Noga Hotels International S.A. V. Nicon Hilton Hotels Limited & Ors. (2006)
LawGlobal-Hub Lead Judgment Report
MARY U. PETER-ODILI, J.C.A
This is an appeal from the Ruling of the Federal High Court Abuja Coram: Hon. Justice O.J. Okeke refusing to grant an enlargement of time within which the appellant may apply to set aside the default judgment of dismissal and an order setting aside the said dismissal. There is still pending in the said Federal High Court a Counter-claim still to be heard and determined.
FACTS BRIEFLY STATED
The Appellant commenced the action by way of Originating Summons later converted to Statement of Claim and claimed against the defendants including the 2nd Respondent jointly severally as follows:-
(a) A declaration that the purported take-over or deconsolidation of the assets notably the NICON/NOGA HILTON HOTELS of the 1st Defendant by the Defendants is illegal, null and void and of no effect or consequence whatsoever.
(b) An order of perpetual injunction restraining the Defendants, their servants, agents and/or privies including anyone acting for each or any or all of them from taking over, deconsolidating or interfering with the assets and/or property of the 1st Defendant or with the 1st Defendant itself in any manner.
The 1st Respondent NICON Hilton Hotels limited is a joint venture incorporated in 1983 between the 2nd Respondent, Nicon Insurance Corporation and the Appellant, a Swiss Company and in which the share capital of N25 million is held at 75% by the Appellant and each party has fully paid for its shares and share certificates have been duly issued.
That since the incorporation of the 1st Respondent/Company and its commencement of business in 1986 almost 20 years ago, the joint enterprise NICON HILTON HOTELS LIMITED has not paid any dividend to the 1st Respondent even though it declares that it makes profit from year to year.
The Appellant claimed that 2nd Respondent deprived the appellant of any dividend payment, sometime between 1994 – 1995.
The 2nd Respondent claimed that it had the instruction of the Presidency in Nigeria to deconsolidate the assets of NICON Hilton Hotels Limited. The 2nd Respondent is an enterprise owned totally by the Federal Government and the appellant is a foreign company.
It was therefore the deconsolidation of the assets on the instruction of the Federal Government that led to the present suit.
By separate Motions dated 7th November 1994 and 8th November 1994 respectively, the 1st and 2nd Respondents challenged the jurisdiction of the trial court to entertain the action and urged the Court to dismiss the same. On the 21st February 1995, the two motions were dismissed and the 1st and 2nd Respondents appealed and applied to this court for slay of further proceedings in the matter.
The Defendants did not move the motion for stay of proceedings and on the 15th July 1996 it was withdrawn and on the 27th September 1999 when the suit was dismissed the 2nd Respondents did nothing to prosecute the appeal.
Going back into the history, on the 15th July 1996 and at the instance of the Defendants the trial court converted the proceedings in this case to a suit originated by writs of summons by ordering pleadings to be filed. Plaintiff filed a Statement of Claim whilst the 1st Defendant filed a Statement of Defence and counter claim and the 2nd Defendant also filed a statement of Defence.
At the instance of the Defendant, this case was transferred from the Lagos Division to the Abuja Division of the Federal High Court on the 30th September 1998. The suit came up for the first time in the Abuja Division on the 17th day of June 1999 and Mr. Olakunle Alimi Esq, appeared as counsel on behalf of the appellant and the matter was adjourned for hearing on 11th of August, 1999 which date happened to fall within the annual vacation of the trial court, the Appellant’s counsel therefore wrote a letter to the court asking that the matter be adjourned to a dale after vacation.
The matter came up on the 27th September, 1999 and by mistake of Mr. A. O. Alomi he came on the 28th, the following day only to realise that the matter came up on the 27th September, 1999 and that plaintiff’s suit had been struck out. Upon this information, Mr. Alimi on the said 28th September 1999 prepared a motion to relist and filed that same day. Later he realised that the matter was actually dismissed.
On the 16th of December, the Appellant was not represented because Professor S. A. Adesanya who was to appear had taken ill and was on admission in hospital and forwarded a medical certificate which was unchallenged and when Professor S. A. Adesanya recovered he forgot that the suit was to come up on the 16th December 1999 and was not aware that it was adjourned to 13th January, 2000 and subsequently to 1st February 2000.
