UBA PLC v OGBONNA

UBA PLC v OGBONNA


IN THE COURT OF APPEAL
IN THE OWERRI JUDICIAL DIVISION
HOLDEN AT OWERRI

ON FRIDAY, 5TH MAY, 2017


Appeal No: CA/OW/164/2014
CITATION:

Before Their Lordships:

MASSOUD ABDULRAHMAN OREDOLA, JCA

AYOBODE OLUJIMI LOKULO-SODIPE, JCA

ITA GEORGE MBABA, JCA


BETWEEN

UNITED BANK FOR AFRICA PLC

(APPELLANT)

AND

ALBAN OGBONNA

(TRADING UNDER NAME AND STYLE OF AL & CO.ENTERPRISES)

(RESPONDENT)


PRONOUNCEMENTS


A. JUDGMENT
1. Default Judgment – Principles guiding the setting aside of a default judgment

Guiding principles for setting aside a default judgment

“I agree with the submission of the learned counsel for the respondent, that an application to set aside a default judgment is not granted as a matter of course, but in the exercise of the discretionary power of the Court. It is trite, that such an exercise must be judicial and judicious. Thus, for an application to set aside a default judgment or judgment in default of appearance to be granted, the Courts are enjoined to consider the following conditions: (1) The reasons for the applicant’s failure to appear at the hearing or trial of the case in which judgment was given in his absence. (2) Whether there has been undue delay in making the application to set aside the judgment, so as to prejudice the party in whose favour the judgment subsists. (3) Whether the latter party (i.e. in whose favour the judgment subsists or the judgment creditor) would be prejudiced or embarrassed upon an order for rehearing of the suit being made, so as to render such a course inequitable. (4) Whether the applicant’s case is manifestly unsupportable. (5) The applicant’s conduct throughout the proceedings, that is, from the service of the writ upon him to date of judgment, has been such as to make his application worthy of a sympathetic consideration. See Teno Engineering Ltd. v. Alhaji Taliru Yusuf Adisa (2005) 10 NWLR (Pt. 933) 346; Williams v. Hope Rising Voluntary Funds Association (1982) 1-2 SC 145; Doherty v. Doherty (1964) NMLR 144 and Etokhana v. Progress Bank of Nig. Plc (1997) 10 NWLR (Pt. 526) 616. The above listed or stated conditions are not exhaustive. They are consequent and or dependent on the circumstances of each case. See the case of Olukolu v. Okoli & Ors. (2011) LPELR – 4250, where his Lordship Modupe Fasanmi, JCA, in his concurring judgment, laid down additional conditions for setting aside such a judgment when he held as follows: “A decision can be set aside where; (a) The decision is a nullity ab initio, (b) The decision was obtained by fraud, (c) Upon an appropriate application on a default judgment, (d) Where the decision was made in error and in the circumstances that occasioned a miscarriage of justice. See also the case of Ezeokafor v. Ezeilo (1999) 9 N.W.L.R. (Pt. 619) 513 at 530.” In the instant case, default judgment has been provided for and regulated by the provisions of Order 20 (9) & (12) and Order 30 Rule 4 (2) & (3) of the Imo State High Court (Civil Procedure) Rules, 2008. For purpose of clarity and ease of reference, the provisions are reproduced as follows: Order 20 Rule 9: “Defendant in default 9. In all actions other than those in the preceding Rules of this Order, if the defendant makes default in filing a defence, the claimant may apply to a Judge for judgment, and such judgment shall be given upon the statement of claim as the Judge shall consider the claimant to be entitled to.” Order 20 Rule 12: “12 Any judgment by default whether under this Order or under any Order of these Rules shall be final and remain valid and may only be set aside upon application to the Judge on grounds of fraud, non-service or lack of jurisdiction upon such terms as the Court may deem fit.” Order 30 Rule 4 (2) & (3): “(2) Any judgment obtained where any party does not appear at the trial may be set aside by the Judge upon such term as he may deem fit. (3) An application to re-list a cause struck out or to set aside a judgment shall be made within 6 days after the order or judgment or such longer period as the Judge may allow.” ?It is pertinent to observe, that by virtue of the combined provisions of Order 20 Rule 9 and 12, any judgment obtained in default of defence (as in this instant case) is not merely a default judgment but a judgment on merit which can only be set aside upon the occurrence of any of the following conditions: (1) Fraud (2) Non- service, or (3) Lack of jurisdiction.”Per OREDOLA, JCA read in context


