ABADA & ORS v. UBREYE & ORS
(2022)LCN/15934(CA)
In The Court Of Appeal
(ASABA JUDICIAL DIVISION)
On Friday, March 25, 2022
CA/AS/221/2016
Before Our Lordships:
Mohammed Ambi-Usi Danjuma Justice of the Court of Appeal
Joseph Eyo Ekanem Justice of the Court of Appeal
Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal
Between
1. LUCKY ABADA 2. BEATRICE ABADA 3. KOFI ABADA (For Themselves And Head Of Family And Principal Members Of The Abada Family) APPELANT(S)
And
1. EDWARD UBREYE 2. CHRISTIAN UBREYE (For Themselves And On Behalf Of The Late Chief Pius Whiskey Ubreye 3. OVIE ESIEVO (For Himself And Behalf Of The Late Brilliant Edoja Esievo) 4. FELIX IGHO RESPONDENT(S)
RATIO
THE POSITION OF THE LAW ON WHEN A COURT GIVES JUDGEMENT ON THE MERIT AND NOT IN DEFAULT
When a Court gives judgment on the merits and not in default, it becomes functus officio and cannot set aside its judgment except for fundamental defects that go its jurisdiction. An example is where there was failure to serve the originating process on the adverse party before judgment was given against him. See Anatogu v. Iweka II (1995) 9 SCNJ 1 and Ogolo v. Ogolo (2006) 140 LRCN 2011, 2023 or (2006) LPELR – 2311. Provisions for the setting aside of default judgment are made in the High Court Civil Procedure Rules of the various States including Delta State. PER EKANEM, J.C.A.
DISTINCTION BETWEEN A JUDGEMENT ON THE MERIT AND A JUDGEMENT IN DEFAULT
The question that arises at this stage is, was the judgment of the trial Court a judgment on the merits or judgment in default? In the case of UTC (Nig.) Ltd v. Pamotei supra, also reported in (1989) LPELR – 3276 (SC) at page 86 of the electronic report, Oputa, JSC, stated as follows:
“A judgment on the merits is thus one that takes cognizance of the true bearing of the law on the rights of the parties where pleadings have been filed, issues are settled on the pleadings and the rights of the parties are decided on the resolution of those issues. Where this happens the ensuing judgment is on the merit. “
Prior to the dictum above, his Lordship had in the case of Cardoso v. Daniel (1986) LPELR – 830 (SC) 87 opined that:
“A judgment is said to be on the merits when it is based on the legal rights of the parties as distinguished from mere matters of practice, procedure, jurisdiction or form. A judgment on the merits is therefore a judgment that determines, on issue either of law or fact, which party is right.”
On the other hand, a default judgment is a judgment obtained by a plaintiff in reliance on some omission on the part of the defendant in respect of something which he is to do by the rules. See UTC (Nig.) Ltd v. Pamotei supra. In such a case, the judgment may be set aside and the defendant is allowed to do what he omitted to do, so that he could be heard on the merit. See also Bello v. INEC (2010) 8 NWLR (Pt. 1196) 342, 389 – 390. In Evans v. Bartlam (1937) A. C. 473, 480 Lord Atkins stated that:
“The principle obvious is that unless and until the Court has pronounced a judgment upon the merits or by consent, it is to have the power to revoke the expression of its coercive power where that has only been obtained by a failure to follow any of the rules prescribed.” PER EKANEM, J.C.A.
FACTORS TO BE CONSIDERED BY TEH COURT IN AN APPLICATION FOR THE SETTING ASIDE A DEFAULT JUDGEMENT
In an application for the setting aside of a default judgment, the trial Court is to consider:
1. The reasons for the failure of the applicant to appear at the hearing or trial of the case in which the judgment was given in his absence.
2. Whether there has been undue delay in making the application to set aside the judgment so as to prejudice the party in whose favour the judgment subsists.
