H. N. OKOLI v M. N. OFODU (LD/4A/64) [1964] NGHC 16 (24 March 1964)

**H.** **N****.** **OK****OLI** **(****APPELLANT)** **_v_.** **M.** **N****.** **OF****O****D****U** **(****RESPO****N****DENT****)** **(1964)** **All** **N.L.R.** **477** **Div****i****si****o****n:** High Court, Lagos **D****at****e** **o****f** **Judgment:** 24th March, 1964 **C****as****e** **Num****b****er****:** LD/4A/64 **Before:** De Lestang, C.J. of Lagos Section 47: A magistrate, at the same or any subsequent sitting of the court, may set aside any judgment or order given or made against any party in the absence of such party, and the execution thereupon, and may grant a new trial or hearing, upon such terms, if any, as he may think just, on application and on sufficient cause shown to him for that purpose. The appellant obtained judgment against the respondent in his absence in the Magistrates' Court; whereupon the respondent applied under section 47 of the Magistrates' Courts (Lagos) Act to have the judgment set aside on the grounds that he has a good defence to the action and that his non-attendance at the trial was due to an honest mistake; the _ex_ _parte_ Judgment was set aside by the magistrate and a new trial ordered; the appellant appealed against this decision on the grounds that section 47 does not apply to a judgment obtained under the Default Sumons procedure as adopted in this case and that there are no sufficient grounds for setting the judgment aside. **_HELD_**** _:_** (1) Section 47 of the Magistrates' Courts (Lagos) Act empowers the setting aside of a judgment obtained against an absent defendant in a default summons case as well as in any other case. (2) Since the Magistrate exercised his discretion in favour of the respondent on the merits of the application, an appeal will not be entertained from the exercise of his discretion by a judge unless it is shown that he exercised it under a mistake of law, or in disregard of principle, or under a misapprehension as to the facts or that he took into consideration irrelevant matters or failed to exercise his discretion. _Appe_ _a_ _l_ _di_ _s_ _mis_ _s_ _ed_ _._ _Cas_ _e_ _ref_ _e_ _rr_ _e_ _d_ _to_ _:__-_ _Onyenwu_ _v._ _Davies_ , LD3/4A/1963 (unreported). _A_ _c_ _t_ _r_ _e_ _f_ _er_ _r_ _e_ _d_ _t_ _o_ _:__-_ _Magistrates'_ _Court_ _(Lagos)_ _Act,_ _section_ _47._ _O_ _k_ _a_ _fo_ _r_ , for the Appellant. _Georg_ _e_ , for the Respondent. De Lestang C.J. of Lagos:- This appeal was heard on the 20th March, 1964, and dismissed with five guineas costs. I now give my reasons for the dismissal. The appellant who was plaintiff in the court below obtained judgment against the respondent in his absence. The respondent applied under section 47 of the Magistrates' Court (Lagos) Act to have the judgment set aside on the ground that he had a good defence to the action and that his non-attendance at the trial was due to an honest mistake. The learned Magistrate set aside the _ex_ _parte_ judgment and ordered a new trial. It is against that decision that the appellant appealed. His first ground of appeal was that section 47 does not apply to a judgment obtained under the default summons procedure which was the procedure adopted in the present case. The short answer to this ground is that this Court decided in _Onyenwu_ _v._ _Davies_ LD/34A/1963 (as yet unreported) that section 47 empowered the setting aside of a judgment obtained against an absent defendant in a default summons case as well as in any other case. That decision is binding on this Court which, incidentally, sees no good reasons not to follow it. The second ground of appeal is that there were not sufficient grounds for setting aside the judgment. Section 47 gives a discretion to the Magistrate to set aside an _ex_ _parte_ judgment on sufficient cause being shown to him. In the present case the learned Magistrate exercised his discretion in favour of the respondent because he was satisfied that he had a good defence to the action and presumably also because he accepted the reason for his non-attendance. It is well settled that an appeal will not be entertained from the exercise of his discretion by a judge unless it is shown that he exercised it under a mistake of law, or in disregard of principle, or under a misapprehension as to the facts, or that he took into consideration irrelevant matters or failed to exercise his discretion. None of these conditions was present in the present case and there was nothing in the appeal to show that the judge had not properly applied his mind to the matter under consideration.