WUBON v. KAKIEY & ORS

CITATION: (2017) LPELR-42988(CA)

In the Court of AppealIn the Yola Judicial Division

Holden at Yola

ON THURSDAY, 26TH JANUARY, 2017Suit No: CA/YL/40/2014

Before Their Lordships:

OYEBISI FOLAYEMI OMOLEYE Justice, Court of AppealJAMES SHEHU ABIRIYI Justice, Court of AppealSAIDU TANKO HUSAINI Justice, Court of Appeal

BetweenPHARM. OLIVER WUBON - Appellant(s)

And1. EMEKA KAKIEY2. THE SHERIFF, TARABA STATE OF NIGERIA3. THE DEPUTY SHERIFF, HIGH COURT OF JUSTICEOF TARABA STATE

- Respondent(s)

RATIO DECIDENDI1. ACTION - DEFENCE TO AN ACTION: Effect of failure to file a defence to an action

"By Order 27 Rule 1 of the Rules of the trial Court, if a claim is for a debt or liquidated demand and the defendant does not, withinthe time allowed by the rules or an order of the Court or Judge in chambers for that purpose, file a defence, the plaintiff may, at theexpiration of such time, apply for final judgment for the amount claimed, with costs."Per OMOLEYE, J.C.A. (Pp. 40-41, Paras. F-B) -read in context

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2. CONSTITUTIONAL LAW - RIGHT TO FAIR HEARING: Attributes of the principle of fair hearing"The law is well settled that the twin cardinal principles of fair hearing are expressed in the two maxims of: (a) "audi alteram partem"which interprets the judge before whose Court the complaint or grudge is taken, must hear the two parties to the dispute and (b)"nemo judex in causa sua" which interprets there should be no evidence of bias, so that no person should be a judge in his or herown cause. In the case of: KOTOYE V. C.B.N. (1989) 1 NWLR (Pt.98) p.419, the Apex Court, at p.444, paras. E-H, stated the basiccriteria and attributes of fair hearing as follows:(i) That the Court shall hear both sides not only in the case but also in all material issues in the case before reaching a decision whichmay be prejudicial to any party in the case. See SHELDON V. BROWN FIELD JUSTICES (1964) 2 Q.B.573 AT P.578;(ii) That the Court or Tribunal shall give equal treatment, opportunity and consideration to all concerned. See ADIGUN V. A.G. OYOSTATE & ORS. (1987)1 NWLR (PT.53) 678;(iii) That the proceedings shall be held in public and all concerned shall have access to and be informed of such a place of publichearing; and(iv) That having regard to all the circumstances, in every material decision in the case, justice must not only be done but mustmanifestly and undoubtedly be seen to have been done; R. V. SUSSEX JUSTICES, EXPARTE MC-CARTHY (1924)1 KB 256 AT 259;DEDUWA & ORS. V. OKORODUDU (1976)10 SC 329."Per OMOLEYE, J.C.A. (Pp. 50-51, Paras. B-D) - read in context

3. CONSTITUTIONAL LAW - RIGHT TO FAIR HEARING: Essence of the right of fair hearing"It is being sounded here the umpteenth time that the nub of the principle of fair hearing is not intended to be employed by a litigantas a magic wand to bamboozle the Courts in order for him or her to shy away from the germane issues in a case involving him or her.It is the established position of the Supreme Court and this Court that, the core principle of fair hearing is the giving of equalopportunity to the parties to be heard on the issues in the litigation before the Court. Therefore, where parties have been givenopportunity to present their respective case, they cannot be indulged in the complaint of a breach of fair hearing principles. See thecases of: (1) Magit v. University of Agriculture, Makurdi (2005)19 NWLR (Pt.959) p.211; (2) Magaji v. The Nigerian Army (2008) 8NWLR (Pt.1089) p.338 and (3) Okanlawon v. The State (2015) LPELR -24838. What is more, the learned counsel for the Appellant hasnot shown and I do not see in what way the ruling of the trial Court has occasioned miscarriage of justice to the Appellant, the onlyground upon which the ruling on his application can be set aside. See the cases of: (1) Pan Atlantic Shipping & Transport AgenciesLtd. V. Rhein Mass GMBH (1997) 9 NWLR (Pt.493) p.248; (2) Okiri v. Ifeagha (2001) FWLR (Pt.73) p.140; (3) Ekpo v. State (2003)17NWLR (Pt.849) p.392; (4) Edeani Nwavu v. Okoye (2008) 12 SCNJ p.460 and (5) Nospetco Oil & Gas Ltd. V. Prince Matiluko EmmanuelOlorunnimbe (2012)10 NWLR (Pt.1307) p.115."Per OMOLEYE, J.C.A. (Pp. 53-54, Paras. A-B) - read in context

4. COURT - JURISDICTION: Meaning of jurisdiction"The definition of jurisdiction of a Court has long been pronounced upon in a long line of cases by the Supreme Court as well as thisCourt. To mention but a few, see the cases of: (1) Madukolu v. Nkemdilim (1962) 2 SCNLR p.341; (2) Ndaeyo v. Ogunaya (1977)1 S.C.P.11; (3) N. B. N. v. Shoyoye (1977)5 S.C. p.110; (4) A.-G., Fed. V. Guardian Newspapers Ltd. (1999) 5 S.C. (Pt.III) p.59; (5) MobilProducing (Nig.) UnLtd. V. LASEPA (2002) 18 NWLR (Pt.798) p.1 and (6) Obasanjo v. Yusuf (2004) 9 NWLR (Pt.877) p.144.Therefore, jurisdiction has been broadly defined as the limits imposed on the power of a validly constituted Court to hear anddetermine issues between persons seeking to avail themselves of its process by reference to the subject matter of the issues or tothe persons between whom the issues are founded or to the kind of relief sought."Per OMOLEYE, J.C.A. (P. 40, Paras. A-E) - read in context

