ALHAJI SAIDU SANUSI DONGARI & ORS v. ALHAJI SAHEED SA’AHUN
(2013)LCN/6693(CA)
In The Court of Appeal of Nigeria
On Friday, the 6th day of December, 2013
CA/IL/52/2013
RATIO
AGENCY: POWER OF AN AGENT TO BIND HIS PRINCIPAL ON A CONTRACT OF SALE
The law is clear and it is, that an agent, on a contract of sale, does not have the power to conclude the sale and bind his principal, beyond the power donated to him. He only has power to find a buyer and describe the property but he has no authority to receive a deposit and bind his principal. He cannot conclude a contract of sale and he cannot grant a lease. See INCAR NIG PLC VS. BOLEX (Supra) at 680 -682. Per ABUBAKAR DATTI YAHAYA, J.C.A.
Before Their Lordships
HUSSEIN MUKHTARJustice of The Court of Appeal of Nigeria
ISAIAH OLUFEMI AKEJUJustice of The Court of Appeal of Nigeria
UCHECHUKWU ONYEMENAMJustice of The Court of Appeal of Nigeria
Between
1. ALHAJI SAIDU SANUSI DONGARI
2. ALHAJI ABDULWAHAB LAWAL
3. ALHAJI KAMAL AYOOLA
4. ALHAJI ABDULRAHMAN
5. ALFA MUHAMMED ONIWIRIDIAppellant(s)
AND
ALHAJI SAHEED SA’AHUNRespondent(s)
UCHECHUKWU ONYEMENAM, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of Kwara State High Court of Justice sitting at Ilorin delivered on 11th April, 2013. The learned trial Judge dismissed the judgment-debtors’ (now Appellants) application for extension of time within which the Appellants may apply to set aside the default judgment made by the trial Court on 2nd November, 2011 and to set aside the said default judgment among other reliefs.
Aggrieved by the said ruling, the Appellants appealed to this Court upon seven grounds of appeal as adumbrated on the Notice of Appeal.
The Respondent herein (as claimant before the trial Court) claimed against the Appellants as follows:
a. “A declaration that the claimant is the bona fide owner of a piece of land measuring 300 ft x 250 ft being at Gaa-Saka, Oke-Fomo, directly abutting Ogundele Road, Ilorin, Kwara State.
b. A general damages (sic) of the sum of One Million Naira (1,000,000.00) against the defendants for the trespass unto his piece of land.
c. A perpetual injunction restraining the defendants, their privies, servants, agents or whosoever claiming from them from laying any claim to the said piece of land measuring 300 ft x 250 ft being at Gaa-Saka, Oke-Fomo, directly abutting Ogundele Road, Ilorin.”
After the Appellants were served with the originating process, they filed a Memorandum of Appearance through their counsel, Wale Obadofin Esq. However, the Appellants did not file statement of defence. By his Motion on Notice dated 25th November, 2010, the Respondent applied for judgment in default of defence. The said motion was served on Mr. Obadofin then counsel to the Appellants. No counter-affidavit was filed against the motion and no defence whatsoever nor any appearance was made. On this basis, the motion for judgment in default was moved by the Respondent’s counsel and accordingly granted by the trial court on 2nd November, 2011.
It is the case of the Appellants that they were not aware of the said default judgment of 2nd November, 2011 until 22nd May, 2012 when the judgment was being executed; hence, the Appellants brought an application for:
1. “AN ORDER of the Honourable Court extending the time within which the defendants/judgment debtors/applicants may apply for setting aside the default judgment made by this honourable court in this case on the 2nd day of November, 2011.
2. AN ORDER of the Honourable Court setting aside the default judgment made in this case on the 2nd day of November, 2011.
3. AN ORDER of this Honourable Court setting aside the warrant for possession issued by this Honourable Court for the execution of the default judgment made by this Honourable Court on the 2nd day of November, 2011.
4. AN ORDER of this Honourable Court setting aside the execution levied against the landed property made and/or constructed on the land in dispute in execution of the default judgment made by this Honourabie Court on the 2nd day of November, 2011.
5. SUCH further or other orders as the Honourable Court may deem fit to make in the circumstances of this case”.
The grounds of the application are as set out hereunder:
1 “Judgment was delivered in this case by the Honourable Court on the 2nd day of November, 2011 against defendants/judgment debtors/applicants.
2. The judgment-debtors/applicants were never aware of the judgment until the warrant for possession was pasted on the building made on the land in dispute by the 2nd-5th judgment-debtors/Applicants and other persons to whom the 1st Applicant has sold land on the land in dispute on the 22nd day of May, 2012.
3. The judgment-debtors/Applicants became aware of the default judgment of this court of 2nd November, 2011 on the 22nd May, 2012 when the warrant for possession was being pasted on the landed properties on the rand in dispute and the landed properties/buildings thereon were being demolished.
