Mr. Allwell Ohajunwa & Anor V. Chief Sampson Obelle & Aonr (2007)
LawGlobal-Hub Lead Judgment Report
SULEIMAN GALADIMA, J.C.A.
The respondents herein sued the appellants as defendants at the Port Harcourt High Court of Rivers State, jointly and severally for the sum of N30,000,000.00(Thirty Million Naira) being and representing aggravated damages for acts of false imprisonment by the appellants by directing and procuring the police to arrest and detain the respondents on two occasions for the same allegation of hiring seven assassins to kill the appellants which allegation the appellants ought to have known to be false.
On 15/5/1995, the learned trial Judge Olukole (J) entered judgment against the appellants in favour of the respondents based on their statement of claim without hearing evidence, relying on Order 17 rule 4 of the High Court (Civil Procedure) Rules 1987 and aggravated damages in favour of the respondents in the sum of N6.000.000.00 (Six Million Naira).
On 9th March 1999, the learned trial Judge dismissed a motion on notice to set aside the default judgment and assessment of damages.
Being dissatisfied with the default judgment and ruling dismissing the motion on notice to set aside the default judgment appellants filed a notice of appeal on 12/3/1999 containing two grounds with their particulars reproduced as follows:
“(i) The learned trial Judge erred in law by failing to uphold on totality of the materials before him that the breach of the audi alrerm (sic) partem rule had resulted in a violation of the appellants’ constitutional right to fair hearing in relation to the default judgment sought to be set aside.
Particulars of Error in Law
(a) The appellants’ chief complaint was that they were not served with the writ of summons or the statement of claim.
(b) The trial Judge on 28th February, 1995 adjourned the case to 15th May, 1995 for hearing and ordered hearing notice to be issued on the appellants.
(c) The hearing notice was not issued and served on the appellants as ordered by the trial Judge till the 15th May, 1995, the date fixed for hearing.
(d) The trial Judge resort to relying on an affidavit of service without an endorsement as to the mode of service and entered judgment against the defendants without confirming service of the hearing notice ordered to be served on him.
(e) It is a denial of the right to fair hearing to hold that the appellants do not need to be served any hearing notice.
(f) The appellants can enter an appearance if they were served with the writ of summons.
(ii) The learned trial Judge erred in law in failing to exercise his discretion judicially by upholding the appellants’ prayer which sought to set aside the default judgment in light of materials before the court.
Particulars of Error in Law
(a) The trial Judge entered judgment against the appellants on May 15, 1995 without hearing evidence under Order 27 rule 4 of the Rules of High Court.
(b) The hearing of evidence as to the quantum of damages took the trial Judge over three years to take the sole witness and over nine adjournments to conclude on 22nd July, 1998.
(c) That the appellants can not apply to enter an appearance or file a defence after the judgment by virtue of the provisions under Order 5(1) of the Rules of the High Court.
(d) Under Order 27 rule 4 of the Rules of the High Court provides for a judgment which is final at the conclusion of evidence as to the quantum of damages which is part and parcel of the judgment.
(e) Application to set aside the judgment can only be made at the conclusion of the assessment of the damages.
(f) The appellants can not be held responsible for an undue delay in bringing the application to set aside the default judgment.
(g) It is not enough to hold that the proposed statement of (sic) lacks merit without more in an application such as this.
(h) As to the conduct of the appellants throughout the trial there was no counter-affidavit to show the alleged deliberate lack of interest in the proceedings as held by the trial Judge.”
Appellants not satisfied with the two grounds brought a motion on 2/3/2006, seeking leave of this court “to amend the grounds of appeal” by filing two additional grounds of appeal. These will be considered below. It was also prayed that time be extended to the appellants to file their brief of argument. Both prayers were granted and deemed validly filed. From their four grounds of appeal, appellants have formulated four issues for determination of the appeal as follows:
“1. Whether the right of fair hearing of the appellants was not breached by the learned trial court when he entered judgment and dismissed the first application of the appellants to set aside the default judgment.
