IN THE HIGH COURT OF IMO STATE OF NIGERIA
IN THE HIGH COURT OF OWERRI JUDICIAL DIVISION
HOLDEN AT HIGH COURT OF JUSTICE, OWERRI
THIS THURSDAY THE 31ST DAY OF OCTOBER, 2024
BEFORE HIS LORDSHIP: – HON. JUSTICE I. M. NJAKA
SUIT NO: HOW/666/2022
BETWEEN:
AMBROSE UZOMA — PLAINTIFF
AND
ELDER ROMANUS NLEMCHUKWU NKEMJIKA —DEFENDANT
RULING
By motion the Defendant/Judgment Creditor prays as follows:
- Extension of Time: Requesting the court to extend the time within which the Defendant/Applicant can apply to set aside the judgment delivered on October 25, 2022.
- Setting Aside Judgment: Seeking an order to set aside the court’s judgment delivered on October 25, 2022, which was issued in the absence of the Defendant/Applicant.
- Restraining Order: Requesting an order to prevent the Plaintiff/Respondent or any representatives from taking further actions regarding the judgment until the motion is decided.
Grounds for the Application:
- The Defendant/Applicant was ill and hospitalized at the time the lawsuit was filed.
- He was unaware of the lawsuit and did not receive any hearing notice throughout the proceedings.
- The judgment was delivered in his absence.
- The Defendant/Applicant claims to have a strong defense against the Plaintiff’s claims, arguing that the land in question is distinct from his own property.
In the Affidavit in Support of the Motion: The Defendant/Applicant stated he is 70 years old, a married man with grown children. He describes the land he purchased in 1995, including its history, ownership, and the development he carried out on it. He explains that he lived on the land for over 25 years without any dispute until recently.
In May 2022, the Defendant/Applicant suffered a hip injury, was hospitalized for six months, and only became aware of the lawsuit upon seeing the judgment order posted on his property after being discharged from the hospital.
The Defendant/Applicant’s counsel advised filing this motion to set aside the judgment due to the lapse of the allotted time.
The affidavit emphasizes that the land described by the Plaintiff/Respondent differs from the Defendant/Applicant’s land in both location and size. The Defendant/Applicant asserts that the Plaintiff/Respondent will not suffer prejudice if the application is granted and that the cause of justice would be served by allowing the motion.
Exhibits Attached:
Exhibit A: Irrevocable Power of Attorney for the land purchased by the Defendant/Applicant.
Exhibit B: Survey Plan for the land.
Exhibit C: Photograph of the Defendant/Applicant’s building on the disputed land.
Exhibit D: Medical Report of the Defendant/Applicant’s hospitalization.
Exhibit E: Power of Attorney and Survey Plan of the Plaintiff/Respondent.
Exhibit F: Judgment of the Honourable Court dated October 25, 2022.
Exhibit G: Memorandum of Appearance, Statement of Defense, and Written Deposition on Oath of the Defendant/Applicant.
The Defendant/Applicant argues that the court’s judgment was based on a misunderstanding of the actual ownership and identity of the land. The motion emphasizes that the Defendant/Applicant was not aware of the legal proceedings against him until the judgment order was served. It highlights the Defendant/Applicant’s belief that justice will be served by granting the application to set aside the judgment.
The motion concludes with a statement requesting the court to consider the application in the interest of justice, dated January 31, 2024.
In the written address in support of a motion on notice filed by the Defendant/Applicant’s counsel, he distilled 3 issues
Issues for Determination:
- Whether the Applicant has shown sufficient reasons for the court to grant an extension of time to file the application to set aside the judgment.
- Whether the Defendant/Applicant has provided sufficient reasons to set aside the judgment delivered on October 25, 2022.
- Whether it is appropriate for the court to restrain the Plaintiff/Respondent from taking further action on the judgment pending the determination of the motion.
Issue One: The Defendant/Applicant argues that he has provided substantial reasons for the delay, including his hospitalization and lack of awareness of the proceedings. Legal precedents support the extension of time if good reasons are shown.
Issue Two and Issue Three: The Defendant/Applicant contends that the judgment was delivered without his knowledge or defense due to the absence of hearing notices. He emphasizes that the Plaintiff/Respondent failed to identify the actual occupant of the disputed land, violating legal procedures.
