The Nigerian Navy & Anor V. Mrs. Joy Bassey (2016)
LawGlobal-Hub Lead Judgment Report
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.
This is an appeal against the Ruling of the Federal High Court, Lagos Division and delivered by J.T. TSOHO J on the 17th day of October 2013 wherein the Appellant?s motion on notice for an order for extension of time to apply to set aside the judgment of the said Court delivered on the 12th March 2012 in default of appearance was dismissed.
The Respondent herein had as Plaintiff in the Federal High Court, (now referred to as lower Court) instituted an action via a writ of summons and statement of claim, dated 15-3-2011 against the Appellants herein as Defendants. The reliefs sought by the Respondent as per paragraph 31 of the statement of claim are as follows:-
(1) An Order that the Plaintiff is entitled to damages for the negligence, grievous bodily harm, loss of life and permanent loss of reproductive organs and loss of family life.
(2) The sum of N100, 000, 000.00 (One Hundred Million Naira) only being aggravated damages for gross professional negligence, grievous bodily damage and loss, loss of life of a child and permanent loss of
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reproductive organ and ability to bear a child.
(3) Interest thereon at such rate and for such period as the Court shall think just.
(4) Cost of the action.
Records showed that the two Appellants were duly served with the originating processes but none of them entered appearance throughout the proceedings which commenced in the lower Court on the 11-11-2011. They did not also file any process in defence of the suit.
Consequently, the Respondent filed a motion on notice on the 7-2-2012 praying the Court for the following orders:-
(1) An Order for judgment in default of appearance and pleadings in favour of the Plaintiff/Applicant as per the claims endorsed on the writ of summons and statement of claim.
(2) And for such further or other orders as the Honourable Court may deem fit to make in the circumstance.
The grounds for the application are that:-
(1) The Defendants were served with the writ of summons and statement of claim sometimes in May 2011.
(2) The Defendants have not filed their statement of defence nor have they shown any interest in the matter till date.
(3) There is no defence to the action of
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damages for the negligence act of the Defendants that has caused the Plaintiff the permanent injuries.
The said application was heard by the lower Court on the 27-2-2012 upon proof that the Appellants were served with same.
Judgment was consequently entered in favour of the Respondent on the 12-03-2012.
However, by a motion on notice dated 9-4-2013 and filed on 10-4-2013 the Appellant prayed the lower Court for the following orders:-
(1) Extension of time within which the Defendants/Applicants may apply to set aside the default judgment delivered by this Honourable Court on the 12th day of March 2012 and striking out the entire suit for lack of jurisdiction.
(2) An Order of the Court setting aside the default judgment of this Honourable Court delivered on the 12th day of March 2012 and striking out the entire suit for lack of jurisdiction.
(3) And for Order or other orders as this Honourable Court may deem fit to make in the circumstances of this suit.
GROUNDS ON WHICH APPLICATION IS BASED;
(1) The cause of action and right to sue arose in June/July 1999 when the Plaintiff was told by DR. I.E. NWANKOR of her disability or
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on the 21st day of February 2002 when the 2nd Defendant was found guilty of negligence by a General Court Martial.
(2) The Plaintiff commenced this action on the 15th day of February 2011 over eleven (11) years after the cause of action arose.
(3) The Defendants are Public Officers within the meaning of the Public Officer (Protection) Act.
The Respondent filed a counter affidavit accompanied with a written address to oppose the said application.
In a considered Ruling delivered on 17-10-2013 the application was dismissed for lack of merit.
The Appellants being dissatisfied with the Ruling filed a Notice of Appeal containing two grounds on the 28-10-2013.
Briefs of argument were subsequently filed and served in accordance with the Rules of this Court. The said briefs of argument were duly relied on and adopted by the parties at the hearing of the appeal on the 7- 4- 2016.
In the Appellant?s brief of argument dated 18-12-2013 and filed on 19-12-2013, two issues were formulated from the two grounds of appeal as follows:-
(1) Whether the Learned Trial Judge was right to have failed to raise suo motu and taken into
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consideration that suit No. FHC/L/332/2011 was statute barred at the time he gave default judgment.
