Dr. Okechukwu Obi & Anor V. Henry Ugwa & Anor (2016)

LawGlobal-Hub Lead Judgment Report

IBRAHIM SHATA BDLIYA, J.C.A.

This is an appeal against the ruling of the Kaduna State High Court of Justice (lower Court) delivered on the 19th of September 2012 in suit No. KAD/KD/ 26B/2012 in an application seeking for an order to set aside the judgment of the Court delivered on the 12th of July 2012. The genesis of the case before the lower Court is that in June 2011 the 1st respondent supplied four (4) tankers of Kerosene to the 1st appellant valued at N7, 350,000.00. There were other transactions between the appellants and the respondents which led to a disagreement as to who was owing the other and for what sums of money. The respondents as plaintiffs before the lower Court took out a writ of summons dated the 3rd of April 2012 and applied for summary judgment pursuant to Order 11 of the Kaduna State High Court (Civil Procedure) Rules 2007, claiming as follows:
?a. An award in favor of the plaintiffs and against the defendants for the sum of #6,800,000= six million, eight hundred thousand naira only being the liquidate sum due and payable to the plaintiffs by the defendants of

1

which the defendant failed, refused and neglected to refund to the plaintiffs despite repeated demands.
b. An award of 10% ten percent interest on the said sum of N6,800,000= six million, eight hundred thousand naira only per annum from the date of judgment until final liquidation of the entire sum in favor of the plaintiffs and against the defendants.
c. An award of expensae litis i.e. cost of this action calculated at the rate of 10% ten percentum of the claim in paragraph one thereof.
d. The defendants may pay the foregoing claims to I. O. Ezengwa & Co, the plaintiffs? counsel within the time. See pages 1-22 of the Record of Proceedings.?

The appellants were served with the originating processes as provided by Order 11 of the High Court Rules on the 9th of May, 2012. The appellant did not file a defence on the merit to the applications of the respondents as required by Order 11 Rule 4 of the High Court (Civil Procedure) Rules 2007. The appellants were represented by counsel on the 18th and 22 of May 2012 when the matter came up for hearing. counsel were not prepared for the hearing of the matter thence, they sought

2

for an adjournment which was granted. The matter was adjourned to the 19th of June, 2012 for the hearing of the application for summary judgment. Neither the appellants nor their counsel were in Court. The matter was further adjourned to the 17th of July 2012 for the hearing of the motions. On the 12th of July, 2012, the appellants’ counsel was not in Court, but Mrs. J. A. Ike Esq., held brief for him. Mrs. Ike Esq., sought for an adjournment on the ground that she was not prepared for the hearing of the applications, that she was only holding brief for the counsel to the appellants. The learned Judge refused to grant the adjournment, and proceeded to hear the application in accordance with Order 11 Rule 4 of the Rules of Court, and entered a summary judgment for the respondents per their claims. The appellants were aggrieved by the judgment of the lower Court, hence they filed a motion on Notice seeking for an order to set aside the summary judgment of the lower Court delivered on the 12th of July 2012. The learned trial judge of the lower Court refused the application, and dismissed it. The appellants, dissatisfied with the dismissal of their application,

3

filed a Notice of appeal to this Court on the 24th of September, 2012, challenging the decision of the lower Court on a two (2) grounds which are thus:
GROUND 1
The decision is against the weight of evidence
GROUND 2
The learned trial judge erred in law when he refused to set aside the default judgment of the Court dated 12th July, 2012.
PARTICULARS OF ERROR IN LAW
(i) The learned trial Judge held as follows: “The application by the Applicant in this case is neither an appeal against the Judgment nor another action to set the Judgment aside on ground of fraud. This Court cannot therefore set the Judgment aside being a judgment on the merit”
(ii) The learned Judge further held as follows: “I will not pretend that I have not seen the document annexed to the applicants affidavit in support which appear to show that they have made some payments to the respondents, however, this does not make the judgment a default judgment, in the circumstance this application must fail and it is accordingly dismissed”

The appellants sought the following reliefs in the event of this appeal succeeding.
1. An order setting

4

aside the ruling of the Honorable Justice Gideon Kurada delivered on the 19th September, 2012.
2. An order setting aside the default judgment of the Honorable Justice Gideon Kurada delivered on 12th July, 2012.
3. An order of this Honorable Court directing a retrial of the case.

