Chief Gabriel Akinriboya V. Akinleye Akinsole & Anor. (1998)
LawGlobal-Hub Lead Judgment Report
ACHIKE, J.C.A.
This appeal puts in focus the term usually referred to as “default judgment”. The scope and effect of such judgments, seems to me to be the thrust and interest of this appeal.
In their suit at the High Court Ondo State holding at Ondo, the plaintiffs claimed against the defendant as follows:
(a) Court’s Declaration that it is an exclusive preserve of Akintimehin Family of Ore/Odigbo to present a candidate for the stool of Bale of Ore.
(b) Declaration that the purported rotational method sought to be applied by the 1st defendant in filling the vacant stool to the 2nd and 3rd defendants is inequitable, unjust, unlawful, null and void and runs counter to the established system of appointing a Bale at Ore.
(c) Perpetual Injunction restraining the 1st defendant, his agents, servants or whosoever from interfering with the age long tradition and customary rights of Akintimehim Family by selecting for appointment, under native law and custom, a candidate of their choice for the stool of are Baleship without any consultation with the 2nd and 3rd defendants.”
Pleadings were duly filed and exchanged. After a considerable delay, including the striking out and relisting of the suit which was admitted by both parties, the suit, with the consent of both counsel, was fixed for hearing for three consecutive days. When the suit eventually took off on 3rd May, 1993 neither the defendant, nor his counsel was present in court. The learned trial Judge after standing the case down for about one hour, proceeded to hear the suit. On the next day, 2nd defendant was present in court but his counsel was absent and wrote a letter which was delivered to the court by the 2nd defendant. When the letter was read out in open court, 2nd defendant was furious and remarked that his counsel was not being truthful. The 2nd defendant immediately prayed the court for an adjournment. The application was granted and the case was adjourned to the next day, i.e. 5/5/93.
On 5/5/93, a letter written from the Chambers of 2nd defendant’s counsel was read in open court. At that stage, 2nd defendant made it clear to the court that he could not proceed with the case without his counsel and again asked for further adjournment. The request was refused and the court fixed the date for final address of counsel to 6/5/93. On the said date the address of plaintiffs’ counsel was taken and judgment was reserved for 4/6/93. Thereupon, the trial Judge entered judgment in favour of the plaintiffs.
2nd defendant’s application to the trial Judge to set aside the judgment delivered on 4/6/93 was refused. It is against this refusal that the defendant has now appealed.
Both parties filed and exchanged briefs of argument. For the appellant, his learned counsel, Mr. G.O. Ojo, postulated five issues for determination, namely:
“(i) Whether the trial court having found the judgment to be a default judgment was right to refuse the defendant/appellant’s application to set the said judgment aside in the circumstances of this particular case and whether it is in the interest of justice to visit the penalty for the failure or inadequacies of counsel to appear for the defence of the defendant/appellant at the trial on the appellant.
(ii) Whether from the affidavit evidence and the attached Exhibits in support of the application of the applicant (now appellant) the appellant has a good defence to the case of the plaintiff/respondent and whether the issues raised in the affidavit deserve to be taken by the court on the merits.
(iii) Whether by the contents of Exhibit ‘C’ the respondents and the members of Akintimehin family are not estopped from contesting the fact that the 2nd defendant/appellant’s family are entitled to the stool of the Bale of are with the Akintimehin family of the plaintiffs/respondents on rotational basis and whether the contests of Exhibit ‘C’ does not disclose a good defence to the claim of the plaintiffs/respondents.
(iv) Whether the trial court was right in holding in its ruling that Exhibit ‘C’ a letter dated 11th November, 1989 written by the Akintimehin family to the Orunja of Odigbo and attached to the affidavit in support of the application to set the default judgment aside could not be used in the application since it did not form part of the original proceedings and whether even if the said letter did not form part of the original proceedings whether it could not under the rules of the court still be put in evidence if the case is allowed to be heard on the merits.
(v) Whether the trial court was right in holding that the appellant did not substantiate the fact deposed to in the affidavit in support of the application of the payment of N6,000.00 to the former counsel in that he did not display the receipts of the fee as Exhibit when the complaint of the said former counsel for the appearing for the appellant at the trial was not as to the payment of fees but as to the unwillingness to make arrangement for transportation and comfort and whether this error has not led the court to a wrong decision in refusing the application and whether this has not occasioned a miscarriage of justice to the appellant.”
On behalf of the respondents, their learned counsel Segun Isumede Esq., after reproducing the five issues postulated by the appellant went ahead and identified one issue for determination, namely:
“Whether the lower court exercised its discretion rightly in refusing the application to set aside its judgment.”
which he asserted is sufficient to determine the appeal.
