N. A. Williams & Ors. V. Hope Rising Voluntary Funds Society (1982)

LawGlobal-Hub Lead Judgment Report

IDIGBE, J.S.C. 

This appeal challenges the decision of two of three learned Justices of Appeal in the Federal Court of Appeal holden in Lagos (hereinafter referred to simply as “the Court of Appeal”) dismissing an appeal from the decision of Ajose-Adeogun J. in the High Court of Lagos State setting aside his judgment, in Suit IK.263/72, given in the absence of the respondent and by which he ordered in favour of the appellants that N50 damages for trespass to land in possession of the appellants be paid by the respondent who was also restrained from entering upon the said land.

The appellants’ claim for damages and injunction against the respondent relate to a parcel of land lying and situate at Adeshina Street, Mushin in Lagos State. In the words of Lord Scarman-in Gleaves v. Deakin and Others, Regina v. Wells Street Magistrate Exparte Deakin [1980] A. C. 477 at 494-the appeal is, indeed, “a rare bird to fly at this altitude” because litigants do not frequently get to the level of this court merely to challenge the exercise of a trial judge’s discretion in setting aside his own judgment delivered in the absence of one of the parties in a case before him, with a view to giving the other party opportunity of being heard unless, of course, such exercise has patently resulted in the prejudice or embarrassment of the party in whose favour the original judgment subsisted; and this usually is the case where third party rights have intervened pursuant to the original judgment.

The facts which led to this appeal, so far as they are material to the question which calls for our determination, are:

(1) That the respondent was absent at the hearing of the appellants’ claim (for damages for trespass to land and injunction) in the High Court on 21st February, 1977, when the learned trial Judge after hearing evidence from two witnesses for the plaintiffs (i.e. the appellants), gave judgment in their favour as already stated.

(2) That pursuant to an application filed on 16th March, 1977, (more than three weeks after the judgment of the 21st day of February, 1977). The Respondent, and praying the Court for the following:

(a) an order for extension of time within which to apply to set aside the judgment aforesaid (the application having been made to the Court after the period of six days within which it was required, by the Rules of the High Court of Lagos State, to be made);

(b) “An order relisting the said matter for trial on its merits”; and

(c) “An order setting aside the said judgment obtained by the plaintiffs” (i.e. appellants) in the absence of the respondents-the learned trial Judge on the 4th day of July, 1977, granted the said reliefs.

(3) That on the 27th day of February, 1980, the Court of Appeal Coker and Uthman Mohammed J.C.A.; Nnaemeka Agu J.C.A. dissenting] dismissed the appellants’ appeal from the judgment on the High Court the 4th day of July, 1977.

The principal grounds of appeal filed by the appellants and argued before us are:

(1) The Federal Court of Appeal erred in law in dismissing the appeal when it was clear from the record that there was no material on which the learned trial Judge exercised his discretion in granting an order for extension of time within which to apply to set aside his own Judgment” (underlining by me).

(2) Having found that the defendant/respondent gave no reason for delay in bringing their application to set aside the judgment within prescribed period of six days the Federal Court of Appeal erred in law, in holding that this fact is not sufficient reason to refuse the application for extension of time” (underlining by me).

3) “The Federal Court of Appeal misdirected itself when it held as follows:’The proper question this Court has to answer is did the trial judge wrongly exercise its (sic) discretion in favour of the defendants by giving them another opportunity of being heard; particularly having held that they have a bonafide intention to defend the action with a possibility of success.

Particulars of Misdirection:

(i) Failure to give separate consideration to the application for extension of time and the application to set aside the judgment itself.

(ii) Non-observance of the fact that one the Federal Court of Appeal has found that the discretion in extending time within which to apply to set aside the judgment has been wrongly exercised by the trial Judge there would be no need to consider the second application for setting the judgment aside. ”

(iii) xxx xxx xxx xxx

(4) “The Federal Court of Appeal erred in law in failing to interfere with the exercise of the discretion of the trial Judge in setting aside (sic) its own judgment when he has not given sufficient consideration to all the circumstances of the case.

Particulars

(i) The nonchalant behaviour of the defendant/respondent throughout the proceedings which gave an impression that they do not intend to prosecute their case.

