Musa Alabi V.kamali Lawal & Anor (2003)
LawGlobal-Hub Lead Judgment Report
MURITALA AREMU OKUNOLA, J.C.A.
This is an appeal against the judgment of the High Court of Justice, Ile-Ife, Osun State presided over by Ogunsola, J. and delivered on 14th day of October, 1997 wherein judgment was entered in favour of the plaintiffs/respondents in default of both the memorandum of appearance and statement of defence.
The facts of this case briefly put were as follows:
The respondents herein as plaintiffs sued the appellant herein as defendant at the High Court of Justice, Ile-Ife herein-after referred to as the lower court. The respondents in their writ of summons filed at the lower court claimed as follows:
“The recovery of the total sum of N27,010.50 being outstanding Isakole payable under native law and custom by the defendant to the plaintiffs’ family in respect of the farmland at Kilibi village via Oyere which is within Ife Judicial Division, which farm has been held as tenant by the defendant. The said Isakole dues are made up as follows:-
a) Cost of one hundred weight of good dried cocoa or its money’s worth for 1994 ..N6.000.00
b) Cost of one tin of palm oil or its money’s worth N3002 for 1994 …N3,002.00
c) Isakole one kolanut…N1.50
a) Cost of one hundred weight of good dried cocoa or its money’s worth for 1995 ..N6,000.00
b) Cost of one tin of palm oil or its money worth N3,002 for 1995 …N3,002.00
c) Isakole one kolanut N1.50 for 1995…N1.50
a) Cost of one hundred weight of good dried cocoa or its money’s worth for 1996 ..N6,000.00
b) Cost of one tin of palm oil or its money’s worth for 1996…N3,002.00
c) Isakole one kolanut…N1.50
TOTAL:N27,010.50
The respondents filed along with the writ of summons a 15 paragraph statement of claim.
By a motion on notice dated 10th July, 1997, the respondents prayed the court for an order entering final judgment against the appellant for default of memorandum of appearance and pleadings.
When the matter came up in court on 14th of October, 1997, the parties were in court but the appellant was not represented by counsel. Rather, his lawyer wrote a letter asking for adjournment.
The court asked the respondents’ counsel to move his motion because the court could not locate the letter in his record.
The respondent moved the application and the court entered judgment in favour of the respondents in the sum of N27 ,010.50 without calling on the appellant to respond to the application. The appellant filed application to set aside the judgment but this was refused. It is against this judgment of the lower court which awarded the sum of N27,010.50 (Twenty seven thousand and ten Naira, fifty kobo) that the appellant has appealed to this Honourable Court on three grounds. However, in view of the decision in Adisa v. Oyinwola (2000) 10 NWLR (Pt.674) 116 which set aside decisions in Oyeniran v. Egbetola (1997) 5 NWLR (Pt.504) 122 and other similar decisions, the appellant dropped ground one of the grounds of appeal which challenges the jurisdiction of the High Court to entertain the action.
The appellant also abandoned ground 3 of the notice of appeal.
However, from the remaining one ground of appeal, the appellant raised a single issue for determination in this appeal, with which the respondents agreed, viz:
“Whether the trial court adopted the proper procedure before default judgment was entered against the appellant.
Both learned counsel to the parties have filed their briefs of argument on behalf of their respective clients”. On 22/1/03 when this appeal came before us for hearing, both learned counsel to the parties adopted and relied on the briefs filed herein on behalf of their respective clients and addressed us viva voce. Learned counsel to the appellant Mr. A. Adenipekun leading Messers V. F. Omage and A. Adeyinka for the appellant adopted and relied on the appellant’s brief filed herein on 21/3/01 and urged the court to allow the appeal.
By way of reply, learned counsel to the respondents Mr. C. O. Arasanmi also adopted and relied on the respondents’ brief filed herein on 27/4/01. He informed the court that facts in the respondents’ brief are borne by the records of the lower court.
Learned counsel urged the court to dismiss the appeal and consider the provision of S.33(1) of the 1979 Constitution which is similar to the provision in the 1999 Constitution. On being asked whether he had anything to add, learned counsel to the appellant replied in the negative.
I have considered the submissions of both learned counsel to the parties as contained in their briefs of argument vis-a-vis the records and the prevailing law on the single issue. Before giving my views on them it is necessary to have a brief review of these submissions as summarised in their respective briefs where both learned counsel addressed us copiously on the sole issue.
By way of summary on page six of the appellant’s brief learned counsel to the appellant submitted that in this appeal, the appellant was present in court while the respondents moved their motion. He was not called to react and judgment was entered against him without hearing him. Learned counsel submitted that the appellant had been denied fair hearing hence the appeal ought to be allowed and the judgment of the trial Judge set aside.