4. Wale Obadofin Esq. of Wale Obadofin & Co. who was the erstwhile counsel to the judgment debtors/applicants never informed the judgment-debtors/applicants that judgment was ever delivered in this against the applicants.
5. The judgment and proceedings of this Honourable Court could not be obtained until Friday the 25th day of May, 2012.
6. It was upon obtaining the judgment and record of proceedings that it was discovered that the judgment was given and/or obtained in default of defence.
7. The time within which to apply to set aside the default judgment of this Honourable Court of 2nd November, 2011 has now expired.
8. This Honourable Court has the vires to grant this humble application.
9. The judgment-creditor/respondent cannot be prejudiced if this application is granted.
10. The failure of the judgment-debtors/applicants to file a defence to the judgment creditor/respondent’s case is not an admission of the claims in the suit.
11. The judgment-creditor/respondent did not give oral evidence in this case when his case was premised on declaration and unliquidated/general damages.
12. Courts do not grant a declaration and unliquidated or general damages without oral evidence in court.
13. The default judgment given by this Honourable Court in this case on the 2nd day of November, 2011 against the applicants is liable to be set aside.
14. The warrant of possession and execution levied, pursuant to the default judgment made by this Honourable Court on the 2nd day of November, 2011 is liable to be set aside.
15. The default judgment of this Honourable Court of the 2nd day of November, 2011 was obtained by misrepresentation and concealment of facts.
16. The court does not have jurisdiction to grant declarations and unliquidated damages without hearing oral evidence”.
The Application was argued and in a considered ruling of 11th day of April 2013, the learned trial judge refused the application and dismissed same holding that:
“In effect, I am of the considered view that the applicants have not deposed to sufficient facts to make this court consider their application and to exercise its discretion in their favour by granting the application for enlargement of time and setting aside the default judgment in question”
See: page 137 of the record.
It is against this ruling that the Appellants have now appealed to this Court. Parties duly exchanged their briefs and appeal was heard on 9th October, 2013. Mr. Ibrahim Shuaib for the Appellants in arguing the appeal indicated that the Appellants’ Notice of Appeal found at pages 138 – 144 of the record has seven grounds. That the said Notice of Appeal which was filed on 15th April, 2013 is against the Ruling delivered on 11th April, 2013. He referred to the Appellants’ brief of argument and reply brief filed on 28th June, 2013 and 16th September, 2013 respectively. He adopted the above referred briefs and relied on the arguments therein as their argument in the appeal. The learned counsel urged the Court to allow the appeal and set aside the ruling of the lower Court.
The Appellants’ brief settled by Dr. D. A. Ariyoosu, distilled the under listed three issues for the determination of this appeal.
The issues are:
1. “Whether the learned trial judge was right in his refusal, failure and/or neglect to consider and give effect to the vital issues/points raised in the appellants’ application before the court in the determination of the application. Ground 4.
2. Whether, regard being had to the legally competent affidavit evidence before the trial court and the entire circumstances of this case, the appellants’ application before the trial court ought not to have been granted. Grounds 1, 2, 5, 6 and 7.
3. Whether the failure of counsel whose negligence, mistake or error resulted in a default judgment to depose to affidavit confirming that he should be blamed in an application to set aside the default judgment is enough basis to refuse application to set aside the default judgment, when there are other considerable grounds for setting aside the default judgment, and moreso when such inadvertence, error or mistake is manifest from the record” Ground 3.
In response, Mr. I. Abdulazeez for the Respondent adopted and relied on the Respondent’s brief filed on 31st July, 2013 as their argument in the appeal. The learned counsel indicated that the Respondent formulated three issues from the seven Grounds of Appeal. He urged the court to dismiss the appeal.
The three issues raised by the Respondent in his brief are:
(1) “Whether the issues canvassed for the setting aside of the judgment of the lower court were not taken into consideration in the ruling culminating in this appeal -Ground 4
(2) Whether the lower court was right in giving effect to counter-affidavit and the accompanying written address in the prevailing circumstances. Grounds 1, 2, 5, 6 and 7.
(3) Whether there was any inadvertence or error on the part of the counsel to the appellants at the lower court to warrant the setting aside of the judgment”. Ground 3.
I have examined the respective three issues raised by the parties. While the issues formulated by the Respondent are more elegant, they are highly restrictive and will impair the absolute resolution of the disputes in this appeal. I shall therefore determine the appeal based on the issues formulated by the Appellants as they are more embracing. However, it is my view that the resolution of issues one and two will answer issue three. Resolving issue three separately will amount to repetition of considerations as said issue is subsumed in issues one and two. Accordingly, I shall determine this appeal on two issues, which are; issues one and two of the issues distilled in the Appellants’ brief. The issues shall be resolved serially.
