Borno College of Agriculture V. Mallam Yerima Malluma (2004)

LawGlobal-Hub Lead Judgment Report

TIJJANI ABDULLAHI, J.C.A.

This is an appeal against the Ruling of Kashim Zanna (CJ) High Court of Justice, Borno State delivered on 12th May, 2009 in a motion on notice No. M/235M/2000 dated 5th day of August but filed on 6/8/2008.

The facts of the case as can be gleaned from the Records are that: The Respondent as Plaintiff instituted suit No. M/82/97 against the Appellant as Defendant in an action founded on wrongful termination of employment. The matter proceeded to trial and after which, the learned Chief Judge, in a judgment delivered on 23rd May, 2007 found in favour of the Respondent.

The Appellant did not appeal against the said judgment delivered on 23rd May, 2007 but instead filed a Motion No. M/235/2008 praying for the following reliefs:
“1. An order for extension of time within which to apply to set aside the judgment of this Honourable Court delivered on 23/5/2002 in Suit No. M/82/97.

2. An order setting aside the aforesaid judgment obtained by the Plaintiff/Respondent in the absence of the Defendant/Applicant.

3. An order relisting the said suit No. M/82/97 for trial on the merit.

4. And for such further order or orders as this Honourable court may deem just to make in the circumstances.”

The motion is supported by a five paragraph affidavit with exhibits marked as exhibits A-E. A further affidavit and further further affidavit were filed all in support. These affidavits can be found on pages 3 – 16 and 17 – 19 of the records respectively.

The Respondent did not file any counter-affidavit. He responded to the Appellant’s arguments on point of law.

In a well-considered Ruling delivered by the learned trial Chief Judge on 12/5/2009, he found for the Respondent and held inter alia thus:

“In the final result, the applicant having failed to establish its entitlement to the first two reliefs sought, there is no reason to grant the 3rd by relisting the suit. On the whole, this application is utterly devoid of any merit and I must and do hereby dismiss it with N2,000 costs in favour of the respondent.”

Aggrieved by the said ruling, learned Counsel to the Appellant filed a notice of appeal on 25/5/09 consisting of five grounds and sought for the following reliefs:
“To set aside the Ruling of the learned trial Chief Judge of Borno State and grant the appellant’s relief sought for in motion No. M/019M/2009 at the trial.”

In a brief, settled by B. Adamu of Counsel, two issues were distilled from the five grounds as follows:
“1. Whether or not the appellant satisfied the conditions required by law for the learned trial judge to exercise his discretion in favour of the appellant and to grant the application as prayed. (Grounds 1, 2, 3 and 4)
2. Whether or not the learned trial judge did apply principle of law governing stay of execution to appellant application. (Ground 5)”

For his part, learned Counsel to the Respondent, Mr. John S. Mshelia formulated alone issue for determination in his brief thus:
“Whether or not the learned Chief Judge came to the right conclusion in the circumstances of the case.”

The issues for determination, though differently couched are not dissimilar to one another. However the lone issue formulated by the Respondent is more apt and precise. I adopt it as the issue calling for determination in this appeal.

On the 11th of January, 2014, when the appeal came before us for hearing, learned Counsel for the Appellant was in Court but the Respondent’s Counsel was not. After satisfying ourselves that he (Respondent’s Counsel) was duly served, we treated his brief as having been argued and allowed the Appellant’s Counsel to adopt his brief which he did. He urged us to allow the appeal and set aside the Ruling of the learned trial Judge.

Learned Counsel to the Appellant opted to argue the two issues together and in doing so, he began by submitting that the conditions required of an Applicant in an application for extension of time within which to apply to set aside a default judgment was extensively considered by the apex Court in the case of N.A. Williams vs. Hope Rising Voluntary Funds Society (1982) 1 – 2 SC page 145 at 152 – 153.

It was further submitted that extension of time is a matter of Court’s discretion and it must be based on material and sufficient facts before it.

Learned Counsel further argued that where there is sufficient material facts placed before the Court, the latter is bound to exercise its discretion judicially and judiciously in granting or refusing the application.