By way of reply, learned counsel to the respondents by way of summary on pages 5 & 6 of the respondents’ brief submitted after referring to the case of Oba Jacob Oyeyipo v. Chief J.O. Oyinloye (1987) 1 NWLR (Pt.50) 356, (1987) 2 SC 148 that:
“As in the above cited Supreme Court case, appellant flagrantly demonstrated his apathy to this case even to the extent of not filing even a memorandum of appearance or statement of defence. At his instance and in order to accord him a fair hearing, the case was adjourned twice to enable him engage a legal practitioner to prosecute his case for him by filling a memorandum of appearance and a statement of defence.
The last adjournment being for three months: From 29th July, 1997 to 14th October, 1997. Even on 14th October, 1997 when the parties were present in court and the court was intimated with the letter for an adjournment which the court did not receive, the court still searched for the said motion in the file without success and discovered that it was a ruse. The court then asked the appellant what he intended to do, he kept mute which was a contrast to his reaction on 29th July, 1997 when he told the court that he did not want to contend with the respondents who are his landlords”.By way of conclusion, learned counsel to the respondents submitted that in view of the facts and authorities stated above, coupled with the need to be fair to both sides, the court is urged to dismiss the appeal and uphold the decision of the lower court.
I have considered, as reiterated earlier, the submissions of both learned counsel to the parties vis-a -vis the records and the prevailing law. In my view the pertinent question to be answered is whether the procedure for the granting of default judgment had been satisfied or observed in the instant case vis-a -vis the principle of fair hearing.
To be able to answer this question, a brief recap of the facts will be necessary. The plaintiffs/respondents filed the writ of summons with a 15 paragraph statement of claim. By a motion on notice dated 10/7/97 the respondents prayed the court for an order entering final judgment against the appellant for default of memorandum of appearance and pleadings. When the matter came up later in court on 14/10/97 the parties were in court but the appellant was not represented by counsel. Rather, his counsel wrote a letter asking for adjournment. The court asked the respondents’ counsel to move his motion because the court could not locate the letter in his record. The respondents’ counsel moved his application and the court entered judgment in favour of the respondents in the sum of N27,010.50 without calling on the appellant to respond to the application. The appellant filed application to set aside the judgment but this was refused. The above plank is the pivot upon which this appeal rotates.
The poser raised here is whether in entering the default judgment, the learned trial Judge had adopted the proper procedure before default judgment was entered against the appellant. This poser had come for consideration and adjudication by the Supreme Court in a plethora of cases particularly in one which is in all fours with the instant appeal – Mohammed Ndejiko Mohammed & 4 Ors. v. Mohammed Husseini & Anor. (1998) 12 SCNJ 136, (1998) 14 NWLR (Pt.584) 108 pages 135-136 where the Supreme Court laid down the procedure with respect to entering a default judgment per Wali, JSC thus:
What I saw on this issue is recorded on page 112 of Vol. 1 of the record of proceedings as follows:-
“Otaru: Having regard to the fact that the defendants have been duly served, I am applying under Order 37 rule 7 of the rules of this court for leave to prove the plaintiffs’ case. To this end I am calling 2 witnesses”.
The learned trial Judge in a short ruling granted the application having been satisfied that exhibits ‘A’ –
A3′ the hearing notice of this proceedings were served on the defendants through their counsel:-
” … I am satisfied that prima facie they have no reasonable cause to be absent from the court this morning considering the fact that the hearing notice was served on them since 15th July, 1992 as per affidavit of service exhibits ‘A’ – ‘A3’. Exhibits ‘A’ -‘ A3′ have not been made part of the record. The record did not also contain a copy of the drawn up order following the delivery of the judgment, which learned counsel for the appellants referred to. This apart, it appears to me that the application to proceed with the hearing of the case and to prove same was made orally on 19th November, 1992 and granted on the same date. The respondents were not served with the hearing notice for the appellants to prove the case on that date. In my view, the proper thing for the trial court to do was to adjourn the case to another date for proof and to put the other counsel on notice of the new date, particularly when the previous time the parties appeared in court on 15th May, 1992, the case was adjourned sine die. The default judgment could have been set aside even on this ground. See Okafor & Ors. v. Attorney-General, Anambra State & Ors. (1991) 6 NWLR (Pt.200) 659 where the Court of Appeal set aside its own judgment on application by the defendants when it considered the appeal on the briefs filed by the parties ahead of the time fixed for the hearing of the appeal. On appeal against the Court of Appeal setting aside its own judgment delivered in the circumstance stated supra, this court dismissed the appeal and stated –
“Where the Court of Appeal has adjourned hearing of an appeal to a particular date but delivers judgment before such hearing date fixed, even where briefs having been filed, such a judgment delivered is irregular having been given prematurely and is entitled to be set aside as an infringement of the constitutional right to fair hearing”.
