JUDGMENTS OF THE NIGERIAN COURTS OF JUSTICE
Restoring Nigeria's Law to Nigeria's People - One by One
MR. CHRIS EKEMEZIE
JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the Leading Judgment):
The refusal of the Federal
High Court sitting in Lagos (the court below) to grant
an application to set aside its judgment given in
default of appearance/defence against the appellant in
favour of the respondent brought about the appeal.
(i) Whether omission of the Appellant to comply with Order 8 Rule 9 Federal High Court (Civil Procedure) Rules 2009 affects the merit the Appellant's application to set aside the default judgment of the lower court dated 11/1/2013 which ground for setting aside is primarily and fundamentally hinged on the non service of motion on notice for judgment and hearing notices (Ground B Notice of Appeal).
to serve the appellant hearing notice and the motion
on notice for judgment dated 1/11/2012 renders the
judgment and subsequent proceedings thereon a nullity
(Ground B, Notice of Appeal).
(iii) Whether the lower court has jurisdiction to hear and determine the right of Appellant in the suit on a motion on notice for judgment in default of appearance and defence which was proved not served on the Appellant (Ground C, Notice of Appeal)
(ii) Whether the Appellant's constitutional right to fair hearing was not altogether denied and violated by the failure to serve on Appellant hearing notices and motion on notice for judgment in default of appearance and defence, subsequent judgment entered thereon and the lower court's refusal to set aside same in its ruling of 25/6/2013 (Ground C, Notice of Appeal)."
After quoting in extenso the portion of the Ruling of the court below in pages 80-82 of the record refusing the application to set aside its judgment on the grounds that the application was brought outside the 14 days prescribed by Order 8 rule 9 of the Federal High Court (Civil Procedure) Rules 2009 (the Rules of the court below) and the failure to attach to the application treasury receipt showing payment of penalty for the period of default and the absence of a defence to the claim, the appellant argued first issue that the court below was wrong to rely on the case of Sanusi V. Ayoola (1992) 9 NWLR (Pt. 265) 275 to refuse the application when the case is distinguishable from the present case on the premise that in that case the applicant was served hearing notice of the impending judgment but neglected to react to the pending process, while in the instant case the appellant had not been served hearing notice to put it on notice of the pending action which proceeded to judgment in her absence; that the substance of the application at the court below was on the jurisdiction and competence of the court below to determine the action without first serving hearing notice on the appellant; that the bringing of the application under a wrong rule of court ought not to deprive the appellant of the remedy due to her under the relevant enactment; and that the appellant had complied substantially with Order 14 rule 10 of the Rules of the court below which supersedes Order 8 rule 9 thereof by showing that she was not served the hearing notice for the case at the court below before it was heard to the pronouncement of judgment in her absence, and that if the court below had applied its relevant Rules to arrive at justice in the matter it would have acceded to the application of the appellant vide the cases of Duke V. Akpabuyo Local Government (2005) 12 S.C. (Pt. 1) 1 at 3, Sosanya V. Onadeko (2005) 2 S. C. (Pt. 11) 13 at 39 - 40, Teno Engineering Ltd. V. Adisa (2005) 3 - 4 S.C. 8.
Lower court was right in refusing to set aside its
".....a ground of Appeal can arise in a
number of situations such as the following
from the text of the decision appealed against
from the procedure under which the claim was
from the procedure under which the decision was
(d) from other extrinsic factors such as issue of Jurisdiction of a court from which the Appeal emanates;
from commission or omissions by the court from
which an Appeal emanated in either refusing to do what
it ought to do or doing what it ought not to do or
even in overdoing the act complained of" (my
See also Metal Construction (West Africa)
Ltd. v. Migliore and Ors. (supra).
"However, in view of the Supreme Court's decision in Obiora v. Osele (1989) 1 NWLR (Pt. 97) 279, that a bad, faulty or inelegant brief does not cease to be a brief it is left for me to examine as best as I can the synopsis of complaints by the learned counsel that are presented as issues for determination. To this end, since both learned counsel persisted in the same error I am left with no choice than to realign the issues for determination formulated by the appellant. See Labiyi v. Anretiola (1992) 8 NWLR (Pt. 258) 139, 159; and Aduku v. Adejoh (1994) 5 NWLR (Pt.346) 582, 594 - 595, bearing in mind the caution in Nwokoro v. Onuma (1990) 3 NWLR (Pt.136) 22, 35, against 'forcing issues down the parties' throats'."
See the host of cases cited by the
appellant on the issue in the reply brief (supra).
setting aside the ruling of this Honourable Court
dated 11/2/2013 entering final judgment in favour of
the plaintiff for Defendant/Applicant default in
appearance and defense.
(2) An order extending time within which Defendant/Applicant may enter appearance and file its defence the time allowed under the rules of court having expired and for such further order as this Honourable Court may deem fit to make in the circumstance."
The reason for the prayers is contained in paragraphs 5 to 6 of the affidavit in page 38 of the record thus-
"(5) That no hearing notice was ever served on the Defendant/Applicant fixing a date for hearing of the plaintiff/Respondent motion for judgment.
Order 8 and 9 of the Rules of the court below provides-
"Where judgment is entered pursuant to the preceding rules of this order a judge may set aside or vary such judgment on just terms upon an application on notice by the defendant. The application shall be made within 14 days and it shall be accompanied with treasury receipt showing payment of penalty for the period of default and show a good defence to the claim and a just cause for the default."
