RIVTRUST SECURITIES LIMITED & ORS v. ASSET MANAGEMENT CORPORATION OF NIGERIA (2019)

RIVTRUST SECURITIES LIMITED & ORS v. ASSET MANAGEMENT CORPORATION OF NIGERIA

(2019)LCN/13372(CA)

(2019) LPELR-47966(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 28th day of May, 2019

CA/L/1026/2018

Justice

JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria

UGOCHUKWU ANTHONY OGAKWU Justice of The Court of Appeal of Nigeria

GABRIEL OMONIYI KOLAWOLE Justice of The Court of Appeal of Nigeria

Between

1. RIVTRUST SECURITIES LIMITED
2. MR. SAMUEL ADESEHINWA ADEUSI
3. MRS. MOBOLAJI ABAYOMI OSUNRINDE
4. CHIEF (MRS.) ABIGAIL OLATOYINBOAppellant(s)

AND

ASSET MANAGEMENT CORPORATION OF NIGERIARespondent(s)

RATIO

THE CONSTITUTIONAL PRINCIPLE OF FAIR HEARING

For the umpteenth time, the principle of fair hearing is not one that party can, at their convenience and will, seek to justify any mishap that they are faced with. As NIKI TOBI, JSC rightly said in the Supreme Court decision of T.M. ORUGBO & ANOR Vs. BULARA UNA & ORS (2002) LPELR 2778 (SC), fair hearing is not a cut-and-dry principle which parties can, in the abstract, always apply to their comfort and convenience. It is a principle which is based and must be based on the facts of the case before the Court. It is the same NIKI TOBI, JSC, delivering the leading judgment in NEWSWATCH COMMUNICATION LTD Vs. ATTA (2006) ALL FWLR (Pt. 318 580 at 600 at 601, that said:
Counsel quite a legion, find the fair hearing principle duly entrenched in the Constitution as a pathway to success whenever they are in trouble on the merits of the case before the Court. Some resort to it as if it is a magic wand to cure all ills of the litigation. A good number of counsel resort to the principle even when it is inapplicable in the case. The constitutional principle of fair hearing is for both parties in the litigation. It is not only for one of the parties. In other words, fair hearing is not a one-way traffic but a carriage-way in the con of both the plaintiff and the defendant or both the appellant and the respondent. The Court must not invoke the principle in favour of one of the parties to the disadvantage of the other party undeservedly. That will not be Justice. This will be in Justice.
Expressing similar sentiments, MUHAMMAD, JSC in the case of DARLINGTON EZE Vs. FEDERAL REPUBLIC OF NIGERIA (2017) LPELR 42097 (SC) held as follows:
The doctrine of fair hearing/trial as stated by Belgore and Tobi, JSC (with the former as he then was) in the case of Newswatch Communications Ltd. v. Atta (supra) is not a one-way traffic in the sense that it must satisfy a dual carriage-way in the con of both the plaintiff and the defendant or both the appellant and the respondent. It is a two-edged sword to the Plaintiff to be heard timeously and for the defendant to avail itself of the rights, constitutional rights extended to it by the Court to present its side of the case. The Court must not invoke the principle in favour of one of the parties to the disadvantage of the other party undeservedly. That will not be Justice. That will be in Justice. PER KOLAWOLE, J.C.A.