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5. JUDGMENT AND ORDER - SETTING ASIDE JUDGMENT/ORDER: Circumstances when a Court would set aside itsjudgment/decision/order"The law is extremely robust that generally, a judgment given at the end of a formal trial, after hearing evidence of all parties andsubmissions of their counsel, if so represented, on all the sundry issues of the facts and relevant laws is a judgment on the merit ofthe action and also a final judgment which the Court concerned is incapable of setting aside except for fundamental defects that goto the jurisdiction of the Court or under the "slip rule" to correct clerical errors in the judgment. Hence, where the judgment is finaland the Court that enters it has no jurisdiction to set same aside having thereby become "functus officio", the way to challenge it isby an appeal to a Superior Court- see the cases of: (1) Alapa v. Sanni (1967) NMLR p.397; (2) Okafor v. A.-G., Anambra State (1991)6NWLR (Pt.200) p.659; (3) Sanusi v. Ayoola (1992)9 NWLR (Pt.265) p.275 and (4) Ogolo v. Ogolo (2006)5 NWLR (Pt.972) p.173.However, a trial Court under its rules may in the exercise of its discretionary power, set aside its judgment entered against anadverse party, either in default of appearance or pleading, the judgment not being a judgment on the merits. This is usually incircumstances where a judgment has been entered for non-compliance with the rules of Court. Regarding the power of the Court torescind a judgment after it has been uttered or drawn-up, the Supreme Court restated the age-long legal position in the case of:Anatogu v. Iweka II (1995) 8 NWLR (Pt.415) p.547 at p.585 para. H and p.586 paras. A-D. per Ogundare, JSC (of blessed memory) asfollows: The general rule is that the Court has no power under any application in the action to alter or vary a judgment or order afterit has been uttered or drawn-up, except so far as is necessary to correct errors in expressing the intention of the Court or under the"slip rule"- See Asiyanbi v. Adeniji (1967) 1 All NLR 82, 89; Umunna v. Okwuraiwe (1978) 6-7 SC. 1; Agwunedu v. Onwumere (1994)1NWLR (Pt.321) 375. There are, however, exceptions to this rule some of which are:(1) A judgment or order which is a nullity owing to failure to comply with an essential provision such as service of process, can be setaside by the Court which gave the judgment or made the order- See Skenconsult (Nig.) Ltd. v. Ukey (1981)1 SC.6; Craig. v. Kanssen(1943) KB 256; Forfie v. Seifah (1958)1 All ER 219 P.C.(2) A judgment or order made against a party in default may be set aside and the matter reopened - see: e.g. Order XLI, Rule 5 of theHigh Court Rules of Eastern Nigeria.(3) There is jurisdiction to make upon proof of new facts an order supplemental to an original order, e.g. a supplemental order to anorder for specific performance that there be an inquiry as to damages sustained by reason of the defendant's delay in completing theagreement, at any rate from the date of the original order for specific performance - see: Ford-Hunt v. Singh (1973)2 All E.R.700;(1973)1 WLR 738.(4) If a judgment or order has been obtained by fraud, a fresh action will lie to impeach the judgment. ......See also: Jonesco v. Beard (1930) AC 298, 300 HL; Olufunmise v. Falana (1990) 3 NWLR. (Pt.136) 1 S.C.; Kennedy v. Dandrick (1943)2All E. R.606.(5) A judgment may be set aside on the ground that fresh evidence has been discovered which, if tendered at the trial, will have anopposite effect on the judgment..........See also: Ladd v. Marshall (1954)3 All E.R 745; McPherson v. Mcpherson (1936) AC 177 PC. Therefore, specifically, one of theexceptions to the general rule that a Court has no power to alter a judgment after same had been uttered is where, the judgmentwas entered in default of taking a procedural step such as in default of appearance or pleading, also called, default judgment, like thejudgment the subject-matter of this appeal. See also the cases of: (1) Mark v. Eke (2004)1 S.C. (Pt.II) p.1 and (2) Duke v. Akpabuyo L.G. (2005)19 NWLR (Pt.959) p.130. It is trite that there are stipulations for relevant considerations upon which the Court must rely indeciding whether or not to grant an application to set aside its judgment given in default of appearance or defence. In the case of:Sanusi v. Ayoola (1992) 9 NWLR (Pt.265) p.275, per Karibi-Whyte, J.S.C. (Rtd.), the following stipulations have been laid down by theApex Court as constituting sufficient materials for the exercise of a Judge's discretion before whom there is an application to set asidea default judgment:1. Where an applicant has shown good reasons for being absent at the hearing.2. Where the application was brought within the prescribed period of six days.3. In an application for extension of time to bring the application, the applicant has given good reasons for his inability to bring theapplication to set aside the judgment within the six days prescribed under the rules.4. Where an applicant has shown that there is an arguable defence to the action, which is not manifestly unsupportable.5. Where the conduct of the applicant throughout the trial is not such as is condemnable, but is deserving of sympathy.6. Where the judgment is tainted with fraud or is irregularly obtained.7. Where the judgment was given for an amount in excess of what was due and claimed.8. Where the respondent will not suffer any prejudice or embarrassment if the judgment is set aside.Also in the case of : W. I. SPA Milan v. J. I. Nwanyanwu & Sons (2001)1 NWLR (Pt.693) p. 32, this Court, per Galadima, J.C.A. [as hethen was now J. S. C. (Rtd)] at pgs. 35 - 36, paras. H-B, also reiterated the legal position on what the Court will consider in granting orrefusing an application to set aside a default judgment as follows:-(a) The reasons for the applicant's failure to appear in Court.(b) Whether there has been undue delay in making the application so as to prejudice the respondent.(c) Whether the respondent would be prejudiced or embarrassed upon an order for rehearing being made so as to render itinequitable to permit the case to be re-opened:(d) Whether applicant's application is manifestly unsupportable.(e) Whether the conduct of the application generally and particularly regarding interest shown on the case, has been such as to makehis application worthy of a sympathetic consideration.See Agwu v. Aba and Ors (1961) All NLR 438; N. A. Williams and Ors v. Hope Rising Voluntary Funds Society (1982)1-2 SC 145; Muh.Dangardi v. Yusuf Jibril (1997) 4 NWLR (Pt.501) 590. It is pertinent to state that all the above stated stipulations ought to be resolvedin favour of the applicant before the judgment could be set aside and it is not enough that some of them can be so resolved. See alsothe cases of: (1) Afonja Comm. Bank (Nig.) Ltd. V. Akpan (2002)16 NWLR p.154 and (2) Ogolo v. Ogolo (supra).In the instant case, the trial Court's judgment delivered on 15th April, 2013 is a judgment in default of defence as can be gleanedfrom the printed record of appeal. For at the time the said judgment was entered, the Appellant was yet to file his statement ofdefence to the suit and both parties were not heard on the merits of the case. What is more, by Order 27 Rule 13 of the Rules of thetrial Court, it is clearly stated that a party is said to make default in pleading when he or she fails to file and serve his or her defenceon the opposite party within the time fixed for doing so either by the Rules or Order of the Court or Judge in chambers. Particularly,by Order 27 Rule 12 of the Rules of the trial Court, a default judgment is held sancrosant and may only be set aside, upon anapplication made to that Court, on grounds of fraud, non-service or lack of jurisdiction or any other good cause shown and on suchterms as the Court may deem fit. It is very clear that the above stated age-long laid down conditions must be dispassionatelyconsidered by the Court in the exercise of its judicial and judicious discretion with regard to an application to set aside a defaultjudgment. Therefore, an applicant who fails or neglects to furnish particular details in verification of the conditions to the satisfactionof the Court cannot be granted the indulgence of an order setting aside such a default judgment."Per OMOLEYE, J.C.A. (Pp. 27-35, Paras. F-D) - read in context

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6. JUDGMENT AND ORDER - EXECUTION OF JUDGMENT: Instance where writ of execution/attachment will be set aside"... it is trite that generally, the Court of Appeal will not set aside the issuance of a writ of attachment which has been levied orexecuted except in circumstances where the issuance of the writ or attachment amounts to an abuse of Court's process and wasintended to overreach the adverse party. See the cases of: (1) U. B. N. Ltd. V. Fajebe Foods and Poultry Farms (1994) 5 NWLR(Pt.344) p.325. and (2) Argos (Nig.) Ltd. V. Umar (2002) 8 NWLR (Pt.769) p. 284 at pgs. 292-293, paras. B-C."Per OMOLEYE, J.C.A. (P.45, Paras. A-D) - read in context

7. JUDGMENT AND ORDER - STAY OF EXECUTION OF JUDGMENT: What an applicant seeking the grant of a stay of execution mustshow"... Section 20 of the Sheriffs and Civil Process Act, Cap. S6, Vol.14, Laws of the Federation of Nigeria, 2004, a judgment to paymoney as in the instant matter is recoverable by the issuance of a writ of "fi fa" immediately the judgment is pronounced and as amatter of course without leave or prior notice to the judgment debtor. For a person directed by an order of Court to pay money isbound to do so immediately the order is pronounced without any demand for performance, especially if no time frame is given. And ajudgment debtor seeking to stay the execution can only file an application to that effect to show that he is challenging the judgmentor asking for time to comply with the terms of the judgment. The present Appellant has clearly not employed that proper procedurein the pursuit of his said grievance. See the cases of: (1) Olayinka v. Elusanmi (1971)1 NMLR p.277; (2) Intercontractors Nig. Ltd. V.U.A.C. Nig. Ltd. (1988) (Pt.1) Vol.9 NSCC p.737 at p.752 and (3) Olatunji v. Owena Bank PLC (2008) 8 NWLR (Pt.1090) p.668."Per OMOLEYE, J.C.A. (Pp. 45-46, Paras. F-E) - read in context

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OYEBISI FOLAYEMI OMOLEYE, J.C.A. (Delivering the

Leading Judgment): This is an appeal against the decision

of the High Court of Taraba State holden at Jalingo Judicial

Division (hereinafter called the “trial Court”) delivered on

1st August, 2013 in Motion No. TRSJ/228M/2013.

The background facts leading to this matter from the

perspective of the Appellant are that, on 25th September,

2012, the 1st Respondent instituted a suit against the

Appellant for breach of contract before the trial Court in

Suit No. TRSJ/81/2012 claiming as follows:

(a) An order of the trial Court for the payment of the

Balance of the Contract Sum of eight hundred and

eighty-five thousand naira (N885,000.00);

(b) General Damages of one mil l ion naira

(N1,000,000) and

(c) The Costs of filing and prosecuting the suit.

According to the Appellant, he briefed a counsel, one Mr.

O.S. Kara to defend him in the suit but the said counsel

failed to cause an appearance to be entered for him and

took no further action in pursuit of his defence. The

Appellant stated that he subsequently briefed his present

counsel, Mr. J. A. Oguche who

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represented him for the first time on 10th April, 2013 when

the matter came up for hearing before the trial Court. On

that day, the learned counsel for the Appellant applied for

an adjournment on the ground that he was only briefed by

the Appellant the day before. The application for an

adjournment was granted by the learned trial Judge and the

case was adjourned to 15th April, 2013 to enable the

Appellant file all the necessary processes in the matter and

for pre-trial. On 15th April, 2013 when the trial Court

reconvened, the Appellant had not filed his statement of

defence, rather, the Appellant merely filed earlier on that

day at the Court’s Registry, answers to questions in the

pre-trial information sheet. Hence, the learned counsel for

the 1st Respondent noted that, it would not be necessary to

go on to pre-trial, the Appellant having failed to join issues

with the 1st Respondent in that the statement of defence

had not been filed. The learned counsel for the 1st

Respondent therefore applied pursuant to Order 27 of the

Taraba State High Court (Civil Procedure) Rules, 2011 for

the trial Court to enter final judgment against the Appellant

in default

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of pleading. Hence, the trial Judge on 15th April, 2013

proceeded to enter judgment in favour of the 1st

Respondent in default of pleading and against the

Appellant.

