A.O. Akeredolu & Ors. V. Mrs. Aminatu Aminu & Ors. (2003)
LawGlobal-Hub Lead Judgment Report
S.A. IBIYEYE, J.C.A.
The Appeal
arose from the ruling of Onashile, J. of the Ogun State High Court of Justice sitting in Abeokuta and delivered on the 31st day of July, 1989.
The antecedents of this ruling, however, arose from the amended Writ of Summons and the Statement of Claim filed by the plaintiffs on the 27th day of October, 1988. It will be elucidating. in view of the grouse which prompted this appeal, to reproduce the reliefs sought in both the Amended Writ of Summons and the Statement of Claim which, at the risk of repetition, were filed on the same day (supra). Thus in the endorsement on the Writ of Summons, the plaintiffs claimed as follows:
“1. Declaration that the defendants cannot without the knowledge and/or consent of the head of Oojabi family sell, lease or in any way alienate the family property of Oojabi family of Sango Otta.
2. Declaration that the purported sale or lease of the family property known as Oojabi family property at Sango Otta, by the defendants without the knowledge and or consent of the head of Oojabi is null and void and of no effect and should he accounted for.
3. An order granting possession to the plaintiffs by restraining the defendants, their servants, agents and or privies from further dealing with Oojabi family property without the knowledge and consent of the family head ….”
In paragraph 45 of the Statement of Claim, the plaintiffs claimed as follows:-
“(i) A declaration that the plaintiffs are jointly entitled to statutory or customary right of occupancy over all that piece of parcel of land situate, lying and being at Sango-Otta, known as Oojabi family land and edged red in Plan No. SEW/W/2523/7/2A Drawn by M.A. Seweje Licensed Surveyor.
(ii) A declaration that the 1st and 10th defendants or any individual member or members of Oojabi family cannot without the knowledge and or consent of the head of Oojabi family sell, lease or in any way alienate the family property of Oojabi family property of Oojabi family of Sango-Otta.
(iii) A declaration that any purported sale or lease of any part of Oojabi family land at Sango-Otta by the 1st and 10th Defendants to the 2nd to 9th and 11th to 14th defendants without the knowledge and or consent of the 1st plaintiff is null and void and of no effect
(iv) An order granting possession of the areas illegally occupied by the defendants to the plaintiffs
(v) An order of injunction restraining the defendant their servants, agents and privies front any further property without the knowledge and consent of the Oojabi family.”
It is apparent from the two processes reproduced above that the Amended Writ of Summons contains three reliefs while the Statement of Claim contains five reliefs, that is to say additional two reliefs, This recourse is quite regular as borne out in one of the principles of pleadings on supercession of the Statement of Claim over the Writ of Summons. It is now well settled that a Statement of Claim supercedes the Writ of Summons. Where, however, in a Statement of Claim a consequential relief or reliefs are added to it in excess of those in the Writ of Summons, such additional reliefs shall be deemed as claims before the Court. See: ENIGBOKAN V. AMERICAN INTERNATIONAL INSURANCE CO. (NIG.) LTD. (1994) 6 NWLR (PART 348) 1 at pages 15 and 16. EZEWUSIM V. OKORO & ANOR. (1993) 5 NWLR (PART 294) 478 AT 501 and AJAGUNGBADE III & ORS. V LANIYI & ORS. (1999) 13 NWLR (PART 633) 92.
It is also pertinent to note that where some reliefs are claimed in the Writ of Summons and not in the Statement of Claim, it will be deemed that so much of the claims left out have been abandoned. See: LAHAN V. LAJOYETAN (1972) 6 SC. 190 at 192. In the instant case, the foregoing principles have confirmed the propriety of the plaintiffs’ increase of the reliefs from three in the Writ of Summons to five in the Statement of Claim. The Statement of Claim was therefore regularly filed in the lower Court.
At the expiration of about seven months (that is to say between 27th October, 1988 and 11th May, 1989) of filing both the Amended Writ of Summons and the Statement of Claim the plaintiffs filed a motion on notice supported by an eight paragraph affidavit on 11th May 1988 seeking in part the following relief:
“….seeking for an order entering judgment for the plaintiffs for failure of the defendants to enter appearance and file a defence to the suit herein and for any further order or other orders as this Honourable Court, may deem fit to make in the circumstances of this case.”
