NIGERIA REINSURANCE CORPORATION v. ALSAGAR NATIONAL INSURANCE CO (2021)

NIGERIA REINSURANCE CORPORATION v. ALSAGAR NATIONAL INSURANCE CO

(2021)LCN/15066(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Thursday, March 04, 2021

CA/L/1404/2017

Before Our Lordships:

Ignatius Igwe Agube Justice of the Court of Appeal

Saidu Tanko Hussaini Justice of the Court of Appeal

Balkisu Bello Aliyu Justice of the Court of Appeal

Between

NIGERIA REINSURANCE CORPORATION APPELANT(S)

And

ALSAGAR NATIONAL INSURANCE COMPANY RESPONDENT(S)

RATIO

WHETHER AN APPELLANT CAN PRESENT A DIFFERENT CASE ON APPEAL FROM WHAT HE PRESENTED AT THE TRIAL COURT

An appeal is a continuation of the case made out before the trial Court and not a fresh case for the Appellant to try to change the case it presented before the trial Court. See the case of ASABORO & ANOR. VS. PAN OCEAN OIL CORP. NIG. LTD & ANOR. (2017) LPELR- 41558 (SC) the Supreme Court, per Onnoghen, JSC at page 11 held that: “It is settled law that a party should be consistent in the case he presents at the trial and appellate Courts as he is not allowed to present different cases before each hierarchy of Court as he desires. In other words, a party is not allowed in the presentation of his case before the Court to approbate and reprobate – see Intercontinental Bank Ltd vs Brifina Ltd (2012) All FWLR (Pt. 639) 1192 at 1206.” PER BALKISU BELLO ALIYU, J.C.A.

WHETHER A STRUCK OUT PROCESS CAN BE RELIED UPON IN SUBSEQUENT PROCEEDINGS

The reference of the Appellant regarding the earlier motion filed on the 9th October, 2017 which was withdrawn and struck out, on the application of the Appellant’s learned counsel is of no moment because a struck out process of Court cannot be relied upon on subsequent proceedings. The only way it can come back to life is when the trial Court re-lists it upon the application of the Appellant, which is not the case here. Rather, the Appellant decided to file a fresh motion, which was within its right to do. See PANALPINA WORLD TRANSPORT (NIG.) LTD VS. J. B. OLANDEEN INTERNATION (2010) 19 NWLR (PT. 1226) 1 @ 20 on the effect of withdrawal of a process. I do not see the relevance of mentioning the struck out application for whatever reason in this appeal. PER BALKISU BELLO ALIYU, J.C.A.

BALKISU BELLO ALIYU, J.C.A. (Delivering the Leading Judgment): This appeal is against the ruling of the Federal High Court, Lagos Judicial Division (trial Court), delivered on the 23rd November 2017 in respect of the Appellant/Defendant’s motion on notice filed on 10th November, 2017 in Suit NO: FHC/L/CS/153/2012. The trial Court (coram, Buba, J.) refused the application of the Appellant to set aside its judgment in default of appearance and defence that was delivered on the 25th September, 2017.

The Respondent as the plaintiff instituted this suit before the trial Court vide a writ of summons accompanied by a statement of claim both filed on the 14th February, 2012, by which it prayed for the following reliefs against the Appellant being the Defendant:
1. USD 3,984,534.00 (Three million, Nine Hundred and Eighty Four Thousand, Five Hundred and Thirty four United States Dollars) being payments due from the Plaintiff to the Defendant.

PARTICULARS
USD 3,795,765.83 (Three Million, Seven Hundred and Ninety Five Thousand, Seven Hundred and Sixty-Five United States Dollars and Eighty Three Cents), being payment due to the Plaintiff from

the Defendant under the various facultative insurance contracts admitted by virtue of the Credit Notes issued by the Defendant in favour of the Plaintiff.
USD 1,257,950.38 (One Million, Two Hundred and Fifty United States Dollars and Thirty Eight Cents), being payments due to the Plaintiff from the Defendant under the various facultative insurance contracts.
Less USD 1,069,182.55 (One Million, Sixty Nine Thousand, One Hundred and eighty Two Dollars and Fifty Five Cents) being premium due to the Defendant from the Plaintiff, which the parties agreed to set off against any sums that may be owed to the Plaintiff.
2. Interest on the said sums at the rate of 21% per annum from when payment became due until judgment and thereafter after delivery of judgment 10% per annum until judgment sum is fully liquidated.

