ADENIYI & ANOR v. IBE (2020)

ADENIYI & ANOR v. IBE

(2020)LCN/14383(CA)

In The Court Of Appeal

(MAKURDI JUDICIAL DIVISION)

On Friday, June 05, 2020

CA/J/172/2007

Before Our Lordships:

Ignatius Igwe Agube Justice of the Court of Appeal

Onyekachi Aja Otisi Justice of the Court of Appeal

Joseph Eyo Ekanem Justice of the Court of Appeal

Between

1. MRS. MARY EGO ADENIYI 2. ANTHONY AGBO OBEYA APPELANT(S)

And

OLIVER IBE RESPONDENT(S)

RATIO

WHETHER OR NOT AN APPLICATION TO SET SIDE A DEFAULT JUDGEMENT WILL NOT BE GRANTED IF THE DEFENDANT DOES NOT FILE A STATEMENT OF DEFENCE ALONG WITH THE APPLICATION

The law is trite as was decided in Ogolo vs. Ogolo (2006) 5 NWLR (Pt.927) 163; Lassaco Ass. Plc vs. Deserve Savings & Loans Ltd. (2012) 2 NWLR (Pt.1283) page 95 (CA) and Williams vs. Hope Rising Voluntary Funds Society (supra); that an Application to set aside a Default Judgment shall not be granted if the Defendant does not file a Statement of Defence along with such Application. PER AGUBE, J.C.A.

WHETHER OR NOT THE COURT MUST PRONOUNCE ON ALL ISSUES RAISED BY PARTIES TO A SUIT

It suffices to reiterate as enunciated in a host decisions of this Court following Supreme Court authorities like Brawal Shipping (Nig.) Ltd. vs. Onwadike Co. Ltd. (2000) 6 SCNJ 508 at 512; Agu vs. Nnadi (2002) 12 SCNJ 238; Akibu vs. Oduntan (2000) 7 SCNJ 189 at 244; State vs. Ajie (2000) 7 SCNJ 1 at 10 and Owodunni vs. Registered Trustees of C.C.C. (2000) 6 SCNJ 399 that had stressed the need for Trial Courts and indeed penultimate Courts to pronounce on all issues raised by the Parties to a Suit, the failure of which may vitiate a Judgment. In Brawal Shipping (Nig.) Ltd. vs. Onwadike Co. Ltd. (supra) at page 512; Uwaifo, JSC had posited that:-
“It is no longer in doubt that this Court demands of, and admonishes, the Lower Courts to pronounce, as a general rule, on all issues properly placed before them for determination in order, apart from the issue of fair hearing, not to risk the possibility that the only issue or issues decided would be faulted on Appeal. By failing to consider same at all naturally leads to miscarriage of justice as well as constituting a breach of the Appellant’s right to fair hearing.”
See further Ovunwo vs. Woko (2011) 6 SCNJ 124 at 136-137 and Irolo vs. Uka (2002) 14 NWLR (Pt.786) 225 paragraphs D-H. PER AGUBE, J.C.A.

IGNATIUS IGWE AGUBE, J.C.A. (Delivering the Leading Judgment): This Appeal is against the Ruling of the Benue State High Court 4 sitting at Makurdi delivered on the 13th day of March, 2007 refusing the Appellants’ Application No. MHC/17M/2007 for an order of extension of time within which to apply to set aside the Judgment of the Court delivered on 27th November, 2006. The Ruling was delivered by the Honourable Justice A.O. Onum (See pages 82-85 of the Records).

Dissatisfied with the said Ruling, the Appellants by their Notice of Appeal with Four (4) Grounds dated the 19th day of March, 2007 but filed on 16th May, 2007 appealed to this Honourable Court. The Notice and Grounds of Appeal can be found at pages 86 to 89 of the Records. Although the Respondent claims from the introductory part of his Brief of Argument in paragraph 1.1 thereof that the “Appeal is from the Ruling of the Benue State High Court, sitting at Otukpo (Court 4) and presided by the self-same Honourable Justice A. Onum,” the confusion created above has been clarified at page 82 of the Records by the learned trial Judge when in the opening paragraph of the Ruling, he

explained that “The case was filed at Otukpo and eventually transferred to this Court for hearing.”

The facts of the case summarized in the Appellants’ Brief of Argument are that the Respondent as Plaintiff in the Lower Court in Suit No.MHC/12/2006 commenced the action culminating in this Appeal by way of Writ of Summons and in both the Writ and Statement of Claim sought for the following Reliefs in paragraph 13 of the said Statement of Claim thus:-
“13. WHERE UPON, the Plaintiff claims from the Defendants severally and jointly as follows:
(i) A Declaration that the Plaintiff is the person entitled to the property/land situated at No.7 Salem Hospital Road, Otukpo.
(ii) An Order of injunction compelling the Defendants, to quit, vacate and deliver possession of the said Property/Land to the Plaintiff.
(iii) An Order of perpetual injunction restraining the Defendants, whether by themselves or by their Agents, Servants or Privies from further acts of trespassing and occupying the said Property/Land in any way and interfering with the Plaintiff’s right of enjoyment of the said Property/Land without the consent

of the Plaintiff first had and obtained.
(iv) The sum of N500,000.00 general damages for the Defendants’ trespass and occupation of the Plaintiff’s Property/Land situated at No.7 Salem Hospital Road, Otukpo.” Pages 3 to 6 of the Records refer.

According to the Appellants, the Plaintiff/Respondent is a Nigerian Resident in Germany who claimed to have bought the property in dispute from his Assignors of No.7 Salem Hospital Road, Otukpo vide a Deed of Assignment dated the 5th May, 2004 and a Sale Agreement which were admitted in evidence as Exhibits “A” and “B” respectively. The purported Assignors of No.7 Salem Hospital Road, Otukpo to the Respondent are Clement Obeya, Leticia Onyemowo Obeya, Antonia Onyema Obeya and Francisca Onyegiri Obeya-Nwani who were jointly referred to as the beneficiaries of the Will of Late Chief Andrew Ichukwu Obeya vide a Will that was tendered and marked as Exhibit “A” before the trial Court.

The Appellants are said to be the children of the Late Chief Andrew Obeya and that whereas the 1st Appellant is the first child of the said Chief, the 2nd Appellant is the

second but from a different mother from the purported beneficiaries of the Will listed above. It is the further case of the Appellants that the Respondent who resides in Germany purportedly bought the land in dispute from the acclaimed beneficiaries of the Will and during trial of the Suit gave a Power of Attorney to Godfrey Ibe to prosecute the matter on his behalf at the trial Court and he testified as PW2 and tendered the Power of Attorney.

It was their further case that the Appellants were sued before the Otukpo High Court before the Presiding Judge Hon. Justice S.O. Itodo at High Court No.2, Otukpo by a Writ of Summons dated 13th February, 2006 and were purportedly served through substituted means by pasting the Court processes on the walls of Nos. 6 and 7 Salem Hospital Road, Otukpo on the Order of Court vide a Motion Exparte which was granted on 26th day of April, 2006. When the Honourable Justice Itodo was transferred, the matter was taken back to Court No.1 before His Lordship Hon. S.J. Ogwiji on the 29th of June, 2006 but was further adjourned and His Lordship Ogwiji after setting down the matter for hearing declined on personal ground from

hearing the case and remitted the case to the Chief Judge for reassignment on 11th July, 2006.

The case was subsequently to be heard in Court Number 4 Presided by the Honourable Justice A. Onum but on the day fixed for the hearing which was on the 19th of October, 2006; the Appellants were absent from Court and equally not represented and the Chief Bailiff of the Court L.A. Egbo, on the 22nd day of February, 2007 deposed to a ten paragraph Affidavit of Service of the Writ of Summons and Statement of Claim on the Defendants at Nos.6 and 7 Salem Hospital Road, Otukpo following the absence of the Appellants (Defendants in the Lower Court) the case was further adjourned to 15th November, 2006 and the learned trial Judge ordered for service of Hearing Notices on the Defendants either in person or in the same manner as earlier ordered. On the 15th of November, 2006, the learned Counsel to the Plaintiff (now Respondent) A.O. Igoche, Esq. informed the Court of his inability to serve due to the absence of the Bailiff Alfred Onoja Igado and the Court further adjourned to 27th day of November, 2006 and ordered hearing notice to be served accordingly.

On the 27th day of November, 2006; the Court sat and the Defendants were absent and unrepresented. The Respondent (then Plaintiff) opened his case and informed the Court through his Lawyer that they had three Witnesses to call but called only the PW1 and PW2 and then closed his case. The Court then stood down the matter to 3:00pm of the same 27th day of November, 2006 for Judgment.

