Principle Governing an Application for Extension of Time to Apply to Set Aside Judgement

0
Photo: Credit Solution

Peace Global Satellite Communication Ltd & Ors vs. Wema Bank & Ors (2020)

Suit No: CA/L/406/2016

Justices:

  • Justice Abimbola Osarugue Obaseki-Adejumo  
  • Justice Jamilu Yammama Tukur  
  • Justice Gabriel Omoniyi Kolawole 

RATIO

RIGHT TO CHANGE OF COUNSEL BY PARTIES TO A SUIT

First and foremost, the right to change of counsel by parties to a suit is well settled and provided for by law. See: Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 as amended. See also NWAMBE V STATE (1995 SC) LPELR-2100(SC) where the Supreme Court held as follows:-
“…Besides, there is nothing rigid about the assignment of counsel, the appellant herein was at liberty to disown, reject or protest against or indeed change the counsel assigned to him. This seems to be taken care of by Section 7(3) of the Legal Aid Act, Cap. 205, wherein it is stated inter alia that “(3) A legally assisted person shall have the right to change the legal practitioner assigned to him provided that – (a) he first gives notice in writing to the Director-General of his intention to do so and gives reasons.” Per SYLVESTER UMARU ONU, J.S.C (Pp. 18-19, paras. F-B). PER TUKUR, J.C.A.

DUTY OF THE COURT WHEN CALLED UPON TO MAKE AN ORDER FOR EXTENSION OF TIME WITHIN WHICH TO DO CERTAIN THINGS

It is trite that when a Court’s called upon to make an order for extension of time within which to do certain things (i.e. extension of the time prescribed by the Rules of Court for taking certain procedural steps), the Court ought always to bear in mind that Rules of Court must prima facie be obeyed and that it, therefore, follows that in order to justify the exercise of the Court’s discretion in extending the time within which a procedural step has to be taken, there must be some material upon which to base the exercise of that discretion, any exercise of the Court’s discretion where no material for such exercise has been placed before the Court would certainly not give a party in breach of the Rules of Court uninhibited right to extension of time and the provisions as to time within which to take procedural steps set out in the Rules of Court would, indeed, in such circumstances, have no legal content. See WILLIAMS & ORS v HOPE RISING VOLUNTARY FUNDS SOCIETY (1982) LPELR-3484(SC) supra. Per CHUKWUNWEIKE IDIGBE, J.S.C. (P. 9, paras. B-E). PER TUKUR, J.C.A.

WHETHER OR NOT WHERE DEFAULT JUDGEMENT OF A COURT IS SOUGHT TO BE SET ASIDE, APPLICATION MAY BE MADE PURSUANT TO THE RELEVANT RULES OF COURT

It is important to note that where a default judgment of a Court is sought to be set aside, application may be made pursuant to the relevant Rules of Court. See Order 25, Rule 7 the High Court of Lagos State (Civil Procedure) Rules, 2012 which provides thus –
“‘Any Judgment given under Rule 5 or Rule 6 (2) above maybe set aside upon an application made within seven (7) days of the judgment or such other period as the Judge or ADR Judge may allow.
The application shall be accompanied by an undertaking, to participate effectively in the Case Management Conference or ADR, as the case may be.”
The above provisions mean that a person who wishes to set aside the judgment of a Court may make an application within 7 days of the judgment or such other period as may be allowed by the judge or ADR. PER TUKUR, J.C.A.

THE PRINCIPLE GOVERNING AN APPLICATION FOR EXTENSION OF TIME TO APPLY TO SET ASIDE A JUDGEMENT

The principle governing an application for extension of time to apply to set aside a judgment, and to set aside a judgment have been established in plethora of cases. On the principles guiding the grant of an application for extension of time within which to apply to set aside a judgment, the Supreme Court in the case of WILLIAMS & ORS v. HOPE RISING VOLUNTARY FUNDS SOCIETY (1982) LPELR-3484(SC) held as follows –
“When a Court is called upon to make an order for extension of time within which to do certain, things (i.e. extension of the time prescribed by the Rules of Court for taking certain procedural steps), the Court ought always to bear in mind that Rules of Court must prima facie be obeyed and that it, therefore, follows that in order to justify the exercise of the Court’s discretion in extending the time within which a procedural step has to be taken there must be some material upon which to base the exercise of that discretion; any exercise of the Court’s discretion where no material for such exercise has been placed before the Court would certainly give a party in breach of the Rules of Court uninhibited right to extension of time and the provisions as to time within which to take procedural steps set out in the Rules of Court would, indeed, in such circumstances, have no legal content.” Per CHUKWUNWEIKE IDIGBE, J.S.C (P. 9, paras. B-E). PER TUKUR, J.C.A.