The facts that gave rise to the supra claims are contained in the Respondent/Plaintiff’s statement of claim where in it averred that the two parties entered into series of facultative re-insurance contracts in respect of individual contracts relating to marine insurance, hull insurance etc. Under the respective facultative

reinsurance contracts, the Appellant agreed to provide re-insurance services to the Respondent. The reinsurance contracts entered by the parties were placed through their brokers, Zaris Brokers in Beirut and Pierre Lablanc et Associes (PLA) Brokers in Paris.

The usual placing order of the reinsurance contracts between the parties were as follows:
a) Zaris submits a facultative reinsurance slip to PLA
b) PLA submits a copy of the slip to the Defendant/Appellant.
c) Appellant confirms the shares of the reinsurance that they are willing to underwrite to the PLA by e-mail.
d) Zaris would then issue a confirmation of cover to the Respondent confirming the extent of Cover secured from the Appellant.

The Respondent averred that it has made several claims for payment due to it from the Appellant over the years but that in breach of the contracts, the Appellant failed and neglected to pay the various claims made. In fact, the Appellant admitted its indebtedness to the Respondent in the sum of USD$3,795,765.83, as contained in the spreadsheet showing various insurance policies under which the Appellant owed the Respondent the claimed

sums of money. The Appellant was further indebted to the Respondent in the sum of USD$1,257,950.38 per the spreadsheet showing the policies in issue, bringing the total indebtedness of the Appellant to the Respondent to USD$5,053,716.21.

However, at the Appellant’s request, the Responded agreed that the sum of USD$1,069,182.55 would be set off against any sums that the Appellant owe the Respondent. Thus, as at 13th February, 2012 (a day before this suit was filed), the Respondent claimed that the Appellant was indebted to it in the sum of USD$3,984,534.00 being outstanding claims for payment due to the Plaintiff under the various re-insurance contracts entered between the parties; and that despite repeated demands, the Appellant refused to settle this debt thus, the filing of this suit.

There was attached to the writ and statement of claim, the Respondent’s witness statement on oath and an avalanche of documents attached and relied upon by the Respondent in support of its claim. See pages 1 to 262 of the record of appeal.

The Appellant did not file a memorandum of appearance or statement of defence to the claims of the Respondent, prompting the Respondent’s counsel to file a motion on notice on the 19th April, 2012, pursuant to Order 7 Rule 1, Order 8 Rules 1 and 2 and Order 14 of the Federal High Court (Civil Procedure) Rules 2009 (trial Court’s Rules), praying the Court to enter judgment in favour of the Respondent in default of appearance and defence. The application was served on the Appellant, and again it failed to file a response to it. The trial Court was satisfied that the processes were filed on the Appellant and therefore granted the Respondent Application thereby entered judgment in favour of the Respondent against the Appellant on the 25th September, 2017, per the writ and statement of claim.

Thereafter, the Appellant now judgment debtor filed a motion on notice on the 10th November, 2017, copied in pages 393 to 412 of the record of appeal praying the trial Court for the following reliefs:
1. AN ORDER of this Honourable Court extending the time within which the Defendant/Applicant may file an application to set aside the default judgment delivered by Honourable Justice Buba on the 25th day of September, 2017.
2. AN ORDER of this Honourable

Court setting aside the default judgment delivered by Honourable Justice Buba on the 25th day of September, 2017.
3. AND FOR SUCH Others (sic) this Honourable Court may deem fit to make in the circumstance.

The prayers were predicated on the following grounds:
1. The Defendant has a valid defence to the suit (proposed statement of defence attached herein);
2. That the non-filing of the Defendant/Applicant Defence in time was as a result of our protest to the jurisdiction of the Federal High Court to entertain this suit which ruling was giving (sic) against us.
3. Lack of jurisdiction herein as the subject matter of this suit is facultative insurance, which is a simple insurance contract and only the state High Court has jurisdiction to entertain same.

