DELE AFOLABI & BROTHERS NIGERIA LIMITED & ANOR v. STERLING BANK PLC
(2018)LCN/12105(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 31st day of October, 2018
CA/L/53/2005
RATIO
COURT AND PROCEDURE: APPLICATION FOR THE EXTENSION OF TIME
“In law, an application for extension of time within which to do or take a step or do something as required by law is one seeking a discretional remedy and can only be obtained on good and sufficient reason apparent in the materials furnished before the Court by an Applicant disclosing justifiable excuse for the delay. It follows therefore, that the leave for extension of time is not be granted as a matter of course. Consequently, where no such sufficient reason is shown for the delay by an Applicant in an application for extension of time then no such indulgence of an extension of time would be granted. See Lawal V. UBN Plc. (2008) 12 NWLR (Pt. 1102) 704 @ p. 706. See also N. A. Williams V. Hope Rising Voluntary Funds Society (1982) 1 SC 1 @ p. 135.” PER BIOBELE ABRAHAM GEORGEWILL, J.C.A.
COURT AND PROCEDURE: DUTY OF THE APPELLATE COURT
“Thus, the duty of an appellate Court to interfere will arise only where the finding, conclusion and or decision of the lower Court is wrong and or perverse. In law, a finding or conclusion of a Court is perverse when such finding does not flow from the proved evidence or was arrived at wrongly or was anchored on extraneous matters. In all such circumstances an appellate Court will interfere to set it aside and make appropriate finding as justified and borne out by the evidence in the printed record of appeal. See Sogbamu V. Odunaiya (2013) All FWLR (Pt. 700) 1247 @ p. 1307. See also Matanmi & Ors V. Victoria Dada & Anor (2013) WRN 1 @ P. 19; Chief Odofin V. Isaac Ayoola (1984) 11 SC 72; Nwosu V. Board of Custom & Excise (1988) 5 NWLR (Pt. 93) 22; Nneji V. Chukwu (1996) 10 NWLR (Pt. 378) 265; Obajimi V. Adeobi (2008) 3 NWLR (Pt. 1075) 1 @ p. 19; Owor V. Christopher (2010) All FWLR (Pt. 511) 962 @ p. 992; Mini Lodge Ltd. V. Ngei (2010) All FWLR (Pt. 506) 1806 @ pp. 1820 – 1821.” PER BIOBELE ABRAHAM GEORGEWILL, J.C.A.
COURT AND PROCEDURE: JUDICIAL DISCRETION
“I am aware that in law an exercise of discretion, though not subject to so much hard and fast rules or fettering or else it loose its salt of being a discretion and it is best served unfettered, an exercise of discretion must be founded on justice, fairness and law and not on the whims and caprice of the Court with scant or no regards to the facts of the case. See University of Lagos V. Aigoro (1985) 1 NWLR (Pt. 1) 143. See also Aboseldehyde Lab. Plc. V. U. M. B. Ltd. (2013) 13 NWLR (Pt. 1370) 91 @ pp. 97 – 98; Aroh V. PDP (2013) 13 NWLR (Pt. 1371) 235; Thimnu V. UBN Plc. & Ors. (2013) LPELR 22127 (CA) @ pp. 20 – 21; Abiodun V. CJ, Kwara State (2007) 18 NWLR (pt. 1065) 109 @ p. 152; Adeniji V. Adeniji (2013) 15 NWLR (Pt. 1376) 102 @ p. 125.” PER BIOBELE ABRAHAM GEORGEWILL, J.C.A.
JUSTICES
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
BIOBELE ABRAHAM GEORGEWILL Justice of The Court of Appeal of Nigeria
UGOCHUKWU ANTHONY OGAKWU Justice of The Court of Appeal of Nigeria
Between
1. DELE AFOLABI & BROTHERS (NIG) LTD
2. BAMIDELE AFOLABI Appellant(s)
AND
STERLING BANK PLC. Respondent(s)
BIOBELE ABRAHAM GEORGEWILL, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the Ruling of the High Court of Lagos State, Ikeja Judicial Division, Coram: O. A. Adefope – Okojie J., (as he then was) in Suit No: ID/1649/1989: NAL Merchant Bank Limited (now Sterling Bank Plc) V. Dele Afolabi & Brothers Nig. Ltd & Anor., delivered on 28/2/2002 in which the Application by the Appellants as Defendants/Applicants to set aside the judgment of the Court below, Coram S. O. Adagun J., delivered on 28/7/92 in favor of the Respondent as Claimant was refused and dismissed.
The Appellants were peeved with the said ruling and had promptly appealed to this Court vide their notice of appeal filed on 1/3/2002 on five grounds @ pages 115 – 117 of the record of appeal. The Record of Appeal was duly transmitted to this Court. Subsequently an additional record of appeal was also transmitted to this Court. The Appellants’ brief was settled by Ayoola Orobowale Esq., and filed on 17/1/2007 but deemed as properly filed on 18/1/2007. The Respondents’ brief was settled by Sunday Edward Esq. , and filed on 16/4/2010.
At the hearing of this appeal on 2/10/2018, both parties, though duly served with hearing notices on 12/9/2018, were absent and were also not represented by Counsel. The briefs already filed were thus deemed argued and judgment reserved.
By a Writ of Summons and Statement of Claim filed on 7/11/1989, the Respondent, as Claimant, instituted an action against the Appellants, as Defendants, jointly and severally, claiming the sum of N3, 665, 07 1.15 and interests at the rate of 26.5% from 1/10/1989 until the debt is finally paid up. See pages 1 – 5 of the Record of Appeal.
BRIEF STATEMENT OF FACTS
The Respondent was the Claimant, then known as NAL Merchant Bank Limited, before the Court below and claimed against the Appellants as Defendants the sum of N3, 665,071.15 being the principal sum and interests due as at 30/9/1989 pursuant to their guarantee under an All Assets Debenture Deed dated 1/9/1980. The case of the Respondent in this appeal was that the Writ of Summons and all other processes were duly served on the Appellants but they failed or neglected to file a defense within the period allowed by them under the applicable High Court of Lagos State (Civil Procedure) Rules, 1972. Consequent upon this failure the Respondent took out a Motion for judgment dated 30/7/1990 in default of appearance and/or defense, which motion was fixed for hearing on 24/9/1990 but following the absence of the Appellants and their Counsel, the Court adjourned the motion till 12/11/1990 for hearing. On 12/11/1990, the matter could not go on and on 21/1/1991, the law firm of S. A. Asagba & Co., entered an appearance for the Appellants but failed to file any defense and it has been so till date. Consequent upon the entry of appearance by the Appellants, the Respondent filed a Summons for final judgment dated 17/5/1991, which was fixed for hearing on 17/6/1991.
However, the hearing of the Summons suffered several adjournments until 20/1/1992 when Hon Justice Adagun assumed the conduct of this case following the transfer of Onalaja J., to the Lagos Judicial Division. On the said 20/1/1992, Adagun J., declined to hear the summons for final judgment even though neither the Appellants nor their Counsel attended the Court below and the case was adjourned to 27/1/1992, on which date the Appellants were again absent in the Court below which reasoned that owing to the large sum involved, the Respondent should call its witnesses to establish the claim against the Appellants.
In spite of the hearing notice ordered by the Court below to be issued on the Appellants, they and their Counsel were again absent on 11/2/1992 and the Respondent’s Counsel then undertook to write a letter informing the Appellants’ Counsel that the matter had been further adjourned to 4/3/1992 for trial, which letter was duly written on 12/3/1992 to the Appellants’ Counsel, endorsed by one Dan Inyang, verified by an affidavit of service and a copy of same was endorsed to the Court below. As characteristic of the Appellant they and their Counsel were once again absent in the Court below on 4/3/1992 and the Court below being satisfied that they have been given ample opportunity to defend the suit but have chosen not to do so, ordered the Respondent to prove its case for which the Respondent called one Mr. Adegbola Ayodele Badmus, a credit officer with the Respondent Bank as its only witness and closed its case on the same day and addressed the Court below and judgment was reserved for 19/5/1992.