Learned Counsel listed the materials required in an application of this nature to include the absence of an Applicant at the trial; that judgment was delivered in his absence and that by the time he became aware of it, the time within which to apply to set same aside had elapsed and that the Appellant did not deliberately refuse to attend Court on the day of proceedings that led to the default judgment complained of.

Learned Counsel submitted that in the case of N.A. Williams vs. Hope Rising Voluntary Funds Society (supra) the application for extension of time was refused because the Respondents and their Counsel were aware the very day judgment was delivered but in the case in hand learned Counsel went on, neither the Appellant nor his Counsel was served with a hearing notice of proceedings that led to the judgment and even the date the judgment was delivered. For this submission, learned Counsel relied on paragraphs 3(1) of the supporting affidavit and paragraphs 4(d) (e) (f) of the further further affidavit to buttress his submission on this point.

The averments listed supra were neither challenged nor contradicted and for this reason, learned Counsel held the view that, the lower Court had sufficient materials placed before him to exercise his discretion in favour of the Appellant. The learned trial Judge, learned Counsel further held that, he was in error not have relied on the above paragraphs of the affidavit in support of the application.

Learned Counsel attempted to distinguish the case in hand with the case of N.A. Williams (supra) by submitting that in the present case, the Appellant only became aware that judgment had been delivered after the six days within which to bring an application to set it aside had lapsed whereas in the former the Respondent and his Counsel became aware on the day the judgment was delivered. Learned Counsel opined that, this is the difference and it is the more reason why the application should have been granted.

Learned Counsel insisted that the learned trial Judge was wrong in refusing to extend the time based on the further delay after the Appellant became aware of the judgment. Learned Counsel is of the view that, that in itself is not material since time had lapsed. Learned Counsel contended that the Appellant had proffered reasons for the further delay as indicated in paragraph 3(a) (b) (c) (d) and (e) of the applicant’s affidavit in support on page 4 of the record.

It was submitted for the Appellant that good cause had been shown to enable the learned trial judge to extend time under Order 37 Rule 9 and Order 22 Rule 3(1) and (2) of the Borno State High Court Civil procedure Rules, 2004. Learned Counsel urged on us to extend same as sufficient materials had been placed for the trial Court to exercise its discretion in favour of the Appellant/Applicant.

It is the submission of the learned Counsel that in an application to set aside a judgment given in default, different considerations apply. He listed such considerations thus:
“(1) The reasons of the applicant’s 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.

(4) whether the applicant’s case is manifestly unsupportable.

(5) From the service of writ upon him to the date of judgment the applicant’s conduct has been such to make his application worthy of a sympathetic consideration.”

In support of these submissions learned Counsel placed reliance on the cases of Adebayo vs. Doherty (1964) N.M.L.R. 144 at 145 Doherty vs. Ade Doherty (1964) N.M.L.R. 144 at 145 and Idam Ugwu and others vs. Nwaji Aba and others (1961) All N.L.R. 438.

On the 1st consideration, learned Counsel to the Appellant referred to paragraphs 3(a) 4(d), (c), (f) and (g) of the affidavit and further further affidavit at pages 3-4 and 18-19 of the record respectively and submitted that they have met the first condition in that the Appellant’s failure to appear at the hearing or the trial of the case in which judgment was given in its absence was clearly explained in those paragraphs.

On the 2nd consideration, learned Counsel referred to paragraphs 3(a) (b) (c) (d) (e) (f) and (g) of the affidavit in support and paragraphs 4(a) (b) (c) (d) (e) and (g) of the further affidavit on pages 18 – 19 of the record and submitted that they have met that consideration. Learned Counsel insisted that since the judgment sum was not paid nor was the Respondent reinstated, he could not be prejudiced by not bringing the application timeously.

On the 3rd consideration, learned Counsel adopted his submission for the 2nd condition and added that setting aside the judgment and to re-hear the case and determine same on the merit will not be inequitable having regard to the circumstances of the case. Learned Counsel held the view that the interest of justice would better be served by allowing the appeal than refusing it.

