FCMB v. JOHN (2021)

FCMB v. JOHN

(2021)LCN/15119(CA)

In The Court Of Appeal

(ASABA JUDICIAL DIVISION)

On Friday, March 12, 2021

CA/AS/204/2017

Before Our Lordships:

Mohammed Ambi-Usi Danjuma Justice of the Court of Appeal

Joseph Eyo Ekanem Justice of the Court of Appeal

Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal

Between

FIRST CITY MONUMENT BANK PLC APPELANT(S)

And

GBEMRE TOBORE JOHN RESPONDENT(S)

RATIO

WHAT THE CONCEPT OF ABUSE OF JUDICIAL PROCESS ENTAILS

The concept of abuse of judicial process has attracted the attention of the superior Courts of this clime. In the case SARAKI v. KOTOYE (1992) 9 NWLR (PT. 264) 156, 188 – 189 Karibi-Whyte, JSC, explained the concept as follows:- “The concept of abuse of judicial process is unprecise. It involves circumstances of infinite varieties and conditions. Its one common feature is the improper use of the judicial process in litigations to interfere with the due administration of justice. It is recognized that the abuse of the process may lie in both a proper or improper use of the judicial process in litigations. But the employment of the judicial process is only regarded generally as an abuse when a party improperly uses the issue of the judicial process to the irritation and annoyance of his opponent, and the efficient and effective administration of justice. This will arise in instituting a multiplicity of actions on the same subject matter against the same opponent on the same issues. See OKORODUDU v. OKOROMADU (1977) 3 SC 21; OYEGBOLA v ESSO WEST AFRICAN INC (1966) 1 ALL NLR 170. Thus, the multiplicity of actions on the same parties even where there exists a right to bring the action is regarded as an abuse. The abuse lies in the multiplicity and manner of the exercise of the right, rather than the exercise of the right, per se. The abuse consists in the intention, purpose and aim of the person exercising the right to harass, irritate and annoy the adversary and interfere with the administration of justice; such as instituting different actions between the same parties simultaneously in different Courts, even though on different grounds. See HARRIMAN v. HARRIMAN (1989) 5 NWLR (PT. 119) 6. Similarly so held was where two similar processes were used in respect of the exercise of the same right. Namely a cross-appeal and a respondent’s notice. See ANYADUBA v. N. R. T. CO. LTD (1990) 1 NWLR (PT. 127) 397; JADESIMI v. OKOTIE-EBOH (1986) 1 NWLR (PT. 16) 278. This Court has also held as an abuse of the process, an application for adjournment by a party to an action to bring an application to Court for leave to raise issue of facts already decided by Courts below – see ALADE v. ALEMULOKE (1988) 1 NWLR (PT. 69) 207.” The foregoing was quoted by M. Mohammed, JSC (as he then was) in OGOEJEOFO v. OGOEJEOFO (2006) 135 LRCN 786, 798 – 799 and has been followed in a plethora of cases including ABUBAKAR v. BEBEJI OIL AND ALLIED PRODUCTS LTD (2007) ALL FWLR (PT. 362) 1855, DINGYADI v. INEC (NO 1) (2010) 18 NWLR (PT. 1224) 1 and AJAOKUTA STEEL COMPANY LIMITED v. GREENBAY INVESTMENT AND SECURITY LIMITED (2019) 8 NWLR (PT. 1674) 213. PER JOSEPH EYO EKANEM, J.C.A.

WHETHER IT IS ABUSE OF JUDICIAL PROCESS WHERE A PARTY FILES A NOTICE OF APPEAL OR MOTION WHEN A SIMILAR APPLICATION IS PENDING IN THE FILE

In SHELL PETROLEUM DEVELOPMENT COMPANY (NIG) LTD v. AGBARA (2016) ALL FWLR (PT. 825) 287, 325 cited by appellant’s counsel, it was held thus:- “I think I should remind your Lordships that in a plethora of cases, this Court has permitted an appellant to select and rely on one notice of appeal where he filed several notices of appeal. The one he has chosen or selected or relied upon must be the extant notice of appeal. All other, whether they are 101 or more, must be taken to be abandoned whether there is formal application to strike out.” See alsoGARBA v. MOHAMMED (2017) ALL FWLR (PT. 867) 420. The usual practice is that such notices of appeal will be withdrawn at the hearing of the appeal leaving only one notice of appeal as the extant one. The Court will then strike out the other notice/s of appeal and the issue of abuse of judicial process does not arise. The same consideration applies to the filing of multiple motions in this instance. The number of motions filed is immaterial, so also the fact that some of the motions were filed while others were still pending. What is important is that appellant’s counsel in his written address and while moving the extant motion withdrew the other pending motions leaving the motion of 15/1/2016 as the only pending motion. The learned trial judge ought to have struck out the other motions there and then or in his ruling. In the case of ANI v. EFFIOK (2017) 18 NWLR (PT. 1567) 281, the applicants filed an application for extension of time to seek leave to appeal etc. While the said application was pending, they filed another application seeking substantially the same reliefs. Respondent contended that there was an abuse of judicial process. Augie, JSC, ruled as follows at page 307:- “Let me quickly reiterate the point I made that the applicants are not barred from filing this application… The argument that the earlier application must be withdrawn before the applicants can bring this application lacks merit. There is no rule of law or practice that stops a party from filing an application when a similar application is pending in the file. The practice in Court is that a previous application can be withdrawn before the fresh application is moved or thereafter. As to multiplicity of notices of appeal, this Court made it clear in TUKUR v. GOVERNMENT GONGOLA STATE (1988) 1 NWLR (PT. 68) 39 that an appellant can file two notices of appeal, and can validly withdraw any of them”. See also TOMTEC (NIG) LTD v. FEDERAL HOUSING AUTHORITY (2009) 18 NWLR (PT. 1173) 358, 377 and DIKE-OGU v. AMADI (2020) 1 NWLR (PT. 1704) 45, 58. PER JOSEPH EYO EKANEM, J.C.A.

INTERPRETATION OF ORDER 25 RULE 6 OF THE THE HIGH COURT OF DELTA STATE (CIVIL PROCEDURE) RULES 2009 REGARDING WHETHER A COURT CAN EXTEND TIME BEYOND THE PERIOD OF TIME STIPULATED UNDER THE PROVISIONS OF THE RULES OF THE COURT

