MACWAN PAULS LTD v. LABAYCO VENTURES LTD & ORS (2021)

MACWAN PAULS LTD v. LABAYCO VENTURES LTD & ORS

(2021)LCN/14933(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Wednesday, January 27, 2021

CA/A/705/2017

RATIO

JUDGMENT: MEANING AND NATURE OF DEFAULT JUDGMENT

To begin with, a default judgment is defined to be any judgment delivered which may arise from default appearance or defence. It is normally obtained by failure of the defendant to follow certain rules of procedure. It is attached to this fact that the Court has power to revoke a default judgment but not judgment delivered on merit. Judgment delivered on merit cannot be revoked by the trial Court, due to the incidents anticipated from default judgment, a little line of distinction must be made. In the case of Nigerian Universal Bank Ltd & Ors. v. Samba Petroleum Co., Ltd (2006) LPELR 5974 (CA), this Court held:
“A judgment given after a normal trial, that is to say after evidence is taken, and submissions are made on issues of fact and the law arising from the evidence is a judgment on the merits. On the other hand, default judgments may arise from default of appearance or defence. Such judgments are not judgments on the merits since it was obtained by failure of the defendant to follow certain rules of procedure. The well laid down principles is that until the Court has pronounced a judgment on the merits or by consent, it has the power to revoke the expression of its coercive when that has only been obtained by failure to follow any of the rules of procedure. See: Evans v. Bartlam (1937) AC 473. A judgment for default of pleadings may be set aside by any judge in the judicial division while the judgment was delivered. See Wimpey Ltd v. Balogun (1986) 3 NWLR (Pt. 28) 324”.
See also the cases of Ibok v. Honesty II (2006) LPELR – 765 (CA), Mohammed & Ors. v. Husseini & Anor. (1998) 14 NWLR (Pt. 584) 108 and U.T.C. (Nig.) Ltd v. Pamotei (1989) 2 NWLR (Pt. 103) 244, @ 282 – 283. PER STEPHEN JONAH ADAH, J.C.A.

JUDGMENT: WHETHER THE COURT CAN SET ASIDE ITS JUDGMENT IN A CASE ON MERIT

Generally speaking, when a trial Court has given judgment in a case on the merit, that Court is functus officio in relation to that judgment once it is pronounced. It cannot ordinarily reopen the case for a fresh hearing. A party dissatisfied can only bring proceedings on appeal against it. However, at common law and equity, a person against whom a judgment had been procured by fraud is entitled to approach the Court by an action or motion to set aside the judgment. See INEC v. Nnaji (2004) 16 NWLR (Pt. 900) 473, Remawa v. NHCB CRC Ltd (2007) 2 NWLR (Pt. 1017) 155. PER STEPHEN JONAH ADAH, J.C.A.

Before Our Lordships:

Stephen Jonah Adah Justice of the Court of Appeal

Peter Olabisi Ige Justice of the Court of Appeal

Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal

Between

MACWAN PAULS LIMITED APPELANT(S)

And

1. LABAYCO VENTURES LTD (Suing By Its Attorney Globe Broadcasting Communications Ltd) 2. HON. MINISTER, FEDERAL CAPITAL TERRITORY 3. FEDERAL CAPITAL DEVELOPMENT AUTHORITY (FCDA) RESPONDENT(S)

STEPHEN JONAH ADAH, J.C.A. (Delivering the Leading Judgment): This appeal is against the Ruling of the High Court of the Federal Capital Territory, sitting in Apo Abuja, in Suit No: FCT/HC/CV/4818/11, delivered on the 12th day of December, 2013; coram: U.P. Kekemeke, J.

By a Motion filed on the 5th of August, 2013, brought pursuant to Order 7 Rules 1 and 2, Orders 11, 13 Rules 6 and 7 and Order 46(1) of the High Court of the Federal Capital Territory (Civil Procedure) Rules 2004, the 3rd Defendant now appellant prayed the trial Court for the following orders:
1. An Order extending time within which the Applicant may apply to set aside the Judgment of this Court delivered on the 28th day of May, 2012.
2. An Order setting aside the service of 2nd March, 2012 on the 3rd Defendant/Applicant.
3. An Order setting aside the judgment of the Court delivered on the 28th day of May, 2012 in the absence of the 3rd Defendant/Applicant.
4. An Order granting leave to the 3rd Defendant/Applicant to enter appearance, file his response and defend the Plaintiff’s Originating Summons.