It is the further case of the Appellants that the Plaintiff/Respondent after obtaining the Judgment pasted a copy thereof on Nos.6 and 7 Salem Hospital Road, Otukpo which the Defendants/Appellants eventually became aware of on the 23rd day of December, 2006 when they came home for Christmas and New Year Festivals that day and upon becoming aware of the said Judgment immediately briefed their Lawyer J.S. Okutepa, Esq. who then filed the Motion No. MHC/17M/2007 on the 10th day of January, 2007 urging the Honourable Court for the following Reliefs:-
“(i) An Order for extension of time within which to apply to set aside the Judgment delivered on the 27th November, 2006.
(ii) An Order setting aside the said Judgment.
(iii) An Order for extension of time for the

Applicants to file Memorandum of Appearance and Statement of Defence as duly filed and served.
And for such further Order or Orders this Honourable Court may deem fit to make in the circumstances of this case.”

On the 23rd day of February, 2007 the Motion which was opposed by the Affidavit and Counter-Affidavit sworn to by L.E. Egbo and Alfred Onoja Igado on behalf of the Plaintiff/Respondent, was heard and adjourned for Ruling on 1st March, 2007. On the 13th of March, 2007; the Ruling was subsequently delivered dismissing the Motion hence this Appeal.

The facts of the case of the Respondent as can be gleaned from his Brief of Argument are not different from those stated by the Appellants on the substantive Suit of the Plaintiff/Respondent in the Lower Court except that he disclosed that upon filing the Suit and when all efforts at personal service of the Originating Processes and Hearing Notices proved abortive, the Lower Court granted his Application for substituted services on the Defendants and same were complied with and the Defendants/Appellants were served by pasting the said processes at the front wall of Nos.6 and 7 of Salem

Hospital Road, Otukpo being their last place of abode.

It was their further case that upon being satisfied that the Defendants (now Appellants) were properly served, the Lower Court proceeded to the hearing of the substantive case on the merit and after hearing the Plaintiff’s case, Judgment was delivered on 27th November, 2016 (Pages 73-77 of the Records). Subsequently, the Appellants filed the Motion No.MHC/17M/2007 now the subject of this Appeal which prayed for the setting aside of the Judgment of 27th November, 2006 and other Reliefs contained therein. As was also stated by the Appellants, the Respondent filed a Six (6) paragraphed Counter-Affidavit on 22nd February, 2007 but no Further Affidavit was filed by the Appellants (Defendants/Applicants). After hearing the respective Parties on the said Motion, the learned trial Judge delivered the Ruling on 13th March, 2007 (Pages 78-85 of the Records refer) against which the Defendants/Appellants have now appealed to this Honourable Court upon the Grounds enumerated at pages 86-89 of the Record of Proceedings.

Upon transmission of the Record of Appeal hereto on the 19th day of June, 2007,

Brief of Arguments were filed and exchanged by the respective learned Counsel to the Parties. In the Brief of Argument settled by Emmanuel Onuche, Esq. on behalf of his colleagues of Lifeline Chambers, Jabi-Abuja which was filed on the 31st day of May, 2016 but deemed properly filed and served on the 16th of June, 2016 by the Order of this Court, the following Issues were distilled from the Four (4) Grounds of Appeal as couched and reproduced hereunder on behalf of the Appellants:-
“ISSUES FOR DETERMINATION:
1. Whether the Trial Court in the circumstances of this case exercised its discretion rightly in refusing to set aside its Default Judgment of 27th November, 2006? (Drawn from Grounds 1 and 3).
2. Whether the learned Trial Court was right in not considering other Reliefs submitted before him in his Ruling? (Drawn from Ground 4).”

As for the Respondent, Prince I.A. Ochoga, Esq. who settled his Brief of Argument dated the 16th day of January, 2018 and filed on 18th January, 2018 but deemed properly filed and served on the 16th January, 2019, nominated a Sole Issue to wit:-
“Whether the Trial Court was right in

dismissing Motion No.MHC/17M/2007?”

ARGUMENTS OF THE LEARNED COUNSEL FOR THE APPELLANTS ON THE ISSUES DISTILLED FOR DETERMINATION:
ARGUMENT OF ISSUE NUMBER 1 (ONE):
Arguing this Issue which questions whether the Trial Court in the circumstances of this case exercised its discretion rightly in refusing to set aside its Default Judgment of 27th November, 2006, the learned Counsel to the Appellant, prefaced his argument by enumerating the 4 (Four) criteria that a Trial Court shall take into consideration in order to exercise its discretion to set aside its Default Judgment. He commended the decisions in ACB vs. LOSADA (Nig.) Ltd. (1992) 2 NWLR (Pt.225) page 572 at 589, Ugwu & Ors. vs. ABA & Ors. (1961) 1 All NLR 438 per Idigbe, JSC and Doherty vs. Doherty (1964) NMLR at 144 at 145; where the conditions were set out.

On the principle of law that a Court has the inherent jurisdiction to set aside its Default Judgment when same is not on the merit, the dictum of Oputa, JSC in the case of U.T.C. vs. Pamotei (1989) 2 NWLR (Pt.103) 244 where the Legal Icon re-echoed Lord Atkins’ Statement of the Law in Evans vs. Bartlam (1937) 2

All E.R. 646 at 650; was relied upon to submit that the Appellants have in their 13 paragraphs Affidavit deposed to the facts that they live at No.18 Ajileye Street Ilaje, Bariga, Lagos and that they were never aware of the Judgment of the Court until they came home for the Christmas and New Year Holidays and that by the time they became aware of the Suit, the Six days permitted by the Rules of the Court had lapsed which facts were not controverted in any way by the Respondent apart from the Appellants’ filing their Motion on 10th of January, 2007 for a Judgment delivered on 27th November, 2006 to be set aside barely two months after delivery.

The learned Counsel to the Appellants also alluded to other reasons advanced by the Appellants in their Supporting Affidavit to the Motion to set aside, that should have warranted the sympathetic consideration of their Application as the Respondent would not be embarrassed or prejudiced if the Judgment is set aside. On another score, the learned Counsel contended that the Appellants were not given fair hearing when after observing from the Affidavit of the Applicants/Appellants, the reasons for failure to

defend the Suit, the learned trial Judge still held as quoted in page 10 paragraph 4.6 to page 11 of the Appellants’ Brief of Argument. It was therefore submitted following the holding by the learned Trial Judge as quoted, that the Court can set aside a Default Judgment within Six days or such longer period as the Court may allow for good cause shown. Relying on the above principle he took solace in the case of Mohammed vs. Husseini (1998) 14 NWLR (Pt.589) 120 paragraphs C-D; and page 130 paragraphs A-C; to assert that the position taken by the Lower Court was a strict application of the Rules rather than the exercise of his discretion judiciously and judicially having taken into consideration all the circumstances of the case more so, as the Appellants raised the issue of the property in dispute being wrongfully included in the Will of Late Chief Andrew Obeya but unfortunately, the learned Trial Judge was not impressed.

On the position taken by the learned Trial Judge that the question was not that the Appellants were served but for extenuating circumstances they could not attend Court but that their contention was that they were not served with the

Hearing Notices and Originating Processes and that while the former could attract the sympathetic attention of the Court, the latter will not, the learned Counsel to the Appellants submitted that the law is not that a Default Judgment can only be set aside when a defaulting party accepted service but could not appear for some reason but that by its nature of Default Judgment, it should have agitated the mind of the learned Trial Judge particularly after reading the title documents accompanying the Proposed Appellants’ Statement of Defence and Counter Claim.

Citing again Chief James Ntukidem & Ors. vs. Chief Asuquo Oko & Ors. (1986) 5 NWLR (Pt.45) page 909 and Sosanya vs. Onadeko (2005) 8 NWLR (Pt.926) 185; he submitted that the Court would have paused to consider the serious allegations in the Statement of Defence annexed to the Affidavit in Support of the Motion as the matter transcended what the Rules says alone but that the law is that the era of technicalities is gone as Courts are now disposed to doing substantial justice as was decided per Pats-Acholonu, JCA (as he then was) in FBN & Anor. vs. O.K. Holding (2001) 32 W.R.N. 109 at

119 which dictum was copiously quoted at pages 13-14 of the Appellants’ Brief of Argument.

The learned Counsel also submitted that the holding of the learned Trial Judge that the Appellants/Applicants merely “trivializing the serious business of the Court” was to say the least a slavish application of the Rules of Court but that in view of the sensitivity of the issues and the subject-matter, the learned Trial Judge ought to have exercised its discretion in favour of the Appellants rather than shut them out from presenting their case. On the need for Trial Courts to be liberal in consideration of Applications for setting aside like the one filed by the Appellants, the Learned Counsel referred us again to the dictum of Pats-Acholonu, JCA (as he then was) in Ohaji/Egbema/Oguta Local Government vs. Chief Wilson Etiti (2001) 2 NWLR (Pt.696) page 63 as well as that of Ogebe, JCA (as he then was) on the need for the Court to be liberal in the grant of Applications to set aside Default Judgments to enable Parties to be on equal footing in the presentation of their cases and that in land matters, Default Judgments should be avoided by Trial Courts,

which dicta he urged us to adopt.

