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DANGOTE CEMENT PLC v. ODO (2020)

DANGOTE CEMENT PLC v. ODO

(2020)LCN/14331(CA)

In The Court Of Appeal

(MAKURDI JUDICIAL DIVISION)

On Monday, June 15, 2020

CA/MK/62/2019

Before Our Lordships:

Ignatius Igwe Agube Justice of the Court of Appeal

Onyekachi Aja Otisi Justice of the Court of Appeal

Joseph Eyo Ekanem Justice of the Court of Appeal

Between

DANGOTE CEMENT PLC APPELANT(S)

And

AUGUSTINE CHUKS ODO RESPONDENT(S)

RATIO

WHETHER OR NOT A GROUND OF LAW ARISES WHERE A GROUND OF APPEAL INDICATES THAT THE TRIAL COURT OR AN APPELLATE COURT MISUNDERSTOOD THE LAW

This is because in Dankofa v. F.R.N. (2019) Col. 290 LRCN P. 98 at P. 120 P-JJ; per Odili JSC which incidentally has been relied upon by both learned Counsel, the learned and noble Law Lord of the Apex Court had unequivocally set out the underlying principles ingrained in all the Grounds of Appeal filed by the Appellant as earlier highlighted in this Judgment that:
“A Ground of law arises where a Ground of Appeal indicates that the trial Court or, an appellate Court misunderstood the law or misapplied the relevant law or principles of law to the proved or admitted facts in a particular case. (Okorie v. Udom (1960) SCNLR 360 Ogbechie v Onochie No. 1) (1986) 2 NWLR (Pt. 23) 484 referred).”
See also Abalaka & Anor v. President of the FRN & Ors (2011) LPELR-19741 (ca) (PP. 16-19, Para C) and Abdul v. CPC & Ors. (2013) LPELR – 20597 (sc) (pp.26-29 and Achonu V. Okuwobi (2017) LPELR 42102 (SC) (pp. 7-8, Para. D-F); ably cited by the learned Counsel to the Appellant. PER AGUBE, J.C.A.

IGNATIUS IGWE AGUBE, J.C.A. (Delivering the Leading Judgment): This is an Appeal against the Ruling of the High Court of Justice Benue State, Otukpo Judicial Division which Ruling was delivered on the 7th day of January, 2019 Coram: Hon Justice D.E. Igoh dismissing the Appellant’s (then Defendant/Applicant’s) Motion No. OHC/258M/2018 dated and filed the 9th day of July, 2018 to set aside the Default Judgement entered against the Defendant (now Appellant) on the 28th day of June, 2018 in Suit No. OHC/85/2017. The motion prayed for the following Reliefs:
“(a) An Order granting extension of time to the Defendant/Applicant within which to apply for the setting aside of the Judgment of the Honourable Court that was delivered on 28th June, 2018 the time for doing so as prescribed by the Rules of Court having already expired.
(b) An Order setting aside the said Judgment and all Processes that may have been issued by the Court pursuant thereto and allowing the Defendant/Applicant to defend the substantive suit on the merits.
​(c) An Order granting extension of time to the Defendant/Applicant to file its Statement of Defence and other

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relevant papers in Defence of the Substantive Suit the time for doing so as prescribed by the Rules of Court having already expired.
(d) An Order deeming the Defendant/Applicant’s Statement of Defence, List of Documents/Witness Statement on oath of its Witness which are exhibited to the Supporting Affidavit and collectively marked as “ANNEXTURE ‘A’” as duly filed and served the necessary filing fees having been paid in respect thereof; and
(e) For such further Order(s) as the Court may deem fit to make in the circumstances.”

When the Motion came up on 24th July, 2018, the learned Counsel to the Defendant/Applicant/Appellant asked the Court for adjournment to enable them serve the Plaintiff/Respondent personally of the pending Motion on Notice. The Court then adjourned the Motion to 26th October, 2018 for hearing. Both learned Counsel informed the Court on 24th January, 2019 that they were ready to go on with the hearing of the Application. The Motion was accordingly heard on that day and the Court later adjourned the matter to 7th February, 2019 for Ruling. On that 7th day of February, 2019, the learned trial

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Judge delivered the said Ruling and held at page 133 lines 13-32 to page 134 lines 1-5 of the printed Records thus:-
“The conduct of the Applicant throughout the proceedings from the facts presented above is not worthy of sympathetic consideration. The Applicant even though was served with the Originating Process sometimes in February, 2018, he decided to file their Memorandum of Appearance on the date the matter was slated for hearing and which was out of time. It has not been regularized. So strictly speaking the Applicant deserves no indulgence as he was not properly before the Court. Between February, 2018 when the Application was served and the date of hearing was beyond the time allowed for filing of Memorandum of Appearance and Defence to the claim of the Respondent. The Memorandum was hurriedly filed out of time without the leave of the Court. As if that was not enough, between 17th April, 2018 to 11th day of June, 2018, the Applicant did not file her Defence. It will therefore be most unfair and embarrassing to the Respondent to have his Judgment obtained on 28th day of June, 2018 set aside.
Where the Defendant has been properly

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served and he elected not to defend the suit, it will be irrelevant to hear him, after Judgment has been delivered, say that he has a good Defence to the Suit. See N.I.P.S.S. vs. Kraus Thompson Org. Ltd. (2001) FWLR (Pt.45) 702 at 717. The Judgment of the Court will not be set aside for the fun of it. It must be based on basic principles of Law and Rules of Court. This Application has failed to proffer good, cogent, credible and compelling reasons for seeking for the Reliefs set out above.
Accordingly, the Application is liable to be and it is hereby dismissed for lacking in merit and substance.”

​Being dissatisfied with the said Ruling of the lower Court, the Appellant’s Notice of Appeal with Four (4) Grounds dated the 11th day of February, 2019 was filed same date. The Notice and Grounds of Appeal can be found at pages 135 to 139 of the Records. The Four (4) Grounds of Appeal are reproduced here under albeit without their respective particulars:-
“GROUNDS OF APPEAL:
1. The learned Trial Judge erred in Law when he held in his Ruling that the Defendant/Appellant’s Application dated 9th July, 2018 to set aside the

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Court’s Judgment delivered on 28th June, 2018 against it and other Reliefs was filed outside the 6 day period prescribed by the Rules of Court for doing so and was therefore incompetent thereby occasioning a substantial miscarriage of justice against the Appellant.
2. The learned Trial Judge erred in Law in considering the Applicant’s Application to set aside the Judgment obtained against it in its absence based on the two Issues for determination framed by the Respondent’s Counsel in his Written Address when the said Issues were premised on the provisions of Orders 10 (on Default of Appearance) and 20 (on Default of Pleadings) of the Benue State of Nigeria High Court (Civil Procedure) Rules, 2007 which are inapplicable to the facts of this case as the Applicant’s Application to set aside the Court’s Judgment was premised on the provisions of Order 30, Rule 4 of the said Rules of the Trial Court which gives the Court unfettered discretion to set aside its Judgment obtained after a Defendant does not appear before the Court when the Suit is called up for hearing.
3. The learned Trial Judge erred in Law in holding in his

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Ruling that the Defendant’s Memorandum of Appearance filed in the Registry of the Court on 17th April, 2018 was filed out of time and not regularized and that in the strict sense the Defendant’s Application to set aside the Judgment of the Court and other Reliefs was therefore not properly before the Court when the filing of the said Memorandum out of time was never made an issue at the trial from the date it was filed up till the date of the delivery of the Judgment of the Court and when both the Plaintiff and the Court had taken fresh and further steps in the proceedings thereby waiving the irregularity and when by the provisions of Order 9, Rule 5 of the Benue State of Nigeria High Court (Civil Procedure) Rules, 2007 the irregularity could be cured by the Court ordering the Defendant to pay the sum of N200.00 for each day of default.
4. The learned Trial Judge erred in Law when he held in his Ruling that the Defendant/Applicant company had failed to proffer good, cogent, credible and compelling reasons for seeking all the reliefs set out in the Motion papers which inter alia prayed for the setting aside of the Judgment of the Court and

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permitting the company to defend the Suit on the merits.
RELIEFS SOUGHT FROM THE COURT OF APPEAL:
An Order allowing this Appeal, setting aside the Ruling of the Trial High Court dismissing the Defendant/Applicant’s Application and substituting thereof an order granting all the Reliefs sought therein.”

The Record of Appeal was transmitted to this Honourable Court on the 11th day of April, 2017 while the Appellant’s Brief of Argument settled by J.S.T. Anchaver, Esq. was dated and filed on the 16th day of May, 2019. In the said Appellant’s Brief of Argument, two (2) Issues were distilled for determination from the four Grounds of Appeal couched in the following terms:-
“(a) Whether or not the Court below was right in totally failing to consider and rule upon the Appellant’s prayer on the Motion papers for extension of time within which to apply for the setting aside of the Court’s Judgment of 28th June, 2018 and if wrong, whether or not the Court still had the requisite jurisdiction to consider and determine as it did the further prayers for the setting aside of the said Judgment and other consequential

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Reliefs (From Ground 1) and
(b) Whether or not the learned Trial Judge erred in Law and/or failed to exercise his judicial discretion correctly when he dismissed the Appellant’s Application inter alia praying the Court to set aside its Judgment dated 28th June, 2018 having regards to all the facts and circumstances of this case. (From Grounds 2, 3 and 4).”

Learned Counsel to the Respondent who settled the Respondent’s Brief of Argument dated the 10th day of October, 2019 and filed on the 14th day of October, 2019, nominated a sole Issue for determination as reproduced hereunder:
“Whether or not the Lower Court was correct when it refused to exercise discretion to set aside its Judgment dated the 26th day of June, 2019?”

Before resolving the Issues so distilled, it is only apt at this juncture to recall the facts of each of the parties’ case before the trial Court as can be gleaned from the respective Briefs of Argument of the Learned Counsel to the Parties and the Record of Appeal.

​On the 27th November, 2017 the Plaintiff (now Respondent) took out a Writ of Summons against the Defendant (now

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Appellant) and pleaded in paragraphs 1 to 6 of the Statement of Claim as follows:-
“1. The plaintiff is a Deputy Director with the Nigeria Communications Commission, within the jurisdiction of this Honourable Court.
2. The Defendant is a company registered under the laws of the Federal Republic of Nigeria and carries on business of production, sales, marketing and supply of cement.
3. On Saturday, October 24, 2015, at about 1330 hours, the Plaintiff while a passenger in a Toyota Hilux Vehicle with registration No.FG180-C05, belonging to Nigeria Communications Commission (NCC or the Commission) and driven by Mr. Kingsley Obilor (a driver of Port Harcourt Zonal Office of the Nigeria Communications Commission) was involved in a multiple accident of 3-Nos. vehicle, caused by a Howo Trailer Truck with Registration No.KMC-501 XC belonging to Dangote Cement Plc driven by Aliyu Sule (M) an employee of the Defendant.
4. The accident occurred at Okwungaga Village in Okpokwu Local Government Area of Benue State along Enugu/Otukpo Federal Highway and the third vehicle that was involved in the accident was a Volkswagen Golf with Registration

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No.UGH-78C driven by one late Raphael Abah who died sometime in the Hospital after the accident.
5. The Plaintiff and his driver were on their lane and driving along Enugu/Otukpo Federal Highway in Okwungaga Village in Okpokwu Local Government Area of Benue State and the Defendant’s Driver Aliyu Sule with Howo (Trailer) Truck with Registration NO. KMC-501 XC who was also on the same lane but driving from behind owed the Plaintiff a duty of care to ensure that a minimal distance is maintained between the Plaintiff’s vehicle and that of the Defendant’s when driving on the same lane.
6. The Defendant’s vehicle (Howo Trailer) with Registration No. KMC-501 XC containing several bags of cement driven by Aliyu Sule in the cause of his employment while descending from the sloppy hill of Okungaga negligently failed to apply his breaks thereby crashing into the Toyota Hilux Vehicle with Registration No. FG180-C05 from the rear, which impact plunged it into a road border ditch, with an elevation of about seventy feet (70FT), below the seal level.”