JAMILU YAMMAMA TUKUR, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Ruling of the High Court of Lagos State delivered on 19th February, 2016 in Suit No. ID/199/2009 Coram A.O. Williams (Mrs). J. wherein the lower Court dismissed the application filed by the Appellants as claimants seeking for an order setting aside the judgment delivered by the lower Court in Suit No: ID/199/2009 delivered on 24th March, 2015.

Dissatisfied with the decision the Appellants appealed to this Court by filing a Notice of Appeal dated 26th February, 2016 (See pages 1346-1350 of Vol. III of the Record of Appeal)

The Notice of Appeal contained six grounds of appeal and from them the Appellant in their brief of argument filed on 27th May, 2016 formulated the following issues for determination to wit –
1. “Whether by Order 25, Rules 1 & 2 of the High Court of Lagos State (Civil Procedure) Rules, 2012, the Appellants who had applied for the issuance of case management conference (CMC) forms and filed same are also expected to file the issues for determination with the forms and serve them on the Respondents before the date for the case management conference”

  1. “Whether the change of counsel from the law, firm of Messr Alenkhe & Alenkhe & Co. to Messr A. O. Giwa & Associates had occasioned any delay in the prosecution of the Appellants’ case to warrant the dismissal of this action.”
    3. “Whether the conduct of the Appellants throughout the proceedings had been a pattern of delay and total lack of diligence to warrant the dismissal of this action.”
    4. “Whether from the facts of this case the Appellants have not shown that their case is manifestly supportable to warrant setting aside of the ruling dismissing same.”
    5. “Whether the illness of the 3rd Appellant was the Appellants’ sole reason for inability to bring the application to set aside the ruling dismissing their case within time.”

Learned counsel for the 4th Respondent on behalf of the 4th Respondent in the 4th Respondent’s Brief filed on 1st November, 2018, distilled the following issues for determination viz:-
a. Whether the learned Judge of the Court below validly exercised its discretion by refusing to extend time within which the Appellant may seek leave to apply to set aside the order dismissing the Appellants’ case on 24th March, 2015 for failure of the Appellants to comply with the provisions of the Order 25 of the Rules of the Court below dealing with case management conference. (Distilled from Grounds 1, 2 and 3 of the Notice of Appeal dated 26th February, 2016)
b. Whether the reference by the Court below to the position of the 3rd Appellant in the 1st and 2nd Appellants companies in dismissing the application to set aside the earlier order of dismissal of the suit made on 24th March 2015 occasioned a miscarriage of justice against the Appellants. (Distilled from Grounds 4 and 5 of the Notice of Appeal dated 26th February, 2016)
c. Whether the invocation of the legal standard that the Appellants’ case is ‘manifestly supportable’ in consideration of the Appellants’ motion to set aside the earlier order of dismissal of the suit made on 24th March, 2015 occasioned a miscarriage of justice against, the Appellants. (Distilled from Grounds 6 of the Notice of Appeal dated 26th February, 2016).

ALSO READ   Taxation of Digital Economy in Nigeria: Gaps and Realities.

Learned counsel for the 5th Respondent in his Brief of Argument formulated alone issue for determination viz:-

Whether the learned trial Judge was right in dismissing the Claimants/Appellants’ motion dated 26th May, 2015 for extension of time within which the Appellants could apply to set aside the judgment given at the case management conference held in this suit on the 24th day of March, 2015, and to set aside the said judgment.

In the determination of the appeal, I will be guided by the issues distilled by the Appellants taking into consideration the issues distilled by the 4th and 5th Respondents.

