EVBUEGBON v. AIWERIOBA & ANOR (2022)

EVBUEGBON v. AIWERIOBA & ANOR

(2022)LCN/16499(CA)

In The Court Of Appeal

(BENIN JUDICIAL DIVISION)

On Thursday, January 27, 2022

CA/B/20/2011

Before Our Lordships:

OyebisiFolayemiOmoleye Justice of the Court of Appeal

Biobele Abraham Georgewill Justice of the Court of Appeal

Frederick Oziakpono Oho Justice of the Court of Appeal

Between

MISS EVBUEGBON (Suing By Her Attorney, Mrs. Elizabeth O. Egbon) APPELANT(S)

And

1. OSAMUGHE AIWERIOBA 2. MISS NAOMI OMOSEDE IDEHEN RESPONDENT(S)

RATIO:

A JUDGMENT ON THE MERITS IS ONE BASED ON LEGAL RIGHT AS DISTINGUISHED FROM MERE MATTERS OF PROCEDURE OR JURISDICTION

Husseini (1998) 14 NWLR (Pt. 584) 108, the Supreme Court had stated inter alia thus:
“The word “default” which qualifies the noun “judgment” means 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 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. In ordinary parlance it means not doing what is reasonable in the circumstance…. A judgment on the merits is one based on legal right as distinguished from mere matters of procedure or jurisdiction. A judgment on the merits is thus a decision that was rendered on the basis of evidence led by the parties in proof or disproof of the issues in controversy between them. Normally a judgment based solely on some procedural error is not, as a general rule, considered a judgment on the merits. A judgment on the merits is therefore one arrived at, after considering the merits of the case – the essential issue, the substantive rights presented by the action, as contra – distinguished from mere questions of practice and procedure” OYEBISI FOLAYEMI OMOLEYE, J.C.A

A JUDGMENT ON THE MERITS IS A DECISION RENDERED ON THE BASIS OF EVIDENCE LED BY THE PARTIES

See also UTC (Nig) Ltd V. Pamotei (1989) 2 NWLR (Pt 103) 244 AT pp. 282-283, the Supreme Court had succinctly stated inter alia thus:
“A judgment on the merits is one based on legal rights as distinguished from mere matters of procedure or jurisdiction. A judgment on the merits is thus a decision that is rendered on the basis of evidence led by the parties in proof or disproof of the issues in controversy between them. Normally, a judgment based solely on some procedural error is not, as a general rule, considered a judgment on the merits. A judgment on the merit is therefore one arrived at, after considering the merits of the case – the essential issues, the substantive rights presented by the action, as contra-distinguished from mere questions of practice and procedure.” OYEBISI FOLAYEMI OMOLEYE, J.C.A

A JUDGE CANNOT GIVE A DECISION OR MAKES AN ORDER ON A MATTER TWICE

The Latin phrase ‘functus offficio’ is defined as means of having performed his or her office or official body without further authority or legal competence because the duties and functions of the original commission have been fully accomplished. See the Black’s Law Dictionary 7th Edition. In Mohammed V. Husseini, AT pp. 138-139, the Supreme Court had stated inter alia thus:
“Functus Officio simply means “Task performed.” Therefore, applying it to the judiciary, it means that a Judge cannot give a decision or make an order on a matter twice. In other words, once a Judge gives a decision or makes an order on a matter, he no longer has the competence or jurisdiction to give another decision or order on the same matter…A Judge is functus officio if he gives judgment on the merits.” OYEBISI FOLAYEMI OMOLEYE, J.C.A

THE COURT SHOULD BE LIBERAL IN EXERCISING ITS DISCRETION

It is true that in law in an application to set aside the judgment obtained in default, the Court should be liberal in exercising its discretion and ought to generally lean towards accommodating the defaulting party, so that parties will be on equal footing in the presentation of their case, yet the applicant is under a duty to satisfy the requirements of the law before a favorable exercise of the Court’s discretion in his favor to set aside its default judgment. In other words, setting aside, even, a default judgment is not a matter of course as in just for the asking! See N. A. Williams V. Hope Rising Voluntary Society (1982) ANLR (Reprint Edition) 1 AT pp. 6-7 per Idigbe JSC; Sanusi V. Ayoola& Others (1992) 9 NWLR (Pt. 265) 275 AT pp.294-295; Ohaji LG.V. Etiti (2001) FWLR (Pt. 45)644. OYEBISI FOLAYEMI OMOLEYE, J.C.A

OYEBISI FOLAYEMI OMOLEYE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of the High Court of Edo State, Benin Judicial Division, Coram: Okojie Oigboike, J. in Suit No. B/593/2005: Miss Evbu Egbon (suing by her attorney, Mrs. Elizabeth O. Egbon) V. Osamughe Aiwerioba& Others, delivered on 9/6/2010, in which the 2nd Respondent’s application to set aside the judgment delivered on 20/5/2008 per Ehigiamuose J. was granted and the said judgment was consequently set aside, and the 2nd Respondent was joined as 3rd Defendant to the suit and a Retrial was ordered.