Our starting point in the appeal is to properly identify the real issue or issues that can be said to arise in this appeal, bearing in mind the circumstances that led to the interlocutory decision of the lower court which is the fons et origio of the instant appeal. It must be clearly emphasized that the appeal has no bearing whatsoever with the merits or demerits of the substantive judgment handed down by the judge of the lower court on 4/6/93. For avoidance of doubt, the appeal, as earlier noted, relates only to the ruling of the lower court wherein the trial judge refused to set aside his judgment dated 4/6/93.
From a close examination of the ruling appealed against it seems to me that the real issue which calls for determination is that set out as respondents’ issue No.VI, to wit, “Whether the lower court exercised its discretion rightly, in refusing the application to set aside its (sic) judgment.”
In examining the above issue, it is hoped that issues Nos. i, iv and v will be given due consideration, as and when necessary.
On issue No. 1, appellant’s counsel submitted that the 2nd defendant, now appellant is the only defendant who was interested in the defence but unfortunately mistook May 4th to 3rd May, as the date for the commencement of the hearing of the case, notwithstanding that his counsel, Mr. Adefope Ajayi wrote a letter to the court excusing his appearance unless the defendants “paid adequately for this transportation and comfort for the three days”. On the next day (i.e. 4th May, 1993) when appellant was in court he applied for an adjournment but the same was refused as the reason advanced for adjournment was insufficient. Thereafter, the case proceeded to judgment. Counsel outlined the abortive efforts made by the appellant to be heard and submitted that, contrary to the view expressed by the trial Judge, appellant had been up and doing to present his defence to the respondents’ case. Furthermore, counsel submitted that the trial Judge was wrong to have heavily visited appellant’s failure to present his case on him when that situation was caused by the failure of his counsel to attend the sitting of the court. In the circumstances of this case, counsel submitted that the court ought to have granted the application to set aside the default judgment either under its inherent jurisdiction or under the rules of the court i.e. Order 37 rule 7 of the Ondo State High Court Rules. Counsel relies on Civil Procedure in Nigeria by Fidelis Nwadialo p.17, paragraph 2 as well as several legal authorities.
Finally, counsel submitted that the two contradictory letters written by the former counsel for the appellant (i.e. Mr. Adefope Ajayi) should not be the basis for punishing the appellant by denying him the application for setting aside the default judgment.
Arguing issues 2 and 3 together, appellant’s counsel noted that the two issues are predicated on ground 2 of the grounds of appeal. Let us pause briefly to straight-away that the raising of two issues for determination from one ground of appeal is not in tune with writing of good briefs. Generally, while an issue may be predicated on one or more grounds of appeal, two or more issues cannot rise from a single ground of appeal. Indeed, one of the aims of brief writing is to reduce the arguments on several grounds of appeal to a minimum by formulation of issues from the grounds of appeal. In the result, there may arise a situation whereby few issues are postulated by counsel in place of the several grounds of appeal and counsel’s argument will be based on the issues as postulated and no longer on the grounds of appeal.
It is counsel’s submission that Exhibit B i.e., the statement of defence, and Exhibit C, paragraph 5, contained sufficient disclosure that the appellant has a good defence to the respondents’ case and that accordingly respondents’ are estopped from denying the appellant’s claim based on rotational basis.
On Issue 4, counsel submitted that the lower court was wrong when he held that Exhibit C referred to paragraph 26 of the supporting affidavit to the motion for setting aside the ruling of the judgment in default would be ignored as the same goes to no issue. Counsel contends that the ruling of the judge decided an issue in the pleadings which ought not to he so decided at that stage of the proceedings; he cites and relies on John Osagie v. B.I. Ogbeide (1980) 11 CA 39 at 43-45.
Finally, on issue 5, appellant’s counsel submitted that the trial Judge was wrong in holding as one of the reasons for refusing to set aside the judgment in default the appellant’s failure to properly substantiate the payment of the sum of N6, 000.00 to their former delinquent counsel by not displaying the receipt of such legal fees. Reliance on appellant’s non-display of receipt of payment to counsel is the more unacceptable and unfortunate, argued counsel, when it is borne in mind that the former counsel’s reason for failure to attend court on 3rd, 4th and 5th May 1993, per his letter to the court, was not for non-payment of legal fees but for appellant’s unwillingness to pay for his transportation and comfort for the three days fixed for the hearing of the case at the lower court.
In the result, counsel argues that the appeal be allowed.