In further support of the application were affidavit to which a proposed statement of defence and counter claim and the notice of change of counsel were attached as exhibits. There was also a counsel written address in further support thereof.

The Respondent opposed the application in terms its counter affidavit filed on the 17th November, 2017 and its counsel written address

attached. After considering the affidavits in support and in opposition and the counsel’s respective addresses for and against the application, the learned trial Judge delivered the Court’s ruling on the 23rd November, 2017, to the conclusive effect that:
Stalling and frustrating your adversary in the litigation process is not and cannot be acceptable if the Court must hold the balance evenly. In sum, this Court cannot find any merit in the motion of the Applicant and uphold the argument of the Respondent in toto and the motion of the Applicant is dismissed with cost of N250,000 in favour of the Respondent.

The Appellant was unhappy with the ruling of the trial Court, hence this appeal filed vide its notice of appeal filed on the 23rd November, 2017, but it was amended with the leave of Court and filed on the 22nd May, 2019 in which it relied on seven (7) grounds of appeal to urge this Court to allow the appeal and set aside the ruling of the Trial Court. The main record of appeal was transmitted on the 30th November, 2017 and an additional record transmitted on the 29th March 2018.

The Appellant’s brief of argument settled by Adenrele Adegborioye Esq. was filed on the 22nd May, 2019 and deemed properly filed and served on the 9th December, 2020. The learned counsel identified the following three (3) issues for the determination of this appeal:
1. Whether the lower Court was right to have held hat the Appellant did not disclose sufficient reasons in the affidavits in support of the motion on notice dated 10th of November, 2017 to warrant the exercise of its discretion in granting an extension of time within which the Appellant may apply to set aside the Default judgment.
2. Whether by the provisions of the law, the Appellant is required to seek an extension of time to set aside the judgment given in this case.
3. Whether having regards to the circumstances of this case, the lower Court ought not to have set aside its default judgment made on the 25th day of September, 2017.

The Respondent opposed the appeal in terms of the Respondent’s brief of argument settled by learned senior counsel Babajide Koku, Esq., SAN and filed on the 15th September, 2020, deemed properly filed on the 9th December, 2020, in which he proposed the following two (2) issues for the

determination of the appeal:
1. Whether having regards to the facts and circumstances of this case, the learned trial Judge was right to in holding that the Appellant’s affidavit in support of its application seeking extension of time did not disclose cogent reasons. (Grounds 1 and 2 of appeal).
2. Whether the Appellant furnished sufficient materials to warrant the setting aside of the default judgment entered by the lower Court on the 25th September, 2017 in favour of the Respondent.

The Appellant filed a reply brief on the 25th September, 2020, deemed properly filed and served on the 9th December, 2020. That was the date the appeal came up for hearing, and the Appellant’s learned counsel adopted the Appellant’s two briefs in urging the Court to allow the appeal and set aside the ruling of the trial Court, but the Respondent’s counsel urged the Court to dismiss the appeal and affirm the ruling of the trial Court. The submissions of the parties in their respective briefs are considered below.

APPELLANT’S SUBMISSIONS
The learned counsel for the Appellant argued issues 1 and 2 distilled from grounds 1 and 2 of

appeal jointly. He submitted that the facts of this case show that the judgment delivered by the trial Court on the 25th September, 2017 was a default judgment, given in default of defence. This was the judgment that the Appellant applied to be set aside and he submitted that the Order 14 Rule 10 of the trial Court’s Rules 2009 is the applicable rule to the circumstance.

He argued that since the said judgment was given in default of pleadings/defence, not in default of appearance because the Appellant was actually represented by counsel during the proceedings; there was no requirement for the Appellant in seeking to set aside the default judgment to apply for extension of time to do so. However, in order to err on the side of caution the Appellant filed an application by way of a motion of notice, on the 9th October, 2017 by which it sought for extension to time to apply to set aside the default judgment pursuant to Order 8 Rule 9, of the said Rules, which deals with defaults of appearance. The said motion was later withdrawn and replaced with the motion filed on 10th November, 2017. The reason adduced by the Appellant for the delay in brining the

application was for change of counsel, which is cogent and compellable to warrant the favourable exercise of the trial Court’s discretion for the Appellant, and that the trial Court was wrong to hold that change of counsel was not a cogent reason for the delay in bringing the application.