(2) Whether the Learned Trial Judge was not in grave error to have placed the Rules of Court over and above the mandatory provision of law.
In the Respondent?s brief of argument dated and filed on 23-11-2015, a sole issue was formulated for determination as follows:-
?Whether the Appellants were properly before the lower Court and/or furnished sufficient materials to warrant the setting aside of the default judgment entered by the lower Court in the Respondent?s/Respondent?s suit on 12th March, 2012
The Appellants? reply brief of argument is dated 14-3-2016 and filed on 16-3-2016.
Dwelling on their issue No(1), Learned Counsel for the Appellants referred to the Ruling of the lower Court at page 172 of the Record to submit that the Appellant need not defend the action before the Court will decide whether it has jurisdiction to entertain same. He cited the case of LADOJA VS INEC (2007) 20 MJSC 1 at Page 5; ABIA STATE INDEPENDENT ELECTORAL COMMISSION VS KANU (2013) 219 LRCN (PT2) 31 at 38; ADETONA VS
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IGELE GENERAL ENT. LTD (2011) 197 LRCN at 142.
Learned Counsel referred to the statement of claim to contend that the action is based on tort of negligence against the Appellants who are public officers. He argued that the cause of action arose in April 1999 as shown in paragraphs 8, 9 and 10 of the statement of claim or in the alternative on the 5-2-2001 when the law firm engaged by the Respondent wrote to the 1st Appellant cataloguing the negligence act of the 2nd Appellant and demanded compensation in the sum of N100 million.
It was then submitted that based on the Respondent?s statement of claim, the action was statute barred by virtue of the Public Officers Protection Act and which fact the lower Court ought to have discovered if it had examined the said statement of claim suo motu. The case of ALHAJI BELLO NASIR VS CIVIL SERVICE COMMISSION OF KANO STATE (2010) 2 MJSC 1 at 4 was cited in support on the effect of a statute of limitation.
Learned Counsel also contended that if the Appellants showed indifference or failed to bring before the Court sufficient materials for abandoning the case or coming late into the matter, the lower
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Court would have raised the issue of jurisdiction suo motu and ask the Respondent to address the Court on it and the fact that the Appellants were not represented does not release the Court from applying the law because the judgment of a Court given without jurisdiction is a nullity and the issue of jurisdiction being a point of law, the Rules of Court cannot dictate when and how such point should be raised. Therefore, the Appellants? failure to file a memorandum of appearance, or statement of defence as required by the Rules of Court cannot be a bar to the issue of jurisdiction being raised by the Appellant as held by the lower Court.
It was then submitted that the Learned Trial Judge erred in law when he failed to raised suo motu the issue of jurisdiction given the cause of action for negligence as per the Respondent?s claim, which accrued since 1999 but sought to be enforced in 2011.
On issue No (2) that is whether the Learned Trial Judge was not in grave error to have placed the Rules of Court over and above the mandatory provisions of the law.
?Learned Counsel for the Appellants pointed to the fact that while the Learned Trial
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Judge relied on Order 7 Rule 1 and 3 of the Federal High Court (Civil Procedure) Rules 2009 to hold that the Appellants did not fulfill the condition precedent to being heard on the application for extension of time, he however overlooked Order 14 Rule 10 which provides that:-
Rule 10 ?Any judgment by default whether under this order or under any order of these rules shall be final and remain valid and may only be set aside upon application to the judge on grounds of fraud, non-service or lack of jurisdiction upon such terms as the Court may deem fit.?
He added that the said Rule 10 permits a Defendant to come only by way of an application to set aside a default judgment for lack of jurisdiction without any other preliminary actions being taken.
