IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
BEFORE HIS LORDSHIP HONOURABLE JUSTICE K. D. DAMULAK
ON THE 17TH DAY OF SEPTEMBER, 2019
SUIT NO. NICN/ABJ/333/2018
GLOBAL INTERNATIONAL LTD & ORS JUDGMENT DEBTORS/APPLICANT
Mr. OBIOHA KELVIN JUDGMENT CREDITOR/RESPONDENT
Ayodeji Ademola, Esq. Igwe Ugochukwu, Esq. for the judgment debtors/applicants
V. M. Uma, Esq. for the judgment creditor/respondent
This motion is a post judgment application brought pursuant to Order 9 Rule 5 (2) of the Rules of this Honorable Court seeking the following orders:
1. An order of the court setting aside the proceedings conducted by this court on the 21st day of March, 2019 for being in breach of the right of fair hearing of the judgment debtors/applicant.
2. An order setting aside the judgment delivered by this court on the 27th day of March, 2019 having been delivered in breach of judgment debtors/applicant’s right of fair hearing and without jurisdiction.
3. An order setting aside the judgment delivered by this court on the 27th day of March, 2019 having been delivered in default of pleadings.
2. STATEMENT OF RELEVANT FACTS
Judgment was delivered in this case on 27/3/2019. The judgment debtors /applicants did not participate in the proceedings leading up to the judgment and that is the basis of this application.
3. CASE OF THE APPLICANTS
An affidavit was deposed to by Julius Dairo as thus: the 2nd judgment debtor/applicant, who is the alter ego of the company, had travelled for a course in Germany since the 15th of October 2018, and thus was not around to brief counsel. Thus, no statement of defence was filed by counsels to judgment debtor/applicant as they were yet to be briefed due to the absence of the 2nd judgment debtor. On the
28th February, 2019, when the matter came up for mention, the judgment debtors/applicants were represented by one Emmanuel Obetta. The 2nd judgment debtor/applicant returned to Nigeria on the 18th March, 2019 and briefed counsels properly on the 20th of March. On the same day, all counsels in the firm were swamped with four different cases and hence could not come to court or file any process. As a result of this, the counsel of the judgment debtors/applicant wrote a letter of adjournment to the court stating the reasons for absence of the counsels in court. Notwithstanding the letter of adjournment, the Court went ahead to hear the evidence of the judgment creditor’s witness in chief and the case was adjourned for judgment. No date was fixed for the judgment debtors’/applicants to cross examine the judgment creditor’s witness or put in a defence, hence denying the former of fair hearing. The Honorable Court went ahead to deliver judgment on the 27th of March, 2019 against the judgment debtors. The counsels have now been briefed and are ready to defend the suit if the application at hand is granted.
The applicants postulated two issues for determination:
a. Whether the proceedings of 21st March 2019 and the judgment of 27th March 2019 delivered by this Honorable Court without any date given to the judgment creditor/respondent’s witness and put up their defence, is a breach of their right to fair hearing and therefore liable to be set aside for want of jurisdiction.
b. Whether the judgment debtors/applicants have placed sufficient materials before this Honorable Court to be entitled to the reliefs they seek under Order 9 Rule 5(2) of the National Industrial Court Rules, 2017.
Issue 1: it is argued that the judgment debtors/applicants were duly represented in court on the 28th February 2019 when the matter came up for mention. The matter was adjourned for hearing on the 21st of March 2019, a day before which the counsels to the judgment debtors/applicant sent a letter for adjournment with cogent reasons for same. However, the Court failed to rule on the application, heard the case of the judgment creditor/respondent and subsequently adjourned for judgment. As such, it is submitted that the court has no jurisdiction to proceed with the hearing of the judgment creditor’s case as it did on the 21st of March 2019. See Ajanaku v. Williams (2009) NWLR (Pt. 1129) 617 CA at 634 para B-C, Augie JCA held inter alia:
“the key words are: ‘if an application for postponement is refused’, so it is only after an application for an adjournment is refused that the court may ask the
plaintiff to proceed with the case or may enter judgment against the defendant, and Aguda clearly stated that a trial court cannot proceed to give judgment in a case without ruling on the application for adjournment...”
It was further submitted that the judgment debtors’/applicants’ right of fair hearing has been violated. This is because the Court after hearing the witness of the judgment creditor did not give the judgment debtors the opportunity to cross examine the witness nor the opportunity to present their defence, notwithstanding that the judgment debtors’/applicants’ counsel was in court. See FBN PLC v. T.S.A. IND.LTD (2010) NWLR (Pt. 1216) 247 SC at 258 ratio 9; and also Chime v. Onyia (2009) NWLR (Pt. 1124) 1 CA at 23 ratio 24.