On the rule of practice that where a party testifies in the absence of the other who ought to cross-examine him, the Court should adjourn for cross-examination in the interest of justice, the learned Counsel recalled that in the present case, the Court below was not even minded to adjourn for defence on a later date to allow the Defendants to cross-examine the Witnesses nor was any Written Address filed by the Plaintiff’s Counsel but the Court proceeded to deliver Judgment same date. The learned Counsel also placed reliance on Usikaro vs. Itsekiri (1991) 1 NSCC page 281 at 293 paragraphs 1012 which Supreme Court decision he also quoted copiously at page 15 paragraph 4.14 to page 16 of e Appellants’ Brief of Argument where the Apex Court admonished Trial Courts in Land matters not torush the proceedings/decisions in view of their sensitive nature and asserted again that the speed with which the Court below rushed the decision in the case breached the fundamental right of the Appellants to be notified of the proceedings so as to be heard, moreso, when the Cause List of 27th November, 2006 read

“Hearing” but the learned Trial Judge did not only hear the case but gave judgment same day.

The learned Counsel, still on this point, also referred to the dictum of Fabiyi, JCA (as he then was) while citing several Supreme Court authorities in deprecating the Trial Judge in the case of Menkiti vs. Menkiti (2000) NWLR (Pt.667) 154 at 165 paragraphs B-C; as quoted and reproduced in paragraph 4.15 of page 17 of the Appellants’ Brief of Argument.

Again, on the need for Courts not to go beyond their Cause Lists, he referred to Pam vs. Mohammed citation not supplied per Tobi, JSC to submit that the learned Trial Judge obviously shot over his Cause List of 27th November, 2006 which was for hearing but proceeded to give Judgment as it is clear from the Records that the matter involving a very contentious land with building was assigned to the Court barely a month and some weeks and judgment was entered which amounted to the use of short cut to attain to justice which was deprecated by the Supreme Court in Usikaro & Ors. vs. Itsekiri Communal Land Trustees & Ors. (1991) 2 NWLR (Pt.172) 150 at 178 per Nnaemeka-Agu, JSC.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Learned Counsel also noted that Appellants denied the service of Counter-Affidavit which was deposed to by the Affidavits of the Bailiffs but the learned Trial Judge ignored the existence of conflict in the depositions and proceeded to resolve the issue on the conflicting affidavits of Bailiffs which was challenged by the Appellants without the calling of oral evidence outside the Deposition of the Bailiff. The cases of Tom vs. Ameh (1992) 1 NWLR (Pt.217) page 320, paragraphs C-D and I.B.W.A vs. Sasegbon (2007) 16 NWLR (Pt.1059) pages 217-220, paragraphs D-H; were cited on this principle.

He reiterated his submission on the failure of the Court to notify the Appellant on the proceedings which is a fundamental omission that entitles the Appellants to the order of setting aside on the ground that a condition precedent to the exercise of the jurisdiction of the Court was not fulfilled. He therefore commended the case of TENO Engineering Ltd. vs. Achaji Tahir Yusuf Adisa (2005) 10 NWLR (Pt.933) 346 at 353 paragraphs C-D to urge us to set aside the Judgment for being a nullity.

On his contention that the case ought to start de novo having been

transferred from Ogwuiji, J., to A. Onum, J., and therefore the evidence in the previous trial is inadmissible on the basis that prima facie they have been discarded; he commended to us the cases of Biri vs. Mairuwa (1997) 8 NWLR (Pt.467 page 425 and Agbi vs. Ogbeh (2005) 8 NWLR (Pt.926) page 40; and submitted again that they contended at the Lower Court that according to the Benue State High Court Rules, the Appellants had 60 days to file their defence in land matters but the learned Trial Judge dismissed the submission on the premise that they had been served as per the Order of Itodo, J., granted on 26th April, 2006 and that the Appellants were aware of the proceedings and the 60 days had lapsed. Placing reliance on Babatunde vs. P.A.S. & T.A. Ltd. (2007) 13 NWLR (Pt.1074) 133 at 146-148; on the meaning of de novo proceeding, the learned Counsel again argued that the learned Trial Judge lost it when he failed to take the case as one which started afresh before him the implication of which was that the 60 days allowed by the Rules should have started counting from 19th October, 2006 when the Trial Court first sat over the matter but that the learned

Trial Judge did not only rely on Itodo, J.’s Orders but continued from where Itodo, J., stopped, which error occasioned the unusual speed with which the learned Trial Judge disposed of the matter.

He insisted on fresh hearing notice being served on the Appellants not necessarily fresh Writ of Summons and Statement of Claim but that the Order of Substituted Service of Hearing Notice made by Itodo, J., which the learned Trial Judge Onum, J., used when the matter started de novo had expired following the transfer of the case from Justice Ogwuiji. Accordingly, he maintained that the High Court is not one Court like Court of Appeal or Supreme Court and therefore the phrase “differently constituted” as used by the Hon. Justice Onum, is unfounded for according to the learned Counsel the Hearing Notices purportedly issued for the proceedings of 15th November, 2006 and 27th November, 2006 on the platform of the Order of 24th June, 2006 were null and void as the law is clear that proceedings held where service was not done are a nullity. Scott Emuakpor vs. Ukavbe (1975) 12 SC 41 at 47 per Bello, JSC (as he then was) referred to, in so

submitting.

Finally, in the light of all the above submissions we were urged to set aside the Ruling of the Lower Court and order a re-trial of the Substantive Suit.

ARGUMENT OF LEARNED COUNSEL TO THE APPELLANTS ON ISSUE NUMBER 2 (TWO):
In respect of this Second Issue which questions whether the learned Trial Court erred in law for not resolving all Issues placed before it as distilled from Ground 4 of the Notice of Appeal, the learned Counsel to the Appellants submitted that the law is trite that all Courts be they Trial or Appellate are bound to consider all the Issues submitted to them and resolve the Issues one way or the other. For the above submission, he placed reliance on Iro vs. Uka (2002) 14 NWLR (Pt.786) page 225 paragraphs D-H where the Supreme Court so held.

He referred us to the Appellants’ Application for the setting aside of the Default Judgment in the course of the Argument which the Appellants raised several issues for determination before the Trial Court but the learned Trial Judge in his Ruling of 13th March, 2007 refused to consider and/or pronounce on other issues fully contested and canvassed before him. The

learned Counsel further drew our attention to the fact that the attention of the learned Trial Judge was drawn to the fact that the subject-matter which the Court entered Judgment in the substantive Suit did not infact belong to the Late Andrew Obeya as erroneously and fraudulently included in his Will. According to him, the Appellants proceeded to attach the Title Document which was not in the name of the Deceased but that of MADAM ONYEGIRI IJOGA; which factors should have agitated the mind of the Trial Court to resolve other issues submitted before it.

He maintained that in the adversarial system of adjudication that we operate in this country, a Court has the responsibility to consider all the Issues submitted for determination and canvassed before it as was decided by the Supreme Court in Obi Nwanze Okonji & 4 Ors. vs. George Njokanma & 2 Ors. (1991) 7 NWLR (Pt.202) page 131 at 146; per Uwais, CJN and re-echoed by Olatuwura, JSC in Ebba vs. Ogodo & Anor. (1984) 1 SCNLR 372 and Ogundare, JSC; in Irolo vs. Uka (2002) 14 NWLR (Pt.786) page 195 at 225 paragraphs C-H.

It was further contended by the learned Counsel to the Appellants that

the attempt by the learned Trial Judge to squeeze his failure to determine all other issues by saying that it was subsumed in prayer One of the Motion of the Appellants is of no moment since prayer One sought the leave while the next prayer sought for outright setting aside of the Judgment of 27th November, 2006.

Premised on the above submissions, he insisted that the learned Trial Judge erred in law when he failed to consider and resolve all the Issues placed before him which failure affected in great measure the Ruling.

In conclusion, we were urged upon the reasons advanced in paragraph 6.5(1)-(7) at pages 25, 26 and 27 of the Appellants’ Brief, to allow the Appeal and remit the case back to be tried by another Judge of the Benue State High Court.

ARGUMENT OF THE LEARNED COUNSEL TO THE RESPONDENT ON THE SOLE ISSUE DISTILLED FOR DETERMINATION:
Arguing his Sole Issue which is whether the Trial Court was right to have dismissed the Appellants’ Motion to set aside the Default Judgment of the Lower Court; the learned Counsel to the Respondent answered the question in the affirmative. He referred particularly to paragraph 4(g) to

(i) of the Supporting Affidavits to the Motion which were seriously challenged by Respondent in his Counter-Affidavit to show that the Appellants lied that they had left Benue State for over 20 years to reside in Lagos. The learned Counsel to the Respondent also alluded to paragraph 3(h) of the Counter-Affidavit that referred to Exhibit “B” (A Record of Proceedings of the Benue State Rent Tribunal sitting at Otukpo) showing that the Appellants resided at Nos.6 and 7 Salem Hospital Road, Otukpo (Pages 54 and 62 of the Records refer).

