state, Sharia Court of Appeal, Customary Court of Appeal or other court or tribunal from which an appeal is brought to the court”.

From the definition of the word ‘Registrar’ above, one can say right-away that it is so all embracing that any officer for the time being assigned by the court below to perform the functions of a registrar qualifies to be so called. Be that as it may, I find no evidence whatsoever to believe that Sunday is a typist in the judiciary of Borno State. Even if he is, there is no evidence or suggestion that he was not assigned the responsibility of compiling the record of appeal in this case. At any rate, there is no evidence to suggest that the record at hand is illegally or inaccurately compiled. I shall return to the aspect of exclusion of some sittings of the court below allegedly made as alluded to by learned Counsel. It is idle for learned Counsel to contend that a typist compiled the record without pointing out in a proper manner aspects of the proceedings of the court below that have been excluded and how the exclusion had occasioned to miscarriage of justice. It should be noted that learned Counsel was served with the record of appeal since 9th September, 1997.

As I said, learned Counsel alluded to the exclusion of the proceedings of the court below from 29/3/95 to 13/3/96. That assertion, with respect to learned Counsel is false. A close look at page 3 of the record of appeal shows that the endorsement of the writ of summons is dated 22nd June, 1995. Certainly there could not have been any proceedings before the date the writ was taken as the objection of learned Counsel suggests. Learned Counsel’s statement of claim is dated 6th July, 1995 (See page 8 of the record.) So, could there have been any proceedings conducted between 26/3/95 and 6/7/95 when the statement of claim was filed as learned counsel’s objection suggested?. This matter of exclusion of proceedings of the Court below raised by learned Counsel was only meant to prove that the Appellant’s Counsel had participated in the proceedings throughout or at least he knew of the dates when the case carne up for hearing before the High Court.

Apart from filing memorandum of appearance on 24/5/85 by learned Counsel, the proceedings of 1st April, 1996 showed that the appellant was duly served with hearing notice but failed to appear in court. The presumption that the record of proceedings at the Court is correct very much applies – See Adeyiga v. Mil. Gov. Lagos State (1999) 11 NWLR (Pt. 628) 616.

If on the other hand, learned Counsel for respondent intended to challenge the accuracy of the record of proceedings he had the singular duty of swearing to an affidavit setting out succinctly the facts and parts of the proceedings said to have been omitted. The application together with the affidavit should be served on the trial Judge or the Registrar of the court below who will then swear to a counter affidavit if he desires to challenge the affidavit of the party asserting that the record is incorrect. See Ehikioya v. COP (1992) 4 NWLR (Pt. 233) 57. The appellant did nothing of that sort. In the event, he cannot be heard to be challenging the accuracy of the record now before this court.

I am completely at a loss about the argument of learned Counsel on the complaint he lodged with the Chief Judge of Borno State, a copy of which he said he did send to this court complaining therein about the participation of Mr. Sunday in the compilation of the record of appeal in this case. In the first place, that letter does not form a part of this record of appeal. Of course, this Court has no obligation to take any action upon a complaint of a counselor a party for that matter which is not brought as a substantive appeal or an application in a substantive appeal. Indeed, learned Counsel did not exhibit the letter of complaint over which he placed so much premium. Coupled with the above is the inexapable fact that, the allegations having bordered on illegalities said to have been committed, as the learned Counsel contended he was under a duty to have these allegations proved beyond reasonable doubt. This ground of objection must fail. I accordingly dismiss it.

In yet another ground of preliminary objection, learned Counsel for the respondent complained so bitterly about the conduct of Mr. Gadzama, learned senior Counsel for appellant in abandoning his client’s case at the Maiduguri Rent Tribunal and in the suit giving rise to this appeal on the ground only that his professional fees had not been settled. Learned Counsel submitted that the act of the learned Senior Counsel amounted to professional misconduct contrary to rule 29 of the Rules of Professional Ethics as contained in Decree No. 15 of 1975. He said, the learned Senior Counsel did not give his client due notice as required by the rules of professional ethics. He therefore urged this court “That the appeal ground should be struck out as all the court processes in this case signed and filed by the counsel for the appellant J. K. Gadzama, (SAN) are a nullity and incompetent”.

