Hajia Aisha Kamariam Monguno V. Bluewhales & Company & Ors. (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ABDU ABOKI, J.C.A (delivering the leading judgment)

This Appeal is against the Ruling of the High Court of the Federal Capital Territory delivered on the 24th day of June, 2009 by Hon. Justice A. M. Talba.

The brief fact of the case is that this suit now on Appeal was placed by the learned trial Judge, who was the vacation Judge on the undefended list. The Respondents allege that the Appellant was served the Writ of Summons by one Bello Dogora, a Bailiff of the trial Court but that the Appellant refused to acknowledge the service and the Bailiff duly swore to a Certificate of Service which was filed in the Court Records.

On the 28th day of August, 2007 when the matter came up for hearing under the undefended list, the Appellant did not file her Notice of Intention to defend the action and did not appear personally neither was she represented. The trial Court considered the case and entered Judgment for the Respondents in the sum of N1,850,000.00 (One Million, Eight Hundred and Fifty Thousand Naira) with interests at 10% until liquidation and the sum of N5,000.00 (Five Thousand Naira) as cost against the Appellant.

The Appellant alleges that after the Judgment, the Respondents waited for three months within which the Appellant has a right of Appeal to expire before attempted to execute the Judgment; whilst the Respondents claim that they served the Appellant with the Certificate of Judgment on 5th November, 2007 through one Garba, a Bailiff of the trial Court after first attempt on 3rd October, 2007 failed as the Appellant travelled out of the Country.

On 27th November, 2007, Judgment was executed in the presence of the Appellant who through her lawyers paid the sum of N1.190,000.00 (One Million One Hundred and Ninety Thousand Naira) out of the Judgment sum with a promise to complete the outstanding sum the next day. However, on 28th November, 2007 the Appellant filed a Motion on Notice praying the trial Court to set aside the Judgment delivered on 28th August, 2007; this Motion was later withdrawn and substituted with the Motion on Notice dated 16th February, 2009 seeking among other things the setting aside of the Judgment of 28th August, 2007. The Motion was argued and dismissed on the 24th day of June, 2009.

The Appellant not satisfied by that decision filed a Notice of Appeal dated the 25th day of June, 2009. The Appellant also filed her Brief of Argument dated the 24th day of July, 2007 on the 28th day of July, 2009. The Respondents’ Brief of Argument dated the 6th day of October, 2009 was filed same day. The Appellant also filed on 6Ih November, 2009 a Reply Brief dated same day. From the five Grounds of Appeal, three issues were distilled on behalf of the Appellant for the determination of this Appeal as follows:

1. Whether from the circumstances and facts of this case the learned trial judge was right to hold that the Appellant was served with the Writ of Summons and other originating processes in this suit before judgment was entered on the undefended list,
2. Whether it is not a grave denial of the Appellant’s right to fair hearing when the learned trial Judge failed to considered and determines all the issues canvassed by the Appellant before the learned trial Judge dismissed the Appellant’s Motion on Notice dated the 16th February, 2009.
3. Whether in the circumstances of this particular case the learned trial Judge was right to hold that the proper mode of challenging the judgment delivered on the 28th August, 2007 is by way of an Appeal and not by Motion to set aside the judgment”.

The following issues were also raised for the determination of this Appeal on behalf of the Respondents:

“1. Whether from the circumstances and facts of this case the learned trial judge was right to hold that the Appellant was served with the Writ of Summons and other originating processes in this suit before judgment was entered under the undefended list?

2. Whether it is a grave denial of the Appellant’s right to fair hearing when the learned trial Judge considered and found that some issues canvassed by the Appellant touch on the substantive matter before he dismissed the Appellant’s Motion on Notice dated the 16th February, 2009?
3. Whether in the circumstances of this particular case the learned trial Judge having found that there was a valid service of the processes on the Appellant, was right to hold that the proper mode of challenging the judgment delivered on the 28th August, 2007 is by way of an Appeal and not by motion to set aside the Judgment?”

The Respondents in their Brief of Argument raised a Preliminary Objection. It is trite that when a Preliminary Objection is raised in a matter, the Court ought to accord the resolution of same a priority before proceeding to consider the Appeal. See:William v. Ibejiako (2008) 15 NWLR Pt. 1110 page 367 at 380;Bamisile v. Qsasuvi (2007) 9 NWLR Pt. 1042 page 225 at 256;

Abiola v. Olawoye (2006)13 NWLR Pt. 996 page 1;U.B.N Plc v. Umeoduagu (2004) 13 NWI R Pt. 890 page 362.

On the Preliminary Objection, learned Counsel for the Respondents, Edwin I. Agbu, pointed out that the Appellant raised five Grounds of Appeal in her Notice of Appeal dated 22/7/2009 and that the Appellant gave seven particulars of errors in law in support of Ground three of the said Notice of Appeal.

He contended that the Appellant’s Ground three is fair hearing and that it is trite law that for a Ground of Appeal to be competent in law, the particulars in support of it must naturally flow from the Ground itself and referred to the case of:Danlami v. Gambo (2004) 45 WRN 96.

Learned Counsel maintained that in the instant case, particulars one to seven of Ground three are directly in conflict with the Ground itself as they are not related to fair hearing. He referred the Court to particulars 2, 4, 5, 6 and 7 at pages 156 and 157 of the Records.