SCOA NIGERIA PLC & ANOR v. THE REGISTERED TRUSTEES OF METHODIST CHURCH OF NIGERIA
(2016)LCN/8375(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 22nd day of March, 2016
CA/L/395/2010
RATIO
APPEAL: GROUNDS OF APPEAL; THE IMPLICATION OF SITUATIONS WHERE THERE IS ANY ISSUE FROM WHICH NO ISSUE HAS BEEN FORMULATED
The law is very clear in such situations, it is trite that any ground from which no issue has been formulated is deemed abandoned, see the case of AGBASO v. OHAKIM (2008) LPELR-3652 (CA) where this Court held thus:
“It is trite that any ground from which no issue is formulated by the Appellant is deemed to have been abandoned and shall no longer be relevant in the determination of the appeal in question. It is liable to be struck out.”
See also TUKUR v. GOVERNMENT OF TARABA STATE (1997) 6 NWLR (Pt. 510) 549; NEWSWATCH COMMUNICATION LTD v. ATTA (2000) 2 NWLR (PT. 646) 592 and EMESPO J. CONTINENTAL LTD v. CORONA SHIFAH – RTSQUESETTSCHATT & ORS (2006) 8 SCM 149 at 161. PER. YARGATA BYENCHIT NIMPAR, J.C.A.
APPEAL: HEARING NOTICE; WHETHER AN APPELLANT WHO WAS PRESENT IN THE COURT IN THE LAST ADJOURNED DATE SHOULD STILL BE SERVED A HEARING NOTICE
The Appellant’s complaint for a start is that it was not served with a hearing notice first issued and served on it. From the record of appeal, the Appellant and counsel were not in Court but it is clear that on the last adjourned date, the Appellant was represented by counsel being the 26th day of May, 2009 when the matter was adjourned for report of settlement on the 2nd day of July, 2009. So should the Appellant who was in Court and took the next date for report of settlement still be served with a hearing notice? The Apex Court in the case of S & D CONSTRUCTION COMPANY LIMITED v. CHIEF BAYO AYOKU & ANOR (2011) LPELR – 2965 (SC) had this to say:
“It is trite law that hearing will not be issued or served on a party who already knows or is reasonably presumed to have known of the date on which a matter is slated for hearing.”
The essence of a hearing notice is for the party or parties to be aware of the date their matter is coming up before the Court. Hearing notice is not a document which has any other purpose. The contention of the Appellant that it should have been served with a hearing notice even when it was represented in Court on the last adjourned date is untenable and flawed. How could the Court have known that the Appellant was not going to be in Court on the next adjourned to order the service of a hearing notice? It is not the practice to serve a party who was in Court when the matter was adjourned with a hearing notice. PER. YARGATA BYENCHIT NIMPAR, J.C.A.
PRACTICE AND PROCEDURE: FAIR HEARING; WHETHER FAIR HEARING CAN BE AVAILABLE TO A PARTY THAT HAS FAILED TO APPEAR IN COURT
Where a party has been accorded reasonable opportunity to be heard and as required by law and no reasonable reason is advanced for failure to appear in Court, then the party cannot be heard to complain and shout fair hearing, see the case of OWOLABI v. BELLO (2011) LPELR – 8942 (CA). In the case of OKOTCHA v. HERWA LTD (2000) 15 NWLR (Pt. 690) 249 it was held that it is not fair or just to the other party as well as the Court, that a recalcitrant and defaulting party should hold the Court and the other party to ransom. That the business of the Court cannot be dictated by the whims and caprices of any party. It goes without saying that justice must be even handed. This appeal if allowed would set the hand of the clock back. Fair hearing is not an abstract term available to a party at all times and in all circumstances. It must be real and to be considered in the light of each set of facts and circumstances, see OLATUBOSUN v. ANENTH (2009) 18 NWLR (Pt. 1165) 560. It is in the light of above that this issue is resolved against the Appellants. PER. YARGATA BYENCHIT NIMPAR, J.C.A.