He further referred us to the Affidavits of the Bailiffs and the proofs of service which show that the Appellants were served as ordered by the Court with all the processes of Court. On the significance of such affidavits of Bailiffs and information given to the Court by the Registrar, the learned Counsel placed reliance on the case of Tsokwa Motors (Nigeria) Ltd. vs. UBA Plc (2008) 2 NWLR (Pt.1071) 347 at 374.

On the contention by the learned Counsel to the Appellants that the discretion of the Court was not judiciously and judicially exercised in refusing the Appellants’ Application to set aside the

Default Judgment entered against the Appellants on the 27th day of November, 2006, the learned Counsel to the Respondents argued per contra that the learned Trial Court properly exercised his discretion in dismissing the Motion having regard to the materials before him as he was convinced that all the Court processes were served on the Appellants as ordered by the Court more so where no good reason was offered by the Appellants to show why they should be granted extension of time as it was clear that they reside at Nos. 6 and 7 Salem Hospital Road, Otukpo. Page 62 of the Records where the evidence of the 2nd Appellant before the Rent Tribunal and proof of Service by the Bailiffs can be found, were relied upon in so submitting.

Placing reliance further on Chime vs. Onyia (2009) All FWLR (Pt.480) 678 and A.S.T.C. vs. Quorum Consortium Ltd. (2009) All FWLR 1444 at 1467; on the need to obey the Rules of Court, it was submitted again by the learned Counsel to the Respondent that the Appellants have not shown that the Trial Court exercised her discretion wrongly so as to be entitled to any sympathy by this Honourable Court and as such we were urged not to

interfere with same.

Finally, the learned Counsel contended that the issue of Service of the Originating Processes is no longer a live issue worthy of any consideration as the Appellants have not specifically appealed against the findings of the Trial Court that they (Appellants) were not served and for the above submission, reliance was placed on the authorities of Ime David Idiok vs. The State (2008) 163 LRCN 155; Raphael Waka Ogbimi vs. Niger Construction Ltd. (2006) 9 NWLR (Pt.986) 474; to further contend that the Appellants were in grave misconception to have argued as they did that they were not served.

In conclusion, the learned Counsel to the Respondent prayed us to dismiss the Appellants’ Appeal on all the Issues distilled and canvassed by the Appellants with substantial costs in favour of the Respondent.

RESOLUTION OF ISSUES:
Upon a calm and dispassionate consideration of the Issues distilled for determination by the respective learned Counsel to the Parties, I am of the considered view that based on the facts on Records and the submissions of learned Counsel in their respective Briefs of Argument, the Two (2) Issues

nominated by the learned Counsel to the Appellants are capable of determining this Appeal one way or the other. Accordingly, the Sole Issue distilled by the learned Counsel to the Respondent, shall be subsumed within the Appellants’ Issues and I hereby adopt the Appellants’ Issues in the determination of this Appeal.

RESOLUTION OF ISSUE NUMBER 1 (ONE):
“WHETHER THE TRIAL COURT IN THE CIRCUMSTANCES OF THIS CASE, EXERCISED ITS DISCRETION RIGHTLY IN REFUSING TO SET ASIDE ITS DEFAULT JUDGMENT OF 27TH November, 2006? (DRAWN FROM GROUNDS 1 AND 3 OF THE NOTICE OF APPEAL).”
In the resolution of this first Issue, it is only pertinent and apt to refer to the extant Rule of the Benue State High Court (Civil Procedure) Rules, 1988, CAP. 76, Laws of Benue State upon which the Application for the extension of time to set aside the Lower Court’s Default Judgment and other prayers which were for an Order setting aside the said Judgment, Order for extension of time for Applicants to file Memorandum of Appearance and Statement of Defence as duly filed and served and for such further Order as the Court may deem fit to make in the

circumstances of the case, were predicated.
That Rule in question as can be gleaned from the Motion paper at page 13 of the Record of Appeal is Order 37 Rule 9 of the Benue State High Court (Civil Procedure) Rules, 1988. I have perused the Revised Laws of Benue State Volume 1 at pages 1113-1114 which contain the provisions of Order 37 but there is no Rule 9 as the Rules stop at 8. In any case Order 37 deals with Originating Summons Proceedings whereas the Suit warranting the entry of Default Judgment against the Appellants was commenced by way of Writ of Summons as is apparent from pages 1 to 7 of the Record of Appeal. Upon a further perusal of the Rules, I found out that the appropriate Rule under which the Application was brought is Order 14 that provides for Default of Appearance and for the specific purpose of this case, the applicable Rules are 3(1) and 6 which for purposes of clarity and emphasis I dare to reproduce here under:-
“Rule 3(1) Where the action is for the recovery of land with or without any other related claim, and no appearance entered within the time limited for appearance, the plaintiff shall be at liberty to have judgment

entered for him.”
As for Rule 6 which marginal note is captioned “Setting aside Judgment,” it provides thus:
“6. Where Judgment is entered pursuant to any of the preceding rules of this Order, it shall be lawful for the Court or Judge in Chambers to set aside or vary such Judgment upon such terms as may be deemed just.”
The above provisions and similar provisions in other High Court (Civil Procedure) Rules of the Federation have been the subject of a plethora of decisions/interpretations by the Supreme Court and indeed this Court as well as commentaries by Legal Pundits in Judicial Texts. Thus as was held in Alapa vs. Sanni & Ors. (1967) NMLR 397 which I re-echoed in Hope Democratic Party vs. Obi & Ors. (2011) LPELR-9095 (CA) pp.29-30 paragraph A; the principle is trite that unless and until the Court has pronounced a Judgment upon the merits or by consent, it has the inherent powers to set aside its Judgment where there has been a fundamental defect in the proceedings such as where the Court lacked the jurisdiction to entertain the Suit just as it is provided above in the Rule cited. In the instant case,

the same power has been conferred on the trial Court by Rule 6 of Order 14 of the Benue State High Court (Civil Procedure) Rules; to set aside the Default Judgment suo motu in Chambers or upon the application of the Applicants herein ex-debito justiciae as they had done at the trial Court. See Skenconsult (Nig.) Ltd. vs. Ukey (1981) 1 SC 6; A.C.B. Plc vs. Losada (Nig.) Ltd. (1995) 7; Ezeokafor vs. Ezeilo (1999) 6 SCNJ 209 at 225; Ugwu & Ors. vs. Aba & Ors. (supra); U.T.C. vs. Pamotei (1989) 2 NWLR (Pt.103) 244; ably cited by the learned Counsel to the Appellants.
The rationale behind this stance of the Courts is that in normal trials of actions where evidence is given by the parties and their Legal representatives proffer arguments both on the issues of facts and law as joined by them culminating in a Judgment being rendered by a Trial Court, such a Judgment is final and the Court is not seised of any powers ordinarily to set aside its Judgment since the Trial Judge has become functus officio. The only remedy opened to a party aggrieved with such a Judgment is to appeal against it. It has also been held that a Judgment in default of defence like

that which is the subject of this Appeal, is not on the merits same having been obtained only due to the failure of the Defendants/Appellants to abide by some procedural Rules. See Alapa vs. Sanni & Ors. (supra); Oppenheim & Co. vs. Mohammed Haneef (1922) 1 A.C. 482.
Not withstanding the principles as enunciated/enumerated above, the learned Counsel to the Appellants was on very sound pedestal when he relied on ACB vs. Losada (Nig.) Ltd. (supra); Ugwu & Ors. vs. Aba & Ors. (supra) as well as Doherty vs. Doherty (1964) NMLR 144 at 145; on the conditions that an Applicant like the Appellants must meet in order for the Court below to exercise its undoubted judicial and judicious discretion to grant an Application setting aside the Judgment entered against them (Defendants/Applicants/Appellants) for want of appearance as at when due at the trial.
At page 456 of the celebrated Text “CIVIL PROCEDURE IN NIGERIA, SECOND EDITION” the Erudite Author Fidelis Nwadialo, SAN (of blessed memory); observed that there is need for the Applicant in an Application to set aside a Default Judgment, to demonstrate in his Affidavit that he

