RAYLCON (NIG) LTD & ANOR v. AMCON (2020)

RAYLCON (NIG) LTD & ANOR v. AMCON

(2020)LCN/15364(CA)

In The Court Of Appeal

(ENUGU JUDICIAL DIVISION)

On Friday, September 25, 2020

CA/E/101/2020

RATIO

APPEAL: DUTY OF COURT: EXCEPTIONAL INSTANCES WHERE A COURT OF APPEAL WILL REFRAIN FROM CONSIDERING ISSUES

The general rule is that an intermediate appellate Court must consider all the issues properly raised before it. However there are some established exceptions to that rule. The Court of Appeal will refrain from considering other issues where: (1) The judgment of the Court is found to be a nullity. (2) Where a case is sent back for retrial. (3) Where a decision on merit will prejudice fair hearing of the case on merit. SeeOSAREREN V. FRN (2018) LPELR-43839 (SC) AT 12-13 (D-B), BRAWAL SHIPPING (NIG.) LTD. V. F.I ONWADIKE CO. LTD. & ANOR. (2000) LPELR-802 (SC) AT 13-14 (A-A). MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.

JURISDICTION: WHETHER THE ISSUE OF JURISDICTION MAY BE RAISED AT ANY STAGE OF PROCEEDINGS AT THE SUPREME COURT

Notwithstanding the above rules of the Court, the law is settled that an issue of jurisdiction can be raised at any time and at any stage of the proceedings even at the Supreme Court. An issue of jurisdiction can even be raised in a brief of argument for the first time. See NNPC & ANOR V. ORHIOWASELE & ORS. (2013) LPELR-24710 (SC) AT 5 (A-C), APGA V. OYE & ORS. (2018) LPELR-45196 (SC) AT 42-44 (A-E). MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.

WHETHER FAILURE TO COMPLY WITH THE TIME STIPULATED BY THE RELEVANT LAW OR RULES OF COURT IN COMMENCING AN ACTION OR FILING AN APPLICATION RENDERS THE PROCESS INCOMPETENT AND WILL DEPRIVE THE COURT OF THE JURISDICTION TO ENTERTAIN THE ACTION

The law is settled that failure to comply with the time stipulated by the relevant law or rules of Court in commencing an action or filing an application renders the process incompetent and will deprive the court of the jurisdiction to entertain the action or the application. A court’s jurisdiction can only be activated by a process placed before it by due process of law. The issue of failure to comply with Order 8 Rule 9 of the Federal High Court (Civil Procedure) Rule, 2009 is a material and fundamental issue which goes to the jurisdiction of the court below to entertain the application. See ENYIBROS FOODS PROCESSING CO. LTD. & ANOR. V. N.D.I.C. & ANOR (2007) LPELR-1149 AT 26 (D-F), failure of the Court below to consider and pronounce on the issue amounts to a denial of fair hearing and has occasioned a miscarriage of justice. PER MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.

WHETHER A TRIAL COURT MUST PRONOUNCE ON ALL THE ISSUES RAISED AND CANVASSED BEFORE IT

The law is firmly settled that the Court has a duty to consider and pronounce on all material and fundamental issues raised and canvassed before it by the parties. Failure to do so may result in miscarriage of justice. See HONEYWELL FLOUR MILLS PLC V. ECOBANK (2018) LPELR-45127 (SC) AT 26-28 (C-G), BRAWAL SHIPPING (NIG) LTD V. F. I ONWADIKE CO. LTD & ANOR (2000) LPELR-802 (SC) AT 13-14 (C-B), KARAYE V. WIKE & ORS. (2019) LPELR-49382 (SC) AT 11-12 (C-A). C. N OKPALA & SONS LTD V. NB PLC (2017) LPELR-43826 (SC) AT 17 (A-F) where the Supreme Court emphasised the duty of the Court to pronounce on all the issues properly raised and canvassed before it. PER MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.

