Yinusa Rabiu V. Amuda Sunmonu & Anor (2000)
LawGlobal-Hub Lead Judgment Report
GALADIMA, J.C.A.
This is an appeal against the ruling of Lagos High Court delivered on 10th January 1985 by Fatiade J. The facts which gave rise to the said ruling are simply that the respondent as plaintiff, on 30th September, 1980 filed Writ of Summons claiming against the Appellant, the sum of Five Thousand Naira (N5,000.00), being the amount he spent in building a bungalow on the Appellant’s landed property situate at No.2 Raji Street, Ashogun Village, Ojo Lagos at the request of the Appellant sometimes between 1979 and 1980.
After the writ was filed and served on the Appellant on 17/10/1980, the Appellant did not appear. Thereafter, on 19/11/1980, a motion for judgment in default of appearance was served on the Appellant but he refused or failed to appear or file a defence to the suit.
On 6/1/81, the Appellant having been given further opportunity by the court to prove his case but failed, judgment was entered in his favour by the lower Court in the sum claimed by the Respondent/Plaintiff. Sequel to that, on 6th January, 1982 the movable properties of the Appellant were attached to settle the judgment debt and cost of execution and the Appellant signed inventory of the movable properties without any protest. However, the proceeds of the sale of the movable properties could not upset the judgment debt and the cost of execution, hence the Respondent applied and obtained leave to attach and sell the Appellant’s immovable property. Thereupon, the Appellant’s house situate at No.2 Raji Street, Ashogun Village, Ojo Lagos was sold to one Alhaji Sikiru Babatunde Subair at a public auction. The said Sikiru Babatunde Subair was later joined by leave of this Court as Co-Respondent in this appeal.
On 16/7/84, and 17/9/84, the Appellant filed two motions on notice at the lower Court for extension of time within which to set aside the judgment of the lower Court of 27/3/81 and for leave to set aside the said judgment and sale of the landed property of the Appellant respectively. On 8/3/85, the lower Court refused the application to set aside its judgment delivered on 8/3/85, and the application was accordingly dismissed. Aggrieved by and dissatisfied with the said ruling of 8/3/85 dismissing the two applications, the Appellant appealed to this Court. In his amended notice of appeal, the Appellant filed seven grounds of appeal and formulated five issues for determination as follows:
“1. Whether the learned trial Judge properly evaluated the affidavit evidence in respect of the motion to set aside the judgment dated 27/3/81 in view of the extraneous matters relied upon by the learned trial Judge in arriving at her decision?.
- Whether the learned trial Judge was right in resolving the conflict in support of the application and the plaintiff’s counter-affidavit in respect of the evidence of the writ of summons without calling for oral evidence?.
- Whether the learned trial Judge correctly applied the principles that are usually taken into consideration before a judgment can be set aside to the peculiar facts of the case?.
- Whether the defendant’s case is manifestly unsupportable in view of the facts contained in the affidavit evidence before the court?.
- Whether the learned trial Judge’s failure in taking into consideration the provisions of the Illiterate Protection Law and other rules concerning Illiterates generally resulted in her making certain perverse findings on her ruling of 8 March, 1985?”.
The Respondent formulated one issue for determination and one alternative issue for determination. Besides, he also raised a preliminary objection based on the grounds of appeal filed along with the notice of appeal by the Appellant. The two issues for determination are as follows:-
“(i) Whether there is a valid and competent appeal?.
Alternatively
(ii) Whether on the exercise of the discretionary power, the Court below was right on refusing or dismissing the appellant’s application to set aside its judgment and the sale of the appellants immovable property?”.
I have noticed that preliminary objection raised by the Respondent has been incorporated as the 1st issue for determination he formulated. Since the 1st issue covered the preliminary part, I shall deal with them together. Also, the 2nd alternative issue has been covered by the 1st, 3rd and 4th issues for determination formulated by the Appellant. The alternative issue for determination formulated by the Respondent and the 1st, 3rd and 4th issues for determination formulated by the Appellant being closely related can be conveniently taken together. I shall therefore deal with them after the issue of jurisdiction raised by the Respondent and then later deal with the 2nd and 5th issue formulated by the Appellant.
