PRINCE NNAMDI E. UBAH V. CHIEF INNOCENT OKAFOR
(2013)LCN/6195(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 14th day of May, 2013
CA/E/157/2009
JUSTICES
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria
EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria
Between
PRINCE NNAMDI E. UBAH – Appellant(s)
AND
CHIEF INNOCENT OKAFOR – Respondent(s)
RATIO
WHETHER OR NOT ISSUES FOR DETERMINATION MUST ARISE FROM THE GROUNDS OF APPEAL
It is now established that an issue formulated in an appeal must emanate from or relate to the grounds of appeal failing which the issue will be incompetent and irrelevant to the determination of the appeal, and will be liable to be struck out. See ALHAJI ANIMASAUN V. UNIVERSITY COLLEGE HOSPITAL (1996) 10 NWLR (PT.476) 65; ALHAJI KARI V. ALHAJI GANAYAM (1997) 2 NWLR (PT. 488) 330: OSINUPEBI V. SAIBU (1982) 7 SC 104: WESTERN STEEL WORKS LTD V. IRON & STEEL WORKERS UNION (NO. 2) (1987) 1 NWLR (PT. 49) 284. PER AKEJU, J.C.A.
WHETHER OR NOT DECLARATORY RELIEFS ARE GRANTED WITHOUT THE CLAIMANT’S ORAL TESTIMONY
It is indeed settled law that a declaratory relief will not be granted without oral testimony from the claimant or through his witness. See OGBONNA V. ATTORNEY GENERAL IMO STATE (1992) 1 NWLR (PT. 220) 647: OGOLO V. OGOLO (2006) ALL FWLR (PT. 313) 1. PER AKEJU, J.C.A.
WHERE A JUDGMENT IS SAID TO BE ON MERIT
In the words of Oputa JSC in CARDOSO V. DANIEL & ORS (1986) 2 NWLR (PT. 20) 1 at 45;“A judgment is said to be on the merits when it is based on the legal rights of the parties as distinguished from mere matters of practice, procedure, jurisdiction or form. A judgment on the merits is therefore a judgment that determines, on an issue of law or fact, which party is right.”See also U.T.C. V. PAMOTEI (2002) FWLR (PT. 129) 1557 at 1609 where Karibi-Whye JSC adopted the above definition and explained default judgment as follows: “The word default which qualifies the noun “judgment” as used in this appeal seems to me to mean a judgment obtained by a plaintiff in reliance on some omission on the part of the defendant in respect of something which he is directed to do by the rules. The word is used very widely to signify situations where a person has omitted to do what he is required to do having regard to the law governing his actions to the relations he occupies.” PER AKEJU, J.C.A.
WHETHER OR NOT THE APPELLATE COURT CAN INTERFERE WITH THE EXERCISE OF DISCRETION BY THE TRIAL COURT
The general principle is that where a trial court has judicially and judiciously exercised its discretion in a particular matter the appellate court will not interfere with the discretion so exercised. Where however the discretion has been exercised without regard to the relevant facts or law and has occasioned a miscarriage of justice, it is the duty of the appellate court to correct the injustice. See PRESIDENT OF IBADAN PROVINCE V. OLAGUNJU (1954) 14 WACA 549: ROYAL EXCHANGE ASSURANCE (NIG.) LTD. V. ASWANI ILES LTD. (1992) 3 NWLR (PT. 227) 1: EFETIROROJE V. OKPALEFE II (1991) 5 NWLR (PT. 193) 517. PER AKEJU, J.C.A.
