DANGUNGU v. ALIERO (2020)

DANGUNGU v. ALIERO

(2020)LCN/14777(CA)

In The Court Of Appeal

(SOKOTO JUDICIAL DIVISION)

On Thursday, November 19, 2020

CA/S/139/2018

RATIO

JUDGMENT: PROCEDURE FOR SETTING ASIDE A DEFAULT JUDGMENT IN KEBBI STATE HIGH COURT RULES

The position of the law as ordained by Order 39 Rule 1(1) of the Kebbi State High Court (Civil Procedure) Rules 2017 (hereinafter referred to as “the Rules”) prescribes that such an application seeking the setting aside of a default judgment shall be made within six (6) days or such longer period as the Court may allow. PER OHO, J.C.A.
JUDGMENT: CRITERIA FOR GRANTING AN APPLICATION FOR SETTING ASIDE A DEFAULT JUDGMENT

See the case of ENAKHIMION vs. EDO TRANSPORT SERVICES supra, where this Court itemized the criteria for granting an application for setting aside a default judgment under Order 37 Rule 9 of the defunct Bendel State High Court (Civil Procedure) Rules, 1988 as applicable to Edo State and which is in pari materia with the Order 30 Rule 2 of the Kebbi Rules on the same subject; relying on the Supreme Court authorities of WILLIAMS vs. HOPE RISING VOLUNTARY FUNDS SOCIETY (1982) 1 – 2 SC 145 and SANUSI vs. AYOOLA (1992) 9 NWLR (PT. 265) 275 held at page 1899 of the report that:
“In order for an application to set aside a default judgment under Order 37 Rule 9 of the Defunct Bendel State High Court (Civil Procedure) Rules, 1988 as applicable to Edo State to be granted, the following criteria must be complied with: (1) The applicant must not have appeared in Court when the judgment was delivered. (2) The applicant must have applied within six days of the delivery of the judgment; or (3) The applicant must have applied for an extension of time for a longer period to make the application. These considerations are essential to the application of the above rule.”
This Court further held that extension of time to set aside a default judgment is not an incidental order that the Court can make under the omnibus prayer, but must be specifically prayed for and granted. It must therefore be noted that an application for extension of time is a condition precedent, which must be fulfilled before the Court can assume jurisdiction to entertain the application to set aside a default judgment. This is given the fact that Order 30 Rule 2 of the Kebbi State High Court (Civil Procedure) Rules 2017 is a statutory provision which an applicant must comply with if he wants to move the Court to be heard on the merit. See ENAKHIMION vs. EDO TRANSPORT SERVICES supra where this Court further held that:
“The application to set aside a default judgment must be brought within six days after the trial or within such longer period as the Court may allow for good cause shown. This application is not a mere formality. It is not just for the asking. The applicants must show good cause why he is late in bringing the application within the stipulated time and that the application has merit.”
In the instant case, the Appellant’s application at the Court below to set aside the judgment, does not contain any prayer for extension of time and no reason was given why the application was not brought within the six days prescribed by the Rules of the Court below. The seriousness of this omission and non-compliance with the Rules is amplified in ENAKHIMION’s case where the applicant made an oral application for extension of time within which to bring the application to set aside the judgment but did not proffer any reason for not filing same within the prescribed six days and this Court still held that the trial Court was wrong to have granted the extension of time to bring the application since there was no material before it to enable it exercise that discretion. PER OHO, J.C.A.
PROCEDURE: EFFECT OF NON-COMPLIANCE WITH A CONDITION PRECEDENT

It should perhaps be stated here in addition, that the non-compliance with a condition precedent is not a mere technical rule of procedure, but one that goes to the root of the case. See AGIP (NIG) LTD. & ORS vs. CHIEF C. EZENDU & ORS. (2010) 1 SC (PT. II) 98. PER OHO, J.C.A.

COURT: BASIS FOR COURT RULES

In the case of CHIEF JOHN OYEGUN vs. CHIEF FRANCIS A. NZERIBE (2010) 1 SC (PT. II) page 1, the Apex Court in analyzing the fundamental basis for the rules of Court held as follows:
“The proceedings of the Courts are guided by the Rules of that Court. They are regulations made by the Courts to assist them in their effort to determine issues or controversies before them. They provide the support in the administration of justice. They regulate matters in Court and help parties to present their cases within a procedure made for the purpose of a fair and quick trial. It is the strict compliance with the Rules that makes for quicker administration of justice. Any party seeking the discretionary power of Court must bring his case within the provisions of the Rules on which he purported to make his application. The Court shall always refuse to exercise its discretionary power when the Rules are not obeyed. The provisions of the Rules make it emphatic that prima facie they are meant to be obeyed and followed.”
See also FIRST BANK OF NIGERIA PLC vs. TSA INDUSTRIES LTD. (2010) 4 – 7 SC (PT. 1) 242. PER OHO, J.C.A.