The application was anchored on six grounds. See page 202 of the record of appeal together with a 19 paragraph affidavit in support of the Motion deposed to by Kinu A. Kabirwa, (See pages 203 – 205 of the record of appeal).

Upon service of the said Motion on the 1st and 2nd Defendants now Respondent, they filed a 6 paragraph counter affidavit on the 4th November, 2013, while the appellant/applicant filed a Further Affidavit. The 1st and 2nd Defendants did not file any counter affidavit. Parties filed, exchanged and adopted their respective Written Addresses. In a considered Ruling delivered on the 12th December, 2013, the trial Court refused and dismissed the application.

Dissatisfied with the said decision, the appellant appealed to this Court vide a Notice of Appeal filed on the 23rd December, 2013 and an Amended Notice of Appeal filed on the 3rd June, 2019 but deemed properly filed and served on the 17th June, 2020. The record of appeal was transmitted to this Court on 13th October, 2017.

The parties filed and exchanged their respective briefs of argument. Appellant’s Brief of Argument was filed on 3rd June, 2019, but deemed properly filed and served on 17th June, 2020, while the 1st

Respondent’s Brief of Argument was filed on the 29th July, 2020. The 2nd and 3rd Respondents did not file any brief.
Counsel for the appellant submitted four (4) issues for the determination of this appeal. The four (4) issues are:
1. Whether the learned trial Judge was right when he held that the Judgment delivered on 28/05/2012 was not a default judgment. (Distilled from Ground 1 of the Amended Notice of Appeal).
2. Having regard to the entire circumstances of the case, was the learned trial judge right when he refused to set aside the judgment delivered on 28/05/2012? (Distilled from Grounds 2, 3 and 6 of the Amended Notice of Appeal).
3. Was the service of various processes and hearing notices especially that of 2/3/2012 validly and properly served on the Appellant? (Distilled from Grounds 5 of the Amended Notice of Appeal).
4. Whether the learned trial judge was right when he refused to set aside the service of 2/3/2012 on the 3rd Defendant/Appellant. (Distilled from Grounds 4 and 7 of the Amended Notice of Appeal).

In response, counsel for the 1st Respondent adopted the four issues submitted by the appellant in the 1st Respondent’s Brief of Argument filed on the 29th July, 2020.
This appeal will therefore, be determined on the four (4) issues formulated by the appellant and adopted by the 1st Respondent. I now start with issue one.

Issue One:
This issue is – whether the learned trial Judge was right when he held that the Judgment delivered on 28/05/2012 was not a default judgment.

Counsel for the appellant while arguing this issue, submitted that the learned trial Judge was wrong when he held in his ruling on the applicant’s application to set aside his judgment that the said judgment delivered by him on the 28/05/2012 was not a default judgment. That, the views of the trial Judge will only be correct as it relates to the plaintiff, 1st and 2nd Defendant’s. That there is no evidence from the record of proceedings that the appellant appeared on a single date out of all the dates the matter came up. That a judgment delivered where one party does not appear like the present appellant even where the other parties in the case did appear and participated fully does not cease to be a default judgment as against the party who did not

appear. He maintained that the judgment of the trial Court delivered on the 28/5/2012 has all the attributes of a default judgment. That once a party did not appear, did not file any process and did not take part in the proceedings, that it is default judgment and once it is such, it can set aside once the requirements for setting aside such judgment are met. He relied on Ogolo v. Ogolo (2006) 5 NWLR (Pt. 972) 163 at 181 para. F – H. Counsel further relied on Fed. Poly Idah v. Onoja (2012) 12 NWLR (Pt. 1313) and Jamily v. Ayinla (2009) 17 NWLR (Pt. 1170) 238. He urged the Court to hold that the trial Judge was wrong when he held that the said judgment was not a default judgment.

