KEMEK NIG. LTD. v. APAPA LOCAL GOVT (2020)

KEMEK NIG. LTD. v. APAPA LOCAL GOVT

(2020)LCN/14731(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Friday, November 13, 2020

CA/L/255/2018

RATIO

JURISDICTION: FUNDAMENTAL NATURE OF THE ISSUE OF JURISDICTION

Jurisdiction being of a sacrosanct and fundamental issue in our adjudicatory system must be dealt with first. It is a trite principle of law that where jurisdiction is raised, the Court must resolve it first, one way or the other before proceeding to consider all other issues. See Anyanwu vs. Ogunewe & Ors (2014) LPELR-22184 (SC); Brittania-U (Nig) Ltd vs. Seplat Petroleum Development Co. Ltd & Ors (2016) 4 NWLR (Pt. 1503) 541; Ugo-Ngadi vs. FRN (2018) LPELR-43903 (SC). PER TOBI, J.C.A.
COURT: WHEN DOES A COURT BECOME FUNCTUS OFFICIO

To my understanding, I do not feel a default judgment is one capable of rendering a Court functus officio. To the best of my knowledge, a Court only becomes functus officio with respect to a judgment given on the merit which I am fully convinced that a default judgment do not fall into that category. PER TOBI, J.C.A.

JUDGMENT: THE CONCEPT OF DEFAULT JUDGMENT

I will rather not base this judgment on my understanding of the law but rather on the position of the law looking at decided cases. To this end, I will start with the definition of a default judgment. The Black’s Law Dictionary 8th Ed. on page 449 defines default judgment thus:
“1. A judgment entered against a defendant who has failed to plead or otherwise defend against the plaintiff’s claim.
2. A judgment entered as a penalty against a party who does not comply with an order, esp. an order to comply with a discovery request.”
Default judgment is judgment given upon a preliminary or merely technical ground or point without trial. The major aspect of default judgment is that the judgment was delivered without trial in the case. This makes the difference between default judgment and judgment on merit. See Ibok vs. Honesty II (2007) 6 NWLR (Pt.1029) 55. In Nwadike & Ors vs. Ibekwe & Ors (1987) 12 S.C. 14, it was held as follows:
“A statement of law to the effect that where there is an absence of defence to a plaintiff’s case, the only alternative is to give judgment for that plaintiff cannot be faulted.”
One more case in this regard will not harm anyone. That is the case of Bello vs. INEC & Ors (2010) 8 NWLR (Pt.1451) 342, the apex Court held:
“A default judgment is one given in default of appearance or pleadings against a Defendant or a Plaintiff in a cross-action whose names appear as such Defendant or Plaintiff in the record of the trial Court.”
This is what a default judgment is and what it entails. See Mark & Anor vs. Eke (2004) 1 S.C. (Pt. II) 1; BGP/CNPC International Nig Ltd vs. Okoro & Ors (2018) LPELR-49216 (CA). PER TOBI, J.C.A.
JUDGMENT: WHAT CONSTITUTES A JUDGMENT ON MERIT; DISTINCTION BETWEEN DEFAULT JUDGMENT AND JUDGMENT ON MERIT

Having defined what a default judgment is, can it be said that a default judgment is a judgment on the merit? On what constitute a judgment on the merit, I will refer to the case of Western Steel Works Ltd & Anor vs. Iron and Steel Workers Union & Anor (1986) LPELR-3479 (SC), the Supreme Court held:
“There is another expression which will come in very handy in determining the issue raised in this application, that is “the merits of the case” or “judgment on the merits”. As I observed in Paul Cardoso v. John Bankole Daniel & Ors. (1986) 2 N.W.L.R. 1 at p. 45:,
“The “merits” of a case mean the essential issues in the case; the substantive rights arising in and presented by the action; the strict legal rights of the parties to the action as contra-distinguished from those mere questions of practice and procedure which every Court regulates for itself. The merits of the case can also be distinguished and is distinguishable from all matters which depend upon the discretion or favour of the Court…… A judgment is said to be on the merits when it is based on the legal rights of the parties as distinguished from mere matters of practice, procedure, jurisdiction or form. A judgment on the merits is therefore a judgment that determines on an issue either of law or fact which party is right.”
See also Nwobodo vs. M.O. Nyiam & Associates (2014) LPELR-22668 (CA).
The Supreme Court per Onu, J.S.C. in Mohammed vs. Husseini (1998) 12 S.C. 135 while differentiating a default judgment from a judgment on the merit held thus:

“Distinguishing “default judgment” from “judgment on the merits” the learned Justice at pages 558-559 of the report said: “A judgment on the merits is one based on legal rights as distinguished from mere matters of procedure or jurisdiction. A judgment on the merits is thus a decision that was rendered on the basis of the evidence led by the parties in proof or disproof of the issues in controversy between them. Normally, a judgment based solely on some procedural error is not, as a general rule, considered as a judgment on the merits. A judgment on the merits is therefore one arrived at, after considering the merits of the case – the essential issues, the substantive rights presented by the action, as contradistinguished from mere questions of practice and procedure.” See also Cardoso v. Daniel & ors. (1986) 2 NWLR (Pt.20) 1.”
Similarly, in Ibrahim vs. Gwandu (2005) 5 NWLR (Pt. 1415), this Court held thus:
“A judgment on merits is one rendered after argument and investigation, and when it is determined, when party is in the right, as distinguished from a judgment rendered upon some preliminary or formal or merely technical point, or by default and without trial. A judgment on the merits is one based on legal rights as distinguished from mere matters of procedure or jurisdiction. A judgment on the merit is thus a decision that was rendered on the basis of the evidence led by the parties in proof or disproof of the issues in controversy between them. A judgment based solely on some procedural error is not considered as a judgment on the merits. Thus, a judgment on the merits is one arrived at, after considering the merits of the case, the essential issues, the substantive rights presented by the action, as contra-distinguished from mere questions of practice and procedure. A judgment on the merit takes cognizance of the true bearing of the law on the rights of the parties where pleadings have been filed, issues are settled on those pleadings and the rights of the parties are decided on the resolution of those issues. Where this happens, the ensuring judgment is on the merits.”
Having established by judicial authorities that a default judgment is not a judgment on the merit, I make bold to say that a Court is not functus officio in respect of a default judgment. A Court can only be functus officio in respect of a judgment given on the merit. This view is expressed by the Supreme Court in Bello vs. INEC & Ors (2010) 8 NWLR (Pt. 1196) 342 where it was held:
“A judgment entered on the undefended list is a judgment entered on its merits and is not judgment entered on default. There is indeed inherent power for a Court of record to set aside its judgment entered into in a default of taking any procedural step such as in default of appearance, generally called default judgment. As Lord Atkin put it in Evans v. Bartlam (1937) AC 480: “The principle obviously is that unless the Court has pronounced a judgment upon the merits, or by consent, it is to have the power to revoke the expression of its coercive power where that has only been obtained by a failure to follow any rules of procedure.” PER TOBI, J.C.A.
JUDGMENT: WHETHER CAN SET ASIDE ITS OWN JUDGMENT DELIVERED IN DEFAULT

