Afribank (Nigeria) Limited V. Caleb Owoseni (1994)
LawGlobal-Hub Lead Judgment Report
MOHAMMED, J.C.A.
This appeal as clearly manifested from the Notice of Appeal dated 17th October 1991 and filed on the same day by the appellant at the lower court is against two distinct decisions of Ilorin High Court of Kwara State presided by Ajannah J. delivered on 14th June, 1991 and 9th October 1991 respectively.
The respondent who was the plaintiff at the court below sued the appellant as defendant claiming the following reliefs:-
(1) “A declaration that the detention of the plaintiff’s original copy of his customary Right of Occupancy No. 1352 by the defendant which was given to the defendant by the plaintiff at the defendant’s request at Ilorin, since 1982 inspite of repeated demands made by the plaintiff to the defendant at its Branch office, Ilorin to release the said Customary Right of Occupancy to the plaintiff, is illegal.
(2) An order for the release of the said Customary Right of Occupancy No.1352 to the plaintiff by the defendant.
(3) Twenty five thousand naira (N25,000.00) as general damages against the defendant for the illegal detention and or conversion of the said Customary Right of Occupancy of the plaintiff bearing No. 1352.”
The writ of summons filed by the respondent was accompanied by a Statement of Claim both of which were duly served on the appellant. The appellant as defendant then filed a memorandum of appearance under protest before filing a motion seeking orders striking out the issuance and service of the writ of summons. The motion was fixed for hearing on 5/12/90 but on that date when the appellant’s counsel failed to turn up at the lower court to move the motion, the motion was struck out. Again on 5/12/90, a similar motion was filed by the appellant which motion was heard and dismissed by the lower court. Consequent upon the dismissal of the appellant’s motion, and the failure of the appellant to file its Statement of Defence, the respondent on 13/12/90 filed a motion before the lower court seeking for an order to enter judgment in default of defence. Before this motion could be heard, the appellant had on 13/3/91 filed a motion for extension of time to file its Statement of Defence and the two motions were fixed for hearing on 21/3/91. On that date, learned counsel for the appellant failed to turn up in court in time to move his motion until learned counsel for the respondent had almost concluded arguing his motion for judgment. All the same, the learned trial Judge heard the appellant’s motion for extension of time to file its Statement of Defence after the respondent’s motion for judgment had been withdrawn and struck out. The appellant was granted two days within which to file its Statement of Defence and to pay N350.00 costs to the respondent before the next adjourned date. The ruling of the lower court in this respect was delivered 21/3/91 but the Statement of Defence of the appellant was not filed until 26/3/91, one day outside the period allowed by the order of the lower court of 21/3/91. Apparently, after realizing that the appellant’s Statement of Defence was filed out of time, on the same day 26/3/91, the respondent filed another motion asking for judgment. This motion which did not come up for hearing at the lower court until 30/5/91 was served on the appellant on 14/5/91. When the motion for judgment came up for hearing on 30/5/91, the appellant which did not file even a counter affidavit to the respondent’s motion or another motion for extension of time to properly file its Statement of Defence, applied for adjournment which application was opposed by the respondent. In a considered ruling, on the same day 30/5/91, the learned trial Judge refused the application for adjournment and proceeded to hear the respondent’s application for judgment. In his ruling delivered on 14/6/91 the learned trial Judge entered judgment for the respondent and granted all the reliefs sought by the respondent although only N6,000.00 was granted out of the N25,000.00 general damages claimed with costs. The Notice of Appeal filed by the appellant on 17/10/1991 is partly appealing against this judgment.