The Respondent in his notice of preliminary objection urged this Court to dismiss or strike out the appeal for want of jurisdiction. He submitted that, the original notice of appeal filed in this Court on 12/3/85, containing two grounds of appeal is incompetent since they are grounds of mixed law and facts; leave of the High Court ought to first of all be sought and obtained but such leave was not obtained. According to the learned Counsel, there was no compliance with the provision of sections 220 and 221 of the 1979 Constitution. The learned Counsel further argued that the amended notice of appeal containing the additional grounds of appeal is also incompetent on the same grounds.
The learned Counsel for the Respondent further argued that this appeal being that against the dismissal of an application to set aside judgment delivered in default of appearance is not an appeal against final judgment but an appeal on interlocutory matter. He therefore argued that the grounds being of mixed law and fact, leave must be obtained from the High Court or the Court of Appeal by virtue of the provisions of Section 221 (2) of the 1979 Constitution. Failure to obtain such leave is fatal and render the Appeal of the Appellant incompetent. Reliance was placed on the authorities of Yekini Onigbeden & Anor v. Shola Balogun & Anor (1975) All NLR (Pt.1) 233; Aminu Akindele Ajayi Ojora & Ors. v. Ajibola Odunsi (1964) NMLR 12.
In his reply to the preliminary objection, the Appellant has resolved the issue raised in the objection. The Learned Counsel for the Appellant resolved the issue of leave, and in my view, he had laid it to rest, when he confirmed to this Court in his reply to Respondent’s brief filed on 9/10/1994 that he sought and obtained from this court an extension of time to seek for leave to appeal against the ruling of the lower Court of 8/3/85 and leave to appeal against the said ruling. With the deeming order that the notice and grounds of appeal as having been properly filed and served, I think the preliminary objection can no longer be sustained, it is accordingly overruled.
I will now consider the 1st, 2nd, 3rd and 4 issues formulated for determination by the Appellant and the alternative issue raised by the Respondent. The learned Counsel for the Appellant submitted that the trial Court failed to properly evaluate the affidavit evidence placed before it. That it also believed and acted on evidence not exhibited before it. The learned Counsel further argued that the speculative finding of facts not based on the evidence before the court is perverse and has led to miscarriage of justice. He cited the cases of Ihewuezi v. Ekenya (1989) 1 NWLR (Pt.96) 239; Ogbechie v. Onochie (No.1) (1986) 2 NWLR (Pt.23) 484. The learned Appellant’s Counsel also submitted that the learned trial Judge failed to give adequate consideration to the defendant’s/appellant’s averment that he had no knowledge of the case due to non-service of the writ of summons and of court processes until his house was auctioned on 27/6/84. He argued that, when the Appellant argued that he was not served with court process, the denial by the Respondent is enough to raise some doubt on the issue of service and the doubt ought to have been resolved in the Appellant’s favour. He also denied that the Appellant was guilty of undue delay. It was further argued that if the judgment is set aside the respondent will not be embarrassed or prejudiced.
On the issue of whether the Appellant has supportable defence, it was argued on behalf of the Appellant that he has supportable defence as he has alleged that the agreement he purportedly signed was forged as he never entered into any such agreement. Hence, the judgment was obtained by fraud.
