MR. ANDREW D. EMUEZE & ORS v. GOVERNOR OF DELTA STATE & ORS (2014)

MR. ANDREW D. EMUEZE & ORS v. GOVERNOR OF DELTA STATE & ORS

(2014)LCN/7730(CA)

In The Court of Appeal of Nigeria

On Monday, the 30th day of June, 2014

CA/B/286/2009

RATIO

COURT: JUDGMENT OBTAINED BY DEFAULT; WHETHER AN APPEAL CAN LIE AGAINST A DEFAULT JUDGMENT

It is trite that, a judgment obtained by default is not a judgment on the merits. It is however, the expression of the coercive power of the court where the default judgment has only been obtained by a failure to follow any of the rules of procedure or orders of court. No appeal lies against a default judgment, but the court has the power to vary it or set it aside. See, Lasco Assurance Plc vs. Deserve Savings and Loans Ltd. (2012) 2 NWLR (pt. 1283) p. 95 at p. 113. per. HAMMA AKAWU BARKA, J.C.A.

COURT: INTERFERENCE; WHETHER AN APPELLATE COURT CAN INTERFERE WITH THE EXERCISE OF JUDICIAL DISCRETION BY A TRIAL COURT

It is equally trite in that an appeal court has the right and duty to interfere with the exercise of judicial discretion by a trial court, where it is shown that the trial court acted under a misapprehension of facts or that it gave weight to irrelevant or unproved matters or it failed to take into account matters that are relevant or where it exercised or failed to exercise the discretion on wrong or inadequate material, and in all other cases where it is in the interest of justice to interfere: Enekebe v. Enekebe (1964) 1 All NLR 102. per. HAMMA AKAWU BARKA, J.C.A.

COURT; THE EXERCISE OF THE COURT’S DISCRETION; HOW TO JUSTIFY THE COURT’S DISCRETION TO EXTEND TIME WITHIN WHICH A PROCEDURAL STEP SHOULD BE TAKEN

To justify the court’s discretion to extend time within which a procedural step should be taken, the law prescribes that some material must be placed before the court satisfying it in the exercise its discretion in its favour. See N.A. Williams & Ors. V. Hope Rising Voluntary Society (1982) 1 NLR p. 1 at p. 6. per. HAMMA AKAWU BARKA, J.C.A.

APPEAL: SETTING ASIDE THE COURT’S JUDGMENT; WHAT A RESPONDENT WHO WISHES THE COURT TO SET ASIDE ITS JUDGMENT OBTAINED BY DEFAULT MUST SHOW

In the present case, for the respondent who wishes the court to set aside its judgment obtained by default, to succeed must show:
(1) That the application be made within time, or within a reasonable time.
(2) A good defence to the claim must be exhibited and
(3) The applicant must show good reason for his default. per. HAMMA AKAWU BARKA, J.C.A.

JUSTICES

IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria

HAMMA AKAWU BARKA Justice of The Court of Appeal of Nigeria

UGOCHUKWU ANTHONY OGAKWU Justice of The Court of Appeal of Nigeria

Between

1. MR. ANDREW D. EMUEZE
2. MR. BAYEM EMUEZE
3. MR. DIKE EMUEZE
(For themselves and on behalf of the Children of Dr. Ushamata Emueze Deceased) Appellant(s)

AND

1. GOVERNOR OF DELTA STATE.
IN RE:
2. ATTORNEY GENERAL DELTA STATE
3. IKA SOUTH LOCAL GOVERNMENT
4. HIS ROYAL MAJESTY, OBI UCHE IRENUMA
5. MR. ANDREW OKO
6. MR. ANDY IMAFIDON
7. MR. JOEL OYATI Respondent(s)

HAMMA AKAWU BARKA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of the Delta State High Court sitting at Agbor, delivered on the 25th of July 2008, setting aside its judgment, delivered on the 3rd of June 2008, given in default of the 4th, 5th, and 7th respondents appearance.

