General

HOW/46/2012-CHIEF EMMANUEL JOHN NJOKU PLAINTIFF/JUDGMENT CREDITOR/RESPONDENT AND 1. INNOCENT OGU DEFENDANT/JUDGMENT DEBTOR/RESPONDENT 2. DR. LAMBERT AGUGUO DEFENDANT/JUDGMENT DEBTOR/APPLICANT AND CHIEF WINNER JOHN NJOKU: PARTY SEEKING TO SUBSTITUTE THE PLAINTIFF/JUDGMENT CREDITOR- Ruling delivered on 29TH DAY OF JUNE 2021 by HON JUSTICE I.M.NJAKA. POINTS: Substitution after judgment-Challenge to affidavit of service of the bailiff

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IN THE HIGH COURT OF IMO STATE OF NIGERIA

IN THE OWERRI JUDICIAL DIVISION

HOLDEN AT OWERRI

ON THE 29TH DAY OF JUNE 2021

BEFORE HIS LORDSHIP: -HON. JUSTICE INNOCENT. M. NJAKA

                                                             SUIT NO: HOW/46/2012

BETWEEN

CHIEF EMMANUEL JOHN NJOKU                 PLAINTIFF/JUDGMENT CREDITOR/RESPONDENT

AND

  1. INNOCENT OGU                                      DEFENDANT/JUDGMENT DEBTOR/RESPONDENT
  1. LAMBERT AGUGUO                                  DEFENDANT/JUDGMENT EBTOR/APPLICANT

AND

CHIEF WINNER JOHN NJOKU: PARTY SEEKING TO SUBSTITUTE THE PLAINTIFF/JUDGMENT CREDITOR

RULING

There are two applications involved in this case. One is the application by the 2nd Defendant/Judgment Debtor asking the court to set aside the judgment of this court and the other is application by one Winner Njoku praying that he be substituted for the Plaintiff/Judgment.

By Motion filed on 25-1-2019, the Applicant Chief Winner John Njoku brought an application for:

  1. An Order of this Honorable Court substituting the Plaintiff in this Suit, CHDIEF EMMANUEL JOHN NJOKU, with CHIEF WINNER JOHN NJOKU Pursuant to the judgment of court in Suit No HMI/105/2017 between Chief Winner Njoku .V. Chief Emma Njoku & 2ors attached as Exhibit NACI
  2. And for such further or other Order(s) as this Honorable Court may deem fit to make in the circumstances of this Case.

Grounds for Substitution include:

  1. There is a Consent Judgment of Court in Suit No HMI/105/2017 between Chief Winner Njoku .V. Chief Emma Njoku & 2ors delivered and adopted as Judgment of court on 12th Day of February 2018.
  2. That by paragraph 2 of the said terms of settlement entered between the Plaintiff and Chief Winner John, the Plaintiff conceded all his interest in the subject matter of Suit No HMI/38/2003, HMI/25/2003 and other suits in court, including properties owned by him and/ or involving him to the applicant Chief Winner .John Njoku and his brothers to compensate them for all efforts and support to him.

The application is supported by an affidavit deposed to by CHIEF JOHN WINNER. He deposed: That I am the party seeking to substitute the Plaintiff in this case. The Plaintiff in this case is my father. That by the consent judgment between me and the Plaintiff in suit No HMI/ 105/2017 between Chief Winner Njoku V. Chief Emma Njoku & 2ors delivered and adopted as judgment of court on 12th Day of February 2018, the plaintiff in this case concedes all his interest to me in this case. The certified true copy of the consent judgment is annexed hereto and marked as Exhibit NAC1. I am familiar with the facts and circumstances of this case and can prosecute same to a logical conclusion. In the course of this proceeding, I filed a counter affidavit m opposition to a motion on notice by the Plaintiff/Respondent. That I was informed by my counsel Azubike Nwankenta Esq. on the 21st day of January 2019 in his chambers at No 77 Njemanze Street Owerri, Imo State and I verily believe him as follows: That by reason of the Judgment of court between me and MY Father (Plaintiff) in Suit No HMI/ 105/2017 between Chief Winner Njoku .V. Chief Emma Njoku & 2ors delivered and adopted as judgment of court on 12th Day of February herein, I can take over the prosecution of this case from my father, the plaintiff. That this Honourable court has powers to grant my application and order that I take over from the plaintiff, the prosecution of this case. That the Plaintiff herein is privy and executed Exhibit NAC1. That parties in this case will not be prejudiced if this application is granted by this court. That it is in the interest of justice and fairness and giving effect to Exhibit NAC1 to grant this application, which is meritorious and grantable.

The counsel formulated issue for determination:

Whether court can make orders substituting a party in this circumstance

The issue is answered in the affirmative and the court is urged to grant the relief sought. It is submitted that by Order 38 Rules 1 of Imo State Civil Procedure Rules 2017, the court is permitted by the rules to make orders substituting a party who is dead or incapacitated with another party as in this case. It is also contended that by the consent judgment of this court in Suit No HMI/105/2017 between Chief Winner Njoku .V. Chief Emma Njoku & 2ors delivered and adopted as judgment of court on 12th Day of plaintiff/respondent, having concede all his interest m the said suit to the applicant.

According to the counsel, it is the law that where after institution of a Suit, any change or transmission in interest or liability occurs in relation to any party to the Suit, or a party to the Suit dies or becomes incapable of carrying on the Suit, any person interested may obtain from Court any order requisite for curing the defect or enabling proper parties to carry on the proceedings. Where an order of Court is made substituting a new party, the substitute will not be taken as initiating the action de nova but be placed in the exact position of the original plaintiff whom he replaces. The counsel referred to Osuji v.Ogualaji (2002)16 NWLR (Pt 792) at 148 paras B-E., Arowolo v Akapo (2006) 18 NWLR (Pt.1010) 94.