When Professor realised that the matter had already come up and had been struck out he filed a motion dated 2nd May 2000 seeking to have the suit relisted.
Pleadings had been completed in this suit as at the date the suit was struck out and it was actually fixed for trial on that date.
It is noted that 1st Defendant filed a Notice of Discontinuance in respect of his Counter-Claim which appellant said was not served on them up till date. On the 27th September. 1999 when the case was dismissed as well as on the 1st February, 2000 when the motion to ralist was struck out, trial court awarded costs of N9.000.00 against the Appellant herein in favour of each of the six respondents which costs Appellants has paid up.
After a hearing of the motion the trial court refused the application and dismissed it. It is that dismissal that is the subject of this appeal.
The Appellant in Appellant’s Brief filed on 31/5/05 formulated a single issue which is:-
Whether the learned trial Judge exercised his discretion properly in refusing the application for an enlargement of time within which to apply to set aside the default judgment and for an order setting aside the default judgment.
The 1st Respondent did not file any process by way of a Respondent’s Brief or anything else.
The 2nd Respondent in their Brief of Argument raised a single issue also which is:
Whether having regard to all the circumstances of this case, the learned trial judge exercised its discretion judicially and judiciously in dismissing the Appellant’s application dated 17th September, 2000?
The 3rd Respondent adopted the same issue presented by the Appellant and 2nd Respondent
The 4th Respondent is also utilizing the issue as raised by the Appellant.
ISSUE FOR DETERMINATION ARGUED:
Professor S. A. Adesanya SAN in arguing his appeal referred the Court to the fact that the counter-claim of 1st Respondent is still to be heard and determined in the court below. He said that in arguing the sole issue the following unchallenged facts must be set out as follows:-
(1) The Appellant is a foreign company based in Switzerland
(2) The proceedings were initially instituted in Lagos and were transferred to Abuja on the 30th September, 1998 at the request of the respondents and the matter was not fixed for hearing by the Abuja Federal High Court until almost 1 year on the 17th June, 1999.
(3) The deconsolidation of the assets allegedly done by the 2nd respondents was done at the instance of the Nigeria Presidency which is not a party to the joint venture, Nicon Hotels Limited between the appellant and the 2nd Respondent and the former had no privity of contract with the Presidency.
(4) The application to relist was heard in part by two Judges viz: Auta J and Okeke J as a result of which the Appellant paid N54,000.00 cost.
(5) The fact of the award and payment of N54,000 as cost against the appellant was brought to the attention of Okeke J. when hearing the application both in the affidavit of the appellant address and its address, yet the Court ignored this fact.
(6) The fact that there was still pending before the court a counter-claim by the 1st Respondent which has been fixed for a hearing by the court brought to the attention of the court both in the affidavit and written address yet the trial court ignored or failed to address this issue which shows that the dismissal could not and would not end the entire suit.
(7) Although the matter originated in 1994 it was as a matter of fact transferred to Abuja Division at the instance of the Respondents only on the 30th September, 1998 and not fixed for a hearing by the trial court until almost 9 months on the 17th June, 1999 and the appellant was represented on that day.
(8) The trial court on its own adjourned the case to 11th August, 1999 which fell within annual vacation of the court and the matter was further adjourned to 27th September, 1999.
(9) Counsel for the Appellant, Mr. Alimi stated unchallenged and uncontradicted that he made a mistake of fact when he concluded that the matter was fixed for 28th September, 1999 a difference of 24 hours and was in fact in Abuja.
(10) Counsel for the Appellant upon asking to see the records of proceedings which was then not available but was informed by the Court Registrar that the matter was struck out, did file within 24 hours of the Order of the court a motion to relist and served all the parties with the Motion which was fixed for 16th December, 1999.
(11) In effect within 24 hours of the Order of the Court the Appellant set on a motion for the resuscitation of the hearing.
The learned SAN went on to say that the principles governing the grant or refusal of an application to set aside a default judgment has been restated in Davies v. Guildpine Ltd (2004) 5 NWLR (pt 865) 131 and these are the reasons for the applicant’s failure to appear at the hearing or trial of the case in which judgment was given in his absence and in this instance the ill health of the counsel and also the mistake as to date of hearing.
