Legalpedia Citation: (2014) Legalpedia (CA) 62531

In the Court of Appeal

HOLDEN AT EKITI

Sun Mar 30, 2014

Suit Number: CA/EK/92/2013

CORAM

PARTIES

DR. OLUGBOYEGA ISIJOLA APPELLANTS

EKITI STATE MICRO CREDIT AGENCY RESPONDENTS

AREA(S) OF LAW

SUMMARY OF FACTS

The Plaintiff/Respondent, the Ekiti State Micro Credit Agency at the trial court, claimed against the Defendant/Appellant the following; a sum of N3,712,000.00 only being the outstanding balance on an aggregate sum of N3,805, 000.00 only advanced by the Plaintiff as credit to several persons recommended by the Defendant to benefit under the Micro Credit Scheme of the Plaintiff with an undertaking to repay in the event of default by the recommended persons and which sum has remained unpaid by the Defendant upon the default of his recommended persons, despite repeated demands and entreaties from the Plaintiff. The Plaintiff/Respondent commenced the substantive action under the undefended list procedure of the Old Ondo State High Court Civil Procedure Rules, 1987, applicable in Ekiti State. The Writ of Summons marked “Undefended” was issued and served on the Appellant. The suit was fixed for hearing, and at the end of the hearing, the trial court entered judgment in favour of the Respondent. The Appellant claimed that he only got to know of the action and judgment when an attempt was made to levy execution of the judgment, upon which he immediately applied to have the judgment set aside, on grounds of non-service of Court process on the Appellant, non-compliance with the rules of Court, lack of fair hearing and lack of jurisdiction which was strongly opposed by the Respondent. After hearing the application, the learned trial Judge refused same on ground that judgment entered on the undefended list is a judgment on the merit and can therefore not be set aside. The Appellant, being dissatisfied with the judgment has filed an appeal before this court.

HELD

Appeal Allowed

ISSUES

Whether the learned trial Court was right to have assumed jurisdiction without service or proper service of the Originating Processes and/or any other processes on the Appellant. Whether the learned trial judge was right to have dismissed the application to set aside a judgment entered on the Undefended List in the face of an affidavit denying service/proper service of the originating process and/or any other processes. Whether the learned trial Judge was not wrong to have given judgment on the ground that the Appellant gave an undertaking to repay in the event of default by the loan beneficiaries when there was no evidence of such an undertaking before the Court.

RATIONES DECIDENDI

LAW OF EVIDENCE, COURT, PRACTICE AND PROCEDURE

AFFIDAVIT EVIDENCE – DUTY OF COURT WHERE THERE ARE TWO CONFLICTING AFFIDAVIT EVIDENCE BEFORE IT
“It is now elementary law that in the face of direct conflict on crucial and material facts, the learned trial Judge must call for oral evidence from the Defendant or such other witnesses as the parties may call.”

COURT, PRACTICE AND PROCEDURE

SERVICE OF ORIGINATING PROCESSES- IMPLICATION OF LACK OF SERVICE OF ORIGINATING PROCESSES
“In any event the lack of proper service of the originating process is a threshold issue of jurisdiction which the Court ought to decide first, in this case the aggrieved Appellant complained of non-service of the process, he raised a fundamental issue which goes to the jurisdiction and the competence of the Court to enter the judgment. In such a case, where the Appellant proves non service on him, the whole proceeding becomes a nullity and the trial Court has the jurisdiction to set it aside. It needs to be emphasized that it is now settled law, that the failure to serve process where the service of process is required such as in this case, is a failure which goes to the roots of the case. See Craig v. Kanssen (1943) KB 256. I wish to note that it is the service of the process of the Court on the Appellant that confers on the Court the competence and the jurisdiction to adjudicate on the matter. It is clear that due service of the process of the Court is a condition precedent to the hearing of the suit. Therefore if there is a failure to serve the process, where the service of the process is required the person affected by the order, but not served with process is as mentioned above entitled ex debitio justitiae to have the order set aside as a nullity, see Mbadinuju v. Ezuka (1994) 8 NWLR (PT 364) 5.”

JUDGMENT AND ORDER, UNDEFENDED LIST

UNDEFENDED LIST PROCEDURE- NATURE OF A JUDGMENT ENTERED UNDER THE UNDEFENDED LIST PROCEDURE
“A judgment entered on the undefended list is a judgment entered on its merits, and is not judgment entered on default.”