In the instant case, the judgment of the Court of Appeal delivered on 11th April, 1988 before the hearing date of June, 1988 was irregular, having been given prematurely.
The view of the Supreme Court in the above authority is that judgment obtained when one party is absent or in default of filing of statement of defence or denied of fair hearing can be set aside by the trial Judge or the appellate court. Like in Mohammed v. Husseini (supra) counsel moved the motion praying the court to enter judgment in default of statement of defence, the respondents’ counsel wrote for adjournment which letter the trial Judge sought for but could not locate, he ordered the plaintiffs/respondents’ counsel to move the motion and without calling on the defendant/appellant who was present in court entered judgment in favour of the plaintiffs/respondents as contained in the writ of summons/statement of claim.
In my view, this procedure is irregular and it is not in accord with the constitutional provision for fair hearing as in S.33(1) of the 1979 Constitution. The appellant was not served with the hearing notice for the respondents to move their motion on that day. What is more after the respondents’ counsel had moved the motion for judgment the court ought to ask the defendant/appellant about his reaction. This the court failed to do in breach of S. 33(1) of the 1979 Constitution. This was aptly put by Wali, JSC in Mohammed v. Hussieni (supra):
“In my view, the proper thing for the trial court to do was to adjourn the case to another date for proof and to put the other counsel on notice of the new date …”
I agree with the above statement of the law as put by the Supreme Court. In the circumstance, there were two breaches of the constitutional provision for fair hearing committed by the learned trial Judge viz: failure to adjourn the matter to another date to enable the defendant to bring his counsel to court since it is on record that the appellant’s counsel wrote for adjournment and failure of the learned trial Judge to ask for the reaction of the defendant/appellant before entering judgment against him. What is more, the learned trial Judge was in error for failing to set aside the default judgment he entered in breach of the principle of fair hearing. See Mohammed & Ors. v. Hussieni (supra); Oba Jacob Oyeyipo & Anor. v. Chief J. O. Oyinloye (1987) 1 NWLR (Pt.50) 356, (1987) 2 SC 148 p.172 where the Supreme Court per Karibi-Whyte, JSC held thus:
“Alternatively, the jurisdiction of the Supreme Court even if sitting in Chambers to hear and determine an appeal without hearing the parties, raised issue of fair hearing”.
There is no doubt that such an act by the trial court violated the principle of audi alteram partem.
The importance of this fundamental principle to the administration of justice had been stressed in important decisions ranging from Cooper v. Wandworth Board of Works (1863) 14 CBNS 180, 190, or 143 ER 414 at p.420 to the dictum of Byles, J., General Medical Council v. Spackman (1943) AC 627 at p.644, the dictum of Lord Wright, Denning L.J. in Annamunthodo v. Oilfields Workers Trade Union (1961) AC 945 at 954, and Lord Hodson in Ridge v. Baldwin (1964) AC 40 p. 128. See also the recent Supreme Court decisions in The State v. Olu Onagoruwa (1992) 2 NWLR (Pt.221) 33, (1992) 2 SCNJ 1 where the Supreme Court held that:
“Failure to hear opposing party in an application before granting the application as was done in the instant case amounts to a denial of fair trial. Once the right to fair hearing is breached, it is irrelevant whether the decision arrived at subsequently is correct”.
The apex court further held that it is improper to rule on a motion without hearing parties or their counsel. See Onwumeri & Long John v. Chief Crawford N. Blakk & Ors. (1998) 6 NWLR (Pt. 555) 524, (1998) 5 SCNJ 68. It needs to be stressed here that the courts in Nigeria are required to observe compliance in regard to fair hearing in all cases such that a breach of it renders proceedings in the case null and void in any event. This is moreso in matters relating to the principle of audi alteram partem. See Chungworm Kim v. The State (1992) 4 NWLR (Pt.233) 17, (1992) 4 SCNJ 81. The same thing applies when other aspects of fair hearing are breached. See Rasaki A. Salu v. Madam Towiwo Egeibon (1994) 6 NWLR (Pt. 348) 23, (1994) 6 SCNJ 223; Thomas Eniyan Olumesan v. Ayodele Ogundepo (1996) 2 NWLR (Pt.433) 628, (1996) 2 SCNJ 172; Mohammed Oladepo Ojengbede v. M.O. Esan & Anor. (2001) 18 NWLR (Pt.746) 771, (2001) 12 SCNJ 401.
In the light of the foregoing authorities, it is my view that this appeal is meritorious and for breach of the constitutional provision of S.33(1) of the 1979 Constitution, this appeal is allowed. The proceedings as well as the decision of the lower court are hereby set aside. The case is hereby remitted to the Chief Judge of Osun State for assignment to another Judge other than the trial Judge in the High Court of Justice, Ile-Ife. I make no order as to costs.
Other Citations: (2003)LCN/1367(CA)