The facts leading to this appeal in brief, is that the appellants on the 28/8/2007, instituted an action against the Governor of Delta State and Ors, before the High Court of Justice Agbor, claiming the following reliefs:

“25. (1). The sum of N14, 400,000.00 (fourteen Million Four Hundred Thousand Naira) being the value of their residential cum commercial buildings of the plaintiffs situate and lying behind No. 40, Market lane Ekwueze Abayo illegally and unconstitutionally demolish by the defendants”

It is the story of the plaintiffs, now appellants, that they are the children of one Ushamata Emueze, now deceased. The late Ushamata, sometimes in 1977, purchased a parcel of land from one Paul Kpekpenkpe. He built a one storey building, four bungalows, and one underground well. For over 30 years, the appellants had been in peaceful ownership of the properties. That the late Ushamata died intestate in the year 2004, and the land devolved on the appellants in this case. Appellants state further that in the year 2008, the Governor of Delta State and his Secretary to the Government decided, to build certain markets in the state to mark his 100 days in office. Without acquiring the land, wherein lies the buildings of the appellants, or paying them any compensation, the state government and the other defendants, on the 17/7/2007, pulled down the storey building, the four bungalows, and the underground well. The appellants took out a writ at the Agbor High Court, the writ and the statement of claim was served on the defendants. All the defendants ignored the suit, they neither entered appearance, nor filed any defence. The appellants on the 15/10/2007, filed a motion for judgment in default of pleadings. All the defendants were duly served, but while the 1st – 3rd defendants and the 5th defendant promptly, filed joint application for enlargement of time within which to enter appearance and filed their joint statement of defence, the 4th, 6th and 7th respondents, in spite of the alleged service of the said application failed and or neglected to file any process.

The appellants, on the 3rd of June 2008, moved their motion for judgment, in default of the appearance of the respondents, and judgment was entered to the tune of fourteen million, four hundred Thousand Naira (N14, 400,000.00). The appellants now sought to execute the judgment. On the 16/6/2008, the respondents in an effort to forestall the execution of the said judgment against them filed an application, seeking court orders to set aside the judgment. The motion was heard, and the prayers therein granted, as follows:-
“I have heard both parties, this is a default judgment it was on merit. I will wish both sides to hear the case on its merit, that is judicially and justicially, see Burasi v. Oseni (supra). I will wish both sides to hear the case on its merit that being so, I ask that extension of time be heard and to deem the memorandum of appearance attached. That judgment on 3/6/2008, being a default judgment is set aside and I rule so accordingly. Costs of N15,000 is awarded to the plaintiff”.

The appellants, being dissatisfied with the stance of the lower court, filed this appeal, on the 3rd of August 2008, on two grounds.
The appellant’s counsel, Mr. U.N. Adaikpoh, adopted and relied on the appellant’s amended brief, deemed duly filed on the 13th of July 2010. Mr Ojo, the learned counsel for the respondents, also adopted and relied on the brief of argument dated the 10th of February 2010. The reply brief dated the 11th of February 2009, was deemed duly filed on the 13th of July 2010.
The appellants distilled two issues for determination, and they are as follows:
“1. Did the Respondents furnish sufficient materials upon which the learned trial Judge exercised his discretion in granting the prayers?
2. In setting aside his judgment so that he would hear the case of the parties on the merits did the trial Judge give sufficient consideration to all the circumstances of the case.”

The respondent formulated two issues for determination, and it reads:
“(i) Whether there were sufficient materials upon which the Learned Trial Judge acted in extending the time within which the Respondents could apply to set aside the default judgment entered on 3/6/08.
(ii) Whether in setting aside the Default judgment entered against the Respondents on 3/6/08, the learned Trial Judge acted judicially or judiciously and gave sufficient consideration to all the circumstances of the case.

The issues formulated by the parties are similar in material, and I intend to use the issues, as articulated by the appellants in the resolution of the appeal.

On issue one
Learned Counsel for the appellants submit that the respondents, having brought their application seeking order of court to set aside the default judgment granted to them, relying on the provisions of Order 37 Rule. 9 of the High Court Civil Procedure Rules 1988, must place before the court some material which entitles the court to exercise its discretion in their favour. He argues that from the affidavit evidence placed before the court, there was nothing to entitle the respondents to the exercise of the court’s discretion.

Counsel cited the case of Ukwu V. Bunge (1991) 3 NWLR (Pt. 182) p.677 at 689 Para. D, to support this proposition.
He submits further that looking at the set of affidavits filed by the parties, there was nothing filed by the respondents to show why the application is coming in belatedly. He submits also that the respondents did not aver to the fact, that the appellants would not be prejudiced, embarrassed or that the action was supportable.