He also insisted that there is no time limit within which to file an application to set aside default judgment, vide Order 14 Rule 10 of the trial Court’s Rules of civil procedure. Therefore the trial Court’s ruling holding that the Appellant did not disclose sufficient reasons to warrant the exercise of his discretion in extending the time within which it could apply to set aside the Default judgment is not in accordance with the law and is inconsequential. Learned Counsel relied on the cases of AKINNULI VS. AYO-ODUGBESAN (1992) 8 NWLR (PT. 258) and NIGERIAN NAVY & ANOR. VS. BASSEY (2016) LPELR-41415 (CA), where this Court distinguished between applications made under the trial Court’s Order 8 Rules 1 and 9 and the one made to set aside default judgment under Order 14 Rules 10 and 11.

Conclusively, the learned counsel submitted that since the ground of the application to set aside was lack of jurisdiction, there is no time limit, as such there was no need to file an application for extension of time since a judgment given without jurisdiction is a nullity and the trial Court has the inherent jurisdiction to set it aside, vide the cases of NNPC VS. O. E. NIG. LTD (2008) 8 NWLR (PT. 1090), DINGYADI VS. INEC (2010) 8 NWLR (PT. 1224) 1 at page 91, and NNPC VS. TIJANI (2006) 17 NWLR (PT. 1007) 29 AT 42. The Court was urged to resolve issues 1 and 2 in favour of the Appellant.

In arguing the Appellant’s issue 3 distilled from grounds 3, 4, 5, 6 and 7 of appeal, learned counsel submitted that the existence of a valid defence (attached to the application) and the issue of lack of jurisdiction raised by the Appellant in its application filed on 10th November, 2017 were valid grounds for the trial Court to set aside the default judgment. He relied on the cases of LASACO ASSURANCE PLC VS. DESERVE SAVINGS & LOANS (2012) 2 NWLR (PT. 1283) and OGOLO VS. OGOLO (2006) 5 NWLR (PT. 972) to submit that the lower Court’s refusal to consider the proposed statement of defence attached to

the application to set aside the default judgment acted contrary to the principle of justice by denying the Appellant right to hearing and opportunity to defend the suit. For this reason, the ruling of the trial Court should be set aside.

On the issue of jurisdiction, the Appellant contended that despite the fact that it raised an issue of lack of jurisdiction of the trial Court to determine the suit the subject matter of which borders on simple contract, still, the trial Court ignored this argument and refused to set aside the default judgment. In fact, the trial Court refused to address the issue of jurisdiction raised before it. He relied on a host of cases to submit that the issue of jurisdiction is fundamental and germane and must be addressed promptly when raised. For this reason the ruling of the trial Court should be set aside along with the default judgment same having been given without jurisdiction.

RESPONDENT’S SUBMISSIONS
On the Respondent’s proposed issue one distilled from grounds 1 and 2 of appeal, learned senior Counsel Babajide Koku, Esq. SAN, first drew our attention to the Respondent’s application filed before

the trial Court on the 19th April, 2012 praying that Court to enter judgment in default of appearance and defence. It was that application that was granted by the trial Court after confirming that the Appellant was served with the originating processes, and it entered judgment as per the writ of summons and the statement of claim against the Appellant, “in default of appearance and Defence.” It is against these background facts, that the learned senior counsel submitted under this issue that contrary to the submissions of the Appellant, the judgment was handed down in favour of the Respondent for the Appellant’s failure to file a memorandum of appearance and a defence to the suit.

He further submitted that the entry of appearance provided by Order 7 Rule 1(1) and (3) of the trial Court’s Rules cannot be waived upon (physical) appearance of the Defendant, vide the case ofNIGERIAN NAVY & ANOR. VS. BASSEY (2016) LPELR-41415 (CA) decided by this Court on similar facts and argument on the necessity of filing a memorandum of appearance as prescribed by the said rule of procedure. He argued that where there is a default in filing a

memorandum of appearance in compliance with the rules of the trial Court and a judgment is entered, in order to set same aside, Order 8 Rule 9 of the Rules must be complied with. The said Rule provides a fourteen (14) days time frame within a defendant may apply to set aside a judgment delivered in default of appearance.

