CORAM

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SALIHU MODIBBO ALFA BELGORE, JUSTICE SUPREME COURT

ALOYSIUS IYORGYER KATSINA JUSTICE, SUPREME COURT

AKINTOLA OLUFEMI EJIWUNMI JUSTICE, SUPREME COURT

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PARTIES

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CHIEF L.L.B. OGOLO APPELLANTS

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RESPONDENTS

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AREA(S) OF LAW

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SUMMARY OF FACTS

The appellant sought an order of court staying the order of the trial court in refusing to set aside its (i.e. trial court) default judgement.

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HELD

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The Court held that it was a wrong exercise of the trial courts discretion to shut its eyes to the statement of defence before it in determining whether or not to set aside its default judgement and that the refusal to set aside the judgement was a final order for which no leave is required to appeal.

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ISSUES

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1. Whether the lower court adopted the correct approach in determining the appeal challenging the exercise of judicial discretion by the trial court and, if not, whether the approach occasioned miscarriage of justice to warrant interference by the Supreme Court in the circumstances.2. Whether the lower court occasioned miscarriage of Justice by ignoring the preliminary objection as to the competency of the substantive appeal in considering the merit vel non of the appeal.

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RATIONES DECIDENDI

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DECLARATORY RELIEF CANNOT BE GRANTED WITHOUT ORAL EVIDENCE

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It must be noted that the reliefs claimed by the respondent at the trial court and which were granted in the default judgment, included a declaratory relief. The law is settled that such a relief cannot be granted without oral evidence by the plaintiff even where the defendant expressly admitted same in the pleadings, the said relief being equitable in nature. When looked at from that angle it becomes very clear that the trial judge was under a misconception of the law when he granted the declaratory judgment in default of Statement of Defence thereby rendering the said judgment liable to be set aside upon proper application to that effect. Per W. S. N. ONNOGHEN, JSC

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TEST FOR DETERMINING WHETHER A JUDGMENT OR ORDER IS FINAL OR INTERLOCUTORY

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The correct test in determining whether a decision is final or interlocutory is to look at the nature of the order made rather than the nature of the proceeding resulting in the order. When viewed in that way it becomes obvious that a decision reached in an interlocutory application may be final if it disposes finally of the rights of the parties, having no further reference to that court on the matter in which it has delivered its decision. Per W. S. N. ONNOGHEN, JSC

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FINAL JUDGMENT

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It is settled law that a judgment given at the end of a normal trial, after hearing evidence of both parties and submissions of counsel on the relevant issues of facts and law, is on the merit of the action and also a final judgment which the court concerned is incapable of setting aside except for fundamental defects that go to the jurisdiction of the court. Where the judgment is final and the court that enters it has no jurisdiction to set same aside having thereby become funtus Officio, the only way to challenge it or remedy any defect therein is by appeal to a superior court. Per. W. S. N. ONNOGHEN, JSC

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CASES CITED

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1. Adebayo Doherty V. Ade Doherty (1964) NMLR 1442. Alapa V. Sanni (1967) NMLR 397.3. Bank of Baroda V. Mercantile Bank of Nigeria (1987) 3 NWLR (pt. 60) 2334. Bello V. Eweka (1981) 1 S.C. 101

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STATUTES REFERRED TO

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1. Constitution of The Federal Republic Of Nigeria, 1979

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