Counsel for the 1st respondent, while arguing issues one and two together submitted that the learned trial Judge was right when he held in his ruling on the application to set aside the judgment of the Court that the said judgment delivered on 28/5/2012 was not a default judgment. That, the views of the trial Court is correct as it relates to this suit. That the appellant failed or neglected to appear on a single date out of all the dates the matter came up even when hearing

notices, together with the processes where served on it by the bailiff of Court and affidavit of service was lodged. He argued that where a party to a suit had been accorded a reasonable opportunity of being heard and in the manner prescribed by or under the law and for no satisfactory explanation it failed or neglected to attend the sitting of the Court or boycott same that party cannot thereafter be heard to complain about lack of fair hearing. He cited Imasuen v. University of Benin (2011) All FWLR (Pt. 572) @ Pg. 1812 para. D, Ayoola v. Ajibare (2013) All FWLR (Pt. 698) Pg. 1022 para. H –A, Magna Maritime Services Ltd v. Oteju (2005) All FWLR (Pt. 270) 1995, (2005) 14 NWLR (Pt. 945) 517, (2005) 5 SC (Pt. 11) 34, (2005) 22 NSCOR 301. Counsel further relied on The Military Governor, Lagos State & Ors. v. Adeyiga & Ors. (2001) FWLR (Pt. 83) 2187, (2003) 1 NWLR (Pt. 802) 589 at 611 and Obimiami Brick & Stone (Nig.) Ltd v. A.C.B. Ltd (1992) 3 NWLR (Pt. 229) 260.

Counsel maintained that it will be futile to set aside the judgment of the trial Court when the appellant was not able to show any contrary evidence to the finding of the Court on

whether there was service of Notice of Revocation on the 1st respondent by the 2nd & 3rd respondents before the purported allocation to the appellant. He urged the Court to hold that the appellant failed to satisfy the requirement to warrant the trial Court to set aside its judgment of 28/05/2012. That the fact that the appellant alleged not to be aware of the processes and hearing notice duly served on it and refusing to respond to it is not enough to have the judgment set aside. He urged the Court to hold and resolve the issues in favour of the 1st respondent.

Counsel for the appellant while arguing the issues adopted all his arguments in issue one and posited that the trial Court took into account irrelevant factors and thereby came to the wrong decision in refusing to set aside his judgment delivered on 28/5/2012. He stated the principles that ought to have guided the trial Court in setting aside a judgment obtained in the absence of a party. Counsel relied Williams v. Hope Rising Voluntary Funds Society and Jamilu v. Ayinla (supra).

On the reasons for the appellant’s failure to appear at the trial Court, counsel referred to his deposition as contained in paragraphs 14, 15, 16 (d & e) of the affidavit in support of the application to set aside the default judgment. That Exhibit MC9(a) – (d) annexed to the affidavit of the appellant’s application to set aside the default judgment at pages 102 – 106 of the records are all to the effect that the appellant was never aware of the suit and the proceedings at the trial Court. He submitted that there can be no doubt from Exhibit MC9(a)-(d) that the appellant was never aware of the suit and the proceedings leading to default judgment of the trial Court. He urged this Court to hold even on the strength of the affidavit of service that the appellant has adequately explained the reason for its failure to appear in the case.

On the reason for the delay in bringing the application, counsel referred to paragraphs 14, 15 and 16 (d) and (e) of the appellant’s affidavit at pages 82 – 86 of the record of appeal. That the application was filed at the earliest opportunity from the time the appellant became aware of the judgment. He urged the Court to hold that from the circumstances of this case, especially the

explanations of the appellant in paragraphs 14, 15 and 16 (a) – (d) of the affidavit, the appellant is not guilty of delay in bringing the application and it was brought at it earliest opportunity.

On whether the respondent will be prejudiced by grant of the application, counsel urged the Court to take judicial notice of the fact that the 1st respondent’s suit was commenced via Originating Summons. That, an order setting aside the judgment will not necessitate the recalling of witnesses as evidence was by affidavit evidence. That the appellant has also prepared his Memorandum of Conditional Appearance, his Counter Affidavit to the Originating Summons as well as his written address, all in opposition to the Originating Summons. He submitted that the respondents will in no way be prejudiced if the application is granted. He urged the Court to so hold.