The appellants’ brief of argument dated 27th of December, 2013, was deemed filed on 30th April, 2014; having been earlier filed on 27/12, out of the prescribed period. The respondents’ brief of argument dated 4th June, 2014 was deemed filed on 25th of March 2015, having been filed on 18th of December, 2014. In the appellants’ brief of argument 2 issues were distilled from the grounds of appeal on page 6 thereof. On page 3 of the respondents’ brief a lone issue has been formulated for the determination of the Court in the appeal. Issue 3 of the appellants and the sole issue of the respondents are not dissimilar. Therefore, the issues for determination in the two briefs of argument are hereby compressed to two issues thus:
(i) whether the trial Court was right in its decision to have refused to set aside its default judgment when the appellants defence raises triable

5

issues?
(ii) Whether the judgment of the trial Court, can, in its entire sphere be termed ?judgment on the merit”.

RESOLUTION OF ISSUES
The 2 issues are taken together and resolved simultaneously.

ISSUES 1 AND 2
Kabantiyok Esq., of learned counsel to the appellants submitted that the modern trend is to do substantial justice devoid of undue regard to technicalities; therefore, mere non-compliance with Rules of Court should not be relied on to do injustice to the litigants. That the appellants placed relevant and sufficient materials before the lower Court, yet it refused to set aside its summary judgment simply because there was non-compliance with the Rules of Court by the appellants. The cases of Bello v. A. G. Oyo state (1986) 12 SC 1; Ogunubi v. Kosoko (1994) 18 NWLR (Pt. 210) P. 551, and Ezegbu v. FATB (1992) 1 NWLR (Pt. 220) P. 708 were cited and relied on to buttress the submissions supra. That where there are sufficient grounds to set aside a summary judgment a trial Court should not hesitate to do. The case of UTC (Nig) Ltd v. Pamotei (1989) 1 NSCC P. 523 and Nishizawa Ltd v. Jethwani (1984) 12 SC p. 900 @ 901

6

cited to buttress the submission that the Court should always consider the interest of the parties and the need to do substantial justice when considering an application to set aside a summary judgment such as the one dealt with by the lower Court. That having admitted that there were documents before the trial Court that the appellants had paid certain sums of money to the respondents, the learned trial judge ought not to have enter a summary judgment in favor of the respondent without considering the said documents, though not filed in accordance with the Rules of Court.

On whether the summary judgment of the lower Court is on the merit, counsel cited and relied on the definition of the term “on the merit”, in the BLACK’S Law Dictionary 9th Edition, and the cases of Cardoso v. Daniels & ors (1986) 2 NWLR (Pt.45) P.537, and UTC (Nig) Ltd v. Pamotei, supra P. 558, and submitted that a judgment on the merit entails the consideration of the case of both parties, evaluating the evidence and ascribing probative value thereto, before taking a decision. Counsel contended that the lower Court did not give due regard to the affidavit of the appellants

7

filed in defence of the action filed by the respondents. That had he taken into consideration the deposition in the affidavit of the appellants the judgment of the lower Court would have been otherwise. Counsel therefore did submit that the learned trial judge of the lower Court possessed the power to exercise its discretion, in view of the materials placed before him, in favor of the appellants and set aside the summary judgment, there being triable issue disclosed by the affidavit evidence. Counsel did urge this Court to allow the appeal, set aside the ruling of the lower Court, and order for a retrial before the lower Court in the interest of justice.

Ezengwa Esq., submitted that by the provisions of Order 11 of the High Court (Civil Procedure) Rules Kaduna State 2007, a defendant who intends to defend the claims of the plaintiff, must file certain documents before the Court prior to the hearing of the suit. That the appellants neglected to comply with the provisions of Order 11 Rule of Rules of Court, 2007, therefore, the lower Court was justified in entering the summary judgment in favour of the respondents. Counsel cited and relied on the cases of Alaik

8

v. Olu (2000) FWLR (Pt. 23) P. 1294 @ 1308 and Dansa Foods (Nig) Ltd v. Isong (2001) All FWLR (Pt. 556) @ page 593 @ 598 to buttress the principles of law that once a summary judgment has been entered, it is on the merit and cannot be set aside without cogent reason, just as in judgment under the Undefended List Procedure.

Counsel contended that where rules of Court stipulates time or procedure for the doing of or taking a steps to do an act, same must be complied with, else any action taken cannot be valid in law. On the assertions that the failure to file a defence with a supporting affidavit, counsel submitted that it is not sufficient to blame counsel, there must be cogent reason explaining the failure to file the defence. The cases of Emili v. State (2014) All FWLR (Pt. 711) P. 1565 @ 1576; Min of FCT v. Abdullahi (2010) All FWLR (Pt. 507) P. 179 @ 195 as well as ldris v. Abubakar (2011) All FWLR (Pt. 557) P. 733 @ 748 were cited and relied on to reinforce the submissions supra.

