Citation: (2019)2 NWLR PT. 1657 AT 441.
NIGERIAN GERMAN CHEMICALS PLC.
ALL RAY MARITIME SERVICES LTD.
Courtesy: Moruff O. Balogun Esq.
Summary of facts:
At the High Court of Lagos State, the respondent as claimant filed a civil action against the appellant. By its writ of summons and statement of claim filed on 25th November 2014, it claimed against the appellant as follows:
N32,095,521.29 (Thirty-Two Million, Ninety-Five Thousand, Five Hundred and Twenty-One Naira, Twenty-Nine Kobo only)being debt owed to the claimant by the defendant as a result of services rendered to the defendant by the claimant upon request by the defendant.
Interest on the said sum of N32, 095,521.29 (Thirty-Two Million, Ninety-Five Thousand, Five Hundred and Twenty-One Naira, Twenty-Nine Kobo only) at the rate of 20% per annum from September, 2013 until judgment and thereafter at 25% until liquidation.
The sum of N3,000,000.00 (Three Million Naira) as cost of this action.”
The appellant failed to file its processes in reaction to the respondent’s suit within time prescribed by the High Court of Lagos State (Civil Procedure) Rules, 2012.
Subsequently, the respondent pursuant to the provision of Order 11 rules 1 and 5(2) of the High Court of Lagos State (Civil Procedure) Rules, 2012, sought to move its motion on notice filed simultaneously with its originating processes on 25th November 2014 for summary judgment in default of defence.
The motion on notice was heard on 22nd July 2015. At the hearing of the motion, the appellant’s counsel informed the court that she had been unwell and sought for an adjournment. She stated that they were willing to settle out of court. However, the trial court overruled the application for an adjournment and called on the respondent to move its motion on notice. The motion was moved and the court without calling on the appellant to respond thereto adjourned the matter to 23rd September, 2015 for ruling.
The ruling was not delivered on the said date and was further adjourned to 6th October 2015.
However, the appellant on 21st September 2015 took advantage of the delay to file its processes. That is, its counter-affidavit to the respondent’s motion on notice for summary judgment and a statement of defence and counter-claim.
Equally, on 23rd September 2015, the appellant also filed a motion on notice for an extension of time to file its defence, counter-affidavit and written address in opposition to the respondent’s motion for summary judgment and to deem the processes already filed as properly filed and served.
On 6th October 2015, the appellant’s counsel was late to the court. However, the court delivered its judgment despite the fact that all the above processes filed by the appellant were in the court’s file. The respondent’s counsel even though present when the matter was called up for judgment failed to inform the court on his part that the appellant had filed processes which had been served on him.
The court in delivering its judgment on 6th October 2015, stated that the appellant elected not to respond in any manner to the originating process and the motion for summary judgment filed by the respondent, meaning that it was submitting to the jurisdiction of the court, had no defence to the action and willing to abide by the judgment of the court. It then entered summary judgment in favour of the respondent.
Aggrieved by the judgment, the appellant appealed to the Court of Appeal
Held: (Unanimously allowing the appeal).
The following issues were raised and determined by the Court of Appeal:
On whether court can deliver final judgment where live and extant processes pending in court’s file-
A proceeding conducted by a court which eventually leads to a final judgment being delivered whilst certain court’s processes remain extant, alive and pending in the court’s file is a proceeding which is without much ado, procedurally flawed. Therefore, the court lacks jurisdiction to deliver a final judgment whilst there are live and extant processes, the determination of which will likely impact one way or the other on the court’s final decision. In the instant case, the court of appeal held that the trial court was not in any way handicapped in dealing with the processes filed by the appellant after the respondent’s “motion on notice” dated the 24th day of November 2015 was argued and reserved for ruling. It was within its inherent jurisdiction to strike out such processes even in the absence of the appellants counsel in court on the 6th day of October 2015.
On duty on court’s registry to bring documents in the court’s file to the attention of the court-
The obligation of a party who files a court process ends once he has done so. It is the internal administrative matter for the court’s officials to ensure that such process is brought to the attention of the court.
On whether tardiness, indolence and negligence of court registry can be visited on a litigant –
The tardiness, indolence and negligence of the court registry cannot be visited on an innocent litigant who had filed some court processes which were not brought to the attention of the Judge.
On duty on court to consider all processes before it –
The court has the obligatory duty to consider all processes filed before it, before it reaches a decision on the matter placed before it for determination between the parties.
On basic criteria and attributes of fair hearing-
The basic criteria and attributes of fair hearing are:
That the tribunal or court must hear both sides not only in the case but also on material issue in the case before reaching a decision.
That having regard to all the circumstances in every material decision in the case, justice must not only be done but must manifestly and undoubtedly be seen to have been done. The right to fair hearing is a fundamental constitutional right guaranteed by section 36(1) of the 1999 Constitution; any breach of it particularly in trials renders same null and void
Unarguably, the appellant was not accorded a fair hearing when the respondent’s motion on notice for summary judgment, was heard on 22nd July, 2015. Why was the appellant not called upon to respond to the afore-mentioned respondent’s motion on notice after it was argued by the respondent’s counsel? After all, the proceedings of 22nd July, 2015, conducted at page 89 of the record of appeal, was not an ex-parte proceedings.
So, why was the appellant, shut out of the proceedings in question, which was tantamount to a denial of fair hearing to the appellant.”
On nature of fair hearing-
Fair hearing is the touchstone of justice. Nothing rankles the spirit and soul of a person than a resonating feeling that he was not afforded a fair hearing in a court of law, in a matter that was decided against him in that court. That is why in section 36(1) of the 1999 Constitution (as amended),the hallowed principle of fair hearing is clearly entrenched and enshrined.
Moruff O. Balogun Esq.
Ijebu Ode, Ogun State.