3PLR – JOSEPH TUMINI OGOLO V. CHIEF L.L.B. OGOLO
POLICY, PRACTICE AND PUBLISHING, LAW REPORTS 3PLR
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JOSEPH TUMINI OGOLO
V.
CHIEF L.L.B. OGOLO
COURT OF APPEAL
PORT HARCOURT DIVISION
CA/PH/65/98
11TH MAY 2000
3PLR/2000/149 (CA)
OTHER CITATIONS
BEFORE THEIR LORDSHIPS
JAMES OGENYI OGEBE
MICHAEL EYARUOMA AKPIROROH
ABOYI JAMES IKONGBEH
BETWEEN
JOSEPH TUMINI OGOLO
AND
CHIEF L.L.B. OGOLO
REPRESENTATION
E.C. Ukala (SAN) with him T.U. Uguru ESQ – for the appellant
Dr. J.O. Ibik (SAN) with him M.C. Okonkwo ESQ – for the respondent
MAIN ISSUES
PRACTICE AND PROCEDURE – JUDGMENT – Default judgment – principles governing the grant of an application to set aside default judgment.
PRACTICE AND PROCEDURE – COURT – Extension of time to file statement of defence – applicable principles guiding court in consideration of.
MAIN JUDGEMENT
- E. AKPIROROH, J.C.A:(Delivering the leading judgment)
This is an appeal against the decision of the High Court of Rivers State delivered by Hon. Justice Olukole J, on 28th day of January, 1997 refusing to set aside the judgment entered in default against the appellant for failing to file his statement of defence. At this stage, it is pertinent to state the facts of the case briefly.
By a writ of summons, dated 3/12/93 and duly served on the same day, the respondent claimed inter alia a declaration – that the plaintiff is the duly elected and recognised Chief of Main Ogolo House and the head of Diepiri section and perpetual injunction restraining the defendant from acting or parading himself as the chief of main Ogolo house and head of Diepiri section. The defendant entered unconditional appearance through his counsel on 24/5/94.
Following a formal application on notice for enlargement of time for filing the statement of claim, the trial court granted same on 13/2/96, learned counsel for the defendant not opposing. Prior to the said proceeding of 13/2/96, a Notice of Preliminary Objection dated 19/9/94 had been filed by the defendant complaining about the Statement of Claim purportedly filed on 14/9/94 outside the period prescribed by the rules of court. Consequent upon the order for enlargement of time the plaintiff duly filed and served upon the defendant, his statement of claim. The period prescribed by the rules of court for filing defence having expired, the defendant brought a motion on notice filed on 26/4/96 and fixed for hearing on 8/10/96. Although the learned trial judge took cognisance of the said notice of preliminary objection but did not fix it for hearing, let alone hearing arguments on it until the same date that judgment was entered against the defendant on 8/10/96. In effect the notice of objection challenging the competence of the court was still pending when the learned trial judge struck it out in the course of his ruling on appellant’s counsel’s written application for adjournment which he refused. This is notwithstanding the fact that the learned counsel for the plaintiff/respondent did not make any reference to the notice of preliminary objection during his argument. The judgment itself was made pursuant to motion for judgment dated 16th April, 1996 and filed on the 24th day of April, 1996 while the notice of preliminary objection was still pending. Notwithstanding the fact that the said notice of preliminary objection was still pending and that the same had not been fixed for hearing, the learned trial Judge fixed the motion for judgment for the 20th day of June, 1996 on which date counsel from Alhaji Oso’s Chambers, one A.F. Eli Esq wrote for adjournment on the ground that Alhaji Oso was INDISPOSED.
The court in granting the application for adjournment on the ground of the ill health of the appellant’s counsel, Alhaji Oso, was however unable to accommodate the date suggested by Alhaji Oso which was the 19th day of July, 1996 but rather adjourned the matter to 8th October, 1996, the date on which the default judgment was entered. On the said 8th of October, 1996 the appellant was physically present in court and a letter written by A.F. Eli Esq of the Chambers of the appellant’s counsel, Alhaji Oso was received by the court wherein the said counsel on behalf of Alhaji Oso was asking for adjournment on the ground that Alhaji Oso was away to the Supreme Court. On the same day while the motion for default judgment was being moved by the respondent’s counsel who had actually requested the court to grant him an opportunity “to adduce relevant evidence before the court upon which the court” can exercise his discretion to grant or refuse the declaratory relief sought, another counsel from Alhaji Oso’s chambers, one Mr. J. Kehinde appeared and pleaded with the court to adjourn the matter to the following day. That request, as well as the request by respondent’s counsel to be allowed to lead evidence in support of the declaratory relief were both rejected by the learned trial Judge. The learned trial Judge then entered judgment in favour of the respondent against the appellant. Dissatisfied with the decision of the court, the appellant appealed to this court. The parties filed their brief of arguments.