The court is urged to hold that this application is meritorious and grant same substituting the plaintiff with his son, Chief Winner John Njoku in the interest of justice and fairness and in giving effect to the judgment in Suit No HMI/105/2017 between Chief Winner Njoku .V. Chief Emma Njoku & 2ors delivered and adopted as judgment of court on 12th Day of February.

The 2nd Judgment Debtor brought a motion pursuant to section 36(1) of the Constitution of Federal Republic of Nigeria 1999 (as amended), Order 39 Rule 1 of the High Court (Civil Procedure) Rules, 2017 and prays for:

  1. An order setting aside the entire proceedings of this Honourable Court in this suit.
  2. An order setting aside the judgment of this Honourable Court delivered on 23/2/2018 as irregularity obtained and therefore void.

The grounds upon which this application is based are as follows: The entire proceedings of the Honourable Court in this suit and the judgment emanating there from are fundamentally defective in that:

  1. No hearing notice was served on the Applicant prior to the hearing and delivery of the judgment in this case.
  2. No pre-trial conference processes were served on the Applicant before the Honourable Court proceeded to receive evidence from Plaintiff’s witnesses and thereafter deliver judgment.
  • The judgment delivered in this case on 23/2/2018 was therefore delivered without competence.
  1. It is within the competence of this Honourable Court to grant the reliefs sought in this application.

AND for such further order or other orders as the Honourable Court may deem fit and expedient to make in the circumstances.

The application is supported by affidavit deposed to by LILIAN IJEOMA OFOEGBU, the Litigation Secretary in the law office of Okey Ehieze & Associates. He deposed: I am conversant with the facts herein deposed. I have the consent of the 2nd defendant/applicant and that of the head of chambers to depose to this affidavit on behalf of the Applicant. I was informed by my employer, Chief Okey Ehieze (KSC) solicitor to the Applicant on 26/10/18 at about 2.00pm in our office at No. 45 Mcc Road, Owerri and I verily believe him as follows that: This case was pending before the High Court No. 1, with Okey Ehieze & Associates representing the 2nd defendant/applicant while J. C. Okeji Esq. representing the Plaintiff/Respondent. The applicant or his counsel was never served with any hearing notice that this case has been transferred to Court 9. The only hearing notice served on applicant’s counsel was one served on him on 1/11/2016 when the case was pending in Court 1. It is exhibited herewith as EXHIBIT A. No other hearing notice whatsoever was served on the 2nd defendant/Applicant after the case was transferred to court 9. Similarly, there was no notice of change of counsel served on the Applicant or his counsel before U. C. Osuji Esq took over the case from J. C. Okeji Esq. Furthermore neither the 2nd Defendant Applicant nor his counsel was served with the pre-trial processes as ordered by this Honourable Court on 1/6/17. None of the hearing notices ordered and issued by this Honourable Court was served on the Applicant or his counsel. The affidavit of service sworn to by the bailiffs one Kasarachi Ekezie and Uchenna Chikezie were all fraudulent as none of them ever saw the 2nd defendant and so did not serve any hearing notice on him personally. The hearing notices purportedly served by the said bailiffs on the applicant are exhibited as Exhibits B, C, D, E, F & G respectively. The applicant is a native of Nkwerre but resides in Abuja. Since 2017, the applicant has not been in Imo State talk less of being at High Court, Owerri as alleged by Exhibits D, E & G respectively. Exhibits B, C & Fare false as they alleged to have been served at Umudagu Mbieri which is neither the applicant’s hometown nor place of residence. It was therefore on the basis of this false affidavit of service that the Honourable Court proceeded to hear this suit in the absence of the applicant and his counsel and delivered its judgment exhibited herewith as Exhibit “H”. The applicant was therefore denied his right to fair hearing. The consequence of the denial of the Applicant’s constitutional right to fair hearing is to set aside the said judgment delivered on 23/2/2018 and al/ other proceedings leading to same. It is in the interest of justice that the judgment obtained in contravention of the applicant’s right to fair hearing be set aside.

The counsel filed a written address and formulated issues for determination as:

WHETHER THE COURT’S PROCEEDINGS AND JUDGMENT OBTAINED IN THE ABSENCE OF THE APPLICANT AND IN BREACH OF THE APPLICANT’S RIGHT TO FAIR HEARING NOT LIABLE TO BE SET ASIDE

The counsel cited Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and submitted that the above provision anchors the principle of fair hearing of audi a!terem partem and nemo judex in causa sua. He referred to ACTION CONGRESS OF NIGERIA V. LAMIDO (2012) All FWLR (pt. 630) 1316 @ 1319

According to the counsel, in applying the above principle to the facts of the present case, which is that the applicant was not served with either the pre-trial processes in this matter, Notice of change of counsel and hearing notices as required by law when the matter was transferred from court 1 to court 10 where the matter was heard in the absence of the applicant and counsel. The Applicant has a counsel representing him in the matter and whose address for service is within jurisdiction. The Applicant himself resides in Abuja outside jurisdiction and has not been in Owerri or the High Court Owerri since the year 2016, therefore affidavit of service Exhibits D, E & G filed by the bailiffs to the effect that they served the Applicant in the High Court Owerri are false. The bailiffs and the Plaintiff intentionally refused to serve the process on the Applicant’s counsel in order to enable the Plaintiff obtain judgment behind the Applicant.