The trial Court held that, by virtue of Order 25 Rule 6 of the Rules, he could not extend time for the application. Counsel for the appellant has taken the position that the power of the trial Court to extend time cannot be hamstrung by rules of Court. Section 274 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) provides that subject to the provisions of any law made by the House of Assembly of the State, the Chief Judge of the State may make rules for regulating the practice and procedure of the High Court of the State. The High Court of Delta State (Civil Procedure) Rules 2009 were made by the Chief Judge of Delta State pursuant to the said provision. Order 25 Rule 6 thereof reads:- “If a party or his legal practitioner fails to attend the pre-trial conference or obey a scheduling or pre-trial order or is substantially unprepared to participate in the conference or fails to participate in good faith the Judge shall:- (a) In the case of the claimant dismiss the claim; (b) In the case of the defendant enter final judgment against him. Provided that any judgment given under this rule may be set aside upon an application made within 7 days of the judgment or such other period as the trial judge may allow not exceeding the pre-trial conference period. The application shall be accompanied by an undertaking to participate effectively in the pre-trial conference” The provision is clear and unambiguous and the law in this regard is that where the words of a statute are clear and unambiguous, they should be given their clear and unambiguous meaning unless doing so will lead to absurdity. In other words, the provision should be given its natural and ordinary meaning. See NAFIU RABIU v. STATE (1980) 10 -11 SC 130,FAWEHINMI v. IGP (2002) FWLR (PT. 108) 1355 and NYESOM v. PETERSIDE (2016) 7 NWLR (PT. 1512) 432. Order 25 Rule 6 supra gives the Court the power to set aside a judgment given under the rule upon an application made within 7 days of the judgment or such other period as the pre-trial judge may allow but not exceeding the pre-trial conference period. In other words after the expiration of 7 days of the judgment, the pre-trial judge can still extend the period for the application but he cannot do so after the period of the pre-trial conference. Appellant’s counsel submitted that there was no evidence that the pre-trial judge allocated a period of time for the pre-trial conference. The short answer to this submission is to be found in Order 25 Rule 4 of the Rules which stipulates in part that:- “The pre-trial conference or series of pre-trial conference with respect to any case shall be completed within 3 months of the commencement…” The pre-trial judge therefore did not need to allocate a period of time for the pre-trial conference. The above rule has done so, to wit: a period of 3 months of its commencement. The pre-trial conference commenced on 15/6/2015 when Mr. Egbor for the appellant informed the Court that he was unable to participate in the pre-trial conference as his clients were unserious. On that account, the pre-trial judge entered judgment in favour of the respondent. Since the pre-trial conference commenced on 15/6/2015, the three month period for the completion of the pre-trial conference ended in September, 2015. The extant motion was filed on 15/6/2016, long after the period stipulated in Order 25 Rule 6. It was on this account that the learned trial judge held that he could not extend time beyond September (2015). There is no doubt that rules of Court are meant to be obeyed and are binding on both the parties and the Court. It has also been held that if the interpretation of the rules of Court will occasion injustice or defeat access to justice, the Court must not interpret the rules to defeat the ends of justice. In OLOBA v. AKEREJA (1988) 3 NWLR (PT. 84) 509, 528 Oputa, JSC stated that:- “All Rules of Court are made in aid of justice. That being so, the interest of justice will have to be given paramountcy over any Rule compliance with which will lead to outright injustice.” See also FIDELITY BANK PLC v. MONYE (2012) ALL FWLR (PT. 631) 412. The reason is that a Court is not a servant to the rules of Court but its master. The rules are to help and not defeat the course of justice. They are aids to the Court and not masters. SeeAQUA AGRO INDUSTRY LTD v. SAGRANI(1999) 1 NWLR (PT. 585) 84. Again, it has been held that mandatory rules of Court are not sacrosanct. In KATTO v. CENTRAL BANK OF NIGERIA (1991) LPELR – 1678 (SC) P 26 Akpata, JSC held that:- “As mandatory Rules of Court are not as sacrosanct as mandatory statutory provisions, Courts of justice are more inclined to regard as directory or permissive any provision in Rules of Court which appears mandatory if it is implicit in the provision in question or combination of other provisions with the provision in question so dictates, or if the ends of justice demand it be so construed.” See also UMEAKUANA v. UMEAKUANA (2019) 14 NWLR (PT. 1691) 61 and FIDELITY BANK PLC v. MONYE (2012) ALL FWLR (PT. 631) 1412. I am also aware that there are several cases of the Supreme Court where it was decided that rules of Court are meant to be obeyed and must be obeyed. In ADENIYI v. TINA GEORGE INDUSTRIES LTD (2019) 16 NWLR (PT. 1699) 560, 584 Kekere – Ekun, JSC, opined that:- “The rules of Court are enacted to assist the Court in dispensing justice with ease, certainty and dispatch. They are also to ensure fairness and a level playing for all the parties. It is therefore imperative that rules of Court should be complied with. Strict compliance ensures speedy and efficient dispensation of justice… Failure to comply with the rules may attract the sanction of incompetence, which may ultimately lead to the striking out or dismissal of a process or, indeed the entire suit.” See also SOLANKE v. SOMEFUN (1974) 1 SC 141, ABIA STATE TRANSPORT CORPORATION v. QUORUM CONSORTIUM LTD (2009) 172 LRCN 134 and SEC v. OKEKE (2018) 12 NWLR (PT. 1634) 462 It is necessary to re-state that Order 25 Rule 6 states the period for the enlargement of time to apply for the setting aside of default judgment given under the rule. In the cases ofSANUSI v. AYOOLA (1992) LPELR – 3009 (SC) and AINA v. ABIODUN (2005) LPELR – 11197 (CA), it was held that an application for enlargement of time to set aside a default judgment brought out of time is incompetent unless there is an application for enlargement of time to apply to do so. Akaahs, JCA, as he then was, in AINA v. ABIODUN supra held that a Court cannot peremptorily exercise its discretion to set aside its judgment or the judgment of a judge of co-ordinate jurisdiction unless the application is competent before the Court. In the case of SANUSI v. AYOOLA supra pages 19-20 Karibi – Whyte, JSC, opined that:- “There is the well settled elementary and fundamental principle of law that a Court on disposing of a cause before it renders itself functus officio. It ceases to have jurisdiction in respect of such a case – see EKERETE v. EKE (1925) 6 NLR 118, AKINYEDE v. THE APPRAISER (1971) 1 ALL NLR 162. It cannot assume the status of an appellate Court over its own decision except there is statutory power to do so. – see FRITZ v. HOBSON (1880) 14 CH.D 542. The power of the Court to do so can only be statutory and in this case, it is provided in Order 32 Rule 4 (supra). It is well settled principle of our jurisprudence and an important requirement of our administration of justice that where the exercise of a power is statutory such power can only be exercised within the limits prescribed by the statute. In the exercise of the powers under the rule, the learned judge was exercising a statutory power and non-compliance with which rendered his decision nugatory. The learned trial Judge in exercising his discretion under the provision of the enabling statutory power must adhere strictly to the provisions relied upon. When a statute says that an act must be done within a particular period, the act must be done within the period so prescribed.” The Supreme Court in the above case was interpreting and applying Order 32 Rule 4 of the High Court of Lagos State (Civil Procedure Rules) 1972 which provides that any judgment obtained where one party does not appear at the trial may be set aside by the Court upon such terms as may seem fit, upon an application made within sixty days after the trial or such longer period as the court may allow. It is my view that the same reasoning applies to the instant matter. Once the judgment was entered by the pre-trial judge the power to set it aside was statutory under Order 25 Rule 6 of the Rules. Since the said rule provides for the period of time within which an application for extension of time to apply to set aside the judgment may be granted, that period must be complied with by both the parties and the Court. The case of UBA PLC v. MODE (NIG) LTD supra cited by appellant’s counsel does not advance the case of the appellant because the rule of Court considered in that case did not contain limitation as to time for applying for restoration of appeal dismissed under the rule. Again, the provision of Order 1 Rule (2) and Order 44 Rule 3(1) and (2) of the Rules are general provisions as to the objectives of the rule and extension of time, respectively. It is an accepted canon of construction that where there are two provisions, one special and the other general, covering the same subject matter, a case falling within the words of the special provision must be governed thereby and not by the terms of the general provision. The reason behind the rule is that the legislature in making the special provision is considering the particular case and expressing its will in regard to that case, hence the special provision forms an exception impacting the general. In other words, the special case provided for in it is exempted and taken out of the general provision and its ambit; the general provision does not apply. This rule applies equally when the special and general provisions are enacted in the same piece of legislation. See BAMGBOYE v. ADMINISTRATION-GENERAL (1954) 14 WACA 615, ATTORNEY-GENERAL OF THE FEDERATION v. ATTORNEY-GENERAL OF LAGOS STATE (2014) 9 NWLR (PT. 1412) 217 and ATTORNEY-GENERAL OF BAUCHI STATE v. ATTORNEY-GENERAL OF THE FEDERATION (2018) 17 NWLR (PT. 1648) 299. The matter of setting aside of default judgment provided for specifically in Order 25 Rule 6 of the Rules is governed by that specific provision and not the general provision for extension of time in Order 44 Rules 3 (1) and (2) thereof. The learned trial judge was therefore right in holding that he could not extend the time beyond September (2015) and that the prayer was not grantable as that would have violated the provision of Order 25 Rule 6. PER JOSEPH EYO EKANEM, J.C.A.