has a defence on the merits which is a pre-requisite for such an Application to have any chance of success. S. Idugboe & Co. Ltd. vs. Macaulay (1976) 2 FRN 123 refers. Further more, on the authorities of Evans vs. Bartlam (1937) A.C. 473 at 480; there would be no justifiable reason to set aside the Judgment, if there is no tenable defence to the Plaintiffs’ Claim. Also the reason for the default in serving the Statement of Defence should be stated and the Application should be made promptly and as soon as the Order for Judgment has been given.
In the words of the learned Author who cited the Locus Classicus of Applications of this nature and criteria for their grant:-
“The relevant considerations upon which the Court bases its decision as to whether or not to grant the Application and thus set aside a Default Judgment are set out in Ugwu vs. Aba and Others (1961) All NLR 438 and were affirmed by the Supreme Court in N.A. Williams and Others vs. Hope Rising Voluntary Funds Society (1982) 1-2 SC 145; See also Mohammed vs. Husseini (1998) 12 SCNJ 136 at 153-154 as follows:-
(i) The reason for the default;
(ii) Whether there has

been undue delay in making the application so as to prejudice the Respondent;
(iii) Whether the Respondent would be prejudiced or embarrassed upon an order for rehearing being made so as to render it inequitable to permit the case to be re-opened; and
(iv) Whether the Applicant’s conduct throughout the proceedings, from service of the Writ upon him to the date of Judgment, has been such as to make the application worthy of sympathetic consideration.”
The learned Author further observed that embarrassment would ordinarily result where the rights of third parties have intervened as was decided in the English case of Harley vs. Sampson (1914) 30 TLR 450.

Now, going by the principles above enunciated we can only determine whether the Appellants’ Motion deserved to succeed, from the facts deposed to in the Affidavit and Counter-Affidavits as well as the documentary Exhibits annexed to those Affidavit and Counter-Affidavits of the Parties (Appellants and Respondent). Beginning from the Applicants’ 13 paragraph Affidavit in Support of their Motion which can be found at pages 15-19 of the Records, J. Sokwei, Esq. of the

learned Counsel in the Chambers of J.I. Okutepa & Co., Solicitors to the Defendants (Applicants now the Appellants), deposed to the following facts that by virtue of his position he was familiar with the facts of the case and that he had the consent of the Defendants/Applicants and his principal J.S. Okutepa to depose to the Affidavit.

In paragraph 4(a)-(l) he averred as follows:-
“(a) That she lives at No.18 Ajileye Street, Ilaje, Bariga, Lagos.
(b) That she and the 2nd Applicant did not appear in Court on the day the case was heard.
(c) That the reason for their non-appearance was that they were not served with any Court processes.
(d) That they only became aware of the Suit when the Judgment delivered on 27th December, 2006 was pasted on the property located at No.7 Salem Hospital Road, Otukpo.
(e) That she was informed by the tenants at No.7 Salem Hospital Road, Otukpo and she verily believes them that apart from the Judgment, that was pasted on the said property, no Court processes were ever pasted on the property.
(f) That both her and the 2nd Defendant/Applicant are residing in Lagos and not in Benue

State.
(g) That both her and the 2nd Applicant only come home during Christmas and New Year Festivities since they left for Lagos over 20 years ago.
(i) If the Writ of Summons, the Statement of Claim and hearing notice were pasted on the property at No.6 and 7 Salem Hospital Road, Otukpo, as falsely deposed in the Affidavit of service of the Bailiff of this Court, she and the 2nd Defendant/Applicant would have received it, in the same way they got notice of the Judgment.
(j) The reason why they did not get to know of the case was because the processes were not pasted there and that the Bailiffs of this Honourable Court lied when they deposed that the processes were pasted there.
(k) They have no reason not to respect the Court if they got the processes and that she and the 2nd Applicant have tremendous respects for the Honourable Court.
(l) They were not ‘served with notice accordingly’ as ordered by this Honourable Court on 15th November, 2006. The proceedings of this Court between 19th October, 2006 – 27th November, 2006 are annexed hereto as Exhibit “C”.”

In paragraph 5(a) the learned Counsel

further deposed to the facts that he knew as a fact that when the Applicants briefed their Law Firm on 5th January, 2007, he conducted inquiries in the Registry of the Honourable Court and discovered that there was an Affidavit of Service before the Court that purportedly showed that the Applicants were served the Writ of Summons and Statement of Claim on 29th September, 2006; there was no Application that the case be set down for hearing from the Plaintiff but that on 15th November, 2006, the Court had ordered that “the Defendants shall be served with notice accordingly”. There was no proof of service that the Defendants/Applicants were served, he further averred.

In paragraph 6, the learned Counsel disclosed that he eventually obtained for the Defendants/Applicants a copy of the Writ of Summons and the Statement of Claim on 5th January, 2007 and upon reading through the processes, discovered that the dispute between the Parties in Suit No.MHC/12/2006 bothers on Land/Landed Property.

In paragraphs 7-9, the learned Deponent averred that he knew that as a fact the Defendants/Applicants had 60 days to file their Statement of Defence in the

matter, the dispute being a land matter and that between 29th September, 2006 when the Defendants/Applicants were purportedly served with the Writ and Statement of Claim and 27th November, 2006, when the Judgment was delivered is less than 60 days. He also disclosed that he was also informed on 5th January, 2007 by 1st Defendant/Applicant that the Landed Property at No.7 Salem Hospital Road, Otukpo, purported to have been bequeathed in the purported Will of Late Chief Andrew I. Obeya was the property of her grandmother, Madam Onyegiri Ijoga of blessed memory who was said to have brought the 1st Applicant up following the death of her Mother early in her life.

Her 1st Defendant/Applicant also claimed that her said grandmother gave her the said property and surrendered the title documents to her. The copy of Certificate of Occupancy to the land and copies of the Receipts evidencing payment of ground rent had been shown to him (the Deponent) and annexed to the Affidavit as Exhibits “A” and “B” and “BB” in that order. The Deponent also alleged that the Will upon which the Plaintiff relies to claim the property in dispute

is not the real/true Will of Late Andrew I. Obeya. He reiterated that the reasons why the Defendants/Applicants did not appear in Court was because they were not served with the processes and did not know of the Judgment until they came for the Christmas and New Year Festivities on 23rd December, 2006. He further deposed to the fact that they have good Defence and Counter-Claim to make on the property and the Will of Andrew I. Obeya and the said Defence as prepared have been shown to him and annexed as Exhibit “D” and so was the Memorandum of Appearance annexed and marked Exhibit “E”.

In paragraphs 10 to 12, the learned Counsel deposed to the facts that the necessary filing fees had been paid to deem Exhibits “D” and “E” as properly filed and served and that he knew as a fact that the Honourable Court had the jurisdiction to set aside its Judgment of 27th November, 2006 and to deem Exhibits “D” and “E” as properly filed. He finally averred that the Plaintiff/Respondent would not be prejudiced if the Orders sought were granted.

It would be recalled that Alfred Onoja Igado, a

Bailiff attached to the High Court of Justice, Makurdi Division swore to an Affidavit of 6 paragraphs to the effect that he was assigned to serve processes in Suit No.MHC/12/2006 and that Hearing Notices were given to him for service on the Defendants/Applicants by pasting on the walls of Nos.6 and 7 Salem Hospital Road, Otukpo and he did on the 29th September, 2006 and 17th November, 2006 respectively at the same venue at Otukpo. Copies of the Proof of Service of the processes were attached to the Affidavit. He knew that what he served on the Defendants/Applicants were Hearing Notices and not the Writ of Summons and Statement of Claim. He deposed that he pasted the Hearing Notices on the Walls of Nos.6 and 7 Salem Hospital Road, Otukpo personally and that having so pasted the Notices which were marked Exhibits “J1” and “J2” as well as “H1” and “H2” respectively (See pages 43 to 46 of the Records); he deposed/swore to the Affidavit of Service of the above named processes.

On his part, L.A. Egbo, a Chief Bailiff attached to the High Court of Benue State, Otukpo Judicial Division also swore to an Affidavit of

ten paragraphs dated 23rd day of February, 2007 that he was the Bailiff assigned to serve processes in Suit NO.OHC/12/2006 between Oliver Ibe and Mary Ego Adeniyi and Tony Agbo Obeya (the Defendants/Applicants/Appellants herein) which Suit was transferred later from High Court No.2 to High Court NO.1, Otukpo. According to him some time in February, 2006, a Writ of Summons and Statement of Claim in the above Suit were given to him for service on the Applicants (now Appellants) at Nos.6 and 7 Salem Hospital Road, Otukpo and he went to those premises more than twice but could not see the Applicants. On one such occasion he went in to inquire and was informed by one Papa Uche that the 1st Applicant only surfaced in the compound by night time since she had a problem with her siblings who invited the Police for her and her younger brother (the 2nd Applicant/Appellant). He was further informed that the 1st Applicant/Appellant was the Landlady of Papa Uche and he reported to the Plaintiff/Respondent’s Counsel about the development that he was finding hard to serve the Defendants/Applicants.