In the respondent’s brief of argument, which was adopted on respondent’s behalf, his learned counsel Mr. Segun Isumede, submitted that the application to set aside the lower court’s judgment, as brought and moved under Order 37 rule 7 of the Ondo State Rules of the High Court, was incompetent, the appellant having shown, as common ground, to have been present throughout the hearing of the case, including the date of judgment, except the 3rd May, 1993. He calls in aid the decision of Sanusi v. Ayoola (1992) 11-12 SCNJ 142 (1992) 9 NWLR (Pt. 265) 275. To counsel, the case in hand is outside what is commonly called default judgment as envisaged under Order 37 rule 7 of the Ondo State High Court Rules because the appellant was present in three out of the four days in which the trial took place at the lower court. The meaning of “default judgment” under Order 32 rule 4 of the Lagos State High Court Rules, which is in pari materia with that of Order 37 rule 9 of the Ondo Stale High Court Civil Procedure Rules, was lucidity stated in Sanusi v. Ayoola (supra). In the circumstances, and taking this case out of the above authority, counsel submits that the application before the lower court ought to have been struck out. He urges us to do so under section 16 of the Court of Appeal Act, 1981. It is counsel’s further contention that since judgment was delivered in the presence of the appellant, the lower court became functus officio after the delivery of the judgment and relied on Akinyede v. The Appraiser (1971) 1 All NLR 162.
It is also counsel’s submission that the present application leading to this appeal is not a default judgment, but assuming it is, without conceding, counsel submitted that the facts of this case did not fall squarely under the provisions of Order 37 rule 7. Finally, counsel submitted that the trial Judge properly exercised his discretion in refusing to set aside its judgment judiciously and judicially.
Issues 2, 3 and 4 were taken together. The gist of the submission thereunder is that the assertion of the trial Judge that the appellant had no good defence to the action was not challenged. It is his further submission that it was not enough for the appellant to attach Exhibit B that would elicit the alleged good defence. This is moreso when after examining Exhibit B the trial Judge had held that there was no good defence and also held that Exhibit C was not part of Exhibit B, not having been pleaded therein nor was the judge’s attack on Exhibit C denied, even in the further affidavit filed by the appellant. Accordingly, counsel submitted that the judge’s assertion that appellant lacked a good defence remained unchallenged and therefore justifiable.
On issue 5, counsel draws attention to the fact that where the trial Judge exercised his discretion properly, as in the instant application, an appellate court ought to be allowed to question the way the discretion has been exercised, remembering that the discretion is that of the trial Judge and not that of the appellate court. Counsel submits that the trial Judge took into consideration all relevant materials in the exercise of his discretion in refusing to set aside his judgment and accordingly urges us to dismiss the appeal and not interfere with the lower court’s exercise of its discretion.
In the reply brief, appellant’s learned counsel submitted that the term “default judgment” under Order 37 rule 9 should be given a liberal interpretation and not restricted to where the defaulting party merely failed to appeal physically but ought to be extended to where such a party was under some disability to offer evidence, as in the instant case, where the appellant although he was physically absent on 3/5/93, was in court on 4/5/93, 5/5/93, bearing in mind that on those three days he was not in a position to offer oral evidence. For the thrust of learned counsel’s submission to be fully appreciated, he relied and cited Black’s Law Dictionary with Pronunciation (5th ed.) p. 756. He urges that the term “default judgment” should be given an extended meaning to cover the plight of appellant in the instant appeal.
It is counsel’s further submission that the condition and conduct of the appellant throughout the trial was not blameworthy but deserving of sympathy. Finally, counsel submitted that most of the delays were either at the instance of the Court or the respondent.
As I had stated earlier in this judgment, it seems to me that the real issue in the appeal is as formulated by respondent’s counsel, that is, “Whether the lower court exercised its discretion rightly in refusing the application to set aside it’s (sic) judgment.” The motion on notice dated 8th June, 1993 leading to the ruling appeal against is stated to have been brought pursuant to Order 37 rule 9 of the Ondo State rules of the High Court Rules and under the Inherent Jurisdiction of the Court. That Rule provides as follows:
“9. Any judgment obtained where one party does not appear at the trial may be set aside by the court upon such terms as may seem just, upon an application made within six days after the trial or within such longer period as the court may allow for good cause shown.”