Default judgment is an exception of the principle of functus officio which means that a Court can set aside its own judgment delivered in default. A Court can set aside its own default judgment. See Odeh & Anor vs. Ahubi & Ors (2015) LPELR-41783(CA).
On the position of the Appellant counsel to the effect that the application of the Respondent to set aside the default judgment is an abuse of Court process, the Court has held that an application of this sort is not an abuse of Court process. In Mohammed vs. Husseini (supra), the apex Court had this to say:
“An application to the Court to set aside its default judgment is prima facie not an abuse of process, even where the applicant has filed a notice of appeal, provided that the appeal has not been entered in the appellate Court. See Ogunremi v. Dada (1962) 2 SCNLR 417; (1962) l All NLR (Pt.4) 663 at 668 and Okafor & Ors v. Attorney-General of Anambra State & Ors (supra), or an order to them effect has been drawn up: See Bockelmann v. Nwaehi (1965) 1 All NLR 112.”
Finally on this issue, I will refer to the Order referenced by counsel to the Appellant in positing that the lower Court was functus officio. This is Order 20 Rule 12 of the High Court of Lagos State (Civil Procedure) Rules 2012 and it read thus:
“Any judgment by default whether under this Order or under any Order of these Rules shall be final and remain valid and may only be set aside upon application to the Judge on grounds of fraud, non-service or lack of jurisdiction upon such terms as the Court may deem fit.” Underlined for emphasis.
From the clear wording of the rule as highlighted above, it leaves no room for double interpretation. What that rule is saying in simple parlance is that; though a judgment obtained by default is final, same can be set aside by an application to the Judge…. It therefore means that the order makes a leeway for a party to apply for the setting aside of a default judgment to the Judge of that same Court. I do not see how that provision renders the Court functus officio. It is a cardinal rule of interpretation that where words are clear in their meaning, a literal interpretation should be given to them. See Gana vs. SDP & Ors (2019) LPELR-47153; Ugwuanyi vs. Nicon Insurance Plc (2013) LPELR-20092 (SC). PER TOBI, J.C.A.

APPEAL: ATTITUDE OF THE APPELLATE COURT TO SETTING ASIDE DECISIONS OF THE LOWER COURT

I must say that this Court has been called upon to set aside the ruling of the lower Court which had the singular privilege of hearing the arguments of parties and their counsel. This is the hallowed duty of the lower Court and as such this Court or the appellate Court for that matter, cannot take over that responsibility except where it is shown that in carrying out that responsibility, the lower Court has failed in that regard and same has occasioned a miscarriage of justice. See Dahiru vs. State (2018) LPELR-44497 (SC); Azubuogu vs. Oranezi & Ors (2017) LPELR-42669 (SC). The law is trite to the effect that the appellate Court will not ordinarily interfere with the exercise of discretion of the lower Court. See Mobil Oil (Nig) Ltd vs. Nabsons Ltd (1995) 7 NWLR (Pt. 407) 254; Isiaka & Ors vs. Ogundimu & Ors (2006) 13 NWLR (Pt. 997) 401. PER TOBI, J.C.A.

Before Our Lordships:

Joseph Shagbaor Ikyegh Justice of the Court of Appeal

Balkisu Bello Aliyu Justice of the Court of Appeal

Ebiowei Tobi Justice of the Court of Appeal

Between

KEMEK NIGERIA LIMITED APPELANT(S)

And

APAPA LOCAL GOVERNMENT RESPONDENT(S)

EBIOWEI TOBI, J.C.A. (Delivering the Leading Judgment): This appeal is predicated upon the ruling of Hon. Justice A.M. Lawal of the Lagos Division of the High Court of Lagos State delivered in Suit No. LD/7321/2014 – Kemek Nigeria Limited vs. Apapa Local Government Area on 22/1/2016. The lower Court had earlier on delivered judgment in default of appearance in favour of the Appellant (then Respondent at the lower Court) against the Respondent (Applicant at the lower Court). The appeal is therefore against the ruling of the lower Court found on pages 110-122 of the record (pages 1-13 of the Judgment) on the Respondent’s motion filed on 28/5/15, found on pages 36-37 of the record, seeking for the following orders:
“1. AN ORDER for extension of time within which the Defendant/Applicant may apply for leave to set aside the judgment of this Honourable Court delivered on the 8th of May 2015.
2. AN ORDER setting aside the whole judgment of this Honourable Court delivered on the 8th of May 2015.”

The motion was supported by a 40 paragraph affidavit found on pages 38-43 of the records. The motion was contested by the Appellant

vide a counter affidavit of 14 paragraphs filed on 25/8/15 found on pages 68-70 of the record. After taking the address and arguments of counsel, the learned trial Judge delivered a considered ruling whereupon he held on page 122 of the record (page 13 of the judgment) thus:
“…. In all, having ruled in favour of the Applicant under the third issue, the judgment given on May 8, 2015 is hereby set aside for the reason as stated above at the resolution of the third issue.”

