“Processes of Court allegedly served on opposing parties/Counsel, amount to nothing when the said processes are not before the Court – in the Court’s file! This is because a Court cannot recognize any Court process, not filed and produced before it…When a process is not duly filed before the Court, it does not, in the eyes of the law, exist and as such cannot invoke the jurisdiction of the Court.”
LADAN vs. ADAMU(2022)LCN/17011(CA)
ISSUE: SETTING ASIDE JUDGMENT GIVEN UNDER UNDEFENDED LIST PROCEDURE
PRINCIPLE:
“The facts of this case, at the lower Court, are quite simple. The Respondent filed the Writ and placed same on the Undefended List to recover a debt he said Appellant owed – N13,750,000.00 Appellant was expected to file a Notice of Intention to defend the action and an affidavit, disclosing a defence on the merit, in keeping with the rules governing undefended list action. On the return date, which was 23/12/2010, the Court did not sit but the Registrar of the Court gave the date of adjournment of the case to the parties. Appellant’s Counsel, Ibrahim Garba Waru, Esq. wrote a letter acknowledging the new date of hearing, but complained that it was not convenient to him. He, however, did not place the said letter before the Court. The letter admitted and stated as follows:
“The Court Registrar informed us that the case is adjourned to the 7th day of January, 2011 for hearing. We indicated to the Registrar that that date is not convenient as we have earlier on slated other matters. We humbly apply for the case to be adjourned to the 24th or 25th of January, 2011. We regret any inconvenience that this application might have caused the Court or to the Plaintiff.” (See page 305 of the Records of Appeal)
As earlier stated, that letter by Appellant’s Counsel at the lower Court, was not placed before the Court, as shown in paragraph 4(m) and (n) of Appellant’s affidavit in support of Application to set aside the judgment. See pages 59 to 60 of the Records. Appellant rather claimed he served the Respondent’s Counsel the letter!
When the case came up for hearing, there was no Notice of Intention to defend the suit, and no affidavit disclosing any defence, on the merit, the trial Court, thereupon, entered judgment for the Respondent, accordingly. The Court said:
“Mr. Falalu Ahamd, learned Counsel for the Plaintiff, is now asking for judgment for the Plaintiff under Order 23 Rule 4 of the Rules of this Court. I have look (sic) at the Writ and the Affidavit in support, it seems to me that there is substance in the claim of the Plaintiff. I have also observed that the Defendant has not brought to the Registry of this Court any Notice of Intention to defend. Let alone an Affidavit disclosing a defence on the merit. In the circumstances, I have no other alternative than to fall on Order 23 Rule 4 of the Rules of this Court and entertain this matter on the undefended list. Accordingly, judgment is hereby entered for the Plaintiff against the Defendant in the sum of N13,750,000… with interest thereon at the rate of 10% per annum…” (See Page 22 of the Records of Appeal)
Appellant had tried to set aside the said judgment, unsuccessfully, and had, in the process, made the affidavit showing that he was aware of the date the case was heard on 7/1/2011, but failed to file the needed notice of intention to defend the suit. With such clear admissions (as stated above). I think it amounts to a demonstration of weakness and mischief, for Appellant’s Counsel to argue, as he did, on page 3 of the Brief: “Meanwhile, the Appellant had, by Counsel, already prepared a notice of intention to defend, dated 5th January, 2011 on page 65 of the Records and even served the Respondent’s Counsel with accompanying motion of 6th January, 2011 on the same date of 06/01/2011, while waiting for hearing notice for the case. Unknown to him, it was to be heard the following day, a fact hidden from him by the Respondent’s Counsel, who was served and who acknowledged service as evidenced on page 161 of the records. That the Respondent’s Counsel concealed from the lower Court the existence of processes served on him and even asked on page 21 paragraph 2 of the records if same were filed, point to a deliberate ploy to mislead the Court in the face of his signature on page 161 acknowledging the receipt of a filed processes (sic) a day earlier.”