It is trite that a court may exercise inherent jurisdiction to set aside its own judgment upon compliance with certain conditions by the applicant. Such judgment sought to be set aside may have been given where a party failed to comply with procedural rules. For example, in Evans v. Bartlam (1937) 2 All ER 646, a judgment in default of appearance was entered against the defendant. There after, the appellant made an application to have the judgment set aside, and for leave to defend the action. The application was dismissed by the master. On appeal, the judge in chambers granted the application and gave leave to defend upon terms. On further appeal, the Court of Appeal ordered that the order of the master be restored. On further appeal to the House of Lords, the decision of the judge to set aside the judgment was restored.In the instant appeal, it is common ground as between the parties, and so also the lower court, that the judgment of the lower court was viewed as “default judgment” and as earlier observed, the motion to set the said default judgment aside was made under statutory provisions – Order 37 rule 9. In my view, it is not enough that the parties as well as the court christen a judgment a ‘default judgment’ because the mere application cannot characterize a judgment as such unless the judgment exhibits the true elements of a default judgment. It is for this reason that the scope of a judgment rendered in the absence of the defendant under rule 9 calls for closer examination. A court that exercises statutory power must do so within the power conferred on it by the enabling statute otherwise its action in respect thereof would be ineffectual.
When Order 37 rule 9 state that any judgment obtained where one party does not appear it would seem that the event that transpired in the court below on 3/5/93 when none of the defendants nor their counsel was present in court when the learned trial Judge proceeded to hear the substantive case fits squarely into the situation envisaged in the above opening sentence of Order 37 rule 9. In other words, that situation would accord with the definition of a default judgment under the above rule. But this is not the whole situation in the instant case because on 4/5/93 and 5/4/93, the appellant was in court, so also on 4/6/93 (when the judgment was delivered.) On those days, it is common ground that appellant though in court physically, nevertheless, he was unable to participate in the proceedings by reason of the absence of his counsel. It seems to me that we cannot make any meaningful headway in this appeal unless and until a clearer definition of the term default judgment is arrived at.
The term default judgment is nowhere defined in the Ondo State High Court (Civil Procedure) Rules, 1987 nor in any of the comparable Rules applicable in the other States of Nigeria. Nevertheless, the opening sentence of Order 37 rule 9, as earlier noted, gives a rough notion that judgment in default arises “where one party does not appear at the trial”. Black’s Law Dictionary with Pronunciations (5th ed.) defines the phrase default judgment first as “a judgment rendered in consequence of the non-appearance of the defendant.” Secondly, it goes on further to expatiate that it is “one entered upon the failure of a party to appear or plead at the appointed time”. Thirdly, the term is accorded extended meaning in the same work at the same page 756 as “judgments entered under statutes or rules of court, for want of affidavit of defence, plea, answer, and the like, or for failure to take some required step in the cause”. Looking closely at the third meaning of the term default judgment, it seems that a judgment rendered where a party fails to take some required step in the case, which will include, as in the instant case, where the appellant failed to offer viva voce evidence as well as address the court by reason of the absence of his counsel, even though he was physically present on three days out of four when the case was determined, would pass the acid test of the definition of default judgment.
The learned counsel for the respondent has submitted to the contrary.To counsel, the wordings of Order 37 rule 9 are clear and unambiguous: it is restricted to judgment only to where a judgment rendered where one party does not appear. Therefore, where the party appears at one stage of the trial, as in the instant appeal, the judgment rendered in such circumstances cannot quality as a default judgment. Indeed, to counsel, the use of such appellation where a defendant appears at any stage of the trial would be an abuse of language and contradiction in terms.
Technically, I have no doubt that the submission of respondent’s counsel cannot be said to be absurd. In practice it cannot hold water, To render such restrictive construction to rule 9 of Order 37 is to lose sight of the real problem that a defendant not aided by counsel, perhaps, due to no fault of his, may be exposed. It is clearly inimical to the very sense of justice that both parties seek to attain. I do not find myself convinced nor able to accept that line of submission by respondent’s counsel, even though it is undoubtedly attractive. I wish to state that the interest of justice would be better served by examining the circumstances of each ease. In the result, I wish to state that for the foregoing, I am clearly of the view that in the circumstances of the instant case, the judgment thereon would surely pass as one obtained where the appellant did not appear at the trial; in other words, it was a default judgment in the third sense, as set out above.
This, however, is the first aspect of the monolithic issue that I have adopted in the determination of this appeal. The main thrust of the appeal, as earlier stated, is whether the trial court exercised its discretion properly in rendering its judgment in the absence of the appellant. The statutory provision under Order 37 rule 9 is silent as regards what matters the court would take into consideration, should the court be minded to set aside a default judgment, and assuming that the application for setting aside the judgment is brought within the prescribed statutory period of six days or within such terms as may be extended by the order of the court. It is clear that the power to set aside a default judgment under Order 37 rule 9 lies in the discretionary power of the trial court. It is also manifest that where a discretionary power is exercised by the trial judge in accordance with laid down principles it is not the business of the appellate court to substitute its discretion for that of the trial court. The appellate court may disturb the exercise of the discretion by the lower court only if the exercise is palpably in violence to laid down rules. Even though Order 37 rule 9 is tersely stated, the courts have evolved laid down criteria as a guide for the exercise of the discretionary power of the court. What then are the criteria that the court may take into consideration for the proper exercise of discretion by the court to set aside a default judgment? In Sanusi v. Ayoola (supra), Karibi – Whyte J.S.C. opined that the following considerations as sufficient materials for the exercise of the court’s discretion:
- Where applicant has shown good reasons for being absent at the hearing.
