MR. JERRY EDOSOMWAN v. EDO LINE TRANSPORT COMPANY LIMITED
(2018)LCN/12456(CA)
In The Court of Appeal of Nigeria
On Thursday, the 14th day of June, 2018
CA/B/238/2016
RATIO
COURT AND PROCEDURE: APPLICATION TO SET DEFAULT JUDGMENT
“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:
(a) the applicant must not have appeared when judgment was delivered.
(b) the applicant must have made his application within six days of the delivery of the judgment or alternatively; (c) the applicant must have applied for an extension of time for a longer period to make the application.
I refer to Sanusi vs. 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 (supra). 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. Vs. Hope Rising Voluntary Funds Society (2001) 34 WRN 171 at 177, if no excuse for not bringing the application within time is offered, no indulgence should be granted.” PER SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.
Before Their Lordships
SAMUEL CHUKWUDUMEBI OSEJIJustice of The Court of Appeal of Nigeria
MOORE ASEIMO ABRAHAM ADUMEINJustice of The Court of Appeal of Nigeria
MUDASHIRU NASIRU ONIYANGIJustice of The Court of Appeal of Nigeria
Between
MR. JERRY EDOSOMWAN
(For himself and on behalf of the children of late Mr. Jeremiah Edosomwan)Appellant(s)
AND
EDO LINE TRANSPORT CO. LTD.Respondent(s)
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A. (Delivering the Leading Judgment):
This appeal is against the Ruling of the High Court of Edo State sitting in Benin and delivered on the 5th day of February, 2016, wherein a default judgment entered in favour of the Appellant was set aside upon an application by the Respondent.
The Appellant herein had as plaintiff in the trial Court instituted an action via a writ of summons dated 5/7/2007 and as per paragraph 12 of the statement of claim sought the following reliefs against the defendant now Respondent.
(a) AN ORDER that the defendant should deliver possession of the demised premises i.e No. 22 James Watt Road, Benin City to the Plaintiff, the lease agreement having been terminated and/or determined.
(b) The sum of Nine Hundred and Ten Thousand, Three Hundred Seventy Naira, N910,370.00 from 1st November, 2004 until satisfaction of judgment and/or delivery of possession of the premises.
(c) 21% interest on the amount in paragraphs 12(b) above per annum.
(d) General damages of N200,000.00.
The Respondent entered a conditional appearance with the leave of the trial Court granted on 12/3/2009 and subsequently filed a motion on notice for an extension of time to file its statement of defence.
Parties thereafter engaged in settling the matter out of Court but this ended without any success. On the 29/7/2013 the Respondent’s motion on notice for extension of time to file its statement of defence was struck out for want of deligent prosecution and this was after series of adjournments due to the absence of the Respondent or its counsel inspite of hearing notices served on them.
The case was set down for hearing in default of appearance wherein the Appellant testified and called one other witness. 15 documents were also tendered and admitted in evidence as Exhibits ‘A’, ‘B’ to ‘B11’, ‘C’ & ‘D’. Thereafter the Appellant’s counsel filed written address which was adopted and relied on at the proceedings held on the 11/11/2013.
Judgment was eventually delivered on the 6/3/2014 wherein the trial Court made the following orders in favour of the Appellant.
In view of all the major issues raised by the defendant, which have not been actually ventilated, it is my view that in order not to award a technical victory to claimant, the judgment of 6/3/14 has to be and is hereby set aside. The Defendant shall pay costs of N25,000.00 to the Claimant.
The said judgment was subsequently executed on 9/5/2014 and possession of the premises delivered to the Appellant.
On 4/6/2014 the Respondent filed a motion on notice seeking the following reliefs:
1. AN ORDER of this Honourable Court setting aside the judgment of this Honourable Court delivered on the 6th of March, 2014.
2. AN ORDER of this honourable Court striking out this suit for lack of JURISDICTION.
AND for such orders and further orders as this Honourable Court may deem fit to make in the circumstance of this Application.
