Mohammed Ndejiko Mohammed & Ors V. Mohammed Husseini & Anor (1998)

LAWGLOBAL HUB Lead Judgment Report

WALI, J.S.C.

The plaintiffs, after obtaining leave of the court to prosecute their case in a representative capacity, filed their writ of summons in the High Court of Kwara State holden at Ilorin claiming the following reliefs against the defendants:-

(1) A declaration that the 1st defendant under the age long custom and tradition of Zambufu has no right whatsoever to ascend the throne as the Zhitsu of Zambufu.

(2) A declaration that under the native law the 1st defendant’s family is not a ruling house in Zambufu.

(3) A declaration that the appointment and/or turbanning of the 1st defendant by the 2nd defendant on or about the 12th day of November, 1991 as the Zhitsu of Zambufu is illegal, null and void and or no effect whatsoever as same is against the age long custom and tradition or Zambufu relating to and in connection with the appointment of Zhitsu of Zambufu.

(4) A declaration that the 1st plaintiff is the duly selected and appointed Zhitsu of Zambufu by the majority of Zambufu traditional counsellors or kingmakers in accordance with the custom and tradition of Zambufu relating to and in connection with the selection and appointment of Zhitsu of Zambufu.

(5) An order commanding and/or directing the 2nd defendant to turban or instal the 1st plaintiff as the duly selected and appointed Zhitsu of Zambufu by the majority of Zambufu traditional counsellors or kingmakers.

(6) A perpetual injunction restraining the:-

i. 1st defendant from parading or presenting himself as the Zhitsu of Zamburu;

ii. 2nd defendant, his servants, agents, privies or any person or persons howsoever from recognising, dealing or relating with the 1st defendant as the Zhitsu of Zambufu.”

The 1st and 2nd defendants entered a conditional appearance on 29th November, 1991 and on 7th January, 1992 filed a motion on notice in which the following preliminary objection was raised:-

“for an order striking out the writ of summons for non-compliance with the provisions of Order 5 rule 7 of the High Court (Civil Procedure) Rules, 1989 which provides ‘writ’ of summons shall be printed on opaque foolscap size paper of good quality…”

In a considered ruling delivered by Olagunju J., on 18th March, 1992, he overruled the preliminary objection when he stated thus:

“for the purpose of satisfying the requirement of rule 7 or Order 5 or the Kwara State High Court [Civil Procedure] Rules, 1989 which provides that ‘writs’ of summons shall be printed on opaque foolscap – size paper of good quality it will be sufficient if the writ is produced legibly by a typewriter or any other uniform mechanical process on a thick foolscap size paper a condition which I am satisfied that the present writ of summons amply satisfied.”

The plaintiffs went granted extension or time to file their statement of claim on 15th May, 1992 and same was deemed duly filed and served on the defendants.

On that date the court reminded the defendants that they had (30) thirty days within which to file statement of defence.

The case was then adjourned sine die.

The case came up before the court on 19th November, 1992. On this same date an application under Order 32 rule 15 of the Kwara State High Court [Civil Procedure] Rules 1989 was filed by the plaintiffs requiring the defendants to produce for their inspection and tendering the following document referred to in the plaintiffs statement or claim:-

“( 1) Letter dated 30th August, 1991 from the traditional counsellors or Zambufu to the 2nd defendant.

(2) Letter dated 23rd August, 1991 to the 2nd defendant by the 1st plaintiff herein.”

I take it, the tendering of the two documents referred to above would be on the date next fixed for the hearing of the case.

Then on the same date, i.e. 19th November, 1992, the learned trial Judge, after recording the appearance of “R 1. Otaru for the plaintitfs, plaintiffs present, defendants absent; served through their counsel as per proof of service herein read as Exhibit ‘A’ – ‘A3′”ruled that:-

“I am satisfied on the strength of Exhibits ‘A’ to ‘A3’ that hearing notice of this proceedings were served on the defendants through their counsel as per affidavit of service herein before marked Exhibits ‘A’ to ‘A3′,”

After the preceding ruling, learned counsel for the plaintiffs applied orally under Order 39 rule 7 of the Kwara State High Court [Civil Procedure] Rules, 1989, for leave of the court to prove his case since the defendants had failed to file statement of defence. The court granted the application. He called two witnesses at the end of which he addressed the court. Judgment was then reserved to 20th November, 1992.