​The Plaintiff (now Respondent) further pleaded and sought the following Reliefs

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in paragraph 36(a)-(d) of the Statement Claim at pages 13 to 14 of the printed Record of Appeal thus:-
“36. WHEREOF the Plaintiff hereby claims from the Defendant as follows:-
(a) The Sum of N12,000,000.00 (Twelve Million Naira) only being the total amount spent by the Plaintiff on Hospital and ancillary bills.
(b) The Sum of N4,371,000.00 (Four Million, Three Hundred and Seventy One Thousand Naira) only being the cost of the various items lost by the Plaintiff as a result of the accident.
(c) N200,000,000.00 (Two Hundred Million Naira) only General Damages for bodily pain and suffering, permanent disability and disfigurement, loss of amenities of life.
(d) Costs of this action.”

In respect of the Appeal here in being contested, the case of the Respondent as Plaintiff is that following the commencement of the Suit No. OHC/85/2017 against the Appellant in the Benue State High Court of Justice, Otukpo Judicial Division wherein the sum of N216, 371,000.00 (Two Hundred and Sixteen Million, Three Hundred and Seventy-One Naira) only, being special and general damages suffered by the Respondent as a result of injuries

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allegedly sustained in an accident occasioned by the alleged negligence of the Appellant’s driver along Otukpo-Makurdi Road, Federal High way on 24/10/2015, was claimed against the Defendant (now Appellant).

According to him, on 17/4/2018 when the matter came up for hearing before the trial Court, for the first time, it was adjourned at the instance of the Appellant’s Counsel through a letter of the same date written by the said learned Counsel to the Court. (Page 113 of the Records refers). The learned Counsel to the Appellant sought for an adjournment to afford him adequate time to prepare and file the relevant papers in defence of the suit having just been briefed by the Appellant to defend the Suit. The Appellant also filed a Memorandum of Appearance before the Court on the same date thereby clearly manifesting the intention to defend the Suit.

​On the 11th day of June, 2018 to which the case was adjourned for hearing, neither the Appellant nor his Counsel was in Court and the Court at the instance of the Respondent then proceeded to hear the Suit by taking the Respondent’s evidence-in-chief and closed his case after which the

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Court adjourned for judgment to the 28th day of June, 2018 (Pages 114-116 of the Records refer).

On the said 28/6/2018, again in the absence of the Appellant and her Counsel, the Court delivered the Judgment wherein the Respondent was awarded the total sum of N21,371,000.00 as damages against the Appellant (Pages 116-127 of the Records/Judgment refer).

Upon becoming aware of the Judgment of the Court below, the Appellant on the 9th day of July, 2018, through her Counsel, filed the Motion No. OHC/258M/2018 before the lower Court seeking for extension of time within which to apply for an Order setting aside the Default Judgment; and for extension of time within which to file her Statement of Defence and other processes in defence of the Suit. (Pages 66 – 83 of the Records refer). The Appellant was said to have filed a Further Affidavit in support of the Motion as can be gleaned from page 98 of the Records while the Respondent in opposing the Motion filed his Counter-Affidavit and Written Address in Support thereof (pages 84-97 refers) and Appellant’s Reply to the Respondent’s Written Address opposing the Motion can be found at pages 111-112

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of the Records.

Upon hearing the Application on 24th January, 2019, the learned trial Judge subsequently delivered his Ruling on the 7th February, 2019 dismissing same on the ground that it lacked merit, hence this Appeal.

ARGUMENT OF LEARNED COUNSEL TO THE APPELLANT ON ISSUE NUMBER 1 (ONE):
“WHETHER OR NOT THE COURT BELOW WAS RIGHT IN TOTALLY FAILING TO CONSIDER AND RULE UPON THE APPELLANT’S PRAYER ON THE MOTION PAPERS FOR EXTENSION OF TIME WITHIN WHICH TO APPLY FOR THE SETTING ASIDE OF THE COURT’S JUDGMENT OF 28TH JUNE, 2018 AND IF WRONG, WHETHER OR NOT THE COURT STILL HAD THE REQUISITE JURISDICTION TO CONSIDER AND DETERMINE AS IT DID THE FURTHER PRAYERS FOR THE SETTING ASIDE OF THE SAID JUDGMENT AND OTHER CONSEQUENTIAL RELIEFS? (FROM GROUND 1).”
Arguing this first Issue which questions the failure of the learned Trial Judge to consider and determine the prayer for extension of time and the consequence thereof, the learned Counsel to the Appellant submitted that the Default Judgment was delivered on the 28th day of June, 2018, thus an Application to set aside the Default Judgment which ought to have been filed

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latest by 4th July, 2018 was filed on the 9th July, 2018, a further 5 days later. He had relied on the provisions of Order 30, Rule 4(3) of the Benue State High Court (Civil Procedure) Rules, 2007 in so submitting that it was for this reason that he sought for prayer (a) of the Motion Paper for extension of time but His Lordship did not however consider the merits or otherwise of the prayer for extension of time and consequently did not rule on it throughout his Ruling. It was the contention of the learned Counsel that the learned trial Judge merely observed that the Application was filed outside the stipulated period of time and subsequently dismissed all the other prayers on the Motion papers including the one seeking for an Order of the Court setting aside the said Judgment.

On the above premises, the learned Counsel cited and relied on the authorities of Aina v. Abiodun (2005) 10 NWLR (Pt.933) at 375 cited in Isong vs. Umoren (2010) 2 NWLR 49 at page 58, paragraph 32 and page 60, paras. 41-42 per Orji-Abadua, JCA, and submitted that being a threshold issue that must be first cleared, the learned trial Judge was duty-bound to have considered the prayer

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for extension of time separately before considering the prayer seeking to set aside the Judgment. He asserted that the failure to consider either granting or refusing the Appellant’s application for extension of time within which to apply for the setting aside of the Court’s Judgment, deprived the learned trial Judge of the jurisdiction to subsequently consider and dismiss the subsequent prayer for the setting aside of the Default Judgment.

The learned Counsel to the Appellant therefore urged us to hold conclusion of his submissions on this Issue, that the dicta of Abadua, JCA in the Isong v. Umoren case (supra) should be followed and the Appeal allowed on this ground alone. We were further urged to consequently set aside the Ruling of the Trial Court in this respect and order that the Appellant’s Motion on Notice No.OHC/258M/2018 should be remitted to the Chief Judge of Benue State for re-assignment to another Judge of the High Court, other than the learned Trial Judge of the Lower Court for hearing and determination.

​Alternatively, the learned Counsel to the Appellant prayed that this Honourable Court should set aside the Ruling

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of the Lower Court and grant the prayer for the extension of time and determine the subsequent prayers in the Defendant/Applicant/Appellant’s Motion on Notice on the merits.

ARGUMENT OF LEARNED COUNSEL TO THE APPELLANT ON ISSUE NUMBER (TWO):
“WHETHER OR NOT THE LEARNED TRIAL JUDGE ERRED IN LAW AND/OR FAILED TO EXERCISE HIS JUDICIAL DISCRETION CORRECTLY WHEN HE DISMISSED THE APPELLANT’S APPLICATION INTER ALIA PRAYING THE COURT TO SET ASIDE ITS JUDGMENT DATED 28TH JUNE, 2018 HAVING REGARDS TO ALL THE FACTS AND CIRCUMSTANCES OF THIS CASE. (FROM GROUNDS 2, 3 AND 4).”
The learned Counsel to the Appellant argued on Issue Number 2 (Two) which questions whether or not the Lower Court exercised its judicial discretion correctly in refusing to set aside its Judgment and granting the reliefs on the Motion paper, that the learned Trial Judge made various observations in his Ruling to justify his decision. He noted that the learned trial Judge relied on Order 20 Rule 12 of the Benue State High Court (Civil Procedure) Rules, 2007 in observing that the Appellant’s Application to set aside the Judgment of the Court was incompetent

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due to the fact that it was not grounded on fraud, non-service and lack of jurisdiction as prescribed by the Rule under reference.

The learned Counsel further alluded to the observation of His Lordship at page 133 paragraphs 1 and 2 of the Records to the effect that since the Appellant had filed its Memorandum of Appearance in the substantive suit outside the time prescribed by the Rules of Court for doing so which had not been regularized, the Applicant/Appellant deserves no indulgence as he was not properly before the Court.

​On the finding by the learned Trial Judge that the Appellant’s Application was incompetent, learned Counsel to the Appellant submitted that the Appellant’s Application to set aside the Default Judgment before the lower Court was made pursuant to the provisions of Order 30, Rule 4(3) of the said Rules of the Court and not under Order 20, Rule 12 as erroneously held by the Lower Court. He insisted that the provisions of Order 30 gives the lower Court an unfettered discretion to set aside any Judgment obtained after a Defendant fails to appear when the matter was called and the Plaintiff proceeds with the hearing of

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his case in the Defendant’s absence as in the instant case while the provisions of Order 20 relate to Judgments obtained after a defendant has defaulted in filing a Statement of Defence after the Court must have heard a Motion on Notice for Judgment from the Plaintiff pursuant to the mandatory provisions of Order 20, Rule 1 and Order 39 Rule 1(1) of the Benue State High Court (Civil Procedure) Rules, 2007.

It was also his submission that although the Appellant did not file her Statement of Defence at the state when the Respondent/Plaintiff testified before the Court on 11th June, 2018 and closed his case and the matter was adjourned for Judgment which was subsequently delivered on 28th June, 2018, that Judgment was delivered in default not because of the fact that the Appellant had defaulted in filing its Statement of defence before the Court but because the Appellant’s learned Counsel was not in Court when the matter came up on the scheduled date for hearing and the Respondent therefore gave unchallenged and uncontroverted evidence to enable him to obtain Judgment in that circumstance.

​The learned Counsel contended that the Rules of

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Court in this circumstance do not place any burden on the Applicant to base his Application to set aside such a Default Judgment on the grounds of fraud, non-service or lack of jurisdiction as erroneously held by the learned Trial Judge in this case and they urged us to so hold.

