FIRST BANK OF NIGERIA PLC v. MR. NURUDEEN AJANI AKANJI (2011)

FIRST BANK OF NIGERIA v. IFIOK EYO I. AKPAN & ANOR

(2011)LCN/4586(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 31st day of May, 2011

CA/C/180/2006

RATIO

ISSUES FOR DETERMINATION: WHETHER A PARTY CAN FORMULATE AN ISSUE NOT RELATED TO THE GROUND OF APPEAL

…a party is not allowed to formulate any issue not related to the ground of appeal. See Amadi v. N. N. P. C. (2000) 10 NWLR (Pt.674) 76; Arch Bishop Jatau v. Alhaji Ahmed (2003) SCNJ 18 382. PER ISAIAH OLUFEMI AKEJU, J.C.A.

ISSUES FOR DETERMINATION: ESSENCE OF FORMULATING ISSUES FOR DETERMINATION

The essence of formulating issues is to succinctly raise points that are critical and which affect the fate of the appeal so that their favourable resolution may lead to the success of the appeal. See Okoye v. Nigerian Construction and Furniture Company Ltd. (1991) 6 NWLR (Pt. 199) 501. PER ISAIAH OLUFEMI AKEJU, J.C.A.

ISSUES FOR DETERMINATION: WHETHER THE COURT OF APPEAL CAN REFRAME ISSUES FOR DETERMINATION THAT ARE INELEGANTLY FORMULATED

The complaint here is not that the three issues were proliferated since they cover grounds of appeal that are more than the three issues. They are only inelegant. I believe the situation can be taken care of under the power of this court to reframe such issues so as to bring out the real issues in controversy so long as the issues remain within the decision of the lower court and within the grounds of appeal, See Ishola v. Folorunso (2010) 13 NWLR (Pt. 1210) 169; Agbareh v. Mimrah (2008) All FWLR (Pt. 409) 559, (2008) 2 NWLR (Pt.1071) 378; Lebile v. The Registered Trustees of Cherubim and Cherubim Church of Zion of Nigeria Ugbonla 2003 1 SCNJ 463. PER ISAIAH OLUFEMI AKEJU, J.C.A.

POWER OF COURT: WHETHER A COURT OF RECORD HAS THE POWER TO SET ASIDE ITS OWN ORDER MADE IN THE ABSENCE OF A PARTY AFFECTED BY THE ORDER

It is no longer in doubt that a court of record has the power to set aside its own order made in the absence of a party affected by the order. See Obimonure v. Erinoso (1966) 1 All NLR 250; Nwosu v. Udeaja (1990) 1 SCNJ 167. The court will set such an order aside on the application of a party affected by it. PER ISAIAH OLUFEMI AKEJU, J.C.A.

APPLICATION TO SET ASIDE A DEFAULT JUDGMENT: POSITION OF THE LAW WHERE AN APPLICATION TO SET ASIDE A DEFAULT JUDGMENT IS NOT FILED WITHIN SIX DAYS

Order 37 Rule 9 requires an application to be filed within 6 days or within a longer time allowed by Court, It is the law that where an application to set aside a default judgment is not brought within six days there must be a prayer for an extension of time which must be considered on its merit and granted before the request for setting aside can be granted, See Sanusi v. Ayoola (1992) 11-12 SCNJ 142. PER ISAIAH OLUFEMI AKEJU, J.C.A.

COMPETENCY OF COURT: WHEN IS A COURT COMPETENT TO EXERCISE ITS JUDICIAL POWER

The basic law is that a court is only competent where the process before it has been initiated by due process of law. See Madukolu v. Nkemdilim (1962) All NLR 581. So without the prayer for extension of time properly made to court for its consideration the motion for setting aside will itself be incompetent for where a Court lacks jurisdiction it lacks the power to exercise any judicial power. See Attorney – General of Lagos State v. Hon. Justice Dosumu (1989) 3 NWLR (Pt. 111)552. PER ISAIAH OLUFEMI AKEJU, J.C.A.