I think it is rather Appellant’s Counsel that is trying to mislead the Court. It was not for Respondent’s Counsel to present Appellant’s purported Notice of Intention to defend the suit and affidavit or motion, if any, where the same was not before the Court, and Appellant’s Counsel, who was aware of the hearing of the case on 7/1/2011, failed to attend Court, and would not produce the alleged letter for judgment, to the Court!
Processes of Court allegedly served on opposing parties/Counsel, amount to nothing when the said processes are not before the Court – in the Court’s file! This is because a Court cannot recognize any Court process, not filed and produced before it. See Ogli Oko Memorial Farms Ltd. Vs. NACB Ltd. (2008) LPELR-2306 (SC), where it was held: “…it is very important to note that the jurisdiction of the Court to hear and determine any matter is invoked by the filing of the appropriate process in the registry of the Court and by “filing” of a process is meant payment by the litigant of the appropriate filing fees as assessed by the appropriate or designated registrar of the Court concerned. When a process is not duly filed before the Court, it does not, in the eyes of the law, exist and as such cannot invoke the jurisdiction of the Court. It is not a matter of procedural jurisdiction as contended by learned counsel for the respondents but of substantive jurisdiction.” Per ONNOGHEN, JSC, By law, a case placed on the Undefended List, is due for hearing on the return date, once there is no Notice of Intention to defend the suit, backed by Affidavit, disclosing credible defence on the merit. And even where the Notice of Intention to defend is filed, together with an Affidavit of facts to disclose a defence on the merits, the trial Court still has a right to hear the case and consider the defence raised by the Defendant, on the date of the hearing. Where the defence raised, in fact, disclosed a credible defence, the trial Court would transfer the matter back to the general cause list and call for pleadings.
But where the Court finds no credible defence, the Court is bound to enter the required judgment for the Plaintiff. The authorities on this are repleted. See Ilorin East Local Govt. Vs. Alasinrin & Anor. (2012) LPELR-8400 (CA), where we held: ‘The discretion to place a suit on the Undefended List resides with the trial Judge, once he is satisfied, based on the depositions of the plaintiff, that there are good grounds to belief that the defendant has no defence to the action. And even when the defendant files a notice of intention to defend and an affidavit thereto, disclosing what he thinks are grounds to defend the action, as per Order 23 Rule 3, the discretion still remains with the trial Court to satisfy itself that the affidavit of the defendant discloses “a defence on the merit.” There are many decided authorities to show that the discretion of the trial Judge, once it is exercised judicially and judiciously, cannot be over turned by the strength of the defendant’s argument, no matter how strong but merely founded on technicalities of law, to send the case back to the general cause list, as to do so, will defeat the essence of the Undefended List proceedings and impeach the discretion of the Judge, that there was good grounds to hear the case on the Undefended List. The trial Court, however, has to be liberal in his approach, when scrutinizing the affidavit of the defendant in support of the notice of intention to defend, in order to determine whether a defence on the merit has been disclosed, to justify the call to transfer the case to the general cause list. In the case ARUWA V. ABDULKADIR (2002) FWLR 677 Ratio 3, it was held, concerning the defendant’s affidavit, thus: “… The defendant’s affidavit must condescend upon particulars and should as far as possible specifically deal with the plaintiff’s claim and the affidavit in support thereof and state clearly and concisely what the defence is and what facts are relied upon to support it. The same affidavit defence should also state whether the defence relates to the whole or part of the claim, and in the latter case, it should specify that part of the claim. A mere general statement or denial, that the defendant is not indebted to the plaintiff is not enough to constitute a defence, unless the grounds on which the defendant relies as showing that he is not indebted are stated in the affidavit.” (MACAULAY v. NAL MERCHANT BANK LTD. (1990) 4 NWLR (Pt.144) 283; JIPREZE v. OKONKWO (1987) 3 NWLR (Pt.62) 737; SANTORY CO. LTD. VS. ELABEL (1998) 12 NWLR (Pt.579) 539; TIWELL NIG. LTD. VS. INLANDS BANK LTD. (1997) 3 NWLR (Pt.494) 408 referred to (Emphasis mine). In the case of JOB CHARLES NIG. LTD. VS. OKONKWO (2002) FWLR 1062 Ratio 8 and 10, the emphasis was on disclosing ‘triable issue’ by the defendant in the affidavit in support of Notice of Intention to defend; that “if there is such a triable issue the matter would be transferred to the general cause list for trial on pleadings. If however the learned trial Judge comes to the conclusion that there is no triable issue disclosed, he will enter judgment in favour of plaintiff as part his claim.”