Furthermore, Exhibits B, C & F were also alleged to have been served on the Applicant at Umudagu Mbieri. This is again false as the Applicant does not reside at Umudagu neither is he a native of Umudagu. So who did they serve these hearing notices at Urnudaqu? It is submitted that the present case where a case is transferred from one court to the other is a proper case where the Registry of the court should have served a hearing notice on the Applicant intimating him of the change in venue. Relied on A-G, RIVERS STATE V. UDE (2007) All FWLR (pt. 347) 598@ 614

It is submitted that since the court failed to serve hearing notice on the applicant before proceedings with the case and conducting pre-trial conference and taking evidence thereafter and finally delivering judgment in the absence of the Applicant, the said proceedings and judgment are liable to be set aside on grounds of lack of fair hearing. The counsel referred to KALU V. STATE (2017) ALL FWLR (pt. 896) 1745 @ 1768.

According to the counsel, in the present case where the Honourable Court proceeded to hear the Plaintiff in the absence of the applicant and without affording the applicant the opportunity to be heard, the proceedings are therefore liable to be set aside. Relied on OTTI V. OGAH (2017) ALL FWLR (pt. 886) 2075 @ 2115, ASSAMS V. ARARUME (2016) All

FWLR (pt. 821) 1481@ 1494.

The court is urged to, in line with judicial authorities cited hereinabove, set aside its proceedings in this case and judgment delivered on 23/02/2018 in the absence of the applicant and in breach of his fundamental right to fair hearing.

The Plaintiff/Judgment Creditor filed COUNTER AFFIDAVIT TO THE MOTION TO SET ASIDE JUDGMENT deposed to by Chief Emmanuel John Njoku. He deposed: I am the plaintiff/judgment creditor/respondent in this application purportedly made to set aside the judgment of this court delivered on the 23rd of February 2018. Paragraph 1, 2, 3i to xiii, 4 and 5 of the supporting affidavit are false in their entirety. When the applicant’s counsel received the hearing notice of 1st November 2016 he took no steps to come to court on the 1st of December 2016 which was the date of hearing on the hearing notice exhibit A to the applicant’s affidavit. On the 1st December, 2016 the plaintiff and counsel, 1st defendant and counsel were in court, but the applicant and counsel were absent despite the service of the admitted hearing notice on them. It was on the 1st of December 2016 that we were informed that the case will be transferred out of court 1 because of so many cases in that court and the matter was adjourned to 20/2/2017. On the 20th of February 2017, the applicant was also not in court and we were informed that the matter had been transferred to court 9. My present counsel U.C. Osuji Esq was retained by me in 2014 and he filed an application for change of counsel on the 27th of May 2014. A copy of the said application for change of counsel which was served on the counsel to the 2nd defendant is exhibited I hereto. At the back of exhibit I is the evidence of service of the notice of change of counsel on the counsel to the 2nd defendant Okey Ehieze & Associates and duly acknowledged by his secretary Nkem Innocent on the 28th of May, 2014 and it was also served on the counsel to the 1st defendant on the 5th of June 2014. That following my change of counsel, my new counsel made application for amendment of my writ which was granted and my amended writ was duly served on the counsel to the 2nd defendant on the 28th of May, 2014 through counsel to counsel service. That a copy of the amended writ of summons duly received by the secretary to Okey Ehieze & Associates Nkem Innocent is exhibit 2 hereto. That my new counsel U.C Osuji & Associates also filed a motion for injunction on the 17th of February, 2016 and same was served on the counsel to the 2nd defendant and acknowledged by the secretary to Okey Ehieze & Associates Mrs. Lilian Ofoegbu who is the deponent to the supporting affidavit which motion and endorsement is exhibit 3 hereto. That while the 1st defendant took steps to react to exhibit 2 and 3, the 2nd defendant chose to file no defence to the suit and no counter affidavit to the motion for injunction. The plaintiff’s pretrial form 17 and 18 were duly served on the counsel to the 2nd defendant Okey Ehieze on 17th May 2013 when he was at No 119 Wetheral Road Owerri. A copy of the affidavit of service is exhibited 4 hereto. That despite the service of forms 17 and 18 on the 2nd defendant, he did not file any form and was not ready for any pre trial. That the service of another pretrial forms 17 and 18 on the defendants on 2nd of June 2017 was a surplusage. A copy of the affidavit of service of the surplus form 17 and 18 is exhibited 5 hereto. That exhibit G to the supporting affidavit and other exhibits thereto go to show that the 2nd defendant was served personally with the hearing notice. That the applicant has not been diligent in his defence to this suit as apart from the Notice of preliminary objection he filed and argued and which was dismissed, he since then refused to take part in the proceedings. That the applicant refused to file any defence to this suit despite the service of the processes on him or his counsel in this case. That the applicant has been boasting that he had sold the property and has no business in the proceedings anymore. That following the judgment in this case, execution was levied and a copy of warrant for possession of premises is exhibited 6 hereto. That after the execution we were told that the applicant brazenly sold the land in dispute during the pendency of this suit and thereafter refused to equip his lawyers to put up a defence for him in this case. That the applicant frequents Owerri High Court anytime he comes home which he does frequently as he has many cases within the premises of the High Court. That the applicant is in the habit of abandoning his case and that is the same way he abandoned the charge he instituted against me at the Owerri Magistrate Court the said charge is exhibited 7 hereto. That the applicant has more than a substantial notice of the proceedings in the case against him and refused to do anything about it only to complain after judgment was given and execution levied. That I am informed by my counsel U.C. Osuji Esq and I verily believe him that this application is incompetent and that he shall urge the court to dismiss same. That the 1st defendant who the 2nd defendant purportedly derived title from is not challenging the judgment as delivered.

The counter affidavit is accompanied by the counsel written address wherein he formulated issue for determination as:

Whether the court judgment delivered on the 23rd of February 2018 met the requirements of law.