COURT: COURT DISCRETION; SITUATIONS WHERE THE APPELLATE COURT CAN INTERFERE WITH THE DISCRETION OF THE LOWER COURT
On the other issue as to discretion, let me state that the trial Court in the exercise of its discretion refused to set aside the default judgement because it was not made out. Furthermore, being that the trial Court has already exercised discretion, this Court can only interfere with such discretion if the lower Court failed to exercise such discretion judicially and judiciously, i.e. where the lower Court acted under a misconception of the law or under a misapprehension of facts thereby occasioning a miscarriage of justice, See the cases of DOWN PHARM & CHEM CO. LTD. v. BENEKS PHARM. & COSMETICS LTD. & 2 ORS. (2008) 1 – 2 SC, 68, LAOSEBIKAN & ORS v. AWOJOBI (2015) LPELR – 24831 (CA) per NIMPAR, JCA. An appellate Court will not interfere with the exercise of discretion by a trial Court lightly. See IKENTA BEST NIG LTD v. ATTORNEY GENERAL RIVERS STATE (2008) LPELR – 1476 (SC) where the Apex Court held as follows:
“it is settled that an appellate Court should be wary of setting aside the exercise of discretion by the lower Court as the Court is not at liberty to substitute its own exercise of discretion for the discretion already exercised is not at liberty to substitute its own exercise of discretion for the discretion already exercised by the judge or lower Court except where the appellate Court or Tribunal reaches a clear conclusion that there has been a wrongful exercise of discretion, that no weight or no sufficient weight was given relevant consideration, or that the exercise was done mala fide, arbitrarily, illegal, or either considering extraneous matter.” PER. YARGATA BYENCHIT NIMPAR, J.C.A.
JUSTICES
AMINA ADAMU AUGIE Justice of The Court of Appeal of Nigeria
YARGATA BYENCHIT NIMPAR Justice of The Court of Appeal of Nigeria
JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria
Between
SCOA NIGERIA PLC
SCOATRAC Appellant(s)
AND
THE REGISTERED TRUSTEES OF METHODIST CHURCH OF NIGERIA Respondent(s)
YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgment): The Appellant herein by a motion dated 9/7/2009 applied to the lower Court seeking for an order setting aside the default judgment entered in favour of the Respondent on the 2nd July 2009. The decision of HON. JUSTICE O. GBAJABIAMILA delivered on the 14th day of December, 2009 did not go down well with the Appellants who filed a Notice of Appeal dated 27th January, 2010 with leave of Court setting out 4 grounds of appeal and seeking the following reliefs:
A. An Order setting aside the Ruling delivered in the suit on the 14th day of December 2009 refusing and dismissing the application to set aside the default judgement of the lower Court in the suit.
B. A consequential order setting aside the default judgment of the lower Court delivered in this suit on the 2nd day of July 2009.
C. An Order allowing the Appellants to file their proposed statement of defence as their defence in the suit.
D. An Order transferring the suit to another judge of the lower Court to try the matter de novo.
? The brief facts of this appeal are that the Respondent by a writ of
summons and statement of claim supported by frontloaded documents prayed the lower Court for the following:
i. A declaration that the Claimants are entitled to either a replacement or a refund of the purchase price of the Generator purchased from the Defendant under the warranty issued to the Claimants by the defendants in respect of same.
ii. An Order that the Defendant replace forthwith with a brand new 500 KVA Generator of the same specification.
OR IN THE ALTERNATIVE
That the Defendants refund forthwith to the Claimants the purchase price of the Generator together with interest at the rate of 21% per annum from the date the purchase price was paid to the Defendant up till judgment and interest at the rate of 10% from judgement is fully liquidated.
iii. An Order that the Defendant refund to the Claimants all sums of the money paid by the Claimants to the Defendants towards the servicing and maintenance of the Generator.
iv. The sum of N5 million being general damages from the Defendants for the inconvenience suffered by the Claimants with expected increase in the prices of a new generator,
v. Cost of the action.
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Upon service with the initiating processes, the Appellant through a counsel filed a memorandum of appearance. The Respondent filed all necessary papers for pre-trial proceedings and a motion for judgment. The Appellant did not respond to the processes but participated in the pre-trial formalities. At some stage during the pre-trial, the trial Court adjourned the matter for report of settlement and on the said date the Appellant was absent when the motion for judgment was taken and judgment was entered in favour of the Respondents on the 2nd July 2009. After that, the Appellant applied to change counsel by a motion dated 9th July 2009 and same day, the Appellant applied to set aside the judgement entered against them. The motion to set aside the default judgement was heard and refused thus this appeal.
Briefs were filed and exchanged and the Appellant by its brief settled by N.O. Balogun formulated 2 issues for determination as follows:
”1. Whether the hearing and determination of the Motion on Notice for judgement dated 17th March, 2008 filed by the Respondent was not a denial of the Appellants’ right to fair hearing as guaranteed under Section 36
of the Constitution of the Federal Republic of Nigeria 1999 considering:
a. That the said motion on Notice for judgement was moved and granted without the hearing Notice for that purpose first and served on the Appellants.
b. That the motion on Notice for judgement was moved and granted on a day the matter was fixed for report of settlement and the absence of both the Appellants and their counsel.