I must say with all sense of responsibility that, the objection of learned Counsel for the respondent appeared to me to be a fairy tale. Learned Counsel has inexorably shifted in to advance the cause of the appellant. I have gone through the record of appeal but am unable to find anything therein bordering on the professional misconduct said to have been exhibited by the learned Senior Advocate. I could not as well find a ground of appeal or any issue for determination in the appeal which has to do with the said professional misconduct. Neither are there any proceedings before any court or tribunal about any professional misconduct exhibited by the learned Senior Counsel. How then does the alleged misconduct affect the record of proceedings and the appeal herein? The inescapable conclusion I can arrive at is that, the learned Counsel for the respondent is a meddlesome interloper and busy-body who, as a typical trojan, ensures the delivery of victory to both sides of contending parties not minding the effect it may have on his paid client. Undoubtedly, learned Counsel forgets what he should remember but remembers sharply what he should forget.

Be that as it may, if what learned Counsel for the respondent said is true, the learned Senior Counsel, Mr. Gadzama should bury himself in shame. However learned Counsel for the respondent should by now have known what legal steps he should take to discipline a counsel whose conduct is considered unprofessional. Punishing an erring counsel cannot certainly be attained through preliminary objections raised with a view to declaring void a validly entered appeal for the reason only that, the counsel who filed the appeal had earlier on abandoned the Appellant’s case at the trial stage. Learned Counsel’s objection is most disingenuous. It is obtruse and I dismiss it accordingly.

I now get to the point where I shall consider the issues for determination. Issue No. ‘A’ as identified by learned Counsel for appellant is whether the lower Court adopted the proper procedure before default judgment was entered. In arguing the issue as contained in the appellant’s brief of argument, learned senior Counsel for the appellant quoted Order 27 rule 6(1) of the Borno State High Court (Civil Procedure) Rules, 1988 hereinafter to be referred to as the rules of the court below, wherever the context so admits and submitted that the court below ought not to have accepted any evidence from the respondent at the trial. He contended that, because no pleading was filed by the appellant what was required of the court below was to enter a summary judgment in favour of the respondent or a judgment in default. He referred to U.T.C. Nig. Ltd. v. Pamotei (1989) 2 NWLR (Pt.103) 244 at 282. Learned Senior Counsel further cited the decision of this court in Akinnuli v. Ayo-Odugbesan (1992) 8 NWLR (Pt.258) 172 at 186 on the distinction between a judgment obtained in default of pleading and one entered in default of appearance for trial.

Further in submissions, learned Senior Counsel said ,Order 27 rules 1 and 2 were not complied with in that trial was commenced without any application made before the lower court to have the suit set down for hearing, which said application should indicate the number of witnesses the appellant intended to call and the length of time he was expecting to take in the trial of the matter. He therefore reasoned that, inasmuch as the appellant proceeded with calling evidence without that application, the suit was heard without a condition precedent having been fulfilled and to that extent the whole proceedings were rendered null and void.

In his brief of argument, learned counsel for the respondent pointed out that the learned Senior Counsel had mixed up the issue of lack of jurisdiction and a situation in which judgment is obtained irregularly or erroneously. He said, whereas the former goes to the competence of the court to entertain the suit at all the latter situation does not. Learned Counsel relied on J.C. Ltd. v. Ezenwa (1996) 4 SCNJ 124 at 129, (1996) 4 NWLR (Pt.443) 391 to buttress his argument.

Further in submissions, learned Counsel said the present appeal only affects the ruling of the court below and not the substantive judgment. That if the appellant desired to appeal against the judgment, he was at liberty to do so but not to use the appeal against the ruling of the court below to question the judgment over which no appeal is subsisting. Learned Counsel is of the firm view that the judgment of the court below is not one made in default.

Continuing learned Counsel submitted that the respondent did comply with Order 37 of the rules of the court below by applying to have the case set down for hearing. He said, the learned trial Judge did entertain the suit properly and in record with the doctrine of fair hearing.

Undoubtedly, Order 37 rules 1 and 2 of the Rules of the court below provide the procedure for setting down a suit for hearing. The rules are reproduced hereunder:-

“1. The plaintiff shall within thirty days of the close of pleadings apply to the registrar for the case to be set down for trial.

2. The application shall be in writing and shall contain the following information.

(a) that the pleadings in the case have closed, and

(b) the number of witnesses the plaintiff intends to call and the probable length of time the case will take”.