Further reference was made to the case of ALHAJI BELLO NASIR VS CIVIL SERVICE COMMISSION OF KANO STATE (Supra) to contend that Rules of Court are not sacrosanct and cannot override mandatory statutory provisions. Therefore, the holding of the lower Court that the application failed because the Appellants did not act timeously or satisfied the conditions necessary to move the Court in their
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favour is erroneous as it amounts to elevating the Rules of the Court over the statutory provision relating to limitation of action. Vide AMAECHI VS OMEHIA (2013) 16 NWLR (PT 1381) 417 at 438. Where the Supreme Court held that, where there is a good ground of appeal explaining lack of jurisdiction, the application should be granted even if reasons for the delay are not good enough.
This Court was then urged to resolve the two issues in favour of the Appellants.
Responding in their sole issue for determination, Learned Counsel for the Respondent submitted that the competence of the Appellants? application was challenged in paragraph 7 of the Respondent?s counter affidavit to the effect that the Appellants did not enter appearance at all in the suit and did not also file any statement of defence and this was not contradicted or controverted by the Appellants. The lower Court agreed with the Respondent and accordingly refused the Appellants? application for extension of time.
It was further submitted that non appearance by a Defendant as stipulated by the provisions of Order 7 Rules 1 and 2 of the Federal High Court (Civil
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Procedure) Rules 2009 is a fundamental violation of the said Rules which are meant to be obeyed. Therefore, failure to fulfil the condition precedent to being heard in the application renders the said application incompetent. The following cases were cited in support N.A WILLIAMS & ORS VS HOPE RISING VOLUNTARY FUNDS SOCIETY (1982) 1-2 SC 145 and USMAN ALI MAITSIDAU & ANOR VS ENGR. HAMISU IBRAHIM CHINDARI & ORS (2001) EPR (Vol. 6) 808.
Also referring to Order 8 Rule 9 of the Federal High Court Rules 2009, it was submitted that the Appellants? motion to set aside the default judgment was fraught with violation of the Rules because there was no prayer for extension of time to file memorandum of appearance and statement of defence.
Learned Counsel further submitted that the issues for determination as formulated in the Appellants? brief of argument does not accord with the sequence of the prayers sought in the appeal because it directly raised the issue of the jurisdiction of the lower Court to entertain the action when in fact the Appellant?s prayer for extension of time to set aside the judgment of the lower Court was yet
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to be granted and this means that the said prayer had been abandoned by the Appellants.
On the conditions to be satisfied in an application to set aside a default judgment he referred to the case of N.A WILLIAMS VS HOPE RISING VOLUNTARY FUNDS SOCIETY (Supra) to submit that the issue of jurisdiction should be subsequent to a satisfactory presentation of the grounds for seeking the setting aside of the said judgment delivered on 12-3-2012 but in the instant case the Appellants did not give any reason for their failure to defend the suit within the time prescribed by the Rules of Court and did not enter appearance as required by the Rules.
Reference was made to paragraph 3 (a-f) of the Appellants? affidavit in support of the application to contend that the facts deposed therein are not satisfactory but rather showed the Appellants indifference to the suit.
This Court was then urged to dismiss the appeal.
In the Appellants? reply brief dated 14-3-2106 and filed on 16-3-2016, it was submitted inter alia, that Order 14 Rule 10 of the Federal High Court did not provide for the requirements as listed by the Respondent. But it rather
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suffices under the said Rule if an application is brought before the Court stating that the Court lacked jurisdiction to entertain the claim upon which the default judgment was given.
Learned Counsel added that since the suit is statute barred resulting in a challenge to the jurisdiction of the lower Court to hear the suit, the Appellants need not therefore file a defence and the issue of demurrer cannot arise and by virtue of Order 14 Rule 10, filing of memorandum of appearance is not a requirement.
On the case of N.A WILLIAMS VS HOPE RISING VOLUNTARY FUNDS SOCIETY cited by the Respondent, it was argued that it has nothing to do with the issue of jurisdiction and as such did not help the Respondent?s case.
On the alleged failure to comply with Order 8 Rule 9 of the Rules by exhibiting the treasury receipt of payment. It was submitted that by Order 55 (2) Government agencies are exempted from paying any fees, therefore the issue of attaching treasury receipt does not arise. It was then urged on this Court to allow the appeal.