CONDITIONS THAT MUST BE SHOWN BY AN APPLICANT SEEKING FOR AN ENLARGEMENT OF TIME

The law is that for an indulgence to be granted, there must be an excuse. In an application for enlargement of time to take any step in any proceeding, the applicant must satisfy the court that there are good and substantial reasons for the delay. Where the application is to set aside a default judgment as in this instance, the Court must consider:- (a) The reason for the failure to appear at the trial or, in this instance, the failure to participate in the proceeding in which the judgment was given. (b) Whether there has been undue delay in making the application to set aside the judgment so as to prejudice the party in whose favour the judgment subsists. (c) Whether the party in whose favour the judgment subsists would be prejudiced or embarrassed upon an order for rehearing of the suit being made or, in this instance, for the hearing of the suit on the merit, so as to render such a course inequitable. (d) Whether the applicant’s case is manifestly unsupportable. See WILLIAMS v. HOPE RISING VOLUNTARY FUNDS SOCIETY (1982) LPELR – 3484 (SC). PER JOSEPH EYO EKANEM, J.C.A.

JOSEPH EYO EKANEM, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of the High Court of Delta State, Effurun Judicial Division delivered on 15/11/2016 by E. Tobi, J. (as he then was) in suit No. EHC/244/2011. In the ruling, the trial Court dismissed the application of the appellant to set aside the judgment of that Court delivered by Harriman, J, on 15/6/2015 in favour of the respondent pursuant to Order 25 Rule 6 of the High Court of Delta State (Civil Procedure) Rules, 2009, for the reason of the appellant being unprepared to participate in the pre-trial conference that began on that date.

Aggrieved by the decision, the appellant appealed to this Court vide two notices of appeal that were filed on 15/11/2016 and 14/12/2016.

The facts of the case leading to this appeal are that respondent took out a writ of summons endorsed with a statement of claim against the appellant for declaratory, injunctive and monetary reliefs against the appellant. Apart from denying the claim of the respondent, the appellant also set up a counter-claim against the respondent seeking declaratory, injunctive and monetary reliefs. After

exchange and close of pleadings, hearing notice for pre-trial conference was, presumably upon application, issued to the parties. On 15/6/2015, when the pre-trial conference was scheduled to start, Mr. Egbor, counsel for the appellant, who was absent, informed the court that he was unable to participate in the conference as, according to him, “his clients are unserious”. Respondent’s counsel asked for judgment. The learned trial judge who presided over the conference, as earlier stated, entered judgment in favour of the respondent in the sum claimed in the statement of claim plus N10,000.00 cost.

The appellant, via a new counsel, filed an application for an order staying execution of the default judgment and setting aside the default judgment. The application was filed on 19/6/2015. The said motion was struck out on 8/7/2015. On 13/7/2015, a fresh application was filed by the appellant bearing the same prayers as the previous one. Yet again the appellant filed another application on 10/8/2015 with the same prayers plus one additional prayer, to wit; “An order extending time which the defendant/applicant may apply to set aside the

judgment of this Honourable Court delivered on 15th of June, 2015, the time allowed by the rules having expired”. The applicant in the motion was “Fin Bank Plc”. Thereafter, on 15/1/2016, the appellant filed another motion bearing the same prayers as the motion of 10/8/2015. The name of the applicant in the said motion is “First City Monument Bank Plc”, the appellant. The motion was supported by an affidavit and a written address as well as a further affidavit and a reply on points of law. The respondent opposed the motion by filing a counter-affidavit.
The trial Court, as earlier stated, dismissed the application.

Pursuant to the rules of this Court, appellant filed the following briefs of argument:-
(1) Amended appellant’s brief of argument filed on 24/6/2020 and deemed duly filed and served on 14/9/2020.
(2) A reply brief of argument filed on 20/9/2019 and deemed filed on 23/9/2019.
Both briefs were settled by G. O. K. Ebowe, Esq.

The respondent filed his brief of argument on 5/4/2019 and the same was deemed duly filed and served on 23/9/2019. The same was settled by I. M. Okoro, Esq. the

respondent also filed a notice of preliminary objection against the appeal. Argument on the preliminary objection is at pages 4 – 7 of the respondent’s brief of argument.

At the hearing of the appeal on 20/1/2021, G. O. K. Ebowe, Esq, for the appellant adopted and relied on the briefs filed on behalf of the appellant in urging the Court to allow the appeal and set aside the judgment of the trial Court.

M. I. OKORO, Esq, for the respondent adopted and relied on the respondent’s brief of argument in urging the Court to dismiss the appeal. He applied for leave to withdraw the notice of preliminary objection filed against the appeal. I accordingly strike out the notice of preliminary objection filed on 3/10/2019 as well as the argument in respect thereof at pages 4 – 7 paragraphs 3.0 – 4.06 of the respondent’s brief of argument.

The following issues have been formulated in the appellant’s brief of argument for the determination of the appeal:-
“1) WHETHER THE LEARNED TRIAL JUDGE WAS RIGHT IN REFUSING TO SET ASIDE THE JUDGMENT DELIVERED IN DEFAULT ON THE 15/6/2015 AT THE PRE-TRIAL STAGE FOR FAILURE

OF THE INITIAL COUNSEL TO PARTICIPATE IN THE PRE-TRIAL CONFERENCE? (GROUND 1).
2) WHETHER THE MOTION TO SET ASIDE THE DEFAULT JUDGMENT FILED ON THE 15/1/2016 WAS AN ABUSE OF COURT PROCESS? (GROUND 2).
3) WHETHER THE LEARNED TRIAL JUDGE WAS RIGHT IN HOLDING THAT THE APPELLANT FAILED TO SHOW SUFFICIENT REASONS WHY THE MOTION TO SET ASIDE THE JUDGMENT WAS FILED OUT OF TIME AND ALSO THAT BASED ON ORDER 25 RULE 6 OF THE HIGH COURT OF DELTA STATE (CIVIL PROCEDURE) RULES 2009, HE CANNOT EXTEND TIME BEYOND SEPTEMBER, 2015? (GROUND 3).