The respondent was indeed expected to satisfy the above conditions if his case was to go on trial. Learned Counsel for the respondent said he did satisfy the conditions. I do not believe him. The record of appeal does not bear that. I should stress that Order 37 rule 2 stipulates that the application should be in writing. There is no such application in the record of this appeal. Can it however, be said with all seriousness that Order 37, rules 1 and 2 of the rules of the court below are mandatory? Clearly the word ‘shall’ has been used in relation to the need for filing an application to have the suit set down for trial. The word ‘shall’ is not always used to denote command. It is by no means used in its mandatory sense, it is sometimes used to denote discretionary step. Whether the word is intended to convey mandatory action or simply directory depends on the general tenor of the statute or legal instrument in which it is used particularly in the section of the law where it is made to appear.

Black’s Law Dictionary 6th Edition, in its definition of the word ‘shall’ said inter alia as follows:-

“But it may be construed as merely permissive or directory (as equivalent to ‘may’) to carry out the legislative intention and in cases where no right or benefit to anyone depends on its being taken in the imperative sense, and where no public or private right is impaired by its interpretation in the other sense”.

Although the order ex facie appears to have been couched in mandatory terms, it is discretionary in fact.

The word ‘shall’ used in Order 37 rules 1 and 2 of the rules of the court below appears to me to simply imply permissiveness. This is because the word is used in the chapter of the rules dealing with setting down a case for hearing. It thus relates to formalities in practice and procedure. Evidently, rules 1 and 2 of Order 37 deal with form rather than the substance of taking steps in an action. It is a mere matter of practice whose infraction does not affect the substance of the requirement for instituting action or the live issues in the action/as presented in the pleadings. Consequently, the conditions set out are by no means precedent to the hearing of a suit since they appear not to be imperative afortiori most High Courts and legal practitioners alike pay little attention to the observance of the rules. It should be borne in mind that, the order provides in rules 3 and 4 for failure to apply for setting down a suit for trial. It stipulates that where none of the parties files an application to have the suit set down for hearing, the Judge may strike it out in a situation where the Registrar certifies that fact. (See Order 37 rules 4 and 5). Where however, as in this case the Judge knowing too well that no application has been filed seeking to have the suit set down for hearing, nevertheless proceeds to hear witnesses, I do not in the least think that the plaintiff shall be made to stand any disadvantage by reason only that he has filed no application. The rules are aimed at aiding the trial Judge to know before hand the number of witnesses he will expect in the matter and the possible length of time the matter is expected to last. Thus, the rules are meant to direct the Judge in matters of adjournment of cases before him as a means of feather bedding his cause list as far as possible to avoid overloading his court. It is the Judge, in the absence of an application from the parties, who should take steps, he feels are just in order to advance the cause of justice. Once the Judge feels that an application to have the suit set for hearing is unnecessary and thus proceeds to take witnesses, the plaintiff shall not be made to suffer adversely for the action that was not his own making. For these reasons, I am of the firm view that Order 37 rules 1 and 2 of the rules of the court below are merely directory or discretionary.

Learned Senior Counsel took exception to the procedure, adopted by the learned trial Judge in taking evidence from witnesses for the respondent rather than entering judgment for the respondent since the appellant filed no pleading. I believe learned Senior Counsel is correct in his contention that where there is default in serving statement of defence, the plaintiff can only apply to have judgment entered in his favour. (See Order 27 of the rules of the court below).

However, that order is permissive and does not in my view preclude the trial Judge from calling on the plaintiff to produce his witnesses in proof of his claim, See Aguda: Practice & Procedure of the Supreme Court, Court of Appeal and High Courts of Nigeria pages 266 to 272 particularly his commentary on the order at paragraph 20.19, Order 27 aforesaid apparently is derived from Order 19 of the Supreme Court Practice of England. In the event see the commentary at page 337, paragraph 19/7/16 titled, ‘Right to Proceed to trial’ contained in volume 1 of the Supreme Court Practice 1988, Whatever is the case, learned Senior Counsel has not told us what miscarriage of justice was, occasioned by the method adopted in taking the respondent’s witnesses, I hold that the learned trial Judge was right in allowing the respondent take his witnesses in proof of his case notwithstanding the default by the appellant in serving a defence and inspite of the fact that the respondent had failed to apply for judgment in default of filing statement of defence. The court has power to entertain witnesses inspite of the provisions of Order 27 of the Rules of the court below. I therefore answer issue ‘A’ positively.

