Oba Adeyinka Oyekan II & Ors V. Mr. Elli Rossek (2009)

LawGlobal-Hub Lead Judgment Report

CLARA BATA OGUNBIYI, J.C.A.

This is an appeal against the decision/ruling delivered by the Lagos State High Court on the 17th day of January, 1995.

The Appellants who are all representatives of Docemo Royal family instituted this suit by filling the writ of summons and the statement of claim wherein they prayed for an order granting them the right, or re-entry and repossession of the piece of land, building and property therein, known and situate at No.2, Pedro Street, Lagos which property belongs to the King Docemo Royal Family (see pages 1-6) of the records.

After an unsuccessful attempt at personal service of the writ of summons and the statement of claim on the defendant/respondent the plaintiffs/appellants filed a motion ex-parte wherein they prayed the court, for an order for substituted services, (see pages 11-12) of the records.

The motion ex-parte for substituted service came up for hearing on the 2nd day of August, 1995. After the motion was moved by counsel for the plaintiffs/appellants, the lower court granted the orders as prayed and fixed the 16th day of October, 1995 as return date. (see page 13 of the records).

In response to the service of the originating processes, dated 21st day of August, 1995 the defendant/respondent did not file statement of defence. The plaintiffs/appellants, in the meantime, served on the Chambers of G.O.K. Ajayi SAN a motion dated the 3rd day of October, 1995 for judgment in default of defence.

On the 16th October, 1995 the court by its ruling at page 21 of the printed record entered a default judgment for the plaintiffs in terms of their writ of summons and statement of claim.

By a motion on notice dated 8th and filed 11th December, 1995, the defendant/respondent’s filed an application before the lower court for an order setting aside the judgment in default and the execution thereof. The motion was supported by a 14 paragraphs affidavit. Although the plaintiffs/appellants did not file a counter affidavit, the application was vehemently opposed on points of law evidenced at pages 22-24. On the 17th January 1996 ruling was delivered wherein the lower court declared as a nullity its proceedings of the 16th October, 1995.

Dissatisfied with the said ruling of the lower court, the counsel to the plaintiffs/appellants have now filed a notice of appeal on the 30th January, 1996 and dated the same day and evidenced at pages 29-32 of the printed record of proceedings. A departure order was granted by this court on the 16th June, 1999 pursuant to a motion dated 9th and filed on the 13th May, 1997. The appellants brief of argument was dated and filed on the 14th July, 1999. In response to the respondent’s brief the appellants filed a reply brief dated and filed 21st December, 2000. On the 19th November 2008 when this appeal was for hearing, the learned appellants’ counsel was not in court. On the evidence of service of the hearing notice on the appellants counsel, and on the application by the respondent’s counsel, Mr. Bankole Oyedeji, the said appellants’ brief of argument dated and filed 14th July, 1999 was deemed as having been argued. The said respondent’s counsel however proceeded to adopt the respondent’s brief dated 6th December, 2000 and filed on the same day. The counsel urged us to dismiss the appeal and affirm the decision of the lower court.

From the information available to the court in this appeal, the motion on notice dated and filed 6th December 2000 was for an extension of time within which to file the respondent’s brief and a further order deeming the brief of arguments dated 11th day of September, 2000 as having been properly filed and served. The order granting the above reliefs sought was made on the 13th December, 2000. It is also pertinent to restate that the respondent’s brief in respect of which the counsel relied upon and advanced his arguments was the one dated and filed 6th December, 2000. It is obvious from all respects that the said brief relied upon is fundamentally different and has no relationship with the brief wherein an order was made deeming same as filed and served on the 13th December, 2000. From all indications herewith respondent’s it would appear that the brief sought to rely upon by the respondents’ learned counsel, Mr. Oyedeji, has not been regularized by the order of court. The same is alien and therefore struck out.

In consequence therefore, there is no respondent’s brief in defence of this appeal. Similarly and in the absence of any respondent’s brief of arguments there can be no appellants reply brief as it is predicated thereon the former. The proposed reply brief dated and filed 21st December, 2000 is hereby also struck out. In the circumstance, this appeal will be considered and determined based only on the appellants brief of arguments.

From the four grounds of appeal filed, three issues were distilled on behalf of the appellants as follows:-

“1. Whether the default judgment of 16th day of October 1995 was a nullity and whether the learned trial judge was right in declaring it a nullity.

2. Whether the defendant/respondent complied with the conditions for setting aside a default judgment.
3. Whether the learned trial judge was right in entering default judgment for the plaintiff/appellants on the 26th of October, 1995.”