However, on 19/5/1992, the Court below did not sit and the suit was further adjourned to 28/5/1992 for judgment, on which date the judgment was not ready and was further adjourned to 30/6/1992 and subsequently to 28/7/1992 when it was eventually delivered. It was only after the delivery of judgment by the Court below on 28/7/1992 that the Appellants woke up from their slumber to file an application in September, 1992 seeking to set aside the judgment, which application was eventually struck out on 10/5/1993 for lack of diligent prosecution. The Appellants filed series of other applications seeking the same relief of setting aside the judgment but were all struck out for lack of diligent proceedings. Subsequently, the Respondent filed an application on 24/4/1995 for an order granting leave to levy execution against the immovable property of the Appellants, which was granted by the Court below on 22/5/1993.
However, on 9/6/1995, the Appellants, vide an ex-parte application, obtained an interim order of stay of execution of the order granting leave to attach the immoveable assets of the Appellants and filed a substantive application on 8/6/1995 praying for an order setting aside the judgment of the Court below delivered on 28/7/1992, which application was struck out for lack of diligent prosecution. The Appellants thereafter proceeded to file series of applications that were consistently struck out by the Court below for want of diligent prosecution until the Appellants’ application filed on 4/3/1997 on which the parties joined issues and was subsequently heard and dismissed by the Court below on 28/2/2002 for lacking in merit. See pages 1 – 6, 20 – 58, 61 – 64, 70 – 77, 90 – 95, 96 – 114, 122 – 128, 129 – 131, 135 -136, 140 – 141, 145 – 146, 159 – 161 of the record of appeal. See also pages 1- 5 of the additional record of appeal.
The Appellants were the Defendants before the Court below and their case in this appeal is that the transactions that led to the filing of the suit before the Court below was a credit facility of N1,500,000.00 granted by the Respondent to one DAB Industries (Nig.) Ltd in 1980 and under and by virtue of a Deed of Debenture dated 1/9/1980 the Appellants guaranteed the credit facility in favor of the said company. However, at the maturity of the facility DAB Industries Nig. Ltd was unable to repay the loan and a Receiver was appointed by the Respondent in 1985 to take over the business and the assets and to sell them to realize the money owed to the Respondent. The Receiver did so and in February 1996 sold the assets of DAB Industries Nig. Ltd for an undervalued price of N1, 600, 000. 00, though the assets were worth over N10,000,000.00. On 7/11/89, the Respondent took out a Writ of Summons against the Appellants as the Guarantors of DAB Industries Nig. Ltd., claiming the sum of N3, 665 071.15 being the whole of the money purportedly owed to the Respondent by the said debtor Company without disclosing that the principal sum of N1,500,000.00 and interest in the sum of N100,000.00 had already been repaid by DAB Industries Nig. Ltd., its assets having been sold by the Receiver appointed by the Respondent for the sum of N1,600 000.00 in February 1996. The Respondent’s claim did not disclose what was claimed for by the Respondent and that was what DAB Industries owed to the Respondent, which balance could not in any way be determined on the face of the processes filed by the Respondent.
By a Summons for judgment, the Respondent sought to obtain a summary judgment against the Appellants, which was sought to be moved by Counsel for the Respondent but he could not do so as the Court below ordered the Respondent to prove its case by oral evidence, which trial took place on 4/3/92 with the Respondent calling only one witness in the absence of the Appellants. At the end of trial that day the case was adjourned to 15/4/1992 for address, on which date the Counsel for the Respondent addressed the Court below and the case was adjourned to 19/5/92 for judgment. However, on 19/5/92 the judgment was not delivered and there is no record of what transpired in Court below on that day but on 28/7/92, the judgment was delivered, vide a ruling, against the Appellants in favor of the Respondent based on the Summons for judgment, which had been abandoned or over – taken by the order of Court below for oral trial made on 27/1/92.
The Appellants were not served with hearing notice of the abandoned Summons for judgment, which also had no arguments in support before the judgment was delivered. The Appellants were dissatisfied with the ruling/judgment and thereafter filled series of motions to get it set aside. However, eventually the last motion filed by the Appellants on 4/3/97 was heard on merit and in its considered ruling delivered on 28/2/2002 the Court below dismissed the Appellants’ motion and thus refused to set aside the said judgment despite the admission by the Respondent in paragraph 35(d) of its counter – affidavit that the principal sum of N 1,500, 000.00 and interest of N100, 000.00 had been repaid to the Respondent by DAF Industries Nig. Ltd. The Appellants were dissatisfied with the ruling of the Court below delivered on 28/2/2002, hence the appeal to this Court. See pages 1- 5, 6 -58, 115 – 117, 125, 126 – 128, 129 -130 and 131 – 134 of the record of appeal.
ISSUES FOR DETERMINATION
In the Appellants’ brief, two issues were distilled as arising for determination in this appeal from the five grounds of appeal, namely:
1. Whether the judgment of S.O. Adagun J., delivered on 28/9/1992 sought to be set aside by the Defendants/Appellants via their Motion dated 4/3/97 ought not to have been set aside in the Ruling appealed herein and dated 28/2/2002 when the Plaintiff/Respondent admitted by its deposition in its Counter Affidavit filed against the Appellant’s said Motion dated 4/3/97 that the amount of money for which it got the said judgment of 28/7/92 was more than the amount of the money the Defendants may owe to it?
2. Whether the lower Court ought not to have set aside the judgment of S.O. Adigun (J) dated 28/7/92 in its ruling appealed herein and dated 28/2/2002 when it is clear from the record that the Lower Court lacked Jurisdiction to grant the Summons for judgment filed on 17/5/91 by the Plaintiff against the Defendants’.
In the Respondent’s brief, two issues were also distilled as arising for determination in this appeal namely:
1. Whether Hon Justice Adefope – Okojie ought to have set aside the judgment of Hon Justice S. O. Adagun (Rtd) delivered on 28/7/1992?
2. Whether the refusal to set aside the said judgment of Hon Justice Adagun by Hon Justice Adefope – Okojie amounts to miscarriage of justice?
My Lords, I have given due considerations to the fact and circumstances leading to this appeal. I have perused both the Appellants’ application and supporting affidavit as Defendants/Applicant seeking to set aside the judgment of the Court below and the counter affidavit of the Respondent as Claimant. I have also calmly reviewed the judgment of the Court below in the light of the complaints of the Appellants and considered the submissions of Counsel in their respective briefs and upon an anxious consideration of all the above, I am of the view that the only pertinent issue for determination in this appeal is issue two, to be slightly modified to make it more precise, as distilled in the Appellants’ brief. It is my view that a consideration of this sole issue would invariably involve a consideration of additional issue one in the Appellants’ brief as well as the two issues as distilled in the Respondent’s brief.
SOLE ISSUE
Whether the Court below ought not to have set aside the judgment of S.O. Adigun (J) delivered on 28/7/92 for want of jurisdiction and the amount entered as judgment being in excess of the debt that may have been owed the Respondent by the Appellants?
APPELLANTS’ COUNSEL SUBMISSIONS
On his issue one, learned Counsel for the Appellants had submitted that in the application to set aside the judgment of the Court below the Respondent by its counter affidavit confessed that the original debtor company, one DAB Industries Nigeria Ltd., could have already repaid both the principal sum and interest to the Respondent and contended that in the circumstances the Respondent had got judgment for a higher sum of money than what the Appellants as guarantors could have owed to the Respondent, if any after the payment of N1, 6000,000.00 and urged the Court to hold that from the conduct of the Respondent it knew it was no longer being owed or it was being owed a lesser amount by the Appellants but had fraudulently misrepresented the facts to the Court below to obtained amount either no longer due to it or about what is due to it.
It was further submitted that in view of the conduct of the Respondent in not disclosing that the Appellants’ Principal had paid or part paid the debt but still went ahead to get judgment for the whole sum without any deduction makes the judgment obtained on 28/7/92 against the Appellants by the Respondent to be a judgment obtained with false misrepresentation of facts and fraud and thereby rendering it to be fraudulent and thus liable to be set aside. Counsel relied on Okoye V. NC & F Co. Ltd (1991) 6 NWLR (Pt. 199) 501 @ pp. 547-543.
It was also submitted that but for the misrepresentation and fraud perpetrated by the Respondent in obtaining the judgment sought to be set aside it was most likely that the Respondent would not have any claim against the Appellants and contended that in law where the misrepresentation or fraud by which a judgment is obtained has a direct bearing on the judgment, such a judgment will be set aside and urged the Court to allow the appeal, set aside the ruling of 28/2/2002 of the Court below and to proceed to set aside the judgment of 28/7/1992. Counsel relied on Olufunmise V. Falana (1990) 3 NWLR (Pt. 136)1 @ p. 13.