The Appellant dissatisfied with the ruling of the lower Court initiated this appeal vide a notice of appeal dated and filed 15/12/2017 found on pages 123-128 of the record. The notice of appeal contains three grounds of appeal which, bereft of their particulars in this judgment are as follows:
GROUND ONE
The learned trial Judge erred in law when at page 8 of his Ruling he held that the motion and the prayer of the Respondent (Applicant) did not become incompetent because “leave to set aside” (the judgment) was not asked for.
GROUND TWO
The Court below erred in law when it set aside its judgment given at Case Management Conference on the

ground that some of the reliefs claimed are declaratory in nature.
GROUND THREE
The Court below erred in laws when it failed to hold that it is functus officio, having given judgment under Order 25 Rule 5 of the High Court of Lagos State (Civil Procedure) Rules 2012.

The Appellant’s brief filed on 31/10/2018 was settled by Chief Osuala E. Nwagbara. In the Appellant’s brief, counsel raised the following issues for determination:
1. Whether the application of the Respondent to set aside the judgment of the lower Court in this suit is competent.
2. Whether the fact that some of the reliefs claimed by the Appellant at the lower Court are declaratory reliefs can in law be a ground to set aside the lower Court’s judgment.
3. Whether the lower Court was not functus officio with respect to the matter in this suit.

On issue one, it is the contention of counsel that the Respondent having realized that it has lost the right to ask that the Judgment of the lower Court be set aside, ought to have sought another separate prayer for leave to set aside the judgment before the prayer asking to set aside the judgment.

Counsel argued that this is not a mere irregularity but a fundamental defect to the application of the Respondent and as such, there was no prayer upon which the lower Court would exercise its discretion. Learned counsel relied on INEC vs. Atuma (2013) All FWLR (Pt. 697) 619 @ 640-641. On the strength of the above, counsel posited that the lower Court was therefore wrong to hold that under Order 25 Rule 7 of the High Court of Lagos State (Civil Procedure) Rules 2012, an application for leave to set aside a judgment obtained at the Case Management Conference level was not prescribed; especially in view of the deposition contained in paragraph 12 of the Appellant’s counter affidavit which was not opposed.

On issue two, it is the submission of counsel that the lower Court erred in law when it relied on Order 20 Rule 9(2) of the High Court of Lagos State (Civil Procedure) Rules 2012 to hold that the Appellant failed to take procedural step to set down the matter before it for trial because the reliefs sought by the Appellant are declaratory in nature; which position runs contrary to the principle laid down in G.E. International Operations Ltd vs. Q.Oil and Gas Services

(2014) All FWLR (Pt. 761) 1509. Counsel called in aid Order 25 of the High Court of Lagos State (Civil Procedure) Rules, 2012 in stating that the rule assumes that one of the matters that can be dealt with at the Case Management Conference is handling judgment, whether or not both parties have joined issues. It is the submission of learned counsel that the judgment given by the lower Court was given properly and was appropriate because there were documentary evidence to support the declaratory judgment in respect of the declaratory reliefs.

On issue three, relying on Salami vs. Ajadi (2012) All FWLR (Pt. 638) 861 @ 888, counsel stated the trite position of the law to the effect that a Court lacks jurisdiction to determine an issue when it is functus officio in respect of that issue or where the pleadings relating to the issue is an abuse of Court process. Counsel referred this Court to Order 20 Rule 12 of the High Court of Lagos State (Civil Procedure) Rules, 2012 in positing that the lower Court failed to avert its mind to the provisions of the said rule when it came to the conclusion that it was not functus officio. It is the final

submission of counsel that the Respondent’s application at the lower Court was an abuse of Court process as the option open to the Respondent if it was dissatisfied with the judgment of the lower Court, is to appeal. Learned counsel finally urged this Court to allow the appeal.

The Respondent’s brief dated and filed 30/11/2018 was settled by Emmanuel Umoren Esq. In its brief, counsel raised the following issues for determination:
1. Is the tripartite Rule a requirement of Order 25 Rule 7 of the High Court of Lagos (Civil Procedure) Rules 2012.
2. Whether the lower Court was right in setting aside its declaratory judgment in default of appearance at the Case Management Conference.
3. That given the facts and circumstances of this case, was the Court below functus officio after its judgment of 8/5/2015.

On issue one, it is the contention of learned counsel that under the Rules of the High Court of Lagos State, no leave is required to set aside a default judgment delivered during case management conference. Counsel referred to Order 25 Rule 7. It was contended by counsel that the very fact that an application for leave was

erroneously placed before the Court does not vitiate the application as the Court has the power to grant the said prayers. He relied on Falobi vs. Falobi (1976) 1 NMLR 169. Counsel further relied on the cases of Obomhense vs. Erhahon (1993) 7 NWLR (Pt. 303) 22 @ 43; Queen vs. Onuegbe (1957) SCNLR 130; Agbareh & Anor vs. Mimra & Ors (2008) 2 SCM 55 in submitting that the provisions of the said rule is plain and should be given its natural meaning. It was argued by learned counsel for the Respondent that the tripartite prayer rule that the Appellant is throwing heavy weather about is a statutory provision in this Court for leave to appeal out of time. He placed reliance on Braithwaite & Ors vs. Dalhatu (2016) 11 SCM 24. Finally on this issue, in an attempt to discredit Appellant’s argument, Respondent’s counsel contended that a close look at the notice of appeal containing the grounds (especially ground one) and the particulars thereof, there is no reference to any particular rule of Court where it was stated that leave is required for the application in contention and as such, there is no basis for the ground and the error alleged.

Counsel cited Ezeugo vs. Ohanyere (1978) 6 SC 17.

