Nigerian Agricultural and Co-operative Bank Limited V. Mr. Lewechi Ozoemelam (2004)

LawGlobal-Hub Lead Judgment Report

SALAMI, J .C.A.

In the High Court of Kaduna State, sitting in Kaduna, the appellant applied under Order 21 rule 3(1) and (2) and Order 36 rule 9 of the Kaduna State High Court (Civil Procedure) Rules, Cap. 68 of the Laws of Kaduna State of Nigeria, 1991, praying for the following reliefs-

“1. Extension of time within which to apply to set aside the judgment of this court dated 28th day of May, 1999, delivered in favour of the plaintiff in default of the defendant’s appearance.

2. Setting aside the judgment of this court in this suit, originating summons delivered in default of the defendant’s appearance on 28th May, 1999.
3. An order staying further execution of the judgment of this Honourable Court particularly the sale of the defendant’s bus Toyota Reg. No. AJ 966 DKA pending the determination of this application.
4. An interim order releasing the afore-described vehicle before or at the hearing of this application.”

The learned trial Judge, in a reserved and considered ruling, refused to exercise his undoubted discretion in favour of the applicant on account that there had been an inordinate delay between the time the judgment was delivered and the date the application was brought.

The synopsis leading to the filing of the application on appeal now is that the respondent commenced an action by originating summons against the appellant. It was fixed for hearing on the 1st of February, 1999. The appellant, though served, was neither present in court nor represented. The matter was therefore heard and reserved for ruling on 19th February, 1999, when ruling was unavoidably not ready for delivery on that day and was eventually delivered on 28th day of May, 1999.

It is pertinent to note that the applicant was only aware of the proceedings of the 1st February, 1999, having been served with the originating summons, but it was unaware of the subsequent dates of 19th February, 1999, as well as the 29th May, 1999, as no hearing notices were issued to the appellant against those dates. The appellant claims that, upon becoming aware of the judgment, filed an application for enlargement of time within which to apply to set aside the judgment and order setting the same aside.

It is against the ruling refusing the application on 12th February, 2001, that the appellant has appealed on two grounds of appeal. Briefs of argument were filed and exchanged at appellant’s and respondent’s briefs of argument. The parties formulated issues in their respective briefs of argument. The appellant framed the following issues –

“3.1 Whether the learned trial court was right to refuse to extend time within which to set aside the court’s judgment of the 28th of May, 1999, for the reason of lapse of time between when the judgment was delivered and when the application was brought. Ground 1.

3.2 In the face of haphazard or unforeseen adjournments, whether failure to serve the appellants with hearing notices of all subsequent sittings, including the date for judgment did not nullify the proceedings and judgment of the lower court and whether in the circumstances the lower court ought to have set aside the judgment.”

The respondent in his brief of argument framed the following issues for determination-

“1. Whether the learned trial court in the circumstances of the present case applied the correct principles governing the determination of the applications to set aside default judgments.

2. Whether given the facts and circumstances of this case the lower court was right in refusing to extend the time to apply for the setting aside of its judgment delivered on the 28th day of May, 1999.”

At the hearing of the appeal learned Counsel for appellant, Mrs. Daudu, adopted and placed reliance upon appellant’s brief prepared by Z. Bello (Miss) which was deemed properly filed and served on 20th March, 2003. Learned Counsel for appellant had nothing further to urge outside the brief of argument. Mr. Okoye, learned Counsel for respondent, also merely adopted and relied on the respondent’s brief deemed as properly filed and served on 27th January, 2004. He, too, did not adumbrate on the respondent’s brief of argument.

In arguing issue 1, which is derived from ground 1 of the grounds of appeal, learned Counsel for appellant contended time was a most irrelevant factor to take cognizance of in considering whether to grant the application for extension of time by virtue of the fact that the appellant was not aware of the judgment of the court. Learned Counsel for appellant referred to Order 36 rule 9 relied upon by the learned trial Judge provides that application to set aside the judgment must be brought within 6 days or within longer period as the court may allow for good cause shown and submitted that the fact of appellant’s ignorance of the court’s decision is a good cause for bringing the application within a longer period. In further support of his argument, learned Counsel craved the support of Order 37 rule 6 of the Kaduna State High Court (Civil Procedure) Rules, which counsel contended deals specifically with originating summons and argued that it was the more reason for granting the extension of time. Learned Counsel finally submitted that parties can only be said to have notice of judgment, either if they were in court when the date of judgment was announced or if they were put on notice in accordance with the provisions of Order 39 rules 2 and 3 of the High Court (Civil Procedure) Rules.

