LAWANSON & ORS v. AKUNNA & ORS
(2022)LCN/17037(CA)
In The Court Of Appeal
(LAGOS JUDICIAL DIVISION)
On Thursday, March 17, 2022
CA/L/552M/2018(R)
Before Our Lordships:
Obande Festus Ogbuinya Justice of the Court of Appeal
Abdullahi Mahmud Bayero Justice of the Court of Appeal
Peter Oyinkenimiemi Affen Justice of the Court of Appeal
Between
1. MR. MICHAEL KOLADE LAWANSON 2. MR. OLUROTIMI LAWANSON 3. MR. GBOLAHAN LAWANSON 4. MRS. PATRICIA APOKO LAWANSON (ON BEHALF OF THEMSELVES AND THE ESTATE OF A.O. LAWANSON) APPELANT(S)
And
1. MRS. CECELIA OLA AKUNNA 2. MRS. AYO MAJEKODUNMI 3. MR. AKIN LAWANSON 4. MR. IDOWU LAWANSON RESPONDENT(S)
RATIO
WHETHER OR NOT A COURT GRANTS DECLARATION OF RIGHTS WITHOUT TAKING EVIDENCE AND BEING SATISFIED THAT THE EVIDENCE LED IS CREDIBLE
In the case of Mohammed vs. Tinau & Ors. 2018 LPELR-46707 (CA) it was held that: “It is settled law that a Court does not grant declarations of right, either in default or on admissions, without taking evidence and being satisfied that the evidence led is credible.”
In Ogolo v Ogolo (2006) 5 NWLR (Pt. 972) 173 at 184 Para D-E, it was held by the Supreme Court per Onnoghen JSC (as he then was) reading the lead judgment, as follows:
“The law is settled that such a relief cannot be granted without oral evidence by the plaintiff even where the defendant expressly admitted same in the pleadings, the said relief being equitable in nature. When looked at from that angle, it becomes very clear that the trial Judge was under a misconception of the law when he granted the declaratory judgment in default of statement of defence thereby rendering the said judgment liable to be set aside upon proper application to that effect.”
In Olubodun vs. Lawal (2008) 17 NWLR (Pt. 1115) 1 at 37 Para C, it was held per Aderemi JSC that:
“It is now totally settled in law that a Court does not grant declaration of right either in default or on admissions without taking evidence and being satisfied that the evidence led is credible.” PER BAYERO, J.C.A.
ABDULLAHI MAHMUD BAYERO, J.C.A. (Delivering the Leading Judgement): By a Motion on Notice filed on 27th April, 2018, the Appellants/Applicants herein, prayed the Court for the following reliefs:
1. AN ORDER extending time within which the Appellants/Applicants may seek leave to appeal against the default judgment of the High Court of Lagos State, Lagos Judicial Division delivered in Suit No. LD/1391/2007 (Mrs Cecilia Akunna & Ors V Mr. Michael Kolade Lawanson & Others) on the 3rd day of February, 2009.
2. AN ORDER granting the Appellants/Applicants leave to appeal against the default judgment of the High Court of Lagos State, Lagos Judicial Division delivered in Suit No. LD/1391/2007 (Mrs Cecilia Akunna & Ors V Mr. Michael Kolade Lawanson & Others) on 3rd day of February, 2009.
3. AN ORDER extending time within which the Appellants/ -Applicants are to appeal against the default judgment of the High Court of Lagos State, Lagos Judicial Division delivered in Suit No. LD/1391/2007 (Mrs Cecilia Akunna & Ors V Mr. Michael Kolade Lawanson & Others) on 3rd day of February, 2009.
4. AN ORDER staying the execution and or further execution of the default judgment of the High Court of Lagos State, Lagos Judicial Division delivered in Suit No. LD/1391/2007 (Mrs Cecilia Akunna & Ors V Mr. Michael Kolade Lawanson & Others) on 3rd day of February, 2009, pending the hearing and determination of the Appellants/Applicants’ appeal against the said judgment.
5. AN ORDER of Injunction pending Appeal restraining the Respondents from levying execution and or further execution by any means whatsoever against the Appellants/Applicants to execute the aforesaid default judgment.
6. And for such further order or orders as the Honourable Court may deem fit to make in the circumstance.
The grounds, upon which the application was brought, as set out on the face of the motion paper, are as follows:
1. The High Court of Lagos State, Lagos judicial division, per Hon Justice B.O Shitta-Bey (Mrs.) of the High Court of Lagos State, Lagos judicial division (as he then was) in Suit No. LD/1391/2007 (Mrs. Cecilia Akunna & others V Mr. Michael Kolade Lawanson & others) delivered a default judgment against the Appellants on 3rd day of February, 2009.