ISAIAH OLUFEMI AKEJU, J.C.A. (Delivering the Leading Judgment): Through the Writ of summons filed with the Statement of Claim on 6/12/2007, the respondent in this appeal commenced Suit No. HID/147/2007 at Idemili Judicial Division of the High Court of Anambra State, sitting at Ogidi for the reliefs averred in paragraph 11 of the Statement of Claim as follows:-
a. Declaration that the plaintiff is, subject to the Land Use Act, 1978, the owner in possession of the piece and parcel of land known as Ogbonmee land and situate at Obosi in Obosi now in dispute and is therefore entitled to the grant of Building Certificate of Occupancy (Statutory) over same.
b. N100,000.00 (One Hundred Thousand Naira) damages for trespass.
c. Perpetual injunction restraining the defendant, his servants, agents, privies, workers or persons taking instruction from him from trespassing or further trespassing into the plaintiff’s land now in dispute or in any manner whatsoever interfere with the possessory rights of the plaintiff.
The statement on Oath of the plaintiff as the listed witness was also filed with the claim.
The originating processes were served on the appellant who was the defendant while the respondent subsequently filed forms 17 and 18 at the trial court for pre-trial conference to which the appellant did not file answers. At the proceedings of 16/7/2008, the learned trial judge entered judgment in favour of the respondent as per his claim upon oral application by the learned Counsel for the respondent for failure to file pre-trial conference papers.
The appellant filed a motion on notice on 22/7/2008 for the order of the trial court setting aside the judgment entered against him on 16/7/08 in default of filing pre-trial conference information forms, and that court after hearing arguments of the learned Counsel for the parties dismissed the application in the ruling delivered on 27/2/2009.
Being dissatisfied with the ruling, the appellant commenced the instant appeal by filing the Notice of Appeal on 27/2/09 with three grounds of appeal, and in pursuance of the appeal, the Appellants Brief settled by Chugobo Enwezor Esq. of Counsel was filed on 24/8/09 but deemed properly filed on 12/1/10. In response thereto, the Respondent’s Brief prepared by C.N. Ofodum Esq. the learned Counsel for the respondent was filed on 3/2/10.
In the Appellant’s Brief. The following two issues were formulated for the determination of the appeal, and argued by the learned Counsel.
1. Whether the learned trial judge was right in law and or exercised his discretion judicially and judiciously when he solely relied on Order 20 Rules 9 and 12 of the High Court of Anambra State (Civil Procedure) rules 2006 to dismiss an application to set aside judgment entered under Order 25 Rule 6 (b) of the same rules? Grounds 1 and 2.
2. Whether in a claim for declaration of title over land the learned trial judge was right in granting default judgment without any evidence by the respondent in support of the declaration sought? Ground 3.
Without expressly stating so, the respondent adopted the above two issues for determination and the learned Counsel also proffered arguments thereon.
On the first issue, the learned Counsel for the appellant contended that though the appellant and his Counsel were in court on 16/7/08, the learned trial judge peremptorily entered judgment for the respondent, without calling for any response by the appellant to the oral application for judgment made pursuant to Order 25 Rule 6 (b).
It was contended also that while the appellant filed the application for setting aside the trial courts’ judgment within 7 days of the decision and accompanied same with the written address and undertaking to participate effectively at the pre-trial conference, all in compliance with the rules, the learned trial judge ignored all the issues raised in those processes and dismissed the application placing reliance on Order 20 Rule 9 of High Court of Anambra (Civil Procedure) rules 2006 whereas the application for judgment was made pursuant to Order 26 Rule 9 of those Rules which was also the basis for the default judgment.
It was submitted that Order 20 Rule 9, which authorizes the court to give judgment in default of pleadings which may be set aside under Rule 12 of that order will not be applicable to an application brought under Order 25 rule 6 (b) for setting aside of judgment in default of participation in the pre-trial conference. The case of INVESTORS INTERNATIONAL (LONDON) LTD V. FIRST BANK OF NIGERIA PLC (2008) 10 NWLR (PT. 1096) 427 was cited and relied upon.
The learned Counsel submitted that by the failure to consider the provisions of Order 25 rule 6 (b) of the High Court of Anambra State (Civil Procedure) Rules 2006, the learned trial judge failed to exercise her discretion judicially and judiciously having acted under a misconception of law, and the decision arrived at is liable to be set aside on appeal, citing UNIVERSITY OF LAGOS V. AIGORO (1985) 1 NWLR (PT. 1) 143.
