Credit Alliance Financial Services Ltd. V. Antoine Mallah (Suing by His Attorney, Emmanuel Ayodele) (1998)
LawGlobal-Hub Lead Judgment Report
PATS-ACHOLONU, J.C.A.
he respondent as plaintiff had instituted action against the defendant now known as the appellant claiming as follows in his pleadings:
“(a) A declaration that the possession of flat 2 at No.2B Obadeyi Close, S. W. Ikoyi is unlawful as same was without the knowledge and/or consent of the plaintiff.
(b) The sum of four hundred naira (N400,000.00) being damages for the unlawful use and occupation of the said flat and furniture therein.
(c) Perpetual injunction restraining the defendant, its servants, agents and/or privies from continuing their unlawful acts by immediately vacating the premises and restoring all the furniture to reasonable state of repairs.”
The appellant filed a motion for extension for leave to file its statement of defence and it was granted. On 19/10/93 the defendant was absent in court and the trial proceeded with the hearing of the evidence of one Emmanuel Ayodele a done of the power of the attorney who described himself as a business man testifying for the respondent (plaintiff) who was absent in court. After his testimony he urged the court to give judgment in terms of the claim made. In his judgment the court below declared as follows:
“I hereby enter judgment for plaintiff against the defendant for the sum of N37,500.00 as general damages for the use of the furniture in the premises. Altogether, there shall be judgment for plaintiff against the defendant company for the sum of N387,500.00 as being claimed in the writ of summons.
From the totality of the evidence before me, it is undisputed that the plaintiffs were in both physical and constructive possession of the premises. So I hereby declare that the defendant possession of the flat 2 at 2B, Obadeji Close, S.W. Ikoyi since December 1990 is unlawful, illegal and unauthorized.”
By a motion dated 13/12/93 the judgment debtor the appellant applied for prayers along this line to wit:
“(1) an order extending the time within which the defendant/applicant can apply to set aside the judgment of this honourable court handed down of the 1st day of November, 1993;
(2) an order setting aside all the judgment of this honourable court handed down against the defendant on the 1st day of November. 1993;
(3) an order setting aside all the execution and enforcement of judgment processes already issued pursuant lo the said judgment, including the praecipe for the writ of execution dated 1st December, 1993,
the writ of fifa (if any) issued pursuant thereto and the judgment Form 41 (notice of attachment) issued out of the registry of this honourable court on the 8th December, 1993;
(4) an order of interlocutory injunction restraining the above named plaintiff and the deputy-sheriff of the High Court of Lagos State (whether by themselves or by their representatives, servants and/or agents or by whomsoever or howsoever otherwise), from making any attempts or further attempts or from continuing the processes or taking any other or further steps to execute and or enforce the judgment of this honourable court handed down on the 1st day of November, 1993 against the defendant pending the hearing and final determination of the issues raised under this application,”
The motion was supported by an affidavit of 6 pages showing why the judgment should be set aside, setting aside the execution of the judgment and, making an order of interlocutory injunction against the plaintiff and the deputy-sherrif of the High Court. The respondent filed a counter-affidavit and on 7/2/94 the court gave a ruling. The court in its ruling recounted the various misdeeds by way of nonchalant attitude and a show of lack of seriousness on the part of the appellant in responding timeously to the cause and though admitting that there has not been undue delay in applying for the judgment to be set aside, nonetheless refused the prayers sought and promptly dismissed it.
The defendant then appealed to this court and framed four grounds of appeal from which he formulated only one issue. The respondent framed two issues for determination. The issue raised by the appellant is
“Whether the judgment of the Lagos High Court was not given contrary to the defendant/appellant’s right of fair hearing as enshrined, under Part. IV of the Constitution of the Federal Republic of Nigeria 1979.”
In his argument, counsel for the appellant referred to paras. 9 and 10 of the affidavit in support of a motion to set aside and stated that on the 18/3/93 when he applied for an adjournment to afford him an opportunity to effect a consolidation of suit No. LD/1871/92 with LD/809/91 an adjournment was granted which he and the other counsel had understood to have been made sine die. In the order made on 18/3/93, regarding the application for adjournment to effect a consolidation, the court below made the following order as shown in the records,
“I agree that the defendant ought to have taken step before this morning to consolidate the suits, and this shall be done quickly by the defendant. For this reason, the application for an adjournment is granted reluctantly till 19/4/93 for mention.”