Vexed by the said default judgment, the Appellant by a

motion on notice dated and filed on 9th July, 2013 applied

to the trial Court for the following orders thus:

1. AN ORDER extending the time within which the

Defendant/Applicant may apply to set aside the

default judgment entered in favour of the

Plaintiff/Respondent in Suit No. TRSJ/81/2012 as

same is null and void for lack of jurisdiction.

2. AN ORDER setting aside the default judgment

entered in favour of the Plaintiff/Respondent in Suit

No. TRSJ/81/2012 as same is null and void for lack of

jurisdiction.

3. AN ORDER directing the Respondents to suspend

further proceedings and/actions in the execution of

the default judgment entered in favour of the

Plaintiff/Respondent in Suit No. TRSJ/81/2012.

4. AN ORDER setting aside the attachment of the

Defendant/Applicant’s vehicle by the Bailiff of the

Honourable Court pursuant to the execution of the

default judgment entered in favour of the

Plaintiff/Respondent in

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Suit No. TRSJ/81/2012 for being null and void.

5 . A N O R D E R g r a n t i n g l e a v e t o t h e

Defendant/Applicant to apply for an extension of time

within which to file and serve his Memorandum of

Appearance, Statement of Defence, List of Witnesses

as well as the Statement on Oath of Witnesses in the

substantive Suit No. TRSJ/81/2012.

6. AN ORDER extending the time within which the

Defendant/Applicant may file and serve his

Memorandum of Appearance, Statement of Defence,

List of Witnesses as well as the Statement on Oath of

Witnesses in the substantive Suit No. TRSJ/81/2012.

7. AN ORDER deeming the said Memorandum of

Appearance, Statement of Defence, List of Witnesses

as well as the Statement on Oath of Witnesses as

having been properly filed and served, same having

been separately filed and paid for.

8. AN ORDER directing the 2nd and 3rd Respondents

to release to the Defendant/Applicant his Honda Car

attached on the 5th of July, 2013 pursuant to the

execution of the default judgment entered in favour

of the Plaintiff/Respondent in Suit No. TRSJ/81/2012.

9. AND for such Order(s) as the Honourable Court

may deem fit to make in the circumstance of

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this case.

The grounds upon which the application was predicated are

as follows:

1. This Honourable Court lacked the jurisdiction to

enter default judgment in the substantive suit as

service of the originating processes of the said

substant ive sui t was not e f fected on the

Plaintiff/Applicant.

2. Order 31 Rule 2(1) of the Taraba State of Nigeria

High Court (Civil Procedure) Rules, 2011 mandatorily

requires Pre-trial Conference to be held in all civil

proceedings begun by writ before this Honourable

Court.

3. This Honourable Court however granted leave to

the Plaintiff/Respondent not to hold Pre-trial

Conference in the substantive suit which is a civil

proceeding begun by writ before this Honourable

Court.

4. This Honourable Court lacked the jurisdiction to

grant leave to the Plaintiff/Respondent not to hold

Pre-trial Conference, which is mandatory and

unwaivable.

5. The application for judgment in default of

pleadings made by the Plaintiff/Respondent on the

15th of April, 2013 was made orally.

6. Oral applications are not cognizable and known

under the Rules of this Honourable Court as the

Taraba State of

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Nigeria High Court (Civil Procedure) Rules, 2011

mandatorily requires all applications made before

this Court to be made by the means of a motion

paper.

7. This Honourable Court lacked the jurisdiction to

grant the oral application for judgment in default of

pleadings as the said application was incompetent,

null and void ab initio.

8. The Plaintiff/Respondent only wrote a letter to the

Registrar of this Court for the issuance of a writ of

attachment in furtherance of the execution of the

default judgment entered in his favour in the

substantive Suit No. TRSJ/81/2012.

9. Letters as the means of applying for writ of

execution are not cognizable and known under the

Rules of this Honourable Court as the Taraba State of

Nigeria High Court (Civil Procedure) Rules, 2011

mandatorily requires such applications made before

this Court to be made by the means of motions ex-

parte.

The application was supported by an Affidavit of seven

paragraphs deposed to by the Appellant himself and three

exhibits marked Exhibits “A”, “B” and “C”. The said

Supporting Affidavit is contained in pages 56 to 60 of the

Record

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of Appeal. Exhibit “A” is, the Answers to Pre-Trial

Information Sheet, dated 11th April, 2013 and filed on 12th

April, 2013.

Exhibit “B” is, the Answers to Questions in the Pre-Trial

Information Sheet (Form 24), dated 12th April, 2013 and

filed on 15th April, 2013. Exhibit “C” is, the motion on

notice, dated and filed on 12th April, 2013 with its

accompaniments, that is, motion for extension of time for

the Appellant to file and serve and for the deeming of the

intended processes as properly filed and served. The

proposed processes also annexed to the motion are the

memorandum of appearance, statement of defence, list of

witnesses, as well as the statement on oath of witnesses in

the substantive suit.

The important averments of the affidavit in support of the

motion are hereunder reproduced for good understanding

and easy reference, as follows:

1. That I am the Defendant/Applicant herein.

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2. ………

3. …………

4. That I know as a fact thus:

(a) That the Plaintiff/Respondent instituted the

substantive suit against me before this Honourable

Court on the 25th of September, 2012.

(b) That none of the originating processes of the

substant ive suit was served on me by the

Plaintiff/Applicant.

(c) That the Plaintiff/Respondent only served same on

O. S. Kara, Esq.

(d) That the said O. S. Kara, Esq. however neither

entered appearance for me nor filed a defence in the

suit because his brief was not perfected.

(e) That it was only when the pre-trial information

sheet and answers were pasted on my gate sometime

in April, 2013 that I realized that the said O. S.

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Kara, Esq., had not filed the relevant processes in my

defence in the suit.

(f) That I then proceeded on the 13th of April, 2013 to

engage the firm of Messrs J. A. Oguche & Co; to

prosecute his defence.

5. That I was informed by J. A. Oguche Esq. of

Counsel, in his office situate at Suite 6 Lenyol

Investment House, adjacent Ahmadu Bello Way,

Jalingo on the 8th of July, 2013 at 2.00pm and which

information I verily believe to be true thus:

(a) That the Plaintiff/Respondent applied for pre-trial

conference in the substantive suit.

(b ) That on the 12 th o f Apr i l , 2013 , the

Plaintiff/Respondent filed his answers to questions to

in the pre-trial information sheet. A copy of the said

answers is hereto attached and marked as Exhibit A

(c) That he J. A. Oguche, Esq. of Counsel duly filed my

answers to the questions in the pre-trial information

sheet on the 15th of April, 2013. A copy of the said

answers is hereto attached and marked as Exhibit B.

(d) That the stage was therefore set for the

commencement of pre-trial conference in the

substantive suit.

(e) That the substantive suit thus came up on the

15th of April, 2013 whereupon G.

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T. Finchar, Esq. appeared for me holding the brief of

J. A. Oguche, Esq. of counsel was in Gembu, whilst F.

O . O b a n y e , E s q . a p p e a r e d f o r t h e

Plaintiff/Respondent, holding the brief of L. C. Osuji,

Esq.

(f) That the said F. O. Obanye, Esq informed this

Honourable Court that the matter was slated on that

day for pre-trial conference, but surprisingly enough,

rather that ask the Court to commence pre-trial

conference, he (F. O. Obanye, Esq) ORALLY applied

for judgment in default of pleadings.

(g) That G. T. Finchar, Esq. opposed the ORAL

application and proceeded to inform this Court that

the Defendant had filed a motion for extension of

time to file his defence and that same was yet to be

assigned to this Court. A copy of the said motion for

extension of time and the receipt for penalties for

default are hereto attached and marked as Exhibits C

and C1, respectively.

(h) That My Lord however overruled the objection and

proceeded to entertain the said ORAL application and

thereupon entered judgment against the

Defendant/Applicant in default of pleadings. A copy of

the said default judgment is hereto attached and

marked as Exhibit D.

(i) That

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pre-trial conference is mandatory in all civil cases

begun by writ of summons in the High Court of

Justice of Taraba State and same cannot be

abandoned and/or waived by the parties or the Court.

(j) That all applications to be made before this Court

are required by the Rules of this Court to be by

motions.

(k) That the said default judgment of the 15th of July,

2013 was delivered by this Court upon an ORAL

application of the Plaintiff/Respondent.

(l) That upon the delivery of the said default

judgment by th is Honourable Court , the

Plaintiff/Respondent wrote a letter to the Registrar of

this Court asking for the execution of the said

judgment and for the issuance of a writ of

attachment.

(m) That the Rules of this Honourable Court

mandatorily requires all applications for execution of

judgments of this Court and issuance of writ

attachment to be by way of ex-parte motions.

(n) That the 2nd and 3rd Respondents are in

possession of my Honda Hennessy car which was

attached by the Bailiff of this Court on the 6th of July,

2013 purportedly in execution of the said default

judgment delivered by this Court in favour of the

Plaintiff/Respondent

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on the 15th of July, 2013.

(o) That the 2nd and 3rd Respondents have concluded

plans to auction off the said Honda Hennessy car if

not stopped by this Court.