It is submitted that the judgment of this honourable court delivered on the 23rd of February 2018 in this court is valid as it met all the requirements of a judgment. See ONUEGHEME V. ALOEWE (1995) 7 NWLR (pt 409) 581, SANUSI V. AMEYOGUN (1992) 4 NWLR (pt 237) 527.

It is submitted that a judgment that met the foregoing conditions can only be set aside by the court that gave it only on the following conditions:

  1. Where the judgment was obtained by fraud or deceit either in the court or of one or more of the parties.
  2. when the judgment is a nullity.
  3. where it is obvious that the court was misled into given judgment under a mistaken belief that the parties consented to it.
  4. where in a cross appeal, the respondents cross appeal was not considered in the judgment
  5. where the judgment was given in the absence of jurisdiction
  6. where the procedure adopted was such as to deprive the decision or judgment of the character of a legitimate adjudication see also UKOCHUKWU V. UBA (2004) 10 NWLR (pt 881) 294, ARCON V. FASASI (No 4) (1987) 3 NWLR (pt 59) 42.

According to the counsel, none of the above stated conditions was established by the applicant in this case. When this suit was filed by the plaintiff in 2012, same was served on the defendants. The 2nd defendant filed a notice of preliminary objection on 21/5/2012 on a mere irregularity on the writ of summons. The 1st defendant promptly filed his defence and witness deposition. The notice of preliminary objection was later dismissed and he refused to file any defence to the suit despite the service of the amended writ of summons on him. The plaintiff and the 1st defendant also filed their pretrial forms and the 2nd defendant refused to file any. From the evidence of service annexed to the counter affidavit it is clear that the 2nd defendant was aware of the pendency of the proceedings and refused to take part in same. He relied on MUHAMED V. KPELAI (2001) FWLR (pt 69) 1404, 1419, FOLBED INVEST. LTD V. ALPHA MERCHANT BANK LID (1996) 10 NWLR (pt 478) 344.

It is submitted that equity aids the vigilant and not the indolent. As such, it does not lie in the mouth of an indifferent and indolent defendant who absented himself from the proceedings up to judgment to complain that he was not availed his constitutional right of fair hearing see Per Mukhtar JCA in MUHAMED V. KPELAI (supra), AGIRI V. OGUNDELE (2005) All FWLR (pt 250) 81,105, ALAKA V. ADEKUNLE (1959) WLR 76, ADEKIGBE V. KUSIMO (1965) NMR 284, SKIN CONSULT NIG LTD V. UKEY (1981) 1 SC 6,

It is submitted that the applicant in this case has not shown that he was not aware of the proceedings i.e that he was not served the writ of summons or statement of claim or any hearing notice at all, rather he was complaining that he was not served enough hearing notice. He has not also alleged any fraud or misrepresentation. Again the 1st defendant from whom he purportedly acquired title is not challenging the judgment. The right of the applicant in this case lies on appeal and not setting aside a judgment that is valid in law. Again the applicant in this case asked the court to set aside a judgment which has been executed, without a prayer to set aside the execution which is not obtainable in law. The court is urged to resolve this issue in favour of the plaintiff/judgment creditor/respondent.

COUNTER AFFIDAVIT OF 1ST DEFENDANT TO THE MOTION TO SET ASIDE is sworn to by Innocent Ogu. He deposed: That I am the 1st defendant/respondent in the Motion filed by the 2nd defendant to set aside judgment of this Honourable Court dated 23/2/2018. That all the averments contained in the affidavit of the 2nd defendant in support of the Motion to set aside the judgment of this Suit are not true. That at all times to the time judgment was delivered in this I was aware of the proceedings. That the hearing notices were equally served on me including the Motion for injunction. That I have always drawn the attention of all these above facts to the 2nd defendant including the re-assignment of the matter to Court 9. That while this matter was pending, the 2nd defendant who was aware of the pendency of this Suit sold the land to one Bishop Nelson Nnanna of sole winner. That when I noticed this sale, I met the 2nd defendant and informed him of the implication of the sale subject of the matter of this Suit while the matter was still pending. That apart from informing the 2nd defendant of the implication of selling a land while Suit is still pending, I went personally to the said Bishop Nelson Nnanna with all the processes of the Suit and showed him. That the said Bishop Nelson Nnanna rather than listening to me, resorted to threat and vowed that with his position he would ensure that the land becomes his by the purchase. That being aware of all these facts also, he went ahead and erected a structure on the disputed land. That I have never disputed the ownership of this land with the Plaintiff including the said judgment of 23/2/2018. That the 2nd defendant deliberately kept away from Court knowing fully well that there is a Suit against him over this land. That I was informed by my Counsel, M. K. Yusuf Esq. when I visited him on 23/11/2018 in his Office at about 3.00pm at No. 13 Ajoku Street, Owerri and I verily believed him that judgment of this Court having been delivered, this Honourable Court is Functus Officio.

The 1st Defendant/Judgment Debtor’s counter affidavit is accompanied by a written address. the counsel formulated the issue for determination as:

WHETHER THIS COURT CAN SET ASIDE THE JUDGMENT DELIVERED ON 23/2/2018.

It is submitted that this Court cannot set aside the judgment delivered on 23/2/2018. It is evident from the exhibits attached to the 2nd defendant application that he was served with hearing notices; it is immaterial where he was served. It is not in issue that the Applicant is not aware of the Suit. It is trite law that, it is incumbent on the litigant who failed to go to Court after he had been duly intimated of a hearing date to enquire as to what took place in Court when he was absent. It ceases to be the responsibility of Court to seek for and serve a party who had been duly notified or was aware of a hearing date. The failure to attend Court on that day and subsequent ones cannot be blamed on the other party. See GBAGI U. OKPOKO (2014) 4 NWLR PT. 1396, PAGE 136 AT FP. 157-158, Afonja Community Bank [Nlg.] Ltd. V. Akpan (2002) 16 NWLR (Pt. 792) page 154.