On 20th November, 1992, R. I Otaru appeared for the plaintiffs while Wande Obatusin appeared for the defendants. The learned trial Judge delivered his judgment in which he granted all the reliefs prayed for by the plaintiffs in their statement of claim. On 24th November, 1992, learned counsel filed a notice of appeal against the default judgment, and that was barely four days after the judgment. He followed the notice or appeal by a motion on notice filed on the same 24th November, 1992 praying that the plaintiffs/respondents be restrained from presenting the 1st plaintiff/respondent for turbaning or installation by the 2nd defendant/appellant Zhitsu of Zambufu and restraining the 1st plaintiff/respondent from setting in progress the procedure of his appointment and installalion as Zhitsu of Zambufu pending the determination of the appeal lodged against the default judgment.

Then on 26th November, 1992, the defendants through their new firm or solicitors to wit: Saraa Chambers, 38 Ajikobi Road, Omoda, Ilorin, brought an application on notice under rule 9 of Order 37 of the Kwara State High Court [Civil Procedure] Rules, 1988 praying for-

“1. Leave of the honourable court to set aside the judgment given on 20th November, 1992,

2. Leave to grant an extension of time to the applicants to file the statement of defence attached and exhibited herewith and for any order or further orders as this honourable court may deem fit to make in the circumstances,”

It was supported by a 16 paragraphs affidavit and the proposed statement of defence,

On 30th November, 1992, the plaintiffs tiled a notice of preliminary objection to the defendants’ application to set aside the judgment and extension of time to file a statement of defence,

On 4th December, 1998 when the preliminary objection came up for hearing, Alhaji Aliyu Salman SAN of Saraa Chambers appeared for the defendants/applicants while R. I. Otaru Esq., announced his appearance for the plaintiffs/respondents and before Mr. Otaru started arguing his preliminary objection, a letter dated same 4th December, 1988 from the firm of Wande Obatusin & Co. was read in open court in which Wande Obatusin & Co. informed the court that they had withdrawn from the case. Mr. Otaru took objection to the withdrawal and the appearance of Saraa Chambers in place of Wande Obatusin & Co. on grounds that there was yet no formal withdrawal by the latter and that a copy of the said letter was not sent to him for his comments.

The preliminary objection along with the objection against the appearance of Saraa Chambers were argued. On 2nd February, 1993, the learned trial Judge delivered a considered ruling in which he overruled the preliminary objection against the application to set aside the default judgment as well as the objection against the appearance of Saraa Chambers.

Due to unavoidable circumstances as evidenced in the record of proceedings, the motion filed by the defendants/applicants were not argued until on 11th March, 1993.

Before that date, learned counsel for the plaintiffs/respondents had filed counter-affidavits in opposition to the defendants/applicants’ motion; and had also filed a notice on 3rd March. 1993 urging the Court of Appeal Kaduna to affirm the decision of the trial court on other grounds to wit –

“(1) That the respondents herein having regard to the provisions of Order 27 rule 8(1) of the Kwara State High Court (Civil Procedure) Rules 1989 do not require the filing of a motion for judgment in default of defence as the respondents’ reliefs relate to claims other than those specified under Order 27 rule 2 and Order 6 of the said Rules of court.

(2) That the respondents’ claims being declaratory in nature, did not require the filing of a motion for judgment in default of defence:’

As I said earlier, the defendants/applicants’ motions were argued on 11th March, 1993 after which ruling on same was reserved to 16th April, 1993

In a considered ruling delivered by Olagunju, J., he granted the application as prayed, set aside his default judgment of 20th November, 1992 and granted the defendants/applicants’ prayer “upon all costs awarded against them being paid within 21 days from today, to tile their statement of defence.”

Aggrieved by the decision of the learned trial Judge referred to (supra) the plaintiffs lodged an appeal to the Court of Appeal, Kaduna. The notice of appeal was dated 28th April, 1993 and filed in court on the same date.

It is to be noted that before the appeal was entered in the Court of Appeal, Saraa Chambers and Co, had applied to the trial court for leave to withdraw its appearance for the defendants, Leave to withdraw from the case was granted to Saraa Chambers on 27th May, 1993 and from then it appeared from the later proceedings that the defendants’ case was handled by the Attorney-General of Kwara State.

Parties filed and exchanged briefs of arguments and after oral hearing of learned counsel in elaboration of their respective briefs, the Court of Appeal delivered its considered judgment on 30th September, 1994. Opene J.C.A. prepared and delivered the lead judgment with which both Okunola and Mahmud Mohammed JJ.C.A. agreed. He dismissed the appeal and affirmed the ruling of the trial court.