Learned Counsel further contended on the findings of the learned trial Judge that no reasons were adduced as to why the Statement of Defence was not filed within the timeframe prescribed by the Rules of Court; that the conduct of the Appellant/Applicant throughout the proceedings was not worthy of sympathetic consideration; and that the failure of the Appellant to regularize its Memorandum of Appearance that was filed out of time rendered the Appellant undeserving of any indulgence from the Court; that this Honourable Court should hold that the reasons and facts in the Supporting Affidavit particularly in paragraphs 4(g) and (i) of the Applicant/Appellant were strong, cogent and compelling enough to warrant the Lower Court to have granted the Appellant all the Reliefs sought on the face of the Motion on Notice.

​On the finding of the lower Court that the conduct of the Appellant

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throughout the proceedings was not worthy of sympathetic consideration, it was submitted that 11/6/2018 was the first and only time the Appellant and her Counsel absented themselves from Court without explanation, the excuse being that the Court room was in Otukpo while the Appellant and Counsel are based in Gboko and Lagos respectively and the Court below ought to have given them the benefit of doubt by adjourning the case to another date in the interest of justice instead of proceeding to hear the Respondent in their (Appellants’) absence as the learned trial Judge did moreso, as the Suit was commenced sometime in November, 2017.

​In respect of the finding that the failure to regularize the Appellant’s Memorandum of Appearance rendered the Appellant undeserving of any indulgence from the Court, it was submitted by the learned Counsel that the late filing or regularization of the Memorandum of Appearance by the Appellant was not a relevant factor to be considered in the Application in question in that the Memorandum of Appearance was not made an issue at the hearing of the case on 11/6/2018 and when the Respondent testified, closed his case and

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the matter was adjourned for Judgment. He therefore noted that the learned trial Judge contrary to the Records, erroneously held that the Defendant/Appellant had not filed any process in response to the suit against her like the Memorandum of Appearance and Statement of Defence and was in the circumstance deemed to have no defence to the Suit (Page 122 of the Records refers).

​The learned Counsel to the Appellant in concluding his submission on this second issue, contended that the Appellant had satisfied all the requirements for the granting of the Appellant’s Application before the Lower Court for the setting aside of the Default Judgment as has been settled by decided authorities of the Apex Court and this Honourable Court. He therefore maintained that it is the duty of the Appellant/Applicant to furnish good reasons for being absent from Court on 11th June, 2018 and for filing the Application outside the prescribed Six Day period for doing so adding that the Defence to the Suit as contained in Appellant’s Proposed Statement of Defence annexed to the Application, was arguable and supportable and that the case of the Applicant/Appellant

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deserved sympathetic consideration of the Lower Court. He also reasoned that the Respondent will not be unfairly prejudiced by the granting of the Appellant/Applicant’s Application and cited the case of Williams vs. H.R.V.F.S. (1982) 1-2 SC 145; Sanusi vs. Ayoola (1992) 9 NWLR (Pt.265) 275 and Bada & Anor. vs. Atunbi & Anor. (2012) 3 NWLR (Pt.1287) 354; in support of the argument for setting aside the Default Judgment of the Lower Court.

​On the whole, the learned Counsel to the Appellant submitted that the error in the decision of the Lower Court occasioned a miscarriage of justice against the Appellant and that this Honourable Court should set aside the Ruling of the learned Trial Judge and remit the case to the Chief Judge of Benue State to be re-assigned to another Judge of the Court for hearing and determination or that in the alternative, having satisfied all the criteria required by law for the granting of all the Reliefs contained in the face of the Motion on Notice, this Honourable Court should grant all the said Reliefs after setting aside the Ruling of the lower Court.

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ARGUMENT OF THE LEARNED COUNSEL TO THE RESPONDENT ON THE PRELIMINARY OBJECTION AND THE SOLE ISSUE DISTILLED FOR DETERMINATION:
The Respondent raised a Preliminary Objection to the Hearing of this Appeal at page 6 paragraphs 4.00 to 4.10 of the Respondent’s Brief of Argument predicated on the following Grounds:-
“1. Grounds One, Two, Three and Four of the Grounds of Appeal are Grounds of facts, mixed Law and facts and so required the leave of either the Lower Court or this Honourable Court.
2. Grounds One, Two, Three and Four of the Grounds of Appeal having been filed without the leave of the Lower Court or this Honourable Court are incompetent and liable to struck out.
3. Ground Three of the Grounds of Appeal is incompetent having been filed without particulars.
4. The Lower Court cannot sustain an Issue(s) derived from incompetent Grounds of Appeal; and
5. That the Grounds of Appeal, the Issues distilled therefrom and the Brief of Argument are not in respect of the findings of the Court.”

ARGUMENT OF LEARNED COUNSEL TO THE RESPONDENT ON THE PRELIMINARY OBJECTION
Arguing the Objection the learned Counsel to the Respondent noted that an Appeal to this

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Honourable Court is only on Grounds of law alone save with the leave of the Court below or this Honourable Court. Section 243 of the Constitution of the Federal Republic of Nigeria, 1999 (As amended) was relied upon in so submitting above.

He cited the authorities of Ukpong V. Commissioner for Finance and Economic Development (2006) 19 NWLR (Pt. 1013) 187, IRHABOR V. OGAIAMIEN (1999) 5 NWLR (Pt. 603) 337, Uchendu Vs Ogboni (1999) 5 NWLR (Pt. 603) 337and Okolonwamu v. Okolonwamu (2019) Vol. 292 LRCN P. 69 AT 89 AND p. 89 Z-EE; to further submit that this Court lacks the jurisdiction to entertain an Appeal on Grounds of facts or mixed law and facts unless the leave of the Lower Court or this Court is sought and obtained. On the consequence of failure to seek leave of Court where the Grounds of Appeal are of questions of fact, mixed law and facts he relied once more on the case of Okolonwamu v. Okolonwamu (supra) at page 101 P-Z and reproduced Ground One of the Appellant’s Grounds of Appeal at page 7 of the Respondent’s Brief of Argument; Grounds Two and Four in paragraphs 4: 23 and 4: 24 at page 8 thereof and further posited as earlier argued

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that the said Grounds are on facts, mixed law and facts as they challenge the findings of fact or issue of law made by the Lower Court.

It was also his further submission that the enumerated Grounds of Appeal (sic) “also evaluated the evidence as admitted and proved before the lower Court before the attempt to apply the law and so the Grounds of Appeal are grounds of facts, mixed law and facts and hence, they are incompetent.”

On the principles guiding the determination of whether a Ground of Appeal is of law, facts or mixed law and facts, reliance was placed on the dictum of Peter-Odili, JSC in Dankofa v. F.R.N. (2019) Vol. 290 LRCN P. 98 at 120 P-JJ, Okolonwamu v. Okolonwamu (Supra) at page 91 A-JJ. He further relied on the authorities of Osanyanbi & Ors V. Lasisi & Ors. (2019) Vol. 294 LRCN P. 143 at 175 F-JJ and 177 AK still on the guiding principles.

As for his contention that Ground Three of the Notice of Appeal has no particulars to enable the Court to decipher the error of law embedded therein as claimed by the Appellant, he again cited and relied on the dictum of Augie, JSC in the Okolonwamu V. Okolonwamu case at

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page 88. Upon the assumption without his conceding that this Court can sustain a Ground of Appeal without particulars, he submitted further that the said Ground Three is a Ground of facts, mixed law and facts and that having been filed without the leave of this Honourable Court, it is incompetent and should be struck out with the issues derived therefrom. For this submission, he quoted and relied on the dictum of Okoro, JSC in Mobil Producing Nig. UnLtd v. Johnson (2019) Vol. 288 LRCN P. 94 at P. 126; on the fate of any issue distilled from an incompetent Ground.

Arguing the fifth Ground of Preliminary Objection that the Grounds of Appeal are not a direct challenge to the finding of facts made at the Lower Court, the learned Counsel to the Respondent referred to page 133 of the Records where the Learned Trial Judge made findings on the conduct of the Appellant throughout the proceedings that led to the Default Judgment now the subject of this Appeal and insisted that there is no Ground of Appeal that challenges the said findings. He therefore insisted on the authority of Wassah & Ors. V. Kara & Ors (2015) Vol. 239 LRCN P. 38 at 59 AF per

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Rhodes-Vivour, JSC that the Grounds of Appeal are liable to be struck out.

ARGUMENT OF THE LEARNED COUNSEL TO THE RESPONDENT ON THE SOLE ISSUE DISTILLED FOR DETERMINATION OF THE SUBSTANTIVE APPEAL:
“WHETHER OR NOT THE LOWER COURT WAS CORRECT WHEN IT REFUSED TO EXERCISE DISCRETION TO SET ASIDE ITS JUDGMENT DATED THE 26TH DAY OF JUNE, 2019?”
Arguing this sole Issue as distilled by the learned Counsel to the Respondent, he submitted that the entire Reliefs sought in the Applicant/Appellant’s Application were discretional and this Honourable Court would not ordinarily interfere with the discretionary powers of the lower Court except such exercise is perverse and that it is the duty of the Appellant to satisfy this Court that he has met the conditions for the setting aside of the exercise of the discretion of the lower Court in refusing to set aside its Default Judgment by the Ruling of 7th day of February, 2019.

​In the view of the learned Counsel to the Respondent, this Honourable Court would not set aside the lower Court’s exercise of discretion merely because it would have expressed a different view, except the

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exercise of that discretion offended established principles and it is also perverse. He submitted in the light of the above, that from the facts giving rise to this Appeal which he narrated in paragraph 4:45 – 4:55 at page 14 of the Respondent’s Brief of Argument; the learned trial Judge was correct in refusing to exercise his discretion in favour of the Appellant’s Application to set aside the Default Judgment entered against the Appellant on the 28th day of June, 2018.
References were made to pages 113-116 of the Records where those facts that culminated in the holding of the learned Trial Judge at page 133 of the Records that the conduct of the Appellant throughout the proceedings in the lower Court was not worthy of the sympathetic consideration of his Application nor did he deserve any indulgence.

On the authority of Newswatch Comm. V. Attah (2006) Vol. 139 LRCN. 1895 at page 1916 U-EE, per Tobi, JSC as well as S.E.C & Ors. V. Okeke (2018) Vol. 283 LRCN Page 190 at 209 per Okoro, JSC; the learned Counsel again submitted that Appellant was not diligent with the prosecution of his case before the lower Court and she cannot

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turn round to blame the lower Court moreso, as the learned Trial Judge found as a fact that the Appellant had not even regularised her Memorandum of Appearance against which finding the Appellant did not appeal. Indeed, the learned Counsel emphasised up till the filing of the Appeal, Appellant had not regularised the Memorandum of Appearance at the lower Court. Citing the case of Inakoju & Ors. V. Adeleke & Ors. (2007) Vol. 143 LRCN p. 1 at 108 KP; the learned Counsel to the Respondent asserted that hence the Court below held that the Appellant’s conduct throughout the proceedings, did not deserve sympathetic consideration.