See also Emori Vs. Okoko (2015) LPELR-25828 (CA); Etukudo Vs Akpan (2013) LPELR-20414 (CA); and the case of Imoniyame Holdings Ltd. & Anor. Vs. Soneb Enterprises Ltd. & Ors. (2010) LPELR-1504 (SC), where it was held: “This is an action commenced under the Undefended List Procedure where judgment can be entered if the trial Judge is satisfied from the affidavit filed by the defendant along with his notice of intention to defend the action, that no defence has been disclosed on the merit, without calling on the plaintiff to call evidence or tender any document(s). The case is not “tried” on affidavit evidence neither are the affidavits considered or regarded as pleadings unless so ordered by the Court after transferring the matter to the general cause list. The purpose for filing of the affidavit by the parties is not to take the place of pleadings as thought by the counsel for the appellants but intended simply for the Court to decide whether the defendant has any defence to the action of the plaintiff in relation to the debt or liquidated money demand. The trial Court is not to decide whether the defence put forward by the defendant in the affidavit succeeds or will ultimately succeed at that stage of the proceedings – see Nishizawa Ltd. vs. Jethwani (1984) 1 SC 234. The facts to be stated in the affidavit of the defendant must be such that will require the plaintiff to offer explanation for matters involved in his case or seriously question or challenge the claim of the plaintiff. Where such a situation arises, we say that the defendant has disclosed a defence on the merit to the claim of the plaintiff and the trial Court is by the rules duty-bound to allow or admit the defendant to defend the action by granting him leave to do so and consequently transfer the case from the Undefended List to the General Cause List to be dealt with by the filing of pleadings or the Court may even order that the affidavits filed should serve as pleadings for the trial of the matter. The rule does not authorize the Court, at that stage, to go into the merit of the case by making findings of facts to arrive at any conclusion, as the appellants appeared to be arguing. The object of the affidavit of the defendant under the Undefended List Procedure is therefore that of disclosing the ground for asking the Court to be allowed in to defend the suit – it is to disclose or show a dispute between the parties which needed to be tried.” Per ONNOGHEN, JSC, (as he then was).
I am rather surprised that Appellant and his Counsel had resorted to what looks like games, when they made a heavy weather about non-service of hearing notice on Appellant for the hearing of the case on 7/1/2011, and also alleging that the Writ of Summons was not signed and dated by Plaintiff’s Counsel. I have looked at pages 39 to 41 of the Records of Appeal, which carry the Writ of Summons and the signature page by Falalu Ahamd, Esq. learned Counsel for Respondent (Plaintiff). I can see the signature of Counsel, clearly, on page 41 of the Records, as well as the date of filing the process, being 29/1/2010.
I think Appellant was only trying to be clever, when he insisted on production of proof hearing notice for 7/1/2011, when he knew that there could not have been any hearing notice for that date. Hearing notice is always ordered by a Court, when it adjourns a matter, in the absence of one of or all the parties, to notify the said party of the next adjournment date, formally. Where a Court did not sit on the date fixed, the Registrar of the Court, or clerk, is empowered to give a new date for the hearing of the case to the parties and/or their Counsel, when they attend Court on the date fixed. In that situation, the date of adjournment communicated to parties or Counsel cannot be communicated again to the parties or Counsel by way of hearing notice(s), after the party or Counsel had been so informed in Court/registry of the new adjournment date by the Registrar of the Court. See Okon Vs. Adigwe & Ors. (2011) LPELR-4528 (CA), where it was held: “Where a suit has been set down for hearing in Open Court on a date specified to parties in Court. (sic) His service of hearing notice is obviated. See Adeyemi v. Lan & Baker Ltd. (2000) 7 NWLR (Pt.663) 33; Mankanu v. Salman (2005) 4 NWLR (Pt.915) CA 270.” Per NWODO, JCA.