LEAD JUDGMENT DELIVERED BY OREDOLA, JCA


This is an appeal against the ruling of the High Court of Imo State sitting at Owerri (hereinafter referred to as the lower Court), delivered on the 7th day of April, 2014 in Suit No: HOW/271/2013 by Hon. Justice I. O. Agugua, J. The suit from which this appeal emanated from was commenced by the claimant/respondent (hereinafter referred to as the respondent) vide a writ of summons, statement of claim and other accompanying processes filed on the 23rd day of April, 2013, wherein the respondent by his statement of claim, sought for the following reliefs:

“(a) Return of Certificate of Occupancy registered No.67 Page 67 in Volume 157 of Register of Deeds kept in Owerri.

(b) General and/or unitive Damages of N50 million Naira for wrongful detention of Claimant’s Certificate of Occupancy.

PARTICULARS OF SPECIAL DAMAGES:

(i) Loss of use of document at – N5m per annum from 2007-2013 – N50 million
(ii) General Damages – N20 million (iii)Aggregated Exemplary or Punitive Damages – N10 million

Total = N80 million” (See page 5 of the record of appeal.)

The respondent’s case against the defendant/appellant (hereinafter referred to as the appellant) was that the appellant granted the respondent an overdraft facility in the sum of N200,000 (Two Hundred Thousand) which was later renewed in the enhanced sum of N250,000.00 (Two Hundred and Fifty Thousand Naira). The overdraft facility was secured by the respondent’s certificate of occupancy dated the 16th day of December, 1986 and registered as Number 67, at Page 67, in Volume 157 of the Imo State Lands Registry, Owerri, which was deposited with the appellant.

The respondent has since liquidated the overdraft facility, and fully discharged his indebtedness in respect of the overdraft facility but the appellant failed and or neglected to return the respondent’s certificate of occupancy to him. The appellant’s excuse for not returning the said certificate of occupancy, as gleaned from its statement of defence is that, the certificate was misplaced and it has started making efforts in procuring a replacement certificate of occupancy for the respondent, from Imo Geographic Information Agency.

Initially, when this suit was filed and the originating processes served on the appellant, it refused and or failed to enter appearance or file its defence. Consequent to the appellant’s refusal and or failure to either enter an appearance or file its defence to the respondent’s action, the respondent filed a motion on notice dated the 1st day of March, 2013 and filed on the 24th day of April, 2013 wherein he sought for the following prayers:

“1. AN ORDER for Summary Judgment in the

Claimant Suit filed in this Honourable Court.

2. AND for such further Order or Orders as the Honourable Court may deem fit to make in the circumstances.”

(See page 20 of the record of appeal.)

Again, the appellant failed to respond to this motion on notice or take any meaningful step whatsoever in respect of this suit, notwithstanding the fact that the said motion on notice was duly served on it. Consequently, the lower Court on the 29th day of January, 2014 granted the respondent’s application in the following words as gathered from the judgment enrolled order:

“IT IS THEREFORE HEREBY ORDERED that judgment shall be and is hereby entered for the Claimant thus:

1. The Defendant is hereby ordered to return within 7 days from today the certificate of occupancy registered as No. 67 page 67 in Volume 157 of Register of Deeds kept in Owerri.

2. The Defendant is to pay general damages of N5 million to the Claimant.
3. The Defendant is ordered to pay punitive damages of N1 million to the Claimant.
4. The Defendant is also to pay cost of this suit assessed at N10,000.00 (Ten thousand Naira).” (See page 42 of the record of appeal.)