(p) That it is necessary and imperative for this Court

to direct the 2nd and 3rd Respondents to stay further

actions in the purported execution of the said default

judgment and to further direct them to release my car

to me.

6. That I know as a fact thus:

(a) That I am very much desirous to defend the

substantive suit with all diligence.

(b) That the delay to file and serve my memorandum

of appearance Statement of Defence, list of witnesses

and the statement on oath of my witnesses was

neither deliberate, nor a ploy by me to delay the

hearing of the substantive suit.

(c) That I have a good and absolute defence to the

substantive suit of the Plaintiff/Respondent.

(d) That it will be in the interest of justice if this

application is granted by the Honourable Court.

(e) That my memorandum of appearance, Statement

of Defence, List of witnesses and Statement on oath

of witnesses are all ready and same have been

separately filed and paid for at the Registry of this

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Honourable Court.

6.(sic) That the grant of this application will not

prejudice the Respondents in any way material to the

effectual determination of the substantive suit.

In the consideration of the motion, written addresses of the

parties’ learned counsel in its support and opposition were

ordered by the learned trial Judge. Same were duly filed

and exchanged by the parties’ learned counsel. The

Appellant’s motion was heard at the trial Court on 1st

August, 2013, when all the processes of the parties

including the written addresses of counsel were adopted by

the respective parties’ learned counsel in support of their

varied positions. At the close of all arguments of the

parties’ learned counsel, the trial Court on the same day,

that is, 1st August, 2013, in its considered ruling dismissed

the application of the Appellant and refused to set aside the

said default judgment.

Irked by the said ruling of the trial Court, the Appellant

filed this appeal against it to this Court by his notice and

grounds of appeal dated and filed on 2nd August, 2013.

Pursuant to the order of this Court made on 29th

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October, 2014, the original notice of appeal was duly

amended. The Amended Notice of Appeal dated 17th

October, 2014 and filed on 20th October, 2014 was deemed

properly filed and served on 29th October, 2014. The five

grounds of appeal contained therein without their

particulars are as follows:

GROUND ONE:

The learned trial Judge of the lower Court erred in

law and occasioned a grave miscarriage of justice

when he dismissed Appellant’s application without

considering any of the issues raised and argued

therein.

GROUND TWO:

The learned trial Judge of the lower Court erred in

law and thereby occasioned a grave miscarriage of

justice when he dismissed Appellant’s application

seeking to set aside the default judgment he delivered

on the 15th day of Apri l , 2015 in Suit No.

TRSJ/81/2012 even when the said default judgment

was delivered without jurisdiction.

GROUND THREE:

The learned trial Judge of the lower Court erred in

law and thereby occasioned a grave miscarriage of

justice when he declined to set aside the default

judgment which he delivered on the 15th of April,

2013 in the substantive suit No.

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TRSJ/81/2012.

GROUND FOUR:

The learned trial Judge of the lower Court erred in

law and thereby occasioned a grave miscarriage of

justice when he declined to set aside the partial

execution by the 2nd and 3rd Respondents of the

purported default judgment which he delivered on the

15th of April, 2013 in the substantive suit No.

TRSJ/81/2012.

GROUND FIVE:

The learned trial Judge erred in law and thereby

occasioned a grave miscarriage of justice when he

purported to grant permission to the Plaintiff/1st

Respondent to waive pre-trial Conference in Suit No.

TRSJ/81/2012 and thereafter entered default

judgment against the appellant in the said Suit.

In compliance with the rules of practice of this Court, briefs

of argument for the Appellant and 1st Respondent were

duly filed and exchanged by their learned counsel.

The Appellant’s Brief of Argument dated 21st October,

2015 was duly filed on 22nd October, 2015 pursuant to the

order of this Court made on 20th October, 2015. The said

brief was settled by Mr. J. A. Oguche. The three issues

donated for determination in the brief state thus:

ISSUE NO. 1:

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Whether the learned trial Judge was right in law to

have granted leave to the 1st Respondent to abandon

and/or waive pre-trial conference in Suit No.

TRSJ/81/2012 and further dismiss the application

seeking to set aside the resultant judgment, regard

being had to the mandatory nature of pre-trial

conference under the Taraba State of Nigeria High

Court (Civil Procedure) Rules, 2011?

ISSUE NO. 2:

Whether the learned trial Judge was right in law to

have declined to set aside the default judgment

delivered in Suit No. TRSJ/81/2012 and its subsequent

execution thereof, in spite of the fact that they arose

from applications not known and cognizable under

the Taraba State of Nigeria High Court (Civil

Procedure) Rules, 2011?

ISSUE NO. 3:

Whether the learned trial Judge was not in breach of

Appellant’s Right to Fair Hearing when he proceeded

to dismiss Appellant’s application seeking to set aside

the default Judgment delivered in Suit No.

TRSJ/81/2012 without considering any of the issues of

law he raised and argued therein?

Upon service of the 1st Respondent’s Brief of Argument on

the learned counsel for the

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Appellant, the Appellant’s Reply Brief dated 6th April,

2016, filed on the same date was deemed properly filed and

served on 11th April, 2016.

The 1st Respondent’s Brief of Argument dated 5th

February, 2016 filed on 19th February, 2016 and deemed

properly filed and served on 22nd February, 2016 was

settled by his learned counsel Mr. I.C. Osuji. In the said

brief, the three issues contained in the Appellant’s brief

already set out above were adopted by the 1st Respondent

for the determination of the appeal.

On 31st October, 2016 when this appeal was heard by this

Court, the learned counsel for the Appellant, Mr. J. A.

Oguche adopted the two briefs of the Appellant in urging

upon this Court to allow the appeal and set aside the

judgment of the trial Court.

The learned counsel for the 1st Respondent, Mr. G. T. Ieave

adopted the brief of the 1st Respondent and urged this

Court to dismiss the appeal in its entirety.

The 2nd and 3rd Respondents did not appear before this

Court and were not represented by counsel in spite of

issuance on them personally of notices of hearing as well as

all the processes in the

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appeal. They are therefore deemed not to be interested in

defending the appeal. I consider it apposite at this juncture

to state that this appeal is against the ruling of the trial

Court in Motion No. TRSJ/228M/2013 and not the main

judgment of the trial Court in Suit No. TRSJ/81/2012.

Hence, this judgment shall be restricted to the issues and

arguments bearing on the former.

I have scrutinized the three issues donated for

determination by the Appellant and wholly adopted by the

1st Respondent. I am of the view that the contents of the

three issues are adequate for the resolution of the appeal. I

therefore adopt them. However, issues one and two being

akin and challenging the propriety of the trial Court’s

refusal to set aside the default judgment in Suit No.

TRSJ/81/2012, I shall consider them together, recouch

and reduced them to one, while issue three shall be

renumbered issue two. As I already noted in the preceding

paragraph, the correctitudeness of the said default

judgment cannot be enquired into in this appeal, the

judgment not having been appealed against specifically by

the Appellant. Therefore all the arguments in the briefs of

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argument of the parties challenging the judgment are

incognizance of this appeal. As stated above, I shall

therefore now recouch issues one and two to read as

follows:

ISSUE ONE:

Whether the learned trial Judge was right in law to

have declined to set aside both the default judgment

delivered by him in Suit No. TRSJ/81/2012 and its

subsequent execution?

APPELLANT’S COUNSEL’S SUBMISSIONS.

The learned counsel for the Appellant submitted that, on

the 25th of September, 2012, the 1st Respondent

commenced a suit in respect of an alleged breach of

contract against the Appellant as defendant before the trial

Court. Upon service on the Appellant of the originating

processes in the said suit, the Appellant engaged O. S. Kara

Esq. to defend him therein, but unfortunately, the said O. S.

Kara Esq. neither appeared in Court nor filed any processes

for him. However, pursuant to the order for substituted

service granted by the learned trial Judge on the 25th of

March, 2013, some of the 1st Respondent’s processes were

pasted on the Appellant’s residence sometime in April,

2013. Therefore the Appellant subsequently engaged the

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services of his current counsel, Messrs J. A. Oguche & Co.,

who then proceeded to file an application for extension of

time to file the Appellant’s defence.

According to learned counsel, before the said application

was assigned to a Judge by the Honourable Chief Judge of

Taraba State, the learned trial Judge proceeded to adjourn

the said suit of the 1st Respondent to the 15th of April,

2013 for pre-trial conference. On that day, F. O. Obanye,

Esq., who appeared for the 1st Respondent, holding the

brief of I. C. Osuji, Esq. curiously applied orally for the

waiver of the pre-trial conference. The learned trial Judge

granted the application and held that the Appellant was

required by the Rules of the trial Court to first file his

statement of defence to show his preparedness to

participate in the pre-trial conference.

