In The Court of Appeal of Nigeria

On Tuesday, the 3rd day of July, 2012




MUSA DATTIJO MUHAMMAD Justice of The Court of Appeal of Nigeria

PAUL ADAMU GALINJE Justice of The Court of Appeal of Nigeria

TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria


2. MR. NANIE ABAH Appellant(s)




P. A. GALINJE, J.C.A. (Delivering the Leading Judgment): In it’s amended statement of claim dated 6th December, 2004 and filed on the same date, the Respondent herein claimed against the appellants at the Rivers State High Court, jointly and severally the sum of N26,998,465.75 (Twenty Six Million, Nine Hundred and Ninety Eight Thousand, Four Hundred and Sixty-Five Naira, Seventy-Five Kobo) being outstanding debt owed to the respondent by the appellants in respect of the completed and submitted bill of designing, costing and submitted two models of the National Museum, Olombini Oil Field Ogbia Town, Bayelsa State.
In addition, the respondent claimed 10% interest per annum on the total sum claimed from 29th of October, 1998 till judgment and the same rate of interest on the judgment sum until same is finally liquidated.
Parties had joined issues when the appellants filed their statement of defence on the 7th of March, 2001.
The learned trial judge, Akpughunum J. Set the case down for trial which commenced on the 19th October, 2006. Respondent herein called only one witness and tendered 24 exhibits in proof of its case. The Appellants who were defendants at the lower court abandoned their defence when they and their counsel failed to put up appearances even though they were severally served. This is what the learned trial judge said at pages 22-23 of the record of Appeal thus:-
“The records of the court and the processes filed therein, clearly showed that the defendants through their counsel filed their joint statement of defence and appeared in court to represent them, before both defendants and counsel abandoned their case, and they deliberately refused to attend court inspite of the several hearing notices served on them and their counsel to ensure their attendance to (sic) court to defend their case. Their failure to attend court to cross examine PW1 and enter their defence, led to their being foreclosed from so doing.”
It is on the basis of the reason reproduced above and a host of other reasons the learned trial judge in his reserved and well considered judgment delivered on the 5th day of June, 2007, granted all the reliefs sought by the respondent.

The appellants were unhappy with the judgment of the lower court. Being aggrieved, they brought an application at the lower court dated 25th June, 2007 and filed on 26/6/07 praying the court to set aside the judgment aforesaid and make an order restraining the respondent from taking any step or action or further step or action to enforce the judgment of the court, the motion was heard and subsequently dismissed on the ground that the judgment delivered on the 5/6/2007 being on the merit and final, the only remedy open to the applicants is an appeal as the lower court lacked the competence to grant the relief sought by the appellants.
The appellants are further aggrieved by the ruling of the lower court and have therefore brought this appeal. Their notice of appeal at pages 72 – 74 of the record of this appeal dated 18/12/08 and filed on the 19/12/08 contains three grounds of appeal.
Parties filed and exchanged briefs of argument Mr. Golden Awi learned counsel for the appellants formulated two issues for determination of the appeal. These issues are reproduced hereunder as follows:-
1. Whether the judgment entered in suit No.PHC/901/2000 on the 5th day of June, 2001 was reached on the case that was heard on its merit.
2. Whether the circumstance of the application to set aside the judgment in suit No.PH/901/2000 is worthy of sympathetic consideration.”
For the respondent, one issue only was formulated for determination of the appeal, and it reads:-
“1. Was the learned trial court in error when it held that its judgment delivered on the 5th of June, 2007 being a judgment on the merit and set same aside.”
Appellants’ reply brief is dated 15th day of June, 2009 and filed on this 17th June, 2009.