He submits further that none of the ingredients enunciated in the case of N.A. Williams & Ors. Vs. Hope Rising Voluntary Society (1982) ANLR P. 1, were shown to exist.

Learned counsel submits still further that, the respondents having failed to adduce good and tangible reasons for their absence in court, the Judge ought not to have exercised his discretion in their favour, and he urged this court in allowing the appeal to restore the court’s judgment delivered on the 3/6/2008.

On the second issue, learned counsel referred to the respondents’ processes filed at the lower court, and submits that the trial judge did not properly exercise his discretion. Counsel submits that for a proper exercise of its discretion the court must consider the evidence placed before it, as well as the peculiar circumstances of the case. He argued that the lower court should have considered:
1. Whether the Respondents herein had good reason for being absent;
2. Whether they had shown that there was good reason for their delay in bringing the application;
3. Whether the Appellants would not be prejudiced or embarrassed if the order for re-hearing was made;
4. Whether their case was manifestly unsupported; and
5. Whether their conduct throughout the proceeding is deserving of sympathetic consideration:
Dahuwa V. Adeniran (2003) 17 NWLR (Pt. 849) p. 376 ratio 4; Wiltiams & Ors. V. Hope Rise Voluntary Fund Society (supra) and S.I. Momoh V. Gulf Assurance Corporation (1975) NNLR p. 94 ratio 4.

He contended that discretion must be exercised judicially and judiciously in accordance with settled principles, and the respondents having failed to satisfy the lower court as demanded by the principles enunciated in the foregoing cases, the appellate court has the power to interfere with the exercise of such discretion. He calls in aid the decision of Onwuka v. Ononuju (2009) 11 NWLR (pt 1151) 174. He urged the court to interfere with the lower courts exercise of discretion, and to order it to revert to its judgment dated the 3/6/2008.

In his reply, learned counsel for the respondents, A. Ojo, argued his two issues together, and concedes that a trial court has discretion whether to set aside a judgment obtained in the absence of a party, but the discretion must be exercised judicially and judiciously: Okafor vs. Ezenwa (1992) 4 NWLR (pt. 237) p. 611 and Williams Vs. Hope Rising Voluntary Society (1982) 1 ANLR (pt. 1 p. 1 at pages 4 – 5.

He concedes also that the lower court in the exercise of its discretion should examine:
1. The reason for the applicant’s failure to appear at the hearing of or trial of the case.
2. Whether there has been an undue delay in making the application to set aside the judgment as to prejudice the party in whose favour the judgment subsists.
3. Whether the party in whose 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 Applicant’s case is manifestly unsupportable.
5. Whether the Applicant’s conduct throughout the proceedings has been such as to make his application worthy of sympathetic consideration.

He referred to the respondent’s motion, the supporting affidavit and further affidavit, exhibiting the respondents’ proposed defence, and submits that the trial judge’s discretion, expressing his desire to hear the case on the merits should not be interfered with by this court.

He cited the cases of Bank of Baroda vs. Merchantile Bank Limited (1997) 3 NWLR (pt. 60) p. 233; Atanam vs. Olanrenwaju (1900) 4 NWLR (pt. 89) p. 394, Obasuyi v. Business Venture Ltd (2000) 15 NWLR (pt 658) 668 to the effect that the claims being for a un liquidated money demand, there must be evidence by the appellants in support of the special and general damages borne on the statement of claim.

He argues that there is no feature on the record showing that the trial courts use of discretion resulted in injustice to the appellants having been compensated with costs. He further argues that in the con of the present application, the time lapse being only 16 days, same cannot be regarded as undue delay. He finally urged the court to discountenance the issues raised in the appellants’ argument and to dismiss the appeal with substantial costs.

In his reply brief, learned appellants’ counsel argued that though an appellate court is usually reluctant to interfere with the exercise of the discretion by a lower court, it has the right and duty to inquire as to whether the exercise of the discretion was in accordance with the rules, and judicial discretion must be exercised according to common sense and not arbitrarily fanciful unlawful and irregular.

The appellants now contend that the discretion was not exercised according to law.
Order 37 Rule 9, of the Defunct Bendel State High Court (Civil Procedure) Rules, 1988, provides:

“9. Any judgment obtained where one party does 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.