DIFFERENCE BETWEEN THE CONSTITUTIONAL RIGHT OF APPEAL AGAINST A DECISION OF THE COURT AND THE RIGHT TO APPROACH THE COURT FOR A STAY OF PROCEEDINGS PENDING THE DETERMINATION OF AN APPEAL

The constitutional right of appeal against a decision of the Court whether interlocutory or final is separate and distinct from the right to approach the Court for a stay of proceedings pending the determination of an appeal against an interlocutory decision or stay of execution or injunction pending the determination of an appeal against a final decision. There is absolutely nothing in the language of Section 53(7) of the AMCON ACT (as amended) to suggest that the constitutional right to appeal against any decision or judgment is conditional upon payment of the sum claimed or the judgment sum into the Court registry. The Court is not allowed to read into a clear and unambiguous language of a statue what it does not contain. See AMOBI V. NZEGWU (2013) LPELR-21863(SC) AT 36 (B-D). The Court is also forbidden to place on a statue, an interpretation that does not represent the intention of the legislature. See GANA V. SDP & ORS (2019) LPELR-47153 (SC) AT 43 (B-E). Reading the clear language of Section 53(7) of the AMCON ACT (as amended), I do not conceive it to be the intention of the legislature to make the right to appeal against any decision or judgment in favour of the respondent conditional upon payment of the sum claimed or judgment sum into an interest yielding account in the Court registry. In my view, the clear intention of the law is to prevent the use of interlocutory applications to delay or frustrate the accelerated hearing of cases involving AMCON or determination of an appeal. The duty of the Court is to interpret the law as it is and not what it ought to be. In IKUFORIJI V.FRN (2018) LPELR-43884 (SC) AT 24-26 (F-A), the Supreme Court per EKO, JSC held that:
“Ours, as the judex, is to interpret the law and declare what it is. In interpreting a statute, the object is to discover the intention of the legislature and bring it out. The intention of the statute is usually deduced from the language used in the statute. We cannot therefore go outside the words in the language of the statute. Therefore, as this Court held in MALLAM ABUBAKAR ABUBAKAR & ORS v. SAIDU USMAN NASAMU & ORS (2012) LPELR – 7826 (SC) – where the words used are clear and unambiguous they must be given their ordinary plain meaning, so as to avoid reading into the provisions meanings not intended by the lawmakers.

See also ISHOLA v. AJIBOYE (1994) 1 NWLR (pt. 352) 506; P. D. P. v. C. P. C & ORS (2011) LPELR- 2909 (SC). Accordingly, in its interpretative jurisdiction the Court does not, and must not interpret a statute by placing a gloss on the provisions by reading into the provisions words neither used, contemplated nor included therein. Thus, as I stated elsewhere in OBI v. OJUKWU & ANOR (2009) LPELR 8511 (CA), when the words of a statute are plain and unambiguous; the plain duty of the Court interpreting the statute, is to bring out its overriding objective. The Court does not have inherent powers to say that the provisions, which are quite plain, mean what do not actually mean nor that the plain meaning should be ignored. The statute must be construed to mean what it means or to mean what it is intended to mean and not to mean what it clearly means. See VINOS v. MARKS & SPENCER (2001) 3 ALL E.R 784.” PER MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.

Before Our Lordships:

Ignatius Igwe Agube Justice of the Court of Appeal

Misitura Omodere Bolaji-Yusuff Justice of the Court of Appeal

Abubakar Sadiq Umar Justice of the Court of Appeal

Between

1. RAYLCON NIGERIA LIMITED 2. MR. RAYMOND CHIBUEZE UGWU APPELANT(S)

And

ASSET MANAGEMENT CORPORATION OF NIGERIA RESPONDENT(S)

MISITURA OMODERE BOLAJI-YUSUFF, J.C.A. (Delivering the Leading Judgment): The respondent herein instituted suit no. FHC/EN/CS/118/2016 for the recovery of the sum of N377,836,810:00 (Three Hundred and Seventy Seven Million Eight Hundred and Thirty Six Thousand Eight Hundred and Ten Naira Only) being the debt owed Union Bank of Nigeria as a result of the loans and lease finance facilities granted to the appellants by the bank. The debt was sold to the respondent by a loan purchase and limited servicing agreement dated December, 2016. When attempts to serve the originating processes on the appellants personally failed, the respondent made an application ex-parte for leave to serve the originating processes and further Court processes on the 1st appellant by substituted means by leaving it at its registered office at No.10 Enugu-Abakaliki Express Way and on the 2nd appellant by pasting at the main entrance of No. 2, Nanka Street, New Haven, Enugu being the last known address of the 2nd appellant. The application was granted on 22/6/2017.