- Whether the learned trial Judge has right in holding the appellants liable jointly and severally for acts of false imprisonment as pleaded in the statement of claim.
- Whether the learned trial Judge exercised his discretion judicially when he failed to set aside the default judgment in the light of material evidence before the court.
- Whether the award of N6, 000, 000.00 (Six Million Naira) as aggravated damages made in favour of the respondents was entirely erroneous estimate in law and/or manifestly high or extremely too high.”
On the part of the respondents, the following two issues were raised for determination of the appeal:
“1. Whether from the whole circumstances of this case, the appellants’ right to fair hearing was breached.
- Whether the learned trial Judge exercised his discretion judiciously and judicially when he dismissed the appellants’ application to set aside the judgment.”
The respondents have raised a preliminary objection on all the four grounds of appeal. The crux of the objections of the respondents is as follows:
“(a) That the appeal is against the refusal of the trial Court to set aside its default judgment which refusal borders on the exercise of the court’s discretion.
(b) Being an appeal against the exercise of the trial court’s discretion, prior leave of the trial Court of the Court of Appeal ought to be sought and obtained before the notice of appeal is filed.
(c) The additional grounds of appeal filed by the appellants did not arise from the decision of the lower court appeal against.
(d) Furthermore, appellants rendered arguments in their brief of argument for the proposed additional grounds of appeal before the leave of this Honourable Court was sought and obtained.
(e) The additional grounds of appeal and the issues distilled from them are incompetent.
(f) The Court of Appeal has no jurisdiction to deem the additional grounds of appeal as having been properly filed and served.”
Appellants filed reply brief in reaction to the respondents’ preliminary objection.
On 20/9/2007, this appeal came up for hearing, Both counsel for the parties identified their respective briefs and adopted them. I will consider the preliminary objection raised by the respondents to the competence of the notice of appeal filed by the appellants. The argument of learned counsel for the respondents on the preliminary objection is incorporated in the respondents’ brief. It is submitted that the refusal of the trial court to set aside its judgment on the exercise of judicial discretion of the Court, and that the grounds of appeal challenging the judicial discretion being a ground of mixed law and fact, leave of either the trial Court or this Court must be obtained. It is submitted that failure to obtain such leave renders the notice of appeal and the grounds therein incompetent. Reliance was placed on the cases of Khalil v. Yar’Adua (2003) 16 NWLR (Pt. 847) p. 446 at p. 458, Mohammed v. Olawunmi (1990) 2 NWLR (Pt. 133) p. 458 at 479 para. E-H, Chudi Akunyili v. Idemili Ejidike & Ors. (1996) 4 SCNJ 252 at 254 ratio 15; (1996) 5 NWLR (pt. 449) 381.
It is further submitted that the additional grounds of appeal filed by the appellants did not arise from the ruling of the trial Court appealed against. It is submitted that since the additional grounds of appeal did not arise from the ruling of the trial Court appealed against, the issues formulated on those grounds and the arguments in support of those issues are incompetent. Reliance was placed on the following cases: Osahon v. FR.N (2003) 16 NWLR (Pt. 845) P. 89 at 103 ratio 17; International Offshore Const. Ltd. v. SLN. Ltd. (2003) 16 NWLR (Pt. 845) P. 157 at 165; Saraki v. Kotoye (1992) 9 NWLR (Pt. 264) p. 156 and Macfoy v. UA.C. (1962) A.C. 152.
Learned counsel for the appellants. A. J. Jamabo Esq. in his reply brief submitted that where there is a decision refusing to set aside a default judgment that judgment refusing to set aside the judgment is a final judgment.
I have earlier above reproduced the first two original grounds of appeal filed by the appellants with their particulars. The two additional grounds of appeal with their particulars reproduced hereunder are as follows:
“1. The learned trial Judge erred in law when he entered judgment against the defendant jointly and severally for various acts of false imprisonment stated in the plaintiff’s’ statement of claim, when same does not disclose the elements of the tort of false imprisonment.
Particulars of Error
1) The statement of claim of the plaintiffs did not show that the police acted outside their authority and upon the direct instructions and control of the appellant.