The Appellant was dissatisfied with the said judgment and had appealed to this Court on four grounds vide his Notice of Appeal filed on 21/6/2010 on two grounds of appeal. See pages 47-48 of the Record of Appeal. The Record of Appeal was compiled and transmitted to this Court on25/1/2011. An Amended Notice of Appeal was with the leave of this Court filed on 24/10/2018 but was deemed as properly filed on 2/11/2021. The Appellant’s Amended brief was filed on 24/10/2018, and upon service on the Respondents, only the 2nd Respondent filed her brief on18/6/2020. The Appellant’s Reply brief was filed on 24/6/2020. At the hearing of the appeal on 2/11/2021, K. O. Obamogie Esq., learned Senior counsel for the Appellant, appearing with O. Obamogie Esq., R. O. Ohonbamu Esq., and O. Inegbedion Esq., adopted the Appellant’s brief and the Reply brief as their arguments in support of the appeal and urged the Court to allow the appeal, set aside the ruling of the Court below and restore the earlier judgment of the Court below delivered on 20/5/2008 per Ehigiamuose J. On his part, J. O. Michael Esq., learned counsel for the 2nd Respondent adopted the 2nd Respondent’s brief as his arguments in opposition to the appeal and urged the Court to dismiss the appeal and affirm the ruling of the Court below.

On 10/11/2008, the 2nd Respondent filed an application before the Court below praying for the following reliefs, to wit:
1. An Order extending the time within which the Applicant may apply to set aside the default judgment of the Court given on 20/5/2008.
2. An Order setting aside the default judgment of this Court delivered on 20/5/2008.
3. An Order joining the Applicant to this suit as 3rd Defendant and the processes to be so amended and served on the 3rd Defendant.
4. An Order re-opening the case for hearing and determination on merit.

Earlier, in September 2005 the Appellant as Claimant had by a Writ of Summons filed before the Court below claimed against the Respondents the following reliefs, to wit:
1. A Declaration that the Plaintiff is the person entitled to a statutory right of occupancy to all that piece of land measuring 100 feet by 100 feet lying and situate at Ward A, Elema layout, Benin City which forms a part of the land clearly demarcated in Survey Plan No. OM 899 dated 30th September, 1963 and counter-signed by the Acting Surveyor-General of Mid-Western Nigeria on 9/6/1964.
2. N1,000,000.00 damages for the Defendants’ acts of trespass on the aforesaid piece of land.
3. An order of perpetual injunction restraining the Defendants, their servants, agents and privies from further trespass to the aforesaid piece of land.

BRIEF STATEMENT OF FACTS
The case of the Appellant, who was the Claimant before the Court below, in the substantive trial as can be gleaned from the Record of Appeal and leading to the earlier judgment delivered in his favor on 20/5/2008 per Ehigiamuose J., was that she is the owner by dint of a devise in her late father’s Will of a parcel of land lying and situate at Ward A, Elema Layout, Benin City measuring 100 feet by 100 feet, which forms an integral part of the land of her father and demarcated in Survey Plan No. OM 899 dated 30/9/1963 and admitted at the trial with other title documents as Exhibit C. However, following the Respondents trespass unto the said piece of land, the Appellant had in September 2005 instituted Suit No. B/592/05 claiming declaration of title to the said land, damages and injunction against the Respondents.

On 20/1/2006, the Appellant sought and obtained the leave of the Court below and served the Writ of Summons and all other processes in the suit on the Respondents by means of substituted service, to wit by pasting on the front wall of the property in dispute in compliance with the said Order of the Court below. In reaction to the process so served as above, the 2nd Respondent filed an application for joinder through her counsel, which said application was subsequently, struck out by the Court below for want of diligent prosecution.

Thereafter, several hearing notices were served by means of substituted service on the Respondents in compliance with several Orders of the Court below and when they failed, neglected and/or refused to file any process, the matter proceeded to hearing. In proof of her claim, the Appellant testified through her attorney who tendered several documents which were admitted in evidence as Exhibits and closed her case. Subsequently, her counsel addressed the Court below and on 20/5/2008 the Court below delivered its judgment, in which it granted the claims of the Appellant against the Respondents.

The case of the 2nd Respondent as can be gleaned from the affidavit in support of her application before the Court below as in the Record of Appeal was that she is the owner in possession of the land in dispute and has built a house on the land long before the Appellant commenced the suit in 2005 claiming ownership of the said land. She resides in Rome and was not aware of the suit until some of her tenants living on the said land informed her that they saw some Court papers on the premises relating to the land but not bearing her name. She immediately briefed her counsel one A. O. Yusuf Esq., to apply to Court below for her to be joined to the suit disclosing her name, identity and interest.