?The statutory provisions guiding the entry of judgment in default of appearance or filing a defence as well as
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the process of having the said judgment set aside by the trial Court are as contained in Order 8 Rule 1 & 9 and Order 14 Rules 7 & 10 of the Federal High Court (Civil Procedure) Rules 2009 and they are hereinbelow set out:-
Order 8 Rule 1. ?Where any Defendant fails to appear, a Plaintiff may proceed upon default of appearance under the appropriate provisions of these Rules upon proof of service of originating process.
Rule 9: Where judgment is entered pursuant to any of the preceding rules of this order a judge may set aside or vary such judgment on just terms upon an application on notice by the Defendant. The application shall be made within 14 days and it shall be accompanied with treasury receipt showing payment of penalty for the period of default and show a good defence to the claim and a just cause for the default.
Order 14 Rule 7 :- in all actions other than those in the preceding rules of this order, if the Defendant makes default in filing a defence, the Plaintiff may apply to a Judge for judgment, and such judgment shall be given upon the statement of claim as the Judge shall consider the Plaintiff to be entitled
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to.
Rule 10:- Any judgment by default whether under this order or under any order of these Rules shall be final and remain valid and may only be set aside upon application to the Judge on grounds of fraud, non-service or lack of jurisdiction upon such terms as the Court may deem fit.?
Order 8 which deals with default of appearances provides in Rule 6 that an application to set aside a default judgment shall be made within 14 days subject to fulfillment of other conditions. Authorities are equally available to the effect that any judgment in default of pleadings or appearance is not a final judgment since both parties were not heard on the merits of the case. See BELLO VS INEC (2011) 2-3 SC (PT 11) 128; MOHAMMED VS HUSSEINI (1998) 12 SCNJ 153; ABIEGBE VS UGBODUME (1973) S.C 103.
In SANUSI VS AYOOLA (1992) NWLR (PT 265) 275 or (1992) 11-12 SCNJ 142. The Supreme Court laid down the following guiding principles for the exercise of a Court?s discretion in setting aside a default judgment:-
(1) Where an applicant has shown good reasons for being absent at the hearing.
(2) Application was brought within the prescribed period.<br< p=””
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(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 period presented by the Rules.
(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.
(7) Where judgment was given for an amount in excess of what was due and claimed.
(8) The Respondent will not suffer any prejudice or embarrassment if the judgment is set aside.
?It is clear that while Order 14 Rule 10 which deals with the setting aside of a judgment in default of filing a statement of defence did not prescribe a specific time frame within which such an application should be made. Order 8 Rule 9 which deals with the setting aside of judgment in default of appearance prescribed that the application to set aside shall be made within 14 days and it shall be accompanied with treasury receipt showing payment of penalty, for the period
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of default and show a good defence to the claim and a just cause for the default.
In the instant case, it is not in dispute that the appellants did not enter appearance in the suit at the lower Court. In other words, they were in default of appearance which fact they wholly conceded to in paragraph 3 (a to c) of the affidavit in support of the application for extension of time filed on 10-4-2013. Therein it was deposed to as follows:-
“3. That the Plaintiff?s Statement of Claim and other processes filed before this Court have been perused in the Court?s file and the Defendants respond as follows:
a. That it was a fact that the Originating Processes filed by the Plaintiff/Respondent was received by the Naval Headquarters on the 6th day of June 2011.
b. That by the administrative set up of the Federal Government of Nigeria, the Ministry of Defence Supervises the Armed Forces of the Federal Republic of Nigeria including provisions of Legal Services i.e. defending all actions for and against the Nigerian Navy without prejudice to the Head of the Nigerian Navy assigning such cases to external Solicitors.
c. That the
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Plaintiff?s Originating Processes received on the 3rd June 2011 and all other processes were redirected to the Ministry of Defence for necessary action on the directive of the Chief of Naval Staff (CNS) and that nothing was heard again until the enrolled order of the Court was received by the 1st Defendant recently.?
Hence in the said application the Appellants sought the extension of time to apply to set aside the said default judgment delivered on 12-3-2012.