It was the opinion of the learned counsel that all the

Appellant was required by the Rules of the trial Court to do

in order to show his preparedness to participate in the pre-

trial conference was to file his answers to the questions in

the pre-trial information sheet (Form 24). On this position,

he relied on Order 31 Rule

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2(1), (2) and (3) of the Rules of the trial Court. Hence, the

Appellant having complied with this provision, the learned

trial Judge was in error to have held that the Appellant was

not ready for pre-trial. What is more, it is abundantly clear

from the referred provisions that the incidence of pre-trial

conference in civil suits under the Rules of the trial Court is

mandatory, inviolable, sacrosanct and could neither be

waived by any of the parties nor the Court under any

circumstance whatsoever. Counsel relied on this stance on

the cases of:- (1) Okereke V. Yar’Adua (2008) All FWLR

(Pt. 430) p. 626 at pgs. 654 – 655, paras. D –F and (2)

Nwankwo V. Yar’adua (2010) NWLR (Pt. 1209) p. 518.

Counsel therefore urged upon this Court to hold that the

failure of the trial Court to hold the pre-trial conference in

the suit of the 1st Respondent clearly robbed the trial Court

of the competence to entertain and determine the said suit

to finality. He relied for this submission among others on

the case ofUkwu V. Bunge (1997) 61 LRCN p.1766 at p.

1786. He submitted that consequently the said default

judgment amounts to a nullity and should

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be set aside by this Court. For a default judgment which is

void is liable to be set aside “ex debito justitiae” even by

the same Court which delivered it. On this legal principle,

he relied on the cases of: (1) Ukwu V. Bunge (Supra) at

p.1786 and (2) Kadzi Int’l Ltd. V. Kano Tannery Co.

Ltd. (2003) FWLR (Pt. 184) p. 255 at p. 271.

The Appellant’s learned counsel further noted that after the

entry of the default judgment by the learned trial Judge

against the Appellant, the 1st Respondent’s counsel wrote a

letter to the Registry of the trial Court to seek for the

execution of the said default judgment. This is equally in his

opinion a clear contravention of the strict and inviolable

provisions of Order 10 Rule 2(1) of the High Court (Civil

Procedure) Rules, (supra) which mandatorily require all

applications before the trial Court to be by the means of

motions. For this stance, he relied on the cases of:- (1)

Iwunze V. FRN (2014) Vol. 232 LRCN p. 46 at p. 54;

(2) Okorocha V. PDP & Ors. (2014) Vol. 229 LRCN p.

70 at p. 87 and (3) Nwora V. Nwabueze (2011) 15

NWLR (Pt. 1271) p. 467 at p. 474. Hence, the said

execution of

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the default judgment is also to all intents and purposes, null

and void in law. Hence, the refusal of the learned trial

Judge to set aside the purported partial execution of the

default judgment by the 2nd and 3rd Respondents was an

error in law. He rested his submissions on the cases of:- (1)

Dantata V. Mohammed (2012) 8 NWLR (Pt. 1302) p.

366 at p. 372 and (2) Onwuka V. Ononuju (2009) All

FWLR (Pt. 487) p.26 at pgs. 29 – 30.

Finally on this issue, the Appellant’s learned counsel urged

upon this Court to invoke its powers under Section 15 of

the Court of Appeal Act, 2004 and proceed to grant the

prayers sought in the Appellant’s application and set aside

both the default judgment entered by the trial Court and

the purported partial execution of same for being null and

void.

1ST RESPONDENT’S COUNSEL’S SUBMISSIONS:

The learned counsel for the 1st Respondent posited that by

the provisions of Order 31 Rule 1(1) & (2) of the Rules of

the trial Court, filing of a statement of defence in a civil suit

is a condition precedent to participating in a pre-trial

conference. Hence, having failed to file a statement

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of defence, the Appellant was not entitled to participate in

any pre-trial conference. What is more, in the instant case,

when the Appellant’s counsel appeared on the 10th April,

2013 and informed the trial Judge that he had just been

briefed a day before, the memorandum of appearance as

required by Order 15 Rules 1(1) and 2(2) of the Rules of the

trial Court, had not been filed for the Appellant. It is trite

that a defendant in a suit must enter an appearance and if

he fails to so do, shall not be entitled to be heard by a Court

therein. On this legal position, he relied on the cases of: (1)

Inakoju V. Ladoja (2007) 29 NSCQ LR 959 p. 1254 and

(2) British American Insurance Co. Ltd. V. Edema-

Sillo (1993) 2 NWLR (Pt. 277) p. 567. Counsel therefore

submitted that the Appellant herein could not be said to

have formally appeared at the trial Court, in order to be

heard in respect of the suit.

The learned counsel for the 1st Respondent referred to

Order 31 Rule 7(1)(b) of the Rules of the Trial Court on the

stance that, if a party or his legal practitioner fails to

attend pre-trial conference or obey a schedule of pre-trial

order or he is

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substantially unprepared to participate in the pre-trial

conference or fails to participate in good faith, the trial

Judge shall in the case of the defendant enter final

judgment against him and in favour of the plaintiff. The

import of the provisions is that the learned trial Judge in

the instant matter rightly reached the conclusion that the

Appellant was substantially unprepared to participate in

the pre-trial conference having failed to file the

memorandum of appearance as well as his statement of

defence. Indeed, what this portends is that in the

circumstance, a trial Judge can suo motu exercise the

power vested in him by the provisions of the said rules.

The learned counsel submitted that the case of: Okereke

V. Yar’Adua (2008) All FWLR (Pt. 430) p. 626 at p.

654 and the unreported case of: Anthony Tippi V.

Sy lvester Notani unreported Appeal No.

CA/YL/51/2013 delivered on 23rd May, 2014, are

distinguishable from the present case. In the instant

matter, the application for pre-trial was duly made by the

plaintiff, 1st Respondent herein and the case was adjourned

twice for pre-trial but the defendant, the Appellant herein

was unprepared to

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participate therein. Whereas in the two referred cases, the

grouse was that, no pre-trial conference was held at all and

this was in defiance of the provisions of the Rules of the

Court mandating the holding of a pre-trial conference.

On the matter of the propriety of the execution of the

default judgment, the learned counsel canvassed that by

the Rules of the trial Court, an application for issuance of

writ of execution otherwise known as “writ of fifa”, is made

to the Registrar of the trial Court and not by way of a

motion filed before the Court. Counsel submitted that the

provisions of Order 42 Rule 4 of the Rules of the trial Court

have been misconstrued by the Appellant’s counsel.

Accordingly, Order 42 Rule 4 relates to situations where

leave is required before the issuance of a writ of execution.

The Use of the word ‘where’ in the provisions of the said

rule suggests that the leave of Court for issuance of writ of

execution is not applicable in all cases. He posited that

leave is not a requirement for the execution of the default

judgment delivered in favour of the 1st Respondent. Hence,

the filing of a formal motion

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seeking the leave of the trial Court for the execution of the

said judgment was not necessary. Contrariwise, in the

instant cases, the applicable provisions are as contained in

Order 42 Rule 6. Thereunder, a Praecipe Form, that is

Form 36, is what the Legal Practitioner to a person entitled

to execution has to file and sign. And it is in compliance

with the said requirement that the 1st Respondent through

his counsel wrote a letter addressed to the Registrar and

submitted the Praecipe Form for the purpose of the

issuance of the writ of execution in enforcing the default

judgment entered in favour of the 1st Respondent.

RESOLUTION:

The target of this two-pronged issue, indeed of this appeal

in the main is plainly, whether or not in the given

circumstances of the instant matter, the trial Court was

right in refusing to set aside both the default judgment

obtained against the Appellant and in favour of the 1st

Respondent and the subsequent execution of the said

judgment by the 2nd and 3rd Respondents, moreso, in an

action which is principally for a liquidated demand. The law

is extremely robust that generally, a judgment given at the

end of a formal

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trial, after hearing evidence of all parties and submissions

of their counsel, if so represented, on all the sundry issues

of the facts and relevant laws is a judgment on the merit of

the action and also a final judgment which the Court

concerned is incapable of setting aside except for

fundamental defects that go to the jurisdiction of the Court

or under the “slip rule” to correct clerical errors in the

judgment. Hence, where the judgment is final and the

Court that enters it has no jurisdiction to set same aside

having thereby become “functus officio”, the way to

challenge it is by an appeal to a Superior Court- see the

cases of: (1) Alapa v. Sanni (1967) NMLR p.397; (2)

Okafor v. A.-G., Anambra State (1991)6 NWLR

(Pt.200) p.659; (3) Sanusi v. Ayoola (1992)9 NWLR

(Pt.265) p.275 and (4) Ogolo v. Ogolo (2006)5 NWLR

(Pt.972) p.173.

However, a trial Court under its rules may in the exercise

of its discretionary power, set aside its judgment entered

against an adverse party, either in default of appearance or

pleading, the judgment not being a judgment on the merits.

This is usually in circumstances where a judgment has been

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entered for non-compliance with the rules of Court.