Still aggrieved by the judgment of the Court of Appeal, the plaintiffs have now further appealed to this court.

In compliance with rules 5(1) and (2) of Order 6 of Supreme Court Rules 1985 [as amended] parties filed and exchanged briers of arguments.

Henceforth, the plaintiffs and the defendants will be referred to as the appellants and the respondents respectively.

In the brief filed by the appellants the following two issues have been raised for consideration by this court:-

“(i) Considering the circumstances of this case, whether the Court of Appeal was right in upholding the decision of the trial Judge setting aside the earlier judgment delivered by him on 20/11/92. Particularly when the appeal filed by the appellants (now respondents) and the respondents’ were/are subs1sting and/or not withdrawn – grounds 1, 2, 3 and 5.

(ii) Whether it is compulsory or even necessary to serve hearing notices all a party who is already represented by counsel when such notice has been served on the said counsel – ground 4.”

The Hon. Attorney-General of Kwara State tiled respondent’s brier to the 1st and 2nd respondents only and in which he raised the following two issues:-

“(1) Whether or not the trial court had jurisdiction to set aside its own judgment given in default of defence and against which only notice of appeal had been filed, but against which an appeal had been entered.

2. Whether considering the circumstances of this case the Court of Appeal was right to have upheld the setting aside of a judgment delivered against the respondents sought and obtained in default of defence and appearance.”

The issues formulated by the appellants have adequately covered the respondents’ issues and so in deciding this appeal I shall adopt the appellants’ issues as framed in their brief.

The gravamen of complaint in this appeal is against the exercise of discretion by the learned trial Judge wherein he set aside the default judgment he entered in favour of the appellants against the respondents. It was the submission of learned senior counsel for the appellants that having delivered his judgment after the appellants had called evidence in proof of their case, the trial Judge became functus officio to set aside his judgment; more so when the respondent had filed a notice of appeal against the judgment and the appellants in response to that had also filed notice of intention to contend that the judgment be affirmed on other grounds. Learned counsel drew the attention of the court to note that at the material time the application to set aside the judgment was considered and granted, both the appeal tiled and the notice of intention to contend that the judgment be affirmed on other grounds were subsisting before the trial court having same not been withdrawn in accordance with the rules of the court. He submitted that the only thing the trial Judge could lawfully do in the given situation was to correct clerical or typographical errors, if any, in the judgment, but not to set it aside. Learned counsel further urged this court to note that at the time the judgment was set aside the order of the court had been drawn up and enrolled, hence the inherent jurisdiction of the court could not be used to set it aside. He cited in support Asiyanbi & ors v. Adeniji (1967) NSCC 81 at 85; Ogbu v. Urum (1981) 4 SC 1 at 2; Chukwuka v. Ezulike (1986) 12 SC 246; (1986) 5 NWLR (Pt.45) 892; Agbenyi v. Aba (1994) 7 NWLR (Pt.359) 735 at 749; Ogunbadejo v. Owayemi (1993) 1 NWLR (Pt.271) 517 at 531 and L.C.C. v. Ajayi (1970) 1 All NLR 291 at 269-297. Sections 219 & 220 of the 1979 Constitution were also cited and relied upon in support of the contention that the learned Judge was wrong to set aside the default judgment.

On the question of withdrawal of the appeal learned counsel argued that in the given situation the rules of tile trial court did not provide for it, particularly when there is a notice of intention to contend that the judgment be confirmed on other grounds. He referred to Order 3 rule 18(1), (2) and (4) and Order 1 rule 22 of Court of Appeal Rules. 1981 and the decisions in Okafor v. Attorney-General of Anambra State (1991) 6 NWLR (Pt.200) 659 and Ogunremi v. Dada (1962) 2 SCNLR 417; (1962) 1 All NLR (Pt.4) 663 at 668 and urged the court to answer issue 1 in the negative.

On issue 2 it was the submission of learned counsel for the appellant that where a party is represented by a counsel, there is no rule of practice or procedure which makes it mandatory for hearing notices to be served on parties and their counsel co-jointly and or simultaneously and that service on the counsel is tantamount to service on the party he represents. He submitted that in this case the effect of service of hearing notice on Wande Obatusin & Co. that the case was corning up on 19th November, 1992 for hearing was deemed in law to be a notification to the respondents that the case was coming up for hearing on that date Ogunbiade v. Ogunbunmi (1967) 1 All NLR 306 at 309 and Shahimi v. Akinola (1993) 5 NWLR (Pt.294) 434 at 447 and l1st of others.