DEFINITION OF A REPLY BRIEF

See the decision of the Supreme Court in YANATY PETROCHEMICAL LIMITED Vs. EFCC (2017) LPELR 43473 (SC) where ARIWOOLA, JSC held as follows:
“…What then is a reply brief? Ordinarily, it is a brief that responds to issues and arguments raised in the brief previously filed by one’s opponent. In other words, it is an appellant’s brief of argument in opposition. See; Musaconi Limited Vs. Mr. H, Aspinall (2013) 14 NWLR (Pt.1375) p. 35; (2013) 12 SCM (Pt. 2) 380; (2013) 6-7 SC (Pt. 1); (2014) All FWLR (Pt.70) 1275. A reply brief is only filed when an issue of law or arguments raised in the respondent’s brief call for a reply. Therefore, a reply brief should and is expected to deal with only new points arising from the respondent’s brief. Where there is no new point, a reply brief is unnecessary and will serve no useful purpose in the determination of the appeal, and the Court is entitled to discountenance it. A reply brief is not a repair kit to put right any lacuna or error in the appellant’s brief of argument. See; Mozie & Ors Vs. Mbamalu & Ors (2006) 12 SCM (Pt. 1) 306; (2006) 15 NWLR (Pt. 1003) 466; Popoola Vs. Adeyemo (1992) 8 NWLR (Pt. 257) 1; Shuaibu Vs. Maihodu (1993) 3 NWLR (Pt. 284) 748. In Osuji Vs. Ekeocha (2009) 10 SCM 72; (2009) 16 NWLR (Pt. 1166) 81, this Court when considering the essence of a reply brief of argument opined, inter alia, as follows: “On a close scrutiny of the respondent’s brief, I observed that he did not file a Notice of Preliminary Objection or raise any fresh issue of law for argument in the respondent’s brief. All the issues covered by the Reply Brief, were already argued in the appellant’s brief. This leads to the question – what is the essence of a reply brief? A reply brief is necessary when a new issue of law or arguments raised in an objection in the respondent’s brief not covered in the Appellant’s brief calls for a reply. An appellant in such peculiar situation ought to file a reply brief in the interest of his case. Argument is restricted to the new points arising. Where the respondent has not introduced a new issue or point of law, a reply brief is most unnecessary. Failure to file a reply brief can only be fatal to the case of the appellant if the issues raised in the respondent’s brief are weighty, substantial, competent and relevant in law …. The appellant used the Reply brief in this case as an opportunity to elaborate on the issue already argued in the appellant’s brief. A reply brief is not to afford the appellant another bite at the cherry. It is not proper to use the reply brief to extend the scope of argument and submissions in the appellant’s brief. (underline is mine for emphasis)
See also the decisions of the Supreme Court in DAIRO Vs. UNION BANK OF NIGERIA PLC & ANOR (2007) LPELR 913 (SC); ECOBANK Vs. HONEYWELL FLOUR MILLS PLC (2018) LPELR 45124 (SC). PER KOLAWOLE, J.C.A.

GABRIEL OMONIYI KOLAWOLE, J.C.A. (Delivering the Leading Judgment): On 26th of January, 2018, the lower Court, coram I.N. Buba, J., of the Federal High Court, Lagos Division delivered a Ruling in which he refused to set aside its earlier judgment delivered on the 21/11/2018 on Appellants default of appearance and pleadings.

Dissatisfied with the decision of the lower Court, the Appellants exercised their constitutional right of appeal by filing a Notice of Appeal dated 31/1/2018 and its contained at pages 393 to 396 of the record of appeal.

In accordance with the Rules of this Court, upon the transmission of record and entry of the appeal, briefs of arguments were filed and exchanged by the respective parties. Appellants filed a brief of argument dated 1/11/2018, but deemed properly filed on 17/1/2019. Same was settled by Opeyemi Ogunleye and Nasir Olalekan Lasaki, on behalf of the Appellants. A Reply Brief dated 26/3/2019, was also filed.

On the part of the Respondent, Nasir Salau and Olanrewaju Olatunji prepared the Respondents brief dated 30/11/2018 but filed on 3/12/18.

The sole issue submitted by

the Appellants for the determination of this appeal is:
Whether the lower Court was not wrong in refusing the Appellants application dated 5th December, 2017 seeing to set aside the Judgment delivered on the 21st November, 2017 in default of appearance and pleadings, thereby breaching the Appellants right to fair hearing?”.

The Respondent also formulated a similar issue as follows:
Whether the lower Court was right in refusing the Appellants application dated 5th December, 2017 seeking to set aside the judgment delivered on the 21st of November, 2017?”.

Since the sole issue formulated by the parties are similar, save for semantics, the said issue will be adopted for the resolution of this appeal.

