OHAJI/EGBEMA/OGUTA LOCAL GOVERNMENT V. CHIEF WILSON ETITI
(2011)LCN/4696(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 11th day of July, 2000
CA/PH/17/91
RATIO
APPLICATION FOR STAY JUDGMENT: WHAT THE COURT MUST TAKE INTO CONSIDERATION WHEN CONSIDERING AN APPLICATION FOR STAY OF JUDGMENT
In considering the application for the stay of that judgment, setting aside, and extension of time to file statement of defence, the court should carefully look at the material placed before it in the affidavit in support and the contents of the pleadings. Any disposition which translates itself to riding a rough shod of these materials would import that the court is not interested in listening to both sides and therefore hearing the case on its merit. Thus Lord Atkins in the case of Evans v. Bartlam (1937) 2 All ER 646 at 650 said: “In a case like the present one there is a judgment which though by default is a regular judgment, and the appellant must show grounds why the discretion to set it aside should be exercised in his favour.” PER PATS-ACHOLONU, J.C.A.
INTERFERENCE WITH THE DISCRETION OF THE LOWER COURT: CIRCUMSTANCE WHERE AN APPELLATE COURT WILL INTERFERE WITH THE DISCRETIONARY EXERCISE OF THE LOWER COURT
In my no sufficient reason has been given why the court refused to exercise its discretion in favour of the appellant so that the parties can argue the case spiritedly based on the facts contained in their pleadings, and the party whose case preponderates over the other shall be the successful party. In an application to set aside the judgment obtained in default, the court should be liberal in exercising its discretion and ought generally in my view to lean towards accommodating the defaulting party so that parties will be on equal footing in the presentation of their case. I have always frowned at a judgment that smacks of wait and take and loses its allure and the beauty and colour of erudition and reasonableness. A judgment where parties are not given opportunity to canvass their case and the court gives judgment on a wet blanket reason that lacks conviction is to my mind suspect and ought generally to be set aside where there are empirical factors to show that the discretion is not exercised judiciously. PER PATS-ACHOLONU, J.C.A.
LAND MATTERS: WHETHER A LAND CASE MUST BE DECIDED ON THEIR MERITS
In Usikaro v. Itsekiri Communal Lands Trustees (1991) 2 NWLR (Pt.172) 150 Nnaemeka-Agu, JSC said at page 173: “…I must note that the subject-matter of the suit is land, this court has in the case of Chief James Ntukidem & Ors v. Chief Asuquo Oko & Ors (1986) 5 NWLR (pt.45) 909 emphasised the need to decide land cases on their merits. I need hardly reiterate it here…” PER AKPIROROH, J.C.A.
JUSTICES
JAMES OGENYI OGEBE Justice of The Court of Appeal of Nigeria
IGNATIUS CHUKWUDI PATS-ACHOLONU Justice of The Court of Appeal of Nigeria
MICHAEL EYARUOMA AKPIROROH Justice of The Court of Appeal of Nigeria
Between
OHAJI/EGBEMA/OGUTA LOCAL GOVERNMENT Appellant(s)
AND
CHIEF WILSON ETITI Respondent(s)
PATS-ACHOLONU, J.C.A. (Delivering the Leading Judgment): I shall begin this judgment by warning of the dangers inherent in short circuited judgments on land cases in particular. In 1997, an autonomous community known as Eziorsu in the Ohaji/Egbema/Oguta Local Government Area approached the Local Government to build a modern market. The community thereafter which is defendant/appellant in the case caused work to begin on that land. However, to the surprise of the community and the appellant, the plaintiff/respondent stopped the work as he was alleging trespass on the land. This was followed by a letter from his counsel to the appellant demanding payment of damages. Thereafter, the plaintiff/respondent commenced civil action against the appellant. The appellant briefed one Mr. Nsofor who apparently due to his inadvertence did not take further steps by filing a statement of defence. Then the respondent applied for judgment in default and to this effect, service was effected through the clerk of the Lawyer who did not make same available to counsel until judgment in default was given and the respondent sought to levy execution.
The appellant then applied to the lower court for stay of execution, setting aside the judgment in default, and extension of time for it to file a statement of defence. This was opposed by the respondent’s Counsel and after argument had been taken that court dismissed the application.
The appellant filed notice of appeal from which it distilled only one issue namely:
“Whether the learned trial Judge properly exercised his discretion in refusing to grant the appellant’s application for selling aside the default judgment and to extend the time within which to file the appellant’s statement of defence having regard to the material before him.”
The respondent sought to frame 2 issues but in actual fact he succeeded in showing that there is only one issue.