(ii) xxx xxx xxx xxx

(iii) The trial Judge in (his) own finding rejected the respondent’s explanation for absence at the hearing and failure to apply within time.”

(4) “The Court of Appeal erred in law in failing to interfere with the exercise of the discretion of the trial Judge’s discretion to set aside his own judgment when it was apparent that he has taken into consideration matters which he ought not to have taken into consideration thereby acting on wrong principles.

Particulars

(i) Giving the respondent the benefit of doubt in that their solicitor might have failed to inform them of the hearing date when no such evidence was placed before them.

(ii) Holding that the pleadings of both parties postulate an issue of title between them and the judgment now sought to be set aside has not resolved the issue.

(iii) xxx xxx xxx xxx

Now, it is quite clear from the application of the respondent filled on 16th March, 1977, that the trial Judge was invited to consider two principal but undoubtedly separate reliefs, viz

(a) an order for extension of time within which to apply to the Court for an order setting aside its judgment of the 21st day of February, 1977, and

(b) an order setting aside the said judgment together with an order that the principal case be re-listed for hearing and determination on its own merits. The principles upon which a court exercises its discretion in respect of these two reliefs are as distinct as the reliefs are separate.

When a court is called upon to make an order for extension of time within which to do certain things (i.e. extension of the time prescribed by the Rules of Court for taking certain procedural steps), the court ought always to bear in mind that Rules of Court must prima facie be obeyed and that it, therefore, follows that in order to justify the exercise of the court’s discretion in extending the time within which a procedural step has to be taken there must be some material upon which to base the exercise of that discretion; any exercise of the court’s discretion where no material for such exercise has been placed before the court would certainly give a party in breach of the Rules of Court uninhibited right to extension of time and the provisions as to time within which to take procedural steps set out in the Rules of Court would, indeed, in such circumstances, have no legal content.

Non-compliance with Rules of Court do not prima facie invalidate proceedings unless reasons for such non-compliance are not advanced to the court, and, in addition, the party in breach fails to put before the court sufficient material upon which to exercise its discretion to waive or overlook the omission. In the words of Edmund Davies L. J. (as he then was) which I gratefully adopt “… the rules (i.e. Rules of Court) are there to be observed; and if there is non-compliance (other than a minimal kind), that is something which has to be explained away Prima facie if no excuse is offered, no indulgence should be granted” (underlining and brackets supplied by me) [see Revici v. Prentice Hall Incorporated and others (1969) 1 ALL E.R. 722 at 774].

When, however, the application before the Court is for it to set aside its own judgment given in the absence of one of the parties before it, in order to give the other party opportunity of being heard different considerations apply. These were fully set out by me in Idam Ugwu and Others vs Nwaji Aba and Others [1961] All N.L.R. 438 [see also Adebayo Doherty v. Ade Doherty [1964] N.M.L.R. 144 at 145]. Among other things, the court must consider (1) the reasons for the applicants’ failure to appear at the hearing or trial of the case in which judgment was given in his absence, (2) whether there has been undue delay in making the application to set aside the judgment so as to prejudice the party in whose favour the judgment subsists, (3) whether the latter party (i.e. in whose favour the judgment subsists) would be prejudiced or embarrassed upon an order for rehearing of the suit being made, so as to render such a course inequitable, and (4) whether the applicants’ case is manifestly unsupportable; and I respectfully, agree with the views expressed by my learned brother, my lord, Bello S.P.J. (as he then was) in Momoh v. Gulf Insurance Corporation [1975] 1 N.N.L.R. 184 at 186 that in addition to the foregoing factors the court being asked to exercise its discretion to set aside its own judgment must also be satisfied that the applicants’ 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.

Now, the sum of the applicants’ complaint in grounds (1) and (2) is that under the Rules of the High Court of Lagos State the respondent was expected to bring their application to set aside the judgment of the 21st day of February, 1977, within 6 (six) days yet their application was not filed until the 23rd (twenty-third) day after the judgment; even then, no explanation whatsoever was offered for their delay in filing the said application. The appellants therefore submit that in the circumstances the learned trial Judge had no basis for the exercise of his discretion.