Taking all the three issues raised and which same are closely interrelated, the learned appellants counsel first raised a fundamental question as to whether the learned trial judge was indeed right in declaring the default judgment a nullity. This he contended especially wherein judgment of a court is based on facts and/or issues properly before it and which counsel in the suit had raised and addressed the court thereon. The learned counsel reiterated that the court had no power to raise an issue of law (i.e. nullity of the default judgment) on its own without calling on counsel to address the court thereupon and especially in the absence of any application before the court praying it to declare the earlier judgment of the court a nullity. Reference was made to order 40 rule 4 of the High Court (Civil Procedure) Rules of Lagos State 1972.

In respect of issue two the learned counsel also submitted the trite principle of law enunciated in various judicial authorities that the trial judge must be satisfied that there is a prima facie defence or a triable issue before he can set aside a default judgment. Counsel in support and to buttress his arguments cited the case of B. G. D. & D. C. v CI. A. Mardi Ishola Apetsai (1962) NSCC 314 at 316, and a host of other numerous authorities. That from the totality of the respondent’s proposed defence the summary was that the title in the property in question resided in a third party. That in land matters the defence by a person in possession of a third partys’ right on the land against the rightful owner of the land is not sustainable.

Also in arguing issue three the counsel re-iterated the necessity of a clear distinction which must be made from the on set between the appellants’ application for default judgment and other applications. On the deductive summary of the arguments therefore the counsel affirmatively submitted that if the provisions of the rules are to be followed, then the entering of default judgment after the expiration of the time stipulated in the rules but before the date stated on the motion proper is at worse a procedural irregularity and not a nullity. Further more, that, had trial judge considered the averments in the proposed statement of defence, he would have seen that issues were not joined on any fact to allow the case to go to trial. Finally and on a very pertinent note, that the trial judge ought not to have declared proceedings and indeed the judgment of the court entered on the 16th October, 1995 anullity, in the absence of any such prayer before it. Learned counsel urged us therefore to allow the appeal.

Deducing from the entire appeal before us, the crux of the issue relates to the premature hearing of the application on notice seeking for summary judgment which same was fixed for hearing on Monday the 13th of November, 1995 as per that evidenced at page 16 of the record of appeal. At page 28 of the record for instance, the learned trial judge on the application to set aside the default judgment dated 8th and filed 11th December had this to say:

“The motion for judgment was heard before the date fixed for arguments. The judgment granted in such a situation to my mind is a nullity. The failure of the defendant to answer to the motion having been served with notice that it was to be argued where convenient to court on the 13th day of November ordinarily violated their right to be heard and runs counter to the provisions of section 33(1) of the 1973 constitution.”

The gravermen of this appeal therefore is the nullity declaration by the learned trial judge of the proceedings as well as his ruling dated 16th day of October, 1995. In other words, the entering of judgment for the plaintiffs in terms of the writ of summons and the statement of claim and thereby setting aside his own said judgment and basing his reasons on the fact that the proceedings of the 16th of October, 1995 amounted to a nullity. Deducing from the submissions advanced by the learned appellants counsel, his approach with all respect, appears to be a misconception of the cardinal issues involved in this appeal. The issues rather and from all deductions of the findings of facts from the lower court’s judgment are:-

1. Whether or not the proceedings and default judgment of 16th day of October, 1995 was a nullity and whether the learned trial judge was therefore right in declaring it as such.
2. If the proceedings and judgment delivered in the motion for summary judgment by the lower court was a nullity, whether the learned trial judge was as a consequence right in setting aside the default judgment.

The two issues will be treated together as they are closely interwoven with the second flowing directly from the first. The learned appellants’ counsel for the determination of this appeal direly relied on the pronouncement by their Lordships of the apex court in the case of Oke v. Aiyedun (‘986) N.S.C.C. 471 at 485 which clearly covers the extent of the power of a trial judge to enter judgment in default, wherein it said:

“The plaintiff on the other hand has referred to the power of a judge of the High Court to give judgment in default of defence without hearing evidence merely on the statement of claim and cited the Federal Supreme Court decision in Adedire Ogunleye v Gabriel Arewa (1960) WRNLR 9 at 11 (per Ademola F.C.J., Brett F. J. and Quashieidnn, Ag. F.J.) I am inclined to agree with that argument. It is a principle of pleading that that which is not denied is deemed to have been admitted and if a plaintiff filed a statement of claim and the defendant failed or refused to file a statement of defence in answer thereto, he, clearly, will be deemed to have admitted the statement of claim, leaving the trial court with the authority to peremptorily enter judgment for the plaintiff without hearing evidence.”

