OKANLAWON BADA & ANOR v. JAMES ATUNBI & ANOR
(2011)LCN/4324(CA)
In The Court of Appeal of Nigeria
On Thursday, the 24th day of February, 2011
CA/L/554/2007
RATIO
SETTING ASIDE OF JUDGEMENT: DUTY IMPOSED ON THE APPELLANT IN AN APPLICATION TO SET ASIDE OF A JUDGMENT
To succeed in their application to set aside judgment, otherwise validly entered by the lower court, the appellants had a duty to satisfy requirements enumerated in Sanusi v Ayoola (supra), in which law was developed beyond what it was in the earlier pronouncement in Williams v Hope Rising (supra). In fact common sense dictates that the appellants ought to inter alia disclose the nature of their defence to show some seriousness in defending the suit, which would convince the lower court to set aside its judgment. Failure on the appellants’ part to disclose any defence to justify their application for setting aside the judgment has fatally flawed that motion. PER HUSSEIN MUKHTAR, J.C.A.
HEARING NOTICE: DUTY OF COURT WHEN RESUMING THE HEARING OF A CASE, AFTER DISRUPTION OF HEARING, TO NOTIFY THE PARTIES OF THE NEW DATE FIXED FOR HEARING
…the principle of law regarding setting aside judgment are to the effect that the court has a duty when resuming the hearing of a case after disruption of hearing, to notify the parties of the new date fixed for hearing. The duty on the court to notify litigants of hearing date is a constitutional one by virtue of section 36 of the 1999 Constitution which guarantees every person the right to fair hearing including the right to be notified of the hearing date. The appellants’ counsel submitted that the failure to serve hearing notices on the appellants regarding the hearing date amounted to an infraction of their right to fair hearing and the lower court ought to have granted their application to set aside the judgment obtained without putting them on notice. He urged the court to resolve this issue in favour of the appellants. However, the respondents’ counsel contended that both parties were present in court upon resumption of proceedings on the 27th April, 1993 when Fernandez, J returned from the official assignment. The learned trial judge fixed the case for hearing on the 29h June, 1993. It is, however, on record that the court did not sit on the said 29th June, 1993 and there was no evidence that a new hearing date fixed in the presence for the appellants or was communicated to them. I am therefore unable to share the views of the respondents’ counsel that the principles of law in Queen Omabuwa v Owhofatsho (supra) and Shell Petroleum Development Co. v Niger Optical Services (supra) are not applicable to this case. In these two cases, like the instant one, the proceedings and judgment delivered were nullified due to failure or omission on the part of the court to serve hearing notices on one of the parties. In fact the court lacks jurisdiction to hear the case without notifying both parties unless they were both in court when the case was adjourned. Any further adjournment must be communicated to the party absent from court by service of hearing notice on him. In the instant case both counsel were in court on the 27th April, 1993 after a long break in the proceedings due to the absence of the learned trial judge, who fixed hearing in the matter on the 29th June, 1993. However, on that day the learned trial judge could not sit. Any new date fixed later by the court must be communicated to both parties. The failure of the court to do so in respect of the appellant is a fundamental omission which renders the proceedings so conducted and the judgment entered null and void and entitles the appellant to have it set aside. This court in S.P.D.C. Nig Ltd v Niger optical services co. (supra) at p 435 paras G-H per Ikongbe, JCA observed thus: “The duty of getting the hearing of a case back on track after disruption is on the court, not on the litigant or his lawyer. The court is to notify the parties of the new date fixed after the disruption of hearing’ The defendant’s duty to appear in court on the date notified to it to defend the plaintiff’s action does not become due until the court performs its own, that is, informs him of the new date. Therefore, where the court is in default of this primary duty, it cannot justifiably hold the defendant to its own duty which is only secondary.” The learned Jurist further observed at p.439 para A-F as follows: “A court must be willing to go an extra mile in satisfying itself that a party to a case has a notice of the hearing date. In doing so, the court would have exercised the requisite caution and satisfied itself that indeed, the parties had due notice. Although this may appear to be an over-indulgence of the parties, but it is a price desirable to pay in the quest to attain maximum justice. Thus, where parties are repeatedly absent in court, the only procedure to take is to issue a hearing notice.” The appellants’ motion for setting aside the judgment entered without placing them on notice of the hearing proceedings ought to have been granted in the circumstances because the proceedings and the judgment were null and void. PER HUSSEIN MUKHTAR, J.C.A.