Also whether there has been undue delay in making the application to set aside as to prejudice the party in whose favour the judgment subsists.
Learned counsel referred to the circumstance of the striking out and the motions to relist. That although the decision dismissing the application for enlargement of time to apply to set aside the default judgment and for an order setting it aside was made on the 27th May, 2002 the delay was due to period of adjournments by the court and the change of judge resulting from transfer of Auta J. and his replacement by Okeke J. That although the last application to set aside the default judgment was filed on the 17th September, 2000 it could not be decided by the court until the 27th May, 2002 (almost 1 year and 9 months) during which counsel for the appellant who is based in Lagos was never absent.
The other condition being whether the party in whose favour the judgment subsists would be prejudiced or embarrassed upon order for rehearing the suit being made, so as to render such cause inequitable.
Learned counsel said in this regard that none of the respondents would be prejudiced or embarrassed because (i) there is still a counter to be tried (ii) cost of N9,00 has been paid to each of the Respondents (iii) the 2nd Respondent cannot rely on the fact that deconsolidation had been done since the dismissed suit was occasioned by the deconsolidation. Thus, using the deconsolidation as a bar, would amount to non-hearing of the complaint which inspired the proceedings.
The fourth condition being whether the applicant’s case is manifestly unsupportable. Prof. Adesanya contended that the applicant has a supportable case hence it was able to obtain an order of injunction in the Federal High Court, Lagos at the beginning of the case. Also that pleadings had been concluded and all that remained was the trial. That the Appellant’s case is further strengthened by the undisputed fact that it owns 25% of the equity of the 1st Respondent and which equity has been fully paid. That the dispute is whether the 2nd Respondent, the majority shareholder of the 1st Respondent can consolidate assets on the instruction of the Presidency. That to further reinforce that the appellant’s case is supportable the 1st and 2nd Respondent filed a Notice of Appeal against the Ruling which confirmed that the Federal High Court had jurisdiction and applied for a stay of proceedings pending appeal but eventually withdrew the application for stay and have never pursued their respective appeal.
Learned counsel for the Appellant said the last condition is whether the conduct of the appellant throughout the proceedings, has been such that makes his application worthy of a sympathetic consideration? In this respect learned counsel for the Appellant said that the appellant is foreign based in Geneva, Switzerland and has relied on its counsel for the conduct of the case. That if there is any lapse on the part of counsel this should not be visited on the party.
He cited Oteju v. Magma Maritime Services Ltd (2000) 1 NWLR (pt 640) 331; Olumesan v. Ogundepo (1996) 2 NWLR (pt 433) 628; Akinruboya v. Akinsola (1998) 3 NWLR (pt 540) 101; Prof Adesanya stated that the party i.e the client based in Switzerland did not have the control or influence on the lateness of counsel by 24 hours i.e on the 28th instead of 27th and it also did not have any influence on the illness of senior counsel which resulted in his hospitalisation as shown by medical report.
The learned SAN said the dismissal was not healthy and the appeal should be allowed.
In reply, Mrs Soyebo for the 2nd Respondent said their Brief was filed on 13/9/05 stated that the learned trial Judge in his ruling of 27th May 2002 held that no good cause had been shown from the Applicant’s Affidavit in Support of the application dated 17th September 2000 for the delay in bringing the application, that the Applicant did not meet the depositions of the 1st Respondent that third party rights had accrued, and the 1st Respondent had since changed its position. That Appellant’s complaint is that the decision of the trial court to refuse its application was not a proper exercise of judicial discretion having regard to the circumstances of the case as placed before the court. That the decision of the trial court dismissing the Appellant’s application was a judicial and judicious exercise of discretion. Learned counsel for the 2nd Respondent said the facts relied upon by the Appellant fell far short of the expectation of the law. That the position of the law is that the court in such a situation is to consider:-
- Reasons for Applicant’s failure to appear at the trial.
- Whether there had been undue delay in making the application to set aside the decision.
- Whether the Respondents will be embarrassed or prejudiced upon an order for rehearing.