Respondent’s counsel formulated the following issues for the determination of the appeal:-
“(a) Whether the learned trial judge was justified in refusing to set aside the judgment of the lower Court delivered on 15/6/2015 consequent upon the application of the APPELLANT at the lower Court. (Distill from Grounds 1 and 3 of the Notice of Appeal dated/filed on 14/12/2016)
(b) Whether the APPELLANT’S Motion on Notice filed on 15/1/2016 did not amount to an abuse of Court process. (Distilled from Ground 2 of the Notice of Appeal dated/filed on 14/12/2016)”.

The two issues formulated by

respondent’s counsel are more succinct and precise than the three issues formulated by appellant’s counsel. I shall therefore be guided by the two issues in the determination of this appeal. In doing so, I shall commence with issue (B) which focuses on abuse of Court process:-
ISSUES B
Whether the appellant’s motion on notice filed on 15/1/2016 did not amount to an abuse of Court process.

Appellant’s counsel contended that the motion to set aside the judgment filed on 15/1/2016 was not an abuse of Court process. He stated that all other similar applications filed before the hearing of the motion were all withdrawn as at 19/10/2016 when the trial Court heard the motion the subject of this appeal. He referred to the written address in support of the said motion wherein the motions filed on 13/7/2015 and 10/8/2015 were withdrawn. He contended that the reasons for filing and withdrawing the applications were not frivolous, vexatious or oppressive as they were meant to get the right process before the Court. He further contended that this was tantamount (sic: equivalent) to filing of more than one notice of appeal, which he

submitted is not an abuse of Court process as long as the appellant indicates the relevant one he is predicating his appeal on. He found support for his position in SHELL PETROLEUM DEVELOPMENT COMPANY (NIG) LTD v. AGBARA (2016) ALL FWLR (PT. 825) 287 among other cases.

Counsel set out the definition of abuse of Court process as given in several cases including UGO v UGO (2017) ALL FWLR (PT. 902) 919. It was his submission that based on those cases, the motion of 15/1/2016 cannot be an abuse of Court process as the appellant was only exercising its constitutional right as well as a right given it in the High Court of Delta State (Civil Procedure) Rules. He argued that since the appellant discovered errors in the previous applications, he had the right to withdraw the wrong ones and file a proper one. He further argued that the application was only meant to take advantage of Order 25 Rule 6 of the said Rules. He finally referred to WORLU v. WOCHA (2011) ALL FWLR (PT. 602) 1778 and posited that the opinion expressed therein are apt and in line with the instant appeal.

Respondent’s counsel contended that appellant’s motion filed on 15/1/2016

was grossly incompetent as it amounted to an abuse of the process of Court. He added that the concept of abuse of process involves circumstances and situations of infinite variety and conditions. It was his position that it is not the exercise of the right to approach the Court per se that is the abuse but its improper and irregular exercise that constitutes the abuse. He referred to OWOH v. ASUK (2011) 2 NMLR 104.

Counsel proceeded to give a chronology of the motions filed by the appellant at the trial Court and noted that all the motions were the same in substance and the respondent duly filed his counter-affidavits and written addresses against them. He noted that once the respondent filed his counter-affidavit, the appellant would file another motion on notice to try to correct the issues challenged in the affidavit in support of the earlier motion. He submitted that this manner of trying to correct errors in an affidavit defective in substance amounts to a wrongful use of the process of Court and makes the subsequent motion an abuse of Court process. He referred to and relied on ABUBAKAR v. BEBEJI OIL & ALLIED PRODUCTS LTD (2007) ALL FWLR (PT.

362) 855. He stressed that the appellant did not discontinue any of the previous motions but maintained them until he argued the motion of 15/1/2016.

Counsel argued that the fact that the appellant purported to withdraw the previous motions at the point of moving the motion of 15/1/2016 was immaterial. This is because, according to him, superior Courts have held that it is an abuse of judicial process for a party to file a notice of discontinuance so that he may have his way in a new suit. He extrapolated that filing several new motions with the previous ones still pending with a view to withdrawing the earlier ones so that the new one can be granted is an abuse of process.

RESOLUTION
The concept of abuse of judicial process has attracted the attention of the superior Courts of this clime. In the case SARAKI v. KOTOYE (1992) 9 NWLR (PT. 264) 156, 188 – 189 Karibi-Whyte, JSC, explained the concept as follows:-
“The concept of abuse of judicial process is unprecise. It involves circumstances of infinite varieties and conditions. Its one common feature is the improper use of the judicial process in litigations to interfere with the

due administration of justice. It is recognized that the abuse of the process may lie in both a proper or improper use of the judicial process in litigations. But the employment of the judicial process is only regarded generally as an abuse when a party improperly uses the issue of the judicial process to the irritation and annoyance of his opponent, and the efficient and effective administration of justice. This will arise in instituting a multiplicity of actions on the same subject matter against the same opponent on the same issues. See OKORODUDU v. OKOROMADU (1977) 3 SC 21; OYEGBOLA v ESSO WEST AFRICAN INC (1966) 1 ALL NLR 170. Thus, the multiplicity of actions on the same parties even where there exists a right to bring the action is regarded as an abuse. The abuse lies in the multiplicity and manner of the exercise of the right, rather than the exercise of the right, per se. The abuse consists in the intention, purpose and aim of the person exercising the right to harass, irritate and annoy the adversary and interfere with the administration of justice; such as instituting different actions between the same parties simultaneously in different Courts,

even though on different grounds. See HARRIMAN v. HARRIMAN (1989) 5 NWLR (PT. 119) 6. Similarly so held was where two similar processes were used in respect of the exercise of the same right. Namely a cross-appeal and a respondent’s notice. See ANYADUBA v. N. R. T. CO. LTD (1990) 1 NWLR (PT. 127) 397; JADESIMI v. OKOTIE-EBOH (1986) 1 NWLR (PT. 16) 278. This Court has also held as an abuse of the process, an application for adjournment by a party to an action to bring an application to Court for leave to raise issue of facts already decided by Courts below – see ALADE v. ALEMULOKE (1988) 1 NWLR (PT. 69) 207.”
The foregoing was quoted by M. Mohammed, JSC (as he then was) in OGOEJEOFO v. OGOEJEOFO (2006) 135 LRCN 786, 798 – 799 and has been followed in a plethora of cases including ABUBAKAR v. BEBEJI OIL AND ALLIED PRODUCTS LTD (2007) ALL FWLR (PT. 362) 1855, DINGYADI v. INEC (NO 1) (2010) 18 NWLR (PT. 1224) 1 and AJAOKUTA STEEL COMPANY LIMITED v. GREENBAY INVESTMENT AND SECURITY LIMITED (2019) 8 NWLR (PT. 1674) 213.