The said motion was supported by a 21 paragraph affidavit with documents marked Exhibits A, B, C1 and C2 attached therewith.
The Appellant opposed the application by filing a 39 paragraph counter affidavit and a written address in support. The Respondent reacted by filing a further affidavit and reply on points of law on 23/9/2014.
Upon conclusion of hearing of the Respondent’s motion on notice on 12/12/2015, the trial Court delivered a Ruling thereof on the 5/2/2016 wherein the Respondent’s application was granted and the judgment earlier entered in favour of the Appellant was set aside.
This prompted the Appellant to file a notice of appeal with two grounds of appeal on 3/3/2016. The grounds shorn of their particulars of error reads thus:
(1) The learned trial Judge erred in law when he granted the Respondent?s application to set aside the judgment of 6th March, 2014, when the said application was incompetent and the Court lacked the jurisdiction to do so.
(2) The learned trial Judge erred in law when he held “in view of all the major issues raised by the defendant, which have not been actually ventilated, it is my view that in order not to award a technical victory to claimant, the judgment of 6/3/14 has to be and is hereby set aside.”
In the Appellant’s brief of argument filed on 21/7/16 but deemed properly filed on 18/1/18 the following two issues were distilled for determination.
(1) Whether the learned trial Judge was right when he set aside his judgment of 6/3/2014 upon the respondent’s incompetent motion on notice.
(2) Whether the learned trial Judge was right when he took into consideration the issues raised in the Respondent’s motion on notice and set aside the judgment of 6/3/2014.
The Respondent’s brief of argument was filed on 7/6/2017 but deemed properly filed on 18/1/18. The sole issue formulated therein for determination is:
‘Whether the lower Court was right to grant the Respondent’s motion dated 04/06/14 having regard to the provisions of Order 5 Rule 2 of the Edo State High Court (Civil Procedure) Rules 2012.’
I will adopt the two issues as raised in the Appellant?s brief of argument in the consideration of this appeal.
ISSUES 1 & 2
Arguing the said two issues together, learned counsel for the Appellant submitted that to all intent and purposes, the judgment of the lower Court was a default judgment having regard to Order 29 Rule 3, 4 and 5 of the Edo State High Court (Civil Procedure) Rules 2012.
He referred to Rule 5(2) which empowers a Judge to set aside a default judgment upon such terms as he may deem fit for good cause shown, while Rules 5(3) directs that an application to set aside the default judgment shall be made within six days after the Order or Judgment was made or such longer period as the Judge may allow for good cause shown. He added that the prescription of six days is mandatory and leaves no room for discretion on the part of the Judge due to the use of the word ?shall? as held in CORPORATE IDEAL INSURANCE LIMITED VS. AJAOKUTA STEEL COMPANY LIMITED (2014) 7 NWLR (PT. 1405) 165 at 193.
It was therefore contended that a defaulting party against whom judgment has been entered has a duty to apply to set same aside within six days of the Judgment if he intends to have it set aside and where he fails to do so within the prescribed period, he will need to apply for extension of time to do so, otherwise, his application to set aside would be deemed incompetent. He cited in support, the case of SANUSI VS. AYOOLA (1992) 9 NWLR (PT. 265) 275 at 294 to 295; WILLIAMS VS. HOPE RISING VOLUNTARY FUNDS SOCIETY (1982) 1 – 2 SC 145; ENAKHIMION VS. EDO TRANSPORT SERVICES (2006) All FWLR (PT. 334) 1882.
The attention of this Court was drawn to the fact that the judgment sought to be set aside was delivered on 6/3/2014 but the motion to have it set side was not filed until 4/6/2014, that is 99 days after the judgment was delivered instead of the 6 days prescribed by the Rules of Court, and the Respondent failed or neglected to ask for extension of time to do so and this renders its application incompetent on the authority of SANUSI?s case supra which the lower Court ignored to consider or apply contrary to the well settled principle of stare decisis.
