MRS MARGARET ADERINSOLA VOGT & ORS V. MRS SUSAN MODUPE AKIN-TAYLOR
(2012)LCN/5114(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 24th day of January, 2012
CA/L/94/10
RATIO
THE POSITION OF THE LAW WHERE A COURT DOES NOT CONSIDER THE SUBMISSION OF A PARTY BEFORE ARRIVING AT ITS DECISION
There is no doubt that where a court does not consider the submission of any party before arriving at its decision, then it could not be said to have done justice to the party. See IROLO V. UKA (2002) 14 NWLR Pt. 786 Pg. 195 @ 225. PER. HON. JUSTICE HELEN MORONKEJI OGUNWUMIJU, J.C.A
CIRCUMSTANCE WHERE A JUDGEMENT WILL BE SET ASIDE
A judgment will not be set aside on proof that one or more of the ingredients of a good judgment are missing unless it is shown that such an omission resulted in total miscarriage of justice. See ATTORNEY GENERAL OF THE FEDERATION & ORS V. ALHAJI ATIKU ABUBAKAR (2007) 4 SCNJ 456. Thus, judgment writing is an art which depends on a writer’s peculiar style and method. As long as a judgment contains the essential parts, it is a valid judgment. See OLUMOGBA & ORS V. ISRAEL J. ONWUZO & ANR (2005) 6 SCNJ 83. PER. HON. JUSTICE HELEN MORONKEJI OGUNWUMIJU, J.C.A
JUSTICES
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria
MOHAMMED DANJUMA Justice of The Court of Appeal of Nigeria
Between
1. MRS MARGARET ADERINSOLA VOGT
2. MR. JOSEPH ADEMOLA TAYLOR
3. MRS. JOSEPHINE ADERONKE OTOLORIN
4. MRS. ADEKUNBI TAYLOR JOSEPH – Appellant(s)
AND
MRS SUSAN MODUPE AKIN-TAYLOR – Respondent(s)
HON. JUSTICE HELEN MORONKEJI OGUNWUMIJU, J.C.A (Delivering the Leading Judgment): This is an interlocutory appeal against the ruling of the Honourable Justice Nwaka sitting at the High Court of Lagos State in Ikeja delivered on the 25th day of June, 2009.
The facts that led to this appeal are as follows:
The Claimants now the Appellants commenced an action at the High Court of Lagos, Ikeja division on the 26th day of October, 2007 praying the court to declare as a nullity the Judgment of the High Court of Lagos State delivered by Gbaja-Biamila J. in the case of Mrs. Susan Modupe Akin-Taylor V. Mrs. Margaret Aderinsola Vogts & Ors with suit No. ID/741/2000. The Appellants also sought an Order setting aside the said judgment and restraining the Respondent from giving effect to the judgment.
The Defendant, now the Respondent in reply filed a statement of defence and counter claim dated the 21st day of December, 2007. In the counter-claim, the Respondent sought the following reliefs:
1. A declaration that the Judgment of the Hon. Justice O. Gbaja-Biamila of the High Court of Lagos State dated 3rd of July 2003 in suit No: ID/741/00 is regular and valid and occasioned no miscarriage of justice to the claimants
2. An Order granting leave to issue a writ of execution/attachment and sale against the 7 storey building situate at No. 2, Allen Avenue, Ikeja Lagos State being one of the properties of Late Chief Gabriel Akinmade-Taylor in respect of which probate was granted to the Claimants/Judgment debtors on the 28th day of February, 1998 in satisfaction of the Judgment debts in suit No. ID/741/00 – Mrs. Susan Akin-Taylor V. Mrs. Aderinsola Vogts & Ors and Suit No. ID/250M/2004 Mrs. Susan Akin-Taylor V. The Administrator-General & Public Trustee of Lagos State & Anr., respectively.
3. Such further Order and/or direction as may be deemed necessary in the circumstances of this case.
On receipt of the Respondent’s statement of defence and counter-claim, the Appellants filed a motion on notice dated 24th April, 2008 with a written address praying the court to strike out the Statement of Defence and counterclaim on the ground that it failed to disclose any Defence and cause of action and/or may prejudice, embarrass or delay the fair trial of the action. The Respondent, in response, filed a counter-affidavit with a written address dated 3rd of June, 2008. Issues were joined at the trial court and the court in a ruling delivered on the 25th day of June, 2009, dismissed the Appellants’ motion on notice.