According to the counsel, it is also trite that, a judgment of Court remains valid and binding until set aside by a competent Court, usually on appeal. It is not for the judge that delivered the earlier judgment to wake up, after sometime and change his mind and reverse himself, even without being called upon to do so. SEE AYOADE U. SPRING BANK PLC. (2014) 4 NWLR, PT. 1396 PAGE 93 AT PAGE 128.

It is further submitted that, where a Court has decided on an issue and the decision is embodied in some judgment or order that has been effective, the Court cannot re-open the matter and substitute a different decision in place of the one which has been recorded. Anyone who seeks to change it must appeal against it. Once a trial Court delivers its final judgment or ruling it becomes functus Officio and ceases to be seised of the matter, except for the purpose of making ancillary orders such as stay of execution and so on. See Ayoade Vs. Spring Bank Plc. (Supra) at 132. It is also submitted that the Applicant who is alleging breach of fair hearing, has not discharged the burden place on him by this application. “The burden is on the party alleging breach of fair hearing in a case to prove the breach, and he must do so in the light of the facts and circumstances leading to the alleged breach. This is because the facts of the case and the facts only, determine acts which constitute non-compliance with the principles of fair hearing. In the instant case, the appellant who was given full opportunity to defend the appeal at the Court of Appeal as the respondent but decided to throw away that opportunity through his learned counsel who decided to abandon his case, cannot now turn around to claim that he was denied fair hearing by the Court of Appeal”. SEE THE CASE OF lJKACHUKWU V. P.D.P. (2014) 17 NWLR, PT. 1435 PAGE 134AT 193.

It is submitted that finally from the Affidavit evidence before the Court, the Applicant cannot complain of breach of fair hearing and this Honourable Court is urged to dismiss this application.

The Judgment Creditor filed a counter affidavit to the motion for substitution. It is deposed to by KORIEOCHA OGECHI the secretary to the law firm of Uche Osuji and Associates. He deposed: That exhibit NAC 1 is a complete forgery as I was not privy to it. That judgment in this case was delivered on the 23rd of February 2018 while the purported terms of settlement exhibit NAC 1 was made on the 22nd of January 2018. That both the purported judgment order in HMI/105/2017 which was made on the 1ih of February 2018 and the purported terms of settlement were made during the pendency of this suit. That the terms of settlement and order of court could not have been made for a subject matter that is in dispute without bringing it to the notice and knowledge of the trial judge. That counsel to the party seeking to substitute the plaintiff was a witness to the purported terms of settlement exhibit NAC 1. That the said counsel to the party seeking to substitute the plaintiff war also the counsel to the 1st defendant i.e. Diamond Bank in exhibit NAC 1. That the plaintiff is a blind man having been blind for over 15 years now. That this conspiracy to take all the plaintiff’s hard earned properties was hatched by his son Winner and Barrister Nwakenta whom he knew as the Diamond bank lawyer.

The party seeking to substitute the plaintiff and his other sons will inherit him at his death and he doesn’t know why they want to dispossess him of his properties while he is still alive. That the plaintiff has filed court processes to set aside the purported order of court in HMI/105/2017 which was arrived at in bad faith.

The counter affidavit is accompanied by a written address. The counsel formulated issue for determination:

Whether the court can make an order substituting a party in this circumstance.

It is submitted this Honorable court is not permitted by law to substitute a party who is not dead or who is not incapacitated with another person. See order 13 Rule 29 of Imo State High court (Civil Procedure) Rules 2017, CCB (Nig) Ltd V Onwuchekwa (2000) 3 NWLR (pt 647) 65, CBN V NWAWKA & ORS (2012) LPELR 22383 (CA). According to the counsel in ECO BANK (NIG) PLC V METU & ORS (2012) LPELR 20846 (CA) substitution of parties was defined as the replacement of one litigant by another because of the first litigant’s death, incompetence, transfer of interest or when the litigant is a public official – separation from office.

It is submitted that in this case, the plaintiff is not dead and is not incompetent as he is prosecuting his matter with his own lawyer. The issue of transfer of interest cannot be true as no document has shown that the plaintiff transferred his interest over the subject matter of this suit to the party seeking to substitute him more so at the time the settlement in exhibit NAC 1 was made, judgment had not been given in this case. Judgment in this case was delivered on 23rd of February 2018, while exhibit NAC 1 was purportedly made on the 22″d of January, 2018. The court is urged lord to hold that there was no transfer of interest from the plaintiff to Chief Winner Njoku his son.

The court is urged to refuse and reject the substitution of the plaintiff with his 3rd son who has not shown that he is incapacitate or that his interest has been transmitted to him.

RESOLUTION OF MATTER

These applications were heard together on the 14-1-2020 and adjourned to 14-4-2021 for ruling. It was caught by the industrial action embarked upon by the judicial workers. On this day U.C Osuji for plaintiff, P.E Chima for the party seeking to be substituted as the plaintiff/judgment creditor, D.C Ebere for 2nd Defendant /Judgment Debtor were in court.