Consequently, on 24/7/2006 her said counsel filed an application disclosing her identity, interest and further sought that she be joined as a Defendant. However, subsequently, the said application was struck out by the Court below due to the absence of her said counsel in Court to move the motion. This fact was unknown to her as she resides in Rome. However, on 22/1/2007, the Appellant filed her Statement of Claim but failed to serve her or the other Respondents with same. Curiously, despite the non-service of the processes as well as hearing notices on the Respondent, the Court below per Ehigiamusoe J., proceeded to hear the case of the Appellant and on 20/5/2008 entered judgment in favor of the Appellant against the Respondents.

On 10/11/2008, the 2nd Respondent filed a Motion on Notice praying the Court below to set aside the said judgment, join her as 3rd Defendant and a fresh trial on the merit. The Motion on Notice was supported by an affidavit of 18 paragraphs. In response, the Appellant filed her counter-affidavit and issues were thus joined between the Appellant and the 2nd Respondent on the application to set aside the judgment of the Court below. The Court below proceeded to hear the 2nd Respondent’s application and on 9/6/2010, it delivered its ruling in which it granted the prayers as sought by the 2nd Respondent against the Appellant, hence the appeal. See pages 5-12, 20-29, 35-46 and 47-48 of the Record of Appeal.

ISSUES FOR DETERMINATION
In the Appellant’s amended brief, a sole issue for determination was distilled from the two grounds of appeal, namely:
“Whether or not the Court below was right in setting aside the judgment delivered in the suit on 20/5/2008?”

In the 2nd Respondent’s brief, three issues for determination were distilled from the two grounds of appeal, namely:
1. Whether the 2nd Respondent who was joined by the Court below as the 3rd Defendant was given a fair hearing in the proceedings that culminated to the judgment of Ehigiamuose J., delivered on 20/52008 without serving the 2nd Respondent, even as persons unknown, with theAppellant’s Statement of Claim filed on 22/1/2007 and hearing notice preceding same before trial and judgment by Ehigiamusoe J?
2. If 2nd Respondent was not given fair hearing, for non-service of Court processes and hearing notices, in the proceeding that led to the judgment delivered by Ehigiamusoe J. on 20/5/2008, whether the Court had jurisdiction to give judgment against her?
3. If the 2nd Respondent in this appeal was not given a fair hearing by Ehigiamusoe J., consequent upon which the judgment was given without jurisdiction, whether Okojie Oigboike J. was not right in setting aside the judgment and ordering a trial on merit?

I have taken time to consider the depositions in the affidavit, counter-affidavit and documentary Exhibits relied upon by the parties as in the Record of Appeal. I have also considered the facts and circumstances leading to the judgment of the Court below delivered on 20/5/2008 per Ehigiamuose J., that was set aside in the ruling delivered on 9/6/2010 per Okojie Oigboike J., which is the subject of this appeal. I have further considered the submissions of learned counsel to the parties in the light of the findings of facts and decisions reached in the ruling appealed against and I am of the view that the only issue arising for determination is the issue as formulated in the Appellant’s Amended brief. In considering this sole issue, the three whooping issues as formulated by the 2nd Respondent shall also be duly considered.

But first was it proper under the principles of appellate litigation, particularly as it relates to issues for determination, for the 2nd Respondent to distill three issues from the two grounds of appeal filed by the Appellants? I think not! In law, it is not permissible for a party, whether as Appellant or Respondent, to distill more than one issue for determination from one valid ground of appeal. See Commissioner of Police, Adamawa State V. Saratu (2015) 3 NWLR (Pt. 1446) AT p. 312, where this Court had per Jauro JCA, (as he then was but now JSC) stated succinctly inter alia thus:
“The rule against proliferation of issues is to the effect that a party cannot distill more than one issue from a single ground of appeal, but an issue for determination can cover several grounds of appeal. Put differently, it is normal forone, two or more grounds of appeal to constitute an issue, not the other way round. In the instant case, Issue 1 and 2 having been formulated from one ground of appeal are hereby struck out for being incompetent.”
My lords, the 2nd Respondent’s brief in which three whooping issues were distilled from the two grounds of appeal in the Notice of Appeal is in law therefore, is incompetent. Consequently, both the three whooping issues and the arguments proffered thereon, having been found to be incompetent by reason of their amounting to proliferation of issues in this appeal, ought to be discountenanced as going to no issue in the determination of this appeal.

Be the above as it may, I shall in the overriding interest of rendering substantial justice to both parties in this appeal consider the submissions in the 2nd Respondent’s brief. Let me therefore, proceed to consider and resolve the sole issue for determination anon!

SOLE ISSUE
“Whether or not the Court below was right in setting aside the judgment delivered in the suit on 20/5/2008?”

