IN THE COURT OF APPEAL OF NIGERIA
On Monday, the 2nd day of February, 2015
MR EMMANUEL MADUIKE Appellant
TETELIS NIGERIA LIMITED Respondent
Appellants brief was settled by Olanlokun Omolodun
O. B. Ehiwogwu - For Respondent
(Amended Respondent's brief was settled by Chief Anthony I. Idigbe SAN and Nnamdi Oragwu)
1. ACTION AND LEGAL PRACTITIONER - DUTY OF COUNSEL: Duty of respect owed by Counsel to Court Duty of counsel to an action to ensure diligent prosecution of his clients brief Effect of failure to ensure diligent prosecution
2. APPEAL - GROUNDS OF APPEAL: Grounds of appeal that can be entertained by the Court Ground of Appeal flowing from different judgments
3. APPEAL - REPLY BRIEF: Meaning, method and purpose of the right to a reply brief Abuse of the right to a reply brief
4. LANDLORD AND TENANT RECOVERY OF PREMISES Need to follow Court procedure
5. PRACTICE AND PROCEDURE DISTINCTION BETWEEN SUMMARY AND DEFAULT JUDGMENT: Meaning of Summary Judgment Duty of Claimant Duty of Court Considerations which must be countenanced Effect and character of a Summary Judgment Meaning of a Default Judgment Effect and Character of a Default Judgment Procedural difference between summary and default judgment
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the judgment of Honourable Justice A. A. Phillips of the Lagos State High Court delivered on 22nd May 2008 entering final judgment in favour of the Respondent/Claimant.
The facts of this case seem straightforward. The Claimant had commenced an action against the Defendant before the Lower Court by a writ of summons and statement of claim dated 17th of April 2007 for the recovery of possession of the Respondent's premises which the Appellant hold of as yearly tenant from March 1998. The Appellant failed to file his statement of defence within the time stipulated by the High Court of Lagos State (Civil Procedure) Rules 2004. Subsequently, the Appellant filed an application to regularize his statement of defence which was struck out by the Lower Court on 22nd May 2008 for want of diligent prosecution. Judgment was entered pursuant to an application for summary judgment filed by the Respondent/ Claimant's counsel. The Appellant's application to set aside the judgment was dismissed by the Lower Court.
Being dissatisfied with the judgment and ruling of the Lower Court, the Appellant filed an appeal vide a notice of appeal dated 3/11/2009 seeking for an order allowing the appeal, setting aside the judgment of the trial court and ordering a retrial of the matter. Appellant raised just one ground of appeal.
In compliance with the rules of court, Appellant filed his brief of argument dated and filed on 8/04/2013 and a reply brief dated 14/05/2013 and filed on 16/05/2013. Appellant's brief was settled by Olanlokun Omolodun. The Amended Respondent's brief which was settled by Chief Anthony I. Idigbe SAN and Nnamdi Oragwu is dated and filed on 19/02/2014.
Appellant's sole issue as raised in his brief is as follows:
Whether the Lower Court was right in entering summary Judgment against the defendant when crucial proof of the claim was lacking.
In the Respondent's brief, one issue was also identified for determination of the appeal. But as they are similar to those set out above from the Appellant's brief, I do not need to have them reproduced here. However, the Respondent in its brief raised a preliminary objection as to the competence of the notice of appeal.
It is therefore appropriate that I address the preliminary objection before considering the issues raised by the parties.
Respondent's counsel argued that the time stipulated for the filing of an appeal against the decision of a Lower Court to the Court of Appeal in respect of final judgment is three months and in respect of ruling the stipulated time is 14 days. Counsel referred to Rule 24 of the Court of Appeal Rules 2004 and the case of IFELODUN LOCAL GOVT v BELLO  4 NWLR (PT.1289) 17 at 21. Counsel submitted that in the instant appeal, the Appellant did not bring the appeal within the time stipulated by law. Counsel noted that it is evident from the grounds of appeal that the appeal in this case is against the judgment of the court delivered on 22nd May 2008 but the notice of appeal was filed on 6th November 2009. He further submitted that the appeal is incompetent and urged the court to dismiss same. Counsel cited NWOKO v AZEKWO  12 NWLR (PT.1313) 151 at 156.