The Defendant/Applicant asserts that he has a good defense to the Plaintiff’s claims, supported by documents and affidavits. He argues that the court has the discretion to set aside the default judgment since it was not entered on its merits.
The counsel cited authorities such as Williams vs. Hope Rising Voluntary Funds Society (1982) and University of Lagos vs. Aigoro (1984), which emphasize the need to hear cases on their merits and the requirements for extending procedural timelines. Ogolo vs. Ogolo (2006) 10 WRN 92 at 112 lines 20-25, which highlights the necessity for an applicant to show a valid defense before a court can set aside a judgment.
The Defendant/Applicant requests that the court grant the orders outlined in the motion to set aside the default judgment and to restrain the Plaintiff/Respondent from taking further actions on the judgment.
He concludes with a plea to the court to grant these orders in the interest of justice.
The Defendant in further affidavit deposed to by Elder Romanus Nlemchukwu Kemjika (Defendant/Applicant) in response to the Plaintiff/Respondent’s counter-affidavit. The Defendant/Applicant reaffirms his role in the case and his familiarity with the facts.
He expresses that the Plaintiff/Respondent’s counter-affidavit contains inaccuracies, contradictions, and false statements. The Defendant denies knowledge of the lawsuit during the proceedings because he was hospitalized, and his residential compound was locked and unoccupied. The Defendant reiterates his long-term ownership and occupation of the disputed land, initially purchased from the Onyenukporo family and developed over the last 27 years. He emphasizes that he was hospitalized for six months in 2022 due to a hip injury, during which time his compound was unattended, and he was unaware of any legal action taken against him.
He denies the Plaintiff’s claim that someone had erected a wall and a building on the Plaintiff’s land in his absence and argues that the Plaintiff failed to provide details about his alleged time abroad or steps taken to secure the land.
The Defendant challenges the accuracy of several paragraphs of the Plaintiff’s counter-affidavit, specifically denying that anyone in his compound confronted the Plaintiff or threatened violence.
He asserts that if he had been aware of the court proceedings, he would have responded promptly to defend his case on its merits. The Defendant insists that no hearing notice was served to him throughout the proceedings, disputing the Plaintiff’s claim of service.
The Defendant refers to a medical report dated January 19, 2023, and another report issued on April 22, 2024, detailing his health status. He restates his belief that the Plaintiff never attempted to identify or locate the land properly before initiating the legal action.
The Defendant accuses the Plaintiff of being confused and lacking knowledge of the exact location of his claimed land. He labels the Plaintiff as a “land grabber” trying to take advantage of the situation without any legitimate claim. The Defendant highlights the inconsistency of the Plaintiff’s position, noting that despite originally suing an “unknown occupant,” the Plaintiff now resists the Defendant’s effort to have the matter heard on its merits.
The Defendant argues that it is in the interest of justice for the matter to be heard fully in court. He believes the Plaintiff will not be prejudiced if the court grants the application to set aside the default judgment.
In the written reply on points of law submitted by the Defendant/Applicant’s counsel in response to the Plaintiff/Respondent’s counter-affidavit. The Defendant/Applicant’s counsel responds to the Plaintiff/Respondent’s opposition to the motion to set aside the default judgment delivered on October 25, 2022. The reply is supported by a further affidavit of 25 paragraphs, aiming to justify the Defendant’s request to set aside the judgment.
The Defendant/Applicant’s request for an extension of time is based on Order 44 Rule 4 of the Imo State High Court Civil Procedure Rules, 2017, which allows the court to extend time for proceedings. The Defendant was absent from court due to a hip injury that required six months of hospitalization. Medical reports (Exhibits “D” and “H”) support this claim. Reference is made to the importance of documentary evidence, as emphasized by the Supreme Court in the case of S.S. GMBH vs T.D. IND. LTD (2010).
The Defendant/Applicant argues that the Plaintiff/Respondent’s claim that he met someone at the Defendant’s property is false because the Defendant was hospitalized, and the property was locked.
The Plaintiff failed to take steps to verify the Defendant’s presence or location by inquiring with neighbours or other sources. The Plaintiff’s counter-affidavit did not specifically deny the facts presented by the Defendant, which, according to case law, means those facts are deemed established.