He finally submitted that the circumstances in the case did not warrant the grant of the court’s indulgence in the respondents’ favour to set aside the judgment. He urged that issue 2 also be answered in the negative and that the appeal be allowed.

In reply to submissions on issues 1 and 2 of the appellants brief, learned counsel for the respondents submitted that the court is vested with the statutory as well as inherent power to set aside its own default judgment and in support he cited and relied on Order 37 rule 9 of the Kwara State High Coun [Civil Procedure] Rules, 1989 and Sanusi v. Ayoola (1992) 9 NWLR (Pt.265) 275; (1992) 11/12 SCNJ (Pt.11) 142 at 154. He said it was wrong of learned counsel for the appellants to limit the power of the court to set aside its judgment to the principles stated in that case. He submitted that learned counsel for the appellants was wrong in making the submission supra without taking into consideration the provisions of Order 37 rule 9 and Order 27 rule 10 of the Kwara State High Court [Civil Procedure] Rules 1989. Learned counsel further submitted that they were absent from court on 19th November, 1992 as they had no notice of hearing against that date.

As regards the filing of the notice or appeal against the default judgment by the respondents, learned counsel referred to the judgment of the Court of Appeal on the issue and the Supreme Court decision in Okafor & ors v. Attorney-General Anambra State & Ors. (1991) 6NWLR (Pt. 200) 659, particularly at 671 paragraph and contended that the appeal was yet to be entered in the Court of Appeal, hence the trial court had still jurisdiction to deal with the matter. He said once the trial court sets aside a default judgment, as in this case, the notice of appeal filed becomes obsolete and becomes abandoned constructively and by implication and the notice of contention to support the judgment on other grounds becomes of no effect. The decision in Ezomo v. Attorney-General Bendel Stare (1986) 4 NWLR (Pt. 36) 448 at 489 was cited and relied upon.

On the issue relating to why the default judgment was set aside, it was the submission of learned counsel for the respondents that both the trial court and the Court of Appeal were satisfied that the manner in which the firm of solicitors of Wande Obatusin & Co handled the respondents’ case left much to be desired, particularly when the appellants had conceded that the respondents were not personally served with the hearing notice leading to the default judgment. He urged the court to confirm the decisions of the trial court and the Court of Appeal being concurrent findings of fact which the appellants had failed to fault.

The gravamen of complaint in this appeal is the confirmation by the Court of Appeal of the trial court’s decision in which the latter set aside its ex-parte judgment handed out on 20th November, 1992. There is plethora of authorities both local and foreign that a judgment delivered in the circumstance in which the trial court delivered its own on 20th November, 1992 is a default judgment. See Sanyade v. Osagie (1965) NNLR 205 [a High Court judgment]; Grisby v. Jubwe 14 WACA 637 and U.T.C. Nig. Ltd. v. Pamotei (1989) 2 NWLR (Pt.I03) 244; (1989) 20 NSCC (Pt.1) 523 at 549. The judgment so entered remains valid until it is set aside by the trial court or on appeal.

In the present case, the learned trial Judge delivered judgment in favour of the appellants after explanation of the absence of learned counsel for the respondents on the date the case was fixed for hearing. On 20th November, 1992, the day the judgment was delivered, learned counsel for the respondents was in court. Immediately thereafter, counsel for the respondents filed, on 24th November, 1992, a notice of appeal in the trial court against the judgment before they were disengaged by respondents. Then on 26th November, 1992 an application to set aside the judgment and to extend time to file statement of defence was filed by new firm of solicitors engaged by the respondents to wit Saraa Chambers & Co. This was the last day allowed by the rules for the filing of such application. Against this application counsel for the appellants filed a notice of preliminary objection on 30th November, 1992 in which he raised the following grounds:-

(a) that the firm of Wande Obatusin & Co. have not formally withdrawn their appearance in this case;

(b) that Saraa Chambers cannot be heard in this case as a result of paragraph (a) above/supra.”

The preliminary objection was argued on 4th December, 1992 and a considered ruling was delivered by the trial Judge in which he overruled the preliminary objection, on the face of Exhibit B – a letter written by Wan de Obatusin & Co. and dated 4th December. 1992 notifying [he court of their formal disengagement from the case and allowed Saraa Chambers to appear and represent the respondents.