- Application was brought within the prescribed period of six days.
- In an application for extension of time to bring the application applicant has given good reasons for his inability to bring the application to set aside the judgment within the six days prescribed under the rule.
- He has shown that there is an arguable defence to the action which is not manifestly unsupportable.
- His conduct throughout the trial is not such as is condemnable, but deserves, of sympathy.
- Where the judgment is taintied with fraud or is irregularly obtained – See Anlaby v. Praetorius (1888) 20 QB 764.
- Where judgment was given for an amount in excess of what was due and claimed. See Hughes v. Justin (1894) 1 WB 667.
- The respondent will not suffer any prejudice or embarrassed if the judgment is set aside.
Let us now examine seriatim and in the above order, to what extent appellant scaled or failed to meet the above material criteria. Under No.1 the question is has the applicant shown good reason for being absent at the trial on 3/5/93, bearing in mind that he was in court on 4/5/93 and 4/6/93. What was the appellant’s reason for being absent at the hearing on 3/5/93? His response to the question may be found in paragraphs 12, 13 and 14 of his affidavit in support of his motion for selling aside the judgment delivered on 4/6/93, deposed lo on 9/6/93. He averred as follows:
“12. That I also mistook the 4th of May 1993 as the commencement date for the hearing of the action instead of the 3rd and was therefore not in court on the 3rd day of May, 1993.
- That it was when I came to the court on 4th May 1993 that I realised that trial had commenced on the 3rd of May, 1993 in our absence.
- That it was also on the 4th May, 1993 that I learnt in court that Mr. Adefope Ajayi wrote to the court that we did not perfect his brief hence he did not come to court on 3rd May, 1993 to appear for us which allegation I vehemently denied as we have paid the whole of the fees charged for the case by Prince Adeyoroye to him and had in addition paid N6, 000.00 to Mr. Ajayi when he took over from Prince Adeyoroye.”
The 1st and 2nd respondents on 1/7/93 and 5/7/93 respectively deposed in the counter-affidavit and further counter-affidavit in reply to appellant’s affidavit in support of the motion for setting aside the judgment dated 4/6/93. In paragraph 2 of counter-affidavit, the deponent unequivocally admitted that “paragraph 13 of applicant’s affidavit as being true” while in paragraph 3, the same deponent averred that paragraphs 12 and 14 of the applicant’s affidavit are false. What is the legal effect or conclusion reached by the trial Judge, on the excerpts of the affidavit evidence reproduced above?
Before analysing the relevant affidavit evidence, we shall pause briefly to make certain observations. It is within the province of the high office of the trial Judge to evaluate all the evidence placed at his disposal, be it oral or documentary evidence, including affidavit evidence before deciding the issue raised. See M.I.A. & Sons Ltd v. F.H.A. & Anor (1991) 8 NWLR (Pt. 209) 295, Jude Ezeoke v. Moses Nwagbo (1988) 3 SCNJ 37 (1988) 1 NWLR (Pt. 72) 616, Ebba v. Ogbodo & Anor (1984) 4 SC 84 (1984) 1 SCNLR 372 and Alhaji Akibu v. Joseph Opaleye (1974) 11 SC 189. It is also the law that an appellate court should accord the greatest weight to any finding of fact made by the trial Judge, moreso if the matter decided by the trial court gives rise to questions of veracity and accuracy of evidence attested to by a witness. But where the question involves scrutiny of documentary or affidavit evidence or relates to proper inference to be drawn from credible evidence, particularly affidavit evidence, the trial court is in no better position to decide than the judges sitting on appeal. See Dominion Trust Company v. New York Life Insurance Co. (1919) AC 254 at pp. 257-258 and Ebba v. Ogbodo (supra). Where, therefore, the trial Judge failed to carry out his traditional duty or evaluating the evidence elicited at the trial, at the instance of the affected person the appellate court is entitled ex debito justitias to have the judgment set aside unless the appellate court is in a position to evaluate and pronounce on the evidence led at the trial.
