Documents for Court to Act On, Must be Filed in Court Registry
TFacts he Appellant took out a Writ of Summons at the High Court of Cross-River State, Calabar, claiming inter alia, a declaration that it is entitled to the Statutory Right of Occupancy grantable by the Governor of Cross-River State, over the piece of land lying and situate at Big Qua Town Road, Calabar. A Motion Ex-parte and Motion on Notice were filed along with the Writ of Summons, wherein the Appellant sought an Order of Interim Injunction and Interlocutory Injunction, praying the Court to restrain the Respondent from erecting any structure or continuing with any such construction work on the land in dispute. An Affidavit of Urgency accompanied the Motion Ex-parte. The trial Judge however, directed the Appellant to put the Respondent on notice, and accordingly, the processes were served on the Respondent on 14/12/2000.
The Respondent entered an unconditional appearance on 18/12/2000 to defend the suit, without filing a Counteraffidavit to the Motion on Notice. The Motion was set down for hearing on 19/12/2000. On the scheduled date, the Appellant and its Counsel were in Court, while the Respondent was absent and unrepresented by Counsel. Having satisfied himself that the processes were duly served on the Respondent, the trial Judge heard and granted the application as prayed.
The Respondent successfully appealed against the Order of the trial Court, to the Court of Appeal. The Appellate Court, discharged the Order of Interlocutory Injunction granted by the trial Court. This decision prompted the appeal to the Supreme Court by the Appellant.
Issues for Determination The Court adopted the two issues formulated by the Appellant to wit:
(1) Whether the learned Justices of the Court of Appeal were right in discharging the Order of Interlocutory Injunction on the grounds that:
(a) The learned trial Judge breached the rule of fair hearing as entrenched in Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 and
(b) That the Motion for Interlocutory Injunction was heard ex-parte?
(2) Whether the learned Justices of the Court of Appeal properly applied the cases of YISI (NIG.) LTD v TRADE BANK PLC (1999) 1 NWLR (Pt. 588) 646; OWENA BANK PLC v MOHAMMED (1998) 1 NWLR (Pt. 533) 301 and Bamawo v Garrick (1996) 6 NWLR (Pt. 401) 356 to the facts and circumstances of this case, when they condemned the learned trial Judge of injudicious exercise of judicial powers in refusing adjournment when there was in fact no application for adjournment before her?
Arguments Counsel for the Appellant, argued that certain facts were misrepresented to the Court of Appeal, which it acted on in arriving at the decision that the Respondent was not given fair hearing. Foremost, the Respondent misrepresented to the Court below that, the next date after service of process on him was a Friday and a public holiday. Counsel for the Appellant submitted that this assertion was not true, as the Friday was a workday and not a public holiday, and the Respondent had time to respond to the application before the hearing date. The second misrepresentation, was that Counsel for the Respondent sent a letter dated 19/12/2000, applying for hearing of the Motion to be adjourned due to previously scheduled matters. Appellant submitted that, the record of Court did not show that the Registrar of the
trial Court duly acknowledged receipt of the letter. Counsel argued further that he was not copied in the letter, and that the letter was brought to the Clerk of the Court after the proceedings, and when the Court had adjourned the suit and rose for the day. The third misrepresentation acted on by the Court of Appeal as posited by Counsel for the Appellant, was the conclusion that the absence of the Respondent and his Counsel, was explained in the letter written to the Court, when the letter did not contain an explanation for their absence. Counsel for the Appellant concluded that, the Respondent who was duly served with the processes, cannot be heard to complain about denial of opportunity to be heard.
For the Respondent, it was argued that the Court of Appeal rightly discharged the Order of Interlocutory Injunction, as the facts clearly showed that the trial Court denied the Respondent a fair hearing when the Respondent was not in Court but sent a letter duly received, giving reasons for his absence and this oc- In the Supreme Court of Nigeria Holden at Abuja On Friday, the 20th Day of January, 2017
Before Their Lordships
Ibrahim Tanko Muhammad Musa Dattijo Muhammad Kumai Bayang Aka’ahs Chima Centus Nweze Amiru Sanusi
SC.84/2005 casioned a miscarriage of justice to the Respondent. Counsel submitted that, the trial Judge refused to adjourn the matter which came up for the first time, inspite of the letter explaining his absence and seeking an adjournment. He stated that the application for adjournment was made in good faith, and it was the wrong exercise of discretion, for the trial Court to have shut him out having shown clear intention to respond to the Appellant’s Motion for Injunction by the letter for adjournment.