It was contended that Order 20 Rule 12 makes general provision for setting aside of judgment in default of defence while Order 25 rule 6 which is the relevant provision to this case is to take care of a special situation of the setting aside of judgment entered in default of filing pre-trial conference papers. The learned Counsel submitted that where a special provision is made to govern a particular subject-matter, and a general provision is made purporting to affect the same subject-matter the special provision is excluded from the operation of the general provision, citing MARTIN SCHRODER OF CO. V. MAJOR COMPANY (NIG) LTD (1989) 2 SC 138; ATTORNEY GENERAL FEDERATION V. ABUBAKAR (2007) 10 NWLR (PT. 1041) 1.
On this issue the respondents’ Counsel contended that the learned trial judge rightly exercised his discretion by relying on Order 20 Rule 12 of the High Court (Civil Procedure) Rules to dismiss the application to set aside the judgment in default of defence and other processes for pre-trial Conference under Order 25 of the same Rules since the provisions of the two Orders deal with circumstances in which a party has failed to take necessary steps for the expeditions disposal of a matter pending in court. The two orders therefore deal with pre-trial issues and judgments given in default by a defendant to file necessary processes, and both are aimed at early disposal of matters where a defendant attempts to frustrate the case. The circumstances of this case necessitated the reliance by the trial court on both Orders 20 and 25 of the rules or any of them. The learned trial judge, as contended by Counsel appropriately entered judgment against the appellant who despite coming to court with his Counsel failed to file the required processes within the statutory period.
The learned Counsel submitted that a motion for an order to set aside a default judgment is not granted as a matter of course as it calls for the exercise of the court’s discretion and discretion is not exercised arbitrarily but both judicial and judiciously, citing NNPC V. FAMFA OIL LTD (2009) 12 NWLR 9 (PT. 1156) 452. It was contended that the decision of the learned trial judge refusing to set aside the judgment in default in the instant case is judicious having been based on sound judgment and marked by wisdom and good sense in the peculiar circumstances of the case.
It was contended also that the reason adduced by the appellant that it was his Counsel who failed to file the processes is unreasonable in that he ought to have demanded from the counsel what he had filed instead of placing reliance on Counsel’s assurances. It was submitted that the appellant could not rely on the principle that the error or omission by Counsel cannot be visited on the litigant since one of the qualifications is where there is deliberate negligence of both the litigant and his Counsel, or even the Counsel, citing EMMANUEL V. GOMEZ (2009) 7 NWLR (PT. 1139) 1.
The learned Counsel submitted that even if the learned judge had erroneously relied on Order 20 Rule 12 to dismiss the appellants’ application, such an error will not lead to a reversal of that decision since the error is not substantial and there has been no miscarriage of justice; citing ODUKWE V OGUNBUYI (1998) 8 NWLR (PT. 561) 339. SULE v. STATE (2009) 17 NWLR (PT. 1169) 33.
According to learned Counsel, the argument that it was wrong for the learned judge to have relied on Order 20 Rules 9 and 12 is misconceived in that Order 20 rule 12 is of general application to all default judgment and it is not excluded by Order 25 Rule 6 (b). The learned judge was therefore at liberty to rely on Order 20 rule 12 or to combine the provision with Order 25 Rule 6 (b) and no error was committed to warrant the ruling of the trial court being set aside on appeal.
Both counsel also argued the second issue which is whether in a claim for declaration of title over land the learned trial judge was right in granting default judgment without any evidence by the respondent in support of the declaration sought.
Appellant’s Counsel had contended that the appellant had through his then counsel filed a Statement of Defence, list of witnesses, statement on oath of witness, and list of documents on 25/1/2008, and the fact that the application by the respondent’s Counsel for judgment was under Order 25 Rule 6 (b) presupposes that a statement defence was in existence.