Having read through the record of appeal and the briefs of argument in this appeal, I am of the firm view that the sole issue formulated by the respondent has adequately covered the field. I will therefore adopt the said issue in the determination of this appeal.
Mr. Golden Awi, learned counsel for the appellant in arguing this appeal, submitted that the judgment delivered by the trial court on the 5/6/07 is a judgment in default of appearance and it was therefore wrong, for that court to refuse to set same aside in its ruling of 17/12/2009 on the ground that the said judgment being on the merit and final, it lacked competence to set same aside.
Learned counsel discussed extensively, the meaning of judgment on the merit and default judgment and concluded that the judgment which was delivered on the 5/6/07 is a default judgment which was not delivered on the merit. In aid learned counsel cited CARDOSO v. DANIEL (1986) 2 NWLR (Pt.20) 1 at 45 paragraphs B – D, UTC (NIG) LTD v. PAMOTEI (1989) 2 NWLR (Pt.103) 244 at 282 – 283 paragraphs H – A, ODOFIN & ORS V. MOGAJI & ORS. (1978) NSCC 275 at 277 lines 44 – 52, MOHAMMED V. HUSSEINI (1998) 14 NWLR (PT.584) 108.
In a further argument learned counsel submitted that on the basis of the deposition in the affidavit in support of the application to set aside the judgment of 5/6/07 which explained the circumstances that led to the none appearance of the appellants at the lower court, that court would have given a sympathetic consideration of the Appellants’ application to set aside the judgment aforesaid. In support of this argument learned counsel cited WILLIAMS & ORS v. HOPE RISING VOLUNTARY FUNDS SOCIETY (1982) 1 – 2 SC 145, MUHAMMED V. HUSSEINI (supra) at 130 paragraphs D – G.

Finally learned counsel argued that the hearing notice in respect of the several adjournments during the trial were not brought to the attention of the appellants, even though they were served on their solicitors who stopped putting up appearances in court. The appellants therefore should not be punished for the behaviour of their counsel who failed to act in their client’s interest.
In aid learned counsel cited MUHAMMED V. HUSSEINI (supra).
In conclusion, learned counsel urged this court to allow the appeal.
For the respondent, Mr. M. S. Agwu of counsel, submitted that the lower court was right in refusing the appellants’ application to set aside the judgment of 5/6/07 on the ground that, the Appellants who were always on notice any time the case came up for hearing, willfully refused to put up appearances.
According to the learned counsel the case was decided on the evidence of the sole witness called by the respondent and the 24 documents tendered in evidence, as such it is a decision on the merit, even though the appellants’ counsel did not appear to cross examine the respondent’s witness.
In a further argument, learned counsel submitted that the appellants’ argument that they should not be punished for the mistake of their counsel cannot avail the Appellants who were shown on record to have been served with hearing notices with the dates of hearing fully communicated to them. It is the view of the learned counsel that, a party who refuses to be an active party in a trial process, does so at his own peril because if at the end of the day, the result of the case in not in his favour, he cannot complain. In aid the authorities in MOHAMMED v. KPELAI (2001) FWLR (Pt.69) and ADO v. COMM. FOR WORKS, BENUE STATE (2008) ALL FWLR (PT.436) 2058 at 2073 paragraph B – D were cited.

