ENGINEER SHAMSIDEEN OLANREWAJU YUSSUF v. AFOLABI ILORI
(2007)LCN/2497(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 24th day of July, 2007
CA/L/175/2002
RATIO
CONSTITUTIONAL LAW – FAIR HEARING: WHEN WILL THE RULE OF HAIR HEARING COME INTO PLAY
“The principle or rule comes into play only where a party is denied any opportunity to be heard. It is for the appellant to advance cogent and convincing reason which would entitle him to the exercise of courts’ discretion in his favour as adjournment of cases are not granted as a matter of course. As earlier observed, the decision whether to grant adjournment is at the discretion of a court. Once that discretion is properly and judicially and judiciously exercised, an appellate court will not interfere.”PER MSHELIA, J.C.A.
COURT – DISCRETION OF THE COURT: THE DISTINCTION BETWEEN WRONGFUL EXERCISE OF DISCRETION AND THAT EXERCISED JUDICIALLY AND JUDICIOUSLY
“It is worthy of note the distinction between wrongful exercise of discretion and one exercised judicially and judiciously as stated by the Supreme Court in Ekwunife v. Wayne (W. A.) Ltd. (1989) 5 NWLR (Pt. 122) 422 at 448 paras. A-B. Their Lordships had this to say:- “It must be borne in mind that the essential difference between arbitrary or wrongful exercise of discretion, on the one hand and a judicial cum judicious exercise of it on the other is that whereas the former is the exercise of it with either no reason at all, or with wrong or insufficient reason, the latter is the exercise of it with sufficient, correct and convincing reason. Judicial and judicious exercise of discretion is acceptable in law, an arbitrary exercise of it is not.” PER MSHELIA, J.C.A.
COURT – DISCRETION OF THE COURT: WHETHER GRANTING OF ADJOURNMENTS IS WITHIN THE DISCRETIONARY POWER OF THE COURT
“I wish to state that the question of adjournment is a matter in the discretion of the court concerned and must depend on the facts and circumstances of each case. For, in matters of discretion, no one case can be authority for another; and “the Court” cannot be bound by a previous decision to exercise the discretion in a particular way because that would be in effect putting an end to the discretion. See Odusote v. Odusote (1971) NMLR 228 at 231. It is trite that the decision whether or not to grant an adjournment is at the discretion of the court. Once that discretion is properly and judicially and judiciously exercised, an appellate court will not interfere. See A.-G., Rivers State v. Ude (2006) 7 NWLR (Pt. 1008) 436 at 465. To further expantiate the role of this court in matters of exercise of discretion, it is appropriate to note the observation of the Apex Court in Odusole supra page 231. Their Lordships had this to say:” On the question of the exercise of discretion in granting application for adjournment, it is pertinent to quote a passage in the judgment of Lord Wright, L. J. in Evans v. Bartlam (supra), to which our attention was drawn by the learned counsel for the appellant. In his judgment Lord Wright said at page 487:- “A Judges order fixing the date of trial or refusing to grant an adjournment is a typical exercise of purely discretionary powers, and would be interfered with by the Court of Appeal only in exceptional cases, yet it may be reviewed by the Court of Appeal. Thus in Maxwell v. Keun (1928) 1 KB 645 the Court of Appeal reversed the trial Judge’s order refusing to the plaintiff an adjournment. That was a pure matter of discretion on the facts. Atkin, J. J. said (at p. 653) I quite agree the Court of Appeal ought to be very slow, indeed to interfere with the discretion of the learned trial Judge on such a question as an adjournment of a trial, and it very seldom does so, but, on the other hand, if it appears that the result of the order made below is to defeat the rights of the parties altogether and to do that which the Court of Appeal is satisfied would be an injustice to one or other of the parties, then the court has power to review such an order and it is, to my mind its duty to do so.” PER MSHELIA, J.C.A.
APPEAL – ISSUES FOR DETERMINATION: WHETHER IT IS THE DUTY OF COUNSEL WHEN SETTLING ISSUES IN A BRIEF TO RELATE THEM TO THE GROUNDS OF APPEAL
“It is the duty of counsel when settling issues in a brief to relate them to the grounds of appeal so that if an appeal is allowed it will be easy to know on which grounds the appeal is allowed. See Gaamstac Eng. Ltd. v. F.C.D.A. (1988) 4 NWLR (Pt. 88) 296 at 305. It is not for the court to fish out the relevant grounds of appeal.” PER MSHELIA, J.C.A.