The Appellants, being dissatisfied with the ruling of the trial court has brought this appeal. The Appellants’ brief was not dated, but was filed on the 29th of April, 2010. It was deemed filed on 2/11/10. The Respondent’s brief was dated 29th of November, 2010 and filed on the 30th of November, 2010.
The Appellants’ Counsel, Tochukwu Orakwue identified one sole issue for determination which is stated below:
“Whether the failure of the Learned Trial Judge to consider the submissions of the Appellants has led to a miscarriage of Justice”
Similarly, Counsel to the Respondents, Mercy Oseghale (Miss) identified one issue, that is:
“Whether the learned trial Judge was right in dismissing the Appellants’ Motion on Notice which prayed to strike out the Respondent’s statement of defence and counter-claim and setting the matter down for hearing on the merits”
It seems to me that the issue identified by both learned Counsel are the same, even though they are differently worded. I have therefore decided to rephrase the sole issue before this court for determination as follows:
“Whether the ruling of the trial court dismissing the Appellants’ motion on notice and setting the matter down for hearing on the merits led to a miscarriage of justice”
On this issue, the Appellants’ Counsel submitted that the trial court misdirected itself, when in its ruling, it refused the Appellants’ application to strike out the Defendant’s/Respondent’s statement of defence and counter claim. He contended that the lower court arrived at its decision without considering the submissions of the Appellants on the sole issue for determination in the written address supporting the motion for striking out. He argued that this occasioned a miscarriage of justice. He cited IROLO V. UKA (2002) 14 NWLR Pt. 786 Pg. 195 @ 225; OKONJI V. NJOKANMA (1991) NWLR Pt.202 Pg.131
He also cited AMADI V. NNPC (2000) 10 NWLR Pt. 674 Pg. 75 and IROLO V. UKA (Supra) on what constitutes miscarriage of Justice. He stated that from the records of proceedings, it is obvious that the trial court did not at all consider the submissions of Appellants’ counsel before arriving at its decision.
He contended that the Appellants’ argument in the written address in support of the motion on notice for striking out was not primed at shutting the Respondent out, but that her statement of defence as filed did not disclose any reasonable defence to the Appellants’ claim in the statement of claim and therefore cannot be said to qualify as a defence to the claim. He emphasized that the Respondent’s statement of defence did not address the allegations raised by the Appellants in their statement of claim, that the Appellants were not given the opportunity of delivering a final address and as such the judgment was null and void and of no effect. He argued that the Respondent’s statement of defence could not be said to have exonerated her from the Appellants’ claim. He cited NWOLISAH V. NWABUFOR (2004) NWLR Pt. 879 Pg. 507 @ 522 and ASO MOTET KADUNA LTD V. DEYEMO (2005) 7 NWLR Pt. 978 Pg.87 on what constitutes a statement of defence.
He further argued that the trial Judge did not put all these into consideration and that if the case is allowed to continue on the ‘erroneous Statement of Defence’, the Appellants will be adversely affected during the course of proceedings.
He concluded that the effect of miscarriage of Justice on the decision of a court will be the nullification of such decision and he urged this Court to reverse the decision of the Lower court and grant the application that the Defendant’s statement of defence and counter-claim be struck out for disclosing no reasonable defence. He cited IROLO V. UKA (Supra).
On the other hand, learned counsel to the Respondent claimed that the Appellants’ submission that the lower court in its ruling, had misdirected itself because it failed to consider the submissions of the Appellants, is misleading. She further claimed that the lower court had in fact reviewed the submissions of the Appellants and had righty held that the Respondent’s statement of defence should not be struck out and the case should be heard on the merit on the principle of audi alterem partem. She cited EIGBE v. NUT (2005) 16 NWLR Pt. 1005 Pg.244 @ 264; MOBIL PROD. NIG. UNLTD V. MONOKPO (2003) 18 NWLR Pt. 852 Pg. 346.
She also argued that having regards to the fact that the trial court’s ruling was interlocutory, the trial court was not required to make adverse findings as that may prejudge the case and since the trial court did not do this, the ruling was validly made. She cited NWANNEWUIHE V. NWANNEWUIHE (2007) 16 NWLR Pt. 1059 Pg. 1; NBA V. ODIRI (2007) 8 NWLR Pt. 1035 Pg. 203.
