CORAM

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PARTIES

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BARRISTER NASEER MOHAMMED JUMBA APPELLANTS

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SALISU IDRIS RESPONDENTS

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AREA(S) OF LAW

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SUMMARY OF FACTS

The Appellant commenced an action at the High Court of justice Bauchi State, claiming his unpaid legal fees against the Respondent; the sum of N550,000.00 (Five Hundred and Fifty Thousand Naira),10% post judgment interest from the date of judgment until final satisfaction and the cost of action. The matter was placed under the undefended list upon the application of the Appellant and all the processes was served on the Respondent. On 29th September 2009 when the matter came up for hearing, the Respondent was absent and the Appellant urged the Court to enter judgment in his favour as the Respondent has been served. Judgment was entered in favour of the Appellant as per his claim and the sum of Fifty Thousand Naira was also awarded as cost of action. Dissatisfied with the judgment, the Respondent filed a motion on notice supported with an affidavit seeking among other things an order setting aside the said Judgment averring that same was delivered without jurisdiction, as there was no service of any Court process on the Respondent, this the trial Court agreed with and granted the application, setting aside the judgment and adjourned the matter for hearing. Unhappy with the decision, the Appellant appealed to this Court vide his Notice Appeal containing two Grounds of Appeal.

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HELD

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Appeal Dismissed

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ISSUES

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Whether or not from the affidavit of service dated 24th September 2009, deposed by the lower Court’s bailiffs there is service on the Respondent/Defendant? Whether the lower Court was right to set aside a judgment entered under the Undefended List.

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RATIONES DECIDENDI

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SERVICE OF COURT PROCESS – IMPORTANCE OF SERVICE OF COURT PROCESS

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“Learned counsel for the Respondent rightly submitted that service of Court processes on a party is fundamental to the trial of a case as it is service that confers competence and jurisdiction on the Court seized of the matter. Service is a condition precedent to the exercise of jurisdiction. The whole proceedings are a nullity ab initio, as found by the learned trial Judge, as failure to serve process where service is required goes to the root of Court’s jurisdiction. See Ihedioha v Okorocha (2016) 1 NWLR (Pt. 1492) 147, Skenconsult v Ukey(1981) 1 SC 6, Oke v Aiyedun (1986) 2 NWLR (Pt. 25) 548; FBN Plc v T.S.A Ind. Ltd (2010) 15 NWLR (Pt. 1216) 247,Skye Bank Plc v Okpara (2015) 17 NWLR (Pt. 1489) 613, Estate of Chief H.S. Idisi v Ecodrill (Nig) Ltd. (2016) 12 NWLR (Pt. 1527) 355”. –

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JUDGMENT OF COURT – STATUS OF A JUDGMENT ENTERED UNDER THE UNDEFENDED LIST

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“It is well settled that a judgment entered under the undefended list procedure is a judgment on the merits of the case even where the defendant failed to attend and defend the matter provided there is service of the processes on him. Being a judgment on the merit, the remedy open to the aggrieved party is to go on appeal not to apply for an order to set aside the judgment. However where the failure of the defendant to take the necessary steps to defend the action originates from a fundamental defect in the proceedings leading to the judgment, such as non-service of the originating process on the defendant which defects robs the Court of jurisdiction to entertain the matter, then the aggrieved party can either appeal against the judgment or apply under the inherent jurisdiction of the Court to have that judgment set aside on the ground of absence of jurisdiction. A case in point is Daniels v Insight Eng. Co Ltd (2002) 10 NWLR (Pt. 775) 231 at 249 C -D. In Daniels v Insight Engr. Co. Ltd (supra) this Court per Onnoghen JCA (as he then was) in his own contribution had this to say:
“It is trite law that the High Court has inherent jurisdiction to set aside its own judgment or order given in any proceeding in which there has been a fundamental defect, such as one which goes to the competence of the Court. It is also trite law that any party who is aggrieved with a judgment or an order of a High Court given without jurisdiction could either apply to the Court to exercise its inherent jurisdiction to set aside the judgment or order as having been made without jurisdiction and therefore a nullity, or appeal to the Court of Appeal. It is my considered opinion that the lower Court erred in not setting aside the Judgment on ground of lack of personal service of the writ on the appellant since the non-service of that writ robbed the Court of jurisdiction. It does not matter whether the action was under the undefended list or otherwise”.
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SETTING ASIDE OF JUDGMENT OF COURT– INSTANCES WHEN A COURT CAN SET ASIDE ITS OWN JUDGMENT OR ORDER

