CHIEF A. O. AINA V. ALHAJA (CHIEF) AMINA A. ABIODUN & ANOR.
In The Court of Appeal of Nigeria
On Monday, the 24th day of January, 2005
ISA AYO SALAMI Justice of The Court of Appeal of Nigeria
KUMAI BAYANG AKAAHS Justice of The Court of Appeal of Nigeria
WALTER SAMUEL NKANU ONNOGHEN Justice of The Court of Appeal of Nigeria
CHIEF A. O. AINA Appellant(s)
- ALHAJA (CHIEF) AMINA A. ABIODUN
2. ALHAJI LAWAL Respondent(s)
SALAMI, J.C.A. (Delivering the Leading Judgment): In this appeal, the plaintiff is seeking to contest the decision of High Court of Lagos State, setting aside its own decision in suit No. ID/1172/95. The ruling set aside a judgment given in default of appearance and statement of defence.
The writ of summons and other processes in this suit were served on the defendants by pasting same on the walls of No. 16, Ajileye Street, Ilaje, Bariga, being the last known address of the defendants pursuant to an order of substituted service granted by the trial Court. In spite of the service, the defendants neither filed their memorandum of appearance nor filed their statement of defence. The plaintiff, in addition to calling three witnesses, testified in support of his claim. His counsel addressed the court before judgment was entered in his favour on 27th November, 1998.
Thereafter execution was duly levied on the 5th February, 1999. It was after the execution had been carried out that the defendants by their application dated 17th March, 1999, filed on the following day, applied for the judgment to be set aside. The application was heard by another Judge of the High Court and was granted.
The plaintiff was dissatisfied with the decision and has appealed to this court. The plaintiffs filed a brief of argument as well as appellants reply brief. The defendants filed respondent’s brief. The plaintiff (hereinafter referred to as appellant) framed a host of issues which are-
“3.01 Whether service by substituted means, to wit by posting at the last address, which is also the property of the defendants constitutes proper service or sufficient notice to the defendants.
3.02. Whether the bailiff’s affidavit of service, being prima facie evidence, is not conclusive proof of service in this case, simply because the defendants said they did not get notice of the process posted at their last known address, and, the defendants having so asserted, whether the burden shifted on the plaintiffs to establish that the defendants were properly served and whether it is not the duty of the court to call for oral evidence, particularly from the bailiff of court to enable the court arrive at a just decision.
3.03. Whether in law the learned trial Judge properly assessed the evidence before him and was right in concluding that as at the time the processes of court were served by posting at the last known address of the defendants they no longer had an address at the house where the processes were posted, that is No. 16 Ajileye Street, Ilaje, Bariga, Lagos State.
3.04. Whether in view of the evidence before the court the learned Judge was right to have concluded that the various visits to the Police Station by the parties it seemed unlikely that the 1st defendant would get notice of the posted writ on declaration of title and fold her arms.
3.05. Whether the learned trial Judge was right in not considering the contention of the plaintiff that the rules of court (Order 33 rule 4) enjoined the defendants to apply to set aside the judgment of court within six days of its delivery, failing which they ought to have applied for, and possibly, granted extension of time to do so before their application to set aside could be considered. But in this case, was the learned trial Judge right to have considered and granted the defendants application to set aside even though the defendants neither proffered any argument for, nor were they granted extension of time to apply to set aside the judgment.
3.06. Whether the learned trial Judge was right in setting aside the judgment of his learned brother of concurrent jurisdiction”
The defendants (hereinafter referred to as the respondents) framed two issues in their joint respondents’ brief of argument. The respondent’s issues are:
“3.01. Whether it was proper for the appellant in the circumstances of this suit to effect service of the court processes on the respondents who are not ordinarily resident in Lagos at No. 16, Ajileye Street, Ilaje, Bariga, in preference to service of the court process through the respondent’s known agents who are working as artisans on the land in dispute.
3.02 Whether in the circumstances of suit No. ID/1172/95 between the parties herein the learned Honourable Justice A. F. Adeyinka of the High Court of Lagos State was right, in setting aside the earlier judgment of his learned brother, Oduneye, J.”
I am unable to appreciate the issue the respondents’ learned Counsel is purporting to raise in their issue, 3.01 which is clearly in contravention of the provisions of Order 7 rule 6(1) of the High Court of Lagos State (Civil Procedure) Rules, 1994, which provides thus:
“Where personal service is required by these rules or otherwise, and it is made to appear to the court or a Judge in chambers that prompt personal service cannot be effected, the court or Judge may make such order for substituted or other service, or for the substitution of notice for service, by advertisement, or otherwise as may seem just.”