SUBMISSION OF COUNSEL ON THE ISSUES
On the first and third issues, learned counsel for the Appellants submitted that the learned trial Judge was in error when she dismissed the suit of the Appellants on ground that the issues for determination were not filed by the Appellants. He placed reliance on UNITY BANK PLC V. KAY PLASTIC (NIG.) LTD (2011) 51 WRN 96 @ 130; MONTUBI V. SCC. LTD (1986) NWLR (part. 21) 158, 164 and PANACHE COMMUNICATION V AIKHOMU (1994) 2 NWLR (pt. 327) 420, 431. Counsel thus, further submitted that the provision of Order 25, Rule 2 (a) being unambiguous, precise and without any coloration does not demand the filing of issues for determination by the Appellants to warrant the dismissal of their case at a stage where the parties had not been given the opportunities to lead evidence in support of their claim.

In his argument, learned Counsel for the 4th Respondent submitted that the lower Court was simply concerned with the exercise of discretion in the consideration of the Appellants’ motion seeking an extension of time within which to apply to set aside the default judgment entered against the Appellants on 24th March, 2015 Ruling, a default judgment dismissing the Appellants’ case. It is his submission that in appropriate circumstances and with good cause shown, a Court will exercise its discretion in favour of a party where something has been left undone, in order to avoid miscarriage of justice. Counsel relied on IBODO V. ENAROFIA (1980) 5- 7 SC Pg. 42. He further submitted that the Court below in its discretion dismissed the Appellants’ case for not being substantially prepared for case management conference on the day when the suit was adjourned.

​On his part, Counsel for the 5th Respondent contended that the Appellants are not entitled to an order setting aside the judgment of the lower Court delivered on the 24th March, 2015. He referred to the lower Court’s statements on pages 541, 542, 522 paragraphs 5 & 7 and the lower Courts proceeding of 24th March, 2015 at pages 1291 to 1294 in Volume III of the Record and argued that the lower Court had found that the Claimants/Appellants had not given any good reason why they did not serve the CMC forms on the Respondents in time so that they could have responded timeously for the CMC to commence a the 24th March, 2018 and, that the Appellants were instead asking for more time. Counsel thus, submitted that having regard to the number of adjournments at the instance of the Appellants, their tardiness and conduct, and the warnings issued to them by the lower Court between May, 2010 and 10th December, 2014 to enable them file their CMC forms and serve the Respondents, their reason for not filing same was untenable as the Court had granted them a lot of time to do the needful. He relied on TENO ENGINEERING LTD V ALHAJI TALIRU YUSUF-ADISA (2O05) 10 NWLR pt. 933 @ p. 347 and N. A. WILLIAMS & ORS. V. HOPE RISING VOLUNTARY FUNDS SOCIETY (1982) NSCC 36. It is the submission of learned Counsel that, the lower Court was right in dismissing the said application to set aside the judgment.

RESOLUTION OF ISSUES ONE AND THREE
The crux of the case herein under these two issues revolve around the exercise of discretion by the lower Court in dismissing the Appellants’ suit. Now, the law is trite that the Court of appeal will not interfere with an exercise of discretion by a Court of trial unless it is satisfied that it was not exercised judicially and judiciously, See: MR. JOHN ONYEKWELU & ORS V THE CHIEF REGISTRAR KANO STATE HIGH COURT & ORS (2014) LPELR 23626 (CA).
Where however a discretion is exercised in vacuo or without reference to the totality of the relevant materials before the Court, then in such a case the Court of Appeal can justifiably interfere. See: BABATUNDE V. PAN ATLANTIC SHIPPING AND TRANSPORT AGENCY LTD. & ORS (2007) 4 SCNJ 140, ELIZABETH IHUOMA IZUBUIKE V THE CUSTOMARY COURT OBINGWA HOLDEN AT AGALABA & ORS (2016) LPELR 40460 (CA).
A cursory look at the record of proceedings of 24th March, 2015 showed that the Appellants had not fulfilled all the necessary preconditions for commencing the suit at the lower Court with respect to filing and serving the necessary issues for determination in the case management conference forms on the Respondents (See pages 1291 to 1294 of Volume III of the Record of appeal.)
Again, by Order 25, Rule 7 of the High Court of Lagos State (Civil Procedure) Rules, 2012, the Appellants had Seven (7) days within which to apply for the setting aside of the judgment of 24th March, 2015. I do not think that the Appellants’ Counsel’s lack of due diligence in binging the application for setting aside the said judgment until 26th May, 2015 a period of about two (2) months after judgment, is something the lower Court should have glossed over. See: N. A. WILLIAMS & ORS. V. HOPE RISING VOLUNTARY FUNDS SOCIETY (1982) NSCC 36 supra.