The gist of the complaint of grounds (3) and (4) is that the application for (a) extension of time and (b) setting aside the judgment ought to be considered separately and that the learned trial Judge failed to do so; the appellants further submitted that if the first application failed then the second ought not to have been considered. With regard to the first two grounds it follows from my earlier observations and that I am in respectful agreement with the view expressed in the dissenting judgment of Nnaemeka-Agu J.C.A., in the matter now under appeal that “once the time fixed by the Rules (of Court) for bringing the application has expired, an application to set aside the judgment must show both good reasons why the application was not brought within the time and that the application has merit”. Again, on this issue, I would gratefully adopt the observations of Cotton L.J.

” … that when the rules and the Act of Parliament say that an appeal is to be within a certain time unless special leave shall be given by the Court of Appeal after that time, the court does not grant leave unless there is something which in the opinion of the Court entitles the person who applies for extension of time to be relieved against the bar established by the orders and the Act of Parliament. It has been called an equity, but that is not a proper term, it is something which entitles him to ask for the indulgence of the court to ask to be relieved from the legal bar that there is in the orders and Act of Parliament … that in order that the appellant might be relieved from lapse of time it was not necessary to show that there was something in the conduct of the respondent which entitled the appellant to be relieved; it was sufficient if he satisfied the Court that there was something either in the acts of the respondent or from other circumstances which entitled him to be relieved, and to be allowed to appeal notwithstanding the time had lapsed” .[emphasis supplied by me) see: Re Manchester Economic Building Society (1883) 24 Ch. D 488 at 499].

Now, the only reason for the failure of the respondent to bring the application within the specified time would appear to be the statement in paragraph (4) of the affidavit in support of the application which reads:

“(4) That neither our solicitor nor ourselves were aware of the hearing date of this matter” .

The record of the Court shows that the clerk employed by the respondent’s solicitor was present in Court on the day when hearing in the case was adjourned to the date on which it was actually heard and there is uncontradicted evidence that Mr. Rahman, of Counsel for the respondent appeared for the respondent on the date judgment was delivered (i.e. 21st February, 1977); and the learned trial Judge in his Ruling now being challenged found as a fact that the respondent’s solicitor was in Court on that day (i.e. on the day the said judgment was delivered). In the course of his Ruling the learned trial Judge observed: “Regarding the first consideration (i.e. as to whether there is material as to why the applicants failed to appear at the hearing), the applicants’ reason for non-appearance was that they and their solicitors were not aware of the hearing date. In the light of the detailed averment in the counter-affidavit filed on behalf of the respondent, it is difficult to accept that explanation. In any event the defendant and their solicitors became aware on the very date judgment was given; (i.e. 21st February, 1977), that the matter had been tried in their absence. This consideration relates also to the first prayer of the applicants for extension of time within which to make the substantive application to set aside the judgement.

… It is pertinent to observe at this stage that . . . I find both explanations for non-appearance and delay in bringing the application not very convincing” (emphasis supplied by me).

It is obvious from the foregoing portion of the Ruling that the learned trial Judge rejected the averment that the respondents and their solicitors were not aware of the date of trial of the substantive suit and found as a fact that they were aware of the Judgement thereon at the time it was delivered. What explanation did the respondent give for failing to file their application to have the judgement set aside within time None, whatsoever.

In the light of the principles which I earlier on explained one is bound to come to the conclusion that there was no material whatsoever on which the learned trial Judge exercised his discretion in favour of the respondents by granting them extended period within which to apply to have the judgement set aside.

The matter ought to have rested here since if the respondents failed in the first leg of their application, i.e. to have their application brought out of time, there ought to be no need for consideration of the second leg-the prayer to have the judgement set aside and to have the substantive suit re-listed for hearing. See also Mustafa Akano and another vs Yesufu Adediran 1975 N.M.L.R. 391 at 393 per Kayode Eso J.C.A. (as he then was)].

The learned trial Judge, however, went on to consider the respondent’s prayer to have the judgement set aside. I have already set out matters which ought to be considered in an application of this nature; that notwithstanding, I will summarise once again the matters which call for the consideration of the trial Judge in these circumstances and they are, whether

(1) the applicant has good reasons for being absent at the hearing.