It was submitted that the learned trial judge was wrong to have entered judgment for the respondent granting declaration of title over land without any scintilla of evidence as a declaration of right is not made in favour of a party unless he has led evidence satisfying the court that he is entitled to the declaration sought. The cases of BELLO V. EWEKA (1981) 1 SC 101; DUMEZ NIG LTD v. NWAKHOBA (2008) 18 NWLR (PT. 1119) 361; ADU V. GBADAMOSI (2009) 6 NWLR) PT. 1136) 110 AND DIM V. ENEMUO (2009) 10 NWLR (PT. 1149) 353 and MORTUNE V. BALONWU (2000) 5 NWLR (PT. 655) 87 were cited in support of the submission.
The learned Counsel submitted that it is a miscarriage of justice for the lower court to grant a declaration over and without any evidence and without allowing the appellant to react to the oral application for judgment.
On this issue the respondent had argued an objection that the issue does not arise from ground 3 of the notice of appeal and this court cannot consider the issue as formulated. The ground 3 of the appeal is deemed abandoned and this court is urged to strike out issue 2 and all arguments thereon.
In the event of failure of the above objection, the learned Counsel contended that the trial court was right when he entered default judgment in favour of the respondent in a claim which include a declaratory relief, without taking evidence the judgment being in line with the rules of court which do not require the trial judge to take evidence before granting declaratory reliefs. It was submitted that courts are bound to obey and follow the rules, citing ORAKUL RESOURCES LTD V. NCC (2007) 16 NWLR (PT. 1060) 281; A.E. SKULD V. SEALION (2006) 5 NWLR (PT. 973) 290; BAYERO V. MAINASARA & SONS LTD (2006) 8 NWLR (PT. 952) 399 and SALAMI V. YAHYAH (2009) 17 NWLR (PT. 117) 581.
In another vein, the learned Counsel submitted that even if it was wrong for the learned judge to have granted declaration without taking evidence, such an error is not substantial because there were other reliefs granted by that court which can still sustain the judgment.
It was contended by Counsel that the assertion of the appellant’s Counsel that statement of defence and other processes were filed on 25/1/08 is not borne out by the record as no such processes existed in the file as at January, 2008 and this is also confirmed by the affidavit of the appellant in support of the motion for setting aside of the judgment. It was contended also that the appellant was in court on the day the default judgment was delivered by the court, but neither he nor Counsel who represented him made any application to court and did not react which is an indication that they had nothing to urge the court, having failed to file any process in court after 7 months of service of the originating processes on the appellant.
The Appellants’ Reply Brief filed on 28/4/10 was deemed properly filed on 8/11/10. The learned Counsel Chugbo Enwezor Esq. who settled the brief argued that the preliminary objection as raised by the respondent is incompetent and should be discountenanced. He referred to Order 10 Rule 1 of Court of Appeal Rules, 2007 and form 11 of the Schedule to the Rules which he said was violated.
On the merit of the objection, the learned Counsel submitted that the record of appeal enjoys a presumption of correctness unless the contrary is proved and that parties are bound by the records before the court in an appeal, citing C.B.N. V. OKOGIE (2004) 10 NWLR (PT. 882) 488 and JIMOH V. OLAWOYE (2003) 10 NWLR (PT. 828) 307; O.O.M.F. LTD V. NACB LTD (2008) 12 NWLR (PT. 1098) 412.
The learned Counsel reiterated that the appellant filed a statement of defence on 25/1/08 on pages 69-75 of the record of appeal contrary to respondent’s argument.
The learned Counsel contended that issue 2 is well founded and based on a good ground of appeal.
It was argued that by the provision of Order 25 Rules 1 and 6 of the High Court of Anambra State (Civil Procedure) Rules 2006 (now called the rules), a plaintiff cannot file pre-trial conference papers i.e. forms 17 and 18 when a defendant has not filed a defence and it is only after compliance with Rule 1 (1) of Order 25 that a plaintiff can invoke Order 25 rule 6 (b) to obtain judgment where the defendant fails to participate at the pre-trial conference which judgment can be set aside on a proper application under Order 25 Rule 6 (b).