APPELLANT’S COUNSEL SUBMISSIONS
On the sole issue, learned Senior counsel for the Appellant had submitted that in an application to set aside the judgment of a Court, the applicant must satisfy the Court on all the requirements and principles of law governing the exercise of the Court’s discretion in such applications and contended that the 2nd Respondents failed to show any reason why the application ought to have been granted having deliberately failed to further participate in the proceedings upon the striking of her application for lack of diligent prosecution despite the service of all the processes and hearing notice by substituted service as ordered by the Court below and urged the Court to hold that the Court below in granting the 2nd Respondent’s application failed to exercise its discretion judicially and judiciously. Counsel relied on N.A. Williams V. Hope Rising Voluntary Society (1982) ANLR (Reprint Edition) 1 AT pp. 6-7; Sanusi V. Ayoola & Others (1992) 9 NWLR (Pt. 265) 275 AT pp. 294-295; Alhaji Auwalu Etokhana V. Progress Bank of Nigeria Plc. (1997) LPELR-6258 (CA) AT pp. 13-14; Afonja Community Bank (Nig.) Ltd V. Akpan (2001) LPELR-6958 (CA) AT pp. 20-21.

It was also submitted that the judgment of the Court below sought to be set aside by the 2nd Respondent was not a default judgment but one entered on the merit after full hearing of the Appellant’s case in the unjustified absence of the 2nd Respondent and contended that the Court below was thus in grave error when it proceeded on the wrong footing that it was dealing with a default judgment and urged the Court to hold that it was this gravely erroneous view that misled and substantially affected its reasoning and attitude to its earlier judgment delivered on the merit on 20/5/2008 and to allow the appeal, set aside the ruling of the Court below and restore the earlier judgment delivered on the merit on 20/5/2008. Counsel relied on Oyegun V. Nzeribe [2010] 7 N.W.L.R. (Pt. 1194) 557 AT p. 595; Fointrades Ltd. V. Universal Association Co. (2002) 8 NWLR (Pt. 770) 699; Alhaji Ibrahim Ahmad V. Sahab Enterprises Nigeria Limited (2016) LPELR-41313 (CA) AT pp. 23-24; UTC (Nig) Ltd V. Pamotei (1989) 2 NWLR (Pt 103) 244.

It was further submitted that the reliance by both the 2nd Respondent and the Court below on Order 27 Rule 10 of the High Court (Civil Procedure) Rules, 1988 of the defunct Bendel Stateof Nigeria applicable to Edo State clearly buttressed the misconception the Court below had of the nature of its earlier sought to be set aside which it erroneously though was a default judgment still subject to its power to set it aside and contended that in law once judgment is entered not as a result of default in filing of pleadings but based on the evidence led before the Court below, after due service of all the processes and hearing notice on a Defendant, it amounts to a final judgment and on the merit, which can only be set aside on appeal. Counsel referred to Order 27 Rule 10 and Order 37 Rule 9 of the High Court (Civil Procedure) Rules, 1988 of the defunct Bendel State of Nigeria applicable to Edo State.

It was also further submitted that even if the judgment of the Court below were to be treated as a default judgment, of which it is not, the 2nd Respondent still failed to meet and/or satisfy the requirements for setting aside a default judgment in law and contended that the Court below was therefore, clearly in error when it granted the 2nd Respondent’s application and set aside its earlier judgment on the face of the failure of the 2nd Respondent to adduce reasons for her absence at the trial, disclose the date she became aware of the judgment, disclose when she arrived in Nigeria from Rome, to disclose when she briefed her counsel to file the application to set aside the judgment and above all, to disclose her defence to the action as required of her by law and urged the Court to so hold and to allow the appeal, set aside the ruling of the Court below and restore the earlier judgment entered on the merit. Counsel relied on N.A. Williams V. HopeRising Voluntary Society (1982) ANLR (Reprint Edition) 1 AT pp. 6-7; Sanusi V. Ayoola & Others (1992) 9 NWLR (Pt. 265) 275 AT pp. 294-295;Alhaji Auwalu Etokhana V. Progress Bank of Nigeria Plc (1997) LPELR – 6258 (CA) AT pp. 13-14; Afonja Community Bank (Nig.) Ltd V. Akpan (2001) LPELR-6958 (CA) AT pp. 20-21.

2ND RESPONDENT’S COUNSEL SUBMISSIONS
On his issues one, two and three, learned counsel for the 2nd Respondent had submitted that from the Record of Appeal it is clear that the 2nd Respondent, even as persons unknown, was never given a fair hearing before the judgment sought to be set aside was delivered on 20/5/2008 as she was neither served with the Appellant’s Statement of Claim nor with an hearing notice and contended that in law service of the claim of the Appellant as well as hearing notice notifying her of the date of the hearing is sacrosanct and urged the Court to hold that in law it is the service that confers jurisdiction on the Court and on the face of the failure to serve on the 2nd Respondent the processes as well as hearing notice. The Court below per Ehigiamusoe J., lacked the jurisdiction to have entered judgment as it did on 20/5/2008 against the Respondents, which judgment was rightly set aside and urged the Court to dismiss the appeal and affirm the ruling of the Court below. Counsel relied on Ezim V. Menakaya (2017) Vol. 268 LRCN 25 AT p. 55; Olorunyolemi V. Akhagbe (2010) 15 WRN 23 AT pp. 34-35; Sken Consult (Nig.) Ltd &. Anor V Godwin Sekondy Ukey (1981) I SC 6.