Learned Counsel for respondent contended that learned trial Judge predicated his refusal of the application on the fact that appellant was served hearing notice to appear in court on the 1st day of February, 1999, but opted to stay away nor represented. Learned Counsel conceded that although Order 36 rule 9 of the High Court (Civil Procedure) Rules (supra) allows the bringing of application to set aside judgments obtained in default of appearance within a period of six days of the delivery of such judgment he contended that the appellant failed or refused to bring the application within 6 days rather brought the application more than one year and six months. Learned Counsel submitted that appellant had not shown good cause.

I respectfully disagree with the submission of the learned Counsel that time is not of essence in considering whether or not to grant the application for extension of time. The mere fact that the appellant asked for enlargement of time at the court below manifestly demonstrates that time was a most relevant factor. It is pertinent to consider the provisions of Order 36 rule 9 as well as Order 37 rule 6 of the High Court (Civil Procedure) Rules relied upon by the learned senior counsel for appellant. Order 36 rule 9 thereof provides thus-

“9. Any judgment obtained where one party does not appear at the trial may be set aside by the court upon such terms as may seem just, upon an application made within six days after the trial or within such longer period as the court may allow for good cause shown.” (Italics mine)

And Order. 37 rule 6 provides that –

“6. The court by whom an originating summons is heard may, if the liability of the defendant to the plaintiff in respect of any claim, made by the plaintiff is established, make such order in favour of the plaintiff as the nature of the case may require, but where the court makes an order under this rule against a defendant who does not appear at the hearing, the order may be varied or I revoked by subsequent order of the court on such terms as it thinks just.” (Italics mine)

Both provisions confer trial court with jurisdiction to set aside order made in the absence of one of the parties. While the provisions of Order 37 rule 6 do not expressly provide for time limit as it is (provided for in Order 36 rule 9 it seems to me that the time limit is implicit in Order 37 rule 6. Learned Counsel rightly, in my opinion, recognized this point, hence his application and submission in support of asking for enlargement of time. I am encouraged in the view that time is relevant, even where the action is commenced by originating summons, because Order 36 deals with trial proceedings in general which, to my mind, includes trial proceedings in an action brought under originating summons. I have, however, not been shown any provision of the rules exempting action brought under originating summons from the provisions of Order 36 particularly rule 9. Order 37 rule 6, to my mind, does not contemplate more than it has provided. The provision is merely to the effect that orders made pursuance to an action commenced by originating summons, against a defendant who did not appear, could be varied or revoked by the trial Judge without undergoing the ordeal of an appeal.

Learned Counsel, in my respectful opinion, did fully appreciate the purport of the provisions of the rule and merely relied on it probably to contend that it would have enthused the learned trial Judge to grant extension of time.

It is common ground that the appellant was served with a hearing notice fixing the suit for hearing on the 1st day of February, 1999. It did not attend to the command of the court, ordering him to be in court nor was it represented on that day when the action was heard. The respondent who was in court, presented and closed his case and the appellant not being in court to present its case and proffering no explanation for its absence, the matter was then adjourned for delivery of judgment on 19th February, 1999. On that day, for one reason or the other, the judgment was not delivered, it was eventually delivered on 28th May, 1999. The appellant has not explained in his affidavit why it was not in court on 1st February, 1999.It had also failed or refused or neglected to find out what took place on the day the action was fixed for hearing when it was neither present nor represented in court. The appellant did nothing in this regard until 28th December, 2000, more than one year and six months after the judgment had been delivered. According to the appellant, it was the execution of the judgment that brought its attention to the fact that judgment had been delivered though not so averred in affidavit in support of the application. In my respectful opinion, the appellant has not only shown that it is negligent but also indolent. Equity does not assist the indolent. It has a duty to find out what became of its case on 1st February, 1999, when it was scheduled for hearing. It did nothing of its sorts. In a not too dissimilar circumstance, in the case of Kano ile Printers Plc. v. Gloede & Hoff(Nig.) Ltd. (2002) 2 NWLR (Pt.751) 420, 460 this court per Salami, JCA, said-

“A litigant is required to be vigilant and diligent. He has a duty to check on what happened to his case and where he defaults he pays the price. The appellant’s behaviour to a clear directive of the court below on hearing date is tardy. It is not entitled to a discretion of the court.”

See Moukarim v. Agbaje (1982) 11 SC 122; John v. Blakk (No.2) (1988) 4 NWLR (Pt.90) 539, 459 – 460 and Govt. of Benue State v. NCC (1997) 3 NWLR (Pt.495) 610.