On issue two, it was contended by learned counsel that from Order 25 Rule 7 of the High Court of Lagos (Civil Procedure) Rules 2012 and the decision of the Supreme Court in Mohammed vs. Husseini (1999) 1 SCW 1 @ 23, it is not in dispute that the lower Court has the power to set aside a judgment obtained under the said rules. It was further contended by counsel that the exercise of that power is discretionary and as such the lower Court was right in setting aside the said judgment being declaratory reliefs in which oral evidence is required. He relied on Mohammed vs. Husseini (supra); Sanusi vs. Ayoola (1992) 9 NWLR (Pt. 765) 275; Ogolo vs. Ogolo (2006) NWLR (Pt. 972) 163 SC 410; Sen. Iyiola Omisore & Anor vs. Ogbeni Rauf Aregbesola (2015) Legal pedia SG GLC2. Counsel submitted with respect to the case of G.E. International Operations Ltd vs. Q-Oil & Gas Services (supra) relied on by the Appellant, that same is a Court of Appeal’s decision, which is inferior to the Supreme Court’s decision in Sen. Iyiola Omisore & Anor vs. Ogbeni Rauf Aregbesola (supra) and which also represents the

current position of the law.

Going further, it was posited by counsel that the case of the Appellant would have been different if upon default of pleadings and appearance, the Appellant caused the matter to be set down for trial and evidence adduced before the judgment was delivered as was laid down in Ogolo vs. Ogolo (supra). Counsel therefore argued that given the failure of the Appellant to comply with procedural rule in obtaining the judgment, same can be set aside. He placed reliance on UBA vs. TAAN (1993) 4 NWLR (Pt. 287) 368; MPPP vs. INEC (2015) 10 SCM 89 @ 110. Lastly on this issue, it is the contention of learned counsel that the case of G.E. International Operations Ltd vs. Q.Oil and Gas Services (supra) cited by the Appellant differs from the instant appeal. Counsel argued that the only requirement for the lower Court to exercise its discretion is that there is an undertaken by the Defendant to definitely defend the suit, which the Respondent has given.

On issue three, counsel cited the case of Emeka vs. The Hon. President of Onitsha Customary Court (1995) 3 NWLR (Pt. 381) 50 @ 58-59 in explaining the meaning of functus officio. He also

relied on UTC Nig. Ltd vs. Pamotei (1989) NSCC (Pt. 1) 558-558 in positing that a judgment in default is not a judgment on the merit which will render a Court functus officio. Counsel stated that in determining whether a Court can be functus officio on issues as it relates to this instant appeal, reference must be made to Order 25 Rule 7 of the High Court of Lagos (Civil Procedure) Rules 2012 and on the basis of the said rule, submitted that the said rule made provision for applications to be made to the same Court for the judgment made under it to be set aside. The Respondent urged Court to dismiss the appeal and uphold the decision of the lower Court.

I have read through the arguments of both counsel and I will not be mistaken to say that the issues formulated by each of them are the same in essence save for the peculiarity in the way and manner they were couched. It is in the light of the forgoing that I will adopt the issues as formulated by the Appellant as in my opinion that is more direct and clear in addressing the grounds of appeal. Another reason in adopting the issues as formulated by the Appellant is that the Appellant is the one aggrieved by

the decision of the lower Court and has thus initiated this appeal, and therefore it is only logical that I consider this appeal on the strength of the issues formulated by him. This is more so that the issues as formulated by the Appellant are clearer and more specific. By so doing, this Court has not broken any law as this Court has the power to adopt any of the issues for determination as formulated by the parties, or where it feels that the issues as formulated by the parties will not meet the justice of the case, it can formulate its own issues. See: Unity Bank Plc vs. Bouari (2008) 7 NWLR (Pt. 1086) 372; Agbareh & Anor vs. Mimra & Ors (2008) LPELR-43211 (SC); Musaconi Limited vs. Mr. H. Aspinall (2013) 6-7 SC (Pt. 1) 1.

For avoidance of doubt, the issues I adopt for determination in this appeal, read thus:
1. Whether the application of the Respondent to set aside the judgment of the lower Court in this suit is competent.
2. Whether the fact that some of the reliefs claimed by the Appellant at the lower Court are declaratory reliefs can in law be a ground to set aside the lower Court’s judgment.
3. Whether the lower

Court was not functus officio with respect to the matter in this suit.

Having reproduced the issues above, I will now proceed to address the issues one after the other. I will deal with issue three first as it is an issue that borders on jurisdiction. Jurisdiction being of a sacrosanct and fundamental issue in our adjudicatory system must be dealt with first. It is a trite principle of law that where jurisdiction is raised, the Court must resolve it first, one way or the other before proceeding to consider all other issues. See Anyanwu vs. Ogunewe & Ors (2014) LPELR-22184 (SC); Brittania-U (Nig) Ltd vs. Seplat Petroleum Development Co. Ltd & Ors (2016) 4 NWLR (Pt. 1503) 541; Ugo-Ngadi vs. FRN (2018) LPELR-43903 (SC).
For completeness, the issue three is hereunder reproduced:
Whether the lower Court was not functus officio with respect to the matter in this suit.

On this issue, it is the contention of counsel to the Appellant that the lower Court having given judgment in favour of the Appellant under Order 20 Rule 12 of the High Court of Lagos State (Civil Procedure) Rules 2012 is functus officio and therefore divested of any

jurisdiction to pronounce on the matter again. On the other hand, counsel for the Respondent argued that the judgment of the lower Court not being a judgment on the merit but rather a default judgment, same can be set aside by the same Court that gave the judgment. Counsel to both parties have argued in line with the position that best suit the interest of their client. It is now left for this Court to decide which of the submission is right as both of cannot be right. It is not out of place to see counsel to opposing parties arguing in opposite directions and supporting their arguments with legal authorities. But these authorities cannot be taken on their face value as some of the arguments could be misleading. It therefore behooves the Court to analyze the facts of each case, the arguments of the counsel and the authorities cited and bring them in conformity with the true position of the law. This is what justice is all about and this is what this Court is called upon to do.