It was also further submitted that had the Court below taken into consideration the deposition of the both the Appellants and the Respondent about the payment of the total debt due by the principal debtor, it would have found that the Respondent misrepresented the facts as to the amount owed by the Appellants and contended that with such payment already made to the Respondent there was no likelihood that the Appellants still owed the Respondent and urged the Court to so hold and to set aside the ruling of the Court below refusing to set aside its earlier judgment and to proceed to set aside the said judgment for having been obtained by fraud.
On his issue two, learned Counsel for the Appellants had submitted from the records of proceedings before the Court below it was clear that the Respondent’s summons for judgment was abandoned for oral trial on the order of the Court below made on 27/1/1992, which trial opened and concluded with on 4/3/92 and final address taken on 15/4/92 and contended that in the circumstances the Court below can only deliver judgment based on the oral evidence of the Respondent and no longer on the Respondent’s abandoned summons as was done by the Court below by its ruling delivered on 28/7/92 and urged the Court to hold that in the circumstances the Court below per S.O. Adagun J., being functus officio with the order for trial by oral evidence still in force had no power, having not considered the summons for judgment, to enter judgment on the abandoned summons for judgment. Counsel relied on Megwalu V. Megwalu (1996) 2 NWLR (Pt. 428) 104 @ p. 120.
It was further submitted that the decision of the Court below to consider the summons for judgment and eventually entering judgment based on the summons for judgment was an exercise without jurisdiction and contended that in law where there is a defect in competence to adjudicate on a matter, such defect is fatal to the proceedings and will render the proceedings, however, well conducted and decided they may be, a nullity and urged the Court to hold the judgment of the Court below was a nullity and therefore, liable to be set aside. Counsel relied on Sanusi V. Ayoola (1992) 9 NWLR (Pt. 265) 275 @ p. 301.
It was also submitted that the Appellants were neither aware nor given notice of the decision of the Court below per Adagun J., to reverse its earlier order for oral trial in the said Order and that the summons for judgment would be heard on 28/7/92 and contended that such a notice was important as the Appellants could not, under any stretch of imagination, expect the Court below to reverse its earlier decision and urged the Court to hold that the Court below per Adefope – Okojie J., was in grave error when it held that the Appellants had notices of the proceedings of the Court below and were obliged to be diligent in making enquiries, which they made but to no avail, to know the progress in the case and to set aside such erroneous findings.
It was also further submitted that from the circumstances surrounding the order for the abandonment of the summons for judgment, the taking of oral evidence and delivery of judgment on the abandoned summons for judgment, without any record of how and when the case was adjourned to 28/7/92 for judgment, the proof of service of the summons for judgment and hearing notice of the proceedings of 4/3/92 are not of any relevance in the consideration of the Appellants’ Motion of 4/3/97 to set aside the judgment of 28/7/92 and contended that the Court below was therefore, in error when it took such wrong factors into consideration in reaching its decision to refuse to set aside the null judgment of the Court below and urged the Court to allow the appeal and set aside the ruling of the Court below refusing to set aside the judgment of 28/7/1992 and to set same aside for being a nullity. Counsel relied on Eboh V. Ogbu (1994) 5 NWLR (Pt. 347) 703 @ p. 715.
It was also submitted that the Appellants having not been given notice of the hearing of the summons for judgment which suo motu formed the basis of the judgment it amounted in law to good reason why they were not in Court when the summons for judgment was heard and determined without any opportunity given to them to be present at the said proceedings and contended that in the absence of both any date for the hearing of the summons for judgment and no record of hearing the summons for judgment, the judgment delivered during the vacation of the Court below on 28/7/1992 on the summons for judgment was a nullity and ought to be set aside and urged the Court to set same aside. Counsel referred to Order 48 Rule 5 (2) of the High Court of Lagos State Civil Procedure Rules 1972 and relied on Okubre V. Ibanga (1990) 6 NWLR (Pt. 154) 1 @ pp. 16 ? 17; SGB (Nig) Ltd V. Awaye Motors (1992) 4 NWLR (Pt. 234) 231 @ p. 102; Udogu V. Egwuatu (1994) 3 NWLR (Pt. 330 120 @ p. 120.
It was further submitted that in law a Court has no power to base its decision on an abandoned process and contended that any such decision is a nullity and liable to be set aside and urged the Court to hold that the Appellants satisfied all the conditions in law for the setting aside of a judgment entered without jurisdiction and to so set aside the judgment of the Court below based on the abandoned summons for judgment for being a nullity and had occasioned a miscarriage of justice to the Appellants. Counsel relied on Nwokoro V. Onuma (1990) 3 NWLR (Pt. 136) 22 @ pp. 32 – 33; Egbuziem V. NRC (1994) 3 NWLR (Pt. 330) 23 @ p. 33; Okoye V. NC & Co. Ltd (1991) 6 NWLR (Pt. 199) 550 @ pp. 547 – 548; N. A. Williams V. Hope Rising Voluntary Funds Society (1982) 1 – 2 SC 145; Sanusi V. Ayoola (1992) 9 NWLR (Pt. 265)1.
RESPONDENT’S COUNSEL SUBMISSIONS
On his issue one, learned Counsel for the Respondent had submitted that the Appellants were most lethargic in the proceedings of the Court below right from the inception of the case, service on them of the processes, hearing notices, several adjournments, and the hearing of the case leading to the delivery of judgment by the Court below by their permanent non appearance in the proceedings of the Court below and contended that the Appellants having been given all opportunity to participate in the proceedings but having refused to take advantage of the opportunity, the Appellants despite their fraudulent attempt at removing the judgment of the Court below from the case file failed to make out any reason why the judgment of the Court below entered a trial should be set aside and urged the Court to hold that the Court below was right when it refused the application to set aside the said judgment and to dismiss the appeal for lacking in merit. Counsel relied on Egemasi V. Onyekwere (1983) All NLR 543 @ p. 545.
It was further submitted that the finding by the Court below that the Appellants and their Counsel were given due hearing notices but on their own volition chose to absent themselves cannot be heard to complain was correct going by the record of proceedings and the antecedents of the Appellants before the Court below and contended that as rightly observed by the Court below the documents relied on by the Respondent at the trial of this case were those referred to in both the Statement of Claim and the Affidavit in Support of the Summons for Judgment and urged the Court to hold that in the circumstances, the Appellants could not have been and were not prejudiced in any way as the judgment of the Court below whether based on the Summons for judgment or on the evidence at the trial, would still have been in favor of the Respondent and urged the Court to so hold as correctly held by the Court below.
It was also submitted that even if the judgment of the Court below per Adagun J., was based on the Summons for Judgment, instead of being based on the trial of 4/3/1992, the judgment having been entered pursuant to the provisions of Summary Judgment of the Court below would amount to a final judgment on the merit which the Appellants should have appealed against within the time allowed by law and not to have merely applied to set aside a final judgment and urged the Court to hold that the application brought more than the six days allowed by the Rules of the Court below and without any good and valid reason for the delay lacked merit and was rightly dismissed by the Court below and to dismiss the appeal and affirm the ruling of the Court below.
Counsel referred to Order 10 of the High Court of Lagos State (Civil Procedure) Rules 1972, now Order 11 High Court of Lagos State (Civil Procedure) Rules 2004 and relied on UTC V. Pamotei (1989) 2 NWLR (Pt. 103) 244 @ p. 283; UBA V. Taan (1993) 4 NWLR (Pt. 287) 368; Ogbuanyiya V. Okudo (1990)4 NWLR (Pt. 146) 551 @ p. 570.
On his issue two, learned Counsel for the Respondent had submitted that on the unchallenged facts in the affidavit of both parties it is clear that the issue of misrepresentation and fraud being raised by the Appellants in this appeal are new issues which were never canvassed by the Appellants before the Court below and contended that in law the prior leave of this Court is a condition precedent to raising such fresh issues and having not done so the new issues are rendered incompetent and liable to be discountenance by this Court and urged the Court to so hold and to dismiss the appeal for lacking in merit. Counsel relied on Gbadamosi V. Dairo (2007) 3 NWLR (Pt. 1021) 282 @ p. 304.