2) The defendants cannot be held liable for the action of the police which moved in exercise of its duty to protect life and property.
3) The mere complaint simpliciter does not constitute the tort of false imprisonment.
4) From the statement of claim of the plaintiffs, the information on the felony was given by an informant – one Charles Okpala who was then in police custody.
5) That the defendants have good cause and reasonable suspicion for reporting to the police.
- The learned trial Judge erred in law when he wrongly awarded the sum of N6,000,000.00 (Six Million Naira) jointly and severally against the defendants as aggravated damages for false imprisonment which is manifestly too high in the circumstance and/or an erroneous estimate in law.
Particulars of Error
1) The defendants cannot be held liable for false imprisonment for making a genuine report to the police based on information given by an informant who was in police custody at the instance of the defendants.
2) There was no evidence whatsoever before the trial Judge that the report by the defendants to the police disclose any malice, cruelty, insolence, or flagrant disregard of the law and the like.
3) The trial Judge arrived at the wrong, conclusion that the police found the defendants’ allegation of assassination false, when there was no such report from the police nor were the defendants charged to court for giving false information to the police.
4) Aggravated damages are compensatory for wounded feelings and the evidence of the 2nd plaintiff cannot cover the 1st plaintiff who gave no evidence at all.
5) The plaintiffs did not lead any evidence on the pecuniary loss of business within the purported twenty (20) hours they were invited for interrogation by the police nor specify loss suffered in their evidence or claim same in the statement of claim.”
I will determine whether the appellants’ grounds of appeal are one of facts, mixed law and facts or facts simpliciter. But before then, I will take a look at the nature of the decision complained of. Whether a decision is final or interlocutory depends on its result. If the decision finally disposes of the rights of the parties, it is a final decision and not an interlocutory decision and such a decision can only be reviewed or reversed by an appellate court and not by the Judge who gave it. See Ude v. Agu (1961) 1 SCNLR 98; Akinsanya v. United Bank for Africa Ltd. (1986) 4 NWLR (Pt. 35) 273: Ifediorah v. Ume (1988) 2 NWLR (Pt. 74) 5; Mohammed v. Olawunmi (supra) and Nwekeson v. Onuigbo (1991) 3 NWLR (Pt. 178) 125.
In the instant case, the pertinent question is whether the decision appealed against is a final one which requires no leave before the appellant can appeal. My humble opinion finds support in the decision of this court in Ogunmola v. Kida (2001) 12 NWLR (Pt. 726) 93 at 106 (2002) FWLR (Pt. 86) 54 ratios 7 at 564 where Mukhtar, JCA (as she then was) stated as follows:
“The pertinent question now is, is the decision appealed against a final one? The decision is a refusal to set aside the judgment entered by the lower court in default. Learned counsel further submitted in the same brief that the default judgment delivered by the lower court was a final judgment, which required no leave before the appellant can appeal. (He placed reliance to the case of) Emman Okafor v. John Ezenwa (1992) 4 NWLR (Pt. 237) Page 611 (and continued) … I could not agree more. The decision was final and not at all interlocutory for it finally disposed of the rights of the parties. By refusing to set aside the judgment he had entered in favour of the respondent, the learned trial Judge had laid everything before him to rest, so to say. It is only a Court of Appeal that can reverse it, if need be. This thus made the judgment final and not an interlocutory one that required the leave of court. See Nwekeson V. Onuigbo (1991) 3 NWLR (Pt. 178) page 125.”