- Whether the Appellant’s cases is manifestly unsupportable and
- The Applicant’s conduct throughout the proceedings. He referred to Williams v. Hope Rising (1982) 1 – 2 SC 145 at 160; Nigeria Hotels Limited v. Nzekwe (1990) 5 NWLR (pt 149) 187 at 198.
Mrs Soyebo of counsel submitted that the affidavit evidence must reveal all necessary facts, particulars and ingredients that would enable the court be persuaded to the issue in controversy, and failure to do this would amount to lack of proof. She cited Edet v. Chief of Air Staff (1994) 2 NWLR (pt 324) 41 at 63. That a brief perusal of the affidavit in support of the motion on Notice dated 17th September 2000 showed that it was bereft of the requisite facts or depositions required to persuade the court to exercise its discretion in its favour. That the said affidavit revealed no reasons for the Applicant’s failure to appear on the hearing date of 27th September 1999 which was fixed with the consent of its counsel who was also absent, or any diligence in the prosecution of its case. That the counter affidavit of the 1st Respondent dated 5th July 2000 (pages 242-248 of the Record) verified by the 2nd Respondent’s counter-affidavit dated 26th January 2001 (see pages 346-347 of the Record) and which counter affidavits remain uncontradicted and unchallenged showed amongst other things that the Appellant had never appeared in court from the inception of the suit. That nothing showed that Appellant had any interest in the case and the law is that any litigant who fails to diligently ascertain the position of its case or check on counsel to ascertain if requisite steps had been taken is just as guilty as its counsel. She referred to Ogbur v. Urum (1981) NSCC 81 at 86, 99; John v. Blackk (No 2) (1988) 4 NWLR (pt 90) 539; John v. Blackk (1988) 1 NWLR (pt 72) 648.
Learned counsel for the 2nd Respondent said it is trite that this court would only in exceptional circumstances interfere with a trial court’s exercise of its discretion and these circumstances are where the court is shown to have exercised its discretion wrongfully or where the court has acted in a misconception of fact/law or under a misapprehension of fact or that it either gave weight to irrelevant or unproved matters or it omitted to take into account matters that are relevant. She cited Unilag v. Aigoro (1985) 1 NWLR (pt 1143; Shell Petroleum Dev. Co. Nigeria Limited v. Tiebo (1996) NWLR (pt 445) 651 at 691.
Learned counsel said the situation in this instance is different from the cases above cited. That this Appeal should be dismissed.
The 3rd Respondent being absent at the hearing and so their Brief of Argument filed on 16/10/06 was taken as argued by the court.
In that Brief, Mr. Omoluabi of counsel stated that the Appellant had displayed such an unenviable lack of commitment or diligence to prosecute the matter, that the court held in its ruling on the Appellant’s application for extension of time within which to apply to set aside the default judgment of 27th September 1999 and the default judgment itself on 27th May 2002 that no good cause had been advanced for the long delay in the prosecution of the application. That even in the ruling of Honourable Justice I.N. Auta dismissing the case of the Appellant on the 27th September 1999 that all the Defendant were in court except the Plaintiff and that showed that he was not interested in prosecuting the case.
Learned counsel for the 3rd Respondent said equity aids the vigilant and he who is not vigilant cannot benefit from the exercise of the equitable discretion. That the factors prescribed for the granting of the application such as this are to be found in Davies v. Guilpine Ltd (2004) 5 NWLR (pt 865) 131 Williams v. Hope Rising Voluntary funds Society (1982) 1 – 2 SC 145; Odutola v. Kayode (1994) 2 NWLR (pt 324); Odusote v. Odusote (1971) 1 All NLR (pt 1 219,
Learned counsel for the 3rd Respondent submitted that an appellate court will not reverse a discretionary order of a trial court merely because it would have exercised the discretion differently.
However the Appellate court may interfere if it is shown that the discretion was:
(a) exercised on wrong principles;
(b) exercised after failing to give weight to matters which it should have had in mind.
(c) exercised after reaching a conclusion that involves injustice.