2. Whether from the totality of the evidence adduced at the lower Court, the lower Court had exercised its discretionary power judicially and judiciously by refusing to set aside the default-judgement thereby entered on the 2nd day of July 2009.
The Respondent’s brief settled by Laolu Owolabi distilled a single issue thus:
“Whether the learned trial judge was right in refusing to set aside the judgement of the 2nd July, 2009”
The Court shall adopt the issues set out by the Appellants for resolution in this judgement. The two issues are distilled from grounds 1 and 3 leaving grounds 2 and 4 without any issues distilled therefrom. The respondent urged the Court to strike out the said grounds from which no issue was distilled. The law is
very clear in such situations, it is trite that any ground from which no issue has been formulated is deemed abandoned, see the case of AGBASO v. OHAKIM (2008) LPELR-3652 (CA) where this Court held thus:
“It is trite that any ground from which no issue is formulated by the Appellant is deemed to have been abandoned and shall no longer be relevant in the determination of the appeal in question. It is liable to be struck out.”
See also TUKUR v. GOVERNMENT OF TARABA STATE (1997) 6 NWLR (Pt. 510) 549; NEWSWATCH COMMUNICATION LTD v. ATTA (2000) 2 NWLR (PT. 646) 592 and EMESPO J. CONTINENTAL LTD v. CORONA SHIFAH – RTSQUESETTSCHATT & ORS (2006) 8 SCM 149 at 161.
The said Grounds 2 and 4 are hereby struck out having been abandoned.
ISSUE ONE:
Appellant submitted that the trial judge ought not to have granted the motion for judgment filed by the Respondent in the absence of the Appellants and their counsel in Court. That the matter was fixed for ‘Report of Settlement’ and to have granted the motion for judgment without issuance of a formal hearing notice amounted to a denial of the Appellants’ right to fair hearing, referred to OLUBUSOLA
STORES v. STANDARD BANK (NIG) LTD (1975) 4 SC 37, FMBN v. KASUMU (2006) 6 WRN 62 CA, OGLI OGO MEMORIAL FARMS LTD & ANOR v. NIGERIAN AGRICULTURAL AND CO – OPERATIVE BANK LTD & ANOR (2008) 4 SCNJ 436.
Respondent counsel submitted that the Appellants were served with a hearing notice for pre-trial conference and that it was on that same day that the motion for judgment was heard and granted. That the Appellants had due notice, had 15 months to respond to the motion for judgment but failed to utilize it, hence, they cannot complain of the beach of their right to fair hearing, EKITI LGA v. AJE PRINTING (NIG) LTD (2009) 4 NWLR (PT 1131) 304, INAJOKU v. ADELEKE (2007) 4 NWLR (PT 1025) 423, ORUGBO v. UNA (2002) 16 NWLR (PT 792) 175. The Respondent further submitted that the Appellants failed to establish any of the conditions stated in Order 20 Rule 12 of the High Court of Lagos State (Civil Procedure) Rules 2004 to entitle them enjoying the discretion of the Court, citing OYEKANMI v. NEPA (2000) 15 NWLR (PT 690) 414.
RESOLUTION
Fair hearing generally consists of the broad twin principles of fair hearing namely:
a. One shall not be a
judge in his own cause; and
b. That all parties must be given a right of hearing.
These two pillars have found expression in the 1999 Constitution.
?The Appellant’s complaint for a start is that it was not served with a hearing notice first issued and served on it. From the record of appeal, the Appellant and counsel were not in Court but it is clear that on the last adjourned date, the Appellant was represented by counsel being the 26th day of May, 2009 when the matter was adjourned for report of settlement on the 2nd day of July, 2009. So should the Appellant who was in Court and took the next date for report of settlement still be served with a hearing notice? The Apex Court in the case of S & D CONSTRUCTION COMPANY LIMITED v. CHIEF BAYO AYOKU & ANOR (2011) LPELR – 2965 (SC) had this to say:
“It is trite law that hearing will not be issued or served on a party who already knows or is reasonably presumed to have known of the date on which a matter is slated for hearing.”