As a result of the difficulty encountered and the eventual report

to the Plaintiff/Respondent’s Counsel, on the 26th of April, 2006, the Plaintiff/Respondent’s Counsel drove him to Nos.6 and 7 Salem Hospital Road, Otukpo to serve the Writ and Statement of Claim on the Defendants/Applicants by pasting same on the walls of Nos.6 and 7 Salem Hospital Road, Otukpo which he did and swore to that effect at the High Court Registry. Copies of the proof of service were annexed and marked Exhibits “P1” and “P2” to the Affidavit respectively. (See paragraphs 1-7 of the said Affidavit at pages 47 to 48 of the Records).

At page 48 the said Chief Bailiff further deposed in paragraphs 8 and 9 thereof that when High Court No.2, Otukpo ceased to function and this matter was transferred to High Court No.1, Otukpo, he also served another set of Hearing Notices on the Applicants by pasting same on the walls of Nos.6 and 7 of Salem Hospital Road, Otukpo, copies of proof of service which he also annexed to this Affidavit challenging the Defendants/Applicants’ Motion were also marked Exhibits “Q1” and “Q2”.

Finally, he deposed to the fact that Applicants were served by

Substituted means with the Writ of Summons as well as the Statement of Claim at Otukpo by him the said L.A. Egbo, Chief Bailiff, before the matter was transferred to the Chief Judge for re-assignment. The Affidavits of Service annexed as Exhibits “P1”, “P2”, “Q1” and “Q2” can be found at pages 49 to 52 of the Record of Appeal.

Not done with the respective Affidavits of the Bailiffs (Alfred Onoja Igado/and that of L.A. Egbo, Chief Bailiff); one Joseph Edo, the Litigation Secretary in the Chambers of Owofu, Ankpa, the Law Firm of E.J. Igoche, Esq.; Solicitors to the Respondent with the consent and authority of Counsel and the Respondent, deposed to a Counter-Affidavit of 6 paragraphs to which were annexed Exhibits “A”, “B” and “C”. Exhibit “A” is a Benue State Government Revenue Collector’s Receipt dated 9th February, 2006 in respect of Writ, Affidavit and Brief of Argument’s Filing Fees (See page 60 of the Records); Exhibit “B” is an Application for Writ of Summons dated the 2nd day of July, 2005 and issued by Tony Agbo Obeya as

Plaintiff against Dr. Ukwuoma and Godwin Ake through the Registrar, Benue State Rent Tribunal, Otukpo (Page 61 of the Records refers) while the Record of the Proceedings of the said Tribunal can be found at pages 62 to 70 of the Records and Exhibit “C” the letter of transfer of the Suit now on Appeal from the Otukpo Judicial Division of the High Court to the Makurdi Judicial Division can be found at page 71 of the Records.

In the said Counter-Affidavit, Mr. Joseph Edo in paragraph 3(a) and (b) at page 53 of the Records deposed to the fact that he was informed at No.4b Prince Eno Crescent, Otukpo at about 2pm on 21st February, 2007 by the Respondent’s representative one Godfrey Ibeh and E.J. Igoche, Esq.; and he verily believed them that the Defendants/Applicants’ Motion Papers including the Affidavit posted to E.J. Igoche was received on 21st February, 2007 at about 11:20am and the contents were read by the Respondent’s representative at Otukpo at about 4pm in the presence of his Counsel and himself (the Deponent) and the Respondent’s representative understood the contents of the Affidavit.

In sub-paragraphs 3(c)

to (j) at page 54 of the Records, he denied paragraphs 4(c)-(l), 5(a), (b), (d), 8, 9(a), (c), (d), (e), (f), 12 and 13 of the Defendants/Applicants’ Affidavit in Support of their Motion for the setting aside of the Default Judgment as deposed to by one J. Sokwei, Esq. as false and incorrect.

According to him, the Writ was filed on 9th February, 2006 and signed by the then Presiding Judge, Hon. Justice S.O. Itodo at the Otukpo High Court No.2 on 13th February, 2006. A copy of the Receipt evidencing payment for the filing of the Writ was annexed as Exhibit “A”. He averred further that after attempts to serve the Defendants/Applicants whose last known addresses were Nos.6 and 7 Salem Hospital Road, Otukpo, were fruitless as a result of evading service, an Ex-parte Application for Substituted Service was filed on 7th April, 2006 and granted on 26th April, 2006 by the same Honourable Justice S.O. Itodo.

It was his further deposition that on the 26th April, 2006, the Respondent’s Counsel, E.J. Igoche, Esq., took the Chief Bailiff L.A. Egbo of High Court No.2, Otukpo in his car and the said Chief Bailiff pasted the Writ of Summons

and Statement of Claim on the Walls of Nos.6 and 7 Salem Hospital Road, Otukpo which was the residence of the 1st and 2nd Defendants/Applicants. He averred further that the 2nd Defendant/Applicant took out a Writ of Summons at the Otukpo Rent Tribunal in Suit No.BSRT/OTZ/25/2005 in which he stated that he lives at No.6 Salem Hospital Road, Otukpo. A copy of the Record of proceedings of that Suit was annexed as Exhibit “B” as stated earlier.

As a result of the transfer of Itodo, J., the matter was taken to Court No.1, Otukpo and came up before the Hon. Justice S.J. Ogwuiji on 29th June, 2006 and further adjourned but His Lordship after setting down the case for hearing declined hearing of the case on personal reasons and ordered the matter to be remitted to the Honourable, the Chief Judge of Benue State for re-assignment on the 11th of July, 2006. A copy of the Directive was annexed as Exhibit “C”.

Thereafter, he further averred, the case was mentioned at the High Court No.4 on 19th October, 2006 upon reassignment by the Chief Judge to that Court. He also averred that before 19th October, 2006 when the matter came up, Hearing

Notices were served on the Defendants/Applicants before they were absent and the Court ordered on 15th November, 2006 that fresh hearing notices still be served on them which were done by the Bailiff of the Court Mr. A.O. Igado before the matter proceeded to hearing on 27th November, 2006.

The Deponent also disclosed that he knew as a fact that the Applicants were served with both the Writ of Summons and Statement of Claim earlier as well as Hearing Notices several times both at Otukpo High Court Nos.1 and 2 as well as High Court No.4 but refused to attend Court (Paragraph 4 of the Counter-Affidavit at page 55 of the Records refers).

Finally in paragraph 5 of the Counter-Affidavit he averred that he was informed by E.J. Igoche, Esq. at No.10, Post Office Road, Ankpa on 21st February, 2007 at about 11:45am and he verily believed him as follows:-
“(a) That when the Will of Late Chief Andrew I. Obeya was admitted to Probate at the Probate Registry in Lagos High Court on the 11th day of May, 2007, the Applicants were aware and to date no notice of objection has been filed in any Court in Nigeria.
(b) That the services that were effected

on the Applicants on 29th September, 2006 were hearing notices and not the service of a Writ of Summons and Statement of Claim on the Applicants.
(c) That the Applicants to the best of his knowledge were duly served.”

There was no Further Affidavit to challenge the above averments of the Respondent. Be that as it may and upon a careful perusal of the Records and depositions of the Parties in this Appeal, there is no doubt that the Appellants’ were not served directly by Respondent nay the Bailiffs with the Originating Processes that set the Respondent’s Suit in Motion. The Writ of Summons and Statement of Claim and even the Hearing Notices were served by Substituted means – by pasting on the Walls of Numbers 6 and 7 Salem Hospital Road, Otukpo. The Appellants have deposed in their Affidavit that they live at No.18 Ajileye Street, Ilaje, Bariga, Lagos and it was not until the 23rd day of December, 2006 from where they came for the Christmas and New Year Festivities on the 23rd day of December, 2007 that they met the Judgment of the learned Trial Judge pasted on the walls of the property in dispute. They had also deposed to the

fact that by the time they became aware of the Judgment the time limited for them to apply to set same aside had elapsed. Even though the Respondents have annexed Exhibit “A” attached to the Affidavit in Support of the Motion Ex-parte for Substituted Service dated and filed on the 7th day of April, 2006 that Affidavit/Proof of Service deposed to by L.A. Egbo clearly states that: “The Writ of Summons was not served on Defendants because I went to No.7 Salem Hospital Road, Otukpo 14th February, 2006. I was told that she (sic) at Lagos then on 2nd March, 2006, I was told that she still at Lagos and 3rd April, 2006 still she not on site.” See page 11 of the Records.