On 9/10/2017, the bailiff of the Court filed an affidavit of service wherein he deposed that the 1st appellant was served by substituted means as ordered by the Court. Several affidavits of service of hearing notices on the appellants were filed by the bailiff. When the appellants failed to attend Court after service of the originating processes and hearing notices, the Court proceeded with the hearing of the case in their absence. Upon the conclusion of the respondent’s case and address by counsel, the Court delivered its judgment on 28/3/2018 and granted all the reliefs sought by the respondent.

By a motion on notice filed on 22/7/2019, the appellants applied for:
1. “An order of this Honourable Court setting aside its judgment delivered on the 28th day of March, 2018 in default of appearance of the applicants.
2. An order setting aside the order of Court made on the 9/11/2016 granting leave to the plaintiff to issue writ of execution against the immovable property of the defendants/respondents.
3. Any such order or further orders as his Honourable Court may deem fit to grant in the circumstance.

Parties filed and exchanged written addresses which they adopted as their arguments. The Court in its considered ruling delivered on 30/1/20 struck out the application for lacking in merit.

Dissatisfied with the ruling, the appellants filed a notice of appeal against the ruling on 31/1/20. The amended notice of appeal filed by the appellants on 7/5/20 was deemed as properly filed and served on 4/6/20. The grounds of appeal contained therein are as follows:
GROUND 1
“The lower Court erred in law when it struck out for lacking in merit, the appellants’ motion challenging the jurisdiction of the Court to determine the suit on the ground of non-service, and this occasioned a grave miscarriage of justice.
GROUND 2
The lower Court erred in law when it held that the respondent having pasted the originating summons by substituted means on the 1st appellant, a registered company, at her registered address, the 1st appellant was duly served.
GROUND 3
The lower Court erred in law and came to a wrong conclusion on the facts in failing to appreciate the fact that Exhibits KEN 1-4 attached were for the purpose of establishing that despite prior notice to the respondent that the process can never get to the appellants, they still went further to serve and conceal a better address of service on the appellants from the Court.
GROUND 4
The lower Court erred in law when it refused to set aside its judgment delivered on 28 March, 2018 when it was clear from the appellants’ motion to set aside the said judgment that the Court lacked jurisdiction to hear and determine the suit because the originating processes were not served on the appellants in the manner required by law and the appellants were therefore deprived of a fair hearing.
GROUND 5
The lower Court erred in law in refusing to set aside its judgment when the respondent obtained the order for substituted service of the originating and other processes on the 2nd appellant by gross misrepresentation and concealment of material facts relating to the last known address of the 2nd appellant and this led to grave miscarriage of justice.
GROUND 6
The trial Court erred in law in refusing to set aside its judgment when it lacked the jurisdiction to hear and determine the suit because the respondent failed to serve the 2nd appellant with the hearing notices in the suit at the address of service stated in the order for substituted service made by the Court on 22 June, 2017 and this led to a miscarriage of justice.
GROUND 7
The trial Court erred in law in refusing to set aside its judgment when it lacked the jurisdiction to hear and determine the suit for failure of the respondent to properly serve the 1st appellant with the hearing notices in the suit.”

The appellants’ brief of argument was filed on 7/5/20 and deemed as properly filed and served on 4/6/20. The respondent’s brief of argument was filed on 15/6/20. Appellants’ reply brief was filed on 24/6/20.

The respondent raised a preliminary objection to the jurisdiction of this Court to hear and determine this appeal on the following grounds:
1. “The appellants have refused or failed to deposit the judgment sum of N377,836,810.00 (Three Hundred and Seventy Seven Million, Eight Hundred and Thirty-Six Thousand, Eight Hundred and Ten Naira Only) into an interest yielding account of this Court.
2. The deposit of the sum of N377,836,810.00 (Three Hundred and Seventy Seven Million, Eight Hundred and Thirty-Six Thousand, Eight Hundred and Ten Naira Only) into an interest yielding account of this Court is a condition precedent to this Court assuming jurisdiction over this appeal.
3. Until the judgment sum of N377,836,810.00 (Three Hundred and Seventy Seven Million, Eight Hundred and Thirty-Six Thousand, Eight Hundred and Ten Naira Only) is deposited into an interest yielding account of this Court, this Appeal is not competent and the Appellants do not deserve a hearing from this Court.”