It is pertinent to re-state the facts upon which the issue of abuse of process was founded in this matter. After

judgment was entered against the appellant for its unpreparedness to participate in the pre-trial conference, the appellant filed the following:-
(1) A motion on notice for:-
(a) An order for stay of execution of the judgment pending hearing and determination of the motion;
(b) An order setting aside the said judgment.
The motion was filed on 10/6/2015 but was struck out on 8/7/2015.
(2) A motion on notice filed on 13/7/2015 having the same prayers obviously in place of the first motion.
This motion was filed in the name of “FINBANK PLC” who was the original defendant/counter-clamant. The motion was filed out of time and without a prayer for extension of time to file it.
(3) A motion filed on 10/8/2015 containing the same prayers as the previous ones but with a new prayer, to wit: an order extending time within which the appellant may apply to set aside the judgment.
Again, the applicant in the motion was named as “FINBANK PLC”, but Finbank Plc had been substituted with the appellant on 13/4/2015. Even though I have not been able to trace the record of proceedings of that date, the amended writ

of summons and other accompanying processes at pages 189 – 214 etc show that the Court ordered the substitution. The parties do not dispute this fact.
(4) The extant motion on notice filed on 15/1/2016 with the three prayers in the motion on notice in (3) supra but with the name of the applicant being that of the appellant.

In his written address in support of the motion described immediately above, appellant’s counsel at the beginning thereof applied for leave of the trial Court to withdraw the motions filed on 13/7/2015 and 10/8/2015. He gave explanation for the filing of those motions. In his ruling, the learned trial judge acknowledged that while moving his application, appellant’s counsel withdrew those motions. Nevertheless the learned trial judge held that there was an abuse of judicial process. His lordship of the trial Court reasoned thus at pages 350 – 351 of the record of appeal:-
“The Defendant/Applicant has filed four motions on the same subject between the same parties. While some of these were pending the Defendant would file and the Claimant/Respondent would file counter affidavit. This is clearly an

abuse of Court process. This lies in the multiplicity of motions pending… rather than right to institute an action. The Defendant filed a motion on 19/6/2015. After this was struck out, the Defendant/Applicant filed another motion on 13/7/2015, 10/8/2015 and 2/5/2016. Some of these were filed while others were pending. If this does not amount to abuse, I wonder what it is.”
I am afraid that I am unable to agree with his lordship. As rightly argued by appellant’s counsel, the situation on hand is similar to the filing of multiple notices of appeal against one decision within the time limited for doing so and at the hearing of the appeal withdrawing all but one for the one to stand as the extant notice of appeal. In SHELL PETROLEUM DEVELOPMENT COMPANY (NIG) LTD v. AGBARA (2016) ALL FWLR (PT. 825) 287, 325 cited by appellant’s counsel, it was held thus:-
“I think I should remind your Lordships that in a plethora of cases, this Court has permitted an appellant to select and rely on one notice of appeal where he filed several notices of appeal. The one he has chosen or selected or relied upon must be the extant notice of

appeal. All other, whether they are 101 or more, must be taken to be abandoned whether there is formal application to strike out.”
See alsoGARBA v. MOHAMMED (2017) ALL FWLR (PT. 867) 420.
The usual practice is that such notices of appeal will be withdrawn at the hearing of the appeal leaving only one notice of appeal as the extant one. The Court will then strike out the other notice/s of appeal and the issue of abuse of judicial process does not arise.
The same consideration applies to the filing of multiple motions in this instance. The number of motions filed is immaterial, so also the fact that some of the motions were filed while others were still pending. What is important is that appellant’s counsel in his written address and while moving the extant motion withdrew the other pending motions leaving the motion of 15/1/2016 as the only pending motion. The learned trial judge ought to have struck out the other motions there and then or in his ruling.
In the case of ANI v. EFFIOK (2017) 18 NWLR (PT. 1567) 281, the applicants filed an application for extension of time to seek leave to appeal etc. While the said application was

pending, they filed another application seeking substantially the same reliefs. Respondent contended that there was an abuse of judicial process. Augie, JSC, ruled as follows at page 307:-
“Let me quickly reiterate the point I made that the applicants are not barred from filing this application… The argument that the earlier application must be withdrawn before the applicants can bring this application lacks merit. There is no rule of law or practice that stops a party from filing an application when a similar application is pending in the file.
The practice in Court is that a previous application can be withdrawn before the fresh application is moved or thereafter. As to multiplicity of notices of appeal, this Court made it clear in TUKUR v. GOVERNMENT GONGOLA STATE (1988) 1 NWLR (PT. 68) 39 that an appellant can file two notices of appeal, and can validly withdraw any of them”.
See also TOMTEC (NIG) LTD v. FEDERAL HOUSING AUTHORITY (2009) 18 NWLR (PT. 1173) 358, 377 and DIKE-OGU v. AMADI (2020) 1 NWLR (PT. 1704) 45, 58.
The appellant, contrary to the contention of respondent’s counsel, did not withdraw his

previous motions so as to “have his way in the Motion on Notice filed on 15/1/2015”. Rather, he did so as to have what he considered to be the competent motion before the trial Court. Again, it is not out of order for a party to file a process to replace a previous one that he thinks is substantially defective so long as the Court has not heard and determined the merits of the previous motion.

In the light of what I have said so far, I enter a negative answer to issue B and resolve it in favour of the appellant.

ISSUE A
Whether the learned trial judge was justified in refusing to set aside the judgment of the lower Court delivered on 15/6/2015 consequent upon the application of the appellant at the lower Court.
Appellant’s counsel stated that appellant’s first motion filed on 19/6/2015 was filed within time and that the learned trial judge in his ruling agreed that there were intervening factors why the extant application was filed. He expresses surprise that the learned trial judge went on to hold that the appellant had not given or shown sufficient reasons why the extant motion was filed out of time. Counsel

referred to the supporting affidavit and submitted that the appellant copiously stated the reasons why the application was filed out of time. Citing the case ofN. A. WILLIAMS v. HOPE RISING VOLUNTARY SOCIETY (1982) ALL NLR 1, he submitted that appellant placed sufficient materials before the trial Court to show why the motion was filed out of time.

He argued that the trial Court has infinite powers to extend time during pre-trial. He cited and relied on UBA PLC v. MODE (NIG) LTD (2001) FWLR (PT. 40) 1674. He posited that the learned trial judge ought to have granted the prayer extending time because there was nothing limiting his powers in that regard.

Counsel stated that the fault of not participating in the pre-trial conference was that of the former counsel for the appellant and that a party should not be punished for the mistake of his counsel. He placed reliance onALSTHOM S. A. v. SARAKI (2000) FWLR (PT. 22) 964. He further stated that the trial Court should have adjourned the pre-trial conference to give the appellant an opportunity to get a new counsel.

