IN THE SUPREME COURT OF NIGERIA
On Friday, the 5th day of December, 1975
Before Their Lordships
ATANDA FATAYI-WILLIAMS….. Justice, Supreme Court
MOHAMMED BELLO….. Justice, Supreme Court
CHUKWUNWEIKE IDIGBE….. Justice, Supreme Court
J. I. UKAVBE(FOR HIMSELF AND ON BEHALF OF THE EKAMA BROTHERS)
We accordingly allowed the appeal.
PRACTICE AND PROCEDURE – Service – When required – Fundamental Nature of – Absence of – Effect on order made against unserved party
Per M. BELLO, J.S.C. at P. 4, Para. E.
: We allowed this appeal on 17th November, 1975. We set aside the order made by Atake J. on 1st September, 1972 striking out the application by way of Motion on Notice filed by the appellant/defendant on 19th July, 1972 seeking an order granting him extension of time within which to file his Statement of Defence (hereinafter referred to as the appellant’s Motion). We also set aside the judgment in the sum of 1,000 and the order as to costs given to the respondent/plaintiff upon his Motion on Notice filed on 29th July, 1972 praying for judgment in default of defence (hereinafter referred to as the Respondent’s Motion).
We remitted the case to the High Court, Mid Western State, Warri, for rehearing of the appellant’s and respondent’s motions before a judge other than Atake, J.
The only issue for determination in this appeal is whether or not the appellant or his counsel was given notice of the date, to wit 1st September, 1972, on which his Motion and that of the respondent were heard and determined by the court below in the absence of the appellant and in the absence of his counsel.
In the substantive action, the respondent claimed the sum of 1,000 being the amount paid by him to the appellant together with incidental expenses for a purported sublease of a piece of land for which there had been a total failure of consideration. The records of proceedings in the court below show that the writ of summons was duly served on the appellant and thereafter order for pleadings was made on 29th July, 1971.
The statement of claim was filed on 11th august, 1971. Thereafter, there were several adjournments, most of them unrecorded in the court’s record book because the court was not sitting, up to 29th June, 1972, when the respondent filed his Motion for judgment in default of defence. The motion was supported by an affidavit in which he deposed that he had filed his Statement of Claim within the time ordered by the court and that the appellant had failed to file his Statement of Defence as ordered by the court.
On 19th July, the appellant filed his Motion asking for extension of time within which to file his statement of defence. The respondent’s and the appellant’s Motions were fixed for hearing on 20th July, 1972. The counsel for both parties were present in court on the said day but the court did not hear either motion and adjourned the same to 27th July, 1972. Only counsel for the appellant appeared in court on 27th July, 1972 and the Motions were further adjourned to 17th August, 1972 at his request.
This appeal hinges on the correct assessment of what actually happened on the 17th August, 1972 in the court below whose record of proceedings on that day is very short and, we may as well, quote it in full.
“AT WARRI: ON THURSDAY THE 17TH OF AUGUST, 1972
AKPEDEYE FOR PLAINTIFF:
IDEH FOR DEFENDANT.
COURT: Motion on Notice adjourned to 1/9/72. (Not recorded)”
On the 1st September, 1972, neither the appellant nor his counsel was present in court. On the application of the respondent’s counsel, the court struck out the appellant’s motion for extension of time within which to file his Statement of Defence, granted the respondent’s motion for judgment in default of defence and entered judgment against the appellant.
On 6th September, 1972, the appellant filed a Motion seeking an order setting aside the judgment obtained against him in his absence and for extension of time to file his defence. Atake, J. heard this motion and dismissed it on 4th October, 1972. It is against the judgment obtained in default of pleadings as well as the ruling of Atake, J., dismissing the motion to set aside the judgment in default and to grant extension of time to file statement of defence that the appellant has appealed to this court.
The only complaint made by the counsel for the appellant at the hearing of the appeal before us is that neither the appellant nor the counsel representing him in the court below was aware of the date, to wit 1st September, 1972, on which the appellant’s Motion and the respondent’s Motion were heard and determined. He drew our attention to the affidavit of Christian Scott-Emuakpor, of counsel, who had represented the appellant on 27th July, 1972, in the court below. The relevant paragraphs in the affidavit are:
“5. That on 17th August, 1972, defendant/applicant was fully represented by me and Mr. P.E.S.Ideh but none of the motions was listed.
6. That in court, Mr. Ideh called the attention of the court to the fact of the motions not being on the list, although duly adjourned in Chambers to that day. But as the case file was not available, the case could not be fixed and the court orally directed that fresh date be communicated by hearing notice after the same had been settled by the Registry.
7. That I am informed by Mr. Ideh, leading counsel for defendant/applicant and I believe him that he discussed the case with Mr. Akpedeye, plaintiff/respondent’s counsel at Ughelli on 29th August, 1972, and it was clear to Mr. Akpedeye that the defendant/applicant’s side in the matter had not been informed of any new date.
8. That on Friday, 1st September, 1972, Mr. Egore, Solicitor of No. 23 Odien Road, Warri informed me and I reasonably believe him that the applications came up for hearing in his presence that day and that judgment for 1,000Pounds with 105 costs was given against the defendant/applicant and the motion for extension of time struck out with 5: 5/’97 costs after a misleading representation that we were aware of the date.
9. That I was not informed by any body that the case was coming up that day and Mr. Ideh has told me and I believe him that he too was unaware of the fixture for that day.”
In dismissing the motion to set aside his judgment, Atake, J, simply stated that all the allegations in Scott-Emuakpor’s affidavit were false. He did not, however, indicate upon what grounds he arrived at that conclusion.
With all due respect to the learned trial Judge, we do not think the depositions of Scott-Ekumuakpor, in so far as they relate to the proceedings of 17th August, 1972, can justifiably be said to be false.
In the first place, there was no counter-affidavit in rebuttal. Secondly, the record of the court below for the proceedings in the case on 17th August, 1972, which we have above quoted in full, does show before which judge the “PARTIES” alleged to be “PRESENT” on that day appeared and has not been signed by any judge. We think the words “(Not recorded)” at the end of the said record would bear no other meaning than that the proceedings of that day were not recorded in the court record book.
Furthermore, the case file of the High Court which we inspected at the hearing of the appeal clearly show that the respondent’s counsel had been served on 30th August, 1972 with a fresh hearing notice for the hearing of the Motions in question on 1st September, 1972. There is no record in the said file or else where of such service on the appellant or his counsel.
It is quite clear from the foregoing that the learned trial Judge given proper consideration to the materials before him, he would have found that the appellant had established his contention that the day fixed for the hearing of his Motion and that of the respondent was neither communicated to him nor to his counsel and that neither was aware of that day. It is quite clear that the absence of the appellant and his counsel from court on that day was occasioned by the failure of the court to notify either.
Where notice of any proceedings is required, failure to notify any party is a fundamental omission which entitles the party not served and against whom any order is made in his absence to have the order set aside on the ground that a condition precedent to the exercise of jurisdiction for the making of the order has not been fulfilled: see Marion Obimonure v. Ojumoola Erinosho & Anor. (1966) 1 All NLR 250. As neither the appellant nor his counsel was notified of the proceedings of 1st September, 1972, the learned Judge, in our view ought to have exercised his discretion under Order 26 Rule 8 of the High Court (Civil Procedure) Rules, Cap. 44, Laws of Western Region of Nigeria, 1959, which apply in the Mid-Western State, in favour of the appellant.
We accordingly allowed the appeal.
P. E. S. Ideh, (with him, O. O. Scott-Emuakpor)…..For Appellant
A.C. Akpedeye…..For Respondent