It was submitted that the judgment obtained by the respondent not being in default of pleadings under Order 20 Rule 9 of the rules, the trial court was wrong to have refused to set same aside under Order 25 Rule 6 (B) of the rules, citing UNIVERSITY OF LAGOS V. AIGORO (SUPRA) at 148.
It was submitted that a court of law cannot validly grant a prayer for declaration without the person seeking same leading evidence to satisfy the court that he is entitled to the declaration, and by ignoring this principle and refusing to set aside the judgment, in default the trial court did not act judiciously and judicially.
It was contended that the trial court ought to have exdebito justiciae set aside the default judgment of 16/7/2008 as it lacked jurisdiction to enter the judgment which was in breach of the principle of fair hearing as enshrined in Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 and therefore a nullity. The learned Counsel referred to the record of proceedings of the trial court on 28/4/08, 30/5/08, 20/6/08 and 16/7/08 when the judgment was delivered after the learned judge had suo motu adjourned the case for judgment. It was submitted that the court lacked jurisdiction to give the judgment of 16/7/08, citing ADIGUN V. ATTORNEY GENERAL OYO STATE (1987) 1 NWLR (PT. 53) 678.
At the hearing of the appeal both Counsel adopt their respective brie(s) of argument and accordingly urged that the appeal be allowed or dismissed as it may be applicable.
I should start my consideration of this appeal with issue No. 2 formulated by the appellant which has been the subject of an objection by the respondent on the ground that the issue does not arise from ground 3 of the grounds of appeal from which it was said to have been formulated.
The appellant’s Counsel has argued that the respondent’s objection as raised in the respondent’s brief is incompetent being in violation of Order 10 Rule 1 of Court of Appeal Rules, 2007.
It is now established that an issue formulated in an appeal must emanate from or relate to the grounds of appeal failing which the issue will be incompetent and irrelevant to the determination of the appeal, and will be liable to be struck out. See ALHAJI ANIMASAUN V. UNIVERSITY COLLEGE HOSPITAL (1996) 10 NWLR (PT.476) 65; ALHAJI KARI V. ALHAJI GANAYAM (1997) 2 NWLR (PT. 488) 330: OSINUPEBI V. SAIBU (1982) 7 SC 104: WESTERN STEEL WORKS LTD V. IRON & STEEL WORKERS UNION (NO. 2) (1987) 1 NWLR (PT. 49) 284.
There is no doubt that the respondent in the instant case gave sufficient notice of the preliminary objection at page 8 of the respondent’s brief filed on 3/2/10, argued same therein and a notice of preliminary objection also filed on 11/3/11 was served on the appellant before the hearing of the appeal. An objection is not rendered ineffective or incompetent because it has been raised in the brief of argument since the essence of a notice of objection either in the respondent’s brief or by filing a Notice of objection is to give notice of the objection to the affected party so as to avoid any surprise or embarrassment. See OKWUAGBALA V. IKWUEME (2010) LPELR 2538, (2010) 19 NWLR (PT. 226) 54; MAGIT V. UNIVERSITY OF AGRICULTURE MAKURDI (2006) ALL FWLR (PT. 298) 1313.
The respondent in this case having raised and argued the objection in the brief of argument and filed a Notice of Preliminary Objection has in my view given sufficient notice to the appellant and I therefore discountenance the appellant’s argument in that respect.
The consideration of the merit of the objection will entail a calm view of the issue No. 2 and the ground 3 of the grounds of appeal from which it was formulated.
Ground 3 of the grounds of appeal (without the particulars) goes thus;
“The learned trial judge erred in law when she failed to address the issues raised by Counsel that judgment cannot be entered upon declaratory relief without the plaintiff giving evidence to justify the declaration sought. And also that the whole default leading to the entering of the judgment was that of Counsel previously engaged by the appellant.”
