THE GOVERNOR OF IMO STATE & ORS V. E.F. NETWORK (NIG) LTD & ANOR (2019)

Background

This appeal arose from a contractual claim brought by E.F. Network (Nig) Ltd and Mr. Gideon Ebuchulam against the Governor of Imo State and other state authorities. The respondents claimed the sum of N800,000,000 as the outstanding contract price for the supply of 40,000 rolling plastic refuse containers at N20,000 per container, under a contract dated 15 September 2007. They also claimed N200,000,000 as special and general damages.

The respondents commenced proceedings in the High Court of Imo State, Owerri, by writ of summons dated and filed on 27 September 2011, in Suit No. HOW/538/2011. Alongside the writ, they filed an ex parte application seeking to have the action placed on the undefended list. The trial court refused that application and directed the respondents to proceed under the general cause list by filing their statement of claim and other frontloaded processes. The respondents complied and served the processes on the appellants.

The appellants did not file a memorandum of appearance or statement of defence within the required time. Although the trial court granted them opportunities to regularise their position, they failed to take the necessary procedural steps. The respondents consequently applied for judgment in default. The trial court nevertheless ordered that the matter proceed to trial and pre-trial proceedings. The appellants were represented by counsel on several occasions but failed to cross-examine the respondents’ witness and failed to file a defence. After further adjournments, the defence was foreclosed. An application for a stay of proceedings and referral of the dispute to arbitration was also dismissed. On 11 February 2014, judgment was entered for the respondents.

The Court of Appeal, Owerri Division, affirmed the judgment. The appellants then appealed to the Supreme Court, arguing principally that the action had not been properly commenced and that the refusal of their application for extension of time and leave to defend violated their constitutional right to fair hearing.

Issues

1. Whether the action was improperly commenced in a manner that deprived the High Court of jurisdiction.
2. Whether the refusal of the appellants’ application for extension of time and leave to defend denied them fair hearing under section 36 of the 1999 Constitution.
3. Whether the appellants could raise before the Supreme Court a complaint concerning the award of damages when that issue had not been argued before, or determined by, the Court of Appeal.

Ratio Decidendi

The Supreme Court held that the writ of summons was a valid and independent originating process. Although the respondents had unsuccessfully sought to place the action on the undefended list, the writ had been separately filed and the applicable filing fees had been paid. It was not merely an exhibit attached to the ex parte application. The dismissal of the application therefore affected only the application, its supporting affidavit and the accompanying address; it did not invalidate the writ or terminate the substantive action.

Once the trial court directed the respondents to file their statement of claim and frontloaded processes under the ordinary procedure, the respondents complied with Order 3 rule 2 of the Imo State High Court (Civil Procedure) Rules, 2008. The High Court consequently acquired jurisdiction through the writ of summons, and the later refusal of the undefended-list application did not deprive it of competence to hear the claim.

The Court further held that an appeal lies to the Supreme Court from the decision of the Court of Appeal, not directly from a decision of the trial court. The appellants’ complaint about the N200,000,000 damages award had been raised as a ground before the Court of Appeal but was abandoned because no issue was formulated from it. It was struck out there. Since the Court of Appeal had not considered the point, it did not arise from that court’s decision and was incompetent before the Supreme Court. The relevant grounds and issue were accordingly struck out.

On fair hearing, the Court explained that fair hearing means a hearing conducted according to the legal rules designed to ensure justice, viewed from the perspective of a reasonable or impartial observer. It includes the opportunity to be heard, present evidence, call witnesses and cross-examine opposing witnesses. However, the doctrine is fact-dependent and cannot be invoked abstractly or merely as a procedural device to excuse a party’s indifference or disobedience.

Court Findings

The Supreme Court found that the appellants had been served with the respondents’ processes and had participated in the proceedings through counsel. They were given repeated opportunities to enter appearance, file a defence, cross-examine the respondents’ witness and present their case. The trial court even accommodated the appellants by allowing the matter to proceed to trial instead of immediately entering default judgment. The appellants’ failure to use those opportunities was attributable to their own lack of diligence, not to any conduct by the court that denied them a hearing.

The Court rejected the argument that the absence of a counter-affidavit from the respondents automatically entitled the appellants to the orders sought. The court retained the duty to examine the circumstances and determine whether an extension of time and leave to defend were justified. The appellants’ prolonged defaults, repeated delays, failure to comply with orders and failure to cross-examine the witness justified the trial court’s refusal to indulge them further.

Conclusion

The Supreme Court unanimously dismissed the appeal for want of merit. It affirmed the decisions of the High Court of Imo State and the Court of Appeal. The appellants were ordered to pay N500,000 in costs to the respondents.

Significance

The decision confirms that the dismissal of an application to use the undefended-list procedure does not invalidate a separately filed writ of summons. A court may redirect a case to the ordinary procedure without losing jurisdiction, provided the originating process and subsequent pleadings comply with the applicable rules. The case also illustrates that fair hearing is a guarantee of a genuine opportunity to participate, not an entitlement to endless extensions or procedural indulgence. A party who is given adequate opportunities but neglects to act cannot later convert its own default into a constitutional complaint. Finally, the judgment reiterates the appellate principle that a higher appellate court ordinarily reviews the decision of the immediately lower court and will not entertain a new issue that was not determined there without compliance with the required procedure.