ISSUE 1
The learned counsel for the Appellants contended that the learned trial Judge did not consider nor give effect to the vital issues raised by the Appellants in their application before his decision on the application. On the issues raised, he referred to the grounds of application at pages 30-31 of the record. He also referred to the Appellants’ affidavit in support of the motion at pages 32-37 of the record particularly paragraphs 10(i), 10(iv) and 28(iv). Furthermore, he referred to the written address in support of the motion at pages 60-72 of the record especially paragraphs 5.4-5.8, 5.9-5.11 and 5.13-5.15. The learned counsel contended that the issue of incompetence of the Respondent’s Counter-affidavit canvassed by them at the lower court though not responded to by the Respondent’s counsel was not considered in the ruling appealed against. He yet, referred to pages 76-78 of the record, particularly paragraphs 0.1.2, 1.1, 1.2 and 1.3.
It was therefore the submission of the learned counsel for the Appellants that; had the learned trial Judge considered the vital issues placed before him and pronounced on them, his decision would have been different. He urged the Court to hold that failure of the learned trial Judge to consider every vital issue the Appellants placed before him occasioned a miscarriage of justice. He cited: Ovunno & Anor. v. Woko & 2 Ors. (2011) 6-7 SC (Pt. 1) 1 at 20-21; Brawal Shopping (Nig.) Ltd. v. Onwudike Co. Ltd & Anor. (2000) 6 SC (Pt. 11) 133 at 140; Goodwill & Trust Investment Ltd & Anor. v. Witt & Busch Ltd. (2011) 2-3 SC (Pt. 1) 176 at 208; Agu v. Nnadi (2002) 12 SCNJ 238 at 249.
Learned Counsel finally urged the Court to resolve the issue in favour of the Appellants.
In response, the learned counsel for the Respondent made reference to the Appellants’ application, he invited the Court to take note of the reliefs sought and the grounds of the application. He submitted that the reliefs are all discretionary in nature and as such it is the discretion of the trial Judge premised on available facts that influenced the courts refusal of the Appellants’ application. He referred to: Williams v. Hope Rising Voluntary Funds Society (1982) 1-2 SC 145; Mobil Producing (Nig.) Ltd. v. Udoh (2012) 3 NWLR (Pt. 1288) 411 at 416; Fed. Poly. Idah v. Onoja (2012) 12 NWLR (Pt. 1313) 72 at 95-96.
Mr. Abdulazeez further referred to the ruling of the lower Court at pages 129-137 particularly at pages 131-132 lines 17-18 and lines 1-11 respectively to submit that; it cannot by any stretch of imagination be unequivocally stated that the issues in the Appellants’ application were ignored by the Court. He contended that the trial Court in its discretion found that none of the conditions stated in Order 29 Rule 12 of the Kwara State High Court (Civil Procedure) Rules 2005 was infringed upon as to invalidate the default Judgment of the trial Court entered on 2nd November, 2011.
The learned counsel for the Respondent urged the Court to resolve issue 1 against the Appellants and in favour of the Respondent.
The Appellants’ application stems primarily on Order 29 Rule 12 of the Kwara State High Court (Civil Procedure) Rules-2005. Order 29 Rule 12 (supra) provides:
“Any judgment by default whether under this order or any order of these rules shall be final and remain valid and may only be set aside, upon application made to the court, on grounds of fraud, non service or lack of jurisdiction, or any other good cause shown, on such terms as the Court may deem fit.”
From the rule quoted above, the grant of an application to set aside a default judgment is discretionary but not automatic. An application to set aside a default judgment is not a magic bullet which once shot must compel the exercise of a Court’s discretional power in favour of the applicant.
Judicial discretion is not exercisable in a particular manner else it ceases to be a discretion. While a lower Court is not bound by the exercise of discretion of an appellate court, a lower court exercising its discretion must, follow the general principles of the exercise of judicial discretion laid down by the Apex Court. Such a Court must be conscious of the fact that in the exercise of its discretion; judicial and judicious discretion abhors sentiments, private opinions, humour, arbitrariness, fancy, capriciousness and lack of restraint. In their stead; judicial and judicious exercise of discretionary power must abide the spirit of the law in consonance with the rules of reason and justice. A Court, in the exercise of its discretion must consider all the peculiar facts and circumstances of the particular case before it and ensure absence of miscarriage of justice. See Anyah v. A.N.N. Ltd. (1992) NWLR (Pt. 247) 319; In Re: Alase (2002) 10 NWLR (Pt. 776) 553.
What needs be resolved herein is; with the peculiar facts and circumstances of this case and relevant rules of Order 29 of Kwara State High Court (Civil Procedure) Rules, 2005, could the trial Court be held to have exercised its discretion judicially and judiciously in refusing the application of the Appellants.
The learned counsel for the Appellants contended that the learned trial Judge did not consider and pronounce on all the issues duly raised for his consideration before arriving at his decision to refuse the Appellants’ application.