Counsel argued that quite contrary to the Appellants’ argument that their statement of defence disclosed no reasonable defence and did not address the claims in the statement of claim, the Respondent had in its statement of defence dated 21st December, 2007 specifically in paragraphs 3 & 4 (Pages 14-17 of the Records), addressed the allegations in the Appellants’ statement of claim. The Respondent had claimed in the said paragraphs that the claimants had refused to defend suit no. ID/741/2000 and as such the trial judge in that suit had no option but to apply the rules of court to ensure that the defendant’s case was not frustrated. The counsel further claimed that contrary to the assertions of the Appellants, the case with suit no. ID/741/2000 never got to the final address stage because the Appellants, after close of the Respondent’s case never defended the suit, but brought all sorts of frivolous applications to delay the trial.
Counsel also stated that the Appellants’ failure to file a reply to the Respondent’s statement of defence or a defence to the counter-claim should be deemed to be an admission of the facts stated in the statement of defence. He cited AKPAJI V. UDEMBA (2003) 6 NWLR Pt. 815 Pg. 169 @ 183.
He contended that the case of ASO MOTEL KADUNA LTD. V. DEYEMO (Supra), cited by the Appellants’ counsel actually supports the Respondent’s case. She stated that the Appellants’ argument that the statement of defence did not exonerate the Respondent from the Appellants’ claims goes to no issue as a statement of defence can only exonerate a defendant after evidence has been led in defence of the case.
She also argued that even if the lower court had indeed failed to consider the issues or arguments of the Appellants in arriving at the ruling, as claimed by the Appellants, the ruling would still not be a nullity because the Appellants have suffered no miscarriage of Justice therefrom. She stated that the Appellants were still entitled to prove their claims at the High Court. She cited AYANRU V. MANDILAS LTD (2007) 10 NWLR Pt. 1043 Pg. 462; ADEBAYO V. AG OGUN STATE (2008) 7 NWLR pt.1085 pg. 201 @ 214.
She argued that the Appellants’ appeal is just a ploy to delay the course of Justice and to frustrate the Respondent by denying her, her entitlements in the Will of her late husband. She stated that the Court of Appeal has in several cases warned partied against filing interlocutory appeals to delay the dispensation of justice. She cited SERIKI V. ADURALERE (2007) 3 NWLR pt. 1020 Pg. 127; NIC V. ACEN INS. CO. LTD (2007)6 NWLR Pt. 1031 pg. 589. She then urged this court to resolve the issue in favour of the Respondent.
There are two legs to the issue. First, the complaint made out by the grounds of appeal, issue submitted for determination and arguments thereon are hinged on the portion of the ruling of the trial Judge at page 96 of the Records when the court held as follows:
“I have gone through the submissions of learned Counsel and have perused the Statement of Defence and Counter-claim. I am of the opinion that the case should be heard on its merit. To strike out the Defendant’s statement of defence and counterclaim is to shut her out. In the interest of justice, parties must be heard Audi Alterem Partem.”
Learned Appellants’ counsel with the greatest respect was being economical with the truth when he argued that the learned trial judge did not review the evidence. On page 95- 96 of the record the learned trial judge had reviewed the submissions of the learned Appellants’ counsel as follows:
“In moving this Application Albert Esini, counsel to the Applicant argued that the Statement of Defence viewed in its entirety does not strictly confine itself to the allegation made in the Statement of Claim thereby not meeting the specifics of the allegation in the Statement of claim nor attempting a rebuttal of the cause of action.
He further submitted that a competent Statement of Defence must show a reasonable defence in compliance with legal requirements. Learned Counsel referred to the case of P.B. Nig. Ltd. V. O.K. contact Paint Ltd. 2001 9 NWLR pt. 717 pg. 80. Counsel further argued that the Counter Claim is merely ancillary to the defence and ought to be struck out along with the defence as there is nothing for the Counter Claim to stand upon.
Finally, Learned Counsel submitted that it will be against the speedy hearing of this case to have recourse to the Statement of Defence which will delay the fair trial of the case and as such hamper speedy dispensation of justice. He referred to the case of Ezechukwu V. Onwuka 2000 2 NWLR pt. 963, 151.”