After a review of the Ruling of the lower Court, Learned counsel submitted that the reasons given by the learned trial Judge for setting aside the judgment were erroneous because the question whether serious issues were raised in the Respondent’s affidavit, or that the lease was for 99 years as well as the reason for the failure of Respondent to appeal in Court can only arise when the application is heard on the merit and the Court is empowered to assume jurisdiction to do so after the prayer for extension of time has been granted.
Also referring to the Respondent’s affidavit in support of the application, it was contended that the facts deposed therein are mainly to show that the Respondent has a good defence to the suit and that its absence from Court was due to internal squabbles in the company. These, he says does not justify, the grant of the application by the learned trial Judge. The same goes for his reference to the issue of challenge of the Court’s jurisdiction to determine the suit which challenge the Respondent has no statutory or case law to support in his written address. It was then urged on this Court to allow the appeal.
In their reply as per the sole issue formulated for determination, learned counsel for the Respondent, humbly conceded that the motion on notice upon which the default judgment delivered by the lower Court on 6/3/14 was set aside did not contain the prayer for extension of time as prescribed by Order 29 Rule 5(3) of the Edo State High Court (Civil Procedure) Rules 2012, which provides for a period of six days or such longer period as the Court may allow. This omission he says, was as a result of the inadvertence of counsel.
However, learned counsel referred to Order 5 Rule 2 to submit that it envisages a future transgression by a party or his counsel in the event of any breach of the Rules with respect to time, place and form in which case it covers the six days period provided for in Order 29 Rule 5(3).
Also referring to the case of SANUSI VS. AYOOLA supra. It was contended that the Supreme Court therein considered the effect of Order 32 Rule 4 of the Lagos State High Court (Civil Procedure) Rules 1972 which is similar to Order 29 Rule 5(3) of the Edo State High Court (Civil Procedure) Rules 2012 but that the said Lagos State Rules does not have a provision akin to Order 5 Rule (2) of the Edo State High Court Rules, hence the decision would have been different.
Learned counsel further submitted that the Ruling of the lower Court which set aside the default judgment was meant to afford the Respondent the opportunity to participate in the trial on the merit in which case it cannot be termed a miscarriage of justice. He added that the discretionary power conferred on the lower Court by the provisions of Order 5 Rule 2 includes the power to deal with transgressions against the Rules by a party or his counsel and the use of the phrase ‘shall be treated’ indicates that the lower Court is under obligation to grant the Respondent?s application since the irregularity complained of by the Appellant relates to time.
It was also argued that even the Appellant’s counter affidavit in the lower Court was filed out of time but the Appellant was allowed by the Court to bring a motion on notice for extension of time to regularise it.
Relying on the case of ADEOMI VS. GOVERNOR OF OYO STATE (2003) FWLR (PT. 149) 1444, it was submitted that a default judgment given in the absence of a party in litigation remains a technical victory which somehow goes against the need for justice which the Courts have been enjoined to uphold. He cited in addition the case of ADISA VS. A-G KWARA STATE (2003) FWLR (PT. 138) 1422. It was then urged on this Court to dismiss the appeal.
The Appellant also filed a reply to the Respondent’s brief of argument on the 24/1/2018. Therein, it was submitted that Order 5 Rule 2 of the Edo State High Court (Civil Procedure) Rules 2012 is a general provision while Order 29 Rule 5(3) which prescribes that such an application to set aside a judgment shall be brought within six days is a specific provision which supercedes a general provision based on the principle of interpretation and construction of statutes, vide APAPA VS. INEC (2012) 8 NWLR (PT. 1303) 409 at 430 and INAKOJU VS. ADELEKE (2007) 4 NWLR (PT. 1025) 423.
It was further submitted that Rules of Court are meant to be obeyed and non compliance with the provisions of a Rule that prescribes the mode of initiation of an action as in Order 29 Rule 5(3) is not a mere irregularity in which case, non compliance vitiates the entire action. Reliance was placed on the case of AGIP (NIG) LTD. VS. AGIP PETROLI INT?L (2010) 5 NWLR (PT. 1187) 348 at 394 ? 395; ISON VS. UMOREN (2010) 6 NWLR (PT. 1190) 371 at 381.