3. Whether the party in whose favour the judgment subsists would be prejudiced or embarrassed upon an order for re-hearing of the suit being made so as to render such a course inequitable
4. Whether the applicant’s cases is manifestly unsupportable.
5. Whether the applicant’s conduct throughout the proceedings, that is, from the service of the writ upon him to the date of the judgment, has been such as to make his application worthy of sympathetic consideration.
See Williams v. Hope Rising Voluntary Funds Society (1982) 1 – 2 SC 145 and Mohammed v. Husseini supra. PER EKANEM, J.C.A.
JOSEPH EYO EKANEM, J.C.A. (Delivering the Leading Judgment): The respondents, as claimants, filed an originating summons at the High Court of Delta State, Effurun Judicial Division (the trial Court) raising the following questions for the determination of the trial Court:
“1. Whether claimants going by Clause 4(iii) of Exhibit A so attached to the affidavit in support of this summons and all relevant facts so contained on the affidavit, are entitled in law to so exercise their rights to determine Exhibit A, upon fundamental breaches of Clauses 2, 3 and 4(ii) of Exhibit A by the defendants?
2. WHETHER flowing from 1 above if determined in the affirmative, the Claimants are now in law free to enter the demised land and take back possession, the DEED OF SUB-LEASE having been declared null and void.”
The respondents sought the following reliefs from the trial Court:
1. A DECLARATION that the sub-lease agreement as evidenced as EXHIBIT A before this Honourable Court is in law duly determined.
2. A DECLARATION that the Claimants are in law free to re-enter the demised land and take back possession.
3. AN ORDER of perpetual injunction restraining the Defendant jointly and / or severally, by themselves, their, servants, agents and/ or privies from further trespassing on the said land, the subject matter as contained in Exhibit A before Court.
The trial Court ordered that writ of summons and a statement of claim be filed. The said processes were filed bearing essentially the same reliefs as are contained in the originating summons. The trial Court, upon the application of the respondents, ordered substituted service on the appellants at an address in Benin City, Edo State. The appellants did not enter appearance or file a statement of defence. After pre-trial conference which was held in the absence of the appellants, the case was adjourned for hearing by the trial Court. At the hearing, the respondents testified through two witnesses and tendered several exhibits. The respondents filed final written address, which the Court took. The appellants thereafter filed a motion for the setting aside of the entire proceedings. See page 99 of the record. The trial Court dismissed the motion on 27/11/2015 and thereafter delivered its judgment, granting the claim of the respondents.
On 22/12/2015, the appellant filed a motion on notice praying for:
1. Stay of execution of the judgment of the trial Court; and
2. An order setting aside the judgment of the Court made in default of pleadings.
On 21/4/2016, the trial Court dismissed the application, holding that the case was heard and judgment was delivered on the merits and that the Court was therefore functus officio.
Aggrieved by the decision, the appellant appealed to this Court against the judgment and the ruling by the means of a notice of appeal filed on 22/4/2016.
In the appellant’s brief of argument filed on 5/9/2016 which was deemed duly filed and served on 4/5/2018, E. O. Jakpa, Esq. formulated the following issues for the determination of the appeal:
1. Whether the learned trial judge (Hon. Justice R. D. Harriman) was right to hold that a decision given in default of the Appellants/Defendants’ statement of defence was a judgment on the merits and whether the Court was thereby rendered functus officio with respect to the application to set aside the judgment. (GROUND 2)
2. Whether or not the Honourable Court lacked jurisdiction to entertain the suit in that the Writ of Summons was issued without leave to issue the same being sought and obtained before the Writ was issued and/or served out of jurisdiction of the Honourable Court. (Ground 1)
Respondents’ counsel, N. G. Ekurume, Esq., in his brief of argument adopted the two issues above.