DISCRETION OF COURT: CIRCUMSTANCE IN WHICH THE APPELLATE COURT WILL INTERFERE WITH THE DISCRETION OF THE LOWER COURT

A discretion that is exercised judicially and judiciously does not invite the interference of the appellate court. It is only where it is shown that the discretion has occasioned a miscarriage of justice that the appellate court will interfere. See University of Lagos v. Olaniyan (1985) 1 NWLR (pt. 1) 156; Bankole v. Dada (2003) 11 NWLR (pt. 830) 174. PER ISAIAH OLUFEMI AKEJU, J.C.A.

JUSTICES

JUMAI BAYANG AKAAHS Justice of The Court of Appeal of Nigeria

MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria

ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria

Between

FIRST BANK OF NIGERIA – Appellant(s)

AND

1. IFIOK EYO I. AKPAN

2. EMMANUEL EYO I. AKPAN – Respondent(s)

ISAIAH OLUFEMI AKEJU, J.C.A. (Delivering the Leading Judgment): The Respondents were the plaintiffs in Suit No. HU/228/2000 at the Uyo Judicial Division of the High Court of Akwa Ibom State. They filed a motion exparte on 29/6/2000 for leave to issue their writ of summons for the following reliefs against the Appellant as defendant:

“1. A declaration that the plaintiffs are not indebted to the defendant as far as the mortgage transaction involving plaintiffs’ late father’s landed property situate at No. LT Okon Essien Lane, Uyo is concerned.

2. A declaration that the defendant having commenced suit No. C/100/84 against the plaintiffs’ late father, Eyo I. I. Akpan at Calabar High Court concerning the mortgage sum in which plaintiffs’ landed property situate at No. 17 Okon Essien Lane, Uyo was used as security for a loan and the plaintiffs’ late father having admitted the sum of N51, 580.86 in the suit as debt due and owed to the defendant and of which the plaintiffs paid the said judgment debt to the defendant who thereafter voluntarily withdrew the suit against plaintiffs after collecting the said judgment debt of N51, 580.86, cannot again lay claim to any other sum of money or the property used as security in the mortgage transaction nor can the defendant maintain any other suit against the plaintiff.

3. AN ORDER for the defendant to release to the plaintiffs the title documents of the property known and situate at No. 17 Okon Essien Lane, Uyo which was used as security for the mortgage transaction registered as No. 22 at page 22 in Volume 157 in the then Land Registry, Calabar.

4. N10, 000, 000.00 damages for the trespass and continued detention of the title documents of the property known and situate at No.17 Okon Essien Lane, Uyo, Akwa Ibom State.

5. An injunction restraining the defendant, its agent, privies and/or servants from entering, trespassing, selling, assigning or dealing in any other way inconsistent with the plaintiffs’ right of ownership of the property known and situate at No 17, Okon Essien Lane, Uyo, Akwa Ibom State.

Leave was granted and the writ was issued on 10th July, 2000 for service on the defendant at Calabar branch of the bank and while granting the leave, the lower court also granted the order of interim injunction sought by the plaintiffs and restrained the defendant from trespassing, selling, assigning, or dealing in any other manner inconsistent with their right of ownership of the property known as 17 Okon Essien Lane, Uyo, Akwa Ibom State “till the next adjourned date except it is renewed by the Court on sufficient reasons being shown .”

The plaintiffs did not take any further step in respect of the suit and when the case was called for hearing on 6/3/2002 and the plaintiffs were absent the Court struck out the Suit. The Plaintiffs filed a motion on notice on 16/9/2002 to set aside the order of 6/3/2002 and the motion was granted by the lower court on 15/7/2004.

The defendant (now called the Appellant) was aggrieved by the order of the lower court and appealed to this court by the Notice and Grounds of Appeal filed on 9/3/2005 after obtaining the leave of the lower court. The Notice and Grounds of Appeal contained 9 grounds from which three issues were formulated in the Appellant’s Brief of Argument settled by Apostle Sir, Abraham Okon and deemed to be properly filed on 14/12/2000. Chief G. A, Udousoro learned counsel for the Respondents settled the Respondents’ Brief of Argument filed on 13/7/2009 which was also deemed as properly filed.

Without in anyway making the same a formal or formalized objection in the appeal, the learned counsel for Respondent observed at page 2 of his Brief of Argument that the manner in which the issues in the Appellant’s Brief were formulated has rendered the issues quite inelegant as they contain unnecessary particulars that make them very unwieldy.