This application was made under order 14 rule 3(i) and Order 27 rule 8(1) of the Ogun State High Court (Civil Procedure) Rules Edict 1987.
The fourteen defendants save the 3rd defendant failed to enter appearance. None of the fourteen defendants filed a Statement of Defence.
At the hearing of the said motion, the learned counsel for the plaintiffs urged the Court to enter judgment for the plaintiffs for failure of the defendants to enter appearance and file a defence to the suit in point as per the claim in the Statement of Claim filed on the 27th of October, 1988.
In a considered ruling, the learned trial Judge of the lower Court, Onashile, J. held, inter alia,
‘In this application, as the defendants have failed to enter appearance and/or filed their Statements of Defence either within time or out of time, they are in law presumed that they had no intention to defend the case and in the result the plaintiffs’ application for an order of a judgment in default is meritorious and deserving. The application is therefore allowed and judgment is hereby entered in favour of the plaintiffs as per their Statement of Claim….”
The defendants were apparently dissatisfied with the foregoing ruling and filed a motion on notice under Order 14 rule 6 and Order 27 rule 10 of the Ogun State High Court (Civil Procedure) Rules 1987 (hereinafter referred to as 1987 for:
“……..an order setting aside the judgment in default given in this matter on 31/7/89…..”
The 1st defendant filed a twenty one paragraph affidavit in support of the motion while the plaintiffs filed a twenty paragraph Counter-affidavit against the application.
The Court which was similarly constituted (Coram, Onashile. J.) held, inter alia, after considering both affidavit evidence:
“….Even though the averments in the affidavit in support of the application have been manifestly disproved and discredited by the averments in the counter-affidavit as to non-service of the copy of the Writ of Summons on the applicant and other processes as well as to the medical report on the applicant as to his being so bed ridden since 1980 and his incapacity to move about, on all these points, I am unconvinced and in utter disagreement while I accept all the proofs submitted by the respondents in their counter-affidavit. Notwithstanding my personal view, the provisions of Rule 6 of Order 14 is crucial in the determination of the application, as it is mandatory in tone and effect and does not allow a discretion on the part of the Court……
Even though I am convinced that the applicant was duly served with a copy of the Writ of Summons and other processes in this suit and he was fully aware of the respondents’ action against him and the other co-defendants, he chose not to put in his appearance and to defend the case. I am also convinced that at the material lime when the action was filed and proceedings on it were in progress, the applicant was not incapacitated to the extent that he was not able to move about, as he was attending the Ifo/Ota Grade 1 Customary Court in Ota and taken (sic) active part in the Suit Nos. IF/OT.288/86 and IF/OT.289/86 which he instituted against some of his co-defendants in this case……………..It is my view that Order 14 Rule 6 is relevant and appropriate to this application. The application is therefore sustainable and it is therefore allowed and consequently, the judgment in the Suit herein delivered on 32/7/89 in default of appearance and defence of the applicant is hereby set aside and the substantive action revives and it is hereby set down for mention on Monday 29/1/90” (Underlining mine for emphasis),
The plaintiffs now appellants were dissatisfied with the ruling of the lower Court in favour of the defendants now respondents and appealed to this Court on four grounds. The following two issues were distilled from the four grounds of appeal:
“(a) Whether it was right in the light of the evidence before the trial Judge to set aside the judgment to the benefit of all the respondents especially the 2nd to the 14th respondents.
(b) Whether Order 14 Rule 6 of the Rules of the High Court of Ogun State makes it mandatory for the Court to set aside a default judgment upon an application therefore without regard to the assessment of the evidence before the Court.”
The respondents instead of raising issues from the grounds of appeal filed by the appellants did so from the grounds set out in their joint Respondents’ Notice in which they urged this Court to affirm the decision of the Court below on grounds other than those relied upon by the Court below pursuant to Order 3 rule 14(2) of the Court of Appeal Rules 1981 as amended. Thus, the grounds on which the respondents intend to rely as set out in the Respondents’ notice are as follows:
“1. The proceedings leading to the judgment of the Court below is a nullity, as same was (sic) conducted without jurisdiction.