Let me observe that in his brief of argument, appellants’ counsel offered arguments only in respect of issue 1, the implication, as rightly observed by respondents’ counsel, being that he abandoned ground 1 of the grounds of appeal. I think that that was the right thing to do because ground 1 touches on the judgment that was delivered on 27/11/2015 but the notice of appeal was filed on 22/4/2016, that is about 5 months after the judgment. By Section 24 (2) (a) of the Court of Appeal Act, the appellant had three months to file an appeal against the judgment. The appeal against the judgment after the period prescribed was incompetent and so ground 1 as well as issue 2 distilled from it are incompetent. Having been abandoned and in the light of what I have said, I hereby strike out ground 1 and issue 2.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
This leaves us with only issue 1 to treat.
In his argument, counsel for the appellants stated that the appellants did not file a defence to the suit as, according to him, they were not aware of the suit. It was his submission that the judgment flowing from the proceedings was a judgment in default and that it was immaterial that the trial Court held that the appellants were served with hearing notice. He placed reliance on Mohammed v. Husseini (1998) 11-12 SC 135 and UTC v. Pamotei (1989) 3 SC (Pt. 1) 79 among other cases. He asserted that the address for substituted service in Benin City was not the usual place of abode of the appellants; that they were not served the originating processes personally, and that there was no evidence that the processes got to the notice of the appellants. He pointed out that the suit was in respect of land situate in Warri, Delta State of which the appellants were in possession but the respondents did not see it fit to serve by substituted means at the address of the said land. He asserted that the respondents knew that the address in Benin City was not occupied by the appellants. He referred to the shipper’s copy of the courier service company employed to deliver the respondents’ notice of intention to sue at page 20 of the record of appeal.
Counsel posited that mere service by substituted means is not conclusive that the notice got to the intended object especially when the party allegedly served appears in protest.
He referred to Order 20 Rules 5, 9 and 10 of the High Court of Delta State (Civil Procedure) Rules (hereinafter referred to as “the rules”) and submitted that a communal reading of the same shows that once a defendant fails to file a statement of defence, he is in default and judgment entered against him is liable to being set aside. He argued that the appellants advanced good reasons for not filing a defence which was not denied by the respondents.
Respondents’ counsel submitted that a cursory look at the affidavit of the appellants in support of the motion for the setting aside of the judgment of the trial Court shows that the appellants did not deny that the address at which substituted service was effected was a right address. He asserted that the disputed land is just a mechanic workshop. He thereafter referred to Order 30 Rule 4 of the Rules and posited that the appellants neglected to ask for extension of time to set aside the judgment as the statutory 6 days provided for in the rules had expired. He referred to Williams v. Hope Rising Voluntary Funds Society (1982) 1-2 SC (Reprint) 74 and contended that the appellants having not prayed for extension of time, the trial Court had no basis to exercise its discretion (in appellants’ favour). It was his position that none of the conditions for the setting aside of the judgment of Court was satisfied by the appellants.
He submitted that Order 20 Rule 5 (i) of the Rules is discretionary and not mandatory and that the appellants were given fair hearing.
The trial Court at page 150 of the record reasoned as follows:
“For the avoidance of doubt, the claimants’ case was heard on its merits. At every stage of the proceedings, hearing notices were issued and served on the defendants who refused to put in appearance until when the case was fixed for judgment. Consequently, this Court has no jurisdiction to set aside the judgment, as the applicants have not shown any reason for this Court to do so. This Court is therefore functus officio with regards to the application to set aside. By virtue of Section 246 of the 1999 Constitution, when judgment is given on the merits, the Court is functus officio.”
When a Court gives judgment on the merits and not in default, it becomes functus officio and cannot set aside its judgment except for fundamental defects that go its jurisdiction. An example is where there was failure to serve the originating process on the adverse party before judgment was given against him. See Anatogu v. Iweka II (1995) 9 SCNJ 1 and Ogolo v. Ogolo (2006) 140 LRCN 2011, 2023 or (2006) LPELR – 2311. Provisions for the setting aside of default judgment are made in the High Court Civil Procedure Rules of the various States including Delta State.