Thirdly, it was argued that Order 5 Rule 2 empowers the Court to give direction to regulate the sinful steps taken in order not to vitiate or nullify the proceedings. But in the instant case the learned trial Judge did not give any direction to regularise the transgression either during the hearing of the application or while delivering the Ruling.
On the Respondent’s attempt to distinguish the case of SANUSI VS. AYOOLA supra to the effect that the Lagos State Rules of 1972 does not have a provision similar to Order 5(2) of the Edo State Rules 2012, it was contended that such submission is spurious and added that even the case of ENAKHIMION VS. EDO TRANSPORT SERVICES supra which was decided by this Court under the 1988 Rules applicable to Edo State and which Order 2 Rule 1 (1) and (2) are in pari materia with Order 5 Rules (2) of the extant Rules set aside the Ruling of the lower Court in a similar situation where the lower Court had earlier set aside a judgment delivered in favour of the plaintiff and to have done otherwise would have technically made it impossible to apply or comply with the Rules of Court and turn it to a mere formality. It was then urged on this Court to allow the appeal.
Firstly, it is interesting to observe that the learned counsel for the Respondent duly conceded to the fact that the motion on notice to set aside the judgment delivered on 6/3/14 was filed out of time and in default of Order 29 Rule 5(3) of the Edo State High Court (Civil Procedure) Rules 2012 (hereinafter referred to as ‘the Rules’) which prescribed that such application shall be made within six days or such longer period as the Court may allow.
This concession is clearly shown in paragraph 4.01 of the Respondent’s brief of argument which reads thus:
‘The Respondent concedes that its motion dated 4/6/14 upon which the default judgment of the lower Court delivered on 6/3/14 was set aside, did not contain a prayer for extension of time as prescribed by Order 29 Rule 5(3) of the Edo State High Court (Civil Procedure) Rules 2012. Order 29 Rule 5(3) supra prescribes a period of six (6) days or such longer period as the Court may allow. The omission resulted from the inadvertence of counsel.’
However, the area of dispute is the contention of the Respondent’s counsel that by virtue of Order 5 Rule (2) of the Rules, the lower Court is conferred with discretionary powers which includes the power to deal with transgressions by a party and counsel which amount to a breach of any provision of the Rules. Also that the phrase ‘shall be treated’ connotes obligation on the lower Court to grant the Respondent’s application dated 6/4/14 since the irregularity complained of relates to time within which the Rules prescribed for the filing of same.
In this regard, it is necessary to have a look at the relevant provisions of the Rules under discourse. Order 29 Rule 3 and Rule 5(3) provides thus:
“Order 29 Rule 3: When a cause is called for hearing if the claimant appears and the defendant does not appear, the claimant may prove his claim, so far as the burden of proof lies on him.
Order 29 Rule 5(3) An application to relist a cause struck out or to set aside a judgment shall be made within 6 days after the order or judgment or such other longer period as the Judge may allow for good cause shown.
Order 5 Rules 2: Where at any stage in the course of or in connection with any proceedings, there has by reason of anything done or left undone, been a failure to comply with the requirement as to time, place, manner or form, the failure shall be treated as an irregularity and may not nullify such step taken in the proceedings. The Judge may give any direction as he thinks fit to regularise such steps.”
It is clearly provided as per Order 29 Rule 5(3) as above set out that any such application to set aside a default judgment shall be made within six days after the delivery of the said judgment. However in the instant case, judgment was delivered on 6/3/2014 but the Respondent did not comply with the provisions of Order 29 Rule 5(3) but waited till 4/6/2014 before filing its application to have the judgment set aside. That is about 90 days after the delivery of the judgment.
The learned trial Chief Judge in his Ruling on the Respondent’s motion on notice to set aside the default judgment held at pages 179 to 180 of the record as follows:
“I have carefully considered the application, the supporting affidavit and the counter affidavit. I have also considered the further affidavit. Very serious issues have been raised by the Defendant in the grounds/affidavits in support.
