IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE CALABAR JUDCIAL DIVISION
HOLDEN AT CALABAR
BEFORE HIS LORDSHIP: HON. JUSTICE M. N. ESOWE
DATE: 10TH DECEMBER, 2019 SUIT NO:NICN/CA/19/2015
MRS LILIAN UDEY MGBADO ………………………………… JUDGMENT CREDITOR/RESPONDENT
PROPEL OIL AND GAS ……….. JUDGMENT DEBTOR/APPLICANT
DIAMOND BANK PLC
STERLING BANK PLC GARNISHEES
FIRST BANK OF NIGERIA LTD
SAMUEL IKPEME Esq with W.S OGAR OKOI Esq. for the Judgment Creditor
C.C ECHEMAZU Esq. for the Judgment Debtor
R U L I N G
On the 29th of October, 2019 when this matter came up for ruling, the Court, having delivered its ruling, the Judgment Debtor/Applicant Counsel brought to the notice of the Court their Better and Further Affidavit which was filed 9th October, 2019 which the Court did not make any reference to in the body of its ruling. As a result, the matter was adjourned to enable the Court go through it record and, if there is evident of a Better and Further affidavit earlier filed by the Judgment Debtor/Applicant in support of their motion which is the subject matter of this ruling, the Court would give a considered ruling in consideration of the Better and Further affidavit.
The Court, having gone through its record, discovered that as stated by Counsel to the Judgment Debtor/Applicant, there is indeed a copy of a Better and Further Affidavit filed in support of Judgment Debtor/Applicant. In this regard, the Court hereby invokes Order 47 Rule 22 of the National Industrial Court (Civil Procedure) Rules, 2017 and hereby rescinds/sets aside its ruling of 29th October, 2019 on the Motion filed by the Defendant/Applicant, dated and filed 3rd November, 2017.
Having rescinded/set aside its ruling of 29th October, 2019, the Court shall proceed to determine the Judgment Debtor/Applicant’s motion dated and filed 3rd November, 2017 in the light of the motion paper, affidavit in support, written address and the Further and Better Affidavit dated 9th October, 2019.
This is the ruling of the Court on the said Motion on Notice dated 3rd November, 2017 and filed same day, brought pursuant to Order 35(7) of the National Industrial Court (Civil Procedure) Rules 2017; Section 36(1) of the of the 1999 Constitution (as amended) whereby the Judgment Debtor prays the Court for the following:
1. AN ORDER setting aside the judgment of this Honourable Court entered in favour of the Claimant/Respondent on the 6th July, 2017 in default of the Defendant/Applicant’s participation in the trial proceedings of this matter
2. AN ORDER of this Honourable Court setting down this matter for retrial and/or further directive
The last prayer is the omnibus prayer.
The grounds for the Application are:
1. This Honourable Court delivered the ruling of the 6th July, 2017 entering judgment in favour of the Claimant in default of the Defendant participating in the trial proceeding of this matter
2. The Defendant/Applicant whose place of business is at No 15B, Block 19, Bashorun Okunsanya Street, Lekki Phase 1, Lagos State, out of the jurisdiction of this Honourable Court, has perfected their brief to the law office of Paul O. & Associates to prosecute this matter on behalf of the Defendant/Applicant
3. The Defendant/Applicant’s instruction was inexplicably not diligently carried out by the Defendant/Applicant former lawyers after they had filed the Defendant/Applicant Statement of Defence and other frontloaded processes. The Defendant/Applicant cannot sufficiently monitor the Court’s proceedings from Lagos State and placed their trust on the professional legal expertise on their former lawyers to effectively prosecute this matter on their behalf
4. The Defendant/Applicant upon coming to the knowledge of the default Judgment of this Honourable Court on the 6th July, 2017 due to the abandonment of the matter by the Defendant’s former Counsel, now seeks to set aside the said default judgment in the interest of justice and fair hearing
5. The lack of diligence on the Defendant/Applicant’s former lawyers should not be visited on the Defendant/Applicant whose right to fair hearing will suffer incalculable legal consequences if this Application is not allowed
6. The Defendant/Applicant were not served personal hearing notices during the trial of this suit as it is the practice of this Court, when it became apparent that the Defendant/Applicant former Counsel had abandoned the matter without informing both the Court and the Applicant
7. That all subsequent notices on the Defendant/Applicant’s former law office (Paul O. Associates), if any, after they had abandoned the Defendant/Applicant’s matter were no longer bonafide and effective service on notice to the Defendant/Applicant in respect of this matter as none of such notices were brought to the attention of the Defendant/Applicant by their former lawyers
8. The Defendant/Applicant has brought this Application in the interest of justice and fair hearing and ultimately to ensure that this matter is fairly determined on its merit in line with the age long equitable principle of audi alteram partem which means to hear both parties as no man should be condemned unheard.
