Alhaji Danjuma Haruna & Anor V. Mrs. C.A. Ladeinde & Ors (1987)

LawGlobal-Hub Lead Judgment Report

UTHMAN MOHAMMED, J.C.A. 

This is an appeal against the ruling of Desalu J. in which the learned trial Judge refused to grant to the appellants, who were applicants before him, leave to apply to set aside the default judgment entered against them. The appellants applied for the following orders before the trial court:

“1. An order extending the time within which to apply to set aside the judgment of this Honourable Court given on the 27th day of May, 1983 in the above named suit.

2. An Order setting aside the said judgment and relisting the suit for hearing on its merit.
3. An Order staying or suspending the execution of the said judgment pending the hearing and final determination of this application and
4. For any further Order or Orders as this Honourable Court may deem fit to make in the circumstances.”

The learned Senior Advocate, Mr. Sikuade, in his brief, submitted that under Order 32 Rule 4 of the High Court of Lagos State (Civil Procedure) Rules, 1972 the appellants’ application to set aside the judgment in question ought to have been brought within 6 days after the trial or within such longer period as the court may allow. The appellants have deposed in the affidavit attached to the motion in which the application was brought to the effect that a solicitor, one Mr. Aibinu was engaged to handle the case. He filed a statement of defence and never informed the 1st appellant of the date of trial or that the judgment had been obtained against them. Mr. Aibinu, in fact did not appear either at the trial or on the day of Judgment. The learned Senior Advocate went further and said that after appellants had known about the Judgment attempts were made to achieve an amicable settlement of the dispute out of court and it only became necessary to bring the application to set aside the judgment when the parties failed to reach a settlement. The delay therefore in applying to set aside the judgment was not without any reasonable cause.

On the application to set aside the judgment, counsel submitted that on the affidavit evidence before the court and which was not seriously challenged by the respondents, the lower court ought to have exercised its discretion in favour of the appellants. The appellants averred in the affidavit in support of the application that they engaged the services of a counsel one Mr. Aibinu who never at any time applied to withdraw from the case as required by the provision of Order 4 of the High Court of Lagos State (Civil Procedure) Rules, 1972. The learned Senior Advocate submitted further that the counsel having entered an appearance and filed a statement of defence on behalf of the appellants was obliged to receive all processes in respect of the case, to appear before the court and conduct the case to conclusion, unless at any stage of the proceedings he deemed it necessary to apply for leave to withdraw. The appellants have stated on Oath that they never heard from the counsel, as to the date for the trial or of the judgment and the counsel, Mr. Aibinu in his affidavit, at pages 141-144 of the record, admitted being instructed to conduct the case, that he filed a statement of defence, but never contacted his clients to let them know more about the case. Mr. Sikuade submitted that the appellants never saw the notices said to have been posted on the door and fence of the premises. There was infact no evidence that the second appellant, a limited liability company was infact served with the writ of Summons or was at any time represented by a counsel.

The appellants submitted that Mr. Aibinu not only filed a statement of Defence but also appeared in court, argued motions and received ruling. Yet he did not appear to conduct the case nor informed the appellants of the date fixed for hearing or of the progress of proceedings. Counsel referred to Doherty v. Doherty (1964) 1 ALL NLR, 299 and Akinyede v. Appraiser (1971)1 ALL NLR page 162 at 165 where it was held by the Supreme Court that courts would not penalise an applicant for the fault or mistake of his counsel. The learned Senior Advocate referred to authorities where it was held that where pleadings have been filed disclosing important issues for trial, the learned trial Judge should have exercised his discretion in the interest of justice to let the matters which had been pleaded by all the parties be canvassed thoroughly before the court so as to enable the court to hear evidence to come to a just conclusion on the respective claims of the parties.

See Edward U. Omadide for himself and on behalf of the Ekelegbo Section of Uwhe Family of Effurum v. Chief J. O. Adajeroh for himself and on behalf of the Uwhe Family of Effurum and 2 others (1976) 12 S.C. 87 at 96.