To my understanding, I do not feel a default judgment is one capable of rendering a Court functus officio. To the best of my knowledge, a Court only becomes functus officio with

respect to a judgment given on the merit which I am fully convinced that a default judgment do not fall into that category. I will rather not base this judgment on my understanding of the law but rather on the position of the law looking at decided cases. To this end, I will start with the definition of a default judgment. The Black’s Law Dictionary 8th Ed. on page 449 defines default judgment thus:
“1. A judgment entered against a defendant who has failed to plead or otherwise defend against the plaintiff’s claim.
2. A judgment entered as a penalty against a party who does not comply with an order, esp. an order to comply with a discovery request.”
Default judgment is judgment given upon a preliminary or merely technical ground or point without trial. The major aspect of default judgment is that the judgment was delivered without trial in the case. This makes the difference between default judgment and judgment on merit. See Ibok vs. Honesty II (2007) 6 NWLR (Pt.1029) 55. In Nwadike & Ors vs. Ibekwe & Ors (1987) 12 S.C. 14, it was held as follows:
“A statement of law to the effect that where there is

an absence of defence to a plaintiff’s case, the only alternative is to give judgment for that plaintiff cannot be faulted.”
One more case in this regard will not harm anyone. That is the case of Bello vs. INEC & Ors (2010) 8 NWLR (Pt.1451) 342, the apex Court held:
“A default judgment is one given in default of appearance or pleadings against a Defendant or a Plaintiff in a cross-action whose names appear as such Defendant or Plaintiff in the record of the trial Court.”
This is what a default judgment is and what it entails. See Mark & Anor vs. Eke (2004) 1 S.C. (Pt. II) 1; BGP/CNPC International Nig Ltd vs. Okoro & Ors (2018) LPELR-49216 (CA).
Having defined what a default judgment is, can it be said that a default judgment is a judgment on the merit? On what constitute a judgment on the merit, I will refer to the case of Western Steel Works Ltd & Anor vs. Iron and Steel Workers Union & Anor (1986) LPELR-3479 (SC), the Supreme Court held:
“There is another expression which will come in very handy in determining the issue raised in this application, that is “the merits of the

case” or “judgment on the merits”. As I observed in Paul Cardoso v. John Bankole Daniel & Ors. (1986) 2 N.W.L.R. 1 at p. 45:,
“The “merits” of a case mean the essential issues in the case; the substantive rights arising in and presented by the action; the strict legal rights of the parties to the action as contra-distinguished from those mere questions of practice and procedure which every Court regulates for itself. The merits of the case can also be distinguished and is distinguishable from all matters which depend upon the discretion or favour of the Court…… A judgment is said to be on the merits when it is based on the legal rights of the parties as distinguished from mere matters of practice, procedure, jurisdiction or form. A judgment on the merits is therefore a judgment that determines on an issue either of law or fact which party is right.”
See also Nwobodo vs. M.O. Nyiam & Associates (2014) LPELR-22668 (CA).
The Supreme Court per Onu, J.S.C. in Mohammed vs. Husseini (1998) 12 S.C. 135 while differentiating a default judgment from a judgment on the merit held thus:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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point, or by default and without trial. A judgment on the merits is one based on legal rights as distinguished from mere matters of procedure or jurisdiction. A judgment on the merit is thus a decision that was rendered on the basis of the evidence led by the parties in proof or disproof of the issues in controversy between them. A judgment based solely on some procedural error is not considered as a judgment on the merits. Thus, a judgment on the merits is one arrived at, after considering the merits of the case, the essential issues, the substantive rights presented by the action, as contra-distinguished from mere questions of practice and procedure. A judgment on the merit takes cognizance of the true bearing of the law on the rights of the parties where pleadings have been filed, issues are settled on those pleadings and the rights of the parties are decided on the resolution of those issues. Where this happens, the ensuring judgment is on the merits.”
Having established by judicial authorities that a default judgment is not a judgment on the merit, I make bold to say that a Court is not functus officio in respect of a default judgment. A Court

can only be functus officio in respect of a judgment given on the merit. This view is expressed by the Supreme Court in Bello vs. INEC & Ors (2010) 8 NWLR (Pt. 1196) 342 where it was held:
“A judgment entered on the undefended list is a judgment entered on its merits and is not judgment entered on default. There is indeed inherent power for a Court of record to set aside its judgment entered into in a default of taking any procedural step such as in default of appearance, generally called default judgment. As Lord Atkin put it in Evans v. Bartlam (1937) AC 480: “The principle obviously is that unless the Court has pronounced a judgment upon the merits, or by consent, it is to have the power to revoke the expression of its coercive power where that has only been obtained by a failure to follow any rules of procedure.”
Default judgment is an exception of the principle of functus officio which means that a Court can set aside its own judgment delivered in default. A Court can set aside its own default judgment. See Odeh & Anor vs. Ahubi & Ors (2015) LPELR-41783(CA).
On the position of the Appellant counsel to the effect that the

application of the Respondent to set aside the default judgment is an abuse of Court process, the Court has held that an application of this sort is not an abuse of Court process. In Mohammed vs. Husseini (supra), the apex Court had this to say:
“An application to the Court to set aside its default judgment is prima facie not an abuse of process, even where the applicant has filed a notice of appeal, provided that the appeal has not been entered in the appellate Court. See Ogunremi v. Dada (1962) 2 SCNLR 417; (1962) l All NLR (Pt.4) 663 at 668 and Okafor & Ors v. Attorney-General of Anambra State & Ors (supra), or an order to them effect has been drawn up: See Bockelmann v. Nwaehi (1965) 1 All NLR 112.”
Finally on this issue, I will refer to the Order referenced by counsel to the Appellant in positing that the lower Court was functus officio. This is Order 20 Rule 12 of the High Court of Lagos State (Civil Procedure) Rules 2012 and it read thus:
“Any judgment by default whether under this Order or under any Order of these Rules shall be final and remain valid and may only be set aside upon application to the Judge on

grounds of fraud, non-service or lack of jurisdiction upon such terms as the Court may deem fit.” Underlined for emphasis.
From the clear wording of the rule as highlighted above, it leaves no room for double interpretation. What that rule is saying in simple parlance is that; though a judgment obtained by default is final, same can be set aside by an application to the Judge…. It therefore means that the order makes a leeway for a party to apply for the setting aside of a default judgment to the Judge of that same Court. I do not see how that provision renders the Court functus officio. It is a cardinal rule of interpretation that where words are clear in their meaning, a literal interpretation should be given to them. See Gana vs. SDP & Ors (2019) LPELR-47153; Ugwuanyi vs. Nicon Insurance Plc (2013) LPELR-20092 (SC).