1. The claim of the plaintiffs arc basically for declaration, hence evidence must be led before such a declaration can be made.
2. Evidence was not led before judgment was entered for the plaintiffs.”
On the premises of the foregoing grounds, the respondents raised the following issues:
“(i) Whether the learned trial Judge had jurisdiction or not to have entered judgment in this case without calling oral evidence in view of the reliefs being claimed by the Plaintiffs/Appellants in their amended Writ of Summons and the Statement of Claim and their (sic) being no evidence of payment of filing fees for some of the reliefs claimed.
(ii) Whether the learned trial Judge had jurisdiction to entertain and grant the application for judgment in the first instance in view of the fact that there was no proof of service of the motion for judgment and the date of hearing of the application for judgment and there was no proof of payment of fees for some of the reliefs in the Statement of Claim.
(iii) Whether the learned trial Judge was right to have taken the application for judgment when the motion for joinder by some application (sic) was pending and has not been taken and when the 12th defendant/respondent who was present in Court was not heard or whether the entry of judgment in this case has not violated the rights of the parties to be heard.
(iv) Whether the learned trial Court (sic) was right to have set aside the judgment in default.”
At the hearing of the appeal, O.T. Akinluyi Esq., and S.O. Ajayi Esq., the learned counsel for the appellants and the respondents respectively adopted and relied on their briefs of argument which included the Reply brief. Both learned counsel proffered oral amplifications to their briefs. Thus, the learned counsel for the appellants argued that a declaratory order may not be granted upon an interlocutory application except when it is permitted by statute as per Nigerian situation.
The learned counsel for the respondent argued to the contrary and relied on the case of BELLO V. EWEKA (1981) 1 SC 101 AT 102. He observed that it is contrary to the principle enunciated in the case of IJADE V. OGUNYEMI (1966) 9 NWLR (PART 470) 17 at 31 when the appellants incorporated notice of preliminary objection in the Reply brief.
He further argued that the purpose of a Reply brief is to attend to points raised in the respondents’ brief and cited in support the case of ONYEKWULUNE V. NBULUE (1997) 7 NWLR (PART 512) 250 at 267 and 279. I agree with the correct principles of law as stated by the learned counsel for the respondents. It is anomalous to incorporate a preliminary objection in the Reply brief. See NWALI V. THE STATE (1991) 3 NWLR (PART 182) 663; PAMOLA & ORS. V. ADEYEMO & ANOR (1991) 8 NWLR (PART 257) 1 and AKINRINMADE V. LAWAL (1996) 2 NWLR (PART 429) 218.
The attendant consequence of the foregoing principles with regard to this appeal is that the notice of the preliminary objection and the arguments in support as contained in paragraphs 2.01 (i) and (ii); 3.00 to 3.09 and 4.00 to 4.04 on pages 2 to 4 of the Reply brief shall be discountenanced and I so hold.
On issue 1, the learned counsel for the appellants referred to the locus classicus in the case of WILLIAMS & ORS V. HOPE RISING VOLUNTARY FUNDS SOCIETY (1982) NSCC 36 AT 42 where the Supreme Court laid down five definite principles to guide trial Courts in considering an application to set aside a judgment which was obtained through the default of a defendant. All the said guidelines must be resolved in favour of the applicant before an earlier judgment can be set aside.
He argued that the respondents’ affidavit in support of the motion to set aside the judgment speaks only for the 1st respondent and nothing was said on behalf of the remaining thirteen respondents and submitted that as there was no averment to support the involvement of those other respondents, the application 35 far as they were concerned should have been dismissed as the necessary considerations outland in WILLIAMS & ORS. V. HOPE RISING VOLUNTARY FUNDS SOCIETY CASE (supra) deals with only matters of evidence which must be adduced by the applicants/respondents in the instant appeal.
He referred and relied on the case of OLUJINLE & ORS. V. ADEAGBO & ORS. (1988) NSCC. (PART 1) where it was held that where no evidence is led on a point in issue the Court has no choice but to resolve the point against the party who fails to adduce it.