On the requirements that must be satisfied in order for a Court to exercise its discretion to set aside a summary judgment or judgment in default, the case of N.

9

A. Williams & Ors v. Hope Rising Voluntarily Funds society (1992) 1 -2 SC P. 145 @ 160 was cited and relied on, wherein six (6) conditions have been enumerated as a pre-condition to setting aside a summary judgment or judgment in default. Counsel did urge that the appeal be dismiss for lacking in merit.

The respondents, as plaintiffs, at the lower Court, took out a writ of summons with a statement of claim, and also filed a motion on notice seeking for an order entering summary judgment pursuant to Order 11 of the High Court (Civil Procedure) Rules, Kaduna State. These Court processes were served on the appellants on the 9th of May, 2012. The appellants neglected and or failed to take action as required by Rule 4 of Order 11 of the Rules of Court, that is, to file a statement of defence; witness depositions on oath; exhibits intended to be tendered at the trial and written address in reply to the application for summary judgment. The case came up for hearing on the 18th and 22nd of May, 2012, but because learned counsel to the appellants was not prepared for the hearing of the case, it was adjourned to the 10th of June 2012. On the 19th of June

10

2012, the date fixed for the hearing of the application for an order to enter summary judgment, counsel to the appellants did not appear. The motion on notice was adjourned to the 12th of July 2012.

On the 12th of July 2012, the learned counsel to the appellants was represented by one Mrs. J. A. Ike, holding the brief of E. A. Igwe Esq. Ike Esq. sought for an adjournment on the ground that he was not prepared because he was holding briefed of Igwe Esq. The application for an adjournment was refused, and the Court proceeded to hear the application for the summary judgment in accordance with Order 11 Rule 4 of the High Court (Civil Procedure) Rule, Kaduna State, 2007, which was according granted by the Court. On the 19th of July, 2012, the appellants filed a motion on notice for an order setting aside the summary judgment of the 12th of July, 2012. The learned trial judge, refused the application, and dismissed same. The appellants were aggrieved hence the appeal to this Court.

Order 11 of the High Court of Justice (Civil Procedure) Rules, Kaduna State 2007, Provides thus:
1. Where a plaintiff believes that there is no defence to the

11

claim, the plaintiff shall file with the originating process the statement of claim, the exhibits, the depositions of the plaintiff’s witnesses and an application for summary judgment which application shall be supported by an affidavit stating the grounds for the plaintiff’s belief and a written address in respect thereof.
2. A plaintiff shall deliver to the Registrar as many copies of all the processes and documents referred to in Rule 1 of this order as there are defendants’
3. Service of all the processes and documents referred to in Rule 1 of this Order shall be effected in the manner provided under Order 7 of these Rules’
4. where any defendant served with the processes and documents referred to in Rule 1 of this order intends to defend the suit, such defendant shall, not later than the time prescribed by these Rules for filing a defence, file;
(a) a statement of defence;
(b) depositions of witnesses:
(c)the exhibits to be used in the defence; and
(d) a written address in reply to the application for summary judgment.
5. (1) Where it appears to a Judge that a defendant has a good defence and ought to be permitted

12

to defend the claim, the Judge may grant the defendant leave to defend the claim’
(2) Where any defendant fails or neglects to comply with the provisions of Rule 4 of this order, or it appears to the Judge that the defendant has no good defence to the claim, the Judge may enter judgment for the Plaintiff.
(3) where it appears to a Judge that the defendant has a good defence to part of the claim but no defence to other parts of the claim, the Judge may thereupon enter judgment for that part of the claim to which there is a defence”

The summary judgment entered on the 12th of July 2012, in favor of the respondent are on pages 271 to 272 of the printed record of appeal.The ruling refusing to set aside the summary judgment aforesaid is on page 274 of the printed record of appeal. To fully comprehend and appreciate the reasons given for the refusal and dismissal of the application to set aside the said ruling, same is reproduced hereunder.
I have carefully read the defendant/Applicants Motion, the affidavit in support and the written address, and I have also read the plaintiff/respondents counter-affidavit and written