(2) he has shown that there was good reason for his delay in bringing the application i.e. whether there was undue delay in bringing the application so as to prejudice the party in whose favour the judgement subsists,

(3) the respondent will not be prejudiced or embarrassed if the order for relief made,

(4) the applicants’ case was manifestly unsupportable and,

(5) the applicants’ conduct throughout the proceedings is deserving of sympathetic consideration. All of these matters ought to be resolved in favour of the applicant before the judgement should be set aside; it is not enough that some of them can be so resolved. On the facts found by the learned trial Judge matters concerned in items (1) and (2) cannot be resolved in favour of the applicants and from the record of proceedings and the affidavits filed in this case, it is also equally clear that matters concerned in item (5) cannot be resolved in their favour. However, the learned trial Judged later in his Ruling, after rejecting the respondents explanation for being absent at the trial, made a Volte face and gave “the applicants themselves the benefit of doubt in that their solicitors might have failed to so inform them” of the date of hearing; there was neither averment in the affidavit of the respondents, nor was any affidavit filed by the solicitors, to this effect. There is, therefore, no basis for this finding of the learned Judge; and this is the pith of the applicants; complaint in the fifth ground (Particular (1) of their appeal).

In the penultimate paragraph of the majority judgment of the Court of Appeal with which this appeal is concerned the learned Justices observed:

“… The defendant gave some reason for their non-appearance at the trial, true, no reason was given (A) for the delay in bringing the application to set aside the judgement within the prescribed period of 6 days. That is not sufficient reason to refuse the application. Other facts must be considered also. The Court found … that the interests of the plaintiffs were not prejudiced and THAT THERE WAS SUBSTANTIAL ISSUE RAISED IN THE PLEADINGS WHICH SHOULD BE RESOLVED …” (Capitals and emphasis by me).

With the greatest respect to their Lordships of the Court of Appeal, they have, to say the least, taken a rather dim view of the matter when having found (in the portion of the above quotation against which I have set the letter CA’) in capital that “true, no reason was given for the delay in bringing the application to set aside the judgement within the prescribed period … that is not sufficient reason to refuse the application”. Indeed, their view on the matter runs contrary to settled principles of law on the subject; the applicant must not only give reasons for his failure to bring his application within time). he must go further and satisfy the court that the reasons are acceptable [See Edmund “Davies L.J. (as he then was) in Re vici vs Prentice Hall (Supra) and also Cotton L.J. in Re Manchester Economic Building Society (Supra)].

Indeed, their Lordships had earlier stated, albeit not in detail, the correct principles involved when they observed:

“The difference in the approach of the two (i.e. application for extension of time and application to set aside a default judgement) are obvious. In the application to enlarge time to apply to set aside a default judgement, the Court is more indulgent and would readily grant the application provided some reason for the delay is given. ..”(brackets and emphasis supplied).

As, however, already pointed out the learned trial Judge found the respondents’ explanation for delay in bringing the application very unconvincing; their only explanation which really is not a reason for their delay in bringing the application and which was found to be incorrect was, that they and their solicitors were unaware of the hearing date, but the learned trial Judge found that they were present when the judgement in question was delivered.

It is true, of course, that the Court should bear in mind when exercising its discretion the interests of the parties and the justice of the case, and should exercise its discretion where the justice of the case requires it to do so. But where, as here, the conduct of the applicants throughout the proceedings as is evident from the record show a deliberate lack of interest in the proceedings and no proper reason has been advanced for the tardiness in bringing this application, the Court ought to reject the same.

Although this, substantially, is an appeal from the exercise of a discretion which, under the law should be presumed to have been rightly exercised, it seems pretty obvious that while the learned trial Judge had set out clearly the matters and principles of law he had to consider in carrying out the exercise he did not apply these principles correctly to the facts before him and the majority judgement of the Court of Appeal which upheld his Ruling, is, in my view, in error.

I would, therefore, allow this appeal and set aside the judgement of both the Court of Appeal and that of the learned trial Judge dated 4th July, 1977; and in substitution, therefore, it is hereby ordered that the judgement of Ajose-Adeogun J. of the 21st day of February, 1977, is hereby restored and this order shall be the judgement of the High Court of Lagos In Suit IK/ 26/72.

The appellants will have costs in the lower Court and the Court of Appeal fixed at N126 and N250 respectively and in this Court at N300.

---

SC.42/1981