Appellant’s Counsel was, therefore, playing pranks, in my opinion, when he admitted knowledge of the new adjournment date, and sought to change it, and yet feigned ignorance of the date of hearing of the case on the 7/1/2011! In the case of NACRDB LTD & ANOR. Vs. MBIO OKU IKOT OKU ODUNG MULTI-PURPOSE CO-OP. SOCIETY & ORS. (2013) LPELR-20202 (CA), it was held: “Now, the issuance and service of hearing notice on a party in a case only arises, where or when such a party was not aware of a date fixed by the Court for the hearing of his case. Where a party was present in Court and/or represented by counsel when his case was either fixed or adjourned by the Court in open Court, for hearing or continuation of such hearing, the need to thereafter issue such a party with the hearing notice of the date set down by the Court in his presence or presence of his counsel, would not arise and indeed becomes unnecessary in law. The essence of a hearing notice is to put on notice or notify or inform a party or his counsel who are not aware of a date set down by the Court in their absence for the hearing of his case. Once a case was adjourned in the presence of a party or his counsel in open Court, the law and indeed the principle of fair hearing which applies to all parties, does not require that such a party shall be issued and served with a hearing notice of that date of hearing of which he is fully aware. See Jonason Triangles v. C. M. & P. (2002) 15 NWLR (789) 176 at 192; Onadeko v. UBN (2005) ALL FWLR (250) 57. Consequently, when on 14/6/2002 the hearing of the case was adjourned to 17/10/2002 for continuation of hearing in the presence of a Representative of and counsel for the 1st Appellant, there was no duty on the High Court to issue and serve hearing notice of the adjourned date on the Appellants afterwards. The High Court was right to have continued the hearing of the case on the adjourned date of 17/10/2002 in the absence of the Appellants and their counsel who were fully aware of the continuation of hearing of the case on that day. Being aware of the continuation of hearing of the case on the 17/10/2002 and absenting themselves without any excuse communicated to the High Court as far as the record of appeal shows for the absence, the Appellants and/or their counsel in whose presence the case was so adjourned, had the duty to check from the High Court the position of the case after that day if in fact they were sincerely interested in participating in the proceedings. In the case of Owena Bank v. Muhammed (1998) 1 NWLR (533) 301 at 308, it was held that:- “A person, who has been appearing in a case or matter before a Court of law and who absents himself on a particular date set for hearing has a duty to check the progress of the matter in his absence without any formal notification of an adjourned date. Per GARBA, JCA.
In the case of Adegbite & Ors. Vs. Advanced Engineering Consultants & Anor. (2017) LPELR-41965 (CA), this Court held that: “A party who already knew or was reasonably presumed to know the date for which his case is coming up in Court does not require hearing notice vide Jonason Triangles Ltd. Vs. Charles Moh & Partners Ltd. (2002) 15 NWLR (Pt.789) 176 and S and D Construction Co. Ltd. Vs. Chief Bayo Ayoku & Anor. (2011) ALL FWLR (Pt. 604) 1.”
See also the case of Achuzia Vs. Ogbomah (2004) ALL FWLR (Pt.227) 504 at 523, where it was held:
“Service of process supposes that the defendant is not aware of the date to which his case is adjourned. If by any other means he is already aware of the date then service of a hearing notice on him will be surplusage and unnecessary, not required and its absence will not affect the jurisdiction of the Court, where service is not required or unnecessary.”
I therefore see no merit in this appeal and so resolve the Issues against Appellant and dismiss the appeal, with cost assessed at Three Hundred Thousand Naira (N300,000) only to Respondent, payable by Appellant.” Per MBABA, JCA.