It has been held that the exercise of discretion is a matter exclusively for the Court to do after weighing all the circumstances of the case in the interest of justice and the balancing of the interest of the parties involved, including the balance of convenience and disadvantages, which might be suffered by any of the parties concerned. It is after, the Court shall have given consideration to such matters that it can arrive at what is undeniably a difficult decision which must appear reasonable in all circumstances of a particular case. A liberty or privilege to decide and act in accordance with what is fair and equitable under the peculiar circumstances of the particular case, guided by the spirit and principles of law, and exercise of such discretion is reviewable only for an abuse thereof- see American case of STATE V DRAPER, 83 UTAH 115, 27 P2D 39 Per UTHMAN MOHAMMED, J.S.C. (P. 13, paras C-F). See also ECHAKA CATTLE RANCH LTD V NIGERIAN AGRIC & COOP. BANK LTD (1998) LPELR-998(SC).
Adverting my mind to the facts and circumstances of the case I am of the firm view that the lower Court rightly exercised its discretion by refusing the application before it. The issues are resolved in favour of the Respondents.

SUBMISSION OF COUNSEL ON ISSUES 2 & 4.
Arguing the issues learned counsel for the Appellants submitted that the Appellants were entitled to change counsel especially in a special circumstance wherein the former counsel had died. Learned counsel cited NTUKIDEM V. OKO 1995 7 NWLR (PT 405) 91.

Learned counsel contended that there-was no other evidence of change of counsel by the Appellants throughout the proceedings of the suit up to the time if was dismissed.

Learned counsel further submitted that the dismissal of the Appellants’ suit at the stage of case management conference has made it impossible for the parties to bring their facts before the Court by way of evidence to establish whether the Appellants’ case is fully supportable or not. It is his submission that the case of the Appellants is manifestly supportable to warrant the setting aside of the Ruling dismissing the case and then giving the parties the needed opportunity to ventilate their case before the Court. On his part, learned Counsel for the 4th Respondent contended that the arguments proffered by the Appellants’ Counsel were as a result of misunderstanding of the conclusion reached by the learned Judge and the guiding principles that led to same. He further argued that “case is manifestly supportable” is one of the guiding principles for the consideration of the species of application that led to the instant appeal. He cited the case of WILLIAMS & ORS v HOPE RISING VOLUNTARY FUNDS SOCIETY (1982) LPELR-3484 (SC).

ALSO READ   Law and Leadership, (N.U.E.E and Ors V. BPE) Vis-À-Vis the Current Jurisprudential Status of NICN and It’s Effect on Our Developing Economy; An Appraisal

RESOLUTION
First and foremost, the right to change of counsel by parties to a suit is well settled and provided for by law. See: Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 as amended. See also NWAMBE V STATE (1995 SC) LPELR-2100(SC) where the Supreme Court held as follows:-
“…Besides, there is nothing rigid about the assignment of counsel, the appellant herein was at liberty to disown, reject or protest against or indeed change the counsel assigned to him. This seems to be taken care of by Section 7(3) of the Legal Aid Act, Cap. 205, wherein it is stated inter alia that “(3) A legally assisted person shall have the right to change the legal practitioner assigned to him provided that – (a) he first gives notice in writing to the Director-General of his intention to do so and gives reasons.”
Per SYLVESTER UMARU ONU, J.S.C (Pp. 18-19, paras. F-B).