Inspite of this, it seems to me that the appellant who did not depose to a further affidavit seems to have admitted the averments contained in paragraph 5(a) – (b) of the counter-affidavit in the alternative the averments therein remained unchallenged and uncontroverted. The sub-paragraphs read as follows –

“That I am further informed by Festus Okoye of counsel and I verily believe him to be true and correct that the facts deposed in paragraph 3(k) – (n) of the defendant/judgment debtor/applicant are not true and that the true facts of the case are as follows –

(a) That Alhaji Shehu Yero, the Branch Manager (Kaduna Branch Office) of the defendant/judgment debtor/applicant was aware of the ruling of this Honourable Court and decided willfully not to comply with the said order.

(b) That Mr. Appolous Chikezie also informed the said Alhaji Shehu Yero about the judgment of the court and he willfully and with impurity decided not to comply with the ruling of the court.”

These averments which remained unchallenged and uncontroverted are capable of belief: where the averments of an affidavit remain unchallenged or undenied the court is left with no choice, but to believe the averments that are not controverted – A.M.F. Agbaje v. Ibru Sea Food Ltd. (1972) 5 SC 50. Clearly, they proved that the appellant’s were aware of the order of the trial court but willfully decided not to comply with it nor took step or steps to have it set aside.

I agree with the submission of the learned Counsel that a party can only be said to have notice of a judgment, if they were in court when the day of judgment was announced or if they were served with a notice of judgment in accordance with the provision of Order 39 rules 2 and 3 of the High Court (Civil Procedure) Rules. But what do you do with a litigant who treated the process of the court with levity and refuses to find out what has happened to his case like the instant appellant. Moreover, a party is deemed to have knowledge of the existence of a judgment if he were informed by a person who has knowledge of the delivery of the judgment as in the instant case. The appellant failed to go to the court on the day fixed for hearing of his action when the trial was concluded and judgment reserved. If by his own default he deliberately disobeyed the order of court inviting him to court without proffering any shred of explanation for his conduct and was also not represented in the court below he has no one, in my respectful opinion, to blame but itself for not hearing the announcement of the day fixed for judgment.

Thereafter, he did not go to the court to find out what took place and when he was accordingly informed by the respondents he treated the information with levity and impunity and above all contempt. It is because of his behaviour or attitude to the whole proceedings that he neglected or failed to avail itself of the opportunity, which afforded itself by the long period between the conclusion of the respondent’s case and the delivery of the judgment, to bring an application to enable it present its defence. During the time for which the judgment was reserved, if the appellant were diligent, it could have brought an application for the case to be reopened to enable it present it’s defence. Even though it had ample opportunity to do so, it did nothing of the sort. It’s conduct clearly manifests lack of interest on the part of the appellant to defend the suit.

I, however disagree with the submission of the learned Counsel for appellant that the appellant was unaware of the judgment of the court and the court refusal of the application tantamounts to breach of its fundamental right to fair hearing and that it was trite, that such breach nullifies the proceedings. I am unable to appreciate how failure to extend time for an applicant who was notified of the hearing date and failed to turn up and did not show cause why he was absent from court on the day fixed for hearing of its case constitutes a breach of its fundamental right to warrant nullification of the proceedings. The appellant counsel must appreciate that his client was commanded by originating summons, which was duly served on him to be in court on 1st day of February, 1999. He rebuffed or treated the court process with contempt. If he had gone to court on that day, in obedience to the court process, he would have been part of the day’s proceedings and would have known the stage the proceedings reached. But he chose to stay away. He has equally defiantly refused, failed or neglected to explain his absence from court. In my respectful view, it is not open to such litigant which treats the court disrespectfully to complain that it had not been served with further hearing notice, informing him of the date fixed for judgment. It is attitude such as this and indulgence extended to such litigants that are responsible for the clogging of our courts. It must be borne in mind that rules of court are made to be obeyed. Learned Counsel respectfully must appreciate that public policy demands that there should be an end to litigation, which is rendered in Latin thus – interest reipublicae ut, sit finis litium and also that his clients is not entitled to benefit from its own wrongful act.

The applicant did not apply within six days of Mr. Chikezie informing it of the judgment of the court. The applicant did not have a further affidavit denying that Chikezie informed him of the judgment. It failed to disclose throughout the length and breath of its affidavit in support of the application, the time when the judgment came to its knowledge. I am not unaware that the writ of execution attached to the affidavit in support, exhibit 3, was issued on 2nd December, 2000. The application was made on 28th December, 2000. The period between the service of the writ of execution, if that document brought to the attention of the appellant the fact of the judgment, the day the application was made from 2nd December, 2000, was clearly outside the six days allowed by the provisions of Order 36 rule 9. Assuming that was the time appellant knew that judgment had been entered against it, without so deciding, there is no jot of evidence explaining why the appellant failed to apply for the re-listing of the suit for hearing within the time specified by the rule under consideration.