JUSTICES
HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria
JOHN INYANG OKORO Justice of The Court of Appeal of Nigeria
MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria
Between
1. OKANLAWON BADA
2. ALHAJA SINATU BADA (Iya Okanlawon) Appellant(s)
AND
1. JAMES ATUNBI
2. GABRIEL ATUNBI (for themselves and on behalf of the other children of the LATE AFITUS OYINLOYE ATUNBI -Deceased) Respondent(s)
HUSSEIN MUKHTAR, J.C.A.(Delivering the Leading Judgment): This is an appeal against the ruling of the High court of Lagos state (the lower court) delivered by Honourable Justice O.A. Taiwo on the 4th October 2006 refusing to set aside the judgment of the lower court earlier delivered on the 2nd November, 1993 by Honourable Justice E. Akin Fernandez, which has not been appealed against.
The ruling appealed against emanated from the respondents’ suit as claimants against the appellants as defendants in the lower court claiming the following reliefs:
“i The sum of N50,000.000 damages against the defendant or their servants or agents on the land of the plaintiffs lying and situate at No. 28 Mission Street, Amukoko
ii An injunction against the two defendants restraining them, their servants and or agents from committing further acts of trespass on the said land.”
The appellants as defendants filed a memorandum of appearance but did not file a statement of defence. The case suffered delay for over one year as a result of the Presiding Judge Honourable Justice Fernandez proceeding on an official assignment in Enugu. The case was not mentioned from 29th January, 1992 until 27th April, 1993 when Fernandez, J resumed sitting in the matter, on which date both parties were represented by counsel in court. The case was fixed for hearing on the 29th June, 1993 but the court did not sit on that day because the Judge had to see his doctor that same day. The case was then adjourned to 2nd November, 1993 on which day the appellants and their counsel were absent while the respondents were in court and represented by their counsel. The lower court proceeded to hear the case on that day and delivered judgment in favour of the respondent.
The appellants, however, neither complied with the judgment nor appealed against it. To the contrary the appellant proceeded to erect a building on the land and put tenants there at, which made the respondents to initiate contempt proceedings against the appellants.
The appellants filed a motion to set aside the judgment at the lower court dated 23rd March, 1995 which was struck out on the 21st March, 1996 for want of deligent prosecution . The appellants filed a similar motion which suffered the same fate. The appellants yet filed another similar application to set aside the judgment dated 27th March, 2006 which they prosecuted. The lower court in a well considered ruling delivered on the 4th October, 2006 struck out the motion. The appellants were dissatisfied and brought this appeal against the said ruling on the following two grounds:
“1. The learned trial judge erred in law by refusing an application to set aside a default judgment on the ground that there was no statement of defence filed.
2. The learned trial judge erred on the application of the decisions in Queen Omabuwa vs Madam Martha Owhofatsho (2006) 5 NWLR pt. 972 Pg. 40; The Shell Petroleum Development Company of Nig Ltd vs Niger Optical Services Co. Ltd. (2004) 7 NWLR pt 872 pg. 40 and thereby came to a wrong conclusion by refusing the appellant’s application.”
The appellants asked for the following relief:
“i An order setting aside the judgment of Hon. Justice Akin Fernandez delivered on the 2nd of November, 1993
ii An order directing that the suit (i.e. suit No. LD/293/89) be tried on its merit.”
The appellant’s counsel Tajudeen M. Kareem, Esq has distilled two issues for determination from the grounds of appeal which have been adopted by the learned counsel for the respondents F. Ibironke Kazeem, Mrs, thus:
“1. Whether or not the filing of a statement of defence is a matter for consideration when determining the grant or refusal of an application to set aside a judgment
2. Whether or not the learned trial judge correctly applied the principles of law as stated in:
Queen Omabuwa v. Madam Martha Owhofatsho (2006) 5 NWLR pt.972 pg. 40
The Shell Petroleum Development Company of Nig Ltd Vs Niger Optical Services Co. Ltd. (2004) 7 NWLR pt 872 pg. 40 to the fact of this case and came to a right conclusion.”
On the first issue the learned counsel for the appellants referred to the Supreme Court decision in Williams v Hope Rising (1982 1-2 SC 145 as locus classicus where the Apex Court stated the conditions for setting aside judgment of court as follows:
“a) Whether or not the applicant has good reason for being absent at the trial.
b) Whether or not the applicant has good reason for filing the application late.
c) Whether or not the respondent will not be prejudiced by the grant of the application.
d) Whether or not the applicant’s case is supportable.
e) Whether or not the applicant’s case is deserving of sympathetic consideration.”
The appellant’s counsel contended that the reason given by the lower court for declining to set aside the judgment was failure of the appellant to file a statement of defence. He quoted the following part of the judgment:
“Furthermore, from the affidavit in support of this application there is no indication from the applicant as to the nature of his defence. Although he claims to have filed a statement of defence and counter claim there is no such process in the court’s file. There will be no point in setting aside the judgment if there is no tenantable defence to the claim.”