Suddenly and after the delivery of the said judgment, the appellant decided to wake up from its slumber and attempted to turn back the hands of the clock by filing a motion on notice dated the 12th day of February, 2014 and filed on the 14th day of February, 2014 wherein the appellant sought for the following prayers:

“ ( i ) A n O r d e r o f C o u r t g r a n t i n g t h e Defendant/Applicant extension of time within which to apply to set aside the Judgment entered on 29/01/2014 in this Suit in default of Defence.

(ii) An Order Setting aside the Judgment entered against the Defendant/Applicant on 29/01/2014 in default of Defence.

( i i i ) A n O r d e r o f C o u r t g r a n t i n g t h e Defendant/Applicant extension of the time within which to file its Memorandum of Appearance, Statement of Defence and the Sworn Deposition in this Suit.

(iv) An Order of Court deeming the Memorandum of Appearance Statement of Defence and the Sworn Deposition for the Defendant on record already filed as properly filed and served the necessary Filing Fees having been paid.”

(See page 33 of the record of appeal.)

After the giving of due consideration to the said motion on notice, the affidavit in support thereof, the proposed statement of defence, and the oral submissions of the learned counsel to both parties, the learned trial judge dismissed the said application for lacking in merits.

The appellant was dissatisfied with the ruling of the lower Court and appealed against the same, vide a notice of appeal dated and filed on the 8th day of April, 2014. The notice of appeal was later amended by the leave of this Court, granted on the 30th day of April, 2015. The amended notice of appeal was dated and filed on the 4th day of May, 2015. The appellant’s complaints against the ruling were based on the three (3) grounds of appeal as amended, They are reproduced without their particulars as follows:

“GROUND ONE

ERROR IN LAW

The Learned Trial Judge erred in Law and grossly misrepresented the Law which occasioned a serious miscarriage of justice by holding that the Appellant having admitted custody and misplacement of the Statutory Certificate of Occupancy issued to the Respondent (the Claimant in the Lower Court) on 16/12/1986 and registered as Number 67, at Page 67, in Volume 157 of the Lands Registry, Owerri is precluded from the grant of an Order of Court setting aside the Judgement entered in default of Defence on 29/01/2014.”

“GROUND TWO

ERROR IN LAW

The Decision is perverse in that the Learned Trial Judge erroneously resolved that the contents of the Statement of Defence is of no moment in Law having accorded with the purport of the Judgement entered in default of Defence on 29/01/2014.”

“GROUND THREE

ERROR IN LAW

The Learned Trial Judge erred in law by failing and resolutely refusing to grant the Appellant the opportunity to be heard in the Lower Court given the arbitrary award of general and punitive damages without the due and deserved address of counsel.”

In prosecution of this appeal, the learned counsel for both parties filed their respective briefs of argument. The appellant’s brief of argument dated the 4th day of May, 2015 was filed on the 13th day of May, 2015. The said appellant’s brief of argument was by the order of this Court granted on the 2nd day of February, 2016 deemed as properly filed and served. The said appellant’s brief of argument was settled by Chukwuemeka C. Ibeziako Esq. On the other hand, the respondent’s brief of argument was settled by Emeka Ezeogu Esq. The said respondent’s brief of argument was filed on the 24th day of March, 2016.

The learned counsel for the appellant in the appellant´s brief of argument, distilled two issues for the determination of this appeal. The issues are as follows:

“1. Whether the Lower Court was right in Law by dismissing the application of the Appellant.

2. Whether the refusal of the Learned Trial Judge to grant the Appellant Leave to defend the action in the Lower Court is not tantamount to breach of fair hearing.”

On his own part, the learned counsel for the respondent adopted the issues formulated by the learned counsel for the appellant, towards the determination of this appeal. I have carefully considered the issues formulated by the learned counsel for the appellant vis-à-vis the grounds of appeal and I found them sufficient for the determination of this appeal. Thus, the issues are hereby adopted by me.

LEGAL ARGUMENTS: ISSUE ONE.