It was also submitted that in the absence of service of the processes and hearing notice on the 2nd Respondent as required by law, the entire proceedings leading to the said was irredeemably bereft of fair hearing as the 2nd Respondent, even as persons unknown, was not afforded the opportunity to be heard or present her case before judgment was entered against her and contended that in law such a breach of the right of the 2nd Respondent to fair hearing rendered the entire proceedings and judgment of the Court below, set aside by the ruling appealed against, a nullity and urged the Court to so hold and to dismiss the appeal for lacking in merit and affirm the ruling of the Court below. Counsel referred to Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and relied on Achuzia V Ogbomah (2006) Vol. 262 LRCN 91 AT p. 105; Vatsa V. FBN Plc(2013) All FWLR (Pt. 677) 737; Igomu V. Ibrahim (2014) All FWLR (Pt. 719) 1162.

It was further submitted that from the facts and circumstances the case at hand is not merely setting aside a default judgment where the other party did not appear, but it also involved when a judgment is delivered without jurisdiction for non-service of processes of Court and hearing notices and contended that in law a judgment delivered without service of processes of Court and hearing notice is one delivered without jurisdiction, an issue which can be raised at any stage of theproceeding including for the first time on appeal, and can be set aside either by the same Court or a Court of co-ordinate jurisdiction and urged the Court to so hold and to dismiss the appeal and affirm the correct ruling of the Court below. Counsel relied on Musaconi Ltd V Aspinall (2013) 14 NWLR (Pt.1375) 435.

APPELLANT’S COUNSEL REPLY SUBMISSIONS
In his reply, learned counsel for the Appellant had submitted that the 2nd Respondent was served with all the relevant processes by substituted means as ordered by the Court below on 20/1/2006 by pasting on the front wall of the property in dispute as well as on the High Court Notice Board and contended that in law when a party is given opportunity to be heard but he fails to avail himself, he cannot complain of breach of the rule of fair hearing and urged the Court to so hold and to allow the appeal and set aside the ruling of the Court below. Counsel relied on Regd. Trustees, PCN V. Etim (2017) 13 NWLR (Pt. 1581) 47; Chidoka V. First Class Finance Co. Ltd (2001) 2 NWLR (Pt. 697) 216; Oyedeji V. Akinyele (2002) 3 NWLR (Pt. 755) 589; Okotcha V. Herwa Ltd (2000) 15 NWLR (Pt. 690) 249.

RESOLUTION OF THE SOLE ISSUE
At the Court below the Appellant had on 20/5/2008 obtained judgment against the Respondents after leading both oral and documentary evidence as in the Record of Appeal. Thereafter, the 2nd Respondent, who had previously applied unsuccessfully to be joined as the 3rd Defendant, applied to the Court below to set aside the said judgment on the ground it was a default judgment.

In the supporting affidavit, the 2nd Respondent stated that she was not ordinarily resident in Nigeria but resides in Rome and that she became aware of the suit through her tenants on the property and brief a counsel to apply to join the suit and to protect her interest as the owner of the land in dispute. However, her desire to join the suit appeared to have suffered a still birth when it was struck out for lack of diligent prosecution. There is nothing in the affidavit to state what the 2nd Respondent did after her application to join was struck out by the Court below. The 2nd Respondent heard nothing of the pending proceedings until she was informed by one of her tenants on the property that judgment had been delivered in the judgment. The saidjudgment was delivered on 20/5/2008.

There are in the Record of Appeal copies of Exhibit A, B and B1 which are evidence of proof of service on 10/3/2006 on the Respondents, including the 1st Respondent as 1st Defendant and Persons Names Unknown as the 2nd Defendant. The 2nd Respondents on record in this appeal was not a party on record before the Court below. There is no record of when the 2nd Respondent was informed by one of her tenants of the delivery of judgment by telephone. There was also no record of when the 2nd Respondent returned to Nigeria from Rome after becoming aware of the delivery of the judgment after being aware of the pendency of the case by virtue of her briefing a counsel to apply to join her to the suit as 3rd Defendant.