The same L.A. Egbo at page 12 of the Records in another proof of service stamped and dated 7th April, 2006, also attached to the Affidavit in Support of the Motion Ex-parte for Substituted Service deposed that he forwarded the Writ of Summons which was not served because he went to No.6 Salem Hospital Road, Otukpo on 14th February, 2006 and was told that Tony Agbo Obeya was living at Okpoga not Otukpo and on the 3rd March, 2006, he was told that the 2nd Defendant/Applicant

(now Appellant) was living at Okpoga and up to the date he deposed to/filed the proof of service, the 2nd Defendant had not been seen. Contrary to the above facts as deposed to by the said Mr. Egbo in the proof of service, Mr. Yahaya Audu, in the Affidavit in support of the Motion Ex-parte for Substituted Service, rather deposed in paragraph 3(d) that each time the Respondent’s Counsel went with the Bailiff to serve the Appellants, they were told by the tenants in Numbers 6 and 7 Salem Hospital Road; that the Defendants/Appellants only came home at night and leave very early in the morning. On a careful scrutiny of the said Affidavits/Proofs of Service annexed to Affidavit in Support of the Motion Ex-parte, it can be seen that they are fabricated in that whereas the documents originated from the Makurdi Division of the High Court to where it was transferred the Suit No.MHC/12/2006 and Makurdi were cancelled and Otukpo initials written in their stead in a Suit that ought to have originated from Otukpo.

From all indications, I am therefore convinced that the Appellants were neither served with the Writ of Summons and the purported Hearing Notices

until the Suit was decided behind their back. The Appellants from their Affidavit and even the Counter-Affidavit of the Respondent as well as Proof of Service of the processes annexed to the Affidavit in Support of the Motion-Exparte for Substituted Service have fulfilled the first condition for the setting aside of the Default Judgment.

As for the second condition, whether there has been undue delay in making the Application, so as to prejudice the Respondent, I agree as rightly submitted by the learned Counsel to the Appellants that the fact that the Appellants only became aware of the case on the 23rd of December, 2006 but by the 10th day of January, 2007 barely two months thereafter the Applicants/Appellants had already filed their Motion for extension of time to set aside the Judgment; showed that they did not inordinately delay in so doing. The learned trial Judge from all the circumstances surrounding this case was therefore wrong to have held as he did at page 84/3 of the Records/Ruling that he was satisfied that the Applicants were properly served with the Writ and Statement of Claim in the case on the 26th of April, 2006 and that they were well

aware of the existence of the case. Even though they had Sixty days to join issues, as allowed them by Rules of Court, there is ample evidence from the Appellants that they were not served in view of their being either resident in Lagos or Okpoga and not Otukpo where the subject matter of the Suit was located. I had earlier on held that no Hearing Notices were served on them as purported by the Bailiffs and learned Counsel to the Respondent.

Contrary to the holding of the learned Trial Judge that the complaint of the Appellants that should have attracted sympathy would have been that they were served but for some inexplicable reasons could not put up appearance rather than that they were not served; with due respect to the learned Trial Judge, the importance of service of processes of a Court on a party is very fundamental to the exercise of a Court’s jurisdiction. Where a party was served but he chose to be indolent or gives an inexplicable reason for not showing appearance at the trial, his case/Application to set aside a Default Judgment entered against him, ought not to attract the sympathy of a Court contrary to the position taken by the learned

Trial Judge at page 85/4 of the Records/Ruling.
The importance of service of process of Court was re-emphasized in the recent case of Uwemedimo vs. Mobil Producing (Nig.) Unltd. (2019) 12 NWLR (Pt.1685) 1 at 19 paragraphs E-F; where the Supreme Court per Rhodes-Vivour, JSC reasoned thus:-
“It has been long settled that the issue of service of process is an essential aspect of our procedural law as it is a jurisdictional issue. The Court has no jurisdiction over a litigant who has not been served. Service of process in all proceedings except in exparte proceedings is fundamental to the assumption of jurisdiction. See Skenconsult (Nig.) Ltd. vs. Ukey (1981) 1 SC p.6; ACB vs. Losada (Nig.) Ltd. (1995) 7 SCNJ p.158, (1995) 7 NWLR (Pt.405) 26; Auto Import Export vs. Adebayo (2003) 1 SCNJ p.154 (2002) 18 NWLR (Pt.799) 554; Agip (Nig.) Ltd. & Ors. vs. Ezendu & 9 Ors. (2010) 1 SC (Pt.II) p.98 reported as Agip (Nig.) Ltd. vs. Agip Petroli Int’l (2010) 5 NWLR (Pt.1187) 348.
However the Court has jurisdiction over a litigant who is not served process but submits to the jurisdiction of the Court. That is to say the litigant waives service.”

There is also no doubt that from the facts of this case that there was no inordinate delay in bringing this Application just barely two months after the Default Judgment and there is no evidence that the Respondent would be prejudiced if the Lower Court’s Judgment is set aside and the Defendants/Applicants/Appellants allowed to ventilate their defence to the Respondent’s Suit.

I am also of the considered view that the Appellants have demonstrated in their Affidavit and the annexed Exhibits that they have a Defence on the merits with a chance of success. The law is trite as was decided in Ogolo vs. Ogolo (2006) 5 NWLR (Pt.927) 163; Lassaco Ass. Plc vs. Deserve Savings & Loans Ltd. (2012) 2 NWLR (Pt.1283) page 95 (CA) and Williams vs. Hope Rising Voluntary Funds Society (supra); that an Application to set aside a Default Judgment shall not be granted if the Defendant does not file a Statement of Defence along with such Application. Moreover, a defence contained in an Affidavit to show cause why the Court should set aside a Default Judgment must be predicated on a legal defence properly founded against the

Plaintiff’s Claim as opposed to a mere matter of procedure or form. See FAAN vs. W.E.S. (Nig.) Ltd. (2011) 8 NWLR (Pt.1249) 219.

In the instant case, the Defendants’ Affidavit in Support of their Application discloses in paragraph 9 thereof that:
“(a) The Landed Property at No.7 Salem Hospital Road, Otukpo, purported to have been bequeathed in the purported Will of Late Chief Andrew I. Obeya was the property of her grandmother, Madam Onyegiri Ijoga of blessed memory.
(b) Her grand mother aforesaid gave her the said property and surrendered the title document to her. Copy of Certificate of Occupancy to land and copies of some receipts evidencing payment of ground rents have been shown to me and annexed here with as Exhibits “A”, “B” and “BB” in that order.
(d) The Will upon which the Plaintiff relies to get the property in dispute is not the true Will of Late Andrew I. Obeya.
(f) They have good defence, and also a Counter claim to make on the property and the Will of Late Andrew I. Obeya.
(g) The said defence as prepared have been shown to me and is annexed as Exhibit

“D”.
(h) The Memorandum of Appearance as prepared for the Defendants/Applicants is annexed as Exhibit “E”.”

Now, a perusal of page 20 of the Records would reveal that Exhibit “A” is a Certificate of Occupancy issued in favour of Madam Onyegiri Ijoga by the Idoma Local Administration dated 17th February, 1975 and at pages 21 and 22 are Receipts for Ground Rents issued to the said Madam Onyegiri Ijoga who allegedly donated the property in dispute to the 1st Defendant/Applicant/Appellant. Also a look at Exhibit “D” at page 30 of the Records which is the Statement of Defence of the Appellants reveals that paragraph 2(b)-(d) challenged the authenticity of the purported Will of the Late Chief Andrew I. Obeya by their status as the children of the Deceased, the first Appellant being the 1st and eldest child of the said Andrew Obeya.
See further paragraphs 3 and 4 of the Statement of Defence at page 31 of the Records and the Defendants/Appellants’ Counter-Claim at page 32 of the Records which averments therein disclose triable issues that ought to have persuaded the Court below to give the

Appellants a sympathetic consideration and exercise its discretion judicially and judiciously in favour of the Appellants. See Akinyemi vs. Odu’a Investment Co. Ltd. (2012) 17 NWLR 209 (SC); University of Lagos vs. Aigoro (1985) 1 NWLR (Pt.1) 143; Onuoha vs. Okafor (1983) 2 SCNLR 244; Ekwune vs. Ifejika (1960) SCNLR 320; Egbunike vs. Muonweokwu (1962) 1 SCNLR 97 and Waziri vs. Gumel (2012) 9 NWLR (Pt.185); where it was variously held by the Apex Court that to make the exercise of discretion judicious and judicial the Court must base such exercise on prudence, rationality, sagacity, astuteness, considerateness and reasonableness on the peculiar facts and circumstances and indeed the conscience of the Judge or Court.
In the instant case, if the learned Trial Judge was circumspect without being in a hurry to dismiss the Appellants’ case, he would have noted that the Appellants were contesting what they think rightly belongs to them which has been disposed to the Respondent by the other children and beneficiaries of the Estate of their father the Late Chief Andrew Ichukwu Obeya. It was therefore necessary not to cling so tenaciously and slavishly