Continuing, counsel contended that the learned trial judge was wrong in holding that

he could not extend the time beyond September, 2015 as doing otherwise would mean violating Order 25 Rule 6 of the High Court Rules. He posited that the holding is contrary to Order 1 Rule (2) of the High Court Rules and that no rule of procedure can take away the right of extending time from a Judge in the light of Section 6 (6) (b) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). He re-iterated the position of Courts that if the interpretation of the rules of Court will occasion injustice or defeat access to justice, the Court must not interprete them to defeat the end of justice. He placed reliance on FIDELITY BANK PLC v. MONYE (2012) ALL FWLR (PT. 631) 1412 and Order 44 Rule 3 of the High Court of Delta State (Civil Procedure) Rules 2009. He added that mandatory rules of Court are not as sacrosanct as mandatory statutory provisions and that there is no evidence that the trial Court allocated a period for the pre-trial conference.

Respondent’s counsel submitted that the affidavit of the appellant in support of the motion did not conform to the Evidence Act. He stated that the deponent of the affidavit did not state that

he had the consent of the appellant to depose to the affidavit. He referred to Order 25 Rules 4 and 6 of the relevant rules of Court and noted that the motion leading to this appeal was filed over 8 months after the judgment and long after the pre-trial conference period. It was his position that the power of the trial Court to extend time does not exceed the pre-trial conference period, to wit: 3 months. This, he stated, implied that the trial Court had no power by the rules of Court to extend time or set aside the judgment after 15/9/2015. He therefore contended that as at 15/1/2016 when the appellant filed the extant motion, the trial Court no longer had power by the rules of Court to entertain and grant the application.

Counsel went on to submit that the depositions in paragraphs 6 -9 of the supporting affidavit amounted to hearsay as the source of the information therein was never in Court throughout the proceedings. He further submitted that the appellant did not adduce any reason why it did nothing to correct the errors found in the previous motion of 31/7/2015 till 14/1/2016. He finally argued that mistakes of counsel, misapplication of the law,

misjudgment etc. do not come within the principle of law that mistakes of counsel should not be visited on the litigant.

Appellant’s counsel by way of reply submitted that paragraph 13 of the supporting affidavit is not hearsay because the facts are within the personal knowledge of the source of the information. He then argued that there was no evidence that the pre-trial judge allocated a period of time for the pre-trial conference.

RESOLUTION
Respondent’s counsel contended that the deponent of the supporting affidavit did not state that he had the authority of the appellant to swear to the said affidavit. This same point was raised by respondent’s counsel at the trial Court and the learned trial judge resolved it against him. He has not filed a cross-appeal against that decision of the trial Court. He cannot seek to argue against that decision through the backdoor.

Again, the respondent’s counsel contended that paragraph 13 of the supporting affidavit is hearsay as the source of the information contained therein was never in Court so as to narrate same to the deponent of the affidavit. This point was not taken up before

the trial Court and so it is a fresh issue or point for which leave to raise ought to be applied for and obtained. See STOOL OF ABINABINA v. ENYIMADU (1953) 12 WACA 171 and AKPENE v. BARCLAYS BANK OF NIGERIA (1997) 1 SC 47. I therefore discountenance the point.

In any event, in the further affidavit and reply of the appellant, it is deposed that the source of the information visited the Court and obtained the information contained in paragraph 13 of the supporting affidavit. What is more the facts deposed to in the said relevant sub-paragraph of paragraph 13 of the supporting affidavit form part of the record of the trial Court which that Court had the power to suo motu look at in the consideration of the application. See UZODINMA v. IZUNASO (NO. 2) (2011) 12 NWLR (PT. 1275) 30 and AKEREDOLU v. ABRAHAM (2018) 10 NWLR (PT. 1628) 510.

1999 (as amended) provides that subject to the provisions of any law made by the House of Assembly of the State, the Chief Judge of the State may make rules for regulating the practice and procedure of the High Court of the State. The High Court of Delta State (Civil Procedure) Rules 2009 were made by the Chief Judge of Delta State pursuant to the said provision. Order 25 Rule 6 thereof reads:-
“If a party or his legal practitioner fails to attend the pre-trial conference or obey a scheduling or pre-trial order or is substantially unprepared to participate in the conference or fails to participate in good faith the Judge shall:-
(a) In the case of the claimant dismiss the claim;
(b) In the case of the defendant enter final judgment against him.
Provided that any judgment given under this rule may be set aside upon an application made within 7 days of the judgment or such other period as the trial judge may allow not exceeding the pre-trial conference period. The application shall be accompanied by an undertaking to participate effectively in the pre-trial conference”
The provision is clear and unambiguous and the law in

this regard is that where the words of a statute are clear and unambiguous, they should be given their clear and unambiguous meaning unless doing so will lead to absurdity. In other words, the provision should be given its natural and ordinary meaning. See NAFIU RABIU v. STATE (1980) 10 -11 SC 130,FAWEHINMI v. IGP (2002) FWLR (PT. 108) 1355 and NYESOM v. PETERSIDE (2016) 7 NWLR (PT. 1512) 432.
Order 25 Rule 6 supra gives the Court the power to set aside a judgment given under the rule upon an application made within 7 days of the judgment or such other period as the pre-trial judge may allow but not exceeding the pre-trial conference period. In other words after the expiration of 7 days of the judgment, the pre-trial judge can still extend the period for the application but he cannot do so after the period of the pre-trial conference.
Appellant’s counsel submitted that there was no evidence that the pre-trial judge allocated a period of time for the pre-trial conference. The short answer to this submission is to be found in Order 25 Rule 4 of the Rules which stipulates in part that:-
“The pre-trial conference or series of

pre-trial conference with respect to any case shall be completed within 3 months of the commencement…”
The pre-trial judge therefore did not need to allocate a period of time for the pre-trial conference. The above rule has done so, to wit: a period of 3 months of its commencement. The pre-trial conference commenced on 15/6/2015 when Mr. Egbor for the appellant informed the Court that he was unable to participate in the pre-trial conference as his clients were unserious. On that account, the pre-trial judge entered judgment in favour of the respondent. Since the pre-trial conference commenced on 15/6/2015, the three month period for the completion of the pre-trial conference ended in September, 2015. The extant motion was filed on 15/6/2016, long after the period stipulated in Order 25 Rule 6. It was on this account that the learned trial judge held that he could not extend time beyond September (2015).
There is no doubt that rules of Court are meant to be obeyed and are binding on both the parties and the Court. It has also been held that if the interpretation of the rules of Court will occasion injustice or defeat access to justice, the