Counsel further submitted that the Appellant in the notice of appeal included the ruling of 30th October 2009 as part of the decision appealed against in order to bring it within the stipulated time to appeal but that the ground of appeal exhibited therein does not cover that ruling of the lower court. Counsel contended that a ground of appeal must be against the decision which the Appellant is appealing against and not against any other judgment. On this position, Counsel placed reliance on ADEBIYI v UMAR (2012) 9 NWLR (PT.1305) 279 at 286. Respondent's Counsel submitted that since there is no ground of appeal covering the decision of the Lower Court aside the summary judgment entered by the Lower Court, it is deemed that the Appellant has abandoned it and does not intend to appeal against the decision of the Lower Court dismissing the motion to set aside the summary judgment.
It is also the contention of the Respondent's counsel that the Appellant did not seek the leave of the court to bring this appeal within the stipulated time. Counsel submitted that the court cannot therefore exercise any discretion in this matter because the Appellant has not done what the law stipulates. Counsel argued that the position of the law is that when the time, within which to bring an appeal has effluxed, the Appellant shall bring a motion for the enlargement of time to the higher court for an extension of time within which to bring such appeal. Counsel cited NDIC v GLOBUS ENT. LTD  3 NWLR (PT.1233) 74 at 78 to submit that in the instant case the Appellant did not seek an order of the court for leave to enlarge time within which to file the appeal and urge the court to strike out the appeal for being incompetent.
A careful perusal of the Appellant's reply brief reveals that the Appellant failed to either address or answer the points raised by the Respondent in its brief as it relates to the preliminary objection. Rather the Appellant embarked on a futile voyage of readdressing issues that he had already addressed in his brief of argument. The law is settled that arguments to be proffered in a reply brief must be limited to answering new issues arising from the Respondent's brief not an avenue for an Appellant to have another bite at the cherry by extending the scope of his brief of argument. Commenting on the purpose of reply brief, Per EJIWUNMI JSC in IKINE & Ors v. EDJERODE & Ors  LPELR - 1479 (SC) 13 - 14 paras D - A, stated thus:
"... it is pertinent to observe that the right of the Appellants to file a reply brief is not to be used as a second opportunity to re-argue the argument already proffered for the Appellants in the Appellants brief. My understanding of a reply brief is for the Learned Counsel for the Appellants to present argument in answer to that of the Respondents, and which had not been addressed in the Appellants' brief. It is, in my view an unwarranted waste of time of the Court for counsel to represent argument which had already been set down in the Appellants' brief.... A reply brief should be strictly limited to finding answers to questions raised in the Respondents' brief, and which the Appellants had not addressed or dealt with in the Appellants' brief"
Similar view was re-echoed by the same court, PER ADEKEYE JSC in LONGE v FIRST BANK OF NIGERIA  6 NWLR (PT.1189) 1 SC.
Thankfully as noted by the Appellant himself in his reply brief that failure in law to rebut or join the argument raised by a party in a proceeding amounts to an admission of the issue raised by the other. Counsel cited UBOAJA v AKINTOYE - SOWEWIMO  16 NWLR (PT.1113) 278 at 291 292 H-A, where the court opined:
"... it is settled law that where a party fails or neglects to react to an issue in contention between the parties, the party in default is deemed to have conceded the point/issue to his opponent"
At this juncture, it is important to consider the nature of the proceeding and application before the Lower Court that led to this appeal. This is vital for better appreciation of the issues at hand and effective resolution of the preliminary objection. It is common ground that the Appellant/ Defendant failed to file his defence within time and his application to regularize his originating processes was struck out for want of diligent prosecution on 22nd May 2008. It is also undisputed that Respondent/Claimant filed an application for summary judgment dated 17th April 2007 whereupon the Lower Court gave judgment in its favour on 22nd May 2008. It is also evident that the Appellant/Defendant's application to set aside the judgment was dismissed by the ruling of the court dated 3oth October 2009. The indispensable question is thus: what is the nature of the judgment of 22nd May 2008? Is it a summary judgment or a default judgment?
Now, a summary judgment is a procedure for disposing with dispatch, cases which are virtually uncontested. By nature, it is one given in favour of a plaintiff without a plenary trial of the action. Evidently, there is a bypass of the regular procedure of the trial court relating the trial of a matter.
The procedure ensures the preclusion of frivolous defences for purpose of mere delay. Primarily, the court takes into consideration the pleadings, the motions and where necessary, additional evidence adduced by parties to determine whether or not there is a genuine issue of material fact, rather than one of law. See PROJECT NINETHEEN LIMITED & ANOR v AZIZ/STACONS AND ASSOCIATES (2014) LPELR 23736; AKPAN v AKWA IBOM PROPERTY INVESTMENT COMPANY LTD (2013) LPELR - 20753; UBA v ALHAJI BABANGIDA JARGABA  11 NWLR (PT.1045) 247; BELOXXI INDUSTRIES LTD & ANOR v HWA TAI INDUSTRIES BERHAARD LTD (2011) LPELR - 3867; OKAMBAH LTD v ALHAJI GANIYU A. SULE  11 - 12 SC 47; THOR LTD v FCMB LTD  14 NWLR (PT.946) 696.