Upon a close study of the Appellant’s Brief it is clear that the observation of the Respondents learned counsel is well founded. First, the Appellant’s counsel formulated three issues from his nine grounds of appeal without relating each of the issues to the particular grounds from which they emanated or are distilled, a situation which the appellate courts have continuously discouraged because a party is not allowed to formulate any issue not related to the ground of appeal. See Amadi v. N. N. P. C. (2000) 10 NWLR (Pt.674) 76; Arch Bishop Jatau v. Alhaji Ahmed (2003) SCNJ 18 382. The issues 1 and 2 in the Appellant’s Brief are framed with answers almost as lengthy as the arguments before the real argument, The essence of formulating issues is to succinctly raise points that are critical and which affect the fate of the appeal so that their favourable resolution may lead to the success of the appeal. See Okoye v. Nigerian Construction and Furniture Company Ltd. (1991) 6 NWLR (Pt. 199) 501.

1. Could the proceedings and the accompanying Ruling of 15/7/2004 be said to be competent when the motion on Notice filed by the Plaintiffs on 16/9/2002 was never argued or ruled upon in line with the conditions precedent to relistment of cases struck out?.

2. Was it equitable for the lower court to relist Suit No.HU/228/2000 and to rescind its earlier order of 6/3/2000 when the Plaintiffs/Applicants motion on Notice was never argued and ruled upon in favour of Applicants?.

The third issue raised no argument in respect of the appeal, it is formulated thus:

“ISSUE NO. 3

In the circumstances where the motion to relist Suit No. HU/228/2000 carne up for argument on 15/7/2004 but to which motion to relist the plaintiffs/ Applicants had not exhibited the Court Order that struck out suit No.HU/228/2000 on 6/3/2000 can it be said that the Applicant’s said motion to relist was competent?

Answer:

The motion was to that extent defective very defective to make it liable to be struck out.”

I will revisit this issue No. 3 later in this judgment.

The contention of the learned counsel for the appellant on the first issue is that the motion filed by the Respondents to relist was incompetent in that it sought to relist Suit No. HU/208/2000 and not HU/228/2000 that was struck out. He contended that this raised the jurisdiction of the lower court in the matter, citing Madukolu v. Nkemdilim (1962) 2 All NLR 590; Attorney – General of Lagos State v. Dosunmu Time Weekly Law Report 1. He referred also to practice and Procedure of the Supreme Court, Court of Appeal and High Courts of Nigeria, by T. Akinola Aguda (Pages 462 463) on matters to be considered in relisting a case that was struck out and cited also the cases of Idam Ugwu v. Nwaji Aba & Ors (1961) All NLR 438, Grimshaw v. Dunbar (1953) 1 All ER. 150; Eastern Nigeria Development Corporation v. Uwaechia (1966 – 67) ENLR 6.

The learned counsel submitted that two of the factors for relisting a case are quite germane in this case as there had been intervention of the right of a third party, one Ime Wilson to whom the subject – matter of the suit had been sold, and the conduct of the Respondents who merely filed a motion for interlocutory injunction but stayed away from court without filing a Statement of claim. The learned counsel argued that after the suit was struck out, the Respondents did not file any process until 16/9/2002 a period of 6 months and 11 days when they filed their motion that was served on the Appellant on 9/1/2004, and in that interval the Appellant had sold the subject matter of the Suit.

On the second issue the Appellant’s counsel argued that the learned trial judge ought to have first considered the competence of the motion to relist because there was a feature therein which prevented the lower court from exercising its jurisdiction in that the Respondents did not ask that Suit No, HU/228/2000 be relisted, citing Madukolu v. Nkemdilim (1962) 2 All NLR 590; Attorney General of Lagos State v. Dosumu (supra).

The learned counsel said the subject matter of the Suit had been assigned to a 3rd party after the striking out of the suit since the application to relist was not filed until over 6 months after the suit was struck out and the Respondents failed to file any statement of claim, He cited the case of Ekpeyong v. Inyang Effiong Nyong (1975) 2 SC 74 and submitted that the lower court acted like father Christmas by relisting suit No. HC/228/2000 which was not asked for.

