THE COURT OF APPEAL OF NIGERIA

ON THE 27th February, 2014

CA/L/905/09

BETWEEN

ABEEB AYETOBI 

[substituted by order of Court dated 18/5/2011) 

V. 

OLUSOLA OSIADE TAIWO

SIDI DAUDA BAGE, J.C.A. (Delivering The Leading Judgment):

This is an appeal against the ruling of L.B. Lawal Akapo J, of the Lagos State High Court of Justice, holden at Ikeja, in suit No.ID/136M/2008 delivered on 30th September, 2009. The facts relevant for determination of the appeal can be summarized thus:

1.02 By an originating summons dated the 28th day of February, 2008 the Respondent instituted proceedings against the Appellant and unknown persons as 1st and 2nd Defendants respectively for recovery of possession of the piece or parcel of land known as plot 4 Block 148 Ipaja New Town Scheme Ipaja, Lagos State measuring approximately 1820.96 square metres as shown on survey plan No. LS/D/LKJ403F and covered by certificate of occupancy dated the 30th day July 1990 and registered as No. 5/5/1990 N on the ground that the claimant [Respondent] was entitled to possession and that the persons in occupation are there without his licence or consent. See pages 1-2 on the record.

1.03 The Appellant was not served personally with the originating processes and same was not served on the Appellant's address for service on the face of the summons which is Baale's house Ikola village Ipaja, Lagos. Rather the process was served on one Prince Oladimeji of No.8 Ogundele Street Ipaja on 28th March, 2008 see the bailiff’s affidavit of service dated 31/3/2008 at pages 25A and 25B of the record.

1.04 The summons was listed for mention on 14th April 2008 (less than two weeks after service) whereas under order 3 rule 8 and Form 3 of the Schedule to the High Court of Lagos State (Civil Procedure) Rules 2004 the Defendants are allowed a period of 42 days to answer to the summons. It was subsequently adjourned to 14th May, 2008 for hearing without further notice to the Defendant. See page 26 of the record.

1.05 The Defendants (Appellant and unknown persons) were absent at the hearing of the originating summons on 14th May 2008 when the learned trial judge (Coram Marsh J) after allowing same to be moved by Respondent's counsel, gave judgment (termed ruling) instantly in his favour. See pages 27 and 28 of the record. Shortly thereafter the judge retired from service.

1.06 pursuant to an application dated and filed on 30th June, 2008 [more than six days after the default judgment of 14th May 2008) by the Appellant and praying the court for the following:

1. An order extending time within which to set aside the judgment in default of appearance and defence dated 14/5/2008.

1. An order setting aside the said judgment and

1. An order re-listing the originating summons dated 28/2/2008 for its determination on the merits.

The Appellant (despite the aforementioned anomalies) admitted receipt of the originating summons but contends that he was sick at the time which accounted for his absence at the hearing. He relied on a sick report allegedly issued by the hospital where he was treated which report was attached as exhibit A to the motion to set aside the default judgment. See page 44 of the record.

1.07 In opposing the application the Respondent's counsel investigated the sick report by writing to the hospital. The outcome of his investigation proved that the report was false. See the counter-affidavit and exhibits at pages 29-32 of the record.

1.08 Consequently the Appellant lodged a complaint with the same hospital on the false report. He was given a fresh report which he attached as exhibit A1 to the reply to the counter-affidavit see page 36 of the record.

1.09 In his ruling dated 30th day of September, 2009 the learned trial judge (Coram Lawal - Akapo J.) while dismissing the motion of 30/6/2008 held inter alia that he disbelieved both exhibits A and A1 [the Appellant's sick reports) because

"Curiously enough, these two medical certificates which are in conflict were both sai