Where the appeal is against the final decision of the court sitting at first instance, the appellant can appeal as a right by virtue of section 241 (1) (a) of the 1999 Constitution without leave of the Court. The appellant appealed against the decision of the trial court refusing to set aside the default judgment. It has already been established that the refusal to set aside the default judgment is a final judgment. The decision appealed against is the refusal to set aside the default judgment but the real judgment that is sought to be set aside is on what the respondents would have had a cause to execute the Courts’ order. The decision is what the appellants have appealed to this court, to which is seized of the whole matter to review. The Court has to consider all the issues that gave rise to the present appeal. However, before I proceed further to consider the issues raised by the respective parties for the determination of this appeal, I will pause here to consider the competence of the grounds of appeal. They have been reproduced above. Mere assertion on the part of the appellants that the grounds of appeal are based on error of law does not make them so, if the errors stated in the particulars are no more than those of facts or mixed law and facts. The position of law in this area is better enunciated by the Supreme Court in Kashadadi v. Sarkin Noma (2007) 13 NWLR (Pt. 1052) 510 at 522, where it was held as follows:
“In determining whether a ground of appeal is one of fact, mixed law and facts or facts simpliciter the court should go further than the ground of appeal as couched by the appeal and move down to the particulars of error numerically tabulated thereunder. This is because it is the total package of the ground of appeal and the particulars therein that complete the exercise leading to the conclusion whether a ground of appeal is one of exclusive law or one of mixed law and fact or one of facts simpliciter. It is the experience in quite a number of cases that while the ground of appeal deals with pure and unadulterated law, the particulars that edify the grounds move to the stream of mixed law and fact: and in some cases to facts and facts only.”
Above enunciation by the apex court is instructive as it provides a way out in instance where the drawing line between law and mixed law and fact poses difficulty. It is further suggested in the above case that one way of discovering the “dichotomy” is to examine very closely the particulars of error, whether they sing the same chorus of error of law with the ground of appeal or they sing not quite the same chorus in the sense that they add some mixed grill. I take the hint. I shall now examine closely the two additional grounds of appeal and carefully sieve the chaff from the grain and see if the grounds of appeal involve law and not tainted with facts.
I have carefully examined the two additional grounds of appeal reproduced above with their particulars question the entering of judgment against the appellants and the award of N6 Million against them as aggravated damages. I agree with the learned counsel for the respondents that the ruling of the trial court delivered on 9/3/99 did not decide the liability of the appellants on tort of false imprisonment neither did it award any damages. The court merely refused to set aside its judgment. If the grounds of appeal are the means by which the appellant expresses his complaints against the decision of a lower court then such grounds of appeal must arise from the decision of the lower court appealed against. See International Const. Ltd. v. S.L.N. Ltd. (supra) and Saraki v. Kotoye (supra).
Since the additional grounds of appeal did not arise from the ruling of the trial court appealed against, the grounds are incompetent and also the issues formulated on those grounds and arguments in support of those issues are incompetent. One cannot put something on nothing and expect it to stand, such is bound to collapse. See Macfoy v. U.A. C (supra).
It is also observed that in canvassing arguments in support of the additional grounds of appeal in the appellants brief, before obtaining leave of the court, he amended the notice of appeal by filing additional grounds of appeal, the appellants had clearly put the cart before the horse. Appellants’ brief in support of the issues raised from additional grounds of appeal were dated and filed on 2/3/2006. That brief was deemed validly filed on 6/3/2006 by this court which then granted the appellants leave to file additional grounds of appeal and to deem the additional grounds as properly filed. A party seeking an amendment of the notice of appeal already filed will first obtain leave of the court and thereafter file an amended notice of appeal before canvassing argument in support of the issues raised there from in his brief of argument otherwise the grounds of appeal and the issues raised therein are incurably incompetent. See Ekwulugo v. A.C.B. (Nig.) Ltd. (2006) 6 NWLR (Pt.975) 30. The order of this court granting the appellants leave to file additional grounds of appeal on 6/3/2006 did not in any way redeem the defect inherent in their notice and grounds of appeal. The appellants require leave to amend the notice of appeal already filed and thereafter file an amended notice of appeal before canvassing arguments in support of the issues raised therefrom in his brief of argument otherwise the grounds of appeal and the issues raised therefrom in his brief of argument, are incompetent. It is for this reason I must strike out the additional grounds of appeal the issues formulated therefrom and their supporting arguments.
I have found that the two original grounds of appeal arise from the final decision of the lower court refusing to set aside the default judgment. No leave of court is required to appeal. The two issues raised by both parties are quite similar in their contents.