JUSTICES
ISA AYO SALAMI Justice of The Court of Appeal of Nigeria
CLARA BATA OGUNBIYI Justice of The Court of Appeal of Nigeria
ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria
Between
ENGINEER SHAMSIDEEN OLANREWAJU YUSSUF
(AIR MARSHALL NURAINI YUSSUF deceased substituted by Order of Court dated 26th June, 2006) – Appellant(s)
AND
AFOLABI ILORI – Respondent(s)
MSHELIA, J.C.A. (Delivering the Leading Judgment): By an amended writ of summons and amended statement of claim filed in suit No. ID/1713/91 at the High Court of Lagos State, Ikeja Judicial Division the respondent as plaintiff, claimed against the original appellant Air Marshall Nuraini Yusuff as the defendant the following reliefs:-
“1. A declaration that the plaintiff is entitled under native law and custom to the right of occupancy of all that piece or parcel of land situate, lying and being at Alagbade near Arowokoko Village, Lagos and more particularly described and delineated in plan No. 269 drawn by A. O. Craig, licenced surveyor.
2. The sum of N50, 000.00 as general damages for trespass committed by the defendant on the said land.
3. A perpetual injunction restraining the defendant, his servants, agents or privies from committing further acts of trespass on the said land.”
By paragraph 16 of the amended statement of claim, respondent claimed as per the amended writ of summons. The amended statement of claim did not contain different reliefs from that claimed in the writ of summons.
After the amendment respondent filed a motion on notice dated 30th September, 1993. The application was brought pursuant to Order 24 rule 11 of the High Court of Lagos State (Civil Procedure) Rules, 1972 wherein respondent sought for an order for judgment in default of defence. The motion came up for hearing before Akande, J. on the 29th day of November, 1993. Appellant’s counsel Chief Oriade sought for adjournment on the ground that his client travelled out and he could not be briefed by him to enable him file a counter affidavit. Counsel for the respondent Mr. Okunuga opposed the application on the ground that the said application which was filed on 20th October, 1993 was duly served on the appellant on 23rd November, 1993. By Order 40 rule 5 of the Lagos State High Court (Civil Procedure) Rules appellant had 2 clear days to respond to the application. That the amended writ of summons and statement of claim were served 4 months ago. The learned trial Judge Akande, J. refused the application for adjournment and called upon applicant’s counsel to move the pending application. Mr. Okunuga moved the motion on notice and sought for an order for judgment in default of defence in accordance with Order 24 rule 11 of the High Court Lagos State (Civil Procedure) Rules, 1972. Chief Oriade on the other hand urged the court to dismiss the application on the ground that the order under which the application was brought was not appropriate since the respondent sought to recover land and not debt. The learned trial Judge in a considered ruling delivered on the same date 29th November, 1993 had this to say:-
“The Order 24 rule 11 is in my view very relevant and appropriate in this application. The said application therefore has merit, since the facts in the affidavit are uncontroverted. I take them as true and act on same. In the circumstances, the application succeeds order as prayed per prayer on the motion papers.”
Being dissatisfied appellant appealed to this court by filing a notice and grounds of appeal dated 1st day of December, 1993 which same appeared on page 36 of the record. The notice of appeal contained three grounds of appeal. The three grounds without particulars are as follows:-
Grounds of Appeal:
(1) The learned trial Judge, the Honourable Justice Inumidun Akande (Ms) erred in law in refusing to exercise her inherent jurisdiction to grant the application of the defendant/appellant for an adjournment of the hearing of the plaintiff/respondent’s motion for an order for judgment in default of filing a statement of defence.
(2) The learned trial Judge erred in law in making an order entering judgment and awarding costs of N500, 000.00 in favour of the plaintiff/respondent under Order 24 rule 11 of the High Court of Lagos State (Civil Procedure) Rules, 1972 in default of filing a defence.
(3) The learned trial Judge erred in law in failing to dismiss the motion of the plaintiff/respondent for an order entering judgment under Order 24 rule 11 of the High Court of Lagos State (Civil Procedure) Rules, 1972 in default of filing defence.
In compliance with Order 6 of the Court of Appeal Rules, parties exchanged briefs of argument. Appellant filed amended brief of argument on 8/02/07. While respondents brief was deemed filed and served on 13/05/07. Appellant did not file reply brief.
From the three grounds of appeal filed appellant distilled two issues for determination in this appeal.
The issues are:-
1. The first issue for determination in this appeal is whether the refusal of the learned trial Judge to grant the application for adjournment of the motion was a fatal breach of fair hearing of audi alteram partem under section 33(1) of the Constitution of Nigeria, 1979.
2. The second issue for determination in the appeal is whether the plaintiff/respondent, who claimed damages for trespass in suit No. ID/1713/91, should have exhibited a survey plan to show the identity and the portion of the land in respect of which the defendant/appellant had committed trespass.
Respondent on the other hand formulated three issues for determination as follows:-
(i) Whether the learned trial Judge exercised her discretion judicially and judiciously in refusing to grant an adjournment of the application having regard to the circumstances of the case – Ground 1.
(ii) Whether Order 24 rule 11 of the High Court of Lagos State (Civil Procedure) Rules of 1972 is applicable to a claim for declaration of title, damages for trespass and an injunction – Ground 2.
(iii) Whether it is necessary to exhibit a survey plan in an application for judgment in default of defence in a land matter under Order 24 rule 11 of the High Court Rules.