On whether the case of the applicant is manifestly unsupportable, counsel submitted that the case of the appellant as submitted to the trial Court had merit. That the appellant raised serious issues of law that ought to have justified a grant of the application to set aside the default

judgment. He highlighted the issues raised in the proposed affidavit in opposition to the 1st respondent’s Originating Summons.

On the conduct of the applicant; counsel submitted that the conduct of the appellant having regard to the entire circumstances of the case deserve a sympathetic consideration. That the appellant has demonstrated good faith by placing all available material facts before the lower Court. He urged the Court to hold that the trial Judge was wrong when he ignored all these materials and rather took irrelevant factors into account and thereby came to the wrong conclusion of refusing the appellant’s application. Also that the appellant has satisfied the principles and requirements to warrant the trial Court to set aside the default judgment of 28/05/2012. Counsel also urged this Court to hold that the finding of the trial Court that the case of the appellant has no merit was wrong. He urged the Court to deem all the depositions in the appellant’s affidavit in support of the appellant’s application to set aside the judgment as true and to accordingly allow this appeal, set aside the judgment of the lower Court and grant leave to the appellant to defend the 1st respondent’s Originating Summons.

Learned counsel for the appellant further submitted that the trial Court Judge was wrong when he held that the appellant was served with the processes of Court. He contended that the so called service on the appellant was not valid, that it was ineffectual and improper. Counsel reproduced the proceedings of the trial Court at pages 171 of the record and the certificate of service of the 1st respondent’s Originating Process together with the hearing notice against 8/6/2011 at page 102 of the records. He submitted that by the certificate of service filed by the bailiff, the Originating process and other Court process of Court did not get to the notice of the 3rd Defendant/Appellant as the bailiff of Court was informed at the said registered address that they did not know the appellant. Counsel also reproduced the proceedings of 20/9/2011, 18/10/2011, 27/10/2011 at pages 174 -176 of the records. He pointed out that from 17/11/2011 till when judgment was delivered by the trial Court that the issue of service on the appellant (3rd Defendant) was never raised or

featured in any of the Court proceedings until judgment was delivered on 28/05/2012. He stated that on 17/11/2011, the trial Judge completely ignored the fact that the suit had been ‘adjourned to the 17/11/11 for report of service on the 3rd Defendant’.

He further submitted that where notice of any proceedings is required, that failure to notify any party is a fundamental omission which entitles that party not served and against whom any order is made in his absence to have the order set aside on ground that a condition precedent to the exercise of jurisdiction for the making of the order has not been fulfilled. He cited SPDC (Nig.) Ltd v. Niger Optical Service Co (2004) 7 NWLR (Pt. 872) 420, and Okogi v. Okoh (2010) 9 NWLR (Pt. 1199) 311. Counsel maintained that the trial Court failed or neglected to satisfy himself on the facts before it as to whether the appellant (as 3rd Defendant) has notice of the pendency of the 1st respondent’s suit against it, before entering judgment against the appellant. He urged the Court to resolve this issue in favour of the appellant for showing that the appellant was not notified of the hearing date of

17/11/11, 23/01/12, 14/02/12, 07/03/12, 15/05/12 and 28/05/12 when judgment was eventually delivered as evidenced by the record of appeal.

In response, counsel for the 1st respondent while arguing issues three and four together submitted that the trial Court was correct when he held that the appellant was served with the processes of Court. He argued that the appellant had no contention with the service on it, of the processes served on it including the Originating Summons served on the 6th June, 2012, hence, it did not ask for orders setting aside same. That the trial Court cannot give what was not asked for as the Court is not a Father Christmas. He relied on Simton Nig. Ltd. v. Pamil Ind. Ltd (2001) 8 NWLR (Pt. 714). He maintained that the appellant has not discharged the evidential burden placed on it to prove when and whether 4, Morija Close, Off Adetokunbo Ademola Crescent, Wuse II, Abuja, is its registered office at all-time material to its application to set aside service. See page 79 of the record of appeal. That the appellant had not demonstrated good faith at the lower Court. He cited George & Ors. v. Dominion Flour Mills Ltd (1963) 1 All NLR

