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.
- 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:-
“Mr. Abotsi says he was served with a Notice of Preliminary Objection. That the filing of the objection does not preclude the court from hearing that case today. That the trial in a case of this nature is by aflidavit evidence. He refers to Order 23 rule 4 of High Court (Civil Procedure) Rules… He urges the court to give judgment for not disclosing his defence in an affidavit.
COURT: The procedure under the undefended list is quite different from the usual procedure under the General cause list. And under the undefended list the defendant has to disclose his defence through an affidavit in addition to his notice of his intention to defend the action. See Order 23 rule 3(1) of the High Court Civil Procedure Rules. The essence of the affidavit, to my mind is to dislodge whatever averments there are in the plaintiffs affidavit. In the instant case, the defendant has not filed an affidavit apart from his memorandum of conditional appearance and the notice of preliminary objection filed today, 30/11/98. The defendant in my view has no defence to this claim in which facts are ably stated in the plaintiff’s affidavit. Accordingly, judgment in the sum of thirty-one thousand, seven hundred and ninety naira (N31,790.00) is hereby given in favour of the plaintiffs with cost of Five Hundred Naira (N500.00) against the defendant.”
The memorandum of conditional appearance and Notice of Preliminary Objection are at pages 7 and 8 respectively in the record of proceedings. The two documents were filed on 30/ 11 /98 and the respondent’s counsel has also admitted that these documents were served on him but argued that the filing of the objection does not preclude the trial court from hearing the case and then urged the court to enter judgment in favour of the respondents.
The learned trial Judge agreed with him and held that the procedure under the Undefended list is quite different from the usual procedure under the General Cause list and that under the Undefended list that the defendant has to disclose his defence through affidavit in addition to his Notice of intention to defend the action and that the defendant did not file an affidavit apart from his memorandum of conditional appearance and the Notice of preliminary objection and that the defendant has no defence to the claim and thereupon entered judgment in the respondent’s favour.
It is pertinent to observe that there is an order of hearing motions and also an order of hearing of motion and entry of judgment in the suit when they are both before a court.
When there are two motions and one motion seeks to terminate the action on an account of irregularity and the other seeks to cure the defect, it is the duty of the court to hear the latter first but the application to cure the defect itself must be a proper application. See:- Nalsa and Team Associates v. Nigerian National Petroleum Corp. (1991) 11 SCNJ 51 (1991) 8 NWLR (Pt.212) 652. Where also there are two motions one seeking dismissal of appeal for failure to file the brief of argument and a motion seeking extension of time to the brief, the motion seeking extension of time ought to be heard first See:- Consortium MC 3632, Lot 4, Nigeria v. National Electric Power Authority (1991) 7 SCNJ 1; (1991) 8 NWLR (Pt.246) 132. Further, where there is a motion before the court for judgment or a case is fixed for delivery of judgment and there is also a motion before the court for amendment of pleadings or even for adjournment or any type of motion, the court is duty-bound to deal with that motion and rule on it one way or the other before it will proceed to deal with the application for entry of judgment or to deliver the reserved judgment or any judgment as the case may be.
In the instant case, there is pending motion before the court, it is quite irrelevant that the matter has been placed in an Undefended List; the motion is a hurdle or an obstacle and it is after the court had scaled over it that it can proceed lo deal with the respondent’s application and if there is credible affidavit evidence he will then enter judgment in the respondents’ favour.
I must also observe that when the matter came up before the learned trial Judge that the appellant’s counsel was not in court and no explanation was given for his absence and the only thing that the respondent’s counsel would have done would have been to urge the court to strike out the appellant’s Notice of Preliminary Objection as the counsel was not there to move it and if the court had struck out the Notice of Preliminary Objection, the obstacle would have been out of his way and he would have proceeded to hear and grant the respondent’s application as he did, but instead of doing this, the respondent counsel urged him to ignore the application before him as the appellant did not file any affidavit disclosing his defence which submission the learned trial Judge acceded to. It must be emphasized that when a challenge is made to the jurisdiction of the court as in this case that the issue must be resolved and the court ascertains that it has jurisdiction to entertain the matter before proceeding to hear the suit, jurisdiction is very fundamental and crucial because if the court lacks jurisdiction and then proceeds to adjudicate on the matter the proceedings thereafter would be a nullity no matter however well concluded they might be. See:- Madukolu v. Nkemdilim (1962) 1 All NLR (Pt.4) 587;(1962) 2 SCNLR 314, Ajakaiye v. Military Co. of Bendel State (1993) 9 SCNJ 242: Tai Ajomale v. Yaduat & Anor (1991) 5 SCNJ 172 (No.2) (1995) 5 NWLR (Pt.191) 266.