It was further submitted that in the entirety of paragraph 35 of the Respondent’s counter affidavit there was nowhere there was any admission that the Appellants are no longer owing the Respondent but rather it was clear from the pleadings that as at 30/9/1989 the Appellants were jointly and severally owing the Respondent the sum of N3, 665,071.15 plus interests at the rate of 26.5% from 1/10/1989 and contended that by paragraph 35(d) it was made clear that only the sum of N1,600,000.00 has been recovered there from, till date and urged the Court to hold that on the face of the outstanding sums still due from the Appellants to the Respondent, the contention by the Appellant that the Respondent admitted that they were no longer indebted to it was baseless and rightly rejected by the Court below and urged the Court to hold that the dismissal of the Appellants’ application even on this ground was correct and should be affirmed.
It was also submitted that on the state of the affidavit evidence of the parties in the Appellants’ application to set aside the judgment of the Court below it was clear that the Appellants failed to fulfill the conditions laid down by the Supreme Court for a successful application to set aside a judgment and contended that these condition were applicable to the Appellants’ application as no issue of lack of jurisdiction was made out by the Appellant and these conditions having not been made out the Court below per Adefope – Okojie J., was right to have refused and dismissed the Appellants’ application to set aside the judgment of Adagun J., and to dismiss the appeal there being also no iota of any miscarriage of justice shown by the Appellants. Counsel relied on N. A. Williams V. Hope Rising & Voluntary Fund Society (1982) 1 – 2 SC 140 @ p. 160; Sanusi V. Ayoola (1992) 9 NWLR (Pt. 165) 275 @ p. 279; Uwakwe V. Odogwu (1989) 5 NWLR (Pt. 123) 562 @ p. 589; Re: Manchester & Milford Railway (1880) CH.D 645 @ p. 653; General Oil Ltd.V. Oduntan (1990) 7 NWLR (Pt. 163) 423 @ p. 438.
RESOLUTION OF SOLE ISSUE
My Lords, the crux of this issue is twofold, namely: a. whether the Appellants made out their case for extension of time within which they were to apply to set aside the judgment of the Court below and in the said application proffered good reason why the judgment ought to have been set aside by the Court below and b. whether the Court was right when it held that the Appellant failed to make out any case for the setting aside of the judgment of the Court below and that a refusal of their application would not in any way occasion any miscarriage of justice to the Appellant?
A consideration of these two key issues under the sole issue for determination would require a calm review of the totality of the affidavit evidence of the parties in the application to set aside the judgment of the Court below, the entire proceedings leading to the delivery of the judgment sought to be set aside and the findings of the Court below per Adefope – Okojie J., in the ruling delivered on 28/2/2002 refusing the application of the Appellants to set aside the judgment of the Court below per Adagun J., delivered on 28/7/1992.
Now, the Appellants had by a Motion on Notice filed on 4/3/1997 before the Court below sought the following reliefs:
1. Leave to apply for extension of time to set aside the judgment of the Hon Court delivered on 28/7/1992.
2. All order of stay of execution of the said judgment.
3. All order discharged the order of the Hon Court attaching the movable properties of the Defendants/Applicants.
4. An order setting aside the judgment obtained from the Hon Court on the 28/7/1992.
See page 61 of the record of appeal.
The application was supported by an affidavit of 35 paragraphs deposed to by one Dele Afolabi, stating inter alia as follows:
2. That this suit was originally before Hon. Justice Onalaja at the Ikeja High Court.
3. That when Justice Onalaja was transferred to the Lagos High Court I made enquiries at the Ikeja High Court Registry and was told to re-assignment.
4. That I was told by my solicitors and I verily believe them that it is customary to issue Hearing Notice to the parties on the re-assignment of matters in such circumstance.
5. That no hearing was served on me or my solicitors.
6. That I was informed by my solicitors and verily believe them that they were not aware that the matter was to be heard on 28/7/1992.
7. That the said 28/7/1992 was during the annual vacation of the Courts.
8. That sometimes in 1979 DAB Industries Nigeria Limited (the Borrower Company) applied for a loan of N1.5 Million from the plaintiff/Respondent for the purposes of its business of manufacturing toiletries. The said application is hereby annexed and marked bit ‘A’.
21. That I was aware of the judgment sometimes in August 1992 and immediately instructed my solicitors, S.A. Asagba & Co., to bring an application to set aside the judgment and the said application 4th September 1992 was duly filed on 7th September 1992. The said application is hereby attached and marked Exhibit ‘C’.
22. That as a result of my solicitor’s incapacity and or ill – health occasioned by old age the said application was not pursued diligently whereupon I decided to engage a new solicitor, B. O Bayowa Esq.
23. That consequent upon the foregoing my new solicitor caused to be filed a new application to set aside the judgment which application is dated 8/6/1995.
26. That the delay in the prosecution of this matter was as a result of continuing exploration of peaceful settlement by both parties.
29. That the plaintiff’s action is in absolute bad faith as it has no claim against the 1st and 2nd defendants having WAIVED same by its sale of all the properties of the Borrower Company and which sale is a set off against all indebtedness to the plaintiff.
30. That my solicitors have already filed a defense dated 2nd December and the same is hereby annexed and marked Exhibit ‘E’.
33. That the sum now claimed and on which judgment was entered has been calculated at an interest rate far above the 10% per annum agreed upon as per paragraph 9 of the All Assets Debenture. See pages 62 – 64 of record of appeal.
In opposition, the Respondent filed a counter affidavit of 45paragraphs deposed to by one Toyin Peter, stating inter alia as follows:
6. That the Writ of Summons and Statement of Claim in this suit were filed on 7/11/l989 and served on the Defendants on 21/2/1990.
7. That the Defendants neither filed a Memorandum of Appearance nor Statement of Defense.
8. That on 30/7/1990, the Plaintiff/Respondent filed a Motion for final judgment which was slated for hearing on 24/9/1990.
9. That the Defendant/Applicants were absent on 24/9/1990 and the matter was adjourned to 12/11/1990 for arguments.
10. That the Defendants/Applicants entered appearance to suit through their Solicitors on 21/1/1991.
11. That since then the Defendants/Applicants failed to file and serve their Statement of defense.
12. That on 12/5/1991, the Plaintiff/Respondent took out another motion in default of defense which was slated for hearing on 17/6/1991
13. That the said motion suffered further adjournments until 20/1/1992.
14. That it was only on the adjourned date on 20/1/l992 that we became aware of the transfer of the Hon Justice Onalaja, who was presiding over the case and the assumption of the conduct of this matter by Hon Justice S.O. Adagun sitting in the same Court hall, and the matter was then adjourned to 27/1/1992 and hearing notices ordered to be issued.
15. That on 27/1/1992, the Court declined to hear this Plaintiffs application for final judgment even though neither the Defendants nor their counsel attended Court. The matter was consequently adjourned to 11/2/1992 for the Plaintiff to prove its case.
16. That on 11/2/1992, the Defendant and his counsel were yet absent in Court as a result of which the matter was further adjourned 4/3/1992. The Plaintiffs Solicitor undertook to inform the Defendants’ solicitors of the adjournment and did so by their letter dated 12/2/1992, a copy of which was endorsed to this Hon Court. The acknowledgment copy of the said letter is now shown to me, annexed herewith and marked Exhibit ‘A’.
17. That on 4/3/1992, the Defendants and their counsel were characteristically absent from Court despite the Hearing Notices issued to them and the Solicitors letter informing them of the trial date. The Court being satisfied that the Defendants had been given ample opportunity to defend this matter ordered the Plaintiff to prove its case on the merits.
18. That between the commencement of this action on 7/11/1989 and judgment on 28/7/1992, the Plaintiff never applied for extension of time to file their Defense in this suit.
19. That the Plaintiff witness testified on 4/3/1992 while its counsel addressed Court on 15/4/1992 and judgment was delivered on 28/7/1992.
20 That the judgment in this Suit was regularly entered against the Defendants.
21. That the application to set aside the judgment in this suit was brought outside the six days allowed by the Rules of this Hon Court.
22. That the Defendants/Applicants have not given any or sufficient reason(s) for the delay of over four years in bringing this application.
40. That paragraphs 26 and 27 of the Affidavit in support of Motion are false, no series of meeting were held between the parties with a view to settling the matter amicably as alleged or at all.
41. That there cannot be settlement of a judgment which the Defendants refuse to accept and are taking steps to discharge and/or set aside.
42. That since this suit was instituted, the Defendants have employed all manner of delay tactics to frustrate the Plaintiff’s bank from recovering its debt.