71 and 74. He urged the Court to hold that the trial Judge was right when he considered the relevant factors, thereby refusing the appellant’s application to set aside the judgment. That the appellant was fully aware of the proceedings but failed, refused and neglected to appear or participate in the proceedings. That its contention that it was not aware is an act of it justifying its wrong. On the appellant’s contention that it had no physical presence at Suit A10, Bobsar Complex, Abuja and that service could not have been effected on a ghost left behind to receive documents, counsel submitted that the appellant who can receive any document for the company cannot turn around and content that there was no proper service on it. That the submission by appellant that the trial Court abdicated its responsibility as canvass in paragraph 5.10 of appellant’s brief is of no moment. He relied on SPDC (Nig.) Ltd v. Niger Optical Service Co. (2004) 7 NWLR (Pt. 1872) 420 and Mechanical Systems Ltd v. Desco (Nig.) Ltd (2011) All FWLR (Pt. 555) pg. 406 @ para F.

Contrary to the issue of fair hearing as argued in the appellant’s brief, counsel for the 1st respondent posited that fair hearing is not an abstract term that a party can dangle in the judicial process but one which is real and which must be considered in the light and fact and circumstances of the case. That any party who alleges that he was denied fair hearing must prove specific act or acts of such denial and not a mere agglomeration of conducts which are merely cosmetic. He cited Imasuen v. University of Benin (supra) at Para. F and Orugbo v. Una (2002) FWLR (Pt. 127) 1024, (2002) 16 NWLR (Pt. 792) 175 Para. A – E. Counsel further relied of the cases of Darma v. Oceanic Bank Int’l (Nig.) Ltd (2005) All FWLR (Pt. 248) 1622, (2005) 4 NWLR (Pt. 915) 315 at para. E, 409 para. E, INEC v. Musa (2003) FWLR (Pt. 145) 729, (2003) 3 NWLR (Pt. 806) 72, Okoroike v. Igbokwe (2000) 14 NWLR (Pt. 688) 498, Otu v. Udonwa (2000) 13 NWLR (Pt. 683) 157, Sky Power Airways Ltd v. Olima (2005) 18 NWLR (Pt. 957) 224, Chidoka v. First City Finance Company Ltd (2013) All FWLR (Pt. 659) pg. 1037-1038, paras. G – A. That a person who was not heard but was given ample opportunity of being heard which he failed to make use of cannot thereafter

complain of a loss of fair hearing. That fair hearing is not a one-way affair. That it affects both parties. He maintained that the service of all the processes and hearing notice on the appellant at the trial Court were proper and valid and that the trial Judge was satisfactorily right when he refused to set aside the service of 2/3/2012 on the appellant, as service on it on 2/3/12 was done same as the one of Originating Summons and other processes. That the appellant did not adduced any reason for not responding to the Originating Summons served on 6th June, 2011 and for other processes. He urged the Court not to disturb the findings and judgment of the trial Judge as it is not perverse. That the proceedings at the trial Court in its entirety to the judgment were proper and valid. That the appellant’s right to fair hearing was not breached in any way. They urged the Court to uphold the proceedings of the trial Court leading to the judgment and equally the judgment itself in its entirety.

In addition to the foregoing, the counsel for the appellant contended that the appellant’s right to fair hearing was violated when the lower Court conducted