He maintained that contrary to the submission of the learned Counsel to the Appellant that the lower Court did not consider her Application before arriving at its decision (paragraph 3.03 line 4 of the Appellant’s Brief of Argument and page 132 of the Records refer); the lower Court considered the Application before coming to the findings as quoted in paragraph 4:75 of the Respondent’s Brief of Argument. Further reference was made to the findings of the learned Trial Judge at page 133 of the Records which he

30

also quoted at page 17 paragraph 4:80 of the Respondent’s Brief of Argument adding that as a corollary to the above quoted findings, the learned trial Judge held at page 133 of the Records as quoted in page 18 paragraph 4:85 of the Respondent’s Brief of Argument before refusing the exercise of his discretion in favour of the Appellant. Accordingly, from the foregoing, the learned Counsel contended that the facts and circumstances of the decision in Aina v. Abiodun (2005) 10 NWLR (Pt. 933) cited in Isong v. Umoren (2010) 2 NWLR 49 at 58 and referred to by the learned Counsel to the Appellant are not apposite to the Appeal at hand and should be discountenanced since in our instant case, the learned Trial Judge considered the prayers vis-a-vis the paragraphs of the Supporting Affidavit, in refusing to exercise his discretion in favour of the Appellant.

​The learned Counsel to the Respondent reiterated that the Appellant did not appeal against the finding of the learned Trial Judge that Appellant’s conduct throughout the proceedings from the facts presented was unworthy of sympathetic consideration in that even though she was served with the

31

Originating Summons in February, 2018, she decided to file her Memorandum of Appearance on the date the matter was slated for hearing and which was out of time and was not regularised; so strictly speaking the Applicant deserved no indulgence and she was not properly before the Court which finding was deemed admitted.

In conclusion, the learned Counsel to the Respondent for the reasons stated at page 19 of the Respondent’s Brief, urged us to hold that the Appellant has not given any cogent and compelling reason(s) why the Honourable Court should set aside the Ruling of the Trial Court.

ARGUMENT OF LEARNED COUNSEL TO THE APPELLANT IN RESPONSE TO THE PRELIMINARY OBJECTION
Reacting to the above contentions of the learned Counsel to the Respondent on the Preliminary Objection, the learned Counsel to the Appellant posited that although not clearly stated, the real purport of the submissions of his learned Colleague in his prefatory remark in paragraph 4:20 of the Respondent’s Brief of Argument appears to be that the Ruling of the lower Court which is the subject of this Appeal is an interlocutory decision rather than a final decision

32

thereby requiring the leave of the lower Court or this Honourable Court to be sought and obtained before the Appellant can appeal apart from the learned Counsel to the Respondent’s submission that the Grounds of Appeal are of mixed law and facts which by virtue of Section 243 of the Constitution of the Federal Republic of Nigeria requires the prior leave of the lower Court or this Court before filing the Notice of Appeal, the failure to obtain such leave which renders the Appellant’s Appeal incompetent.

It was submitted by the learned Counsel to the Appellant that the submissions of the learned Counsel to the Respondent are erroneous and should be completely discountenanced for the reasons stated in paragraphs 2.02 page 2 – paragraph 2.05 page 4 of the Reply Brief of the Appellant.

​On the first reason, the learned Counsel recalled the subject matter of the Appellant’s Application in the lower Court which Ruling is the basis of this Appeal and submitted that it is inherent in the prayers sought by the Appellant that whichever way the Court below ruled on the Application, the rights of the parties would have been finally determined.

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He asserted further that by dismissing the Applicant/Appellant’s Application to set aside the Default Judgment of 28/6/2018, the Court below finally and completely determined the rights of the parties relative to the said Judgment thereby qualifying the Ruling as a final decision not interlocutory as erroneously canvassed by the Respondent. The learned Counsel to the Appellant in the light of the above therefore contended that the Appellant had a right of appeal on any Ground(s) as of right to this Court by virtue of Section 241(1)(a) and (b) of the Constitution of the Federal Republic of Nigeria, 1999 (As amended). This is more so according to learned Counsel, when the learned Trial Judge became functus officio over the matter since there was nothing pending before him for determination.

Applying the ‘nature-of-the-order-test” which he urged us to follow and adopt in favour of the Appellant, he cited to us the dictum of Nweze, J.S.C in Ekemezie V. Ifeanacho & Ors. (2019) LPELR – 46518 (SC) pp. 27 para E to 28 para A and Ajuta II & Ors. V. Ngene & Ors (2001) LPELR – 5723 (CA) per Ubazeonu JCA.

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Upon the assumption without necessarily conceding that the substantive Appeal is against an interlocutory decision, the learned Council to Appellant asserted that contrary to the submission of the learned Counsel to the Respondent, that all the four Grounds of Appeal are entirely of facts or at best of mixed law and facts; the four Grounds are entirely of Law alone as envisaged by Section 241(1)(b) of the Constitution of the Federal Republic of Nigeria, 1999 (As Amended) and accordingly the Appellant had the constitutional right to file same without necessarily seeking the prior leave of the lower Court or this Honourable Court.

It was the further submission of the learned Counsel to the Appellant that all the Four Grounds question the application of the law by the lower Court to proved facts or admitted facts. He further explained the purports of Grounds 1 to 4 of the Notice of Appeal and insisted that all the four Grounds of Appeal involve the determination of questions of law alone and he urged us to so hold. As for the case of Dankofa v. F.R.N. (2019) Vol. 290 LRCN 98 at 120, cited by the learned Counsel to the Respondent to buttress his submissions on the

35

principles guiding the categorization of Grounds of Appeal, the learned Counsel to the Appellant contended that the said authority rather supports the Appellant’s position since the Supreme Court held as quoted in paragraph 2.04 of the Appellant’s Reply Brief and the authorities of Abalaka & Anor. V. President of the F.R.N. & Ors (2011) LPELR – 19741 (CA) pp. 16-19, para c; Abdul v. CPC & Ors. (2013) LPELR (SC) pp. 26 – 29 and Achonu V. Okuwobi (2017) LPELR – 42102 (SC) pp. 7-8, paras D-F) which he further cited in support.

On the contention of the learned Counsel to the Respondent in paragraph 4:28 of the Respondent’s Brief of Argument that Ground 3 is incompetent because it was not accompanied by particulars, the learned Counsel to the Appellant submitted that the Particulars of the Ground are embedded in the Ground itself and on the whole gives the Respondent and the Court a clear understanding about the Appellant’s complaint against the aspect of the Ruling of the lower Court. Relying on the case of Abe V. Unilorin & Anor (2013) LPELR – 20643 (SC) P. 15 paras. C-E per Muhammad, JSC; he

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submitted that Ground 3 of the Grounds of Appeal is competent and on the whole and in the light of the foregoing submissions, we were urged to discountenance the Preliminary Objection as being devoid of any merit and determine the substantive Appeal on its merits.

RESOLUTION OF ISSUES
Before delving into the resolution of the substantive issues distilled for the determination of this Appeal, it is only necessary at this juncture to determine the Preliminary Objection raised by the learned Counsel to the Respondent as to the competence of the Four Grounds of Appeal filed by the Appellant against the Ruling of the lower Court refusing to grant the Application for the setting aside of the Default Judgment entered against the Appellant on the 28th day of June, 2018.

​From the prefatory remark of the learned Counsel to the Respondent in paragraph 4:20 page 7 of the Respondent’s Brief of Argument, even though Section 243 of the Constitution of the Federal Republic of Nigeria, 1999 (As Amended) was cited out of context, there is no doubt that by the provisions of Section 242(1) thereof which is the appropriate Section the learned Counsel to the

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Respondent/Objector must have intended to rely upon in his said remark; all Appeals from the decisions of the Federal High Court or High Court of a State (as in this case) to the Court of Appeal, ordinarily shall be with the leave of the Federal High Court or High Court of a State or the Court of Appeal. The above provision is subject to that of Section 241 of the Constitution which sets out the nature of Appeals from the Federal High Court and High Courts of the States that should lie to this Honourable Court as of right.
For the avoidance of doubt, Section 241(1) (a)-f(i)-(v) list the circumstances under which an Appellant can appeal “as of right” to the Court of Appeal and for our purpose, Section 241 (1) (a) and(b) are relevant as they provide thus:
“241 (1) An Appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases –
(a) final decisions in any civil or criminal proceedings before the Federal High Court or High Court sitting at first instance;
(b) Where the ground of appeal involves questions of law alone, decisions in any civil or criminal

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proceedings.”
The above Provisions have been given judicial interpretation and assent by the Supreme Court and followed by this Honourable Court in a host of authorities. See for instance Assams & Ors V. Ararume & Ors (2016) 1 NWLR (Pt 1493) 368 at 387 paras C-F. Per Rhodes-Vivour J.S.C, Ajayi v. Ajayi (2014) 15 NWLR (Pt. 1431) 588 at 600 paras. C-D (CA) and the very recent case of Dankofa v. FRN (2019) 9 NWLR (Pt. 1678) 468 S.C.; ably cited by the learned Counsel to the Respondent. Although, I am unable to infer from the prefatory remarks by the learned Counsel to the Respondent that he meant that the Ruling of the lower Court was interlocutory, the analysis of the learned Counsel to the Appellant in paragraph 2.02 of the Appellant’s Reply Brief is apt that inherent on the face of the prayers sought in the Application to set aside the Default Judgment entered against her (Appellant) on the 28/6/2018, whichever way the learned Trial Judge ruled, the rights of the parties would have been determined once and for all.
​In the light of the foregoing, I am of the candid view that having dismissed the Application of the Appellant which

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is the subject matter of this Appeal, the said Judgment of 28/6/18 still subsists in which case the Appellant is bound by it until same is set aside by an Appellate Court since the rights of the parties had been determined in favour of the Respondent. Also having dismissed the Application, the Court below became functus Officio. In the light of the above scenario, and applying “the-nature-of-the-order-test” in determining whether the Court’s Ruling was interlocutory or final decision, I adopt the dictum of the inimitable and erudite C.C. Nweze, JSC; in Ekemezie v. Ifeanacho & Ors (2019) LPELR – 46518 (SC) pp. 27 para A) that:
“The test, as shown above, Dawodu v. Ologundudu (1986) 4 NWLR (Pt. 33) 104, 110-112 per Nnaemeka-Agu, JSC; Omonuwa v. Oshodin and Anor (supra) at page 31 in which Karibi-Whyte, JSC, followed the decisions in Salaman v. Warner (1891) I K.B. 577; Afuwupe & Anor V. Shodipe & Ors (1957) 2 FSC 62 at 68, is that a decision is final where the dispute between the parties has been completely brought to an end or where the decision has finally disposed of the rights of the parties in a matter otherwise

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it would be interlocutory”.
The dictum of Ubaezonu, JCA in Ajuta II & Ors v. Ngene & Ors (2001) LPELR – 5723 (CA) at pp. 10-21 paras. A-E ably cited by the learned Counsel to the Appellant, is also instructive on this principle of our law. See further Ajayi v. Ajayi (supra at 590-600, pras. F-B, per Orji-Abadua, JCA citing amongst other cases Ogolo V. Ogolo (2006) 5 NWLR (Pt. 972) 163; Odutola v. Oderinde (2004) 12 NWLR (Pt. 888) 574; Akinsanya v. UBA (1986) 4 NWLR (Pt. 35) 273; Omonuwa v. Oshodin (1985) 2 NWLR (Pt.10) 924; Ebokam v. Ekwenibe & Sons Trading Co. Ltd (1999) 10 NWLR (Pt. 622) 242 and Falola v. UBN Plc. (2005) 7 NWLR (Pt.924) 405.
Going by the provisions of Section 241 of the Constitution of the Federal Republic of Nigeria, 1999 (As Amended), particularly by virtue of subsection 1(a) thereof as quoted above, the Appellant’s Appeal is as of right and the question of whether the Grounds of Appeal are of law, facts or mixed law and facts do not arise.