It was contended that the Appellant’s application filed on the 10th November, 2017 was not filed within the time provided for by the said Order 8 rule 9, even though its former counsel filed the application on the 9th October, 2017, within the 14 days prescribed but it was withdrawn and struck out by the lower Court. That the argument of the Appellant that the struck out motion of 9th October, 2017 was substituted by its application of 10th November, 2017 is not supported by the proceedings of the trial Court of 10th and 22nd November, 2017. There was nowhere in the trial Court’s proceedings on record that the order of substitution was made as posited by the Appellant. Learned silk further submitted that with the order of striking out the application of 9th October, 2017, same ceased to exist vide the cases of NWEKE VS. INEC & ORS.

(2016) LPELR-41254 (CA) and OGBECHIE VS. ONOCHIE (1988) 1 NWLR (PT. 70) 370 at 395 in support. Therefore it means that the motion of 10th November, 2017 stood on its own and clearly filed out of 14 days, which means that the prayer for extension of time was required in the circumstance. He urged the Court to disregard the submissions of the Appellant positing that extension of time was not required in this case.

It was further argued for the Respondent that the Appellant’s affidavits (in support and reply affidavit) did not proffer any cogent/just reasons for default in filing memorandum of appearance within the time stipulated by the rules. That the reason of change of counsel was not in existence as at the time the default commenced. He relied on the case of INTERNATIONAL SOS & ANOR. VS. LAMBO (2010) LPELR-9038 (CA), to the effect that supporting affidavit to an application for extension of time must fully explain every bit of the delay. Further that, the Appellant did not provide the lower Court with time and date it engaged the new counsel to take over its case or attach the notice of change of counsel to the affidavits in support of its

application. Submitted that the mere phrase “change of counsel” did not explain the delay in bringing the application outside the prescribed period.

In response to the Appellant’s contention that having raised the issue of jurisdiction, time will not run and there was no need to seek extension of time, the Respondent submitted that the Appellant’s argument is of no moment since the extension of time was for the default in filing memorandum of appearance, which did not border on jurisdiction. That the Appellant cannot be allowed in one breath to argue that it provided cogent reason for the lower Court to exercise its discretion in its favour while arguing in another breath that there was no need to apply for extension of time. Appellant relied on the case of LAWAL VS. HON. COMMISSIONER FOR LANDS, HOUSING AND SURVEY OF OYO STATE (2013) LPER-21114 (CA), where this Court held that by the equitable doctrine of estoppel, a man cannot be allowed to approbate and reprobate at the same time.

However, in the event that the Court decides that the Appellant did not require extension of time to apply for setting aside of the default

judgment, the Respondent submitted that the decision of the trial Court refusing the application would still be the same having determined the application on merits. He submitted that the attitude of the appellate Court, when the exercise of discretionary power of the trial Court is challenged, has always been that unless the exercise of the trial Court’s discretion is manifestly wrong, arbitrary, reckless or injudicious, we will not interfere simply because faced with similar circumstances, the Appellate Court would have reacted differently. See BRAITHWAITE VS. DALHATU (2016) 13 NWLR (PT. 1528) 32 @ 56 to 57. The Learned senior for the Respondent also argued that the Appellant has not shown that the ruling of the trial Court was perverse or constitutes a miscarriage of justice. He therefore urged the Court to resolve issue one in favour of the Respondent.

On the Respondent’s issue two, learned senior counsel contended that all the argument of the Appellant regarding the existence of a valid defence are diversionary because; firstly, by virtue of the provisions of Order 14 Rule 10 of the trial Court’s Rules, any judgment obtained in

default of defence is not merely a ‘default judgment’ which can only be set aside upon grounds of fraud, non-service or lack of jurisdiction, vide the case ofUNITED BANK FOR AFRICA PLC VS. ALBAN OGBONNA (2017) LPELR-42432 (CA). He posited that the Appellant’s affidavits in support of his motion did not satisfy grounds of fraud or non-service as set out by the Rules.

