Sylvester Ogbanu V. Gabriel Oti & Ors (2000)

LawGlobal-Hub Lead Judgment Report

OPENE, J.C.A 

This is an appeal against the judgment of the High Court of Cross River State holden at Obudu delivered by Obasse J. on 30th day of November, 1999 in suit No.HD/66198.

Earlier, the respondents as plaintiffs had filed a suit against the appellant as the defendant claiming the sum of N31,790.00 (Thirty-One Thousand, Seven Hundred and Ninety Naira) being unpaid balance of the sum loaned to the appellant since the 12th day of October, 1997. On the same day 9/11/98 that the Writ of Summons was filed, the trial court granted the respondent’s ex parte application to place the suit for hearing on the undefended list and the Writ of Summons was accordingly marked as undefended and the matter was then adjourned for hearing to 30/11/98.

Upon the service of the Writ of Summons and the order on the appellant, he filed a memorandum of conditional appearance and a Notice of Preliminary Objection to the jurisdiction of the court to entertain the matter. Those were served on the respondents on 30/11/99 before the trial court sat on that day, when the matter was mentioned, the respondents’ counsel informed the trial court that he had only just been served with a Notice of Preliminary Objection. The learned trial Judge then observed that the filing of the Objection does not preclude the court from hearing the case and that the procedure under the Undefended List is quite different from the usual procedure under the General Cause list and thereupon entered judgment against the appellant and in favour of the respondents.

Unhappy and dissatisfied with the said judgment, the appellant has now appealed to this court. In accordance with the rules of this court, the appellant through his counsel filed his brief of argument which was served on the respondents.

The respondents did not file their brief of argument and as a result of this, the appellant filed an application pursuant to Order 6 Rule 10 of Court of Appeal (Amendment) Rules 1984 praying for an Order that judgment be entered in this appeal without hearing the plaintiffs/respondents in oral argument, this application was granted on 1/12/99 and the matter was then adjourned to 1/2/2000 for hearing. On 1/2/2000, the appeal was heard solely on the appellant’s brief and the matter was then adjourned for judgment. In the appellant’s brief of argument, two issues are identified for determination by the court and they are:

“1. Whether the learned trial Judge was competent to have disregarded the objection to his jurisdiction and proceeded to enter judgment on the Undefended list without first resolving the question of jurisdiction.

2. Whether suit No. HD/66/98 was maintainable and competent; when the respondents did not apply for and obtain relief against the disability imposed by s. 666 of the Companies and Allied Matters Decree 1990 from the trial Court before the suit was commenced.”

I will first of all deal with Issue No.1 which I feel is the only Issue relevant to the determination of this appeal.

In the appellant’s brief, the learned counsel for the appellant, Chief Agim has argued that since the Notice of Preliminary Objection to the jurisdiction of the court was pending before the trial court that the learned trial Judge ought to have resolved the issue of jurisdiction first before proceeding to hear and determine the suit, that the learned trial Judge lacked the competence to disregard the pending objection to jurisdiction and proceed to hearing and that it is immaterial that the suit is to be heard on the Undefended List.

He submitted that there is no rule of law saying that Undefended List proceedings do not admit objections to jurisdiction and that in all proceedings that once an objection to jurisdiction is raised that it must be resolved one way or the other before further proceedings in the suit. He referred to:- Edem v. Canon Ball Ltd. (1998) 6 NWLR (Pt.553) 298 at 311; Ukwu v. Bunge (1997) SCNJ 262 at 273; (1997) 8 NWLR (Pt.518) 527.

He also submitted that the disregard of the Notice of Preliminary objection to jurisdiction and the failure to hear the defendant in respect of the objection is a violation of the defendant’s right to fair hearing, that the defendant is entitled not to put his defence until the question of jurisdiction is resolved.

He further submitted that even if the issue of jurisdiction is considered and the defendant is overruled that he will be entitled to an opportunity to put in his defence and that the trial court’s disregard of the conditional appearance and objection to jurisdiction and proceeding to enter judgment without affording the defendant an opportunity to argue the objection and put in a defence is a gross violation of the defendant/appellant’s right to fair hearing.

In support of this, he cited the case of Tambco Leather Works Ltd. v. Momma Abbey & Anor.(1998) 12 NWLR (Pt.579) 548 at 554.

The proceedings at the hearing on 30/1198 ate at pages 9 and 10 of the record of proceedings where it is stated as follows:-