INNOCENT OSUAGWU v. I. G. IKIRIKO & ANOR(2002)

INNOCENT OSUAGWU v. I. G. IKIRIKO & ANOR

(2002)LCN/1092(CA)

In The Court of Appeal of Nigeria

On Thursday, the 21st day of February, 2002

CA/PH/114/92

 

JUSTICES

JAMES OGENYI-OGEBE   Justice of The Court of Appeal of Nigeria

MICHAEL EYARUOMA AKPIROROH   Justice of The Court of Appeal of Nigeria

ABOYI JOHN IKONGBEH   Justice of The Court of Appeal of Nigeria

Between

 

INNOCENT OSUAGWU Appellant(s)

AND

  1. I. G. IKIRIKO
    2. DAMINABO WOKOMA Respondent(s)

 

JAMES OGENYI OGEBE, J.C.A. (Delivering the Leading Judgment): The appellant sued the respondents in the High Court of Justice, Port Harcourt claiming the sum of N500, 000.00 being special damages and general damages for wrongful ejection from possession of his flat and premises by the respondents and or their agents.
Both parties exchanged pleadings.
The respondents were notified of the date set down for hearing but they failed to show up.
The learned trial Judge, Ungbuku, .J., (as he then was) heard evidence of the appellant on the 10th July, 1991 in the absence of the respondents and gave judgment on the 10th October, 1991 in favour of the appellant for the sum of N70, 000.00 general damages.
On the 24th of October, 1991 the defendants applied for an order to set aside the judgment delivered on 10th October, 1991 without any relief for extension of time within which to do so. The motion was vigorously opposed by the appellant but the judge, in his ruling dated the 16th January, 1992 set aside his earlier judgment.
The appellant was dissatisfied with this ruling and has appealed to this court.
The learned counsel for the appellant filed a brief of argument and identified three issues for determination as follows:
1. Whether the lower court had jurisdiction to entertain an application to set aside its judgment after six days without an application for extension of time or a relief for same in such an application.
2. Whether in the absence of any sufficient reasonable cause for being absent at the trial the learned trial Judge was right to have set aside its judgment of 10/10/91.
3. Whether the learned trial Judge exercised its discretion in setting aside the Judgment of 10/10/91 judicially and judiciously having regards to the findings of fact it made.”

The respondents showed no interest in this appeal and failed to file respondents’ brief. In fact the appellant was granted leave to argue his appeal based on his brief alone.
The learned counsel for the appellant submitted under issue 1 that the trial court had no jurisdiction to set aside its own judgment because the respondents were out of time when they made the application to set aside the judgment and did not seek any relief for extension of time. He relied very heavily on Order 37 Rule 9 of the Rivers State High Rules 1987. He cited in support of his submission the cause of Sanusi v. Ayoola (1992) 9 NWLR (Pt. 265) 278. The learned counsel said that issue 1 was the main issue in this appeal. Indeed he argued issue 2 in the alternative. It is clear that if issue 1 is resolved, it is sufficient to dispose of this appeal especially as it touches on jurisdiction.

The case of Sanusi v. Ayoola (supra) is on all fours with the present case. In that case the respondent in the Supreme Court who was plaintiff in the High Court of Lagos State instituted an action seeking a declaration that they were entitled to possession of a disputed property. The case suffered several adjournments before it was set down for hearing. On the day set down for hearing the defendant who was appellant in the Supreme Court did not show up. The plaintiff proved their case and obtained judgment in their favour. Subsequently, the appellant brought a motion after 29 days of the delivery of the judgment to set aside the judgment of the High Court. The application was brought without prayer for extension of time. The trial court granted the prayers of the appellant. The respondent was dissatisfied and appealed to the Court of Appeal. The Court of Appeal set aside the ruling of the High Court which set aside its judgment. The appellant was dissatisfied with the judgment of the Court of Appeal and went to the Supreme Court, which dismissed his appeal. Karibi-whyte, JSC considered the principles to be considered in setting aside judgment in the absence of a defendant under the relevant rules. He stated as follows:
“I think an application under Order 32 rules 4 (supra) will be competent, and the learned Judge before whom an application to set aside a judgment can rely on the following considerations as constituting sufficient material for the exercise of his discretion.
1. Where applicant has showed good for being absent at the hearing.
2. Application was brought within the prescribed period of six days.
3. In an application for extension of time to bring the application applicant has given good reasons for his inability to bring the application to set aside the judgment within the six days prescribed under the rule.
4. He has shown that there is an arguable defence to the action which is not manifestly unsupportable
5. His conduct throughout the trial is not such as is condemnable, but is deserving of sympathy.
6. Where the judgment is tainted with fraud or is irregularly obtained. See Anlaby v. Praetorius (1888) 20 QBD. 764.
7. Where the judgment was given for an amount in excess of what was due and claimed. See Huges v. Justin (1894) 1 WB. 667
8. The respondent will not suffer any prejudice or embarrassment if the judgment is set aside.
It is difficult on the facts of the instant case as disclosed in the record of proceeding to conceive of how any of the considerations outlined herein can be resolved in favour of the appellant, it is the practice in our court that every application to set a judgment under rule 4 of Order 32 must be accompanied by an affidavit which must disclose and show clearly the reasons for the application. The reasons disclosed in the affidavit must be consent with the conditions for the application prescribed by the annealing rules of court. Appellant did not in his application before the learned judge disclose sufficient material on which the exercise of discretion could be based.”
Applying the principles of the above case to the case it is clear that the respondent’s application to set aside the judgment of the High Court ran foul of Order 32 Rules 9 of the River State High Court Rules 1987. It reads
“Any judgment obtained where one party did not appear at the trial may be set aside by the court upon such terms as may seem just upon an application made within six days after the trial or within such longer period as the court may allow for good cause shown.”
The judgment of the High Court was given on the 10th of October, 1991. The application to set it aside was on the 24th of October 1991 a period of 14 days after the judgment. Under the rules quoted above such an application should be brought within 6 days. The respondents’ application did not contain a prayer for extension of time. It follows therefore that the application was incompetent and the trial court lacked jurisdiction to entertain it.

Consequently, I am of the view that there is substance in this appeal and I resolve the issue in favour of the appellant. I allow this appeal and set aside the ruling of the trial Judge dated 16th day of January, 1992 as a nullity. The respondent’s motion before the lower court to set aside its judgment is struck out for want of jurisdiction. The judgment of the lower court delivered on 10th October, 1991 is restored. The respondents shall pay costs of N5, 000.00 to the appellant.

MICHAEL EYARUOMA AKPIROROH, J.C.A.: I have read in advance the Lead judgment of my learned brother J.O. Ogebe, J.C.A. just delivered and I agree with the reasoning and conclusion reached by him.
There is merit in the appeal and I also allow it and abide by the orders made by him including order as to costs.

ABOYI JOHN IKONGBEH, J.C.A.: I had the advantage of reading the draft of the judgment just read by my learned brother, Ogebe, J.C.A. I agree entirely with the reasoning and conclusion reached by him. I find that the appeal is meritorious.
I also allow it and abide by the orders made by him.

 

Appearances

  1. E.K. UkiriFor Appellant

 

AND

Respondent absentFor Respondent

 

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