proceedings on the strength of an improper service effected on the appellant on the 2/3/12. He further contended, that the learned trial Judge, was wrong when he refused to set aside the service of 2/3/12 on the appellant. On whether the service of 2/3/2012 on the appellant was proper, counsel for the appellant submitted that the service of 2/3/2012 on the appellant was improper and invalid. That the appellant is a limited liability company incorporated under the laws of the Federal Republic of Nigeria. That the mode of service of process on a Company is regulated by Section 78 of the Companies and Allied Matter Act 1990 (CAMA). That by the cumulative provision of the said Section 78 of the CAMA and Order 11 Rule 8 Federal Capital Territory High Court, Abuja the 3rd Defendant/Appellant could only have been served Hearing Notice and the 1st Respondent’s reply on points of law by giving the processes to any director, secretary or other principal office of the appellant or by leaving it at the appellant’s registered office. He cited Miden System Ltd v. Effiong (2011) 2 NWLR (Pt. 1231) 354 at 371 paragraphs B – G and Integrated Builders v. Domzaq Vent Nig. Ltd (2005) 2 NWLR (Pt. 909) 97 at 115 paragraphs C – H.

Counsel relied on the authorities of Mark v. Eke (2004) 5 NWLR (Pt. 865) 54 at 85 and Mark v. Eke (supra). He posited that the situation of the present case is even worse. That, there was no order for substituted service by the lower Court. That, the Certificate of Service (marked as Exhibits MC9(a)-(d) attached to the appellant’s affidavit in support of the application to set aside the default judgment shows clearly that the bailiff (Obaje Danjuma) served the appellant by substituted means. He urged the Court to hold that since the appellant was served in a manner other than that provided by law, the service was invalid, ineffectual and as bad as if the appellant was never served at all. He relied on Odutola v. Kayode (1994) 2 NWLR (Pt. 324) 1. Moreso, that since the service of a Hearing Notice together with the 1st respondent’s reply on point of law was not properly done, that the effect is that the appellant was not served a Hearing Notice against the proceeding on 7/3/2012. He cited Tony Anthony Nig. Ltd v. NDIC (2011) 4 NWLR (Pt. 1269) 39 at 63, Omabuwa v. Owhofatsho

(2006) 5 NWLR (Pt. 972) 40 at 67 Para. B, Obu v. Archibong (2010) 2 NWLR (Pt. 1179) 460 at 471. That from the circumstances of this case i.e the proceedings leading up to the last proceedings before the service of the 1st respondent’s reply on point of law together with hearing notice, that there can be no doubt whatsoever that, service of the hearing notice at that stage of the proceedings on the appellant was a necessity, given the appellant’s persistence absence. He urged the Court to hold that the entire proceedings of the lower Court from 7/3/2012 till the judgment of 28/5/2012 was a nullity since it was done in violation of the appellant’s right to fair hearing for the simple reason that he was not served a Hearing Notice together with the 1st respondent’s reply on points on law in the manner provided by law.

The crux of this appeal is the contention that there was no proper service of the processes on the appellant before the lower Court heard the case against her. And that her request for the judgment to be set aside was turned down because the Court held it was not a default judgment. To begin with, a default judgment is

defined to be any judgment delivered which may arise from default appearance or defence. It is normally obtained by failure of the defendant to follow certain rules of procedure. It is attached to this fact that the Court has power to revoke a default judgment but not judgment delivered on merit. Judgment delivered on merit cannot be revoked by the trial Court, due to the incidents anticipated from default judgment, a little line of distinction must be made. In the case of Nigerian Universal Bank Ltd & Ors. v. Samba Petroleum Co., Ltd (2006) LPELR 5974 (CA), this Court held:
“A judgment given after a normal trial, that is to say after evidence is taken, and submissions are made on issues of fact and the law arising from the evidence is a judgment on the merits. On the other hand, default judgments may arise from default of appearance or defence. Such judgments are not judgments on the merits since it was obtained by failure of the defendant to follow certain rules of procedure. The well laid down principles is that until the Court has pronounced a judgment on the merits or by consent, it has the power to revoke the expression of its coercive

when that has only been obtained by failure to follow any of the rules of procedure. See: Evans v. Bartlam (1937) AC 473. A judgment for default of pleadings may be set aside by any judge in the judicial division while the judgment was delivered. See Wimpey Ltd v. Balogun (1986) 3 NWLR (Pt. 28) 324”.
See also the cases of Ibok v. Honesty II (2006) LPELR – 765 (CA), Mohammed & Ors. v. Husseini & Anor. (1998) 14 NWLR (Pt. 584) 108 and U.T.C. (Nig.) Ltd v. Pamotei (1989) 2 NWLR (Pt. 103) 244, @ 282 – 283.