Regarding the power of the Court to rescind a judgment

after it has been uttered or drawn-up, the Supreme Court

restated the age-long legal position in the case of:Anatogu

v. Iweka II (1995) 8 NWLR (Pt.415) p.547 at p.585

para. H and p.586 paras. A-D. per Ogundare, JSC (of

blessed memory) as follows:

The general rule is that the Court has no power under

any application in the action to alter or vary a

judgment or order after it has been uttered or drawn-

up, except so far as is necessary to correct errors in

expressing the intention of the Court or under the

“slip rule”- See Asiyanbi v. Adeniji (1967) 1 All NLR

82, 89; Umunna v. Okwuraiwe (1978) 6-7 SC. 1;

Agwunedu v. Onwumere (1994)1 NWLR (Pt.321) 375.

There are, however, exceptions to this rule some of

which are:

(1) A judgment or order which is a nullity owing to

failure to comply with an essential provision such as

service of process, can be set aside by the Court

which gave the judgment or made the order- See

Skenconsult (Nig.) Ltd. v. Ukey (1981)1 SC.6; Craig.

v. Kanssen (1943) KB 256; Forfie v. Seifah (1958)1 All

ER 219 P.C.

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(2) A judgment or order made against a party in

default may be set aside and the matter reopened -

see: e.g. Order XLI, Rule 5 of the High Court Rules of

Eastern Nigeria.

(3) There is jurisdiction to make upon proof of new

facts an order supplemental to an original order, e.g.

a supplemental order to an order for specific

performance that there be an inquiry as to damages

sustained by reason of the defendant’s delay in

completing the agreement, at any rate from the date

of the original order for specific performance – see:

Ford-Hunt v. Singh (1973)2 All E.R.700; (1973)1 WLR

738.

(4) If a judgment or order has been obtained by fraud,

a fresh action will lie to impeach the judgment. ……

See also: Jonesco v. Beard (1930) AC 298, 300 HL;

Olufunmise v. Falana (1990) 3 NWLR. (Pt.136) 1 S.C.;

Kennedy v. Dandrick (1943)2 All E. R.606.

(5) A

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judgment may be set aside on the ground that fresh

evidence has been discovered which, if tendered at

the trial, will have an opposite effect on the

judgment……….

See also: Ladd v. Marshall (1954)3 All E.R 745;

McPherson v. Mcpherson (1936) AC 177 PC.

Therefore, specifically, one of the exceptions to the general

rule that a Court has no power to alter a judgment after

same had been uttered is where the judgment was entered

in default of taking a procedural step such as in default of

appearance or pleading, also called, default judgment, like

the judgment, the subject-matter of this appeal. See also

the cases of: (1) Mark v. Eke (2004)1 S.C. (Pt.II) p.1

and (2) Duke v. Akpabuyo L. G. (2005)19 NWLR

(Pt.959) p.130. It is trite that there are stipulations for

relevant considerations upon which the Court must rely in

deciding whether or not to grant an application to set aside

its judgment

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given in default of appearance or defence. In the case of:

Sanusi v. Ayoola (1992) 9 NWLR (Pt.265) p.275, per

Karibi-Whyte, J.S.C. (Rtd.), the following stipulations

have been laid down by the Apex Court as constituting

sufficient materials for the exercise of a Judge’s discretion

before whom there is an application to set aside a default

judgment:

1. Where an applicant has shown good reasons for being

absent at the hearing.

2. Where the application was brought within the prescribed

period of six days.

3. In an application for extension of time to bring the

application, the applicant has given good reasons for his

inability to bring the application to set aside the judgment

within the six days prescribed under the rules.

4. Where an applicant has shown that there is an arguable

defence to the act ion, which is not manifest ly

unsupportable.

5. Where the conduct of the applicant throughout the trial

is not such as is condemnable, but is deserving of

sympathy.

6. Where the judgment is tainted with fraud or is

irregularly obtained.

7. Where the judgment was given for an amount in excess

of what was due and claimed.

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8. Where the respondent will not suffer any prejudice or

embarrassment if the judgment is set aside.

Also in the case of : W. I. SPA Milan v. J. I. Nwanyanwu

& Sons (2001)1 NWLR (Pt.693) p. 32, this Court, per

Galadima, J.C.A. [as he then was now J. S. C. (Rtd)] at

pgs. 35 – 36, paras. H-B, also reiterated the legal position

on what the Court will consider in granting or refusing an

application to set aside a default judgment as follows:-

(a) The reasons for the applicant’s failure to appear

in Court.

(b) Whether there has been undue delay in making

the application so as to prejudice the respondent.

(c) Whether the respondent would be prejudiced or

embarrassed upon an order for rehearing being made

so as to render it inequitable to permit the case to be

re-opened:

(d) Whether applicant’s application is manifestly

unsupportable.

(e) Whether the conduct of the application generally

and particularly regarding interest shown on the case,

has been such as to make his application worthy of a

sympathetic consideration.

See Agwu v. Aba and Ors (1961) All NLR 438; N. A.

Williams and Ors v. Hope Rising

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Voluntary Funds Society (1982)1-2 SC 145; Muh.

Dangardi v. Yusuf Jibril (1997) 4 NWLR (Pt.501) 590.

It is pertinent to state that all the above stated stipulations

ought to be resolved in favour of the applicant before the

judgment could be set aside and it is not enough that some

of them can be so resolved. See also the cases of: (1)

Afonja Comm. Bank (Nig.) Ltd. V. Akpan (2002)16

NWLR p.154 and (2) Ogolo v. Ogolo (supra).

In the instant case, the trial Court’s judgment delivered on

15th April, 2013 is a judgment in default of defence as can

be gleaned from the printed record of appeal. For at the

time the said judgment was entered, the Appellant was yet

to file his statement of defence to the suit and both parties

were not heard on the merits of the case. What is more, by

Order 27 Rule 13 of the Rules of the trial Court, it is clearly

stated that a party is said to make default in pleading when

he or she fails to file and serve his or her defence on the

opposite party within the time fixed for doing so either by

the Rules or Order of the Court or Judge in chambers.

Particularly, by Order 27 Rule 12 of the Rules of the trial

Court, a

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default judgment is held sancrosant and may only be set

aside, upon an application made to that Court, on grounds

of fraud, non-service or lack of jurisdiction or any other

good cause shown and on such terms as the Court may

deem fit.

It is very clear that the above stated age-long laid down

conditions must be dispassionately considered by the Court

in the exercise of its judicial and judicious discretion with

regard to an application to set aside a default judgment.

Therefore, an applicant who fails or neglects to furnish

particular details in verification of the conditions to the

satisfaction of the Court cannot be granted the indulgence

of an order setting aside such a default judgment.

In the instant matter, the trial Court at page 159 of the

record of appeal stated, inter alia, in relation to the reasons

for the default in filing the defence of the Appellant and

inability to file the application to set aside the default

judgment timeously and whether the general conduct of the

Appellant throughout trial is deserving of sympathy, as

follows:

I don’t think rule of Court are meant to be obeyed or

complied with at will. My

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understanding is that it must be complied with

promptly and where there is no prompt compliance,

good and compelling reasons must be advanced to

secure the sympathy of a Court for leave to comply

with the rules. Where a party, particularly defendant

opts to come to Court at his lackadaisical chosen

time, that defendant must also be prepared for its

consequences, as no Court waits for any party to

wrack the proceedings at his own chosen time.

Parties must wait for Court but not otherwise (sic). In

the result, I find no good reasons to disturb my

judgment. This application is refused and accordingly

dismissed.

It can be gleaned from the printed record of appeal that the

application of the Appellant to set aside the default

judgment delivered on 15th April, 2013, was filed on 9th

July, 2013, a period of about ninety days after the delivery

of the said judgment. The appl icat ion with i ts

appurtenances are contained in pages 52 to 107 of the

record of appeal. In the supporting affidavit at pages 56 to

60 of the same record already reproduced above in this

judgment, the Appellant alleged that the originating

processes of the substantive suit were not served

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on him but on his counsel, see Paragraph 4(b) of the said

affidavit. This fact was however debunked by the 1st

Respondent in Paragraph 3 of his counter affidavit at page

108 of the record of appeal. The Appellant did not file a

further affidavit to countermand the refutal of the fact.

What is more, the said assertion of fact by the Appellant is

a sharp contraindication of the express submission of the

Appellant’s learned counsel in paragraph 4.03 at page 6 of

the Appellant’s Brief of Argument in the following words:

No doubt, upon service on the Appellant of the

originating processes in the said suit, he engaged O.

S. Kara, Esq. to defend him therein. (The underlining is

supplied by me for emphasis).