The judgment of any Court must substantiate in full an equitable consideration of every material issue raised and canvassed before it. This duty imposed on the Court is mandatory else a party whose case has not been given adequate and full consideration can never admit that justice has been done to him. So where a Court fails in its duty to pronounce on every material issue properly placed before it for consideration before arriving at its decision, most often than not it leads to a miscarriage of justice and this is why such failure is deemed a breach of the complaining party’s right to fair hearing. See: Bayol v. Ahemba (1999) 10 NWLR (Pt. 623) 381; Ovunno & Anor. v. Woko & 2 Ors. (2011) 6-7 SC (Pt. 1) 1.
Upon a careful consideration of: Grounds of the application as earlier reproduced; pages 32-37 particularly paragraphs 5, 6, 7, 8, 10, 28 (iv) of the Appellants’ affidavit in support of their motion; written address in support of the motion at pages 60-72 particularly paragraphs 5.4-5.8; 5.9-5.11 and 5.13-5.15 of the record respectively. The Appellants raised three main issues material for the determination of their application for; an extension of time within which to apply for the setting aside of the default judgment and the setting aside of the lower Court’s default judgment. The three issues as I have identified them are:
(1) That the lower Court lacked the jurisdiction to enter a default judgment in favour of the Respondent in an action for declaration of title and unliquidated damages without any form of evidence.
(2) That there was no Counter affidavit in opposition to the Appellants/Applicants affidavit in that the purported counter affidavit filed and relied upon by the Respondent was filed out of time without leave of Court.
(3) The inability of the Appellants to defend the suit which led to the judgment in default and failure to apply within time for the setting aside of the judgment were due to the negligence, inadvertence, error or mistake of the Appellants’ counsel.
I have carefully read the trial Court’s ruling. The learned trial Judge painstakingly considered the issue raised by the Applicants to show that both the delay in bringing the application to set aside the default judgment within time, the failure to file a defence and to defend the action generally; which fact led to the default judgment subject of the application that was refused leading to this appeal, was caused by the then Applicants’ counsel, Mr. Wale Obadofin Esq. of Wale Obadofin and Co. The learned trial Judge considered this issue alongside Order 29 Rule 12 of the Kwara State High Court (Civil Procedure) Rules 2005. He thereafter arrived at the decision that:
“In effect, I am of the considered view that the Applicants have not deposed to sufficient facts to make this court consider their application and to exercise its discretion in their favour by granting the application for enlargement of time and setting aside the default judgment in question.
In the final result, I consider the prayers by the Applicants are such that this court cannot grant.
This motion on notice fails.
The application is refused in its entirety.
It is hereby dismissed.” See page 137 of the record.
Outside this issue relating to the Appellants’ former counsel, I see no place in the ruling where the learned trial Judge considered the other two material issues I had earlier identified above.
Order 29 Rule 12 of the Kwara State High Court (Civil Procedure) Rules provides inter alia; that a judgment by default can be set aside on lack of jurisdiction or any other good cause shown, on such terms as the court may deem fit. Order 29 Rules 1 and 5 also provide.
Rule 1: “If the claim is only for a debt or liquidated demand and the defendant does not, within the time allowed by these rules or an order of court or a Judge in chambers for that purpose, file a defence, the claimant may at the expiration of such time apply for final judgment for the amount claimed, with costs”
Rule 5 “Where the claim against a defendant is for possession of land only, if the defendant makes default in filling his defence, the Claimant, stating that he is not claiming any relief in the action of the nature of mortgage action, have judgment entered for possession of the land as against the defendant and for costs and…”
By the writ of summons and reliefs sought for in the statement of claim at pages 2 and 5 of the record respectively, the Respondent at the lower Court sought for a declaration of title to land and general damages. By Order 29 Rules 1 and 5 reproduced above in this judgment, a court can enter judgment against a defendant who fails to file a defence or defend an action upon the application of the claimant; if the claim is for a debt or liquidated demand or for possession of land.
These rules of Order 29 (Supra) are in consonance with the age long principle of law that a declaratory relief cannot be granted even upon the admission of the defendant without the claimant establishing his claim by his own evidence. A claimant therefore in law, cannot be given judgment in default in an action for a declaratory relief. He must first establish his claim to the satisfaction of the court by cogent and credible evidence called by him to prove that as a claimant, he is entitled to the declaratory relief. A claim for a declaratory relief, be it title to land or not, is not established in default of appearance or defence. See Ayanru v. Mandilas Ltd. (2007) 40 NWLR (Pt. 1043) 462; Aregbesola v. Oyinlola (2011) 9 NWLR (Pt. 1253) 4558; Ogolo v. Ogolo (2006) 2 SC (Pt. 1) 61; Rabiu v. Adebajo (2012) All FWLR (Pt. 643) 1836.