On the sole issue, Appellants counsel relied on Section 36 of the 1999 Constitution of the Federal Republic of Nigeria (as amended); the decisions of the Supreme Court in J.S.C., CROSS RIVER STATE Vs. YOUNG (2014) FWLR (Pt. 714) 40; ELIKE Vs. NWAKWOALA & ORS (1984) LPELR 118 (SC) to submit that parties to any proceedings must be afforded right to fair hearing. Counsel noted that upon

service of the Originating processes on the Appellants, the Appellants had employed the service of a legal practitioner (the law firm of Abiodun Oni & Co.) to represent their interest but discovered from the records of the lower Court, after Default Judgment had been entered against them that the said counsel did not file Notice of Representation on their behalf; that he only appeared twice to seek adjournments to file processes, which they never did. Thereafter, they debriefed their former counsel and employed the services of F.O.A. Solicitors who quickly filed a motion to set aside the Judgment of the lower Court and stay of execution of the judgment.

Referring to a portion of the lower Courts judgment, Appellants counsel argued that the learned trial judge wrongly relied on the decision of the Apex Court in INAKOJU Vs. ADELEKE (2007) (sic) 4 NWLR (Pt. 1025) 427, as the portion of fair hearing in that decision does not apply to this case. He relied on the decision of the Supreme Court in OKAFOR Vs. NNAIFE (1987) 9 10 SCNJ 63, on the position that a case is an authority on what it decides. It is the submission of counsel,

relying on the decision of the Apex Court in INAKOJU Vs. ADELEKE (supra) that counsel owe their clients the duty to present their cases to the best of their professional ability. Counsel argued that, rather than considering the issue of non-representation of the Appellants by their counsel at the proceedings in the lower Court as a good ground for the setting aside of the judgment, the trial judge held that the application dated 5th December, 2017 for setting aside ought to have been served on the firm of Abiodun Oni & Co. (former counsel) and that there would be no end to litigation if litigants are allowed to change counsel or course of events where counsel is negligent. It is then the submission of Appellants counsel that non-service of Appellants application on the former counsel is not a ground known in law for dismissing the Appellants application.

It is the further submission of counsel that no law, statutes, or case prescribed that breach of fair hearing must and shall be raised either by the Court or an adversary before it can be arguable. Counsel then referred to paragraphs 4(b), (d) & (e) and 5(ii) of the supporting

affidavit, before submitting that the Appellants took steps required of them to brief a firm of legal practitioners to defend them which role was negligently handled by the firm. He relied on the decision of the Apex Court in NWAMBE Vs. THE STATE (1995) 3 NWLR (Pt. 384) 358; ABIOLA Vs. FRN (1995) 1 NWLR (Pt. 370) 155 on the position that a party had the unfettered right of representation by counsel of his choice. He relied on the decision of the Supreme Court in ABIOLA Vs. FRN (1995) 1 NWLR (Pt. 370) 155 that the best person to decide who represents him as counsel is the Appellant and that it’s his constitutional right. It is his submission that having failed to represent the Appellants in defence of the suit, it has denied the Appellants their right to fair hearing as enshrined in the Constitution, and as such the Appellants are entitled to remedy which is to set aside the Judgment delivered in default of representation by the Counsel.

Whilst relying to the decision of the Court in ELIKE Vs. NWAKWOALA & ORS. (supra) and OGUNEDE & ORS Vs. ANAJUBA & ORS (2016) LPELR 42118 (CA), learned counsel submits that the Appellants cannot be