Issues ‘B’ and ‘C’ were argued together by the learned Senior Counsel in the appellant’s brief of argument. He submitted firstly that a court of law has inherent jurisdiction to set aside its judgment delivered in default. He classified default judgment into three namely one obtained in default of appearance, that obtained in default of pleading and where the defendant and his counsel fail to appear in court inspite of filing a memorandum of appearance and pleading, Learned Senior Counsel submitted that in each of the above classes of default judgment the trial Judge has the power to set aside his said judgment provided that good reasons are given to justify doing it. He said the three classes of default judgment he enumerated above are provided for under Order 14 rule 6, Order 27 rule 10 and Order 37 rule 9 of the rules of the court below.

Continuing, learned Senior Counsel submitted that his application seeking to have the judgment of the court below set aside gave succinct reasons why it should be granted regard being had especially to paragraphs 4, 5 and 6 of the supporting affidavit. He cited the case of Sanusi v. Ayoota (1992) 9 NWLR (Pt.265) 275 at 294. 0n the factors to be considered in applications seeking to set aside default judgments. Learned Senior Counsel recalled the sitting of the court below of 13/3/96, 1/4/96, 17/4/96 and 6/5/96. He said, learned counsel was never personally served but that it was claimed that the appellant who resides in Lagos) was served by substituted means in Maiduguri. Learned Senior Counsel stressed that any proceedings conducted without proper service of court processes on parties is a nullity. He relied on A.C.B. Plc. v. Losada (Nig.) Ltd. (1995) 7 NWLR (Pt 405) 26 at 49. He urged us to allow the appeal, set aside the judgment of the court below and remit the matter to the High Court of Borno State for re-hearing before another Judge.

On the issue number ‘A’ identified by learned Counsel for respondent which covers issues ‘B’ and ‘C’ of the appellant’s, learned Counsel submitted that the learned trial Judge acted in accordance with the law when he refused the application by the Aappellant to set aside his judgment delivered on 21/5/96. Learned Counsel listed out the factors courts should consider in applications seeking the indulgence of the court to set aside its judgment as enumerated in Sanusi v. Ayoota cited (supra). He referred to paragraphs 4(b), (d) (f), (k) and 5) (a), (b) (f) (g) and (b) of the affidavit in support of the appellant’s action as contained in pages 11 and 12 of the record and submitted that it will certainly not be good reason for the appellant’s counsel to abandon his client’s case for reason of non-perfection of his brief only to turn round and use his said misconduct in justifying an indulgence in his favour moreso that no notice was given to the appellant by his Counsel of his intention to withdraw from further representing him. Learned counsel further submitted that the Appellant had failed to satisfy in his favour those considerations which should ensure the success of an application seeking to set aside a default judgment. He urged us to dismiss the appeal in its entirety.

I couldn’t agree more with the learned senior Counsel for the Appellant in his classification of default judgment. Order 14 of the rules of the court below provides for situations where there is default in filing memorandum of appearance. Order 27 takes care of default of pleadings, while order 37 rule 9 makes provision for setting aside judgment entered in default of appearance in a case in which pleadings have been filed and exchanged. In all these situations, the rules have empowered the trial court to set aside judgment so entered where good reasons exist for doing so.

What calls for consideration here is whether the appellant was served with hearing notices from the time the respondent began calling his witnesses to the time judgment was delivered. This is crucial in my view of hearing notices. What is more the issue of service goes to the rest of the matter and therefore affects the power of the court to adjudicate where service of hearing notice is not effected on a party. It is for that reason that any judgment entered in favour of a party is rendered a nullity where his adversary is not shown to have been served with hearing notice since there is clear violation of the right to fair hearing. Skenconsult (Nig.) v. Ukey (1981) S.C. 6 at 26-27; F.B.N. v. Obande & Sons (Nig.) Ltd. (1998) 2 NWLR (Pt.538) 410; Carribbean Trad. & Fidelity Corp. v. NNPC & 7 Ors. (1991) 6 NWLR (Pt.197) 352; Agena v. Katseen (1998) 3 NWLR (pt.543) 560; Mbadinuju v. Ezuka (1994) 8 NWLR (pt.364) 535.