Ebere Esq moved the motion dated 29-10-2018 and filed on 2-11-2018 for setting aside the judgment. Chima Esq. moved the motion for substitution dated 25-1-2. Osuji Esq. relied on the counter affidavits he filed against the motion for setting aside the judgment and the motion for substitution of the Plaintiff/Judgment Creditor. Counter Affidavits of 27-11-2018 and 31-5-219 respectively 1st Defendant filed counter affidavit to setting aside. Chima Esq. submitted that there is no counter affidavit to our motion to substitute. The deponent to the counter affidavit is a stranger. They are attacking consent judgment they signed and did not appeal against it.

Judgment has been delivered in this matter the applicant wants to be substituted with the Plaintiff/Judgment creditor to enable him reap the fruit of the judgment. In ECO BANK NIGERIA PLC V. MICHAEL C. METU & ORS (2012) LPELR-20846(CA) it is stated:

“It would be seen clearly that the order made by the learned trial judge was that of joinder of the Appellant ECO BANK (NIG.) PLC as a party to the suit. The prayer of the 1st Respondent in the motion paper is for the substitution of the 2nd Respondent (Hallmark Bank Plc) as the Defendant in the suit. The Black’s Law Dictionary 8th Edition simply defines joinder at page 853 thereof as: “The uniting of parties or claims in a single law suit.” It defines “substitution of parties” as: “The replacement of one litigant by another because of the first litigant’s death, incompetence, transfer of interest, or, when the litigant is a public official, separation from office.”

See also IN RE: APEH & ORS v. PDP & ORS (2017) LPELR-42035(SC) where it is stated:

“The essence of substitution generally is the putting/placing a thing, in place of another for a purpose.” Per MUHAMMAD, J.S.C. (P. 18, Paras. D-E)

In SHODEINDE & ANOR. v. LAWAL (2012) LPELR-9224(CA) the court said:

“It is not completely true to state that whenever a defendant is added or substituted on the application of any of the continuing parties, the suit should be deemed as having been started afresh or commenced de novo. It all depends on the stage the case has reached when the order of substitution was made. A party is known to have been substituted even after judgment was delivered but died before the hearing of the appeal. See: CENTRAL BANK OF NIGERIA V. IGWILLO (2007) 14 NWLR (Pt. 1054) 393.” Per AKAAHS, J.C.A. (P.7, Paras.C-F)

It will appear that once a judgment is delivered the court will lack the necessary jurisdiction to add to, remove or substitute a party in the suit. In other words, it would appear that if the proceedings in the matter had not been concluded by the entry of the judgment or if the judgment was in the process of being opened, that would have left the proverbial door open for the court to consider substitution of the party.

I am of the view therefore that in appropriate case and for the purposes of appealing against the judgment or the execution of the judgment the court may grant application for the substitution of parties.

Under Order IV Rules 2 and 8

Rule 2 is subtitled: Execution on behalf of persons not parties to the suit. It provides:

“Execution may issue on behalf of any person not a party to the suit, by leave of the court, upon proof of his title to the benefit of the judgment, and upon substitution of the name of the new judgment creditor, together with a statement of his derivative title, for that of the former judgment creditor.

Rule 8 is subtitled: Execution after two and six years. It provides:

(1) As between the original parties, process, otherwise than against the person, may issue at any time within six years, and against the person at any time within two years, from the date of the judgment which is immediately sought to be enforced.

(2) After such periods respectively, process shall not issue without leave of the court, but no notice to the judgment debtor before applying for such leave shall be necessary.

(3) Where leave is given, a note thereof shall be made on the process.

Rule 9 subtitled: Execution by leave in s special cases. It provides:

(1) In the following cases, namely-

(a) where any change has taken place by death or otherwise in the parties entitled or liable to execution; (b) where a husband is entitled or liable to execution upon a judgment for or against his wife;

(c) where a party is entitled to execution upon a judgment of assets in futuro;

(d) where a party is entitled to execution against any of the shareholders of a joint stock company upon a judgment recorded against such company or against a public officer or person representing such company,

the party alleging himself to be entitled to execution may apply to the court for leave to issue process accordingly. The court may, if satisfied that the party so applying is entitled to execution, make an order to that effect, or may order that any issue or question necessary to determine the rights of the parties shall be tried in any of the ways in which any question in any action may be tried. And in either case the court may impose such terms as to costs and otherwise as shall be just.

(2) Where leave is given, a note thereof shall be made on the process.

The court may order a new party to be substituted for an existing one if the existing party’s interest has passed to the new party, and it is desirable to substitute the new party so that the court can resolve the matters in dispute in the proceedings. There is an application to set aside judgment. In that wise a party that feels he has an interest in the judgment already given and feels there is need for him to defend the judgment by opposing the application for stay, he may apply for substitution.

The ground for the application for substitution is a consent judgment in another case/suit where the present Judgment Creditor acceded all his rights to the Chief Winner Njoku. Whenever a Civil Suit is filed and instituted in the court, it is open to the parties to settle up mutually and compromise it by any lawful agreement or compromise in writing and signed by the parties therein. The suit number is HOW/105/2017. The paragraph 2 of the Terms of Settlement stated: That the 1st Defendant- Chief Emma Njoku –Plaintiff in this present suit) concedes his interest in the land subject matter of suit No. HMI/38/2003, HMI/25/2003 and other properties owned by him and or involving him to the plaintiff and his brothers to compensate him and his brothers for all their effort and support to him(the 1st defendant) that gave rise to Suit No HMI/105/2017. Based on this Terms of Settlement, consent judgment was entered on 12-2-2018.

My observation is that Suit No; HMI/105/2017 was filed after the present suit was filed. In fact this Suit No: HOW/46/2012 was five years older. In the terms of settlement, particular mention was made of Suit No: HMI/38/2003, HMI/25/2003 and the properties covered by them. No mention was made of HOW/46/2012. I do not think “and other properties owned by him and or involving him to the plaintiff—“is enough to cover the interest covered in Suit No HOW/46/2012.