Before the application to set aside the judgment was argued, learned counsel for the appellants filed, on 10th March, 1993, a notice of intention to could that the judgment be affirmed on other grounds.

On 11th March, 1993, the application to set aside the default judgment as well as to extend the time to file statement of defence was argued. In a reserved ruling delivered by the learned trial Judge on 16th April, 1993, he granted the application, set aside the default judgment and granted to the respondents leave to file their statement of defence on condition that they paid all the costs awarded against them within 21 days from the date of the ruling.

I have no hesitation in agreeing with both the trial court and the Court of Appeal that the judgment of Qlagunju J. delivered on 20th November, 1992 is a default judgment as it was delivered in the absence of filing a statement of detence and non-appearance of defence counsel at the hearing. See U.T.C. Nig. Ltd. v. Pamotei (1989) 2 NWLR (Pt.103) 244; (1989) 20 NSCC (Pt.1) 523 at 549, and Order 37 rule 9 of the Kwara State High Court [Civil Procedure] Rules, 1989 which provides thus-

“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.”

I take the word, “within six days after the trial” to mean within six days of the delivery of the default judgment.

The next important issue is to decide whether the learned trial Judge was right in setting aside his default judgment and allowing the respondents to tile their statement of defence. The principle is that unless and until the court pronounced a judgment on merit or by consent it retains the power to set aside its own default judgment. The power to do so is discretionary which has to be exercised judiciously, guided by the following principles pronounced by this court in Williams & Ors v. Hope Rising Voluntary Funds Society (1982) 1-2 SC 145:

1. the reasons for 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 party 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; and
5. whether the applicant’s conduct throughout the proceedings, that is, from the service of the writ upon him to the date of judgment, has been such as to make his application worthy of a sympathetic consideration.

See also Idam Ugwu & ors v. Nwaji Aba & ors (1961) 1 All NLR 438: Adebayo Doherty v. Ade Doherty (1964) NMLR 144 at 145; Momah v. Gulf Insurance Corporation (1975) 1 NNLR 184 at 186; Khawani v. Elias (1960) SCNLR 516; (19150) 5 F.S.C. 224 and Evans v. Bartlam (1937) 2 All ER 646 at 650.

In support of the application learned counsel for the respondents filed a 25 paragraph affidavit sworn to by one Ostin Robert Agon a legal practitioner working in Saran Chambers and a proposed statement of defence. In paragraphs 4, 5, 6, 7, 11 and 12 it was deposed as follows:-

“4. That the applicants brought to me a copy of the judgment delivered by the hon. court on 20th November, 1992.

5. That the applicants confessed that they were not in court on the day the plaintiff testified and their counsel was also absent from the court and I verily believe them.
6. That the applicants told me and I verily believe them that on 15th May, 1992 a favourable ruling was delivered on an interloculory injunction brought against them by the respondents and a copy of the ruling was given to me.
7. That the applicants told me and I verily believe them that they were not aware that a defence to their case was not tiled.
8. That the applicants told me and I verily believe them that they have no means to know that a statement of defence was not filed on their behalf after the ruling of the court on the interlocutory injunction.
9. That the applicants told me and I verily believe them that they are prepared and willing lo give an undertaking to defend their right diligently and quickly if the court grants this application.”

In the proposed statement of defence in paragraphs 4, 5, 6, 7, 8, 11 and 13 thereof, the following facts were averred:-

“4. The 1st defendant was appointed the Zhitsu of Zambufu by the 2nd defendant in accordance with the customary (sic) and tradition of Zambufu on 12th November, 1991.

5. The 1st defendant is from one or the ruling houses and that the 2nd defendant who is the appointing authority is not bound to consult anybody before he made the selection and appointment to the post of Zhitsu of Zambufu.
6. The defendants deny the existence of any organ known as the Traditional Counsellors who would select a candidate for the vacant post or Zhitsu.
7. The 1st defendant says that his appointment as Zhitsu was ratified by Edu Traditional Council at a meeting held in Patigi on 6th November, 1991.
8. The defendants will give evidence of the custom and tradition of Zambufu under which the 1st defendant was the most competent of all the candidates who vied for the appointment of the Zhitsu.
9. The defendants put the plaintiffs to the strictest proof of whether the selection to the office of Zhitsu of Zambufu is vested in… anybody other than the Emir of Lafiagi.
10. The defendant will put the plaintiffs to the strictest proof of the inception and composition of the Zambufu Traditional Counsellors or Kingmakers that the plaintiffs claim in their statement of claim to have existed.”