In his argument in support of the objection which is incorporated in the respondent’s brief, counsel submitted that payment of the judgment sum into an interest yielding account is a condition precedent to the hearing of the appeal by virtue of Section 53(1) (7) (a) and (b) of the Asset Management Corporation of Nigeria Act 2010 (as amended). He further submitted that the wisdom behind the provision of Section 53 (1) (7) (a) and (b) of the AMCON ACT (as amended) is to prevent a situation where the appellants will use the appeal process to deny the judgment creditor of the fruits of its judgment.

In response, the appellants’ counsel submitted that the appellant is only required to deposit the judgment sum into an interesting yielding account in the cases clearly specified therein. He contended that if the objection is upheld, it will amount to placing restrictions on the constitutional power granted the Court of Appeal under Section 240 of the 1999 Constitution (as amended) to hear all appeals emanating from the Federal High Court and on the Constitutional right of the appellants to appeal as guaranteed under Section 36(1) and 240 of the Constitution. He referred to SKYE BANK PLC V. IWU (2017) LPELR-42595 (SC), ENYIBROS FOODS PROCESSING CO. LTD & ANOR. V. NDIC (2007) 9 NWLR (PT.1039) 216 AT 253. Counsel contended that the respondent cannot be asking for the judgment debt to be deposited while the validity of the proceedings and the judgment are being challenged for lack of proper service of Court processes which renders the proceedings and the judgment a nullity. He argued that the judgment of the Court below being a nullity does not confer any legal right on the respondent. He urged the Court to dismiss the objection.

RESOLUTION:
Section 53(7) of the Assets Management Corporation of Nigeria Act, 2010 (as amended) provides that:
7. “The grant of stay of proceedings, stay of execution or injunction pending appeal, or leave to appeal in favour of any party other than by the Corporation or a receiver appointed by the Corporation in any matter within the scope of Subsection (1) shall-
(a) In the case of stay of proceedings and leave to appeal in respect of interlocutory appeals, be conditional upon the deposit by the applicant of the sum claimed by the Corporation in such action into an interest yielding account in the name of registry of the relevant Court; and
(b) In the case of stay of execution, injunction pending appeal or leave to appeal in respect of a final judgment, be conditional upon the deposit by the applicant of the judgment sum into an interest yielding account in the name of the registry of the relevant Court.”
The law is sacrosanct that where the words or language used in a statue are clear, precise and concise and free from ambiguity, the Court is enjoined to give those words or language their ordinary natural and grammatical meaning. See AGI V. PDP & ORS. (2016) LPELR-42578 AT 52-53 (E-A), OKOYE & ORS. V. C. O. P. & ORS. (2015) LPELR- 24675 (SC) AT 65 (C-D), BASINCO MOTORS LTD V. WODERMANN LINE & ANOR. (2009) LPELR-756 (SC) AT 25-26. In the instant case, the words and language of Section 53(7) of the AMCON ACT (as amended) are very clear and unambiguous. Each of the applications mentioned in that Section of the law is a request for the exercise of the Court’s discretion. The law is trite the Court has a duty to exercise its discretion judicially which means according to the law and judiciously which means according to the facts and circumstance of the particular case. According to the law, in an action for recovery of debt, deposit by the applicant of the sum claimed by the Corporation into an interest yielding account in the name of registry of the relevant Court is a condition precedent for a grant of an application for leave to file an interlocutory appeal or an application for stay of proceedings pending the determination of the appeal. In respect of a final judgment, deposit by the applicant of the judgment sum into an interest yielding account in the name of registry of the relevant Court is a condition precedent for a grant of an application for stay of execution or injunction pending appeal.