The appellant identified only one issue for determination as follows:-
“Was the learned trial Judge right in refusing to set aside the defendant’s judgment”.
The respondent also identified only one issue for determination as follows:-
“Whether the trial court was bound to exercise its discretion to set aside its default judgment upon the material placed before it in the above case?”
Mr. Ukala, learned Senior Advocate of Nigeria submitted that the learned trial judge was in error when he held at page 63 of the records that he was funtus officio because it was the plaintiff’s motion for judgment filed on 16/4/96 that was moved and granted under Order 27 rule 8(1) Rules of the High Court of Rivers State. He contended that the judgment envisaged under Order 27 Rule 8(1) of the Rules of the High court is one subject to be set aside as the discretion of the court that entered the judgment and as such the learned trial Judge was wrong in coming to the conclusion that it was a final judgment and therefore he was funtus officio. He cited the case of Wimpey (Nig.) Ltd. v. Balogun (1986) 3 NWLR (Pt. 28) 324.
On the guiding principles to set aside a judgment obtained in default, he relied on many legal authorities including the case of Nigerian Hotels Ltd. v. J.O. Nzekwe & Anor. (1990) 5 NWLR (Pt. 149) 187 at 194. He argued that the appellant having filed a preliminary objection raising such substantial issue as abuse of court process, he was entitled to await the outcome of the objection before filing a statement of defence. The respondent’s contention that the notice of preliminary objection was intended for argument at the hearing of the suit did not preclude joining issues on the pleading is misleading because Exhibit LLB2 attached to the affidavit in support of the motion shows clearly that the objection was intended to be raised to the hearing of the suit and not at the hearing of the suit. He also relied on the statement of defence filed by the appellant at the time the default judgment was entered in favour of the respondent.
He further argued that from the facts of this case, there is no prejudice or embarrassment the respondent can be put into if the judgment is set aside, stressing that the appellant brought his application timeously to set aside the default judgment. He relied on the cases of Governor of Imo v. Anosike (1987) 4 NWLR (Pt. 66) 663 at 673 and Gever v. China (1993) 9 NWLR (Pt. 315) 97 at 109. He further submitted that it has not been the tradition of our courts to encourage technical victories rather the court have always encouraged that all matters be heard on the merits and the parties allowed a fair hearing. He referred to paragraphs 3, 5, 7, 8, 9, 10, 12, 13 and 14 of the statement of defence and submitted that they raise very serious defence to the respondent’s claim.He finally submitted that if the conduct of counsel in applying for an adjournment or in even advising on a course of conduct in respect of the case is adjudged negligent or an outright misconduct, such cannot be visited on the appellant and relied on the cases of Nigerian Hotels Ltd. v. Nzekwe supra at 175, Iroegbu v. Okwordu (1990) 6 NWLR (Pt. 159) 643 at 667 and Doherty v. Doherty (1964) NMLR 144 at 146.
Dr. Ibik, learned Senior Advocate of Nigeria for the respondent submitted that a default judgment given on the ground of failure to file a defence is prima facie a final judgment and that the court entering such a judgment in the circumstances becomes functus officio and relied on the case of A.R.O. Sanusi v. Alhaji Ibrahim Ayoola & Ors. (1992) 11/12 SCNJ (Pt. 11) 142 at 154. He further argued that an applicant who seeks to set aside a judgment given in default of defence must inter alia satisfy the court that he has a good reason for failing to file his defence stressing that the applicant failed to give good reasons for failure to file his defence and relied on the case of AfriBank (Nig.) Ltd. v. Caleb Owoseni (1995) 2 NWLR (Pt. 375) 110. He further submitted that the trial court came to the right conclusion in his judgment, and took into consideration most vital matters before arriving at its reasoning and relied on Order 27 Rule 11 of the High Court (Civil Procedure) Rules. He referred to paragraphs 1, 2 and 3 of the Notice of Preliminary Objection and submitted that they do not constitute a valid reason for failing to file a defence because the cause of action was not shown to be the same cause of action in the instant suit, as there is no averment in the statement of claim filed in this suit touching on the alleged suit No. NOB/BHC/66/85 which said suit is pending before another judge. It was therefore necessary for the defence to have filed his statement of defence establishing nexus between the two cases in order to make out a case of abuse of the process of the court. He further submitted that Suit No. BHC/16/86 and No. CA/PH/167/94 specified in the second paragraph of the Notice of Preliminary Objection is specifically pleaded in paragraph 13 of the statement of claim as having been determined as raising issue estoppel in the instant case. He also relied on Order 24 of the Rules of Court which adequately provides for the raising of preliminary objection in a statement of defence. He further submitted that the appellant failed to adduce valid reasons for failing to file his defence.