It was on the above state of facts, that the Court below had after hearing counsel for the parties delivered its ruling on 9/6/2010, granting the 2nd Respondent’s application and stating and holding inter alia thus:
“The question that calls for determination may be summarized as follows: Has the applicant satisfied or met all the conditions as listed in the case of N.A. Williams V. Hope Rising Voluntary Society(Supra) The principles upon which a Court may exercise its discretion in considering an application to set aside a judgment were set out by Idigbe JSC in Ugwu Vs. Nwaji Aba All NLR 1961 AT PAGE 456…. A hearing may be said to have been on the merits where the issues of fact or law or both between the parties have been fought out to a final conclusion binding upon the parties…Was this Court functus when the judgment was delivered?…A Judge is functus officio if he gives judgment on the merits…. A judgment in default is not a judgment on the merits. Unless and until a Court has pronounced a judgment upon the merits or by consent, it still has the power to revoke the expression of its coercive power where that has only been obtained by a failure to follow any of the rules of procedure…If the decision in the case of Mohammed V. Husseini (Supra) is anything to go by, I am of the humble opinion that the merits of this case has not been considered… A Court has discretion to set aside the judgment obtained in the absence of the defendant, but the main threshold upon which an application of this sortshould be brought is that the applicant has a defense to the action itself not necessarily the reason for her non-appearance… In the light of the aforementioned facts and decisions and in exercise of this Court’s discretion, I am of the humble opinion that the applicant should be given the opportunity of being heard.” See pages 35-46 of the Record of Appeal.

In application to set aside a judgment, if it is a default judgment, the applicant must satisfy the Court on the evidence put forward by him all the requirements and principles of law governing the exercise of the Court’s discretion in such applications. These requirements, as have been pronounced upon in numerous decisions of the apex Court and this Court, includes the following, namely:
(1) The reasons for the applicants’ failure to appear at the hearing or trial of the case in which judgment was given in his absence,
(2) Whether there has been undue delay in making the application to set aside the judgment so as to prejudice the party in whose favor the judgment subsists,
(3) Whether the latter party, that is the party in whose favor the judgment subsists,would be prejudiced or embarrassed upon an order for rehearing of the suit being made, so as to render such course inequitable, and
(4) whether the applicants’ case is manifestly unsupportable. See N. A. Williams V. Hope Rising Voluntary Society (1982) ANLR (Reprint Edition) 1 AT pp. 6-7 per Idigbe JSC; Sanusi V. Ayoola & Others(1992) 9 NWLR (Pt. 265) 275 AT pp. 294-295; Alhaji Auwalu Etokhana V. Progress Bank of Nigeria Plc (1997) LPELR-6258 (CA) AT pp. 13-14; Afonja Community Bank (Nig) Ltd V. Akpan (2001) LPELR-6958 (CA) AT pp. 20-21; See Sanusi V. Ayoola& Others (1992) 9 NWLR (Pt. 265) 275 AT pp. 294-295; Alhaji Auwalu Etokhana V. Progress Bank of Nigeria Plc (1997) LPELR-6258 (CA) AT pp. 13-14; Afonja Community Bank (Nig) Ltd V. Akpan (2001) LPELR – 6958 (CA) AT pp. 20-21.

I have calmly evaluated the affidavit and counter-affidavit evidence of the parties and considered the facts leading to the delivery of the judgment of the Court below on 20/5/2008, and it does appear to me that the 2nd Respondent who was not a party to the suit before the Court below was not in any way entitled by law to any service of either the processes or hearing notices. There is undisputed evidence that the parties on record before the Court below, namely, the 1st Respondent and Persons names unknown, were duly served with all the relevant processes as well as hearing notices by means of substituted service as ordered by the Court below.

It seems clear that the attempt by the 2nd Respondent to join as 3rd Defendant having met the brick wall due to lack of diligent prosecution, the 3rd Respondent remained a stranger to the proceedings before the Court below leading to the judgment delivered on 20/5/2008, and was therefore, not entitled in law either to be served with any processes or even hearing notices and/or even to be heard in a matter in which she remained a stranger until judgment was delivered on 20/5/2008. The mere fact that the 2nd Respondent had unsuccessfully sought to be joined to the matter as the 3rd Defendant does not ipso facto make her a party in the matter to be entitled to any service of process and or hearing notices.