In the first issue, it is submitted by the learned counsel for the appellants that the learned trial Judge denied the appellants the right to fair hearing as enshrined under section 36(1) of the 1999 Constitution when he entered judgment in default of entering an appearance and filing of their statement of defence. In his brief of argument, learned counsel for the appellant referred to the extracted proceedings of the lower court of 28/2/95, 15/5/95, 10/2/97 and 27/4/97 before coming to this conclusion.
On the second issue, learned counsel for the appellants submitted that all courts of record are endowed with the discretionary power to set aside their own default judgment. Reliance was placed on the cases of Williams Hope Rising Voluntary Funds Society (1982) 1-2 SC 145 and African Continental Bank Limited v. Losada Nigeria Limited (1992) 2 NWLR (Pt. 225) 572.
It is submitted that the appellants did not appear in court at the hearing of the case because they were not served with the processes of the court and this was deposed to by the 2nd appellant in the affidavit in support of the motion on notice to set aside the default judgment. It is submitted that where there is doubt as to whether or not service was not properly effected any judgment obtained by a party in absence of the other in such circumstance ought to be set aside and a new trial conducted to afford both parties to present their case. Reference was made to the case of Wimpey (Nig.) Ltd. V. Balogun (1986) 3 NWLR (Pt. 28) 324.
On the first issue, learned counsel for respondents has submitted that purport of section 36(1) of the 1999 Constitution is not that a party to a litigation must be heard at all event, that is willy nilly. A party must show he was denied ample opportunity to take steps to protect his interest in a suit but fails to utilize same. Reliance was placed on the cases of Vanguard Media Ltd. v. Ajoku (2003) 11 NWLR (Pt. 831) p. 437 at 441; S & D Const. Co. Ltd. v. Ayoku (2003) 5 NWLR (Pt. 813) p. 278 at 286.
It is submitted that the trial court made specific findings rejecting the contention of the appellants that they were not served with the Writ of summons and the statement of claim. The lower court found as a fact that the writ of summons in the suit was issued on 19/4/94 but the appellants stated that they got to know about the suit on 26/2/94. Earlier in the appellants’ affidavit in support of their first motion to set aside the judgment of the Court, the appellants had deposed to the fact that they got to know about the pending suit on 6/4/92, two years before the writ of summons was issued in the case. Learned counsel submitted that the above contradictions and inconsistencies justified the finding of the learned trial Judge that the appellants were personally served with the processes.
On the second issue, learned counsel for the respondents submitted that the learned trial Judge exercised his discretion judicially and judiciously when he dismissed the appellants’ application to set aside the judgment. It is submitted that the case of Wimpey (Nig) Limited v. Balogun (supra) is inapplicable to this case as it deals with service of Court processes on a company and by virtue of section 78 of the Companies and Allied Matters Act (CAMA) of the rules of Court, service of such Court processes will be effected on either director or secretary of officer of the company. It is urged that the appeal be dismissed because the appellants were not in any way denied the opportunity of being heard throughout the trial and secondly, because the appellants have failed to appeal against the substantive judgment of the trial court.
I shall now consider the two issues separately as they were argued by respective learned counsel for the parties.
The complaint of the appellants in the first identical issue formulated by the parties is whether from the circumstances of this case, the appellants’ right to fair hearing was breached. The appellants submitted that it was wrong for the respondents to contend that the appellants were not in any way denied the opportunity to be heard throughout the trial. The purport of section 36(1) of the Constitution of the Federal Republic of Nigeria 1999 is to guarantee every citizen of this country right to fair hearing in the determination of his civil rights and obligations. He must be given the opportunity of being heard. This does not mean that he must be heard at all event willy nilly. Where a party has the opportunity of being heard he must not fail to utilize same. If he does he cannot be heard to complain of a breach to his tight to fair hearing. See Vanguard Media Ltd. v. Ajaku (2003) 11 NWLR (Pt. 831) 437 at 441.