The learned counsel for the appellant commenced with the submission, “that the lower Court was wrong in dismissing the application of the appellant to set aside the judgement entered in default of defence”. The learned counsel contended, that the respondent obtained the judgment of the lower Court in his favour in the absence of the appellant, and same is capable of being set aside pursuant to the provision of Order 30 Rule 4 (2) & (3) of the Imo State High Court (Civil Procedure) Rules, 2008. He argued, that the appellant has placed sufficient materials before the lower Court, to entitle it to the order of the Court, setting aside the default judgment. He further argued, that the appellant has met all the criteria for setting aside a default judgment, yet the lower Court failed to allow its application, brought by means of motion on notice. He relied on the cases of Sanusi v. Ayoola (1992) 11/12 SCNJ 142; (1992) 9 NWLR (Pt. 265) 275; Federal Polytechnic Idah v. Onoja (2013) All FWLR (Pt. 667) 745 and Vanguard Media Ltd. v. Ajoku (2003) F.W. L. R. (Pt. 173) 68 at 76 among others.

The learned counsel for the appellant also contended, that the lower Court (with due respect) was wrong when it awarded punitive damages against the appellant, contrary to the established principles for awarding the same. Thus, the lower Court’s “judgment was therefore irregular and ought to be set aside.” He referred this Court to the cases of Rookes v. Barnard (1964) A. C. 1129 at 1226 and

Garba v. Lagos City Council (1974) 3 CCHCJ 297 @ 309; Drane v. Evangelou (1978) 1 WLR 455. Again the learned counsel contended, that the respondent would not suffer any prejudice or embarrassment if the judgment is set aside. The learned appellant’s counsel finally submitted, that “if the lower Court had dispassionately considered the application, it would have come to the correct conclusion that the application before it was meritorious and ought not to have cursorily dismissed the same”. Thus, he urged this Court to resolve this issue in favour of the appellant.

In his response, the learned counsel for the respondent submitted, that the application seeking to set aside a judgment obtained in default of appearance is not granted as a matter of course but in the exercise of discretionary power vested in the Court. He relied on the cases of

Federal Polytechnic, Idah v. Ayoola ( 013) All FWLR (Pt. 667) 745 and Sanusi v. Ayoola (1992) 9 NWLR (Pt. 265) 275. The learned counsel argued, that the appellant failed to place sufficient materials or satisfy any of the pre-conditions or criteria for setting aside a judgment in default of defence, before the lower Court. The learned respondent’s counsel further argued that the failure of the appellant to exhibit its statement of defence show complete lack of seriousness on its part. He maintained and strongly too, that the ruling “rejecting the Statement of Defence is impeccable,” as the appellant has failed to show or state any real defence for the breach of its contractual duty to the respondent, but merely stated that it has undertaken some steps to secure another certificate of occupancy for the respondent, without stating in precise and categorical terms the details of such steps.

The learned respondent’s counsel further contended that the liability of the appellant to the respondent in respect of the subject matter of this suit “is contractual and strict”. Additionally, that the appellant has failed to show any defence to the breach of its contractual duty to the respondent. He referred us to the provision of Order 20 Rule 12 of the High Court of Imo State (Civil Procedure) Rules, 2008 in respect of this issue. Thus, he urged this Court to resolve this issue in favour of the respondent.

I agree with the submission of the learned counsel for the respondent, that an application to set aside a default judgment is not granted as a matter of course, but in the exercise of the discretionary power of the Court. It is trite, that such an exercise must be judicial and judicious. Thus, for an application to set aside a default judgment or judgment in default of appearance to be granted, the Courts are enjoined to consider the following conditions:

(1) The reasons for the applicant’s failure to appear at the hearing or trial of the case in which judgment was given in his absence.

(2) Whether there has been undue delay in making the application to set aside the judgment, so as to prejudice the party in whose favour the judgment subsists.

(3) Whether the latter party (i.e. in whose favour the judgment subsists or the judgment creditor) would be prejudiced or embarrassed upon an order for rehearing of the suit being made, so as to render such a course inequitable.