However, the appellant on 18/6/91 had filed a motion on notice seeking an order setting aside the judgment of the lower court of 14/6/91. After hearing the motion, the learned trial Judge in a considered ruling delivered on 9/10/1991 dismissed the appellant’s application. It is at this stage that the appellant which was not satisfied with the judgment of 14/6/1991 and the ruling of 9/10/1991 appealed against both decisions of the lower court by filing a single Notice of Appeal at the lower court on 17/10/1991, barely eight days after the ruling of the lower court refusing to set aside its own judgment but more than 4 months after the judgment of the lower court delivered on 14/6/1991 which is the subject of this same appeal. The Notice of Appeal which contains 9 grounds of appeal complained against both the judgment of 14/6/1991 and the ruling of 9/10/1991. The 9 grounds of appeal with their particulars are:-
GROUNDS OF APPEAL
- “The learned trial Judge erred in law in giving judgment to the plaintiff when the totality of the proceedings is in violation of sections 6. 33 and 236 of the Constitution of the Federal Republic of Nigeria 1979.
PARTICULARS
(i) The judgment of the court was given against the appellant without adequate opportunity of hearing and defence on the merit.
(ii) The court had the Constitutional duty to allow all the parties in a suit full opportunity of hearing on the merit and a decision delivered on the merit.
(iii) The court on the alter of speed sacrificed the justice of the case in violation of the Constitution of the Federal Republic of Nigeria. 1979.
- The learned trial Judge erred in law by holding that the ‘Statement of Defence’ filed out of time extended by the Court was illegal, null and void and proceeded to give a default judgment when there was before the court a ‘Statement of Defence’ that disclosed a credible defence.
PARTICULARS
(i) There was oral application to further extend the time to file the Statement of Defence and the plaintiff by not asking that the Statement of Defence be set aside had waived his right to complain
(ii) The decision of the Supreme Court in U.B.A. Ltd v. Nwora (1978) 2 LRN 149 S.C. covered the situation and cured the defect if any.
(iii) Failure to file a Statement of Defence within an extended time was a mere irregularity that is curable in the circumstances and in the interest of justice.
(iv) The court’s decision is against rules of court and principle of Equity.
(v) The court took irrelevant matters like the conduct of counsel into consideration in arriving at its decision.
- The learned trial Judge erred in law by granting the declaratory relief claimed and awarding general damages of N6,000.00 without any evidence in support of the plaintiff’s Statement of Claim’.
PARTICULARS
(i) The declaration prayed for could not be granted without evidence and or trial as there can be no declaratory relief granted in default of pleading or on assumption of admission.
(ii) The court could only award general damages based on evidence and legally accepted standards in such matters
(iii) The award of general damages was without legal or equitable basis.
(iv) The general damages awarded was exemplary and punitive.
- The learned trial Judge erred in law by failing to exercise his discretion judicially and judiciously in setting aside the default judgment and place the case on the cause list to be disposed of on its merit when the appellant satisfied all the conditions judicially laid down for such relisting and the case heard on the merit.
PARTICULARS
(i) The court has undoubted discretion to set aside a judgment given in default of rules of court.
(ii) The interest of justice is in favour of the setting aside of any default judgment and hearing on the merit accorded priority.
(iii) The appellant satisfied all the condition for setting aside the default judgment.
- The learned trial Judge erred in law by giving judgment to the plaintiff merely on the ground that:-
“The defendant has failed to comply within a specific order of the court and this situation is not cured or saved by Order 2 Rule 1(1) of the Rules of this Court.”
PARTICULARS
(i) The provisions of Order 2 Rule 1(1) of the High Court (Civil Procedure) Rules 1989 covered the situation of the case and it is misdemeanour for which the respondent can be compensated in costs.
(ii) The court by the holding has directly found the defendant guilty of contempt of court without any hearing of adequate hearing (sic).
(iii) The holding in the circumstances of the case is unjust because the order of the court had been complied with even though out of time.
- The learned trial Judge erred in law when he held that the case of United African Co. Ltd v. Kretchi (1951) 13 WACA 219 at 220 per Verity C.J. was applicable to the facts of this case.
PARTICULARS
(i) The Kretchi ‘s case was decided on its own peculiar facts.
(ii) The Kretchi’ case is not on all fours with the facts of this case.
(iii) Hon. Justice Verity’s dictum quoted above was misapplied by the court.