That issue is therefore misconceived and is struck out for incompetence.
The only issue calling for determination respectfully, in this appeal, is appellant’s issue 3.05 which respondents chose to discountenance, This issue derives from ground 5 of the grounds of appeal.
In this connection, the learned Counsel for appellant, in the appellant’s brief argued that the respondents ought to have brought their application to set aside the judgment of Oduneye, J., delivered on 27th November, 1998, within 6 days of delivery of the judgment in accordance with the provisions of Order 33 rule 4 of the High Court (Civil Procedure) Rules. Learned Counsel contended that the learned trial Judge, Adeyinka, J., misconceived the appellant’s contention which was not that the respondents did not bring their application under the proper rule of court rather appellant’s counsel contends that the real issue of their contention in the court below was that the application was not brought within the time prescribed. Learned Counsel for appellant, also, in the brief, conceded that the respondents, even though asked for extension of time within which to bring the application as one of their prayers, nevertheless their learned counsel failed or neglected to canvass same before the learned trial Judge. The learned trial Judge also did not make allusion to the prayer nor granted it. Learned Counsel for appellant submitted that the failure of the learned trial Judge to advert his mind to the fact that it was necessary for respondents to satisfy the court on their failure to bring the application within 6 days was fatal to the application. Learned Counsel for appellant referred the court to the case N. A. Williams & Ors. v. Hope Rising Voluntary Funds Society (1982) 1/2 SC 145 at 155 – 159 and Alhaji Chief A. R. O. Sanusi v. Alhaji Ibrahim Ayoola & Ors. (1992) 9 NWLR (Pt. 265) 275, (1992) 11/12 SCNJ 142.
The respondent did not frame any issue to answer the appellant’s issue 3.05. But some answers were proffered under their issue 3.02 to the effect that the appellant’s issue 3.05 arising from his ground 5 of the grounds of appeal is irrelevant. It was contented that it was irrelevant because they were not served and were not aware of the pendency of the suit until 5th February, 1999, when an attempt was made to execute the judgment of Oduneye, J.
The response of the learned Counsel for respondents, in the respondents’ brief is pedestrian in my respectful opinion. I am equally unable to appreciate with due deference to learned Counsel how the position taken by him is reinforced by Order 33 rule 4 of the High Court of Lagos State (Civil Procedure) Rules, which provides as follows:
“4. 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 fit, upon an application made within six days after the trial or within such longer period as the court may allow.” (underlining mine)
The respondents’ case apparently is to the effect that they were not aware of the pendency of the suit until 5th February, 1999, without so deciding, hence their inability to file application to set aside the judgment, delivered on 27th November, 1998, within six days after the trial. There is clearly no quarrel over that. What is in contention is their default in seeking “such longer period as the court may allow” when eventually they were seized of the existence of the judgment. This hurdle the respondents must jump. It is, to my mind, relevant and could not be wished away. Order 33 rule 4 on which respondents sought refuge does not avail them. It does not avail them because the rule prescribes “within six days after the trial” and not within six days of the respondent being seized of the existence of the judgment. Even on this, respondents have not acquitted themselves creditably. On their own showing, the respondents claim that they were not aware of the pendency of the suit until 5th February, 1999, and their application was brought to set it aside on 18th March, 1999. Clearly between 5th February, 1999, when they knew of the judgment and 18th March, 1999, when the application was filed was more than six days. I can therefore, not fathom the reinforcement respondents derived from the provisions of Order 33 rule 4 which expressly enjoins them to seek longer period to bring the application which larger period they failed to seek. Having dealt with the respondents’ attitude to the issue, I propose to consider the matter on its merit. The respondents in their application to set aside the judgment prayed inter alia as follows:
“An order for extension of time within which the defendants/applicants can apply to set aside the judgment entered in favour of the plaintiff/respondent in this suit.”
The respondents, in spite of this, made no allusion to this prayer while moving the motion. Neither did the trial Judge grant them an extension of time to apply before proceeding to set aside the judgment of his learned brother of concurrent jurisdiction. It is important to note that learned counsel for appellant in his reply to the application observed as follows:
“Although they asked for extension of time no allusion was made to it in their submission and they have abandoned that prayer… ”
The prayer, I agree with learned Counsel for appellant, both in the court below and in this court, is deemed abandoned and is struck out by me. In the circumstance, the respondents, who are required to satisfy the court on the reason for not bringing the application within time or such longer time granted by court, are without competent application before the court. In Sanusi v. Ayoola (supra) the Supreme Court held that an application under Order 32 rule 4 of the Lagos State High Court (Civil Procedure) Rules, 1972, which is in pari materiam with Order 33 rule 4 of the Lagos State High Court (Civil Procedure) Rules, 1994, would among other requirements, be competent where the application was made within the prescribed period of six days. Failing which, there must be an application in which the applicant would have given good reasons for his inability to bring the application to set aside the judgment within the six days stipulated under the rules.