He referred to page 107 line 30 and page 108 lines 1 to 15 where the learned trial Judge described the averments in favour of the 1st respondent in the supporting affidavit for setting aside the judgment in point as being “manifestly disproved and discredited by the averments in the counter-claim as to non service of the copy of the Writ of Summons on the applicants and other processes as well as to the medical report on the (1st) applicant as to his being bed ridden since 1980 and his incapacity to move about.” He argued that since the 1st respondent based the averments in the affidavit on issues of falsehood, the trial Court should not have exercised any discretion in his (1st applicant’s) favour to set aside a judgment based on his default and he relied on the case of OSHUNRINDE V. AKANDE (1996) 6 SCNJ 193.
On Issue 2, the learned counsel for the appellants submitted in essence that the learned Judge of the lower Court wrongly invoked Order 14 rule 6 of the 1987 Rules to set aside a judgment which was entered under Order 14 rule 3(i) and Order 28 rule 8(1) for default of appearance and default of defence respectively. The learned counsel for the respondents dealt extensively in the Respondents’ brief of argument on the Respondents’ Notice which was mainly focused on Jurisdiction. Since the respondents have premised their reaction to the instant appeal on jurisdiction, I am of opinion that priority be accorded it. It is settled that Jurisdiction is the very basis on which any Court or tribunal tries a case. It is the life line of all trials. A trial without jurisdiction is a nullity. See PETROJESSICA ENTERPRISES LTD. & ANOR. V. LEVENTIS TECHNICAL CO. LTD. (1992) 5 (PART 244) 675 at 696.
It is also settled that the issue of jurisdiction can be raised at any stage of the proceedings up to the final determination of an appeal by the highest court of the land. This is so because it is an issue which goes to the root of the matter so as to sustain or nullify the order or decision already made. It is equally settled that the Judge or Court can also raise it suo motu at any stage. See OGIGIE & ORS. V. A.I. OBIYAN (1997) 10 SCNJ 1 at 16 and OBIKOYA V. REGISTRAR OF COMPANIES & ANOR (1975) 4 SC 31.
When a court lacks jurisdiction it lacks the necessary competence to try the case and that a defect in competence is fatal as the proceedings are null and void ab initio. See SALATI V. SHEHU (1986) 1 NWLR (PART 15) 198 and ALADE V. ALEMULOKE (1988) 1 NWLR (PART 69) 201 AT 204.
Learned counsel for the respondents submitted that the trial Court lacked jurisdiction to grant declaratory reliefs as reflected in reliefs 1 to 3 of the Statement of Claim. Such want of jurisdiction was also occasioned because additional reliefs 4 and 5 in the Statement of Claim were made without paying filing fees. He argued that paying of filing fees is a condition precedent for the exercise of jurisdiction. Learned counsel also submitted that there was no proof of service of the Writ of Summons and the Statement of Claim.
A close study of the record of proceedings and in particular the ruling of the lower Court delivered on the 31st July, 1989 showed that the necessary papers and processes, that is to say the Amended Writ of Summons, the Statement of Claim and hearing notices, were served on the respondents as was patently opined by the learned trial Judge. Such proof of service conferred sufficient jurisdiction on the lower Court and cannot be faulted. It is well settled in several decided cases that a Court is seized of jurisdiction to entertain a case if:-
(i) It is properly constituted as regards number and qualifications of members of the bench and no member is disquieted for one reason or another;
(ii) the subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the Court from exercising its jurisdiction and;
(iv) the case comes before the court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction.
See MADUKOLU & ORS. V. NKEMDILIM (1962) 1 ALL NLR. 587 at 594.
It is not in doubt in the instant case that all the above enumerated conditions were satisfied by the Ogun State High Court of Justice sitting in Abeokuta and presided over by Onashile, J. and could hardly he faulted on jurisdiction. Although considerable issue was made by the learned counsel for the respondents on whether or not there was proof of service of the relevant processes on the respondents before judgment in default of appearance and defence was entered in favour of the appellants, I dare say that it was, as expressed by the trial Court, that it was convinced that such was service was properly effected. It is trite that a case which is lacking in proof of service of process on the other party will gravely affect jurisdiction as such a case would not have been initialed by due process of law. It is also of moment to state that the issue of service is intrinsic as non-service of a Court process will affect the competence of the Court to adjudicate in the matter.
