Chief Gabriel Akinriboya V. Akinleye Akinsole & Anor. (1998)

LawGlobal-Hub Lead Judgment Report

ACHIKE, J.C.A.

This appeal puts in focus the term usually referred to as “default judgment”. The scope and effect of such judgments, seems to me to be the thrust and interest of this appeal.

In their suit at the High Court Ondo State holding at Ondo, the plaintiffs claimed against the defendant as follows:

(a) Court’s Declaration that it is an exclusive preserve of Akintimehin Family of Ore/Odigbo to present a candidate for the stool of Bale of Ore.

(b) Declaration that the purported rotational method sought to be applied by the 1st defendant in filling the vacant stool to the 2nd and 3rd defendants is inequitable, unjust, unlawful, null and void and runs counter to the established system of appointing a Bale at Ore.

(c) Perpetual Injunction restraining the 1st defendant, his agents, servants or whosoever from interfering with the age long tradition and customary rights of Akintimehim Family by selecting for appointment, under native law and custom, a candidate of their choice for the stool of are Baleship without any consultation with the 2nd and 3rd defendants.”

Pleadings were duly filed and exchanged. After a considerable delay, including the striking out and relisting of the suit which was admitted by both parties, the suit, with the consent of both counsel, was fixed for hearing for three consecutive days. When the suit eventually took off on 3rd May, 1993 neither the defendant, nor his counsel was present in court. The learned trial Judge after standing the case down for about one hour, proceeded to hear the suit. On the next day, 2nd defendant was present in court but his counsel was absent and wrote a letter which was delivered to the court by the 2nd defendant. When the letter was read out in open court, 2nd defendant was furious and remarked that his counsel was not being truthful. The 2nd defendant immediately prayed the court for an adjournment. The application was granted and the case was adjourned to the next day, i.e. 5/5/93.

On 5/5/93, a letter written from the Chambers of 2nd defendant’s counsel was read in open court. At that stage, 2nd defendant made it clear to the court that he could not proceed with the case without his counsel and again asked for further adjournment. The request was refused and the court fixed the date for final address of counsel to 6/5/93. On the said date the address of plaintiffs’ counsel was taken and judgment was reserved for 4/6/93. Thereupon, the trial Judge entered judgment in favour of the plaintiffs.

2nd defendant’s application to the trial Judge to set aside the judgment delivered on 4/6/93 was refused. It is against this refusal that the defendant has now appealed.

Both parties filed and exchanged briefs of argument. For the appellant, his learned counsel, Mr. G.O. Ojo, postulated five issues for determination, namely:

“(i) Whether the trial court having found the judgment to be a default judgment was right to refuse the defendant/appellant’s application to set the said judgment aside in the circumstances of this particular case and whether it is in the interest of justice to visit the penalty for the failure or inadequacies of counsel to appear for the defence of the defendant/appellant at the trial on the appellant.

(ii) Whether from the affidavit evidence and the attached Exhibits in support of the application of the applicant (now appellant) the appellant has a good defence to the case of the plaintiff/respondent and whether the issues raised in the affidavit deserve to be taken by the court on the merits.

(iii) Whether by the contents of Exhibit ‘C’ the respondents and the members of Akintimehin family are not estopped from contesting the fact that the 2nd defendant/appellant’s family are entitled to the stool of the Bale of are with the Akintimehin family of the plaintiffs/respondents on rotational basis and whether the contests of Exhibit ‘C’ does not disclose a good defence to the claim of the plaintiffs/respondents.

(iv) Whether the trial court was right in holding in its ruling that Exhibit ‘C’ a letter dated 11th November, 1989 written by the Akintimehin family to the Orunja of Odigbo and attached to the affidavit in support of the application to set the default judgment aside could not be used in the application since it did not form part of the original proceedings and whether even if the said letter did not form part of the original proceedings whether it could not under the rules of the court still be put in evidence if the case is allowed to be heard on the merits.