Order 11 of the High Court of Lagos State (Civil Procedure) Rules, 2004 deals with the procedure for summary judgment as it relate to the instant case. It provides:
"11 (1) Where a claimant believes that there is no defence to his claim, he shall file with his originating process the statement of claim, the exhibits, the depositions of witness and an application for summary judgment which application shall be supported by an affidavit stating the grounds for his belief and a written brief in respect thereof
(2) A claimant shall deliver to the Registrar as many copies of all copies of all the processes and documents referred to in Rule 1 of this Order as there are defendants
(3) Service of all the processes and documents referred to in Rule 1 of this Order shall be effected in the manner provided under Order 7
(4) Where a party served with the processes and documents referred to in Rule 1 of this Order intends to defend the suit he shall, not later than the time prescribed for defence, file
a) His statement of defence;
b) Depositions of his witnesses;
c) The exhibits to be used in his defence; and
d) A written brief in reply to the application for summary judgment
(5)(1) Where it appears to a judge that a defendant has a good defence and ought to be permitted to defend the claim he may be granted leave to defend
(2) Where it appears to a judge that a defendant has no good defence, the judge may thereupon enter Judgment for a claimant
(3) Where it appears to a judge that the judgment has a good defence to part of the claim but no defence to other parts of the claim, the judge may thereupon enter judgment for that part of the claim to which there is no defence and grant leave to defend that part to which there is a defence
(6) Where there are several defendants and it appears to a judge that any of the defendants has a good defence and ought to be permitted to defend the claim and other defendants have no good defence and ought not to be permitted to defend, the former may be permitted to defend and the judge shall enter judgment against the latter.
(7) Where provision is made for written briefs under these rules, each party shall be at liberty to advance before a Judge oral submission to expatiate his written brief"
The above provisions clearly states what must be fulfilled before a summary judgment will be entered in favour of a party. Failure to comply with any of the provision will render the judgment so entered to be a judgment other than summary judgment. What then is the duty of the Court, the Plaintiff and the Defendant under the summary judgment procedure pursuant to Order 11? In this respect, I call in aid the opinion of my learned brother, PER AUGIE JCA in EMERALD GARLAND BEVERAGES LTD & ANOR v MADUBCHESI (2010) LPELR - 4104 at 18-21, when he stated:
"Nonetheless, there are conditions to be fulfilled and procedures to be followed by the Plaintiff, the Defendant and the Judge. The Plaintiff must -
a) Believe that there is no defence to his claim;
b) File his statement of claim, the exhibits' the depositions of his witnesses along with his originating process;
c) File an application for summary judgment;
d) Support the application with an Affidavit; and
e) File a written address in respect thereof
Where a Defendant intends to defend the suit, he must file -
a) His statement of defence;
b) Depositions of his witness;
c) Exhibits to be used in his defence; and
d) A written address in reply to the application for summary judgment.
Where it appears to a Judge that -
a) A Defendant has a good defence, he may be granted leave to defend;
b) The Defendant has no good defence, Judgment may be entered for the Plaintiff;
c) The Defendant has a good defence to part of the claim, he may be granted leave to defend that part of the claim;
d) The Defendant had no defence to other parts of the claim, judgment may be entered in favour of the plaintiff for that part of the claim;
e) Any of several Defendants has a good defence, he may be permitted to defend; and
f) Any of the several Defendants has good defence, the Judge shall enter Judgment against him."
The position of the law leaves no one in doubt on the point that there is a clear distinction between a summary judgment and a default judgment. I shall adopt the definition of 'default judgment" as espoused in U.T.C (NIG.) LTD v PAMOTEI (1989) 2 NWLR (PT.103) 244 at 282 - 283, wherein the Supreme Court, PER KARIBI-WHYTE JSC said:
"The word default qualifies the noun 'judgment' as used in this appeal seems to me to mean a judgment obtained by a plaintiff in reliance on some omission on the part of the defendant in respect of something which he is directed to do by the rules. The word is used very widely to signify situations where a person has omitted to do what he is required to do having regard to the law governing his actions to the relations he occupies. In ordinary parlance, it means not doing what is reasonable in the circumstances"
See also BELLO v INEC  8 NWLR (PT 1196) 342 SC; EMEZUE & ORS v GOV. OF DELTA STATE (2014) LPELR - 23201 (CA).