The essence of a hearing notice is for the party or parties to be aware of the date their matter is coming up before the Court. Hearing notice is not a
document which has any other purpose. The contention of the Appellant that it should have been served with a hearing notice even when it was represented in Court on the last adjourned date is untenable and flawed. How could the Court have known that the Appellant was not going to be in Court on the next adjourned to order the service of a hearing notice? It is not the practice to serve a party who was in Court when the matter was adjourned with a hearing notice.
On the second arm of the first issue, which is the hearing of the motion for judgment when the matter was adjourned for report of settlement during pre-trial conference, it is conceded here that the judgement in contention was given in default of appearance and default of pleadings. Truly, the record of lower Court indicates that on the 16th of June, 2009 when the matter came up, the issue of amicable settlement was on the table and the Court adjourned the matter to the 2nd July, 2009 for report of settlement. Appellant had been served with the motion for judgement and the Rules of Court made provision for a motion for judgement in default of pleadings during pre-trial proceedings. Order 25 of the
High Court of Lagos (Civil Procedure) Rules, 2012 provides for case management conference and scheduling.
Pursuant to the said Order 25 of the High Court of Lagos (Civil Procedure) Rules, 2012, the Respondent applied for the process which commenced. By the said Rule 2(c) of Order 25, the Court is expected as part of the pre- trial process, to encourage amicable settlement and going by the record of appeal, the Court encouraged a settlement. On the next adjourned date when parties were to report settlement, the Appellants’ counsel without any reason failed to appear in Court. By virtue of Order 10 Rule 3 of the High Court of Lagos (Civil Procedure) Rules, 2012 it also allows the Claimant in the absence of a Defendant during pre-trial conference period to ask for judgement in a liquidated money claim and the conditions under which such judgement can be set aside is clearly spelt out in Order 20 Rule 12 of the High Court of Lagos (Civil Procedure) Rules, 2012 which state thus:
“Any judgement 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 as the Court may deem fit?.
The Appellant was absent on the said date during pre-trial and the Respondent asked the Court for judgement in the absence of the Appellants who did not file any process in reaction to the main claim and did not contest the motion for judgement. There was also no application seeking to file a defence when judgement was entered. Judgment was therefore entered against the Appellant.
Clearly, the above provisions are all encompassing in respect of any default judgement whether during pre – trial or hearing. Particularly, Order 20 Rule 12 of the High Court of Lagos (Civil Procedure) Rules, 2012 which set out the conditions under which a default judgement can be set aside. It also used the word ‘shall’. It therefore makes setting aside any default judgement to be on the stipulated conditions. This provision stated the three (3) circumstances under which a default judgement can be set aside as:
a. Fraud
b. Non-service
c. Lack of jurisdiction
?The Appellants relied on non – service of a hearing notice as ground for setting aside the
default judgement. Now, is the non – service under Order 20 Rule 12 referring to the processes filed or non – service of a hearing Notice or both? I am of the view that it could be both because if it were a situation where the service of processes filed is required then, non – service of it could qualify to set aside a default judgement. And if it were the situation where the appellant was not aware of the next adjourned then it can also come into effect. I had earlier observed that the Appellants were duly served with all processes before the pre-trial formalities commenced. Amongst those processes filed and served is the motion for judgment in the absence of defence or denial of the substantive claim yet there was no application by the Appellants before the Court to file any process. Thus, the aspect of non-service here concerns a hearing notice not processes filed, i.e. the non – service of a hearing Notice before judgment was entered.
?The fundamental question to be determined is whether there was need to serve the Appellants with a hearing Notice before judgement can be entered against the Appellants in their absence during pre-trial? I held earlier
stated that there was no need for a fresh hearing notice on the Appellants for the date judgement was entered since Appellant counsel was in Court on the last adjourned date. The aspect left to be determined is whether the Court was right in entering judgement on that day in the absence of report of settlement.
The matter was clearly fixed for pre-trial and the Rules of Court allow the Court to enter judgment during pre-trial. It seems to me that the Appellants are suggesting that the Court should specifically fix the hearing of the motion for judgement outside pre-trial period. This line of submission is not backed by any law whatsoever. On the other hand, if it were a situation where the Court entered judgment during trial stage then, it would be expected that Appellants be put on notice but this is not the case here. Here, the Appellants were duly represented by counsel who had prior knowledge of the date for continuation of pre-trial and the judgement was entered during pre-trial.