to the usual mantra that Rules of Court must be obeyed if Parties must be discouraged from trivializing the very serious business of the Court, as held by the learned Trial Judge in his Ruling.
Even a cursory look at the Proceedings of the Rent Tribunal tendered by the Respondent to show that the 2nd Defendant/Appellant resides at No.6 Salem Hospital Road, Otukpo (See pages 62 to 70 of the Records), would reveal that after Consent Judgment had been entered between Tony Agbo Obeya in respect of his property situate at No.6 Salem Hospital Road, Otukpo, One Madam Cordelia Obeya purporting to be the Sole Executrix of the Estate of Chief Andrew Obeya, brought an Application to set aside the Judgment of the Rent Tribunal entered on 27th July, 2005 which the Tribunal dismissed.
The proceedings in the said Tribunal further proves that the Estate of Chief Andrew Obeya as contained in the Will tendered in the Suit now on Appeal has been the subject of serious disputes which the Court below would have allowed the Appellants to come in to defend the Suit against them and prove their Counter-Claim so as to avoid multiplicity of Suits and unnecessary acrimony and

bad blood amongst the Survivors of Chief Andrew Obeya.
I therefore agree with the submissions of the learned Counsel to the Appellants and on the authorities in paragraphs 4.9 to 4.26 of the Appellants’ Brief of Argument to which I adopt into that the era of technicalities and slavish adherence to the observance of the Rules of Court is long gone giving way to the doing of substantial justice particularly as enunciated by the Legendary Ignatius Pats-Acholonu, JCA (as he then was) inFBN & Anor. vs. O.K. Holding (2001) 3 WRN 109 at 119; and Ohaji/Egbema/Oguta Local Government vs. Chief Wilson Etiti (2001) 2 NWLR (tp.696) 63. I had earlier on touched on the need for Courts of trial or even Appellate Courts to exercise their discretions judicially and judiciously and I agree that the learned Trial Judge’s exercise of his discretion in dismissing the Appellants/Applicants’ Application was most injudicious as he was not liberal enough to accommodate the Appellants so that the Parties would have been on equal footing in the presentation of their respective cases.
Apart from the fact that on the date the learned Trial Judge gave

Judgment, the Court did not adjourn for the Witnesses to be cross-examined and no Final Address was filed by the Plaintiffs, contrary to the admonitions of the Supreme Court on the need to decide land cases like the one at hand on the merit in view of their sensitive nature and particularly the instant case that has to do with the devolution of the Estate of the Late father and husband of the Parties; the learned Trial Judge delighted to decide the case on the fast lane. See Usikaro vs. Itsekiri (1991) NSCC page 281 at 293 paragraph 10-2; Menkiti vs. Menkiti (2000) 8 NWLR (Pt.66) 154 at 165 paragraph C; Pam vs. Mohammed (supra) per Niki-Tobi, JSC ably cited and relied upon by the learned Counsel to the Appellants.
There is no doubt that from the totality of the facts of this case, the Appellants fulfilled all the conditions precedent for the grant of their Application as set out in the locus classicus of Ugwu vs. Aba (supra) and followed in subsequent cases of Williams & Ors. vs. Hope Rising Voluntary Funds Society (supra) and like cases.
In the light of above, the Ruling of the learned Trial Court cannot stand and this first Issue is accordingly

resolved against Respondent and in favour of the Appellants.

RESOLUTION OF ISSUE NUMBER 2 (TWO):
“WHETHER THE LEARNED TRIAL JUDGE ERRED IN LAW FOR FAILING TO RESOLVE ALL THE ISSUES PLACED BEFORE IT? (DRAWN FROM GROUND 4).”
The resolution of this Issue in my view, is a mere academic exercise since the crux of this Appeal had been resolved in favour of the Appellants. It suffices to reiterate as enunciated in a host decisions of this Court following Supreme Court authorities like Brawal Shipping (Nig.) Ltd. vs. Onwadike Co. Ltd. (2000) 6 SCNJ 508 at 512; Agu vs. Nnadi (2002) 12 SCNJ 238; Akibu vs. Oduntan (2000) 7 SCNJ 189 at 244; State vs. Ajie (2000) 7 SCNJ 1 at 10 and Owodunni vs. Registered Trustees of C.C.C. (2000) 6 SCNJ 399 that had stressed the need for Trial Courts and indeed penultimate Courts to pronounce on all issues raised by the Parties to a Suit, the failure of which may vitiate a Judgment. In Brawal Shipping (Nig.) Ltd. vs. Onwadike Co. Ltd. (supra) at page 512; Uwaifo, JSC had posited that:-
“It is no longer in doubt that this Court demands of, and admonishes, the Lower Courts to pronounce, as a general

rule, on all issues properly placed before them for determination in order, apart from the issue of fair hearing, not to risk the possibility that the only issue or issues decided would be faulted on Appeal. By failing to consider same at all naturally leads to miscarriage of justice as well as constituting a breach of the Appellant’s right to fair hearing.”
See further Ovunwo vs. Woko (2011) 6 SCNJ 124 at 136-137 and Irolo vs. Uka (2002) 14 NWLR (Pt.786) 225 paragraphs D-H.
In the instant case the contention of the Learned Counsel to the Appellants is that the Court did not pronounce on all the issues raised at the Lower Court in spite of the attention of the Court being drawn for instance to the fact that the land being contested did not in fact belong to Late Chief Andrew I. Obeya as claimed and fraudulently and erroneously entered in the Will of the deceased. He has also noted that Appellants attached the Title Documents of the Property in their Affidavit in Support of the Motion to set aside the Default Judgment. I had already pronounced on this point that there was/are serious Issues to be tried from the averments in the Affidavit of

the Appellants and the documents attached thereto as well as the Record of Appeal of the Rent Tribunal tendered by the Respondent that should have warranted the sympathetic consideration of the Appellants’ Application and then exercise its undoubted judicial and judicious discretion in favour of the Appellants/Applicants. The authority of Okonji vs. Njokanma (supra) cited by the learned Counsel to the Appellants is quite apt so are Ebba vs. Ogodo & Anor. (1984) 1 SCNLR 372; per Olatawura, JSC and Irolo vs. Uka (2002) 14 NWLR (Pt.786) 195 at 225 paragraphs C-H.
I agree that the inability or sheer refusal to have a dispassionate consideration of the Defendants/Applicants (now Appellants’) Application on all the salient issues raised that would have persuaded him to grant the Application and the eventual dismissal of the Application to set aside the Default Judgment, occasioned the Appellants a miscarriage of justice and accordingly this Second Issue is also resolved against the Respondent and in favour of the Appellants. In the final analysis, the Appellants’ Appeal is meritorious and hereby succeeds.

The Ruling of the Honourable

Justice AC. Onum of the High Court of Justice of Benue State, Makurdi Judicial Division delivered on the 13th day of March, 2007 dismissing the Defendants/Applicants/Appellants’ Motion on Notice dated and filed on the 10th day of January, 2007, is hereby set aside. I hereby grant the Application setting aside the Default Judgment entered against the Appellants on the 27th day of November, 2006 and order that the Substantive Suit be remitted to the Honourable, the Chief Judge of Benue State for hearing de novo by another Judge. No order as to cost.

ONYEKACHI AJA OTISI, J.C.A.: I was privileged to read in advance a copy of the lead Judgment just delivered by my Learned Brother, Ignatius Igwe Agube, JCA, in which this appeal was allowed. The appeal has merit. I adopt as mine the resolution of the issues arising for determination. I also allow the appeal and abide by the orders made in the lead Judgment.

JOSEPH EYO EKANEM, J.C.A.: I read in advance the lead judgment of my learned brother, Agube, JCA, and I agree with the reasoning and conclusion that the appeal has merit and therefore succeeds.

The appellants met the conditions that are

required to be satisfied for the grant of their application as set out in many decided authorities including Williams V. Hope Rising Voluntary Funds Society (1982) 1 – 2 SC 145 and Sanusi V. Ayoola (1992) 9 NWLR (Pt. 265) 275 or (1992) LPELR – 3009 (SC). Since, as found by my learned brother, the appellants were not served with the writ of summons and hearing notices, they were entitled ex debito justitiae to have the judgment set aside as the trial Court in that circumstance had no jurisdiction over them. See Ezim V. Menakaya (2018) 9 NWLR (Pt. 1623) 113 and Okeke V. Lawal (2018) 12 NWLR (Pt. 1634) 393.

The suit was for inter alia, declaration of title to land. A Court of law should be eager to hear all the parties in such a suit knowing the level of attachment that Nigerians have to land and the sometimes bloody conflicts that attend such disputes if they are not handled with care and discretion.

I therefore agree that the appeal is meritorious and it therefore succeeds. I set aside the ruling of the trial Court and abide by the consequential orders made in the lead judgment.

Appearances:

Anthony Biose, Esq., with him, S.T. Gbaa, Esq. For Appellant(s)

C.C. Umeh, Esq. For Respondent(s)