Before Our Lordships:

Ali Abubakar Babandi Gumel Justice of the Court of Appeal

Frederick Oziakpono Oho Justice of the Court of Appeal

Abubakar Mahmud Talba Justice of the Court of Appeal

Between

ALHAJI SAIDU ABDULLAHI DANGUNGU APPELANT(S)

And

ALHAJI AWWAL ALIERO RESPONDENT(S)

FREDERICK OZIAKPONO OHO, J.C.A. (Delivering the Leading Judgment): This is an Appeal against the Ruling of the High Court of Kebbi State, Jega Judicial Division (herein referred to as: “the Court below”) in Motion No. KB/HC/JG/M.14/2018. The Court’s Ruling was delivered on the 24th day of April, 2018 wherein the learned trial judge, refused to grant the application of the Appellant seeking the setting aside of a judgment obtained in default of appearance of Counsel (for the Defendant, now Appellant) and to have the matter heard on its merit.

By a Specially Endorsed Writ of Summons dated and filed on the 15th day of July, 2015 the Respondent (then the Claimant) filed the suit, now subject of this Appeal against the Appellant (then the Defendant) at the Court below claiming the refund of the sum of Thirty-Million Naira (N30,000,000.00) only, which the Claimant described as “being the money deceitfully collected by the Defendant from the Claimant for the purchase of the landed property in Abuja which turned out to be unfounded”; and other reliefs sought. See pages 2 and 5 of the printed records of appeal.

The Appellant in his Statement of Defence filed on the 11th day of November, 2015 denied liability. See pages 11 to 16 of the printed records of appeal. At the close of pleadings, the matter proceeded to Pre-trial, which the Appellant as Defendant did not attend. After a series of adjournment extending 21 days prescribed by the Rules of the Court below on the 24-4-2016, learned Claimant’s Counsel urged the Court below to invoke its powers under Order 25 Rule 6 (1)(b) of the Rules of the Kebbi State (Civil Procedure) Rules, 2017 in entering judgment in favour of the Respondent as Claimant against the Appellant as Defendant.

The Court below granted this application. Within seven (7) days of entering judgment in favour of the Respondent, the learned Counsel for the Appellant approached the Court below vide a motion on notice pursuant to Order 26 Rule 6 (2) of the Rules of the Court below urging the Court to set aside its judgment entered in favour of the Respondent. This was graciously granted by the Court below. On the 27-4-2016, learned Appellant’s Counsel attached an undertaken to participate actively in the pre-trial conference of the Court below.

Parties filed and exchanged their pre-trial answers and a pre-trial report was issued and the matter adjourned for hearing.

Trial commenced on the 25-10-2016. The Respondent as Claimant opened his case by calling witnesses to prove his case. At the close of the case of the Respondent, the Appellant refused to open his defence. After several adjournments at the instance of the Appellant to enter his defense to no avail, on the 16-2-2017, Mr. BENJAMIN ORPIN, of Counsel for the Appellant filed an application before the Court below for an Order to stay proceedings in the matter pending the hearing and determination of the Respondent’s appeal against the Ruling of the Court below. This application was once again graciously granted on the same date and that since then, the Appellant refused and/or neglected to pursue his Appeal.

After noting that the case had been on the cause list for two (2) years at the instance of the Appellant who also does not seem to be interested in proceeding with the case the Court below in its Ruling of the 31-10-2017 at page 18 of the printed record at line ten (10), in exasperation, had this to say before proceeding to enter

judgment in favour of the Respondent;
“It is crystal clear that Defendant (Appellant) is not interested in this action.”

After the passage of some clear four (4) months from the date of the said judgment the Respondent as judgment/creditor applied for the execution of the judgment. It was at that stage that the Appellant responded by filing a motion to have the judgment set aside. This was refused by the Court hence this appeal Dissatisfied with the said Ruling on the 27th April, 2018, the Appellant lodged a Notice and Grounds of Appeal to this Court containing six (6) grounds of appeal. See pages 40 to 43 of the printed records of appeal.