Secondly, the issue of jurisdiction which the Appellant relied on in seeking to set aside the default judgment cannot avail it because by Section 2(1)(3)(q) of the Admiralty Jurisdiction Act; “A reference in this Act to a maritime claim is a reference to a proprietary maritime claim or a general claim for an insurance premium, or for a mutual insurance call, in relation to a ship, or goods or cargoes carried by a ship.” He referred to paragraphs 4-8 of the Respondent’s statement of Claim contained in pages 4 to 6 of the main record of appeal in which Respondent placed specific reliance on documents showing risk adjustment reports and the insurance placement slips pleaded in paragraph 7 of the statement of claim containing the details of the vessels, the

claim covers for the vessels etc. It was argued that the import of the pleaded documents was to establish the nature of the claim of the Respondent, that is, marine insurance claims. He referred us to the case of AMERICAN INTERNATIONAL INSURANCE VS. CEEKAY TRADERS LTD (1981) 5 S.C. 50, where the Apex Court held that the Federal High Court has exclusive jurisdiction to determine claims arising from marine insurance policy. On the basis of this authority, the Respondent submitted that the Appellant was misguided in its submission that only the State High Court has jurisdiction on this matter.

Further submitted that, in view of the fact that the proposed statement of defence and counter claim, which the appellant relied on did not mention any challenge to the jurisdiction of the trial Judge, shows that the learned trial Judge was right to hold that the issue of jurisdiction was just a red herring. And he rightly held that there can be no better concession to jurisdiction of the trial Court as by proposing to file a counter claim in the same case and on the same insurance contracts. See page 33 and 44 of the additional record of appeal.

In any event, the Respondent submitted that there was no valid statement of defence as at the time the Appellant filed its application to set aside the default judgment. He referred to the proceedings of the 25th September, 2017 at pages 91 to 93 of the record of appeal. This is because, the proposed statement of defence exhibited to the application is not properly before the Court and the mere exhibition of a proposed statement of defence to the application does not mean the Court will automatically grant the application as the Appellant erroneously argued. The Court was referred to the case of NWANKWO VS. ABAZIE (2003) NWLR (PT. 834) 381 at 412, to the effect that once a process is filed outside the prescribed time, it is incompetent and a prayer for deeming it as properly filed cannot cure its defect in filing the process out of time unless there is a substantive prayer for extension of time within which to file it. Further contended that, the proposed statement of defence attached to the affidavit in support of application formed part of the affidavit and was not a Court process standing on its own.

It was also submitted further that, an application to set aside default judgment is not granted as a matter of course, but at the discretion of the Court to be exercised judicially and judiciously. The relevant five considerations the Court should rely on were set out in the case of WILLIAM VS. HOPE RISING VOLUNTARY SOCIETY (1982)1-2 S.C, which must all be resolved in favour of the Applicant before the granting of the application. In this case, the Appellant has not proved any of the 5 conditions and its case was not worthy of sympathetic consideration. The Court was urged to resolve all the five factors listed in William Vs. Hope Rising Voluntary Society (supra) in favour of the Respondent and to dismiss this appeal.

APPELLANT’S REPLY BRIEF
In response to the argument of the Respondent that the Appellant did not filed a memorandum of appearance, the Appellant submitted that even though no memorandum of appearance was filed, but the Respondent was represented by counsel through its erstwhile counsel who appeared severally and filed processes and the trial Court recognized his appearance for the Appellant. That, the Respondent has waived its right to protest appearance of the counsel at the trial Court. The Appellant relied on the case of IBIRONKE VS. MTN (2019) LPELR-47483 (CA) and others in support.

That in the circumstances, the Appellant has complied with all the provisions of Order 14 and/or Order 8 Rule 9 whichever the Court holds is applicable and that the appeal be allowed.

RESOLUTION
I adopt the Appellant’s three issues in the determination of this appeal having observed they are substantially the same with the issues raised by the Respondent. I will determine issues one and two together as did by the Appellant before tackling issue three.