Court’s Judgement and Rationale On the first issue, the Supreme Court considered the decision of the Court of Appeal, which noted that the Respondent was served with the processes in the matter “without more”, and juxtaposed the findings of facts with the applicable law in relation to service of processes. The Court noted the several ways in which service of processes can be validly effected, taking into cognisance the mode of service prescribed by the Rules of Court. Personal service or service other than personal, proof of which can validly be acknowledged by certificate of service, affidavit of service, certificate of posting and in some cases, by tendering a Service Recording Book/ Register, in which certain details relating to the service is entered by the Officer who effected the service or by the Registrar of Court. Such entry being prima facie proof of service - Order 9 Rule 17 of the High Court of Cross River State (Civil Procedure) Rules, Cap 51, Laws of the Cross River State of Nigeria, 1979.
Among the statutory duties of a (trial) Judge who is to embark upon hearing of a matter, is that after all the preliminaries to the hearing, he must ensure that all the parties in the suit are duly notified about the matter and appropriate hearing notice(s) against the date fixed for hearing, issued and served. Failure to do this, will render the steps taken by the Judge in the matter, null and void, and liable to be set aside on appeal. In this case, the Chief Bailiff tendered the Affidavit of Service which is prima facie proof thereof. Where a law or Rules of Practice makes stipulations, compliance therewith is the only requirement without more. When a Motion on Notice is heard by a Court on full satisfaction that same was duly served on the Respondent, who for reasons best known to him, refused to put up an appearance or file a process to indicate his willingness to object to the grant of the Motion, the Court cannot be accused of hearing the Motion in the absence of the Respondent. AKPAN v EKPON (2001) 5 NWLR (PT. 707) 502 at 513 B-G. Thus, the trial Judge acted within the law, when it granted the Motion for Injunction, after finding that the process was duly served on the Respondent.
Deciding the second issue relating to the allegation of injudicious exercise of judicial powers by the trial Judge in refusing the adjournment sought by the Respondent, Their Lordships observed that as at the time the trial Court sat to determine the Motion on Notice, its attention was not drawn to the letter sent to Court seeking adjournment. This explains why the trial Judge did not make reference to the said document, which was not placed before it.
Grant of an adjournment is not automatic. The facts and circumstances before the Judge are some of the factors to be considered in exercising discretion to grant an adjournment. ODUSOTE v ODUSOTE (1971) 1 NMLR 228 at 231. For the Judge to exercise his discretion judiciously and judicially, compelling grounds and circumstances must abound upon which the discretion will rest. There is nothing in this case, to show that the letter was laid before the Court for consideration; neither the Appellant or its Counsel nor the Registrar of Court drew the attention of the Court to the letter which was written on the day of the proceeding.
Further, it must be noted that, if a document is meant for the Court to take note of and act on, Rules of Court provide for formal filing of the such document with the Registry of the Court, for which a nominal fee is payable upon assessment by the Registry staff who authenticates the filing of that document, for the party to proceed to file same for the attention of the Court. It is only by formal filing, that the Court becomes seised of such document. All other forms, such as writing letters or petitions informing the Judge or Registrar, are purely administrative, and have no force of law. Hence, the letter written by the Respondent to the Registrar of the trial Judge (which was not brought to the attention of the Court for consideration), was merely administrative. More so, the document did not comply with the provisions of Order 54 Rule 6 of the High Court of Cross River State (Civil Procedure) Rules, which provides for endorsement, initialing and payment of nominal fees before filing of documents.
In conclusion, the Supreme Court held that given the facts of the case, the Respondent cannot be heard to complain of fair hearing. The appeal was consequently allowed with costs of N100,000.00 (One hundred thousand Naira) awarded in favour of the Appellant.
Representation: Ikani Agabi for the Appellant
Kenneth Ahia with Luther K. Onyemlepa for the Respondent. Reported by Optimum Publishers Limited (Publishers of Nigerian Monthly Law Reports (NMLR))