I had earlier on in this judgment set out the issue No. 2 but for purpose of clarity and emphasis I will repeat it here. It states as follows:-
“Whether in a claim for declaration of title over land, the learned trial judge was right in granting default judgment without any evidence by the respondent in support of the declaration sought.”
It is my candid opinion that the issue now in contention fixes perfectly into the ground of appeal from which it has been formulated. It is not only related to that ground, it has been clearly and unambiguously formulated therefrom. I hold that issue no 2 in this appeal is a valid issue. The objection of the respondent therefore fails and it is dismissed.
Now the answer to this issue no 2 has been given in several decisions of the courts to the effect that a declaratory relief is not granted for failure to file pleadings or even upon admission in the pleadings where pleadings are filed, a party seeking a declaratory relief is in law required to adduce cogent, concrete and credible evidence sufficient to satisfy the court that such a party is entitled to the declaration sought.
See SSS V. AGBAKOBA (1999) 3 NWLR (PT. 595) 314: KODILLINYE V. ODU (1935) 2 WACA 336; IKEMEFUNA V. OKAGBUE (1994) 12 SCNJ 89.
It is indeed settled law that a declaratory relief will not be granted without oral testimony from the claimant or through his witness. See OGBONNA V. ATTORNEY GENERAL IMO STATE (1992) 1 NWLR (PT. 220) 647: OGOLO V. OGOLO (2006) ALL FWLR (PT. 313) 1.
In the instant case, the proceedings that led to the judgment of the court on 16-7-2008 is on pages 14-115 of the record of appeal. The (plaintiff’s) respondent’s Counsel had orally applied for judgment on the basis that the appellant as defendant who had been served with Forms 17 and 18 i.e. Pre-Trial Conference forms had not filed anything under Order 25 Rule 6 (b) of the Rules, and the court without hearing any evidence entered judgment as follows on page 115.
“Judgment is entered in favor of the plaintiff in this suit as per the claim of the plaintiff i.e. paragraph 11 a, b and c.”
There is no doubt that the judgment entered by the learned trial judge was not based on any evidence and therefore runs counter to the judicial decisions on the grant of a declaratory relief which is one of the reliefs sought by the respondent.
I resolve this issue in favour of the appellant.
The first issue in this appeal is whether the discretion of the learned trial judge was lawfully or judicially and judiciously exercised when he relied on Order 20 Rules 9 and 12 of the Rule to dismiss an application to set aside judgment entered under Order 25 Rule 6 (b) of the same Rules. The appellant had contended that the trial court was in error.
It is obvious from the records of this appeal that the judgment of the learned trial judge on 16/7/08 was as a result of failure by the appellant to comply with procedural steps as directed by the rules of court, the parties were not heard in evidence and their individual legal rights were not determined. The judgment is therefore not on merit but a default judgment. In the words of Oputa JSC in CARDOSO V. DANIEL & ORS (1986) 2 NWLR (PT. 20) 1 at 45;
“A judgment is said to be on the merits when it is based on the legal rights of the parties as distinguished from mere matters of practice, procedure, jurisdiction or form. A judgment on the merits is therefore a judgment that determines, on an issue of law or fact, which party is right.”
See also U.T.C. V. PAMOTEI (2002) FWLR (PT. 129) 1557 at 1609 where Karibi-Whye JSC adopted the above definition and explained default judgment as follows:
“The word default which qualifies the noun “judgment” as used in this appeal seems to me to mean a judgment obtained by a plaintiff in reliance on some omission on the part of the defendant in respect of something which he is directed to do by the rules. The word is used very widely to signify situations where a person has omitted to do what he is required to do having regard to the law governing his actions to the relations he occupies.”
Let me at this stage consider fully the proceedings that led to the judgment of 16/7/08 which the appellant sought to set aside and the ruling of the learned trial judge that led to this appeal as a result of the dismissal of the application.
