➥ CASE SUMMARY OF:
Nigerian Yeastand Alcohol Manufacturing Co. Plc (In Liquidation), The Managing Director Ayodele Ogundele Esq. (Receiver/manager, Niyamco Plc) V. All Motors (Nig.) Plc (20 April 2011, CA/IL/M.9/2008)
by Branham Chima (LL.B.)
➥ SUBJECT MATTER(S)
Setting aside judgement;
➥ CASE FACT/HISTORY
This is an appeal against the decision of the Federal High Court, Ilorin Division, coram. Nnamani J. (of blessed memory) delivered on 27 October 2005 whereby the learned trial Judge refused to grant the following prayers, to wit, “(i) An order for extension of time within which to seek leave toset aside the default judgment obtained in this court by the plaintiff against the defendants/applicants dated 21 February 2005. An order setting aside the judgment of the honourable court granted on the basis of non-appearance of the defendants/ applicants and/or counsel dated 21 February 2005. An orderrelistingthe defendants/applicants’ noticesof intention to defend and the preliminary objection, hitherto struck out by this honourable court on 21 February 2005. below: And for such further order(s) as this honourable court may A deem fit to make in the circumstances of this case.”
The action was initiated by the respondent who supplied dried cassava chips of 376,640.51kg on three instalments to the 1st and 2nd appellants through sales invoices No: 01 of 07/01/98; and No.2 of 05/02/98 and No. 03 of 14/4/98. The total amount of the dried cassava chips supplied by the respondent to the 1st and 2nd appellants, less interest,amount to N6,388.047.88k (six milion,three hundred and eighty-eight thousand, forty-seven naira, eighty-eight kobo). Out of the above money for the supply of cassava chips, the 1st and 2nd appellants paid N1,000,000.00 (one million naira) in spite of repeated demands madeby the respondent. The 1st and 2nd appellants owed the respondent contract sum of more than N5,388.047.88k (five million, three hundred and eighty- eight thousand, forty-seven naira, eighty-eight kobo) less interest. It is to be noted that it is the agreement between the 1st and 2nd appellants and the respondent that cost of cassava chips shall attract 2.5% monthly interest after 30 days of delivery as contained in the invoice signed by the appellants and the respondent, and it is this interest that escalated the money to N13,398,121.96k (thirteen million, three hundred and ninety-eight thousand, one hundred and twenty-one naira, ninety-six kobo). See Pages 7, 8, 9, 10, 11 and 12 of the record of proceedings. The 1st appellant sometimes in 1999, wrote the respondent informing her that the 1st appellant is in liquidation and a receiver/manager in person of Hakeem Shittu Esq. of Wole Olanipekun’s chambers, 30 Tunde Idi-agbonRoad, Tanke,Ilorin which was later changed to Mr. Ayodele Ogundele also of Wole Olanipekun’s chambers, to take over the assets and liabilities of the company, has been appointed. This is contained in page 13 of the record of proceedings. The respondent made several demands for the payment of cassava chips supplied to the 1st and 2nd appellants and failed promises from the appellants and the complaint to the receiver/manager were not satisfied as contained in pages 29, 30, 31, 32, 33, 34, 35 and 36 of the record of proceedings. The 1st and 2nd appellants failed to pay for the cassava chips supplied to them by the respondent as a result of which the respondent instituted this action against the 1st and 2nd appellants and with the leave of the court, joined Ayodele Ogundele Esq. as the receiver/manager for the 1st appellant with the following relief in suit No. FHC/IL/CS/13/2003.
➥ ISSUE(S)
I. Whether or not the trial court abdicated its duties by failing to set aside the judgment of 21 February 2005 in the circumstances of this case?
II. Whether or not the lower court properly found that the appellants were served with the hearing notice for the proceedings of 21 February 2005?
III. Whether or not the learned trial Judge accused the counsel for the appellants of delay in applying for setting aside the judgment or decision dated 21 February 2005?
IV. Whether the trial court had jurisdiction over the suit?
➥ RESOLUTION(S) OF ISSUES
[APPEAL ]
↪️ ISSUE 1: IN RESPONDENT’S FAVOUR.
[THE APPELLANT DID NOT SATISFY THE REQUIREMENT TO HAVE THE JUDGEMENT SET ASIDE
‘Order 38, rule 9 of the Federal High Court (Civil Procedure) Rules, 2000 which provides as follows: “Any judgment obtained where one party does not appear at the trial may be set aside by the court upon such terms as may seen just, upon an application made within six days after the trial or within such longer period as the court may allow for good cause shown.”’
‘Now, as can be gleaned from the records of the trial court, though, judgment was delivered on 21 February 2005, the application to set the judgment aside was only filed on 15 July 2005 about 41⁄2 months after same had been delivered. That being the case, I hold with ease that the application was not brought within the time stipulated by Order 38, rule 9 of the Federal High Court (Civil Procedure) Rules, 2000. The above notwithstanding, a default judgment can be set aside when the five conditions set out by the apex court in the case of N. A. Williams and Anor. v. Hope Rising Voluntary Funds Society are met. The conditions so set out are: Whether the applicant has good reason for being absent. Applicant must show good reason for delay in bringing the application. Whether the respondent will be prejudiced or embarrassed if application for setting aside is made. Whether the applicant’s case is manifestly unsupportable. Whether the applicant’s conduct throughout the proceedings is deserving of sympathetic considerations.’
‘It is noteworthy to state at this juncture that all the five conditions stated supra must be met before an applicant can succeed in an application such as the one we have in hand. The question that is beggingfor an answer is this: can it be said from what transpired regarding the conduct of the appellants from the time the case was instituted to the time the application was filed that,they (appellants) have satisfied the conditions set out supra f or setting aside the judgment in question? To answerthis question,recourse had to be made towhat transpired at the lower court. Let me start with the excuse given by the appellants that they were only aware of the judgment of 21 February 2005 on 12 July 2005 when the respondent served them with the letter of demand of the judgment debt as contained in the affidavit of motion, paragraph 10 filed on 15 July 2005. (See pages 81 – 83 of the record of proceedings). This excuse, in my viewis an afterthought and cannot be true. This is so because the 3rd appellant and the appellants’ counsel, in his further affidavit deposed to personally, filed on 16 September 2005 in support of motion on notice for extension of time to seek leave to set aside the extant judgment averred thus: “I got to know that judgment was obtained in this case on 21 February 2005 against the defendants.” The averment reproduced above,sharply contradicted the assortation of the 3rd appellant, counsel to the appellants that, it was only when the letter of demand of the judgment was served on him, was the time that he knew that judgment was given in the extant case. I am of the considered view that the appellants must be consistent , forthright and forthcoming in presenting their case. They cannot approbate and reprobate at the same time. The law does not allow a litigant to change his colour like a chameleon. Atrial is not a fencing game of hide and seek, and neither is it a fencing game in which the appellants engaged themselves: Okon v. Ubi (2006) All FWLR (Pt. 328) 717 at 723 at 743, paragraph A and Afolabi v. Adekunle (1983) 2 SCNLR 141. That aside, can the appellants’ conduct throughout the proceedings , i.e. from the service of the writ upon them to the date of judgment has been such to make their application worthy of the sympathetic consideration?’
THE APPELLANT REFUSED TO DEFEND THE CASE; THEY WERE LACKADAISICAL
‘Needless to say, to answer this question recourse had to be made to the record of proceedings. A cursory look at the said record would reveal the fact that the appellants were served with the originating summons under the undefended list by substituted service as contained in pages 43-45 of the record of proceedings, wherein the 1st and 2nd appellants were ordered to be served all the court processes through the 3rd appellant only .. See pages 43 – 45 of the records. After the service of the originating processes on the appellants, the 3rd appellant filed a notice of preliminary objection and a notice of intention to defend using Wole Olanipekun and Co., God’s Grace House, No. 130, University Road, Tanke, Ilorin as his contact address. (Pages 55-59 of the record of proceedings). It was this address of the appellants’ counsel that the hearing notice for 21 February 2005 was served on the appellants and same was rejected by the chambers claiming that they had withdrawn from the case as a result of which the bailiff filed an affidavit of non-service. (See page 98 of the record of proceedings). The appellants’ counsel was in court on 8 July 2004 when he suggested 11 October 2004 for hearing of the case (see page 66 of the record of proceedings). On 11 October 2004 fixed for hearing of the case, the appellants were not in court and no letter was written as to the reason why they were not in court. It is noteworthy to observe that from the foregoing, the appellants were given ample opportunities to defend their case but refused to do. It is pertinent to observe that the appellants despite the magnanimity of the learned trial Judge had treated the court with levity and lackadaisical attitude in defending their case, and have no reason whatsoeverto complain: Achuzu v. Ogbonnu (2004) All FWLR (Pt. 227) 513 and Magna Maritime Services Ltd v. Oteju (2005) All FWLR (Pt.270) 195, (2005) 14 NWLR (Pt. 945) 517 at 543.’
‘Learned counsel for the appellants placed heavy reliance on the case of Mark and Anor. v. Eke (2005) All FWLR (Pt. 259) 1 at 21 to urge that the default judgment be set aside. With respect due to the learned counsel, the facts of that case are not apposite to the facts of the extant case. The facts of that case bother on non-service of originating process on the appellants, as the appellants were not aware of the existence of any suit until the time of execution of the judgment by the respondent. In this case, all processes from both the respondent and the appellants in respect of the case have been filed, served and delivered, and the parties have been coming to court with series of adjournments, wherein the appellants absented themselves at more than 3 (three) occasions fixed for the hearing of the suit without any excuse. It is after the judgment that the appellants claimed to have changed their contact address without formally informing the court or the counsel in the suit, while they refused and rejected hearing notice. From the above, the case of Mark v. Eke cited by the learned counsel is inappropriate and inapplicable as an authority for the court to set aside this judgment obtained under the undefended cause list. In the light of all that has been said, I am of the firm view that the learned trial judge acted judicially and judiciously, and did not abdicate his duties in refusing the application for setting aside this judgment obtained under the undefended cause list. These issues are resolved in favour of the respondent and against the appellants.’]
.
.
↪️ ISSUE 2: IN RESPONDENT’S FAVOUR.
[THE APPELLANT WAS PROPERLY SERVED AT THE ADDRESS HE PROVIDED
‘The question that must be asked and answered from the outset is whether in the light of the circumstances of the extant case, the appellants can be said to have been served with a hearing notice before the judgment of 21 February 2005? In the case of Afonja Community Bank (Nig.) Ltd v. Akpan a decision of this court from this division, the erudite emeritus justice, Amaizu JCA at pages 921 – 922 paragraphs- A held thus: “It has been accepted that where a counsel to a party uses his address as address for service in a case, and he is presumed to be aware of and have notice at the various hearingdates of the case. See Dr. Jimi Aina and Ors v. Musa Obabiolorunkosi … From all have said above, any service on the learned counsel through the address is good service on the appellants. There is however another reason why such a service should be a valid and proper service. The learned counsel gave the address of service on the appellants as care his chambers. He has by that singular information led the respondent to believe that he can safely serve his client through his chambers. Therefore, neither the appellants nor its counsel will be allowed to go back onthe information as it would be unjust or inequitable for them to do so. This is the principle in high trees’ case otherwise known as Central London Property Trust Ltd v. High Trees Ltd (1947 ) KB 130.”’
‘Consistent with the conclusion of the court above stated, the learned trial Judge was right in my view to have held thus: “It must be noted that the internal arrangement in the defendants/appellants’counsel’s office, Wole Olanipekun and Co, is an internal affair of the office and should not in any way concern the court. I agree with plaintiff’s counsel that service on counsel is good service on litigant and a refusal of service does not amount to non-service.” It is instructive to note that the application to serve the 1st and 2nd appellants through the 3rd appellant by substituted means was not ordered to be personal in as much as the application of the plaintiff/respondent was not for personal service, there was no order as to personal service on the 3rd appellant and the counsel to the appellants, as canvassed by the learned counsel to the appellants. See pages 43 – 45 of the record of proceedings. Even the appellants’ counsel’s account of the order was not accurate as there was no order of the trial court dated 3 October 2003, and no such order as to personal service on the appellants’ counsel. It is also to be observed from the record of the trial court that the claim of non-service by the appellants was an afterthought. The chambers that rejected the service has been the chambers whose address has been in use before and after the judgment of the case at the trial court as can be gleaned from pages 79 – 83 of the records of proceedings. It is also to be observed that the appellants’ counsel changed address from the former address known to the court and the respondent’s counsel, only while filing notice of appeal dated 27 October, 2005. See pages 111-115 of the record of proceedings, and while filing the application for interlocutory injunction on 27 October 2005 where he started using Golden Gate Chambers, No. 120, Surulere road, Ilorin. I am of the firm view that since the appellants did not inform the court of changing of address the bailiff was right in serving them at the A address on the processes filed by the appellants. I am also of the firm view that if such chambers rejected the service of hearing notice, it is not the duty or business of the court to speculate on probable address of the counsel, same having been used in the processes filed before the court as can be seen on page 78 of the record of proceedings. The learned trial Judge was right to have held as follows: “I have looked at the processes before the court and found that the 3rd defendant has also absented himself from court without justification on 3 successive occasions 11 October 2003; 31 January 2004, and today 21 February 2005 in spite of the fresh hearing notice ordered by the court on 31 January 2004. I have also noted that the defendant’s notice to defend and preliminary objection were in the letter heading of Chief Wole Olanipekun’ s chambers. I have also noted there is no indication whatsoever that counsel, Mr. Ayodele has changed address from Chief Wole Olanipekun’s chambers”. See Page 78 of the record of proceedings.” These issues like the previous ones before them are resolved in favour of the respondent and against the appellants.’]
.
.
↪️ ISSUE 3: IN RESPONDENT’S FAVOUR.
[THE APPELLANT’S COUNSEL WERE NOT DILIGENT IN DEFENDING THE CASE
‘A cursory look at the facts of the case, one cannot but come to the conclusion that the appellants and their counsel were not diligent enough in defending the case and in bringing the application for setting aside the judgment. The case suffered many adjournments at their instance; they rejected hearing notice at their known address endorsed in their processes filed in court; they were aware of the decision of the court on 21 February 2005, the same day it was delivered but chose to go and sleep for almost 5 (five) months, and only to turn round to say that they were only aware when the judgment sum was being demanded. Therefore, the trial court was right in refusing them the equitable relief they are asking for, and in dismissingtheir application. In view of the foregoings this issue is resolved in favour of the respondent and against the appellants.’]
.
.
↪️ ISSUE 4: IN RESPONDENT’S FAVOUR.
[THE TRIAL COURT HAD JURISDICTION; THE FEDERAL HIGH COURT HAS JURISDICTION OVER RECEIVERSHIP/LIQUIDATION
‘Let me start the resolution of these issues by saying that learned counsel for the appellants has made heavy weather in respect of the jurisdiction of the trial court in paragraph 9.10 of his brief to the effect that being a contract, the trial court has no jurisdiction to hear and determine it. With due respect to the learned counsel he is wrong in his submission and that the facts of the cases he relied in support of the said submission are not apposite to the facts of the case we have in hand. As can be gleaned from the records of proceeding of the trial court; the action which gave rise to this appeal, originated as a breach of contract by the 1st and 2nd appellants and which later metamorphosed into liquidation and appointment of a receiver/manager wherein the action becomes an action against a company in receivership and or in liquidation. The law is now trite that where an action is against a company in receivership and/or liquidation, the jurisdiction for any action becomes that of the Federal High Court Act. See Cap. C20, Laws of the Federation of Nigeria, 2004. And by the provisions of section 250(1) of the Constitution of the Federal Republic of Nigeria, 1999 all civil causes or matters arising from the operation of the Companies and Allied Matters Act are within the purview of which the Federal High Court can entertain as in this instant case.’]
.
.
.
✓ DECISION:
‘In conclusion, with all the issues having been resolved in favour of the respondent, this appeal fails and same is dismissed as lacking in merit with N50,000.00 (fifty thousand naira) costs to the respondent and against the appellants.’
➥ FURTHER DICTA:
⦿ THE PURPOSE OF REPLY BRIEF
The purpose for which reply briefs are meant is now well known. It is to answer or respond to new or fresh issues raised in the respondent’s brief. Needless to say, it is not an avenue through which or by which an appellant should canvass or proffer further or repeat arguments in support of an appeal on the pretext of replying on points of law. See the cases of Popoola v. Adeyemi (1992) 8 NWLR (Pt. 257) 1; Adebiyi v. Sorinmade (2004) All FWLR (Pt. 239) 933 and Shuaibu v. Maihodu (1993) 3 NWLR (Pt. 284) 748 … In view of the foregoing, I cannot but agree with the learned counsel for the respondent that the reply brief of the appellants is not and cannot be inconsonance with the provisions of Order 17, rule 5 of the rules of this court. Far from it. A closer look at the said reply brief would reveal the fact that the appellants’ counsel re-argued the entire appeal, issue by issue. This is not what the reply brief is all about. This being the case the said reply brief would not be given any consideration whatsoever in this judgment. It is noteworthy to observe at this juncture, that Judges who sit to hear appeals are at liberty and have the power to adopt or even formulate issues that in their view would determine the real questions in an appeal: Ikegwuoha v. Ohawuchi (1996) 3 NWLR (Pt. 435) 146; Aduku v. Adejoh (1994) 5 NWLR (Pt. 346) 582 and Barde Egwa v. Moses Ciroma Egwa (2007) 1 NWLR (Pt. 1014) 81 at 86. — Abdullahi JCA.
⦿ SETTING ASIDE JUDGEMENT WHERE A PARTY DOES NOT APPEAR AT THE TRIAL
In resolving these issues, my first port of call is Order 38, rule 9 of the Federal High Court (Civil Procedure) Rules, 2000 which provides as follows: “Any judgment obtained where one party does not appear at the trial may be set aside by the court upon such terms as may seen just, upon an application made within six days after the trial or within such longer period as the court may allow for good cause shown.” (italicise supplied for emphasis). Let me say from the outset that the provisions of the section stated are very clear and unambiguous. By the provisions of the said section, a default judgment may be set aside when an application is brought for it to be set aside within six days on condition to be agreed by the parties to the dispute. But where such application is brought after six days, different considerations apply. There must be an application for extension of time to apply for the setting aside of the judgment. And the court may grant the application for good cause shown. — Abdullahi JCA.
➥ LEAD JUDGEMENT DELIVERED BY:
Abdullahi JCA
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
Mr. Oluwaseun Ayodele.
⦿ FOR THE RESPONDENT(S)
Mr. Akeem Okelola.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