Having perused the entire affidavit of seven paragraphs of

the Appellant in support of the application, I am unable to

see anywhere in it any good reason advanced by the

Appellant for his inability, indeed failure to file his defence

to the suit filed against him by the 1st Respondent on 15th

October, 2012 at the time the default judgment was

entered on 15th April, 2013. He equally did not advance

any reason at all for not commencing his

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application to set aside the default judgment timeously but

about ninety days after the delivery of the said judgment. In

my humble but firm opinion, it is not enough that a

statement of defence was exhibited to the affidavit in

support of the application to set the default judgment in

contention aside. There ought to be provided details of

circumstances evincing cogent and compelling reasons for

his inability to commence the application timeously. This is

a clear case of compounding default on the part of the

Appellant, having defaulted in filing both his defence and

the application to set aside the default judgment within the

statutory periods or expeditiously thereafter. Indeed to

bring to the fore for emphasis is Paragraph 4(d) of the

affidavit in support of the application, at pages 56 to 57 of

the record of appeal. Therein the Appellant in his own

words expressly stated under oath as follows:

4. That I know as a fact thus:

(a) ……

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(b) ……

(c) ……

(d) That the said O. S. Kara, Esq. however neither

entered appearance for me nor filed a defence in the

suit because his brief was not perfected.

Viola! What a testament to cavalierness on the part of the

Appellant! It is irresistible for any Court to come to a

different conclusion than that the Appellant deliberately

failed to offer a defence to the suit filed against him by the

1st Respondent on time in the first instance. This view

became irrevocable when again the application to set aside

the default judgment obtained against him was filed ninety

days after the delivery of the judgment.

It has also been so arduously canvassed in favour of the

Appellant that the trial Court lacked the jurisdiction to

enter the default judgment

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against him. The definition of jurisdiction of a Court has

long been pronounced upon in a long line of cases by the

Supreme Court as well as this Court. To mention but a few,

see the cases of: (1) Madukolu v. Nkemdilim (1962) 2

SCNLR p.341; (2) Ndaeyo v. Ogunaya (1977)1 S.C.

P.11; (3) N. B. N. v. Shoyoye (1977)5 S.C. p.110; (4)

A.-G., Fed. V. Guardian Newspapers Ltd. (1999) 5 S.C.

(Pt.III) p.59; (5) Mobil Producing (Nig.) UnLtd. V.

LASEPA (2002) 18 NWLR (Pt.798) p.1 and (6)

Obasanjo v. Yusuf (2004) 9 NWLR (Pt.877) p.144.

Therefore, jurisdiction has been broadly defined as the

limits imposed on the power of a validly constituted Court

to hear and determine issues between persons seeking to

avail themselves of its process by reference to the subject

matter of the issues or to the persons between whom the

issues are founded or to the kind of relief sought.

As earlier on at the inception of this judgment set out by

me and as can be gleaned from the endorsement on the

Writ of Summons and Statement of Claim of 1st

Respondent, the claim against the Appellant is a liquidated

demand. By Order 27 Rule 1 of the Rules of the trial Court,

if a claim is for a

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debt or liquidated demand and the defendant does not,

within the time allowed by the rules or an order of the

Court or Judge in chambers for that purpose, file a defence,

the plaintiff may, at the expiration of such time, apply for

final judgment for the amount claimed, with costs. There is

no denying the fact that, when the substantive suit of the

1st Respondent came up for hearing on 15th April, 2013,

whether or not it was for pre-trial, the Appellant who had

earlier on indicated an intention to file his defence, there

was no sign that the purported defence was going to be

filed anytime soon. See page 45 of the record of appeal for

the proceedings of the trial Court on 10th April, 2013 when

the learned counsel for the Appellant applied for an

adjournment so the defence of the Appellant could be filed.

The application for adjournment was granted and next

hearing fixed to 15th April, 2013. On the latter date, the

Appellant’s purported defence had still not been filed

thereby truncating any pre-trial or trial on the merits at

that. Rather, the learned counsel for the Appellant merely

informed the Court that, the Appellant was “taking steps to

file

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processes to join issues with” the 1st Respondent and again

urged for yet another adjournment in the covert quest – see

pages 49 to 50 of the record of appeal. Frustrated by the

prank of the Appellant, the 1st Respondent’s counsel made

his application that judgment be entered in favour of the

1st Respondent for the amount claimed by him with costs

under the special procedure pursuant to Order 27 of the

Rules of the trial Court, the period of thirty days allowed by

Order 25 Rule 1(2) of the said Rules for the filing of the

Appellant’s defence having expired. In granting the

application of the 1st Respondent’s learned counsel, the

learned trial Judge at pages 50 to 51 of the record of appeal

held as follows:

I have listened to the application of the learned

counsel to the plaintiff that defendant was served

with the writ of summons, statement of claim and all

relevant processes in this matter since 15/10/2012

and defendant was only entitled to 30 days from

15/10/2012 to file his defence to the action if any, but

failed. I am satisfied that the defendant’s counsel Mr.

J. Bala Esq. on 10/04/2013 applied for adjournment to

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today to enable him file process to defend this matter.

However, what I find filed this morning in this file is

answers to questions in pre-trial information sheet

(from 24) vide Revenue receipt No. 003842375 of

14/04/2013 and no more. This clearly indicates to me

that the defendant has no defence in this matter and

or is not ready for pre-trial.

In the result, I do agree with Mr. F. O. Obanye Esq. of

counsel to the plaintiff, that the plaintiff is entitled to

judgment under Order 27 Rules (1) (2) (sic) of the

Rules of this Court. Accordingly, I do hereby enter

judgment for the plaintiff in the sum of Eight

Hundred and Eighty Five Thousand (N885,000) Naira

being balance of the contract sum the subject of this

action, and I also award as costs the sum of

N20,000.00 and no damages is awarded as the suit

does not proceed to trial to enable me assess the

correct damages to award if any.

It is clear that the above set out decision was well within

the power of the learned trial Judge pursuant to Order 27

Rule 1 of the Rules of the trial Court so to make, especially

in relation to the claim of the 1st Respondent against the

Appellant and costs. I am

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also of the clear and firm view as opined by the learned

trial Judge that the Appellant demonstrated that he had no

defence to the suit of the 1st Respondent against him. As I

have already brought to the fore above, I am not satisfied

that the affidavit in support of the application of the

Appellant to set aside the default judgment disclosed an

iota of serious and cogent reasons to either indulge him for

commencing the application so very late or allow him to put

in his defence at that juncture, looking at the entirety of the

conduct of the Appellant from the t ime the 1st

Respondent’s suit was instituted against and served on him,

until the time he eventually filed his application to set aside

the default judgment. This is much more so when the action

is predicated upon a liquidated demand. See the cases of

(1) Young v. Thomas (1892) 2 Ch. p. 134 at p.137 and

(2) Maja v. Samouris (2002) 7 NWLR (Pt.762) p.78.

On the first limb of this issue, I hold that the application of

the Appel lant is not deserving of sympathetic

consideration.

Consequent upon the foregoing conclusion, the

consideration of the second limb of the instant issue, that

is,

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the propriety of the attachment of the Appellant’s vehicle

by the 2nd and 3rd Respondents pursuant to the execution

of the default judgment, in the given circumstances would

have been ordinarily otiose. This is much more so that, it is

trite that generally, the Court of Appeal will not set aside

the issuance of a writ of attachment which has been levied

or executed except in circumstances where the issuance of

the writ or attachment amounts to an abuse of Court’s

process and was intended to overreach the adverse party.

See the cases of: (1) U. B. N. Ltd. V. Fajebe Foods and

Poultry Farms (1994) 5 NWLR (Pt.344) p.325. and (2)

Argos (Nig.) Ltd. V. Umar (2002) 8 NWLR (Pt.769) p.

284 at pgs. 292-293, paras. B-C. The learned trial Judge

having refused to set aside the default judgment, the

execution which had already been levied before the

commencement of the application of the Appellant

expectedly remains valid.

The Appellant has not disclosed any detail to show that the

writ of attachment was irregularly or unlawfully issued.

What is more, by Section 20 of the Sheriffs and Civil

Process Act, Cap. S6, Vol.14, Laws of the Federation of

Nigeria,

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2004, a judgment to pay money as in the instant matter is

recoverable by the issuance of a writ of “fi fa” immediately

the judgment is pronounced and as a matter of course

without leave or prior notice to the judgment debtor. For a

person directed by an order of Court to pay money is bound

to do so immediately the order is pronounced without any

demand for performance, especially if no time frame is

given. And a judgment debtor seeking to stay the execution

can only file an application to that effect to show that he is

challenging the judgment or asking for time to comply with

the terms of the judgment. The present Appellant has

clearly not employed that proper procedure in the pursuit

of his said grievance. See the cases of: (1) Olayinka v.

Elusanmi (1971)1 NMLR p.277; (2) Intercontractors

Nig. Ltd. V. U.A.C. Nig. Ltd. (1988) (Pt.1) Vol.9 NSCC

p.737 at p.752 and (3) Olatunji v. Owena Bank PLC

(2008) 8 NWLR (Pt.1090) p.668.

Consequent upon the foregoing clarifications, this issue in

its entirety is bound to be and hereby resolved against the

Appellant and in favour of the Respondents.

ISSUE TWO

Whether the learned trial Judge

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was not in breach of Appellant’s Right to Fair Hearing

when he proceeded to dismiss Appellant’s application

seeking to set aside the default Judgment delivered in

Suit No. TRSJ/81/2012 without considering any of the

issues of law he raised and argued therein?