In the motion dated the 16th of June, 2008, the respondents sought five distinct reliefs, enumerated here under:
“1. An extension of time, within which to enter appearance in this suit.
2. To deem the Memorandum of Appearance attached to the Supporting Affidavit and marked Exhibit A as properly filed and served, the appropriate filing fees having been paid.
3. An extension of time within which to apply to set aside the judgment delivered in this suit on 3rd June, 2008.
4. Setting aside the Judgment delivered on 3rd June, 2008 by this Honourable Court in this suit.
5. An extension of time within which to file the joint Statement of Defence of the 4th, 6th and 7th Defendants/Applicants in this Suit, the statutory period within which to do so, having expired.”

The lower court was invited to consider two main applications. They are for extension of time within which to apply to set aside the judgment delivered on the 3rd of June, 2008, and the setting aside of the judgment.

The 4th, 6th and 7th Defendants by their motion of 16/6/2008, set out to explain the reason(s) for their default, in their affidavit in support of the motion, averred as follows:

“4. That I was not served with the Writ of Summons in this Suit.
10. That when the action was filed the State Government promised to enter Appearance and take over the Defence of all the Defendants.
11. That the 4th, 6th and 7th Defendants/Applicants were assured by the Government that the State Attorney General and Commissioner for Justice, would take up their defence along with those Government Officials who were sued with them.
12. That on inquiring I discovered that the State Ministry of Justice did not enter Appearance or filed Statement of Defence on our behalf and the 4th, 6th and 7th Defendants/Applicants were not informed of the position.
13. That on inquiring from the court Registry on 13/6/2008, I was informed by the Court Registry, that judgment was entered against us in suit Nos. AG/40/2007 – AG/49/2007 on 3rd June, 2008.
14. That our Solicitor A. Ojo, Esq. informed me and I verily believe him that there is need to bring this application for extension of time to file our Memorandum of Appearance and file our Statement of Defence, the statutory period for doing them having expired.
15. That the 4th, 6th and 7th Defendants/Applicants were not served with the Statement of Claim and the Statement of Defence of the 1st, 2nd and Statement of 3rd Defendants/Respondents.”

In the counter affidavit filed on the 23rd of June, 2008 by the appellants, it was averred particularly that:
“9. That in answer to paragraph 5 which is denied, I say the 4th, 6th and 7th defendants were served with the Writ of summons and the statement of claim as these were filed on same day.
10. That upon the receipt of the writ of summons and statement of claim that the 4th and 7th Defendants boasted that nothing will come out of the suit as they have the Delta State Government and key person in the said Government backing.
11. That the 4th Defendant boasted further that he does not go to court as he is not like his late father whom people intimidated with court actions.
12. That in the course of their boasting and gibes they reminded me and my co-travellers in this misery they brought upon us that the Delta State Government
13. Will pay us nothing citing as an example the case of Dr. Cairo Ojougboh’s building pulled down in Agbor.
14. That in answer to paragraphs 5 and 6 which are denied I say I saw on 17/7/2007 the 6th and 7th Defendants turn their caterpillars and bulldozer on my late father’s storey building situated and lying at No. 40 Market Lane Ekwueze Abavo. They were led in this operation by the 4th and 5th Defendants and members of the Abavo Clan Union.
15. In further answer to paragraphs 6, I say I saw the 6th and 7th Defendants pulled down our story building which stood at No. 40 Market Lane – an area which is completely outside the confines of the Abavo Community Market.
20. In answer to paragraph 14, I deny same and say this is a case the 4th, 6th, 7th defendants never believed in as they continued to re-echo Delta State Power behind them.
25. That I make this affidavit conscientiously believing same to be true and in accordance with the Oaths Acts of 1990 Laws of the Federal Republic of Nigeria.

From paragraphs 10 to 20 of the counter affidavit, it is averred that the respondents on receipt of the writ of summons and the statement of claim, were boasting that that nothing will come out of the suit as they have the backing of the Delta State Government. It is averred also that the 4th defendant boasted that he does not go to court unlike his late father who was intimidated with court cases. It is further deposed in the counter affidavit, that on the 17/7/2007, he (deponent) saw the 6th and 7th respondents turn their caterpillars and bulldozers, led by the 4th and 5th respondents on his late father’s storey building. It is equally deposed that the defendants continued to re-echo Delta power behind them.