There is no doubt that where a court does not consider the submission of any party before arriving at its decision, then it could not be said to have done justice to the party. See IROLO V. UKA (2002) 14 NWLR Pt. 786 Pg. 195 @ 225. Where as in this case, the court set out extensively the gravamen of the complaint of the party in their application and arrived at a conclusion that the motion was without merit and that the substantive case should be heard on the merit, I cannot find fault with such a conclusion. The attack is more against the method of writing judgment utilized by the trial judge. I do not think the judge needed to show more than the fact that the argument of counsel had been considered, which was done in this case. A judgment will not be set aside on proof that one or more of the ingredients of a good judgment are missing unless it is shown that such an omission resulted in total miscarriage of justice. See ATTORNEY GENERAL OF THE FEDERATION & ORS V. ALHAJI ATIKU ABUBAKAR (2007) 4 SCNJ 456. Thus, judgment writing is an art which depends on a writer’s peculiar style and method. As long as a judgment contains the essential parts, it is a valid judgment. See OLUMOGBA & ORS V. ISRAEL J. ONWUZO & ANR (2005) 6 SCNJ 83.I agree that the Appellants seem to have forgotten the nature of the application before the learned trial judge. It was a motion in which he was to determine whether the Defendant now Respondent had made a viable defence in her statement of defence. It is obvious, as stated by the learned Respondent’s counsel in paragraph 2.07 of the Respondent’s brief that the Appellants’ attack on the trial Judge’s ruling did not take cognizance of the fact that the ruling on appeal was an interlocutory decision and by practice, the trial court is not required to make adverse findings on the merits or the state of the pleadings of a party as that may prejudge the case. No Judge is required, at an interlocutory stage, to reach decisions that will affect the subsequent adjudication of a substantive suit. See the case of NWANNEWUIHE V. NWANNEWUIHE (2007) 16 NWLR (Pt. 1059) 1. See also the case of N.B.A V. ODIRI (2007) 8 NWLR (Pt. 1035) 203. The trial judge’s ruling which did not therefore, make detailed findings at that stage, is therefore valid.
I am also of the firm view that the issue of miscarriage of justice does not arise at all in this case. That aspect of the issue is resolved against the Appellant.
The 2nd leg of this issue relates to the contention of the Appellant that the Respondent’s statement of defence did not address the allegations made in the Appellants’ statement of claim.
The Appellants in paragraphs 3 – 5 of the statement of claim on pages 3 – 4 of the record had alleged that they were shut out by the trial court in suit No ID/741/2000 since the court did not give them an opportunity of giving their final address before judgment was delivered against them. They had claimed that the trial court should set aside the judgment in suit ID/741/2000 for being null and void and of no effect. It is to be noted that the Appellants filed a 6 paragraph sparse statement of claim to which the Respondents filed a 9 paragraph and detailed defence and counter claim. It is in my view that at page 16 – 17 of the record, the Respondent’s paragraphs 3-5 made a frontal and categorical traverse of the allegations contained in the statement of claim.
I am also of the view that the flag of miscarriage of justice being waved by the learned Appellants’ counsel with the greatest respect tantamount to brewing a storm in a tea pot. Before a finding that a miscarriage of justice has occurred can be made by this court, we must be satisfied that the mistake, (there is no concession to one here) was substantial and has adversely affected the rights of the Appellants and not a mere technicality. That is not so in this case. This leg of the issue is also resolved against the Appellants.
This interlocutory appeal is totally without merit. The ruling of the trial court is affirmed. N50, 000 costs against the Appellants for the Respondent.
RITA NOSAKHARE PEMU, JCA: I had the privilege of reading in draft, the judgment of Hon. Justice Helen Moronkeji Ogunwumiju JCA, and I agree with the reasoning and conclusions.
The Interlocutory appeal is devoid of merit, and the Ruling of the trial court of the 25th day of June, 2009 delivered by Hon. Justice Nwaka, sitting at the High Court of Lagos state in Ikeja, is hereby affirmed.
I subscribe to the consequential order made that there shall be costs of N50, 000.00 against the Appellant and in favour of the Respondent.
MOHAMMED DANJUMA, JCA: I have read the lead Judgment of my lord, Helen Moronkeji Ogunwunmiju JCA, and agree entirely that this interlocutory appeal lacks merit and must fail. The learned trial Judge had given the Plaintiff/Appellant a right of fair hearing when he considered the defence filed by the present Respondent and ruled that the matter be proceeded with on its merit.
The complaint on the manner of arrival at that decision has no basis as the merit of the defence was not, after all, to be dealt with at that interlocutory stage as sought.
The Ruling is also affirmed by me and the order, as to costs made in the lead Judgment.
Appearances
For Appellant
AND
For Respondent