The appellants formulated the following issues for the determination of the appeal:
1. “Whether the lower Court was right when it held that the 2nd appellant had been properly served with the originating process in the suit? (Grounds 1, 3 and 5)
2. Whether the lower Court was right when it refused the appellants’ application to set aside its judgment and held that the 1st appellant was properly served with the originating process at its registered office at No. 10 Abakaliki Express Road Enugu in compliance with the Court order? (Ground 2)
3. Whether the lower Court was right when it refused to set aside its judgment when it lacked jurisdiction to hear and determine the suit (which was not ripe for hearing) for lack of proper service of the hearing notices on the appellants? (Grounds 4, 6 and 7)”
The respondent formulated the following issue for determination:
“Whether the lower Court was right when it refused to set aside its judgment on the grounds that the appellants were properly served with the originating processes and the hearing notices in the suit and dismissed the motion for lacking in merit (Grounds 1, 2,3,4,5,6 and 7).”

I find the lone issue formulated by the respondent to be concise and all embracing and same is adopted for the determination of this appeal. Before I go into the issue, I find it necessary to resolve some preliminary issues raised by the respondent in its brief which issues are germane to the determination of this appeal. The respondent’s counsel argued that:
a. “The prayer on the motion paper is vague and the lower Court was right when it dismissed the motion filed by the appellants for lacking in merit.
b. The affidavit in support of the appellants’ motion at the lower Court was incompetent for failure to affix a stamp and seal in line with Rule 10(1) (2) of the Rules of Professional Conduct and thus the affidavit is voidable.
c. The appellants failed to file the application to set aside the judgment within 14 days and attach the receipt of payment of penalty for late filing and did not show a good defence which are the conditions stipulated in Order 8 Rule 9 of the Federal High Court(Civil Procedure) Rules, 2009.”

Issues (a) and (b) are being raised in this Court for the first time. The law is settled that issues of fact and law not raised in the Court below cannot be argued or raised on appeal without the leave of Court except an issue of law substantive or procedural which ex-facie discloses that the Court has no jurisdiction or an issue of jurisdiction in respect of which all the materials necessary for its determination are present in the records of the Court or which can be determined without the requirement of further evidence or materials. See BARBUS & CO. (NIG) LTD & ANOR. V. OKAFOR-UDEJI (2018) LPELR-44501 (SC) AT 22(A-D), 26-27 (E-D), Okenwa v. Military Governor, Imo State (1996) 6 NWLR (PT.455) 394 at 408. OKPA V. STATE (2017) LPELR-42205(SC) AT 6-8 (C-F). Issues (a) and (c) which are not issues of jurisdiction having been raised without the leave of this Court are incompetent. Accordingly, they are hereby discountenanced.

