Evangelist Patrick Essien Effanga V. Mr. Rowland Nsefik Rogers (2002)
LawGlobal-Hub Lead Judgment Report
SIMEON OSUJI EKPE, J.C.A.
This appeal emanates from the judgment of Edem J. delivered at Calabar High Court of Cross River State on the 25th of June, 2001 in suit No. HC/195/2001. In that suit, the Plaintiff claimed in the writ of summons against the Defendant as follow.
“The Plaintiff’s claim is for N850, 000.00 (Eight Hundred and Fifty Thousand Naira) being 5% agency/commission fee due and owing to the Plaintiff following a Power of Attorney donated by the defendant to the Plaintiff to sell the defendant’s property lying and situate at No. 2 Ibom Layout, off Marian Extension. The Plaintiff as Attorney/Agent of the defendant did fulfil his obligations as demanded of him and the said property was eventually sold in the sum of N17 million during the subsistence of the Power of Attorney.
And the Plaintiff claim (sic) the said sum with 21% interest from 26th March, 2001 until the principal sum is fully liquidated and cost of this action.”
The Suit was on the 23rd of May 2001 placed under the Undefended List by the trial Court for hearing pursuant to an Ex-parte application filed by the plaintiff with an affidavit in support. Among the documents annexed to that affidavit are – Exhibit “A”, a revocable Power of Attorney donated to the plaintiff by the defendant for the sale of the defendant’s said property, Exhibit “B” is a letter dated 11/1/2000 written by the defendant and addressed to the Plaintiff appointing him (the plaintiff) as Sales Agent in respect of the said defendant’s property with agency commission of negotiable 5% of the sale price. Exhibits C, C1 are copies of the photographs of the different views of the property to be sold, taken by the plaintiff pursuant to his mandate, together with Exhibits E, E1 as copies of the Newspaper Publications advertising the said property for sale. Exhibit G is a copy of the letter by the Plaintiff’s Solicitor to the defendant demanding the payment of the plaintiff’s agency commission or fee.
The Suit having thus been placed on the Undefended List on 23/5/2001 was adjourned to 11th June, 2001 as the return date. On that date (11/6/2001) the learned trial Judge recorded at page 25 of the record of proceedings thus:-
“Plaintiff present. Defendant not yet served.
Clerk: Eric Utang for the Plaintiff. He was here and rushed to the Registry to see the proof of service.
Court: This matter is adjourned to 20th June, 2001 for proof of service on the defendant.
On 20th June, 2001, the Suit came up as previously adjourned and the learned trial Judge recorded at page 26 of the record of proceedings as follows:
“Plaintiff present. Defendant absent but served. Barrister Eric Utang for the plaintiff.
Clerk: No representation for the defendant. The defendant was served on the 13th of June.
Court: Between 13th June and today 20th June is 7 days.
Normally a period of 5 days is prescribed. However, I shall give the defendant uptil Monday the 25th of June, 2001 to take steps if he so elect otherwise I shall proceed to Judgment. This matter is adjourned to that date accordingly”
On 25th June, 2001, the Suit again came up before the Court below. The plaintiff was present while the defendant was absent as before. The Clerk a Court again informed the Court that the defendant was served on the 13th of June, 2001. Thereupon, the learned trial Judge not having seen any Notice of intention to defend and affidavit disclosing a defence on the merit filed by the defendant, entered Judgment for the plaintiff in accordance with the Writ of Summons. In doing so, the learned trial Judge in his judgment at page 27 of the record remarked as follows:
“In my file is a proof of service dated 19th June, 2001 certifying that the defendant was on the 13th day of June 2001 served with the Summons, Order and affidavit appertaining to this Suit. Wherein I believe and I am satisfied that the defendant had been duly served with all the relevant processes.
The plaintiff having kept faith with Order 23 Rule 2 High Court Civil Procedure Rules, the ball from the 13th day of June, 2001, arrived the ‘Court’ of the defendant. This being the case, and if the defendant was interested in the game, he could have laid his hand on the racket provided by Order 23 Rule 3 (1) and play back the ball in the name of the filing of Notice of intention to defend together with an accompanying affidavit disclosing a defence on the merit.
In this regard the defendant has exhibited wanton want of interest in the game.”