On the alleged statement of defence filed by the appellant, he submitted that the statement of defence was not filed during the pendency of the suit but later on 8/10/96 after the delivery of the judgment because counsel did not produce it before the court and none was in the case file. He finally submitted that the learned trial Judge acted in good faith and exercised its judicial discretion judiciously and judicially in refusing to set aside the default judgment.
The only life and vital issue that calls for my determination in this appeal is whether or not the learned trial Judge was right in refusing to set aside the default judgment in this case. Learned counsel for the respondent argued strenuously that the appellant failed to establish a good valid reason for his failure or neglect to file his statement of defence as prescribed by the Rules of Court or ordered by the trial Court.
In paragraphs 4, 5 and 6 of the affidavit in support of the motion to set aside the judgment, the appellant deposed as follows:-
“4. That on the 8th of October 1996 a statement of defence was filed by me in the registry of this court. The said statement of defence is herewith attached and marked Exhibit “OGOLO 1”.
- That I also informed the court that I had already filed the said statement of defence before the court session began on the 8th of October, 1996.
- That in the open court, Mr. Joshua Kehinde a junior counsel in the chambers of Alhaji Fatai Aremu Oso, my solicitor, to my hearing and in my presence informed the court that Alhaji F.A. Oso, who is principally handling the case was yet to arrive from Abuja to Port Harcourt”.
In paragraph 12 of the further and better affidavit, the appellant deposed as follows:-
“12. That the delay to file the statement of defence was occasioned by the preliminary objection which was yet to be heard by the court”.
While the Notice of Preliminary Objection may not be a valid reason for failure to file his defence Exhibit “OGOLO 1” attached to the affidavit in support of the motion to set aside the judgment shows clearly that the appellant filed his statement of defence on 8/10/96, the date motion for judgment in default was heard and granted. The provision of the law in that unless there is an unreasonable delay in making the application or apparent and deliberate neglect on the part of the applicant to prosecute his defence, or that the proposed statement of defence does not reveal a defence on the merits, the attitude of the court is always to lean towards the appellant to put up his defence so as to have the case decided on merit in order to avoid miscarriage of justice. See Fari Kwaham v. Fumi Michael Etims 5 FSC 24.
In the instant case, the appellant attached his statement of defence to the affidavit in support of the motion to set aside the judgment, yet the learned trial judge shut his eyes to it. At page 11 of the records, the learned trial Judge said:-
“It is …………………………………………………………………………………………………… functus officio”.
As was said by Wali (JCA) (as he then was) in Mohammed v. Musawa (1985) 3 NWLR (Pt. 11) 89 at 96:
“……………….All that is required at this stage, is to give a defaulting defendant an opportunity to correct his default in the interest of justice and to that extent he is required to file, an affidavit explaining his default and a statement of defence which would if proved, constitute a defence to the action – John Holt (Liverpool) Ltd. v. Henry Fajemirokun (1961) All NLR 492”.
This is exactly what the appellant did in this case. In the case of Usikaro v. Itsekiri Land Trustees Nnaemeka-Agu J.S.C. said at page 173:-
“……………….I must note that the subject matter of this suit is land. This court has in the case of Chief James Ntukidem & Ors. v. Chief Asuquo Oko & Ors. (1986) 5 NWLR (Pt. 45) p. 909 emphasised the need to decide land cases on their merit……………………….”