Sec SKENCONSULT (NIG.) LTD V. UKEY (1981) 1 SC. and OKE V. AIYEDUN (1986) 2 NWLR (PART 23) 548. It is not so in the instant case as it was properly initialed, What could have amounted to fundamental defect in the instant case was adequately taken care of and accordingly conferred the necessary jurisdiction on the trial Court.
It is equally pertinent to say contrary to the submission of the learned counsel for the respondents that the respondents did not have fair hearing when judgment was entered in favour of the appellants on the basis of default of appearance and defence, that a party who has adequate information of the hearing date or a date to perform an obligation but fails to either attend Court or perform such obligation cannot complain of breach of his right to fair hearing. See: JONASON TRIANGLE LTD. V. C.M. & P. LTD. (2002) 15 NWLR (PART 789) 176 at 192/193. Such was the fate of the respondents in the instant case because they failed to enter appearance and defence within the period fixed by law. In these circumstances, I hold that the respondents’ notice lacks merit and it is dismissed.
It will be recalled that the appellants identified two issues for the determination of this appeal. Thus, issue 1 deals with the propriety of the trial Court setting aside its earlier ruling by entering judgment for the appellants because of the respondents default in appearance and defence. It is trite that a Court lacks jurisdiction to sit on appeal over its own decision unless such a decision is alleged to have been arrived at without jurisdiction as such exercise will be a nullity. It has, however, been held that the trial Court was seized of jurisdiction to enter judgment in favour of the appellants for want of appearance and defence by the respondent. Be that as it may, what is of moment in issue 1 is whether the trial Court properly set aside its judgment which he gave in default of appearance and defence in favour of the appellant.
It appears the principles enunciated in the case of WILLIAMS & ORS. V. HOPE RISING VOLUNTARY FUNDS SOCIETY (SUPRA) will adequately deal with the issue of setting aside the judgment so obtained. The principles the Court should adopt in exercising its discretion to set aside a judgment given in the absence of the other party are as follows:
(i) the reasons for the appellant’s failure to appear at the hearing or trial of the case in which judgment was given in his absence;
(ii) 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.
(iii) Whether the latter party (i.e. in whose favour the judgment subsists) would be prejudiced or embarrassed upon an order for re-hearing of the suit being made so as to render such a course inequitable and
(iv) Whether the applicant’s case is manifestly insupportable or whether the applicant’s conduct throughout the proceedings is deserving of sympathetic consideration.
See also the case of ODUNSI V. THE UNITED NIGERIA MORTGAGE INVESTMENT CO. LTD. (1998) 2 NWLR (PART 536) 95 at 104 and 105.
All the foregoing considerations shall be resolved in favour of the applicant before the judgment can be set aside.
I agree with the learned counsel for the appellants that it is only the second consideration (supra) that could be resolved in favour of particularly the 1st respondent who within two days of the judgment being entered in favour of the appellants filed an application to set it aside, It is essential to note that all the above mentioned considerations relate to or are matters of evidence. Such evidence was available by virtue of the supporting affidavit filed on behalf of only the 1st respondent and the Counter-affidavit filed on behalf of the appellants.
Thus, the 1st respondent based his absence from Court on the fact that he was bed ridden for eight years including the period when the case in point was filed at the High Court of Ogun State holden in Abeokuta. The appellants in their counter-affidavit debunked the averments. The trial Court, on the basis of the affidavit evidence, said particularly at page 107 of the record of appeal that the averments in the affidavit in support of the 1st respondent’s application “have been manifestly disproved and discredited by the averments in the counter-affidavit as to non-service of the copy of the Writ of Summons on the applicant and other processes as well as to medical report on the applicant as to his being bed ridden since 1980 and his incapacity to move about….”
It should he borne in mind that the 1st respondent in seeking to set aside the judgment in point was only urging the trial Court to exercise its discretion in his favour. The reasons advanced by the 1st respondent are by and large replete with falsehood. Can any reasonable Court or tribunal invoke its discretion in favour of an unreliable applicant? I doubt not. It is trite that no reasonable Court or tribunal will exercise its discretion in favour of an applicant who based his request on tissues of falsehood. See OSHUNRINDE V. AKANDE (1966) SCNJ 193. In the instant case, the trial Court ought not to have set aside the judgment because there was no basis for doing so. I accordingly resolve Issue 1 in favour of the appellants.