As I stated earlier on, the third issue merely has an answer that the motion was defective enough to make it susceptible to being struck out.

The learned counsel for the Respondent submitted that the lower court had jurisdiction only when parties were properly before the Court. He cited Order 13 Rule (1) and Order 13 Rule 5 of the High Court (Civil Procedure) Rules of Akwa Ibom State and submitted that the Appellant who failed to file any appearance was not entitled to apply for striking out of the Suit on 6/3/2002 since the counsel was not properly before the Court and the striking out was in error. He argued that the Respondent’s counsel was not bound to move the motion filed to relist the suit since his preliminary objection to the striking out of the suit when the Appellant was not properly before the court had taken care of the whole objective of moving the motion.

The learned counsel said the allegation that Appellant’s counsel was not heard on the issue of not entering an appearance before the order was made is not borne out by the record of appeal and therefore not correct, He contended that as at the date the suit was relisted, the Appellant had not entered appearance and so could not be heard by Court to raise any objection or make any observation. He submitted that the cases cited by the Appellant’s counsel on relisting of Suit are not helpful as the court did not consider the motion for relisting since the preliminary objection to the striking out of the Suit was to terminate the hearing of the motion, for which he cited Ogunmota v. Kida (2002) FWLR (Pt. 86) 559.

The learned counsel argued that based on the principle in the above case, his observation on the striking out of the suit when the motion to relist was pending was a preliminary objection that rendered it unnecessary to proceed with the motion to relist.

On the failure of Respondents to exhibit the order striking out the suit, the learned counsel said the lower court was entitled to take judicial notice of its proceedings in line with Section 74 (1) (m) of the Evidence Act and can also refer to documents in its file, citing W. A. P. I. N. v. Nigerian Tobacco (1987) 2 NWLR (Pt. 56) 229. He said it was not necessary for the Respondents to exhibit the order before the same court that handled the motion to relist as the order was already before the same court relying on Okoi v. Ibiang 2002 FWLR (Pt. 117) 1053.

The learned counsel submitted that the lower court had inherent jurisdiction to rescind the order by which the suit was struck out when he realized that it was an order made in error since the Appellant did not enter appearance as at 6/3/2002 when the Suit was struck out.

Under the relevant provisions of High Court (Civil Procedure) Rules of Akwa Ibom State, there are three situations that may call for “judgment” of the Court without trial of an action, these are; (1) Where the defendant fails to file a memorandum of Appearance under Order 13, the plaintiff may have “judgment” entered in his favour under Order 14 Rules 1 – 5, “judgment” may be entered under Order 27 Rules 2-9 in favour of a Plaintiff against a defendant or defendants for failure to file defence, Also under Order 37 Rule 8 of the Rules a defendant may have “judgment” entered in his favour dismissing the plaintiffs’ claim when the plaintiff does not appear on the day of hearing of the case. All these “judgments” may be set aside by the lower court pursuant to Order 14 Rule 6; Order 27 Rule 10, and Order 37 Rule 9 respectively of the Rules. The facts of the instant case are that the plaintiffs were not in Court on 6/3/2002 when their case was called for hearing and their case was struck out by the lower court at the instance of the defendant and counsel who were in Court. The facts of the case are within the third instance that I have analysed above i. e. under Order 37 Rule 8 of the Rules which provides that;

“8. If when the trial is called, the defendant appears but the plaintiff does not appear, the defendant, if he has no counter claim, shall be entitled to judgment dismissing the action; but if he has a counterclaim, then he may prove such counterclaim, so far as the burden of proof lies upon him.”

All the “judgments” stated above are judgments upon failure to take one step or the other and are therefore default judgments that the court itself may set aside. In Mohammed v. Husseini (1998) 11- 12 SC 135, it was held that unless and until the court pronounces a judgment on merit or by consent, it retains the power to set aside its own default judgment, In the same judgment the Supreme Court, referring to Williams & Ors v. Hope Rising Voluntary Funds Society (1982) 1 – 2, SC 145 restated the factors that guide the Court in exercise of its discretion to set aside a default judgment. These factors are:

“1. The reasons for the failure to appear at the hearing or trial of the case.