When the appeal came up for hearing on 17/05/07 both appellant’s and respondent’s counsel adopted their respective briefs of argument.
I have observed that appellant did not tie any of the grounds to the issues formulated. It is the duty of counsel when settling issues in a brief to relate them to the grounds of appeal so that if an appeal is allowed it will be easy to know on which grounds the appeal is allowed. See Gaamstac Eng. Ltd. v. F.C.D.A. (1988) 4 NWLR (Pt. 88) 296 at 305. It is not for the court to fish out the relevant grounds of appeal. Be that as it may respondent has performed his own part of the obligation, having tied his three issues to the three grounds of appeal. Upon careful perusal of the two set of issues I find that issue No.1 formulated by appellant and issue No.1 formulated by respondent which he tied to ground 1 are related and can be taken together. Similarly, issue No.2 formulated by appellant and issue NO.3 formulated by respondent which is also tied to ground 3 are related and can be taken together. Only issue 2 formulated by respondent will be considered separately since appellant only formulated two issues which were not tied to any ground of appeal.
On issue 1, appellant’s counsel contended in his brief of argument that the refusal of the learned trial Judge to exercise her discretion judicially and judiciously to grant the appellant’s application for adjournment was a breach of the principle of audi alteram partem of fair hearing under section 33(1) of the Constitution of Nigeria, 1979. Counsel further contended that appellant was served on the 23rd day of November, 1993 with copy of a motion for judgment which came up for hearing on the 29th November, 1993. On that date, trial Court was informed that appellant travelled overseas and would be back on 31st December, 1993 hence the application for adjournment. In support of his contention that the refusal of the adjournment violated the principle of fair hearing counsel relied on the cases of Ceekay Traders Ltd. v. General Motors Co. Ltd. (1992) 2 NWLR (Pt. 222) 132 at 162 and 163; Ekufor v. Chief Bomar (1997) 9 NWLR (Pt. 519) 1 at 10 – 14 and Salu v. Madam Egeibon (1994) 6 NWLR (Pt. 348) 23 at 44.
In response, respondent’s counsel contended that appellant was aware of the pendency of the subject matter of this suit when his counsel entered appearance to the original writ of summons as far back as 29th day of July, 1992. Counsel contended that by the provisions of Order 18 rule 6 of the High Court of Lagos State (Civil Procedure) Rules of 1972 where a defendant has entered appearance he shall file his defence within 14 days from the time limited for appearance or from the service of the statement of claim. He said at the time the application for judgment in default of the statement of defence was being moved on 29th day of November, 1993, the appellant had well over 15 months to put in his defence. Learned counsel further contended that at the time the application for judgment was being moved, there was no defence whatsoever before the learned trial Judge. Counsel was also of the view that no court worth its salt would have adjourned the application for judgment based on the statement of the learned counsel for the appellant that his client had travelled out and no indication on record as to when the client would be back in respect of a matter the counsel entered appearance in July 1992.
Furthermore, counsel contended that the learned trial Judge was right to have refused the adjournment. The principles relating to exercise of discretion particularly on the issue of an adjournment can be stated as follows:-
(i) A Judges order fixing the date of trial or refusing to grant an adjournment is a typical exercise of purely discretionary power and would be interfered with by the Court of Appeal only in exceptional cases.
(ii) It is a well established principle of law that all judicial discretion must be exercised according to common sense and according to justice, and if there is any miscarriage of justice in the exercise of such discretion, it is within the competence of a Court of Appeal to have it reviewed.Counsel further contended that an application for adjournment to file a counter-affidavit to an application for judgment in default of defence could not have been granted for the following reasons:-
(a) The application for judgment had been served on the 23rd of November, 1993 at least 5 clear days have elapsed before the hearing of the application (See page 26 of the record of appeal).
(b) There was no defence before the lower court as at the time of the hearing of the application.
(c) There was no indication from the learned counsel for the original appellant as to when his client who had travelled out would be back in the country.
(d) It would not be in the interest of justice for the court to wait for a litigant ad infinitum in respect of a matter he had been aware of since 1992.
Finally, counsel concluded that the discretion of the lower court refusing to grant the application for adjournment was in order as it was exercised judicially and judiciously, He therefore urged the court not to interfere with same.
The main complaint of appellant in respect of issue NO.1 is that the refusal by the learned trial Judge to grant the adjournment violated the principle of fair hearing as enshrined under S. 33(1) of the 1979 Constitution of the Federal Republic of Nigeria.
I wish to state that the question of adjournment is a matter in the discretion of the court concerned and must depend on the facts and circumstances of each case. For, in matters of discretion, no one case can be authority for another; and “the Court” cannot be bound by a previous decision to exercise the discretion in a particular way because that would be in effect putting an end to the discretion. See Odusote v. Odusote (1971) NMLR 228 at 231.
It is trite that the decision whether or not to grant an adjournment is at the discretion of the court. Once that discretion is properly and judicially and judiciously exercised, an appellate court will not interfere. See A.-G., Rivers State v. Ude (2006) 7 NWLR (Pt. 1008) 436 at 465.