The determination of the issue would revolve around the question as to whether from the facts and particulars placed before the court below the learned trial Judge should have given the ruling he gave or ought to have carefully weighed the strength of these materials and allow himself to have the benefit of hearing the parties by their argument in court based on their respective pleadings. It is important to emphasise the beauty of rendition of judgment based on the court having the opportunity of hearing from both sides in a legal duel and then premise its judgment on the strength of the nature, character and substantiality of each party’s case.
The substantiality of a case is primarily rooted on the nature of evidence that each party in course of the proceedings would perforce present for the consideration of the court. In considering the application for the stay of that judgment, setting aside, and extension of time to file statement of defence, the court should carefully look at the material placed before it in the affidavit in support and the contents of the pleadings. Any disposition which translates itself to riding a rough shod of these materials would import that the court is not interested in listening to both sides and therefore hearing the case on its merit. Thus Lord Atkins in the case of Evans v. Bartlam (1937) 2 All ER 646 at 650 said:
“In a case like the present one there is a judgment which though by default is a regular judgment, and the appellant must show grounds why the discretion to set it aside should be exercised in his favour.”
The primary consideration is whether he has merits to which the court should pay heed.
Now let us look at some of the averments as contained in the affidavit in support of that motion.
“5. That having received the plaintiffs statement of claim we forwarded same to our then Legal Adviser E.T. Nsofor, Esq. for his necessary action. Our said letter OKLG/S.16/S.1/53 dated 7/1/88 is annexed as Exhibit ‘A’.
6. That we did not know that our Legal Adviser failed to file in our defence until the 90 days granted us by the court expired on the 21st day of March, 1988.
7. That we did not also know that the plaintiff had filed in a motion to obtain judgment against us for our failure to file in our defence until a writ of attachment of our property was served on us on 5th day of December,1988.
8. That on further investigation later, we discovered to our utter surprise that a clerk in charge of our legal matters received the motion papers on the 29th day of September, 1988 but took ill, and hospitalised till date without passing this information to his higher officers.
9. That I took over overseeing of legal matters having been posted from Ohozara Local Government Area on transfer in the second week of November 1988 to Ohaji/Egbema/Oguta Local Government.
10. That while going through the file in respect of this suit, I saw the plaintiffs motion papers dated 21st September, 1988 fixed for hearing on 10th day of October, 1988.
11. That since our clerk in-charge of legal matters was already hospitalized, nobody else could direct me that the said motion was still pending in this court. The said motion paper dated 21/9/88 and its accompanying affidavit sworn to on 23/9/88 are annexed as Exhibits B1 and B2.
12. That the said motion to obtain judgment in default was eventually heard on the 18th day of November, 1988 without the knowledge of the defendant and judgment was delivered on the same day. The said judgment is annexed as Exhibit ‘C’.
13. That following the said judgment, the plaintiff on the same day 18th November, 1988 filed in a writ of facias (sic) on receipt No. 4290721 and attached the goods of the defendant on 5/12/88. The writ of ferias facias (sic) is annexed as Exhibit ‘D’.
14. That the defendant now pleads that its goods be released and the said judgment stayed since it has a good defence to this action.
15. That the land, the subject-matter in this suit is a community land of Eziorsu people which includes the plaintiff and donated voluntarily by the said community to the defendant to develop a market and park for the said community.”
25. “Furthermore, that Ezi-Orgu Community of which the plaintiff is a member has declared the land in question as their communal land. Attached as shown in the letter on behalf of the said community to the then chairman Ohaji/Egbema/Oguta Local Government dated 1/7/87 conveying same to him is marked Exhibit ‘J’.
26. That the substance of the defendant’s application for a stay of execution is that the judgment creditor is a man of straw. He is a professional litigant and lives on the outcome of cases.
27. That if the judgment debt is paid to the judgment creditor, he would find it difficult if not impossible to repay should this case be heard on its merits. That the cost of N100.00 awarded in favour of the plaintiff has been paid in receipt No.4290766 of 8/12/88 attached and marked Exbibit ‘L’.
These facts placed before the court are mighty enough to warrant very serious consideration. The court below then in its ruling held as follows:
“Let me say here, that the courts will look at all the circumstances surrounding the litigation by the parties to the case before granting a stay of proceedings. However, an action should not be stayed unless the applicant has established beyond doubt that the action ought not to go on. Okorodudu v. Okoromadu 1977 3 SC 21. It is my view that the applicant has not established clear and compelling reasons in support of a departure by the court. Court decisions are not matters of fancy but orders which must be obeyed in the interest of order and peace. In exercise of its discretion, therefore, the court acts judicially and on principles. A discretion that denies a successful party of the fruits of his labour is not a discretion exercised in the right direction or judicially.”