ISSUES FOR DETERMINATION:
The Appellant nominated a total of four (4) issues for the determination of the Court thus:
1. Whether refusal of the application to set aside the Default Judgment on ground that the Appellant’s counsel was not diligent in prosecuting the matter amounts to a breach of fair hearing, considering that sins of counsel cannot be visited on the litigant. (Grounds one and three).
2. Whether a trial Court has the requisite powers to set aside its own Default Judgment. (Ground two).

Whether failure to file a counter affidavit challenging the contents of an affidavit amounts to admission of the facts deposed to in the affidavit and the Court is bound to accept and act upon the unchallenged and un-discredited facts (i.e. affidavit evidence). (Ground four).
4. Whether the learned trial judge properly evaluated the evidence led adduced by the Appellant in arriving at his conclusion. (Grounds five and six).

On the part of the Respondent, only two issues were nominated for the determination of the Appeal as follows;
1. Whether from the facts and circumstances of this matter, the Appellant is entitled to the reliefs sought in this appeal?
2. Whether the application (sic) appealed against is not an abuse of Court process?

A careful perusal of the issues nominated for the determination of this Appeal clearly shows that the two issues nominated by the Respondent are clearly subsumed in the four issues nominated by the Appellant for the determination of this Appeal. For the sake of comprehensiveness however, this Appeal shall be decided on the basis of the issues nominated by the Appellant.

The Appellant’s brief of argument dated 17-12-2018 and settled by A. A. FINGILLA, ESQ. was filed on the 24-12-2018 while the Respondent’s brief of argument dated 9-3-2020 and filed on the same date but deemed filed and served on the 8-6-2020 was settled by SANUSI SAMAILA, ESQ. On the 23-9-2020 at the hearing of this Appeal, learned Counsel for the parties adopted the briefs of arguments of the parties and urged the Court to resolve the Appeal in favour of their clients.

SUBMISSIONS OF COUNSEL:
ISSUE ONE:
Whether refusal of the application to set aside the Default Judgment on ground that the Appellant’s counsel was not diligent in prosecuting the matter amounts to a breach of fair hearing and sins of counsel can be visited on the litigant?

The contention of learned Appellant’s Counsel in arguing this issue is that from the contents of paragraphs 8 to 17 of the unchallenged affidavit in support of the application filed by the Appellant before the lower Court on the 26th day of February, 2018 as contained on pages 22 and 23 of the records of appeal, it is obvious that the Default Judgment was entered against the

Appellant due to the negligence of his former Counsel. He said that this can be seen clearly in the judgment of the lower Court delivered on the 31st day of October, 2017. See pages 17 and 18 of the records of appeal.

It was further argued by Counsel that the Respondent did not file a Counter Affidavit to challenge the contents of the Appellant’s affidavit deposing that the circumstances that warranted the lower Court to enter a default judgment against the Appellant were due to the negligence and blunders of his former counsel. Therefore, the lower Court ought to have accepted those facts and acted upon same. Counsel therefore submitted that the law is trite that the mistake, blunder, negligence or inadvertence of Counsel is not to be visited on the litigant. He cited the cases of HARUNA vs. MODIBBO (2004) 16 NWLR (PT. 900) 487 @ 518; EMMANUELS DANIANG vs. TEACHERS SERVICE COMMISSION (1996) 5 NWLR (PT. 446) 97; OGUNDIMU vs. KASUNMU (2006) 8 MJSC 19.

Learned Counsel also contended that the acts of the lower Court resulted in shutting down the doors of justice to the Appellant by refusing to accord him an opportunity to be heard by defending

the suit against him. He said that in order to convince the lower Court that he is really serious about the matter, the Appellant decided to change his Counsel via an application granted by the lower Court. For this reason, Counsel argued that the Appellant was not accorded a fair hearing by the lower Court to defend the suit by its refusal to set aside the Default Judgment.

The further contention of Counsel is that ‘fair hearing’ denotes a trial conducted according to all legal rules formulated to ensure that justice is done to the parties to the cause. See ARIORI & ORS vs. MURAIMO ELEMO & ORS (1983) 1 SC 13 @ 24. Counsel therefore submitted that it is only where a trial judge gives all the parties in a suit same or equal opportunity to present their respective cases, then there can be said to be fair hearing. See MPAMA vs. FBN (2013) 53 NSCQR (PT. 1) 190 @ 194 R. 7.