The question that arises at this stage is, was the judgment of the trial Court a judgment on the merits or judgment in default? In the case of UTC (Nig.) Ltd v. Pamotei supra, also reported in (1989) LPELR – 3276 (SC) at page 86 of the electronic report, Oputa, JSC, stated as follows:
“A judgment on the merits is thus one that takes cognizance of the true bearing of the law on the rights of the parties where pleadings have been filed, issues are settled on the pleadings and the rights of the parties are decided on the resolution of those issues. Where this happens the ensuing judgment is on the merit. “
Prior to the dictum above, his Lordship had in the case of Cardoso v. Daniel (1986) LPELR – 830 (SC) 87 opined that:
“A judgment is said to be on the merits when it is based on the legal rights of the parties as distinguished from mere matters of practice, procedure, jurisdiction or form. A judgment on the merits is therefore a judgment that determines, on issue either of law or fact, which party is right.”
On the other hand, a default judgment is a judgment obtained by a plaintiff in reliance on some omission on the part of the defendant in respect of something which he is to do by the rules. See UTC (Nig.) Ltd v. Pamotei supra. In such a case, the judgment may be set aside and the defendant is allowed to do what he omitted to do, so that he could be heard on the merit. See also Bello v. INEC (2010) 8 NWLR (Pt. 1196) 342, 389 – 390. In Evans v. Bartlam (1937) A. C. 473, 480 Lord Atkins stated that:
“The principle obvious is that unless and until the Court has pronounced a judgment upon the merits or by consent, it is to have the power to revoke the expression of its coercive power where that has only been obtained by a failure to follow any of the rules prescribed.”
In this instance, the appellants did not enter appearance and did not also file their statement of defence. The trial Court conducted a pre-trial conference and thereafter proceeded to the hearing in which the respondents called two witnesses and their counsel thereafter was heard on his written address, all in the absence of the appellants. Judgment was subsequently given in favour of the respondents. Since the appellants omitted to enter appearance and file their statement of defence, the judgment given by the trial Court was a judgment in default despite the fact that evidence had been led by the respondents.
I am fortified in my position above by the case of Mohammed v. Husseini supra in which the 1st and 2nd defendants entered conditional appearance and filed a preliminary objection for the striking out of the writ of summons for non-compliance with the rules of Court. The objection was overruled. The plaintiffs filed their statement of claim and were granted leave to prove their case since the defendants failed to file their statement of defence. Two witnesses were called and counsel addressed the Court. Judgment was delivered in favour of the plaintiffs. The defendants filed a notice of appeal and a motion praying for an order, inter alia, to set aside the judgment and an extension of time to file defence. The trial Court granted the application, set aside the judgment as a default judgment and granted extension of time to file defence. On appeal, in answer to the question whether or not the judgment was a default judgment, Wali, JSC, opined at page 22 of the electronic report that:
“There is a plethora of authorities both local and foreign that a judgment delivered in the circumstances in which the trial Court delivered its own judgment… is a default judgment.”
At page 24, his Lordship stated:
“I have no hesitation in agreeing with both the trial Court and the Court of Appeal that the judgment of Olagunju, J …is default judgment as it was delivered in the absence of filing of a statement of defence and non-appearance of the counsel at the hearing.”
The case at hand is virtually on “all fours” with the case of Mohammed v. Husseini supra. In the case of Ogolo v. Ogolo (supra) at Pp 12 – 13 of the electronic report, Onnoghen, JSC, stated that:
“It is settled law that a judgment given at the end of a normal trial, after hearing evidence of both parties and submissions of counsel on the relevant issues of facts and law, is on the merit of the action and also a final judgment which the Court concerned is incapable of setting aside except for fundamental defects that go the jurisdiction of the Court.”
I therefore hold that the judgment of the trial Court was a judgment in default and so the trial Court erred in holding to the contrary and further holding that it was functus officio.
In an application for the setting aside of a default judgment, the trial Court is to consider:
1. The reasons for the failure of the applicant to appear at the hearing or trial of the case in which the judgment was given in his absence.
2. Whether there has been undue delay in making the application to set aside the judgment so as to prejudice the party in whose favour the judgment subsists.