In a counter-affidavit sworn to by Mohammed M. Mohammed, the 1st plaintiff/appellant in opposition to the defendants/respondents’ motion, he deposed to the following facts for himself and the other plaintiffs/appellants:-

“9. That on the same 15th May, 1992, one C. O. Abazu Esq from the Chambers of applicant herein when R. I. Otaru, Esq. of counsel moved the respondents motion on notice to file the respondents’ statement of claim out of time.

10. That this honourable court granted the motion on notice to file the respondents’ statement of claim out of time as duly filed and served with the award of N25.00 costs in favour of the application.
11. That this honourable court on the same 15th May, 1992 reminded the applicants through their counsel of their duty to file their statement of defence within 30 days from ]5th May, 1992 if they wished to.
12. That the applicants did not file any statement of defence whereupon counsel applied for the setting down of case for hearing after the expiration of the time within which to do so.
13. That the period of 30 days within which the applicants ought to have filed their statement of defence expired on the 16th day of June, 1992 beginning from the 15th May, 1992.
14. That this honourable court pursuant to the respondents’ counsel application to set down the case for hearing set same down for hearing vide hearing notices to all the counsel for the 19th day of November, 1992.
15. That neither the applicants nor their counsel appeared on 19th November, 1992 before this honourable court at the hearing of the substantive case.
16. That neither the applicants nor their counsel gave any excuse for their non-appearance on 19th November, 1992 inspite of the service of the hearing notice on them.
17. That this honourable court satisfied on the face of the affidavit of service of the hearing notice on the applicants through their counsel granted our counsel’s prayer that we should prove our case.
18. That on the said 19th November, 1992, the respondents proved their case and judgment was delivered on 20th November, 1992.
19. That I know as a fact that the judgment of this honourable court delivered on 20th November, 1992 was not irregularly or fraudulently obtained by the respondents herein.
20. That since the beginning of this case, the applicants have never been present in court.
21. That even on the 20th November, 1992, Wande Obatusin, Esq, was present when judgment was delivered and even strenuously argued the issue of costs.
22. That the applicants and their counsel knew when the case was fixed for hearing but chose to be absent.
23. That the other respondents and I shall be greatly prejudiced or embarrassed if the judgment of this honourable court delivered on 20th November, 1992 is set aside.”

The learned trial Judge, after listening to oral arguments presented by learned counsel on each side and the affidavit and the counter-affidavits, delivered a considered ruling on 16th April, 1993 in which he made the following findings:-

“1. That …it is beyond all peradventure that a judgment given against a defendant who failed to file his statement of defence or appear on the date set for hearing of the case, as in the proceedings under review, is a default judgment per excellence.

2. The argument does not address itself to the provisions of rule 22 of Order 1 of the Court of Appeal Rules, 1981, which is mutually complementary to Order 3, rule 5, and which provides for the point when the jurisdiction of the trial court on a matter against which an appeal has been filed is excluded. In particular, it failed to address itself to the distinction between the phrase ‘deemed to have been brought’ in rule 5 of Order 3 on which he hinges his argument and the corresponding phrase ‘has been entered’ in rule 22 of Order 1 of the same Rules. The two phrases are not synonymous and the phrase ‘appeal has been entered’ has been interpreted to imply a reference to a point during the processing of an appeal when the record of appeal has been received by the Court of Appeal and entered in the cause list: see Coker v. Adeyemo (1965) 1 All NLR. 120, 123. That, in my view, is the point in time when, within the purview of rule 22 of Order 1, the court became ‘seized of the whole of the proceedings’ and the jurisdiction of the trial court on post-judgment proceedings is finally ousted.
3. Equally misconceived is the proposition of law by the learned counsel that a High Court has the jurisdiction to set aside only a judgment that is a nullity or one which is obtained by fraud. The proposition is not borne out by the cases cited by the learned counsel.

Therefore, the discretion vested in this court by rule 9 of Order 37, rule 10 of Order 27 and other kindred provisions of the Rules of this court to set aside its judgment given in the circumstances therein described is not ousted by the fact that an appeal has been filed against such judgment nor does a judge become functus officio after rendering such a judgment.