It seems to me that the court did not carefully and objectively consider the affidavit of the appellant and meticulously and scrupulously appraise that evidence. He appeared satisfied in having given a judgment based on one sided story without allowing the other the benefit of its own side of the story. The fairness of a trial where there has been a default judgment and where a party faulted has applied for setting aside and being let in to present his case imports consideration of all that would give the administration of justice or adjudication process and procedure those civilised and credible qualities which will imbue the judgment or ruling with the characters and features that will make it readily acceptable by right thinking members of the society. It is a judgment or ruling that will not be stigmatised with any blemish or one given in a hurry so that the trial court would turn to other matters before it feeling falsely contented that it has disposed of a day’s work.
In his ruling, the learned trial Judge stated that the only defence preferred by the appellant is that the land is a community land. With greatest respect to that observation by the learned trial Judge (now deceased) the appellant put a 24 paragraph proposed statement of defence which to my mind were hardly considered by the learned Judge. No consideration was given to para 10 of the proposed statement of defence which states the history of the land in dispute, and he did not consider the averment in para 16 of the proposed statement of defence. I hereby set down the contents of paras 10 and 16 respectively:
10. “History of the land: The entire Eziorsu community has one ancestor called Orsu. History has it that when Orsu was attacked, he fled from Benin in Bendel State and first settled on the “Ani Obioche” land with his children after conquering the virgin forest.
The land later on became his own. This fact is the main reason why at the eight villages of Eziorsu have the said land as their common ancestral land.
All the eight villages of Eziorsu inhabited on this piece of land before they left and settled on their present homes now. But before the plaintiffs Durukponwa family came to live where it now occupies at Eziorsu, its portion of the Oran ancestral land that family formerly occupied, was known as and called “Ani Ukwuedo” which is verged pink in the defendant’s plan No. AS.A/IM03/89.
16. Eziorsu community being conscious of the troublesome and litigant nature of the plaintiff carefully carved out the Ani Ukwuedo land of the plaintiff from its boundary with the Ani Obiochie land of the community before the said donation was made to the defendant. On the 22.6.87 the defendant entered the Ani Obiochie land as directed by the said Eziorsu community to brush it for development purposes and not the “Ani Ukwuedo” of the plaintiff’s family.”
In my no sufficient reason has been given why the court refused to exercise its discretion in favour of the appellant so that the parties can argue the case spiritedly based on the facts contained in their pleadings, and the party whose case preponderates over the other shall be the successful party. In an application to set aside the judgment obtained in default, the court should be liberal in exercising its discretion and ought generally in my view to lean towards accommodating the defaulting party so that parties will be on equal footing in the presentation of their case. I have always frowned at a judgment that smacks of wait and take and loses its allure and the beauty and colour of erudition and reasonableness. A judgment where parties are not given opportunity to canvass their case and the court gives judgment on a wet blanket reason that lacks conviction is to my mind suspect and ought generally to be set aside where there are empirical factors to show that the discretion is not exercised judiciously.
In the final result the appeal succeeds and I hereby set aside the ruling of the trial court and the orders made.
The judgment in default given by the trial court and orders made are set aside. The court grants the extension of time of 30 days for the defendant to file its statement of defence if it is desirious of doing so.
The respondent is to pay costs in favour of the appellant in the court below and this court assessed at N5,000.00.
OGEBE, J.C.A.: I read before now the lead judgment of my learned brother Pats-Acholonu, JCA just delivered and I agree with his reasoning and conclusion. In land matters, default judgments should be avoided by trial courts. In such cases it is essential that the plaintiff leads evidence in proof of his claim so that the court may assess its worth even if the defendant fails to file a statement of defence. The trial court was wrong in refusing to set aside the default judgment. I too allow the appeal and endorse the consequential orders including the order of costs made in the lead judgment.
AKPIROROH, J.C.A.: I read in advance the lead judgment of my learned brother, Pats-Acholonu, JCA just delivered and I agree with his reasoning and conclusion. In land matters, default judgment should not be entered by trial courts.
In Usikaro v. Itsekiri Communal Lands Trustees (1991) 2 NWLR (Pt.172) 150 Nnaemeka-Agu, JSC said at page 173:
“…I must note that the subject-matter of the suit is land, this court has in the case of Chief James Ntukidem & Ors v. Chief Asuquo Oko & Ors (1986) 5 NWLR (pt.45) 909 emphasised the need to decide land cases on their merits. I need hardly reiterate it here…”
The learned trial Judge was in great error in refusing to set aside the default judgment knowing very well that it is a land matter.
I too allow the appeal and endorse the consequential orders including the order of costs made in the lead judgment.
Appeal allowed.
Appearances
B.M. Wifa S.A.N (with him. E.E. Udoekong Esq.)For Appellant
AND
Prince N.I.A. Ohanyere Esq.For Respondent