In the instant case, the appellant was sued as the 3rd Defendant by the 1st Respondent in this appeal vide an Originating Summons filed on 17/05/2011. That case was heard by the lower Court and on 28th day of May, 2012, the lower Court delivered a considered judgment. Then on the 5th day of August, 2013, the appellant field a Motion on Notice which is transmitted at pages 79 to 81 of the Record of Appeal seeking inter alia, an order setting aside the judgment of the lower Court and the ruling was delivered on 12th day of December, 2013. Aggrieved by the decision in that

Motion, the appellant now filed this appeal. This clearly means the appeal is not on the main judgment delivered on 28th May, 2012. Conversely, the judgment of the lower Court delivered on 28th May, 2012 has not been appealed upon. The appellant in the Original Notice of Appeal filed on 23rd December, 2013, which is at pages 211 to 213 of the Record of Appeal and the Amended Notice of Appeal filed on 3rd June, 2019 and deemed properly filed and served on 17/06/2020, never got confused or made a mistake about the decision she was appealing. It was the decision of the lower Court dated 12th day of December, 2013. She did not mention the decision of the lower Court on 28th day of May, 2012. He of course, was well late and out of time to file a Notice of Appeal in respect of the judgment delivered by the lower Court on 28th day of May, 2013. This clarification is necessary because the appellant tried to smuggle into the appeal, issues in the main judgment delivered on 28th day of May, 2012. See particularly grounds 4, 5 and 6 of the Amended Notice of Appeal. The instant appeal here has nothing to do with the judgment of the lower Court delivered on 28th day of May,

Those grounds 4, 5 and 6 of the Amended Notice of Appeal are not only irregular, they are incompetent and cannot be sustained in the instant appeal. Those three grounds are hereby struck out for being incompetent.In order to appreciate the claim of the appellant in the Motion, I would like to reproduce the reliefs and the grounds propping up the reliefs in the Motion as follows:
1) An Order extending time within which the applicant may apply to set aside the Judgment of this Honourable Court delivered on the 28th May, 2012.
2) An Order setting aside the service of 2nd March, 2012 on the 3rd defendant/applicant.
3) An Order setting aside the judgment of this Honourable Court delivered on the 28th May, 2012 in the absence of the 3rd defendant/applicant.
4) An Order granting leave to the 3rd defendant/applicant to enter appearance, file his response, processes and to defend the plaintiff’s Originating Summons.
And for such further order(s) as this Honourable Court may deem fit to make in the circumstance of this application.
GROUNDS UPON which this application is based:
a) The 3rd defendant/applicant was never

aware of the pendency of this suit as it was never served with the Originating Summons and other court processes in this suit in the manner and mode prescribed by law.
b) The service of the Originating process and other Court processes in this matter on the 3rd defendant/applicant were by “dropping” and “substituted means”.
c) The Judgment of this Hon. Court delivered on the 28th May, 2013, was delivered in the absence of the 3rd defendant/applicant.
d) The Judgment of this Hon. Court delivered on the 28th May, 2013 in favour of the plaintiff/respondent is a default Judgment.
e) The plaintiff’s Attorney (Globe Broadcasting Communication Limited) lacks the legal capacity to initiate and prosecute this matter in the manner and capacity it did.
f) The facts contained in the various affidavits of parties are contentious, hotly in dispute and cannot be resolved without calling evidence, thus making originating summons unsuitable for commencing this suit.
g) The 3rd defendant/applicant proposed Conditional Memorandum of Appearance, Counter Affidavit in opposition to the plaintiff’s Originating Summons together with the Written Address are annexed herein as Exhibits MC10, MC11 and MC12 respectively.