On the 4th consideration, learned Counsel contended that both parties are at-edem that the Appellant’s case is supportable. Learned Counsel opined that, that was the reason why the learned trial judge had never made any pronouncement on it.

On the fifth consideration, learned Counsel contended that the conduct of the Appellant does not count but rather it is the conduct of its Counsel. Learned Counsel re-echoed the much Quoted phrase that, Counsel’s sin or negligence should not be visited on litigant. Learned Counsel conceded the fact that the case of the Appellant was not diligently handled at the lower Court. For this contention, learned Counsel cited and relied on the case of Kotoye v. Saraki (1995) 5 NWLR (part 394) 256 at 264 to buttress his contention on this point.

Learned Counsel argued that the Appellant having engaged a Counsel to handle its matters, was not in a position to know how the matter was being handled by the Counsel. Learned Counsel further argued that it is the duty of Counsel who have accepted his client’s brief to represent him in Court and to brief him each time of what transpired in the case. A presence of party physically would only be required where it is his turn to give evidence. In support of this argument, learned Counsel cited and relied on the cases of Ndukauba vs. Kolomo (2005) 21 NSCQR 16 at 28 and Buba vs. Musa (2007) 7 NWLR (part 1032) 27 at pages 35 – 36.

It is the contention of the learned Counsel that the learned trial judge was wrong to have considered the conduct of the Appellant rather than the Appellant’s counsel since the Appellant’s presence in court is not mandatory. He referred us to the case of Ndukauba vs. Kolomo (supra). Learned Counsel further contended that the cases relied by the learned trial Judge to come to his conclusion on this aspect of case are distinguishable from the facts of the case in hand.

Learned Counsel urged on us to resolve the two issues he distilled for determination in favour of the Appellant, allow the appeal, extend the time within which to apply to set aside the default judgment and order the case to be heard on the merit.

For his part, learned counsel for the Respondent, began his consideration of the lone issue by submitting, outrightly that the learned trial Judge considered the merit of the application judicially and judiciously and came to the right conclusion.

Learned Counsel submitted further that every Applicant has the onus to satisfy the Court that he is entitled in law to the reliefs he is seeking even in the absence of a Respondent to counter the facts in an application.

For this submission, learned Counsel cited and relied on the case of Agbakogba vs. Director S.S.S. (1994) 6 NWLR (part 351) page 475.

It is the submission of the learned Counsel that the case of William v. Hope Rising Voluntary Funds Society (1987) 6 SC 145 set the standard for an application of this nature. Learned Counsel referred us to fines 21-24 of page 28 and contended that the learned trial judge considered the case of Williams vs. Hope Rising Voluntary Funds Society (supra) and carefully considered each element as enunciated in that case and vis-‘E0-vis the application at hand.

Re-acting to the Appellant’s contention that it had supplied materials before the trial Court, and met the standard set out in the case of Williams vs. Hope Rising Voluntary Funds Society (supra), learned Counsel asked the question, to quote him “what materials did the Appellant placed before the learned Chief Judge?”

In an answer to the above question, learned Counsel contended that although the Appellant alleged that he became aware of the judgment on the 6th of June, 2007, there is nothing in the affidavits filed by the Appellant that gives any inkling as to why the Appellant delayed for over one year before bringing its application under consideration in this appeal.

It is the submission of the learned Counsel that nothing in all the paragraphs of the Appellant’s affidavits at pages 3 – 4 and 17 – 19 of the record remotely explain the delay for over-one year before bringing the application. Learned Counsel further submitted that the Court must act on proved credible evidence before it and not speculation; and certainly not on the assertions of a party. In support of this submission, learned Counsel referred us to the following cases:
“1. Uwajeh v. Uwajeh (2009) All FWLR (part 458) page 287 at 304;
2. Commissioner of works Benue State v. Devcon Ltd (1988) 3 NWLR (part 83) page 404 at 422 paragraph F-G.