43. That as a manifest show of bad faith and a desire to delay justice and frustrate the Plaintiff/Bank, the Defendants Motion on Notice dated 26/6/1995 and fixed for hearing on 27/6/1995, was only served on the served on the Plaintiffs solicitors on 27/71995, a day after the hearing date and the Defendants had secured a long adjournment to 6/11/1995 behind the Plaintiff. See pages 65 – 69 of record of appeal.
The Respondents had in paragraphs 24 – 35 catalogued the series of adjournments, all at the instance of the Appellants and the debts still owed and to the Respondent from the Appellants.
It was on the strength of the above facts amongst other facts and the record of the proceedings leading to the judgment of 28/7/1992 that the Court below per Adefope – Okojie J., (as he then was) had in its ruling delivered on 28/2/2002 dismissing the application of the Appellants to set aside the judgment, held inter alia thus:
I find that from the records, notification was brought to the notice of the Defendants, through their counsel, of the proceedings before the Court, both of the Summons on Notice, and the hearing of the suit. I thus resolve this issue in favor of the Respondents. The next issue to be determined is whether it was necessary for notice to have been issued to the Defendants informing them of the reassignment of the case before another judge?In the present case as aforesaid, both the Writ of Summons and Statement of Claim had been served. The Defendants had entered appearance. Service had been effected of both the Summons for judgment and notice of hearing of the suit. To none of these did the Defendants respond?They were also served with the hearing notice on 18/2/92 against hearing scheduled for 4/3/92. No counter affidavit was filed. No appearance was made by them or counsel on 4/3/92.
No enquiries were made of the progress of the case on that date or subsequent adjournments, until judgment was delivered, on 28/7/92. The business of counsel is to keep themselves abreast of business of the Courts?.He should have enquired, I hold. I accordingly hold that sufficient notice of the pendency of the proceedings was given to the Defendants. Upon notification to them, it was for counsel with reasonable diligence to have taken steps to defend the action. He however did nothing. He filed no papers to contest the action. The Defendant cannot, I hold, be heard at this late stage to complain that they were given no notice of the reassignment of the case before another judge?The delivery of the ruling during the Court?s vacation, if this indeed is true, had been held by the Court of Appeal to occasion no miscarriage of justice as there is no further role that the parties are to play on the said date?In addition, the Applicants, having failed to attend Court, prior to the delivery of ruling, in spite of notification to them, cannot I hold, be heard to complain about what date ruling was delivered?
In the present case judgment was passed on 28/7/92. The present application was filed on 4/3/97 viz five years after judgment was delivered. In between the date of judgment and the date of filing of the present application the Applicants had filed four applications to set aside the judgment. This thus is the 5th application. On none of these dates did the Defendants appear. Indeed they have never appeared during these proceedings. The reason given by the Applicants for their delay in ‘prosecution’ of their matter is their exploration of peaceful settlement. It is clear from the foregoing that both the Applicants and their Counsel have demonstrated the utmost lethargy in the matter. I do not believe that it would serve the interest of justice to indulge the Defendants who have demonstrated absolutely no interest in the case. This case is now twelve years in Court, prolonged unduly by the applicants. I do not consider the Applicants’ actions as deserving of any sympathetic consideration. Indeed as I have said this is the 5th application by the applicants for this same purpose. I, for all the reasons set out above refuse the application of the defendants. See pages 96 – 114 of the record of appeal.
I shall for the sake of better appreciation and analysis, reproduce hereunder the judgment delivered on 28/7/1992, wherein the Court below per S. O. Adagun J., had held inter alia as follows:
‘The defendants had been served with all the processes of this Court in response to this, their solicitors Samuel A. Asagba filed Memorandum of appearance dated 21/1/1991 … It was due to the failure of the defendants to file statement of defense within the period limited by the rules of Court that the plaintiff/Applicant to take out summons on Notice was served on the counsel for the defendant on 17/5/1991 ‘Upon the perusal of the averments of the statements of claim and thoroughly considered the affidavit’. I am in full support of the affidavit evidence ‘that the 1st and 2nd defendants have no defense whatsoever to this action’. Having been satisfied that the 1st and 2nd defendants are liable to the plaintiff by signing and executing all assets debentures dated 1/9/1980 in favor of the plaintiff/Applicant, this Court will grant its leave to the Plaintiff/Applicant to enter final judgment against the Defendants/Respondent in the sum of N3, 665,071.15 and interest therein at the rate of from the 1/9/1989 until the judgment and final settlement of the debt. See pages 131 – 134 of the record of appeal.
My Lords, looking at the reliefs claimed by the Appellants as earlier set out in this judgment, but which reliefs were denied them by the Court below, the Appellants had two principal hurdles to cross in order for them to succeed in the application, namely:
1. The reason (s) for the failure to apply to set aside the judgment within time
2. The reason (s) why the judgment should be set aside.
Thus, no matter how good in law and on the facts why a judgment ought to be set aside, including grounds of lack of jurisdiction and or nullity, unless the application to set aside the judgment was brought within time, otherwise where there is not good reason(s) why the application to set aside the judgment was not filed within time, the application must fail. This is so because unless and until the relief of extension of time is made out, even if in the same application seeking to set aside the judgment, on good reason(s) explaining sufficiently the delay in the application to set aside the judgment, the issue of the good reason(s) why the judgment should be set aside does not even arise for consideration.
So did the Appellants proffer good reason (s) explaining satisfactorily why they did not apply within time and even assuming they did show good reason(s) why they did not apply for the setting aside within time, did they fulfill the conditions precedent for the relief of setting aside of the judgment of the Court below claimed by them. These two questions are the epicenter of this appeal.
In law, an application for extension of time within which to do or take a step or do something as required by law is one seeking a discretional remedy and can only be obtained on good and sufficient reason apparent in the materials furnished before the Court by an Applicant disclosing justifiable excuse for the delay. It follows therefore, that the leave for extension of time is not be granted as a matter of course. Consequently, where no such sufficient reason is shown for the delay by an Applicant in an application for extension of time then no such indulgence of an extension of time would be granted. See Lawal V. UBN Plc. (2008) 12 NWLR (Pt. 1102) 704 @ p. 706. See also N. A. Williams V. Hope Rising Voluntary Funds Society (1982) 1 SC 1 @ p. 135.
It is true in law that an Applicant for extension of time, such as the Appellants, do not need a horde of reasons as one solid good reason that is verified by credible evidence placed before the Court would suffice. Thus, the law seems fairly settled that once good and sufficient reason has been proffered by an Applicant for an extension of time to explain and justify or excuse the delay in applying within the time as allowed by law, the issue of the length of time would not be allowed to be a clog in the wheel of doing substantial justice to the parties. See Ogundimu V. Kasunmu (2006) All FWLR (Pt. 326) 201 @ pp. 215 – 216.
I am aware that in law an exercise of discretion, though not subject to so much hard and fast rules or fettering or else it loose its salt of being a discretion and it is best served unfettered, an exercise of discretion must be founded on justice, fairness and law and not on the whims and caprice of the Court with scant or no regards to the facts of the case. See University of Lagos V. Aigoro (1985) 1 NWLR (Pt. 1) 143. See also Aboseldehyde Lab. Plc. V. U. M. B. Ltd. (2013) 13 NWLR (Pt. 1370) 91 @ pp. 97 – 98; Aroh V. PDP (2013) 13 NWLR (Pt. 1371) 235; Thimnu V. UBN Plc. & Ors. (2013) LPELR 22127 (CA) @ pp. 20 – 21; Abiodun V. CJ, Kwara State (2007) 18 NWLR (pt. 1065) 109 @ p. 152; Adeniji V. Adeniji (2013) 15 NWLR (Pt. 1376) 102 @ p. 125.
In E. F. P. C Ltd. V. NDIC. (2007) All FWLR (Pt. 367) 793 @ pp. 825 – 826, the trite position of the law on the exercise of discretion by the Courts in application for extension of time to appeal was so poignantly put in its proper con by Niki Tobi JSC, (God bless his soul) inter alia thus:
“An application for extension of time … involves so much of discretionary power of the Court hearing the appeal. Where the discretion is exercised judicially and judiciously, the Supreme Court has no jurisdiction to question a discretion which is exercised judicially and judiciously.”