This position of the law has been concretized that; in an action for a declaratory relief, the claimant must by his own admissible, concrete and convincing evidence prove his case. Its unassailability manifests in the statement of Musdapher, JSC that:
“It is elementary law that in a claim for a declaration such as the instant one, the onus is on who alleges to establish his case and not to rely on the weakness of the defence. A plaintiff in such a situation must satisfy the court with, cogent and compellable evidence properly pleaded that he is entitled to the declaration, even admissions by the defendant may not do so…” See: CPC v. I.N.E.C. (2011) at 554.
Neither Order 29 of Kwara State High Court Rules (supra) nor the principle of law as examined above empowers nor supports the grant of a declaration of title to land and unliquidated pecuniary damages without the claimant’s own credible and cogent evidence to establish his claim. In the instant case therefore, I hold that the learned trial Judge had no jurisdiction to grant the Respondent his declaratory relief in default of defence.
The Appellants raised this issue in his application wherein he prayed the court to set aside his default judgment. This issue was quite material to the determination of the Applicants’ application which led to this appeal but the learned trial Judge failed to consider same before arriving at his decision. Again, I hold that failure of the learned trial Judge to consider this very material issue amounts to a denial of the Appellants’ right to fair hearing and greatly occasioned a miscarriage of justice.
Without going into the propriety of the counter affidavit by the Respondent in the application that led to this appeal. The record shows that the Appellants challenged the competence of the Respondent’s counter affidavit. The Appellants in their written address in support of their motion raised the issue of incompetence of the Respondent’s counter affidavit at the lower court on the ground that it was filed out of time without leave of the court and that many paragraphs of the counter affidavit were incompetent. See pages 76-78 of the record. This to my mind was another material issue which the learned trial Judge failed to consider before making his decision.
It is my opinion therefore that the ruling of the learned trial Judge made on 11th April, 2013 is flawed for his failure to consider vital issues. See Agu v. Nnadi (2002) 12 SCNJ 238.
From the foregoing, I hold that the learned trial Judge who failed to consider and pronounce on all the vital issues placed before him prior to arriving at his decision did not exercise his discretion judicially and judiciously and this occasioned a miscarriage of justice.
Accordingly, I resolve issue 1 in favour of the Appellants.
ISSUE 2
The learned counsel for the Appellants on this issue submitted that the trial court ought to have granted the Appellants’ application for the fact that the Appellant’s motion dated and filed 30th May, 2012 with its supporting affidavit, annexures and written address was the only competent court process before the court for the consideration of the application. He argued that there was no valid counter-affidavit in controvert of the Appellants’ depositions in their supporting affidavit as the counter-affidavit of the Respondent was filed out of time and no extension of time was sought for nor obtained before filing same.
Dr. Ariyoosu who settled the Appellants’ brief, further in the brief referred to the learned trial Judge’s ruling at page 138. Quoting part of the ruling, the learned counsel submitted that the only reasonable conclusion is that the Appellants who were never represented by a counsel throughout the proceedings were not aware of the default judgment sought to be set aside. He similarly referred to the proceedings of the lower court at pages 116-121 of the record to the effect that neither the Appellants nor their counsel was ever in court throughout the period of the case.
The learned counsel urged the court to resolve the issue in favour of the Appellants.
In response, Mr. Abdulazeez referred to Order 7 Rules 1(1) and 13 (2) to contend that there is no record nor any credible evidence before the court stating categorically that the application dated 30th May, 2012 was indeed served on the Respondent on 30th May, 2012. He submitted that the purpose of affidavit of service is to convince the court that the person on whom a process is to be served was duly served and as such the affidavit of service must be produced before the court as prima facie evidence of service. He cited: Societe Generale Bank (Nig.) Ltd. v. Adewumi (2003) 4 SCNJ 146.
On the issue of representation of the Appellants by a counsel before the trial court. The learned counsel for the Respondent referred to page 22 of the record showing that one Mr. Wale Obadofin Esq. filed a memorandum of appearance for the Appellants on 22nd March, 2010 pursuant to the instructions of the Appellants. He further posed, that the Appellants briefed a counsel who represented them at the lower court is buttressed by depositions in paragraphs 4 and 5 of the affidavit in support of the Appellants’ application dated 30th May, 2012. He therefore submitted that the learned trial Judge was correct when he held that the Appellants were represented at the trial. The learned counsel for the Respondent urged the court to so hold.
In the Appellants’ brief the learned counsel quoted the ruling of the learned trial Judge at page 136, lines 5-13 though wrongly given by the Appellants’ counsel as page 138. The learned trial judge held as follows:
“The facts before the court in this application, having regard to the state of affidavit evidence, show that the Respondents herein were represented by a learned counsel throughout the period of the trial in the substantive case which was filed in March, 2010 and in which the default Judgment now sought to be set aside was delivered on 2nd November, 2011.