4. Secondly, judging by the time lag between the judgment which was given on 20th November, 1992 and the tiling of this application on 26th November, 1992, the 6th and last day of the time allowed for bringing the application going by the cross-application of rule 9 of Order 37 and sub-rule 1 (a) of Order 22 or the Rules of this court. I am satisfied that the applicants acted with dispatch considering that there was a change of counsel during the interval.
5. Thirdly, apart from the respondents’ lament that the reopening of this case would stall the civic progress that has taken place in their community since the declaration of the 1st respondent as the Zhitsu of Zambufu and a assessment that rests on the respondents ipse dixit, there is no evidence from where I can infer that any embarrassment or prejudice would attend the reopening of the case:”
6. I have no reason to suppose that the applicants’ claim is hopeless or were generated during the interlocutory application which straddled the frontier of the substantive action.”

Before the Court of Appeal, the following 3 issues were raised by the appellants in their brief of argument:-

‘i. Whether having delivered his judgment on 20th November, 1992 and with the combined provisions of sections 219, 220 of the 1979 Constitution of the Federal Republic of Nigeria [as amended] and Order 3 rule 5 of the Court of Appeal Rules 1981 [as amended], the lower court became functus officio in respect of this suit.

ii. Whether the learned trial Judge was right in his application of the provisions of Order 1 rule 22 of the Court of Appeal Rules, 1981 [as amended]

iii. Whether it was necessary to serve any subsequent court process on the respondents personally when they had briefed a counsel who appeared for them”

In the unanimous judgment of the Court of Appeal delivered by Opene, J.C.A., he answered the issues as follows:-

“1. It can be seen that the learned trial Judge in a well considered ruling applied the provisions of Order 27 rule 10 and Order 37 rule 9 of High Court of Kwara State [Civil Procedure] Rules which of court seem powers him to set aside a default judgment and also the provisions of Order 1 rule 22 of Court of Appeal Rules 1981 as he found that even though there is a pending appeal but the Court of Appeal is not seized of the matter as it has not been entered in the Court of Appeal.”

2. As regards the issue raised in both respondents’ brief and the appellants’ reply brief, whether appellant can abandon his appeal, Order 3 rule 18(1) to rule 18(5) specify the mode and manner in which an appeal can be withdrawn but all the same, the issue of withdrawing or abandoning an appeal does not arise in this matter. There is a pending appeal which has not been entered in this court.

However, if there is a pending appeal and the appellant fails to pursue it by seeing that the record of proceedings is sent to the Court of Appeal, this court can strike out the appeal or even dismiss it under Order 6 rule 10 of the Court of Appeal Rules.

3. The provisions of Order 12 rule 1 is very clear. Service of all court processes on a counsel is a good service on his client except where personal service is required.

In the instant case, on 15th May, 1992 the learned trial Judge adjourned the case sine die and I think that this is where the problem in this case started because if the matter was adjourned to a definite date and the respondents and their counsel did not rum up and the appellants were asked to prove that case, the matter would have been different.”

“A counsel that is served with a hearing notice, who does not go to court on the hearing date and who also does not bother to pass such an information to his diem or writes to the court that the could not come to court, will not be said to be acting in the interest of his client. It will therefore be wrong to punish the respondents for the conduct of their counsel.

It is settled that a party should not be held responsible for the mistake of his counsel. See. Ibodo v. Enarofia (1980) 5-7 SC 42; Nneji v. Chukwu (1988) 3 NWLR (Pt.81) p. 184; Nwankwo v. Nwankwo (1993) SCNJ (Pt.1) 84: (1993) 5 NWLR (Pt.293) 281. The learned trial Judge in a very considered ruling dealt very extensively with all the issues raised in this matter and he held that the judgment was a default judgment and therefore a judgment obtained on technicalities and rightly observed that the law generally leans against technical justice as against judgment obtained on the merits.

Finally, he held that he was satisfied that the respondents are entitled to the exercise in their favour of the discretion of the court and he thereupon set aside the judgment and ordered that the matter be restored to the cause list.

It is also settled that this court will not disturb the decision of a lower court in the exercise of the court’s discretion unless it was wrongly exercised.

In the instant case, it has been shown that the respondents’ counsel who was served with hearing notice did not come to court and that he also did not inform the respondents of the hearing date. I am therefore of the view that the learned trial Judge exercised his discretion rightly and that there is no cause to disturb his findings.”

After making the findings supra, the Court of Appeal dismissed the appeal.

The question of selling aside a default judgment is a discretionary power inherent in the court that delivered it. In the present case the court has the additional statutory power conferred on it by the Rules which I have already alluded to.