​Be that as it may, and in view of the penultimate status of this Court, we shall for whatever is worth consider the crux of the Preliminary Objection as to

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the competence of the Appellant’s Grounds of Appeal.

Now, there is no doubt as contended by the learned Counsel to the Respondent in his argument in page 7, para. 4:21 of the Respondent’s Brief of Argument and on the authorities of Ukpong V. Commissioner for Finance and Economic Development (2006) 19 NWLR (Pt. 1013) 187, IRHABOR V. OGAIAMIEN (1999) 5 NWLR (Pt. 603) 337, Uchendu Vs Ogboni (1999) 5 NWLR (PT. 603) 337 and Okolonwamu v. Okolonwamu (2019) Vol. 292 LRCN P. 69 AT 89 and P. 89 Z-EE; that this Honourable Court ordinarily has no jurisdiction to entertain and determine Appeals predicated on grounds of facts or mixed law and facts unless leave of the Court below or this Court is sought and obtained particularly where the Appeal is on an interlocutory and not final decision as in this case.
​There is also no doubt as further submitted by the learned Counsel to the Respondent that the consequence of failure to seek leave of the Court of trial from where the Appeal is on questions of facts, mixed law and facts emanated in such circumstances as highlighted above to the Appellate Court; renders the Appeal incompetent.

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See Okolonwamu v. Okolonwamu (2019) 9 NWLR (Pt. 1676 1 SC. See also Garuba V. Omokhodion (2011) 15 NWLR (Pt. 1269) 145; Irhabor V. Ogaiamien (1999) 8 NWLR (Pt. 616) 517 Uchendu v. Ogboni (1999) NWLR (Pt. 603) 337, Akpasubi v. Umweni (1982) 1 1SC 132, Ukpong v. Comm., for Finance and Econ. Dev. (2006) 19 NWLR (Pt. 1013) 187; ably cited by the Learned Counsel for the Respondent.
Before determining whether the Four Grounds of Appeal raised by the Appellant herein are of facts, mixed law and facts for which leave has not been sought before filing them, it is necessary at this juncture to resort to the principles guiding the classification of Grounds of Appeal as laid down by the Apex Court on decided judicial authorities which are as follows:
(1) Where the Court is being invited to investigate the existence or otherwise of certain facts upon which the award of damages to the Respondent was based, such a ground of appeal is a ground of mixed law and fact.
(2) A ground of appeal which challenges the findings of fact made by the trial Court or involves issues of law and fact is a ground of mixed law and fact.
(3) Where the evaluation of facts established by the

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trial Court before the law in respect thereof is applied is under attack or questioned, the ground of appeal is one of mixed law and fact.
(4) Where evaluation of evidence tendered at the trial is exclusively questioned, it is a ground of fact simpliciter.
(5) Where it is alleged that the trial Court or an appellate Court misunderstood the law or misapplied the law to the admitted or proved facts, such a ground of appeal is one of law simpliciter;
(6) It is a ground of law if the adjudicating tribunal or Court took into account some wrong criteria in reaching its conclusion or applied some wrong standard of proof or it gave wrong weight to one or more of the relevant factors although it applied the correct criteria.
(7) Several issues that can be raised on legal interpretation of deeds, documents, term of art, words or phrases, and inference drawn therefrom are grounds of law
(8) It is a ground of law where the ground deals merely with a matter of inference even if it is limited to admitted or proved and accepted facts;
(9) Where it is alleged that there was no evidence or no admissible evidence upon which a finding or decision

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was based, this is regarded as a ground of law. See Okolonwamu v. Okolonwamu (2019) 9 NWLR (Pt. 1676 1 SC. See also Dairo V. Union Bank (2007) 16 NWLR (Pt. 1059) 99; Board of Customs & Excise v. Baran (1982) 13 NSCC 358, Metal Construction (W.A.) Ltd v. Migliore (1990) 1 NWLR (Pt. 126) 299, Garuba v. Omokhodion (Supra) at 145. See also “Encyclopaedia of Nigerian Case Law Principles and Authorities (Supplementary materials)” by Basil Momodu Esq. at page 61.
​Upon a careful perusal of the Four Grounds of Appeal filed by the Appellant, I am in total agreement with the learned Counsel to the Appellant that the Grounds are entirely on questions of law alone as envisaged by Section 241(1) (b) of the Constitution of the Federal Republic of Nigeria 1999 (As Amended) as those grounds question the misunderstanding and misapplication of the law to proved and established facts or that the learned trial Judge took into account some wrong criteria in reaching his conclusion or applied some wrong standard of proof or gave wrong weight of the relevant factors in the dismissal of the Application or that he drew wrong inferences from proved facts in the

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Application in erroneously dismissing the Appellant’s Application in the lower Court.
For instance, as rightly observed by the learned Counsel to the Appellant, Ground One questions by its particulars, the non consideration of the first prayer for extension of time within which to apply to set aside the Default Judgment pursuant to Order 44 Rule 4 of the Benue State High Court (Civil Procedure) Rules, 2007 and the reasons for the delay as proffered by the Appellant/Applicant in paragraph 4(g) of the Supporting Affidavit to the Application. There is also the grouse in Particular II of the Ground that the failure to consider that prayer occasioned the Appellant miscarriage of justice as the learned trial Judge had already made up his mind to dismiss the Application for being incompetent which indirectly raises the issue of bias and want of fair hearing.
On Ground Two which questions the consideration and dismissal of the Appellant’s Application on the Two Issues formulated by the learned Counsel to the Respondent in his Written Address which Issues were allegedly premised on Orders 10 (On default of Appearance) and 20 (On default of

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Pleadings) of the Benue State High Court (Civil Procedure) Rules 2007 which are inapplicable to the facts of the case as the Applicant’s Application to set aside the Default Judgment was predicated on the provisions of Order 30 Rule 4 of the said Rules and Order 44, Rule 4 which give the lower Court unfettered discretion to set aside the Judgment obtained in Default of Appearance of a Defendant when

the Suit is called up for hearing.
The particulars of the Ground of Appeal are clear that they question the misapplication or interpretation of the Rules governing applications of the nature that was filed by the Appellant in the lower Court which misapplication or interpretation allegedly occasioned substantial miscarriage of justice against the Appellant. I agree therefore as submitted by the learned Counsel to the Appellant that Ground Two is a complaint that the lower Court improperly considered and refused the Appellant’s Application under the wrong Rules of Court and therefore Ground Two is simpliciter a Ground of law which can be raised without leave of the Court below or this Honourable Court.
In respect of Ground Four which complains

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that the learned trial Judge erred in law when he held in his Ruling that the Defendant/Applicant/Company had failed to proffer good, cogent, credible and compelling reasons for seeking all the reliefs set out in the motion paper which inter alia prayed for the setting aside of the judgment of the Court and permitting the Company to defend the Suit on the merits; the particulars are also clear that the Appellant alleges that the Grounds for the Reliefs sought as set out in paragraphs 3 and 4 of the Supporting Affidavit were not challenged by the Plaintiff/Respondent in his Counter Affidavit. See Particular (i) thereof. In Particular (ii) the Appellant questions the reasons adduced for dismissing the Applicant’s Application in view of the explanations offered by the Appellant and his Counsel for being absent on the date the case was heard and Judgment delivered which conduct or reasons so adduced in arriving at the conclusion by the Court below in dismissing the Application; as per particular (iii) occasioned the Applicant/Appellant miscarriage of justice.
​From the foregoing, it is my humble view that Ground Four (4) of the Grounds of Appeal just

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like Grounds 1 and 2 and their particulars, reveal on a careful perusal that it is not a Ground of mixed Law and fact. With the greatest respect therefore the authorities of Okolonwamu V. Okolonwamu (supra) at p. 91 A-JJ, Dankofa v. F.R.N. (2019) Col. 290 LRCN P. 98 at P. 120 P-JJ (supra) at p. 91 A-JJ, Base Nigeria Limited v Faith Enterprises Ltd. (2010) 1 SCNJ 223 at 247, Okorie v. Udom (1960) SCNLR 360; Ogbechie v. Onochie No.1) (1986)2 NWLR (Pt.23), Osanyanbi & Ors v. Lasisi & Ors; were cited out of context. This is because in Dankofa v. F.R.N. (2019) Col. 290 LRCN P. 98 at P. 120 P-JJ; per Odili JSC which incidentally has been relied upon by both learned Counsel, the learned and noble Law Lord of the Apex Court had unequivocally set out the underlying principles ingrained in all the Grounds of Appeal filed by the Appellant as earlier highlighted in this Judgment that:
“A Ground of law arises where a Ground of Appeal indicates that the trial Court or, an appellate Court misunderstood the law or misapplied the relevant law or principles of law to the proved or admitted facts in a particular case. (Okorie v. Udom (1960) SCNLR 360

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Ogbechie v Onochie No. 1) (1986) 2 NWLR (Pt. 23) 484 referred).”
See also Abalaka & Anor v. President of the FRN & Ors (2011) LPELR-19741 (ca) (PP. 16-19, Para C) and Abdul v. CPC & Ors. (2013) LPELR – 20597 (sc) (pp.26-29 and Achonu V. Okuwobi (2017) LPELR 42102 (SC) (pp. 7-8, Para. D-F); ably cited by the learned Counsel to the Appellant.
In the instant case, the learned Counsel to the Appellant has rightly asserted that Ground 4 is a complaint against the finding by the lower Court that the facts furnished by the Appellant in failing to file relevant papers in defence of the Suit, which facts were not in dispute were not good, cogent, credible and compelling enough to warrant the grant of the Reliefs sought by the Appellant in her motion papers and therefore, Ground 4 with due respect to the learned Counsel to the Respondent is a ground of law.

​Finally, on Ground 3 (Three) which complains that the learned Trial Judge in his Ruling that the Defendant/Applicant/Appellant’s Memorandum of Appearance filed in the lower Court on the 17/4/18 was filed out of time and not regularized and that in the strict sense, the

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Defendant’s Application to set aside the Judgment of the Court and other Reliefs was therefore not properly before the Court when the filing of the said Memorandum was not an issue at the trial from the date it was filed till the date of delivery of Judgment and when both Plaintiff and the Court below had taken fresh and further steps in the proceedings thereby waiving the irregularity and when by the provisions of Order 9, Rule 5 of the High Court Rules of Benue State, 2007; the irregularity could be cured by the Court ordering the Defendant to pay the sum of N200 per each day of default.