To further expantiate the role of this court in matters of exercise of discretion, it is appropriate to note the observation of the Apex Court in Odusole supra page 231. Their Lordships had this to say:”
On the question of the exercise of discretion in granting application for adjournment, it is pertinent to quote a passage in the judgment of Lord Wright, L. J. in Evans v. Bartlam (supra), to which our attention was drawn by the learned counsel for the appellant. In his judgment Lord Wright said at page 487:-
“A Judges order fixing the date of trial or refusing to grant an adjournment is a typical exercise of purely discretionary powers, and would be interfered with by the Court of Appeal only in exceptional cases, yet it may be reviewed by the Court of Appeal. Thus in Maxwell v. Keun (1928) 1 KB 645 the Court of Appeal reversed the trial Judge’s order refusing to the plaintiff an adjournment. That was a pure matter of discretion on the facts. Atkin, J. J. said (at p. 653) I quite agree the Court of Appeal ought to be very slow, indeed to interfere with the discretion of the learned trial Judge on such a question as an adjournment of a trial, and it very seldom does so, but, on the other hand, if it appears that the result of the order made below is to defeat the rights of the parties altogether and to do that which the Court of Appeal is satisfied would be an injustice to one or other of the parties, then the court has power to review such an order and it is, to my mind its duty to do so.”
In the instant case, in order to appreciate the complaint of the appellant, I think it is necessary to briefly state the events that took place prior to the refusal of application for adjournment by the trial court. It is evident from the record that appellant entered appearance as far back as 29th day of July, 1992 when the original writ of summons and statement of claim were served on him. Appellant by the provisions of Order 18 rule 6 of the High Court of Lagos State (Civil Procedure) Rules, 1972 was expected after entering appearance to file his defence within 14 days from the time limited for appearance or from the service of the statement of claim. Appellant took no step by way of filing his statement of defence. As per the order of court dated 24/05/93 appellant was again served with amended writ of summons and statement of claim filed on 28/5/93. Again appellant did not take any action.
On 30th day of September, 1993 respondent filed motion on notice seeking for judgment in default of defence. Paragraph 4 of the affidavit in support confirms service of the amended writ of summons and statement of claim on the appellant. For ease of reference paragraph 4 of the affidavit which appeared at page 23 of the record is reproduced hereunder –
“4. That Mr. Adetola Onasanya a bailiff of this Honourable Court told me and I verily believed him that he served the amended writ of summons and the statement of claim on the defendant solicitor Chief E. A. Oriade on the 29th day of July, 1993 in his chambers at No. 13/19 Oladoye Oriade Street, Ejigbo, Lagos State.”
The motion for judgment in default was similarly served on appellant on the 23rd day of November, 1993. The application came up for hearing on 29th November, 1993, Chief Oriade who appeared for the appellant sought for an adjournment on the ground that his client travelled out and he could not be briefed to enable him file a counter-affidavit. Respondent’s counsel Mr. Okunuga opposed the application on the ground that the application was served on the appellant on 23rd November, 1993. That by Order 40 rule 5 of the High Court (Civil Procedure) Rules, 1972 appellant has had enough 2 clear days he is entitled to file the counter-affidavit. Counsel further stated that the application is for judgment in default of statement of defence and the amended writ of summons and statement of claim were served 4 months prior to the date of hearing of the application.
Mr. Okunuga contended that appellant had no excuse for the adjournment and urged the court to allow him move his application. After listening to the submission of both counsel the learned trial Judge had this to say:-
I am in total agreement with Mr. Okunuga’s objection to an adjournment. Before the court could grant an adjournment of any matter slated for hearing before it being made by a counsel, the reason advanced by the said counsel must thus be cogent and not frivolous as adjournment is not granted as a matter of course. It is my considered view that the reason for an adjournment this morning by Chief Oriade is frivolous and unacceptable …”
Respondent’s counsel moved the motion and appellant’s counsel responded. The learned trial Judge in a considered ruling delivered that same 29th November, 1993 entered judgment in favour of the respondent.
A hearing of a matter in court cannot be said to be fair if any of the parties appearing before the Court is refused a hearing or is denied the opportunity to be heard or present his case or call evidence. See Mil. Governor, Imo State v. Nwauwa (1997) 2 NWLR (Pt. 490) 675. The right to fair hearing is fundamental constitutional light guaranteed by the constitution of the Federal Republic of Nigeria, 1999 and a breach of it in trials or adjudication vitiates the proceedings, rendering same null and void and of no effect. See A.-G., Rivers State v. Ude (2006) 17 NWLR (Pt. 1008)436 at456. See also Ceekay Traders Ltd. v. General Motors Co. Ltd. (1992) 2 NWLR (Pt. 222) 132 at 162 – 163; Ekufor v. Chief Bomar (1997) 9 NWLR (Pt. 519) 10-14 and Salu v. Madam Egeibon (1994) 6 NWLR (Pt. 348) 23 at 44 cited by appellant’s counsel in his brief of argument.
