Yinusa Rabiu V. Amuda Sunmonu & Anor (2000)

LawGlobal-Hub Lead Judgment Report

GALADIMA, J.C.A.

This is an appeal against the ruling of Lagos High Court delivered on 10th January 1985 by Fatiade J. The facts which gave rise to the said ruling are simply that the respondent as plaintiff, on 30th September, 1980 filed Writ of Summons claiming against the Appellant, the sum of Five Thousand Naira (N5,000.00), being the amount he spent in building a bungalow on the Appellant’s landed property situate at No.2 Raji Street, Ashogun Village, Ojo Lagos at the request of the Appellant sometimes between 1979 and 1980.

After the writ was filed and served on the Appellant on 17/10/1980, the Appellant did not appear. Thereafter, on 19/11/1980, a motion for judgment in default of appearance was served on the Appellant but he refused or failed to appear or file a defence to the suit.

On 6/1/81, the Appellant having been given further opportunity by the court to prove his case but failed, judgment was entered in his favour by the lower Court in the sum claimed by the Respondent/Plaintiff. Sequel to that, on 6th January, 1982 the movable properties of the Appellant were attached to settle the judgment debt and cost of execution and the Appellant signed inventory of the movable properties without any protest. However, the proceeds of the sale of the movable properties could not upset the judgment debt and the cost of execution, hence the Respondent applied and obtained leave to attach and sell the Appellant’s immovable property. Thereupon, the Appellant’s house situate at No.2 Raji Street, Ashogun Village, Ojo Lagos was sold to one Alhaji Sikiru Babatunde Subair at a public auction. The said Sikiru Babatunde Subair was later joined by leave of this Court as Co-Respondent in this appeal.

On 16/7/84, and 17/9/84, the Appellant filed two motions on notice at the lower Court for extension of time within which to set aside the judgment of the lower Court of 27/3/81 and for leave to set aside the said judgment and sale of the landed property of the Appellant respectively. On 8/3/85, the lower Court refused the application to set aside its judgment delivered on 8/3/85, and the application was accordingly dismissed. Aggrieved by and dissatisfied with the said ruling of 8/3/85 dismissing the two applications, the Appellant appealed to this Court. In his amended notice of appeal, the Appellant filed seven grounds of appeal and formulated five issues for determination as follows:

“1. Whether the learned trial Judge properly evaluated the affidavit evidence in respect of the motion to set aside the judgment dated 27/3/81 in view of the extraneous matters relied upon by the learned trial Judge in arriving at her decision?.

2. Whether the learned trial Judge was right in resolving the conflict in support of the application and the plaintiff’s counter-affidavit in respect of the evidence of the writ of summons without calling for oral evidence?.
3. Whether the learned trial Judge correctly applied the principles that are usually taken into consideration before a judgment can be set aside to the peculiar facts of the case?.
4. Whether the defendant’s case is manifestly unsupportable in view of the facts contained in the affidavit evidence before the court?.
5. Whether the learned trial Judge’s failure in taking into consideration the provisions of the Illiterate Protection Law and other rules concerning Illiterates generally resulted in her making certain perverse findings on her ruling of 8 March, 1985?”.

The Respondent formulated one issue for determination and one alternative issue for determination. Besides, he also raised a preliminary objection based on the grounds of appeal filed along with the notice of appeal by the Appellant. The two issues for determination are as follows:-

“(i) Whether there is a valid and competent appeal?.

Alternatively

(ii) Whether on the exercise of the discretionary power, the Court below was right on refusing or dismissing the appellant’s application to set aside its judgment and the sale of the appellants immovable property?”.

I have noticed that preliminary objection raised by the Respondent has been incorporated as the 1st issue for determination he formulated. Since the 1st issue covered the preliminary part, I shall deal with them together. Also, the 2nd alternative issue has been covered by the 1st, 3rd and 4th issues for determination formulated by the Appellant. The alternative issue for determination formulated by the Respondent and the 1st, 3rd and 4th issues for determination formulated by the Appellant being closely related can be conveniently taken together. I shall therefore deal with them after the issue of jurisdiction raised by the Respondent and then later deal with the 2nd and 5th issue formulated by the Appellant.

The Respondent in his notice of preliminary objection urged this Court to dismiss or strike out the appeal for want of jurisdiction. He submitted that, the original notice of appeal filed in this Court on 12/3/85, containing two grounds of appeal is incompetent since they are grounds of mixed law and facts; leave of the High Court ought to first of all be sought and obtained but such leave was not obtained. According to the learned Counsel, there was no compliance with the provision of sections 220 and 221 of the 1979 Constitution. The learned Counsel further argued that the amended notice of appeal containing the additional grounds of appeal is also incompetent on the same grounds.

The learned Counsel for the Respondent further argued that this appeal being that against the dismissal of an application to set aside judgment delivered in default of appearance is not an appeal against final judgment but an appeal on interlocutory matter. He therefore argued that the grounds being of mixed law and fact, leave must be obtained from the High Court or the Court of Appeal by virtue of the provisions of Section 221 (2) of the 1979 Constitution. Failure to obtain such leave is fatal and render the Appeal of the Appellant incompetent. Reliance was placed on the authorities of Yekini Onigbeden & Anor v. Shola Balogun & Anor (1975) All NLR (Pt.1) 233; Aminu Akindele Ajayi Ojora & Ors. v. Ajibola Odunsi (1964) NMLR 12.

In his reply to the preliminary objection, the Appellant has resolved the issue raised in the objection. The Learned Counsel for the Appellant resolved the issue of leave, and in my view, he had laid it to rest, when he confirmed to this Court in his reply to Respondent’s brief filed on 9/10/1994 that he sought and obtained from this court an extension of time to seek for leave to appeal against the ruling of the lower Court of 8/3/85 and leave to appeal against the said ruling. With the deeming order that the notice and grounds of appeal as having been properly filed and served, I think the preliminary objection can no longer be sustained, it is accordingly overruled.