The defendant now appellant not being satisfied with the decision of the learned trial Judge, has now appealed against the same to this Court on two grounds of appeal which read thus:
“Grounds of Appeal
(A) The learned trial Judge erred in law in proceeding the (sic) enter judgment against the appellant when there was no evidence that the appellant had notice of the proceedings culminating into judgment and thereby denied the appellant of his right to fair hearing.
Particulars of Error
(1) The matter was fixed for hearing on the 11th June, 2001, whereas the appellant was allegedly served on the 13th June, 2001.
(2) The Court on the 11th June, 2001 adjourned the proceedings to 20th June, 2001 in the absence of the appellant or his Counsel without ordering/issuing hearing notice to be served on the appellant.
(3) The Court again failed in its duty to order hearing notice when the matter came up on the 20th June, 2001 and adjourned the case to 25th June, 2001 for judgment based on a proof of service allegedly effected on the 13th June, 2001.
(B) The learned trial Judge misdirected himself in law in placing the Suit under the Undefended List and proceeding to enter judgment as per the Writ of Summons.
Particulars of Misdirection
(1) The Claim before the learned trial Judge was not one for a liquidated money demand.
(2) The Claim in the Writ of Summons is speculative.
(3) There are no facts justifying the assertion that the Claim was due as per the Power of Attorney.”
The appellant filed a brief of argument and therein framed two issues for the determination of the appeal, namely:
“(1) Whether the appellant’s right to fair hearing was observed when the matter was fixed for hearing/judgment without hearing notice to the appellant.
(2) Whether the Claim before the Court was sufficient to enter judgment for the respondent without hearing the appellant and if so was the trial a fair one.”
The plaintiff now respondent also filed the respondent’s brief argument in which he adopted the two issues framed by the appellant in addition formulated one issue for the determination of the appeal.
The additional issue tagged as No.3 reads:
“Whether a person served with Court processes and has information of the venue of the trial and date the case came up last can in doing nothing even though be is aware of pending suit against him.”
Arguing issue No.1 in the appellant’s brief of argument, the appellant gave a graphic account of events leading to the entry of judgment for the respondent by the learned trial Judge. He pointed out that on the 11th of June, 2001 when the Suit came up before the lower Court for hearing. He was absent and was not served with the originating processes of the Court in the Suit and the Suit was adjourned to 20/6/2001. When, on 20/6/2001, the Suit came up before the Court, the appellant was again absent but he was allleged by the Clerk of Court to have been served with the originating processes on 13/6/2001. Thereupon the learned trial Judge adjourned the Suit to 25/6/2001 for hearing without issuing hearing notice to the appellant for hearing on 25/6/2001. On 25/6/2001, the Suit came up again and the appellant was absent, whereupon the learned trial Judge entered judgment against the appellant on the ground that he had not filed a Notice of Intention to defend the suit with an affidavit disclosing a defence on the merit, under Order 23 Rule 3(1) of the Cross River State High Court (Civil Procedure) Rules. The appellant submitted that the learned trial Judge was in error to do so without satisfying himself that Hearing Notice had been served on him. He further contended that it was obligatory on the Court to have ordered for Hearing Notice to be served on him (appellant) since the case came up on 11/6/2001 when he was absent, had not been served and had no knowledge of the proceedings in the Court. It was submitted for the appellant that failure to give notice of proceedings to an opposing party where service is required is a fundamental omission which renders the proceedings void because the Court has no jurisdiction to entertain it. The following cases were cited in support of that submission; Somai Sonka Co. Nigeria Ltd. & Ors v. Engineer A. A. Adzege (2001) FWLR (Pt. 68) 1104 at 1121 to 1122, relying on the case of Wema Bank v. Odulaja (2000) FWLR (Pt. 17) 138; Nigeria Bottling Company Plc v. Eseife (2001) 12 NWLR (Pt. 726) 11 at 25. It was urged on this Court to set aside the judgment as being a nullity since the appellant had no notice of the hearing dates of the case.
