Arbico Ltd. V. Chief Sunday Dike Odogwu (2007)
LawGlobal-Hub Lead Judgment Report
RAPHAEL CHIKWE AGBO, J.C.A.
The appellant was plaintiff in Suit No. ID/782/90 against the respondent as defendant at the High Court of Lagos State Ikeja Division. In the suit the appellant claimed of the respondent the sum of N629,959.72 being money owing the appellant as outstanding building contract fee.
Appellant also claimed interest calculated at 20% of the said sum from December 1988 to December 1989 and from 1st January 1990 at the rate of 30% until the final payment. Unable to serve the respondent personally, the appellant obtained an order of court for substituted service by pasting at the respondent’s residence No. 4/6 Ikoyi Road, Obalende, Lagos. Upon being served the originating processes “and the statement of claim by pasting on 17th September 1990 the respondent by a memorandum dated 25th September By a motion dated 31st October 1990 and filed on the same date, the appellant as plaintiff/applicant sought of the High Court of Lagos State an order entering final judgment against the respondent in favour of the applicant upon the amount endorsed on the writ of summons and the statement of claim on the neglect or failure of the defendant/respondent to the a memorandum of appearance and statement of defence. This motion fixed for hearing on 12th November 1990 was served by pasting at No. 4/6 lkoyi Road Obalende on 8 November 1990. On 28 November 1990, appellant argued its motion for judgment in default of appearance and pleadings. The respondent was absent and not represented by counsel. The court acceded to the appellant’s request and entered judgment for the appellant on the grounds that the respondent did not put in appearance nor did he file a statement of defence.
On 18-12-90 the respondent filed in the court below a statement of defence and counter claim and a motion on notice seeking to regularize same. On 8th January 1991 the respondent filed another motion in the High Court seeking the following orders:
“(1) An order staying the execution of the default judgment obtained in this case by the plaintiff/respondent against the defendant/applicant on 12th day of November 1990;
(2) An order setting aside the default judgment in service of the Motion for judgment in this case on the defendant/applicant:
(3) And for such other order or further orders as the Honourable court may deem fit to make in the circumstances.”
This motion was argued on 14th May 1991 and in a considered ruling on 31st May 1991 allowed the motion and set aside the default judgment.
Not being satisfied with this ruling, the appellant has filed this appeal seeking to upturn it. The appellant filed the following grounds of appeal:
“I THE LEARNED Judge erred in Law and misdirected himself on the facts of the case when he held as follows:
“The reason for the applicant’s failure to appear at the hearing had been given. A man cannot be at two places at the same time. I believe the defendant was overseas when the motion for judgment was pasted on his door.”
- The learned trial judge erred in law and on the facts of the case when he set aside his judgment given in default.
- Having regard to the totality of the circumstances of this case the learned trial judge failed to exercise his discretion judicially and judiciously.
- The leanred trial judge erred in law and on the facts when he held that the applicant’s case is supportable since the suit is such that requires proof of expenditure and materials used in building two houses.
- The LEARNED TRIAL JUDGE ERRED IN LAW AND on the facts in setting aside his judgment when all the conditions laid down by the Supreme Court in WILLIAMS V. HOPE RISING VOLUNTARY SOCIETY 1982 1-2SC 145 for setting aside the judgment of the Court had not been fulfilled.”
From these grounds of appeal the appellant has distilled two issues for determination to wit:
“(a) Whether the learned trial judge was right in setting aside its own judgment when there was no material before the court upon which the same can be set aside.
(b) Whether having regard to the facts and circumstances of this case, the learned trial judge could be said to have exercised his discretion judiciously and judicially in setting aside the default judgment.”
In arguing issue (a) i.e. Whether the learned trial judge was right in setting aside its own judgment when there was no material before it. The appellant attacked the conclusion of the trial court that the respondent was served with the notice of motion for judgment in default by substituted means while the respondent was away from the country, attacked the SUFFICIENCY of the material placed before the court as distinct from the complete want of material. This court can only interfere with the exercise of discretion by a lower court where there is a want of material upon which the court below acted. This is because while the for want of material is objective, that of want of sufficiency is subjective. It is settled law that a discretion properly exercised by the trial court will not be lightly interfered with by an appellate court even if the appellate court was of the view that it might have exercised the discretion differently. – See Ogolo v. Ogolo (2006) 2 SC (pt 1) 61 at 65.