He cited the case of ICAN v. A.G Federation (2004) 3 NWLR (pt 859) 186. He further stated that the learned trial Judge rightly refused to exercise his discretion to enlarge the time for the Appellant on the sound legal principle that a person seeking the exercise of a discretion must place before the court, sufficient materials to warrant such an exercise of discretion. That the Appellant failed woefully to provide good and sufficient reasons for its apparent tardiness in the prosecution of its own case and the court really had no choice but to do the more equitable thing in the circumstances which was to refuse the application. That the Appellant has not shown any compelling reason why this court should interfere with the exercise of the discretionary powers of the lower court and so this appeal should be dismissed.
In reply the 4th Respondent through counsel Mr. Gazali referred to 4th Respondent’s Brief which was filed on 20/6/06 and was deemed filed on 14/9/06. He said that a party that had activated the jurisdiction of a court for a relief or redress of a wrong must abide and be ready to abide and comply with the rules of procedure of the court, Order 38 Rule of the Federal High court (Civil Procedure) Rule 1999. That it is trite and settled by our procedural law, that the rules of court must be obeyed, as they are designed as the vehicle on which the wheel of justice moves, as rightly held in Ojiako v. Attorney-General Anambra State (2000) 1 NWLR (pt. 641) 378; Seven-up Bottling Company Limited v. Abiola & Sons (Nig.) Ltd. (1995) 3 NWLR (pt. 383) 257; Nigeria Hotels Limited v. Nzekiwe (1990) 5 NWLR (pt.149) 187 at 198; Alao v. ACB Ltd. (2000) 8 WRN 96 at 99, All States Trust Bank v. Nsofor (2004) All FWLR (pt.201) 1719: Sanusi v. Ayoola (1992) 9 NWLR (pt. 265) 275 at 296.
On whether the Respondents will be embarrassed or prejudiced upon an order for hearing. Learned counsel for the 4th Respondent submitted that further and in pursuance of the default judgment of 27th September 1999, the defendant’s position had changed. The 1st Respondent had expended a huge sum of money to reflect their new status, a third party ie NICON RISK MANAGEMENT SURVEY COMPANY LIMITED, who was not a party before the court had acquired interests in the 1st Respondent and had dealt with other parties in respect of the equities and shares in the 1st Respondent. It is grossly impossible to revert to the status quo. See Ejide v. Ogunyemi (1990) 9 NWLR (pt. 1412) 758 at 764, Doherty v. Doherty (1964) All NLR 292,
On whether the Applicant’s case is manifestly unsupportable.
Learned counsel for the 4th Respondent said the gravamen of the submission is to contend that the Applicant’s case is worthless of any sympathetic consideration in that the Applicant was never ready to prove its case before the lower court, with its failure to file his statement of claim two years after the case was commenced, the inordinate delay caused the Respondent so much and eventually with the default judgment the status of the Respondents had changed. That the applicant failed to put all material facts before the court in that no reason was given for the absence of the applicant in court and more so, failure to join the NICON Risk Management Company limited in the matter is, a nondisclosure so fatal to the Applicant’s case. He referred to Dangote v. Civil Service Commission Plateau State (2000) 19 WRN 125 at 136. Moronkeji v. Osun State Polytechnic (1998) 11 NWLR (pt. 572) 145; Akpoku v. Illombu (1998) 8 NWLR (pt. 561) 583.
Learned counsel in the question whether the court must consider the conduct of the Applicant said it is on record that aside from the fact that no reason was mentioned for the applicant’s absence in court and the undue delay in the prosecution of the case. That the Applicants were not also represented in court while the application to relist and/or set aside the default judgment were pending in court. He cited Williams v. Hope Rising Building Society (supra).
Nothing was filed on behalf of the 5th and 6th Respondent.
In reply on points of law learned counsel for the appellant said their position in the Lower court is that the Notice of Discontinuance is invalid since pleadings had been exchanged and therefore there was no discontinuance in law.
It is necessary to point out a few of the relevant paragraphs in the supporting affidavit at the Lower court in the motion for an order of that court to relist this matter which was struck out on the 27th September, 1999. In an 8 paragraph affidavit Ademola Kazeem, litigation clerk in the Chambers of Appellant’s counsel averred inter alia:-
- That I am informed by Mr. Olakunle Alimi, one of the Junior Counsels assisting Professor S. A. Adesanya SAN in the prosecution of this case and I verily believe him as follows that:
(a) When this matter came up sometime in June, 1999, he was in court on behalf of the Plaintiff whereupon the matter was adjourned to the 11th of August, 1999.
