Oba Adeyinka Oyekan II & Ors V. Mr. Elli Rossek (2009)

LawGlobal-Hub Lead Judgment Report

CLARA BATA OGUNBIYI, J.C.A.

This is an appeal against the decision/ruling delivered by the Lagos State High Court on the 17th day of January, 1995.

The Appellants who are all representatives of Docemo Royal family instituted this suit by filling the writ of summons and the statement of claim wherein they prayed for an order granting them the right, or re-entry and repossession of the piece of land, building and property therein, known and situate at No.2, Pedro Street, Lagos which property belongs to the King Docemo Royal Family (see pages 1-6) of the records.

After an unsuccessful attempt at personal service of the writ of summons and the statement of claim on the defendant/respondent the plaintiffs/appellants filed a motion ex-parte wherein they prayed the court, for an order for substituted services, (see pages 11-12) of the records.

The motion ex-parte for substituted service came up for hearing on the 2nd day of August, 1995. After the motion was moved by counsel for the plaintiffs/appellants, the lower court granted the orders as prayed and fixed the 16th day of October, 1995 as return date. (see page 13 of the records).

In response to the service of the originating processes, dated 21st day of August, 1995 the defendant/respondent did not file statement of defence. The plaintiffs/appellants, in the meantime, served on the Chambers of G.O.K. Ajayi SAN a motion dated the 3rd day of October, 1995 for judgment in default of defence.

On the 16th October, 1995 the court by its ruling at page 21 of the printed record entered a default judgment for the plaintiffs in terms of their writ of summons and statement of claim.

By a motion on notice dated 8th and filed 11th December, 1995, the defendant/respondent’s filed an application before the lower court for an order setting aside the judgment in default and the execution thereof. The motion was supported by a 14 paragraphs affidavit. Although the plaintiffs/appellants did not file a counter affidavit, the application was vehemently opposed on points of law evidenced at pages 22-24. On the 17th January 1996 ruling was delivered wherein the lower court declared as a nullity its proceedings of the 16th October, 1995.

Dissatisfied with the said ruling of the lower court, the counsel to the plaintiffs/appellants have now filed a notice of appeal on the 30th January, 1996 and dated the same day and evidenced at pages 29-32 of the printed record of proceedings. A departure order was granted by this court on the 16th June, 1999 pursuant to a motion dated 9th and filed on the 13th May, 1997. The appellants brief of argument was dated and filed on the 14th July, 1999. In response to the respondent’s brief the appellants filed a reply brief dated and filed 21st December, 2000. On the 19th November 2008 when this appeal was for hearing, the learned appellants’ counsel was not in court. On the evidence of service of the hearing notice on the appellants counsel, and on the application by the respondent’s counsel, Mr. Bankole Oyedeji, the said appellants’ brief of argument dated and filed 14th July, 1999 was deemed as having been argued. The said respondent’s counsel however proceeded to adopt the respondent’s brief dated 6th December, 2000 and filed on the same day. The counsel urged us to dismiss the appeal and affirm the decision of the lower court.

From the information available to the court in this appeal, the motion on notice dated and filed 6th December 2000 was for an extension of time within which to file the respondent’s brief and a further order deeming the brief of arguments dated 11th day of September, 2000 as having been properly filed and served. The order granting the above reliefs sought was made on the 13th December, 2000. It is also pertinent to restate that the respondent’s brief in respect of which the counsel relied upon and advanced his arguments was the one dated and filed 6th December, 2000. It is obvious from all respects that the said brief relied upon is fundamentally different and has no relationship with the brief wherein an order was made deeming same as filed and served on the 13th December, 2000. From all indications herewith respondent’s it would appear that the brief sought to rely upon by the respondents’ learned counsel, Mr. Oyedeji, has not been regularized by the order of court. The same is alien and therefore struck out.

In consequence therefore, there is no respondent’s brief in defence of this appeal. Similarly and in the absence of any respondent’s brief of arguments there can be no appellants reply brief as it is predicated thereon the former. The proposed reply brief dated and filed 21st December, 2000 is hereby also struck out. In the circumstance, this appeal will be considered and determined based only on the appellants brief of arguments.

From the four grounds of appeal filed, three issues were distilled on behalf of the appellants as follows:-

“1. Whether the default judgment of 16th day of October 1995 was a nullity and whether the learned trial judge was right in declaring it a nullity.

2. Whether the defendant/respondent complied with the conditions for setting aside a default judgment.
3. Whether the learned trial judge was right in entering default judgment for the plaintiff/appellants on the 26th of October, 1995.”

Taking all the three issues raised and which same are closely interrelated, the learned appellants counsel first raised a fundamental question as to whether the learned trial judge was indeed right in declaring the default judgment a nullity. This he contended especially wherein judgment of a court is based on facts and/or issues properly before it and which counsel in the suit had raised and addressed the court thereon. The learned counsel reiterated that the court had no power to raise an issue of law (i.e. nullity of the default judgment) on its own without calling on counsel to address the court thereupon and especially in the absence of any application before the court praying it to declare the earlier judgment of the court a nullity. Reference was made to order 40 rule 4 of the High Court (Civil Procedure) Rules of Lagos State 1972.