At any rate there are undisputed record that all the parties to the suit were duly served with both the processes and hearing notices by substituted means before the matter proceeded to trial. At the hearing, trial, the Appellant led evidence, both oral and documentary in proof of her case, and which case being unchallenged and undefended, and therefore, in law requiring only minimal proof, was found as proved by the Court below which granted the claims of the Appellants. In law is such a judgment a default judgment? I think not! Then, in law is it a judgment on the merit? I think so! In Mohammed V. Husseini (1998) 14 NWLR (Pt. 584) 108, the Supreme Court had stated inter alia thus:
“The word “default” which qualifies the noun “judgment” means 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 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. In ordinary parlance it means not doing what is reasonable in the circumstance…. A judgment on the merits is one based on legal right as distinguished from mere matters of procedure or jurisdiction. A judgment on the merits is thus a decision that was rendered on the basis of evidence led by the parties in proof or disproof of the issues in controversy between them. Normally a judgment based solely on some procedural error is not, as a general rule, considered a judgment on the merits. A judgment on the merits is therefore one arrived at, after considering the merits of the case – the essential issue, the substantive rights presented by the action, as contra – distinguished from mere questions of practice and procedure”
See also UTC (Nig) Ltd V. Pamotei (1989) 2 NWLR (Pt 103) 244 AT pp. 282-283, the Supreme Court had succinctly stated inter alia thus:
“A judgment on the merits is one based on legal rights as distinguished from mere matters of procedure or jurisdiction. A judgment on the merits is thus a decision that is rendered on the basis of evidence led by the parties in proof or disproof of the issues in controversy between them. Normally, a judgment based solely on some procedural error is not, as a general rule, considered a judgment on the merits. A judgment on the merit is therefore one arrived at, after considering the merits of the case – the essential issues, the substantive rights presented by the action, as contra-distinguished from mere questions of practice and procedure.”
It seems therefore clear and fairly certain to me that the judgment of the Court below delivered after a hearing of the case of the Appellant, on the face of the deliberate refusal and/or neglect of the 1st and 2nd Defendants on record to participate in the proceedings despite the due service of all the relevant processes and hearing notices on them by substituted service as ordered by the Court below, was not a default judgment but a judgment given on the merit. So, was the Court below ‘functus officio’ to set it aside as it did in the ruling now appealed against? I assuredly think and believed so!

It was therefore, in my finding and I so firmly hold, a grave error for the Court below to have treated the said judgment as a default judgment which I can ex–debitojustitia set aside at the instance of the 2nd Respondent, who ironically was not even a party to the suit and the proceedings leading the judgment sought to be set aside by her. I have no doubt in my mind that this error greatly misled and substantially affected the reasoning of the Court below and its attitude to its earlier judgment delivered rather on the merit on 20/5/2008. See Oyegun V. Nzeribe [2010] 7 N.W.L.R. (Pt. 1194) 557 AT p. 595. See also Foin trades Ltd. V. Universal Association Co. (2002) 8 NWLR (Pt. 770) 699; Alhaji Ibrahim Ahmad V. Sahab Enterprises Nigeria Limited (2016) LPELR-41313 (CA) AT pp. 23-24; UTC (Nig) Ltd V. Pamotei (1989) 2 NWLR (Pt 103) 244.

Now, even assuming, but without so holding, that the judgment of the Court below delivered on 20/5/2008, was a default judgment, did the 2nd Respondent make a case for it to be set aside and was the Court below right when it granted the 2nd Respondent’s application and set aside its earlier judgment?

It is true that in law in an application to set aside the judgment obtained in default, the Court should be liberal in exercising its discretion and ought to generally lean towards accommodating the defaulting party, so that parties will be on equal footing in the presentation of their case, yet the applicant is under a duty to satisfy the requirements of the law before a favorable exercise of the Court’s discretion in his favor to set aside its default judgment. In other words, setting aside, even, a default judgment is not a matter of course as in just for the asking! See N. A. Williams V. Hope Rising Voluntary Society (1982) ANLR (Reprint Edition) 1 AT pp. 6-7 per Idigbe JSC; Sanusi V. Ayoola & Others (1992) 9 NWLR (Pt. 265) 275 AT pp.294-295; Ohaji LG.V. Etiti (2001) FWLR (Pt. 45)644.

Now, whilst by Order 27 Rule 10 of the High Court (Civil Procedure) Rules, 1988 of the defunct Bendel State of Nigeria applicable to Edo State, it is provided that ‘The Court may, on such terms as it thinks just, set aside or vary any judgment in pursuance of this order’, by Order 37 Rule 9 of the High Court (Civil Procedure) Rules, 1988 of the defunct Bendel State of Nigeria applicable to Edo State, it is provided that “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 shown.”
Obvious from the above provisions of the Rules of the Court below is the irrefutable fact, unless leave is given to the contrary by way of an extension of time, a person seeking to set aside a default judgment must do so within six days from the date of the judgment or within such longer period as the Court may allow for good cause shown. It follows therefore, an application to set aside a default judgment must be made within six days from the date of the judgment or within such longer period as the Court may allow for ‘good cause shown.’ Thus, unless and until sufficient materials satisfying the requirements of the law for setting aside of a default judgment is met, no such indulgence would be granted by the Court. See N. A. Williams V. Hope Rising Voluntary Society (1982) ANLR (Reprint Edition) 1.

Now, the judgment set aside by the Court below was delivered on 20/5/2008, but the application to set it aside was not filed until 10/11/2008, that is after about six months! I have considered the entirety of the affidavit of the 2nd Respondent but I cannot see or find where she stated why it took her about six months to file the application. I also cannot find when she returned to Nigeria from Rome to enable me consider if she had acted conscientiously. I have also considered the statement that she own the property, the land in dispute, and without any particulars of how she became or come into ownership of the property, I am unable to find any good defence she might have against the claim of ownership of the land in dispute by the Appellant. In sum, I do not find any ‘good cause’ why the application was not made within the six days but was made six long months after judgment had been entered in favor of the Appellant.