Issue (c) was raised by the respondent’s counsel in his written address filed in opposition to the motion at the Court below. The Court merely summarised the submissions and arguments of the respondent’s counsel in respect of that issue. The Court failed to consider and resolve the issue or make any pronouncement on it. The law is firmly settled that the Court has a duty to consider and pronounce on all material and fundamental issues raised and canvassed before it by the parties. Failure to do so may result in miscarriage of justice. See HONEYWELL FLOUR MILLS PLC V. ECOBANK (2018) LPELR-45127 (SC) AT 26-28 (C-G), BRAWAL SHIPPING (NIG) LTD V. F. I ONWADIKE CO. LTD & ANOR (2000) LPELR-802 (SC) AT 13-14 (C-B), KARAYE V. WIKE & ORS. (2019) LPELR-49382 (SC) AT 11-12 (C-A). C. N OKPALA & SONS LTD V. NB PLC (2017) LPELR-43826 (SC) AT 17 (A-F) where the Supreme Court emphasised the duty of the Court to pronounce on all the issues properly raised and canvassed before it.
In the instant case, the Court below had a duty to consider and pronounce on the competency of the motion to set aside the judgment delivered in favour of the respondent for non-compliance with the provisions of Order 8 Rule 9 of the Federal High Court (Civil Procedure) Rules, 2009. The rule provides that:
“9. Where judgment is entered pursuant to any of the preceding rules of this order a judge may set aside or vary 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 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 law is settled that failure to comply with the time stipulated by the relevant law or rules of Court in commencing an action or filing an application renders the process incompetent and will deprive the court of the jurisdiction to entertain the action or the application. A court’s jurisdiction can only be activated by a process placed before it by due process of law. The issue of failure to comply with Order 8 Rule 9 of the Federal High Court (Civil Procedure) Rule, 2009 is a material and fundamental issue which goes to the jurisdiction of the court below to entertain the application. See ENYIBROS FOODS PROCESSING CO. LTD. & ANOR. V. N.D.I.C. & ANOR (2007) LPELR-1149 AT 26 (D-F), failure of the Court below to consider and pronounce on the issue amounts to a denial of fair hearing and has occasioned a miscarriage of justice.
The learned appellants’ counsel urged the Court to discountenance the argument of the respondents’ counsel on the issue for failure to file a respondent’s notice as required by Order 9 Rules 2 and 3 of the Court of Appeal Rules, 2016 which provides thus:
2. “A respondent who desires to contend on the appeal that the decision of the Court below should be affirmed on grounds, other than those relied upon by the Court, must give notice to that effect specifying the grounds of that contention.
3. Except with the leave of the Court, respondent shall not be entitled on the hearing of the appeal to contend that the decision of the Court below should be varied upon grounds not specified in a notice given under this rule, to apply for any relief not so specified or to support the decision of the court below upon any grounds not relied upon by that Court or specified in such a notice.”
Notwithstanding the above rules of the Court, the law is settled that an issue of jurisdiction can be raised at any time and at any stage of the proceedings even at the Supreme Court. An issue of jurisdiction can even be raised in a brief of argument for the first time. See NNPC & ANOR V. ORHIOWASELE & ORS. (2013) LPELR-24710 (SC) AT 5 (A-C), APGA V. OYE & ORS. (2018) LPELR-45196 (SC) AT 42-44 (A-E). The issue of non-compliance with the provisions of Order 8 Rule 9 of the Federal High Court (Civil Procedures Rules) 2009 which is a condition precedent to activating the jurisdiction of the Court below was properly raised in the respondent’s brief. It is an issue which the Court below ought not to have trivialised and or brushed aside. The Court below failed in its duty when it failed to consider the fundamental issue raised before it by the respondent’s counsel.
The Court below having failed in its duty, I shall invoke the provisions of Section 15 of the Court of Appeal Act to consider and resolve the issue since all the materials necessary for its determination are before this Court. Section 15 of the Court of Appeal Act provides that:
“15. The Court of Appeal may, from time to time, make any order necessary for determining the real question in controversy in the appeal, and may amend any defect or error in the record of appeal, and may direct the Court below to inquire into and certify its findings on any question which the Court of Appeal thinks fit to determine before final judgment in the appeal, and may make an interim order or grant any injunction which the Court below is authorised to make or grant and may direct any necessary inquiries or accounts to be made or taken, and, generally shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as Court of first instance and may re-hear the case in whole or in part or may remit it to the Court below for the purposes of such re-hearing or may give such other directions as to the manner in which the Court below shall deal with the case in accordance with the powers of that Court, or, in the case of an appeal from the Court below, in that Court’s appellate jurisdiction, order the case to be re-heard by a court of competent jurisdiction.”

The respondent’s counsel submitted that where an applicant failed to comply with the rules of Court in filing an application as in the instant case, the only sanction that the Court may apply is to strike out such motion which the Court below did. He submitted that the appellants’ motion having been filed three (3) months after the delivery of the judgment they are seeking to set aside and having failed to attach the treasury receipt to the motion to show payment of penalty for the default period, the Court below was right to strike out the motion because the rules of Court has the force of law and must be obeyed. He referred to FOLARANMI V. ABRAHAM (2003) 3 LRECN 332 AT 347 (F-H). OWNERS OF MV “AR ABELLA” V. N.A.I.C (2008) 11 NWLR (PT.1097) 182 AT 205 (G-H).