JUDGMENT AND ORDER, COURT, PRACTICE AND PROCEDURE

SETTING ASIDE OF JUDGMENT – WHETHER COURT HAS POWERS TO SET ASIDE A DEFAULT JUDGMENT
“There is indeed inherent power for a court of record to set aside its judgment entered into in a default of taking any procedural step, such as in default of appearance, generally called default judgment as Lord Atkin put it in Evans v. Bartlam (1937) AC 480;
The principle obviously is that unless the court has pronounced a judgment upon the merits, or by consent, it is to have the power where that has only been obtained by a failure to follow any rules of procedure.”
–

JUDGMENT AND ORDER, COURT, PRACTICE AND PROCEDURE

SETTING ASIDE OF JUDGMENT – WHETHER A COURT OF RECORD HAVE INHERENT JURISDICTION TO SET ASIDE ITS OWN JUDGMENT
“But however, if the judgment is a nullity the court which made it can set it aside, on a motion suo motu or on an application by any party affected by it. See Lawani Aladegbemi v. John Fasanmade (1988) 3 NWLR (PT 81) 129.The law is settled that any court of record including the Supreme Court, see Olabanji v. Odofin (1996) 2 SCNJ 242 AT 247; has the inherent jurisdiction to set aside its own judgment given in any proceeding in which there has been a fundamental defect, such as one which goes to the issue of jurisdiction and competence of the court. See Sken Consult (Nig) Ltd v. Ukey (Supra); A.C.S. Plc V. Lasada (Nig) Ltd (1995) 7 NWLR (PT 405) 206. Such a judgment is a nullity. A person affected by it is therefore entitled ex debito justitiae to have it set aside. The court can set it aside suo motu and the person affected may apply by motion and not necessarily by way of appeal. See Ezeokafor V. Ezeka (1000) 6 SCNJ 209. This is common sense that if a court makes an order which it has no jurisdiction or competence to make, it has the jurisdiction to rescind the order so as to restore the status quo. Akinbobola V. Plisson Fisko (Nig) Ltd (1991) 1 NWLR (PT 167) 270. A judgment or order which is a nullity owing to failure to comply with an essential provision, such as service of process, can be set aside by the court which gave it or made the order. See Anatogu V. Iweka II (1995) 9 SCNJ 33; 8 NWLR (PT 415) 547 Per Ogundare JSC said:-
“the general rule is that the court has no power under any application in the action to alter or vary a judgment or order drawn up, except so far is necessary to correct errors in expressing the intention of the court or under the slip rule. There are however, exceptions to this rules some of which are:
A judgment or order which is a nullity owing to failure to comply with an essential provision such as service of process can be set aside by the court which gave the judgment or made the orders. See Scott -Emiakpor V. Ukaube (1975) 12 SC 41.”

JUDGMENT AND ORDER, COURT, PRACTICE AND PROCEDURE

JUDGMENT/ORDER OF COURT – STATUS OF THE JUDGMENT/ORDER OF COURT MADE IN DEFAULT OF SERVICE OF COURT PROCESS ON A PARTY
‘’When an order is made or judgment is entered against a defendant, who claimed not to have been served with the originating process, such as order or judgment becomes a nullity if the defendant proves non-service of the originating process. It is a nullity because the service of the originating process is a condition sine qua non to the exercise of any jurisdiction on the defendant. If there is no service the fundamental rule of natural justice audi alteram partem will be breached. See Sken Consult Case (Supra).

COURT, PRACTICE AND PROCEDURE

NON-SERVICE OF COURT PROCESSES – EFFECT OF THE NON-SERVICE OF COURT PROCESSES ON PROCEEDINGS
“Where as in this case the aggrieved Appellant complains of non-service of the process, he is raising a fundamental issue, which goes to the jurisdiction and the competence of the court to enter the judgment. In such a case, where the Appellant proves non-service on him, the whole proceedings becomes a nullity and the trial court has the jurisdiction to set it aside. It needs to be emphasized, that it is now settled law that the failure to serve process, where the service of process is required such as in this case, is a failure which goes to the roots of the case: see Craig V. Kanssen (1943) KB 256. It is the service of the process of the court on the defendant that confers on the court the competence and the jurisdiction to adjudicate on the matter. It is clear that due service of the process of the court is a condition precedent to the hearing of the suit. Therefore if there is a failure to serve the process where the service of the process is required the person affected by the order, but not served with process, is as mentioned above entitled ex debito justitiae to have the order set aside as a nullity. See Mbadijuju v. Ezuka (1994) 8 NWLR (PT 364) 5.”

JUDGMENT AND ORDER, COURT, JURISDICTION, PRACTICE AND PROCEDURE

SETTING ASIDE OF JUDGMENT – INSTANCES WHERE THE COURT CAN EXERCISE ITS JURISDICTION IN SETTING ASIDE ITS OWN JUDGMENT
“As a general rule, every court has inherent jurisdiction on application and in appropriate cases and circumstances to set aside its judgment or decision. This jurisdiction may be exercised where, for instance, the judgment or decision sought to be set aside is null and void ab initio or there was a fundamental defect in the proceedings which vitiates and renders same incompetent and invalid. See: Alhaji Taofeek Alao V. A.C.B. Ltd. (2000) 2 SCNQLR 1067 at 1071; Salami Omokewu & Ors V. Abraham Olabanji & Anor (1996) 3 NWLR (PT.435) 126; Sken Consult (Nig) Ltd V. Ukey (1981) 1 SC 6.Court’s jurisdiction is only activated by proper service of processes on parties.

CASES CITED

Not Available

STATUTES REFERRED TO

Ondo State High Court Civil Procedure Rules, 1987|

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