GODWIN C. NZEWU (APPELLANT)

v.

DR FESTUS OLANIYI ADEWOLE (RESPONDENT)

(1964) All N.L.R. 479

Division:  High Court, Lagos

Date of Judgment: 31st March, 1964

Case Number: LD/11A/64

Before: De Lestang C.J. of Lagos

An action was instituted, by the respondent, against the appellant, a legal practitioner, for the recovery of possession and arrears of rent in respect of the premises occupied by the appellant, On the return day, the parties, including respondent's Counsel, appeared before the magistrate in Chambers. There was no discussion on the merits of the claim, but the appellant merely admitted the claim for arrears of rent and offered to give up possession of the premises. The parties were told to wait for the case to be called in the open court before an order can be made in terms of the admission by the appellant, but the appellant asked to be excused from attending court as he could not wait owing to another important engagement. The case was subsequently called and the appellant was not present; in pursuance of the decision reached in Chambers earlier, the magistrate recorded, inter alia, "parties present. Claim admitted. Defendant admits claim for arrears and also agrees to give up possession ... plaintiff agrees." The magistrate proceeded to enter judgment accordingly.

The appellant then brought an application under section 47 of the Magistrates' Court (Lagos) Act to set aside the judgment on the ground that it was obtained in his absence. The application was refused because the magistrate held that it has no merit since the appellant had admitted the claim before him in Chambers and asked to be excused from being present in court.

HELD:

(1)     Section 47 empowers a magistrate to set aside any judgment given against any party "in the absence of such party." "Absence" means being away from a place. This is the ordinary sense of the word and I see no good reason to give it an artificial sense. In that sense it is obvious that the appellant was absent when the judgment was given. So strictly speaking an application to set aside under section 47 lay.

(2)     In an ordinary case of setting aside a judgment under section 47, the proper order to make by the Appellate Court would be to send the matter to the court below for decision on its merits; but where the matter lacks merit, the appeal ought to be dismissed because a reference to the court below would be a waste of time.

Appeal dismissed.

The Appellant in person.

Davies, for the Respondent.

De Lestang, C.J. of Lagos:-This is an appeal against a Chief Magistrate's refusal to set aside a judgment given in the absence of a party. The appellant, who was defendant in the court below, is a legal practitioner and the tenant of certain premises belonging to the respondent. The respondent instituted proceedings against the appellant for possession and arrears of rent. The return day of the summons was fixed for the 13th May, 1963. On that day the respondent and his legal practitioner and the appellant appeared before the Chief Magistrate in Chambers and the following is an extract from the Chief Magistrate's ruling of what took place in Chambers:-

"On the 13th May, 1963, on the application of the defendant/applicant the parties were called into Chambers at which the fefendant/applicant, the plaintiff and his Solicitor were present-no discussion took place on the merits of the claim-the defendant/applicant merely admitted the claim for arrears and offered to give up possession of the premises on or before the 30th day of June, 1963-I told the parties to wait for the case to be called in the open Court and for the Order to be made in the terms of the admission of the defendant/applicant. Defendant/applicant then said he could not wait owing to an engagement in the Federal Supre Court and asked to be excused."

When the case was subsequently called in open Court the appellant was not present. The learned Chief Magistrate however, made the following entry in the record book:

"Parties present. Claim admitted.

Otuyalo for plaintiff.

Defendant admits claim for arrears and also agrees to give up possession on or before the 30th June, 1963-plaintiff agrees.

ORDER-There will be judgment for plaintiff for £210 arrears of rent up to March, 1963. It is also hereby ordered that Defendant do give up possession on or before the 30th day of June, 1963. Defendant to pay £25:2/- costs to plaintiff as out-of-pocket expenses."

In the margin appears the entry "Matter heard in Chambers."

I pause here to remark that although the learned Magistrate acted bona fide and with the best of motives it is evident that the record of the sitting is incorrect. Subsequently the appellant applied under section 47 of the Magistrates' Court (Lagos) Act to set aside the judgment on the ground that it was given in his absence. The learned Magistrate held that section 47 had no application since "it was not true that the order was made in the absence of the appellant." He came to that conclusion because the appellant had admitted the claim before him in Chambers shortly before and asked to be excused from being present in court as he had another important engagement.