Considering the entire circumstances of the case at hand as narrated earlier in this judgment, can it be said that appellant was denied fair hearing by the trial court? It is clear from the proceedings of 29th November, 1993 that appellant’s counsel Chief Oriade did not complain that the amended writ of summons and statement of claim was not served on the appellant. Appellant’s counsel did not provide information to the court as to the date his client left the country. There ought to be evidence that appellant actually travelled out. In other words, appellant’s travel documents should have been placed before the court as evidence confirming such journey. This information in my humble view is very vital because the main reason advanced by appellant’s counsel in support of his application for the adjournment was that he could not be briefed by his client to enable him file the counter-affidavit. If the information as to the date was made available one would be in a position to know whether appellant left the country before or after service on counsel of the amended writ of summons and amended statement of claim. That would determine whether counsel was really in need of briefing before taking steps bearing in mind the fact that counsel was in the matter since the commencement of the case in 1992. As at that date of healing the motion for judgment in default of defence, there was nothing before the court.
Given the set of facts and circumstances of this case, I am of the considered view that there is no substance in the complaint of the appellant that he was denied fair hearing. The principle or rule comes into play only where a party is denied any opportunity to be heard. It is for the appellant to advance cogent and convincing reason which would entitle him to the exercise of courts’ discretion in his favour as adjournment of cases are not granted as a matter of course. As earlier observed, the decision whether to grant adjournment is at the discretion of a court. Once that discretion is properly and judicially and judiciously exercised, an appellate court will not interfere.
It is worthy of note the distinction between wrongful exercise of discretion and one exercised judicially and judiciously as stated by the Supreme Court in Ekwunife v. Wayne (W. A.) Ltd. (1989) 5 NWLR (Pt. 122) 422 at 448 paras. A-B. Their Lordships had this to say:-
“It must be borne in mind that the essential difference between arbitrary or wrongful exercise of discretion, on the one hand and a judicial cum judicious exercise of it on the other is that whereas the former is the exercise of it with either no reason at all, or with wrong or insufficient reason, the latter is the exercise of it with sufficient, correct and convincing reason. Judicial and judicious exercise of discretion is acceptable in law, an arbitrary exercise of it is not.”On the whole, I agree with the submission of respondent’s counsel that the learned trial Judge exercised the discretion judicially and judiciously by refusing the application for adjournment as such this Court will not interfere. In the circumstances issue No.1 will be resolved against the appellant.
Appellant’s counsel contended in respect of issue NO.2 that the plaintiff/respondent who claimed damages for the alleged trespass committed on his land, was obliged to exhibit survey plan to his motion for judgment to show the identity and portion of the land on which the appellant committed trespass and that he should also establish that he was in exclusive possession of the land in dispute.
Counsel contended that plaintiff/respondent did not exhibit to his motion for judgment the survey plan of the land in dispute and that he did not exhibit any document or given any affidavit evidence to establish that he was in exclusive possession of the area of land claimed by him. See Anabarony v. Nwakaihe (1997) 1 NWLR (Pt. 482) 374 at 481 and Ayinde v. Alhaja Salawu (1989) 3 NWLR (Pt. 109) 297.
In reply, respondent’s counsel posed a question as to whether in an application for judgment in default of statement of defence under the provisions of Order 24 rule 11 of the High Court of Lagos State (Civil Procedure) Rules of 1972 it is mandatory to exhibit survey plan of the land in dispute to the said application. Furthermore, counsel contended that it was not the case of the appellant at the lower court that by the pleadings filed by the respondent the identity and portion of the land in dispute was in issue. He said at the hearing of the application for judgment on the 29th of November, 1993 there was before the lower court the amended statement of claim dated 15th day of May, 1993. See pages 18-21 of the record. Counsel contended that the survey plan was pleaded in paragraph 3 of the statement of claim. There was no defence by the appellant joining issues with the respondent on the identity or location of the land in dispute. It was his contention that on the clear reading of Order 24 rule 11 of the High Court Rules, it does not impose any obligation on the respondent to exhibit the survey plan of the land in dispute to his application for judgment. Learned counsel submitted that all that the rules require the learned trial Judge to do is to give such judgment as upon the statement of claim the court or Judge shall consider the plaintiff to be entitled. Counsel further contended that it is not the case of the appellant in ground 3 and its particulars that the respondent led no evidence whether oral or by affidavit evidence before, judgment was entered in his favour particularly on the claim for declaration of title, damages for trespass and an order of injunction.
Counsel contended that none of the grounds complained of judgment being entered for the respondent without any evidence led in support of the reliefs sought. It was his contention that in absence of any ground of appeal complaining of same the cases cited are irrelevant.
He urged the Court to hold that there is no merit in issue 3.