Learned Appellant’s Counsel in his arguments also lamented the lack of adequate representation of the Appellant at the Court below in a suit involving such humongous sum of Thirty Million Naira (N30,000,000.00) and even in the face of where the Appellant had

made an undertaking before the lower Court that he had engaged the services of another Counsel who will be diligent in defending the suit in his favour. According to Counsel for the Court below to have refused to accede to his prayers and granting him another opportunity to be heard amounted to a breach of his right to fair hearing. Counsel urged this Court to resolve this issue in favour of the Appellant.

ISSUE TWO:
Whether a trial Court has the requisite powers to set aside its own Default Judgment?

The contention of Counsel in arguing this issue is that the law is settled that a trial Court has the inherent powers to set aside its own judgment by default regard being had to the facts and circumstances of each case, which led to the default judgment. See the case of KALU MARK & ANOR vs. GABRIEL EKE (2004) LPELR-SC. 35/1997. On the consideration of whether or not to grant an application seeking to set aside a default judgment, Counsel cited the case of INDEPENDENT NATIONAL ELECTORAL COMMISSION, ANAMBRA STATE vs. OKONKWO (2008) LPELR-CA/E/233/2005 where this Court restated the factors which the trial Court should take into consideration in

either granting or refusing the application. It was also contended that from the contents of the supporting affidavit filed alongside with the application for setting aside the default judgment filed by the Appellant before the trial Court, particularly paragraphs 8 to 17 thereof, the Appellant satisfied the requirements of the law to warrant the lower Court exercising its discretion in his favour, especially when those facts and circumstances were never challenged by the Respondent who did not file a counter affidavit at the lower Court. Counsel urged this Court to resolve this issue in favour of the Appellant.

ISSUE THREE:
Whether failure to file a counter affidavit challenging the contents of an affidavit amounts to admission of the facts deposed to in the affidavit and the Court is bound to accept and act upon the unchallenged and un-discredited facts (i.e. affidavit evidence)?

The contention of learned Counsel is that there is an avalanche of decided judicial authorities that a party who fails to file a counter affidavit is by operation of law deemed to have accepted the facts deposed to in the affidavit and that such unchallenged facts

deposed to, are taken to having been established before the Court. He further contended that where the facts in an affidavit remain unchallenged and un-contradicted, the Court is bound to accept those facts as established and as facts deemed to have been admitted. Counsel cited the cases of HONDA PLACE vs. GLOBE MOTOR HOLDINGS NIGERIA LTD. (2005) 14 NWLR (PT. 945) 273 AT 293-294 and AYOOLA vs. BARUWA (1999) 11 NWLR (PT. 628) 595.

Against the backdrop of the foregoing, Counsel submitted that the Respondent did not file a counter affidavit to challenge the facts deposed to in the Appellant’s affidavit and that in law, this simply means that the Respondent is not challenging the facts deposed to therein and the law is that he is deemed to have accepted the facts therein. Counsel urged this Court to resolve this issue against the Respondent in favour of the Appellant.

ISSUE FOUR:
Whether the learned trial judge properly evaluated the evidence led adduced by the Appellant in arriving at his conclusion?

The contention of Counsel in arguing this issue, is that the Court below is duty bound to evaluate evidence and attribute probative value

to same; that the Appellate Court can only do so where the trial Court fails to and arrives at a wrong conclusion. See the case of GARAN vs. OLOMU (2013) 54 NSCQR (PT. 2) 659 AT 663. It was further contended that from the nature and character of the affidavit evidence filed by the Appellant before the lower Court, the learned trial judge failed woefully in his duty to properly evaluate the evidence adduced before him. He said that a cursory glance at the affidavit evidence shows that the Appellant successfully established the fact that he was not aware of the happenings at the lower Court and that at each and every Court sittings he used to mobilize his former counsel (Mr. B. B. Orpin) to appear before the Court to defend him. Counsel referred this Court to paragraphs 7, 8 and 17 of the supporting (unchallenged and un-contradicted) affidavit contained on page 22 and 23 of the records of appeal.