punished for the sins or inadvertence of counsel to defend them, since they have delegated their authority and power to defend the suit. Noting that the lower Court relied heavily on the decision in OKAFOR Vs. NWEKE (2007) 20 (Pt. 1043) 52, counsel argued that the learned trial judge did not appreciate the circumstances surrounding the Appellants position. That having contracted the firm of Abiodun Oni & Co. to represent and defend the suit diligently, the failure to do so is an act of inadvertence, negligence or sin of counsel which should not be visited on litigant, relying on G.B.A. AKINYEDE Vs. APPRAISER (1971) 1 ALL NLR 162; DOHERTY Vs. DOHERTY (1984) 1 ALL NLR 299; BOWAJE Vs. ADEDIWURA (1976) SC 143, 147; OLAGUNJU Vs. ADENIRAN (2001) 17 NWLR (Pt. 741) 159 at 167. He concluded, by relying on the decisions of the Supreme Court in ENTERPRISE BANK LIMITED Vs. AROSO (2015) ALL FWLR (Pt. 795) 314 at 326; OBIMONURE Vs. ERINOSHO (1966) 1 ALL NLR 250 and ADEIGBE Vs. KUSIMO (1965) NMLR 284, that this Court can set aside a default judgment which the lower Court has refused to set aside.

On its part, whilst arguing the sole issue, the

Respondents counsel submits that the power of the Court to set aside its judgment is discretionary and such discretion is required to be exercised judicially and judiciously, relying on the decision of the Court of Appeal in RUFUS AKINNULI Vs. O. E. AYO ODUGBESAN (1992) 8 NWLR (Pt. 258) 12 CA. Counsel noted that the Appellants are not alleging that the lower Court denied them the rights to be heard, but are rather saying that their counsel was negligent and thus denied their rights of fair hearing. Citing the decisions of the Supreme Court in OKIKE Vs. LPDC (2005) 15 NWLR (Pt. 949) 471; ACHUZIA Vs. OGBOMAH (2016) 2 SC 53 and NICHOLAS CHUKWUJEKWU UKACHUKWU VS. PDP (2014) LPELR 22115 SC, the Respondents counsel submits that the duty of the Court is to create equal atmosphere and opportunities to the litigants before it and it is left for the parties to make use of such opportunities.

He further noted that the Appellants are not contesting service and also not contesting the jurisdiction of the Court, as they were duly served with the requisite processes. Counsel argued that failure of counsel for the Appellants, as alleged by the Appellants, to

file a defence does not amount to denial of fair hearing, hence not a ground for setting aside a judgment of Court. It is not in all cases of counsels laxity or tardiness, it was argued, that client will be absolved of the sin of their counsel, and it is not enough for a litigant to absolve himself from blame for every form of tardiness on the part of counsel, citing the decisions of the Supreme Court in ENYADIKE Vs. OMEHIA (2010) 11 NWLR (Pt. 1204) 92 at 136 and OKAFOR Vs. NWEKE (2007) 10 NWLR (Pt. 1043) 52. He concluded that equity only avail the vigilant and not the indolent, citing the decision of the Apex Court in A-G., RIVERS STATE Vs. GREGORY OBIADE (2007) ALL FWLR (Pt. 47) 600 at 614.

In the Reply Brief erroneously labelled Appellants’ Reply on Points Law”, Appellants counsel argued that the cases cited and relied upon by the Respondents counsel are distinguishable from the instant case; that a case is an authority on what it decides, citing the decisions of the Supreme Court in P.D.P. Vs. INEC (2018) LPELR 44373 SC and OKAFOR Vs. NNAIFE (1987) LPELR 2420 (SC).

The Appellants counsel argued that no hearing notice was issued to the Appellants that the matter was for hearing. Referring to the proceedings of 21st November, 2017, particularly at pages 186 of the record of appeal, counsel submits that the counsel who appeared in Court informed the Court that his firm got wind of the fact that the matter was coming up and sought for a date to file Reply to the Originating Summons, but the lower Court refused his application. Counsel then argued that the lower Court erred in law when it refused to allow the Appellants counsel to reply to the Originating Summons, relying on the decision of the Supreme Court in ACHUZIA Vs. OGBOMAH (2016) 2 SC 53, before urging that the appeal be sustained, and the default judgment be set aside.