- The learned trial Judge erred in law by holding that there was no defence on the merit to the action when the defence offered in the ‘Statement of Defence’ is not frivolous and or totally unprovable.
PARTICULARS
(i) The substratum of the claim before the court was the alleged loss of the original Customary Right of Occupancy of the plaintiff.
(ii) The defendant denied ever taking the alleged original Customary Right of Occupancy from the plaintiff and the defence is sufficient to proceed to trial.
(iii) The holding of lack of good defence was premature and totally misconceived having regards to the pleadings before the court.
- The learned trial Judge erred in law when he held that the defendants have not been serious about the defence of the action.
PARTICULARS
(i) The defendant filed a memorandum of appearance within time.
(ii) The defendant filed an interlocutory application to set aside the writ of summons and other processes.
(iii) The defendant filed a Statement of Defence on 13th March, 1991 even though it was alleged to be out of time more so when the case has not suffered undue delay.
- The learned trial Judge erred in law in the award of very exorbitant, punitive and exemplary costs in favour of the plaintiff in all the interlocutory matters argued before the court.
PARTICULARS
(i) Costs are meant to follow event.
(ii) Costs are not to be punitive nor satisfy private notions of the economy.
(iii) The plaintiff did not prove any loss to justify the amount awarded.
From these grounds of appeal, the appellant in its brief had distilled 3 issues for the determination of this appeal which were set out thus:-
(1) “Whether the decision of the court giving judgment to the plaintiff on the facts was not a decision in violation of section 33 of the 1979 Constitution and the decision of the Supreme Court as decided in the case of UBA. Ltd v. Nwora (1978) 2 LRN 149 Grounds 1, 2, and 5.
(2) Whether the trial court properly exercised (sic) his judicial powers and discretion in granting the claims of the plaintiff particularly damages awarded merely on default of pleadings without any evidence in proof. Grounds 3, 6 and 9.
(3) Whether the learned trial Judge properly exercised his legal powers and judicial discretion when he refused to set aside the judgment given in default of court order/rules of court. Grounds 4, 7 and 8.”
The respondent on the other hand in his brief of argument had identified 6 issues for determination which are set out below:-
(1) “Whether or not from the antecedents of the suit i.e. from the date of service of the writ of summons and the Statement of Claim of the respondent on the appellant/respondent, the trial court did give appellant a fair hearing to defend the suit before it.
(2) Whether or not the learned trial Judge was right in giving judgment in favour of the respondent having regard to the degree of indulgence of the trial court to the appellant and its counsel in filing a defence to the suit before the trial court.
(3) Whether or not there was any valid Statement of Defence before the learned trial Judge on 30/5/91 having regard to the two specific orders of the learned trial Judge to the appellant on 23/3/91.
(4) Whether or not the award of N6.000.00 as general damages was equitable and valid in law having regard to the Statement of Claim before the trial court which relates to detinue as well as the uncontroverted supporting affidavit in support of the motion for judgment filed by the respondent on 7/5/91.
(5) Whether or not there was any defence on the merit in the purported Statement of Defence having regard to the Statement of Claim of the respondent and the uncontroverted supporting affidavit to the motion of the respondent for judgment filed on 7/5/91.
(6) Whether or not the award of N354.00k against the appellant by the learned trial Judge on 23/3/91 as well as the sum of N384.00k (i.e filing fees) also awarded against the appellant on 14/6/91 were justified and not punitive having regard to the circumstances under which they were so awarded by the learned trial Judge.”
Before proceeding to consider the issues for determination in this appeal it is necessary in my view to examine the grounds of appeal challenging the two distinct decisions of the lower court of 14/6/1991 and 9/10/1991 respectively in order to find out if the grounds are competent having regard to the fact that the Notice of Appeal challenging both decisions was filed on 17/10/1991. s. 25 of the Court of Appeal Act Cap 75 of the Laws of the Federation, 1990 which prescribes periods within which a Notice of Appeal is to be filed by an aggrieved party wishing to appeal against the decision of the High Court to the Court of Appeal states:-
“(1) Where a person desires to appeal to the Court of Appeal he shall give notice of appeal or notice of his application for leave to appeal in such manner as may be directed by rules of court within the period prescribed by the provision of subsection (2) of this section that is applicable to the case;
(2) The periods for the giving of notice of appeal on notice of application for leave to appeal are:-
(a) In an appeal in a civil matter, fourteen days where the appeal is against an interlocutory decision and three months where the appeal is against a final decision;
(b) In an appeal in a criminal cause or matter, ninety days from the date of the decision appealed against.”