The argument of learned Counsel is that in civil actions, before the Court comes to a decision it must put the totality of the evidence on an imaginary scale; the Appellant on one side and the Respondent on the other side, to see on which side the evidence

preponderates. And that this does not depend on the number of witnesses called by each party but on the quality and probative value of the evidence. See ONOWHOSA vs. ODIUZOU (1999) 1 NWLR (PT. 586) 173 @ 183, where it was held that where a trial judge failed in his judicial duty to evaluate evidence, it gives this Court the opportunity to do so. Counsel urged this Court to resolve this issue against the Respondent and in favour of the Appellant.

RESPONDENT:
ISSUE ONE:
Whether from the facts and circumstances of this matter the Appellant is entitle to the reliefs sought in this appeal?

The submission of Counsel in arguing this issue is that the Rules of Court are meant to be obeyed by the parties and must be complied with in conducting their cases. He said that in the instant appeal, the judgment of the Court below delivered in favour of the Respondent was done in compliance with the provision of Order 30 Rule 2 as well as the provision of Rule 4 Sub-3 of the Kebbi State High Court (Civil Procedure) Rules 2017 and that a judgment given under same can only be set aside within 6 days as thus;
“An application to re-list a cause

struck out or to set aside a Judgment shall be made within 6 days after the order or judgment or such other larger period as the judge may deem fit.”

As far as Counsel is concerned, from the above cited Rule of Court, the Rules of the trial Court has provided a procedure for the setting aside of a judgment given under the provision of Order 30 of the Rules and that any application intended for the setting aside of such a judgment must be filed within six (6) days from the date of the delivery of the judgment sought to be set aside, which the Appellant herein did not comply with. Counsel also argued that the operative word used under Order 30 Rule 4 (3) of the Rules of the trial Court is “shall”; which implies mandatory condition that must be complied with. It was further argued that the Applicant failed to comply with the aforesaid provision because his application was made long after the expiration of six (6) days as provided by the Rules.

Learned Counsel in his arguments drew attention of this Court to the necessary intendment of the draftsmen of the Kebbi State High Court (Civil Procedure) Rules, 2017 which is that whenever a

judgment delivered under Order 30 of the Rules of the trial Court exceeds six (6) days it is no longer a default judgment, but rather a final judgment delivered on the merit. For this reason, Counsel contended that the judgment sought to be set aside by the Appellant is the final judgment on the merit as the application to set aside same was made after almost a hundred (100) days from the date upon which it was delivered. Consequently, Counsel said that such a judgment given on its merit can only be set aside on appeal. See the case of IBRAHIM vs. GWANDU (2015) 5 NWLR (PT.1451) at 1.

In view of the foregoing, Counsel submitted that the Appellant was clearly out of order in making the application refused by the Court below and which is subject of this appeal going by the outward manifestation and utter display of lack of seriousness by which the Appellants had approached the matter at the Court below and that the result of any such attitudes automatically deprives the Appellant of complaining of being deprived of fair hearing because he was accorded all the opportunities to defend himself but refused and/or neglected to avail himself of the opportunities.

Counsel urged this Court resolve this issue in favour of the Respondent and dismiss this Appeal.

ISSUE TWO:
Whether the application (sic) appealed against is not an abuse of Court process?

In arguing this issue, learned Counsel contended that it is an abuse of process for a party to approach a Court with an application without any law in support his process. See the case of R-BENKAY LTD vs. CADBURY PLC (2012) 49 (PT. 3) NSCQR at 1677 particularly 1704 R-D where it was held that, where there is no law supporting a process or it is premised upon frivolity or recklessness, such a process is an abuse of Court process. Learned Counsel also submitted that the Appellant’s application at the Court below, which failed and now subject of this appeal has no law backing same as there is no provision in Rules of the trial Court that empowers the Appellant to so do. As far as Counsel is concerned, the consequences of a process that amounts to an abuse of Court process, following the judgment of the apex Court in the case of DINGYADI vs. INEC (2011) 4 SCNJ P.1 is dismissal of the process for the abuse. In the light of the foregoing, Counsel urged this

Court to resolve this issue in favour of the Respondent and to dismiss this Appeal.