(b) 11th of August, 1999 happened to fall within the Annual vacation of this Honourable Court and the Chambers forwarded a letter to this Honourable Court asking that this matter be adjourned.
(c) Though the matter was adjourned to the 27th of September 1999 but through his own inadvertence, he thought the matter was adjourned to 27th of September 1999.
(d) It was only when he reached the court on the 27th September, 1999 that he was informed by the Registrar that the matter had come up the day before and had been struck out by this Honourable Court.
(e) The absence of the Plaintiffs counsel in court on the 27th of September, 1999 was not deliberate and the plaintiff is still very much desirous of prosecuting this case to its logical conclusion.
(f) Immediately, he proceeded to file a Motion on Notice dated 27th September, 1999 for an order relisting their case in the courts, which motion was fixed for hearing on the 16th December, 1999.
(g) His principal and leading counsel to the plaintiff, Professor S. A. Adesanya SAN who was billed to attend court on the motion to relist, fell ill and was unable to travel down to Abuja. Now produced, shown to me and marked Exhibit AK1 is a copy of the medical certificate to that effect.
(h) Due to the time constraint Professor Adesanya SAN was unable to make an alternative arrangement for any of his juniors to come down to Abuja from Lagos, hence the Motion to relist this suit was struck out by this Honourable Court.
In a counter affidavit, Abiodun Olatunji, legal practitioner in the office of counsel to the 2nd Respondent averred inter alia:-
- I know as a fact and from the antecedents of the Applicant in this case since its inception that the applicant is not interested in this case.
- The Respondents will definitely be prejudiced if this matter is relisted as the Plaintiff merely wishes to keep the case alive to constitute a continuing nuisance therein.
In a Further Counter-Affidavit deposed to by Lawrence Anaruwe, litigation officer of the Defendant/1st Respondent’s counsel he averred among other things:-
- That the said Miss Hilda informed me and I verily believed her about the following developments:
(a) That since the case of the plaintiff was dismissed the 1st Defendant’s position had changed drastically and that it will be near impossible to revert to its situation prior to the aforementioned dismissal.
(b) That because the case was dismissed due to lack of diligent prosecution the management of the 1st Defendant honestly believed that the plaintiff was tired of the case and had abandoned the same.
(c) That since the case was struck out the 1st Defendant had changed its logo at a cost of fifteen million naira (N15,000,000.00).
(d) That consequent upon the change of the 1st Defendant’s logo all the signs formerly bearing the logo of NICON NOGA HILTON have been changed to bear the new logo of NICON HILTON HOTEL.
The deponent then gave details of the properties of the 1st Respondent now bearing the new logo and said the 1st
Defendant/Respondent would be prejudiced if this case is relisted. All the necessary exhibits were exhibited appropriately.
Those are in substance the necessary details before us in this appeal. By Order 39 Rule 5 of the Federal High Court (Civil Procedure) Rules, 1976, any judgment obtained against any party may on sufficient cause show be set aside by the court upon such terms as the court may deem fit. By this rule, a party aggrieved with any judgment obtained against him in his absence can move the trial court on an application to have the judgment set aside on good and sufficient cause shown. See Oteju v. Magma Maritime Services Ltd. (2000) 1 NWLR (pt. 640) 270 at 344.
In considering an application struck out in the absence of the applicant, the following points must be considered; viz:
(a) the reason for the applicant’s failure to appear when the case was heard;
(b) whether there has been undue delay in making the application to relist so as to prejudice the respondent.
(c) whether the respondent would be prejudiced or embarrassed upon an order for re-hearing being made so as to render It inequitable to permit the case to be re-opened. See Ex parte Ejide (1990) 3 NWLR (pt. 140) 758 at 763.
Intervention of third party rights would ordinarily constitute embarrassment to the respondent in considering an application to relist a case already struck out and the onus is on the respondent to show any such intervention. See Ex parte Ejide supra al 764; Davis v. Guildpine Ltd. (2004) 5 NWLR (pt. 865) 131.