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 rehearing of the suit being made so as to render such a course inequitable.

4. Whether the application is manifestly unsupportable.

5. Whether the applicants’ conduct has been such as to make his application worthy of a sympathetic consideration”

See also Skill Development Co. Nig. Ltd. v. Udi (1996) 6 NWLR (pt. 445) 483. The power of the lower court to set aside the Order or judgment under Order 37 Rule 8 above is under Order 37 Rule 9 of the Rules which state:

“9. Any judgment obtained where one party does not appear 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 suit in the instant case was struck out or judgment dismissing it was given on 6/3/2002, but the respondents filed their motion to set aside on 16/9/2002, a period of about six months after the “hearing” was conducted. In realization of the fact of their being out of time, they sought extension of the time within which to seek the order setting aside the Order of 6/3/2002. The motion on Notice filed on 16/9/2002 sought:

1. AN ORDER for extension of time to set aside the order striking out the Suit No.HU/208/2000 on 6th day of March, 20002.

2. AN ORDER setting aside the order striking out suit No. HU/2008/2002 on the 6th days March, 2002, in the absence of the Plaintiffs.

3. AN ORDER relisting Suit No.HU/208/2000 struck out on 6th day of March, 2002, in the absence of the Plaintiffs.

4. AN ORDER staying the sale of the plaintiffs properly known and situate at No. 17 (Now 20) Okon Essien Lane, Uyo as advertised at page 16 in the pioneer News Paper of Monday the 9th day of September, 2002 till this motion is heard and determined by this Honourable Court. “.

See pages 100 – 101 of the record of appeal.

The Respondents filed affidavit of 20 paragraphs in support of the motion on pages 102 – 106 while the Appellant filed a Counter affidavit of 27 paragraphs – pages 111 – 116 of record. Let me make reference to some paragraphs of the affidavit and counter affidavit of the parties at the lower court. The following paragraphs of the Affidavit in support are quite germane:

“3. The subject matter in this Suit involves land and the building situate and known as No. 17 (now 20) Okon Essien lane, Uyo Akwa Ibom State.

4. The Plaintiffs late father, Eyo I. I. Akpan took a loan from Frist Bank of Nigeria Plc, Calabar.

5. The Bank claimed that the late Plaintiffs father was indebted to it and sued him at Calabar High Court in 1984 in Suit No.C/100/84.

8. The Court adjourned the case for First Bank of Nigeria Plc to prove the remaining part of the alleged indebtedness and from 1990 to the year 1999, the bank was unable to prove any outstanding indebtness against Plaintiffs’ father and the case was struck out.

9. The case was struck out leaving Exhibit A of this affidavit as the only judgment concerning the indebtedness of Plaintiffs’ late father in the loan transaction with the defendants the said defendant illegally tried to trespass on the defendant property the said No. 17 (now 20) Okon Essien Lane, Uyo claiming that Plaintiffs were indebted to it whereby the Plaintiffs sued the defendant in this suit.

10. The defendant has never entered any appearance at all throughout the pendency of the Suit but filed a Counter affidavit in the Suit which couldn’t give it audience in the trial.

11. This Suit carne up on the 6th of March, 2002 and Plaintiffs’ solicitors’ the principal in chambers Chief G. A. Udousoro applied for an adjournment to the Court and a photocopy of the letter hereby attached as Exhibit. B.

12. Unfortunately, the Plaintiffs could not appear in Court and as they are based in Lagos, they Phoned our chambers to inform us to take excuse from the Court for their absence and as we did not appear in person, the information was not made known to the Court.

15. And on the 9th of September, 2002 the 1st Plaintiff phoned Chief G. A. Udousoro from Lagos where he resides and carries on business to say that his brother phoned him to alert him of the advertisement by defendant in the Pioneer Newspaper of rising to Auction their property when they are not indebted to the First Bank of Nig. Plc. The defendant in this case. A copy of the Pioneer Newpaper Publications hereby attached and marked Exhibit C”

The Appellants Counter Affidavit contains the following inter alia;

“16. Paragraphs 10 and 11 are stoutly denied in the present suit No.HU/122/2000 the Defendant has been appearing in court through its representative Mr. Bassey O. Ogundipe and Mr. Edet O. Udo and Okon Umoh and Joseph I. Udo. And it has been appearing by its counsel also. The above notwithstanding the Respondent Bank had filed a motion for extension of time within which to enter appearance and has prayed the court to deem the Memo of Appearance on 4/3/2002 to be properly filed within time, Exhibit “L” and “M” refer. My principal Apostle Abraham Okon, informs me and I verily believe him that the Defendant/Respondent had right of audience as it appeared and its counsel also appeared.