The proceedings of 16/7/08 is on page 115 of the record of appeal and it goes thus:
“Parties present.
H.N.C. Muoghalu for plaintiff.
U.E. Anwalu with him H.C. Ikegwuonu for Defendant.
H.C. Muoghalu informs the Court that he has filed Forms 17 and 18 on the Defendant who has not filed anything under Order 25 Rule 6 (b) he applied that judgment be entered in favour of the plaintiff… He urges the court to enter judgment as per the claim of the plaintiff.
Judgment is entered in favour of the Plaintiff in this suit as per the claim of the Plaintiff i.e. paragraph 11 a, b and c.”
The motion for setting aside of the judgment of 16/7/08 was filed on 22/7/08 and brought pursuant to Order 25 Rule 6 of the Rules with affidavit of 22 paragraphs in its support. Order 25 Rule 6 provides inter alia that,
“Any judgment under this rule may be set aside upon any application made within 7 days of the judgment or such other period as the pre-trial judge may allow not exceeding the pre-trial conference period. The application shall be accompanied by an undertaking to participate effectively at the pre-trial conference.”
In line with this provision, the appellant filed his motion for setting aside the judgment within 7 days and deposed in paragraph 21 of the supporting affidavit thus;
“That I undertake to participate effectively in the pre-trial conference and further proceedings in this suit upon the setting aside of this judgment in default”, and filed also an Undertaking to Participate Effectively in the Pre-Trial Conference which is on page 65 of the record, thus meeting the conditions for securing the favourable disposition of the court for setting aside a judgment made under Order 25 Rule 6 of the Rules.
In the ruling delivered on 27/2/2009 on pages 121-124 of the record, in respect of the application, the learned trial judge held as follows on page 124;
“By Order 20 Rule 9 civil procedure rules 2006, the court gave judgment in favour of the plaintiff for non-filing of the processes of court after the defendant had been duly served. By Order 20 rule 12, the judgment so obtained is final in the absence of fraud, non service of process or jurisdiction. The only option left for the Defendant/Applicant is to go on appeal.”
It is obvious from the proceedings of 16/7/08 which I had earlier on quoted that no application for judgment was made under Order 20 of the Rules which is a provision for default of pleadings, the judgment was rather entered under Order 25 which provides for Pre-Trial Conference And Scheduling. It is also obvious that the judgment was entered without any consideration of the merits of the case of the parties and as such it is of the type that can be set aside as provided in Order 25 of the Rules.
In BELLO V. INEC (2010) LPELR – 767, Adekeye JSC stated that;
“Any judgment in default of pleadings or appearance is not a final judgment since both parties were not heard on the merit of the case. The judgment was obtained by failure of the defendant to follow certain rules of procedure. Where the court has not pronounced a judgment on merit or by consent, such a judgment may be set aside by any trial court in the judicial division where the judgment was obtained.”
There is no doubt that the provision of Order 20 Rule 12 of the Rules is a general provision while Order 25 thereof is a specific or special provision made to govern the proceedings at the Pre-Trial Conference. On which of either general or specific provision to apply to a particular issue, it was held in KRAUS THOMPSON NIG. LTD. V. N.I.P.S.S. (2004) 17 NWLR (PT. 901) 44, (224) ALL FWLR (PT. 218) 797 that where an issue in a statute is governed by a general provision and a specific provision, the specific provision will be invoked because the specific provision will be deemed to have anticipated the issue as against the general provision. The maxim is, generalia specialibus non derogant meaning that general things do not derogate from special things.
An application for setting aside is an appeal to the discretion of the court which in law must be exercised judicially and judiciously. The court will consider the following among other factors;
1. The reasons for the failure to appear at the hearing of the case. 2. Whether there had been undue delay in making the application to set aside the judgment. 3. Whether the party who is favoured by the judgment will be embarrassed where the judgment is set aside. 4. Whether the applicant’s case is manifestly unreliable; and 5. Whether the applicants conduct throughout the proceedings makes his application worthy of sympathetic consideration. See WILLIAMS V. HOPE RISING VOLUNTARY FUNDS SOCIETY (1982) 1 ALL NLR (PT. 1) 1: TENO ENG. LTD. V. ADISA (2005) 10 NWLR (PT. 933) 346.