9. This Honourable Court has the requisite jurisdiction to entertain and grant this Application and the reliefs sought therein ex debito justitiae, being that the judgment sought to be set aside by the Defendant/applicant is a default judgment obtained in the absence of the Defendant participating during the trial of the matter.
In support of the Application is an 18-paragraph affidavit deposed to by one Mr. Emmanuel Awutowho identified himself as the Regional Manager of the Defendant. Three documents were attached as exhibits to the affidavit, and a written address in compliance with the rules of this Honourable Court.
The gist of the affidavit in support of this Application are as couched in the grounds for the grant of this Application.
WRITTEN ADDRESS BY THE JUDGMENT DEBTOR/APPLICANT
In Judgment Debtor/Applicant’s written address in support of their Application, Learned Counsel on behalf of Judgment Debtor formulated a sole issue for determination, that is:
Whether it meets the interest of justice of this case for this Honourable Court to grant the Application by setting aside the judgment of this Honourable Court delivered on the 6th July, 2017
Learned Counsel after formulating a sole issue for determination, ended up arguing four issues which he referred to as sub-issues.
On whether a default judgment can be set aside, Learned Counsel to Judgment Debtor submitted that it is trite law that default judgment can be set aside by the same court that delivered it in deserving circumstances like: (a) Whether the applicant has good reasons for being absent at the hearing, (b) Whether the applicant has shown that there are good reasons for his delay in bringing the application, (c) Whether the respondent will not be prejudiced or embarrassed if the order for re-hearing is made, (d) Whether the applicant's case is manifestly unsupportable. (e) Whether the applicant's conduct throughout the proceedings is deserving of sympathetic consideration. He relied on Shell Petroleum Development Co. Nig. Ltd v. Udi (1996) 6 NWLR (Pt. 455) Page 483 at Page 500; Order 35 Rules 7 of the National Industrial Court of Nigeria Civil Procedure Rules 2017
On whether the negligence of the Applicant’s Counsel can be visited on the Applicant, Learned Counsel to Judgment Debtor submitted that it is the general practice of Courts not to punish litigants for the mistake, blunder, negligence or inadvertence of his Counsel. The facts that Defendant failed to appear before this Honourable Court during the trial of this matter was due to the negligence and inadvertence of their Counsel who inexplicably abandoned the matter without notifying the Defendant/Applicant even after Judgment was delivered in the matter. He referred Court to Olowokere V. Akinsiku (2004) All FWLR (Pt. 202) page 1970
On whether this Honourable Court can, pursuant to the fact presented by the Defendant/Applicant, exercise it discretion by allowing this Application as sought, Learned Counsel submitted that the discretion of the Court is said to be the Judge’s assessment of what is fair and just to do in a particular case. He referred Court to Okafor V. Uchedo(2002) FWLR (pt. 122) page 188.
He therefore urged the Court to exercise this discretion in favour of the Applicant given the totality of the affidavit and written submission in support of this Application.
On whether this Honourable Court has the inherent power to set aside her judgment and order, Learned Counsel posited that the Court can do so. He relied on Adegoke Motors (Nig.) LtdV. Dr. Adesanya & Anor. (1989) 3 NWLR (Pt. 109) 250 at 274, (1989) 5 SCNJ 80,where it was held, inter alia:
We are final not because we are infallible; rather we are infallible because we are final. Justices of this Court are human beings, capable of erring. It will certainly be short-sighted arrogance not to accept this obvious truth. It is also true that this Court can do inestimable good through its wise decisions. Similarly, the Court can do incalculable harm through its mistakes. When therefore, it appears to Learned Counsel that any decision of this court has been given per incuriam, such Counsel should have the boldness and courage to ask that such decision should be overruled. This court has the power to overrule itself (and has done so in the past) for it gladly accepts that it is far better to admit an error than to persevere in error.