Without much ado, the above restated principle would certainly be obvious in an appropriate and relevant circumstance; the question however is whether it is indeed appropriate and applicable to the case at hand as sought by the appellants.

Relevant and of great significance are the facts on the affidavit deposed to in support of the motion to set aside the default judgment dated 8th and filed on the 11th December, 1995. Paragraphs 1-14 of the affidavit reproduced said:-

“I Oluyemisi Desalu Nigerian, Legal Practitioner, of 25, Boyle Street, Onikan, Lagos make oath and state as follows:-

1. I am a Legal Practitioner in the Chambers of G.O.K. Ajayi & Co., Legal Practitioners to the defendant herein and I have the authority of the defendant to depose to this affidavit.
2. The defendant instructed our Chambers some time in August 1995 to represent him in this suit whereupon we entered appearance for the defendant on the 21st of August J 995 a date that fell within the Annual Vacation.
3. When we commenced preparations for this matter, we requested for some documents and information from the defendant. The defendant asked for some time to obtain these documents and information from his Uncles in Lebanon.
4. The defendant visited our office some time in September 1995 and asked us to inform our Chief G.O.K. Ajayi SAN that he had not been able to obtain the documents and information Chief Ajayi had asked for.
5. In the meantime, the plaintiffs had served on our Chambers a motion with dated 3rd October 1995 for judgment in default of defence. The said application was fixed for 13th November, 1995.
6. Immediately the plaintiffs’ application for judgment in default of defence was served on us we made efforts to contact the defendant but we did not succeed until 10th November 1995.
7. We then settled the defendant’s defence and filed the same with an application for extension of time within which to file the defendant’s statement of defence on the 11th of November 1995.
8. On 13th November 1995, our Mr. A. A. Oriola, Counsel in these Chambers went to court for the said plaintiffs’ application of which we had notice and to move our application for extension of time within which to file the defendant’s statement of defence.
9. That I am informed by Mr. Oriola and I believe him that when he noticed that this matter was not on the cause list for the day, he asked the Registrar why this was so, the Registrar informed him that the file was no longer in court as the court had given judgment for the plaintiffs.
10. That I am further informed by Mr. Oriola and I believe him that he succeeded in locating the file in the Registry and applied to search the same but as there was no electricity supply at the High Court that day, he could not conduct the search.
11. That I am also informed by Mr. Oriola and I believe him that he was however, able to confirm that this Honourable Court gave judgment for the plaintiffs in this suit in default of defence and that the plaintiffs’ application for judgment in default of defence which was not notice to us was in the courts filed before, during and after the judgment of this Honourable

Court aforesaid.

12. That Mr. Oriola also told me and i believe him that he was also able to confirm that the plaintiffs had applied to execute the said judgment and the same may have been executed.
13. This matter was not heard on the merits before judgment was given. Unless the judgment herein and the execution thereon are set aside, the defendant would have lost his right to put forward his defence.
14. Unless the judgment herein and the execution thereon are set aside the rights of all those interested in this matter such as the defendant’s Uncles who were not the parties sued, would have been extinguished.”

Evidenced at page 13 of the record the order made exparte for substituted service had as a return date fixed on the 16th day of October, 1995.

From the foregoing depositions on the affidavit in support of the application for setting aside, the return date for the arguing of the application was clearly Monday the 13th November, 1995, page 16 of the record is evident. The ruling delivered for summary judgment is contained at page 21 of the records and same was delivered on the 16th October, 1995. The motion for the argument was shown to be heard on the 13th November 1995 supra. The consequential effect of the ruling delivered 16th October, 1995 was that it was a product of a pre-mature application fixed for 13th November, 1995. The depositions made on the affidavit in support of the motion for setting aside and reproduced earlier in the judgment supra, were not shown to have been contraverted or denied by any counter affidavit, from the appellants as respondents there in. It is trite law that facts deposed to on an affidavit which are not denied are deemed admitted by the opposite party against whom the facts are deposed.

Furthermore, there was no further evidence confirming any proof of service of hearing notice on the defendant/respondent to the effect that the hearing of the motion for summary judgment against him had been rescheduled for the 16th of October, 1995, and that he should attend the lower court for the hearing of the motion as a business on the court’s list of cases for that day. The paragraphs of the affidavit in particular 5, 8, 9 and 11 supra are very succinct and clear to the point.