In the light of the foregoing, I cannot see my way clear to hold in favour of the Appellant on this issue. Consequently, this issue is resolved in favour of the Respondent and against the Appellant.

Having resolved issue three in favour of the Respondent, I will now proceed to resolve issues 1 and 2 in numerical order.

For clarity, I will reproduce issue one. The issue one reads:
Whether the application of the Respondent to set aside the judgment of the lower Court in this suit is competent.

Before I do that however, I must say that this Court has been called upon to set aside the ruling of the lower Court which had the singular privilege of hearing the arguments of parties and their counsel. This is the hallowed duty of the lower Court and as such this Court or the appellate Court for that matter, cannot take over that responsibility except where it is shown that in carrying out that responsibility, the lower Court has failed in that regard and same has occasioned a miscarriage of justice. See Dahiru vs. State (2018) LPELR-44497 (SC); Azubuogu vs. Oranezi & Ors (2017) LPELR-42669 (SC). The law is trite to the effect that the appellate Court will not ordinarily interfere with the exercise of discretion of the lower Court. See Mobil Oil (Nig) Ltd vs. Nabsons Ltd (1995) 7 NWLR (Pt. 407) 254; Isiaka & Ors vs. Ogundimu & Ors (2006) 13 NWLR (Pt. 997) 401.

On this issue, the Appellant counsel has argued that the application of the Respondent,

to wit, an order of the lower Court setting aside the default judgment made on 8/5/2015, is incompetent for some reasons which I will be examining later on in this judgment.

It is the contention of Appellant’s counsel that while the Respondent sought the leave of the trial Court to extend time within which to apply to set aside the default judgment, it however failed to apply for leave to set aside the default judgment.

I have read through the argument of learned counsel for the Appellant on this point and it is apposite to state that the grudge of the Appellant is on the failure of the Respondent to insert the word ‘leave’ in its prayer 2 before the lower Court. For clarity, the prayers of the Respondent before the lower Court as contained on page 36 of the record of appeal read:
“1. AN ORDER for extension of time within which the Defendant/Applicant may apply for leave to set aside the judgment of this Honourable Court delivered on the 8th of May, 2015.
2. AN ORDER setting aside the whole judgment of this Honourable Court delivered on the 8th of May, 2015.
3. AND FOR SUCH FURTHER OR OTHER ORDERS as this

Honourable Court may deem fit to make in the circumstance.” Underlined for emphasis

The lower Court in responding to the argument of the Appellant counsel on this issue held on page 117 of the record (page 8 of the judgment) thus:
“That the Applicant employed the word “leave” in the first prayer and the word is omitted in the second prayer did not make the second prayer invalid. It is common to find counsel apply for the “leave” of Court to take certain procedural steps even where the statute did not require them to apply for leave. Often and often, the Courts are inundated with request “for leave to apply for extension of time”, “leave to set aside”, “leave to set down the matter for trial”, etc, whereas the rules of Courts did not require that leave should be obtained before these steps can be taken. The view of this Court is that the Motion and the prayer of the Applicant did not become incompetent because “leave to set aside” was not asked for, what the Applicant need is an “Order setting aside” the judgment and that is what she applied for. In coming

to this decision, this Court considered the provisions of Order 25 Rule 7 of the High Court Civil Procedure Rules, 2012 under which the Applicant brought her application to “set aside” judgment obtained at the Case Management Conference level, the Rule did not prescribe an application for “leave to set aside” as argued by the Respondent. Therefore, the application and the prayer to set aside the judgment are in order.”

A first step in considering this issue is a reproduction of the order under which the Respondent brought this application. This is Order 25 Rule 7 of the High Court of Lagos State (Civil Procedure) Rules 2012 and it states as follows:
“Any judgment given under Rule 5 or Rule 6(2) above may be set aside upon an application made within seven (7) days of the judgment or such other period as the Judge or ADR Judge may allow.
The application shall be accompanied by an undertaking to participate effectively in the Case Management Conference or ADR, as the case may be.”
Order 25 Rule 5 and 6(2) respectively states:
“5. If a party or his Legal Practitioner fails to attend the

Case Management Conference or obey a Scheduling Order or is substantially unprepared to participate in the Conference or fails to participate in good faith the Judge shall:
(a) in the case of the Claimant dismiss the claim;
(b) in the case of a Defendant enter judgment against him where appropriate….
6(2) Where a party fails to comply with the directive ADR Judge or fails to participate in ADR proceedings the Judge shall:-
(a) in the case of the Claimant dismiss the claim;
(b) in the case of a Defendant enter judgment against him where appropriate.”
Juxtaposing the above rule with the facts of the application before the lower Court, it is clear that the Respondent was in default of appearance at the lower Court and in line with Order 25 Rule 5(b), judgment was entered against him. The Respondent in line with Rule 7 of the said Order, ought to bring his application within 7 days of the delivery of the judgment which obviously he failed to do. He has thus filed an application before the lower Court (praying for extension of time, which was not objected to by the Appellant at the lower Court and as such same was

granted) to come within the ambit of the law so as to apply for the setting aside of the default judgment. This is the brief set of fact that has led to this appeal.

While it is necessary for a party who is in default of carrying out an act within the time prescribed by the law to bring an application for extension of time, I do not find anywhere in the Rules or in any decided case where leave is necessary to bring such an application more so, an application to set aside a default judgment. On this point, I refer to the case of Churchgate (Nig) Ltd vs. Uzu (2005) LPELR-11404 (CA). It is in the light of the foregoing that I agree with the learned trial Judge that no leave of Court is required for an application such as this. The Respondent has applied for extension of time to bring the application to set aside the judgment of the lower Court, being that he is out of time, to my mind, that suffices without more. I therefore find that the argument of the Appellant’s counsel is misplaced and have no hesitation in resolving issue one in favour of the Respondent.
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Issue two which is the last issue to consider in determining this appeal reads:
Whether the fact that some of the reliefs claimed by the Appellant at the lower Court are declaratory reliefs can in law be a ground to set aside the lower Court’s judgment.