I am also in tandem with the learned Counsel to the Appellant that the complaint in the above Ground is about the taking into consideration of irrelevant fact (the late filing of the Memorandum of Appearance) on which issue was not joined by the parties, in the determination and dismissal of the Appellant’s Application and that, this Ground is in line with the laid down Principle 5 as highlighted above on the categorization of the Grounds of Appeal.

​Still on Ground Three and the assertion by the learned Counsel for the Respondent that the said ground

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has no particulars in order to construe the error of law as embedded therein in that a Ground of Appeal must be construed together with the particulars in order to decipher the complaint of the Appellant; there is no doubt that in Okolonwamu v. Okolonwamu (Supra) at page 88, the noble and erudite Jurist of the Apex Court, Augie JSC had held that:
“the Appellant must also itemize the error or misdirection in the particulars to the Ground(s) of Appeal, such particulars should not be independent complaint from the Grounds of Appeal but ancillary to it. See Globe Fishing Ind. Ltd. V. Coker (1990) 7 NWLR (Pt. 162) 265 and Nyako v. Adamawa State House of Assembly & Ors (2016) LPELR. 41822 (SC).”
However, in spite of the above dictum of His Lordship of the Apex Court, on the need to itemize the errors or misdirection in the particulars of Grounds of Appeal, the learned Counsel for the Appellant has rightly also cited the Supreme Court case of Professor E.A. Abe v. UNILORIN (2013) LPELR – 20643 (SC) page 15 para. C-F per M.D. Muhammad, JSC where in his lead Judgment which was concurred by M.S. Muntaka-Coomassie JSC (now of blessed

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memory); N.S. Ngwuta; O. Ariwoola and C.B. Ogunbiyi; JJSC; he reasoned that:
“Learned Counsel must be reminded that Grounds of Appeal may stand on their own once they represent an Appellant’s complaint against the decision he is not satisfied with and in respect of which grouse he seeks the Appellate Court’s intervention. Lack or defective particulars in a Ground of Appeal would not necessarily render the ground itself incompetent. See Prince (Dr.) B.A. Onafowokan & 2 Ors v. Wema Bank Plc & 2 Ors. (2011) vol. 45 NSCQLR 181 & Best (Nig.) Ltd v. Black Wood Hodge (Nig.) Ltd & 2 Ors, (2011) 45 NSCQLR Vol. 45 p.849.”
Again, upon a careful perusal of Ground 3 of the Grounds of Appeal, I am satisfied that it has sufficient particulars embedded therein to enable the Appellant and even the Court to decipher the complaint of the Appellant on the grouse that she seeks this Court’s intervention and of which the Respondent can also respond to enable the Court determine one way or the other whether the Appeal is meritorious or not. Besides, the Respondent has not disclosed to this Court the injustice or prejudice he

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has suffered or stands to suffer if the Appeal is heard on Ground 3 as raised by the Appellant.

On the whole, Ground 5 of the Preliminary Objection is also non sequitur as the Issues raised from the 4 Grounds of Appeal are competent and contrary to the contention of the learned Counsel to the Respondent, on the case of Mobil Prod. Nig. Unlimited v. Johnson (2019) vol. 288 LRCN p. 94 at 126 per Okoro JSC and the authorities relied upon in the above cited case, are all inapplicable to the facts and circumstances of this case.

I am also of the candid view that contrary to the submission of the learned Counsel to the Respondent in paragraph 4:30 pages 12 and 13 of the Respondent’s Brief of Argument that the Grounds of Appeal do not challenge the findings of facts of the lower Court particularly at page 133 of the Records/Ruling, all the Grounds of Appeal directly challenge the ratio decendi of the Ruling of the Lower Court and the dictum of Rhodes-Vivour, JSC; where he held in WASSAH & ORS V. KARA & ORS (2015) VOL. 239 LRCN P. 59 AF thus:
“It is long settled that a Ground of Appeal must arise or relate to the Judgment against

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which the appeal is filed. This is to say the Ground of Appeal should be a direct challenge to the decision of the lower Court. Where this is not the case, the Grounds of Appeal should be struck out. See Kolawole V. Alberto (1989) 1 NWLR (Pt. 98) p. 382; Alubankudi v. A-G Federation (2007) 17 NWLR (Pt. 796) p. 360;”
is also cited out of context and therefore not applicable to the facts and circumstances of this case.

On the whole, the Preliminary Objection of the Learned Counsel to the Respondent is unmeritorious and same is accordingly dismissed.

RESOLUTION OF THE SUBSTANTIVE ISSUES
Upon a calm and dispassionate consideration of the Issues distilled for determination by the respective learned Counsel to the Parties, I am of the considered view that from the facts on Record and the submissions of learned Counsel in their respective Briefs of Argument, the Two (2) Issues nominated by the learned Counsel to the Appellants are capable of determining this Appeal one way or the other. Accordingly, the Sole Issue distilled by the learned Counsel to the Respondent, shall be subsumed within the Appellants’ Issues and I hereby adopt

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the Appellants’ Issues in the determination of this Appeal.

RESOLUTION OF ISSUE NUMBER 1 (ONE):
“(a) Whether or not the Court below was right in totally failing to consider and rule upon the Appellant’s prayer on the Motion papers for extension of time within which to apply for the setting aside of the Court’s Judgment of 28th June, 2018 and if wrong, whether or not the Court still had the requisite jurisdiction to consider and determine as it did the further prayers for the setting aside of the said Judgment and other consequential Reliefs (From Ground 1) and
(b) Whether or not the learned Trial Judge erred in Law and/or failed to exercise his judicial discretion correctly when he dismissed the Appellant’s Application inter alia praying the Court to set aside its Judgment dated 28th June, 2018 having regards to all the facts and circumstances of this case. (From Grounds 2, 3 and 4).”

In the resolution of this first Issue it is only pertinent and apt to refer to the extant Rules of the Benue State High Court (Civil Procedure) Rules, 2007 upon which the Application for the extension of time to apply

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for the setting aside the Lower Court’s Default Judgment delivered on 28/6/2018 and other prayers which were for an Order setting aside the said Judgment and other processes that may have been issued by the Court pursuant thereto and allowing the Defendant/Applicant to defend the substantive suit on the merit; An Order granting the Defendant Applicant extension of time for Applicant to file its Statement of Defence and other relevant papers in defence of the substantive suit, the time for doing so as prescribed by the rules of the Court having expired; An Order deeming the Statement of Defence, List of Documents/Witnesses and Statement on Oath of its witness which are exhibited to the supporting Affidavit and collectively marked as Exhibit A as duly filed and served, the necessary filing fees having been paid in respect thereof and for such further Order(s) as the Court may deem fit to make in the circumstances of the case.
That Rules in question as can be gleaned from the Motion paper at page 66 of the Record of Appeal are Orders 30 Rule 4 (2), 44 Rule 4 of the Benue State High Court (Civil Procedure) Rules, 2007. The above Orders provide as

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follows:
Order 30 Rule 4(1)-(3) as cited above provides thus:
“4(1). when a cause is struck out under Rule 1 of this Order either party may apply that the cause be replaced on the cause list on such terms as the judge may deem fit.
2. Any judgment obtained where any party does not appear at the trial may be set aside upon such terms as the judge may deem fit.
3. An application to relist a cause struck out or to set aside a judgment shall be made within six days after the Order or Judgment or such other larger period as the judge may allow.” Underlining mine for emphasis.
Before proceeding with the reproduction of Order 44 Rule 4 of the Rules, it is necessary to set out the provisions of Order 30 Rules 1-3 which are to the effect that:
1. “When a cause on the weekly cause list has been called for hearing and neither party appears, the judge shall unless he sees good reason to the contrary, strike the cause out.
2. When a cause is called for hearing, if the Plaintiff appears and the Defendant does not appear, the Plaintiff may prove his claim, so far the burden of proof lies upon him.
3. When a cause is

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called for hearing, if the Defendant appears and the Plaintiff does not appear, the Defendant, if he has no counter-claim shall be entitled judgment dismissing the action, but if he has a counter-claim, then he may prove such counter-claim, so as the burden of proof lies upon him.”
As for Order 44 Rule 4:-
“4. The judge may often as he deems fit, and either before or after the expiration of the time appointed by these Rules or by any judgment or Order of the Court, extend or adjourn the time for doing any act or taking any proceedings:
Provided that any party who defaults in performing an act within the time authorised by the Judge or under these Rules, shall pay to the Court an additional fee of N200.00 (Two Hundred Naira) for each day of such default at the time of compliance.” Underlining mine.
In the resolution of Issue No. 1 which questions whether the Court below was right in totally failing to consider and rule upon the Appellant’s prayer (a) for the extension of time to apply for the setting of the Court Ruling delivered on the 26th day of June, 2018, the relevant Rules as rightly cited by the learned Counsel

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to the Appellant are Order 30 Rule 4 (2) and (3) which empowers a trial Court to set aside any Judgment obtained in default of appearance of any of the parties at the trial upon such terms as the Court may deem fit and sets the dateline within which to apply for the relisting of a suit or setting aside a Judgment so obtained in the absence of the party. From the wordings of Rule 4(3) of Order 30, the Court may extend the time within which to apply for the setting aside of such a Judgment from the 6 days stipulated in the said Rule 4 (3) of Order 30 of the High Court (Civil Procedure) Rules, 2007.
The above Rules read together with Order 44 Rule 4 imbues the Court below with the unfettered discretion to extend time within which a party may relist a suit struck out or set aside a Judgment entered against a party in default of appearance and by the proviso to Order 44 Rule 4, a party who like the Appellant herein defaults in bringing an Application to set aside the Default Judgment entered against him within the period stipulated by the Rules, shall be liable to pay N200.00 (Two Hundred Naira) penalty for each day of such default at the time of compliance

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with the Rules.
​From the above provisions therefore, the learned Counsel to the Respondent was on very sound pedestal when he argued in Paragraph 4:40 of the Respondent’s Brief that the prayers contained in the Appellant’s Application called for the exercise of the discretionary powers of the Court below and it was the duty of the Appellant to satisfy the Court that he had met the requirements or criteria for the exercise of the undoubted discretion of the Learned Trial Judge to grant or refuse the application to set aside the Default Judgment. Furthermore, and as was rightly submitted too, this Honourable Court will not ordinarily interfere with the exercise of the discretionary powers of the lower Court unless such exercise was perverse in the sense that it was not judicially and judiciously exercised and thereby occasioned the Appellant a miscarriage of Justice. Again, this Honourable Court as was ably submitted by the learned Counsel to the Respondent will not set aside the exercise of the learned trial Judge’s discretion to grant the prayers for the setting aside of the Default Judgment because we have a different opinion from that