On issue No.2 in the appellant’s brief it was submitted that the claim before the learned trial Judge was not one for liquidated money demand to warrant the Court to enter judgment for the respondent and furthermore there were no materials placed before the Court for judgment to be entered under the Undefended List. It was contended that the claim in the Writ a Summons was speculative. Expatiating on this, the appellant contended that there are no facts justifying the assertion that the claim was due as per the Power of Attorney and that there was nothing in the affidavit of the respondent to show whether or not the appellant actually sold his property or the sum of N17 million or whether the respondent sold the property for the appellant and the appellant refused to pay him the agreed commission. Relying on Ogundoyin v. Adeyemi (2001) FWLR (Pt. 71) 1741 at 1758 it was submitted for the appellant that where an appeal is brought to set aside the decision of a lower Court on the ground that a party has been deprived of the opportunity of being heard before a decision is taken, facts intended to show that the party’s case was meritorious or not, or to show in what way the lower Court would have exercised its discretion are irrelevant, and that what the Court below may have decided had the parties been heard is mere speculation.
The appellant concluded by urging the Court to set aside the judgment as this is a clear case of lack of fair hearing by the lower Court.
The respondent argued issue No. 1 and 3 together and issue No. 2 separately in his brief of argument.
Arguing issues No. 1 and 3, the respondent conceded that it is trite law that all parties in a case must be served with the processes of the Court in order to give every person involved an opportunity to defend himself so as to be given a fair hearing. He however emphasized that once a person is served with the processes of Court or is aware that there is a pending case against him in the Court, as the appellant in this case was, he must take steps to act to defend himself. The respondent argued that the appellant was served with all the Court processes on 13/6/2001 with endorsement on the processes served on him to the effect that the case was adjourned to 20/6/2001, and that the bailiff also informed the appellant orally that the case was adjourned to 20/6/2001, but the appellant being aware of this information by the bailiff neglected refused and failed to take steps to defend himself and/or go to Court to ascertain the position concerning the case pending against him. He therefore submitted that it is the law that a person who having been served with Court processes or being aware of a pending case against him in Court, but elects not to be heard after being given the opportunity to do so, cannot complain that his right to fair hearing has been violated. The case of Ofoegbu v. Ihenacho (2001) 4 NWLR (Pt. 703) 219 at 221 was alluded to. It was seriously contended by the respondent that the appellant’s right to fair hearing was not violated as the appellant refused to take the opportunities of adjourning the case twice to enable his appear to be heard if he had any defence to the action.
On issue No. 2 the respondent submitted that the claim before the trial Court was for a liquidated money demand and there were sufficient materials before the trial Court which warranted the case to be placed under the Undefended List for hearing.
It was argued for the respondent that the appellant did not challenge the materials placed before the trial Court and even though the appellant had notice of the pending suit and was also served with the processes of the Court twelve clear days before judgment was entered against him on the Undefended List, yet the appellant refused, neglected and failed woefully to take diligent steps to defend the case at the trial Court.
I shall consider Issue No.1 in the appellant’s brief as adopted by the respondent together with Issue No.3 in the respondent’s brief of argument as the two issues deal with the service of Court’s process. The narrow point here for decision is whether the failure to serve hearing notice of the proceedings on the appellant before judgment was entered for the respondent on 25/6/2001 is not a breach of the appellant’s right to fair hearing which renders the judgment a nullity. I have endeavoured to reproduce in extensor the record of the proceedings of the Court below in this suit on the different dates the suit came up for hearing after it was placed on the Undefended List on 23/5/2001, up to the date of the judgment on 25/6/2001.
The record of the proceedings of a Court, to my mind, is authentic until it is properly challenged in accordance with laid down procedure under the law. See Ehikioya & Anor v. C.O.P. Bendel State (1992) 4 NWLR (Pt. 233) 57 at page 70, Waziri v. The State (1997) 3 NWLR (Pt. 496) 723, Daramola v. A.G. Ondo State (2000) 7 NWLR (Pt. 665) 440 at page 462. Evidently, the parties are not disputing the record of proceedings in this appeal. It seems to me clear that the appellant, is not seriously challenging or disputing the service of the originating processes of the Court on him by the Court Bailiff who had sworn to the affidavit of service, vide page 23 of the record of appeal, to the effect that the defendant (appellant) was so served with the processes personally at No. 15C Atakpa Lane, Calabar, on the 13th day of June, at 2.00 o’clock on the complaint of the plaintiff/respondent. On the basis of the said affidavit of service, the learned trial judge believed and was satisfied that the appellant was duly served with the originating processes, in the suit. But the appellant denied the service of the said processes. It is trite that an affidavit of service deposed to by a Court Bailiff is prima facie evidence of proof of service. It carries the stamp of a rebuttable presumption of service and in the absence of a counter-affidavit challenging it, the Court will the accept it to be true. It does not therefore lie in the mouth of the appellant to merely deny the service of the originating processes by the bailiff without deposing to a counter-affidavit challenging the affidavit of service. In my view, the learned trial judge was right to have accepted the affidavit of service by the Bailiff.