The learned trial judge after a review of the affidavit in support as well the counter affidavit deposed to by the Respondent in opposing the application delivered a well considered Ruling on the 12-3-2012 wherein at page of the Record he held inter alia as follows:-
?I therefore hold the humble opinion that the issue for determination as formulated by each party is misleading and I am not persuaded to follow the arguments canvassed therein.
May I observe that the issue for determination formulated in the Defendant?s written address does not accord with the sequence of the prayers in the application itself. It has straight away raised the question of this
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Court?s jurisdiction to entertain the Plaintiff?s action, when in fact the Defendant do not know whether the prayer for extension of time to make the application for setting aside the Judgment in the first place, would be successful at all.
It is pertinent to state that from 12th March, 2012, there has been a valid and subsisting Judgment in this matter, except and until it is set aside. Therefore, the primary burden on the Defendants is to furnish convincing reasons why it took them over one year to apply for setting aside the Judgment. Addressing or raising the issue of jurisdiction should be subsequent to satisfactory presentation of the grounds for seeking the setting aside of the Judgment.?
The above reasoning and conclusion of the learned trial Judge is no doubt correct and accords with the provisions of Order 8 Rule 9 of the Federal High Court (Civil Procedure) Rules 2009 which requires that not only shall the application be made within 14 days, but that it shall be accompanied with a treasury receipt showing payment of penalty for the period of default and added to that is for the applicant to show a good defence to the claim
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and a just cause for the default.
As held by the learned trial Judge, the Appellants? rather than furnish the Court with convincing reasons why it took them more than one year to apply to set aside the judgment resorted to hammering only on the issue of jurisdiction.
No doubt, jurisdiction is a threshold matter that renders any proceedings no matter how well conducted a nullity. See YUSUF VS OBASANJO (2004) 5 SCM. 193; UTIH VS ONOYIVWE (1991)1 NWLR (PT 166)166; AJAO VS ALAO (1986)5 NWLR (PT 45) 802. However, the issue of jurisdiction must be properly and appropriately raised either by a party or even the Court before it can be looked into whether such Court has the jurisdiction to entertain the matter presented to it for adjudication.
Herein, the application before the Court is for extension of time to apply to set aside the judgment obtained in default of appearance by the Appellants. The reasons given by the Appellants as deposed to in the affidavit in support was found to be unsatisfactory by the lower Court which also held that they are not yet properly before the Court and therefore has no ground to stand in challenging the said
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judgment one way or the other.
Going by the provisions of Order 8 Rule 9 as earlier indicated in this judgment, the Appellants did not provide or exhibit any revenue receipt to show that the necessary penalty has been paid for the period of default or show that they are exempted by the Rules. They have not also shown a just cause for the default of appearance as found by the lower Court. However, going by paragraphs 8 to 13 of the affidavit in support of the application, the Appellants seems to have raised some points in defence. The said paragraphs 8 to 13 reads thus:-
“8. That the Plaintiff/Respondent through her solicitors USEN USEN & COMPANY wrote to the CNS on the 6th day of February, 2001 alleging negligence and demanded compensation, failure which the Plaintiff said she would go to Court for redress and remedy. CTC of the letter aforesaid is attached to this process as Exhibit ?B?. That this position was further strengthen by the Plaintiff?s pleadings at paragraph 7 (vii) thereof.
9. That from the facts in paragraph 8 above, the Plaintiff/Respondent was aware of the cause of action available to her and when it
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accrued but that this action was not commended until the 5th day of March 2011.
10. That the last letter on this subject by the 1st Defendant/Applicant was dated the 6th day of July 2010 as admitted by the Plaintiff/Respondent in paragraph 30 of his Statement of Claim where the 1st Defendant still denied liability.
11. That the Defendants/Applicant are within the Act Public Officers and actions against Public Officers have period of limitation after which no action is maintainable
12. That the Defendants are within the rules of this Court Government Agencies.
13. That it will be in the interest of justice if the default judgment of this Court delivered on the 12th day of March 2012 is set aside and the suit struck out for lack of jurisdiction.