(4) Whether the applicant’s case is manifestly unsupportable.
(5) The applicant’s conduct throughout the proceedings, that is, from the service of the writ upon him to date of judgment, has been such as to make his application worthy of a sympathetic consideration.
See Teno Engineering Ltd. v. Alhaji Taliru Yusuf Adisa (2005) 10 NWLR (Pt. 933) 346; Williams v. Hope Rising Voluntary Funds Association (1982) 1-2 SC 145; Doherty v. Doherty (1964) NMLR 144 and Etokhana v. Progress Bank of Nig. Plc (1997) 10 NWLR (Pt. 526) 616.

The above listed or stated conditions are not exhaustive. They are consequent and or dependent on the circumstances of each case. See the case of Olukolu v. Okoli & Ors. (2011) LPELR – 4250, where his Lordship Modupe Fasanmi, JCA, in his concurring judgment, laid down additional conditions for setting aside such a judgment when he held as follows:

“A decision can be set aside where;

(a) The decision is a nullity ab initio,

(b) The decision was obtained by fraud,

(c) Upon an appropriate application on a default judgment,
(d) Where the decision was made in error and in the circumstances that occasioned a miscarriage of justice. See also the case of Ezeokafor v. Ezeilo (1999) 9 N.W.L.R. (Pt. 619) 513 at 530.”

In the instant case, default judgment has been provided for and regulated by the provisions of Order 20 (9) & (12) and Order 30 Rule 4 (2) & (3) of the Imo State High Court (Civil Procedure) Rules, 2008. For purpose of clarity and ease of reference, the provisions are reproduced as follows:

Order 20 Rule 9:

“Defendant in default

9. In all actions other than those in the preceding Rules of this Order, if the defendant makes default in filing a defence, the claimant may apply to a Judge for judgment, and such judgment shall be given upon the statement of claim as the Judge shall consider the claimant to be entitled to.”

Order 20 Rule 12:

“12 Any judgment by default whether under this Order or under any Order of these Rules shall be final and remain valid and may only be set aside upon application to the Judge on grounds of fraud, non-service or lack of jurisdiction upon such terms as the Court may deem fit.”

Order 30 Rule 4 (2) & (3):

“(2) Any judgment obtained where any party does not appear at the trial may be set aside by the Judge upon such term as he may deem fit.

(3) An application to re-list a cause struck out or to set aside a judgment shall be made within 6 days after the order or judgment or such longer period as the Judge may allow.”

It is pertinent to observe, that by virtue of the combined provisions of Order 20 Rule 9 and 12, any judgement obtained in default of defence (as in this instant case) is not merely a default judgment but a judgment on merit which can only be set aside upon the occurrence of any of the following conditions:

(1) Fraud

(2) Non- service, or

(3) Lack of jurisdiction.

I have diligently and patiently studied/perused the appellant’s affidavit in support of its motion to set aside the judgement of the lower Court delivered on the 29th day of January, 2014 and found no facts or shred of evidence leaning towards, or attempting to establish any of the above mentioned three (3) conditions for setting aside a default judgment under the applicable rules of Court of Imo State (as applicable to this case). The affidavit speaks mainly of mistake of counsel for the failure to appear before the lower Court when the judgment was delivered. No excusable or justifiable reason was given for the appellant’s failure to file her memorandum of appearance, statement of defence and other accompanying processes or for the appellant’s failure to file a counter process to the respondent’s motion on notice for summary judgment, within the time provided by the rules of the lower Court.

For the purpose of emphasis and clarification, paragraphs 8 -11 of the appellant’s affidavit in support of its motion to set aside the default judgment are reproduced below:

“8 . The above – mentioned Counsel for the Defendant/Applicant, Chukwuemeka C. Ibeziako Esq., has informed me, and I verily believe him, that in p u r s u a n c e o f t h e i n s t r u c t i o n s o f t h e Defendant/Respondent he has held extensive discussions towards processing and procuring the issuance of the Statutory Certificate of Occupancy subject matter of this Suit under the Recertification of Land title interest documents of the Imo State Government of Nigeria under the aegis of Imo Geographic Information Agency.