In the ruling of the Court below several findings of fact of service of the originating processes, summons for judgment and hearing notices were made against the Appellant but the Appellants, going by the issues for determination as distilled in the Appellants? brief, appears not to have any issue with those findings and I take it that the issue of service of these vital processes of the Court below are taken as non issue in this appeal. The parties are therefore, bound by those findings. See Owners of MV. Arabella V. NAIC (2008) 4 – 5 SC (Pt. 11) 189 @ p. 217. See also Dabo V. Abdullahi (2005) 7 NWLR (Pt. 923) 181; Leventis Technical V. Petro Jessica Enterprises (1999) 6 NWLR (Pt. 605) 45.
My Lords, had the real crux of the issues in contention been whether or not service of originating processes and or hearing notices were effected on a party as required by law, even the appearance of counsel would not be tantamount to proof of service as would satisfy the fundamental prerequisite of service in law. Thus, whenever service is in issue, in law it could be proved in any of the following ways, namely: a; by endorsement by the party or his legal practitioner acknowledging receipt of the Court processes, b: By affidavit of service by the Bailiff who effected the service and c: By order of substituted service duly complied with.
In Mark V. Eke (2004) 1 SC (Pt. 11) 1 @ p. 19, the Supreme Court per Musdapher JSC, had held inter alia thus:
“Where a process has been served it is necessary for the Court to have before it evidence of that facts service of the process, especially the originating process, is an essential condition or the Court to have the competence or the jurisdiction to entertain the matter. Further, failure to comply with this condition would render the whole proceedings including the judgment entered, and all subsequent proceedings based therein, wholly irregular, null and void. That is why the proof of the service of the process Oil a Defendant is very fundamental to the issue of the jurisdiction and competence of the Court to adjudicate.”
The above position of the law, on the indispensability of service of Court processes, was most succinctly pronounced upon by the apex Court in Societe Generale Bank (Nig) Ltd. V. Adewunmi (2003) FWLR (Pt 158) 1081 @p. 1196, where the Supreme Court per Musdapher JSC., puts the issue succinctly inter alia thus:
“Under our adversary system of jurisprudence, to hear a case without one of the parties having been served with the necessary process except in a proper ex-parte proceeding would render the trial a nullity as service of the Court’s process is basic and indispensable to any adjudication. Failure to serve the Court processes robs the trial Court of the jurisdiction and competence to deal with the matter. The issue of service is basically a matter of fact while its effect is an issue of law.”See also FBN Plc. V. TSA Ind. Ltd. (2010) 4 – 7 SC. (Pt. 1) 242.
My Lords, in law circumstances abound when a Court can legitimately set aside its own judgment without being accused of sitting on appeal over its judgment. These circumstances include, but are not limited to the followings, namely;
1. When the judgment is obtained by fraud or deceit or misrepresentation either on the Court or one or more of the parties.
2. When the judgment is a nullity.
3. When it is obvious that the Court was misled into giving judgment under a mistaken belief that the parties consented to it and
4. When the judgment is given in absence of jurisdiction or when the procedure adopted was such as to deprive the decision or judgment of the character of a legitimate adjudication.
See Igwe V. Kalu (2002) 14 NWLR (Pt. 787) @pp. 435 – 453.
I have taken a calm look at the entirety of the 35 paragraphs affidavit evidence of the Appellants showing the reason for the delay in applying for the setting aside of the judgment of the Court below and it is simply that there were moves to settle the matter through series of meetings between the parties and peripherally also the mistake of their former Counsel. The Respondent denied these depositions by the Appellants. The pertinent question is simply whether or not the reasons proffered by the Appellants amounted in law to good and substantial reasons to justify and or excuse for their failure to apply within time for the setting aside of the judgment of the Court below:
“It is of common ground that the Appellants had only but six days from the date of delivery of the judgment of the Court below per Adagun J., on 28/7/1882 within which to apply to set aside the said judgment but failed to file a valid application to do so until the application was filed on 4/3/1997, that is five years after the judgment sought to be set aside was delivered. In the ruling appealed against, the Court below found as fact that the length of time was inordinate and that the Appellants were most lethargic in their attitude towards the entire proceedings before the Court below having failed, neglected and or refused to make use of all the several opportunities afforded them by the Court below to participate in the proceedings to put their own side of the case before the Court below in the suit instituted against them by the Respondent all but to no avail. It ought therefore, to be pointed out at once that in law once a party has been given the due opportunity by a Court to present his own side of the story but he refuses, fails or neglects to do so, then not only can he not be heard subsequently to complain about not being heard but the case presented by the party who participated at the proceedings is the case to be considered on the merit by the Court, attended the proceedings is the case to be considered on the merit. See Military Governor of Lagos State V. Adeyiga (2012) LPELR – 7836(SC0 @ pp. 29-30 per Adekeye JSC. See also MTN Nig Communications Ltd V. Mundra Ventres Nig. Ltd (2016) LPELR 40343 (CA) @ PP. 32 – 33 per Georgewill JCA.
Having dispassionately considered the reasons proffered by the Appellants in their affidavit evidence, the response by the Respondent in its counter affidavit evidence, the finding of facts of the Court below in the ruling appealed against and the submissions of Counsel in their respective briefs, I am truly satisfied and I so hold that the Court below was right when it held that the reason proffered by the Appellants for the inordinate length of time of delay before the filing of the application to set aside the judgment of the Court below was not only lame but no reasons at all as would have warranted any reasonable Tribunal, worth it name, to exercise its discretion in favour of the Appellant to grant them the indulgence of an extension of time of about five years to enable them apply to set aside the judgment of the Court below delivered about five years ago at the time of the filing of the application to set it aside. In law once no justifiable reason is proffered for the delay, whether inordinate or not, no indulgence of an extension of time would be granted. However, conversely once a good reason justifying the delay is proffered, then notwithstanding the length of time, the indulgence of an extension of time must be granted. See N. A. Williams V. Hope Rising Voluntary Funds Society (1982) 1 SC 1 @ p. 135. See also Lawal V. UBN Plc. (2008) 12 NWLR (Pt. 1102) 704 @ p. 706; Ogundimu V. Kasunmu ( 2006) All FWLR (Pt. 326) 201 @ pp. 215 – 216.
The Appellants had also relied on the old age and attendant incapacity of their former Counsel as reason for their lethargic prosecution of the earlier applications and the resultant delays in the filing of their application of 4/3/1997 to set aside the judgment of the Court below after about five years of the delivery of the judgment by the Court below.
Interestingly, nowadays inadvertence, or now the strange one here old age and attendant incapacity, of Counsel has become the panacea to cover multitudes of alleged sins of Counsel in order to sway the Court to granting reliefs sought. I have already alluded to the inordinate delay between the time the judgment of the Court below delivered on 28/7/1992 and the filing of the application to set it aside by the Appellants on 4/3/1997. This is however, not to say that notwithstanding the length of delay, if reasonable and sufficient reason is adduced for the delay by the Appellant a Court of law, which is as well a Court of justice, would not favorably consider such an Application, yet is the duty to find out the progress, if any, being made to a litigant’s case that of only the Counsel, old or young, vibrant or feeble. I think not.
In all the reasons proffered in the Affidavit in support, no reason was given as to why the Appellants did absolutely nothing to find out the progress or status of their own case. In my view, there is a corresponding duty on a diligent litigant, desirous of having his case to be prosecuted diligently, to make contact with the Counsel so retained and or the Registry of the Court below to know the progress, position or status of the case. Therefore, litigants, such as the Appellants, who woefully failed or neglected or refused to do so cannot in my view be allowed in law to turn round to absolve themselves and heap all the blames on ‘mistake’ or ‘sin’ of their old and feeble Counsel in order to have their way through their application before the Court below, and having failed there, now before this Court. The law does not and cannot just work that way! I find no mistake or inadvertence of Counsel either by reason of old age and or attendant incapacity or ill health. These allegations, not even supported by any iota of evidence in proof thereof, remained unproved. See Bank of the North Ltd V. Ismaila Yusuf (2010) LPELR – 3852 (CA). See also AG Taraba State V. Selihin Consult Ltd.(2016) LPELR – 40817 (CA).
Having calmly considered the entire facts and circumstances of this appeal as regards the first hurdle of extension of time sought by the Appellant and which was refused by the Court below, I find that on the affidavit evidence of the Appellants the case as presented by the Appellant even on their own does not disclose any good and sufficient reason worthy of inducing or invoking any belief in their case by this Court that would warrant the indulgence of an extension of time sought by the Appellants from the Court below. Thus, the Court below was right and on firmer ground when it refused the application filed by the Appellants for lacking in merit even on this basis alone since in law without the extension of time first obtained, the issue of setting aside the judgment of the Court below does not arise for consideration.