It is trite law and affirmatively pronounced in plethora of authorities that issue of non service is very fundamental and which cannot, under any circumstance, be relegated waived and/or done away with. The court cannot under any circumstance either do away with or close its eyes there to such a grave defect. At page 27 of the record further, the learned trial judge also held and said:-

“…the reason if any for allowing judgment to go by default is one of the matters to which the court will have regard in an application to set aside the judgment. There is an inherent power in the court to set aside any judgment obtained on failure of a party to comply with any of the procedural rules.”

In other words and from the decision of the lower court supra, the reason prompting or occasioning the setting aside was predicated on the failure to follow rules of procedure. Lord Atkins LJ in the old English decision of Evans v Bartlam (1937) AC 473 at 480 said:-

“The principle obviously is that unless and until the court has pronounced a judgment upon the merit or by consent, it is to have the power to revoke the expression of its coercive power where that has only been obtained by a failure to follow any of the rules of procedure.”

Also in the case of Engineering Enterprises v Attorney General of Kaduna State (1987) 2 NWLR (Pt.57) p.81 it was decided that the doing justice should be the paramount and overriding basis for the operation of the courts, whether in the interpretative jurisdiction or basic attitudes towards the examination of a case.

In another related authority of the case of David – Osuagwu v. Attorney General of Anambra State (1993) 4 NWLR (Pt.285) p.13 the principle of fair hearing was greatly emphasized and dealt with extensively wherein it is against the rule of natural justice to be condemned without having been given an opportunity to be heard, no matter how grievous the explicitly nature of the offence committed might be. The said principle was relied upon and well grounded in the case of Olaniyan v University of Lagos (1985) 2 NWLR (Pt.9) 599 per Oputa JSC at pages 628-629.

Also relevant is the decision in the case of Fawehinmi v. Attorney General of Lagos State (1989) 3 NWLR (Pt.112) 707 at 724 on the same principle of law enunciated in the said authorities under reference supra.

“The learned trial judge in the appeal at hand in his judgment made it categorically clear in unambiguous terms that the hearing of the application for summary judgment on the 16th October, 1995 while same was in fact fixed for 13th November, 1995 was premature and therefore constituted a breach to fundamental right principle violating section 33(1) of the constitution 1973 in the hearing of the proceedings and ruling delivered in consequence.

This as rightly held by the learned trial judge was in view of the failure to have afforded the defendant/respondent the right of being heard. The learned jurists Iguh JSC again in the case of Atake v Afejuku (1994) 9 NWLR (Pt.368) p.379 at 4280429 had this to say:-It seems to me crystal clear that section 33 of the Constitution vests the citizen with a fundamental right to fair hearing. This fundamental right, without doubt, includes the giving of a party to a suit or charge or the legal practitioner of his choice representing him in such a suit or charge the opportunity to present his case before an impartial court or tribunal in an atmosphere free from fear and intimidation.”

Section 33(1) of the Constitution 1973 had been breached against the defendant/respondent; the decision resulting from that breach was clearly a nullity and which any refusal to set it aside was gravely fundamental amounting to a breach of the respondent’s right to fair hearing. In my considered opinion, the order pronouncing and declaring of the decision a nullity was very proper by the same court and needed no formal application before another court as pronounced in the case of Fawehinmi v Attorney General Lagos State supra.

Further relevant authorities re-affirming the fundamental principle of fair hearing are: Udogu v Equatu (1994) 3 NWLR (Pt.330) 120. Beluonwu v Isokariori & Sons (1994) 7 NWLR (Pt.358) p.587 at 606, Folorunso v Shalonb (1994) 3 NWLR (Pt.333) p.413 at 430 and Ajewole vs Adetumo (1994) 3 NWLR (Pt.33S) p.739.

It is also a cardinal principle of law that in a case where there is a breach of right to fair hearing, same ought to be declared as null and void and be set aside. The decision in the case of Salu v Egeibon (1994) 6 NWLR (Pt.384) p.23 is relevant and substantiating the said principle.

In the circumstance of this case, it is pertinent to state that the order of the lower court, the subject matter of this appeal is discretional. It is my considered opinion having regard to such exercise of discretion therefore, that the learned trial judge resoundly and extensively gave sufficient reasons in his ruling as to why he should set aside the default judgment. In other words, the reasons given have shown sufficient exercise of a judicious and judicial discretion given the full facts and materials laid before the court. In consequence, it is not therefore open to this court to upset the decision of the lower court in setting aside its own judgment.

In the result both the two issues raised are resolved against the appellants. The ruling of the learned trial judge made the 17th January 1996 and setting aside its own default judgment made 16th October, 1995, is hereby upheld. The appeal is lacking in merit and is hereby dismissed. The appellants are condemned to costs of N50,000.00 to the respondent.

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Other Citations: (2009)LCN/3119(CA)