Counsel cited cases to support the argument that default judgments should be set aside if the Defendant was not given a fair opportunity to present their case, including: ODUOLA vs NABHAN: Establishes the need for a Plaintiff to take reasonable steps to identify the occupier of a disputed property. AGBAJE vs IBRU SEA FOOD LTD: States that failure to specifically deny facts in a counter-affidavit means those facts are considered proven. OHAJI/EGBEMA/OGUTA L.G.A vs ETITI: Highlights the principle that courts should lean towards accommodating a defaulting party to ensure fairness.
The Plaintiff/Respondent did not provide specific information about his overseas travels or efforts to secure the land, making his claims unreliable. The Plaintiff’s failure to present concrete evidence or specific denials in the counter-affidavit weakens his case.
The Defendant’s counsel criticizes the Plaintiff for resisting the motion to set aside the judgment now that the actual Defendant has appeared to challenge it. The reply emphasizes that the court retains the power to set aside default judgments to ensure all parties have a fair chance to present their cases.
The Defendant/Applicant’s counsel urges the court to grant the application to set aside the default judgment, arguing that the Defendant has provided sufficient evidence and legal justification for doing so. The submission concludes with a request for the court to consider all facts and grant the relief sought by the Defendant/Applicant.
The Plaintiff counter-affidavit deposed to by Ambrose Uzoma (Plaintiff) in opposition to the Defendant’s motion to set aside the default judgment. The Plaintiff confirms his role in the case and his familiarity with the facts. He puts the Defendant to strict proof of his claims in paragraphs (1) and (2) of the Defendant’s affidavit.
The Plaintiff denies multiple paragraphs of the Defendant’s affidavit, specifically disputing the following: The Plaintiff states that the Defendant was never present in court during the proceedings until the judgment was given on October 25, 2022. The Plaintiff claims he acquired the plot of land through an Irrevocable Power of Attorney dated August 23, 1990, from Theophilus O. Iwunze.
The Plaintiff argues that the Defendant has no valid defense in the suit, which is why he allegedly evaded appearing in court since the beginning of the case. The Plaintiff asserts that hearing notices were served multiple times on various adjourned dates. The Plaintiff obtained an order for substituted service on June 3, 2022, which was granted by the court on July 14, 2022, to ensure that the Defendant was properly served.
The Plaintiff specifically denies the truth of paragraphs 3 to 33 of the Defendant’s affidavit, challenging the Defendant’s claims regarding the land, court procedures, and the lack of hearing notices.
The Plaintiff argues that the Defendant is only now attempting to waste the court’s time and suggests that the court should maintain its original judgment.
The Plaintiff states that it will be in the interest of justice to deny the Defendant’s application to set aside the judgment.
In the reply on points of law submitted by the Plaintiff’s counsel in support of the Plaintiff’s counter-affidavit, the Plaintiff’s counsel challenges the accuracy of the Defendant’s claims.
The Plaintiff argues that the Defendant’s request for an extension of time is an error in law. The Plaintiff cites legal precedents (e.g., Nigerian Agricultural And Co-Operative Bank Ltd v. Ozoemelam) stating that a party who fails to provide reasons for their absence during the initial proceedings is not entitled to have the court exercise its discretion in their favor.
The Plaintiff disputes the Defendant’s claim that he was hospitalized for six months, stating that the medical report provided by the Defendant does not confirm hospitalization.
According to Section 131(1) of the Evidence Act, 2011, the Defendant has failed to prove his hospitalization.
The Plaintiff claims to have taken all reasonable steps to identify the occupants of the land before suing them as “unknown occupants.”
An order for substituted service was properly obtained on July 14, 2022, under the Imo State High Court Civil Procedure Rules, allowing the Plaintiff to serve the Defendant by alternate means.
The Plaintiff argues that the Defendant was given sufficient notice of the proceedings through various hearing notices and had ample opportunity to defend himself but chose not to do so.
Citing several legal cases (e.g., Ezechukwu v. Onwuka, Darma v. Ecobank), the Plaintiff asserts that a party who voluntarily avoids court proceedings cannot claim a denial of fair hearing.