13

address.
The contention of the applicants is that this Court entered default judgment in favour of the plaintiffs/respondents as per their writ of summons and statement of claim and that the default in filing the defendants/Applicants’ defence is purely the fault of the applicants? former substantive counsel.
The Respondents however content that the judgment is a judgment on merit since it is a summary judgment and not a default judgment.
Now I have read Order 1 and 2, Order 10 Rule 10 and Order 41 Rule 3 of the Rules of this Court, relied upon by the appticants. Order 15 is on how motions should be and how they should be filed and how the respondent may react to motions. Order 10 Rule 10 provides for how a judgment given in default of a appearance pursuant to the Rules in Order 10, may be set aside and Order 41(1) is on computation of time.
The judgment in this suit was however not given pursuant to the provision of Order 10 of the Rules of Court, which is on default of appearance and which a judge may set aside or vary. On the contrary, the judgment was given pursuant to Order 11 Rule 5(2) of the Rules of Court. Order 11 is on

14

summary of judgment for when and how such judgment may be set aside of varied as may be the case in default judgment under Order 10 Rules 10. In other words, Order 11 does not provides that summary judgment may be set aside or varied. Chief Ezengwa submitted and I agree with him, that this not a default judgment, but judgment obtained under summary judgment procedure and therefore cannot be set aside, He cited the case of Daniela v. Insight Engineering Co. Ltd. (2002) 10 NWLR (Pt. 775) 331 in which the Court of Appeal held that:
A judgment obtained under the summary judgment procedure is a judgment on the merit and not a default judgment. Consequently, the proper step for a party aggrieved with the judgment to take is to appeal against the judgment or bring another action to set it aside on ground of fraud.?
The application by the applicants in this case is neither an appeal against the judgment nor another action to set the judgment aside on ground of fraud. This Court cannot therefore set the judgment aside, being a judgment on the merits”

Was the learned trial judge of the lower Court right in refusing and

15

dismissing the application for an Order setting aside the ruling of 19th July 2012? The power of a Court to set aside it judgment, ruling or Order is statutory, that is by law. Thus, a Court does not have power to set aside its judgment, ruling or order without statutory provisions enabling it to do so. See Nen Ltd v. Asnogu (2008) 14 NWLR (Pt. 1108) P. 582 @ 592 and Uku v. Okumagba (1974) 3 SC 35. In an application to a Court to set aside its judgment or order in the absence of any provision in its rules empowering it to set aside its earlier judgment or order; where the judgment or order was neither fraudulently obtained nor for any other reason a nullity, the Court’s inherent jurisdiction to set aside the judgment or order is unavailing.

?Whereas Order 11 of the Kaduna State High Court (Civil Procedure) Rules 2007, enables the Court to make an order to enter summary judgment in appropriate cases, there are no ;provisions empowering the Court to set aside summary judgment entered pursuant to Order 11 of the Rules. However, in deserving cases, the Court, under its inherent jurisdiction may make an order setting aside summary judgment. For instance in

16

UTC (Nig) Ltd v. Pamotei & Ors (1989) 1 NSCC P’ 523, UWAIS J.S.C (as he then was) had this to say:
“Where a judge is faced with a statement of defence filed irregularly to a claim upon which a summary judgment under Order 10 has been given the Court, in the interest of justice, will look at the defence irregularly filed. If it disclosed a defence on the merits, the defence will be let in but not otherwise. A trial Court cannot close its eyes to a statement which raises triable issues filed by the defendant, even if irregularly, for to close ones eyes to such a statement will be to sacrifices the spirit of justice on the altar of the rules of procedure? (underline mine for emphasis).
OPUTA J.S.C (of blessed memory) when dealing with a similar case on summary judgment in the case of Nishzawa Ltd v. Jethwani (1984) 12 SC P. 900 @ 907 said:
“Procedure for summary judgment established to prevent an injustice to a deserving plaintiff should not be allowed to become a vehicle for injustice (like the statute of Fraud) against a deserving defendant to do the end, it is my view that Order 10, Rules 1 has not imposed undue limitations on

17

the discretion of the trial judge as to the material or documents he will look at to satisfy that a defendant has “disclosed such facts as may be deemed sufficient to entitle him to defend’ “The interest of justice between the parties demand that when a statement of defence has been filed, though irregularly, the learned trial judge would not shut his eyes to the facts alleged therein and in good conscience shut the defendant out on a mere technical Points?.
Nnaemeka -Agu J.S.C (of blessed memory) while lending his voice in UTC (Nig) Ltd v. Pamotei on attitude of Courts to refusal to set aside default judgments on grounds of adherence to rules of Court said:
“I am satisfied that the summary judgment under Order 10 of the High Court of Lagos State (Civil Procedure) Rules, 1973, can in appropriate case, be set aside by the same judge under Order 24 Rules 15. This is in accord with the principle enunciated by Lord Atkin in Evans v. Bartlam (7937) 2 ALL E.R 646…Order 10 procedure is both a necessary Weapon and a potential engine of injustice..It is necessary weapon for obtaining quick judgment where tie defendant either has no defence to the