2. The Appellants/Applicants initially filed an application before the lower Court on 7th July 2009 for the aforesaid judgment to be set aside, which application was refused by the aforesaid Court on 2nd December, 2009.
3. That the Appellants/Applicants’ former counsel filed another application for setting aside the default judgment before Hon justice Alogba on 29th January, 2014 and the Court also refused the application to set aside on 24th day of November, 2014.
4. That the Appellants/Applicants’ former Counsel then filed an appeal before this Honourable Court against the refusal order of Justice Alogba in CA/L/456/2014, but this Honourable Court affirmed the ruling of Justice Alogba on 25th October 2016.
5. That the Appellants/Applicants upon seeking a new counsel have now decided to exercise their right of appeal against the original default judgment delivered by Hon Justice Shitta-Bey on 3rd February, 2009 and her refusal to set same aside.
6. That the delay in filling this application was not intentional at all but was due to the reason disclosed in paragraphs 2, 3 and 4 above.
7. That the Appellants/Applicants have strong and arguable grounds of appeal shown in the proposed Notice of Appeal herein exhibited.
8. The Respondents have concluded plans to levy execution against the Appellants to foist a fait accompli on the Appellants/Applicants and render their right to appeal nugatory.
In support of the application is a 19 Paragraph affidavit, deposed to by Mr. Gbolahan Lawanson, the 3rd Appellant/Applicant. Exhibit A (certified true copy of the default judgment), Exhibit B (certified true copy of the ruling of the lower Court delivered on 2/12/2009), Exhibit C (certified true copy of the ruling delivered by the lower Court delivered on 24/11/2014), Exhibit D (certified true copy of the judgment of this Court delivered on 25/10/2016) and Exhibit E (Applicant’s proposed Notice of Appeal) were attached thereto in support of the application with a written address filed on 28/05/2019.
The Applicant’s also filed a 4 paragraph Further Affidavit in support of Motion on Notice deposed to by one Damilola Ajala a litigation clerk from the law office of the Appellants/Applicants’ Counsel, sworn to and filed on 30th July, 2018 in response to the Respondents’ counter affidavit filed in opposition to the Applicant’s motion.
The Respondents on 9th May, 2018, filed their counter affidavit of six (6) paragraphs duly deposed to by one Rasheed Ishola, a litigation clerk in the law firm of the Respondents’ counsel with Exhibit RO1 (certified true copy of an enrolled order of this Court striking out Appeal No. CA/L/179/2017) and Exhibit RO2 (Form O issued by the lower Court after the execution of the default judgment of the lower Court). The Respondents also filed a written address on 6/08/2019 but deemed on 17/01/2022 in support of the counter affidavit.
The Applicants identified a sole issue for determination in the application thus:
“Whether given the circumstances of this case, it would serve the cause of justice to grant this application as prayed.”
Learned Counsel referred to the provisions of Section 241 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and Order 6 Rules 1, 2, & 9 (1) & (2) of the Court of Appeal Rules, 2016 and submitted that there are good and substantial reasons disclosed in the affidavit in support and the further affidavit why the Applicants could not file this appeal premised on the mistake of the former counsel representing the Applicants – Y.S.G. Dredging Company vs. Omenkeukwu (2011) LPELR-5107 (CA). He urged the Court not to visit the sin of counsel on the Applicant. It was further argued that the proposed grounds in the Notice of Appeal disclosed prima facie good cause why the appeal should be heard – NIPOST vs. Musa (2013) LPELR-20780 (CA). According to Counsel, the lower Court erred when it entered a default judgment in a matter seeking declaratory reliefs on land where evidence ought to be adduced. That the lower Court, by entering a default judgment against the Applicants, had denied them their Constitutional right to fair hearing – Martins vs. Nicannar Food Co. Ltd. & Anor. (1988) 1 NSCC 613.
Counsel for the Respondents set down a lone issue, which is similar to the one distilled by the Applicants thus: “Whether in the circumstances of this case, this Honourable Court ought to grant the application of the Appellants/Applicants?”
Learned counsel highlighted the various steps taken by the Applicants, prior this time, either to have the default judgment sought to be appealed herein, being set aside or appealed against. It was submitted that the current effort of the Applicant is an abuse of the process of Court.
It was contended that the reason given by the Applicants, of the mistake of their counsel, will not avail the Applicants – Skye Bank Plc. vs. Yavat David & Ors. (2016) LPELR-41548 (CA). That there have been two executions levied against the Applicants for repossession of the property in dispute which the Applicants flouted -Governor of Lagos State vs. Ojukwu (1986) 1 NWLR 621 was cited to submit that the Applicants could not seek the leave of Court as in the instance, the Court was urged to so hold. Learned Counsel submitted that there was no exceptional circumnutates stated by the Applicants which could warrant the grant of the application. The Court was urged to dismiss the application.