Appellant’s issue 2 is whether plaintiff/respondent who claimed damages for trespass should have exhibited a survey plan to show the identity of the portion of the land in respect of which the defendant/appellant had committed trespass. I have taken note of the submission of both counsels on this issue. The question of whether a survey plan must be attached to the motion for judgment did not arise from the decision of the lower court. The language of Order 24 rule 11 of the Lagos State High Court (Civil Procedure) Rules, 1972 did not also suggest that it is a mandatory requirement. For ease of reference and emphasis Order 24 rule 11 is reproduced hereunder:-
“11. In all actions other than those in the preceding rules of this order mentioned, if the defendant makes default in filing a defence, the plaintiff may set down the action on motion for judgment, and such judgment shall be given as upon the statement of claim the court or Judge in chambers shall consider the plaintiff to be entitled to.”
The motion for judgment filed by respondent was supported by 7 paragraph affidavit deposed to by the respondent himself. The 7 paragraph affidavit relied upon by respondent reads thus:-
“1. Afolabi Ilori, Male, Christian, Nigerian Citizen, Architect residing at No. 15 Asofiyan Street, Mushin, Lagos State, do hereby make oath and say as follows:-
(i) That I am the plaintiff in this suit.
2. That pursuant to an order of this Honourable Court dated 24th day of May, 1993, I was granted LEAVE to amend my writ of summons and the statement of claim, and to file the amended writ of summons and amended statement of claim within 7 days.
3. That by my amended writ of summons and amended statement of claim filed on the 28th day of May, 1993, I claim the following reliefs against the defendant.
(i) A declaration that the plaintiff is entitled under native law and custom to the right of occupancy of all the piece or parcel of land situate, lying and being at Alagbado near Arowokoko Village, Lagos and more particularly described and delineated in plan No. 269 drawn by A. O. Craig, licenced surveyor.
(ii) The sum of N50, 000.00 as general damages for trespass committed by the defendant on the said land.
(iii) A perpetual injunction restraining the defendant, his servants, agents or privies from committing further acts of trespass on the said land.
4. That Mr. Adetola Onasanya, a bailiff of this Honourable Court told me and I verily believed him that he served the amended writ of summons and the amended statement of claim on the defendant solicitor, Chief E. A. Oriade on the 9th day of July, 1993 in his chambers at No. 13/19, Oladoye Oriade Street, Ejigbo, Lagos State.
5. That since then, the defendant has not filed and served his statement of defence and my solicitors told me and I verily believed them that the period prescribed by the rules of this Honourable Court within which the defendant should file his statement of defence has expired.
6. That I verily believed the defendant has no defence to this suit.
7. That I swear to this affidavit bone fide.”
It is to be noted that the lower court entered judgment in favour of the respondent as per the motion papers. The issue of identification of the land in dispute did not arise because appellant did not file any statement of defence so issues were not joined. Every averment contained in the affidavit were taken as true since there was no counter-affidavit. In absence of a counter-affidavit, averments in an affidavit in support of an application are generally admissible. In other words, unchallenged or uncontradicted averments in an affidavit are admissible in law and a court of law is entitled to give full weight and value to such averments. See Soy Agencies and Ind. Serv. Ltd. v. Metalum Ltd. (1991) 3 NWLR (Pt. 177) 35. Survey plan may be necessary in certain cases to prove the area of land trespassed upon but in the instant case parties did not call evidence.
It is also not the case of the appellant that the respondent did not lead evidence to prove his claim for declaration of title, trespass and order of injunction. Therefore, the cases of Anabaronye v. Nwakaihe supra and Ayinde v. Alhaja Selawu relied upon by appellant to substantiate his argument that survey plan must be attached are irrelevant as far as the situation at hand is concerned. In Anabaronye v. Nwakaihe supra both parties called evidence to prove their claim and the survey plan was tendered in evidence as exhibit ‘A’. In the situation at hand, only the statement of claim and affidavit evidence was relied upon by the court. Respondent pleaded the survey plan in his amended statement of claim which same was referred to in paragraph 3 of the affidavit in support of the motion for judgment in default of defence. I find no merit in the argument of appellant’s counsel in support of issue No.
2. Both issue NO.2 and ground 3 fails. Issue NO.2 is accordingly resolved against the appellant.
As regards issue NO.2 formulated by respondent’s counsel, he rightly observed that no argument has been canvassed in respect of grounds 2 of the notice of appeal. The effect is that it is deemed abandoned. Consequently, both issue 2 formulated by respondent and ground 2 from which issue is distilled are struck out. See Ngilari v. Mothercat Limited (1999) 12 SC (Pt. 2) 1 at 21; (1999) 13 NWLR (Pt. 636) 626.
On a final note, I wish to comment on the submission of respondent’s counsel in his brief that appellant failed to take advantage of the provision of Order 24 rule 15 of the High Court, Lagos State (Civil Procedure) Rules, 1972, by applying to the trial Court to have the judgment set aside. Incidentally, the learned trial Judge in the ruling of 29/11/93 remarked that appellant is not shut out from defending on merit the action as he could have the case set aside on application when he returns from his trip from New York City. Appellant declined the offer and decided to appeal against the decision. In Noga Hotels International S. A. V. Nicon Hilton Hotels Limited & Ors. (2007) 7 NWLR (Pt. 1032) 86 at 111-112 paras. H-A the Court of Appeal held that where a default judgment has been given against a defendant the defendant has the option of either moving the trial court under the rules of the Court to set aside the default judgment or lodging an appeal against it under section 220 or 221 of the 1979 Constitution. By this decision, appellant is at liberty to choose any of the options stated supra.