For instance see paragraphs 3 and 4 of the supporting affidavit wherein the issue of a 99 year lease was introduced. In addition to the above, the failure of learned counsel to appear in Court was raised as a reason for the failure of Defendant to appear in Court.
The question of jurisdiction was also raised. See ground No. 1, of the grounds for application. These issues in addition to others, create a cloud over the judgment.
Judgment should not be a technical victory, indeed the days of technicality are over. Judgment should be as a result of a robust contest of facts, issues and the law, especially in a case such as this where a lot of investments made over the years are at stake.
In view of all the major issues by the defendant, which have not been actually ventilated, it is my view that in order not to award a technical victory to claimant, the judgment of 6/3/14 has to be and is hereby set aside. The Defendant shall pay costs of N25,000.00 to the claimant.
From the above set out portion of the judgment of the lower Court, what comes to the fore is that the learned trial Judge, inspite of his attention being drawn to the failure of the Respondent to comply with the provisions of Order 29 Rule 5(3) and not asking for extension of time to do so, went ahead to set aside the default judgment on the ground that judgment should not be a technical victory because the days of technical victory are over. He totally ignored the complaint of non compliance with the Rules as raised by the Appellant inspite of the authorities cited in support. I believe that His Lordship’s conclusion would have been different if he had considered the decisions in the said case he was referred to and which decisions are that of the Supreme Court and this court as well.
For instance, in ENAKHIMION VS. EDO TRANSPORT SERVICES supra, this Court in listing the criteria for granting an application for setting aside default judgment under Order 37 Rule 9 of the defunct Bendel State High Court (Civil Procedure) Rules, 1988 as applicable to Edo State and relying on the Supreme Court authorities of WILLIAMS VS. HOPE RISING VOLUNTARY FUNDS SOCIETY (1982) 1- 2 SC 145 and SANUSI VS. AYOOLA (1992) 9 NWLR (PT. 265) 275 held at page 1899 of the report that:
‘In order for an application to set aside a default judgment under Order 37 Rule 9 of the Defunct Bendel State High Court (Civil Procedure) Rules, 1988 as applicable to Edo State to be granted, the following criteria must be complied with:
(1) The applicant must not have appeared in Court when the judgment was delivered.
(2) The applicant must have applied within six days of the delivery of the judgment; or
(3) The applicant must have applied for an extension of time for a longer period to make the application.
These considerations are essential to the application of the above rule.’
Their Lordships went further to hold that extension of time to set aside default judgment is not an incidental order that the Court can make under the omnibus prayer, but must be specifically prayed for and granted. It must therefore be noted that an application for extension of time is a condition precedent which must be fulfilled before the Court can assume jurisdiction to entertain the application to set aside a default judgment. This is given the fact that Order 29 Rule 5(3) of the Edo State High Court (Civil Procedure) Rules 2012 is a statutory provision which an applicant must comply with if he wants to move the Court to be heard on the merit. See ENAKHIMION VS. EDO TRANSPORT SERVICES supra where this Court further held that:
‘The application to set aside a default judgment must be brought within six days after the trial or within such longer period as the Court may allow for good cause shown. This application is not a mere formality. It is not just for the asking. The applicants must show good cause why he is late in bringing the application within the stipulated time and that the application has merit.’
In the instant case, the Respondent’s application to set aside the judgment as rightly pointed out by the Appellant, does not contain any prayer for extension of time and no reason was given why the application was not brought within the six days prescribed by Order 29 Rule 5(3) of the Rules. The seriousness of this omission and non compliance with the Rules is amplified in ENAKHIMION’s case where the applicant made an oral application for extension of time within which to bring the application to set aside the judgment but did not proffer any reason for not filing same within the prescribed six days and this Court still held that the trial Court was wrong to grant the extension of time to bring the application since there was no material before it to enable it exercise its discretion.