He therefore urged the Court to grant this Application as prayed.
FURTHER AND BETTER AFFIDAVIT OF THE JUDGMENT DEBTOR/APPLICANT
The Judgment Debtor/Applicant also deposed to a Further and Better Affidavit in support of their Application on the 9th of October, 2019. The said further and better affidavit was deposed to by one Emmanuel Awuto who identified himself as the Regional Manager of the Judgment Debtor/Applicant.
The gist of the Further and Better Affidavit is that from the records of proceedings of this Honourable Court obtained by Counsel to Judgment Debtor/Applicant, it was noticed that the Judgment Creditor/Respondent failed to comply with Order 62 Rule 10 of this Honourable Court. The said order being to the effect that the substantive suit leading to this Garnishee proceeding ought to have been held de novo or/and the consent of the parties ought to have been first sought and had before continuing the matter from where it stopped with the previous judge. That failure to comply with same is fundamental and therefore vitiate the judgment of the Court in the substantive suit.
JUDGMENT CREDITOR/RESPONDENT’S RESPONSE
On the date this Application came up for hearing, Learned Counsel to Judgment Creditor/Respondent opt to respond to Judgment Debtor’s Application orally on points of law.
Learned Counsel submitted that this Application to set aside the judgment of this Honourable Court is incurably bad as it came 110 days after the judgment of this Court as against Order 9 Rule 6 of the rules of this Honourable Court which provides for such Application within 30 days.
He therefore urged the Court to strike out the Application
Having gone through the Application, affidavit in support, exhibits attached in support as well as Learned Counsel’s submissions on both sides for and against the grant of this Application, this Court has distilled a sole issue for the determination of this Application, to wit:
Whether given the circumstances, there is merit in this Application.
The gravamen of this Application is that the Applicant is asking the Court to set aside her judgment because of the negligent conduct of the former Counsel that handled the case on behalf of the Judgment Debtor/Applicant which negligence led to the absence of the Defendant during the trial of this case which by extension led to the judgment of this Court in the absence of the Defendant now Judgment Debtor/Applicant, and also that the Court as well as the Counsel to the Claimant now Judgment Creditor/Respondent failed to adhere to Order 60 Rule 10 of the National Industrial Court of Nigeria Civil Procedure Rules 2017 in that consent of parties was not sought and had before the Court proceeded to continue the case from where the former judge stopped.
Generally, a Court has the power to set aside her judgment. There are grounds for which the Court can do this. A Court can set aside her judgment if ab initio the judgment was a nullity. This is especially so if from the beginning the Court lacks the jurisdiction to entertain the suit. Such lack of jurisdiction may be on the subject matter. A Court can also set aside her judgment or correct her judgment if it is evident that there is a fundamental accidental slip in the body of thejudgment. A Court can set aside her judgment in default of pleadings or default of appearance. In all of these, there are established principles and factors guiding the Court in every circumstances to either grant or refuse the grant of an Application to set aside its judgment.
If the Application to set aside the Court’s judgment is based on default of appearance by one of the parties, as in the case herein, the principles guiding the grant of such an Application are as laid down in the Supreme Court’s decision in N.A Williams V. Hope Rising Voluntary Fund (1982) 1-2 SC 145 @ 153, where per Coker JSC, pointed out as follows:
When, however, the Application before the Court is to set aside its own judgment given in the absence of one of the parties before it in order to give the other party opportunity of being held, different considerations apply. They were fully set out by me in Idowu Ugwu and others V. Nwaye Aba and others (196) All NLR 438 …….. Among other things the Court must consider are:
(1) The reasons for the Applicant’s failure to appear at the hearing or trial of the case in which judgment was given in his absence
(2) Whether there has been undue delay in making the Application to set aside the judgment so as to prejudice the party in whose favour the judgment subsists
(3) Whether the latter party (i.e in whose favour the judgment subsists) could be prejudiced or embarrassed upon an order for re-hearing of the suit being made so as to render such a course inequitable and
(4) Whether the Applicant’s case is manifestly unsupportable
Besides the foregoing, this Court wishes to state that another factor considered by the Court is whether the Court is satisfied that the Applicant’s conduct throughout the proceedings, that is, from the service of the Writ upon him to the date of judgment is such as to make his Application worthy of sympathetic consideration by the Court. See Momoh V. Gulf Insurance Corporation (1975) 1NMLR 184 @186.