“9. Furthermore, the above–mentioned Counsel for the Defendant/Applicant, Chukwuemeka C. Ibeziako, Esq., has informed me and I verily believe him, that having made good progress in the discussions towards securing the Recertification of the Statutory Certificate of Occupancy subject matter of this Suit, h e t h e n s e t t l e d t h e D e f e n c e o f t h e Defendant/Applicant manifest with its conciliatory disposition.

10. Unfortunately, the Records Clerk in the Law Office of Chukwuemeka Ibeziako & Co., Basil Ukenta, erroneously entered the adjourned date for this Suit as Wednesday, the 19th day of February, 2014 in the Office Diary and Schedule Memo of the Firm.

11. In the process of seeking to file the Memorandum of Appearance, Statement of Defence and other Court processes on behalf of the Defendant/Applicant, it was discovered that this Honourable Court had entered judgement in default of Defence against the Defendant/Applicant on the 29th day of January, 2014

.”

(See page 36 of the record of appeal.)

It is instructively significant to note herein, that the action which gave rise to this appeal was filed on the 23rd day of April, 2013, and there was no evidence to suggest that the originating and other accompanying processes were not served on the appellant in accordance with the rules of the lower Court. Put differently, the appellant did not complain, that the originating processes were not served on it in accordance with the time stated on the writ, before the motion on notice for judgment was filed. However, the appellant waited till the 14th day of February, 2014 (which is a period of over nine months) before it filed its application for extension of time within which to file the said defence. Also, the appellant failed and or neglected to file a counter-affidavit to the respondent’s motion for summary judgment filed on the 24th day of April, 2013. In addition, the judgment of the lower Court was delivered on the 29th day of January, 2014 but the appellant waited till the 14th day of February, 2014 (a period of sixteen (16) days) before it brought a motion on notice to set aside the same. Thus, I am of the firm view point that the appellant failed to give cogent reasons for its failure to file its defence within the time provided by the extant provisions of the requisite rules of Court. Also, its attitude throughout the duration of this case at the lower Court was lackadaisical. It is not deserving of emphaty or sympathy. I am also of the firm view point, that there was lethargy on the part of the appellant when it filed the motion on notice to set aside the said default judgment.

Also, I have perused the appellant’s statement of defence and I do agree with the learned trial judge, that there was no real or maintainable defence to the respondent’s action. There is no point in flogging a dead horse. Thus, I am of the firm opinion that the case of the appellant is manifestly unsupportable. Indeed, I agree with the learned trial judge, that appellant’s motion to set aside the default judgment is totally lacking in merit. It was properly struck out. In this vein, the issue under consideration is resolved in favour of the respondent.

ISSUE TWO.

The learned counsel for the appellant submitted that the lower Court ”did not afford the Appellant a fair hearing within the purview of the Section 36 (1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).” He referred us to the cases of Okoroike v. Igbokwe (2000) 14 NWLR (Pt. 688) 498 @ 505; Peter v. Okoye (2000) ALL FWLR (Pt. 110) 1864; Enwere v. Commissioner of Police (1993) 6 NWLR (Pt.299) 333; Chief Kafaru Oje & Ors. v. Chief Ganiyu Babalola & Ors. (1991) 4 NWLR (Pt. 185) 267 among others. The learned counsel further contended, that none of the issues raised and argued in the appellant’s written address in support of its motion on notice to set aside the default judgment was considered by the learned trial judge. He argued, that the learned trial judge raised the issue of the loss of the respondent’s document of title suo motu, “and held that since the appellant admitted the loss of the document in its statement of defence, the application would not only be refused but also the issue of award of unliquidated damages to the respondent without evidence would not be revisited.”

Finally, the learned counsel for the appellant argued, that the appellant’s statement of defence having “not come properly before the Lower Court.” According to the learned counsel, “it was a denial of fair hearing for the Lower Court to have used its contents to refuse the Application.” Therefore, he urged this Court to resolve this issue in favour of the appellant.

On his own part, the learned counsel for the respondent argued that this appeal is against the ruling which refused the appellant’s application to set aside the default judgement and not against the judgment itself, and that from the records, the appellants application was duly heard by the lower Court. Thus, he contended that this issue should be “discountenanced as it did not emanate from Ruling but on a judgment that was not appealed against”. Finally, the learned respondent’s counsel submitted, that “fair hearing is according to the Rules of Court. Any person who fails to avail himself should be told “hard luck.”