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of the learned trial Judge.
On the part of the learned Counsel to the Appellant, he has conceded that in the instant case the judgment was delivered on 28/6/2018 and that the Application to set aside ought to have been filed latest by 4/7/2018, but that he filed the Appellant’s Application on the 9th of July, 2018 five days later than the six days stipulated by the Rules which warranted his prayer (a) for extension of time within which to apply for the setting aside of the Default Judgment.
Now as I said elsewhere, the above provisions of Order 30 Rules 4 (2) and (3) and Order 44 Rule 4 upon which the Application culminating in this Appeal was predicated are in pari materia with provisions of other State High Courts’ (Civil Procedure) Rules of the Federation of Nigeria which have been the subject of a plethora of decisions by the Supreme Court and indeed this Court as well as commentaries by Legal Pundits in Judicial Texts. Thus, as was held in Alapa vs. Sanni & Ors. (1967) NMLR 397 which I re-echoed in Hope Democratic Party vs. Obi & Ors. (2011) LPELR-9095 (CA) pp.29-30 paragraph A; the principle is trite that unless and until the

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Court has pronounced a Judgment upon the merits or by consent, it has the inherent powers to set aside its Judgment where there has been a fundamental defect in the proceedings such as where the Court lacked the jurisdiction to entertain the Suit just as it is provided above in the Rules cited.
In the instant case, the same power has been conferred on the trial Court by Rule 4 (2) and (3) of Order 30 and Order 44 Rule 4 of the Benue State High Court (Civil Procedure) Rules 2007; to set aside the Default Judgment suo motu in Chambers or upon the application of the Applicant herein ex-debito justiciae as she had done at the trial Court. See Skenconsult (Nig.) Ltd. vs. Ukey (1981) 1 SC 6; A.C.B. Plc vs. Losada (Nig.) Ltd. (1995) 7; Ezeokafor vs. Ezeilo (1999) 6 SCNJ 209 at 225; Ugwu & Ors. vs. Aba & Ors. (supra); U.T.C. vs. Pamotei (1989) 2 NWLR (Pt.103) 244.
The rationale behind this stance of the Courts is that in normal trials of actions where evidence is given by the parties and their Legal representatives proffer arguments both on the issues of facts and law as joined by them culminating in a Judgment being rendered by a Trial Court, such a

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Judgment is final and the Court is not seised of any powers ordinarily to set aside its Judgment since the Trial Judge has become functus officio. The only remedy opened to a party aggrieved with such a Judgment is to appeal against it. It has also been held that a Judgment in default of defence like that which is the subject of this Appeal, is not on the merits same having been obtained only due to the failure of the Defendant/Appellant to abide by some procedural Rules. See Alapa vs. Sanni & Ors. (supra); Oppenheimen & Co. vs. Mohammed Ilaneef (1922) 1 A.C. 482.
Notwithstanding the principles as enunciated/enumerated above, the learned Counsel to the Appellant was on track when he relied the case of Aina v. Abiodun (2005) 10 NWLR (Part 933) @ 375 cited inIsong V. Umoren (2010) 2 NWLR 49 AT 58 para. 32, 59 para. 38; and 60 paras. 41-42; where Orji-Abadua, JCA posited that:
“It is trite law that an application for enlargement of time within which to apply to set aside judgment obtained in default of appearance, must be considered on its merit and a specific order of extension of time must be made by the Court in favour of the

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Applicant, before the application to set aside the default judgment would be considered. The application for extension of time and for setting aside the judgment must be considered separately.”
His Lordship on a perusal of the Record of Appeal in that case discovered that the learned trial Judge did not specifically grant the Appellant an extension of time to apply before proceeding to consider the second prayer for the setting aside of the Default Judgment and dismissing same. Accordingly, she held that the Order refusing or dismissing the prayer for setting aside the default Judgment delivered on 20/3/2000 was incompetent because the Order was made pursuant to an application made outside the prescribed six days period without the Court making a specific Order extending time within which to apply for setting aside the said Judgment.
​In the light of the above, His Lordship expressed the view that since the Appellant had a prayer for extension of time within which to apply to have the Default Judgment set aside; it was therefore wrong for the Learned trial Judge to have simply remarked that the Applicant ought to have brought his Application

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within six days of the delivery of Judgment without enlarging the time or allowing the longer period sought for by the Appellant. He therefore chastised the learned trial Judge for not considering the prayer nor did he grant it but rather proceeded to consider the prayer for an order setting aside the Default Judgment and the principles stated in numerous cases for setting aside a Default Judgment. Finally, His Lordship relying on the authority of Aina v. Abiodun (Supra), declared that such a consideration for an Order setting aside the Default Judgment without first considering and ruling on the prayer for extension of time and granting the same was done without jurisdiction.
Following the above decision of my Learned Brother which I adopt hook, line and sinker; I have read through the entire Ruling of the learned Trial Judge and there is no where in the entire Record of Appeal did he even make any side comment about prayer (a) of the Appellant/Applicant’s Application for extension of time within which to apply for the setting aside of the Default Judgment rather His Lordship went on to invoke Order 10 Rule 12 and Order 20 Rule 12 which provide

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according to him that any Application to set aside or vary any Judgment shall be made within six days and that the Applicant’s (Appellant) herein made her Application clearly outside the stipulated period of time, He added that under Order 20 Rule 12, where the Defendant has no defence, the grounds of bringing the application to set aside are limited to three namely fraud: non-service and lack of jurisdiction but that the Applicant’s Application was not based on any of those three grounds. He recalled that the Applicant had opportunity to file her defence on the 17th day of April, 2018 when she wrote to Court through her Counsel for adjournment. The learned trial Judge also recalled that neither the Appellant nor her Counsel appeared in Court on the 11th day of June, 2018, the date to which the case was adjourned at their instance for hearing nor did they file their defence even though they were served with the originating processes in February, 2018. The learned trial Judge therefore ruled that he had granted the Appellant fair hearing.
On the reliance placed by the Appellant on paras. 3 and 4 of the Supporting Affidavit, the learned trial

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Judge posited that he had perused those paragraphs particularly 3 (f) and (g) and 4(a) (g) and (i) thereof and found that they are not cogent and compelling enough to warrant his indulgence to grant the reliefs sought as no reason was adduced why the Statement of Defence was not filed up till 11th day of June, 2017 when the Respondent opened and closed his case even though the Applicant was indulged by the Court from the 17th day of April to 11th day of June, 2018.
In the final analysis he insisted that the conduct of the Applicant throughout the proceedings from the facts presented above is not worthy of sympathetic consideration since the Applicant even though served with the Originating Processes sometime in February 2018, he decided to file his Memorandum of Appearance on the day the matter was slated for hearing which was out of time and the said Memorandum of Appearance had not been regularised and for this reason strictly speaking, the Applicant deserved no indulgence as she was not properly before the Court.
​From the foregoing observations of the learned Trial Judge and the reasons advanced for dismissing the Application of the

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Appellant/Applicant, there is no doubt that he did not consider at all the first prayer for extension of time and accordingly he lacked the jurisdiction to plunge into the dismissal of the Appellant’s prayer for setting aside the Default Judgment. For this reason alone, and in line with the authority of Aina & Abiodun (supra), cited per Orji-Abadua, JCA in Isong v. Umoren (Supra), this Appeal is meritorious and ought to succeed. Issue No. 1 is therefore resolved in favour of the Appellant.

RESOLUTION OF ISSUE NO. 2
Whether or not the learned Trial Judge erred in Law and/or failed to exercise his judicial discretion correctly when he dismissed the Appellant’s Application inter alia praying the Court to set aside its Judgment dated 28th June, 2018 having regards to all the facts and circumstances of this case. (From Grounds 2, 3 and 4).”
In the resolution of second issue, I have taken into consideration the provisions of Order 30 Rule 4 (2) and (3) as well as Order 44 Rule 4 upon which the Appellant’s Application was predicated and in view of the fact that the exercise of the Court discretionary jurisdiction to grant

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and refuse an Application of this nature as has been rightly submitted by the learned Counsel to the Respondent, is dependent on the ability and bounding duty of the Appellant to satisfy the criteria established in the celebrated case of Williams v. Hope Rising Voluntary Funds (1982) 1-2 SC 145 which has been followed in cases like SPDC Nig. Limited v. Udi (1996) 6 NWLR (Pt. 455) 483; Din v. A-G Federation (1988) 1 NWLR (Pt. 17) 471, F.B.N v. Akpan (2012) 2 NWLR p.138 and Lasaco Ass. Plc v. Deserve Savings & Loans Limited (2012) 2 NWLR (Pt. 1283) p. 95 (CA). See also Doherty vs. Doherty (1964) NMLR 144 at 145;
In the light of the above, I shall seek umbrage in page 456 of the celebrated Text “CIVIL PROCEDURE IN NIGERIA, SECOND EDITION” where the Erudite Author Fidelis Nwadialo, SAN (of blessed memory); observed that there is need for the Applicant in an Application to set aside a Default Judgment, to demonstrate in his Affidavit that he has a defence on the merits which is a pre-requisite for such an Application to have any chance of success. S. Idugboe & Co. Ltd. vs. Macaulay (1976) 2 FRN 123, Ugolo & Ugolo (2006)

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5 NWLR (Pt. 927) 163, Lasaco Ass. Plc v. Deserve Savings & Loans Limited (2012) 2 NWLR (Pt. 1283) p. 95 (CA) refer. Further more on the authorities of Evans vs. Bartlam (1937) A.C. 473 at 480; there would be no justifiable reason to set aside the Judgment, if there is no tenable defence to the Plaintiffs’ Claim. Also the reason for the default in serving the Statement of Defence should be stated and the Application should be made promptly and as soon as the Order for Judgment has been given.
In the words of the learned Author who cited the Locus Classicus on Applications of this nature and criteria for their grant:-
“The relevant considerations upon which the Court bases its decision as to whether or not to grant the Application and thus set aside a Default Judgment are set out in Ugwu vs. Aba and Others (1961) All NLR 438 and were affirmed by the Supreme Court in N.A. Williams and Others vs. Hope Rising Voluntary Funds Society (1982) 1-2 SC 145; See also Mohammed vs. Hussein (1998) 12 SCNJ 136 at 153-154 as follows:-
(i) The reason for the default;
(ii) Whether there has been undue delay in making the application so as to

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prejudice the Respondent;
(iii) Whether the Respondent would be prejudiced or embarrassed upon an order for rehearing being made so as to render it inequitable to permit the case to be re-opened; and
(iv) Whether the Applicant’s conduct throughout the proceedings, from service of the Writ upon him to the date of Judgment, has been such as to make the application worthy of sympathetic consideration.”
The learned Author further observed that embarrassment would ordinarily result where the rights of third parties have intervened as was decided in the English case of Harley vs. Sampson (1914) 30 TLR 450.

Now, going by the principles above enunciated, we can only determine whether the Appellants’ Motion deserved to succeed, from the facts deposed to in the Applicant/Appellant’s Supporting Affidavit as well as the documentary Exhibits annexed thereto.