Court must not interpret the rules to defeat the ends of justice. In OLOBA v. AKEREJA (1988) 3 NWLR (PT. 84) 509, 528 Oputa, JSC stated that:-
“All Rules of Court are made in aid of justice. That being so, the interest of justice will have to be given paramountcy over any Rule compliance with which will lead to outright injustice.” See also FIDELITY BANK PLC v. MONYE (2012) ALL FWLR (PT. 631) 412.
The reason is that a Court is not a servant to the rules of Court but its master. The rules are to help and not defeat the course of justice. They are aids to the Court and not masters. SeeAQUA AGRO INDUSTRY LTD v. SAGRANI(1999) 1 NWLR (PT. 585) 84. Again, it has been held that mandatory rules of Court are not sacrosanct. In KATTO v. CENTRAL BANK OF NIGERIA (1991) LPELR – 1678 (SC) P 26 Akpata, JSC held that:-
“As mandatory Rules of Court are not as sacrosanct as mandatory statutory provisions, Courts of justice are more inclined to regard as directory or permissive any provision in Rules of Court which appears mandatory if it is implicit in the provision in question or combination of other provisions with the provision in

question so dictates, or if the ends of justice demand it be so construed.”
See also UMEAKUANA v. UMEAKUANA (2019) 14 NWLR (PT. 1691) 61 and FIDELITY BANK PLC v. MONYE (2012) ALL FWLR (PT. 631) 1412.
I am also aware that there are several cases of the Supreme Court where it was decided that rules of Court are meant to be obeyed and must be obeyed. In ADENIYI v. TINA GEORGE INDUSTRIES LTD (2019) 16 NWLR (PT. 1699) 560, 584 Kekere – Ekun, JSC, opined that:-
“The rules of Court are enacted to assist the Court in dispensing justice with ease, certainty and dispatch. They are also to ensure fairness and a level playing for all the parties. It is therefore imperative that rules of Court should be complied with. Strict compliance ensures speedy and efficient dispensation of justice… Failure to comply with the rules may attract the sanction of incompetence, which may ultimately lead to the striking out or dismissal of a process or, indeed the entire suit.”
See also SOLANKE v. SOMEFUN (1974) 1 SC 141, ABIA STATE TRANSPORT CORPORATION v. QUORUM CONSORTIUM LTD (2009) 172 LRCN 134 and SEC v. OKEKE (2018) 12 NWLR (PT. 1634) 462

It is necessary to re-state that Order 25 Rule 6 states the period for the enlargement of time to apply for the setting aside of default judgment given under the rule. In the cases ofSANUSI v. AYOOLA (1992) LPELR – 3009 (SC) and AINA v. ABIODUN (2005) LPELR – 11197 (CA), it was held that an application for enlargement of time to set aside a default judgment brought out of time is incompetent unless there is an application for enlargement of time to apply to do so. Akaahs, JCA, as he then was, in AINA v. ABIODUN supra held that a Court cannot peremptorily exercise its discretion to set aside its judgment or the judgment of a judge of co-ordinate jurisdiction unless the application is competent before the Court.
In the case of SANUSI v. AYOOLA supra pages 19-20 Karibi – Whyte, JSC, opined that:-
“There is the well settled elementary and fundamental principle of law that a Court on disposing of a cause before it renders itself functus officio. It ceases to have jurisdiction in respect of such a case – see EKERETE v. EKE (1925) 6 NLR 118, AKINYEDE v. THE APPRAISER (1971) 1 ALL NLR 162. It cannot assume the status

of an appellate Court over its own decision except there is statutory power to do so. – see FRITZ v. HOBSON (1880) 14 CH.D 542. The power of the Court to do so can only be statutory and in this case, it is provided in Order 32 Rule 4 (supra).
It is well settled principle of our jurisprudence and an important requirement of our administration of justice that where the exercise of a power is statutory such power can only be exercised within the limits prescribed by the statute. In the exercise of the powers under the rule, the learned judge was exercising a statutory power and non-compliance with which rendered his decision nugatory.
The learned trial Judge in exercising his discretion under the provision of the enabling statutory power must adhere strictly to the provisions relied upon. When a statute says that an act must be done within a particular period, the act must be done within the period so prescribed.”
The Supreme Court in the above case was interpreting and applying Order 32 Rule 4 of the High Court of Lagos State (Civil Procedure Rules) 1972 which provides that any judgment obtained where one party does not appear at the

trial may be set aside by the Court upon such terms as may seem fit, upon an application made within sixty days after the trial or such longer period as the court may allow.
It is my view that the same reasoning applies to the instant matter. Once the judgment was entered by the pre-trial judge the power to set it aside was statutory under Order 25 Rule 6 of the Rules. Since the said rule provides for the period of time within which an application for extension of time to apply to set aside the judgment may be granted, that period must be complied with by both the parties and the Court. The case of UBA PLC v. MODE (NIG) LTD supra cited by appellant’s counsel does not advance the case of the appellant because the rule of Court considered in that case did not contain limitation as to time for applying for restoration of appeal dismissed under the rule. Again, the provision of Order 1 Rule (2) and Order 44 Rule 3(1) and (2) of the Rules are general provisions as to the objectives of the rule and extension of time, respectively. It is an accepted canon of construction that where there are two provisions, one special and the other general, covering the

same subject matter, a case falling within the words of the special provision must be governed thereby and not by the terms of the general provision. The reason behind the rule is that the legislature in making the special provision is considering the particular case and expressing its will in regard to that case, hence the special provision forms an exception impacting the general. In other words, the special case provided for in it is exempted and taken out of the general provision and its ambit; the general provision does not apply. This rule applies equally when the special and general provisions are enacted in the same piece of legislation. See BAMGBOYE v. ADMINISTRATION-GENERAL (1954) 14 WACA 615, ATTORNEY-GENERAL OF THE FEDERATION v. ATTORNEY-GENERAL OF LAGOS STATE (2014) 9 NWLR (PT. 1412) 217 and ATTORNEY-GENERAL OF BAUCHI STATE v. ATTORNEY-GENERAL OF THE FEDERATION (2018) 17 NWLR (PT. 1648) 299.
The matter of setting aside of default judgment provided for specifically in Order 25 Rule 6 of the Rules is governed by that specific provision and not the general provision for extension of time in Order 44 Rules 3 (1) and (2) thereof.

The learned trial judge was therefore right in holding that he could not extend the time beyond September (2015) and that the prayer was not grantable as that would have violated the provision of Order 25 Rule 6.

The above ought to be the end of this appeal but since this Court is an intermediate appellate Court, I will proceed to consider the merits of the issue in case my position above is reversed on appeal.

embarrassed upon an order for rehearing of the suit being made or, in this instance, for the hearing of the suit on the merit, so as to render such a course inequitable.
(d) Whether the applicant’s case is manifestly unsupportable. See WILLIAMS v. HOPE RISING VOLUNTARY FUNDS SOCIETY (1982) LPELR – 3484 (SC).

The learned trial judge held that the appellant did not give sufficient reason why the motion was filed out of time. This conclusion was reached inspite of his lordship’s observation that the extant motion was filed following intervening factors on 13/7/2015, 31/7/2015 and 10/8/2015. The trial judge seemed not to have been impressed with the intervening factors.

In Paragraphs 3, 4, 5, 6, 7, 8, 9 and 13, the deponent of the affidavit in support of the motion chronicled the events leading to the filing of the extant motion. I hereby set them out hereunder:-
“3) That we initially filed within time a similar motion to set aside the judgment on the 19th day of June, 2015.
4) That inspite of several enquires made at the Registry by my humble self and other counsel in chambers, the motion was fixed for hearing

without our knowledge.
5) That same was struck out in our absence as we were not notified or served with hearing notice of the aforesaid motion.
6) That we accordingly filed another application on the 13th of July, 2015.
7) That upon further appraisal by my principal in office on the 31st of July, 2015 during our monthly chambers briefing, he pointed out the fact that we are out of time in filing the application to set aside.
8) That upon further perusal of the documents in the file, we discovered that Finbank Plc was substituted on the 13/4/2015, hence we had to file this present application with the correct parties to substitute the application filed on the 10th of August, 2015.
9) Hence the present motion for stay of execution and to set aside the judgment of the 15th of June, 2015 delivered during pre-trial conference.
13) That I was informed by Mr. Godspower Omokwe, Legal Officer of the defendant on the 18th of June, 2015 at about 5.50pm in our office and I verily believe him as follows:-
vii) That counsel formally representing the defendant/applicant never informed the Bank that he will not participate in the pretrial

conference.
viii) That it came as a shock and surprise that counsel did not participate in the pretrial and knowing fully well of the consequences.
ix) That the Bank never instructed him not to participate in the pretrial conference.”