In response, the appellants’ counsel contended that the provisions of Order 8 applies to default of appearance when there is proof of proper service of the originating processes and the defendant is aware of the pendency of the suit. He referred to Order 8 Rules 1 and 10 of the rules. He further contended that regardless of the order under which the motion was brought, the Court below has the power to set aside the judgment under Order 14 Rule 10 of the Federal High Court (Civil Procedure) Rules which does not have any time limit. He urged the Court to hold that the provision of Order 8 Rule 9 does not apply to this case.
Order 7 Rule 1 of the Federal High Court (Civil Procedure) Rules, 2009 provides that:
(1) “A defendant served with an originating process shall within thirty days file in the Registry, along with the process mentioned in Order 13 Rule 2 (1), the original and copy of a duly completed and signed memorandum of appearance as in Form 11 with such modifications or variations as circumstances may require. (2) On receipt of the memorandum of appearance, the Registrar shall make entry thereof and stamp the copy with the seal showing the date he received it and return the sealed copy to the person making the appearance. (3) If a defendant files an appearance after the time prescribed in the originating process, he shall pay to the Court an additional fee of N200.00 (Two Hundred Naira) for each day of default.”
Order 8 provides for what should happen where there is a default of appearance:
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.
Liquidated Demand.
2. Where the claim in the originating process is a liquidated demand and the defendant or all of several defendants fail to appear, a plaintiff may apply to a Judge for judgment for the claim on the originating proces[]s or such lesser sum and interest as the Judge may order.
Liquidated Demand: Several Defendants.
3. Where the claim in the originating process is a liquidated demand and there are several defendants of whom one or more appear to the process and another or others fail to appear, a plaintiff may apply to a Judge for judgment against those who have not appeared and may execute the judgment without prejudice to his right to proceed with the action against those who have appeared.
Several Defendants.
4. Where the claim in the originating process is as in Rule 6 of this order and there are several defendants one or some of whom appear while another or others do not appear, a plaintiff may apply for judgment against the defendant(s) failing to appear. The value of the goods and or the damages only as the case may be, shall be ascertained in such manner and subject to the filing of such particulars as a Judge may direct before judgment in respect of that part of the claim.

