Wema Bank (Nig) Ltd & Ors Vs S.U. Odulaja & Ors (2000)
LAWGLOBAL HUB Lead Judgment Report
MOHAMMED, J.S.C.
This is an appeal from the decision of Lagos Division of the Court of Appeal. The material facts about this appeal may be stated briefly as follows:
The 1st appellant granted a loan to the 2nd respondent and as security for the loan the 1st respondent executed a deed of legal mortgage over the property in dispute. The property is situated at No. 53, Coker Road, Ilupeju Layout, Lagos. The property belonged to the 1st respondent. When the 1st and 2nd respondents defaulted on the repayment of the loan the 1st appellant exercised its power of sale and sold the mortgaged property to the 2nd and 3rd appellants.
The 1st and 2nd respondents then went to court and filed an action in the Lagos High Court challenging the sale of the property by the 1st appellant to the 2nd and 3rd appellants. Before the hearing of the action, the 1st and 2nd respondents filed a motion and applied for an interlocutory injunction restraining the 2nd and 3rd appellants from taking over the premises. The learned trial judge refused to grant the application. He however ordered that 2nd and 3rd appellants could move into the property but subject to a condition that they should not alter any part of the building pending the determination of he substantive case. Secondly, the learned judge ordered that a tenant in the premises who secured his tenancy through the 1st and 2nd respondents should not have his tenancy renewed when it expired. The place would revert to the control of the 2nd and 3rd appellants.
Dissatisfied with this ruling the 1st and 2nd respondents appealed to the Court of Appeal. In order to accelerate the hearing of the appeal the 1st and 2nd respondent filed a motion before the Court of Appeal and prayed for an order to set down a date for the hearing of the appeal. This motion was listed for hearing on 18th January, 1994 and this fact was notified to the parties by a hearing notice dated 23rd July, 1993.
On 18th January. 1994 when the case was called, counsel to the 1st, 5th and 6th respondents who are, in this appeal, 1st, 2nd and 3rd appellants was absent. But counsel for the 1st and 2nd appellants who are 2nd and 3rd respondents in this appeal was present in court. It is not clear from the record of this appeal what happened to the motion fixed for hearing on 18/1/94. What is clear is that the court below proceeded to hear the appeal and after listening to the arguments and submissions of the counsel to the 1st and 2nd respondents it reserved judgment.
On 27th January, 1994 and 1st and 2nd and 3rd appellants, in this appeal, as, 1st, 5th and 6th respondents at the court below filed a motion praying for an order setting aside the proceedings held on 18th January, 1994. The court below did not hear that motion but went ahead and delivered its judgment on 24th February, 1994. In its judgment, the court below allowed the appeal, set aside the order or the High Court and granted the order of interlocutory injunction which was prayed for by the 1st and 2nd respondents. The Court of Appeal further ordered that the case be transferred to another judge for trial.
This appeal is from the decision of the Court of Appeal mentioned above. The issue which called for determination as raised by Mr. Oyetibo, learned counsel for the appellant read as follows:
“1. Whether the Court or Appeal was right in law in delivering its judgment on 24th February, 1994 based on the hearing conducted on 18th January, 1994 without first hearing and determining the application dated 28th January. 1994 filed by the appellants herein.
- Assuming but without conceding that the court of Appeal was entitled to deliver its judgment as aforesaid, whether the court was right in setting aside the order made by the trial court and in granting order for interlocutory injunction after holding that the appellants in the court below (1st and 2nd respondents herein) had not provided the court with sufficient facts which were placed before the lower trial court”.
Learned counsel for the respondents adopted the issue formulated by the appellants and modified the second issue in the following terminology.
“2. was the Court of Appeal correct in delivering a judgment in this case in the light of the materials before it?”
It appears to me that the 1st issue touches on the jurisdiction of the Court below to hear the substantive appeal when only a motion had been fixed for hearing on that day. Mr. Oyetibo submitted in the appellant’s brier, that the court below was wrong in law to bear the appeal on a date fixed for the hearing of a motion pending in the matter without any previous notification to the parties that the appeal would be heard on that date. Learned counsel quite helpfully in support of his submission referred to the case of Olubusola Stores v. Standard Bank (1975) 1 All NLR 125 at 127. In that case. the plaintiffs/respondents commenced proceedings in the Lagos High Court claiming against the defendants/appellants a refund of a loan. The writ was filed for the “Undefended List”, but somehow the writ was not served on the defendants for sometime and the plaintiffs obtained a court order for substituted service of the writ. The case was then fixed for a named date for mention.
