Okanlawon Bada & Anor V. James Atunbi & Anor (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HUSSEIN MUKHTAR, J.C.A.(Delivering the Leading Judgment)

This is an appeal against the ruling of the High court of Lagos state (the lower court) delivered by Honourable Justice O.A. Taiwo on the 4th October 2006 refusing to set aside the judgment of the lower court earlier delivered on the 2nd November, 1993 by Honourable Justice E. Akin Fernandez, which has not been appealed against.

The ruling appealed against emanated from the respondents’ suit as claimants against the appellants as defendants in the lower court claiming the following reliefs:

“i The sum of N50,000.000 damages against the defendant or their servants or agents on the land of the plaintiffs lying and situate at No. 28 Mission Street, Amukoko

ii An injunction against the two defendants restraining them, their servants and or agents from committing further acts of trespass on the said land.”

The appellants as defendants filed a memorandum of appearance but did not file a statement of defence. The case suffered delay for over one year as a result of the Presiding Judge Honourable Justice Fernandez proceeding on an official assignment in Enugu. The case was not mentioned from 29th January, 1992 until 27th April, 1993 when Fernandez, J resumed sitting in the matter, on which date both parties were represented by counsel in court. The case was fixed for hearing on the 29th June, 1993 but the court did not sit on that day because the Judge had to see his doctor that same day. The case was then adjourned to 2nd November, 1993 on which day the appellants and their counsel were absent while the respondents were in court and represented by their counsel. The lower court proceeded to hear the case on that day and delivered judgment in favour of the respondent.

The appellants, however, neither complied with the judgment nor appealed against it. To the contrary the appellant proceeded to erect a building on the land and put tenants there at, which made the respondents to initiate contempt proceedings against the appellants.

The appellants filed a motion to set aside the judgment at the lower court dated 23rd March, 1995 which was struck out on the 21st March, 1996 for want of deligent prosecution . The appellants filed a similar motion which suffered the same fate. The appellants yet filed another similar application to set aside the judgment dated 27th March, 2006 which they prosecuted. The lower court in a well considered ruling delivered on the 4th October, 2006 struck out the motion. The appellants were dissatisfied and brought this appeal against the said ruling on the following two grounds:

“1. The learned trial judge erred in law by refusing an application to set aside a default judgment on the ground that there was no statement of defence filed.

2. The learned trial judge erred on the application of the decisions in Queen Omabuwa vs Madam Martha Owhofatsho (2006) 5 NWLR pt. 972 Pg. 40; The Shell Petroleum Development Company of Nig Ltd vs Niger Optical Services Co. Ltd. (2004) 7 NWLR pt 872 pg. 40 and thereby came to a wrong conclusion by refusing the appellant’s application.”

The appellants asked for the following relief:

“i An order setting aside the judgment of Hon. Justice Akin Fernandez delivered on the 2nd of November, 1993

ii An order directing that the suit (i.e. suit No. LD/293/89) be tried on its merit.”

The appellant’s counsel Tajudeen M. Kareem, Esq has distilled two issues for determination from the grounds of appeal which have been adopted by the learned counsel for the respondents F. Ibironke Kazeem, Mrs, thus:

“1. Whether or not the filing of a statement of defence is a matter for consideration when determining the grant or refusal of an application to set aside a judgment