Where a party has been accorded reasonable opportunity to be heard and as required by law and no reasonable reason is advanced for failure to appear in Court, then the
party cannot be heard to complain and shout fair hearing, see the case of OWOLABI v. BELLO (2011) LPELR – 8942 (CA). In the case of OKOTCHA v. HERWA LTD (2000) 15 NWLR (Pt. 690) 249 it was held that it is not fair or just to the other party as well as the Court, that a recalcitrant and defaulting party should hold the Court and the other party to ransom. That the business of the Court cannot be dictated by the whims and caprices of any party. It goes without saying that justice must be even handed. This appeal if allowed would set the hand of the clock back.
Fair hearing is not an abstract term available to a party at all times and in all circumstances. It must be real and to be considered in the light of each set of facts and circumstances, see OLATUBOSUN v. ANENTH (2009) 18 NWLR (Pt. 1165) 560. It is in the light of above that this issue is resolved against the Appellants.
ISSUE TWO:
Here, the Appellants argued that the lower Court did not exercise its discretionary power judicially and judiciously when it refused to set aside the default judgment. He submitted that the error of the Appellants’ previous counsel should not be visited on the
Appellant and that the judgment ought to have been set aside since there was no adequate and proper hearing notice before the default judgment was given in the first place and in the absence of the Appellant and counsel in Court. They urged this Court to interfere with the lower Court’s exercise of discretion having drawn wrong conclusions that are perverse and not supported by evidence, cited MAMMAN v. SALAUDEEN (2006) 9 WRN 1 SC, IHEANACHO & ORS v. CHIGERE & ORS (2004) 17 NWLR (PT 901) 130, ATUNGWU v. OCHEKWU (2004) 17 NWLR (PT 901) 18.
The Respondents on the other hand submitted that an application to set aside a default judgment is not granted as a matter of course as the Courts are to consider certain principles as laid down in WILLIAMS & ORS v.?HOPE RISING VOLUNTARY FUNDS SOCIETY (1982) 1 SC 145 before exercising its discretion. That the Appellants had ample time to respond to the Respondent’s processes including its application for default judgment but refused to do so. According to the Respondent, the Appellants were indolent in the matter and the argument of the Appellants that “the sin of counsel cannot be visited on the litigant”
cannot apply, relied on GOV BENUE STATE v. NIGERIAN CONSTRUCTION CONSORTIUM LTD (1997) 3 NWLR (PT 495) 610, OKOTCHA v. HERWA LTD (2000) 15 NWLR (PT 690) 249.
That the conduct of the Appellants is not worthy of sympathetic consideration by this Court and since the Appellants did not appeal against the judgment, the judgment is valid and subsisting.
RESOLUTION:
The Appellants are questioning the discretion of the trial Court in dismissing the application to set aside the default judgement. The lower Court in its ruling at page 119 – 120 of the record of Appeal held that the application lacks merit and is not deserving of the Courts discretion. The Appellants called attention to the evidence they presented. They argued that the exercise of the trial Court’s discretion is contrary to known principles and evidence in support and the evidence which they contend was not considered as follows:
a. That there had been a gross professional error on the part of the Appellants’ former counsel in the matter which resulted in the said default judgement (contrary to the conclusion of the lower Court on the point) which error should not have been visited
on the Appellants by way of refusal to set aside the default judgement.
b. That there was no adequate and proper hearing Notice for the Respondents’ Motion on Notice for judgement issued and served on the Appellants before the application was taken and granted on a day the matter was slated for ‘REPORT OF SETTLEMENT’ more so in the absence of both the Appellants and their counsel, and that this alone (contrary to the conclusion on the point) ought to have been sufficient to warrant the exercise of the discretion in favour of the Appellants by setting aside the default judgement.
The resolution of issue one has settled the question of hearing notice. On the other issue as to discretion, let me state that the trial Court in the exercise of its discretion refused to set aside the default judgement because it was not made out. Furthermore, being that the trial Court has already exercised discretion, this Court can only interfere with such discretion if the lower Court failed to exercise such discretion judicially and judiciously, i.e. where the lower Court acted under a misconception of the law or under a misapprehension of facts thereby occasioning a
miscarriage of justice, See the cases of DOWN PHARM & CHEM CO. LTD. v. BENEKS PHARM. & COSMETICS LTD. & 2 ORS. (2008) 1 – 2 SC, 68, LAOSEBIKAN & ORS v. AWOJOBI (2015) LPELR – 24831 (CA) per NIMPAR, JCA. An appellate Court will not interfere with the exercise of discretion by a trial Court lightly. See IKENTA BEST NIG LTD v. ATTORNEY GENERAL RIVERS STATE (2008) LPELR – 1476 (SC) where the Apex Court held as follows:
“it is settled that an appellate Court should be wary of setting aside the exercise of discretion by the lower Court as the Court is not at liberty to substitute its own exercise of discretion for the discretion already exercised is not at liberty to substitute its own exercise of discretion for the discretion already exercised by the judge or lower Court except where the appellate Court or Tribunal reaches a clear conclusion that there has been a wrongful exercise of discretion, that no weight or no sufficient weight was given relevant consideration, or that the exercise was done mala fide, arbitrarily, illegal, or either considering extraneous matter.”