Default of appearance by person under Legal disability.
5. Where no appearance has been entered for a person under legal disability, a plaintiff shall apply to a Judge for an order that some person be appointed guardian for such defendant and when appointed the person may appear and defend. The application shall be made after service of the originating process. Notice of the application shall be served on the person intended to be appointed the guardian of the defendant.
Judgment in default of appearance.
6. Where the claim in the originating process is for pecuniary damages, or for detention of goods with or without a claim of pecuniary damages, and the defendant or all of several defendants fail to appear, a plaintiff may apply for a judgment. The value of the goods and damages or the damages only as the case may be, shall be ascertained in such manner and subject to the filing of such particulars as a Judge may direct before judgment in respect of that part of the claim.
Detention of Goods, Damages and Liquidated Demands.
7. Where the claim in the originating process is for pecuniary damages or for detention of goods with or without a claim for pecuniary damages and includes a liquidated demand and any of the defendants fail to appear, a plaintiff may apply to a judge for judgment. The value of the goods and damages or the damages as the case may be shall be ascertained in such manner and subject to the filing of such particulars as a judge may direct before judgment in respect of that part of the claim.
Judgment for costs upon payment satisfaction, etc.
8. In any case to which Rules 2, 3, 4, 6 & 7 of this order do not apply and the defendant or all of several defendants fail to appear, but by reason of payment, satisfaction, abatement of nuisance, or any other reason, it is unnecessary for a plaintiff to proceed, he may apply to a judge for judgment for costs: Provided that such application shall be filed and served in the manner in which service of the originating process was effected or in such manner as a Judge shall direct.
Setting aside Judgment.
9. Where judgment is entered pursuant to any of the preceding rules of this order a judge may set aside or vary 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 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.
Default of appearance in actions not otherwise specifically provided for.
10. In all claims not specifically provided for under this order, where the party served with the originating process does not appear within the time prescribed in the originating process; a plaintiff may proceed as if appearance had been entered.”
Order 14 provides for a situation where there is default of pleadings. Rule 10 of the Order specifically provides that:
“10. Any judgment by default whether under this order or under any order of these Rules shall be final and remain valid and may only be set aside upon application to the Judge on grounds of fraud, non-service or lack of jurisdiction upon such terms that the Court may deem fit.”
For emphasis, Order 8 Rule 9 provides “ Where judgment is entered pursuant to any of the preceding rules of this order a judge may set aside or vary such judgment (underlining is mine) 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 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.” Apart from the fact that the preceding rules includes Rule 1 of Order 8, the words and language used in Order 14 Rule 10 are very clear and unambiguous to the effect that any judgment by default either under Order 8 or Order 14 or any other order of the Federal High Court (Civil Procedure) Rules, 2009 may be set aside on grounds of fraud, non-service or lack of jurisdiction. Thus, where judgment is entered against a defendant in default of appearance, the judgment may be set aside for non-service of the originating summons. In other words, non-service will be a just cause for default in appearance.
The law is settled that the provisions of a statute or rules of Court must be read together in order to get the real intention of the legislature. Order 19 Rules 2 and 4 also provide that:
2. “When a case is called for hearing, if the plaintiff appears and the defendant does not appear, the plaintiff may prove his claim, so far as the burden of proof lies upon him.
Judgment by default may be set-aside on terms.
4. (1) Where a case is struck out under Rule 1 of this order either party may apply that the case be relisted on such terms as the Judge may deem fit. (2) Any judgment obtained where any party does not appear at the trial may be set aside by the Judge upon such terms as he may deem fit. (3) An application to re-list a case struck out or to set aside a judgment shall be made within six days after the order or judgment or such other longer period as the Judge may allow.”
A combined reading of Order 8 Rule 9, Order 14 Rule 10 and Order 19 Rule 4 shows clearly that it is not the intention of the rules that the right to file an application to set aside a judgment entered in default of appearance or pleadings be available to a party without a time limit. Such an interpretation will lead to absurdity particularly in the face of the provisions of Order 1 Rule 4 of same rules of Court which states that the fundamental objectives of the rules is just and expeditions disposition of cases.
The respondent having obtained the judgment in its favour in default of appearance by the appellants, an application to set aside the judgment must be filed within the 14days stipulated by Order 8 Rule 9. Though Order 48 Rule 4 provides that:
“4. The Judge may, as often as he deems fit and either before or after the expiration of the time appointed by these Rules or by any judgment or order of the Court, extend or adjourn the time for doing any act or taking any proceeding: Provided that any party who defaults in performing an act within the time authorized by the Judge or under these Rules shall pay to the Court an additional fee of N200.00 (Two hundred Naira) for each day of such default at the time of compliance.”
The Court below can only exercise the power to extend the time for filing an application to set aside a default judgment upon an application by the defaulting party and upon the fulfillment of the conditions set down in Orders 8 Rule (9) and 48 Rule 4 of the of the Federal High Court (Civil Procedure) Rules. In the instant case, the appellants did not ask for extension of time and did not comply with any of the conditions stipulated by the rules of Court.

The Court’s jurisdiction to entertain the application was not activated by due process of law. The Court had no jurisdiction to entertain or consider the application in the first place. The result is that the ruling delivered by the Court below having been delivered without jurisdiction is a nullity, it is hereby set aside. The application to set aside the judgment is hereby struck out for being incompetent having been filed outside the time prescribed by the rules.

In conclusion, this appeal succeeds on the ground that the ruling delivered by the Court below on 30/1/20 is a nullity and it is hereby set aside. The application to set aside the judgment delivered in favour of the respondent on 28/3/2018 is struck out for being incompetent.
Parties shall bear their own costs.

IGNATIUS IGWE AGUBE, J.C.A.: I have had the preview of the lead judgment of my learned brother, MISITURA OMODERE BOLAJI-YUSUFF, J.C.A, with which I am in complete agreement. For the same reasons contained therein, which I humbly adopt as mine, I am also of the firm viewpoint that the instant Appeal harbours both substance and merit. It deserves to succeed and the same is accordingly allowed by me. In consequence, I hereby endorse the consequential orders made in the said lead judgment inclusive of the one regarding costs.

ABUBAKAR SADIQ UMAR, J.C.A.: I agree.

Appearances:

Tochukwu Odo with him, Desmond Kakaan For Appellant(s)

Ugochukwu Okwu For Respondent(s)