I will further add that a court is duty bound to express in writing whether it agrees with a preliminary objection or not. The issue of objection may be technical in nature but where it touches a fundamental objection to fair hearing, it cannot he ignored. It is a cardinal principle of the administration of justice to let a party know the fate of his application whether properly or improperly brought before the court or even where it even looks irrelevant. It would amount to unfair hearing to ignore objection raised by a party or his counsel against any step in the proceedings. See:- G.E.N. Onyekwuluje v. G. B. Animashaun & Anor (1996) 3 NWLR (Pt.439) 637; Tambco Leather Works Ltd v. Abbey (1998) 12 NWLR (Pt.579) 548.
The action of the learned trial Judge is a procedural error which violates the applicant’s right to fair hearing and the appeal is bound to succeed on this score alone as such a procedural error cannot be allowed to stand. The learned counsel for the appellant has also 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.
I entirely disagree with the learned counsel on this submission as it is not the correct statement of the law. If the trial court had considered the preliminary objection and overruled it, it would have proceeded to deal with the application before it if the business of the day permits. The appellant had all the opportunity in this world to have filed his Notice of Intention to defend and his affidavit.
If he solely relies on the Notice of Preliminary Objection which is just like a gamble and if it is considered and it is over-ruled, he will have nothing to fall back on and he cannot complain that the trial court is duty bound to grant him an adjournment so that he can put up a defence. This will be over-stretching the principle of the right of fair hearing which is nothing more than a litigant being given an opportunity to present his case before the court. If you have all ample opportunity and you do not use it, you cannot be heard when you start to cry of the infringement of your right to fair hearing because nothing has been infringed.
Issue No.2 reads:-
“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 Mailers Decree 1990 from the trial court before the suit was commenced.”
This issue arose from ground 2 in the appellant’s Notice of Appeal. The appellant’s complaint in this ground is that the learned trial Judge entered judgment for the plaintiffs when it was clear that their rights under the loan contract was clearly unenforceable by legal action.
The learned trial Judge did not at all consider the appellant’s Notice of Preliminary Objection, he did not look at the loan contract to know whether it is enforceable or not, or whether the relief against the disability imposed by Section 666 of the Companies and Allied Matters Decree 1990 was not sought for and obtained from court before this suit was commenced.
If he had considered the preliminary objection and these matters raised in the said objection, then the appellant would have cause to complain about the error in law occasioned while the trial court dealt with the preliminary objection.
The trial court did not consider the Preliminary objection and the only complaint that the appellant can validly raise is the trial court’s failure to consider the preliminary objection before him and proceeded to hear the respondent’s application and enter judgment for them and this is the complaint raised in Ground 1 and covered by Issue No.1.
It is settled that an appeal must challenge or attack the decision of the lower court and that it must be made a complaint in a ground of appeal. See:- Chief Daniel Ogbonnaya v. Adapalm Nig. Ltd. (1993) 6 SCNJ 23; ( 1993) 5 NWLR (Pt.292) 147.
The Issue No.2 which is raised from the Ground 2 in the Grounds of appeal is irrelevant because it is after the trial court has ruled on the Preliminary Objection that the appellant can complain that he erred in the way and manner that he considered the said objection.
It is because of the second ground of appeal that the appellant sought from this court, the following reliefs:-
- An Order allowing the appeal.
- Proceedings suit No. HJ/66/98 are incompetent and a nullity.
- An order setting aside the judgment of Cross River State High Court at Obudu delivered in suit No. HJ/66/98 on 27/11/98.
- An Order striking out suit No. HJ/66/98.
Obviously, reliefs 2 and 4 cannot be granted because it is after the Preliminary Objection is considered that it will be determined whether the suit is incompetent and a nullity or not and this court is not in a position to determine on an appeal a matter that was not considered by the lower court.
As I had earlier observed, it is a serious error on the pan of the learned trial Judge to close his eyes against the Preliminary objection which is clearly before him and proceed to consider the respondent’s case which has been placed in an Undefended list and then enter judgment in his favour simply because the appellant did not file an affidavit disclosing a defence.
I am of the view that there is merit in the appeal and I accordingly allow it. I hereby set aside the judgment of Obasse. J. delivered at Obudu on 27/11/98 in suit No. HD/66/98. I also order that this case be sent back to the High Court of Cross River State where it will assigned be to another Judge and the Preliminary Objection be heard on its merit.
The appellant is entitled to costs which I assess and fix at the sum of N3.500.00.
Other Citations: (2000)LCN/0726(CA)