A default judgment is defined by Blacks Laws Dictionary, 6th Edition at page 842 as a judgment rendered in consequence of the non-appearance of the defendant or the failure of the defendant to plead at the appointed time.
In OGOLO v. OGOLO (2006) 25 NSCQLR 423 at 434 – 435 the Supreme Court, per Onnoghen JSC said:
“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 to the jurisdiction of the court.”
Where the judgment is final and the court that enters it has no jurisdiction to set same aside having thereby become functus officio, the only way to challenge it or remedy any defect therein is by appeal to a superior court…. In the instant case the judgment of 8th October, 1996 by the trial court was a judgment in default of defence and therefore not a final judgment since both parties were not heard on the merits of the case. In such a case, the Rules of court particularly order 27 Rule 10 of the applicable High Court Rules provides the procedure for setting aside of a judgment not given on the merit by the court that gave it.”
In the instant case, the judgment delivered on the 5th June 2007 was delivered in default of appearance and/or defence. It is therefore a default judgment since same was delivered without hearing the Appellants witnesses and their counsel. The reason for failure to hear the Appellants witnesses and their counsel cannot change the fact that the judgment was delivered in absence of defence.
The fact of service of hearing notices on the Appellants and their failure to put up appearance may be helpful only in the area of consideration of the application to set such judgment aside.
Order 30 Rule 4(2) of the Rivers State High Court (Civil Procedure Rules) 2006 provides as follows:-
“Any judgment obtained where any party does not appear at the trial may be set aside by the judge upon such terms as he may deem fit.”
By the provision of this rule, a grant or refusal of an application to set aside a default judgment is purely within the discretionary powers of the court that delivered the judgment. Such discretionary powers must be exercised judiciously and judicially upon relevant conditions which include:-
1. Whether there has been undue delay in making the application so as to prejudice the respondent.
2. Whether the respondent will be prejudiced or embarrassed upon an order for rehearing being made so as to render it inequitable to permit the case to be reopened.
3. Whether the applicant’s case is manifestly unsupportable. See Williams v. Hope Rising Voluntary Funds Society (1982) 1-2 SC 145.”

Although Order 30 Rule 4(3) provides for 6 days within which an application to set aside a judgment should be made from the day the judgment that is sought to be set aside was delivered, the learned trial judge’s refusal to set aside the judgment was not based on this rule, since the learned trial judge granted an extension of time for the filing of the application to set aside the judgment which was filed on 26/6/2007.
Whether the respondent will be prejudiced or not upon an Order for rehearing the case will totally depend on the nature of the Appellant’s case, it is a fact that the case at the lower court started on undefended cause list, the learned trial judge transferred the case to a general cause list.
If the appellant’s case was manifestly unsupportable, the matter would have been heard as undefended suit and judgment delivered in favour of the respondent. For a court to exercise its discretion judicially and judiciously with regards to application to set aside a judgment given in default of appearance, one of the matters it must consider is whether the applicant’s case is manifestly unsupportable having regard to the statement of defence or proposed statement of defence exhibited to the affidavit in support of the application to set aside the said default judgment. This is so because the court must be satisfied that the applicant has a defence on the merit before he can be allowed to defend the action when the judgment is finally set aside. In the instant case the only reason the learned trial judge gave for refusing to set aside the judgment of 5th June, 2007 is the failure of the Appellants to appear and defend the case inspite of the numerous hearing notices that were served on them and their counsel.
It will appear therefore that the learned trial judge in his decision, did not consider the statement of defence of the appellants which was already before him and on the basis of which the case was transferred to the general cause list in refusing the application.

I have stated elsewhere in this judgment that a grant or refusal of the application to set aside the judgment is purely within the discretionary powers of the lower court. The law is settled that a discretion properly exercised by trial court will not be lightly interfered with by this court even if this court is of the view that it might have exercised the discretion differently. However where such discretion is exercised upon a wrong principle or mistake of law or under a misapprehension of the facts, this court has a duty to interfere with such exercise of discretionary powers in order to do substantial justice between the parties. The fact that the matter was transferred to a general cause list is a reason to believe that the appellant’s case is manifestly supportable.
The appellants in my view did depose to good and substantial reasons why the judgment of the lower court should be set aside in their affidavit in support of their application the death of the 2nd respondent and subsequent activities surrounding the properties of the 1st respondent are enough to engender a sympathetic consideration of the application to set aside the default judgment by the lower court. Having failed to do so, this court is in a position to do so in order to hear both sides to the case. Accordingly this appeal is meritorious and it is allowed.
The ruling of the High Court of Rivers State delivered on the 17th December, 2008 in suit No. PHC/901/2000 is hereby set aside. Also set aside is the judgment delivered on the 5th of June, 2007 in the same suit.
This case is remitted to the Hon. Chief Judge of Rivers State to be reassigned to Akpughunum J, for its conclusion.


T. O. AWOTOYE, J.C.A.: I entirely agree.



Golden AwiFor Appellant



M. S. AgwuFor Respondent


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