RESOLUTION OF APPEAL
The need to go over the brief facts of this case cannot be overemphasized. The Respondent herein, by a Specially Endorsed Writ of Summons dated and filed on the 15th day of July, 2015 claimed against the Appellant as Defendant, at the Court below, the refund of the sum of Thirty-Million Naira (N30,000,000.00) only, which the Respondent described as “being the money deceitfully collected by the Appellant from the Respondent for the purchase of landed property in Abuja and which turned out to be unfounded”. The Appellant filed a Statement of Defence on the 11th day of November, 2015 denying liability. See pages 11 to 16 of the printed records of appeal. At the close of pleadings, the matter proceeded to Pre-trial, which the Appellant failed to attend. After a series of adjournment extending 21 days prescribed by the Rules of the Court below on the 24-4-2016, learned Respondent’s Counsel urged the Court below to invoke its powers under Order 25 Rule 6 (1)(b) of the Rules of the Kebbi State (Civil Procedure) Rules, 2017 in entering

judgment in favour of the Respondent against the Appellant.

This application was granted by the Court below. Within seven (7) days of entering this judgment, the learned Counsel for the Appellant approached the Court below vide a motion on notice pursuant to Order 26 Rule 6 (2) of the Rules of the Court below urging the Court to set aside its judgment entered in favour of the Respondent. This was graciously granted by the Court below. On the 27-4-2016, learned Appellant’s Counsel attached an undertaken to participate actively in the pre-trial conference of the Court below. Parties then went ahead filed and exchanged their pre-trial answers and a pre-trial report was issued and the matter adjourned for hearing.

Trial commenced on the 25-10-2016. The Respondent opened his case by calling witnesses to prove his case. At the close of the case of the Respondent, the Appellant refused to open his defence. After several adjournments at the instance of the Appellant to enter his defense to no avail, on the 16-2-2017, Mr. BENJAMIN ORPIN, of Counsel for the Appellant filed an application before the Court below for an Order to stay proceedings in the

matter pending the hearing and determination of the Respondent’s appeal against the Ruling of the Court below. This application was once again graciously granted on the same date. Thereafter and since then, the Appellant refused and/or neglected to pursue his Appeal.

After noting that the case had been on the cause list for two (2) years at the instance of the Appellant who also does not seem to be interested in proceeding with the case the Court below in its Ruling of the 31-10-2017 at page 18 of the printed record at line ten (10), the Court below in exasperation, had this to say before proceeding to enter judgment in favour of the Respondent;
“It is crystal clear that Defendant (Appellant) is not interested in this action.”

After the passage of some clear four (4) months from the date of the said judgment, the Respondent as judgment creditor applied for the execution of the judgment. It was at that stage, precisely the 26-2-2018, that the Appellant responded by filing a motion to have the judgment set aside. This motion was of course refused by the Court below on the 24-4-2018 hence this appeal. It is perhaps, important to

begin here first by dealing with the Appellant’s motion of the said 26-2-2018 on its merit before dealing with other issues raised for the determination of the Court in this Appeal.

It is important to begin by saying that the Appellant’s motion filed at the Court below on the 26-2-2018 brought pursuant to Order 39 Rule 1(1) and (2) and Order 20 Rule 12 of the Kebbi State High Court (Civil Procedure) Rules, 2017 seeking the setting aside of the default judgment of the Court below delivered on 31-10-2017 was almost four (4) months out of time. The position of the law as ordained by Order 39 Rule 1(1) of the Kebbi State High Court (Civil Procedure) Rules 2017 (hereinafter referred to as “the Rules”) prescribes that such an application seeking the setting aside of a default judgment shall be made within six (6) days or such longer period as the Court may allow.
Unfortunately, the Appellant’s motion on notice filed on the said 26-2-2018 did not contain a prayer for extension of time as prescribed by the Kebbi State Rules aforesaid. Order 30 Rule 2 supra prescribes a period of six (6) days or such longer period as the Court may allow.

For the avoidance of any doubt, the said Order 30 Rule 2 supra is hereby reproduced thus:
Order 30 Rule 2: “An application to relist a cause struck out or to set aside a judgment shall be made within 6 days after the order or judgment or such other longer period as the Judge may allow for good cause shown.”
From the foregoing, it is rather glaring, as provided by Order 30 Rule 2 supra that any such application to set aside a default judgment shall be made within six (6) days after the delivery of the said judgment. In the instant case, judgment was delivered on the 31-10-2017 but the Appellant as Defendant did not comply with the provisions of Order 39 Rule 1(1) but waited for four (4) months until the 26-2-2018 before filing its application to have the judgment set aside. That is approximately 118 days after the delivery of the judgment. Against the background of the foregoing, in cutting to the chase on the issue, it is important to note that the Appellant’s motion of the 26-2-2018, which failed and/or neglected to ask for an extension of time was incompetent ab initio. See the case of ENAKHIMION vs. EDO TRANSPORT SERVICES supra, where