An application for enlargement of time is an exercise of discretion, which must be exercised not only judicially but also judiciously. The appellant’s posture is that the application was a mere formality, which must be granted as a matter of course. The Supreme Court observed in Nigerian Ports Authority v. C.G. Spa & Others (1974) 12 SC 81 at p. 91 as follows –

“interest of justice does not mean just the interest of the applicant; it also includes the interest of the respondent and the court.”

See also Akanbi v. Alao & Ors. (1989) 3 NWLR (PU08) 118, 158 and in the case of Kano ile Printers Plc. v. Gloede & Hoff Nigeria Ltd. (2002) 2 NWLR (pt.751) 420, 463; in furtherance of its functions as court of law as well as of equity, this court observed thus on the principle of audi alteram partem –

“The principle that the other party must be heard, in my respectful opinion, does not mean that he must be heard willy nilly. The rule of audi alteram partem means no more than offering each party opportunity to be heard. If after affording a party opportunity to be heard and such party fails to avail itself of the opportunity it is his own funeral. It does not mean that the other party should be put in jeopardy. If the concept means that such a party must be heard under all circumstances, it will place at advantage and at expense of doing substantial justice, a litigant who has no defence to an action, but who will want to dribble, frustrate and cheat the other party out of the judgment which he is entitled to by delaying tactics aimed at gaining time within which he may continue to postpone meeting his obligation and indebtedness to the peril of the plaintiff. After all a court arena is not equivalent of a football pitch. It is the seat of justice. And the interest of justice dictates that the prayer of the claimant must be acceded to. See NAL Merchant Bank Ltd. v. Macaulay (1986) 5 NWLR (pt.40) 216 and Nishizawa v. Jetwani Ltd. (1984) 12 SC 234.”

As observed earlier in this judgment, the reason for the appellant absence from court in obedience to court order remains shrouded in mystery. The appellant has equally defaulted to show cause why the application should be permitted. It is, therefore, not for the court to bend backward over to scrounge for excuse on behalf of the appellant. The courts primary function is to tend the rope not to jump into the arena otherwise its eyes will be covered by dust rising from the arena.

My answer to this issue is positive. Ground 1 of the grounds of appeal from which issue 1 was formulated fails and is dismissed. Since the prayer for enlargement of time has failed, it becomes academic to resolve issue 2 in the appellants brief. An appellate court, such as this, will only concern itself with only the real issues of fact placed before the trial court and not fanciful or speculative ones. See Akeredolu v. Akinremi (No.2) (1986) 2 NWLR (Pt.25) 710, 725 and Eperokun v. University of Lagos (1986) 4 NWLR (Pt.34) 162, 179 where Obaseki, JSC expressed the opinion on the matter as follows –

“This court has held repeatedly that it is not part of its function to entertain and decide hypothetical and academic questions … ”

I am further strengthened in this opinion on account that the relief is being sought merely to assuage a wounded pride. The respondent purchased a property from one, Apolus C. Chikezie, unknown to him that his vendor had already mortgaged the same property to the appellant. The appellant on becoming aware of the transaction between the respondent and its customer, Chikezie, wrote to warn the respondent of its relationship with Chikezie. Appellant further stated that the documents in respect of the property would not be released except on full liquidation of the loan. The total loan outstanding was N89,736.31 which the respondent settled on two Savannah Bank of Nigeria Plc. drafts. The repayment was duly acknowledged by the appellant as per its official receipts. See the attachment to the counter affidavit at pages 38, 39 and 40 of the record of proceedings. Thereafter, the appellant raised the mundane excuse concerning the issue of letter of release from Chikezie. In other words, it required authority from the mortgagor to release the document of the mortgaged property to the respondent which authority or permission Mr. Chikezie promptly gave as far back as 6th December, 2000, at page 31 of the record. The parties in the circumstance, can easily iron out their differences amicably without any further court proceedings. Once the document is released to the respondent, the issue arising from the decision of the court below delivered on 28th May, 1999, would become a matter of the past.

The appeal fails and is dismissed with costs which is assessed at N5,000.00 to the respondent.

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Other Citations: (2004)LCN/1633(CA)