Chief Sunday Evong V. Messrs Obono, Obono And Associates (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JA’AFARU MIKA’ILU, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of the High Court of cross River State Ugep Judicial Division, by Micheal Edem, J. The judgment was delivered on 6th July, 2010. In the court below, the Respondents claim was by way of undefended list filed on 20th May, 2010 purportedly claiming professional fee of N1,000.00 for professional services. Upon the service on the appellant, he filed a motion on 17th June, 2010 to extend time within which appellant can file and serve his memorandum of appearance Notice of intention to defend the suit and counter-affidavit and an order deeming them to be properly filed and served.

When the motion came up on 26th June, 2010 for argument the Respondent through his counsel Chief Okoi Obono Obla, objected by a written address, and evidence of penalty paid as stipulated by the Rules of court. He cited orders 2; Rule 1 (2), 12 Rule 1 (1), 10 Rule 3 (1) in support of his objection.

In his reply, the appellant averred that even if there was non-compliance, order 11 Rule 1 (1), (2) and (3) which deals with non-compliance with Rules does not stipulate a striking out of the whole process and such non-compliance is punished by award of court to rectify or amend. In a ruling of the court, it struck out the motion and went ahead to determine the suit in favour of the Respondent, hence this appeal.

In the appellant brief of argument three issues have been formulated for determination of this appeal. They are as follows:-

(1) Whether the Appellant was given fair hearing

(2) Whether the claim of the Respondent is a liquidated claim.

(3) Whether the suit is competent.

Thus the issues formulated by the Respondent are in essence similar to the issues formulated by the appellant. I will therefore consider the issues as formulated in the appellant brief of argument.

The first issue is whether the appellant was given fair hearing. Thus issue No. 1 is whether on the face of the records and upon a dispassionate and clear view the appellant was heard or given an opportunity to be heard on the substantive claim under the undefended list. It has been argued by the appellant counsel that the records reveal that the Respondent filed his writ, supported by an affidavit and a Bill of charges on 20th May, 2010. Being out of time to take any step in the suit the appellant filed on 11th June, 2010, a motion on Notice for extension of time within which to defend the suit and a counter-affidavit, and a deeming order Exhibited in the motion were a memorandum of appearance, Notice of Intention to defend the suit and counter-affidavit all duly filed and appropriate fees paid. Each process for which a deeming order was asked viz Memorandum of Appearance, Notice of Intention to defend the suit, and a counter-affidavit were all assessed N3,800.00 shown on the face of the memorandum appartly for penalty under order 13 Rule 5 of the High court (civil procedure) Rules of cross River State 2008.

However one of the reasons for striking out the appellants motion was non-payment of penalty. Even if the penalty was well assessed, which is not the case here, the apex court has held it is an error of the registry which can not vitiate proceedings or be visited on the litigant. Refer to AKPOJI vs UDEMBA (2008) 37 NSCER 158; 162.

The appellant counsel has further argued that on the 2nd ground of objection which is non-filing of memorandum of appearance, the rules of court, order 5 Rule 4 permits the court to grant an order extending time and payment of penalty. That this was the motion which the trial court settled without hearing the substantive suit. Thus the provision of order 13 Rule 1 (1) of the Rules is cured by Order 5 Rule 4.

That on the non-filing of a written address to accompany a motion, order 21 Rule 1 (2) of the Rules does not provide for striking out as a penalty but leaves the court with discretion to order the filing of one in the interest of justice, and not shutting out the appellant in a crucial trial as the undefended list. Where the Rules require a striking out of process, it clearly stipulates it, as in order 7 Rule 1 (2) dealing with the mode of commencing civil proceeding.

It is to be noted that on 6th July, 2010 the day fixed for ruling on the appellants motion for extension of time, the court struck out the motion and went on to deliver judgment on the substantive suit in favour of the Respondent without giving the appellant an opportunity to file a written address or file another motion and an address.