17. That the Suit came up several times and Plaintiffs were absent for the 3rd time on 6/3/2002 and neither was their counsel present on 6/3/2002 to move its motion. The Plaintiff’s counsel did not write to court on 6/3/2002. The court record of 6/3/2002 Exhibit “8” refers. The Plaintiff’s Exhibit “B” is an afterthought. It is a fraud.

21. Paragraphs 16 and 17 are denied and rejected. They are an afterthought. My principal informs me I verily believed him that it is never necessary for the Bank to first have judgment before it seeks to recover its debt. The Bank had the right to exercise its right to sale of mortgaged property. That right is statutory. At the time the Plaintiff;’ father paid the Bank N51, 580.86 in 1991 he was indebted to the Bank to the tune of over N210, 910.18. And the Respondent Bank had been sending the Plaintiffs’ father several demand notices as the indebtedness was steadily rising and galloping. Yet for over 12 long years since 1991 the debtor/customer never paid in a single kobo into his account to reduce the debt. We of konel & Co. pasted the Notice of sale on the wall of 20 Okon Essien Lane, Uyo, Exhibit “M1” refers and advertised the sale in the Pioneer of the 9th of September, 2002 Exhibit “M2” refers, before proceeding to sell the property. The Plaintiffs did nothing until the property was sold on 24th February, 2003 Exhibit “N” refers. The assignment of the property was approved by the government of Akwa Ibom State on 21/11/2003 the Assignment being registered as No. 49 at Page 49 in VOLUME 203 of the Lands Registry, Uyo, Exhibit “N” refers.

23. In further answer I say that it would amount to serious injustice on the Defendant/Respondent and the new owner, Mr. Ime Wilson, if Suit No.HU/228/2000 is relisted or the sale revoked.- The Respondent is grievously hurt and seriously prejudice by this application after having sold the property to a new owner.

The motion on Notice came up on 17/5/2004 and the proceedings went thus:

“G. A. Udousoro Esq. for the Plaintiff/Applicant. Apostle Abraham Okon for Defendant. Udousoro Esq. This matter was struck out on Application of counsel for the Defendant where the Defendants did not even enter appearance; they ought not to have been heard at all. I urge the court to rescind the order which was made in error.

Okon Esq.: We filed motion for leave to enter appearance but was yet to be filed (sic) before we made the application.

Court: The Order striking out this case was made in error and the Court having been misled by the defendants who were not properly before the Court. The Order striking out this suit on 6/3/2002 is hereby rescinded same having been made in error. The cost of N1,000.00 granted is also set aside as there was no defendant to have taken the cost. This suit is accordingly relisted for hearing. Case adjourned to 9/11/2004 for motion. (sic)

See Attorney – General of Lagos State v. Hon. Justice Dosumu (1989) 3 NWLR (Pt. 111) 552.

Order 37 Rule 9 requires that a party seeking to set aside the order of court must apply within 6 days. The application of the Respondent in my view satisfy the requirement of Order 37 Rule 9 having sought an order of extension of time coupled with an affidavit showing and explaining the circumstances of the case. The learned trial judge exercised his discretion to relist the Suit as he had power to do. A discretion that is exercised judicially and judiciously does not invite the interference of the appellate court. It is only where it is shown that the discretion has occasioned a miscarriage of justice that the appellate court will interfere. See University of Lagos v. Olaniyan (1985) 1 NWLR (pt. 1) 156; Bankole v. Dada (2003) 11 NWLR (pt. 830) 174. The fact that the lower court did not specifically refer to the motion does not amount to a miscarriage of justice or wrongful exercise of its discretion in relisting the suit.