This damaging counter affidavit has not been countered by a further and better affidavit, and thus deemed as not disputed. Alh. Jibrin Babale V. Alh. Innocent Eze (2011) 11 NWLR (Pt. 1257) 48; Ajomale V. Yaduat (No 2) (1991) 5 NWLR (Pt. 191) 266.

More over, at pages 15 – 17 of the records, it is evident that one Prince Chuks Emenem, Asst Chief Bailiff attached to the High Court Agbor, separately served the 4th, 6th & 7th respondents on the 30th of August, 2007 copies of the writ of summons and statement of claim of the plaintiffs. Still at pages 59, 60 and 61 of the records, Prince Chuks Emenem Asst Chief Bailiff of the High Court Agbor, swore to an affidavit that on the 20/12/2007 he served the 4th, 6th and 7th defendants copies of motion on notice for judgment.

The respondents by their Paragraph 10 contradicted their paragraph 4, of the affidavit. While in paragraph 4, the respondents were denying that they were not served, paragraph 10, is to the effect that the State Government promised defending the case on their behalf. I am satisfied therefore that the respondents were duly served the processes originating the case at the lower court.

The aggregate of the foregoing averments and the documentary evidence, highlighted, established the fact that the 4th, 6th and 7th respondents were fully aware of the pendency of the action filed against them, but refused to enter appearance and to defend the action.

The extant question however is whether the respondents were served the motion, for the judgment dated the 3rd of June 2008. I have critically examined the motion made in support of the application. It is at pages 10 to 12 of the record. Glaringly there is no averment to the effect that the said motion was served on the respondents in the motion supporting the application. I think the averment in paragraphs 4(a) of the affidavit is in respect of the writ of summons and the statement of claim in the main suit, dated the 28/8/2007.

It is evident from the records of the lower court at page 48 to 49, where the court, simply stated,
“Motion is moved in terms of the motion papers, and I so rule accordingly.”
The question is, how is service proved. The question is answered in the case of: A.G. Anambra State & Ors. V. Ephraim Okeke & Ors. (2002) 5 SC (Pt. II) 58.
An affidavit of service of a court is normally a non-contention document required to be put on record for information of the court and the parties as to the fact and date of service of a process in the proceeding. It proceeded to state where in a proceeding, the question arises whether or not a process has been served in the proceeding, it will be a strange thing were the court to ignore the proof of service afforded by its own records in the proceeding and hold that such process has not been served.
From the foregoing, it is clear therefore that all process having been duly served on the respondents, their complaint of non-service cannot avail them.

The other issue raised for consideration is whether a default judgment can be entered in respect of a claim for unliquidated damages. It was the argument of the respondents, that a judgment in default of pleadings cannot be entered unless evidence in support of the claim is adduced. Counsel cited the case of Obasuyi v. Business Ventures Ltd (2000) 15 NWLR (Pt. 658) at P. 668 was cited in support of the proposition that a default judgment cannot be entered in respect of a claim for an unliquidated claim.
The Supreme Court in the case of Maja v. Samouris (2002) 95 LRCN 341, have stated the law, when it declared:
“in cases where damages claimed are of unliquidated nature final judgment cannot be entered in default either under Order 24 rule 11 or Order 24 Rule 4 of the Lagos High Court Civil Procedure Rules. Evidence of how the unliquidated damages had been arrived at must be before the court. The best judgment in respect of unliquidated damages will be interlocutory and not final, as evidence is required to prove the damages”.

I therefore agree with the respondents that the claim of the appellants being for an unliquidated claim, evidence has to be adduced in support of the claim.

Having arrived at this conclusion, justice of this case demands that the case be heard on the merit, the present appeal must fail. It is here by dismissed; I affirm the lower court’s decision that this case be determined on the merit.

No order as to costs.

IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.: Instructively, it’s evident on the records, that on 28/8/07, the Appellants instituted the Suit No. AG/44/2007, vide a writ of summons at the High Court of Delta State, Agbo Judicial Division seeking damages against the Respondents, jointly and severally. By paragraph 25 of the Statement of claim thereof, the Appellants sought against the Respondents the following reliefs:

1. The sum of N14, 400,000.00 (Fourteen million, four hundred thousand Naira) being the value of their residential cum commercial buildings of the Plaintiffs situate and lying behind No. 40 Market Lane Ekwaeze Abavo illegally and unconstitutionally demolish (sic) by the Defendants.