It is a well settled principle of law that the exercise of appellate jurisdiction is entirely statutory.
An appellate court derives its jurisdiction from the statute creating it and other enabling statutory powers. The Court of Appeal in this respect derives its jurisdiction from the Court of Appeal Act Cap 75 of the Laws of the Federation 1990 and the 1979 Constitution. Odofin v. Agu (1992) 3 NWLR (Pt.229) 350 at 365. Further more, the notice of appeal against the judgment complained of is the real and constitutional signal of dissatisfaction against the judgment. See Tukur v. Government of Gongola State (1988) 1 NWLR (Pt.68) P.39 S.C. The expression “shall give notice of appeal or notice of his application for leave to appeal” in S.25(1) of the Court of Appeal Act earlier on quoted in this judgment makes the provisions of that section mandatory and that the court must give effect to the words.
It is quite clear that the periods within which to appeal to the Court of Appeal are those set out in S. 25(2) of the Court of Appeal Act 1976 and except where the court has enlarge the time within which to appeal pursuant to its powers under Or. 3 R4(1) of the Court of Appeal Rules 1981 upon an application properly brought before it seeking to enlarge the periods to appeal in a civil case or matter, the period prescribed in S.25(2)(a) of the Court of Appeal Act, namely 14 days in appeal against interlocutory decision and 3 months where the appeal is against a final decision must apply. See Odojin v. Agu (supra).
Now in the instant case, the notice of appeal filed on 17/10/1991 against the ruling of the lower court of 9/10/1991 whether that ruling was a final or interlocutory decision is quite in order and within time having been filed only 8 days after the delivery of the ruling provided all the grounds of appeal are grounds of law and in this case they are. Therefore, as far as the appeal against that ruling of 9/10/1991 is concerned all the 3 grounds of appeal 4, 7 and 8 contained in the notice of appeal and the issue No. 3 arising from these grounds of appeal as identified in the appellant’s brief of arguments are quite competent. However, the position is not the same regarding the remaining grounds 1, 2, 3, 5, 6, and 9 of the grounds of appeal challenging this substantive judgment of the lower court delivered on 14/6/1991. This is because the 6 grounds of appeal contained in the notice of appeal challenging the decision of the lower court in this respect was not filed until 17/10/1991, more than 4 months after the decision of the lower court appealed against. This is quite contrary to the provision of S. 25 (1) & (2) of the Court of Appeal Act 1976 which requires the filing of such appeal being against a final decision of the lower court within 3 months. Therefore all the grounds of appeal 1, 2, 3, 5, 6 and 9 contained in the notice of appeal filed on 17/10/1991 which relate to the appeal against the judgment of the lower court delivered on 14/6/1991 are incompetent for having been filed out of the 3 months mandatory period prescribed by S.25(2)(a) of the Court of Appeal Act 1976.
It is trite that this court is empowered under Or. 3 R.2 (4) and (7) of the Court of Appeal Rules to strike out any ground of appeal or indeed Notice of Appeal for that matter if such ground of appeal or Notice of Appeal is not permitted by the Rules of Court or is incompetent. See Nsirim v. Nsirim (1990) 3 NWLR (Pt.138) P.258 & Innih v. Ferado Agro and Consortium Ltd. (1990) 5 NWLR (Pt.152) P. 604. Therefore in the case at hand since grounds 1, 2, 3, 5, 6 & 9 contained in the appellant’s Notice of Appeal are clearly incompetent, the grounds must be struck out.