It is pertinent to point out as the learned counsel for the respondent has observed, that this appeal is against the ruling of the lower Court which dismissed the appellant’s motion on notice which sought to set aside the default judgment entered in favour of the respondent and not against the default judgment itself. Thus, I will restrain myself to arguments and or submissions with respect to the said ruling alone. The learned counsel for the appellant contended, that the learned trial judge failed and or neglected to consider the issues raised by the appellant in its written address in support of the appellant’s motion on notice to set aside the default judgment.

It is to be noted, that at the lower Court, the issue for determination as formulated by the appellant in its said written address goes thus:

“Whether this Honourable Court has the power to g r a n t p r a y e r s b e i n g s o u g h t b y t h e Defendant/Applicant in the instant application.”

(See page 39 of the record.)

The lower Court in its ruling wherein it dismissed the application, held inter-alia as follows:

“All submissions considered plus the fact that in the defence filed, has acknowledged the issue they lost the document of the defence in issue. This was the judgment of the Court and time was given for them to find the document. Even the issue of damages was not awarded to Claimant as claimed. Accordingly this application is not granted as it will only be to waste more time in Court when in actual fact looking at the defence filed, the defendant should put effort into giving back the document to the claimant as adjudged. Motion dismissed. I make no order as to cost. As prayed motion filed on 3/4/2014 struck out.”

(See pages 51 – 52 of the record of appeal.)

From the opening paragraph of the ruling reproduced above, it could be easily discerned, that the issues formulated by the appellant together with all the submissions in respect thereof were duly considered by the learned trial judge before he reached his decision. Thus, I agree with the learned counsel for the respondent that the appellant was duly given opportunity to be heard and was rightly so heard, but his application having been found to be unmeritorious was accordingly dismissed.

I also found the argument by the learned counsel for the appellant that the lower Court (with due respect) acted erroneously by considering its statement of defence in a bid to determine its motion on notice, highly disturbing and bereft of any reasonability or merit. It is to be noted, that the same counsel urged the lower Court and this Court to set aside the default judgment on the basis of its defence or steps already being taken by the appellant in its bid to procure a replacement document of title for the respondent. Surprisingly, the same learned counsel turned round to blame the learned trial judge for carrying out his assigned duty, which the learned trial judge was moved to perform. This is nothing less than the appellant approbating and reprobating in the same breath or talking from both sides of the mouth simultaneously. Thus, I found no merit in the appellant’s complaint or grievance in respect of this second issue and it is accordingly discountenanced by me. Therefore, this issue is also resolved in favour of the respondent.

Having resolved the issues formulated for the determination of this appeal in the manner stated above, I hereby found this appeal to be devoid of any semblance of merit whatsoever. It is accordingly dismissed by me. Thus, the ruling of the lower Court delivered on the 7th day of April, 2014 in respect of Suit No: HOW/271/2013 is hereby affirmed by me. Costs in the sum of N50,000.00 (Fifty Thousand Naira Only) is hereby awarded in favour of the respondent.

LOKULO-SODIPE, JCA

I have had the privilege of reading in draft the leading judgment prepared by my learned brother MASSOUD ABDULRAHMAN OREDOLA, JCA. I am in complete agreement with the manner in which the issues considered in the appeal (which as I understand it is against the decision of the lower Court to set aside its “Summary Judgment”) were resolved.

According, I too hold that the appeal is unmeritorious and dismiss it. I abide by the consequential orders made in the leading judgment including that in relation to costs.

MBABA, JCA

Having read in draft the lead judgment by my learned brother, M. A. Oredola JCA, and appreciating his well articulated reasonings/findings on the pertinent issues, which were beautifully succinctly resolved, I too agree with him, that the appeal lacks merit. I have nothing more to add, then to say that the appeal is devoid of merit and is also dismissed by me. I abide by the consequential orders in the lead judgment.