In the circumstance, the Applicants cannot be heard to say that they were unaware of the said default Judgment and that it is their lawyer and none of them should be blamed for any default in the proceeding or the prosecution of the case without more”.
From the Appellants’ affidavit evidence, relevant to the resolution of this issue are paragraphs 5, 6, 7, 8, 9, 10 (i) (ii) and 11. The above paragraphs are to the effect that although the Appellants briefed Wale Obadofin Esq. to represent them at the lower court, all that their said counsel did stopped at the filing of a memorandum of appearance and an initial move for settlement out of court. By the affidavit evidence, the Appellants’ counsel neither filed a statement of defence nor ever appeared in court to represent the Appellants in any of the proceedings of the court so much so that judgment was delivered in the case on 2nd November, 2011 against the Appellants and their said counsel was not aware until the Appellants confronted him after a warrant of possession was pasted on the buildings on the disputed land on 22nd May, 2012. Worst still, from the affidavit evidence the Appellants maintained that their former counsel consistently gave them the impression that all was legally alright any time they asked about the case.
The depositions in the above referred paragraphs of the Appellants’ affidavit were not in any way countered by the Respondent the record also shows that Mr. Obadofin never appeared in court in any of the proceedings even after he was served with the motion praying for judgment in default. See pages 116-121 and 123 lines 16-18 of the record.
It is on the state of this affidavit evidence and record that the learned trial Judge held;
“…the respondents herein were represented by a learned counsel throughout the period of trial…The applicants cannot be heard to say that they were unaware of the said default judgment……”
The Appellants having briefed a lawyer who entered an appearance for them. The Appellants who during the pendency of the suit before the lower court did not change their counsel. Mr. Obadofin, then counsel for the Appellant who accepted service of motion on notice for an order entering judgment in default. The learned trial Judge was technically right to hold that the Appellants were represented by counsel at the lower court and were presumed aware of the default judgment delivered on 2nd November, 2011.
Technically, I have said above because from the affidavit evidence and the entire record before the court, neither Mr. Obadofin nor any counsel for that matter appeared physically in court on behalf of the Appellants on 12/1/11, 26/5/11, 23/6/11, 13/7/11, 4/10/11 and subsequently on 2/11/11 when judgment was delivered in default. Importantly too, is the fact that on all these days, the parties were absent from court. Practically and in reality; as opposed to technicality, the Appellants were not represented at the trial court’s proceedings by a counsel. The holding of the learned trial Judge that the Appellants were represented throughout the period of the suit at the trial court has its abode in the realm of technicality. It is in my view, a caricature of the reality evidenced by the court’s record. The record as has been examined above shows that although the Appellants engaged a counsel to represent them, the said counsel after filing a memorandum of appearance for them never performed any other act of representation for them before the court. To opine otherwise will mean pursuing the end of this case through technicality.
Our courts have long slided away from the realm of doing technical justice to doing substantial justice. Technical justice in its real sense is not justice because it is a strange bed fellow with the principles of equity and fair play. See: Omoju v. F.R.N. (2008) ALL FWLR (Pt. 415) 1655 at 1671.
It is known that equity follows the law. So the court of justice will by reason of equity do substantial justice where strict adherence to rules would inflict injustice See: Oloba v. Akereja (1999) 2 NSCC 120. In the instant case, the justice of the case could only be reached by not adhering to the technical import of Mr. Obadofin’s representation of the Appellants but relying on the record which shows that Mr. Obadofin never appeared in court for the Appellants even once. The Appellants who relied on the counsel they briefed to represent them could therefore not have known that judgment had been delivered in their absence until the warrant of execution was pasted on the buildings on the disputed land. The learned trial Judge was therefore wrong when he held that the Appellants who were represented by counsel all through the period the suit went on at the trial court could not be heard to say that they were not aware of the default judgment.
On the competence of the Respondent’s counter affidavit, let me start on the premise that this court is a court of record. Whilst there is no affidavit of service in proof of service. There was no dispute as to the service of the motion filed on 30th May, 2012. The contention is the date of service. It is the contention of the Respondent that by Order 7 Rules 1(1) and 13 (2) of the Kwara State High Court (Civil Procedure) Rules 2005, that after service, the affidavit of service is a prima facie proof of service. This is most correct. Mr. Abdulazeez is also correct that the purpose of an affidavit of service is to convince the court that the party on whom a process is meant to be served was indeed served. See: Societe Generale Bank (Nig.) Ltd. v. Adewumi (2003) 4 SCNJ 146.
