Chief L.L.B. Ogolo Vs Joseph T. Ogolo (2006)

LAWGLOBAL HUB Lead Judgment Report

ONNOGHEN, J.S.C.

This is an appeal against the judgment of the Port Harcourt division of the Court of Appeal in Appeal No. CA/PH/65/98 delivered on 11th May, 2000 in which it reversed the ruling of the trial court refusing to set aside a default judgment in favour of the plaintiff (now appellant).

The appellant as plaintiff, instituted suit No. PHC/851/93 against the defendant now respondent, claiming the following reliefs:-

(a) A declaration that the plaintiff is the duly elected and recognized Chief of main Ogolo House and Head of Dieperi section of Opobo town in Andoni/Opobo Local Government Area of the Rivers State; and

(b) a perpetual injunction restraining the defendant by himself, his servants, agents and privies from parading or holding out himself (the defendant) whether in Port Harcourt or elsewhere as the Chief of main Ogoto House and/or Head of Diepreri section of Opobo town in Andoni/Opobo Local Government Area of the Rivers State or howsoever acting or purporting to act or assert any right to act as such Chief of main Ogolo House and/or Head of Dieperi section of Opobo town aforesaid during the incumbency of the plaintiff on the said chieftaincy stool.

The respondent entered appearance in the High Court and filed a notice of preliminary objection challenging the competence of the action on the grounds that it was frivolous, vexatious and an abuse of process. Eventually, appellant regularized his statement of claim but the respondent did not file any statement of defence making it possible for appellant to file a motion in April, 1996 for an order for judgment in default of a statement of defence, which notice was duly served on the respondent. At the time of filing the motion for judgment, the preliminary objection of the respondent on the jurisdiction of the court to entertain the action was still pending. However on 8th October, 1996 the learned trial Judge without inviting arguments on the objection, struck out the same while ruling on an application for adjournment. That action made it possible for the said court to hear and determine the motion for judgment in default of defence on the same day, 8th October, 1996. The court also refused an application for adjournment by counsel for the respondent to the following day after striking out the objection.

Respondent then filed a motion to set aside the judgment in default on the 11th day of October, 1996. Meanwhile, on the 8th day of October, 1996, respondent had filed a statement of defence, a copy of which was exhibited to the affidavit in support of the motion to set aside the judgment and thereon marked as exhibit Ogolo 1. The trial Judge failed to consider the said statement of defence in its ruling refusing the application to set aside the judgment. The respondent was dissatisfied with that ruling and appealed to the Court of Appeal which overruled the trial court and remitted the matter to that court to be dealt with according to law. Appellant is dissatisfied with that judgment and has appealed to this court.

Learned senior counsel for the appellant, Dr. J. O. Ibik, SAN, in the appellant’s brief of argument deemed filed on 2/6/03 submitted two issues for the determination of the appeal. The issues are:-

(a) Whether the lower court adopted the correct approach in determining the appeal challenging the exercise of judicial discretion by the trial court and, if not, whether the approach occasioned miscarriage of justice to warrant interference by the Supreme Court in the circumstances (Original grounds 1,2,3,4 and 5)

(b) Whether the lower court occasioned miscarriage of justice by ignoring the preliminary objection as to the competency of the substantive appeal in considering the merit vel non of the appeal (Additional ground 6).”

Arguing issue 1, learned senior counsel stated that Order 27 rule 10 of the Rules of court under which respondent brought the application confers on the trial court discretion as to whether or not to set aside the default judgment. Learned counsel then referred to the issue for determination in the lower court as formulated by the counsel for the appellant therein and the one formulated by the lower court and submitted that the dispute between the parties in that court had nothing to do with the issue as to whether or not the defendant ought to have been allowed “to put in his defence” as the lower court seems to have dwelt upon in arriving at its decision to allow the appeal. Referring the court to pages 122 to 124, learned senior counsel submitted that the lower court erroneously decided the appeal as if the issue in controversy was an application by the defendant for enlargement of time within which to file a defence whereas no such issue was presented; that at the time judgment was entered, neither the respondent (defendant) nor his counsel said anything about the filing of a statement of defence neither was there any application before that court for leave to file a statement of defence out of time; that the affidavit in support of the motion for judgment was therefore unchallenged. Learned senior counsel submitted further that the sole ground of appeal before the lower court did not complain about refusal to let in defence, thereby rendering the opinion of the lower court in the pages of the judgment earlier referred to, irrelevant for the determination of the issue before that court, and that this court ought to disregard same relying on Iweka v. SCOA (Nig.) Ltd. (2000) 7 NWLR (Pt.664) 325.

Learned counsel then submitted that the principles establishing the correct approach to be adopted in reviewing exercise of judicial discretion on appeal are as stated by the Supreme Court in the case of University of Lagos v.Aigoro (1985) 1 NWLR (Pt.l) 143; Enekebe v. Enekebe (1964) 1 All NLR 102; Demuren v. Asuni (1967) 1 All NLR 94; Solanke v. Ajibola (1968) 1 All NLR 46; Ngwu v. Onuigbo (1999) 13 NWLR (Pt.636) 512 and Oyekanmi v.N.E.PA (2000) 15 A NWLR (Pt.690) 414. Learned senior counsel further submitted that since the lower court took a manifestly wrong view of the case presented at the trial court in arriving at its decision, this court ought to set same aside; that it is not correct, as stated by the lower court, that the trial court closed its eyes to the statement of defence exhibited to the affidavit in support of the motion to set aside the default judgment because at page 61, the trial Judge did comment on the issue; that the conduct of the party applying to set aside judgment in default is always a relevant consideration in dealing with such an application since the relief is equitable and that he who comes to equity must come with clean hands, learned counsel further submitted that it is not correct that a statement of defence was filed before the court resumed sitting on 8th October, 1996 neither was the attention of the trial court drawn to that fact; that the trial court considered all the relevant principles applicable to the exercise of its discretion and found no merit in the application and that the lower court erred in reversing that ruling. Learned SAN then urged the court to resolve the issue in favour of the appellant.

On his part, learned counsel for the respondent, E. C. Ukala, Esq. in the respondent’s brief filed on 19/9/03 submitted that the argument of learned senior counsel for the appellant on the issue is misconceived, the law being that a Court of Appeal is entitled to interfere with the exercise of discretion of the trial court in certain circumstances such as:-

(a) Where the lower court failed to act judicially and/or judiciously.