Distinguishing between a summary judgment and a default judgment, this court, PER AUGIE JCA in NASCO TOWN PLC & ANOR v NWABUEZE (2014) LPELR - 22526 at 19 - 20 said:
"Firstly, a summary Judgment is not the same as a default judgment, which is a judgment rendered in consequence of the non-appearance of the Defendant. A Default judgment is entered upon the failure of a party to appear or plead at the appointed time - See Akinriboya v Akinsole  3 NWLR (PT.540) 101. Such judgment, based solely on default of pleadings or non-compliance with the rules of procedure, is not one on the merits and can, on good grounds being shown, be set aside by the Court on application by the Defendant - See Adeloye v Olona Motors (Nig.) Ltd  8 NWLR (PT.769) 445 and Malgwi v Gadazama  11 NWLR (PT.678) 258"
He further stated:
"A summary judgment is one given in favour of a Plaintiff without a plenary trial of the action. Although not preceded by a trial, a summary judgment is one on the merits. As Nwadialo explained in Civil Procedure in Nigeria: 2nd Ed., this is because a summary Judgment is based on want of defence to the Plaintiff's claim by the Defendant, a full trial of the action cannot alter the situation. A summary judgment, therefore, unlike a default judgment, cannot be set aside by the Court that granted it or any Court. It is only on appeal."
In this case, it is apparent that while the provision Order 11 (1) of the rules was complied with by the Plaintiff, nothing on record indicates that Order 11 (4) was complied. In fact, an attempt by the Appellant/ Defendant to regularize his process was struck out by the trial court for want of diligent prosecution before judgment was entered in favour of the Claimant pursuant to an application for summary judgment. It seems to me that in the circumstance of this case, the judgment of 22nd May 2008 can best be regarded as a default judgment given in default of pleadings notwithstanding that it was made pursuant to the Claimant's application for summary judgment. A summary judgment is a judgment on the merits based on legal rights from mere matters of procedure. It is not a judgment based on some procedural error as in failure to enter appearance by a party or file necessary pleadings. The trial court seemed to have been under the misapprehension that the judgment is a summary judgment. Even Counsel for both the Appellant and the Respondent argued under the same misconception. Moreso, if as counsel and the court put it, though wrongly, then the trial court upon entering the summary judgment is to appeal same and not to file an application to have it set aside by the court as it was done in this case. By the tenor of the rules, the trial court will only be competent to set aside a judgment given in default and in this case, such judgment can only be set aside under Order 20 (12) of the rules - on ground of fraud, non-service or lack of jurisdiction.
Having settled the issue on the nature of the judgment of 22nd may 2008, it is apparent that from the wordings of Order 20 (12) of the High Court of Lagos State (Civil Procedure) Rules, 2004, subject to the power of the court to set aside a default judgment on grounds of fraud, non-service or lack of jurisdiction, such judgment is deemed to be a final judgment. Any appeal against such judgment must be brought within three (3) months after the judgment. See Section 24 of the Court of Appeal Act, 2011. Here, the appellant did not appeal against the judgment but filed an application to have same set aside, which was dismissed by the trial court on 30th October 2009. Appellant's notice of Appeal is dated 3rd November 2009 wherein the Appellant stated that he is dissatisfied with the judgment of the Trial Court dated 22nd May 2008 as well as the ruling on the application to set aside dated 30th October 2009. A careful perusal of the sole ground of appeal therein reveals that the Appellant is in fact appealing against the judgment only and not the ruling. The ground of appeal states:
"GROUND OF APPEAL:
Error in Law
The Learned Trial Judge erred in law when he went ahead to enter summary judgment for the Respondent without giving opportunity to Defendant/Applicant to argue his defence and counter claim"
As Respondent's counsel rightly noted, the law is settled and well defined that ground or grounds of appeal must flow from the judgment appealed against. In OLONADE & ANOR v SOWEMIMO  LPELR - 22914 (SC), it was stated that:
"It is settled principle of law that a ground of appeal must arise, flow from or relate to the judgment of the court appealed from. Any complaint that does not flow from the decision appealed against cannot legitimately be entertained... In Atoyebi v Gov. of Oyo State  5 NWLR (Pt 344) 296 at 305, this Court restated the principle on the point thus:- An appeal presupposes the existence of some decision which is appealed against on a given point. Where therefore, there is no complaint in respect of a decision that has arisen from a judgment appealed against, such a decision may not form the basis of an appeal for determination by the appellate court. The appellate jurisdiction of this court inter-alia is to review the decision and/or judgments of (the Lower Court)..."