It was equally postulated that the suit was rushed unnecessarily. The suit was mentioned on the 28th of February 2019 and adjourned to hearing on the 21st of March 2019. Without adjourning for cross examination and defence, the court immediately adjourned to 27th March 2019 for judgment. See Danladi v. Dangiri (2015) NWLR (Pt. 1442) at 134 ratio 5 and 6.
Counsel also submitted that there is nothing in Order 9 Rule 5 of the National Industrial Court Rules 2017 that prevents a court from adjourning a case and inviting a party whose counsel had appeared in court but applied for adjournment as in the instant case, to cross examine PW1 and defend the case. Also, there is nothing in the above Rule that prevents a counsel that did not file a memorandum of appearance from cross examining the witness of a claimant as in the case at hand. The right to cross examine is both constitutional and statutory, see section 215 (1) of the Evidence Act. From this provision, the right of a party to cross examine is not dependent on filing a memorandum of appearance or statement of defence, but rather on the desire to do so which has been demonstrated by the judgment debtor/applicant when they filed for adjournment.
Failure to allow the judgment debtors/applicants the opportunity to cross examine PW1 renders the entire proceeding of the 21st March 2019 as well as the judgment reached therefrom a nullity being in breach of the former’s fair hearing. See Omoniyi v. Alabi (2015) NWLR (Pt. 1456) at 578 ratio 5:
Finally, it was submitted that the Honorable Court has the inherent jurisdiction to set aside its own decision which it reached without jurisdiction or which is a nullity. See Tomtee (Nig.) Ltd. V. FHA (2009) NWLR (1173) 358 p. 364, ratio 5.
ISSUE 2: it was submitted that where a default judgment is given in default of appearance or any procedural step, application can be made to have it set aside after giving sufficient reason. This is the provision of Order 9 Rule 5(2) of the National Industrial Court Rules, 2017. As such, counsel argued that cogent reason has been given by the judgment debtors/applicants as to why no process was filed. The 2nd judgment debtor/applicant who is the Managing Director and alter ego of the 1st judgment debtor/applicant travelled for a course overseas as a result of which he could not brief his counsel to take up the defense of the suit. He came back on the 18th of March 2019 and immediately briefed the counsel.
However, due to the tight schedule of the office in relation to cases coming up on the 21st March 2019, a letter was written requesting for adjournment to allow the judgment debtors participate in the case. See Jamiu v. Ayinla (2009) NWLR (Pt. 1170) 238 at 245 ratio 9. A judgment given in default of appearance at the trial or upon failure to take any prescribed procedural step in the proceeding for the fair trial of the suit, is not a judgment on merit. By its very nature therefore, a court of law has the inherent power to set aside such judgment on the settled principle of law that unless and until the court has pronounced a judgment on the merits or by consent of the parties, it reserves the inherent authority to revoke the exercise of its cohesive power when that judgment has only been obtained by failure to adhere strictly to procedural rules.
4. CASE OF THE RESPONDENT
The respondent deposed that the applicants were served on the 3rd of December,2018. When the matter came up for mention on 28th February 2019, one Emmanuel C. Obeta entered (announced) appearance for the applicants. On the 21st March 2019 when the matter came up for hearing, one Tunde Ogundaini wrote a letter seeking for adjournment. The Court, upon application by the claimant’s counsel, disregarded the application on the ground that the maker is not known to the court as no memorandum of appearance was filed. That the 2nd applicant did not travel as the respondent had seen him after service of the process. Whether or not the counsel of the applicants have been briefed is a personal issue that cannot prevent the show of interest by filing a memorandum of appearance. That whether or not the 2nd applicant travelled should not be a ground to set aside the judgment as there are 2 defendants.
The respondent distilled the following issue for determination- ‘whether from the facts supporting this application, the defendants/applicants can be said to have
shown a reasonable ground for invoking the discretionary power of this Honorable Court to set aside its judgment.’
It is submitted that 2nd applicant was aware of the suit before embarking on the journey, having acknowledged service of processes.
Furthermore, sufficient opportunity has been given to the applicants to be heard, a counsel entered (announced) appearance for the applicants on the day for mention, but no process was filed, same for the day of hearing. It is trite in law that fair hearing does not mean a party must be heard, it suffices if the opportunity to be heard has been given. See Kano Text. Plc v. G & H (Nig.) Ltd. (2002) 2 NWLR PART 751 PAGE 420 particularly at page 429 ratio 6.
No cogent reason has been given as to why the judgment should be set aside. The excuse about the 2nd applicant not being in the country is rather preposterous.
Moreover, after the letter for adjournment was served, no further effort was made to find out what transpired till judgment was delivered. See Teno Eng. Ltd v. Adisa (2005) 10 NWLR part 933 pg. 346 particularly at pg. 348: “…the court being asked to exercise its discretion to set aside its own judgment must also be satisfied that the applicant’s conduct throughout the proceeding, that is from the service of the writ upon him to the date of judgment, has been such as to make his application worthy of a sympathetic consideration.”