Although ground 9 of the grounds of appeal is an appeal against the award of costs and that the costs of N50.00 was awarded against the appellant on 9/10/1991 by the lower court after delivering its ruling on that date, the fact that the ground is appealing against the award of costs in favour of the respondent in all interlocutory matters argued before the lower court had rendered that ground not only too general in nature but also vague. Hence by virtue of Or.3 R 2(4) of the Court of Appeal Rules 1981 which prohibits the filing of such ground of appeal, ground 9 of the grounds of appeal is liable to be struck out. Accordingly, for the foregoing reasons, grounds 1, 2, 3, 5, 6, & 9 of the appellant’s grounds of appeal contained in the Notice of Appeal filed on 17/10/1991 are hereby struck out. Consequently issues 1 and 2 and all arguments in support of the issues contained in the appellant’s brief of argument which are based on the grounds of appeal now struck out, are to be totally ignored in the determination of this appeal. Attorney-General of Kwara State v. Olawale (1993) 1 NWLR (Pt. 272) 645; (1993) 1 SCNJ P.208. In other words, following the striking out of all the grounds of appeal against the judgment of the lower court delivered on 14/6/1991 which is one of the two decisions appealed against in the joint Notice of Appeal filed by the appellant on 17/10/1991, there is no longer a valid appeal against that judgment. Consequently the appellant’s appeal against that judgment of 14/6/1991 is also struck out for being incompetent in the absence of any valid ground of appeal to sustain it.
I think at this stage, it is necessary to comment on the action of the appellant in filing a single notice of appeal against two separate and distinct decisions of the lower court delivered on different dates Or. 3 R.2(1) of the Court of Appeal Rules 1981 which requires a party wishing to appeal from the decision of the lower court to this court to file a notice of appeal reads:-
“All appeals shall be by way of re-hearing and shall be brought by notice (hereinafter called ‘the notice of appeal) to be filed in the registry of the Court below which shall set forth the grounds of appeal, stating whether the whole or part only of the decision of the court below is complained of (in the latter case specifying such part) and shall state also the exact nature of the relief sought and the names and addresses of all parties directly affected by the appeal which shall be accompanied by a sufficient number of copies for service on all such parties; and it shall also have endorsed on it an address for service.”
It is quite clear from the provision of this Rule that provided all its requirements regarding the decisions being appealed against such as the grounds of appeal, the decisions being appealed against whether whole or part thereof, and the exact nature of the reliefs sought on the decisions complained of are clearly specified in the notice of appeal, the Rule does not prohibit the filing of a single notice of appeal in a civil appeal against 2 or more decisions of the lower court delivered on different dates. However, extreme care, must be exercised by the party or counsel filing such joint notice of appeal that all the grounds of appeal challenging the various decisions being appealed against are filed within the prescribed period allowed under S. 25(2)(a) of the Court of Appeal Act Cap. 75 of the Laws of the Federation 1990 having regard to the various dates of the decisions complained of in the notice of appeal. In the instant case, such care was not taken in the notice of appeal filed thereby resulting in rendering the appeal against the decision of the lower court of 14/6/1991 filed 17/10/1991 incompetent for having been filed outside the period prescribed by S. 25 (2)(a) of the Court of Appeal Act.
The result of this pruning exercise on the 9 grounds of appeal filed by the appellant in this appeal is that the appeal shall now be determined on the only 3 remaining competent grounds in the appellant’s notice of appeal. The remaining valid grounds of appeal are grounds 4, 7, and 8 which are in support of issue No. 3 in the appellant’s brief of argument which is the only issue in my view, remaining for determination in this appeal. The issue is whether the learned Judge properly exercised his powers and judicial discretion when he refused to set aside the judgment given in default of Statement of Defence in favour of the respondent. This of course means that only the appeal against the ruling of the lower court of 9/10/1991 contained in the notice of appeal is incompetent.