In the instant case, the matter is made worse given that no application either oral or formal was made for extension of time to regularise the application for setting aside the judgment of the lower Court delivered on 6/3/14.
This to my mind, is a violent breach of the provisions of Order 29 Rule 5(3) of the Rules which prescribed that such an application must be brought within six days after the Order or judgment or such other longer period as the Judge may allow for good cause shown.
To make matters worse, the lower Court proceeded to set aside the judgment on the basis of an incompetent application which lacks the statutory clout to be properly entertained by the Court having been brought outside the six days period as prescribed by the Rules of Court and same not having been regularised by an application for extension of time.
A similar situation arose in the case of ARIK AIR LTD VS. EKEMEZIE (2014) LPELR 22753 (CA) where this Court per Ikyegh JCA held at page 23 – 24 of the report that:
‘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 take a prayer for extension of time to comply with the Rule of Court in question. It is in the prayer for extension of time that the applicant would explain by affidavit in support of the application the reason(s) for bringing the application out of time see COMMISSIONER OF POLICE BENUE STATE VS. SUNDAY IHEABE (1998) 11 NWLR (PT. 575) 666 at 677 where the complaint of the Appellant was on the non service of the hearing notice on him that led to the hearing and determination of the case in the absence of the Appellant, but the Court (Abuja Division) held in the lead judgment prepared by Muntaka Coomassie, JCA, (now JSC) and concurred by Kalgo and Ejiwunmi JJCA, that the appellant who was required by the Rules of Court applicable to the application to file the application within 6 days but chose to file it 9 months thereafter, had the onus to explain the delay filing the application within the 6 days prescribed by the relevant Rules in these words:
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:
(a) the applicant must not have appeared when judgment was delivered.
(b) the applicant must have made his application within six days of the delivery of the judgment or alternatively;
(c) the applicant must have applied for an extension of time for a longer period to make the application.
I refer to Sanusi vs. 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 (supra). 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. Vs. Hope Rising Voluntary Funds Society (2001) 34 WRN 171 at 177, if no excuse for not bringing the application within time is offered, no indulgence should be granted.
On the basis of the above set out decision of the Court based on the provisions of Order 30 Rule 4(3) of the Lagos State (Civil Procedure) Rules 2012 which is in pari materia with Order 29 Rule 5(3) under consideration and which decision I am bound to follow, I can boldly state herein that in the instant case, the learned trial Judge was wrong to have made the order setting aside the default judgment based on an application brought outside the six days prescribed by the Rules and without any application for extension of time to file the application so granted.
Now the Respondent had hinged the decision of the lower Court on the provisions of Order 5 Rule 2 of the Rules and for emphasis I hereinbelow reproduce the said Order 5 Rule (2). It reads:
‘Order 5.2. Where at any stage in the course of or in connection with any proceedings, there has by reason of anything done or left undone, been a failure to comply with the requirements as to time, place, manner or form, the failure shall be treated as an irregularity and may not nullify such step taken in the proceedings. The Judge may give any direction as he thinks fit to regularise such steps.’
Going by the Respondent’s argument, any transgression of the provisions of the Edo State High Court (Civil Procedure) Rules 2012, is automatically ameliorated or cured by Order 5 Rules 2 as above set out.