APPELLANT’S COUNSEL’S SUBMISSIONS:

The learned counsel for the Appellant canvassed that upon

the delivery on 15th April, 2013 of the judgment in default

of pleading by the learned trial Judge in suit No.

TRSJ/81/2012, the Appellant proceeded to apply to the

same trial Court for the said default judgment to be set

aside and for him, that is, the Appellant to be allowed to

defend the suit on i ts merits v ide Motion No.

TRSJ/228M/2013 filed on the 9th of July, 2013. The 1st

Respondent in opposing the said application, filed a counter

affidavit of six paragraphs with several documents annexed

thereto as exhibits. The said application was duly heard on

1st August, 2013. However, immediately counsel for the

parties finished arguing the application, the learned trial

Judge there and then proceeded to write a bench ruling

wherein he dismissed the said application in its

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entirety without considering, determining and ruling on any

of the issues of law raised therein by the Appellant. The law

is trite that, Courts of law are under the strict legal duty to

consider all issues raised and submissions of counsel in a

case before deciding same one way or the other. On this

legal position, counsel relied on the cases of:- (1) Are V.

Saliu (2006) ALL FWLR (Pt. 327) p. 547 at p. 579; (2)

Magna Maritime V. Oteju (2005) 4 S.C.N.J p. 100 at p.

103 and (3) Vogt V. Akin-Taylor (2012) 10 NWLR (Pt.

1307) p. 76 at p. 78.

According to learned counsel, in view of the fact that the

learned trial Judge completely failed to consider and rule

on the issues raised and submissions of counsel in the

application before proceeding to dismiss same, the said

ruling of the learned trial Judge, is void and a nullity, as

same was reached in clear breach of the Appellant’s

fundamental right to fair hearing. For this submission, he

relied on the cases of:- (1) Amoo V. Alabi (2003) 12

NWLR (Pt. 835) p. 537 at pgs. 542 – 543; (2) Imegwu

V. Asibelua (2012) 4 NWLR (Pt. 1289) p. 119 at p. 123

and (3) Audu V. FRN (2013) 1 S.C.N.J p. 111 at p.

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114.

1ST RESPONDENT’S COUNSEL’S SUBMISSIONS:

The learned counsel for the 1st Respondent contended that

upon the delivery of the default judgment in favour of the

1st Respondent on 15th April, 2013, the Appellant

proceeded to apply for the said judgment to be set aside

vide Motion No. TRSJ/228M/2013 filed on 9th July, 2013.

By the provisions of Order 31 Rule 7 (2) of the Rules of the

trial Court, the said judgment being one in default of

pleading may be set aside upon an application accompanied

by an undertaking to participate effectively in the pre-trial

conference, made within seven days of the delivery of the

said judgment. However, the Appellant’s application in the

instant matter was not brought timeously subsequent to the

delivery of the judgment. That is, the Appellant was utterly

negligent in complying with the rules of the trial Court. The

effect of the non-compliance as enshrined in Order 3 Rule

1, of the Rules of the trial Court is that, the application of

the Appellant is in itself a nullity and with the grave

consequence of a dismissal as rightly ordered by the

learned trial Judge. The Appellant cannot therefore be

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heard to complain that he was not given fair hearing. It was

his fault that he failed to comply with the condition

precedent to the filing of his application. That is, he failed

to file his application to set aside the default judgment

within the statutory period of seven days of the delivery of

the same.

RESOLUTION

The law is well settled that the twin cardinal principles of

fair hearing are expressed in the two maxims of: (a) “audi

alteram partem” which interprets, the judge before

whose Court the complaint or grudge is taken, must hear

the two parties to the dispute and (b) “nemo judex in

causa sua” which interprets, there should be no evidence

of bias, so that no person should be a judge in his or her

own cause. In the case of: KOTOYE V. C.B.N. (1989) 1

NWLR (Pt.98) p.419, the Apex Court, at p.444, paras. E-

H, stated the basic criteria and attributes of fair hearing as

follows:

(i) That the Court shall hear both sides not only in the

case but also in all material issues in the case before

reaching a decision which may be prejudicial to any

party in the case. See SHELDON V. BROWN FIELD

JUSTICES (1964) 2 Q.B.573 AT

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P.578;

(ii) That the Court or Tribunal shall give equal

treatment, opportunity and consideration to all

concerned. See ADIGUN V. A.G. OYO STATE & ORS.

(1987)1 NWLR (PT.53) 678;

(iii) That the proceedings shall be held in public and

all concerned shall have access to and be informed of

such a place of public hearing; and

(iv) That having regard to all the circumstances, in

every material decision in the case, justice must not

only be done but must manifestly and undoubtedly be

seen to have been done; R. V. SUSSEX JUSTICES,

EXPARTE MC-CARTHY (1924)1 KB 256 AT 259;

DEDUWA & ORS. V. OKORODUDU (1976)10 SC 329.

I have read the ruling of the trial Court contained in pages

158 to 160 of the record of appeal. I have equally read all

the Appellant’s application papers, the appurtenances as

well as the response of the 1st Respondent thereto. The

prelude, first paragraph of the said ruling states as follows:

I have carefully considered the application on notice,

the affidavit in support and all attached and or

annexures to it and on a further consideration of the

written addresses filed along with the application by

the

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applicant and upon reading the counter-affidavit and

on reply on points of law.

Upon a calm consideration of all of these, I am of the

humble but firm view that the trial Court had all the issues

raised in the matter of the Appellant’s application in mind

before arriving at its opinion as contained in the ruling

under scrutiny. There is no law or guideline which forbids a

Court or Tribunal from writing and delivering a bench

decision. Although it is desirable to advert to all issues

raised before a Court individually, it may not always be

necessary or compulsory for a judge to give separate

opinion on every single issue raised before it especially on

recondite issues of law, in so far as it is glaring that before

arriving at its decision, the Court was well aware and took

cognizance of the arguments canvassed in relation to the

sundry issues raised in the matter. In the instant case, the

trial Court no doubt looked into all the materials presented

by both counsel before it went straight to the determination

of the crux of the application of the Appellant. The trial

Court did not infract any of the laid down attributes of fair

hearing in the

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conduct of the trial.

It is being sounded here the umpteenth time that the nub of

the principle of fair hearing is not intended to be employed

by a litigant as a magic wand to bamboozle the Courts in

order for him or her to shy away from the germane issues

in a case involving him or her. It is the established position

of the Supreme Court and this Court that, the core

principle of fair hearing is the giving of equal opportunity

to the parties to be heard on the issues in the litigation

before the Court. Therefore, where parties have been given

opportunity to present their respective case, they cannot be

indulged in the complaint of a breach of fair hearing

principles. See the cases of: (1) Magit v. University of

Agriculture, Makurdi (2005)19 NWLR (Pt.959) p.211;

(2) Magaji v. The Nigerian Army (2008) 8 NWLR

(Pt.1089) p.338 and (3) Okanlawon v. The State

(2015) LPELR -24838. What is more, the learned counsel

for the Appellant has not shown and I do not see, in what

way, the ruling of the trial Court has occasioned

miscarriage of justice to the Appellant, the only ground

upon which the ruling on his application can be set aside.

See the cases of: (1) Pan

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Atlantic Shipping & Transport Agencies Ltd. V. Rhein

Mass GMBH (1997) 9 NWLR (Pt.493) p.248; (2) Okiri

v. Ifeagha (2001) FWLR (Pt.73) p.140; (3) Ekpo v.

State (2003)17 NWLR (Pt.849) p.392; (4) Edeani

Nwavu v. Okoye (2008) 12 SCNJ p.460 and (5)

Nospetco Oil & Gas Ltd. V. Prince Matiluko

Emmanuel Olorunnimbe (2012)10 NWLR (Pt.1307)

p.115.

I therefore hold that there is no merit in this issue, it fails

and is resolved against the Appellant and in favour of the

Respondents.

Having resolved all the issues donated by the Appellant

against him, the appeal is unmeritorious and fated for

failure. It is for this reason that I accordingly dismiss the

appeal.

I assess the costs of this appeal at the sum of Fifty

Thousand Naira (N50,000.00) in favour of the 1st

Respondent and against the Appellant.

JAMES SHEHU ABIRIYI, J.C.A.: I had the privilege of

reading in advance in draft of the judgment delivered by

my learned brother Oyebisi Omoleye JCA.

The Appellant undoubtedly was trying to make the Court a

toy and the lower Court rightly refused to allow him do so.

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My

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learned brother has exhaustively dealt with issues for

determination.

For the reasons and conclusions adroitly stated in the lead

judgment, I too agree that the appeal should be dismissed.

I too dismiss the appeal.

I abide by the orders contained in the lead judgment

including the order as to costs.

SAIDU TANKO HUSAINI, J.C.A.: I agree.

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Appearances:

U. A. Ahmed holding the brief of J. A. Oguche ForAppellant(s)

M. J. Ifegwu holding the brief of I. C. Osuji for the1st Respondent.

2nd & 3rd Respondents and counsel absent. ForRespondent(s)

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