RESOLUTION
The case of the Appellants in this appeal is hinged on an alleged breach of fair hearing arising out of the failure of the lower Court to set aside a default judgment entered in favour of the Respondent. On 21st of November, 2017, the learned trial judge, coram BUBA, J., had in his judgment found at pages 309 to 312 of the record of appeal held as follows:<br< p=””>

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The Asset Management Corporation of Nigeria Act 2010 (as Amended) and indeed the Asset Management Corporation of Nigeria Practice Direction 2013 are very clear on the duty of the parties and the Court. There is nothing before the Court, from the defence of Court, the court is not oblivious of the fact that in the instant Originating Summons; there are of course declaratory reliefs which cannot be granted in default of defence but on evidence and argument pure and simple; that has been the law
Accordingly, judgment be and is hereby entered for the Plaintiff/Applicant as per reliefs (a), (b), (c), (d) dated 17/7/17 without any formality.

Consequent upon the above decision of the lower Court, the Appellants filed a Motion on Notice dated 5th December, 2017 seeking inter alia an order setting aside the judgment in default dated 21st November, 2017. As I earlier stated, the Appellants application is hinged on alleged breach of fair hearing. However, it is important to observe here that alleged breach of fair hearing complained about is one of a peculiar nature. I call it peculiar because from the argument

canvassed by the Appellants counsel, the Appellants did not enjoy their constitutional right to fair hearing due to the mistakes, sins and negligent acts of their former counsel, Abiodun Oni, Esq. Perhaps, it is necessary to reproduce the facts deposed to by Mr. Samuel Adesanya Adeusi in the Affidavit filed in support of the Appellants Motion on Notice at the Lower Court. In the said Affidavit, the deponent states thus:
4.
(a) This Honourable Court on the 21st of November, 2017 delivered its judgment in this suit in favour of the Claimant/Respondent. The Defendants/Applicants having not been diligently represented by Counsel to defend the suit filed a Motion on Notice at the registry of Honourable Court to stay execution of the said judgment.
(b) The Defendants/Applicants upon been served with the Originating processes in this suit, briefed Abiodun Oni, Esq., of Abiodun Oni & Co. of 38, Olowu Street, Ikeja, Lagos sometime in August, 2017 to represent and file necessary processes in proper defence of this suit, but the firm failed, neglected and/or refused to so do. Attached herewith and marked as Exhibit

bundle 1 are the emails exchanged between the 2nd Defendants/Applicants and the firm of Abiodun Oni & Co. (Abiodun Oni, Esq.) vide mayowajane@yahoo.com
(c) The Defendants/Applicants application raises fundamental issues, substantial and arguable points of law, which this Honourable Court, ought to consider.
(d) The Defendants/Applicants were not heard on the merit, as our constitutional right to fair hearing was jeopardize (sic) by our counsel who failed to file processes in defence of the suit.
(e) It was the negligent act of the law firm and Abiodun Oni, Esq., briefed to represent and defend the Defendants/Applicants that caused the misfortune of the Defendants/Applicants.
(f) That by letter dated 29th November, 2017, the Defendants/Applicants debriefed the firm of Abiodun Oni & Co. from further handing the above suit. Attached and marked as Exhibit 2 is a copy of the letter.
(g) The Defendants/Applicants have by letter dated 28th of November, 2017 which is attached herewith is Exhibit 3 applied for the Certified True Copy of the Judgment of this Honourable Court which is sought to be set aside, but have not

been able to receive a copy up until when this motion was filed.
5. That I was informed by my counsel, Opeyemi Ogunleye, Esq. in his officer which I verily believe to be true that by virtue of his profession and training he knows that:
(a) The Defendants/Applicants have the constitutional right to be represented to defend this suit. The Defendants/Applicants enjoin constitutional right to fair hearing which was no enjoyed by the Applicants by virtue of the mistakes and negligent acts of their former counsel, Abiodun Oni, Esq. of Abiodun Oni & Co.