Lastly, it was submitted that the applicants delayed in bringing the application, having brought same 27 days after the judgment. See N. A. Williams and ORS v. Hope Rising Voluntary Funds Society (1982) 1-2 SC 145 at 160.
5. COURT DECISION
A convenient or rather compulsory starting point in this decision is the opening paragraph at page 4 of the decision part of the judgment of 27/3/2019 in this case. This is what the court said;
It is imperative to start by pointing out that the defendants were both served with the originating processes on 3/12/2018. The defendants never filed any process in response. On 28/2/2019, one Emmanuel C. Obeta appeared for the defendants without filing any process and the matter was adjourned to 21/3/2019 for hearing. On 21/3/2019, one Tunde Ogundaini wrote a letter of adjournment on behalf of the defendants without filing any process before the court. The claimant was therefore allowed to prove his case in the absence of the defendants who have shown no interest at defending the suit. In the circumstance, the claimant is entitled to ask for judgment in line with Order 9 Rule 5(1) of the 2017 Rules of this Court.
1.Whether the applicants’ right to fair hearing has been violated in this case
The contention that the defendants right to fair hearing has been violated is hinged on two reasons. According to the affidavit,
No date was fixed for the judgment debtors’/applicants to cross examine the judgment creditor’s witness or put in a defence, hence denying the former of fair hearing.
According to the written submission of counsel,
However, the Court failed to rule on the application, heard the case of the judgment creditor/respondent and subsequently adjourned for judgment.
On the submission of learned applicants’ counsel that “However, the Court failed to rule on the application, heard the case of the judgment creditor/respondent and subsequently adjourned for judgment”. Citing Ajanaku v. Williams (2009) NWLR (Pt. 1129) 617 CA at 634.
This is a clear evidence that counsel did not read the records of proceedings of 21st March 2019 which he seeks to set aside. For the sake of clarity, part of the proceedings of 21st March 2019 is hereby reproduced;
Claimant in court. Defendants absent
V.I Uma for the claimant.
Court:The defendant counsel is not in court but has written a letter of adjournment.
Uma: We apply for cost of hundred thousand. We actually want to proceed.
Court: The defendant was represented by one Emmanuel C.Obetta at the last adjourned date 28/2/2019. Today one Tunde Ogundaini of Ademola &Ademola has written for adjournment but interestingly, there is no appearance or any process for the defendant in the file. There is therefore no reason for an adjournment. The case shall proceed to hearing.
The application for adjournment was clearly considered and refused. No counsel has a right to write a letter for adjournment in a case in which he has not filed any memorandum of appearance as he is not yet a counsel in the matter.
According to the affidavit and the written address, counsel was briefed to handle this case on 20/3/2019, how then was he counsel to the defendant before briefing has not been explained.
Applicants argued that their right to fair hearing had been violated for not being given an opportunity to cross examine the witness of the respondent and present their defence notwithstanding that they were duly represented by a counsel.
From the facts of this case as already shown above, it is a misconception to argue that the defendants were duly represented by counsel when the said counsel never entered any memorandum of appearance on behalf of the defendants.
For a party to complain of want of fair hearing in a case, the first step a party to a case is expected to take after being served with an originating process is to enter appearance. The essence of entering appearance is for a party to come under the jurisdiction of a court, to enable him/her be heard by the court. In Okon Bassey Ebe v. Commissioner of Police (2008) LPELR-984 (SC), per Onnoghen, JSC, appearance was defined as ‘…the express or overt act by which a party, against whom an action has been instituted, or who seeks redress from the court of law, submits himself to the jurisdiction of the court.’ See Inokoju v. Adeleke (2007) 4 NWLR (PT. 1025) PG.423.
Order 9 Rule 1(1) of the National Industrial Court, Civil Procedure Rules, 2017 makes provision for entering appearance thus:
Every person served with an originating process shall, within the time stipulated therein and if no time is stipulated shall within fourteen (14) days of the service of the originating process, file a Memorandum of Appearance in the Registry.
A party who fails to file a memorandum of appearance has not submitted himself to the jurisdiction of the court and cannot be heard; such a party cannot complain of want of fair hearing. The right to fair hearing inures only to a party who has availed himself to be heard by filing a memorandum of appearance and coming to court.
Fair hearing does not mean that the business of the court is to be dictated by the whims and caprices of any party. See Okocha v. HERWA LTD (2000) 15 NWLR (Pt. 690) pg. 249 at 258, wherein Oguntade JCA as he then was, had this to say about fair hearing:
“it is not fair or just to the other party or parties as well as the court, that the recalcitrant and defaulting party should hold the court and other parties to ransom. The business of the court cannot be dictated by the whims and caprices of any party. Justice must be even handed.”