It was submitted for the appellant that the issue of filing or non filing a statement of defence swayed the mind of the judge which should not be relevant.
He urged the court to resolve this issue in favour of the appellant.”
The respondents’ counsel similarly cited the guiding principles for setting aside court’s own judgment as set out in Williams v Hope Rising (supra). He also cited a much later decision of the Supreme Court in Sanusi v Ayoola (1992) 9 NWLR (pt.265) 275 which sets out broader conditions or circumstances under which the lower court may set aside its own judgment per Karibi-Whyte, JSC at pages 294 -295 paras H-D as follows:
“An application under order 32 rule 4 of the High Court of Lagos State (Civil Procedure) Rules, 1972 will be competent, where the following considerations which the judge before whom such an application is brought it entitled to rely on as constituting sufficient materials for the exercise of his discretion, are present:
a. The applicant must show good reasons for being absent at the hearing;
b. The application must be brought within the prescribed period of six days;
c. Where the application is brought after 6 days of the delivery of the judgment, the applicant must apply for extension of time to bring the application, and give good reasons for his inability to bring the application to set aside the judgment within the six days prescribed under the rule;
d. The applicant must show that there is an arguable defence to the action, which is not manifestly unsupportable.
e. The applicant’s conduct throughout the trial must not be such as is condemnable but is deserving of sympathy;
f. where the judgment is shown to be tainted with fraud or is irregularly obtained;
g. Where the judgment was given for an amount in excess of what was due and claimed;
h. The applicant must show that the respondent will not suffer any prejudice or embarrassment if the judgment is set aside.
In the instant case, none of the considerations listed above could be resolved in favour of the appellant.”
The respondents’ counsel submitted that the above conditions have not been satisfied by the appellant. He said that in the absence of a statement of defence, the lower court was right in refusing to set aside its judgment entered in favour of the respondents. He urged the court to resolve this issue in favour of the respondents and against the appellants.
To succeed in their application to set aside judgment, otherwise validly entered by the lower court, the appellants had a duty to satisfy requirements enumerated in Sanusi v Ayoola (supra), in which law was developed beyond what it was in the earlier pronouncement in Williams v Hope Rising (supra). In fact common sense dictates that the appellants ought to inter alia disclose the nature of their defence to show some seriousness in defending the suit, which would convince the lower court to set aside its judgment. Failure on the appellants’ part to disclose any defence to justify their application for setting aside the judgment has fatally flawed that motion. The appellants’ motion before the lower court to set aside the judgment was apparently nothing more than a mere ploy to buy time. Certainly the application as held by the lower court did not satisfy the criteria for setting aside the court’s own judgment. This issue is accordingly resolved against the appellants. The second issue questions whether the learned trial Judge correctly applied the law as stated in: Queen Omabuwa v Madam Marta Owhofatsho (2006) 5 NWLR (pt. 972) 40. The Shell Petroleum Development Company of Nig Ltd v Niger Optical Services Co. Ltd (2004) 7 NWLR (pt.872) 420.
In both cases above the principle of law regarding setting aside judgment are to the effect that the court has a duty when resuming the hearing of a case after disruption of hearing, to notify the parties of the new date fixed for hearing. The duty on the court to notify litigants of hearing date is a constitutional one by virtue of section 36 of the 1999 Constitution which guarantees every person the right to fair hearing including the right to be notified of the hearing date. The appellants’ counsel submitted that the failure to serve hearing notices on the appellants regarding the hearing date amounted to an infraction of their right to fair hearing and the lower court ought to have granted their application to set aside the judgment obtained without putting them on notice. He urged the court to resolve this issue in favour of the appellants.
However, the respondents’ counsel contended that both parties were present in court upon resumption of proceedings on the 27th April, 1993 when Fernandez, J returned from the official assignment. The learned trial judge fixed the case for hearing on the 29h June, 1993. It is, however, on record that the court did not sit on the said 29th June, 1993 and there was no evidence that a new hearing date fixed in the presence for the appellants or was communicated to them. I am therefore unable to share the views of the respondents’ counsel that the principles of law in Queen Omabuwa v Owhofatsho (supra) and Shell Petroleum Development Co. v Niger Optical Services (supra) are not applicable to this case. In these two cases, like the instant one, the proceedings and judgment delivered were nullified due to failure or omission on the part of the court to serve hearing notices on one of the parties. In fact the court lacks jurisdiction to hear the case without notifying both parties unless they were both in court when the case was adjourned. Any further adjournment must be communicated to the party absent from court by service of hearing notice on him.
