Ohaji/egbema/oguta Local Government V. Chief Wilson Etiti (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

PATS-ACHOLONU, J.C.A. (Delivering the Leading Judgment)

I shall begin this judgment by warning of the dangers inherent in short circuited judgments on land cases in particular. In 1997, an autonomous community known as Eziorsu in the Ohaji/Egbema/Oguta Local Government Area approached the Local Government to build a modern market. The community thereafter which is defendant/appellant in the case caused work to begin on that land. However, to the surprise of the community and the appellant, the plaintiff/respondent stopped the work as he was alleging trespass on the land.

This was followed by a letter from his counsel to the appellant demanding payment of damages. Thereafter, the plaintiff/respondent commenced civil action against the appellant. The appellant briefed one Mr. Nsofor who apparently due to his inadvertence did not take further steps by filing a statement of defence. Then the respondent applied for judgment in default and to this effect, service was effected through the clerk of the Lawyer who did not make same available to counsel until judgment in default was given and the respondent sought to levy execution.

The appellant then applied to the lower court for stay of execution, setting aside the judgment in default, and extension of time for it to file a statement of defence. This was opposed by the respondent’s Counsel and after argument had been taken that court dismissed the application.

The appellant filed notice of appeal from which it distilled only one issue namely:

“Whether the learned trial Judge properly exercised his discretion in refusing to grant the appellant’s application for selling aside the default judgment and to extend the time within which to file the appellant’s statement of defence having regard to the material before him.”

The respondent sought to frame 2 issues but in actual fact he succeeded in showing that there is only one issue.

The determination of the issue would revolve around the question as to whether from the facts and particulars placed before the court below the learned trial Judge should have given the ruling he gave or ought to have carefully weighed the strength of these materials and allow himself to have the benefit of hearing the parties by their argument in court based on their respective pleadings. It is important to emphasise the beauty of rendition of judgment based on the court having the opportunity of hearing from both sides in a legal duel and then premise its judgment on the strength of the nature, character and substantiality of each party’s case.

The substantiality of a case is primarily rooted on the nature of evidence that each party in course of the proceedings would perforce present for the consideration of the court. In considering the application for the stay of that judgment, setting aside, and extension of time to file statement of defence, the court should carefully look at the material placed before it in the affidavit in support and the contents of the pleadings. Any disposition which translates itself to riding a rough shod of these materials would import that the court is not interested in listening to both sides and therefore hearing the case on its merit. Thus Lord Atkins in the case of Evans v. Bartlam (1937) 2 All ER 646 at 650 said:

“In a case like the present one there is a judgment which though by default is a regular judgment, and the appellant must show grounds why the discretion to set it aside should be exercised in his favour.”

The primary consideration is whether he has merits to which the court should pay heed.

Now let us look at some of the averments as contained in the affidavit in support of that motion.

“5. That having received the plaintiffs statement of claim we forwarded same to our then Legal Adviser E.T. Nsofor, Esq. for his necessary action. Our said letter OKLG/S.16/S.1/53 dated 7/1/88 is annexed as Exhibit ‘A’.

6. That we did not know that our Legal Adviser failed to file in our defence until the 90 days granted us by the court expired on the 21st day of March, 1988.
7. That we did not also know that the plaintiff had filed in a motion to obtain judgment against us for our failure to file in our defence until a writ of attachment of our property was served on us on 5th day of December,1988.
8. That on further investigation later, we discovered to our utter surprise that a clerk in charge of our legal matters received the motion papers on the 29th day of September, 1988 but took ill, and hospitalised till date without passing this information to his higher officers.
9. That I took over overseeing of legal matters having been posted from Ohozara Local Government Area on transfer in the second week of November 1988 to Ohaji/Egbema/Oguta Local Government.
10. That while going through the file in respect of this suit, I saw the plaintiffs motion papers dated 21st September, 1988 fixed for hearing on 10th day of October, 1988.
11. That since our clerk in-charge of legal matters was already hospitalized, nobody else could direct me that the said motion was still pending in this court. The said motion paper dated 21/9/88 and its accompanying affidavit sworn to on 23/9/88 are annexed as Exhibits B1 and B2.
12. That the said motion to obtain judgment in default was eventually heard on the 18th day of November, 1988 without the knowledge of the defendant and judgment was delivered on the same day. The said judgment is annexed as Exhibit ‘C’.
13. That following the said judgment, the plaintiff on the same day 18th November, 1988 filed in a writ of facias (sic) on receipt No. 4290721 and attached the goods of the defendant on 5/12/88. The writ of ferias facias (sic) is annexed as Exhibit ‘D’.
14. That the defendant now pleads that its goods be released and the said judgment stayed since it has a good defence to this action.
15. That the land, the subject-matter in this suit is a community land of Eziorsu people which includes the plaintiff and donated voluntarily by the said community to the defendant to develop a market and park for the said community.”
16. “Furthermore, that Ezi-Orgu Community of which the plaintiff is a member has declared the land in question as their communal land. Attached as shown in the letter on behalf of the said community to the then chairman Ohaji/Egbema/Oguta Local Government dated 1/7/87 conveying same to him is marked Exhibit ‘J’.
17. That the substance of the defendant’s application for a stay of execution is that the judgment creditor is a man of straw. He is a professional litigant and lives on the outcome of cases.
18. That if the judgment debt is paid to the judgment creditor, he would find it difficult if not impossible to repay should this case be heard on its merits. That the cost of N100.00 awarded in favour of the plaintiff has been paid in receipt No.4290766 of 8/12/88 attached and marked Exbibit ‘L’.

These facts placed before the court are mighty enough to warrant very serious consideration. The court below then in its ruling held as follows: