IN THE COURT OF APPEAL OF NIGERIA
On Tuesday, the 15th day of April, 2014
ARIK AIR LIMITED ................. Appellant
MR. CHRIS EKEMEZIE .............. Respondent
Mr. A. B. Ogunsusi for Appellant
Mr. I. Okeke for Respondent
JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the Leading Judgment):
The refusal of the Federal High Court sitting in Lagos (the court below) to grant an application to set aside its judgment given in default of appearance/defence against the appellant in favour of the respondent brought about the appeal.
It is sufficient to state briefly such of the facts as are immediately relevant to the issues to be determined in the appeal in this vein. The respondent sued the appellant at the court below for breach of contract of carriage by air. The appellant did not enter appearance nor filed defence to the action. The respondent moved the court below for judgment in default of appearance and defence. The court below granted the application and entered judgment in the sum of N2,038,000.00 in favour of the respondent against the appellant for breach of contract.
The appellant applied to the court below to set aside the said judgment. In a considered Ruling the court below refused the application on the ground that the appellant who was to apply for the indulgence within 14 days of the delivery of the judgment sought to be set aside had applied for it 22 days outside the statutory period for an application to set aside judgment without requesting for a prayer for an for extension of time in motion paper to cover the extra time in question.
Arising from the said Ruling, the appellant filed a notice of appeal with three grounds of appeal on 04.07.13. In a brief of argument filed on 07.08.13, the appellant distilled these issues (unedited) for determination-
(i) Whether omission of the Appellant to comply with Order 8 Rule 9 Federal High Court (Civil Procedure) Rules 2009 affects the merit the Appellant's application to set aside the default judgment of the lower court dated 11/1/2013 which ground for setting aside is primarily and fundamentally hinged on the non service of motion on notice for judgment and hearing notices (Ground B Notice of Appeal).
(ii) Whether failure to serve the appellant hearing notice and the motion on notice for judgment dated 1/11/2012 renders the judgment and subsequent proceedings thereon a nullity (Ground B, Notice of Appeal).
(iii) Whether the lower court has jurisdiction to hear and determine the right of Appellant in the suit on a motion on notice for judgment in default of appearance and defence which was proved not served on the Appellant (Ground C, Notice of Appeal)
(ii) Whether the Appellant's constitutional right to fair hearing was not altogether denied and violated by the failure to serve on Appellant hearing notices and motion on notice for judgment in default of appearance and defence, subsequent judgment entered thereon and the lower court's refusal to set aside same in its ruling of 25/6/2013 (Ground C, Notice of Appeal)."
After quoting in extenso the portion of the Ruling of the court below in pages 80-82 of the record refusing the application to set aside its judgment on the grounds that the application was brought outside the 14 days prescribed by Order 8 rule 9 of the Federal High Court (Civil Procedure) Rules 2009 (the Rules of the court below) and the failure to attach to the application treasury receipt showing payment of penalty for the period of default and the absence of a defence to the claim, the appellant argued first issue that the court below was wrong to rely on the case of Sanusi V. Ayoola (1992) 9 NWLR (Pt. 265) 275 to refuse the application when the case is distinguishable from the present case on the premise that in that case the applicant was served hearing notice of the impending judgment but neglected to react to the pending process, while in the instant case the appellant had not been served hearing notice to put it on notice of the pending action which proceeded to judgment in her absence; that the substance of the application at the court below was on the jurisdiction and competence of the court below to determine the action without first serving hearing notice on the appellant; that the bringing of the application under a wrong rule of court ought not to deprive the appellant of the remedy due to her under the relevant enactment; and that the appellant had complied substantially with Order 14 rule 10 of the Rules of the court below which supersedes Order 8 rule 9 thereof by showing that she was not served the hearing notice for the case at the court below before it was heard to the pronouncement of judgment in her absence, and that if the court below had applied its relevant Rules to arrive at justice in the matter it would have acceded to the application of the appellant vide the cases of Duke V. Akpabuyo Local Government (2005) 12 S.C. (Pt. 1) 1 at 3, Sosanya V. Onadeko (2005) 2 S. C. (Pt. 11) 13 at 39 - 40, Teno Engineering Ltd. V. Adisa (2005) 3 - 4 S.C. 8.
The case of Wema Bank and Ors. V. Odulaja and Ors. (2000) 3 S.C. 83 at 87, Ogundoyin and Ors. V. Adeyemi (2001) 7 S.C. (Pt. 11) 98 at 107 - 109, Auto Import and Export V. Adebayo and Ors. (2002) 12 S.C. (Pt. 1) 158 at 168 - 170, Order 23 rule 11 and Order 26 rule 7(1) of the Rules of the court below and section 36 of the Constitution of the Federal Republic of Nigeria 1999, as altered, (1999 Constitution) were referred to by the appellant for the submission that the failure to serve the appellant hearing notice for the motion for default judgment at the court below and the subsequent determination of the suit against the appellant on the said motion when she was not put on notice of it offended the appellant's right to fair hearing and impinged on the jurisdiction of the court below to determine the suit and rendered the judgment arrived there at a nullity; consequently the appeal should be allowed and the judgment as well as the Ruling of the court below refusing to set aside the default judgment be set aside and the case remitted to the court below for hearing.
The respondent's brief of argument dated. 15.0.10, but filed on 27.09.13, highlighted two issues for determination as follows-
"3.1 Whether this appeal is competent.
3.2 Whether the Lower court was right in refusing to set aside its judgment".
The respondent's brief alluded to the cases of Arowolo v. Adesina (2011) All FWLR (Pt. 564) 143 at 154, Fadlallah v. Nigerian American Merchant Bank Limited (2007) All FWLR (Pt. 385) 530 at 551 and Afrotec v. Mia (2001) 1 M.J.S.C.37 to contend that the appellant was wrong to derive four issues out of the three grounds of appeal contrary to established practice that issues for determination in an appeal should not exceed the grounds of appeal and that the proliferation of issues by the appellant in the appeal renders the appeal incompetent.
The respondent's brief also contended on preliminary platform that the grounds of appeal in question are not founded on the ratio decidendi of the judgment appealed against, and that the court below having based its decision on the non compliance of the appellant with the requirements of Order 8 rule 9 of the Rules of the court below upon which it placed reliance on the case of Federal Polytechnic Idah v. Onoja (2012) 12 NWLR (Pt.1313) 72 at 92 - 93 to dismiss the application to set aside its judgment, the argument of the appellant based on the issues for determination that strayed outside the said ratio decidendi should not be countenanced vide the cases of Mere v. Obi (2008) All FWLR (Pt. 426) 1956, Prince Bassey Adam 111 v. Okoho (2008) All FWLR (Pt. 415) 1732 at 1746.
The respondent's brief pointed out that the prayers in the application at the court below were for the setting aside of the judgment of the court below given in default of the appellant's appearance and defence to the action and for an order for extension of time for the appellant to enter appearance and to file her statement of defence which was brought under Order 8 rule 9 of the Rules of the court below and that the appellant's failure to comply with the requirements of the said Rule of court in terms of nonpayment of the penalty of 200 per day for the default prescribed by Order 7 rule 3 of the Rules of the court below plus the failure of the appellant to exhibit the defence to the action in the application as well as the absence of explanation by the appellant for the lapse of time in bringing the application were, according to the respondent, rightly relied upon by the court below to refuse the application vide the cases of I.F.A. International Ltd. v. Liberty Merchant Bank Plc (2005) All FWLR (Pt.265) 1141, Ogidi v. State (2005) All FWLR (Pt. 251) 202 at 207; Williams v. Hope Rising Voluntary Fund Society (2001) 34 WRN 1, A.S.T.C. v. Quorum Consortium Ltd. (2009) All FWLR (Pt. 474) 1444 at 1470, Sanusi v. Ayoola (1992) 9 NWLR (Pt. 265) 275.
The respondent's brief also contended that in respect of the case of Teno Engineering Ltd. v. Adisa (supra), the applicant had brought the application within time which was not the case in the present appeal, which distinguished that case on the facts from the present and that Rules of court must be obeyed; consequently, the appellant who flouted the Rules of the court below had her application rightly dismissed by the court below, therefore the appeal should be dismissed and the Ruling of the court below affirmed.
The appellant's reply brief dated 15.10.13, but filed on 17.10.13 addressed the preliminary complaint of proliferation of issues for determination to the effect that assuming without conceding that the proliferation of issues offends brief writing the remedy is not the striking out of the appeal on ground of incompetence but to realign or reduce the issues to tally with the grounds of appeal vide the cases of Olatunde and Anor. v. Abidogun and Anor. (2001) 12 S.C. (Pt. 1) 123 at 126, Nwankwo and Ors. v. Yar'Adua and Ors. (2010) 3 - 5 S.C. (Pt. 111) 1 at 19, Akpan v. Bob and Ors. (2010) 4 - 7 S. C. (Pt. 11) 57 at 102 to 103, Adike v. Obiareri (2002) 18 WRN 24 at 34.
The reply brief stated that the grounds of appeal emerged from the consideration of Order 8 rule 9 and Order 14 rule 10 of the Rules of the court below by the said court in relation to the motion on notice to set aside the default judgment, which are competent grounds of appeal vide the cases of Akpan v. Bob (supra) at 94 - 95, Metal Construction (West Africa) Ltd. v. Megliore and Ors. in Re - Miss C. Ogundare (1990) 2 S.C. 33 or (1990) ANLR 142 at 148; and that substantial justice in contra-distinction to technicalities is now the hallmark of administration of justice vide Dakolo v. Dakolo (2011) 6 - 7 S. C. (Pt. 111) 104 at 138, upon which the appellant urged that the appeal, being competent, should be determined on the merits.
The preliminary issues would be attended to anon. The grounds of appeal are a hotchpotch of complaints against the ruling of the court below plus the procedure under which the application was launched at the court below as well as the procedure under which the ruling was determined alongside the extrinsic factor of jurisdiction which make the said complaints competent grounds of appeal following the case of Akpan V. Bob (supra) at 94 - 95 where it was held per the lead judgment of Muhammad, J.S.C., that-
".....a ground of Appeal can arise in a number of situations such as the following
(a) from the text of the decision appealed against (ipsissma verba);
(b) from the procedure under which the claim was initiated;
(c) from the procedure under which the decision was rendered; or
(d) from other extrinsic factors such as issue of Jurisdiction of a court from which the Appeal emanates;
(e) from commission or omissions by the court from which an Appeal emanated in either refusing to do what it ought to do or doing what it ought not to do or even in overdoing the act complained of" (my emphasis).
See also Metal Construction (West Africa) Ltd. v. Migliore and Ors. (supra).
Proliferation of issues in a brief renders it objectionable. In the instant case the four issues formulated by the appellant are more than the three grounds of appeal which is bad. However, the solution is to trim down the issues to marry with the grounds of appeal, not to strike out the appeal. For it was held in the case of Adike V. Obiareri (2002) 4 NWLR (Pt. 758) 537 at 560 that-
"However, in view of the Supreme Court's decision in Obiora v. Osele (1989) 1 NWLR (Pt. 97) 279, that a bad, faulty or inelegant brief does not cease to be a brief it is left for me to examine as best as I can the synopsis of complaints by the learned counsel that are presented as issues for determination. To this end, since both learned counsel persisted in the same error I am left with no choice than to realign the issues for determination formulated by the appellant. See Labiyi v. Anretiola (1992) 8 NWLR (Pt. 258) 139, 159; and Aduku v. Adejoh (1994) 5 NWLR (Pt.346) 582, 594 - 595, bearing in mind the caution in Nwokoro v. Onuma (1990) 3 NWLR (Pt.136) 22, 35, against 'forcing issues down the parties' throats'."
See the host of cases cited by the appellant on the issue in the reply brief (supra).
Consequently, I think issues (i) and (ii) (supra) speak the same language and can be subsumed under to issue (i) supra; similarly issues (iii) and (iv) (supra) which are tied to the same ground C of the notice of appeal can be subsumed under issue (iii) (supra) thus leaving the appellant with issues (i) and (iii) (supra) with issue (iii) renumbered as issue (ii). The two objections in question, accordingly, lack substance and are hereby overruled. The appeal shall be considered on issues (i) and (ii) (supra) which embrace the respondent's two issue for determination and are in harmony with the grounds of appeal.
In order to have proper bearing of the appeal, it is necessary to look at the nature of the application at the court below that gave birth to the appeal. Page 35 of the record indicates the application was brought under Order 8 rule 9 and Order 14 rule 10 of the Rules of the court below read with section 36 of the 1999 Constitution, as altered, praying for
"(1) An order setting aside the ruling of this Honourable Court dated 11/2/2013 entering final judgment in favour of the plaintiff for Defendant/Applicant default in appearance and defense.
(2) An order extending time within which Defendant/Applicant may enter appearance and file its defence the time allowed under the rules of court having expired and for such further order as this Honourable Court may deem fit to make in the circumstance."
The reason for the prayers is contained in paragraphs 5 to 6 of the affidavit in page 38 of the record thus-
"(5) That no hearing notice was ever served on the Defendant/Applicant fixing a date for hearing of the plaintiff/Respondent motion for judgment.
(6) That the Defendant/Applicant was not served with any motion for judgment by the Plaintiff/Respondent."
Order 8 and 9 of the Rules of the court below provides-
"Where judgment is entered pursuant to the preceding rules of this order a judge may set aside or vary such judgment on just terms upon an application on notice by the defendant. The application shall be made within 14 days and it shall be accompanied with treasury receipt showing payment of penalty for the period of default and show a good defence to the claim and a just cause for the default."
Summarized, Order 8 rule 9 of the Rules of the court below has four requirements - that the application be brought within 14 days; that the application be accompanied with treasury receipt evidencing payment of penalty for the period of default; that good defence to the claim be attached to the application; and that just cause or explanation for the default be furnished by the applicant in the application.
In the case of Order 14 rule 10 of the Rules of the court below it provides that-
"Any judgment by default whether under this order or under any order of these Rules shall be final and remain valid and may only be set aside upon application to the Judge on grounds of fraud, non service or lack of jurisdiction upon such terms as the court may deem fit."
Again, summarised, Order 14 rule 10 of the Rule of the court below makes provision for any judgment of the court below to be set aside on three grounds - fraud; non service; lack of jurisdiction. Although the appellant double - pronged Order 8 rule 9 and Order 14 rule 10 of the Rule of the court below to make the application at the court below, at the end of the day the contest dovetailed into the consideration of Order 8 rule 9 of the Rules of the court below.
The appellant had 14 days to file the application after the decision of the court below was pronounced. The application was filed 22 days after the date of the said decision, showing the appellant was 8 days late in filing the said application. Evidently, the appellant did not establish at the court below that she had paid the requisite penalty for her default in applying within the requisite statutory period for the setting aside of the judgment of the court below.
Payment of court fees is considered very serious/fundamental. It is inextricably tied to the jurisdiction of the court. The failure of the appellant to pay requisite penalty for the period of default in bringing the application at the court below thus robbed the court below of the jurisdiction to entertain the said application. See Abia State Transport Corporation and Ors v. Quorum Consortium Ltd. (2009) 4 S.C.N.J. page 1, Onwugbufor and Ors. v. Okoye and Ors. (1996) 1 NWLR (Pt. 424) 258, Akpaji v. Udemba (2009) 2 - 3 SC (Pt. 11) 13, Okolo and Anor. v. Union Bank Plc (2004) 3 NWLR (Pt. 859) 87, and Anyanwoko V. Okoye and Ors (2010) 1 SC (Pt.11) 30.
There is also the threshold issue of time - bar. By Order 8 rule 9 of the Rules of the court below, the application should have been brought within 14 days. The appellant filed the application 22 days after the judgment sought to be set aside was pronounced. A prayer for extension of time was needed to be included among the prayers sought in the application to breathe life into the application.
The argument of the appellant that because she was not served the motion for judgment and was on that account unaware of the delivery of the judgment excused her from including a prayer for extension of time to bring the application is untenable. Because any party that is out of time in complying with Rules of court, whether the party was aware of the proceedings sought to be set aside or not must make a prayer for extension of the to comply with the Rule of Court in question a prayer in the application.
It is in the prayer for extension of time that the applicant would explain by affidavit in support of the application the reason(s) for bringing the application out of time See Commissioner of Police, Benue State v. Sunday Iheabe (1998) 11 NWLR (Pt. 575) 666 at 677 where the complaint of the appellant was on the non service of the hearing notice on him that led to the hearing and determination of the case in the absence of the appellant, but the Court (Abuja Division) held in the lead judgment prepared by Muntaka - Coomassie, J.C.A., (now J.S.C.) and concurred in by Kaigo and Ejiwunmi, J.J.C.A., that the appellant who was required by the Rules of Court applicable to the application to file the application within 6 days but chose to file it 9 months thereafter had the onus to explain the delay in filing the application within the 6 days prescribed by the relevant Rules of court in these words-
"It was clearly stated by the Supreme Court that before an application to set aside default judgment is competent the following ingredients must be present namely:-
(a) the applicant must not have appeared when judgment was delivered;
(b) the applicant must have made his application within six days of the delivery of the judgment or alternatively;
(c) the applicant must have applied for an extension of time for a longer period to make the application.
I refer to Sanusi v. Ayoola (1992) NWLR (Pt.265) 275 at 292 per Karibi-Whyte in which Order 32 rule 4 of the Lagos State (Civil Procedure) Rules 1972 which is in pari materia with Order 37 rule 9 of the Kogi State High Court (Civil Procedure) Rules (supra)."
A prayer for extension of time is thus imperative if the application is filed outside the statutory period. Because, as was held by the Supreme Court in Williams and Ors. V. Hope Rising Voluntary Funds Society (2001) 34 W.R.N. 171 at 177 if no excuse for bringing the application within time is not offered, no indulgence should be granted.
In conclusion, it appears certain to me that the threshold issues of non-payment of penalty fees and the non inclusion of a prayer for an extension of time in the application relate to the competence of the application which affected the jurisdiction of the court below to entertain the application which was not initiated in compliance with the condition precedent for the proper composition of the action vide the case of Madukolu v. Nkemdilim (1962) 2 SCNLR 341, and which should have entitled the court below to merely strike out the application.
Consequently, I would allow the appeal only on the final order given by the court below in its Ruling dismissing the application which I hereby set aside and substitute therefore an order striking out the application in question at the court below. Parties to bear their costs.
AMINA A. AUGIE, J.C.A.:
I read in draft the lead Judgment delivered by my learned brother, Ikyegh, JCA, and I agree with his reasoning and conclusion. He dealt extensively with the issues canvassed in the appeal, and I will only stress the point made that in the circumstances of this case, the Appellant had to apply for extension of time - see Sanusi v. Ayoola (1992) 9 NWLR (Pt. 265) 275 SC, where Wali, JSC, stated
"In the present case, the normal statutory period having expired, the Appellant must apply for extension of time within which to make the Application no matter how strong his reasons are for non-appearance on the day the case was heard, resulting in giving the default judgment. In the present circumstances, it is the extension of time that would give the trial Court jurisdiction to hear and determine the merit of his application. There was no such application before the learned trial judge, even orally, that would have conferred on him the jurisdiction to hear the Application much less to talk of judicious exercise of his discretion. Extension of time to set aside a default Judgment is not an incidental order that the Court can make under the omnibus prayer. It must specifically be prayed for and granted".
There it is; a clear answer from the Supreme Court to the question before us. There was no Application for extension of time before the lower Court, and it is an Application for extension of time that would give it jurisdiction to hear the Application to set aside the default Judgment obtained against the Appellant. Thus, the failure to apply for extension of time was fatal, and the lower Court was absolutely in the right for refusing to set aside the said default Judgment.
In the circumstances, I also allow the appeal in part, and abide by the consequential orders in the lead Judgment, including the order on costs.
CHINWE EUGENIA IYIZOBA, J.C.A.:
I had the privilege of reading in advance the judgment just delivered by my learned brother IKYEGH JCA. I agree with my Lord's reasoning and conclusions. For the reasons His Lordship has ably set out in the lead judgment, I agree that the appeal should be allowed with respect to the final order dismissing the application. That part of the appeal is hereby allowed. I set aside the order and substitute therefore an order striking out the application. I abide by the order in the judgment as to costs.