None of these factors are made out. The main reason advanced by the
applicants was fault of counsel. It is a principle of law that litigants should not be made to suffer for the fault of counsel, see OSALUMHENSE v. AGBORO [2005] 16 NWLR (PT. 951) 204.
However, the principle is not cast in stone or impregnable, see GOV BENUE STATE v. NIGERIAN CONSTRUCTION CONSORTIUM LTD (1997) 3 NWLR (PT 495) 610 where the Court held that it is not enough for a litigant to entrust its case to counsel and go to sleep. In the case of OKOTCHA v. HERWA LTD (2000) 15 NWLR (Pt. 690) 249 it was held as follows:
“the business of the Court must be conducted with expedition; and a counsel who was not in Court at the time his client’s case was called could not blame anybody but himself, I also accept that it is wrong in principle to visit the sin of a counsel on his client but in the instant case both the client and his counsel were in sin and I do not see the justification to penalize the party that was in Court at the proper time to argue its case only because of such principle of not visiting counsel’s sin on the litigant.”
I am in complete agreement with the holding above. In this case before us, the Appellants delayed the Respondent’s
claim and stalled it at the pre-trial stage for 15 months. No process was filed apart from the memorandum of appearance for over a year since the proceedings were initiated. All efforts to have the parties settle the matter amicably failed.
Indeed from the attitude of the Appellants, it is clear that they only intended to frustrate the Respondent.
Having resolved the fact that the grounds for setting aside default judgment not established, the lower Court did not go outside the requirement of the Rules of Court to decide against the Appellants. In the absence of extraneous matters, discretion was not wrongly exercised and all issues raised were duly considered. The party who was in Court on the previous adjourned date is aware of the date the matter was coming up and a party that briefs a counsel and for over one year did not bother to find out if relevant process were filed is also considered to be unserious. The trial Court in the brief ruling considered what was relevant and there is no reason for this Court to interfere. Flowing from above, this issue is also resolved against the Appellants.
?Consequently therefore, this appeal fails and is
hereby dismissed for lacking in merit. The ruling of HON. JUSTICE, GBAJABIAMILA delivered on the 14th of December, 2009 is hereby affirmed.
Cost of N50, 000 to the Respondent.
AMINA ADAMU AUGIE, J.C.A.: I have read in draft the lead Judgment just delivered by my learned brother, Nimpar, JCA, and I agree with his reasoning and conclusion. He dealt extensively with issues raised by the parties, and I have nothing of much relevance to say, and will only add that a default Judgment is entered upon failure of a party to appear or plead at an appointed time – see Akinriboya v. Akinsole (1998) 3 NWLR (pt. 540) 101. Such a Judgment based solely on default of pleadings or non-compliance with rules of procedure, is not one on the merits and can, on good grounds being shown, be set aside by the Court upon an application to the Court by the Defendant – see Adeloye v. Olona Motors (2002) 8 NWLR (pt. 769) 445 and Malgwi v. Gadazama (2000) 11 NWLR (pt. 678) 258.
In this case, it is clear from all that my learned brother had to say in the lead Judgment that the Appellants failed to show “good grounds” why the default Judgment should be
set aside. From the look of things, the Appellants betrayed signs of forestalling matters at the lower Court, and equity, the epitome of fairness, was, certainly, not on their side.
In the circumstances, I also dismiss the Appeal, and abide by the consequential Orders in the lead Judgment including the order on costs.
JAMILU YAMMAMA TUKUR, J.C.A.: I have read in draft the lead judgment just delivered by my learned brother YARGATA BYENCHIT NIMPAR JCA, and I agree with the reasoning and conclusion.
?I also dismiss the appeal and affirm the ruling of the lower Court.
Appearances
Appellant AbsentFor Appellant
AND
O.A. OWOLASI with him, F. D. OLORUNTOBAFor Respondent