With regards to the first factor highlighted above, Counsel to the Judgment Debtor heaped all the blame on the former Counsel to the Defendant (now Judgment Debtor/Applicant). This Court wishes to say that sometimes Counsel push the rules of justice and equity too far to the extent that in their push, they are blinded to the injustice and inequity they are occasioning on the other party. If a party has a lawyer and reasonably and truthfully believes that his inability to properly present his case was as a result of the negligence of his lawyer who is a professional, his grievances should be directed at his lawyer under Section 9 (1) – (3) of the Legal
Practitioners Act CAP. LII LFN 2004 and not the Court or the other party. The remedy for the picture painted by the Applicant herein ought to be sought from Section 9 (1) – (3) of the Legal Practitioners Act CAP. LII LFN 2004 which provides for damages for negligence on the part of legal practitioners in the prosecution of cases for their clients. Therefore, this cannot be a basis for the Judgment Debtor/Applicant to ask the Court to set aside her proceeding and judgment on the professional negligence of Counsel to Applicant, and I so hold. If the kind of precedence Counsel herein is trying to set is upheld by the Court, it will therefore mean that for any time Counsel on the other side fails to come to Court, the Court will, as a matter of necessity, set aside its proceedings/business for that day because, according to the Judgment Debtor’s Counsel, the sins of Counsel should not be visited on the litigant. I think this is another place Counsel to judgment Debtor missed the point. It is not about visiting the sins of Counsel on the litigant but about visiting the sins of the Counsel and that of his Client on the Court and the party whom judgment was given in favour. This is so because if Counsel has appeared for a party, by all means, hearing notices will be served on the Counsel for the party; if a party fails to receive any notices or information from his Counsel, nothing bars him from coming to Court to enquire on what is happening concerning the Case and seeking information on the next adjourned date. If he did all of this, I am not sure that his former Counsel, who now bears the blame, stood by the entrance of the Court to block him from entering the Court. It will suffice for the Court to say that inasmuch as Counsel are expected to play their role diligently and professionally, most times, clients should know that they will lie on their bed according to the way they lay the bed themselves.
On the second factor to be considered in granting this Application, this Court wishes to state that the period within which an Application of this nature is to be brought is within 30 days of the default judgment. See Order 9 rule 6 of the rules of this Court. The Applicant herein brought this Application on 3rd November, 2017 whereas the judgment sought to be set aside was delivered on 6th July, 2017; a period which is more than 30 days provided by the rules.
On the further and better affidavit filed by the Defendant/Applicant, this Court wishes to state that the trite law is that affidavit is to contain facts and not law. I have gone through the affidavit and have come to this discovery that the said further and better affidavit does not only contain facts but law, citation of cases and the decision of the Court in such cases. With the Further and Better affidavit, Defendant encompassed facts and written address in one. In this regard, the Court shall proceed to expunge paragraph 5(d) and 5(m) of the affidavit which did not only plead law and reported case law but also went ahead to reproduce the law and the dictum of the cited case. The said paragraph 5(d) and 5(m) are hereby expunged from the Defendant’s further and better affidavit, and I so hold. On Order 61 Rule 10 which is the basis of this further and better affidavit, it is provided as follows:
ORDER 62—TRANSFER AND CONSOLIDATION
A.—Transfer of Cases
10. Where a Judge having part-heard a matter in a particular Judicial
Division is transferred to another Judicial Division:
(1) If the Claimant has not closed the Claimant’s case, an application may be made to the President of the Court by any of the parties requesting that the matter be assigned to another Judge in that particular Judicial Division where the matter is being heard, for the matter to be heard de novo;
(2) If the Claimant has closed the Claimant’s case, the President of the Court may by fiat direct the Judge hearing the matter to continue the matter to conclusion in the Judge’s former Judicial Division, provided that such matter shall be concluded not later than 3 months from the date the fiat was issued.