RESOLUTION OF THE APPLICATION
Order 6 Rule (9)(i) and (ii) of the Court of Appeal Rules, 2021 provides:
(1) “The Court may enlarge the time provided by these Rules for the doing of anything to which these Rules apply, except as it relates to the taking of any step or action under Order 16.
(2) Every application for an enlargement of time within which to appeal shall be supported by an affidavit setting forth good and substantial reasons for failure to appeal within the prescribed period, and by grounds of appeal which prima facie show good cause why the appeal should be heard. When time is so enlarged, a copy of the Order granting such enlargement shall be annexed to the Notice of Appeal.”
The grounds of appeal in the attached Appellants/Applicants proposed Notice of Appeal (exhibit E) are grounds which prima facie show good cause why the appeal should be heard. Ground 1 of the proposed notice of appeal borders on the erroneous act of the lower Court entering a default judgment in a matter seeking declaratory reliefs on landed property where evidence ought to be adduced. In the case of Mohammed vs. Tinau & Ors. 2018 LPELR-46707 (CA) it was held that: “It is settled law that a Court does not grant declarations of right, either in default or on admissions, without taking evidence and being satisfied that the evidence led is credible.”
In Ogolo v Ogolo (2006) 5 NWLR (Pt. 972) 173 at 184 Para D-E, it was held by the Supreme Court per Onnoghen JSC (as he then was) reading the lead judgment, as follows:
“The law is settled that such a relief cannot be granted without oral evidence by the plaintiff even where the defendant expressly admitted same in the pleadings, the said relief being equitable in nature. When looked at from that angle, it becomes very clear that the trial Judge was under a misconception of the law when he granted the declaratory judgment in default of statement of defence thereby rendering the said judgment liable to be set aside upon proper application to that effect.”
In Olubodun vs. Lawal (2008) 17 NWLR (Pt. 1115) 1 at 37 Para C, it was held per Aderemi JSC that:
“It is now totally settled in law that a Court does not grant declaration of right either in default or on admissions without taking evidence and being satisfied that the evidence led is credible.”
With reference to prayers 4 and 5 of the Appellants/Applicants motion, the proposed Notice of Appeal herein discloses substantial grounds of appeal to be argued. In the case of Martins vs. Nicannar Food Co. Ltd. & Anor. (1988)1 NSCC 613 at 616 and 617-618 where the Supreme Court held thus:
“That the Court’s discretion to grant a stay of execution must be exercised judiciously and it would be so exercised where it is shown that the appeal involves substantial points of law necessitating the parties and issues being in status quo till the legal issues are resolved. It is clear that the Court would consider granting a stay.”
The application is meritorious and is hereby granted as follows:
1) Time is extended within which the Appellants/Applicants may seek leave to appeal against the default judgment of the High Court of Lagos State delivered in Suit No. LD/1391/2007 (Mrs. Cecila Akunna & Others vs. Mr. Michael Kolade Lawanson & Others) on 3/02/2009.
2) Leave is hereby granted to the Appellants/Applicants to appeal against the default judgment of the High Court of Lagos State delivered in Suit No. LD/1391/2007 on 3/02/2009.
3) Time is extended by two weeks from today within which the Appellants/Applicants are to Appeal against the default judgment of the High Court of Lagos State delivered in Suit No. LD/1391/2007 on 3/02/2009.
4) Further execution of the default judgment of the High Court of Lagos State in Suit No. LD/1391/2007 delivered on 3/02/2009 is hereby stayed.
5) The Respondents are hereby restrained from levying further execution by whatever means whatsoever against the Appellants/Applicants of the default judgment of the Lagos State High Court in Suit No. LD/1391/2007 delivered on 3/02/2009.
OBANDE FESTUS OGBUINYA, J.C.A.: I had the singular privilege to peruse, in draft, the leading ruling delivered by my learned brother: Abdullahi Mahmud Bayero, JCA. I agree fully with the legal reasoning and conclusion in it.
l too, grant the application in the terms decreed in the leading ruling. I abide by the consequential orders made therein.
PETER OYINKENIMIEMI AFFEN, J.C.A.: I have had the benefit of reading, in advance, the Ruling delivered by my Learned Brother, ABDULLAHI MAHMUD BAYERO, JCA. I agree with the reasoning and conclusion therein, and abide by the consequential orders.
Appearances:
S.A. Oyedemi, Esq. For Appellant(s)
Olusegun fabunmi (SAN) with him. Omobolanle O. Senbanjo (Mrs); Oluwabukola S. Okuwobi (Mrs) For Respondent(s)