Olatawura, J.S.C. had this to say at page 180 of the same case:-
“……….This question of delay is not peculiar to England. Fortunately, Nigerian Constitution is not silent. It gives the court the power to act swiftly but fairly as provided for by the enshrined provision of Section 33(1) of the 1979 Constitution of the Federal Republic of Nigeria which deals with fair hearing. I agree with Dr. Odje in his brief when he said:
‘There is therefore no gainsaying that the determination of their case in the circumstance set out above has caused injustice to the appellants in that the dismissal had defeated and destroyed not “only their claim to the land in dispute but indeed, their very right to have their case determined on the merit.’
Let no man walk out of our courts disappointed in the administration of justice. He will prefer to lose the case on its merits than to allow his opponent win by default.
There is no provision for a walkover in our adversary system. It is not a game of football or a tennis competition. It must be shown and seen that any party has fair trial”.
Using the above as guidelines, I am of the clear and firm view that the learned trial Judge was not fair to the appellant by giving judgment in favour of the respondent against him without hearing his own side of the case. This is more so when the action is predicated on who is the recognised chief of main Ogolo House and Head of Diepiri Section of Opobo Town as between the respondent and the appellant. I have looked at the affidavit in support of the motion and I am quite satisfied that the reason given in it is cogent to allow him to put in his defence. Afterall, the sins of counsel should not be visited on his client. See Lauwers Import Export v. Jozebson Ind. Ltd. (1988) 3 NWLR (Pt. 83)429.
Looking at the defence, I am also satisfied that it raised a defence on the merits. Where a defendant is able to show that he has a defence on the merit, judgment should not be entered against him. He should be granted extension of time within which to file such defence. See Walters v. Moir (1974) 3 E.R. and Fordon v. Rucher (1889) 23 Q.B. 124. From what I have said above, this appeal is meritorious and it is hereby allowed. The judgment of the lower court is hereby set aside and in its place I make the following orders:-
- The Statement of defence attached to the supporting affidavit in the motion to set aside the default judgment is to be served on the respondent within fourteen days from today.
- The case is to be remitted to Rivers State High Court for assignment by the Chief Judge before another Judge for accelerated hearing and determination.
iii. That having regard to the conduct of the appellant in the matter of filing his statement of defence he is to pay the cost of N300.00 in court below to the respondent while the cost of N1,000.00 is awarded in this court to the appellant against the respondent.
JAMES OGENYI OGEBE, JCA: I read in advance the lead judgment of my learned brother Akpiroroh, JCA just delivered and I agree entirely with his reasoning and conclusion. The trial court was too hasty in giving default judgment and was wrong in refusing to set it aside. I too allow the appeal and abide by the consequential orders made in the lead judgment including the order of costs.
ABOYI JOHN IKONGBEH, JCA: I read the draft of the judgment just delivered by my learned brother, Akpiroroh, JCA I agree with him that this appeal ought to be allowed. I too allow it. I abide by the consequential orders made by my learned brother.
Cases cited in the judgment Afribank (Nig.) Ltd. v. Owoseni (1995) 2 NWLR (Pt. 375) 110.
Doherty v. Doherty (1964) NMLR 144.
Fordon v. Rucher (1889) 23 Q.B. 124.
Gever v. China (1993) 3 NWLR (Pt. 315) 97.
Governor of Imo State v. Anosike (1987) 4 NWLR (Pt. 66) 663.
Iroegbu v. Okwordu (1990) 6 NWLR (Pt. 159) 643.
John Holt (Liverpool) Ltd. v. Fajemirokun (1961) All NLR 492.
Kwaham v. Elias 5 FSC 224.
Lauwers Import-Export v. Jozebson Ind. Ltd. (1988) 3 NWLR (Pt. 83) 429.
Mohammed v. Musawa (1985) 3 NWLR (Pt. 11) 89
Nigerian Hotels Ltd. v. Nzekwe (1990) 5 NWLR (Pt. 149) 187.
Ntukidem v. Oko (1986) 5 NWLR (Pt. 45) 909.
Sanusi v. Ayoola (1992) 11-12 SCNJ (Pt. 11) 142.
Walters v. Moir (1974) 3 E.R.
Wimpey (Nig.) Ltd. v. Balogun (1986) 3 NWLR (Pt. 28) 324.
Statutes referred to in the judgment
The Constitution of the Federal Republic of Nigeria, 1979; S.33(1).
Rules of Court referred to in the judgment
Rules of the High Court of Rivers State; Or. 27 r.8(1)