Now I return to the above excerpts of the affidavit in support of the motion and the counter-affidavit already reproduced herein. With regard to the supporting affidavit in this regard, the learned Judge of the lower court had this to say:
“Applicant had earlier sworn to paragraph 12, 13 and 17 of the affidavit in a similar dishonest vain…”
In other words, his Lordship specifically discredited paragraphs 12 and 13 of the supporting affidavit in the motion to set aside the judgment given in the absence or the appellant. In my opinion, there was no evidence before the trial Judge to warrant his castigation of the affidavit or the appellant in paragraph 12 (and also paragraph 17) as being “dishonest”. This must be mere figment of imagination of the trial Judge when x-rayed against the respondents’ response to appellant’s averment that “he mistook the 4th of may 1993 as the commencement date for the hearing of the action instead of the 3rd”. To that assertion, the respondents in their paragraph 2 or their counter-affidavit, unconditionally admitted same to be true. If the respondents conceded that it was only on 4th May, 1993, while in court, that appellant realised that the trial had commenced on 3rd May, 1993, then, logically it follows that the appellant mistook the commencement date to be 4th May, 1993 and that was the date he first came to court unless there is any strong evidence forthcoming to dislodge appellant’s assertion that he mistook the commencement date to be 4th May 1993, rather than 3rd May 1993. Such evidence unfortunately cannot come from the court. It must be borne in mind that the appellant has not for one moment denied being in court when on 21st January, 1993 the parties’ counsel consented to the adjournment of the suit to 3rd, 4th and 5th May, 1993 but only says that he was mistaken with regard to the commencement date. There was clearly an adjournment extending over a period of over 102 days and human memory being what it is, the trial Judge was obliged to properly evaluate the evidence before him and not speculate on the honesty of the appellant. Obviously, the learned trial Judge erred seriously to have failed to act on appellant’s unchallenged evidence which the authorities enjoin him so to do: See Nwabuoku v. Ottih (1961) 2 SCNLR 232. Egbuna v. Egbuna (1989) 2 NWLR (Pt. 106) 773 and Azeez v. The State (1986) 2 NWLR (Pt. 23) 541.
Having conceded to the appellant that it was true that it was only in court on 4th May, 1993 that he realised his mistake that the court commenced hearing of the case on 3/5/93, then some strong or compelling affidavit or documentary evidence must come from the respondents to uproot the lucid assertion of appellant’s mistaken view of the date for commencement. Rather than to do so, the respondents place reliance on mere empty denial, to wit, that “paragraphs …. 12…. 14….17…..of the applicant’s affidavit are false.” In my view, this is not sufficient traverse of the positive averment in the appellant’s affidavit in support of his application wherein he deposed specifically that he was mistaken as regards the commencement date. In other words, the issues raised in paragraphs 12 and 14 of the appellant’s supporting affidavit are insufficiently traversed in the respondents’ counter and further-counter affidavits. Where the traverse of fact is insufficient, it surely follows that the allegation of fact of appellant’s mistake as to the commencement date has not been properly denied. This rule of pleading and the same applies mutatis mutandi to averments in affidavits and counter-affidavits. See Adimora v. Ajufa & Ors (1988) 3 NWLR (Pt. 80) (1988) 6 SCNJ 18 at 24, 25, Oguma AC (Nig) Ltd v. IBWA (1988) 3 SCNJ 13 (1988) 1 NWLR (Pt. 73) 658.
There is no gainsaying the fact that in the application before the lower court for selling aside the default judgment the appellant raised an issue of fact in relation to his mistaken view of the commencement date of the trial. The same was not properly traversed. Such material allegation cannot be met by general denial. It must be specifically traversed. See Wallersteiner v. Moir (1974) 1 WLR 991 at 1002. Accordingly, I hold that the appellant showed a good reason for being absent at the hearing of the suit.From the record, the application for setting aside the default judgment was brought on 9/6/93, that is, five days after the judgment was delivered. Again, appellant sealed the second consideration under Order 37 rule 9. It necessarily follows that the third consideration ought to be resolved in appellant’s favour. The same may also be said in relation to the sixth consideration. There was no inquiry nor any suggestion of the judgment having been tainted with fraud or having been irregularly obtained. Again, the question posed by the seventh consideration, i.e. the judgment being given for an amount in excess of what was due and claimed does not arise.
We are now left with the examination of the 4th, 5th and 8th considerations.
First we start with the 4th. Be it noted that the question of there being an arguable defence to the action, which is not manifestly unsupportable, is also subsumed as appellant’s 2nd issue under his issues for determination. It will be remembered that the appellant not only filed a joint statement of defence with the other defendants, the same was annexed to the affidavit in support of the motion. There was nothing in the ruling of the trial Judge showing that he perused the statement of defence and found same to be porous or incomprehensible to support his lone sentence at page 205 of the record, line 10:
“I take it that the defendants have no defence to offer.”