3. Whether the party in whose favour the judgment subsists would be prejudiced or embarrassed upon an order for re-hearing of the suit being made so as to render such a course inequitable
4. Whether the applicant’s cases is manifestly unsupportable.
5. Whether the applicant’s conduct throughout the proceedings, that is, from the service of the writ upon him to the date of the judgment, has been such as to make his application worthy of sympathetic consideration.
See Williams v. Hope Rising Voluntary Funds Society (1982) 1 – 2 SC 145 and Mohammed v. Husseini supra.
I have already stated that rules of Court make provisions for the setting aside of default judgments. The application that resulted in this appeal was brought pursuant to Order 20 Rule 9 of the rules which provides that:
“The Court may, on such terms as it thinks just, set aside or vary any judgment entered in pursuance of this order.”
The provision above is not infinite in terms of time.
There is time limitation in respect of an application to set aside a default judgment. Counsel for the respondents referred the Court to Order 30 Rule 4 of the Rules which provides:
“Any judgment obtained where one party does not appear at the trial may be set aside by the Court upon such terms as may seem just, upon an application made within six days after the trial or within such longer period as the Court may allow for good cause shown.”
The word “any” in the context of the rule above means all or every. See Skye Bank Plc v. Iwu (2017) 16 NWLR (Pt. 1590) 24, 103 – 104. So every judgment or all judgments obtained where a party does not appear may be set aside but an application to do so must be brought within six days after the delivery of the judgment or within such longer period as the Court may allow for good cause.
In this instance, the judgment in default was delivered on 27/11/2015 but the application to set it aside was filed on 27/4/2016, long after the expiration of the six-day period granted by the rule above. No prayer was made in the motion for extension of time to file the application. It is my view that this went to the competence of the trial Court to entertain the motion. In Sanusi v. Ayoola (1992) LPELR – 3009 (SC) page 19 Karibi-Whyte, JSC opined that:
“It is a well settled principle of our jurisprudence and an important requirement of our administration of justice that where the exercise of the power is statutory, such power can only be exercised within the limits prescribed by the statute. In the exercise of the power under the rule, the learned trial judge was exercising a statutory power and non-compliance with which rendered his decision nugatory.
The learned trial judge in exercising his discretion under the provision of the enabling statutory power must adhere strictly to the provisions relied upon. Where a statute says that an act must be done within a particular period, the act must be done within that period.”
At page 29 of the electronic report, his Lordship concluded that:
“Application brought outside the fixed time and without an application for extension of time to bring the application was clearly incompetent.”
See also Nocklink Ventures Ltd v. Aroh (2020) 7 NWLR (Pt. 1722) 63, 85. I must state that the trial Court did not consider and pronounce on this point in its ruling. Respondents’ counsel brought it up in his brief of argument without filing a respondent’s notice. But this cannot deter the Court from pronouncing on it. This is because, as stated above in Sanusi v. Ayoola supra., it goes to the competence of the Court and therefore can be raised at any time and by any means. Furthermore, the fact that a respondent did not file a respondent’s notice to affirm a decision of a Court will not stop this Court from arriving at a just and right decision. Order 4 Rule 4 of the Court of Appeal Rules, 2021 states:
“The powers of the Court under the foregoing provisions of this Rule may be exercised notwithstanding that no notice of appeal or Respondent’s notice has been given in respect of any particular part of the decision of the lower Court, or by any particular party to the proceedings in that Court, or that any ground for allowing the appeal or for affirming or varying the decision of that Court is not specified in such a notice and the Court may make any order, on such terms as the Court thinks just, to ensure the determination of the merits of the real question in controversy between the parties.”
In Edilcon (Nig.) Ltd v. United Bank for Africa Plc (2017) 18 NWLR (Pt. 1596) 74, 95 Galinje, JSC, opined that:
“Even though a respondent in an appeal who wishes to contend that the decision of the Court should be affirmed on grounds other than those relied on by the trial Court could do so by way of respondent’s notice, the lower Court by its rules is not excluded from affirming or varying a decision of a trial Court on grounds other than those relied upon by the trial Court, provided the decision is taken on the basis of the evidence before the trial Court.”