From the record, when the court resumed on 19/4/93, parties were all absent and the court adjourned the matter to 10/5/93. On that 10/5/93 parties were again absent and the matter was adjourned to 7/6/93. On that date parties were again all absent and the court adjourned the case to 19/10/93. On this date counsel for the plaintiff was present although the parties were not present but the donee of the power of attorney by the plaintiff was in court. When the matter was mentioned, he testified. I must candidly confess that 1 find it difficult to understand how the counsel for the appellant understood the adjournment made by the court to enable him explore the possibility of consolidating the sister cases as having been made sine die when the court made mention of a date. Either the counsel was careless or hard of hearing; the learned trial Judge was clear as to the date the return date was fixed. Counsel for the appellant in his brief stated that counsel for the respondent himself unsure of the date the matter was scheduled to be heard wrote and implored the court to have the matter relisted and that although the Chief Registrar Litigation requested the court to do so, nothing came out of it. What is baffling is 2 pronged (1) why were the 2 counsel confused about the date and (2) what made the respondent’s counsel, the donee of the attorney, present in court in that penultimate date. The appellant’s counsel had contended that despite the absence of the parties in court on 7/6/93 the matter was set down for trial without any hearing notices. To this counsel for the respondent in his counter -affidavit which I referred earlier, had said that he reminded Mr. Sunny Woken of the hearing date fixed for 19/10/93. At the date when the counsel for the appellant applied for an adjournment to enable him effect a consolidation till the date of determining the action parties and counsel were repeatedly absent in court. It might infact be that this absence would initially be traceable to the understanding or misunderstanding of the nature of the order of adjournment made. Where the parties are repeatedly absent in court, the only procedure to take is to issue a hearing notice. I must however observe in passing that there does not appear to have been a special notice given to the respondent and his counsel to appear in court on the date the court took evidence and reserved judgment. The letter by the opposing counsel seems to show that he was not sure when the date for hearing was fixed. Be it as may, two important factors feature poignantly
(1) From the record there does not appear to be hearing notices sent even when the parties were absent and, so when the case was adjourned it is safe to assume no effort was made by the court registrar to cause hearing notices to be served on the parties.
(2) The notice of application and the consolidation by the appellant was never filed. In declining to accede to the prayers of the appellant in the lower court the learned trial Judge held as follows:
“It is patently clear that the suit here was adjourned from 1st March, 1993 to 19th April, 1993 for mention. On the 7th day of June, 1993, the suit was set down f6ftrial for 19th October, 1993. It is obvious to me that if applicant and their counsel had been up and doing they would have not lost sight of this matter in court. The suit was not adjourned sine die, therefore the basis of the impression that the suit is adjourned sine die is non-existent. I think it is not right for the party or panics to introduce different meaning to the notes of the court when is clear and unambiguous. For the reasoning given in the application, I rule that the applicant have failed to give reason for their failure to appear in court at trial of the suit when judgment was given against them.”
Although there is no undue delay in bringing the present application to set aside the judgment and as a 3rd party interest is not involved in the matter, it could not be stated that the respondent shall be prejudiced or embarrassed by the reason of the application. I have read carefully the statement of defence, and I am unable to say that applicant’s case is manifestly insupportable. However, I am of the view that the applicant conduct throughout the proceedings has been such that the application is not worthy of sympathetic consideration. In W.A.P.I. v. Nigerian Tobacco Co. Ltd. & Anor (1987) 2 NWLR (Pt.56) 299 at 306, Kolawole stated the law as he interpreted it thus:
“In the present case I am of the opinion that the learned trial Judge was entitled to look into the court record in his possession to satisfy himself whether there was proof of service of any process on the parties or their legal representatives and having so satisfied himself that there was a proof of such service he was entitled to make use of the information contained in the record and to take judicial notice of the course of proceedings in his court. The learned Judge was right in my view when he held that there was no cause or no excuse shown for the non-appearance of the appellants or their solicitors.”
The other important issue for consideration is assuming that the application to set aside the judgment could be entertained what considerations would apply? The considerations that would apply to such an application were fully set out by Idigbe, J. (as he then was) in Idem Ugwu & Ors. v. Nwaji Aba & Ors. (1961) 1 All NLR 438 and restated by him in the Supreme Court in N.A. Williams & Ors. v. Hope Rising Voluntary Society (1982) 1 All NLR (Pt.1) 1 at 5. His Lordship stated –
“Among other things, the court must consider
(1) the reasons for the applicants’ failure to appear at the hearing or trial of the case in which judgment was given in his absence,
(2) whether there has been undue delay in making the application to set aside the judgment so as to prejudice the party in whose favour the judgment subsists;
(3) whether the latter party (i.e. in whose favour the judgment subsists) would be prejudiced or embarrassed upon an order for rehearing of the suit being made, so as to render such a course inequitable, and (4) whether the applicants’ case is manifestly unsupportable;
(5) that the applicant conduct throughout the proceedings i.e. ‘from the service of the writ upon him to the date of judgment’ has been such as to make his application worthy of a sympathetic consideration.”