I agree with learned Counsel for appellant that the decision in Sanusi v. Ayoola (supra) implies that
(a) Where application to set aside a default judgment is not brought within six days as in the instant case, there must be an application for extension of time to so apply; and
(b) Such application must be considered on its merit and specific order of extension of time made by the court in favour of the applicant before the application to set aside the default judgment would be considered. (underlining mine).
I am strengthened in the view that the application for (a) extension of time and (b) setting aside the judgment must be considered separately by the case Williams & Ors. v. Hope Rising Voluntary Funds Society (1982) 1-2 SC 145.
At pages 155 – 157, Idigbe, JSC, said-
”The gist of the complaint in grounds (3) and (4) is that the application for (a) extension of time; and
(b) setting aside the judgment ought to be considered separately and that the learned trial Judge failed to do so. The appellants further submitted that if the first application failed then the second ought not to have been considered. With regard to the first two grounds it follows from my earlier observation that I am in respectful agreement with the view expressed in the dissenting judgment of Nnaemeka-Agu, J.C.A., in the matter now under appeal that “once the time fixed by the Rules (of court) for bringing the application has expired, an application to set aside the judgment must show both good reasons why the application was not brought without the time and that the application has merit.” Again, on this issue, I would gratefully adopt the observations of Cotton, L.J.:
“… that when the rules and the Act of Parliament say that an appeal is to be within a certain time, unless special leave shall be given by the Court of Appeal after that time, the court does not grant leave unless there is something which in the opinion of the court entitles the person who applies for extension of time to be relived against the bar established by the orders and the Act of Parliament. It has been called an equity, but that is not a proper term; it is something which entitles him to ask for the indulgence of the court to ask to be relieved from the legal bar that there is in the orders and Act of Parliament … That in order the appellant might be relieved from lapse of time, it was not necessary to show that there was something in the conduct of the conduct of the respondent which entitled the appellant to be relieved; it was sufficient if he satisfied the court that there was something either in the acts of the respondent or from other circumstances which entitled him to be relieved, and to be allowed to appeal notwithstanding the time had lapsed.
Now, the only reason for the failure…”
The learned authors of Halsbury Laws of England said in Vol. 26, para. 559 that “when a judgment or verdict has been obtained after trial in the absence of one party application must be made within 7 days after the trial to the Judge who tried the case. The court however has discretion to extend the time where good cause is given.
The respondents sought for extension of time to apply for the order to set aside the judgment which relief was abandoned. There is therefore a bar created by the provisions of Order 33 rule 4 which requires the respondents to apply for the judgment to be set aside within six days of the delivery of the judgment. The respondents failed to apply within the stipulated time. The other remedy available to them was to apply within such extended time permitted by the court. The applicant applied for enlargement of time but abandoned the same. It follows that the learned trial Judge is incompetent to entertain the application not to talk of setting the judgment aside outside the prescribed time and without enlarging the time within which to exercise his undoubted judicial discretion.
I am not unaware of the provisions of section 241(2)(a) of the Constitution which discourages appeal against order of court granting leave to defend. Section 241(2)(a) of the Constitution provides thus:
“(2) Nothing is this section shall confer right of appeal-
(a) from a decision of the Federal High Court or any High Court granting unconditional leave to defend an action.”
But this paragraph, in the circumstance of this case, does not avail the respondents because the order granted them was incompetent. It was incompetent because the order was made pursuance of an application that was made outside the prescribed period of 6 days without seeking and obtaining extension of time to do so. Paragraph (a) of sub-section (2) of section 241 is respectfully intended to protect a valid order of unconditional leave to defend and not a void one as in the instant appeal.
In the circumstance, the order of Adeyinka, J. setting aside the judgment of Oduneye, J., was made without jurisdiction and is therefore a nullity. The appeal succeeds and is allowed. The decision of Adeyinka, J., setting aside the decision of Oduneye, J., delivered on 16th December, 1999, in suit No. ID/1172/95 is hereby set aside. The decision of Oduneye, J., delivered on 27th November, 1998 is, for avoidance of doubt, restored.
There is order as to costs which is assessed at N8,000.00 against the respondents and in the favour of appellant.