In the instant case, the records show that the appellant attended court since service of the processes on him and was even in court on the day the judgment was delivered, while the application for setting aside was filed promptly. I believe that considering all the circumstances of this case, including the trial court’s judgment, the appellant’s conduct is deserving of sympathetic consideration. It is clear from the record that he was present in court on 16/7/08 but his own Counsel who was also present did not address the court before the judgment was given against the appellant. I agree that the error, omission or even blunder by his Counsel in this case ought not to be visited on the appellant or should not be a basis for preventing him from being heard on the merits of the case against him bearing in mind the principle that the since of Counsel should not be visited on the litigant.
I think it is necessary to clear the controversy regarding the position of the pleadings as at the time of the delivery of the judgment.
The record of appeal which is binding on this court contains a process titled “statement of Defence” on pages 69-70, List of Witness on page 71, Statement On Oath of the Defendant on pages 72-73 and List of Documents on pages 74-75 all of which were shown to have been filed on 25/1/08 about six months before the delivery of the judgment on 16/7/08. This in my view has put it beyond any dispute that the judgment of the court was not as a result of default of filing pleadings, but failure to comply with pre-trial conference procedure.
The courts are established to hear and determine the cases of the parties before them on the merit by deploying the rules of court as means of achieving substantial justice. The courts have long shifted from the terrain of technical justice and have now fully embraced substantial justice which is the beauty of the rule of law. See OMOJU V. FRN (2008) 7 NWLR (PT. 1085) 38.
The general principle is that where a trial court has judicially and judiciously exercised its discretion in a particular matter the appellate court will not interfere with the discretion so exercised. Where however the discretion has been exercised without regard to the relevant facts or law and has occasioned a miscarriage of justice, it is the duty of the appellate court to correct the injustice. See PRESIDENT OF IBADAN PROVINCE V. OLAGUNJU (1954) 14 WACA 549: ROYAL EXCHANGE ASSURANCE (NIG.) LTD. V. ASWANI ILES LTD. (1992) 3 NWLR (PT. 227) 1: EFETIROROJE V. OKPALEFE II (1991) 5 NWLR (PT. 193) 517.
Considering all the foregoing facts and circumstances as well as the judgment of the learned trial judge on 16/7/08, I agree with the appellant’s Counsel that the dismissal of the application for setting aside of that judgment in the ruling of 27/2/09 was based on an improper application of the High Court of Anambra State (Civil Procedure) Rules, 2006 and therefore not judicious. I resolve this issue No. 2 also in favor of the appellant.
Consequently, I find merit in this appeal and it is allowed. The ruling delivered on 27/2/09 by Hon. Justice E.U. Uzodike in Suit No. HID/147/2007 is hereby vacated, while the judgment of the same learned Judge delivered on 16/7/08 in the same Suit, HID/147/2007 is set aside. The case shall be returned to the Hon. Chief Judge of Anambra State, for assignment to another judge for trial to commence afresh.
I award N30, 000.00 costs in favour of the appellant.
MOJEED ADEKUNLE OWOADE, J.C.A.: I have had the privilege of reading in draft the judgment of my learned brother I.O. Akeju JCA. I agree with the reasoning and conclusions and abide with the consequential orders.
EMMANUEL AKOMAYE AGIM J.C.A.: I had read the draft of the Judgment just delivered by my learned brother, ISAIAH OLUFEMI AKEJU JCA, I agree with the reasoning and conclusions therein. I also hold that this appeal succeeds. It is allowed. I abide by all the orders made therein including the order as to costs.
Appearances
Emmanela ChukwumaFor Appellant
AND
H.N.C. Moghalu Esq.For Respondent