On 15/10/07, the Appellants filed in the court below, a motion on Notice pursuant to Order 27 Rule 2 of the High Court (Civil Procedure Rules, 1988), seeking the following relief:

1. Entering judgment in favour of the Plaintiff/Applicant in default of the Defendants/Respondents filling (sic) any defence.

That motion was supported by a 5 paragraphed affidavit deposed to on 15/10/09 by one Monica Osu, a Clerk in the Chambers of V.N. Adaikpoh & Co. No exhibits were however attached to the said affidavit.

It is evident on the record at page 18 thereof, that when the said motion came up on 03/6/08 for hearing, the lower court recorded thus:

IN THE HIGH COURT OF JUSTICE: DELTA STATE OF NIGERIA IN THE AGBOR JUDICIAL DIVISION: HOLDEN AT AGBOR BEFORE HIS LORDSHIP THE HON. JUSTICE P.M. OKOH (JUDGE) ON TUESDAY THE 3RD DAY OF JUNE, 2008

SUIT No. AG/44/07

BETWEEN:
Andrew Emueze & an Ors – Plaintiff
AND
Governor Delta State & Ors – Defendants
J.Y. Odebala (with him Adaikpoh) for the Plaintiffs.
F.U. Akaeke for 1st, 2nd, 3rd and 4th Defendants.
Kalikwu for the 5th Defendant.

Motion is moved in terms of the motion papers and I rule so accordingly.
Cost N1,000 is granted to Plaintiff.

JUDGMENT
Judgment is granted to the Plaintiff in the sum of 14 Million and Four Hundred Naira only jointly and severally in the 4th, 5th and 7th Cost: of N20,000.00 is awarded to the Plaintiff.
(Sgd.)
P.M. OKOH
(JUDGE)
3/6/2008

Thus, having granted the said motion and entered Judgment in favour of the Appellants against the Respondents, the Appellants proceeded to apply for the issue of writ of execution against the Respondents. However, the Respondents filed a motion on 13/6/08 seeking the following reliefs:

1. An Extension of time within which to apply to set aside the Judgment delivered in the suit on June 3, 2008,
2. An Order setting aside the judgment delivered by the honourable court on June 3, 2008, and to set down the matter for hearing on the merit.
3. An Order extending time within which to enter appearance and to file statement of Defence in this suit for the 6th and 7th Defendants/Applicants.
4. An Order deeming the memorandum of Appearance hereby attached and marked Exhibit ‘A’ and the proposed statement Defence attached and marked Exhibit “B” as properly filed and served on the Plaintiffs/Respondents. Defendants/Respondents the appropriate filing fees having been paid.
5. And for such further or other orders as the Honourable Court may deem fit to make in the circumstances.

The said motion was supported by a 5 paragraphed affidavit. Attached thereto are Exhibits A & B, the Memorandum of appearance and the proposed joint statement of defence of the Respondents.

Not unexpectedly, the Appellants objected to the said application vide a 25 paragraphed affidavit deposed to personally on 23/6/08 by the 1st Appellant. No exhibit was however alluded to in the said affidavit.

In the vexed ruling thereof, delivered on 21/7/08, the lower court came to the conclusion, thus:
I have heard both parties, this is a default judgment, it was on merit. I will wish both sides to hear the case on its merit, that is judicially and judiciously, see Buhari V. Oseni (Supra).
I will wish both sides to hear the case at its merit, that being so I ask that extension of time be heard and to deem the memorandum of appearance attached. That judgment on 3/6/2008 being a default judgment is set aside and I rule so accordingly. Cost of N15,000 is awarded to the Plaintiff.

The instant case is thus against the ruling aforesaid.
Having amply considered the nature and circumstances surrounding the appeal, the submissions of the learned counsel contained in the respective briefs of argument thereof vis-a-vis the entirety of the record of appeal, I am of the view that the exercise of discretion in setting aside the defaults Judgment in question by the lower court is quite in order, thus cannot be tampered with by this court.
And my reasons for so holding are not at all far-fetched.