18

action of the type contemplated by the rules or does not, for any reason, want to contest. It becomes an engine of injustice where the defendant has been improperly shut off from putting a valid defence”
But, in view of the provisions of Order 11 Rule 5(2) of the Kaduna State High Court (Civil Procedure) Rules , 2007, can a summary judgment entered pursuant to Rule 4 thereof, be set aside by the Court? In the case of Daniela v. Insight Eng. Co. Ltd (2002) 10 NWLR (Pt’ 775) P’ 331, this Court held that:
“A judgment obtained under the summary judgment procedure is a judgment on the merit, and not a default judgment. Consequently, the proper step for a party aggrieved with the judgment to take is to appeal against the judgment or bring another action to set it aside on ground of fraud”
Summary judgment can be likened to judgment obtained under the ?undefended List” procedure, which cannot be set aside, being a judgment on the merit. In Dansa Foods (Nig) Ltd v. Isong (2011) AII FWLR (Pt. 596) P. 598 @ 558, this Court held that:
?… generally, a judgment once entered under undefended list is final for all purposes and cannot be

19

set aside by the trial Court unless on appeal, a Court may however set aside its own judgment on the undefended list if there is a provision in the rule stating it can do so or there is something extrinsic to the adjudicating process that robs it of Jurisdiction.?
I am not unmindful of the provisions of Order 21 Rule 12 of the Kaduna State High Court (Civil Procedure) Rules, 2007, which provides for setting aside of default judgment, with a proviso that the default judgment can only be set aside upon an application on grounds of fraud; non-service or lack of jurisdiction. This ground, if established, robs a Court of the jurisdiction to hear and adjudicate any matter or dispute. A summary judgment under Order 11 Rule 4 of the Rules of Court 2007 does not come with the ambit of the provisions of Order 21 Rule 12 of the Rules of Court. The principles of law enunciated in the cases of UTC (Nig) Ltd v. Pamotei & ors (1989) NSCC P. 523 and Nishzawa Ltd v. Jethwani (1984) 12 SC p. 900 dealt with default judgment where either party did not appear on the day the case was heard, nor pleadings filed as required by Rules of Court. The principles of law

20

enunciated in the foregoing cases do not therefore apply to summary judgment, which is a decision on the merit.

The learned trial judge of the lower Court, in entering the summary judgment in favour of the respondents on the 12th of July 2013 did consider the case before it and then said as follows on pages 271 to 272 of the printed record of appeal:
“I have carefully considered the submission of both learned counsels in this suit. The plaintiffs filed their writ of summons and statement of claim together with a Motion for summary Judgment.
The motion on notice was served on the defendants/respondents along with the writ of summons and statement of claim on 9th May, 2012. In paragraph 18 of the affidavit in support of the motion, the plaintiffs deposed that the defendants have no defence to this action.
Order 11 Rule 4 of the Kaduna State High Court (Civil Procedure) Rules, 2007, provides that where a defendant served with the processes and document referred to in Rule 1 of the order intend to defend the suit, he shall not later than the time Prescribed by the Rules for filing a defence, file a statement of defence, deposition of witnesses,

21

exhibits to be used in the defence and a written Address in reply to the application for judgment.
The defendant in this case have not complied with the requirements of this Rules. They have not filed a defence, deposition of witnesses, exhibits and Written address in reply to the plaintiffs, application for summary judgment.
Rule 5(2) of the order provides that where any defendant fails or neglect to comply with the provisions of Rule 4 of the order, the Judge lay enter judgment for the plaintiff. The defendants having fail or neglected to comply with Order 4, I have no reason not to enter judgment for the plaintiffs” I find merit in the application and it is hereby granted”.