In the counter-affidavit deposed to by a legal practitioner in the firm representing the respondent it is deposed as follows in paragraphs 4, 5 (a) (b) and (c):-
“4. That paragraphs 3, 4, 5, 7, 8, 9, 10, 11, 12, 13 (i), (ii), (iii), (v), (vii), (viii), (ix) and (x), 14, 15, 16, 17, 20, 22 and 23 of the affidavit in support of the Motion on Notice are false and are hereby denied.
5. That in contravention of the allegation of facts contained in the above mentioned paragraphs, I state as follows:-
(a) That I know for a fact that the Motion on Notice filed on 19/06/2015 by the DEFENDANT/APPLICANT unto Court was struck out by this Honourable Court for lack of diligent prosecution as the counsel for the DEFENDANT/APPLICANT was not in Court to argue the said Motion on Notice neither was the DEFENDANT/APPLICANT also in Court.
(b) That the motion on Notice dated 13/07/2015 filed by the

DEFENDANT/APPLICANT is an afterthought and overreaching as same was filed by the DEFENDANT/APPLICANT after receiving the Counter-Affidavit filed by the CLAIMANT/RESPONDENT in opposition to the DEFENDANT/APPLICANT’S second Motion on Notice dated 13/07/2015 stating the exact fact culminating to the entry of judgment against the DEFENDANT/APPLICANT.
(c) That K.C. Egbor, Esq, of counsel duly represented the DEFENDANT/APPLICANT in Court on 15/06/2015 and informed this Honourable Court that the DEFENDANT/APPLICANT whom he represents were not prepared to participate in the pre-trial conference scheduled to hold on that day as this was evidence by their absence from Court during the pre-trial.”

The learned trial judge in his ruling at page 344 of the record acknowledged that the motion of 19/6/2016 was struck out because the appellant was not aware of the date fixed for the motion. This vindicates the deposition of the appellant that the motion was struck out in its absence as it was not notified or served with hearing notice. That was the fault of the registry of the trial Court. The law is well established that a litigant should not suffer for

the mistake of the registry of the Court. See CCB v. ATTORNEY-GENERAL ANAMBRA STATE (1992) 8 NWLR (PT. 261) 528. The registry of a Court should not eat sour grapes and set the teeth of a party or litigant on edge.
There is no doubt that the motions of the appellant subsequent to the extant motion were filed as a result of discovery of fundamental defects in those motions. There is nothing in law or rule of practice that forbids a party to file a fresh process to correct an error found in a previous process so long as he withdraws the previous process at the appropriate stage. This explains the delay in filing the extant motion. The litany of errors was the fault of appellant’s counsel and not that of the appellant. A Court of law will not punish a litigant for the sin of his counsel unless it is shown that the litigant himself was a party to the commission of the sin and especially where to do so will cause injustice to the litigant. See ADEKEYE v. AKIN – OLUGBADE (1987) 6 SC 265, BUSARI v. OSENI (1992) 4 NWLR (PT. 237) 557 and BOWAJE v. ADEDIWURA (1976) 6 SC 143. The fault of counsel for the appellant has been well identified and explained fully. I

understand it clearly.

In respect of the event of 15/6/2015 which led to the entry of judgment against the appellant, it is obvious that the appellant could not have expected such a turn of events. In paragraph 13 (vii) of the affidavit supporting the extant motion, it is deposited that the counsel representing the appellant (at the pre-trial conference) did not inform the appellant that he would not participate in the pre-trial conference. Thinking aloud, it is my view that with the sudden withdrawal of the counsel and the fact that the appellant was not in Court, the Pre-trial conference should have been adjourned even if for a short period of time and with cost for the respondent. The sudden and curious withdrawal of counsel explains the reason for the failure to participate in the proceedings of 15/6/2015.

I have read the defence and counter-claim of the appellant vis – a – vis the claim of the respondent. I do not think that the case of the appellant is manifestly unsupportable.

I do not also see how the respondent will be prejudiced or embarrassed by an order for re-hearing since the essence of such an order is to ensure hearing and

determination of the dispute on the merit. Technical victories in litigation should be discouraged.

Assuming therefore that the motion was competent, it is my view that it ought to have been granted as there were enough materials to do so.
Nevertheless, in view of my holding on the position of the trial Court that he could not extend time beyond September, 2015, I must enter an affirmative answer to issue A and resolve it against the appellant.

On the whole and in the light of my resolution of issue A, I come to the conclusion that the appeal lacks merit and it fails. I accordingly dismiss it and affirm the decision of the trial court.
The parties shall bear their costs.

MOHAMMED AMBI-USI DANJUMA, J.C.A.: I have read before now the lead judgment just delivered by my learned brother, Joseph Eyo Ekanem, JCA in this Appeal; and I agree entirely that on the merit, the Appellant’s Appeal would have succeeded and resulted to having the trial Court’s decision set aside and a retrial ordered, so as to afford the Appellant the right of participation in the pre-trial conference aborted by the fault of his erstwhile counsel, without

reference to him. It was not a counsel’s exercise of professional discretion.
However, this shall not, per-se, avail the Appellant, as the application to set aside under the relevant and applicable Rules of Court can only be brought within 7 days of the order or such extended period as may be ordered.
The merit of the Appellant’s case has been truncated by his none compliance with a statutory condition precedent for the exercise of re-activation of the pre-trial conference. Effluxion of time had rendered any such right, statute barred. Appellant had an empty-shell of a cause of action without a right of action to be activated in a Court of law.
He was stopped by laches and his rights had been effectively waived and barred by his inaction.
On the part of the Courts, it is clear and the law is that Courts of law like umpires in a game, cannot go outside the Rules of Court and do things in any way they like.
OKAFOR V. UCHEBOI (2003) FWLR PT. 136; BHOJSONS PLC VS DANIEL KALIO (2006) ALL FWLR (PT. 312) p. 3038 AT 3045 RATIO 12 SC.
The trial High Court could not legally have gone beyond the limitation of law placed on the period

within which to exercise its power and discretion which had been effectively circumscribed as to duration of time.
I therefore, affirm the decision of the trial Court, in concurrence with the lead judgment.

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I have had the opportunity to read in advance the lead Judgment of my learned brother, JOSEPH EYO EKANEM, JCA and I am entirely in agreement with him on the reasoning and conclusion reached.
The Appeal lacking in merit and is hereby dismissed.
I abide by the consequential order in the lead judgment.

Appearances:

O. K. EBOWE, Esq. For Appellant(s)

I. OKORO, Esq. For Respondent(s)