For the reasons stated hereinabove, I hold that this appeal lacks merit. Consequently, appeal is hereby dismissed. I affirm the decision of the lower court. I award N10, 000.00 as cost in favour of the respondent.
SALAMI, J.C.A.: I read in draft the judgment just delivered by my brother, Mshelia, JCA with which I am completely in agreement.
The respondent who was incidentally the plaintiff instituted an action against the appellant, whose counsel entered appearance on 29th day of July, 1992. Notwithstanding the provisions of Order 18 rule 6 of the High Court of Lagos State (Civil Procedure) Rules, 1972 requiring a defendant within 14 days of time limited for entering appearance or from the service of statement of claim to file statement of defence appellant failed to do so. Respondent subsequently amended his statement of claim and writ of summons which were duly served on the appellant on 28th May, 1993. Again, appellant failed or neglected to file his statement of defence.
On 30th September, 1993, respondent filed a motion praying for judgment in default of defence. The motion seeking judgment in default of defence was duly served on the appellant’s learned counsel on 25th November, 1993 with 29th November, 1993 as the return date.
Learned counsel for appellant failed to take any step. He filed neither a defence which was, in any case, out of time nor application for extension of time to put in the defence. He also did not file a counter-affidavit which he had about five days to do. On the day fixed for hearing, he applied for an adjournment to enable him to be briefed by his client who was abroad which application was resisted by the respondent herein.
The learned trial Judge refused the application for adjournment and proceeded to entertain the application for judgment in lieu of defence. The court also granted the application.
Learned counsel for appellant appealed against the orders of the court below without seeking an order setting them aside. An application for an adjournment and granting of same is an exercise of discretion for the court to exercise judicially and judiciously on production of sufficient materials. There is no hard and fast rule ever laid down for the exercise of discretion otherwise it ceases to be discretion. No previous decision of one court can bind another in the exercise of its discretion, for if it does, that puts an end to discretion. However, a decision can be a beacon in the exercise of the discretionary power of the court: Abiodun Odusote v. Olaitan Odusote (1971) 1 All NLR 219, (1971) NMLR 228, 232 where Supreme Court said following Evans v. Bartlam (1937) AC 473 –
“It is a well established principle of law that all judicial discretion must be exercised according to common sense and according to justice, and, if there is any miscarriage of justice in the exercise of such discretion, it is within the competence of a Court of Appeal to have it reviewed.”
The appellant had fifteen months from entering appearance and four months from service of the amended writ of summons on him to the date fixed for hearing the motion for judgment and neglected or failed or refused to file statement of defence. Learned counsel for appellant had been representing the appellant since the inception of the case. He is, therefore, seised of all the circumstances surrounding the case. He must be aware that statement of defence was not filed as and when due. He was equally in possession of the reason for the delay. Learned counsel therefore, had all the necessary material for filing an application for extension of time to file statement of defence as well as filing a counter-affidavit to application for judgment for failure to put in defence. He for inexplicable reason refused to take either steps when he had more than ample time to do so. His asking for an adjournment clearly is not intended for filing a statement of defence nor a counter-affidavit but a time to further frustrate the respondent from the seat of justice, vide Nishizawa v. Jethwani (1984) 12 SC 234. The learned trial Judge rightly, in my view, refused the application for an adjournment.
There is no merit in the submission of the appellant that survey plan was not exhibited to the application for judgment in lieu of defence. The respondent pleaded survey plan in his statement of claim. The defendant failed or neglected to file statement of defence and has by his conduct or failure admitted the averments in the statement of claim which are left unchallenged and uncontradicted or uncontroverted: Haway v. Mediowa (Nig.) Ltd. (2000) 13 NWLR (Pt. 683) 77, United Nigeria Insurance Co. v. Universal Commercial & Industrial Co. (1999) 3 NWLR (Pt. 593) 17, 25; Akibu v. Oduntan (1992) 2 NWLR (Pt. 220) 2105 226. In such circumstances, the law does not require proof of impliedly admitted facts. And where proof is even required only a minimal evidence would be necessary to ground the claim: Balogun v. UBA (1992) 6 NWLR (Pt. 247) 336 and Egbunike v. ACB (1995) 5 SCNJ 58, 78; (1995) 2 NWLR (Pt. 375) 34. The court, in such circumstance, has no choice or option but under an obligation to accept same as correct position of what it presents: American Cynamid Co. v. Vitality Pharmaceutical (1991) 2 NWLR (Pt. 171) 15, (1991) 2 SCNJ 42, 50.