ISSUES ONE AND TWO
The gravamen of the Appellant’s submissions under the two issues is that it did not need to seek extension of time to apply for the setting aside of the default judgment in view of the provisions of Order 14 Rule 10 of the trial Court’s Rules. It reasoned that the default judgment sought to set aside was given in default of defence and not in default of appearance.
However, this argument is in direct collusion with prayer one of the Appellant on its motion papers where it prayed the trial Court; “for extension of time within which the

Defendant/Applicant may file an application to set aside the default judgment delivered by Honourable Justice Buba on the 25th day of September, 2017.” The Appellant’s learned counsel also proffered argument in support of this prayer in the written address attached to the application to which the Respondent replied, thus, joining issues on the prayer one. It cannot lie in the mouth of the Appellant to argue before us that the prayer was just for the purpose of erring on the side of caution. I cannot encourage that attitude of hide and seek in litigation under any disguise. An appeal is a continuation of the case made out before the trial Court and not a fresh case for the Appellant to try to change the case it presented before the trial Court. See the case of ASABORO & ANOR. VS. PAN OCEAN OIL CORP. NIG. LTD & ANOR. (2017) LPELR- 41558 (SC) the Supreme Court, per Onnoghen, JSC at page 11 held that:
“It is settled law that a party should be consistent in the case he presents at the trial and appellate Courts as he is not allowed to present different cases before each hierarchy of Court as he desires. In other words, a party is not allowed

in the presentation of his case before the Court to approbate and reprobate – see Intercontinental Bank Ltd vs Brifina Ltd (2012) All FWLR (Pt. 639) 1192 at 1206.”

Having prayed for extension of time within which to file “an application” means and must be interpreted to mean that the Appellant knew and admitted that it was out of time, and has hitherto not entered appearance in the suit thereby bringing its application within the purview of Order 8 rules 1 and 9 of the trial Court’s Rules, which provide that:
1. Where any defendant fails to appear, a plaintiff may proceed upon default of appearance under the appropriate provision of these Rules upon proof of service of the originating process.
9. Where a judgment is entered to any of the preceding rules of this order a Judge may set aside or very such judgment on just terms upon an application on notice by the defendant. The application shall be made within 14 days and it shall be accompanied with the treasury receipt showing payment of penalty for the period of default and show a good defence to the claim and a just cause for the default.

The record of appeal shows that the default judgment was entered in favour of the Respondent against the Appellant on the 25th September, 2017, while the motion to set same aside was filed on the 10th November, 2017, clearly outside the 14 days period provided by the rules of the trial Court quoted supra. There was therefore the need for the Appellant to place before the trial Court; (1) receipt of payment for the period of default, (2) a good defence to the claim and (3) just cause for the default in appearance.

I have also examined the judgment of the trial Court delivered on the 25th September, 2017, pursuant to the application of the Respondent for judgment in default of appearance and defence. The learned trial Judge found that the Appellant was served with the motion since 23rd April, 2012, and found merit in the application. He entered judgment in favour of the Respondent “in default of appearance and defence.” Therefore, the provisions of Order 8 Rule 9 are applicable to the Appellant and it is only after the time is extended to file an application for the setting aside of the default judgment that the Appellant can now seek that prayer which was exactly what it did by the motion of 10th November, 2017. It cannot change that position.
As I stated supra, the requirements of Rule 9 of order 8 are that the Appellant must conjunctively show and place before the Court receipt of payment of the default fees, just cause for the delay in filing the defence and good defence. If any of the three stated grounds is not shown, then the application will not be granted.

The Appellant’s motion is copied in pages 393 to 412 of the record of appeal. The supporting affidavit has attached to it one documentary attachment, vide paragraph 3(d) thereof marked as exhibit ‘A’, which is the Appellant’s proposed statement of defence. No other document is mentioned in the affidavit in support. There was no receipt of payment for default fees attached, and this is mandatory by the use of the words “shall” in Rule 9 supra. The reason for the failure to file a defence was stated in Paragraph 3(e), wherein the Appellant averred was because of the pendency of the preliminary objection against the jurisdiction of the Court to determine the suit. This is not a just reason, because the Appellant failed to enter appearance conditionally or unconditionally as required by rule of the trial Court, vide case of Nigerian Navy & Anor Vs. Bassey (supra), referred to by the Respondent.
These were the materials placed before the learned trial Judge, and he considered them inadequate upon which he could exercise his discretion in favour of the Appellant. His refusal to grant the extension of time was