With respect to this issue, I have critically examined the grounds upon which the Respondent brought the application to set aside the judgment of 8/5/2015 and I find as a fact that the lower Court premised its decision to set aside the default judgment on the fact that some of the reliefs claimed by the Appellant were declaratory reliefs upon which judgment cannot be given except evidence is adduced. At this junction, I will refer to the grounds of the Respondent’s application at the lower Court;
“GROUNDS
1. The judgment of this Honourable Court delivered on the 8th of May, 2015 is a default judgment.
2. The judgment of this Honourable Court delivered on the 8th May, 2015 was delivered at Case Management Conference stage in default of pleadings and appearance.
3. The 1st to 5th reliefs sought by the Claimants are declaratory and can only be granted when evidence has been adduced in respect of same being equitable in nature – OGOLO V. OGOLO

(2006) NWLR (PT 972) 163 S.C.
4. The judgment of this Honourable Court delivered on the 8th of May, 2015 was obtained mala fide.
5. The Defendant has filed its Statement of Defence dated 26th May, 2015
6. The Defendant has an undertaking to participate effectively in the Case Management Conference.”

While I agree with the reasoning of the learned trial Judge that declaratory reliefs cannot be granted without adducing evidence vide the Supreme Court’s cases of Okoye & Ors vs. Nwankwo (2014) 15 NWLR (Pt. 1429) 93; Mohammed vs. Wammako & Ors (2017) 7 NWLR (Pt. 1619) 573, I do not feel that alone should have been the reason for granting the application of the Respondent. I have gone through the law on situations where a party can appeal for the judgment of a Court to be set aside and with due respect to the lower Court, I do not see that as one of the reasons. I will however agree with the position as stated by the lower Court that judgment cannot be given by default over a matter that the order sought is declaratory order. This is because the law is settled that no judgment can be entered for any party seeking for

declaratory order without pleadings and adducing of evidence as declaratory order cannot be made on the admission of the parties. See Ita & Anor vs. Dadzie (2000) 4 NWLR (Pt. 652)165. I must state that I do not seem to agree with the distinction the Appellant was trying to make to the effect that under the new rules that since the processes are frontloaded, that serves as evidence and therefore default judgment can be given on declaratory reliefs under the new rule. I do not agree with that position. This is because even under the new rules pleading is different from evidence. The purpose of frontloading is to avoid surprise so that the other party knows what he is to meet in Court and for speedy trial. See Inuwa vs. Bayero University Kano & Anor (2018) 13 NWLR (Pt. 1637) 545; Erokwu& Anor vs. Erokwu (2016) LPELR-41515 (CA). The point must be made that the frontloaded witness statement or pleading does not become evidence until it is adopted in Court just as a document does not become evidence until it is admitted in evidence as Exhibit. See APC & Anor vs. PDP & Ors (2015) LPELR-41768 (CA). The frontloading of the witness statement does not

take away the established legal principle of what constitute evidence and the subject of admissibility of evidence. The point I am laboring to make is that the principle of law that default judgment cannot be given without trial on declaratory reliefs has not changed even under the new rules of Court.

The lower Court based its decision on the point that since the judgment was based on declaratory reliefs then it has the power to set aside its judgment. The lower Court did not even consider the principles of law as to the conditions a Court will consider in deciding to set aside the default judgment. In my view, the lower Court would have done better.

I must state that an application such as this requires the exercise of the discretion of the trial Court which discretion must be exercised judicially and judiciously. See SPDC & Ors vs. Agbara & Ors (2016) 2 NWLR (Pt. 1496) 353; INEC vs. Atuma & Ors (2013) 11 NWLR (Pt. 1366) 494. An appellate Court will seldom interfere with the discretion of the trial Court unless it is perverse. See Mobil Oil (Nig) Ltd vs. Nabsons Ltd (supra); Isiaka & Ors vs. Ogundimu & Ors (supra). It is on this

note that I must warn myself to thread carefully so as not to interfere with the exercise of discretion of the lower Court.
The Courts in plethora of cases have laid down the guiding principles that will necessitate the exercise of discretion of the Court in an application to set aside a default judgment, as in this case currently on appeal. I will refer to a few of them.
In the Supreme Court’s case of S & D Construction Co. Ltd vs. Ayoku & Anor (2011) 13 NWLR (Pt. 1265) 487, it was stated out clearly:
“The principles to be considered by a Court in setting aside a judgment obtained in the absence of a party were stated by this Court in Williams v. Hope Rising Voluntary Funds Society (supra) at page 42. These are: “1. The reasons for the applicant’s failure to appear at the trial in which judgment was given against him. There must be good reasons enough to excuse his absence. 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 re-hearing of the suit being made, so as to render such a course inequitable. 4. Whether the appellant’s case is manifestly unsupportable. 5. Whether the applicant’s conduct throughout the proceedings i.e. from service of the writ upon him to the date of judgment has been such as to make his application worthy of sympathetic consideration.”
Similarly, in Teno Engineering Ltd vs. Adisa (2005) 10 NWLR (Pt. 933) 346, these principles were earlier reiterated by the Supreme Court thus:
“When does a Court of law set aside a default judgment or a judgment given in default. Where there is an application for a Court to set aside its own judgment given in the absence of one of the parties before it, in order to give him opportunity of being heard, different considerations apply. Among other things, the Court must consider: (1) The reasons for the applicants failure to appear at the hearing or trial of the case in which judgment was given in his absence. (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 latter party