- Where a default judgment has been given against a defendant, the defendant has the option of either moving the trial court under the Rules of the court to set aside the default judgment or lodging an appeal against it under Section 220 or 221 of the 1979 Constitution. See Davis v. Guildpine Ltd. (2004) 5 NWLR (pt 865) 131.
By its very nature an application for extension of time within which to apply for an order setting aside a judgment is a threshold matter that the applicant must clear before he can pray to have the judgment set aside. In other words, if an applicant’s application for extension of time within which to apply for an order setting aside a judgment fails, there would be no need for the court to consider his application to have the judgment set aside. See Williams v. Hope Rising Voluntary Funds Society (19782) 1- 2 SC 145 at 157.
- Different considerations apply when a court is dealing with an application for extension of time within which to apply for an order setting aside a default judgment and when it is dealing with an application for an order setting aside the judgment.
In the first case, the court is not concerned with whether or not the applicant has a good defence to the suit. The court only concerns itself with whether or not the applicant has satisfactorily explained his reason for not bringing his application within time. PP.155-156 paras G-A.
When a court is called upon to make an order for an extension of time within which to do certain things that is extension of 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 in order to justify the exercise of the court’s discretion in extending time within which a procedural steps has to be taken, there must be some material upon which to base the exercise of that discretion, and the 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 extension of time and the provisions as to time within which to take procedural steps set out in the rules of court would in such circumstances have no legal content. Non-compliance with rules of court do not prima facie invalidate proceedings unless reasons for such non-compliance are not advanced to the court: and, in addition if the party in breach fails to place before the court sufficient material upon which to exercise its discretion to waive or overlook the omission, prima facie if no excuse is offered, no indulgence would be granted.
See Davies v. Guildpine (2004) 5 NWLR (pt 865) 131 at 156; Williams v. Hope Rising Voluntary Funds Society (1982) 1 – 2 SC 145.
An appellate court will interfere with a lower court’s exercise of its discretionary power if it is shown that in the exercise of such power the lower court had acted under a mistake of law, be it substantive or procedural or a misapprehension of the facts before it or in reaching the conclusion the lower court took into consideration irrelevant matters or its decision will work injustice to any or both parties to the matter before it. See Ojiako v. A-G Anambra State (2000) 1 NWLR (pt 641) 375 at 382: Solanke v. Ajibola (1969) 1 NMCR 253 N.A.A v. Okoro (1995) 6 NWLR (pt 403) 510; Nwankpu v. Ewulu (1995) 7 NWLR (pt 407) 269; Awani v. Erejuwa (1976) 11 SC 307.
The Court of Appeal has statutory powers and duty to look at the reasons for and the manner in which a trial court exercised its discretion. See Ojiako v. A-G. Anambra State (supra) 383.
Where a matter involves the exercise of judicial discretion, only the court exercising the discretion can limit itself. Such court is not bound to exercise its discretion in a particular way in accordance with an existing judicial decision. In other words, each exercise of judicial discretion by a court must depend on the facts and peculiar circumstances of each case as previous exercise of judicial discretion has no binding effect. See ICAN v. A-G Federation (2004) 3 NWLR (pt 859) 186 at 211-212 Odusote v. Odusote (1971) 1 All NLR (pt 1) 219; Udeze v. Ononuju (2001) 3 NWLR (pt 700) 216; Oyekanmi v. NEPA (2000) 15 NWLR (pt 690) 414.
An appellate court will not reverse a discretionary order of a trial court merely because it would have exercised the discretion differently. However, an appellate court has a bounden duty to interfere with the exercise of such discretion where it is shown that the trial court erred by exercising its discretion on wrong principles or that it failed to give weight to matters which it should have had in mind or that its conclusion is one that involved injustice. See ICAN v. Attorney general Federation (2004) 3 NWLR (pt859) 186; University of Lagos v. Aigoro (1985) 1 NWLR (pt 1) 143; Elendu v. Ekwoaba (1998) 12 NWLR (pt 578) 320; Omadibe v. Adajeroh (1976) 12 SC 87; Odutola v. kayode (1994) 2 NWLR (pt 324) 1.