(3) Where the matter is part-heard but only for the parties to adopt their Written Addresses, the President of the Court may by fiat direct the trial Judge to fix a date for hearing and adoption of the Written Addresses and adjourn for judgment.
(4) Where such a matter is not concluded within the time limited by the fiat, subject to agreement between the parties, the President of the Court may, where the interest of justice demands, direct that the case be heard in the Judicial Division to which the Judge has been transferred. The directive of the President of the Court on the issue of transfer of the cause or matter shall be final.
(5) The parties in agreement may apply to the Judge taking over thematter for adoption of the proceedings and continue with the matter where the transferred Judge stopped.
11.—(1) The party(ies) seeking or desiring transfer of the cause or matter to the Judicial Division to which the trial Judge is transferred, shall apply in writing to the President and transmit copies of the application to the trial Judge and counsel to the other party(ies).
From the foregoing, a lot of options are open when a judge has earlier part heard a matter. A significant trend that runs throughout all the options is the use of the word “may”. By its very use, it means that it is not mandatory. The particular rule applying to the case of the Judgment Debtor herein is Order 62 Rule 10(5). It also makes use of the word ‘may’ apply to the judge taking over the matter for adoption of the proceedings and continue with the matter where the transferred judge stopped. It must be noted that even when parties apply to the Court to continue from where the former judge stopped, it still lies at the discretion of the Court to continue or order that the matter start de novo, depending on the circumstances.
I have gone through the proceeding in the substantive suit and discovered that on taking over this case on the transfer of my Learned Brother, Honourable Justice E.N Agbakoba, several adjournments were made to enable Defendant as well as Counsel to Defendant appear to no avail. Having filed this further and better affidavit relying on Order 62 Rule 10, it seems that what the Defendant is telling the Court is that his consent ought to have been sought in absentia.
I must pause here to reproduce the decision of the Supreme Court on fair hearing in MFA V. Inongha (2014) 4NWLR (Pt.1397) 343 at 376 where the Supreme Court held thus:
It is trite that once a party has been afforded the opportunity to present his case and he fails to take advantage of it, he cannot be heard to complain that his right to fair hearing has been breached. This was made very clear in the case of Pam & Anor V. Nasiru Mohammed & Anor (2008) 16NWLR (Pt.1112) 1 at 48 E – G where the concept of fair hearing was explained by Oguntade, JSC as follows:
The question of fair hearing is not just an issue of dogma. Whether or not a party has been denied his right to fair hearing is to be judged by the nature and circumstances surrounding a particular case. The crucial determinant is the necessity to afford the parties every right to put their case to the Court before the Court gives its judgment…..
In the case herein, the Applicant herein went to sleep during the trial of this case yet she now wants the Court to set her judgment aside citing negligence of former Counsel and lack of consent of parties to continue from where they stopped; she went to sleep in bringing the Application for setting aside the default judgment of the Court within time, which, I am yet to figure who will take the blame this time around. Furthermore, in the present proceedings, which in my record, the matter has been called up on 6th December, 2017; 16th January, 2018; 21st February, 2018; 18th July, 2018; 21st March, 2019; 11th June, 2019, the Judgment Debtor has never been in Court save on 21st March, 2019 when one Emmanuel represented the Judgment Debtor. I guess it is still the former Counsel that is hindering the Judgment Debtor from being in Court to know and monitor how their case is being handled by their new lawyer.
From the face of the Application, facts and circumstances of this case, this Court finds and I so hold that there is nothing placed before this Court to which the Court can satisfy herself and move herself to grant this Application in favour of the Judgment Debtor/Applicant.
In all, I must say that this Application is vexatious.
Consequently, the Application by the judgment Debtor fails and same is hereby dismissed.
Ruling is entered accordingly.
HON. JUSTICE M.N ESOWE