​However, in the instant appeal, it is clear from the records that the Appellants suit was not dismissed on the ground of change of counsel as claimed by the Appellants I have taken adequate time and efforts to read through the records particularly Volume III of the Records, and I cannot find, any part thereof where the Appellants’ suit is said to have been dismissed on the ground of change of counsel. For the avoidance of doubt, the lower Court’s observation on the 10th December, 2014 is relevant and is herein reproduced:-
”This suit has been pending since 2009, and no real progress has been made. There has been a lack of diligence in the pursuit of this suit and I am not at all inclined to continue to oblige the Claimants… I shall now adjourn this matter for case management conference. If the forms are not filed by the date or the Claimants are in any wise unable to proceed, this suit shall be struck out on the day. This suit is adjourned to 3rd February, 2015 for the case management conference at 10a.m. on the day.” See paragraphs 7 to 9 on page 1290 of Volume III of the Records.

Again, on 24th March, 2015 the lower Court made the statements which are hereunder reproduced:-
“The claimants have been asking for more time by way of extension of time to take steps and adjournments of hearings since they filed this suit in 2009, about six years ago.”
“The Claimants not having served the case management conference forms they filed out of time and having not filed their issues for determination, I find and hold that they are not prepared to participate in the case management conference fixed for today. The time has come to apply the sanctions provided by the Rules of Court to end this six year fray of the Claimants that is not aimed at justice but seems designed to frustrate the Defendants.” See page 1341 in Volume III of the Records.

​I must say that it is a misconception, to say the least, that the Appellants’ suit was dismissed on the ground of change of counsel. Indeed, it is clear from the records of proceedings before this Court, that the Appellants, had in the conduct of their case manifested no diligence whatsoever which could have invalidated the exercise of the lower Court’s discretion in dismissing the suit. I therefore, fail to understand how the dismissal of the Appellants’ suit by the lower Court could be said to be on the ground of change of counsel. It is trite that when a Court’s called upon to make an order for extension of time within which to do certain things (i.e. extension of the time prescribed by the Rules of Court for taking certain procedural steps), the Court ought always to bear in mind that Rules of Court must prima facie be obeyed and that it, therefore, follows that in order to justify the exercise of the Court’s discretion in extending the time within which a procedural step has to be taken, there must be some material upon which to base the exercise of that discretion, any exercise of the Court’s discretion where no material for such exercise has been placed before the Court would certainly not give a party in breach of the Rules of Court uninhibited right to extension of time and the provisions as to time within which to take procedural steps set out in the Rules of Court would, indeed, in such circumstances, have no legal content. See WILLIAMS & ORS v HOPE RISING VOLUNTARY FUNDS SOCIETY (1982) LPELR-3484(SC) supra. Per CHUKWUNWEIKE IDIGBE, J.S.C. (P. 9, paras. B-E).

​By virtue of Order 25, Rule 7 of the High Court of Lagos State (Civil Procedure) Rules 2012 an application to have a judgment delivered under Rule 5 of Order 25 set aside should be made within seven (7) days of delivery of the judgment or such period as the Judge or ADR Judge may allow. The Appellants in this case did not bring their application for setting aside the said judgment until 26th May, 2015, a period of about two (2) months after the delivery of the judgment. See pages 1294 to 1300 of Volume III of the Record of Appeal. In the circumstances, I am of the considered view that the Appellants have failed to either substantiate that their suit was dismissed on ground of change of counsel, or prove that their, application to set aside the earlier order of dismissal of their suit made by the lower Court on 24th March, 2015 was manifestly unsupportable.
Issues 2 and 4 are also resolved in favour of the Respondents.

SUBMISSION OF COUNSEL ON ISSUE FIVE
Learned Counsel for the Appellants on issue 5 submitted that the lower Court misconceived the facts placed before it when it held in lines 7 and 8 at page 1342 Volume III of the records of appeal that: “the sole excuse for lateness in filing this application is that 3rd Claimant was ill and went for a surgical procedure some days after the suit was dismissed…” He further submitted that the Appellants’ further affidavit before the lower Court as contained in pages 1231 to 1233 Volume III of the records of appeal has clearly other reasons why the proper application to set aside the order of the lower Court made on 24/3/2015 dismissing the Appellants’ case was filed out of time.