The primary means of proving service of process on a party is by affidavit of service. This is by no means the only way service of a process on a party can be proved. Service of process can also be proved by certification, and personal appearance in court of the person served. The personal appearance does appear the strongest means of proof of service. Thus where there is no affidavit of service before the court but the person served with the court process appears in court not in protest, then there will be no need for the court to insist on affidavit evidence in proof of service. See: S.G.B.N. Ltd v. Adewunmi (2003) 10 NWLR (Pt. 829) 526; Okesuji v. Lawal (1991) NWLR (Pt. 170) 661 at 678; International Committee of the Red Cross v. Ojabode (2009) LPELR – CA/A/176/05.
In view of the foregoing, where a party who is to be served with a process as in this case not only appears in court but files a counter affidavit in opposition of a motion on notice. It shall not be needful to still insist on affidavit of service as proof of service. The presence of the Respondent in court and the filing of a counter affidavit by him became the best proof that the motion on notice filed on 30th May, 2012 was served on him.
However, in the instant case it goes beyond that as the Respondent’s contention is that the Appellants ought to prove the date he was served by means of affidavit of service. The contention herein therefore is not whether the Respondent was served but the date he was served. The presence of the Respondent and even the filing of a counter affidavit cannot therefore prove the date the Respondent was served. The Appellant at the lower court had urged the court to discountenance the Respondent’s counter-affidavit as incompetent, the same having been filed outside the stipulated time. The Appellants contended that the Respondent was served with the motion filed on 30th May, 2012 the same day.
Although, it has been firmly established that an affidavit of service deposed to by the person effecting service, setting out the fact, place, mode and date of service and describing the process served is a prima facie proof of the facts stated therein. From what I had said above, an affidavit of service or any other proof of service for that matter becomes necessary when the person who ought to be served does not acknowledge service.
In the instant case, the Respondent acknowledged service. He appeared in court and filed a counter affidavit in response to the affidavit in support of the Appellants’ motion. At the trial court when the Appellants raised the issue of the incompetence of his counter affidavit on the ground that it was filed out of time being that the Respondent was served with the motion on 30th May, 2012, the said Respondent did not challenge that fact. He maintained sealed lips. The trial court on its own failed to pronounce on this material issue which will affect its decision of the motion one way or the other.
That the Respondent did not deny he was served on 30th May, 2012 is an implied admission. It is an elementary principle of law that fact admitted need no further proof. This follows the simple logic that once an opponent admits the position of the other party, then the fact is not made an issue and if not an issue, it will be a mere academic exercise to embark on calling evidence to prove same. In the instant, because the Respondent did not deny that he was served on 30th May, 2012 the date of service was not in issue. Therefore the Appellants did not need to establish that fact by an affidavit of service. This reasoning is strengthened by the fact that it is of judicial notice that applications as motions on notice for which personal service is not required, are day to day in open court served counsel to counsel, for which there is never an affidavit of service or any record of such service. In my opinion therefore, the only inference and deducible conclusion the learned trial Judge would have drawn was that the Respondent was served on 30th May 2012; in which case the counter affidavit was incompetent leaving the affidavit unchallenged. This in law means the depositions in the affidavit would be deemed admitted. See: Ejide v. Ogunyemi (1990) 3 NWLR (Pt. 141) 758; Niger Constitution Ltd v. Okugbeni (1978) 4 NWLR (Pt. 67) 789.
From what I have been saying, it is obvious that neither the issue of non service nor the date of service was an issue at the trial court. Accordingly, there was no need to prove service by an affidavit of service. The position from the facts is that neither the issue of service or date of service was canvassed at the trial court. Then again, it is an elementary principle of law, that an appellate court will not entertain an appeal on any issue that was not canvassed at the lower court. See. Attorney General, Katsina State v. General Lands Ltd. (2005) All FWLR (Pt. 256) 1342. Accordingly, the issue of date of service which was not disputed at the lower court cannot be raised by the Respondent in the manner he did in this court. Being fresh issue, the Respondent ought to have sought and obtained the leave of this court before arguing same. See: Onyeche Ifezue v. FBN (Merchant Bankers) Ltd. (2005) All FWLR (Pt. 247) 1458 at 1459.
From all I have said above, I hold that from the circumstances of this case, the Appellants’ application ought not to have been refused by the trial court.
In all, I resolve issue two in favour of the Appellants.
Having resolved the two issues in favour of the Appellants, I hold that the appeal has merits and is accordingly allowed.
I set aside the decision of Kwara State High Court sitting at Ilorin delivered on 11th April, 2013 in Suit No. KW/75/2010. I hereby grant the reliefs sought by the Appellants at the trial court in their entirety.
It is also hereby ordered that Suit No. KWS/75/2010 be sent back to the Chief Judge of Kwara State who shall re-assign the same to another Judge of the High Court of Kwara State for its hearing and determination on the merits.
I make no order as to costs.