Looking through the above depositions, I do not see any justification upon which the Court can find in favour of the Appellants that their right to fair hearing has been breach. For the umpteenth time, the principle of fair hearing is not one that party can, at their convenience and will, seek to justify any mishap that they are faced with. As NIKI TOBI, JSC rightly said in the Supreme Court decision of T.M. ORUGBO & ANOR Vs. BULARA UNA & ORS (2002) LPELR 2778 (SC), fair hearing is not a cut-and-dry principle which parties can, in the abstract, always

apply to their comfort and convenience. It is a principle which is based and must be based on the facts of the case before the Court. It is the same NIKI TOBI, JSC, delivering the leading judgment in NEWSWATCH COMMUNICATION LTD Vs. ATTA (2006) ALL FWLR (Pt. 318 580 at 600 at 601, that said:
Counsel quite a legion, find the fair hearing principle duly entrenched in the Constitution as a pathway to success whenever they are in trouble on the merits of the case before the Court. Some resort to it as if it is a magic wand to cure all ills of the litigation. A good number of counsel resort to the principle even when it is inapplicable in the case. The constitutional principle of fair hearing is for both parties in the litigation. It is not only for one of the parties. In other words, fair hearing is not a one-way traffic but a carriage-way in the con of both the plaintiff and the defendant or both the appellant and the respondent. The Court must not invoke the principle in favour of one of the parties to the disadvantage of the other party undeservedly. That will not be Justice. This will be in Justice.
Expressing similar

sentiments, MUHAMMAD, JSC in the case of DARLINGTON EZE Vs. FEDERAL REPUBLIC OF NIGERIA (2017) LPELR 42097 (SC) held as follows:
The doctrine of fair hearing/trial as stated by Belgore and Tobi, JSC (with the former as he then was) in the case of Newswatch Communications Ltd. v. Atta (supra) is not a one-way traffic in the sense that it must satisfy a dual carriage-way in the con of both the plaintiff and the defendant or both the appellant and the respondent. It is a two-edged sword to the Plaintiff to be heard timeously and for the defendant to avail itself of the rights, constitutional rights extended to it by the Court to present its side of the case. The Court must not invoke the principle in favour of one of the parties to the disadvantage of the other party undeservedly. That will not be Justice. That will be in Justice.
When the Appellants complained of fair hearing, this Court was invariably invited to consider the facts and circumstances of the proceedings complained about, leading to the instant appeal. Put simply, the principle of fair hearing should be applied with regard to the facts of each

case. In the instant case, it is not the complaint of the Appellants counsel that the Appellants were not afforded the opportunity to be heard before the judgment in default was entered against them; rather, their complaint, as highlighted in the affidavit filed in support of the motion to set aside the default judgment and in their Brief of Argument, is that their constitutional right to fair hearing was jeopardized by their counsel who failed to file processes in defence of the suit. The learned trial judge did not find the said ground satisfactory enough to warrant setting aside the default judgment. I am clearly of the view, that the ground upon which the Appellants are predicating their complaint is grossly misconceived, erroneous and not well founded.
My lords, the primary duty of the Court, under the adversarial system of adjudication, is that the Court is only required by the provisions of the Constitution to engender a conducive atmosphere and provide a level playing ground for the hearing of a matter. In this case, the Appellants exercised their constitutional right to choose counsel to represent their interest in this case

by appointing Messrs. Abiodun Oni, Esq. of Abiodun Oni & Co.; they are bound by whatever action or omission taken by the said Abiodun Oni, Esq. in relation to the instruction to defend them in this suit. Apparently, the said Abiodun Oni, Esq., refused, neglected and/or failed to file any defence processes on behalf of the Appellants herein, which act, or omission may very well sustain a cause of action for negligence or dereliction of duty against the said counsel. The failure of the Appellants appointed counsel to file the relevant processes cannot, in my firm view, be a justification to allege that the Appellants right to fair hearing was breached as to warrant setting aside the default judgment of the lower Court. Indeed, as the Apex Court, per BELGORE, JSC aptly expressed in NEWSWATCH COMMUNICATIONS (supra), that the Court is not a slave of time that must wait for a party to decide when to come and present its case. The fair hearing constitutional provision is designed for both parties in the litigation, in the interest of fair play and Justice. I believe the Justice of this case does not warrant the setting aside of the judgment in

default entered against the Appellants claiming their counsel was negligent his failure to file the required Courts processes before the lower Court exercised its undoubted discretionary powers to enter a default judgment in favour of the Respondent.