It is the contention of the learned Counsel that, Appellant’s Counsel hinged his arguments on non service of hearing notices on the Appellant but he submitted that once a party is served originating process and submits to jurisdiction, he is duty bound to follow his case diligently. It is his further submission that the learned trial Judge duly considered the Appellant’s complaints on service of hearing notices as can be seen on pages 29 line 6 to page 31 line 36 of the record. Learned Counsel urged on us to dismiss the appeal as lacking in merit and affirm the decision of the lower Court.

A good starting point in considering the sole issue for determination as rightly stated by the learned trial Judge is the case of N.A. Williams and Ors. vs. Hope Rising Voluntary Funds Society (supra) where our learned jurist Idigbe J.S.C. (of blessed memory) stated at page 60 the principles of law governing the grant or refusal of an application to set aside a judgment obtained in default of appearance. At the risk of being repetitive they are as follows:
(1) the applicant has good reasons for being absent at the hearing.
(2) he has shown that there was good reason for his delay in bringing the application i.e. in other words whether there was undue delay in bringing the application so as to prejudice the party in whose favour the judgment subsists.
(3) the respondent will not be prejudiced or embarrassed if the order for re-hearing was made.
(4) the applicants’ case was manifestly unsupportable and,
(5) the applicant’s conduct throughout the proceedings is deserving of sympathetic consideration.

It is instructive to note as rightly stated by the learned trial Judge, in my view that, all the conditions stated supra ought to be resolved in favour of the Applicant before the judgment should be set aside, it is not enough that some of them can be resolved in favour of an Applicant. This is so even in the absence of a Respondent to counter the facts in an application.
See Agbakoba vs. Director S.S.S. supra.

Now, the question that must be asked and answered is, whether the Applicant has met all the said conditions (supra) to entitled him to the discretion of the Court. To answer this question, needless to say, recourse had to be made to what transpired at the lower court.

Let me start with the 1st consideration i.e. the Applicant has good reasons for being absent. Can it be said from the records that the Applicant had placed sufficient materials before the learned trial Judge to entitle him to the discretion of the former? To answer this question, recourse had to be made to the affidavit evidence adduced by the Applicant in support of position taken by him. The relevant averments are hereunder reproduced as follows:
“(3) That I am inform by the Registrar of the Defendant/Applicant in our office. Ministry of Justice on 28/7/08 at about 10 am and I verily believe him to be speaking the truth as follows:
(a) That the Defendant/Applicant became aware of the case when a letter written by the plaintiff/Applicant’s Counsel was received by the Defendant/Applicant long after six days had lapsed within which to apply to set aside the said judgment. A copy of the letter dated 31/5/2007 is hereby attached and marked as Exhibit “A”.
(b) That the Defendant/Applicant wrote to his counsel (legal retainers) informing the counsel of the judgment that had been delivered and sought for the counsel legal advise as to the possible next line of action.

A copy of the said letter dated 16/7/07 with reference No. MOLCA/S/46/1/78 is shown to me and is hereby attached as Exhibit “B”.

In a further affidavit in support of the application, the Applicant averred thus:
“(3) That I am informed by A. Adamu in his office in the course of discussing this case and I verily believe same to be true as follows:
(a) That on one or two dates when the case came up for hearing neither defendant nor its Counsel was served with a hearing notice.
(b) That up till now he is yet to receive the record of proceedings.”

Not yet done, in another further further affidavit the Applicant deposed that:

“(4) That I am informed by B. Adamu of counsel in his office on 4/11/08 at about 11 am while discussing this case and I verily believe same to be true as follows:
(a) That this Hon. Court made an order on 8/10/08 that counsel can liaise with the Registrar of Court and peruse through the record of proceedings in this case.
(b) That B. Adamu has perused through same and he discovered that on 27/2/02 the case was adjourned to 7/3/02 in the afternoon.
(c) That on the said date that is 7/3/02 it is not clear by the record that the court sat.
(d) That after the sitting of the court on 27/2/07 the next date the court sat was on 19/3/07 and there was no evidence that defendant or counsel was served with a hearing notice against the said 19/3/02.
(e) That on 19/3/02 the Honourable Court adjourned the matter to 26/3/02 for address.
(f) That defendant counsel was served with a hearing notice against 12/4/02 and it happened to be a public holiday and on the next working day plaintiffs counsel was in court and adopt (sic) his written address in absence of the defendant or its counsel and, the case was adjourned to 23/5/07 for judgment.
(g) That the defendant or his counsel was not served with hearing notice against 23/5/07 the day slated for the judgment by the Honourable Court and judgment was delivered in the absence of the defendant and its counsel.