Having therefore, considered the entirety of the facts and circumstances as revealed in the record of appeal, I hold firmly that the 2nd Respondent failed woefully to meet and or satisfy the requirements for setting aside a default judgment in law. She failed; to adduce reasons for her absence at the trial, to disclose the date she became aware of the judgment, to disclose when she arrived in Nigeria from Rome, to disclose when she briefed her counsel to file the application to set aside the judgment and above all, to disclose her defence to the action as required of her by law. See N.A. Williams V. Hope Rising Voluntary Society(1982) ANLR (Reprint Edition) 1 AT pp. 6-7; Sanusi V. Ayoola& Others (1992) 9 NWLR (Pt. 265) 275 AT pp. 294-295; Alhaji Auwalu Etokhana V. Progress Bank of Nigeria Plc (1997) LPELR-6258 (CA) AT pp. 13-14; Afonja Community Bank (Nig) Ltd V. Akpan (2001) LPELR-6958 (CA) AT pp. 20-21.

In my view, and I so firmly hold, with theundisputed evidence of service of all the relevant processes as well as hearing notices on the parties on record in the Appellant’s suit before the Court below by substituted means as ordered by the Court below on 20/1/2006 by pasting on the front wall of the property in dispute as well as on the High Court Notice Board, the issue of fair hearing, merely raised as herring in this appeal, neither arises nor avails the 2nd Respondent. In law, when a party is given opportunity to be heard but he fails to avail himself, he cannot complain of breach of the rule of fair hearing. See Regd. Trustees, PCN V. Etim (2017) 13 NWLR (Pt. 1581) 47; Chidoka V. First Class Finance Co. Ltd (2001) 2 NWLR (Pt. 697) 216; Oyedeji V. Akinyele (2002) 3 NWLR (Pt. 755) 589; Okotcha V. Herwa Ltd (2000) 15 NWLR (Pt. 690) 249.

In the light of all I have stated and found as above, the sole issue for determination is hereby resolved in favor of the Appellant against the Respondents, particularly the 2nd Respondent. On the whole therefore, having resolved the sole issue for determination in favor of the Appellant against the Respondents, particularly the 2nd Respondent, I hold that theappeal has merit and ought to be allowed. Accordingly, it is hereby allowed.

In the result, the ruling of the High Court of Edo State, Benin Judicial Division, Coram: Okojie Oigboike, J. in Suit No. B/593/2005: Miss Evbu Egbon (Suing by her attorney, Mrs. Elizabeth O. Egbon) V. Osamughe Aiwerioba& Others, delivered on 9/6/2010, in which the 2nd Respondent’s application to set aside the judgment delivered on 20/5/2008 per Ehigiamuose J. was granted and the said judgment was consequently set aside, and the 2nd Respondent was joined as 3rd Defendant to the suit and a retrial was ordered, is hereby set aside.

In its stead, the 2nd Respondent’s application filed on 10/11/2008 seeking to set aside the judgment of the Court below delivered on 20/5/2008 is hereby dismissed for lacking in merit. The judgment of the Court below delivered on 20/5/2008 per Ehigiamuose J. is hereby restored.
The parties shall bear their respective costs.

BIOBELE ABRAHAM GEORGEWILL, J.C.A.: I have read in advance, the draft copy of the leading judgment just delivered by my Lord, Oyebisi Folayemi Omoleye, JCA, I agree completely with the adroit reasoning and the impeccable findings and conclusions arrived therein that the appeal is meritorious and ought to be allowed. Indeed, the judgment that was erroneously set aside by the Court below is not a default judgment but rather a judgment on the merit reached after a hearing of the Appellant’s case with hearing notice duly served on the 2nd Respondent by substituted service by pasting on the subject matter of the suit as ordered by the Court below. It was therefore, erroneous for the Court below to have treated such a judgment over which it had become functus officio as a judgment in default which it can legitimately set aside. I therefore, agree that the appeal is meritorious and ought to be allowed. I too join the leading judgment to allow the appeal. I shall abide by the consequential orders made in the judgment, including the order as to no cost.

FREDERICK OZIAKPONO OHO, J.C.A.: I read the draft of the judgment just delivered by my learned brother, OYEBISI F. OMOLEYE- PJ, and I am in agreement with the reasoning and conclusions reached in allowing the appeal as meritorious. I subscribe to all other consequential orders made thereto.

Appearances:

K. O. Obamogie, Esq., with him, O. Obamogie, Esq., R. O. Ohonbamu, Esq. and O. Inegbedion, Esq. For Appellant(s)

J. O. Michael, Esq. – for 2nd Respondent For Respondent(s)