My Lords, just before I draw the curtain on this appeal, I note albeit hesitantly that the Appellants counsel made a futile attempt to raise a fresh ground of non-service of hearing notice on them stating that the matter was slated for hearing. It seems to me that the Appellants misconceived the purpose a Reply Brief serves in an appeal. Perhaps, I should remind counsel that a Reply Brief is not an avenue for an Appellant to have another bite at the cherry by extending the scope of his brief of argument or arguing fresh issues or grounds not covered by the Notice of Appeal. In other words, arguments to be canvassed in a Reply Brief must be limited to answering new issues arising from the Respondents brief. See the decision of the Supreme Court in YANATY PETROCHEMICAL LIMITED Vs. EFCC (2017) LPELR 43473 (SC) where ARIWOOLA, JSC held as follows:
“…What then is a reply brief?

Ordinarily, it is a brief that responds to issues and arguments raised in the brief previously filed by one’s opponent. In other words, it is an appellant’s brief of argument in opposition. See; Musaconi Limited Vs. Mr. H, Aspinall (2013) 14 NWLR (Pt.1375) p. 35; (2013) 12 SCM (Pt. 2) 380; (2013) 6-7 SC (Pt. 1); (2014) All FWLR (Pt.70) 1275. A reply brief is only filed when an issue of law or arguments raised in the respondent’s brief call for a reply. Therefore, a reply brief should and is expected to deal with only new points arising from the respondent’s brief. Where there is no new point, a reply brief is unnecessary and will serve no useful purpose in the determination of the appeal, and the Court is entitled to discountenance it. A reply brief is not a repair kit to put right any lacuna or error in the appellant’s brief of argument. See; Mozie & Ors Vs. Mbamalu & Ors (2006) 12 SCM (Pt. 1) 306; (2006) 15 NWLR (Pt. 1003) 466; Popoola Vs. Adeyemo (1992) 8 NWLR (Pt. 257) 1; Shuaibu Vs. Maihodu (1993) 3 NWLR (Pt. 284) 748. In Osuji Vs. Ekeocha (2009) 10 SCM 72; (2009) 16 NWLR (Pt. 1166) 81, this Court when considering the essence of a reply brief of

argument opined, inter alia, as follows: “On a close scrutiny of the respondent’s brief, I observed that he did not file a Notice of Preliminary Objection or raise any fresh issue of law for argument in the respondent’s brief. All the issues covered by the Reply Brief, were already argued in the appellant’s brief. This leads to the question – what is the essence of a reply brief? A reply brief is necessary when a new issue of law or arguments raised in an objection in the respondent’s brief not covered in the Appellant’s brief calls for a reply. An appellant in such peculiar situation ought to file a reply brief in the interest of his case. Argument is restricted to the new points arising. Where the respondent has not introduced a new issue or point of law, a reply brief is most unnecessary. Failure to file a reply brief can only be fatal to the case of the appellant if the issues raised in the respondent’s brief are weighty, substantial, competent and relevant in law …. The appellant used the Reply brief in this case as an opportunity to elaborate on the issue already argued in the appellant’s brief. A reply brief is not to afford the appellant another bite

at the cherry. It is not proper to use the reply brief to extend the scope of argument and submissions in the appellant’s brief. (underline is mine for emphasis)
See also the decisions of the Supreme Court in DAIRO Vs. UNION BANK OF NIGERIA PLC & ANOR (2007) LPELR 913 (SC); ECOBANK Vs. HONEYWELL FLOUR MILLS PLC (2018) LPELR 45124 (SC). In the appeal before us, the Respondent did not file any Preliminary Objection to the Appellants appeal and did not raise any fresh issue of law for argument, not already argued in the Appellant’s main brief of argument. The Appellant has not only tried to further re-argue or emphasize the argument in its brief of argument earlier filed, but also without any justification, sought to argue fresh issue or ground of non-service of hearing notice. I consider the re-argument unnecessary and will therefore discountenance same. A reply brief is not a forum for re-argument of an appeal or filling of gaps in the earlier argument by the Appellant.