As correctly set out by the appellant the Supreme Court in Williams v. Hope Rising Voluntary Fund Society (1982) All NLR 1, 1-2SC 70 set out the conditions to be satisfied by an applicant seeking to set aside a default judgment. These conditions are:
(1) The reason for the default in filing the defence
(2) Whether there has been undue delay in making the application so as to prejudice the respondent
(3) Whether the respondent would be prejudiced or Embarrassed upon an order for rehearing being made So as to render in inequitable to permit the case to be Re-opened and,
(4) Whether the applicant’s case is manifestly unsupportable.
– See also Ogolo v. Ogolo supra. None of the above conditions creates room for the concept of “Sufficiency” and quantum thereof to be met before a court can exercise its equitable jurisdiction to exercise its discretion in favour of one party or the other. What rather the appellant has vigorously attacked under this issue is the finding of the court below that even though de jure there was service on the respondent of the application for default judgment, de facto the respondent was unaware of the pending of the motion for judgment. The court below performed the function of a court of equity in an application seeking an equitable relief. The essence of the service of process whether personal or substituted is to give notice to the other party in whom service is to be effected to alert him to the existence of a proceeding against him to enable him determine whether or not to join issues with his antagonist – See Ajibola v. Sogeke (2003) 9 NWLR (pt 862) 494 at 524.
That is why this court held in Otobaimere v. Akperehe (2004) 14 NWLR (pt 894) 591 that where the court makes an order for substituted service it would be proper to effect personal service because the essence of service of any process is for the person to whom the process is directed to have knowledge that he has a claim to dispute. In fact I go further to propound that where a party has been brought to court by the service on him of the originating processes by substituted means and he subsequently leaves with the registry of the court his address for service as happened in the instant case where the respondent entered appearance, all service on him thereafter of any other processes should be at the address left by him. I have no difficulty in concluding that issue (a) does not avail the appellant.
Issue (b) is whether having regard to the facts and circumstances of this case, the learned trial judge could be said to have exercised his jurisdiction judiciously and judicially in setting aside the default judgment.
“It is only when a trial court exercised its discretion upon a wrong principle or mistake of law or under misapprehension of the facts or took into account irrelevant or extraneous matters or excluded relevant matters thereby occasioning injustice that an appellate court will not abdicate its duty to interfere with the exercise of that discretion in order to present injustice.” Per Onnoghen, JSC in Ogolo v. Ogolo Supra. See also Oyekanmi v. NEPA (2000) 12 SC (pt1) 70 (2000) 15 NWLR (pt 690) 414.
The court below had delivered its judgment in default on the grounds that the respondent did not enter appearance and had not filed its defence.
At the hearing of the application to set aside the default judgment, the applicant itself admitted that the respondent did file a notice of appearance but contended that it was not served with the said notice. The issue left for determination was the issue of the non filing of defence. At the time the application to set aside the default judgment was filed, there was already pending before the court an application for leave to file statement of defence out of time and for a deeming order. The reason given therein for the delay was that because of the absence of the respondent from town, respondent’s counsel did not have sufficient material to formulate and file within time respondent’s statement of defence. This explanation was accepted by the court below which also held that the period of default was excusable. The appellant has attacked the reason given by the judge as the mere ipsi dixit of the respondent. Accepting the ipsi dixit of a witness does not make the evidence perverse. One must always remember that judgments of Superior Courts in matters of exercise of discretion do not create binding precedents and refusal to follow them does not amount to a mis-appreciation of the law. It is only when the decision of the trial judge flies in the face of established legal principles that the appellate court can interfere.
However much one is appalled by the discretion so exercised, this court the respondent. Accepting the ipsi dixit of a witness does not make the evidence perverse. One must always remember that judgments of superior Courts in matters of exercise of discretion do not create binding precedents and refusal to follow them do not amount to a mis-appreciation of the law.
It is only when the decision of the trial judge flies in the face of established legal principles that the appellate court can interfere. However much one is appalled by the discretion so exercised, this court cannot substitute its discretion for that of the court below. The ruling of the trial court took into account all the conditions set out by the Supreme Court in Williams v. Hope Rising Supra. I shall therefore decline from interfering with the discretion so exercised. This appeal fails and it is hereby dismissed with N10, 000.00 costs to the respondent.
Other Citations: (2007)LCN/2215(CA)