14. I make this affidavit in accordance with the Oath Act of the Federal Republic of Nigeria in force.?
The defence in the Appellants arsenal borders on the issue of jurisdiction of the lower Court to entertain the suit based on limitation period imposed by the Public Officers Protection Act. (Though an assertion yet to be verified and substantiated). In fact the appellants grouse
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as ventilated in this issue under consideration is that the learned trial Judge failed to raise suo motu the issue of the action being statute barred.
It is long established that jurisdiction is a threshold issue in adjudication by a Court of law and as such, it is basically considered expedient to resolve same once it is raised by a party. It is a fundamental point that could be raised at any time, at the trial Court, or the Court of Appeal or even at the Supreme Court for the first time and it can even be raised suo motu by the Court concerned which will then invite the contending parties to address the Court on it. It therefore goes without saying that the determination of a matter by a Court will amount to a nullity if done without jurisdiction notwithstanding how right or correct the decision reached might be. See UGBA VS SUSWAM (No 2) 2012 6 SC (PT 11)56. A.G. RIVERS STATE VS A.G. AKWA-IBOM STATE (2011)8 NWLR (PT 1248)31; AJAO VS ALAO Supra.
However, I am yet to come across any authority or law that imposes a primary duty on the Court or a trial Judge to go scouting for a flaw or loop hole in the processes filed by the parties before the Court.
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In other words it is not customary for the Court to, as a matter of course descend into the arena of battle between two contending parties and take over the attack or defence on behalf of either of the parties. See OKPULOR VS THE STATE (1990) 11-12 SC 151; BABALE VS ABDULKADIR (1993)2 SCNJ 110.
The duty of a Court is to consider and determine the case before it in the light of the complaints made or issues properly raised by the parties. See SANNI VS ADEMILUYI (2003) 11 SCM 145, KANO STATE OIL & ALLIED PRODUCTS LTD VS KEFA TRADING CO. LTD. (1995-1996) ALL NLR 415.
The Role of a Court is to adjudicate on matters presented to it by the parties. A trial Court should therefore make haste slowly in raising a matter not before it suo motu because the case is that of the parties and not the Court whose role is solely to decide the matters as presented to it.
The Court is however permitted to raise an issue suo motu on the condition that the parties must be given equal opportunity to address the Court on such issue or issues. See ABIMBOLA VS OBATAN (2001)5 SCM page 1; OGUNDELE VS AGORI (2000)12 SC (PT 1)135.
?The point I seek to make here
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is that, though a Court is permitted to raise an issue suo motu. It must however as a matter of legal imperative, invite all the parties involve in the suit to address it on the issue so raised.
The power of a Court to raise an issue suo motu has not however been declared mandatory as to justify the attack by the Appellant on the Learned Trial Judge on the ground that he ought to have suo motu scanned the statement of claim filed by the Respondent and compare it with writ of summon in which case he would have seen that the action was statute barred. If that is the case, where then should the line be drawn between a biased descent into the arena and the hallowed status of the judge as an unbiased and impartial umpire in the temple of justice?
The emphasis by Learned Counsel for the Appellants on the failure of the Learned Trial Judge to raise the issue of statute barred suo motu is to my mind absolutely unwarranted and injustified.
?Parties and counsel representing them should pay due attention to their cases and prosecute same with due diligence and desist from shifting the burden of advocacy on the Judge who is already overburdened with
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adjudication.
They should refrain from turning judicial officers into canon fodders or guinea pigs in the administration of justice. A Judge cannot be held liable for failing to raise an issue suo motu.
This issue 1 is therefore resolved against the Appellant.
ISSUE 2
That is whether the Learned Trial Judge was not in grave error to have placed the Rules of Court over and above the mandatory provision of the law.
It is trite law that Rules of Court are Rules of procedure. They do not by themselves and of themselves confer jurisdiction but only regulate the exercise of jurisdiction conferred in aliunde. see CLEMENT VS IWUANYANWU (1989) 4 SC (PT 11) 89.