I am unable to agree with the Applicant. He has not shown enough interest that will warrant substituting him with the Plaintiff/Judgment Creditor.

The 2nd Defendant brought an application to set aside the judgment based on the non service of Hearing Notice. The plaintiff judgment creditor in opposition to the application to set aside annexed exhibit 1- endorsement of service of change of counsel on the 2nd defendant, exhibit 2- endorsement of service of Amended Writ of Summons on the 2nd Defendant, exhibit 3 – endorsement of service of Motion On Notice on the 2nd Defendant, exhibit 4 – affidavit of service of Form 17 and 18. It does appear that these aforementioned documents were served on the counsel to the 2nd Defendant.

Then exhibit 5 – is affidavit of service sworn on 2nd June 2017. It indicated that Form 17 and 18 and Hearing Notice were served upon defendants at UmuOnuma Umudagu Mbiri Mbaitolu LGA. Exhibit 6 is the warrant of possession. There was no indication of how and on whom it was served. But it would appear that was what prompted the motion for the setting aside of the Judgment.

The 2nd Defendant/Judgment Debtor/Applicant’s grouse is:

  1. No hearing notice was served on the Applicant prior to the hearing and delivery of the judgment in this case.
  2. No pre-trial conference processes were served on the Applicant before the Honourable Court proceeded to receive evidence from Plaintiff’s witnesses and thereafter deliver judgment.

The Applicant went ahead to depose-

The applicant or his counsel was never served with any hearing notice that this case has been transferred to Court 9. The only hearing notice served on applicant’s counsel was one served on him on 1/11/2016 when the case was pending in Court 1. It is exhibited herewith as EXHIBIT A. No other hearing notice whatsoever was served on the 2nd defendant/Applicant after the case was transferred to court 9. Similarly, there was no notice of change of counsel served on the Applicant or his counsel before U. C. Osuji Esq took over the case from J. C. Okeji Esq. Furthermore neither the 2nd Defendant Applicant nor his counsel was served with the pre-trial processes as ordered by this Honourable Court on 1/6/17. None of the hearing notices ordered and issued by this Honourable Court was served on the Applicant or his counsel. The affidavit of service sworn to by the bailiffs one Kasarachi Ekezie and Uchenna Chikezie were all fraudulent as none of them ever saw the 2nd defendant and so did not serve any hearing notice on him personally. The hearing notices purportedly served by the said bailiffs on the applicant are exhibited as Exhibits B, C, D, E, F & G respectively. The applicant is a native of Nkwerre but resides in Abuja. Since 2017, the applicant has not been in Imo State talk less of being at High Court, Owerri as alleged by Exhibits D, E & G respectively. Exhibits B, C & Fare false as they alleged to have been served at Umudagu Mbieri which is neither the applicant’s hometown nor place of residence. It was therefore on the basis of this false affidavit of service that the Honourable Court proceeded to hear this suit in the absence of the applicant and his counsel and delivered its judgment exhibited herewith as Exhibit “H”. The applicant was therefore denied his right to fair hearing.

The applicant admitted that he was served with hearing notice on 1/11/2016 when the case was pending in Court 1. The affidavit of service confirming this service was sworn to on 1st day of December 2016. The applicant did not state the outcome of this hearing notice. Did he respond to it? And when was the matter adjourned thereafter? At what point did he loose the thread? In GBAGI & ANOR v. OKPOKO (2013) LPELR-20167(CA)it is stated:

This Court in a more recent decision per Salami PCA, in M. F. Kent (W.A.) Limited V. Martchem Ind. Ltd (2000) 8 NWLR (Pt.669) 459 at 472 paras B – D, (cited) stated as follows: “Not only that it is equally incumbent on the litigant who failed to go to court after he had been duly intimated of the hearing date to enquire as to what took place in court when he was absent? It ceases to be the responsibility of court to seek for and serve a party who had been duly notified or were aware of a hearing date. The failure to attend court on that day and subsequent ones cannot be blamed on the other party. The Appellant and not the Respondent should bear the brunt of the default. This court again in Afouja Community Bank (Nig.) Ltd. V. Akpon (2003) FWLR (Pt.146) 909 at 920 – 927 (Cited) per Amaizu JCA (as he then was) at Paras G – H. Stated as follows: “It is trite that once the preliminaries of a case have been completed namely, a service of writ, entry of appearance, it is the duty of counsel to keep themselves abreast of the business of the court. A counsel therefore cannot be heard to complain that he was not aware of the date a case is fixed for hearing.” Per BAGE, J.C.A. (P. 28, Paras. B-G)

The 2nd Defendant/Judgment Debtor/Applicant having admitted he was served at any point in the proceedings, it was his duty to keep himself abreast of the proceedings. He failed to that and cannot have the judgment set aside on that ground.

Now the averment that the change of counsel was not served and that Forms 17 & 18 was not also served were rebutted by the judgment creditor who annexed endorsement copies showing that they were actually served on the Applicant.