(6) That I am inform by the Registrar of the defendant in our office on 4/11/09 at about 11 am while giving further briefing to counsel handling the matter and I verily believe same to be true as follows:
(a) That defendant name has been changed from being Borno College of Agriculture to Mohamet (sic) Lawan College of Agriculture.
(b) That as a result of this change in name the defendant is now known and address as Mohamet (sic) Lawan College of Agriculture.
(6) That I swear to this further further affidavit in good faith and in accordance with the Oath Act.”

A cursory look at the averments reproduced supra would leave no one in any doubt that the reason for being absent at the trial had not been explained by the Applicant. Far from it. I cannot but agree with the learned Chief Judge when he held at page 29 of his ruling thus:
“The further Affidavit, paragraph 3(a) contains the deposition that “on one or two dates when the case came up for hearing neither the defendant nor its counsel was served with a hearing notice.” No specific dates were given and there is no certainty even on the number of dates: “on one or two dates”. Is this not a case of fishing for excuses? To compound matters, applicant’s counsel did not even offer the same excuse in his arguments, instead of the dates of hearing he contends that neither the applicant nor its counsel was served on the day of addresses and on the day of judgment. Far from giving “good reasons for being  absent”. The applicant has faired to give even consistent and verifiable reasons, even if weak and implausible.”

Another complaint of the Applicant is that, it was not served hearing notice for the date of the delivery of the judgment. For an answer to this complain, I refer to the case of Ekiti L.G.A. vs. Aje Printing (Nig) Ltd (2009) 4 NWLR (Part 1131) 304 where this Court per Sankey, JCA held that:
“Where a matter has been slated for hearing on a particular date, and parties have been properly informed by due service of hearing notices on them, there is no further duty on the court to serve them with hearing notices on subsequent dates of adjournment. A diligent litigant and his counsel are expected to keep abreast of all subsequent dates on which the case is adjourned to. Where they neglect to do so, they cannot be heard to complain, as equity aids the diligent and not the indolent.”

Again, in the case of Attorney-General of River State vs. Ude and others. In Re: Clement Nwala (2006) 2 All N.L.R, 200, the apex Court per Musdapher, JSC (as he then was) emphatically stated the law in respect of indolent litigants vis-a-vis issue of serving a hearing notice. Hear him:
“The Court of Appeal was in error to have held that the trial Judge was wrong to have exercised his discretion to close the case of the respondents when they failed to appear in court, when it was the respondents, who asked for and were granted an adjournment to appear in court in a certain date to prosecute their claims before the court. They refused to appear in court and had failed to find out what was happening in the court. They simply abandoned their case and accordingly the respondents were not entitled to a fresh hearing date under the circumstances.”

In the light of the foregoings, the question posed supra must be answered in the negative I am of the firm view that the learned trial Chief Judge was within the law when he held that the Applicant did not meet the 1st condition so as to entitled him to the trial Court’s discretion and I so find.

The 2nd consideration that an Applicant has to satisfy the Court as stated a while ago is whether there is a good reason for delay in bringing the application. In the instant case, has the Applicant adduced sufficient reason’s for its delay in bringing the application?

As can be seen in the affidavit evidence adduced by the Applicant that it became aware of this judgment over a year ago via Exhibit A. The Applicant strenuously tried to advance arguments as to why they were not able to file the application on time. They made heavy weather of the fact that it had to change another Counsel and the matter was then taken up by the State Ministry of Justice. This to my mind cannot be a good reason for the delay of one year before bringing the application. Far from it.