this Court itemized the criteria for granting an application for setting aside a default judgment under Order 37 Rule 9 of the defunct Bendel State High Court (Civil Procedure) Rules, 1988 as applicable to Edo State and which is in pari materia with the Order 30 Rule 2 of the Kebbi Rules on the same subject; relying on the Supreme Court authorities of WILLIAMS vs. HOPE RISING VOLUNTARY FUNDS SOCIETY (1982) 1 – 2 SC 145 and SANUSI vs. AYOOLA (1992) 9 NWLR (PT. 265) 275 held at page 1899 of the report that:
“In order for an application to set aside a default judgment under Order 37 Rule 9 of the Defunct Bendel State High Court (Civil Procedure) Rules, 1988 as applicable to Edo State to be granted, the following criteria must be complied with: (1) The applicant must not have appeared in Court when the judgment was delivered. (2) The applicant must have applied within six days of the delivery of the judgment; or (3) The applicant must have applied for an extension of time for a longer period to make the application. These considerations are essential to the application of the above rule.”
This Court further held that extension of time to set aside a

default judgment is not an incidental order that the Court can make under the omnibus prayer, but must be specifically prayed for and granted. It must therefore be noted that an application for extension of time is a condition precedent, which must be fulfilled before the Court can assume jurisdiction to entertain the application to set aside a default judgment. This is given the fact that Order 30 Rule 2 of the Kebbi State High Court (Civil Procedure) Rules 2017 is a statutory provision which an applicant must comply with if he wants to move the Court to be heard on the merit. See ENAKHIMION vs. EDO TRANSPORT SERVICES supra where this Court further held that:
“The application to set aside a default judgment must be brought within six days after the trial or within such longer period as the Court may allow for good cause shown. This application is not a mere formality. It is not just for the asking. The applicants must show good cause why he is late in bringing the application within the stipulated time and that the application has merit.”
In the instant case, the Appellant’s application at the Court below to set aside the judgment, does not

contain any prayer for extension of time and no reason was given why the application was not brought within the six days prescribed by the Rules of the Court below. The seriousness of this omission and non-compliance with the Rules is amplified in ENAKHIMION’s case where the applicant made an oral application for extension of time within which to bring the application to set aside the judgment but did not proffer any reason for not filing same within the prescribed six days and this Court still held that the trial Court was wrong to have granted the extension of time to bring the application since there was no material before it to enable it exercise that discretion.
In the instant case, the matter is made worse given that no application either oral or formal was made for extension of time to regularize the application for setting aside the judgment of the Court below delivered on 31-10-2017. As far as this Court is concerned, this is a breach of the Rules of the Court below, which prescribed that such an application must be brought within six days after the Order or judgment or such other longer period as the Judge may allow for good cause shown.

See also the case of ARIK AIR LTD vs. EKEMEZIE (2014) LPELR 22753 (CA) where this Court per IKYEGH, JCA held at page 23 – 24 of the report noted that:
“Any party that is out of time in complying with Rules of Court, whether the party was aware of the proceedings sought to be set aside or not must take a prayer for extension of time to comply with the Rules of Court in question. It is in the prayer for extension of time that the applicant would explain by affidavit in support of the application the reason(s) for bringing the application out of time. See COMMISSIONER OF POLICE BENUE STATE vs. SUNDAY IHEABE (1998) 11 NWLR (PT. 575) 666 at 677 where the complaint of the Appellant was on the non-service of the hearing notice on him that led to the hearing and determination of the case in the absence of the Appellant, but the Court (Abuja Division) held in the lead judgment prepared by Muntaka Coomassie, JCA, (now JSC) and concurred by Kalgo and Ejiwunmi JJCA, that the Appellant who was required by the Rules of Court applicable to the application to file the application within 6 days but chose to file it 9 months thereafter, had the onus to explain the delay in