On 11/6/2001 when the Court below sat and the appellant was reported to be absent, and had not been served with the originating processes of the Court in the suit, the learned trial Judge did not and could not have ordered for service of hearing notice on the appellant who as on that date had not been served with the originating processes of the Court to wit, the writ of summons, respondent’s affidavit and the Court’s Order for placing the suit on the Undefended List for hearing. Ordinarily, hearing notice can only be issued by the Court for service on a party who is absent from the Court, after the Court is satisfied that the originating process or processes in the suit have been served on the party. When on 20/6/2001 the case came up again and the Court below was told by the Clerk of Court that the appellant was served with the originating processes on 13/6/2001 as per the affidavit of service by the Court Bailiff, the learned trial Judge ought to have ordered that hearing notice be served on the appellant who was not present in the Court on that 20/6/2001, after adjourning the case to 25/6/2001 for hearing. In my candid view, the learned trial Judge committed a serious error of omission by failing to order that hearing notice be served on the appellant against 25/6/2001, the adjourned date for the hearing of the suit. By proceeding on 25/6/2001 to hear and determine the suit in the absence of the appellant who was not served with hearing notice, was a fundamental error which goes to the root of the adjudication.
It is a prevailing practice which has acquired the force of law in our Courts, that when a case comes up for hearing in the absence of a party who has not been served with hearing notice, the Court hearing the case is under a legal obligation to adjourn it and cause hearing notice to be served on the absent party to enable him appear at the subsequent hearing to defend himself, if he so desires. In Somai Sonka Co. (Nig.) Ltd & Ors v. Engineer Adzege (2001) FWLR (Pt. 68) 1104 at page 1121, Nzeako JCA put it concisely thus;
“Where a hearing date is fixed in the absence of a party, he is entitled to a hearing notice.
That is the type of situation where a judgment given in a case heard in the absence of a defendant may be regarded as one given without jurisdiction and must be set aside.”
It is a fundamental principle of our law that failure to give notice of proceedings to an opposing party in a case where service of process is required is a fundamental omission (except where the proceedings are exparte) which renders such proceedings void because the Court has no jurisdiction to entertain it. See Alhaji Danjuma Haruna & Ors v. Mrs. C. A. Ladeinde (1987) 4 NWLR (Pt. 67) 941; Obimonure v. Erinosho (1966) 1 All NLR 250.
In Scott Emunkpor v. Ukavbe (1975) 2 SC 41, the Supreme Court held that if the failure of the defendant to appear is due to the failure to serve him notice of the hearing, then any judgment given in that circumstance will be one given without jurisdiction and will be set aside on appeal. See Dawodu v. Ologundudu (1986) 4 NWLR (Pt. 33) 104; N.B.C. Plc v. Ezeife (2001) 12 NWLR (Pt. 726) 11.