It is his further submission that in paragraph 4 of page 1232 Volume III of the records, the Appellants brought to the attention of the lower Court that on the 24/3/2015 when the said suit was dismissed the Appellants’ former counsel filed a motion for stay of execution of the default judgment and on 30/3/2015 the same former counsel filed another application seeking the lower Court to relist/reinstate the suit into the cause Iist and that the two applications are contained on pages 1180 to 1184 and 1172 to 1179 Volume III of the records of appeal, respectively. Learned counsel equally submitted that the right application which the former counsel ought to have filed on behalf of the Appellants at the lower Court was an application to set aside the default judgment and upon realization of the blunder committed by the former counsel the Appellants through their present counsel immediately filed the right applications in accordance with Order 25, Rule 7 and Order 44, Rule 4 and paid the requisite penalty of N10,400.00 to the lower Court as evidenced at page 1185 Volume III of the records of appeal.

RESOLUTION OF THE ISSUE
It is important to note that where a default judgment of a Court is sought to be set aside, application may be made pursuant to the relevant Rules of Court. See Order 25, Rule 7 the High Court of Lagos State (Civil Procedure) Rules, 2012 which provides thus –
“‘Any Judgment given under Rule 5 or Rule 6 (2) above maybe set aside upon an application made within seven (7) days of the judgment or such other period as the Judge or ADR Judge may allow.
The application shall be accompanied by an undertaking, to participate effectively in the Case Management Conference or ADR, as the case may be.”
The above provisions mean that a person who wishes to set aside the judgment of a Court may make an application within 7 days of the judgment or such other period as may be allowed by the judge or ADR. From the records of this appeal, the default judgment of the lower Court ought to be set aside was delivered on 24th March, 2015. The Appellants’ application for re-listing or restating the suit was filed on 30th March, 2015. Another application by the Appellants for setting aside was filed on 26th May, 2015, a period of about two months later. Learned counsel contended that prior to the Appellants’ consultation with the present counsel herein, the Appellants had the obvious belief that the two pending applications were competent and proper and meant to set aside. The default judgment of the lower Court. He argued that due to inadvertence and or incompetence or negligence of the former counsel a wrong application was filed. He argued further that upon realization of the blunder committed by the former counsel the Appellants through their present counsel immediately filed the right applications. See paragraphs 8.3 to 8.10 of the Appellants’ Brief of argument.

ALSO READ   Whether a Judgment Delivered on a Weekend/Public Holiday is Valid

​The principle governing an application for extension of time to apply to set aside a judgment, and to set aside a judgment have been established in plethora of cases. On the principles guiding the grant of an application for extension of time within which to apply to set aside a judgment, the Supreme Court in the case of WILLIAMS & ORS v. HOPE RISING VOLUNTARY FUNDS SOCIETY (1982) LPELR-3484(SC) held as follows –
“When a Court is called upon to make an order for extension of time within which to do certain, things (i.e. extension of the time prescribed by the Rules of Court for taking certain procedural steps), the Court ought always to bear in mind that Rules of Court must prima facie be obeyed and that it, therefore, follows that in order to justify the exercise of the Court’s discretion in extending the time within which a procedural step has to be taken there must be some material upon which to base the exercise of that discretion; any exercise of the Court’s discretion where no material for such exercise has been placed before the Court would certainly give a party in breach of the Rules of Court uninhibited right to extension of time and the provisions as to time within which to take procedural steps set out in the Rules of Court would, indeed, in such circumstances, have no legal content.” Per CHUKWUNWEIKE IDIGBE, J.S.C (P. 9, paras. B-E).