The learned counsel for the respondents Chief Sotayo-Aro submitted, in his brief that this application lacked merit because in the appellants’ affidavit in support of the application the 1st appellant failed to give any reason for his own absence on numerous occasions when the case was called up before judgment. Counsel referred to pages 18, 26, 49, 50, 63, 64, 72, 73, 79, 80, 88, 89, 93, 96, 98, 102, 104 and 106 and argued that the appellants’ absences were recorded. After 25th April, 1980 neither the appellants’ counsel nor the appellants themselves appeared any longer before the court during the course of the matter to the date of judgment. The respondents, with the assistance of the court bailiffs made numerous efforts to remind the appellants and their counsel of the stages and steps taken in the case by serving them with court processes. After the judgment was delivered a Bench Warrant was issued against the 1st appellant and it was after his arrest that he made his first appearance in court. Also Form 49 was served on the 1st appellant and he failed to file a return.

All the services made on the 1st appellant were at his residence B.4/134A, Alfa-Nla Street, Agege, Lagos State and that it was at the same address that Bench Warrant was executed on him Counsel submitted further that the learned trial Judge heard both counsel before giving his ruling in which he dismissed the application for extending time within which to apply to set aside the judgment and also for an order to set aside the judgment and relisting the suit for hearing. Mr. Sotayo-Aro then urged this court not to interfere with the ruling delivered since the learned trial Judge had exercised his discretion bona fide and he had not based his findings on irrelevant consideration and unproved facts – See 1. University of Lagos and Anor v. M.I. Aigoro (1985) 1 NWLR, 143. In conclusion, counsel submitted that since the application was filed on or before 9/7/84 and the judgment was given on 27/5/83, a period of about 14 months, the appellants were guilty of inordinate delay and there was a deliberate neglect on their part.

The only issue for the determination of this appeal as formulated by the counsel for the appellants is:

“Whether or not the learned trial Judge was right, having regards to the affidavit evidence before him, to refuse to exercise his discretion to extend the time for setting aside; and to also set aside his earlier judgment given in the absence of the appellants in favour of the Respondents”.

The first issue to be considered in this appeal is the refusal of the learned trial Judge to extend time for the appellants to apply to set aside the judgment entered against them in default of appearance. The judgment was delivered on 27th May, 1983 and the 1st appellant attested in an affidavit, that since the time he handed over the case to his counsel, one Mr. Aibinu, he did not receive any feedback from the lawyer. In fact he did not know that judgment had been entered against him until when he was arrested for non compliance with the orders in the judgment. After his arrest the 1st appellant briefed another counsel, Mr. Sikuade, the learned SAN and directed him to explore the possibility of settlement of the matter. It is on record that efforts were made to settle the matter out of court but without success. In paragraph 15 of 1st appellant’s affidavit he attested that the delay in bringing the application was due to the efforts being made by his solicitor to effect an amicable settlement of the matter. The matter remained pending before the court till 25th day of June 1984 when it was further adjourned to the 30th July, 1984. Mr. Sikuade argued that the application was not seriously challenged. Although the learned trial Judge, in his ruling, did mention about the points raised in the 1st appellant’s affidavit on the issue concerning the negotiated settlement, he did not make any comment on it.

It is clear from the record that the 1st appellant was brought before the learned trial Judge after his arrest on 15/2/84. On that day the 1st appellant explained that he was not served to appear in court but nevertheless prayed for forgiveness. Then his counsel asked for an adjournment so that Mr. Sikuade, who was then unavoidably absent, could take up the matter. The first appellant was then released on bail in the sum of N10,000 with one surety in the same amount. On 20th February, 1984, Mr. Sikuade told the court that he had advised his client to settle the matter and prayed for an adjournment. The court recorded thus:

“The matter is therefore adjourned till 30/4/84 as agreed, to report settlement”