Issue No. 3 adds no value to this appeal as it raises no argument and it is accordingly discountenanced.

This appeal fails and it is accordingly dismissed.

I make no order as to cost.

KUMAI BAYANG AKAAHS, J.C.A.: I was privileged to read in draft the judgment of my learned brother Akeju, JCA, wherein he made an indepth analysis on the setting aside of default judgment. It should be noted that after suit No.HU/228/2000 was struck out on 6/3/2002, the plaintiffs now Respondents brought an application dated 13/9/2002, but filed on 16/9/2002 seeking the following reliefs:

1. An order for extension of time to set aside and the order striking out Suit No.HU/208/2000 on 6th day of March, 2002.

2. An order setting aside the order striking out Suit No.HU/208/2000 on the 6th day of March, 2002.

3. An order relisting Suit No.HU/208/2000 struck out on 6th day of March, 2002 in the absence of the plaintiffs.

4. An order staying the sale of the plaintiffs property known and situate at No.17 (now 20), Okon Essien Lane, Uyo, as advertised at page 16 in the Pioneer Newspaper of Monday the 9th day of September, 2002 until this motion is heard and determined by this Honourable Court (See page 111 of the Records).

When the motion came up for hearing, learned counsel for the applicants urged the court to rescind the order made on 6th March, 2002 because at the time counsel for the respondent/appellant applied to strike out the suit he had not entered appearance on behalf of the respondent’ Apostle Abraham Okon of counsel admitted this fact when he stated in reply to the application made by learned counsel for the Plaintiffs/Applicants:

“We filed motion for Leave to enter appearance but was not yet filed before we made the application”.

On hearing this, the court then ruled:

“Court: The order striking out this case was made in error and the court having been misled by the defendants who were not properly before the court, the order striking out this suit on 6/3/2002 is hereby rescinded same having been made in error. The cost of N1,000.00 granted is also set aside and (sic) there was no defendant to have taken the cost. The suit is accordingly relisted for hearing……” pages 232 – 233 of the records) [See pages 232 – 233 of the records).

At the time Okoro J. [as he then was) struck out Suit No.HU/208/2000, counsel to the Defendant (now Appellant had not filed Memorandum of appearance and so had no right of audience in court. Okoro, J (as he then was still dominus litus and he had the power to rescind the order which he was misled into making. Secondly even if counsel had right of audience in making the application to strike out the suit, the application to set aside the order striking out the suit was competent because it contained the trinity prayers since the application to set aside the default judgment was made outside the 6 days period allowed by the Rules. See THE REGISTERED TRUSTEES CHRIST APOSTOLIC CHURCH V UFFIEM (1998) 10 NWLR (Pt. 569) 312 IBRAHIM v BALOGUN (1999) 7 NWLR (Pt.610) 254.

Another aspect of this case that merits mention is that the appellant could not resort to the Mortgage agreement after having obtained judgment for the admitted amount with leave to adduce evidence to prove the balance outstanding in suit No.C/100/84 and then turn around to abandon the suit and seek to exercise the right of an unpaid mortgagee. Before such a right can be lawfully exercised, the debt being owed by the Mortgagor must be ascertained in a Court of Law. Where any sale of the mortgaged property takes place in purported exercise of such power or right without the ascertainment of the amount due such exercise of right will be tantamount to self help which is usually frowned upon by the courts and could attract dire consequences. See OJUKWU v. MILITARY GOVERNOR OF LAGOS STATE (1986) 3 NWLR (Pt.26) 39.

It is for this and the more detailed reasons contained in the leading judgment of my learned brother Akeju, JCA that I too dismiss the appeal.

MASSOUD ABDULRAHMAN OREDOLA J.C.A.: I had the privilege of reading while in draft, the judgment just delivered by my learned brother, Isaiah Olufemi Akeju, JCA. The facts are well and admirably set out and the issues canvassed in the appeal were adequately and elucidating resolved, I therefore have no useful addition to make to the said judgment. I agree with his reasoning and conclusion reached therein. The appeal lacks merit and it is therefore dismissed by me. I also endorse the order on costs.

Appearances

Apostle Sir Abraham OkonFor Appellant

AND

Chief G. A Udousoro & Co.For Respondent