N. A. Williams & Ors. V. Hope Rising Voluntary Funds Society (1982)

LawGlobal-Hub Lead Judgment Report

IDIGBE, J.S.C. 

This appeal challenges the decision of two of three learned Justices of Appeal in the Federal Court of Appeal holden in Lagos (hereinafter referred to simply as “the Court of Appeal”) dismissing an appeal from the decision of Ajose-Adeogun J. in the High Court of Lagos State setting aside his judgment, in Suit IK.263/72, given in the absence of the respondent and by which he ordered in favour of the appellants that N50 damages for trespass to land in possession of the appellants be paid by the respondent who was also restrained from entering upon the said land.

The appellants’ claim for damages and injunction against the respondent relate to a parcel of land lying and situate at Adeshina Street, Mushin in Lagos State. In the words of Lord Scarman-in Gleaves v. Deakin and Others, Regina v. Wells Street Magistrate Exparte Deakin [1980] A. C. 477 at 494-the appeal is, indeed, “a rare bird to fly at this altitude” because litigants do not frequently get to the level of this court merely to challenge the exercise of a trial judge’s discretion in setting aside his own judgment delivered in the absence of one of the parties in a case before him, with a view to giving the other party opportunity of being heard unless, of course, such exercise has patently resulted in the prejudice or embarrassment of the party in whose favour the original judgment subsisted; and this usually is the case where third party rights have intervened pursuant to the original judgment.

The facts which led to this appeal, so far as they are material to the question which calls for our determination, are:

(1) That the respondent was absent at the hearing of the appellants’ claim (for damages for trespass to land and injunction) in the High Court on 21st February, 1977, when the learned trial Judge after hearing evidence from two witnesses for the plaintiffs (i.e. the appellants), gave judgment in their favour as already stated.

(2) That pursuant to an application filed on 16th March, 1977, (more than three weeks after the judgment of the 21st day of February, 1977). The Respondent, and praying the Court for the following:

(a) an order for extension of time within which to apply to set aside the judgment aforesaid (the application having been made to the Court after the period of six days within which it was required, by the Rules of the High Court of Lagos State, to be made);

(b) “An order relisting the said matter for trial on its merits”; and

(c) “An order setting aside the said judgment obtained by the plaintiffs” (i.e. appellants) in the absence of the respondents-the learned trial Judge on the 4th day of July, 1977, granted the said reliefs.

(3) That on the 27th day of February, 1980, the Court of Appeal Coker and Uthman Mohammed J.C.A.; Nnaemeka Agu J.C.A. dissenting] dismissed the appellants’ appeal from the judgment on the High Court the 4th day of July, 1977.

The principal grounds of appeal filed by the appellants and argued before us are:

(1) The Federal Court of Appeal erred in law in dismissing the appeal when it was clear from the record that there was no material on which the learned trial Judge exercised his discretion in granting an order for extension of time within which to apply to set aside his own Judgment” (underlining by me).

(2) Having found that the defendant/respondent gave no reason for delay in bringing their application to set aside the judgment within prescribed period of six days the Federal Court of Appeal erred in law, in holding that this fact is not sufficient reason to refuse the application for extension of time” (underlining by me).

3) “The Federal Court of Appeal misdirected itself when it held as follows:’The proper question this Court has to answer is did the trial judge wrongly exercise its (sic) discretion in favour of the defendants by giving them another opportunity of being heard; particularly having held that they have a bonafide intention to defend the action with a possibility of success.