Where in the exceptional cases counsel is established to be guilty of negligence, a situation deserving of the most favourable consideration arises if and only if the litigant has not himself been guilty of negligence. See John v. Blakk (1988) 1 NWLR (pt 72) 648; Odutola v. Kayode (1994) 2 NWLR (pt 324) 1.
The fault, error, sins or mistake or misconduct of a counsel should not be visited on the litigant or party. Thus, where an “intemperate” remark is directed to counsel at the beginning or middle or, at the end of the judgment it would have no effect on the litigant. See Olatunji v. Alaba (1998) 8 NWLR (pt 563) 569 at 585; Ibodo v. Enarofia (1980) 5 – 7 SC 42; Omoniyi v. Central School Board Akure (1988) 4 NWLR (pt 89) 448.
Where the only reason for failure to comply with the Rules of court is the carelessness, negligence and inadvertence of counsel, the discretion of the court will be more readily exercised in favour of an application for extension of time. See Ojora v, Odunsi 91964) NMLR 12; John v. Blakk (1988) 1 NWLR (pt 72) 648; Oteju v. magma Maritime Services Ltd (2000) 1NWLR (pt 640) 270 at 345.
Rules of court are in place with a purpose to serve. The purpose they set out to achieve can only be served if the court ensures their being complied with. Therefore, rules of court must not be treated with levity and must never be sacrificed for the purpose of convenience and if it becomes necessary to compromise them, this is done to forstall injustice. See Ojiako v. Attorney General Anambra State (pt 641) 375 at 383; 7 up – bottling Company Limited v. Abiola & Sons (Nig.) Ltd (1995) 3 NWLR (pt 383) 257; Adehi v. Atega (1995) 5 NWLR (pt 398) 656; Asuquo v. Etim (1995) 7 NWLR (pt405) 104.
Therefore as in the instant case where the Appellant had several opportunities to prosecute their matter but failed to utilise that facility will not be heard to say that he has been deprived of the right to fair hearing guaranteed by Section 33(1) of the Constitution of the Federal Republic of Nigeria 1999. See Moronkeji v. Osun State Polytechnic (1998) 11 NWLR (pt 572) 145.
It is as true as it is well settled that a court of law has an inherent jurisdiction to set aside its own judgment where the conditions for doing so have been met by a party seeking such setting aside. One of such situations is where the judgment sought to be set aside was obtained by failure to comply with procedural rules. See Sanusi v. Ayoala (1992) 9 NWLR (pt 264) 275 at 292.
Having considered the judicial authorities alongside the facts as evinced by the affidavit evidence it is then for me to answer whether the Justice of the situation calls for the granting of the relief sought here. I think not, in fact I believe it is not proper to grant in favour of the Appellant whose attitude in the prosecution of their matter has not been salutary. Assuming Learned SAN made the mistake of the date for hearing, then their motion which Appellant through counsel filed, they failed to appear to move without excuse to the court. All these happening in 1999 and in the Chambers of a Senior Advocate where other counsels are not to talk of the party whose interest is represented, at least making an effort to know what has transpired in the suit they were involved in. This certainly in my view is not one of such instances that could be simply classified as a mistake of counsel which should not be visited on a litigant. More over a lot of water has passed under the bridge in relation to the restructuring of the 1st Respondent; including the third party interest which has intervened and cannot be ignored. Therefore grave injustice would be occasioned the Respondents if this prayer of the Appellant is granted. See John v Blakk (1988) 1 NWLR (pt 72) 648.
I am not persuaded by the learned counsel for the Appellant that the dismissal was not healthy and if the appeal is not allowed the international community which is affected would view the Nigeria Judicial system in a light not too favourable or the fact that the counter claim is pending. The same foreign party ought to have been alive to their responsibilities to ensure that they were heard and their case put across. The untidiness and inconvenience which would ensue in granting the application would cause more injustice and the balance weighs heavily in not granting the appeal. The appeal fails for lacking in merit and it is hereby dismissed.
Costs of N10,000 to each of the Respondents to be paid by the Appellant.
Other Citations: (2006)LCN/2144(CA)