Before I consider the proceedings of the court below, let me dispose of one unfortunate slip on the part of learned Counsel for the Respondent. He rightly too in my view, observed an omission from the record of appeal compiled by the court below. He however, did not apply to incorporate the omitted proceedings in the record so that there would be complete record – a procedure so well spelt out in Alh. Audu Shugaba v. Union Bank Plc. (1997) 4 NWLR (pt.500) 481. Instead, learned Counsel filed a notice of preliminary objection seeking to have the appeal struck out for being incompetent, null and void, for the reason that the record is incomplete. (See page 12 of this judgment where the motion was reproduced). That motion had the part of the proceedings of the lower court omitted duly exhibited. Learned Counsel, upon being admonished by this court by a panel differently constituted, to incorporate his preliminary objection in the brief he rightly did just that. Unfortunately, the portions of the proceedings of the Court below omitted is not part of the record of appeal in this appeal. I cannot therefore use it in arriving at any decision in this appeal since the only valid record before me is the one compiled by the registry of the court below. This must be appreciated because, this Court cannot be cat’s paw for parties in searching for omissions in records of appeal from available applications relating to the appeals. I am in the circumstance left with the record of appeal as compiled and transmitted to this court, not questioned properly nor sought to be adopted.

On 1/4/96 when the suit came up for hearing, the record indicated that appellant was duly served with hearing notice- (See page 28 of the record). PW1 was then taken and the suit adjourned to 17/4/96 for continuation. On that date, PW2 and PW3 were taken inspite of the fact that neither the appellant nor counsel was in court. What was out of place was that there was nothing on record to indicate whether there was any service of hearing notice on either the appellant or his counsel. However, PW2 and PW3 were taken and the respondent closed his case wherein the case was adjourned to 6/5/96 for address. The Court specifically ordered that hearing notice be served on the appellant. (see P. 32 of the record).

On the said 6/5/96, respondent and his counsel were absent. Without ascertaining whether service of hearing notice had been effected on the Appellant as ordered by the Court, learned Counsel for the Respondent was let in to address the Court. Judgment was then adjourned to 21/5/95. On that day, judgment could not be delivered but it was recorded that Appellant was absent and was not represented. Eventually, judgment was delivered on 24/5/96. Appellant and his counsel were recorded to be still absent.

From the foregoing, it can be clearly realised that apart from 1/4/96 when the appellant was said to be absent though duly served, all subsequent sittings were held in the absence of the appellant and his counsel and without proof of service on either of them. Indeed when PW2 and PW3 were taken on 17/4/96 the clerk of court hinted the Court that the appellant was absent as he was on the last date of hearing. There is however nothing on record to indicate whether the Appellant was served with hearing notice particularly because his counsel was also absent. So, two of the only three witnesses for the Respondent were taken without any evidence of service of hearing notice on the Appellant. Indeed even after the court below ordered for hearing notice to be issued on the appellant against the sitting of the Court on 6/4/96, the Court convened and entertained the case in the absence of the Appellant and his Counsel without ascertaining whether he was served as previously ordered. With the above fundamental lapses in mind, I am of the firm view that the appellant was not accorded fair hearing as enshrined in section 33 of the Constitution of the Federal Republic of Nigeria, 1979 and as submitted by the learned senior Counsel. I hold that the omission to afford the Appellant fair hearing as recounted above is a fundamental vice. It has substantially affected the proceedings of the court below. The judgment of the learned trial Judge, in my view, is rendered nullity. So also are the proceedings.

Having regard to the averment in paragraph of the Appellant’s motion on notice before the court below seeking its indulgence to set aside its judgment dated 21st May, 1996, the application ought to have been granted, moreso that it was a default judgment. I therefore answer issues ‘B’ and in the favour of the appellant.

In the light of what I have said above, this appeal succeeds. Accordingly, the ruling of the court below dated 13/11/96 is hereby set aside. In the event, I make the following orders:-

(a) Prayers 2, 3 and 5 contained in the notice of motion filed on behalf of the appellant dated 15th July, 1996 are granted.

(b) the default judgment of the court below dated 21/5/96 and signed on 24/5/96 is hereby also set aside.

(c) the suit No.M/66/95 is hereby remitted to the Chief Judge of Borno State to be assigned to another Judge who shall hear it de novo.

I award N2,000.00 costs in favour of the Appellant.

Other Citations: (2000)LCN/0705(CA)