Again, the lone remark by the trial Judge relates to the document designated as the Statement of Defence wherein the defendants fielded facts in support of the right they intended to contest against the respondents if given the opportunity to do so in a proper hearing. In it, the appellant had joined issues with the respondents in accordance with the rules of pleading yet these issues were not given any consideration. As already stated, the trial Judge failed to put the annexed statement of defence into any use otherwise he would have assisted him to decide whether or not the appellant had a good defence to the action. See Shahimi v. Akinola (1993) 5 NWLR (Pt. 294) 464. Any view expressed by the trial Judge without a proper evaluation of the evidence that would be forthcoming from the annexed Exhibit B, the statement of defence, must be discountenanced as there cannot be a finding or holding in the absence of a prior evaluation of the evidence placed before the court. See MIA & Sons Ltd v. FHA & Anor (1991) 8 NWLR (Pt. 209) 295.
I have carefully perused the annexed appellant’s statement of defence, I am satisfied that it has shown that there is an arguable defence to the action and it is clearly supportable. I am of opinion that the fifth consideration is also in favour of the appellant.
The next point which the court in exercise of its discretion ought to consider is whether the conduct of the appellant throughout the trial is not such as is condemnable, but is deserving of sympathy. In this regard, the appellant in their supporting affidavit to the motion deposed that they perfected the professional fees of their former counsel, Mr. Adefope Ajayi and consequently, when their counsel’s letter stating the contrary was read in court, appellant reacted vehemently and denied same without any reservation in open court because, as he had earlier stated, they had paid the whole of the fees charged for the case by Prince Adegoroye, including the additional sum of N6,000.00 paid to Mr Ajayi when he took over from the former. Bearing in mind that Mr. Ajayi wrote another letter which contradicted the reason for his absence from court throughout the hearing of the suit on 3rd, 4th and 5th May, 1993, no fair-minded tribunal would be obliged to give any serious consideration to the contradictory statements made by Mr. Adefope Ajayi, qua counsel, for his negligence in failing to attend the court on the dates he consented to. It will he recalled that the appellant’s promptitude in engaging first the service of counsel who was however disqualified by the court as well as engaging even the deliquent Mr. Ajayi to seek an order suspending the delivery of the reserved judgment pending the hearing of the appellant to plead his case, and finally engaging his current counsel who promptly moved the application do set aside the default judgment. It is quite obvious to any neutral observer that any blame worthiness leading to the default judgment being rendered against the appellant was attributable to the conduct of Mr. Ajayi, qua counsel, by his failure to attend the court’s sittings on the 3rd, 4th and 5th May, 1993. The two contradictory letter written by Mr. Ajayi, as counsel made him condemnable in contempt of the court for failure to carry out his duty as an officer of the court who apparently was duly paid for his services. The law is trite that the court ordinarily in deserving circumstances will not visit the sins of a counsel, as in the instant case, on his client. In other words, the sins of a counsel handling a case should not be the ground for defeating appellant’s cause. See Doherty v. Doherty (1964) I All NLR 162 at 167 and Chief Lamai v. Chief Orbih (1980) 5-7 SC 28. Thus in Bowaje v. Adediwura (1976) 6 SC 143 at page 147, Bello JSC, as he then was, had this to say relative to the shortcomings of counsel:
“This court would readily exercise its discretion to extend periods prescribed for doing an act if it is shown to the satisfaction of the court that failure by the party to do the act within the period prescribed was caused by negligence or inadvertence of counsel.”In his ruling leading to this appeal, the lower court Judge did not find the conduct of the appellant condemnable (save he did not attend the sitting of the court on 3rd May, 1993 – situations found herein to have been explained away satisfactorily. His conduct, from the foregoing account is surely deserving of sympathy. In the result, I hold that the conduct of the appellant as borne out of the record cannot be said to be condemnable.
The final consideration is whether the respondents would not suffer prejudice or embarrassed if the judgment is set aside. Unfortunately, despite the fact that the effect of setting aside the default judgment was agitated by both parties, the learned trial Judge, as earlier observed with regard to unsatisfactory evaluation or evidence, glossed over this specific point and gave it no consideration whatsoever. In the supporting affidavit to the motion for setting aside the judgment in default, appellant deposed tersely in paragraph 36 as follows:
“That the plaintiffs/respondents will not be prejudiced if this application is granted.”