HUSSEIN MUKHTAR, J.C.A.: I have had the advantage of reading, in draft, the judgment just delivered by my learned brother Uchechukwu Onyemenam, JCA and fully agree with the reasons therein and the resolution of the two issues raised, which lead to the conclusion that the appeal is meritorious.
The law is trite that a Court has an inherent power to set aside its judgment which is fundamentally defective or given without jurisdiction. In such circumstance the judgment becomes liable to be set aside.
The judgment in default of pleadings or appearance is not final as it offends the principle of fair hearing or the maxim audi alterem partem. Both parties must be heard on the merits of the case. Such judgment as in the instant case is liable to be set aside.
The Appellants, in my view, rightly availed themselves of option available to them under Section 243 (a) and (b) of the Constitution of the Federal Republic of Nigeria (as amended) by appealing against the judgment of the lower Court. The Supreme Court, in Alhaji Raji Oduola v. John Gbadebo Coker (1981) 5 S.C. (Reprint) at page 120, per Obaseki, JSC, aptly observed thus:
“It is also the law where a defendant to an action for recovery of land allows a judgment to go against him by default, any person in possession of the land is allowed to move to set aside the default judgment and to seek liberty to defend the action.”
The lower Court could and ought to have exercised its power to set aside its default judgment under the circumstances in which it was moved by the Appellants to do so.
For the foregoing and the more detailed reasons well articulated in the lead judgment, this appeal succeeds per force. It is hereby allowed. I also subscribe to the consequential orders expressed in the judgment.
ISAIAH OLUFEMI AKEJU, J.C.A.: This appeal is against the ruling of the Kwara State High Court sitting at Ilorin delivered by A.O. Bamigbola, Chief Judge on 11/4/2013 in respect of the motion filed on 30/5/12 by the appellants seeking the orders extending time within which they could apply for setting aside the default judgment made by the Honourable Court on 2/11/11, and setting aside that default judgment as well as orders setting aside the warrant for possession issued on 2/11/11 and the execution levied on same date. The Hon. Chief Judge refused the application and dismissed same on the ground that the applicants (now appellants) did not depose to sufficient facts for the court to consider their application and to exercise its discretion in their favour by granting same.
It is obvious that the prayers of the appellants before His Lordship, the Hon. Chief Judge call for the exercise of the court’s discretionary powers and it is a basic principle that a court must exercise its discretion judicially and judiciously according to law and not whimsically or arbitrarily. See Ajuwa v. SPDC (Nig) Ltd (2012) All FWLR (Pt. 615) 200. Akaninwo & Ors v. Nsirim (2008) ALL FWLR (Pt. 410) 610. Where the trial court has exercised its discretion in line with the set principles, the appellate court will not interfere with the exercise of that discretion. See Haruna v. Ladeinde (1987) 4 NWLR (Pt. 67) 941; Ugboma v. Olise (1971) 1 ALL NLR 8; Ibodo v. Enarofia (1980) 5-7 SC 42; Obikoya v. Wema Bank (Nig) Ltd (1989) 1 NWLR (Pt. 96) 157. It follows therefore that where it is shown that the discretion has been wrongly exercised through a misconception of the facts of the matter or misapplication of the law and it is in the interest of justice to interfere, the appellate court will step in to correct any injustice occasioned by the decision. See Enekebe v. Enekebe (1964) ALL NLR 95; University of Lagos v. Aigoro (1985) 1 NSCC (Pt. 1) 88.
The judgment of the High Court of Kwara State which the appellants sought to set aside was in respect of suit No. KWS/75/2010 wherein the respondents sought declaration, general damages and perpetual injunction which reliefs were granted in default of defence by the appellants as defendants.
In the application of the appellants for setting aside, it was contended among other grounds that they had no knowledge of the default judgment until 21/2/2013 and indeed could not obtain their copy of the judgment until 4/3/13 as they were not informed by their counsel while the court did not take any evidence from the respondents before giving judgment against them in these reliefs for declaration, injunction and general damages.
It is settled that although the grant of a declaratory relief is at the discretion of court, a party seeking the relief must succeed on the strength of his own case and not on the weakness of the defence. The declaratory relief is granted to a claimant who has by concrete and satisfactory evidence shown his entitlement thereto. It is not even granted on the admission by the adverse party. See Ayarru v. Mandilas Ltd (2007) 4 SC (Pt. 111) 58; Dumaz Nig. Ltd v. Nwakhoba (2008) 18 NWLR (Pt. 119) 361.
It is beyond per adventure that the reliefs granted to the respondents were granted without jurisdiction and as such a dispassionate consideration of the grounds on which the appellants’ motion was predicated would have led to its being granted.
It is for the foregoing and the quite expository consideration of this appeal by my learned brother, Uchechukwu Onyemenam, JCA that I allow the appeal and abide by the consequential order made in the lead judgment.
Appearances
Ibrahim ShuaibFor Appellant
AND
I. AbdulazeezFor Respondent
