Alhaji Saidu Sanusi Dongari & Ors V. Alhaji Saheed Sa’ahun (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

UCHECHUKWU ONYEMENAM, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the ruling of Kwara State High Court of Justice sitting at Ilorin delivered on 11th April, 2013. The learned trial Judge dismissed the judgment-debtors’ (now Appellants) application for extension of time within which the Appellants may apply to set aside the default judgment made by the trial Court on 2nd November, 2011 and to set aside the said default judgment among other reliefs.

Aggrieved by the said ruling, the Appellants appealed to this Court upon seven grounds of appeal as adumbrated on the Notice of Appeal.

The Respondent herein (as claimant before the trial Court) claimed against the Appellants as follows:

a. “A declaration that the claimant is the bona fide owner of a piece of land measuring 300 ft x 250 ft being at Gaa-Saka, Oke-Fomo, directly abutting Ogundele Road, Ilorin, Kwara State.

b. A general damages (sic) of the sum of One Million Naira (1,000,000.00) against the defendants for the trespass unto his piece of land.

c. A perpetual injunction restraining the defendants, their privies, servants, agents or whosoever claiming from them from laying any claim to the said piece of land measuring 300 ft x 250 ft being at Gaa-Saka, Oke-Fomo, directly abutting Ogundele Road, Ilorin.”

After the Appellants were served with the originating process, they filed a Memorandum of Appearance through their counsel, Wale Obadofin Esq. However, the Appellants did not file statement of defence. By his Motion on Notice dated 25th November, 2010, the Respondent applied for judgment in default of defence. The said motion was served on Mr. Obadofin then counsel to the Appellants. No counter-affidavit was filed against the motion and no defence whatsoever nor any appearance was made. On this basis, the motion for judgment in default was moved by the Respondent’s counsel and accordingly granted by the trial court on 2nd November, 2011.

It is the case of the Appellants that they were not aware of the said default judgment of 2nd November, 2011 until 22nd May, 2012 when the judgment was being executed; hence, the Appellants brought an application for:

1. “AN ORDER of the Honourable Court extending the time within which the defendants/judgment debtors/applicants may apply for setting aside the default judgment made by this honourable court in this case on the 2nd day of November, 2011.
2. AN ORDER of the Honourable Court setting aside the default judgment made in this case on the 2nd day of November, 2011.
3. AN ORDER of this Honourable Court setting aside the warrant for possession issued by this Honourable Court for the execution of the default judgment made by this Honourable Court on the 2nd day of November, 2011.
4. AN ORDER of this Honourable Court setting aside the execution levied against the landed property made and/or constructed on the land in dispute in execution of the default judgment made by this Honourabie Court on the 2nd day of November, 2011.
5. SUCH further or other orders as the Honourable Court may deem fit to make in the circumstances of this case”.

The grounds of the application are as set out hereunder:

1 “Judgment was delivered in this case by the Honourable Court on the 2nd day of November, 2011 against defendants/judgment debtors/applicants.

2. The judgment-debtors/applicants were never aware of the judgment until the warrant for possession was pasted on the building made on the land in dispute by the 2nd-5th judgment-debtors/Applicants and other persons to whom the 1st Applicant has sold land on the land in dispute on the 22nd day of May, 2012.
3. The judgment-debtors/Applicants became aware of the default judgment of this court of 2nd November, 2011 on the 22nd May, 2012 when the warrant for possession was being pasted on the landed properties on the rand in dispute and the landed properties/buildings thereon were being demolished.
4. Wale Obadofin Esq. of Wale Obadofin & Co. who was the erstwhile counsel to the judgment debtors/applicants never informed the judgment-debtors/applicants that judgment was ever delivered in this against the applicants.
5. The judgment and proceedings of this Honourable Court could not be obtained until Friday the 25th day of May, 2012.
6. It was upon obtaining the judgment and record of proceedings that it was discovered that the judgment was given and/or obtained in default of defence.
7. The time within which to apply to set aside the default judgment of this Honourable Court of 2nd November, 2011 has now expired.
8. This Honourable Court has the vires to grant this humble application.
9. The judgment-creditor/respondent cannot be prejudiced if this application is granted.
10. The failure of the judgment-debtors/applicants to file a defence to the judgment creditor/respondent’s case is not an admission of the claims in the suit.
11. The judgment-creditor/respondent did not give oral evidence in this case when his case was premised on declaration and unliquidated/general damages.
12. Courts do not grant a declaration and unliquidated or general damages without oral evidence in court.
13. The default judgment given by this Honourable Court in this case on the 2nd day of November, 2011 against the applicants is liable to be set aside.
14. The warrant of possession and execution levied, pursuant to the default judgment made by this Honourable Court on the 2nd day of November, 2011 is liable to be set aside.
15. The default judgment of this Honourable Court of the 2nd day of November, 2011 was obtained by misrepresentation and concealment of facts.
16. The court does not have jurisdiction to grant declarations and unliquidated damages without hearing oral evidence”.

The Application was argued and in a considered ruling of 11th day of April 2013, the learned trial judge refused the application and dismissed same holding that:

“In effect, I am of the considered view that the applicants have not deposed to sufficient facts to make this court consider their application and to exercise its discretion in their favour by granting the application for enlargement of time and setting aside the default judgment in question”

See: page 137 of the record.