In coming to the above finding, I have borne in mind the need to do substantial justice at all time to the parties, yet I find the reasons proffered by the Appellants as not only trifling but also constituting no reason at all. It rather merely, as vehemently and rightly contended by the Respondent?s Counsel and as rightly found by the Court below, showed the gross lack of interest or lethargy of the Appellants on the one hand and the unmitigated tardiness of the Appellants’. Counsel on the other hand to diligently pursue their application to set aside the judgment of the Court below until about five years thereafter! In my view, an affidavit, as that of the Appellants, founded on such lackadaisical attitude and lack of seriousness is not worthy of and is incapable of invoking the exercise of the discretion of neither the Court below nor this Court. I consider it worthless and incapable of proving of any or all of the facts for which it was intended to prove. See Mokwe V. Ezeuko & Anor (2000) 14 NWLR (Pt. 686) 143 @ p. 155.
My Lord, this is year 2018, that is about 26 years after the judgment sought to be set aside was delivered by the Court below on 28/7/1992, and the parties are still at the very first stage of an application for extension of time by the Appellants to apply to set it aside. What a sad commentary!
Having found as above that the relief of extension of time to apply to set aside the judgment of the Court below was not made out by the Appellants that ought to be the end of this appeal since without an extension of time, a precondition in the in the circumstances of the relief for setting aside made five years after the delivery of the judgment sought to be set aside, the relief of setting aside becomes dead on arrival. However, being the penultimate Court in the land enjoined to consider all proper issues submitted before it by the parties, I shall proceed to consider and resolve, albeit briefly, the issue of the relief of setting aside of the judgment of the Court below to determine whether or not the Appellants made out a case for the setting aside of the judgment of the Court below.
Now, in an application to set aside the judgment of a Court made to the Court that delivered the judgment, an applicant, such as the Appellants must by credible evidence put forward by them satisfy the Court of the following conditions, namely;
1. The Applicant must adduce good reasons for being absent at the hearing
2. He must show that he has good reasons for his delay in bringing the application; whether there was undue delay in bringing this application so as to prejudice the party in whose favor the judgment persists.
3. The Respondent will not be prejudiced or embarrassed if the order for rehearing was made.
4. The Applicants case was not manifestly unsupportable
5. The Applicant’s conduct throughout proceedings is deserving of sympathetic consideration.
See N. A. Williams V. Hope Rising Voluntary Funds Society (Supra) @ p. 145. See also Sanusi V. Ayoola (1992) 9 NWLR (Pt. 165) 275 @ p. 279.
Going by the 35 paragraphs affidavit in support of the application by the Appellants to set aside the judgment of the Court below, as in the printed record, they seem to rely on four grounds, namely; that they were not notified of the reassignment of the case form Onalaja J., to Adagun J.; that the judgment was delivered during the vacation period of the Court below; that the Respondent had by paragraph 35 of its counter affidavit admitted that the entire debt plus accrued interest had been repaid by the principal of the Appellants and therefore, the Appellants were not in any way indebted any longer to the Respondent and finally that the judgment was entered pursuant to the abandoned summons for judgment rather than on the trial in which the Respondent led evidence as ordered by the Court below. I intend to consider all these grounds but not in any particular order.
In considering the issue of notification of reassignment of the case, I must point it out at once that it has been found by the Court below, a finding against which there is no contention and which I have also affirmed earlier in this judgment, that the Appellants were lethargic in their attitude towards the proceedings leading to the judgment of the Court below delivered on 28/7/1992. Now, these are parties to a suit sued as Defendants and duly served with the originating processes, summons for judgment and who had retained the services of a Counsel to enter appearance for them, which appearance was duly entered for them. However, that was all they consider it worthy to do in the entire proceedings. They never filed their defense or counter affidavit to the summons for judgment. They never appeared in Court on any date for the case until the matter was reassigned from Onalaja J., (as he then was) to Adagun J., (now retired).
They still did nothing. In the circumstances can they be heard to complain that they were not notified of the reassignment of the case to Adagun J? I think not! See John V. Blakk (1988) 1NWLR (Pt. 72) 648 @ p. 653, where this Court per Kolawole JCA., had considered it ‘an act of gross negligence’ for the failure of the Appellants to check on their Counsel from 12/1/1987 to 12/1/1988, a period of one year, to ascertain if necessary steps had been taken by the Counsel to comply with the rules of Court. It is even worse in the circumstances of the present appeal.
It is my view therefore, that every party, to a suit including his Counsel if he has one, is obliged to keep tabs with the preliminary pretrial procedures including assignment and reassignment of their cases. They cannot being aware of their case pending in the Court fold their arms akimbo and do nothing to check at the Registry of the Court the progress in term of pretrial matters in their case and wait for service of hearing notice from the Court for a matter not yet due for hearing and which as the name implies, hearing notice, would not be suitable to be served on a party over preliminary pretrial matters, such as assignment or reassignment of a case, which a simple visit to the Registry would reveal to the party. See Ama v. Obabi Olorunkosi (1986) 12 NWLR (Pt. 22) 316 at p. 329 where this Court per Kolawole JCA had stated inter alia thus:
“My understanding of the rules is that after the preliminaries before matter is read for hearing namely: service of the Writ, entry of appearance and the issues of Summons for Directions, legal practitioners are obliged to keep themselves informed of the business of the Courts. Thus it is inexcusable for any legal practitioner to pretend that he did not know when his case came up in any Court.”
In respect of the delivery of the judgment during the vacation period, it was argued for the Appellants that it was delivered during the vacation period of the Court below and was therefore, a nullity. It is one thing to make all and any allegations a party may want to make in a case but quite another thing altogether to prove such allegation and the onus is on the party who makes every positive allegation of facts unless it was admitted by the other party, and there is no initial burden of proof on the other party who merely denies such positive allegation of facts since in law a negative assertion is ordinarily incapable of poof. See Elemo V. Omolade & Ors. (1968) NMLR 359; Atane V. Amu (1974) 10 SC 237; Fashanu V. Adekoya (1974) 6 SC 83; Kate Enterprises Ltd. V Daewoo Nig Ltd. (1985) 2 NWLR (Pt. 116); Onyenge V. Ebere 18 NSCQR (Pt.)
There was therefore, no burden on the Respondent to prove that 28/7/1992 on which date the judgment of the Court below sought to be set aside was delivered was during the vacation period of the Court below as that is for the Appellants who had so alleged to prove. So, did the Appellants prove that the 28/7/1992 was a vacation period of the Court below? I think not! In the entire proceedings, they never tendered any evidence showing the sitting calendar of the Court below for the year 1992 to substantiate their allegation.
To find this allegation as proved fact without such vital evidence would be as good as indulging in mere surmise and or conjectures, which a Court of law has no business to indulge in. The duty of the Court is to decide issues on the facts as established before them by evidence and on the law. This is so because a Court is only but a Court of law and fact. It must therefore, at all times avoid relying on conjectures or mere surmise or sympathy and or glorifying mere speculations without any hard concrete evidence in proof thereof. See lsah V. State (2007) 12 NWLR (Pt. 1049) 582 @ p. 614, where it was held inter alia thus:
“A trial Court must not base its decision on speculation and extraneous matters not supported by the evidence before the Court as this will occasion miscarriage of justice. In other words, the Court?s finding must be supported by concrete and real evidence and not speculation.”
See also Ejezie V. Anuwu (2008) 12 NWLR (Pt. 1101) 446 @ p. 490, where the Supreme Court made it abundantly and succinctly clear and with finality inter alia thus:
“A Court has no jurisdiction to speculate on conjecture. A Court must confine itself to the evidence before it and give judgment on the evidence.”
See further Agip (Nig.) Ltd. V. Agip Petroli Int?l (2010) 5 NWLR (Pt. 1187) 348 @ p. 413; ACB Plc. V. Emostrade Ltd. (2002) 8 NWLR (Pt. 770) 501.