Furthermore, the argument of the applicants that cross examination is a right does not hold water in the instant case because they were not formally before the court as stated above. The right to cross examination inures only to a party who has submitted himself to the jurisdiction of the court thereby indicating his interest or intention to defend the suit against him.
Failure to enter appearance gives the judge the discretion to hear the case of the claimant and consequently give default judgment. See MR. ADELANI ADEWOYIN V. THE EXECUTIVE GOVERNOR, OSUN STATE & ORS (2011) LPELR-8814 (CA) where the court held;
‘The significance of entering appearance by a defendant, as provided by the rules of the court, is very important and cannot be over-emphasized. The consequences of failure to enter an appearance by a defendant to a writ of summons or an originating process include a plaintiff having a judgment against such a defaulting defendant and or the defendant being denied the right to be heard”
See also INAKOJU V. ADELEKE (2007) All FWLR (Pt. 353) 1 at P. 138 where the Supreme Court per Katsina-Alu, JSC (as he then was) held that even when such a defendant intends to challenge the jurisdiction of the court, he must first file an appearance at least a conditional appearance for the reason that where the rules so demand, “a defendant served must enter appearance.” See also Order 9 Rule 5(1) of the NICN Rules, 2017.
Any counsel who writes a letter of adjournment on behalf of a party for whom he has not entered an appearance is a mere meddlesome interloper incapable of conferring a right to fair hearing on the said party.
On the ground of want of fair hearing, I hold that the applicants have failed to show that they were denied fair hearing and the application is refused on that ground. Prayers 1 and 2 accordingly fail.
The third prayer is for an order setting aside the judgment delivered by this court on the 27th day of March, 2019 having been delivered in default of pleadings.
2. Whether the applicants have satisfied the condition to set aside this judgment having been delivered in default of pleadings.
By Order 9 Rule 5(2), the court may in its discretion set aside a judgment given in default of appearance if satisfactory reasons have been given within a reasonable time after judgment. Sub-rule 6 sets the time limit for such application to be 30 days from the date of the judgment. This discretion however is not to be exercised in vacuo or whimsically but based on some guiding principles and rules.
A plethora of cases have given what the court would consider before a case is set aside. In W. I. SPA MILAN V. J. I. NWANYANWU (2001)1 NWLR (PT. 693), PG. 35-36, it was held that;
The relevant considerations upon which the court will base its decision as to whether or not to grant an application to set aside judgment or order made where there is default of appearance by an applicant are as follows:
(a) the reason for the applicant’s failure to appear in court;
(b) whether there has been undue delay in making the application so as to prejudice the respondent;
(c) whether the respondent would be prejudiced or embarrassed upon an order for rehearing being made so as to render it inequitable to permit the case to be re-opened; and
(d) whether applicant’s application is manifestly unsupportable;
(e) whether the conduct of the applicant generally and particularly regarding interest shown on the case, have been such as to make his application worthy of a sympathetic consideration.
According to Order 9 of the Rules of this court, some of the guiding principles are;
1. The applicant must give satisfactory reasons for the failure to appear and defend the action.
2. The applicant must demonstrate readiness to defend the action.
3. The application is to be made within thirty days after the judgment.
The application was filed twenty-seven (27) days after judgment; it is still within the time limit of thirty (30) days.
The reason for the delay is that 2nd defendant travelled and only briefed counsel on 20/3/2019.
Paragraph 4(b) of the applicants’ affidavit says the 2nd defendant travelled to Germany since 15/10/2018. All the defendants acknowledge service of the complaint in this case on 3/12/2018.
Paragraph 4(e) says the 2nd defendant only returned to the country on 18/3/2019.
The problem with this reason is that it is not possible for a man who travelled to Germany on 15/10/2018 and only returned on 18/3/2019 to have been in Nigeria on 3/12/2018 to receive and acknowledge service as in this case. It is either he never travelled or he travelled after the process was served on him on 3/12/2018.
The failure or delay in briefing counsel is not convincingly explained.
As for demonstration of readiness to defend the action, what is expected of the applicant is for the applicant to file his proposed memorandum of appearance and his proposed statement of defence and all processes required by the Rules of this court. In the absence of these, there is no demonstration of readiness to defend the action.
Furthermore, there is no prayer to allow the applicants defend the suit. It is not a judicious discretion to set aside the judgment of 27/3/2019 and allow the applicant to take his time to bring whatever application he may choose to bring thereafter at his own pleasure.
Accordingly, I exercise my discretion against the granting of this application.
The motion is hereby dismissed for want of merit.
I make no order as to cost.
This is the ruling of the Court and it is entered accordingly.
HONOURABLE JUSTICE K.D.DAMULAK
JUDGE, NICN, ABUJA.