I must hasten to say that this case is one good instance of a party not taking advantage of opportunity and guarantee offered by section 36(1) of the Constitution in the determination of his civil rights and obligation. In this case, the learned trial Judge made specific findings rejecting the contention of the appellants that they were not served with the writ of summons and the statement’ of claim. The court found as a fact that the writ of summons in the suit was issued on the 19/4/1994 but the appellants stated that they got to know about the suit on 26/2/1994. I refer to paragraph 16 of the appellants’ affidavit dated the 11/11/98 at page 19 of the record and the ruling of the court at page 16 of the record. Earlier in the appellants’ affidavit in support of their motion to set aside the judgment of the lower court they had deposed to the fact that they got to know about the pending suit on 6/2/92, that is to say two years before the writ of summons was issued out in the case. See paragraph 5 of the appellants’ affidavit at page 10 of the record in support of their motion filed on 19/5/95.
In the light of these obvious contradictions and inconsistencies the learned trial Judge rightly rejected the contention of the appellants that they were not served with the writ of summons and the statement of claim and rightly accepted the affidavit evidence of the bailiff that the appellants were personally served with the above court processes. The learned trial Judge in his ruling on pages 60-61 lines 32-34 had this to say:
“By virtue of section 74(1) and 74(2) of the Evidence Act I have resort (sic) to the cause of proceedings in this action for my aid and find out from the record that two writ of summons in the instant case were served on the two defendants/applicants in this motion on the 21st April, 1994 as shown by an affidavit of service sworn to by bailiff. Mr. T I. Akubo on the same day, as at 21st April 1994 there was no contrary affidavit from the defendants until 19th May 1995, more than a year after the writ had been served on them. Even at that stage none of the defendants or their counsel had entered appearance on their behalf.”
The above findings of the lower court stand and are unchallenged in this appeal. It is trite that a finding of a court cannot be challenged on an appeal where there is no ground of appeal upon which the challenge can be grounded. See the case of Udoh v. Asuquo (2006) 9 NWLR (Pt. 985) 299 at p. 306. I have waded through the records before me, there is no ground of appeal challenging this definite finding by the trial court that the appellants were duly served with the processes of court. It is untenable, therefore, in the circumstance, to argue that the appellants were not served with the writ of summons and the statement of claim.
On the question of non-issuance of hearing notice, the essence of the notice is to inform a party that there is an on-going proceeding against him. In any case, the appellants have not shown that the non-issuance of the hearing notice, if it is true, has occasioned any miscarriage of justice. On page 7 of the record, it is shown that the respondents filed a motion for judgment for the refusal of the appellants to enter appearance and to serve their statement of defence. This resulted in the motion, which was then at the High Court registry to be assigned to the trial Judge. On 28/2/95, the case came up before the trial court. On that day, following the absence of the appellants in court, the court ordered for hearing notice to issue and adjourned the case to the 15/5/95. On that day, the appellants who claimed not to have been served with the court processes, appeared in court with their counsel. In view of the above scenario and in the absence of a memorandum of appearance and the statement of defence or motion seeking for extension of time within which to file the necessary processes, the learned trial Judge entered judgment in favour of the appellants for damages to be assessed under Order 27 rule 4 of the High Court (Civil Procedure) Rules, 1987.
Since the purpose of serving hearing notice is to inform a party in litigation of a pending proceedings it will amount to undue adherence to technicalities. A party, who has appeared in court on the adjourned date for proof of issuance of hearing notice on him, cannot insist that, notwithstanding his presence, hearing notice must be issued to him. The courts will rather do substantial justice than undue adherence to technicalities. See Obisi v. Chief of Naval Staff (2004) 11NWLR (Pt. 885) 482 at 492. The case of Effanga v. Rogers (2003) 7 FWLR (Pt. 157) p. 1058 cited and relied upon by the appellants’ counsel in his brief of argument is distinguishable from the instant case. In that case, the appellant was not present in court on the return date of the notice and the trial Judge without confirming that hearing notice was issued and served on the appellant, entered judgment against the appellant. In this case, although no hearing notice was issued and served, the appellants and their counsel were in court on the return date of the hearing notice. The appellants had appeared on 15/5/95; 6/5/96; and 10/2/97 before they decided to abandon the entire proceedings. See pages 27 and 28 of the record.