(i.e. 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 and (4) Whether the applicant’s case is manifestly unsupportable. In addition to the foregoing factors, the Court being asked to exercise its discretion to set aside its own judgment must also be satisfied that the applicant’s conduct throughout the proceedings, that is, from the service of the writ upon him to the date of judgment, has been such as to make his application worthy of a sympathetic consideration. See Williams v. Hope Rising Voluntary Funds Society (1982) 1-2 SC 145; Ugwu v. Aba (1961) All NLR 438; Doherty v. Doherty (1964) NMLR 144.”
The learned trial Judge considered the application of the Respondent in the light of one of the guiding principles, that is, the reasons for the Applicants failure to appear at the hearing or trial of the case in which judgment was given in his absence and found that the reason was flimsy and lame. I agree with the lower Court in this regard because by the showing of the Respondent the processes were served on their office but were not

brought to the attention of the Chairman. The Respondent only came to know of it after judgment. The law on service of processes will be satisfied once the party had been properly served. That the appropriate officer in the organization did not get the notice of the process is not material. The material thing is that the party was served. The Respondent is not denying service but that the process was not brought to the knowledge of the officer who should ordinarily handle the matter. The Appellant should not suffer for the internal laxity of the Respondent.
The reason therefore given for why the Respondent did not appear is not tenable. On that principle alone, the Respondent’s application will fail.
The grounds upon which a party can apply that a Court should set aside his own judgment are as stated above. The conditions are not mutually inclusive but rather mutually exclusive. That means the party seeking for the Court’s judgment to be set aside need not prove all the conditions. If he is able to prove one and the Court is satisfied that the justice of the case demands that the other party should be heard, the Court will set aside its

judgment. In other words, there is no express provision that the principles must be applied conjunctively that is, the Respondent has to satisfy the requirement of all the principles, failing which his application will not stand. It is on the strength of this that I make bold to say that where the application of the Respondent pass the test of one or more of the principles, the Court can exercise its discretion in his favour. At this point, I will now consider the affidavit and other processes filed by the Respondent in order to determine if he has satisfied any of the principles outlined in the cases aforementioned. I do this in line with the power conferred on this Court by virtue of the provisions of Section 15 of the Court of Appeal Act. I have gone through the affidavit of the Respondent found on pages 38-43 of the record of appeal with particular reference to paragraphs 10-18 of the counter affidavit and the attached documents and I find that the Respondent is worthy of being granted his application. The Respondent has placed before the Court sufficient materials for it to exercise its discretion. The paragraphs of the counter affidavit showed that from

when the Respondent had knowledge of the judgment it took quick steps to show its desire to contest the case against them. The judgment was obtained on the 8/5/15. From the paragraphs mentioned above which the Appellant did not deny, the Respondent came to know about the judgment on 15/5/15 when the Appellant counsel wrote them. This was exactly eight days after the judgment. Despite the fact that the judgment was not attached to the letter, on the 18th which is the next working day after the Appellant counsel’s letter to the Respondent, the Respondent briefed a counsel who obtained the Certified True Copy of the judgment on the 19/5/15. The Respondent searched the case file of the Court on 20/5/15 and took immediate steps to file the motion on 21/5/15 at 2.00pm. From when the Respondent knew about the judgment, the Respondent took very active steps to ensure that within seven days the motion to set aside the judgment was filed. In exercising the discretion to grant the application to set aside, the Court including the appellate Court must bear in mind the main duty of the Court which is to do justice. In the circumstance, justice must not be seen from

the perspective of one of the parties alone as justice is not a one-way traffic but rather a three-way or four-way traffic. Justice must be seen from the perspective of the parties, the Court and the state or society. See: Salisu & Ors vs. Abubakar (2014) LPELR-23075; Nwude vs. FRN & Ors (2015) LPELR-24647: Akpadiaha vs. Uko (2017) LPELR-42635.
As much as the Court intends to give justice to the aggrieved party, it must also not lose sight of the other party who may also need justice to be done to him. It is evident from the conduct of the Respondent at the lower Court throughout the proceedings, as is evident from the record, that it is ready to proceed with the defence of the case. Will the tenent of justice be served to deny the Respondent the opportunity to defend the suit against it? I do not think so. The Respondent has shown enough diligence to satisfy the Court that it is ready to defend the suit at the lower Court. Justice will be served to allow the Respondent defend the suit against it by granting the motion to set aside the judgment. The Respondent has satisfied some conditions to warrant the judgment to be set aside. In the light of

the above, this issue also is resolved in favour of the Respondent.

I have earlier held in this judgment that the learned trial Judge’s consideration in setting aside the default judgment was not among the laid down principles but also stated the trite principle of law that declaratory reliefs can only be granted after evidence is adduced but this is not the reason why I will affirm the judgment of the lower Court. It is instructive to note that the Appellant has not challenged paragraphs 10-18 of the Respondents counter affidavit which in my opinion proffers good reasons for its failure to apply to set aside the default judgment within time limited by the Rules. The time having been extended, the lower Court possess the vires to then order for the setting aside of the default judgment as the effect of the order extending the time was as though the application to set aside the default judgment was done within the context of the Rules. I will do same on the premise that I am satisfied that the Respondent has proffered sufficient reasons and taken proactive steps to participate in the Case Management Conference, for this Court to exercise its

discretion in favour of the Respondent and so that the Appellant will not have a hollow victory.

On a whole, this appeal fails and it is hereby dismissed. The decision of the lower Court is hereby affirmed for the reasons contained in this judgment. The case file is to be sent to the Chief Judge of the Lagos State Judiciary for re-assignment to another Judge who shall expedite the hearing.
I award cost of N200,000 (Two Hundred Thousand Naira) against the Appellant in favour of the Respondent.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree with the succinct judgment prepared by my learned brother, EBIOWEI TOBI, J.C.A.

BALKISU BELLO ALIYU, J.C.A.: I had the privilege of reading in draft the Judgment just delivered by my learned brother EBIOWEI TOBI, J.C.A.

I am in total agreement with the reasoning and conclusion reached by His Lordship and I adopt same as mine in also dismissing the appeal.

I abide by the consequential orders made in the lead Judgment including order of cost.

Appearances:

CHIEF OSUARA E. NWAGBARA For Appellant(s)

EMMANUEL UMOREN Esq. For Respondent(s)

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