It would be recalled that Daniel Yenagoro, the Fleet Manager in the Transport Department of the Defendant/Applicant Company at its Obajana Plant in Kogi State in the 5 paragraph Affidavit in support of the Application to set aside the Default Judgment, deposed to the

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following facts In Paragraphs 3 (a-j) and 4 (a-j) thereof;
“3. That I have been informed by J.S.T. Anchaver Esq. of Counsel to the Applicant Company in his Chambers in Gboko on 6/7/2028 at about 6.00 pm of the following facts and I verily believe same to be true, to wit:-
(a) That in an earlier Suit No. OHC/18/2017 filed by the Plaintiff before this Honourable Court against Dangote Cement Company Ltd, he was retained by the latter to defend the suit and he did so until 21/9/2017 when the suit was struck out at the instance of the plaintiff.
(b) That when the present Suit was filed in November, 2017 and subsequently served on the defendant sometime in February, 2018, he was again retained to defend the suit and he duly entered appearance for the company on 17/4/2018.
(c) That on the latter date he requested for an adjournment to enable him get full instructions from the company to enable him file relevant papers in Court for the defence of the suit and the matter was thereafter adjourned to 11/6/2018.
(d) That he subsequently got in touch with several officers of the company situate in both its Lagos as well as Obajana offices

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including my humble self so that they will avail him with the facts of the case.
(e) That he also requested that monies should be advanced to him to cover his travelling expenses from his station in Gboko to Otukpo in order to be putting up appearances in Court including on 11/6/2018.
(f) That the company was unable to give him full instructions about the facts of the case because the whereabouts of the company’s driver that was involved in the accident could not be ascertained as he had abandoned his employment with the company since 2016 and all efforts to locate him went to no avail.
(g) That the company due to administrative bottlenecks in its accounts department were unable to remit funds to him to cover his travelling expenses resulting in the fact that on 11/6/2018 when the matter came up for hearing, the company was not represented in Court and the matter proceeded to hearing in the absence of both the company and its counsel.
(h) That later on the same 11/6/2018, he contacted the Plaintiff Counsel on the phone to enquire about what had earlier transpired in Court but the plaintiff’s counsel did not avail him with any

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information stating that he will call him back later which he never did.
(i) That he subsequently phoned Mr. Abraham Okpeh for the same purpose only to be told that he had been transferred to Okpogh High Court and therefore could not avail him with the required information; and
(j) That it was only on 2/7/2018 on his way to Enugu to put up appearance before the Court of Appeal the following day that he passed through the Registry of the Court in Otukpo to enquire about the status of the suit only to be informed by the new Registrar of the Court that the matter was heard by the Court on 11/6/2018 and adjourned for judgment which was delivered on 28/6/2018 in which damages in excess of N20 million was awarded in favour of the Plaintiff.
4(a) That his inability to be in Court on 11/6/2018 was not deliberate but was due to his inability to personally raise the required funds to cover his travelling expenses.
b) That the defendant company has now fully briefed him about the facts of the case and advanced the requested travelling funds and its statement of defence, statement on oath of its witness and the list of documents to be relied upon at

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the trial/list of witnesses have now been prepared and are exhibited hereto and collectively marked as “ANNEXTURE ‘A”.
c) That appropriate filing fees has been paid for the said papers.
d) That unless the judgment of the Court delivered on 28/6/2018 is set aside the defendant cannot defend the action and will also suffer irreparable damage by being forced to pay the awarded judgment sum.
e) That a certified true copy of the judgment of the Court is not exhibited to this application due to time constraints but will be established to a further affidavit that will be filed before the hearing of this application.
f) That the defendant has a good defence to the claims of the Plaintiff against it.
g) That he was unable to prepare and file this application within the 6 day period prescribed by the Rules of Court for doing so because of the fact that he only came back from his trip to Enugu at night on 3/7/2018 and it was impossible for him to do so in the just one day that was left.
h) That the leave of the Honourable Court is required before this application and the reliefs contained therein can be properly filed and

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moved as the time prescribed for applying to set aside the judgment of the Court as well as filing the relevant papers in defence of the suit has already expired.
i) That the delay in filing papers in defence of the suit is as a result of the distance between his Chambers and the relevant officers of the defendant company who are resident in Lagos and Obajana in Kogi State and the fact of the long time that was expended in trying to trace the driver of the defendant that was involved in the accident the subject matter of the claims of the Plaintiff before the Court.
j) That this application is being made in the interest of justice to enable the Court determine the matter on the merits and the plaintiff/Respondent will not be unfairly prejudiced if it is granted.

Going by the averments of the Appellants in paragraphs 3(a) – (j) and 4(a) – (g), and particularly paragraphs 3(f) and (g) as well as 4(a), (g), (i) and (j) of the Affidavit in support of the Application, I am in total agreement with the Learned Counsel to the Appellant that contrary to the contentions of the learned Counsel to the Respondent and indeed the findings of the

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learned trial Judge in pages 132 – 133 of the Records/20-21 of his Ruling, the Appellant had advanced cogent, convincing and compelling reasons while there was a Default or delay in appearance and in filing the Memorandum of Appearance as well as the Statement of Defence as at when due. The reasons so stated were not contradicted by the Respondent in his counter Affidavit and are therefore deemed admitted.

​As was rightly submitted by the learned Counsel to the Appellant, it was imperative for the Appellant to fund the prosecution of the case by her Counsel as Counsel has disclosed that he made efforts to contact the Appellant for the necessary funds to enable him prepare the necessary papers for the defence of the Appellant and to cover his transportation expenses from Gboko to Otukpo but because of administrative bottlenecks, it was impossible to remit such funds because of the distance of the Appellant’s offices at Lagos and Obajana. Apart from the foregoing facts, the Deponent in the Affidavit had also disclosed as was rightly submitted by the learned Counsel to the Appellant that it was imperative for the driver of the truck who was

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alleged to have negligently caused the accident that culminated in the cause of action of the Respondent in the substantive Suit (the Judgment which was the subject of the Application for setting aside and the Appeal now before us), to give the learned Counsel to the Appellant his (Driver’s) account of the incident in order for the learned Counsel to strategize and file the necessary processes for the Appellant’s defence. The Appellant has disclosed also that it took her and the lawyer a long time and expense in trying to trace the Driver that was involved in the accident who had absconded.

​On the question whether there has been an undue delay in making the application to set aside the Default Judgment so as to prejudice the Respondent, there is no doubt that the Application which ought to have been brought within six days after the Judgment, was filed on the 9th day of July, 2018 whereas it was supposed to have been filed on the 4th day of July, 2018. In other words, there was a five day delay in filing the Appellant’s Application to set aside the Default Judgment. In my humble view, five days delay is not inordinate so as to deprive

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the Appellant’s Application of the Court’s sympathetic consideration or the exercise of the learned trial Judge’s undoubted discretion in his favour more so, when the Appellant had sought in her prayer (a) of her Application, for extension of time within which to apply for the setting aside of the Default Judgment.

Again, by the provisions of Orders 30 Rule 4 (2) and (3) as well as Order 44 Rule 4, the Court below ought to have extended time subject to the payment of N200 penalty for each of the five days of default and exact punitive cost in favour of the Respondent and allow the Application to set aside so that the dispute between the parties could be resolved once and for all in the presence of the parties. I so hold because the Respondent would not be prejudiced or embarrassed upon an Order for rehearing being made, nor would such order be rendered inequitable if the case was to be reopened by the extension of time as sought by the Appellant.

On whether the Appellant/Applicant’s conduct throughout the proceedings from service of the Writ upon him to the date of judgment has been such as to make the application worthy of

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sympathetic consideration, I reiterate as I said earlier that the Appellant/Applicant had explained away the reasons for his delay in filing the Memorandum of Appearance and the Statement of Defence as at when due and from that explanation his case was worthy of sympathetic consideration. Most importantly, and on the authorities of Idugboe & Co. Ltd, vs. Macaulay (1976) 2 FRN 123 and Evans vs. Bartlam (1937) A.C. 472 at 480, there are substantial justifiable reasons to set aside the Default Judgment of the lower Court as there is tenable defence and indeed a defence on the merit to the Plaintiff’s claim as can be gleaned from the averments in paragraphs 1, 2(a) – (e), 3, 4, 5, 8, 9 of the Appellant’s Statement of Defence as contained in pages 72 – 75 of the Records; the Statement on Oath of Daniel Yenagoro as can be found at pages 76 – 79 of the Records and the documentary exhibit annexed to the Affidavit which is the Waybill from the Appellant Company in respect of the goods being transported by the Appellant’s Driver who allegedly caused the accident that led to the Respondent’s Suit for which he got Judgment in

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Default of Appearance of the Defendant/Appellant.

I agree therefore with the submissions of the learned Counsel to the Appellant in paragraphs 3.10, page 10 of the Appellant’s Brief and his conclusion on the second Issue for determination that the Appellant had satisfied all the requirements necessary for the exercise of the Court undoubted and unfettered discretion to grant the Appellant’s Application to set aside the Default Judgment. The authorities of Williams vs. Hope Rising Voluntary Funds Society (supra), Sanusi vs. Ayoola (1992) 9 NWLR (Pt. 265) 275 and Bada & Anor. Vs. Atunbi & Anor (2012) 3 NWLR (Part 1287) 354 are all on point. I hold the considered view therefore that the lower Court’s exercise of its undoubted discretion was not judiciously and judicially exercised. Accordingly, this Honourable Court can interfere in such exercise which has occasioned the Appellant gross miscarriage of justice more particularly where the learned trial Judge shut his eyes to the fundamental prayer for extension of time as sought in relief (a) of the Appellant/Applicant’s Application to set aside the Default Judgment. This

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second Issue is therefore resolved in favour of the Appellant.

In conclusion, I am of the firm view that this appeal is meritorious and hereby succeeds. The Ruling of the learned Trial Judge delivered on the 28th day of June, 2018 dismissing the Appellant’s Application for extension of time to apply for the setting aside of the Default Judgment, for an Order setting aside the Default Judgment; extension of time to file the Appellant’s Statement of Defence; and to deem the Statement of Defence as duly filed and served is hereby set aside and I grant the Appellant all the Reliefs sought in the said Application. I further order that the Substantive Suit be remitted to the Honourable, the Chief Judge of Benue State for trial denovo before another Judge of the High Court of Justice, Makurdi Division of the High Court of Justice, Benue State. Parties shall bear their respective costs.

ONYEKACHI AJA OTISI, J.C.A.: I was privileged to read in advance a copy of the lead Judgment of my Learned Brother, Ignatius Igwe Agube, JCA, in this appeal. I agree and adopt as mine the comprehensive resolution of all the issues arising for determination.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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The appeal has merit. I also allow the appeal and abide by the orders made in the lead Judgment.

JOSEPH EYO EKANEM, J.C.A.: I had the privilege of reading a copy of the lead judgment of my Learned brother, Agube, JCA. I agree with the reasoning and conclusion therein that the appeal has merit. I allow it and abide by the consequential orders made in the judgment of my learned brother.

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Appearances:

S. T. Anchaver, Esq. – for Appellant For Appellant(s)

E.O. Somson, Esq., with him, G. Abah, Esq. – for Respondent For Respondent(s)