My lords, coming back to the substance of the appeal, it is firmly settled that application for the setting aside of a default judgment is not

granted as a matter of course. An Applicant must show by credible evidence and satisfy the Court that the facts and circumstances of the case warrant the setting aside of such judgment. Considering the facts put forward by the Appellants in the Application to set aside the default judgment, I have no hesitation in reaching the inevitable conclusion that the learned trial judge was on the right pedestal when he refused to set aside the judgment entered in default against the Appellants. It is to this extent, the sole issue in this appeal is resolved against the Appellants and in favour of the Respondent.

The end result is that the Appellants appeal lacks merit and is hereby dismissed in its entirety. The default judgment of the Federal High Court, coram I. N. BUBA, J., entered against the Appellants on 26th January, 2018 Suit No. FHC/L/CS/764/17 is hereby affirmed. Costs of N200,000 awarded against the Appellants.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree with the succinct judgment prepared by my learned brother, Gabriel Omoniyi Kolawole, J.C.A.

UGOCHUKWU ANTHONY OGAKWU, J.C.A.: It is settled law

that Courts do not normally punish litigants for the faults or mistakes of their counsel: BOWAJE vs. ADEDIWURA (1979) 6 SC 143 at 147. However, for this general principle to be availing, there has to be shown a fault or mistake made by counsel. The Courts will not regard the waving of mistake of counsel as a universal talisman that will afford a paregoric in all cases. It must be true, genuine and availing in the diacritical circumstances of the particular case.IROEGBU vs. OKWORDU (1990) 6 NWLR (PT 159) 643 at 669 .and ERINFOLABI vs. OKE (1995) 5 NWLR (PT 395) 296 at 302-304.

Upon default judgment being entered against the Appellants for not filing processes, they filed an application for the lower Court to set aside the default judgment. The linchpin of the application as deposed to in paragraphs 4(b), (d) and (e) of the supporting affidavit is that the counsel they instructed failed to file processes in defence of the action as a result of which their constitutional right to fair hearing was jeop??rdized. The lower Court did not find this reason good enough so as to set aside the default judgment, hence this appeal.

My ‘learned brother, Gabriel

Omoniyi Kolawole, JCA, made available to me the draft of the lead judgment which has just been delivered. I agree with his reasoning and conclusion that the facts on which the Appellants anchored the application for the default judgment to be set aside were not such on the basis of which the default judgment could have been set aside and that the decision of the lower Court dismissing the application was the correct decision.

It has to be remembered that a party is bound by the professionalism of his counsel cum onere: OWNERS OF M.V. BACO LINER vs. ADENIJI (1993) 2 NWLR (PT 274) 194 at 204. The rule should be “caveat client”, you sink or swim with your choice of counsel. See AKANBI vs. ALAO (1989) 3 NWLR (PT 108) 143 and COUNTY & CITY BRICKS DEVT CO LTD vs. HON. MINISTER OF ENVIRONMENT HOUSING & URBAN DEVT. (2019) LPELR (46548) 1 at 35-37.

It is for the foregoing reason and the more elaborate reasoning and conclusion in the leading judgment that I equally dismiss this appeal. I abide by the consequential orders, inclusive of the order as to costs.

Appearances:

Opeyemi Ogunleye, Esq. with him, Olalekan Lasaki, Esq. and Olatunji Bowole, Esq.For Appellant(s)

Nasir Salau, Esq.For Respondent(s)

Appearances

Opeyemi Ogunleye, Esq. with him, Olalekan Lasaki, Esq. and Olatunji Bowole, Esq.For Appellant

AND

Nasir Salau, Esq.For Respondent