The learned trial Judge heard the Motion and at the end made some sound and salient findings at pages 206 – 208 of the Record of Appeal, the learned trial Judge in his Ruling held:
It is my view that the judgment delivered by this Court on 28/05/2012 was a judgment on the merit and not a default judgment. The matter went on trial, the plaintiff and the 1st and 2nd Defendants were heard before judgment was entered. A default judgment is a judgment entered against a Defendant in the absence of memorandum of appearance or Statement of Defence. There are three Defendants in this matter and the 1st and 2nd Defendants participated fully in the hearing that led to the judgment. See Jamilu v. Ayinla (2009) 17 NWLR (Pt. 1170) P. 238 at 245.
Generally speaking, when a trial Court has given judgment in a case on the merit, that Court is functus officio in relation to that judgment once it is pronounced. It cannot ordinarily reopen the case for a fresh hearing. A party dissatisfied can only bring proceedings on appeal against it. However, at common law

and equity, a person against whom a judgment had been procured by fraud is entitled to approach the Court by an action or motion to set aside the judgment. See INEC v. Nnaji (2004) 16 NWLR (Pt. 900) 473, Remawa v. NHCB CRC Ltd (2007) 2 NWLR (Pt. 1017) 155.
I have gone through 3rd Defendant’s Affidavit. He is not alleging fraud. He contends that the 3rd Defendant was not served.
I have perused the file and the proof of service annexed to its application. It shows that the 3rd Defendant was served with the Originating Summons and all other processes by dropping same in its office. Order 11 Rules 8 of the High Court of the Federal Capital Territory (Civil Procedure) Rules 2004:
“When a suit is against a corporate body authorized to sue and be sued in its name or in the name of an officer or trustee, the document may be served, subject to the enactment establishing that corporation or company or under which it is registered as the case may be by giving the writ or document to any director, secretary or to the principal officer or by leaving it at the corporate office”.
My view that the Bailiff left it at the corporate office when he dropped it as sworn to the Affidavit of service. There is no evidence of fraud in the judgment, the subject matter of this motion.

The lower Court, from the record before us cannot be faulted in the circumstances of this case. It is certain that the processes were served on the Registered office of the appellant. A look at the Rules of the lower Court Order 11 Rule 8 relied upon by the learned trial Judge will show clearly that the Court has a provision for processes to be left at the corporate office of the company. The Registered office of the company which is obtainable from the record available at the Corporate Affairs Commission that is the company Registration Office is exactly at Suit A10, Bobsar Complex Area 11, Garki, Abuja, the address where the processes were served on the appellant. It was the Registered address of the appellant. The appellant in his brief, gave the Motion that Suit A10, Bobsar Complex, Area 11, Garki – Abuja, was their former office. The law places responsibility on the appellant to alter the record with the Corporate Affairs Commission and reflect any change made in the address of the appellant. This was not

done, so the address remained, the address left with the original registration. The appellant cannot profit from his own lapses. The lower Court in the face of these facts had no choice but to hear the case on merit. It should be noted that the appellant was not the only defendant at the lower Court. The appellant was the 3rd defendant. The 1st and 2nd Defendants were served duly and they were fully on ground for the hearing of the case. There is no way the lower Court could now void the case that was fully and wholly heard on merit. The only remedy for the appellant was to have appealed to the Court of Appeal if he was aggrieved.

From the foregoing therefore, all the issues raised are resolved against the appellant. There is therefore, no merit in this appeal. The appeal is accordingly dismissed.

The decision of the lower Court delivered on 12th day of December, 2013 in Suit No: FCT/HC/CV/4818/2011, is hereby affirmed.
Parties to bear their respective costs.

PETER OLABISI IGE, J.C.A.: I agree.

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I had the privilege of reading in draft the lead judgment just delivered by my learned

brother, Stephen Jonah Adah, JCA, and I am in complete agreement with the reasoning and conclusion contained therein.

I also dismiss the appeal for lacking in merit and affirm the judgment of the lower Court delivered on the 12th of December, 2013 in suit No: FCT/HC/CV/4818/2011.
I make no order as to costs.

Appearances:

G.A. Idiagbonya, Esq. with him, L.J. Ashaku Esq. For Appellant(s)

P.E. Ediale Esq. with him, C.G. Chukwudubem Esq. – for 1st Respondent.
2nd and 3rd Respondents served but not represented. For Respondent(s)