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“It is settled law that a Court of law can set aside its own judgment or order, irrespective of it having being granted on merits, in two instances; namely: (i) where it is so empowered by Statute to do; and (ii) under its inherent jurisdiction in specified and certain situations – Yakubu Vs Governor, Kogi State (1997) 7 NWLR (pt 511) 66, Fada Vs Naomi (2002) 4 NWLR (Pt 757) 318, Ene Vs Asikpo(2010) 10 NWLR (Pt 1203) 477. The Courts have held that where it is shown that the decision reached in the judgment or order was made without jurisdiction or is a nullity due to absence of fair hearing, or was reached as a result of fraud, the decision can be set aside by the Court that entered it under its inherent jurisdiction – Okafor Vs Attorney General, Anambra State (1991) 6 NWLR (Pt 200) 659, Onwuka Vs Maduka (2002) 18 NWLR (Pt 799) 586, Witt & Busch Ltd Vs Dale Power Systems Plc (2007) 17 NWLR (Pt 1062) 1, Osakue Vs Federal College of Education, Asaba (2010) 10 NWLR (Pt 1201) 1, Ene Vs Asikpo (2010) 10 NWLR (Pt 1203) 477, First Bank of Nigeria Plc Vs TSA Industries Ltd (2010) 15 NWLR (Pt 1216) 247, Dingyadi Vs INEC (No 1) (2010) 18 NWLR (Pt 1224) 1, Ede Vs Mba (2011) 18 NWLR (Pt 1278) 236. –

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SERVICE OF PROCESS –SERVICE OF PROCESS IS A CONDITION PRECEDENT TO THE COMPETENCE OF THE COURT ASSUMING JURISDICTION AND ADJUDICATING OVER THE LEGAL RIGHTS OF LITIGANTS

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“It is trite that proper service of a process is an essential aspect of Nigerian procedural law. It gives the party served the opportunity of being heard, and it is a condition precedent to the competence of the Court assuming jurisdiction and adjudicating over the legal rights of litigants. Service of process is therefore a jurisdictional issue. Accordingly, any matter or proceedings affected by lapse in service of process suffers a fundamental flaw – Agip (Nig) Ltd Vs Agip Petroli International (2010) 5 NWLR (Pt 1187) 348, Multi chem Industries Ltd Vs Musa (2013) 8 NWLR (Pt 1356) 404.It is a crucial initial step that must be properly taken in the prosecution of an action and where it is not so taken, the action is aborted – Estate of late Chief H. I. S. Idisi Vs Ecodrill (Nig) Ltd (2016) 12 NWLR (Pt 1527) 355. Failure to serve a process where the process is required to be served renders any order made against the party not served with the process null and void -First Bank of Nigeria Plc Vs TSA Industries Ltd (2010) 15 NWLR (Pt 1216) 247. Failure of service of processes is one of the instances in which a Court can set aside its judgment under its inherent jurisdiction. Further, the failure to effect service of the originating processes, as found by the lower Court, amounted to a fundamental breach of the right of the Respondent to fair hearing and the right to be heard is so fundamental a principle of our adjudicatory process that it cannot be compromised on any ground – Nwokoro Vs Onuma (1990) 3 NWLR (Pt 136) 22 at 35, Iwuoha Vs Okoroike (1996) 2 NWLR (Pt 429) 231, Olufeagba Vs Abdur-Raheem (2009) 18 NWLR (Pt 1173) 384. The Courts are unanimous that any breach of the right to fair hearing naturally vitiates such proceedings and tenders the same and orders made therein null and void. Oyeyemi Vs Commissioner for Local Government, Kwara State (1992) 2 NWLR (Pt 226) 661, Military Governor of Imo State VsNwauwa (1997) 2 NWLR (Pt 490) 675, Olufeagba Vs Abdur-Raheem supra, Agbiti Vs Nigerian Navy (2011) 4 NWLR (Pt 1236) 175. The law is that in such circumstances the Court that entered the judgment empowered to set aside its proceedings and orders made – Ene Vs Asikpo supra, First Bank of Nigeria Plc Vs TSA Industries Ltd supra, Dingyadi Vs INEC (No 1) supra, Ede Vs Mba supra”. –

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UNDEFENDED LIST PROCEDURE- ESSENCE OF THE UNDEFENDED LIST PROCEDURE

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“The Undefended List procedure is to enable a Claimant obtain Judgment for a liquidated sum within the shortest possible time on affidavit evidence without the technicalities of pleading, where the Defendant has no defence to the suit. See the cases of Ekulo Farms Ltd V. Union Bank Of Nig Plc. (2005) 4 SC (PT. 11) p.22, Chief Akinemi V. Gov. Of Oyo State & Anor.(2003) FWLR (PT. 40) p. 1693 and FMG V. Sanni (1990) 4 NWLR (PT. 147) P. 685.

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CASES CITED

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Not Available

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STATUTES REFERRED TO

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Bauchi State High Court (Civil Procedure) Rules, 1987

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