In the instant case both counsel were in court on the 27th April, 1993 after a long break in the proceedings due to the absence of the learned trial judge, who fixed hearing in the matter on the 29th June, 1993. However, on that day the learned trial judge could not sit. Any new date fixed later by the court must be communicated to both parties. The failure of the court to do so in respect of the appellant is a fundamental omission which renders the proceedings so conducted and the judgment entered null and void and entitles the appellant to have it set aside. This court in S.P.D.C. Nig Ltd v Niger optical services co. (supra) at p 435 paras G-H per Ikongbe, JCA observed thus:
“The duty of getting the hearing of a case back on track after disruption is on the court, not on the litigant or his lawyer. The court is to notify the parties of the new date fixed after the disruption of hearing’ The defendant’s duty to appear in court on the date notified to it to defend the plaintiff’s action does not become due until the court performs its own, that is, informs him of the new date.
Therefore, where the court is in default of this primary duty, it cannot justifiably hold the defendant to its own duty which is only secondary.”
The learned Jurist further observed at p.439 para A-F as follows:
“A court must be willing to go an extra mile in satisfying itself that a party to a case has a notice of the hearing date. In doing so, the court would have exercised the requisite caution and satisfied itself that indeed, the parties had due notice. Although this may appear to be an over-indulgence of the parties, but it is a price desirable to pay in the quest to attain maximum justice. Thus, where parties are repeatedly absent in court, the only procedure to take is to issue a hearing notice.”
The appellants’ motion for setting aside the judgment entered without placing them on notice of the hearing proceedings ought to have been granted in the circumstances because the proceedings and the judgment were null and void. The lower court was therefore not only entitled but also duty bound to set aside its null judgment. The non filing of statement of defence is only relevant in an application to set aside a valid judgment, which is inapplicable to the circumstances of this case. It has therefore been reduced to insignificance. This issue is resolved in favour of the appellant and the appeal scores a pass mark. The appeal is meritorious and accordingly succeeds in part.
In allowing the appeal, the ruling delivered by the lower court on the 4th October 2006 refusing the application to set aside its void proceedings and judgment of 2nd November 1993 shall be and is hereby set aside. In its stead the said null proceedings and judgment of the lower court of 2nd November 1993 are hereby set aside. It is further ordered that the suit No. ID/2293/89 be re assigned by the Chief Judge of Lagos State to another Judge for fresh trial de novo and due determination thereof.
No order is made as to costs.
JOHN INYANG OKORO, J.C.A.: I read before now the lead Judgment of my learned brother, Mukhtar, JCA and I agree that this appeal has merit and ought to be allowed. The cases of Queen Omabuwa v. Madam Martha Owaofatsho (2006) 5 N.W.L.R. (pt.972) 40 and The Shell Petroleum Development Company of Nig. Ltd. v. Niger Optical Services Co. Ltd. (2004) 7 N.W.L.R. (Pt.872) 420 cited by the Appellants in their brief are quite clear on the issue of issuance of hearing notice to parties. It is trite that where, due to exigencies of duty or any other disruptions, a court is unable to sit on the date which a matter was earlier fixed for hearing, parties to the case are entitled to be served a Hearing Notice as regards the new date fixed for hearing.
Where a court, in the circumstance as stated above, sits to determine a matter without prior notice of the hearing date on the parties or one of the parties, such proceedings, including the Judgment obtained therefrom ought to be set aside on application of the party not served, since the Judgment itself is a nullity. In the instant case, the Appellants’ right to fair hearing was denied them when the learned trial Judge heard the case without notifying them of the date of hearing.
Based on the above reasons and the fuller ones contained in the lead Judgment, I hereby agree that this appeal be allowed. I abide by all the consequential orders made in the lead Judgment. I also make no order as to costs.
MOHAMMED AMBI-USI DANJUMA, J.C.A.: I have read before now, the read Judgment rendered by my Lord Mukhtar, JCA and I agree with the Judgment so lucidly written to the effect that where a part is not served a hearing notice against a date fixed for the hearing of a matter that was not adjourned or fixed while the party or his representative/counsel was present in court, such proceedings including judgment subsequent thereto is a nullity and ought be set aside – on the application of the party not served as it is a denial of the right of fair hearing and consequent lack of jurisdiction on the court.
In the fight of the aforesaid and the more detailed reasons given in the lead Judgment, I too agree that the appeal has merit and should be allowed.
I allow the appeal and abide by the consequential orders made that is to say that both Ruling of 4th October, 2006 refusing to set aside the null proceedings and the Judgment of the and day of November, 1993 respectively are set aside.
I also subscribe to the order that a hearing de novo before a different Judge to be assigned by the Chief Judge of Lagos State shall be conducted.
Appearances
T. M. KareemFor Appellant
AND
Chief F. I. Kazeem (Mrs)
With (1) M. U. Odebeatu,
A.O. OdubonaFor Respondent