On the fixed date, it was shown from the record that the order for substituted service was carried out some five days before the return date. On appeal to this Court on ground that the judgment was irregularly obtained it was held:
“In the present case, as we pointed out before, the action was meant for the Undefended List and indeed the writ was so marked. On the 9th July. 1973 which was the return date on the order for service by substitution, the report to the court about service was to the effect that “the pasting was served on the 4th July, 1973″ If the writ was served on the 4th or July. 1973, it was not possible in any case for the defendants to comply with Rule 11 on or before the 9th July, 1973 since manifestly the period of live days before the day fixed for hearing was not available to them. On those facts the provisions of Rule 13 will not apply and it is difficult to see how the learned trial judge could justifiably have entered judgment for the plaintiffs as for an action on the Undefended List. Beside this however, is the fact that the order made on the ex-parte application on the 11th day of June 1973, had fixed the case only for mention on the 9th day of July , 1973. If. as indeed it was the case. the suit was only to be mentioned on that day, the learned trial judge clearly wrongly treated that date as a date fixed for the hearing or the action and erred in law as the entry of judgment on that day was in breach of the provisions of Rule 13.”
Learned counsel for the respondent on his part submitted that the appellants did not file a counter affidavit to the motion filed for hearing on 18/1/94. The appellants also did not file a respondents’ brief for the hearing of the appeal before the Court of Appeal. Counsel argued that with the foregoing state of facts. the Court of Appeal was entitled to deal with the appeal as uncontested and accordingly take arguments thereon immediately. The Court of Appeal would then decide the appeal on the consideration of the Appellants’ Brief only. Counsel referred to the case of Dogana v. Bello (1993) 6 NWLR. (Pt.299) 321 at 330
I think learned counsel is trying to defend a serious lapse from the court below.
The hearing notice for the motion fixed for hearing on 18/1/94 reads in part as follows:
Take Notice that above mentioned motion will be listed for hearing before the Court of Appeal sitting at No. 1B Bourdillon Road. Ikoyi Lagos on Tuesday the 18th day of January, 1994 at nine o’clock in the forenoon”.
In the motion the respondents prayed the Court of appeal to “set down a date for hearing the appeal”. The date of hearing the motion was fixed for 18/1/94. It is crystal clear therefore that the only proceedings which the Court of Appeal could conduct in respect of this case was hearing the motion praying for a date for the hearing of the substantive appeal. The Court of Appeal was clearly in error to hear the appeal when the parties had not been notified. through the court processes, that the appeal would be heard on 18/1/94.
In Okafor and Ors v. A.G. Anambra State and Ors (1991) 6 NWLR (Pt.200) 659 the Court of Appeal, Enugu division fixed the appeal for hearing on 14th June, 1988 but mistakenly the Court heard the appeal on 11th April, 1988 without the knowledge or oral arguments of the parties. A motion by the appellants prayed the court to set aside its judgment because it had no jurisdiction to give judgment at the time it did. The Court of Appeal agreed with the prayer and said that its judgment was a nullity and set it aside On appeal to the Supreme Court the decision of the court of Appeal was affirmed.
There is no dispute on the fact that the appellants were not served with any notice that the appeal would be heard on 18/1/94. Failure to give notice of proceedings to an opposing party in a case where service of process is required is a fundamental omission which renders such proceedings void because the court has no jurisdiction to entertain it. See Obimomure v. Erinosho (1966) 1 All NLR 250. In this case the hearing of the appeal on 18/1/94 when no process was served on the appellants showing that the appeal had been fixed for hearing on that day is a fundamental error rendering the proceedings a nullity. The answer to the question posed in issued by the learned counsel for the appellants is therefore in the negative. Having declared the proceedings conducted by the Court of Appeal on 18/1/94 a nullity. I need not consider the second issue raised for the determination of this appeal.
This appeal therefore succeeds and it is allowed. The proceedings conducted by the Court of appeal on 18/1/94 and the judgment delivered on 24th February, 1994 are hereby set aside. I remit the case back to the Lagos Division of the Court of Appeal for rehearing the appeal before another panel of that court. I award N10,000.00 costs in favour of the appellants against the 1st and 2nd respondents only.
SC. 72/1994