In support of the issue for determination, learned counsel for the appellant had argued that the appellant’s application to set aside the judgment of the lower court had complied with all the requirements of Or. 27 R.10 of the High Court (Civil Procedure) Rules under which the application was made. In particular learned counsel pointed out that the allegation of the plaintiff and the reliefs sought were hostile in nature and as such required evidence. That the applicant’s Statement of Defence which specifically denied the allegation in the Statement of Claim cannot be regarded as evasive. Counsel cited the case of Nneji v. Chukwu (1988) 3 NWLR (Pt.81) P.184: and Ntukidem v. Oko (1986) NWLR (Pt.45) P.909 at 912 and submitted that the very strict technical consideration of the defence of the appellant occasioned a miscarriage of justice and that Or. 27 R. 10 of the High Court (Civil Procedure) Rules under which the judgment of the lower court was given gave the learned trial Judge unfettered power to set aside the judgment. Learned counsel therefore urged the court to allow the appeal and send the case back for trial on the merit as the learned trial Judge did not exercise his discretion judicially and judiciously in failing or refusing to set aside the judgment.
All the 6 issues raised in the respondent’s brief of argument only issue No.5 that slightly touched on the issue for determination of the appeal against the refusal of the lower court to set aside its judgment. The only argument advanced by the respondent in this respect is that even the appellant’s proposed Statement of Defence exhibited to the motion to set aside the judgment of the lower court has not disclosed any defence to the respondent’s specific allegation in the Statement of Claim.
I think it is significant to observe that the judgment of the lower court of 14/6/1991 which the trial court refused to set aside on the application of the appellant in its ruling of 9/10/1991 which is the subject of this appeal is not a judgment in default of appearance. This is because the appellant was ably represented by counsel on 30/5/1991 when the respondent’s motion for judgment was heard by the trial court. It was quite clear to the appellant’s counsel right from the date the respondent’s application for judgment was argued that the appellant’s Statement of Defence was filed out of time. The ruling on that application which culminated in the judgment for the respondent was not delivered until 14/6/1991. All the same, learned counsel for the appellant did not see it fit to file another application for extension of time to regularize the appellant’s Statement of Defence before the ruling/judgment was delivered. The judgment of 14/6/1991, the application to set aside which was refused by the lower court is therefore only a judgment in default of defence within the provisions of Or. 27 RR. 4 & 5 of Kwara State High Court (Civil Procedure) Rules. The application of the appellant to set aside the judgment was therefore brought under Or.27 R.10 of the High Court Rules which reads:-
“10 The court may, on such terms as it think just, set aside or vary any judgment entered in pursuance of this Order.”
It is clear from this rule that the power to set aside the judgment of the lower court is entirely at the discretion of that court having regard to the circumstances of each case and there is no time limit within which the application may be brought. There are however guidelines laid down by this court and the Supreme Court for exercise of this power which are contained in a number of decisions including Williams v. Hope Rising (1982) 1-2 S.C. 145 at 153-155; and Sanusi v. Ayoola (1992) 9 NWLR (Pt. 265) 275; (1992) 11/12 SCNJ 142 at 156 – 159 where Karibi-Whyte J.S.C. said:-
“I think an application under Order 32 rule 4 (supra) will be competent and the learned trial Judge before whom an application to set aside a judgment can rely on the following consideration as constituting sufficient materials for the exercise of his discretion.
(1) Where applicant has shown good reasons for being absent at the hearing.
(2) Application was brought within the prescribed period of six days.
(3) In an application for extension of time to bring the application, applicant has given good reasons for his inability to bring the application to set aside the judgment within the 6 days prescribed under the rule.
(4) He has shown that there is an arguable defence to the action which is not manifestly unsupportable.
(5) His conduct 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 see Auleby v. Praeterius (1888) 20 QBD 764.
(7) Where judgment was given for an amount in excess of what was due and claimed. See Hughes v. Justin (1894) 1 QB 667.
(8) The defendant will not suffer any prejudice or embarrassment if the judgment is not set aside.” (Italics supplied).