Exhibit D is to the effect that defendant were served with hearing notice on 22-6-2017 at the High court premises. Exhibit F shows that the 1st & 2nd Defendants were served on 25-7-2017 with hearing notice at Umudagu Mbieri. Exhibit G shows that 2nd Defendant was served with hearing notice on 19th November 2017

There is another vital issue here. And that is that the Applicant challenged the affidavit of service of the bailiff. An affidavit of service sworn to by the bailiff or other officer shall, on production, without proof of signature, be prima facie evidence of service. See the case of Emeka v. Okoroafor and Ors. (2017) 11 NWLR (pt. 1577) 410 at 469. In BARRISTER ISMAEEL AHMED VS. ALHAJI NASIRU AHMED (2013)7MJSC(PT.1)136@203 PARAS A-B, (2013)LPELR -21143(SC) PP 89-90, PARAS. F-D it is stated per BODE RHODES VIVOUR J. S. C:

“If the deponent to an affidavit of service alleges that he served process on the defendant at his residence and states therein the time and place as in this case and the defendant denies it in an affidavit or counter-affidavit, a bare denial would have no weight. The defendant is expected to file an affidavit denying service and giving a truthful rebuttal to the deposition in the affidavit of service. For example, he must depose that, (a) his residence is not where it was alleged he was served, (b) the bailiff never served him any process, (c) at the time it is alleged he was served,he was not at home or not in the country (with proof of his whereabouts) “.

The second point here is that the counter affidavit must be personally deposed to by the defendant or defendants individually, supplying relevant and necessary facts/particulars. The Supreme Court affirmed this position recently in MGBENWELU VS. OLUMBA (2017)5 NWLR (PT.1558) 169@173 RATIOS 3 $ @175,RATIO 5 where it was held

“The proper way to challenge an affidavit of service is to file a counter affidavit and not as happened in the instant case by way of a motion for adjournment or preliminary objection to dismiss the suit …A person challenging service of an originating process on him must depose to a counter affidavit denying service which must also contain credible facts to rebut the averments in the affidavit of service. A bare denial of service without more is insufficient”.

There is need for the Applicant ti file a counter affidavit to the affidavit of service and have same served on the Bailiff of the court for a response.

Again, there is no extention of time within which to seek leave to set aside the judgment. In IN RE: NDIC v. ROSABOL (NIG) LTD & ORS (2017) LPELR-41925(CA)

“So was the Court below right or wrong when it held that the Appellant’s Application filed on 8/3/2006 was incompetent there being no prayer for extension of time within which the Appellant may apply to set aside the default judgment of the Court below? I have earlier in the judgment reproduced the provisions of Order 38 Rule 9 of the Rules of the Court below. Happily, it is impari materia with the provisions of Order 37 Rule 9 of the High Court Of Rivers State (Civil Procedure) Rules 1987, which came up for consideration in Davies V Guildpine Limited (2004) 5 NWLR (Pt. 865) 131, where this Court had emphatically pronounced inter alia thus: “Where a default judgment has been given, the Applicant in moving the trial Court to set aside the default judgment has only 6 days as of right to exercise same. After that, he needs an order of Court extending time. This (extension of time) is a threshold matter which the Applicant must clear before he can pray to have the judgment set aside. In other words, if an applicant’s application for extension of time within which to apply for an Order setting aside a judgment fails, there would be no need for the court to consider his application to have the judgment set aside.”

Per GEORGEWILL, J.C.A. (Pp. 35-38, Paras. C-A)

NOGA HOTELS INT’L V. NICON HOTELS LTD. (2007) VOL. 41 WRN 125 AT 151, LINES 15 – 30 (CA) it is stated:

“By its very nature, an application for extension of time within which to apply for an order setting aside a judgment is a threshold matter that the applicant must clear before he can pray to have the judgment set aside. In other words, if an applicant’s application for extension of time within which to apply for an order setting aside a judgment fails, there would be no need for the court to consider his application to have the judgment set aside. Different considerations apply when a court is dealing with an application for extension of time within which to apply for an order setting aside a default judgment and when it is dealing with an application for an order setting aside the judgment. In the first case, the court is not concerned with whether or not the applicant has a good defence to the suit. The court only concerns itself with whether or not the applicant has satisfactorily explained his reason for not bringing his application within time. See Williams v. Hope Rising Voluntary Funds Society (2001) 34 WRN 171; (1982) NSCC 36; (1982) 1 ALL NLR (Pt. 1) 1; (1982) 1 – 2 S.C. 145 at 157.” Per Odili, JCA.

The application to set aside the judgment of this court delivered on 23-2-2018 is refused same is dismissed.

I.M.Njaka

Judge

29th June 2021

 

Previous post HOW/753/2019-1.MR. CHIEMEZIE EHIEM 2.MRS. ULUNMA EHIEM 3.MR. UZOCHI EHIEM 4.MRS. COMFORT EHIEM 5.MRS. ADANNA NWANERI (NEE EHIEM) V. 1. MR. DENNIS NWACHUKWU 2. COMMISSIONER FOR POLICE IMO STATE 3. THE NIGERIAN POLICE FORCE-Delivered on 15TH DAY OF JULY 2021- By HON. JUSTICE I.M.NJAKA-POINTS:-When a person’s life is threatened on issue of land he has the right to inform or contact the law enforcement agency such as the police
Next post HOW/436/2018- 1.CHARLSE CHUKWUEKE 2.EJIKE CHUKWUEKE V 1.NNAEMEKA EJIOFOR 2.OBIEZE EJIOFOR 3. BONIFACE EJIOFOR 4. THE COMMISSIONER OF POLICE, IMO STATE 5. THE O/C ANTI-VICE UNIT STATE POLICE HEADQUARTERS, OWERRI 6. INSP. CHIDIEBERE OGBONNA -delivered on 11TH DAY OF MARCH, 2021 by HON JUSTICE I.M.NJAKA. POINTS:-What is the effect of a case struck out? A case struck out is not dead-If the suit of the plaintiff was heard on the merit and dismissed, where the defendant did not counter claim, the defendant does not automatically become entitled to the disputed land-There is an exception to the general rule regarding unchallenged affidavit- There is need for the Applicants to categorically state the period of arrest- law enforcement agencies ought not to be quick in charging persons to court for malicious damage where there is a history of disputation over a piece of land
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