because of the Appellant’s failure to comply with the provisions of Rule 9 of Order 8 supra. I cannot fault his decision in the circumstance of this case. Having failed to apply for the setting of the judgment within 14 days, and having failed to comply with the provisions of Order 8 Rule 9, the Appellant was not entitle to extension of time. Issues one and two are resolved against the Appellant.

ISSUE THREE
Under this issue, the Appellant’s relied heavily on the proposed amended statement of defence and counter claim attached to the supporting affidavit as exhibit ‘A’ which it insisted showed good defence as required by Order 8 Rule 9 of the Rules of the trial Court quoted supra. It also relied on the fact that it was challenging the jurisdiction of the trial Court to determine the appeal. It is noteworthy that the Appellant’s ground two of its application was that:
That the non-filing of the Defendant/Applicant Defence in time was as a result of our protest to the jurisdiction of the Federal High Court to entertain this suit which ruling was giving (sic) against us.

This is an admission of the Appellant that its challenge to the jurisdiction was already made through a preliminary objection it filed, and the record shows that the objection was dismissed vide the trial Court’s ruling delivered by Hon. Justice Tsoho on the 30th June, 2017. The learned trial Judge was right when he held in page 33 of the additional record of appeal that the issue of jurisdiction has been decided between the parties with no appeal against that decision. It is also noteworthy that the Appellant after the ruling dismissing its preliminary objection to the Court’s jurisdiction still neglected to file a defence to the claim or counter affidavit to the pending 2012 motion seeking judgment in default defence, which was served on it, since 2012. That motion was moved and granted on the 25th September, 2017, and judgment entered against it. Again, even after the judgment was entered against it, the Appellant waited from September to November to file a motion for setting aside, outside the 14 days required by the Rules of procedure.

On the argument of having a good defence and counter claim, the learned trial Judge reproduced the proposed statement of defence in page 3 to 6 of

additional record of appeal. He did not think it disclosed good defence and therefore declined to grant leave for it to be filed. I have also examined the proposed statement of defence and counter claim and I am in agreement that there was no good defence disclosed therein. The Appellant did not raise any issue of jurisdiction either, since same has been against them as stated in their grounds. I therefore resolve issue 3 against the Appellant.

Upon the conducts of the Appellant in this case, I cannot blame the learned trial Judge for refusing the application to set aside the default judgment. The Court of equity will not come to the aid of an indolent party. I affix a stamp of approval to the learned trial Judge’s holding in page 30 of the additional record where he held that the Appellant’s strategy of ignoring the motion for judgment and refusal to file a defence even after the challenge to the jurisdiction was dismissed was suicidal in view of the Rules of the trial Court.

Consequently, I find no merit in this appeal and I dismiss it. I affirm the Ruling of the trial Court delivered on the 23rd November, 2017, in respect of the

Appellant/Defendant’s motion on notice filed on 10th November, 2017, in Suit NO: FHC/L/CS/153/2012. I award the cost of N500,000. 00 (Five hundred thousand Naira only) against the Appellant in favour of the Respondent.

IGNATIUS IGWE AGUBE, J.C.A.: I had the privilege of reading in advance the draft judgment of my learned brother, HON. JUSTICE BALKISU BELLO ALIYU, JCA; and I am in total agreement with his reasoning and conclusion that there is no merit in this Appeal and accordingly, it is hereby dismissed. I abide by the order as to costs.

SAIDU TANKO HUSSAINI, J.C.A.: I read in advance the lead judgment prepared and delivered by my Lord, Balkisu Bello Aliyu, JCA. I agree in toto with the reasoning and conclusion.

Appearances:

ADENRELE ADEGBORUWA,ESQ. WITH HIM,FAITH ONUOHA ,ESQ. For Appellant(s)

CHIDINMA NBAKWE, ESQ. For Respondent(s)