Issue 2 deals with the interpretation given to Order 14 rule 6 of the 1987 Rules vis-a-vis Order 14 rule 3(i) and Order 27 rule 8(i) under which judgment was entered in favour of the appellants, It Will be elucidating if the provisions of the above mentioned rules are reproduced. Thus, Order 14 rule 3(i), Order 14 rule 6 and Order 27 rule 8(i) of 1987 Rules provide:
(a) Order 14 rule 3(i)-
“Where the action is for recovery of land with or without any other related claim and no appearance is entered within the time limited for appearance, the plaintiff shall be at liberty to have judgment entered for him,”
(b) Order 14 rule 6:
“Where judgment is entered pursuant to any of the preceding rules of this Order it shall be lawful for the Court or a Judge in Chamber to set aside or vary such judgment upon such terms as may seem just.”
(e) Order 27 rule 8(i):
“Where the plaintiff makes against a defendant or defendants a claim of a description not mentioned in rules 2 to 6, then if the defendant or all the defendants (where they are more than one) fail or fails to serve a defence on the plaintiff, the plaintiff may after the expiration of the period fixed as aforesaid for service of the defence apply to the Court for judgment and on the hearing of the application the Court shall give such judgment as the plaintiff appears entitled to on his Statement of Claim.” (Underlining mine for emphasis)
The learned trial Judge considered Order 14 rule 6 of the 1987 Rules (supra) crucial in the determination of the application of the 1st respondent to set aside the judgment in default of both appearance and defence. Despite the naked averments in the affidavits that the 1st respondent’s claim of illness and non service of processes have been disproved by the appellants in their Counter-Affidavit, the trial Judge still held at page 108 lines 5 to 6 of the record of appeal:
“……..I am unconvinced and in utter disagreement, while I accept all the proofs submitted by the respondents in their Counter Affidavit. Notwithstanding my personal view, the provisions of Rule 6 of Order 14 is (sic) crucial in the determination of the application, as it is mandatory in tone and effect and does not allow any discretion on the part of the Court.”
It has already been pointed out that the principles on setting aside judgment in default confer discretion on the Court while considering whether or not to grant any application to that effect. I therefore failed, with due regard to the learned trial Judge of the Court below, to see the basis for the view he held. There is nothing wrong in learned Judge’s bolding personal views but such views shall be within the confines of the enabling law or laws. I also failed to see what is mandatory in the “tone and effect” of the wording of rule 6 of Order 14. It appears to me declaratory rather than mandatory.
There was therefore no basis for the learned trial Judge jettisoning the use of the discretionary power conferred on him while considering the application to set aside the judgment entered in default of appearance and defence. The trial Court should have seriously considered the proceeding rules which allow entering judgment in default and should have been guided by the principle laid down by the Supreme Court on the case of IFEZUE V. MBADUGHA & ANOR. (1984) NSCC 314 at 325 that where there are choices of interpretation, the Court must avoid the choice which would reduce the legislation to futility and should instead accept the choice on the principle that the legislature would legislate only for the purpose of bringing about an effective result. I am of opinion that in the instant case the learned trial Judge should have had recourse to the consideration of Order 14 rule 3(i) and Order 27 rule 8(i) of the 1987 Rules in respect of the application before him. Issue 2 is also resolved in favour of the appellants.
It is pertinent to note that Chief J. Akinbiyi Ojo who was the 1st appellant and two others out of the original six plaintiffs/appellants had since died. He and other surviving appellants brought this in a representative capacity that is to say for themselves and on behalf of Oojabi family of Otta. Despite the demise of those three plaintiffs/appellants the benefit or otherwise of the instant appeal shall accrue to the surviving members of Oojabi family irrespective of their passive participation in this appeal.
In sum, there is merit in this appeal and it is allowed. The judgment in default of appearance and defence made in favour of the appellants is restored. Costs of N4,000 are awarded to the appellants.
Other Citations: (2003)LCN/1412(CA)