I find therefore as fact, as was also rightly found by the Court below, that the Appellants failed to prove that 28/7/1992 was a vacation period of the Court below. At any rate even if it had been shown that 28/7/1992 was a vacation period of the Court below, it is the law that in so far as all that took place in that date before the Court below was the mere delivery of the judgment, it would be of no moment once no miscarriage of justice ensued and would not by the reason of that alone render the judgment of the Court below a nullity, contrary to the vehement but baseless contentions of the Appellants in this appeal. This is so because there is really no further role for the parties to play on a date judgment it is delivered except to say as it pleases the Court even when perhaps deep down it might have displeased of the parties sorely. See Veritas Insurance Co. Ltd V. Cititrust Investment Ltd. (1993) 3 NWLR (Pt. 281) 349 @ pp. 368 – 370.
In General Oil Ltd. V Oduntan (1990) 7 NWLR (Pt. 163) 423 @ p. 433 this Court per Niki Tobi JCA (as he then was but later JSC and now resting in peace) puts it so poetically inter alia thus:
“It is not the duty of the Court to wake up an Applicant who has slept all the way and is enjoying his deep sleep to the extent that he does not care to know the existence of his legal rights. He should be allowed to enjoy his slumber. Equity will not wake him up and since the Courts operate the principles of equity, they will not wake him up.”
I now come to the ground of the alleged admission by the Respondent that the entire money due to it from the Appellants and their principal had been repaid by their principal. The Appellants had relied heavily on paragraph 35 of the counter affidavit of the Respondent to contend that the judgment was a nullity since the entire debt or most of it sought to be recovered had already been paid to the Respondent by their principal.
To properly focus this consideration, I have taken the liberty to reproduce the entire depositions in paragraphs 35(a) – (g) of the Respondent’s counter affidavit as follows:
35.
a. That the Defendants never approached him for any accounts.
b. That he duly discharged his duties as Receiver in accordance with law and made periodic returns to the Registrar of Companies.
c. That the landed property sold was that of DAB Industries Limited (that is, the company under Receivership).
d. That the assets sold were professionally valued by Messrs Jide Taiwo & Co., as having a value of between N1. 5m and N1.6m in September, 1985 whilst the assets were actually sold for N1.6m in February, 1986. A copy of the Valuer?s letter dated 19th September, 1985 is now shown to me, annexed herewith and marked Exhibit ?B?.
e. That the sale was made to the highest bidder after the property was advertised in three National Newspapers, viz. The Guardian of November 1, 1985. The Business Times of November 4, 1985 and the New Nigerian Newspapers of November 7, 1985. Cuttings of the newspaper aforesaid are now shown to me, annexed herewith and marked Exhibits ‘C’, ‘Cl’ and ‘C2’.
f. That he personally informed Mr. Dele Afolabi of the sale price at a meeting held on 6th February, 1986.
g. That the Defendants conveyed their acceptance to the transfer of the interest of the 1st Defendant company in the landed property to the new purchaser vide their letters dated 28th April, 1986. Copies of the said letters are shown to me and marked Exhibits ‘D’ and ‘Dl’. See pages 65 – 69 of the record of appeal.
Honestly, having calmly looked at the above depositions and considered the entirety of the case as presented by the Respondent, which is that some recovery has been made through the instrumentality of a ‘Receiver’, who in law has no authority unless he was also appointed as a ‘Manager’ to carry on a going concern since his duty is simply to stop the business, collect the debts and realize the assets; See Uwakwe V. Odogwu (1989) 5 NWLR (Pt. 123) 562 @ p. 589; Re Manchester & Milford Railway (1880) CH.D 645 @ p. 653, appointed for that purpose but that there are still outstanding sums due to the Respondent which the property of the principal realized was unable to satisfy, I cannot see how these depositions could be taken to amount to an admission by the Respondent that the entire debt due to it from the Appellants and their principal had been repaid as contended by the Appellants.
On the fourth grounds as to whether the judgment of the Court below was based on the summons for judgment or on the trial ordered by the Court below, I have considered the facts and circumstances considered by the Court below and its finding thereon that it was of no moment and did not in any way occasion any miscarriage of justice on the Appellants, and having myself considered the entire circumstances, facts and proceedings leading to the judgment of the Court below delivered on 28/7/1992 together with the submissions of Counsel in this appeal, I am satisfied that the Court below was correct in its ruling that the judgment sought to be set aside did not occasion any miscarriage of justice to the Appellants in the face of the overwhelming unchallenged affidavit and oral evidence.
My Lords, this is one ruling of the Court below, per Adefope – Okojie J., (as he then was now JCA) going by the profound statements of the law and rich analysis contained therein on all the issues as joined by the parties that I needed to talk so very less since the Court below has said all the right things and found all the correct facts and thus had covered the field on these issues leaving nothing to chance. Indeed, the only option ever open or available to an appellate Court where the findings of the lower Court is correct is to affirm and stand by it and not to set aside the correct findings and this is so even where the appellate Court finds that the reason leading to the correct finding is wrong. Once an appellate Court finds that the conclusion reached by a trial Court is correct, it has no duty to interfere. This is so because an appellate Court is not so much concerned with the correctness or wrongness of the reasons adduced by a trial Court for its decisions or conclusions but rather more concerned with whether the decision reached or conclusion arrived at was correct or wrong. See Alhaji Ndayako & Ors. v. Alhaji Dantoro & Ors. (2004) 13 NWLR (Pt. 889) 187 @ p. 198. See also Abaye V. Ofili (1986) 1 NWLR (Pt. 15) 134; Ukejianya V. Uchendu 18 WACA 46.
Thus, the duty of an appellate Court to interfere will arise only where the finding, conclusion and or decision of the lower Court is wrong and or perverse. In law, a finding or conclusion of a Court is perverse when such finding does not flow from the proved evidence or was arrived at wrongly or was anchored on extraneous matters. In all such circumstances an appellate Court will interfere to set it aside and make appropriate finding as justified and borne out by the evidence in the printed record of appeal. See Sogbamu V. Odunaiya (2013) All FWLR (Pt. 700) 1247 @ p. 1307. See also Matanmi & Ors V. Victoria Dada & Anor (2013) WRN 1 @ P. 19; Chief Odofin V. Isaac Ayoola (1984) 11 SC 72; Nwosu V. Board of Custom & Excise (1988) 5 NWLR (Pt. 93) 22; Nneji V. Chukwu (1996) 10 NWLR (Pt. 378) 265; Obajimi V. Adeobi (2008) 3 NWLR (Pt. 1075) 1 @ p. 19; Owor V. Christopher (2010) All FWLR (Pt. 511) 962 @ p. 992; Mini Lodge Ltd. V. Ngei (2010) All FWLR (Pt. 506) 1806 @ pp. 1820 – 1821.
In the circumstances, therefore, the Court below per Adefope – Okojie J., having made the correct findings and reached the correct conclusion on the affidavit, counter affidavit of the parties and the record of the Court below in the Appellants’ application to set aside the judgment of the Court below per Adagun J., there is no reason for this Court to interfere with those correct findings and conclusions. Consequently, the sole issue is hereby resolved against the Appellants in favor of the Respondent. This appeal is thus bereft of any merit and is therefore, liable to be dismissed. Consequently, it is hereby so dismissed.
In the result, the Ruling of the High Court of Lagos State, Ikeja Judicial Division, Coram. O. A. Adefope – Okojie J., (as he then was) in Suit No: ID/1649/1989: NAL Merchant Bank Limited (now Sterling Bank Plc) V. Dele Afolabi & Brothers Nig. Ltd & Anor., delivered on 28/2/2002 in which the Application by the Appellants as Defendants/Applicants to set aside the judgment of the Court below, Coram S. O. Adagun J., delivered on 28/7/92 in favor of the Respondent as Claimant was refused and dismissed is hereby affirmed.
There shall be no order as to cost.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree with the exhaustive judgment prepared by my learned BiobeIe Abraham Georgewill, J.C.A., which I had the honour of reading in print with nothing useful to add.
UGOCHUKWU ANTHONY OGAKWU, J.C.A.: My learned brother, Biobele Abraham Georgewill, JCA, made available to me the draft of the leading judgment which has just been delivered.
In his characteristic sapience he has considered and resolved every question, latent and patent, involved in the appeal. I adopt the reasoning and conclusion in the leading judgment as mine, with nothing more to add.
Appearances:
Both parties, though duly served with hearing notices on 12/9/2018, were absent and were also not represented by Counsel For Appellant(s)
Both parties, though duly served with hearing notices on 12/9/2018, were absent and were also not represented by Counsel For Respondent(s)