Although in fact these decisions related to application to set aside judgment obtained in the absence of the defendant under Or 32 r. 4 of the High Court (Civil Procedure) Rules of Lagos State which is in pari materia with Or. 37 R. 9 of the Kwara State High Court (Civil Procedure) Rules, I am of the firm view that this same principles with necessary modification also apply where the judgment to be set aside was obtained for failure to file Statement of Defence under Or. 27 R.10 of the same High Court Civil procedure Rules of Kwara State. In other words, for an applicant wishing to set aside judgment obtained pursuant to Or. 27 RR.4 & 5 having regard to the power of court to set aside that judgment under Rule 10 of the same Order 27, the applicant has to satisfy the following requirements:-
(1) That the applicant has shown good reasons for his failure to file his statement of defence within the time allowed.
(2) That the applicant has shown that there is an arguable defence to the action which is not manifestly unsupportable;
(3) That his conduct throughout the trial is not such as is condemnable, but is deserving sympathy:
(4) That the judgment is tainted with fraud or is irregularly obtained;
(5) That the judgment was given for an amount in excess of what is due and claimed:
(6) That the respondent will not suffer any prejudice or embarrassment if the judgment is set aside.
In the present appeal, there is no doubt at all that the learned trial Judge did consider 3 of the above requirements namely requirements 2, 3 and 6 in coming to his decision refusing to set aside the judgment. While the learned trial Judge agreed in his ruling of 9/10/1991 the subject of this appeal that the respondent may not be prejudiced by setting aside the judgment of the lower court, he was however of the view that the Statement of Defence exhibited with the affidavit in support of the application had not disclosed a defence on the merit, nor had the attitude of the appellant throughout the proceedings at the lower court warranted the exercise of the discretion of the court in his favour. For these reasons, the learned trial Judge refused to set aside his judgment. This refusal is no doubt an exercise of discretion on the part of the lower court. The question is whether that discretion was exercised judicially and judiciously having regard to the power conferred on the court by Or. 27 R.10 of the High Court (Civil Procedure) Rules and the materials before the court.
The position of the law in this respect is of course trite. An appellate court may interfere with the exercise of judicial discretion if it is shown that there had been a wrongful exercise of the discretion such as where the court below acted under a misconception of law or under a misapprehension of fact. University of Lagos v. Aigoro (1985) 1 NWL.R (Pt.1) p. 143. There may also be justification for such interference where in the exercise of such judicial discretion a trial Judge takes into consideration irrelevant issues. National Bank of Nigeria Ltd. v. N.E.T. (1986) 3 NWLR (Pt.31) p. 667.
It is difficult on the facts of the present case as disclosed in the record of proceedings to conceive of how most of the conditions for the setting aside of judgment outlined earlier in this judgment can be resolved in favour of the appellant. In particular the appellant had not disclosed any valid reason for the failure to file Statement of Defence in compliance with the order of the lower court giving the appellant an extension of time within which to file the Statement of Defence. Further more, the observance by the lower court that the Statement of Defence exhibited in the affidavit of the appellant in support of the application to set aside the judgment of the lower court does not disclose a defence on the merit to the respondent’s claim is quite valid. In other words, the Statement of Defence has not disclosed any arguable defence which is not manifestly unsupportable to the action by the respondent at the lower court. The conduct of the appellant throughout the proceedings and in particular in insisting that the Statement of Defence which was clearly filed out of time was valid and failed to apply for further extension of time to regularise it before the judgment was delivered, shows that the conduct of the appellant can hardly be said to deserve the sympathy of the lower court. Thus the appellant having failed to satisfy the requirements necessary to enable the lower court exercise its discretion in favour of the appellant/applicant, by refusing to set aside the judgment of 14/6/1991, the lower court cannot be said to have failed to exercise its discretion judicially and judiciously. In this respect, there is therefore no justification for this court to interfere with the decision of the lower court the subject of this appeal.
The appellant’s appeal against the ruling of the lower court of 9/10/1991 fails and is accordingly dismissed.
The appellant shall pay one thousand naira (N1,000.00) as costs to the respondent.
Other Citations: (1994)LCN/0202(CA)