The Plaintiff’s counsel urges the court to uphold its original judgment from October 25, 2022, and deny the Defendant’s motion to set aside the judgment. The submission concludes with a request for the court to grant the Plaintiff’s application and maintain the judgment as delivered.
Based on the information presented, the issues for determination are:
- Whether the Defendant/Applicant has provided sufficient legal justification for the court to grant an extension of time to file an application to set aside the default judgment delivered on October 25, 2022.
Persons, Name Unknown v. Sahris Intl Ltd (2019) 13 NWLR (Pt. 1689) 203 A person unknown cannot apply to set the judgment aside unless he identifies himself by name and seeks leave to to set is aside as a person affected by the judgment.
Order 44 Rule 4 of the Imo State High Court Civil Procedure Rules, 2017 allows the court to extend time for a party to take necessary procedural steps, even after the prescribed time has elapsed. Judicial discretion must be exercised judiciously and based on good and sufficient reasons provided by the applicant. As stated in Nigerian Agricultural And Co-Operative Bank Ltd v. Ozoemelam (2016) 9 NWLR pt. 1517 p. 376, the applicant must show valid reasons for their failure to act within the original time frame.
The Defendant/Applicant argues that he was hospitalized for six months, which prevented him from responding to the proceedings. However, the Plaintiff/Respondent disputes this claim, pointing out that the medical report provided does not explicitly confirm the Defendant’s prolonged hospitalization. Based on the provisions of Section 131(1) of the Evidence Act, 2011, the burden of proof lies on the Defendant/Applicant to substantiate the claim of hospitalization.
This explanation offered by the Defendant was not effectively countered.
Time is therefore extended within which the Defendant may apply to set aside the judgement.
- Whether the Defendant/Applicant has successfully proven that his absence during the court proceedings was due to hospitalization and other circumstances beyond his control.
Under Section 36(1) of the 1999 Constitution of Nigeria, fair hearing principles require that parties to a suit be given adequate notice and opportunity to present their case. The cases of Darma v. Ecobank (Nig) Ltd (2017) 9 NWLR pt. 1571 p. 480 and Military Governor Lagos State v. Adeyiga (2012) 5 NWLR pt. 1293 p. 291 highlight that if a party was given sufficient notice but chose to remain absent, they cannot later claim a breach of their right to fair hearing.
The Defendant’s claim of hospitalization raises questions about his ability to participate in the proceedings. The Plaintiff argues that the Defendant’s absence was voluntary and not due to medical reasons. The validity of the Defendant’s absence hinges on the authenticity and details of the medical reports provided, as they must clearly indicate his inability to attend court sessions.
I believe the medical evidence confirms that the Defendant was indeed incapacitated, an therefor was not aware and unable to defend the action.
- Whether the Defendant/Applicant has shown a valid defence on the merits that justifies setting aside the default judgment in the interest of justice.
A defendant seeking to set aside a judgment must show that they have a meritorious defence. As established in Ogolo v. Ogolo (2006), a valid defence must disclose substantive legal arguments that could potentially alter the outcome of the case.
The Defendant asserts that he has a valid defence based on ownership of the disputed land. He contends that the Plaintiff’s claim is based on incorrect identification of the land and its occupants. The Defendant has provided documents such as survey plans and powers of attorney to support his defence.
The court is satisfied that the Defendant’s defence is prima facie substantial and could affect the judgment’s outcome, the court lean towards setting aside the default judgment to allow a full hearing on the merits of the case.
- Whether the failure of the Defendant/Applicant to appear in court or file a defense can be considered a deliberate attempt to delay the proceedings or an outcome of circumstances that prevented him from participating.
The Plaintiff contends that the Defendant deliberately avoided appearing in court to delay the proceedings. The Defendant argues that his absence was due to unavoidable medical reasons. I do not agree that the Defendant’s non-appearance was intentional but genuinely due to circumstances beyond his control.
I am of the view that it will best serve the interest of justice to grant this application to set aside the judgment delivered on October 25, 2022, and order a retrial of the case on its merits. The judgement delivered on 25th day of October, 2022 is accordingly set aside. The case is to be heard expeditiously on the merit.
I so hold
I.M.Njaka
Judge
31-10-2024
Appearances:
CRO Agoha for the Plaintiff/Respondent
Ohaeto Uwazie for the Defendant/Applicant