Though Rules of Court are made pursuant to statutory or Constitutional provisions, it has been held that such Rules of Court are the lubricants of the machinery of justice and they contain minute details of various steps which a litigant is expected to take in the process of getting the Court to adjudicate on the various types of cases that come before it. Therefore, once it is shown that the rules are made under the powers conferred by the Constitution or a statute, they are
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deemed to have the same force of law as the said Constitution or Statute. See AKANBI VS ALAO (1989) 5 SC Page 1.
In the circumstance, except where it is clearly shown that non compliance has been waived, Rules of Court must be complied with. See DINGYADI VS INEC (NO2) (2010) 18 NWLR (PT 1224) 154 SC; IROEGBU VS OKWORDU (1990) 6 NWLR (PT 159) 643; CCB (NIG) PLC VS A.G ANAMBRA STATE (1992) 8 NWLR (PT 261) 528. In ABIA STATE TRANSPORT CORPORATION & ORS VS QUORUM CONSORTIUM LTD (2009) 9 NWLR (PT 1145) 1 SC, the Supreme Court held emphatically that Rules of Court are not made for fun, but to be obeyed. Therefore, once such rules are in place they must be adhered to and not contravened or ignored. See also OYEGUN VS NZERIBE (2010) 7 NWLR (PT 1194) 577; UTC (NIG) LTD VS PAMOTE 1 (1989) 2 NLWR (PT 103) 244; SOLANKE VS SOMEFUN (1974) 1 SC 141; SAUDE VS ABDULLAHI (1989) 4 NLWR (PT 116) 387. Further in KALU VS OFILI (1992) 6 SCNJ 76 the apex Court did admonish that Rules of Court must prima facie be obeyed and if there has been non compliance with the rules and it is not explained away, then unless it is of a minimal kind, no indulgence of the Court can be
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granted.
In the instant case it is germane to make clear the distinction between judgment in default of appearance and judgment in default of defence as glaringly provide for in Order 8 Rules 1 & 9 and Order 14 Rules 7 & 10 respectively of the Federal High Court (Civil Procedure) Rules.
The procedures for setting aside such judgment given in default are also detailed in both situations and they are not the same. For judgment entered in default of appearance, Order 8 Rule 9 provides that an application to set it aside shall be made within 14 days and shall be accompanied with treasury receipt showing payment of penalty for the period of default and show a good defence to the claim and a just cause for the default. For judgment default of defence, Order 14 Rule 10 provided in general terms that an application to set it aside may be made on grounds of fraud, non-service or lack of jurisdiction. It did not provide for or list the conditions for granting such application as was done under Order 8 Rule 9.
?It must also be emphasized that default of appearance occurs when a Defendant fails to appear at all or respond to the service of
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originating processes on him.
But in the case of default of pleadings Order 14 Rule 11 provides that a Defendant makes default in pleading when he fails to file and serve statement of defence on the Plaintiff within the time fixed for doing so by the Rules or by the Court.
It means that in this case the Defendant must have filed a memorandum of appearance or any other process but only delayed or failed to file his statement of defence in time. This is totally at variance with the scenario in Order 8 Rule 1 where the Defendant entirely fails or ignores to respond to the originating process served on him by way of entry of appearance in the suit.
I hold the view and strongly too that until a Defendant formally enters appearance by way of filing a memorandum of appearance in accordance with the Rules of Court either conditionally or unconditionally, he cannot be said to have responded to the process served on him or registered his presence formally before the Court as a party in the suit and willing and ready to challenge the Plaintiff or admit his claims against him.
?Order 7 Rule 1 provides for the mode of entry of appearance and it
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reads:-
Order 7 Rule 1 :- A Defendant served with an originating process shall within thirty days file in the Registry, along with the processes mentioned in Order 13 Rule 2(1), the original and copy of a duly completed and signed memorandum of appearance as in form 11 with such modifications or variations as circumstances may requires.
To emphasise the importance of the Memorandum of Appearance Subrule 3 provides that a Defendant who fails to file same within the time prescribed in the originating process shall pay to the Court an additional fee of N200 for each day of default.