I wish to comment on the submission of the learned counsel for the appellants that the learned trial Judge should have ascertained from the appellants and their counsel why they were in Court on 15/5/95. The sentiments expressed herein by the learned counsel appear to me neither in tune with our procedural nor our adversary system of administration of justice. It was for the appellants (when they are not represented) or their counsel to tell the court why they were in court. The record of proceedings of 15/5/95 does not show that the appellants and their counsel who were in coul1 said anything. I agree entirely with the learned counsel for the respondents that our adversary system expects the Judge at all times in the course of proceedings before him to be an impartial umpire. He asks questions only when it is necessary to clear a point. He should not prompt, cause, lead or remind a particular litigant or counsel to do or react to a situation to the disadvantage of the other litigant. See Omoregbe v. Lawani (1980) 3-4 SC 108 p. 120. In sum, I find that the appellants’ right to fair hearing has not been breached. He had ample opportunity to be heard but failed to exploit it.
The second issue has to do with the exercise of judicial discretion of the learned trial Judge when he dismissed the appellants’ application to set aside the judgment.
A Judge is competent to set aside his own judgment given in default. He will however consider the following factors:
(a) 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;
(b) 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;
(c) Whether the latter (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;
(d) Whether the applicant’s case is manifestly unsupportable;
(e) Whether the applicant’s conduct throughout the proceedings i.e. 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 Williams v. Hope Rising Voluntary Funds Society (1982) 1-2 SC 145: Ugwu v. Aba (1961) All NLR 438; Haruna v. Ladeinde (1987) 4 NWLR (Pt. 67) 941 and A.C.B. v. Losanda (Nig) Ltd. (1992) 2 NWLR (Pt. 225) 539 at 589.
The main reason adduced by the appellants for their default was the alleged non-service of the writ of summons and the statement of claim. This assertion, as I have earlier noted was demonstrated to be false by the trial court from the evidence before it. The finding of the trial court remains unchallenged in this appeal.
It is contended by the appellants that the respondents did not file a counter-affidavit in response to the affidavit in support of the motion to set aside the judgment. I agree with the learned counsel for the respondents that it is not in every situation that a counter-affidavit is necessary. See Uzoukwu & 5 Ors. v. Ezeonu II & 8 Ors. (1991) 6 NWLR (Pt. 200) P. 708 at 739
In the instant case, from the record the allegation of non-service can be defeated from the record before the court. It is therefore not necessary to file a counter-affidavit. It is unnecessary to file a counter-affidavit to challenge deponent who contradicted herself when she said that she got to know about the pending proceedings on “6/2/92” and in another breath that she only got to know about pending proceedings on “26/2/94”. The learned trial Judge, to my mind, rightly held that the appellants were aware of the pending proceedings and chose not to participate. I have read the case of Wimpey Ltd. v. Balogun (1986) 3 NWLR 28. I agree with learned counsel for the respondents that the case is inapplicable. By virtue of Order 3 rule 13 of the High Court (Civil Procedure) Rules of Ogun State, in that case, service of court processes on a company will be effected on either secretary or corresponding officer of the company. An officer or secretary of the company not being a party to the suit there is no way to prove that service has actually been affected without stating the names of the officer or secretary who was served. In that case (Wimpey’s) the position was complicated by the fact that in one affidavit of service, the bailiff served one Miss Debayo who allegedly claimed she was secretary to the defendant company. Throughout the proceedings, the appellant was neither present nor represented by counsel. In the instant case, the appellants and their counsel were present at some stages of the trial but chose to do nothing. The presumption of due service of the court processes was not therefore rebutted in this case.
In conclusion, having resolved the two issues in favour of the respondents, I must say that this appeal fails and it is hereby dismissed.
I award to the respondents costs assessed at N30,000.00.
Other Citations: (2007)LCN/2517(CA)