See also MTN NIGERIA COMMUNICATIONS LIMITED v. ABUBAKAR & ANOR (2014) LPELR - 22783 (CA); EGESI & ORS v PDP & ORS  LPELR - 22487 (CA).
It is evident from the above position of the law and the Appellant's ground of appeal reproduced above that it is the default judgment of the court of 22nd May 2008 that is being appealed against. One cannot but wonder why the Appellant included the ruling of 30th October 2009 as the decision he seeks to appeal against. Perhaps the only explanation will be that having being out of time to appeal against the default judgment and not wanting to seek leave of court to appeal same, the Appellant sought a backdoor with the inclusion of the ruling as part of the decisions appealed against so as to create an impression that he was still within time to appeal. The fact that the Appellant stated in the Particulars of error that the dismissal of his application to set aside the 'summary judgment' was "in total violation of (his) right to fair hearing in accordance with section 36 of the constitution of the Federal Republic of Nigeria and the principle that a litigant cannot suffer for the sins of his counsel" - See Page 42 of record - does not in any way help the appellant's case. I need not remind the Appellant that ground of appeal is distinct from the particulars of errors alleged. In OSASONA v OBA ADETOYINBO  LPELR - 2790 (SC) at 14 - 15, the court PER UWAIFO JSC opined thus:
"Now, it should be realized that particulars of the error alleged in a ground of appeal are intended to highlight the complaint against the judgment on appeal. They are the specification of the error or misdirection in order to make clear how the complaint is going to be canvassed in an attempt to demonstrate the flaw in a relevant aspect of the judgment. Particulars are not to be made independent of the complaint in a ground of appeal but ancillary to it: See Global Fishing Industries Ltd v Coker  7 NWLR [Pt.162] 265 at 300..." [Underline mine]
From the foregoing, it is clear that nothing on record indicates an appeal against the ruling of the court of 30th October 2009 and since the Appellant failed to obtain the leave of the court before filing the notice of appeal against the judgment of the trial court dated 22nd May 2008, this appeal is incompetent and is hereby struck out.
However, I must not fail to comment on the attitude and conduct of the Appellant's counsel in this case. It is a known fact that the Appellant's motion for extension of time to file his statement of defence and accompanying processes was struck out for want of diligent prosecution and from the ruling of the trial court refusing the application to set aside the default judgment, the trial court noted that Appellant did not make any attempt to even tender the processes with the motion to set aside. In this regard, the words of this court, PER PEMU JCA in LASACO v DESERVE SAVINGS & LOANS LTD  2 NWLR (Pt.1283) 95 at 114 which I adopt as mine. My learned brother reiterated:
It is no gainsaying that counsel owes the court the duty of respect to attend court on dates on which, to his knowledge, a case in which he acts as counsel is set down for hearing. The Rules of Court and Professional Ethics of the Legal Profession require that if for any cogent reason, counsel and his client are unable to appear or to proceed with a trial on a date the suit is fixed for trial, counsel has a duty, to notify the Registrar of the Court, and the opponent party in reasonable time before that date of his inability. Adeyemi v Lan & Baker (Nig.) Ltd  7 NWLR (Pt.663) 33 at 35.
There is no doubt that the trial court after appraising the affidavit evidence before him rightly exercised his discretion to refuse the application to set aside the default judgment. The trial court rightly observed and considered that the Appellant's conduct and that of his counsel is not worthy of any humane or sympathetic consideration.
In conclusion, the Respondent's preliminary objection is upheld. Appeal is struck out. I award the cost of N150,000 in favour of the Respondent.
SIDI DAUDA BAGE, J.C.A.:
Having read in draft the lead Judgment just delivered by my learned brother,
ABIMBOLA OBASEKI- ADEJUMO, JCA., I agree with the reasoning and conclusion reached therein and have nothing extra to add. In conclusion, the Respondent's preliminary objection succeeds. I too award the cost of N50,000 in favour of the Respondent.
JAMILU YAMMAMA TUKUR, J.C.A.:
I had the privilege of reading in draft the lead judgment just delivered by my brother ABIMBOLA OBASEKI-ADEJUMO JCA.
I agree with the reasoning and conclusion and I adopt same as mine.
I abide by the consequential orders made in the lead judgment.