filing the application within the 6 days prescribed by the relevant Rules in these words: It was clearly stated by the Supreme Court that before an application to set aside default judgment is competent, the following ingredients must be present namely: (a) the applicant must not have appeared when judgment was delivered. (b) the applicant must have made his application within six days of the delivery of the judgment or alternatively; (c) the applicant must have applied for an extension of time for a longer period to make the application. I refer to Sanusi vs. Ayoola (1992) NWLR (Pt. 265) 275 at 292, per Karibi Whyte in which Order 32 Rule 4 of the Lagos State (Civil Procedure) Rules 1972 which is in pari materia with Order 37 Rule 9 of the Kogi State High Court (Civil Procedure) Rules (supra). A prayer for extension of time is thus imperative if the application is filed outside the statutory period. Because, as was held by the Supreme Court in Williams and Ors. Vs. Hope Rising Voluntary Funds Society (2001) 34 WRN 171 at 177, if no excuse for not bringing the application within time is offered, no indulgence should be granted.”

Arising from the foregoing, and based on the provisions of Order 30 Rule 4(3) of the Lagos State (Civil Procedure) Rules 2012, which is in pari materia with Order 30 Rule 2 of the Kebbi Rules, this Court is of the firm view that the learned Judge of the Court below was on firm footing in refusing the motion on notice of the Appellant as Defendant filed on the 26-2-2018 seeking the setting aside of the default judgment based on an application brought outside the six days prescribed by the Rules and without any application for extension of time to file the application.
It should perhaps be stated here in addition, that the non-compliance with a condition precedent is not a mere technical rule of procedure, but one that goes to the root of the case. See AGIP (NIG) LTD. & ORS vs. CHIEF C. EZENDU & ORS. (2010) 1 SC (PT. II) 98. In the case of CHIEF JOHN OYEGUN vs. CHIEF FRANCIS A. NZERIBE (2010) 1 SC (PT. II) page 1, the Apex Court in analyzing the fundamental basis for the rules of Court held as follows:
“The proceedings of the Courts are guided by the Rules of that Court. They are regulations made by the Courts to assist them in their effort to determine

issues or controversies before them. They provide the support in the administration of justice. They regulate matters in Court and help parties to present their cases within a procedure made for the purpose of a fair and quick trial. It is the strict compliance with the Rules that makes for quicker administration of justice. Any party seeking the discretionary power of Court must bring his case within the provisions of the Rules on which he purported to make his application. The Court shall always refuse to exercise its discretionary power when the Rules are not obeyed. The provisions of the Rules make it emphatic that prima facie they are meant to be obeyed and followed.”
See also FIRST BANK OF NIGERIA PLC vs. TSA INDUSTRIES LTD. (2010) 4 – 7 SC (PT. 1) 242. Following the observations of the apex and as well as this Court on this issue, I thereby and do hold that a prayer for extension of time is imperative if the application seeking to set aside a default judgment is filed outside the statutory period prescribed by the Rules as in the present case. To this end, this Court further holds that the motion of the Appellant filed on the 26-2-2018 filed

approximately, 118 days after the delivery of the judgment of the Court below had been delivered on the 31-10-2017, is to say the least incompetent and it is accordingly dismissed. Consequently, the Appellant, having failed to ignite the jurisdiction of the Court below in hearing his motion, in the first place, it would be needless waste of time to expend any valuable judicial time in taking any consideration of the issues. This Appeal is therefore moribund and it is accordingly dismissed.

The Ruling of the High Court of Kebbi State, Jega Judicial Division in Motion No: KB/HC/JG/M.14/2018 delivered on the 24th day of April, 2018 wherein the learned trial judge, refused to grant the application of the Appellant seeking the setting aside of a judgment obtained in default of appearance of Defendant on the 31-10-2017 is hereby affirmed. The sum of N200,000.00 is hereby awarded as cost in favour of the Respondent and against the Appellant.

ALI ABUBAKAR BABANDI GUMEL, J.C.A.: I have had the privilege of reading in draft the lead judgment just delivered by my learned brother Oho, JCA. I fully agree with his reasonings and conclusions. I also agree that

this appeal totally lacks merit and ought to be dismissed. It is accordingly dismissed by me. I abide by all the consequential orders of my learn brother, including the order for costs.

ABUBAKAR MAHMUD TALBA, J.C.A.: I read the draft of the judgment just delivered by my learned brother FREDERICK O. OHO, JCA. I agree with his reasoning and conclusion. I also dismiss the appeal and I abide by the consequential orders in the lead judgment.

Appearances:

A. FINFILLA ESQ. For Appellant(s)

SANUSI SAMAILA ESQ. For Respondent(s)