It is noteworthy that though the respondents’ counsel argued the point in his brief of argument, appellants’ counsel did not file a reply brief to answer the point. The implication is that he conceded the point.
On the basis of the foregoing, I hold that the application of the appellants was infected by the terminal virus of incompetence and this, in turn, affected adversely the competence of the trial Court to entertain and grant the application. See Madukolu v. Nkemdilim (1962) All NLR 587, 594.
On the whole, I come to the conclusion that the trial Court erred in holding that its judgment was a judgment on the merits. Nevertheless, since the application was incompetent, I hereby strike out the same.
The parties shall bear their costs.
MOHAMMED AMBI-USI DANJUMA, J.C.A.: I agree with my Lord, JOSEPH EYO EKANEM, JCA that the judgment was not one on the merit, however, since the application to set it aside was not made within the six (6) days duration of time statutorily limited for same to be set aside as sought, being a default judgment, the said application is struck out, therefore for its incompetence.
Being, as it were, a judgment with defects therein the processes relating to the issuance of the writ out of jurisdiction without a prior application and its grant, only valid upon leave, coupled with the substituted service inappropriately ordered and effected, I think that in the interest of justice, this Court ought to invoke its powers/jurisdiction under Section 15 Court of Appeal Act and Order 4 Rule 4 of the Court of Appeal Rules 2021 to make such orders as is dictated by the Justice of the case. In this case, I think that an order setting aside the issuance of the originating processes as made for service out of jurisdiction without leave having been sought and their service by substituted means without justification will be appropriate.
Accordingly, the impugned processes are set aside and the consequential judgment entered as arising therefrom is also set aside and the appeal allowed
Parties to return to Status Quo and to bear their costs.
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I have read an advance copy of the judgment of my lord, JOSEPH EYO EKANEM, JCA and I find that he has covered the field and I entirely agree with the reasoning and conclusions therein and only emphasise that there is a difference between judgment on the merit and judgment on default. In GROUP CAPTAIN E. E. IBOK (RTD) v HRH ETUBOM EYO HONESTY (2006) LPELR- 7651 (CA), the Court held thus:
“It is trite law that an order/judgment on the merits is one given after argument and investigation and when it is determined which party is on the right that is, in contradistinction to an order/judgment given on a preliminary or merely technical point by default or without trial.”
Also, in MOHAMMED NDEJIKO & ORS v MOHAMMED HUSSAIN & ORS (1998) LPELR – 1896 (SC), the apex Court held:
“A judgment on merits is one based on legal rights as distinguished from mere matters of procedure or jurisdiction. A judgment on merits is thus a decision that was rendered on the basis of the evidence led by the parties in proof or disproof of the issues in controversy between them. Normally, a judgment based solely on some procedural error is not, as a general rule, considered as a judgment on the merits. A judgment on the merits is therefore one arrived at, after considering the merits of the case -the essential issues the substantive rights presented by the action as contradistinguished from mere questions of practice and procedure.”
See also CARDOSO v DANIEL & ORS (1986) 2 NWLR (PT 20) 1. Therefore, on the guidelines of the precedents, it is clear that this appeal flowed from a judgment based on default in procedure, omission to file a statement of defence and not upon a demonstration of both sides of the cases. See page 112 of the records. No issue of substantial rights were present. Once the defendant can show reasons convincing enough to set aside the judgment, he would be entitled to put forward his defence if credible and no time wasting.
For this reason and further reasons in the leading judgment, I join in allowing the appeal and set aside the lower Court’s judgment. However, since the application to set aside the judgment is incompetent having been filed outside the time and there is no relief for extension of time.
I hereby strike out the same.
Appearances:
O. UBREYE, ESQ, (holding the brief of N. G. EKURUME, ESQ,) For Appellant(s)
…For Respondent(s)