As to what is a judgment on the merit, the principles of law enunciated in the case of UTC (Nig) Ltd v. Pamotei & ors (1989) NSCC P. 523 @ 558 – 559 by Oputa J.S.C (of blessed memory) is apt and suffices to illuminate the distinction between a judgment in default and a summary judgment. The learned justice said:
“what then is the meaning of “Hearing on the merit” or judgment on the merit? A judgment on the merit is one ‘rendered after argument and

22

investigations, and when it is determined, when party is in the right, as distinguished from a judgment rendered upon some preliminary or formal or mere technical point or by default and without trial? A judgment on the merits is the one that takes cognizance of the bearing of the law on the rights of the parties where pleadings have been filed, issues are settled on those pleadings and the rights of the parties are decided on the resolution of the issues. Where this happens, the ensuring judgment is on the merit. But where as in this case the judgment set aside by Longe, J. was obtained by Order 10 Rule 3 Lagos High Court Rules then the ensuring judgment was one obtained because of the default of the defendant to comply with the said Order 10 Rule 3 of Lagos High Court Rules. (Underline mine for emphasis)

The summary judgment entered in favour of the respondents on the 12th of July, 2012 was pursuant to the High Court (Civil Procedure) Rules 2007 not for default of appearance or pleadings, to render it a default judgment which could be set aside as provided by Order 21 of the Rules of Court, 2007.

?By paragraphs 4(b) of the affidavit

23

filed in support of the application for an order to set aside the judgment delivered on 12/7/2012, the failure to comply with Order 11 Rule 5 (2) of the High Court (Civil Procedure) Rules, Kaduna State, 2007, was due to the negligence of counsel handling the case at the lower Court at that time. The deposition in the aforesaid paragraph 4(b) of the affidavit are thus:
“4(b) that the default in filing the defendant/applicant defence is purely the fault of his former counsel substitute counsel”

The record of the proceedings of the lower Court on pages 271, of the printed record of appellant, is an answer to the question whether the appellants were diligent or not in presenting their case. The records are thus:
“Chief Sir Ezengwa I. O. For the plaintiffs/applicants
J. A. Ike (Mrs.) holding the brief of E. A. Igwe for the defendants/ respondents
Ezengwa: we have two Motion and we are ready to go on.
Ike: we are not ready because the counter affidavit and reply on point of law were handed over to me only yesterday evening. The file was sent to me yesterday by the substantive counsel at about 4.30p.m yesterday. The substantive

24

counsel is not within jurisdiction. I pray for a short date to enable the substantive counsel appear or in the alternative to enable me study the file and come properly.
Ezengwa: The matter was filed since April, 2012 and up till now the defendant have not entered appearance and have not file any defence and they are totally out of time. They have not shown cause why they have not entered appearance.
Registrar: Defendant were served with the writ of Summons on 9th May 2012.
Court: As rightly observed by chief Ezengwa, the writ of Summons with the statement of claim as well as motion for summary judgment were filed in April, 2012, By the record of this Court, these processes were served on the defendants on 9th May, 2012. However, till date, the defendants have not entered appearance and have not filed defence to the plaintiffs? claims. They are well out of time and there is no application for leave of Court to allow them file any defence,
There is therefore no basis for adjourning the matter for the defendants in the circumstances. Besides, Mrs. Ike only said the substantive counsel to the defendants sent the file to her yesterday

25

by 4.30p.m. No reason whatsoever has been given why he is not in Court, At any rate, since Mrs. Ike is holding his brief, the law is that she hold it firmly. The application for adjournment is accordingly refused for above reasons”

From the proceedings of the lower Court reproduced supra’ the appellants were not diligent in the prosecution of their defence to the claims of the respondents. The excuse of their counsel’s fault in not doing the needful as required by Order 11 Rules (2) of the High Court (Civil Procedure) Rules , 2007, cannot justify the non compliance with the said provisions of the aforesaid order. For as pointed out in FCT v. Abdullahi (2010) All FWLR (Pt. 507) P. 179 @ 196.
“The law is definitely settled that no litigant should be punished for sin or mistake of counsel. It is however also the law that sin of counsel or mistake of counsel is not a magic wand and it ought to be appreciated that the Court do not and are indeed not to condone inordinate delay or lack of diligence on the part of litigants and counsel.?

The learned trial Judge of the lower Court was right in refusing and dismissing the application

26

for an order to set aside the summary judgment entered in favour of the respondents on the 12th of July 2012, for there was no merit in that application. In the result, issues 1 and 2 are hereby resolved against the appellant. The appeal fails. The ruling of the lower Court delivered on the 19th of July 2012 is hereby affirmed. The respondents are entitled to costs assessed at N50, 000.00. Same is awarded to them accordingly.

Other Citations: (2016)LCN/8702(CA)