The question in the instant case, therefore, is whether the hearing of the case on 25/6/2001 by the learned trial Judge in the absence of the appellant and entering judgment against him, without hearing notice served on him, is a breach of his (appellant’s ) right to fair hearing? Without hesitation, my answer is yes. The right to fair hearing is a constitutional right entrenched Section 33 (1) of the 1979 Constitution and re-enacted in Section 36 (1) of the 1999 Constitution. It states:
“In the determination of his civil right and obligation, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or other tribunal established by law and constituted in such manner as to secure its independent and impartiality.” (Underlying for emphasis)
The right to fair hearing includes the right of a person to be given an opportunity to be heard in a case affecting him or his interest. Service of hearing notice on a party is to give him an opportunity to be heard by the Court or tribunal. The law is well settled that each party to a dispute before a Court of law or any other tribunal must be given a fair hearing not only to allow him to state his own case in the Court or tribunal, but also to give him notice of the date of hearing and place of hearing. See Ogundoyin & Ors v. Adeyemi (2001) FWLR (Pt. 71) 1741. In that case, as in the present case, the main issue in dispute in the Supreme Court by the appellants was that they were not given hearing notice of the case in the Court of Appeal before the appeal was heard and dismissed by that Court. The Supreme Court held inter alia that a party who will be affected by the result of a judicial enquiry must be given opportunity of being heard, otherwise the action taken following the enquiry will be unconstitutional and illegal. And once the appellate Court concludes that the party was not given the opportunity of a hearing, the judgment thus entered is bound to be set aside.In the instant case, I hold the view that the appellant was not served with hearing notice of the case before judgment was entered against him by the learned trial Judge on 25/6/2001, in his absence. I also hold that there was a breach of the appellant’s right to fair hearing. Therefore, the judgment entered by the learned trial Judge against the appellant on 25/6/2001 is a nulity and should be set aside. In the circumstances, I resolve Issue No. 1 in the appellant’s brief of argument in his favour.
In view of the conclusion that I have reached above, it does not seem to me necessary to delve into Issue No.2 in the appellant’s brief of argument. However, in case I am wrong in my opinion and for the abundance of caution, I will deal with this issue.
The bone of contention on Issue No. 2 is whether the claim of the respondent in the Court below was for a liquidated money demand and whether there were sufficient materials to place the suit under the Undefended List procedure pursuant to Order 23 of the Cross River State High Court (Civil Procedure) Rules 1987. To bring an action under the Undefended List Procedure, it is a sine qua non condition that the claim must be in respect of a debt or liquidated money demand. If the action is not in respect of a debt or liquidated money demand, it cannot be brought under the Undefended List procedure. See Order 23 Rule 1 of the High Court (Civil Procedure) Rules, 1987. Obviously, the claim in the instant case is not in respect of a debt. The question that arises is whether the claim is in respect of a liquidated money demand. The term liquidated money demand is that/an amount that can be ascertained by calculation or fixed by any scale or other positive data or mathematics. In Odgers on the Common Law (1927) 3rd Edition Vol. 2 at page 654 it was stated that “whenever the amount to which the Plaintiff is entitled can be ascertained by calculation or fixed by any scale or other positive data it is said to be liquidated or made clear. But when the amount to be recovered depends on all the circumstances of the case and on the conduct of the parties and is fixed by opinion or by an estimate, the damages are said to be unliquidated”. See Odume v. Nnachi (1954) 1 All NLR 329 at page 333. In Lagos v. Grunwaldt (1910) 1 KB 41 it was held that a claim upon quantum merit, where a plaintiff states the precise sum which he claims as the value of his services, is a liquidated demand. Also a claim for liquidated money demand may include interest on a principal sum. See Eastern Nigeria Development Corporation v. Asuk & Ors (1963) 7 ENLR 179. Guided by the above legal principles, I hold the view that the claim by the respondent in the writ of summons in the present case is clearly a claim in respect of liquidated money demand and is in conformity with Order 23 Rule 1 of the Cross River State High Court (Civil Procedure) Rules 1987 for placing the suit under the Undefended List.
As to whether there were other sufficient materials before the learned trial Judge for placing the suit on the Undefended List, one has to closely look at the affidavit of the plaintiff/respondent in support of his application to place the suit under the Undefended List. After a calm consideration of the said affidavit, I am of the view that the affidavits disclose sufficient materials for placing the suit under the Undefended List for hearing. I therefore resolve Issue No. 2 in the appellant’s brief against the appellant. In view of the decision that I have reached earlier above on Issue No. 1 I wish to state that the fact that Issue No. 2 has been resolved against the appellant does not alter the legal position that the judgment of the learned trial Judge in this case is a nullity and should be set aside.
Accordingly, I declare that the judgment of the learned trial Judge in this suit No. HC/195/2001 dated 25th June, 2001 is a nullity and it is hereby set aside.
In the final result, therefore, this appeal has merit and it is hereby allowed. It is hereby ordered that this suit be remitted to the State Chief Judge, Cross River State for retrial by another High Court Judge.
Each party shall bear his own costs of this appeal.
Other Citations: (2002)LCN/1300(CA)