In Scott-Emuakpor v. Ukavbe & Ors (1975) NSCC Vo1.9 435 at 439 Bello, J.S.C. (as he then was) said”
“Furthermore, the case file of the High Court which we inspected at the hearing of the appeal clearly shows that the respondent’s counsel had been served on 30th August, 1972 with a fresh hearing notice for the hearing of the motions in question on 1st September, 1972. There is no record in the said file or elsewhere of such service on the appellant or his counsel ….Where notice of any proceeding is required, failure to notify any party is a fundamental omission which entitles the party not served and against whom any order is made in his absence to have the order set aside on the ground that a condition precedent to the exercise of jurisdiction for the making of the order has not been fulfilled ….”The bone of contention of the respondent was that the application to set aside was not brought within 6 days of the judgment and in the absence of conforming to the rules, it is incumbent on the appellant to explain his reasons for the failure. Further he argued that the appellant must be affected by the judgment of the Supreme Court in Williams v. Hope Rising Voluntary Funds Society (1982) 1-2 S.C. 145. He submitted that the court looked at the conduct of the parties and in this case it considered the failure of the appellant to try and effect consolidation of the sister case which was the reason for the adjournment in the first place. As against the appellant’s denial of the knowledge of the date of the trial, counsel for the respondent referred to paras. 4 & 5 of the counter-affidavit. I shall set down paras. 4 – 8 of the counter-affidavit to enable me appreciate the argument of the respondent.
“4. That sometime in September, 1993 I saw Mr. Sunny Woken in court and I asked him when he would apply for consolidation as directed by this honourable court.
- That the said Mr. Sunny Woken said he would be applying to withdraw the said matter from court and I reminded him already that a notice of motion had been filed and served upon his chambers praying the court in suit No. LD/809/91 to strike out the said suit for want of diligent prosecution.
- That on the 29th day of November, 1993 the same was struck out with N2,000.00 costs against ‘Mr. Sunny Woken’ client.
- That I also reminded Mr. Sunny Woken of the hearing date of this matter which was fixed for the 19th day of October, 1993 in the presence of counsel for both parties since 18th March, 1993.
- That I was never under any impression that this matter was adjourned sine die and indeed there was no reason for anyone to so imagine as the records of the court would bear out.”
In his judgment the court below in examining the application of the appellant analytically made the following findings in favour of the applicant:
(a) that there is no undue delay in bringing the application;
(b) that a third party interest has not been involved (to complicate matter and give some colouration to the whole case);
(c) that it would not be stated that the respondent has been prejudiced and embarrassed.
He intoned rather that on examining the conduct of the applicant throughout the length and breadth of the proceeding its conduct is not such as to make the court readily accommodate it. I must state that on about 4 different occasions when the case was listed after the date it was adjourned to enable the appellant come out with application for consolidation all the parties were absent from the court. Although respondent counsel in his counter-affidavit denied that he has made the mistake of thinking or understanding the order of the court to mean adjournment sine die, it is difficult to understand why he and his people absented themselves regularly from the court. I do not believe the content of para. 8 of the counter-affidavit. It is unfortunate it is not included in the record. It is long been settled that where a party ought to be issued with a hearing notice but none was forth-coming or given so that such failure makes him absent in court, he has been effectively denied justice for he has not been heard and a judgment ruling or decision given against him is null and void. See Dawodu & Anor v. Ologundudu & Ors (1986) 4 NWLR (Pt.33) 104 of 114 and Okafor v. A.G. Anambra State (1991) 6 NWLR (Pt.200) 659 at 680.In this case, the court honestly admitted the points that were in favour of appellant yet it talked of the conduct that was unbecoming of a party. It must be stated that the rendition of judgment against a party who has filed his statement of defence but was not in a court when the matter was to be heard particularly when he was unaware of the date set down for hearing strikes at the very root of the fundamental principles enshrined in our primary law of the land. How could a reasonable and common man in the street of Lagos or Abuja see it? The right of fair hearing as enshrined in the Constitution imposes an obligation on the court to treat parties equally by affording them the opportunity of being present and heard. When a party in a legal duel receives a hearing notice but decides to be absent, the obvious conclusion is that he does not intend to contest the case or he has chickened out. Thus in Adigun v. Attorney-General of Oyo State (1987) 1 NWLR (Pt.53) at 678 to 709 Obaseki, JSC held,
“The right to fair hearing being a fundamental constitutional right guaranteed by the Constitution, the breach of it in any trial or investigation or inquiry nullifies the trial, investigation or inquiry and any action taken on them is also a nullity.”It must be understood that in a free society, where the concept of the rule of law is the order of the day and where the courts are alive to their duties, it will be setting the clock back if through our conduct we indulge in actions which tend to exclude the other party from being heard. Within us we cannot feel there had been an even-handed approach and the society is not enamoured by such acts. Since the suit was adjourned on several occasions all in the absence of the parties, courtesy and due procedural rules demand that the parties be issued with hearing notices. It would seem to me that after the court has come to the conclusion that the application has a lot of points going for it the court made a volte-face and surprisingly gave a decision which schemed the appellant from being heard. In otherwords, the court below adopted a short-circuit method to dispose of a case which in my view ought generally to be argued on its merit and judgment rendered on the strength of the parties showing in their manner of presentation of their cases. The hearing could not be said to have been fair.
In the final result the appeal succeeds. I hereby set aside the ruling of the court delivered on 7th February 1994 by which the court below refused to set aside its earlier judgment in default of appearance. I hereby set aside any writ of execution and enforcement thereof for the realization of that judgment. The case should be remitted to be retried on its merit by another Judge. Judgment for the appellant.
I award costs of N5000.00 to the appellant against the respondent.
Other Citations: (1998)LCN/0423(CA)