In the case of N.A. Williams and others v. Hope Rising voluntary Funds Society (supra), the apex Court on reason for the failure to bring such an application as the one we have in hand, held thus:
“What explanation did the respondent give for failing to file their application to have the judgment set aside within time? None, whatsoever. In the light of the principles which I earlier on explained one is bound to come to the conclusion that there was no material whatsoever on which the learned trial Judge exercised his discretion in favour of the respondents by granting them extended period within which to apply to have the judgment set aside. The matter ought to have rested here since if the respondents failed in the first leg of their application, i.e. to have their application brought out of time, there ought to be no need for consideration of the second leg-the prayer to have the judgment set aside and to have the substantive suit relisted for hearing.”

Now, having come to the inevitable conclusion that the Appellant had not given sufficient reasons for the delay in bringing the application under consideration, I would have put the final full stop in this judgment.

However, our Court being a penultimate one, consideration as to the three conditions will be given anon.

Learned Counsel for the Appellant strenuously argued that since the Judgment sun was not paid nor was the Respondent reinstated by granting the application, the Respondent will not be prejudiced. Learned Counsel for the Appellant advanced a similar argument before the lower Court whilst moving his application for the judgment to be set aside.

The learned trial Judge in response to the said argument held thus:
“In other words, the applicant is to be indulged by this court as a reward for its failure to comply with the judgment and orders of the court, made almost exactly two years ago on the 23rd day of May 2002. Also that since the respondent has been denied the fruit of his victory for two years, he shall not be prejudiced if his deprivation is further prolonged. What a preposterous proposition. I can only discountenance it and I do so.”

Let me say without mincing wards that I am in complete agreement with the views expressed by the learned trial Judge. In fact it will be a traversity of justice to set aside the judgment of the lower court on the arguments canvassed by the learned Counsel and I so hold with ease.

On the fourth consideration, learned Counsel for the Appellant submitted that, it was not an issue at the time of arguing the motion. In other word it is conceded by the parties that the Appellant’s case is supportable. The learned Counsel went on to submit that was why the learned trial Judge never pronounced on it.

It is pertinent at this juncture to pause and consider what transpired in Court that led to the judgment given in default with a view to finding out whether the Applicant’s case was manifestly unsupportable.

The learned trial Judge took pains to explain in graphic details how the default judgment came about wherein he stated thus:
“The defendant and its counsel were absent when the two witnesses testified on different dates. After the closure of the plaintiff’s case and adjournment for defence, defendants counsel appeared and asked for time to settle out of court. It was adjourned twice for that with no progress made. Counsel later applied to recall the plaintiff and his witness for cross-examination.

The application was granted but counsel failed to appeal to cross-examine the witnesses. The case was adjourned for defence or address (by the plaintiff’s counsel) and the defendant’s counsel was served. On the 19th day of March 2007, the defence counsel was absent and plaintiff’s counsel applied to have the witnesses who were recalled for cross-examination to be discharged and counsel allowed addressing the court. The court instead adjourned for address on the 26th day of March 2002 and ordered the defence to be served notice of that. On the adjourned date the plaintiff’s counsel sought to address the court but the court inquired if defence counsel was served.

He was not and the case was adjourned to the 12th day of April for address. On the 16th day of April 2007, the clerk reported that the defence counsel was served on the 28th day of March 2007 against the 12th day of April 2007 which was declared a Public Holiday; the 16th day of April was the working day immediately following the Public Holiday. Plaintiff’s counsel was then permitted to adopt a written Address and the 10 year old case was adjourned to this day for judgment –
It is crystal clear from the foregoing that contrary to the impression created by the application, the Applicant/Appellant had ample notice of the proceedings.

I cannot agree more with the learned trial Judge when he further held thus:
“… but chose, through its counsel, to saunter in and out of the proceedings at will, expecting the court to follow them, notice in hand, begging them to come and defend their case. To an extent, the court did even that but to no avail.”

Need I say more on this? I do not think so but only to add that the Appellant/Applicant’s case was manifestly unsupportable and in view of all that has been said supra, its conduct throughout the proceedings did not deserve any sympathetic consideration. I so find.

In conclusion, in the light of all that has been said, this appeal is devoid of any merit and must be and it is hereby dismissed accordingly.

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Other Citations: (2004)LCN/1560(CA)