On the principles considered by a Court in setting aside a judgment, the Supreme Court in WILLIAMS case supra held as follows:-
“When, however, the application before the Court is for it to set aside its own judgment given in the absence of one of the parties before it, in order to give the other party opportunity of being heard different considerations apply. These were fully set out by me in Idam Ugwu and Others vs Nwaji Aba and Others [1961] All NLR 438 [see also Adebayo Doherty v Ade Doherty [1964] NMLR 144 at 145]. Among other things, the Court must consider (1) the reasons for the applicants’ failure to appear at the hearing or trial of the case in which judgment was given in his absence, (2) whether there has been undue delay in making the application to set aside the judgment so as to prejudice the party in whose favour the judgment subsists, (3) whether the latter party (i.e. in whose favour the judgment subsists), would be prejudiced or embarrassed upon an order for rehearing of the suit being made, so as to render such a course inequitable, and (4) whether the applicants’ case is manifestly unsupportable; and I respectfully, agree with the views expressed by my learned brother, my lord, Bello S.P.J. (as he then was) in Momoh v. Gulf Insurance Corporation [1975] 1 NNLR 184 at 186 that in addition to the foregoing factors the Court being asked to exercise its discretion to set aside its own judgment must also be satisfied that the applicants conduct throughout the proceedings i.e. “from the service of the writ upon him to the date of judgment” has been such as to make his application worthy of a sympathetic consideration.”
Per CHUKWUNMWEIKE IDIGBE, J.S.C. (Pp. 10-11, para. B).

This issue raises once again, the question of the exercise of discretion by the lower Court which had been dealt with under issues one and three and nothing in the arguments of learned counsel under this issue has in any way sway me into taking a contrary position.

In summation I find the appeal as lacking in merit and same is hereby dismissed. The decision of the lower Court delivered on 19th February, 2016, in suit No. ID/199/2009 is affirmed.

​There shall be costs for prosecution the appeal which I assessed at N300,000 in favour of the 4th and 5th Respondents respectively against the Appellants.

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I had a preview of the judgment just delivered by my learned brother JAMILU YAMMAMA TUKUR, JCA and I have no hesitation in agreeing with the reasoning and conclusion arrived at by my learned brother, I will only add a few words for emphasis sake.

It settled law that there are certain principles considered by the Court in setting aside its own judgment. The Supreme Court in Supreme Court in S & D CONSTRUCTION CO. LTD v AYOKU & ANOR (2011) LPELR – 2965 (SC) thus;
“The principles to be considered by a Court in setting aside a judgment obtained in the absence of a party were stated by this Court in Williams v. Hope Rising voluntary Funds Society (supra) at page 42. These are: “1. The reasons for the applicant’s failure to appear at the trial in which judgment was given against ‘him. There must be good reasons enough to excuse his absence. 2. Whether there has been undue delay in the making the application to set aside the judgment so as to prejudice the party in whose favour the judgment subsists. 3. Whether the party in whose favour the judgment subsists would be prejudiced or embarrassed upon an order for rehearing of the suit being made, so as to render such a course inequitable. 4. Whether the appellant’s case is manifestly unsupportable. 5. Whether the applicant’s conduct throughout the proceedings i.e from service of the writ upon him to the date of judgment has been such as to make his application worthy of sympathetic consideration.” Per FABIYI, JSC (PP. 17- 18, paras G – E).
See also; ADEGBITE & ORS v ADVANCED ENGINEERING CONSULTANTS & ANOR (2017) LPELR – 41965 (CA); ANOZIE v IGP & ORS (2016) LPELR – 40427 (CA); NWADIOGBU v ONYEKWE & ORS (2015) LPELR – 40442 (CA).

The Appellants arguments do not hold water placed alongside the principles enumerated in the above case.

In light of the above and the sound reasoning in the lead judgment, I also hold that the appeal lacks merit and is hereby dismissed. The decision of the High Court of Lagos State delivered on 19th of February, 2016 coram A. O. WILLIAMS (MRS), J in suit No ID/199/2009 is hereby affirmed.
I also abide by all consequential orders.

GABRIEL OMONIYI KOLAWOLE, J.C.A.: I agree with the decision of my learned brother, JAMILU YAMMAMA TUKUR, JCA that the instant appeal is devoid of any merit, and I subscribe to the decision reached that it be dismissed.
I abide by the consequential orders made as to costs.

Appearances:

Jude Irabor For Appellant(s)

Donald Morebise – for 1st Respondent
Emmanuel Udom – for 3rd Respondent
Ellias Ajadi– for 4th Respondent
Gbolahan Sanyaolu – for 5th Respondent For Respondent

LEAVE A REPLY

Please enter your comment!
Please enter your name here