The respondents on their part and on the same point averred at paragraph 19 as follows:
“That this application if granted will affect us greatly as it will be impossible to get our witnesses to testify”.
As I had earlier noted, the learned trial Judge did not evaluate these two pieces of evidence yet they are manifestly crucial pieces of evidence. The record of appeal shows that the two plaintiffs on record testified as well as one Lawrence Adebayo Temikotan, who testified as 3rd PW and whose evidence spanned two pages and five lines. There is no evidence that any of the three witnesses is dead or resides in distant places out of the court’s jurisdiction that it would be difficult or impracticable or impossible to bring them to testify. The three witnesses are indeed members of Akintimehin family of Sugwa stock. Save that respondents’ deposition in paragraph 19 says that it will be impossible to get them to testify, I am clearly of opinion that the said averment is vague or evasive. The impossibility alleged and averred has not been properly expatiated to enable the court make a meaningful evaluation of the prejudicial effect, if any, of the inability of the three witnesses to come to testify. From the statement’) of facts in the parties’ briefs and their pleadings – although not formally stated – the suit is being fought in a representative capacity between the plaintiffs/respondents, representing Akintimehin Family, on the one hand, and 1st defendant, an Oba and traditional ruler of Odigbo land, 2nd defendant representing Dero Family of Odigbo, on the other hand. It is common ground however those only 1st and 3rd defendants have since been translated to the world beyond among both parties. It seems to me clearly unarguable that in the absence of any evidence on record the respondents’ averment that “it will be impossible to get our witnesses to testify” is arid and not intended to be taken seriously otherwise they should state what will bring about the perceived impossibility. I am not prepared to accept that averment. In the final analysis, the court is left with the positive averment of the appellant, to wit, that the respondents will not be prejudiced if this application is granted. In the result, we are faced with a situation similar to the one we had earlier considered where the so called challenge to a positive assertion by the appellant was only feebly and evasively traversed: Appellant’s averment in this regard was a material allegation of fact and ought to have been sufficiently and properly traversed. See Adimora v. Ajufo (supra). I do not find myself convinced that the respondents were or are honest when they averred about the impossibility to get their witnesses to testify.
I cannot bring myself to think that in the absence of death or ill-health the respondents’ three witnesses – members of the same Akintimehim Family and two of which are parties on record, no doubt, approved by the family as worthy personalities to prosecute the case on their behalf – will now develop lame feet or even decline to continue to render the-same services.
In the result, I will resolve the 8th consideration also in favour of the appellant and hold that the respondents will not suffer any prejudice or embarrassment if the default judgment is set aside.
All in all, I have resolved all the considerations set out above in favour of the appellant. It will also be borne in mind that those considerations were formulated in Sanusi v. Ayoola (supra) by Karibi-Whyte, JSC. In that case, the Supreme Court was construing the provisions of Order 32 rule 4 of the High Court or Lagos (Civil Procedure) rules, 1972. It is enough to state that I have examined the two statutory provisions and reiterate that I find that Order 37 rule 9 of Ondo State High Court (Civil Procedure) Rules 1987 is in pari materia to Rule 4 of the High Court of Lagos (Civil Procedure) rules 1972, Order 32.
Against the basis of the monolithic issue for determination postulated by the respondent and approved by me, the question is whether the lower court exercised its discretion rightly in refusing the application to set aside its judgment? It is clear to me that the trial Judge failed to avail himself of the opportunity to give proper or adequate considerations to the criteria which usually aid the court in exercise of its discretionary power to set aside a default judgment heard in the absence of the other party. Generally, an appellate court is slow to disturb the exercise of discretion by the lower court. Indeed, the fact that appellate court would have exercised its discretion in a manner different from that of the trial Judge is no reason for the appellant court to reverse the decision of the lower court in order to substitute its own discretion. Be that as it may, an appellate court which finds that the judge wrongly exercised his discretion has the power and the duty to interfere and remedy the injustice that would otherwise result. See Abeki v. Amboro (1961) All NLR 368 308 and Sonekan v. Smith (1967) 1 All NLR 329.
It follows, from what I have been saying that there have arisen good reasons for interfering with the exercise of discretion of the lower court judge, Awe, J. Therefore, the appeal deserves to succeed. The lower court’s ruling delivered on 23rd September, 1993 is hereby set aside. In the result, the judgment of Awe, J. sitting at the High Court No.2, Ondo, delivered on 4th June, 1993 is also set aside. It is hereby directed that the suit be heard de novo by another judge within the same jurisdiction.
Appellant shall have the costs of this appeal which I assess and fix at N2, 000.00.
Other Citations: (1998)LCN/0429(CA)