Instructively, the term default Judgment denotes a binding Judgment in favour of either party based upon some very technical procedural principles regarding the failure to take action by the other party within a statutorily stipulated time limit. Most often, a default Judgment is granted in favour of a Plaintiff when the Defendant fails to respond to a writ of summons or fails to enter an appearance before a court of competent jurisdiction. Thus, what actually constitutes the fault is the party’s failure to take necessary action as required by law, thereby resulting in the court entering [default] Judgment regarding the amount pleaded in the original writ of summons or statement of claim, where filed. See WIKIPEDIA: Legal Definition of Default Judgment.

The principle has been settled that where an applicant seeks the court to set aside its own Judgment given in the absence of a party before it, the court has an onerous duty to consider whether or not –
(1) The reasons for the applicant’s failure to appear at the hearing or trial of the case in which Judgment was given in the absence thereof;
(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 would be prejudiced or even embrassed 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. See WILLIAMS V. HOPE RISING SOCIETY (1982) LPELR – 3484 (SC). See also IDAM UGWU V. NWAJI ABA (1961) ALL NLR 438; ADEBAYO DOHERTY V. ADE DOHERTY (1954) NMLR 144 @ 145.

In the instant case, it’s obvious that the two issues have been raised by the learned counsel in their respective briefs of argument, are not at all mutually exclusive. Thus, most particularly, the two issues raised at page 3 of the Appellants’ brief are to the effect thus:
1. Did the Respondents furnish materials upon which the learned trial judge exercised his discretion in granting their prayers?
2. In setting aside his Judgment so that he would hear the case of the parties on the merits, did the trial Judge give sufficient consideration to all the circumstances of the case?

Taking both issues together, I would want to reiterate the trite principle, that the exercise of discretion (discretionary power) by courts or Judges, is an inherent aspect of judicial independence under the well cherished immutable doctrine of the separation of powers. Contrariwise, an abuse of discretion denotes a failure to take into proper consideration of the facts and relevant laws relating to a particular matter and arbitrary or unreasonable departure from precedent and well settled judicial tradition or custom. See Wikipedia Definition – abuse – discretion:
On appeal of an exercise of discretion, “abuse of discretion” is a standard of review requiring the appellate court to find out that the lower court’s decision would “shock the conscience” of a reasonable person in order to reverse the decision below.
In the case of GADI V. MALE (2010) 7 NWLR (Pt. 1193) 225, the Court of Appeal, Jos Judicial Division had aptly reiterated the trite fundamental principle governing the exercising of Judicial discretion by courts, thus:
The discretionary powers of the court are bound by rules and principles of law and not arbitrary, capricious or unrestrained emotions. Judicial discretion implies that a court must act according to rules, reason and justice. The court in the exercise of its discretionary powers, must look at the materials placed before it by the parties and the effect such orders prayed for would have on the eventual disposal of the matter.
In the instant case, it’s evident on the records of appeal that the Respondents, as alluded to above, had placed before the court below sufficient materials necessary to warrant the said court to exercise the discretionary power thereof in their favour.
The claim before the lower court was for an unliquidated demand. Undoubtedly, the Appellants shoulder the burden of establishing that they were actually entitled to claim for both special and general damages. And this can only be done by calling evidence in support of the averments contained in the pleadings thereof. See OBASEKI V. BUSINESS VENTURES LTD (2000) 15 NWLR (Pt.658) 668.
From the backdrop of the foregoing postulations vis-a-vis the records before us, I am unable to find any reasonable ground to establish that the lower court’s exercise of the discretion thereof was predicated upon wrong principles of law or was unjudicious. See IBODO vs. ENAROFIA (1980) 5 – 7 SC 42; UNIVERSITY OF LAGOS VS. AIGOLO (1981) 1 NWLR (pt. 1) 143.

I think, it was the Hon. Justice Niki Tobi, JSC who once reiterated the trite principle thus:
It is now a notorious principle of law that as courts of equity that we are, we should not pursue technical and abstract justice at the expense of dealing with the merits of the matter, but rather ensure that substantial justice is done to the parties. The primary function of any court of law is to do justice to the parties and where any procedural rules antithesis to justice and fair play, maneuver that harsh rule of law in pursuit of justice. If in the course of pursuing justice the court errs, it has ‘erred’ in the right direction. See BUSARI V. OSEN (1992) LPELR – 14981 (CA) per NIKI TOBI, JCA (as he then was).

