Ekiti Local Government Area V. Aje Printing (Nig) Ltd. (2008)

LawGlobal-Hub Lead Judgment Report

JUMMAI HANNATU SANKEY, J.C.A.

This is an appeal against the judgment of the High Court of Justice Kwara State, sitting at Ilorin and presided over by Daibu, J delivered on the 27th day of November, 2006. In the judgment, the learned trial judge granted all the claims of the Respondent as endorsed on the Writ of Summons in the case.

The brief facts leading up to this Appeal are here stated. The Respondent herein, being the Plaintiff at the lower Court, filed an action under the Undefended List Procedure wherein she claimed certain reliefs as endorsed in the Writ of Summons, the principal claim being the sum of N102, 680.00 plus interest. The sum claimed represented the balance outstanding on money payable to the Plaintiff for printing jobs done for the Defendant between 18th, May and 8th June, 2000. The Defendant was duly served the processes of the suit, but neither filed a notice of intention to defend the suit nor an affidavit disclosing a defence on the merit. The matter was slated for hearing on the 18th October, 2006 but was finally heard on 27th November, 2006. The Defendant was not in court nor was he represented by counsel on the date fixed for hearing. Judgment was thereafter entered for the Plaintiff as per his claim on the Writ. Dissatisfied with this decision, the Defendant filed the instant Appeal resting on five grounds. Both parties exchanged Briefs of Arguments in respect of the Appeal.

When this Appeal came before us for argument on the 14th January, 2008, Dayo Akinlaja Esq., learned Counsel for the Appellant, referred to, adopted and relied on the Appellant’s Brief of Argument dated 2nd October, 2007 and filed on 3rd October, 2007, and the Reply Brief dated and filed on 4th December, 2007. Wahab Egbewole Esq., learned Counsel for the Respondent, also adopted and relied on the Respondent’s Brief dated and filed on the 16th November, 2007.

The Appellant formulated one sale issue for determination in this Appeal thus:

Whether, the Judgment of the lower Court is not liable to be upturned in the circumstances of this case. (Arising out of Grounds 1 to 4).

It is submitted for the Appellant that the Judgment of the lower Court is gravely vitiated for three reasons:

a) failure to issue and serve hearing notice,

b) wrongful assumption of jurisdiction on account of the suit being statute-barred, and

c) arbitrary and unwarranted award of interest.

The upsurge of the Appellant’s argument on the first leg is that the lower Court, having not heard the matter on the 18th October, 2006 as originally slated, but on 27th November; 2006, a hearing notice ought to have been served on the Appellant for the new date. In addition, there was nothing before the court to show that the Written Address in support of the application for judgment mentioned in the proceedings of 27th November, 2006, was served on the Appellant before Judgment was entered for the Respondent. He argues that this has occasioned a denial of fair hearing to the Appellant. Secondly, it is submitted that, from the Writ of summons and the affidavit filed by the Respondent, the cause of action accrued on the 1st August, 2000 when the balance on the payment of the contract sum became due. Yet the suit was not instituted until the 12th May, 2006. By this, a period of over five years had lapsed in contravention of Section 18 of the Limitation Act of Kwara State Cap. 89 of the Laws of Kwara State of Nigeria, 1991 which provides for a five year limitation period for an action founded on contract. Thirdly, it is submitted that there was no basis for the 20% pre-judgment interest awarded to the Respondent by the trial Court. Learned Counsel therefore urged the Court to allow the Appeal.

Mr. Egbewole, learned Counsel for the Respondent, agreed with Mr. Akinlaja on the sole issue for determination. It is however submitted in the Respondent’s Brief that, the Appellant, having been duly served with a hearing notice to appear on the 18th October, 2006, had proper notice of the case but failed to take advantage by filing the appropriate processes, and thus is not entitled to any further hearing notice. It is further submitted that the trial Court had jurisdiction to entertain the matter, the Appellant having failed to raise the issue of the Limitation law and having now failed to seek the leave of this Court to raise same, being a fresh issue. This is more so that, even after time had lapsed, the Appellant acknowledged her indebtedness to the Respondent. Finally, on the matter of interest, learned Counsel has contended that the trial Court rightly awarded interest to the Respondent since it was claimed in the Writ, evidence offered on same was not controverted and the award was in line with Order 43 Rule 8 of the Kwara State High Court (Civil Procedure) Rules. He therefore urged the Court to resolve the sole issue in favour of the Respondent dismiss the Appeal and uphold the Judgment of the trial Court with costs:

In a Reply Brief, Mr. Akinlaja contends that it became incumbent upon the Respondent to serve the Appellant with a fresh hearing notice when the attempts at out of court settlement failed. It is further submitted that the issue of jurisdiction can be raised for the first time on appeal and can be raised suo motu by a court. He argues that this therefore obviates the need to obtain the leave of court before making it a ground of appeal. He also contends that moves to settle the matter out of court after processes had been filed and served can never serve as a revival of a case of action that had become statute-barred at the time of filing. He rayed the Court to discountenance the submissions in the Respondent’ Brief and to allow the Appeal.

The Appellant it has raised the issue of the jurisdiction of the lower Court to have entertained the matter. He contends that by virtue of Section 18 of the Limitation Act of Kwara State, Cap 89 Laws of Kwara be brought to court within a period of five years from the date on which the cause of action accrued. It needs to be reiterated here that the question of the jurisdiction in a court to hear a matter is a threshold imperative that it be looked into first or at the earliest opportunity offered. The reason is obvious. Any court proceedings without jurisdiction, not matter how well conducted is a nullity. See Elugbe V. Omokhafe (2004) 12 SCNJ 106; Olutola V. University of Ilorin (2004) 12 SCNJ 236; Ayman Enterprises Ltd V. Akuma Industries Ltd. (2003) 12 NWLR) PT. 834) 22; Oredoyin V. Arowolo (1989) 4 NWLR (Pt. 114) 172; Alao V. COP (1987) 4 NWLR (Pt. 64). Where therefore the issue of jurisdiction is raised, the court has a duty to consider it timeously before taking any further step in the matter. See State V. Onagoruwa (1992) 2 NWLR (Pt. 221) 33; Okafor V. A.G. Federation (1991) 6 NWLR (Pt. 200) 659. Learned Counsel for the Respondent has contended that this Court is precluded from looking into the issue of jurisdiction raised on account of the fact that it was never raised at the court below and no leave has been sought to raise same here. It is however also the law that although an appellate court will not generally allow a fresh point to be taken before it if such a point was not raised, tried or considered by the court below, where the question involves a substantial point of law, substantive or procedural, and it is plain that and no further evidence need be adduced to determine the matter, in which case, the court will allow the issue to be raised to prevent an obvious miscarriage of justice. See Oshatoba V. Olujitan (2000) 2 SCNJ 159; Akpabio V. The State (1994) 7-8 SCNJ 429. However, the general principle is that when a party seeks issue pertains to law or otherwise, leave to file and argue the issue must be had and obtained first. Nevertheless, where the point or issue sought to be raised pertains to the issue of jurisdiction, the point or issue can properly be filed and argued with or without the leave of the court, even if it is being raised for the first time. See Obiakor V. the State (2002) 6 SCNJ 193. Hear the Apex Court, per Katsina-Alu, JSC on a similar matter in the case of Elugbe V. Omokhafe (supra) at page 115: