(2018) lpelr-46546(ca)

DELE AFOLABI & BROTHERS (NIG) LTD &ANOR v. STERLING BANK

CITATION: (2018) LPELR-46546(CA)

In the Court of AppealIn the Lagos Judicial Division

Holden at Lagos

ON WEDNESDAY, 31ST OCTOBER, 2018Suit No: CA/L/53/2005

Before Their Lordships:

JOSEPH SHAGBAOR IKYEGH Justice, Court of AppealBIOBELE ABRAHAM GEORGEWILL Justice, Court of AppealUGOCHUKWU ANTHONY OGAKWU Justice, Court of Appeal

Between1. DELE AFOLABI & BROTHERS (NIG) LTD2. BAMIDELE AFOLABI - Appellant(s)

AndSTERLING BANK PLC. - Respondent(s)

RATIO DECIDENDI1. ACTION - DUTY OF PARTY(IES): Duty of a party to keep track of the progress of his matter

"In considering the issue of notification of reassignment of the case, I must point it out at once that it has been found by the Court below, a finding againstwhich there is no contention and which I have also affirmed earlier in this judgment, that the Appellants were lethargic in their attitude towards the proceedings leading to the judgment ofthe Court below delivered on 28/7/1992. Now, these are parties to a suit sued as Defendants and duly served with the originating processes, summons for judgment and who had retainedthe services of a Counsel to enter appearance for them, which appearance was duly entered for them. However, that was all they consider it worthy to do in the entire proceedings. Theynever filed their defense or counter affidavit to the summons for judgment. They never appeared in Court on any date for the case until the matter was reassigned from Onalaja J., (as hethen was) to Adagun J., (now retired). They still did nothing. In the circumstances can they be heard to complain that they were not notified of the reassignment of the case to Adagun J? Ithink not! See John V. Blakk (1988) 1NWLR (Pt. 72) 648 @ p. 653, where this Court per Kolawole JCA., had considered it "an act of gross negligence" for the failure of the Appellants tocheck on their Counsel from 12/1/1987 to 12/1/1988, a period of one year, to ascertain if necessary steps had been taken by the Counsel to comply with the rules of Court. It is even worsein the circumstances of the present appeal. It is my view therefore, that every party, to a suit including his Counsel if he has one, is obliged to keep tabs with the preliminary pretrialprocedures including assignment and reassignment of their cases. They cannot being aware of their case pending in the Court fold their arms akimbo and do nothing to check at theRegistry of the Court the progress in term of pretrial matters in their case and wait for service of hearing notice from the Court for a matter not yet due for hearing and which as the nameimplies, hearing notice, would not be suitable to be served on a party over preliminary pretrial matters, such as assignment or reassignment of a case, which a simple visit to the Registrywould reveal to the party. See Ama v. Obabi Olorunkosi (1986) 12 NWLR (Pt. 22) 316 at p. 329 where this Court per Kolawole JCA had stated inter alia thus: "My understanding of the rulesis that after the preliminaries before matter is read for hearing namely: service of the Writ, entry of appearance and the issues of Summons for Directions, legal practitioners are obliged tokeep themselves informed of the business of the Courts. Thus it is inexcusable for any legal practitioner to pretend that he did not know when his case came up in any Court."PerGEORGEWILL, J.C.A. (Pp. 51-53, Paras. D-F) - read in context

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2. APPEAL - INTERFERENCE WITH FINDING(S) OF FACT(S): Instances when an appellate Court will not interfere with findings of fact of the lower Courts"Indeed, the only option ever open or available to an appellate Court where the findings of the lower Court is correct is to affirm and stand by it and not toset aside the correct findings and this is so even where the appellate Court finds that the reason leading to the correct finding is wrong. Once an appellate Court finds that the conclusionreached by a trial Court is correct, it has no duty to interfere. This is so because an appellate Court is not so much concerned with the correctness or wrongness of the reasons adduced bya trial Court for its decisions or conclusions but rather more concerned with whether the decision reached or conclusion arrived at was correct or wrong. See Alhaji Ndayako & Ors. v.Alhaji Dantoro & Ors. (2004) 13 NWLR (Pt. 889) 187 @ p. 198. See also Abaye V. Ofili (1986) 1 NWLR (Pt. 15) 134; Ukejianya V. Uchendu 18 WACA 46. Thus, the duty of an appellateCourt to interfere will arise only where the finding, conclusion and or decision of the lower Court is wrong and or perverse. In law, a finding or conclusion of a Court is perverse when suchfinding does not flow from the proved evidence or was arrived at wrongly or was anchored on extraneous matters. In all such circumstances an appellate Court will interfere to set it asideand make appropriate finding as justified and borne out by the evidence in the printed record of appeal. See Sogbamu V. Odunaiya (2013) All FWLR (Pt. 700) 1247 @ p. 1307. See alsoMatanmi & Ors V. Victoria Dada & Anor (2013) WRN 1 @ P. 19; Chief Odofin V. Isaac Ayoola (1984) 11 SC 72; Nwosu V. Board of Custom & Excise (1988) 5 NWLR (Pt. 93) 22;Nneji V. Chukwu (1996) 10 NWLR (Pt. 378) 265; Obajimi V. Adeobi (2008) 3 NWLR (Pt. 1075) 1 @ p. 19; Owor V. Christopher (2010) All FWLR (Pt. 511) 962 @ p. 992; Mini Lodge Ltd. V. Ngei(2010) All FWLR (Pt. 506) 1806 @ pp. 1820 - 1821. ?In the circumstances, therefore, the Court below per Adefope - Okojie J., having made the correct findings and reached the correctconclusion on the affidavit, counter affidavit of the parties and the record of the Court below in the Appellants' application to set aside the judgment of the Court below per Adagun J., thereis no reason for this Court to interfere with those correct findings and conclusions."Per GEORGEWILL, J.C.A. (Pp. 61-63, Paras. B-B) - read in context

3. COMPANY LAW - RECEIVER/MANAGER: Duty of a receiver"...Honestly, having calmly looked at the above depositions and considered the entirety of the case as presented by the Respondent, which is that somerecovery has been made through the instrumentality of a 'Receiver', who in law has no authority unless he was also appointed as a 'Manager' to carry on a going concern since his duty issimply to stop the business, collect the debts and realize the assets; See Uwakwe V. Odogwu (1989) 5 NWLR (Pt. 123) 562 @ p. 589; Re Manchester & Milford Railway (1880) CH.D645 @ p. 653..."Per GEORGEWILL, J.C.A. (P. 59, Paras. D-F) - read in context

4. EVIDENCE - BURDEN OF PROOF/ONUS OF PROOF: On whom lies the burden to prove the delivery of judgment during vacation period; effect of failure to discharge same"In respect of the delivery of the judgment during the vacation period, it was argued for the Appellants that it was delivered during the vacation period ofthe Court below and was therefore, a nullity. It is one thing to make all and any allegations a party may want to make in a case but quite another thing altogether to prove such allegationand the onus is on the party who makes every positive allegation of facts unless it was admitted by the other party, and there is no initial burden of proof on the other party who merelydenies such positive allegation of facts since in law a negative assertion is ordinarily incapable of poof. See Elemo V. Omolade & Ors. (1968) NMLR 359; Atane V. Amu (1974) 10 SC237; Fashanu V. Adekoya (1974) 6 SC 83; Kte Enterprises Ltd. V Daewoo Nig Ltd. (1085) 2 NWLR (Pt. 116); Onyenge V. Ebere 18 NSCQR (Pt.) There was therefore, no burden on theRespondent to prove that 28/7/1992 on which date the judgment of the Court below sought to be set aside was delivered was during the vacation period of the Court below as that is forthe Appellants who had so alleged to prove. So, did the Appellants prove that the 28/7/1992 was a vacation period of the Court below? I think not! In the entire proceedings, they nevertendered any evidence showing the sitting calendar of the Court below for the year 1992 to substantiate their allegation. To find this allegation as proved fact without such vital evidencewould be as good as indulging in mere surmise and or conjectures, which a Court of law has no business to indulge in. The duty of the Court is to decide issues on the facts as establishedbefore them by evidence and on the law. This is so because a Court is only but a Court of law and fact. It must therefore, at all times avoid relying on conjectures or mere surmise orsympathy and or glorifying mere speculations without any hard concrete evidence in proof thereof. See lsah V. State (2007) 12 NWLR (Pt. 1049) 582 @ p. 614, where it was held inter aliathus: "A trial Court must not base its decision on speculation and extraneous matters not supported by the evidence before the Court as this will occasion miscarriage of justice. In otherwords, the Court's finding must be supported by concrete and real evidence and not speculation." See also Ejezie V. Anuwu (2008) 12 NWLR (Pt. 1101) 446 @ p. 490, where the SupremeCourt made it abundantly and succinctly clear and with finality inter alia thus: "A Court has no jurisdiction to speculate on conjecture. A Court must confine itself to the evidence before itand give judgment on the evidence." See further Agip (Nig.) Ltd. V. Agip Petroli Int'l (2010) 5 NWLR (Pt. 1187) 348 @ p. 413; ACB Plc. V. Emostrade Ltd. (2002) 8 NWLR (Pt. 770) 501. I findtherefore as fact, as was also rightly found by the Court below, that the Appellants failed to prove that 28/7/1992 was a vacation period of the Court below. At any rate even if it had beenshown that 28/7/1992 was a vacation period of the Court below, it is the law that in so far as all that took place in that date before the Court below was the mere delivery of the judgment,it would be of no moment once no miscarriage of justice ensued and would not by the reason of that alone render the judgment of the Court below a nullity, contrary to the vehement butbaseless contentions of the Appellants in this appeal. This is so because there is really no further role for the parties to play on a date judgment it is delivered except to say 'as it pleasesthe Court even when perhaps deep down it might have displeased of the parties sorely. See Veritas Insurance Co. Ltd V. Cititrust Investment Ltd. (1993) 3 NWLR (Pt. 281) 349 @ pp. 368 -370. In General Oil Ltd. V Oduntan (1990) 7 NWLR (Pt. 163) 423 @ p. 433 this Court per Niki Tobi JCA (as he then was but later JSC and now resting in peace) puts it so poetically inter aliathus: "It is not the duty of the Court to wake up an Applicant who has slept all the way and is enjoying his deep sleep to the extent that he does not care to know the existence of his legalrights. He should be allowed to enjoy his slumber. Equity will not wake him up and since the Courts operate the principles of equity, they will not wake him up."Per GEORGEWILL,J.C.A. (Pp. 54-57, Paras. A-D) - read in context

5. JUDGMENT AND ORDER - SETTING ASIDE JUDGMENT/ORDER: What an applicant must show in an application to set aside a judgment"Now, in an application to set aside the judgment of a Court made to the Court that delivered the judgment, an applicant, such as the Appellants must bycredible evidence put forward by them satisfy the Court of the following conditions, namely; 1. The Applicant must adduce good reasons for being absent at the hearing 2. He must showthat he has good reasons for his delay in bringing the application; whether there was undue delay in bringing this application so as to prejudice the party in whose favor the judgmentpersists. 3. The Respondent will not be prejudiced or embarrassed if the order for rehearing was made. 4. The Applicants case was not manifestly unsupportable 5. The Applicant's conductthroughout proceedings is deserving of sympathetic consideration. See N. A. Williams V. Hope Rising Vlountary Funds Society (Supra) @ p. 145. See also Sanusi V. Ayoola (1992) 9 NWLR(Pt. 165) 275 @ p. 279."Per GEORGEWILL, J.C.A. (P. 50, Paras. A-E) - read in context

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6. PRACTICE AND PROCEDURE - APPLICATION FOR EXTENSION OF TIME: Principles governing the grant or refusal of an application for extension of time within which to apply to setaside a judgment"My Lords, looking at the reliefs claimed by the Appellants as earlier set out in this judgment, but which reliefs were denied them by the Court below, theAppellants had two principal hurdles to cross in order for them to succeed in the application, namely: 1. The reason (s) for the failure to apply to set aside the judgment within time 2. Thereason (s) why the judgment should be set aside. Thus, no matter how good in law and on the facts why a judgment ought to be set aside, including grounds of lack of jurisdiction and ornullity, unless the application to set aside the judgment was brought within time, otherwise where there is not good reason(s) why the application to set aside the judgment was not filedwithin time, the application must fail. This is so because unless and until the relief of extension of time is made out, even if in the same application seeking to set aside the judgment, ongood reason(s) explaining sufficiently the delay in the application to set aside the judgment, the issue of the good reason(s) why the judgment should be set aside does not even arise forconsideration. So did the Appellants proffer good reason (s) explaining satisfactorily why they did not apply within time and even assuming they did show good reason(s) why they did notapply for the setting aside within time, did they fulfill the conditions precedent for the relief of setting aside of the judgment of the Court below claimed by them? These two questions arethe epicenter of this appeal. ?In law, an application for extension of time within which to do or take a step or do something as required by law is one seeking a discretional remedy and canonly be obtained on good and sufficient reason apparent in the materials furnished before the Court by an Applicant disclosing justifiable excuse for the delay. It follows therefore, that theleave for extension of time is not be granted as a matter of course. Consequently, where no such sufficient reason is shown for the delay by an Applicant in an application for extension oftime then no such indulgence of an extension of time would be granted. See Lawal V. UBN Plc. (2008) 12 NWLR (Pt. 1102) 704 @ p. 706. See also N. A. Williams V. Hope Rising VoluntaryFunds Society (1982) 1 SC 1 @ p. 135. It is true in law that an Applicant for extension of time, such as the Appellants, do not need a horde of reasons as one solid good reason that isverified by credible evidence placed before the Court would suffice. Thus, the law seems fairly settled that once good and sufficient reason has been proffered by an Applicant for anextension of time to explain and justify or excuse the delay in applying within the time as allowed by law, the issue of the length of time would not be allowed to be a clog in the wheel ofdoing substantial justice to the parties. See Ogundimu V. Kasunmu (2006) All FWLR (Pt. 326) 201 @ pp. 215 - 216. I am aware that in law an exercise of discretion, though not subject to somuch hard and fast rules or fettering or else it loose its salt of being a discretion and it is best served unfettered, an exercise of discretion must be founded on justice, fairness and law andnot on the whims and caprice of the Court with scant or no regards to the facts of the case. See University of Lagos V. Aigoro (1985) 1 NWLR (Pt. 1) 143. See also Aboseldehyde Lab. Plc. V.U. M. B. Ltd. (2013) 13 NWLR (Pt. 1370) 91 @ pp. 97 - 98; Aroh V. PDP (2013) 13 NWLR (Pt. 1371) 235; Thimnu V. UBN Plc. & Ors. (2013) LPELR 22127 (CA) @ pp. 20 - 21; Abiodun V.CJ, Kwara State (2007) 18 NWLR (pt. 1065) 109 @ p. 152; Adeniji V. Adeniji (2013) 15 NWLR (Pt. 1376) 102 @ p. 125. In E. F. P. C Ltd. V. NDIC. (2007) All FWLR (Pt. 367) 793 @ pp. 825 -826, the trite position of the law on the exercise of discretion by the Courts in application for extension of time to appeal was so poignantly put in its proper context by Niki Tobi JSC, (Godbless his soul) inter alia thus: "An application for extension of time ...... involves so much of discretionary power of the Court hearing the appeal. Where the discretion is exercised judiciallyand judiciously, the Supreme Court has no jurisdiction to question a discretion which is exercised judicially and judiciously." ?In the ruling of the Court below several findings of fact ofservice of the originating processes, summons for judgment and hearing notices were made against the Appellant but the Appellants, going by the issues for determination as distilled inthe Appellants' brief, appears not to have any issue with those findings and I take it that the issue of service of these vital processes of the Court below are taken as non issue in thisappeal. The parties are therefore, bound by those findings. See Owners of MV. Arabella V. NAIC (2008) 4 - 5 SC (Pt. 11) 189 @ p. 217. See also Dabo V. Abdullahi (2005) 7 NWLR (Pt. 923)181; Leventis Technical V. Petro Jessica Enterprises (1999) 6 NWLR (Pt. 605) 45. My Lords, had the real crux of the issues in contention been whether or not service of originating processesand or hearing notices were effected on a party as required by law, even the appearance of counsel would not be tantamount to proof of service as would satisfy the fundamentalprerequisite of service in law. Thus, whenever service is in issue, in law it could be proved in any of the following ways, namely: a; by endorsement by the party or his legal practitioneracknowledging receipt of the Court processes, b: By affidavit of service by the Bailiff who effected the service and c: By order of substituted service duly complied with. In Mark V. Eke(2002) 1 SC (Pt. 11) 1 @ p. 19, the Supreme Court per Musdapher JSC, had held inter alia thus: "Where a process has been served it is necessary for the Court to have before it evidence ofthat facts service of the process, especially the originating process, is an essential condition or the Court to have the competence or the jurisdiction to entertain the matter. Further, failureto comply with this condition would render the whole proceedings including the judgment entered, and all subsequent proceedings based therein, wholly irregular, null and void. That iswhy the proof of the service of the process Oil a Defendant is very fundamental to the issue of the jurisdiction and competence of the Court to adjudicate." The above position of the law,on the indispensability of service of Court processes, was most succinctly pronounced upon by the apex Court in Societe Generale Bank (Nig) Ltd. V. Adewunmi (2003) FWLR (Pt 158) 1081@p. 1196, where the Supreme Court per Musdapher JSC., puts the issue succinctly inter alia thus: "Under our adversary system of jurisprudence, to hear a case without one of the partieshaving been served with the necessary process except in a proper ex-parte proceeding would render the trial a nullity as service of the Court's process is basic and indispensable to anyadjudication. Failure to serve the Court processes robs the trial Court of the jurisdiction and competence to deal with the matter. The issue of service is basically a matter of fact while itseffect is an issue of law." See also FBN Plc. V. TSA Ind. Ltd. (2010) 4 - 7 SC. (Pt. 1) 242. My Lords, in law circumstances abound when a Court can legitimately set aside its own judgmentwithout being accused of sitting on appeal over its judgment. These circumstances include, but are not limited to the followings, namely; 1. When the judgment is obtained by fraud ordeceit or misrepresentation either on the Court or one or more of the parties. 2. When the judgment is a nullity. 3. When it is obvious that the Court was misled into giving judgment undera mistaken belief that the parties consented to it and 4. When the judgment is given in absence of jurisdiction or when the procedure adopted was such as to deprive the decision orjudgment of the character of a legitimate adjudication. See Igwe V. Kalu (2002) 14 NWLR (Pt. 787) @pp. 435 - 453. I have taken a calm look at the entirety of the 35 paragraphs affidavitevidence of the Appellants showing the reason for the delay in applying for the setting aside of the judgment of the Court below and it is simply that there were moves to settle the matterthrough series of meetings between the parties and peripherally also the mistake of their former Counsel. The Respondent denied these depositions by the Appellants. The pertinentquestion is simply whether or not the reasons proffered by the Appellants amounted in law to good and substantial reasons to justify and or excuse for their failure to apply within time forthe setting aside of the judgment of the Court below? ?It is of common ground that the Appellants had only but six days from the date of delivery of the judgment of the Court below perAdagun J., on 28/7/1882 within which to apply to set aside the said judgment but failed to file a valid application to do so until the application was filed on 4/3/1997, that is five years afterthe judgment sought to be set aside was delivered. In the ruling appealed against, the Court below found as fact that the length of time was inordinate and that the Appellants were mostlethargic in their attitude towards the entire proceedings before the Court below having failed, neglected and or refused to make use of all the several opportunities afforded them by theCourt below to participate in the proceedings to put their own side of the case before the Court below in the suit instituted against them by the Respondent all but to no avail. It oughttherefore, to be pointed out at once that in law once a party has been given the due opportunity by a Court to present his own side of the story but he refuses, fails or neglects to do so,then not only can he not be heard subsequently to complain about not being heard but the case presented by the party who participated at the proceedings is the case to be consideredon the merit by the Court, attended the proceedings is the case to be considered on the merit. See Military Governor of Lagos State V. Adeyiga (2012) LPELR - 7836(SC0 @ pp. 29-30 perAdekeye JSC. See also MTN Nig Communications Ltd V. Mundra Ventres Nig. Ltd (2016) LPELR - 40343 (CA) @ PP. 32 - 33 per Georgewill JCA. Having dispassionately considered the reasonsproffered by the Appellants in their affidavit evidence, the response by the Respondent in its counter affidavit evidence, the finding of facts of the Court below in the ruling appealedagainst and the submissions of Counsel in their respective briefs, I am truly satisfied and I so hold that the Court below was right when it held that the reason proffered by the Appellantsfor the inordinate length of time of delay before the filing of the application to set aside the judgment of the Court below was not only lame but no reasons at all as would have warrantedany reasonable Tribunal, worth it name, to exercise its discretion in favour of the Appellant to grant them the indulgence of an extension of time of about five years to enable them applyto set aside the judgment of the Court below delivered about five years ago at the time of the filing of the application to set it aside. In law once no justifiable reason is proffered for thedelay, whether inordinate or not, no indulgence of an extension of time would be granted. However, conversely once a good reason justifying the delay is proffered, then notwithstandingthe length of time, the indulgence of an extension of time must be granted. See N. A. Williams V. Hope Rising Voluntary Funds Society (1982) 1 SC 1 @ p. 135. See also Lawal V. UBN Plc.(2008) 12 NWLR (Pt. 1102) 704 @ p. 706; Ogundimu V. Kasunmu ( 2006) All FWLR (Pt. 326) 201 @ pp. 215 - 216. The Appellants had also relied on the old age and attendant incapacity oftheir former Counsel as reason for their lethargic prosecution of the earlier applications and the resultant delays in the filing of their application of 4/3/1997 to set aside the judgment ofthe Court below after about five years of the delivery of the judgment by the Court below. Interestingly, nowadays inadvertence, or now the strange one here old age and attendantincapacity, of Counsel has become the panacea to cover multitudes of alleged sins of Counsel in order to sway the Court to granting reliefs sought. I have already alluded to the inordinatedelay between the time the judgment of the Court below delivered on 28/7/1992 and the filing of the application to set it aside by the Appellants on 4/3/1997. This is however, not to saythat notwithstanding the length of delay, if reasonable and sufficient reason is adduced for the delay by the Appellant a Court of law, which is as well a Court of justice, would not favorablyconsider such an Application, yet is the duty to find out the progress, if any, being made to a litigant's case that of only the Counsel, old or young, vibrant or feeble? I think not. In all thereasons proffered in the Affidavit in support, no reason was given as to why the Appellants did absolutely nothing to find out the progress or status of their own case. In my view, there is acorresponding duty on a diligent litigant, desirous of having his case to be prosecuted diligently, to make contact with the Counsel so retained and or the Registry of the Court below toknow the progress, position or status of the case. Therefore, litigants, such as the Appellants, who woefully failed or neglected or refused to do so cannot in my view be allowed in law toturn round to absolve themselves and heap all the blames on "mistake" or "sin" of their old and feeble Counsel in order to have their way through their application before the Court below,and having failed there, now before this Court. The law does not and cannot just work that way! I find no mistake or inadvertence of Counsel either by reason of old age and or attendantincapacity or ill health. These allegations, not even supported by any iota of evidence in proof thereof, remained unproved. See Bank of the North Ltd V. Ismaila Yusuf (2010) LPELR - 3852(CA). See also AG Taraba State V. Selihin Consult Ltd. (2016) LPELR - 40817 (CA). Having calmly considered the entire facts and circumstances of this appeal as regards the first hurdle ofextension of time sought by the Appellant and which was refused by the Court below, I find that on the affidavit evidence of the Appellants the case as presented by the Appellant even ontheir own does not disclose any good and sufficient reason worthy of inducing or invoking any belief in their case by this Court that would warrant the indulgence of an extension of timesought by the Appellants from the Court below. Thus, the Court below was right and on firmer ground when it refused the application filed by the Appellants for lacking in merit even onthis basis alone since in law without the extension of time first obtained, the issue of setting aside the judgment of the Court below does not arise for consideration. In coming to the abovefinding, I have borne in mind the need to do substantial justice at all time to the parties, yet I find the reasons proffered by the Appellants as not only trifling but also constituting no reasonat all. It rather merely, as vehemently and rightly contended by the Respondent's Counsel and as rightly found by the Court below, showed the gross lack of interest or lethargy of theAppellants on the one hand and the unmitigated tardiness of the Appellants' Counsel on the other hand to diligently pursue their application to set aside the judgment of the Court belowuntil about five years thereafter! In my view, an affidavit, as that of the Appellants, founded on such lackadaisical attitude and lack of seriousness is not worthy of and is incapable ofinvoking the exercise of the discretion of neither the Court below nor this Court. I consider it worthless and incapable of proving of any or all of the facts for which it was intended to prove.See Mokwe V. Ezeuko & Anor (2000) 14 NWLR (Pt. 686) 143 @ p. 155. My Lord, this is year 2018, that is about 26 years after the judgment sought to be set aside was delivered bythe Court below on 28/7/1992, and the parties are still at the very first stage of an application for extension of time by the Appellants to apply to set it aside. What a sadcommentary."Per GEORGEWILL, J.C.A. (Pp. 35-49, Paras. B-B) - read in context

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BIOBELE ABRAHAM GEORGEWILL, J.C.A. (Delivering

the Leading Judgment): This is an appeal against the

Ruling of the High Court of Lagos State, Ikeja Judicial

Division, Coram: O. A. Adefope - Okojie J., (as he then was)

in Suit No: ID/1649/1989: NAL Merchant Bank Limited

(now Sterling Bank Plc) V. Dele Afolabi & Brothers Nig. Ltd

& Anor., delivered on 28/2/2002 in which the Application by

the Appellants as Defendants/Applicants to set aside the

judgment of the Court below, Coram S. O. Adagun J.,

delivered on 28/7/92 in favor of the Respondent as

Claimant was refused and dismissed.

The Appellants were peeved with the said ruling and had

promptly appealed to this Court vide their notice of appeal

filed on 1/3/2002 on five grounds @ pages 115 - 117 of the

record of appeal. The Record of Appeal was duly

transmitted to this Court. Subsequently an additional

record of appeal was also transmitted to this Court. The

Appellants’ brief was settled by Ayoola Orobowale Esq.,

and filed on 17/1/2007 but deemed as properly filed on

18/1/2007. The Respondents’ brief was settled by Sunday

Edward Esq. , and filed on 16/4/2010.

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At the hearing of this appeal on 2/10/2018, both parties,

though duly served with hearing notices on 12/9/2018,

were absent and were also not represented by Counsel. The

briefs already filed were thus deemed argued and judgment

reserved.

By a Writ of Summons and Statement of Claim filed on

7/11/1989, the Respondent, as Claimant, instituted an

action against the Appellants, as Defendants, jointly and

severally, claiming the sum of N3, 665, 07 1.15 and

interests at the rate of 26.5% from 1/10/1989 until the debt

is finally paid up. See pages 1 - 5 of the Record of Appeal.

BRIEF STATEMENT OF FACTS

The Respondent was the Claimant, then known as NAL

Merchant Bank Limited, before the Court below and

claimed against the Appellants as Defendants the sum of

N3, 665,071.15 being the principal sum and interests due

as at 30/9/1989 pursuant to their guarantee under an All

Assets Debenture Deed dated 1/9/1980. The case of the

Respondent in this appeal was that the Writ of Summons

and all other processes were duly served on the Appellants

but they failed or neglected to file a defense within the

period allowed by them under the applicable High Court of

Lagos State

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(Civil Procedure) Rules, 1972. Consequent upon this failure

the Respondent took out a Motion for judgment dated

30/7/1990 in default of appearance and/or defense, which

motion was fixed for hearing on 24/9/1990 but following the

absence of the Appellants and their Counsel, the Court

adjourned the motion till 12/11/1990 for hearing. On

12/11/1990, the matter could not go on and on 21/1/1991,

the law firm of S. A. Asagba & Co., entered an appearance

for the Appellants but failed to file any defense and it has

been so till date. Consequent upon the entry of appearance

by the Appellants, the Respondent filed a Summons for

final judgment dated 17/5/1991, which was fixed for

hearing on 17/6/1991. However, the hearing of the

Summons suffered several adjournments until 20/1/1992

when Hon Justice Adagun assumed the conduct of this case

following the transfer of Onalaja J., to the Lagos Judicial

Division. On the said 20/1/1992, Adagun J., declined to hear

the summons for final judgment even though neither the

Appellants nor their Counsel attended the Court below and

the case was adjourned to 27/1/1992, on which date the

Appellants were again absent in the Court

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below which reasoned that owing to the large sum

involved, the Respondent should call its witnesses to

establish the claim against the Appellants.

In spite of the hearing notice ordered by the Court below to

be issued on the Appellants, they and their Counsel were

again absent on 11/2/1992 and the Respondent’s Counsel

then undertook to write a letter informing the Appellants’

Counsel that the matter had been further adjourned to

4/3/1992 for trial, which letter was duly written on

12/3/1992 to the Appellants’ Counsel, endorsed by one Dan

Inyang, verified by an affidavit of service and a copy of

same was endorsed to the Court below. As characteristic of

the Appellant they and their Counsel were once again

absent in the Court below on 4/3/1992 and the Court below

being satisfied that they have been given ample opportunity

to defend the suit but have chosen not to do so, ordered the

Respondent to prove its case for which the Respondent

called one Mr. Adegbola Ayodele Badmus, a credit officer

with the Respondent Bank as its only witness and closed its

case on the same day and addressed the Court below and

judgment was reserved for 19/5/1992.

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However, on 19/5/1992, the Court below did not sit and the

suit was further adjourned to 28/5/1992 for judgment, on

which date the judgment was not ready and was further

adjourned to 30/6/1992 and subsequently to 28/7/1992

when it was eventually delivered. It was only after the

delivery of judgment by the Court below on 28/7/1992 that

the Appellants woke up from their slumber to file an

application in September, 1992 seeking to set aside the

judgment, which application was eventually struck out on

10/5/1993 for lack of diligent prosecution. The Appellants

filed series of other applications seeking the same relief of

setting aside the judgment but were all struck out for lack

of diligent proceedings. Subsequently, the Respondent filed

an application on 24/4/1995 for an order granting leave to

levy execution against the immovable property of the

Appellants, which was granted by the Court below on

22/5/1993. However, on 9/6/1995, the Appellants, vide an

ex-parte application, obtained an interim order of stay of

execution of the order granting leave to attach the

immoveable assets of the Appellants and filed a substantive

application on 8/6/1995 praying for

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an order setting aside the judgment of the Court below

delivered on 28/7/1992, which application was struck out

for lack of diligent prosecution. The Appellants thereafter

proceeded to file series of applications that were

consistently struck out by the Court below for want of

diligent prosecution until the Appellants’ application filed

on 4/3/1997 on which the parties joined issues and was

subsequently heard and dismissed by the Court below on

28/2/2002 for lacking in merit. See pages 1 - 6, 20 – 58,

61 - 64, 70 - 77, 90 - 95, 96 - 114, 122 - 128, 129 -

131, 135 -136, 140 - 141, 145 - 146, 159 – 161 of the

record of appeal. See also pages 1- 5 of the additional

record of appeal.

The Appellants were the Defendants before the Court

below and their case in this appeal is that the transactions

that led to the filing of the suit before the Court below was

a credit facility of N1,500,000.00 granted by the

Respondent to one DAB Industries (Nig.) Ltd in 1980 and

under and by virtue of a Deed of Debenture dated 1/9/1980

the Appellants guaranteed the credit facility in favor of the

said company. However, at the maturity of the facility DAB

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Industries Nig. Ltd was unable to repay the loan and a

Receiver was appointed by the Respondent in 1985 to take

over the business and the assets and to sell them to realize

the money owed to the Respondent. The Receiver did so

and in February 1996 sold the assets of DAB Industries

Nig. Ltd for an undervalued price of N1, 600, 000. 00,

though the assets were worth over N10,000,000.00. On

7/11/89, the Respondent took out a Writ of Summons

against the Appellants as the Guarantors of DAB Industries

Nig. Ltd., claiming the sum of N3, 665 071.15 being the

whole of the money purportedly owed to the Respondent by

the said debtor Company without disclosing that the

principal sum of N1,500,000.00 and interest in the sum of

N100,000.00 had already been repaid by DAB Industries

Nig. Ltd., its assets having been sold by the Receiver

appointed by the Respondent for the sum of N1,600 000.00

in February 1996. The Respondent’s claim did not disclose

what was claimed for by the Respondent and that was what

DAB Industries owed to the Respondent, which balance

could not in any way be determined on the face of the

processes filed by the Respondent.

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By a Summons for judgment, the Respondent sought to

obtain a summary judgment against the Appellants, which

was sought to be moved by Counsel for the Respondent but

he could not do so as the Court below ordered the

Respondent to prove its case by oral evidence, which trial

took place on 4/3/92 with the Respondent calling only one

witness in the absence of the Appellants. At the end of trial

that day the case was adjourned to 15/4/1992 for address,

on which date the Counsel for the Respondent addressed

the Court below and the case was adjourned to 19/5/92 for

judgment. However, on 19/5/92 the judgment was not

delivered and there is no record of what transpired in Court

below on that day but on 28/7/92, the judgment was

delivered, vide a ruling, against the Appellants in favor of

the Respondent based on the Summons for judgment,

which had been abandoned or over - taken by the order of

Court below for oral trial made on 27/1/92.

The Appellants were not served with hearing notice of the

abandoned Summons for judgment, which also had no

arguments in support before the judgment was delivered.

The Appellants were dissatisfied with the ruling/judgment

and thereafter filled series

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of motions to get it set aside. However, eventually the last

motion filed by the Appellants on 4/3/97 was heard on merit

and in its considered ruling delivered on 28/2/2002 the

Court below dismissed the Appellants’ motion and thus

refused to set aside the said judgment despite the

admission by the Respondent in paragraph 35(d) of its

counter - affidavit that the principal sum of N 1,500, 000.00

and interest of N100, 000.00 had been repaid to the

Respondent by DAF Industries Nig. Ltd. The Appellants

were dissatisfied with the ruling of the Court below

delivered on 28/2/2002, hence the appeal to this Court. See

pages 1- 5, 6 -58, 115 – 117, 125, 126 - 128, 129 -130 and

131 - 134 of the record of appeal.

ISSUES FOR DETERMINATION

In the Appellants’ brief, two issues were distilled as arising

for determination in this appeal from the five grounds of

appeal, namely:

1. Whether the judgment of S.O. Adagun J., delivered

on 28/9/1992 sought to be set aside by the

Defendants/Appellants via their Motion dated 4/3/97

ought not to have been set aside in the Ruling

appealed herein and dated 28/2/2002 when the

Plaintiff/Respondent

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admitted by its deposition in its Counter Affidavit

filed against the Appellant’s said Motion dated 4/3/97

that the amount of money for which it got the said

judgment of 28/7/92 was more than the amount of the

money the Defendants may owe to it?

2. Whether the lower Court ought not to have set

aside the judgment of S.O. Adigun (J) dated 28/7/92 in

its ruling appealed herein and dated 28/2/2002 when

it is clear from the record that the Lower Court

lacked Jurisdiction to grant the Summons for

judgment filed on 17/5/91 by the Plaintiff against the

Defendants?

In the Respondent’s brief, two issues were also distilled as

arising for determination in this appeal namely:

1. Whether Hon Justice Adefope - Okojie ought to

have set aside the judgment of Hon Justice S. O.

Adagun (Rtd) delivered on 28/7/1992?

2. Whether the refusal to set aside the said judgment

of Hon Justice Adagun by Hon Justice Adefope -

Okojie amounts to miscarriage of justice?

My Lords, I have given due considerations to the fact and

circumstances leading to this appeal. I have perused both

the Appellants’ application and supporting affidavit as

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Defendants/Applicant seeking to set aside the judgment of

the Court below and the counter affidavit of the

Respondent as Claimant. I have also calmly reviewed the

judgment of the Court below in the light of the complaints

of the Appellants and considered the submissions of

Counsel in their respective briefs and upon an anxious

consideration of all the above, I am of the view that the only

pertinent issue for determination in this appeal is issue

two, to be slightly modified to make it more precise, as

distilled in the Appellants’ brief. It is my view that a

consideration of this sole issue would invariably involve a

consideration of additional issue one in the Appellants’

brief as well as the two issues as distilled in the

Respondent’s brief.

SOLE ISSUE

Whether the Court below ought not to have set aside

the judgment of S.O. Adigun (J) delivered on 28/7/92

for want of jurisdiction and the amount entered as

judgment being in excess of the debt that may have

been owed the Respondent by the Appellants?

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APPELLANTS’ COUNSEL SUBMISSIONS

On his issue one, learned Counsel for the Appellants had

submitted that in the application to set aside the judgment

of the Court below the Respondent by its counter affidavit

confessed that the original debtor company, one DAB

Industries Nigeria Ltd., could have already repaid both the

principal sum and interest to the Respondent and

contended that in the circumstances the Respondent had

got judgment for a higher sum of money than what the

Appellants as guarantors could have owed to the

Respondent, if any after the payment of N1, 6000,000.00

and urged the Court to hold that from the conduct of the

Respondent it knew it was no longer being owed or it was

being owed a lesser amount by the Appellants but had

fraudulently misrepresented the facts to the Court below to

obtained amount either no longer due to it or about what is

due to it.

It was further submitted that in view of the conduct of the

Respondent in not disclosing that the Appellants’ Principal

had paid or part paid the debt but still went ahead to get

judgment for the whole sum without any deduction makes

the judgment obtained on 28/7/92 against the Appellants by

the Respondent to be a judgment obtained with false

misrepresentation of facts and fraud and thereby

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rendering it to be fraudulent and thus liable to be set aside.

Counsel relied on Okoye V. NC & F Co. Ltd (1991) 6

NWLR (Pt. 199) 501 @ pp. 547-543.

It was also submitted that but for the misrepresentation

and fraud perpetrated by the Respondent in obtaining the

judgment sought to be set aside it was most likely that the

Respondent would not have any claim against the

Appellants and contended that in law where the

misrepresentation or fraud by which a judgment is obtained

has a direct bearing on the judgment, such a judgment will

be set aside and urged the Court to allow the appeal, set

aside the ruling of 28/2/2002 of the Court below and to

proceed to set aside the judgment of 28/7/1992. Counsel

relied on Olufunmise V. Falana (1990) 3 NWLR (Pt.

136)1 @ p. 13.

It was also further submitted that had the Court below

taken into consideration the deposition of the both the

Appellants and the Respondent about the payment of the

total debt due by the principal debtor, it would have found

that the Respondent misrepresented the facts as to the

amount owed by the Appellants and contended that with

such payment already made to the Respondent there was

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no likelihood that the Appellants still owed the Respondent

and urged the Court to so hold and to set aside the ruling of

the Court below refusing to set aside its earlier judgment

and to proceed to set aside the said judgment for having

been obtained by fraud.

On his issue two, learned Counsel for the Appellants had

submitted from the records of proceedings before the Court

below it was clear that the Respondent’s summons for

judgment was abandoned for oral trial on the order of the

Court below made on 27/1/1992, which trial opened and

concluded with on 4/3/92 and final address taken on

15/4/92 and contended that in the circumstances the Court

below can only deliver judgment based on the oral evidence

of the Respondent and no longer on the Respondent’s

abandoned summons as was done by the Court below by its

ruling delivered on 28/7/92 and urged the Court to hold

that in the circumstances the Court below per S.O. Adagun

J., being functus officio with the order for trial by oral

evidence still in force had no power, having not considered

the summons for judgment, to enter judgment on the

abandoned summons for judgment. Counsel relied on

Megwalu V. Megwalu (1996) 2 NWLR (Pt. 428) 104 @

p. 120.

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It was further submitted that the decision of the Court

below to consider the summons for judgment and

eventually entering judgment based on the summons for

judgment was an exercise without jurisdiction and

contended that in law where there is a defect in

competence to adjudicate on a matter, such defect is fatal

to the proceedings and will render the proceedings,

however, well conducted and decided they may be, a nullity

and urged the Court to hold the judgment of the Court

below was a nullity and therefore, liable to be set aside.

Counsel relied on Sanusi V. Ayoola (1992) 9 NWLR (Pt.

265) 275 @ p. 301.

It was also submitted that the Appellants were neither

aware nor given notice of the decision of the Court below

per Adagun J., to reverse its earlier order for oral trial in

the said Order and that the summons for judgment would

be heard on 28/7/92 and contended that such a notice was

important as the Appellants could not, under any stretch of

imagination, expect the Court below to reverse its earlier

decision and urged the Court to hold that the Court below

per Adefope - Okojie J., was in grave

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error when it held that the Appellants had notices of the

proceedings of the Court below and were obliged to be

diligent in making enquiries, which they made but to no

avail, to know the progress in the case and to set aside

such erroneous findings.

It was also further submitted that from the circumstances

surrounding the order for the abandonment of the

summons for judgment, the taking of oral evidence and

delivery of judgment on the abandoned summons for

judgment, without any record of how and when the case

was adjourned to 28/7/92 for judgment, the proof of service

of the summons for judgment and hearing notice of the

proceedings of 4/3/92 are not of any relevance in the

consideration of the Appellants’ Motion of 4/3/97 to set

aside the judgment of 28/7/92 and contended that the Court

below was therefore, in error when it took such wrong

factors into consideration in reaching its decision to refuse

to set aside the null judgment of the Court below and urged

the Court to allow the appeal and set aside the ruling of the

Court below refusing to set aside the judgment of

28/7/1992 and to set same aside for being a nullity. Counsel

relied on Eboh V. Ogbu (1994) 5 NWLR (Pt. 347) 703

@ p. 715.

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It was also submitted that the Appellants having not been

given notice of the hearing of the summons for judgment

which suo motu formed the basis of the judgment it

amounted in law to good reason why they were not in Court

when the summons for judgment was heard and

determined without any opportunity given to them to be

present at the said proceedings and contended that in the

absence of both any date for the hearing of the summons

for judgment and no record of hearing the summons for

judgment, the judgment delivered during the vacation of

the Court below on 28/7/1992 on the summons for

judgment was a nullity and ought to be set aside and urged

the Court to set same aside. Counsel referred to Order 48

Rule 5 (2) of the High Court of Lagos State Civil

Procedure Rules 1972 and relied on Okubre V. Ibanga

(1990) 6 NWLR (Pt. 154) 1 @ pp. 16 – 17; SGB (Nig)

Ltd V. Awaye Motors (1992) 4 NWLR (Pt. 234) 231 @

p. 102; Udogu V. Egwuatu (1994) 3 NWLR (Pt. 330

120 @ p. 120.

It was further submitted that in law a Court has no power

to base its decision on an abandoned process and

contended that any such decision

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is a nullity and liable to be set aside and urged the Court to

hold that the Appellants satisfied all the conditions in law

for the setting aside of a judgment entered without

jurisdiction and to so set aside the judgment of the Court

below based on the abandoned summons for judgment for

being a nullity and had occasioned a miscarriage of justice

to the Appellants. Counsel relied on Nwokoro V. Onuma

(1990) 3 NWLR (Pt. 136) 22 @ pp. 32 – 33; Egbuziem

V. NRC (1994) 3 NWLR (Pt. 330) 23 @ p. 33; Okoye V.

NC & Co. Ltd (1991) 6 NWLR (Pt. 199) 550 @ pp. 547

– 548; N. A. Williams V. Hope Rising Voluntary Funds

Society (1982) 1 - 2 SC 145; Sanusi V. Ayoola (1992) 9

NWLR (Pt. 265)1.

RESPONDENT’S COUNSEL SUBMISSIONS

On his issue one, learned Counsel for the Respondent had

submitted that the Appellants were most lethargic in the

proceedings of the Court below right from the inception of

the case, service on them of the processes, hearing notices,

several adjournments, and the hearing of the case leading

to the delivery of judgment by the Court below by their

permanent non appearance in the proceedings of the Court

below and contended that

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the Appellants having been given all opportunity to

participate in the proceedings but having refused to take

advantage of the opportunity, the Appellants despite their

fraudulent attempt at removing the judgment of the Court

below from the case file failed to make out any reason why

the judgment of the Court below entered a trial should be

set aside and urged the Court to hold that the Court below

was right when it refused the application to set aside the

said judgment and to dismiss the appeal for lacking in

merit. Counsel relied on Egemasi V. Onyekwere (1983)

All NLR 543 @ p. 545.

It was further submitted that the finding by the Court

below that the Appellants and their Counsel were given due

hearing notices but on their own volition chose to absent

themselves cannot be heard to complain was correct going

by the record of proceedings and the antecedents of the

Appellants before the Court below and contended that as

rightly observed by the Court below the documents relied

on by the Respondent at the trial of this case were those

referred to in both the Statement of Claim and the Affidavit

in Support of the Summons for Judgment and urged the

Court to

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hold that in the circumstances, the Appellants could not

have been and were not prejudiced in any way as the

judgment of the Court below whether based on the

Summons for judgment or on the evidence at the trial,

would still have been in favor of the Respondent and urged

the Court to so hold as correctly held by the Court below.

It was also submitted that even if the judgment of the Court

below per Adagun J., was based on the Summons for

Judgment, instead of being based on the trial of 4/3/1992,

the judgment having been entered pursuant to the

provisions of Summary Judgment of the Court below would

amount to a final judgment on the merit which the

Appellants should have appealed against within the time

allowed by law and not to have merely applied to set aside

a final judgment and urged the Court to hold that the

application brought more than the six days allowed by the

Rules of the Court below and without any good and valid

reason for the delay lacked merit and was rightly dismissed

by the Court below and to dismiss the appeal and affirm the

ruling of the Court below. Counsel referred to Order 10 of

the High Court of Lagos State (Civil Procedure)

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Rules 1972, now Order 11 High Court of Lagos State

(Civil Procedure) Rules 2004 and relied on UTC V.

Pamotei (1989) 2 NWLR (Pt. 103) 244 @ p. 283; UBA

V. Taan (1993) 4 NWLR (Pt. 287) 368; Ogbuanyiya V.

Okudo (1990)4 NWLR (Pt. 146) 551 @ p. 570.

On his issue two, learned Counsel for the Respondent had

submitted that on the unchallenged facts in the affidavit of

both parties it is clear that the issue of misrepresentation

and fraud being raised by the Appellants in this appeal are

new issues which were never canvassed by the Appellants

before the Court below and contended that in law the prior

leave of this Court is a condition precedent to raising such

fresh issues and having not done so the new issues are

rendered incompetent and liable to be discountenance by

this Court and urged the Court to so hold and to dismiss

the appeal for lacking in merit. Counsel relied on

Gbadamosi V. Dairo (2007) 3 NWLR (Pt. 1021) 282 @

p. 304.

It was further submitted that in the entirety of paragraph

35 of the Respondent’s counter affidavit there was nowhere

there was any admission that the Appellants are no longer

owing the Respondent but rather it was clear

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from the pleadings that as at 30/9/1989 the Appellants

were jointly and severally owing the Respondent the sum of

N3, 665,071.15 plus interests at the rate of 26.5% from

1/10/1989 and contended that by paragraph 35(d) it was

made clear that only the sum of N1,600,000.00 has been

recovered there from, till date and urged the Court to hold

that on the face of the outstanding sums still due from the

Appellants to the Respondent, the contention by the

Appellant that the Respondent admitted that they were no

longer indebted to it was baseless and rightly rejected by

the Court below and urged the Court to hold that the

dismissal of the Appellants’ application even on this ground

was correct and should be affirmed.

It was also submitted that on the state of the affidavit

evidence of the parties in the Appellants’ application to set

aside the judgment of the Court below it was clear that the

Appellants failed to fulfill the conditions laid down by the

Supreme Court for a successful application to set aside a

judgment and contended that these condition were

applicable to the Appellants’ application as no issue of lack

of jurisdiction was made out by the

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Appellant and these conditions having not been made out

the Court below per Adefope - Okojie J., was right to have

refused and dismissed the Appellants’ application to set

aside the judgment of Adagun J., and to dismiss the appeal

there being also no iota of any miscarriage of justice shown

by the Appellants. Counsel relied on N. A. Williams V.

Hope Rising & Voluntary Fund Society (1982) 1 - 2 SC

140 @ p. 160; Sanusi V. Ayoola (1992) 9 NWLR (Pt.

165) 275 @ p. 279; Uwakwe V. Odogwu (1989) 5

NWLR (Pt. 123) 562 @ p. 589; Re: Manchester &

Milford Railway (1880) CH.D 645 @ p. 653; General

Oil Ltd.V. Oduntan (1990) 7 NWLR (Pt. 163) 423 @ p.

438.

RESOLUTION OF SOLE ISSUE

My Lords, the crux of this issue is twofold, namely: a.

whether the Appellants made out their case for extension of

time within which they were to apply to set aside the

judgment of the Court below and in the said application

proffered good reason why the judgment ought to have

been set aside by the Court below and b. whether the Court

was right when it held that the Appellant failed to make out

any case for the setting aside of the judgment of the Court

below

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and that a refusal of their application would not in any way

occasion any miscarriage of justice to the Appellant?

A consideration of these two key issues under the sole issue

for determination would require a calm review of the

totality of the affidavit evidence of the parties in the

application to set aside the judgment of the Court below,

the entire proceedings leading to the delivery of the

judgment sought to be set aside and the findings of the

Court below per Adefope - Okojie J., in the ruling delivered

on 28/2/2002 refusing the application of the Appellants to

set aside the judgment of the Court below per Adagun J.,

delivered on 28/7/1992.

Now, the Appellants had by a Motion on Notice filed on

4/3/1997 before the Court below sought the following

reliefs:

1. Leave to apply for extension of time to set aside the

judgment of the Hon Court delivered on 28/7/1992.

2. All order of stay of execution of the said judgment.

3. All order discharged the order of the Hon Court

at taching the movable propert ies o f the

Defendants/Applicants.

4. An order setting aside the judgment obtained from

the Hon Court on the 28/7/1992.

See page 61 of the record of appeal.

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The application was supported by an affidavit of 35

paragraphs deposed to by one Dele Afolabi, stating inter

alia as follows:

2. That this suit was originally before Hon. Justice

Onalaja at the Ikeja High Court.

3. That when Justice Onalaja was transferred to the

Lagos High Court I made enquiries at the Ikeja High

Court Registry and was told to re-assignment.

4. That I was told by my solicitors and I verily believe

them that it is customary to issue Hearing Notice to

the parties on the re-assignment of matters in such

circumstance.

5. That no hearing was served on me or my solicitors.

6. That I was informed by my solicitors and verily

believe them that they were not aware that the matter

was to be heard on 28/7/1992.

7. That the said 28/7/1992 was during the annual

vacation of the Courts.

8. That sometimes in 1979 DAB Industries Nigeria

Limited (the Borrower Company) applied for a loan of

N1.5 Million from the plaintiff/Respondent for the

purposes of its business of manufacturing toiletries.

The said application is hereby annexed and marked

bit ‘A’.

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21. That I was aware of the judgment sometimes in

August 1992 and immediately instructed my

solicitors, S.A. Asagba & Co., to bring an application

to set aside the judgment and the said application 4th

September 1992 was duly filed on 7th September

1992. The said application is hereby attached and

marked Exhibit ‘C’.

22. That as a result of my solicitor’s incapacity and or

ill - health occasioned by old age the said application

was not pursued diligently whereupon I decided to

engage a new solicitor, B. O Bayowa Esq.

23. That consequent upon the foregoing my new

solicitor caused to be filed a new application to set

aside the judgment which application is dated

8/6/1995

26. That the delay in the prosecution of this matter

was as a result of continuing exploration of peaceful

settlement by both parties.

29. That the plaintiff’s action is in absolute bad faith

as it has no claim against the 1st and 2nd defendants

having WAIVED same by its sale of all the properties

of the Borrower Company and which sale is a set off

against all indebtedness to the plaintiff.

30. That my solicitors have already filed a defense

dated 2nd December and the same is hereby annexed

and marked Exhibit ‘E’.

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33. That the sum now claimed and on which judgment

was entered has been calculated at an interest rate

far above the 10% per annum agreed upon as per

paragraph 9 of the All Assets Debenture. See pages 62

- 64 of record of appeal.

In opposition, the Respondent filed a counter affidavit of

45paragraphs deposed to by one Toyin Peter, stating inter

alia as follows:

6. That the Writ of Summons and Statement of Claim

in this suit were filed on 7/11/l989 and served on the

Defendants on 21/2/1990.

7. That the Defendants neither filed a Memorandum

of Appearance nor Statement of Defense.

8. That on 30/7/1990, the Plaintiff/Respondent filed a

Motion for final judgment which was slated for

hearing on 24/9/1990.

9. That the Defendant/Applicants were absent on

24/9/1990 and the matter was adjourned to

12/11/1990 for arguments.

10. That the Defendants/Applicants entered

appearance to suit through their Solicitors on

21/1/1991.

11. That since then the Defendants/Applicants failed

to file and serve their Statement of defense.

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12. That on 12/5/1991, the Plaintiff/Respondent took

out another motion in default of defense which was

slated for hearing on 17/6/1991

13. That the said motion suffered further

adjournments until 20/1/1992.

14. That it was only on the adjourned date on

20/1/l992 that we became aware of the transfer of the

Hon Justice Onalaja, who was presiding over the case

and the assumption of the conduct of this matter by

Hon Justice S.O. Adagun sitting in the same Court

hall, and the matter was then adjourned to 27/1/1992

and hearing notices ordered to be issued.

15. That on 27/1/1992, the Court declined to hear this

Plaintiffs application for final judgment even though

neither the Defendants nor their counsel attended

Court. The matter was consequently adjourned to

11/2/1992 for the Plaintiff to prove its case.

16. That on 11/2/1992, the Defendant and his counsel

were yet absent in Court as a result of which the

matter was further adjourned 4/3/1992. The Plaintiffs

Solicitor undertook to inform the Defendants’

solicitors of the adjournment and did so by their

letter dated 12/2/1992, a copy of which was endorsed

to this Hon Court. The acknowledgment copy of the

said

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letter is now shown to me, annexed herewith and

marked Exhibit “A”.

17. That on 4/3/1992, the Defendants and their

counsel were characteristically absent from Court

despite the Hearing Notices issued to them and the

Solicitors letter informing them of the trial date. The

Court being satisfied that the Defendants had been

given ample opportunity to defend this matter

ordered the Plaintiff to prove its case on the merits.

18. That between the commencement of this action

on 7/11/1989 and judgment on 28/7/1992, the

Plaintiff never applied for extension of time to file

their Defense in this suit.

19. That the Plaintiff witness testified on 4/3/1992

while its counsel addressed Court on 15/4/1992 and

judgment was delivered on 28/7/1992.

20 That the judgment in this Suit was regularly

entered against the Defendants.

21. That the application to set aside the judgment in

this suit was brought outside the six days allowed by

the Rules of this Hon Court.

22. That the Defendants/Applicants have not given

any or sufficient reason(s) for the delay of over four

years in bringing this application.

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40. That paragraphs 26 and 27 of the Affidavit in

support of Motion are false, no series of meeting were

held between the parties with a view to settling the

matter amicably as alleged or at all.

41. That there cannot be settlement of a judgment

which the Defendants refuse to accept and are taking

steps to discharge and/or set aside.

42. That since this suit was instituted, the Defendants

have employed all manner of delay tactics to frustrate

the Plaintiff’s bank from recovering its debt.

43. That as a manifest show of bad faith and a desire

to delay justice and frustrate the Plaintiff/Bank, the

Defendants Motion on Notice dated 26/6/1995 and

fixed for hearing on 27/6/1995, was only served on the

served on the Plaintiffs solicitors on 27/71995, a day

after the hearing date and the Defendants had

secured a long adjournment to 6/11/1995 behind the

Plaintiff. See pages 65 - 69 of record of appeal.

The Respondents had in paragraphs 24 - 35 catalogued the

series of adjournments, all at the instance of the Appellants

and the debts still owed and to the Respondent from the

Appellants.

30

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It was on the strength of the above facts amongst other

facts and the record of the proceedings leading to the

judgment of 28/7/1992 that the Court below per Adefope -

Okojie J., (as he then was) had in its ruling delivered on

28/2/2002 dismissing the application of the Appellants to

set aside the judgment, held inter alia thus:

“…I find that from the records, notification was

brought to the notice of the Defendants, through

their counsel, of the proceedings before the Court,

both of the Summons on Notice, and the hearing of

the suit. I thus resolve this issue in favor of the

Respondents. The next issue to be determined is

whether it was necessary for notice to have been

issued to the Defendants informing them of the

reassignment of the case before another judge…In the

present case as aforesaid, both the Writ of Summons

and Statement of Claim had been served. The

Defendants had entered appearance. Service had been

effected of both the Summons for judgment and

notice of hearing of the suit. To none of these did the

Defendants respond…They were also served with the

hearing notice on 18/2/92 against hearing scheduled

for 4/3/92. No counter affidavit was filed. No

appearance was made by them or counsel on 4/3/92.

31

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CA)

No enquiries were made of the progress of the case

on that date or subsequent adjournments, until

judgment was delivered, on 28/7/92. The business of

counsel is to keep themselves abreast of business of

the Courts….He should have enquired, I hold. I

accordingly hold that sufficient notice of the

pendency of the proceedings was given to the

Defendants. Upon notification to them, it was for

counsel with reasonable diligence to have taken steps

to defend the action. He however did nothing. He

filed no papers to contest the action. The Defendant

cannot, I hold, be heard at this late stage to complain

that they were given no notice of the reassignment of

the case before another judge…The delivery of the

ruling during the Court’s vacation, if this indeed is

true, had been held by the Court of Appeal to

occasion no miscarriage of justice as there is no

further role that the parties are to play on the said

date…In addition, the Applicants, having failed to

attend Court, prior to the delivery of ruling, in spite

of notification to them, cannot I hold, be heard to

complain about what date ruling was delivered…In

the present case

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judgment was passed on 28/7/92. The present

application was filed on 4/3/97 viz five years after

judgment was delivered… In between the date of

judgment and the date of filing of the present

application the Applicants had filed four applications

to set aside the judgment. This thus is the 5th

application…On none of these dates did the

Defendants appear. Indeed they have never appeared

during these proceedings. The reason given by the

Applicants for their delay in “prosecution” of their

matter is their exploration of peaceful settlement…It

is clear from the foregoing that both the Applicants

and their Counsel have demonstrated the utmost

lethargy in the matter…. I do not believe that it would

serve the interest of justice to indulge the Defendants

who have demonstrated absolutely no interest in the

case. This case is now twelve years in Court,

prolonged unduly by the applicants…I do not consider

the Applicants’ actions as deserving of any

sympathetic consideration. Indeed as I have said this

is the 5th application by the applicants for this same

purpose. I, for all the reasons set out above refuse

the application of the defendants.” See pages 96 - 114

of the record of appeal.

33

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CA)

I shall for the sake of better appreciation and analysis,

reproduce hereunder the judgment delivered on 28/7/1992,

wherein the Court below per S. O. Adagun J., had held inter

alia as follows:

“The defendants had been served with all the

processes of this Court in response to this, their

solicitors Samuel A. Asagba filed Memorandum of

appearance dated 21/1/1991 ... It was due to the

failure of the defendants to file statement of defense

within the period limited by the rules of Court that

the plaintiff/Applicant to take out summons on

Notice…was served on the counsel for the defendant

on 17/5/1991 …Upon the perusal of the averments of

the statements of claim and thoroughly considered

the affidavit…I am in full support of the affidavit

evidence …that the 1st and 2nd defendants have no

defense whatsoever to this action…Having been

satisfied that the 1st and 2nd defendants are liable to

the plaintiff by signing and executing all assets

debentures dated 1/9/1980 in favor of the

plaintiff/Applicant, this Court will grant its leave to

34

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8) LP

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CA)

the Plaintiff/Applicant to enter final judgment against

the Defendants/Respondent in the sum of N3,

665,071.15 and interest therein at the rate of from

the 1/9/1989 until the judgment and final settlement

of the debt.” See pages 131 - 134 of the record of

appeal.

My Lords, looking at the reliefs claimed by the Appellants

as earlier set out in this judgment, but which reliefs were

denied them by the Court below, the Appellants had two

principal hurdles to cross in order for them to succeed in

the application, namely:

1. The reason (s) for the failure to apply to set aside the

judgment within time

2. The reason (s) why the judgment should be set aside.

Thus, no matter how good in law and on the facts why a

judgment ought to be set aside, including grounds of lack of

jurisdiction and or nullity, unless the application to set

aside the judgment was brought within time, otherwise

where there is not good reason(s) why the application to

set aside the judgment was not filed within time, the

application must fail. This is so because unless and until the

relief of extension of time is made out, even if in the same

application seeking to

35

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8) LP

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CA)

set aside the judgment, on good reason(s) explaining

sufficiently the delay in the application to set aside the

judgment, the issue of the good reason(s) why the judgment

should be set aside does not even arise for consideration.

So did the Appellants proffer good reason (s) explaining

satisfactorily why they did not apply within time and even

assuming they did show good reason(s) why they did not

apply for the setting aside within time, did they fulfill the

conditions precedent for the relief of setting aside of the

judgment of the Court below claimed by them? These two

questions are the epicenter of this appeal.

In law, an application for extension of time within which to

do or take a step or do something as required by law is one

seeking a discretional remedy and can only be obtained on

good and sufficient reason apparent in the materials

furnished before the Court by an Applicant disclosing

justifiable excuse for the delay. It follows therefore, that

the leave for extension of time is not be granted as a matter

of course. Consequently, where no such sufficient reason is

shown for the delay by an Applicant in an application for

extension of time

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CA)

then no such indulgence of an extension of time would be

granted. See Lawal V. UBN Plc. (2008) 12 NWLR (Pt.

1102) 704 @ p. 706. See also N. A. Williams V. Hope

Rising Voluntary Funds Society (1982) 1 SC 1 @ p.

135.

It is true in law that an Applicant for extension of time,

such as the Appellants, do not need a horde of reasons as

one solid good reason that is verified by credible evidence

placed before the Court would suffice. Thus, the law seems

fairly settled that once good and sufficient reason has been

proffered by an Applicant for an extension of time to

explain and justify or excuse the delay in applying within

the time as allowed by law, the issue of the length of time

would not be allowed to be a clog in the wheel of doing

substantial justice to the parties. See Ogundimu V.

Kasunmu (2006) All FWLR (Pt. 326) 201 @ pp. 215 –

216.

I am aware that in law an exercise of discretion, though not

subject to so much hard and fast rules or fettering or else it

loose its salt of being a discretion and it is best served

unfettered, an exercise of discretion must be founded on

justice, fairness and law and not on the whims and caprice

of the Court

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with scant or no regards to the facts of the case. See

University of Lagos V. Aigoro (1985) 1 NWLR (Pt. 1)

143. See also Aboseldehyde Lab. Plc. V. U. M. B. Ltd.

(2013) 13 NWLR (Pt. 1370) 91 @ pp. 97 – 98; Aroh V.

PDP (2013) 13 NWLR (Pt. 1371) 235; Thimnu V. UBN

Plc. & Ors. (2013) LPELR 22127 (CA) @ pp. 20 – 21;

Abiodun V. CJ, Kwara State (2007) 18 NWLR (pt.

1065) 109 @ p. 152; Adeniji V. Adeniji (2013) 15

NWLR (Pt. 1376) 102 @ p. 125.

In E. F. P. C Ltd. V. NDIC. (2007) All FWLR (Pt. 367)

793 @ pp. 825 – 826, the trite position of the law on the

exercise of discretion by the Courts in application for

extension of time to appeal was so poignantly put in its

proper context by Niki Tobi JSC, (God bless his soul) inter

alia thus:

"An application for extension of time ... involves so

much of discretionary power of the Court hearing the

appeal. Where the discretion is exercised judicially

and judiciously, the Supreme Court has no

jurisdiction to question a discretion which is

exercised judicially and judiciously.”

In the ruling of the Court below several findings of fact of

service of the originating processes,

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summons for judgment and hearing notices were made

against the Appellant but the Appellants, going by the

issues for determination as distilled in the Appellants’ brief,

appears not to have any issue with those findings and I take

it that the issue of service of these vital processes of the

Court below are taken as non issue in this appeal. The

parties are therefore, bound by those findings. See Owners

of MV. Arabella V. NAIC (2008) 4 - 5 SC (Pt. 11) 189

@ p. 217. See also Dabo V. Abdullahi (2005) 7 NWLR

(Pt. 923) 181; Leventis Technical V. Petro Jessica

Enterprises (1999) 6 NWLR (Pt. 605) 45.

My Lords, had the real crux of the issues in contention

been whether or not service of originating processes and or

hearing notices were effected on a party as required by

law, even the appearance of counsel would not be

tantamount to proof of service as would satisfy the

fundamental prerequisite of service in law. Thus, whenever

service is in issue, in law it could be proved in any of the

following ways, namely: a; by endorsement by the party or

his legal practitioner acknowledging receipt of the Court

processes, b: By affidavit of service by the Bailiff who

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effected the service and c: By order of substituted service

duly complied with.

In Mark V. Eke (2004) 1 SC (Pt. 11) 1 @ p. 19, the

Supreme Court per Musdapher JSC, had held inter alia

thus:

“Where a process has been served it is necessary for

the Court to have before it evidence of that facts

service of the process, especially the originating

process, is an essential condition or the Court to have

the competence or the jurisdiction to entertain the

matter. Further, failure to comply with this condition

would render the whole proceedings including the

judgment entered, and all subsequent proceedings

based therein, wholly irregular, null and void. That is

why the proof of the service of the process Oil a

Defendant is very fundamental to the issue of the

jurisdiction and competence of the Court to

adjudicate.”

The above position of the law, on the indispensability of

service of Court processes, was most succinctly

pronounced upon by the apex Court in Societe Generale

Bank (Nig) Ltd. V. Adewunmi (2003) FWLR (Pt 158)

1081 @p. 1196, where the Supreme Court per Musdapher

JSC., puts the issue succinctly inter alia thus:

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"Under our adversary system of jurisprudence, to hear

a case without one of the parties having been served

with the necessary process except in a proper ex-parte

proceeding would render the trial a nullity as service

of the Court's process is basic and indispensable to

any adjudication. Failure to serve the Court processes

robs the trial Court of the jurisdiction and

competence to deal with the matter. The issue of

service is basically a matter of fact while its effect is

an issue of law.”

See also FBN Plc. V. TSA Ind. Ltd. (2010) 4 - 7 SC. (Pt.

1) 242.

My Lords, in law circumstances abound when a Court can

legitimately set aside its own judgment without being

accused of sitting on appeal over its judgment. These

circumstances include, but are not limited to the

followings, namely;

1. When the judgment is obtained by fraud or deceit

or misrepresentation either on the Court or one or

more of the parties.

2. When the judgment is a nullity.

3. When it is obvious that the Court was misled into

giving judgment under a mistaken belief that the

parties consented to it and

4. When the judgment is given in absence of

jurisdiction or when the

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procedure adopted was such as to deprive the

decision or judgment of the character of a legitimate

adjudication.

See Igwe V. Kalu (2002) 14 NWLR (Pt. 787) @pp. 435

- 453.

I have taken a calm look at the entirety of the 35

paragraphs affidavit evidence of the Appellants showing

the reason for the delay in applying for the setting aside of

the judgment of the Court below and it is simply that there

were moves to settle the matter through series of meetings

between the parties and peripherally also the mistake of

their former Counsel. The Respondent denied these

depositions by the Appellants. The pertinent question is

simply whether or not the reasons proffered by the

Appellants amounted in law to good and substantial

reasons to justify and or excuse for their failure to apply

within time for the setting aside of the judgment of the

Court below?

It is of common ground that the Appellants had only but six

days from the date of delivery of the judgment of the Court

below per Adagun J., on 28/7/1882 within which to apply to

set aside the said judgment but failed to file a valid

application to do so until the application was filed on

4/3/1997, that

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is five years after the judgment sought to be set aside was

delivered. In the ruling appealed against, the Court below

found as fact that the length of time was inordinate and

that the Appellants were most lethargic in their attitude

towards the entire proceedings before the Court below

having failed, neglected and or refused to make use of all

the several opportunities afforded them by the Court below

to participate in the proceedings to put their own side of

the case before the Court below in the suit instituted

against them by the Respondent all but to no avail. It ought

therefore, to be pointed out at once that in law once a party

has been given the due opportunity by a Court to present

his own side of the story but he refuses, fails or neglects to

do so, then not only can he not be heard subsequently to

complain about not being heard but the case presented by

the party who participated at the proceedings is the case to

be considered on the merit by the Court, attended the

proceedings is the case to be considered on the merit. See

Military Governor of Lagos State V. Adeyiga (2012)

LPELR - 7836(SC0 @ pp. 29-30 per Adekeye JSC.

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See also MTN Nig Communications Ltd V. Mundra

Ventres Nig. Ltd (2016) LPELR – 40343 (CA) @ PP. 32

- 33 per Georgewill JCA.

Having dispassionately considered the reasons proffered by

the Appellants in their affidavit evidence, the response by

the Respondent in its counter affidavit evidence, the finding

of facts of the Court below in the ruling appealed against

and the submissions of Counsel in their respective briefs, I

am truly satisfied and I so hold that the Court below was

right when it held that the reason proffered by the

Appellants for the inordinate length of time of delay before

the filing of the application to set aside the judgment of the

Court below was not only lame but no reasons at all as

would have warranted any reasonable Tribunal, worth it

name, to exercise its discretion in favour of the Appellant to

grant them the indulgence of an extension of time of about

five years to enable them apply to set aside the judgment of

the Court below delivered about five years ago at the time

of the filing of the application to set it aside. In law once no

justifiable reason is proffered for the delay, whether

inordinate or not, no indulgence of an extension of

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time would be granted. However, conversely once a good

reason just i fy ing the delay is proffered, then

notwithstanding the length of time, the indulgence of an

extension of time must be granted. See N. A. Williams V.

Hope Rising Voluntary Funds Society (1982) 1 SC 1 @

p. 135. See also Lawal V. UBN Plc. (2008) 12 NWLR

(Pt. 1102) 704 @ p. 706; Ogundimu V. Kasunmu (

2006) All FWLR (Pt. 326) 201 @ pp. 215 - 216.

The Appellants had also relied on the old age and attendant

incapacity of their former Counsel as reason for their

lethargic prosecution of the earlier applications and the

resultant delays in the filing of their application of 4/3/1997

to set aside the judgment of the Court below after about

five years of the delivery of the judgment by the Court

below.

Interestingly, nowadays inadvertence, or now the strange

one here old age and attendant incapacity, of Counsel has

become the panacea to cover multitudes of alleged sins of

Counsel in order to sway the Court to granting reliefs

sought. I have already alluded to the inordinate delay

between the time the judgment of the Court below

delivered on 28/7/1992 and the filing of the application to

set it

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aside by the Appellants on 4/3/1997. This is however, not to

say that notwithstanding the length of delay, if reasonable

and sufficient reason is adduced for the delay by the

Appellant a Court of law, which is as well a Court of justice,

would not favorably consider such an Application, yet is the

duty to find out the progress, if any, being made to a

litigant’s case that of only the Counsel, old or young,

vibrant or feeble? I think not.

In all the reasons proffered in the Affidavit in support, no

reason was given as to why the Appellants did absolutely

nothing to find out the progress or status of their own case.

In my view, there is a corresponding duty on a diligent

litigant, desirous of having his case to be prosecuted

diligently, to make contact with the Counsel so retained

and or the Registry of the Court below to know the

progress, position or status of the case. Therefore, litigants,

such as the Appellants, who woefully failed or neglected or

refused to do so cannot in my view be allowed in law to

turn round to absolve themselves and heap all the blames

on “mistake” or “sin” of their old and feeble Counsel in

order

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to have their way through their application before the

Court below, and having failed there, now before this

Court. The law does not and cannot just work that way! I

find no mistake or inadvertence of Counsel either by reason

of old age and or attendant incapacity or ill health. These

allegations, not even supported by any iota of evidence in

proof thereof, remained unproved. See Bank of the North

Ltd V. Ismaila Yusuf (2010) LPELR - 3852 (CA). See

also AG Taraba State V. Selihin Consult Ltd.(2016)

LPELR - 40817 (CA).

Having calmly considered the entire facts and

circumstances of this appeal as regards the first hurdle of

extension of time sought by the Appellant and which was

refused by the Court below, I find that on the affidavit

evidence of the Appellants the case as presented by the

Appellant even on their own does not disclose any good and

sufficient reason worthy of inducing or invoking any belief

in their case by this Court that would warrant the

indulgence of an extension of time sought by the Appellants

from the Court below. Thus, the Court below was right and

on firmer ground when it refused the application filed by

the Appellants for lacking in

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8) LP

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merit even on this basis alone since in law without the

extension of time first obtained, the issue of setting aside

the judgment of the Court below does not arise for

consideration.

In coming to the above finding, I have borne in mind the

need to do substantial justice at all time to the parties, yet I

find the reasons proffered by the Appellants as not only

trifling but also constituting no reason at all. It rather

merely, as vehemently and rightly contended by the

Respondent’s Counsel and as rightly found by the Court

below, showed the gross lack of interest or lethargy of the

Appellants on the one hand and the unmitigated tardiness

of the Appellants’ Counsel on the other hand to diligently

pursue their application to set aside the judgment of the

Court below until about five years thereafter! In my view,

an affidavit, as that of the Appellants, founded on such

lackadaisical attitude and lack of seriousness is not worthy

of and is incapable of invoking the exercise of the

discretion of neither the Court below nor this Court. I

consider it worthless and incapable of proving of any or all

of the facts for which it was intended to prove. See Mokwe

V. Ezeuko & Anor (2000) 14 NWLR (Pt. 686) 143 @ p.

155.

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8) LP

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My Lord, this is year 2018, that is about 26 years after the

judgment sought to be set aside was delivered by the Court

below on 28/7/1992, and the parties are still at the very

first stage of an application for extension of time by the

Appellants to apply to set it aside. What a sad commentary!

Having found as above that the relief of extension of time to

apply to set aside the judgment of the Court below was not

made out by the Appellants that ought to be the end of this

appeal since without an extension of time, a precondition in

the in the circumstances of the relief for setting aside made

five years after the delivery of the judgment sought to be

set aside, the relief of setting aside becomes dead on

arrival. However, being the penultimate Court in the land

enjoined to consider all proper issues submitted before it

by the parties, I shall proceed to consider and resolve,

albeit briefly, the issue of the relief of setting aside of the

judgment of the Court below to determine whether or not

the Appellants made out a case for the setting aside of the

judgment of the Court below.

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Now, in an application to set aside the judgment of a Court

made to the Court that delivered the judgment, an

applicant, such as the Appellants must by credible evidence

put forward by them satisfy the Court of the following

conditions, namely;

1. The Applicant must adduce good reasons for being

absent at the hearing

2. He must show that he has good reasons for his

delay in bringing the application; whether there was

undue delay in bringing this application so as to

prejudice the party in whose favor the judgment

persists.

3. The Respondent will not be prejudiced or

embarrassed if the order for rehearing was made.

4. The Applicants case was not manifestly

unsupportable

5. The Applicant’s conduct throughout proceedings is

deserving of sympathetic consideration.

See N. A. Williams V. Hope Rising Voluntary Funds

Society (Supra) @ p. 145. See also Sanusi V. Ayoola

(1992) 9 NWLR (Pt. 165) 275 @ p. 279.

Going by the 35 paragraphs affidavit in support of the

application by the Appellants to set aside the judgment of

the Court below, as in the printed record, they seem to rely

on four grounds, namely; that they were not

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CA)

notified of the reassignment of the case form Onalaja J., to

Adagun J.; that the judgment was delivered during the

vacation period of the Court below; that the Respondent

had by paragraph 35 of its counter affidavit admitted that

the entire debt plus accrued interest had been repaid by

the principal of the Appellants and therefore, the

Appellants were not in any way indebted any longer to the

Respondent and finally that the judgment was entered

pursuant to the abandoned summons for judgment rather

than on the trial in which the Respondent led evidence as

ordered by the Court below. I intend to consider all these

grounds but not in any particular order.

In considering the issue of notification of reassignment of

the case, I must point it out at once that it has been found

by the Court below, a finding against which there is no

contention and which I have also affirmed earlier in this

judgment, that the Appellants were lethargic in their

attitude towards the proceedings leading to the judgment

of the Court below delivered on 28/7/1992. Now, these are

parties to a suit sued as Defendants and duly served with

the originating processes, summons for judgment

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8) LP

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CA)

and who had retained the services of a Counsel to enter

appearance for them, which appearance was duly entered

for them. However, that was all they consider it worthy to

do in the entire proceedings. They never filed their defense

or counter affidavit to the summons for judgment. They

never appeared in Court on any date for the case until the

matter was reassigned from Onalaja J., (as he then was) to

Adagun J., (now retired). They still did nothing. In the

circumstances can they be heard to complain that they

were not notified of the reassignment of the case to Adagun

J? I think not! See John V. Blakk (1988) 1NWLR (Pt. 72)

648 @ p. 653, where this Court per Kolawole JCA., had

considered it “an act of gross negligence” for the failure of

the Appellants to check on their Counsel from 12/1/1987 to

12/1/1988, a period of one year, to ascertain if necessary

steps had been taken by the Counsel to comply with the

rules of Court. It is even worse in the circumstances of the

present appeal.

It is my view therefore, that every party, to a suit including

his Counsel if he has one, is obliged to keep tabs with the

preliminary pretrial procedures including

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assignment and reassignment of their cases. They cannot

being aware of their case pending in the Court fold their

arms akimbo and do nothing to check at the Registry of the

Court the progress in term of pretrial matters in their case

and wait for service of hearing notice from the Court for a

matter not yet due for hearing and which as the name

implies, hearing notice, would not be suitable to be served

on a party over preliminary pretrial matters, such as

assignment or reassignment of a case, which a simple visit

to the Registry would reveal to the party. See Ama v. Obabi

Olorunkosi (1986) 12 NWLR (Pt. 22) 316 at p. 329

where this Court per Kolawole JCA had stated inter alia

thus:

“My understanding of the rules is that after the

preliminaries before matter is read for hearing

namely: service of the Writ, entry of appearance and

the issues of Summons for Directions, legal

practitioners are obliged to keep themselves informed

of the business of the Courts. Thus it is inexcusable

for any legal practitioner to pretend that he did not

know when his case came up in any Court."

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8) LP

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In respect of the delivery of the judgment during the

vacation period, it was argued for the Appellants that it was

delivered during the vacation period of the Court below and

was therefore, a nullity. It is one thing to make all and any

allegations a party may want to make in a case but quite

another thing altogether to prove such allegation and the

onus is on the party who makes every positive allegation of

facts unless it was admitted by the other party, and there is

no initial burden of proof on the other party who merely

denies such positive allegation of facts since in law a

negative assertion is ordinarily incapable of poof. See

Elemo V. Omolade & Ors. (1968) NMLR 359; Atane V.

Amu (1974) 10 SC 237; Fashanu V. Adekoya (1974) 6

SC 83; Kate Enterprises Ltd. V Daewoo Nig Ltd.

(1985) 2 NWLR (Pt. 116); Onyenge V. Ebere 18

NSCQR (Pt.)

There was therefore, no burden on the Respondent to prove

that 28/7/1992 on which date the judgment of the Court

below sought to be set aside was delivered was during the

vacation period of the Court below as that is for the

Appellants who had so alleged to prove. So, did the

Appellants prove that the 28/7/1992 was a vacation period

of the Court below? I think not! In the entire proceedings,

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they never tendered any evidence showing the sitting

calendar of the Court below for the year 1992 to

substantiate their allegation. To find this allegation as

proved fact without such vital evidence would be as good as

indulging in mere surmise and or conjectures, which a

Court of law has no business to indulge in. The duty of the

Court is to decide issues on the facts as established before

them by evidence and on the law. This is so because a

Court is only but a Court of law and fact. It must therefore,

at all times avoid relying on conjectures or mere surmise or

sympathy and or glorifying mere speculations without any

hard concrete evidence in proof thereof. See lsah V. State

(2007) 12 NWLR (Pt. 1049) 582 @ p. 614, where it was

held inter alia thus:

“A trial Court must not base its decision on

speculation and extraneous matters not supported by

the evidence before the Court as this will occasion

miscarriage of justice. In other words, the Court’s

finding must be supported by concrete and real

evidence and not speculation.”

See also Ejezie V. Anuwu (2008) 12 NWLR (Pt. 1101)

446 @ p. 490, where the Supreme Court made it

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abundantly and succinctly clear and with finality inter alia

thus:

“A Court has no jurisdiction to speculate on

conjecture. A Court must confine itself to the

evidence before it and give judgment on the

evidence.”

See further Agip (Nig.) Ltd. V. Agip Petroli Int’l (2010)

5 NWLR (Pt. 1187) 348 @ p. 413; ACB Plc. V.

Emostrade Ltd. (2002) 8 NWLR (Pt. 770) 501.

I find therefore as fact, as was also rightly found by the

Court below, that the Appellants failed to prove that

28/7/1992 was a vacation period of the Court below. At any

rate even if it had been shown that 28/7/1992 was a

vacation period of the Court below, it is the law that in so

far as all that took place in that date before the Court

below was the mere delivery of the judgment, it would be of

no moment once no miscarriage of justice ensued and

would not by the reason of that alone render the judgment

of the Court below a nullity, contrary to the vehement but

baseless contentions of the Appellants in this appeal. This

is so because there is really no further role for the parties

to play on a date judgment it is delivered except to say ‘as

it pleases the

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Court even when perhaps deep down it might have

displeased of the parties sorely. See Veritas Insurance

Co. Ltd V. Cititrust Investment Ltd. (1993) 3 NWLR

(Pt. 281) 349 @ pp. 368 - 370.

In General Oil Ltd. V Oduntan (1990) 7 NWLR (Pt.

163) 423 @ p. 433 this Court per Niki Tobi JCA (as he

then was but later JSC and now resting in peace) puts it so

poetically inter alia thus:

“It is not the duty of the Court to wake up an

Applicant who has slept all the way and is enjoying his

deep sleep to the extent that he does not care to know

the existence of his legal rights. He should be allowed

to enjoy his slumber. Equity will not wake him up and

since the Courts operate the principles of equity, they

will not wake him up.”

I now come to the ground of the alleged admission by the

Respondent that the entire money due to it from the

Appellants and their principal had been repaid by their

principal. The Appellants had relied heavily on paragraph

35 of the counter affidavit of the Respondent to contend

that the judgment was a nullity since the entire debt or

most of it sought to be recovered had already been paid to

the Respondent by their principal.

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To properly focus this consideration, I have taken the

liberty to reproduce the entire depositions in paragraphs

35(a) - (g) of the Respondent’s counter affidavit as follows:

35.

a. That the Defendants never approached him for any

accounts.

b. That he duly discharged his duties as Receiver in

accordance with law and made periodic returns to the

Registrar of Companies.

c. That the landed property sold was that of DAB

Industries Limited (that is, the company under

Receivership).

d. That the assets sold were professionally valued by

Messrs Jide Taiwo & Co., as having a value of between

N1. 5m and N1.6m in September, 1985 whilst the

assets were actually sold for N1.6m in February,

1986. A copy of the Valuer’s letter dated 19th

September, 1985 is now shown to me, annexed

herewith and marked Exhibit “B”.

e. That the sale was made to the highest bidder after

the property was advertised in three National

Newspapers, viz. The Guardian of November 1, 1985.

The Business Times of November 4, 1985 and the New

Nigerian Newspapers of November 7, 1985. Cuttings

of the newspaper aforesaid are now

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shown to me, annexed herewith and marked Exhibits

“C, “Cl” and “C2”.

f. That he personally informed Mr. Dele Afolabi of the

sale price at a meeting held on 6th February, 1986.

g. That the Defendants conveyed their acceptance to

the transfer of the interest of the 1st Defendant

company in the landed property to the new purchaser

vide their letters dated 28th April, 1986. Copies of the

said letters are shown to me and marked Exhibits “D”

and “Dl”.”

See pages 65 - 69 of the record of appeal.

Honestly, having calmly looked at the above depositions

and considered the entirety of the case as presented by the

Respondent, which is that some recovery has been made

through the instrumentality of a ‘Receiver’, who in law has

no authority unless he was also appointed as a ‘Manager’ to

carry on a going concern since his duty is simply to stop the

business, collect the debts and realize the assets; See

Uwakwe V. Odogwu (1989) 5 NWLR (Pt. 123) 562 @ p.

589; Re Manchester & Milford Railway (1880) CH.D

645 @ p. 653, appointed for that purpose but that there

are still

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outstanding sums due to the Respondent which the

property of the principal realized was unable to satisfy, I

cannot see how these depositions could be taken to amount

to an admission by the Respondent that the entire debt due

to it from the Appellants and their principal had been

repaid as contended by the Appellants.

On the fourth grounds as to whether the judgment of the

Court below was based on the summons for judgment or on

the trial ordered by the Court below, I have considered the

facts and circumstances considered by the Court below and

its finding thereon that it was of no moment and did not in

any way occasion any miscarriage of justice on the

Appellants, and having myself considered the entire

circumstances, facts and proceedings leading to the

judgment of the Court below delivered on 28/7/1992

together with the submissions of Counsel in this appeal, I

am satisfied that the Court below was correct in its ruling

that the judgment sought to be set aside did not occasion

any miscarriage of justice to the Appellants in the face of

the overwhelming unchallenged affidavit and oral evidence.

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My Lords, this is one ruling of the Court below, per

Adefope - Okojie J., (as he then was now JCA) going by the

profound statements of the law and rich analysis contained

therein on all the issues as joined by the parties that I

needed to talk so very less since the Court below has said

all the right things and found all the correct facts and thus

had covered the field on these issues leaving nothing to

chance. Indeed, the only option ever open or available to an

appellate Court where the findings of the lower Court is

correct is to affirm and stand by it and not to set aside the

correct findings and this is so even where the appellate

Court finds that the reason leading to the correct finding is

wrong. Once an appellate Court finds that the conclusion

reached by a trial Court is correct, it has no duty to

interfere. This is so because an appellate Court is not so

much concerned with the correctness or wrongness of the

reasons adduced by a trial Court for its decisions or

conclusions but rather more concerned with whether the

decision reached or conclusion arrived at was correct or

wrong. See Alhaji Ndayako & Ors. v. Alhaji Dantoro &

Ors. (2004) 13 NWLR (Pt. 889) 187 @ p. 198. See also

Abaye V. Ofili (1986) 1 NWLR (Pt. 15) 134; Ukejianya

V. Uchendu 18 WACA 46.

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Thus, the duty of an appellate Court to interfere will arise

only where the finding, conclusion and or decision of the

lower Court is wrong and or perverse. In law, a finding or

conclusion of a Court is perverse when such finding does

not flow from the proved evidence or was arrived at

wrongly or was anchored on extraneous matters. In all such

circumstances an appellate Court will interfere to set it

aside and make appropriate finding as justified and borne

out by the evidence in the printed record of appeal. See

Sogbamu V. Odunaiya (2013) All FWLR (Pt. 700) 1247

@ p. 1307. See also Matanmi & Ors V. Victoria Dada &

Anor (2013) WRN 1 @ P. 19; Chief Odofin V. Isaac

Ayoola (1984) 11 SC 72; Nwosu V. Board of Custom &

Excise (1988) 5 NWLR (Pt. 93) 22; Nneji V. Chukwu

(1996) 10 NWLR (Pt. 378) 265; Obajimi V. Adeobi

(2008) 3 NWLR (Pt. 1075) 1 @ p. 19; Owor V.

Christopher (2010) All FWLR (Pt. 511) 962 @ p. 992;

Mini Lodge Ltd. V. Ngei (2010) All FWLR (Pt. 506)

1806 @ pp. 1820 – 1821.

In the circumstances, therefore, the Court below per

Adefope - Okojie J., having made the correct findings and

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reached the correct conclusion on the affidavit, counter

affidavit of the parties and the record of the Court below in

the Appellants’ application to set aside the judgment of the

Court below per Adagun J., there is no reason for this Court

to interfere with those correct findings and conclusions.

Consequently, the sole issue is hereby resolved against the

Appellants in favor of the Respondent. This appeal is thus

bereft of any merit and is therefore, liable to be dismissed.

Consequently, it is hereby so dismissed.

In the result, the Ruling of the High Court of Lagos State,

Ikeja Judicial Division, Coram. O. A. Adefope - Okojie J., (as

he then was) in Suit No: ID/1649/1989: NAL Merchant

Bank Limited (now Sterling Bank Plc) V. Dele Afolabi &

Brothers Nig. Ltd & Anor., delivered on 28/2/2002 in which

the Application by the Appellants as Defendants/Applicants

to set aside the judgment of the Court below, Coram S. O.

Adagun J., delivered on 28/7/92 in favor of the Respondent

as Claimant was refused and dismissed is hereby affirmed.

There shall be no order as to cost.

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JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree with

the exhaustive judgment prepared by my learned BiobeIe

Abraham Georgewill, J.C.A., which I had the honour of

reading in print with nothing useful to add.

UGOCHUKWU ANTHONY OGAKWU, J.C.A.: My learned

brother, Biobele Abraham Georgewill, JCA, made available

to me the draft of the leading judgment which has just been

delivered.

In his characteristic sapience he has considered and

resolved every question, latent and patent, involved in the

appeal. I adopt the reasoning and conclusion in the leading

judgment as mine, with nothing more to add.

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Appearances:

Both parties, though duly served with hearingnotices on 12/9/2018, were absent and were alsonot represented by CounselFor Appellant(s)

Both parties, though duly served with hearingnotices on 12/9/2018, were absent and were alsonot represented by CounselFor Respondent(s)

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(2018) lpelr-46546(ca)

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