Hence, in the light of the foregoing postulations, I wholeheartedly concur with the reasoning and conclusion reached in the lead judgment just delivered by my learned brother, H.A. Barka, JCA, to the effect that the instant appeal is devoid, and it’s equally dismissed by me. Consequently, the ruling of the court below, delivered on the said 25/7/08 by P.M. Okoh, J; is hereby affirmed. No order as to costs.

UGOCHUKWU ANTHONY OGAKWU, J.C.A.: I was privileged to have previewed the well reasoned and articulate judgment of my Lord, HAMMA AKAWU BARKA, JCA. I absolutely agree with his reasoning and conclusion.

It is trite law that in an application to set aside a default judgment, which was the application before the lower court, a court looks out for the following considerations, the existence of which would constitute sufficient materials for the exercise of discretion in favour of granting the application:
1. Whether the applicant has shown good reasons for being absent at the hearing
2. Whether the application was brought within the prescribed period of six days.
3. In an application for extension of time to bring the application, whether the 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. Whether the applicant has shown that there is an arguable defence which is not manifestly unsupportable.
5. That the conduct of the applicant throughout the trial is not such as is condemnable, but is deserving of sympathy.
6. Whether the judgment is tainted with fraud or is irregularly obtained.
7. Whether the judgment was given for an amount in excess of what was due and claimed.
8. Whether the respondent will not suffer any prejudice or embarrassment if the judgment is set aside.
See SANUSI vs. AYOOLA (1992) LPELR (3009) 1 at 24.

In order for discretion to be exercised in favour of the grant of an order setting aside a default judgment, the affidavit accompanying the application must disclose and show clearly the reasons for the application, which reasons must be consistent with the conditions for the grant of the application.

From the Records, I have no doubt whatsoever that the affidavit evidence of the Respondents did not show any good reasons for their failure to attend court during the proceedings and their conduct was condemnable and not deserving of any sympathy. If the considerations were limited to these two factors alone then the decision of the lower court setting aside its default judgment ought to be overturned; but there is the important consideration of whether the judgment was irregularly obtained.

The Appellants claim before the lower court for which judgment was entered in their favour was for unliquidated pecuniary damages. The lower court entered default judgment without any evidence being led in proof of the damages claimed. It seems to me settled law that default judgment should not be entered on a claim for unliquidated pecuniary damages without evidence being led for assessment of damages. As stated by Iguh, JSC in MAJA vs. SAMOURIS (2002) 7 NWLR (PT 765) 78 or (2002) LPELR (1824) 1 at 25-26:
“It cannot be over-emphasised that a court is not entitled to enter summary or default judgment on a claim based on a relief for payment of unliquidated pecuniary damages without taking evidence for the assessment of the amount of damages that may be proved, as such a claim must be established by credible evidence. This is so because it is not enough for the court to simply award damages in an unliquidated pecuniary damages claim without giving any reasons as to how it arrived at what in its opinion amounted to reasonable damages.”
See also UMUNNA vs. OKWURAIWE (1978) 6-7 SC 1 at 8 and OLUROTIMI vs. IGE (1993) 8 NWLR (PT 311) 257 at 266.
The reasoning for this state of the law is not far-fetched. Though by the principles of pleadings a fact not denied is deemed admitted, a fortiori, where the defendant has not filed a defence; but an exception is that in a claim for damages, damages are always said to be in issue requiring the plaintiff to prove them: OKE vs. AIYEDUN (1986) 2 NWLR (PT 23) 548.
It is flowing from this state of the law that I assent that the default judgment of the lower court was irregularly obtained and it was therefore a proper exercise of discretion for the lower court to have granted the application and set aside the default judgment so that the matter could be heard on the merits. It was a judicial and judicious exercise of discretion and no appellate court will interfere.

For these and other reasons set out in greater detail in the lead judgment, I also join in dismissing this appeal for being devoid of merit. The decision of the lower court in Suit No. AG/44/2007 delivered on 25th July 2008 is hereby affirmed. I abide by the consequential orders made in the lead judgment.

Appearances

Counsels for both parties not representedFor Appellant

AND

For Respondent