AKAAHS, J.C.A.: My learned brother, Salami, JCA, made available to me in draft, the judgment just delivered. I totally agree with his reasoning and conclusion on the issues raised in the appeal. The application to set aside a judgment obtained by default of appearance by the defendant must be made within six days after the trial or within such longer period as the court may allow. See: Order 33 rule 4 High Court of Lagos (Civil Procedure) Rules, 1994. This presupposes that the application must be filed within six days from the date that the judgment was delivered.
If the defendant fails to bring the application within time, he must also bring an application for extension of time within which to apply, to set aside the judgment. Without a prayer for extension of time to apply an application to set aside a judgment simpliciter brought after six days that the judgment was given is incompetent See: N. A. Williams & Ors. v. Hope Rising Voluntary Society (1982) 1-2 S.C. 145 and Alhaji Chief A.R.O. Sanusi v. Alhaji Ibrahim Ayoola (1992) 9 NWLR (Pt.265) 275. For the indulgence for extension of time to apply to set aside the judgment to be granted, an applicant must explain the reasons why he could not file the application timeously, e.g. the non service of the writ, hence the lack of knowledge of the pendency of the action until when the judgment was executed. It is rather curious that the applicant abandoned the prayer for extension of time to apply to set aside the judgment. A court cannot peremptorily exercise its discretion to set aside its judgment or the judgment of a Judge of coordinate jurisdiction, unless the application is competent before the court. See Madukolu v. Nkemdilim (1962) 2 SCNLR 341, (1962) All NLR 581 (reprint). For this and the more detailed reasons contained in the leading judgment, I too will allow the appeal. I abide by all the orders made in the leading judgment, including the order made as to costs.
ONNOGHEN, J.C.A.: I have had the benefit of reading in draft, the leading judgment of my learned brother, Salami, JCA, just delivered. I agree with his reasoning and conclusion that the appeal has merit and should be allowed.
Rules of court are meant to guide and regulate the practice of law in our courts and therefore command obedience to ensure equity and fair play. The said obedience is demanded from the parties, counsel and the court.
In the present appeal, the lower court was called upon to exercise its discretion in an application to set aside a judgment of the court given in default. By the applicable rules of court the lower court has the jurisdiction to exercise the discretion to grant or refuse the grant of that application subject to certain conditions as provided for in Order 33 rule 4 of the High Court of Lagos State (Civil Procedure) Rules to wit:
“4 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 fit, upon an application made within six days after the trial or within such larger period as the court may allow.”
One of the conditions is that such an application to set aside the judgment in default must be made within six days of the delivery thereof or such larger period as the court may deem fit to allow. This condition restricts the jurisdiction of the lower court to entertain such an application by making its exercise conditional on the application being brought within six days of the judgment or any other larger period to be allowed by the said court. In other words, if the application to set aside is not brought within the stipulated six days the applicant must apply for extension of time, within which I present an application to set aside the default judgment so as to confer jurisdiction on the court to consider the application. Where there is no application for enlargement of the six days granted by the rules or where such an application is made but not granted by the court, the court is without jurisdiction to go into the matter or grant or refuse an application to set aside a judgment in default.
In the present case, both parties and the lower court agree that the prayer for extension of time to apply for an order setting aside the default judgment was abandoned by the respondent and that the lower court did not grant same. That being the case the lower court was in grave error in proceeding further to grant the application, the condition precedent to the exercise of its jurisdiction having not been fulfilled. The grant of that application under the circumstance was therefore without jurisdiction and is liable to be set aside.
I must not be understood as saying that the lower court is without jurisdiction, to set aside the judgment of a Judge of co-ordinate jurisdiction. The court has the jurisdiction to so act, but subject to certain conditions such as lack of jurisdiction in the other Judge who made the order or entered the judgment. Such lack of jurisdiction has been defined by the courts, particularly the Supreme Court, to include a situation where the party complaining was not served with the initiating process in the proceedings.
In the present case, the primary issue is not whether the respondent was duly served with the process initiating the proceeding leading to the judgment, but whether the application to set aside the judgment in default was commenced within the time stipulated by the rules; The primary issue is therefore, a periphery matter of jurisdiction to entertain the application on the merit.
I therefore come to the irresistible conclusion as reached by my learned brother, Salami, JCA, that the appeal has merit and I accordingly allow same and abide by the consequential orders, contained in the said lead judgment, including the order as to costs. Appeal allowed.
S.A. Olugbemi, Esq.For Appellant
J.A. Awolade, Esq.;
M.O. Afolabi, Esq.For Respondent