Summarized, Order 8 rule 9 of the Rules
of the court below has four requirements - that the application be brought within 14
days; that the application be accompanied with
treasury receipt evidencing payment of penalty for the
period of default; that good defence to the claim be
attached to the application; and that just cause or
explanation for the default be furnished by the
applicant in the application.
"Any judgment by default whether under
this order or under any order of these Rules shall be
final and remain valid and may only be set aside upon
application to the Judge on grounds of fraud, non
service or lack of jurisdiction upon such terms as the
court may deem fit."
Again, summarised, Order 14 rule 10 of
the Rule of the court below makes provision for any
judgment of the court below to be set aside on three
grounds - fraud; non service; lack of jurisdiction.
Although the appellant double - pronged Order 8 rule 9
and Order 14 rule 10 of the Rule of the court below to
make the application at the court below, at the end of
the day the contest dovetailed into the consideration
of Order 8 rule 9 of the Rules of the court below.
Payment of court fees is considered very
serious/fundamental. It is inextricably tied to the
jurisdiction of the court. The failure of the
appellant to pay requisite penalty for the period of
default in bringing the application at the court below
thus robbed the court below of the jurisdiction to
entertain the said application. See Abia State
Transport Corporation and Ors v. Quorum Consortium
Ltd. (2009) 4 S.C.N.J. page 1, Onwugbufor and Ors. v.
Okoye and Ors. (1996) 1 NWLR (Pt. 424) 258, Akpaji v.
Udemba (2009) 2 - 3 SC (Pt. 11) 13, Okolo and Anor. v.
Union Bank Plc (2004) 3 NWLR (Pt. 859) 87, and
Anyanwoko V. Okoye and Ors (2010) 1 SC (Pt.11) 30.
The argument of the appellant that because she was not served the motion for judgment and was on that account unaware of the delivery of the judgment excused her from including a prayer for extension of time to bring the application is untenable. Because any party that is out of time in complying with Rules of court, whether the party was aware of the proceedings sought to be set aside or not must make a prayer for extension of the to comply with the Rule of Court in question a prayer in the application.
"It was clearly stated by the Supreme Court that before an application to set aside default judgment is competent the following ingredients must be present namely:-
the applicant must not have appeared when
judgment was delivered;
the applicant must have made his application
within six days of the delivery of the judgment or
the applicant must have applied for an
extension of time for a longer period to make the
I refer to Sanusi v. Ayoola (1992) NWLR
(Pt.265) 275 at 292 per Karibi-Whyte in which Order 32
rule 4 of the Lagos State (Civil Procedure) Rules 1972
which is in pari materia with Order 37 rule 9 of the
Kogi State High Court (Civil Procedure) Rules
A prayer for extension of time is thus imperative if the application is filed outside the statutory period. Because, as was held by the Supreme Court in Williams and Ors. V. Hope Rising Voluntary Funds Society (2001) 34 W.R.N. 171 at 177 if no excuse for bringing the application within time is not offered, no indulgence should be granted.
In conclusion, it appears certain to me
that the threshold issues of non-payment of penalty
fees and the non inclusion of a prayer for an
extension of time in the application relate to the
competence of the application which affected the
jurisdiction of the court below to entertain the
application which was not initiated in compliance with
the condition precedent for the proper composition of
the action vide the case of Madukolu v. Nkemdilim
(1962) 2 SCNLR 341, and which should have entitled the
court below to merely strike out the application.
I read in draft the lead Judgment delivered by my learned brother, Ikyegh, JCA, and I agree with his reasoning and conclusion. He dealt extensively with the issues canvassed in the appeal, and I will only stress the point made that in the circumstances of this case, the Appellant had to apply for extension of time - see Sanusi v. Ayoola (1992) 9 NWLR (Pt. 265) 275 SC, where Wali, JSC, stated –
"In the present case, the normal statutory period having expired, the Appellant must apply for extension of time within which to make the Application no matter how strong his reasons are for non-appearance on the day the case was heard, resulting in giving the default judgment. In the present circumstances, it is the extension of time that would give the trial Court jurisdiction to hear and determine the merit of his application. There was no such application before the learned trial judge, even orally, that would have conferred on him the jurisdiction to hear the Application much less to talk of judicious exercise of his discretion. Extension of time to set aside a default Judgment is not an incidental order that the Court can make under the omnibus prayer. It must specifically be prayed for and granted".
There it is; a clear answer
from the Supreme Court to the question before us. There
was no Application for extension of time before the
lower Court, and it is an Application for extension of
time that would give it jurisdiction to hear the
Application to set aside the default Judgment obtained
against the Appellant. Thus, the failure to apply for
extension of time was fatal, and the lower Court was
absolutely in the right for refusing to set aside the
said default Judgment.
I had the privilege of reading
in advance the judgment just delivered by my learned
brother IKYEGH JCA. I agree with my Lord's reasoning and
conclusions. For the reasons His Lordship has ably set
out in the lead judgment, I agree that the appeal should
be allowed with respect to the final order dismissing
the application. That part of the appeal is hereby
allowed. I set aside the order and substitute therefore
an order striking out the application. I abide by the
order in the judgment as to costs.
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