For this reason and the fuller reason contained in the lead judgment of my learned brother, Mshelia, JCA, I also dismiss the appeal and affirm the decision of the learned trial Judge, Akande, J. I equally abide by all the consequential orders, including the order as to costs, contained in the lead judgment of my learned brother, Mshelia, J.C.A.
OGUNBIYI, J.C.A.: In agreeing with the judgment of my brother Adzira Gana Mshelia (JCA) that this appeal lacks merit, I would wish to contribute the following few words just for purpose of emphasis.
The concept of the principle of audi alteram partem has been defined by the Black’s Law Dictionary, Fifth Edition as follows:”
Hear the other side, hear both sides. No man should be condemned unheard.”
In following the said definition therefore the decision of their Lordships of the Apex Court in Ekufor v. Chief Bomor (1997) 9 NWLR (Pt. 519) at page 10 serves a clear application of the principle which is manifestly engraved within and made a part and parcel of our legal system. At page 14 of the said authority for instance their Lordships held and firmly restated among others the fundamental principle of administration of natural justice that a party and his witnesses should be heard before his case could be determined in compliance with the principle of audi alteram partem on fair hearing as enshrined in our constitutional provisions. The concept of fair hearing is in itself an embodiment of justice and fair play the absence which would throw any society to confusion, injustice and anarchy. The effect of such proceeding as rightly submitted by the learned appellant’s counsel, is to render the whole proceedings a nullity; this has been so declared again by their Lordships of the apex court in the case of Salu v. Madam Egeibon (1994) 6 NWLR (Pt. 348) 23 at 44.
The whole idea of the principle of fair hearing presupposes the fundamental light given a party to present his case in a manner so desired without any hindrance inhibition whatsoever. This latitude must however be exercised within the framework of the law but not at large. The relevant determinant issue is whether the appellant can claim the benefit of the said principle and entitled thereto as propounded per its 1st issue raised. The response can only be determined having regard to the factual situation of the case as presented and forming the judgment appealed against. For instance, the nature of the subject matter of this suit was not alien to the appellant with its counsel having entered appearance to the original writ of summons on the 29th July, 1992.
The provision of Order 18 rule 6 of the Lagos State High Court (Civil Procedure) Rules, 1972 reproduced states:-
“6. Where a defendant has entered an appearance he shall file his defence within fourteen days from the time limited for appearance or from the service of the statement of claim, whichever shall be the later, unless such time is extended by consent in writing, or by the court or a Judge in Chambers, or, in action in which the writ of summons has been specially indorsed with or accompanied by a statement of claim under Order 3, rule 4, the plaintiff in the meantime serves a summons for judgment under Order 10.”
Vide the said rule reproduced; the appellant had 14days within which to file its defence. The judgment in default and which is the subject matter of appeal was delivered on the 29th November, 1993. The appellant prior to that stage did not see it relevant and necessary to have filed its defence.
Order 24, rule 11 of the same High Court Rules provides thus:”
“11. In all actions other than those in the preceding Rules of this Order mentioned, if the defendant makes default in filing a defence, the plaintiff may set down the action on motion or judgment, and such judgment shall be given as upon the statement of claim the court or a Judge in Chambers shall consider the plaintiff to be entitled to.”
The concept of justice in adjudication and determination of cases ought to take into account the interest of all parties and not that of one over the other, which of course should also include the court.
The yardstick for consideration in the prevailing circumstance is that of an ordinary reasonable man in the street. The Justice sought for by the appellant in this case takes only the interest of its client into account, despite the lapses and the failures to play its own side of the bargain. The appellant wanted the justice that could play into its hands. This is very much alien to and not acceptable by our legal system and Constitution. The appellant had the opportunity but refused to take advantage of it, had itself to blame and cannot now be heard to complain. The counsel’s submission which was centered on judicial and judicious consideration is of no relevance and moment.
Even handed justice as earlier stated is a three way traffic, it is not to be exercised in accordance to the wishes of either or both parties to the exclusion of the court who is the umpire, dividing the truth between parties within the frame work of the laws of our land.
On the desirability of a survey plan in the absence of any defence, issues have not been joined between parties. The effect presupposes an admission that the identity of the land in question is not in issue. The appellant cannot now make a heavy weather and a case out of what it did not seek to make at the lower court. This is more so especially where the import of Order 24 rule 11 of the Rules of High Court reproduced supra, is so explicit that where defendant defaults in filing its defence, “the plaintiff may set down the action on motion for judgment and such judgment shall be given as upon the statement of claim …” The respondent in the matter at hand did not go outside that allowed him by the rules. It is now too late for the appellant to cry over spilt milk done by himself. He should rather bear the consequences gallantly. The lead judgment has dealt with the issues comprehensively and I therefore endorse that the appeal has no merit and same be dismissed. I also abide by the order made as to costs.
Appeal dismissed.
Appearances
Chief R. A. O. OriadeFor Appellant
AND
Gabriel OpayinkaFor Respondent