In the counter-affidavit filed by the appellants in opposition to the application to set aside the default judgment, it was deposed in paragraphs 13 and 14 that pursuant to the appellants’ application to set down the case for hearing in the absence or tiling a statement of defence, the learned trial Judge granted same and set down the case for hearing on 19th November, 1992. I have searched through the records of proceedings compiled, but cannot trace such application. What I saw on this issue is recorded on page 112 of vol. I of the record of proceedings as follows:-

“Otaru: Having regard to the fact that the defendants have been duly served, I am applying under Order 37 Rule 7 of the rules of this court for leave to prove the plaintiffs’ case. To this end I am calling 2 witnesses.”

The learned trial Judge in a short ruling granted the application having been satisfied that ‘”Exhibits ‘A’ – ‘A3′” the hearing notice of this proceeding were served on the defendants through their counsel:-

“…I am satisfied that prima facie they have no reasonable cause to be absent from the court this morning considering the fact that the hearing notice was served on them since 15th July, 1992 as per affidavit of service Exhibits ‘A’ – ‘A’3″.

Exhibits ‘A’ – ‘A’3″ have not been made part of the record” The record did not also contain a copy of the drawn up order following the delivery or the judgment, which learned counsel for the appellants referred to. This apart, it appears to me that the application to proceed with the hearing of the case and to prove same was made orally on 19th November, 1992 and granted on the same date. The respondents were not served with the hearing notice for the appellants to prove the case on that date.

In my view, the proper thing for the trial court to do was to adjourn the case to another date for proof and to put the other counsel on notice of the new date, particularly when the previous time the parties appeared in court on 15th May, 1992, the case was adjourned sine die. The default judgment could have been set aside even on this ground. See Okafor & ors v. Attorney-General of Anambra State & ors. (1991) 6 NWLR (Pt. 200) 659 where the Court of Appeal set aside its own judgment on application by the defendants when it considered the appeal on the briefs filed by the parties ahead of the lime fixed for the hearing of the appeal. On appeal against the Court of Appeal setting aside its own judgment delivered in the circumstance stated supra, this court dismissed the appeal and stated –

“Where the Court of Appeal has adjourned hearing of an appeal to a particular date but delivers judgment before such hearing date fixed, even where briefs having been filed, such a judgment delivered is irregular having been given prematurely and is entitled to be set aside as an infringement of the constitutional right to fair hearing. In the instant case the judgment of the Court of Appeal delivered on 11th April, 1988 before the hearing date of 14th June, 1988 was irregular, having been given prematurely,”

I have gone through the cases cited and relied upon by learned senior counsel for the appellants and have found none to be apposite or helpful to his case.

The inherent jurisdiction of a court is adjunct to powers countered on it by the rules, and in a proper case the court will exercise the power. An application to the court to set aside its default judgment is prima facie not an abuse of process, even where the applicant has filed a notice of appeal, provided that the appeal has not been entered in the appellate court. See Ogunremi v. Dada (1962) 2 SCNLR 417; (1962) l All NLR (Pt.4) 663 at 668 and Okafor & ors v. Attorney-General of Anambra State & ors (supra), or an order to them effect has been drawn up: See Bockelmann v. Nwaehi (1965) 1 All NLR 112.

In the present case, neither the appeal was entered in the Court of Appeal nor was the court order on the default judgment drawn up prior to its being set aside by the trial court.

The reasons and circumstances why the judgment was set aside was fully explained in the ruling of the trial court which was justifiably affirmed by the Court of Appeal.

The question that the respondents had elected to proceed by way of an appeal against the default judgment did not arise as it was not made an issue before us; nor did we invite learned counsel to address us on it.

I shall therefore dismiss the appeal for the following summarised reasons:-

1. The fact that there was a notice of appeal filed in the trial court and pending, would not bar or render the trial court functus officio to hear the application as the appeal had not been entered in the Court of Appeal.
2. When the trial court granted the application to set aside the default judgment, the notice of appeal pending in that court became impliedly or constructively abandoned.
3. There was no drawn up order related to the default judgment.
4. It is not in all cases where a party is legally represented that his appearance in court is mandatory or services of the court processes on him. Each case will depend on its own facts and circumstances. In the present case learned counsel for the appellants would have been well advised if he had applied for an adjournment to enable fresh hearing notice be served on the respondents putting them on notice of a new date for hearing, in order to avoid the situation in which he found himself.
5. There is concurrent findings of both the trial and the appellate courts which have not been shown to be wrong or perverse to warrant interference by this court.

The appeal fails in toto and it is dismissed by me with N10,000.00 costs to the respondents.

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SC.233/1994