To my mind therefore, and by a combined reading of Order 7 Rules 1 to 3 and Order 8 Rules 1 and 9 a Defendant seeking to apply to set aside a judgment given in default of appearance must file a memorandum of appearance either conditionally or unconditionally to formally bring him into the suit and recognize as a Defendant who has entered appearance before the Court.
?Thereafter he can pursue whatever application he wants to make in the suit. The Learned Trial judge addressed this issue exhaustively in his Ruling at pages 176 to 177 of the record and I have
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no cause to fault his stance on the issue.
For clarity, the said finding of the Learned Trial Judge is hereinbelow set out:-
?Another crucial point in this application is the competence of the appearance of counsel for the Defendants and by extension, the competence of the application. This Court on page 4 of the judgment delivered on 12/3/2012 and sought to be set aside. The Plaintiff in paragraph 7 of her counter-affidavit to the Defendant?s motion has deposed thus:
“7. That the Applicant did not enter appearance at all and did not file a defence at all even while filing this application. That it took the Defendants/Applicants 1 year and 10 months to file a motion to set aside the orders of Court.”
It is unworthy that the Defendant did not file a further affidavit to contradict or controvert this averment, even though they filed a reply on points of law. In the circumstances, the uncontradicted affidavit evidence is deemed admitted and must be taken as true. See FBN PLC VS NDARAKE & SONS (NIG) LTD (2009) 13 NWLR (PT. 1164) C.A 406 at 414-415, paragraphs F-B. so far, there is no indication in the record
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of this Court that the Defendants entered appearance in this suit as required by the rules of this Court before filing the application under consideration. This is in violation of the provisions of Order 7 Rules 1 & 2 of the FHCR, 2009, whereas Rules of Court are meant to be obeyed. The implication of this is that the Defendant did not fulfill the condition precedent to being heard in this suit before bringing this application, hence it is incompetent. If the Defendant believed that they had a good defence to this suit, they should have first entered appearance and presented such defence at the auspicious time. Instead, they treated the matter with disdain and levity.
It is obvious from their approach to this application that the Defendants lack appreciation of the scope of the burden that rests on them to discharge in order to get audience and further succeed in the application proper.
What is more, the Appellants had hammered strongly on the assertion that being an issue of jurisdiction, the fact that they did not formally enter appearance did not matter. The answer to that is clearly provided for in Order 29 Rules 1 to 3 of the Federal High
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Court (Civil Procedure) Rules 2009 and it reads thus:-
“ORDER 29
DISPUTING THE COURTS JURISDICTION.
(1) Where a Defendant wishes to:-
(a) Dispute the Court?s jurisdiction to try the claim; or
(b) Argue that the Court should not exercise its jurisdiction,
He may apply to the Court for an order that it has no jurisdiction or should not exercise any jurisdiction which it may have, and the Court may take such application together with the substantive suit in so far as the substantive suit does not involve the taking of oral evidence.
(2) A Defendant making such application must first file along a memorandum of appearance stating that he is appearing conditionally.
(3) A Defendant who files a memorandum of appearance does not, by so doing lose any right that he may have to dispute the Court?s jurisdiction.?
The above provision no doubt emphasizes the necessity for a memorandum of appearance to be filed before or along with application challenging the Court?s jurisdiction.
It indeed accords with the holding of the lower Court and I am in total agreement with same.
?The
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Appellants herein have every right to challenge the jurisdiction of the lower Court but this must be done in accordance with legally set down rules and procedure and not in vacuo.
The lower Court did not place the Rules of Court above any statutory requirement but simply complied with the plethora of authorities of the Supreme Court that Rules of Court are not fanciful decorations but are meant to be obeyed and complied with, moreso in matters as fundamental as that of filing a memorandum of appearance by a Defendant in a suit.
I therefore resolve this issue against the Appellant.
On the whole, I find this appeal to be lacking in merit and it is accordingly dismissed.
The Ruling of the Federal High Court delivered by J.T. TSOHO J. on the 17th day of October 2013 is hereby affirmed. Parties to bear their costs.
Other Citations: (2016)LCN/8812(CA)