To my mind, this cannot really be the true interpretation of the said Rule. And as rightly argued by learned counsel for the Appellant, to so interpret it will technically set the entire Rules of Court aside and make compliance with same a mere formality and such cannot be the intendment of the said provision. Authorities abound to the effect that where by a rule of Court, the doing of an act or taking a procedural step is a condition precedent to the hearing of a case, such rule must be strictly followed and obeyed. Thus, non-compliance with a condition precedent is not a mere technical rule of procedure, but goes to the root of the case. See AGIP (NIG) LTD. & ORS. VS. CHIEF C. EZENDU & ORS. (2010) 1 SC (PT. II) 98; THE NIGERIAN NAVY & ORS. VS. NAVY CAPTAIN D.O. LABINJO (2012) 6 SC. (PT. 1) 44. In CHIEF JOHN OYEGUN VS. CHIEF FRANCIS A NZERIBE (2010) 1 SC (PT. II) page 1, the Apex Court analysing the fundamental basis for the rules of Court held as follows:
‘The proceedings of the Courts are guided by the Rules of that Court. They are regulations made by the Courts to assist them in their effort to determine issues or controversies before them. They provide the support in the administration of justice. They regulate matters in Court and help parties to present their cases within a procedure made for the purpose of a fair and quick trial. It is the strict compliance with the Rules that makes for quicker administration of justice. Any party seeking the discretionary power of Court must bring his case within the provisions of the Rules on which he purported to make his application. The Court shall always refuse to exercise its discretionary power when the Rules are not obeyed. The provisions of the Rules makes it emphatic that prima facie they are meant to be obeyed and followed.’
See also FIRST BANK OF NIGERIA PLC VS. TSA INDUSTRIES LTD. (2010) 4 – 7 SC (PT. 1) 242. In the light of the stance of the Supreme Court on the germane nature of the Rules of Court, it follows that the submission of the Respondent’s counsel on the efficacy of Order 5 Rule 2 cannot stand. What is more the proviso in the said Order 5 Rule 2 states that:
‘The Judge may give any direction as he thinks fit to regularise such steps.’
This, in my humble view presupposes that any such failure to comply with the requirement as to time, place, manner or form, if treated as an irregularity shall be subjected to regularisation on such terms and such manner as the Judge may direct in order to redeem or salvage such anomaly.
This state of affairs played out in the instant case wherein the learned trial Chief Judge allowed an adjournment to enable the Appellant regularise his counter affidavit which was filed out of time. The Appellant subsequently filed a motion on notice for extension of time which was moved and granted by the Court on 12/10/2015 before the Respondent’s motion to set aside was adjourned for Ruling.
It is rather strange that the Respondent did not at any time during hearing of its own motion apply even orally for extension of time to regularise the said motion filed almost 90 days outside the statutory period of 6 days allowed by the Rules. The learned trial Chief Judge should also have faired better if for the sake of the justice of the case, he adjourned the proceedings further to enable the Respondent do the needful by formally bringing an application for extension of time to apply to set aside the said default judgment. This indeed is the intent of Order 5 Rule 2 which provision is not at large as postulated by the Respondent which if followed will render the Edo State High Court (Civil Procedure) Rules 2012 worthless and unenforceable and every transgressor will tenaciously cling to Order 5 Rule 2 as a shield against the breach of any of the provisions of the Rules.
In the final result, I hold that a prayer for extension of time is imperative if the application is filed outside the statutory period and the learned trial Chief Judge erred in setting aside the judgment delivered on 6/3/2014 based on an incompetent motion on notice. The two issues are accordingly resolved in favour of the Appellant.
Consequently, this appeal succeeds and it is hereby allowed. The Ruling of the High Court of Edo State delivered on the 5th of February, 2016 in Suit No. B/308/2007 is hereby set aside.
N50, 000 cost against the Respondent.
MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I read before now the judgment just delivered by my learned brother, Samuel Chukwudumebi Oseji, JCA.
I agree with the reasoning and conclusions of my learned brother and I also allow this appeal.
I abide by the orders made in the leading judgment, including the order as to costs.
MUDASHIRU NASIRU ONIYANGI, J.C.A.: I had the privilege of reading in draft the Judgment just delivered by my learned brother, SAMUEL CHUKWUDUMEBI OSEJI, JCA.
I agree with the reasons advanced to reach the conclusion that this appeal is meritorious and should be allowed.
My learned brother has quite admirably resolved the two issues put forward for determination of this appeal. I adopt and rely on those reasons to reach my conclusion that the appeal is meritorious and should be allowed. Appeal allowed.
I also set aside the said judgment of the trial Court accordingly. I abide by the order for cost.
Appearances:
Sylvester Ogbe Esq.For Appellant(s)
I. Osifor Esq.For Respondent(s)