Generally, a court has power to set aside its judgment which it gave not on consent or not on the merit but which it gave in the absence of the defendant or in default of pleadings. This power to set aside such default judgment is discretionary and this discretion of course, must be exercised judiciously. Superior Courts of Record have, however, laid some guiding principles in plethora of decided cases as follows:-
(a) The reasons for the applicant’s failure to appear at the hearing or trial of the case 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 on whose favour the judgment subsists?;
(c) 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?;
(d) Whether the applicant’s case is manifestly unsupportable?; and
(e) 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 the cases of Williams v. Hope Rising Voluntary Funds Society (1982) 12 SC 145; Ugwu v. Aba (1961) 1 All NLR 438; Doherty v. Doherty (1975) NMLR 144 at 145; Momoh v. Gulf Insurance Corporation (1975) 1 NNLR 184 at 184; Khawan v. Elias (1960) SCNLR 516 and Mohammed v. Hussieni (1998) 14 NWLR (Pt. 584) 108 at 130 paras D- G.It is clear from the submissions of the learned Counsel that his main reason why he wanted the judgment of the lower Court to be set aside was because he was not served with the writ of summons and other processes. His other reason is that there was fraud in that the alleged thumbprint on the affidavit of service was a forgery. On this the trial Court found thus:-
“From the records in this case file, there is record that the writ of summons filed on 30th September, 1980 was served on defendant/applicant on 17th October, 1980. He swore to an affidavit to that effect. That there is an affidavit of service of the motion for judgment on defendant as at 19th November, 1980. There were personal service on the defendant…”
On the issue of service which is the grievance of the appellant’s defence the trial court went further to say:-
“Plaintiff in discharging this burden swore to an affidavit in paragraphs 3 and 4 of which he claimed the defendant was served by a court bailiff in his presence both the writ of summons and motion for judgment while defendant is claiming not to be aware of the case he admitted he knew about it in January 1981, when the inventory of the goods were taken and the goods of course taken away. I have nothing in the defendant’s affidavit that he did anything about that”.
It is clear from these findings that there was apparent conflict between the affidavit of the Appellant and the Respondent’s counter-affidavit. On that premise, the Appellant argued that the trial Court ought to have called for oral evidence to resolve the conflict. I agree with the learned Counsel for the Appellant on this. It is trite law that where there is material conflict on crucial facts on the affidavits before the court, the court ought to resolve such conflicts by calling oral evidence. See Faluyi v. Oderinde (1987) 4 NWLR (Pt.64) 155; Atanda v. Olanrewaju (1988) 4 NWLR (Pt.89) 394. See also the record case of Momah v. Vab Petroleum Inc. (2000) 4 NWLR (Pt. 654) SC. 534. In the last case the Supreme Court held that:
“Where a matter is being tried on affidavit evidence and the court is confronted with conflicting or contradictory evidence relied on by the parties on material issue before the court, the court cannot resolve such conflict by evaluating the conflicting evidence but is obliged to call for oral evidence in order to achieve resolution of conflict”.
In this case, it is worthy of note that the Appellant’s Counsel applied to the trial Court to call for oral evidence but it was refused. Indeed, in its ruling the trial court picked and chose the evidence of the respondent/plaintiff. This is wrong since the issues in conflict are very material and important issue before it for resolution. Thus, having failed to resolve the conflicting evidence on the correct and proper manner the trial Court wrongly picked and chose the evidence of the respondent which has been seriously controverted. The decision reached by the trial court therefore became obviously perverse.
The issue No.5 formulated by the Appellant has to do with alleged illiteracy of the appellant. The Appellant is claiming that the trial Court failed to give consideration to the fact that he was an illiterate but instead made numerous assumptions in applying the law. The learned Counsel submitted that due to his illiteracy the Appellant could not understand the reason for the visit by bailiff and as such regarded the visit as an act of intimidation and harassment. It is clear that the trial Court found that it was the defendant/appellant who thumb printed the inventory which the Appellant denied knowledge of its existence completely. He also challenged the purported agreement and denied thumb printing same. I agree with the learned Counsel for the Appellant that this is also an area which can constitute a defence. It is equally a material fact which the trial Court ought to have considered by allowing the parties to call oral evidence for resolution of the conflict since the issue of thumb printing touches on the effect of the agreement on the appellant. The failure of the court to give consideration to the resolution of the conflict as required by law made the entire ruling of the court perversive. An appellate Court is always at liberty to interfere or disturb a finding or decision of a lower Court which is perverse.
On the whole, I feel the lower Court’s ruling delivered on 8/3/85 has to be disturbed by this Court. It is therefore, hereby set aside. I order that the motion on notice to set aside the judgment of the lower Court should be remitted to the High Court of Lagos for rehearing. The appeal is adjudged as meritorious. It therefore succeeds. I make no order on cost.
Other Citations: (2000)LCN/0822(CA)
