CORAM

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HONOURABLE JUSTICE Z. M. BASHIR, PhD

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PARTIES

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MISS SOPHIA NMAMYEMEM

APPELLANTS 

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MR. VICTOR BRIGHT

RESPONDENTS 

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AREA(S) OF LAW

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PRACTICE AND PROCEDURE, FAIR HEARING, CONSTITUTIONAL LAW, FORECLOSURE, EXTENSION OF TIME, DEEMING ORDER, DISCRETION OF THE COURT, EVIDENCE

 

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SUMMARY OF FACTS

The Claimant, Miss Sophia Nmamyemem, commenced this suit on 18 January 2023 by way of a General Form of Complaint, accompanied by the requisite processes. The Defendant entered a conditional appearance on 22 June 2023 and filed a Notice of Preliminary Objection, which was heard and determined on 5 January 2024. Trial commenced on 2 May 2024, with the Claimant testifying as CW1, adopting her witness statement on oath and tendering three documents admitted as Exhibits C2 to C4. The Claimant closed her case and the matter was adjourned for the Defendant’s defence.

Despite several adjournments granted to enable the Defendant to open his defence, the Defendant failed to do so. On 29 April 2025, the Defendant was foreclosed from entering his defence for want of diligence under Order 38 Rule 9 of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017. The matter was subsequently adjourned for adoption of final written addresses. The Defendant also failed to file a final written address.

On 13 June 2025, the Defendant filed a Notice of Change of Counsel and a Motion on Notice seeking: (i) an extension of time to seek leave to vacate the foreclosure order; (ii) an order setting aside the foreclosure order of 29 April 2025; (iii) an extension of time to file and serve a Statement of Defence; and (iv) a deeming order regularising the Statement of Defence and accompanying processes already filed with the application.

In support of the application, the Defendant deposed in a 13-paragraph affidavit that shortly after being served with the originating processes, he was deployed by his employer, the Nigeria Liquefied Natural Gas Ltd. (NLNG), on an official foreign assignment that lasted approximately two years; that this prevented him from reaching his former counsel; that upon returning to Nigeria, there was a further breakdown in communication with his erstwhile counsel until May 2025; and that he subsequently engaged new counsel and prepared his defence.

The Claimant opposed the application in a 19-paragraph Counter-Affidavit and written address, contending that: the Defendant’s explanation was bare, uncorroborated and unverifiable, as no deployment letter, travel itinerary or official memo from NLNG was produced; and that the application was filed outside the 30-day window prescribed by Order 9 Rule 6 of the Rules.

 

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HELD

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The Court granted all four substantive reliefs sought by the Defendant/Applicant, as follows:

1. On Relief One (extension of time to seek leave to vacate the foreclosure order): The foreclosure order was made on 29 April 2025 and the application was filed on 13 June 2025 — outside the 30-day window under Order 9 Rule 6. However, relying on Order 57 Rule 4(1), which grants the Court broad powers to extend time before or after the expiration of any prescribed period, and in the interest of justice and fair hearing, leave was granted to the Defendant to apply to vacate the foreclosure order.

2. On Relief Two (setting aside the foreclosure order): The Court held that the dictates of fair hearing — a constitutional entitlement — weighed heavily in favour of allowing the defence to be heard. The foreclosure order of 29 April 2025 was accordingly set aside.

3. On Relief Three (extension of time to file and serve Statement of Defence): The Court, satisfied that granting the extension would occasion no prejudice to the Claimant, exercised its discretion in favour of the Defendant in the interest of justice.

4. On Relief Four (deeming order): Satisfied that the Statement of Defence and all related processes were filed alongside the application and that default fees had been paid, the Court made a deeming order regularising the filing and service of the defence processes.

No order as to costs was made.

 

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ISSUES

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As framed by Defendant’s Counsel:

Whether the Defendant/Applicant is entitled to the grant of this application?

As framed by Claimant’s Counsel:

Whether, in the circumstances of this application, this Honourable Court can exercise its discretion in favour of the Defendant/Applicant?

As adopted by the Court:

Whether, in the circumstances of this case, the Defendant/Applicant is entitled to the reliefs sought?

 

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RATIONES DECIDENDI

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FORECLOSURE UNDER ORDER 38 RULE 9 — WHERE A DEFENDANT FAILS TO OPEN DEFENCE DESPITE SEVERAL ADJOURNMENTS, FORECLOSURE IS WARRANTED

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“From the record of proceedings earlier outlined, it is evident that the Defendant was foreclosed on the 29th of April 2025 after failing to open his defence despite several adjournments granted for that purpose.” – Per Z. M. Bashir, J

 

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APPLICABLE RULE WHERE DEFENDANT HAS ALREADY ENTERED APPEARANCE AND PARTICIPATED IN PROCEEDINGS — ORDER 38 RULE 9 AND NOT ORDER 38 RULE 2(5)

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“Order 38—particularly Rule 2—governs trial proceedings where a Defendant is absent. It is therefore Order 38 Rule 9 that is directly relevant. The Rule provides: ‘Where any matter fixed for trial is adjourned twice at the instance of a party or counsel to a party and the party or counsel fails or neglects or is not ready or willing to continue with the hearing of the party’s case, the case shall be foreclosed against that party and the Court shall deal with the matter as the justice of the case may demand.'” – Per Z. M. Bashir, J.

 

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POWER TO REVIEW FORECLOSURE ORDER — GROUNDS UPON WHICH THE COURT MAY REVOKE OR VARY ITS OWN ORDER

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“Order 38 Rule 24(1): The Court may, either of its own motion or on application by any of the parties, review any order made by it and may, on such a review, revoke or vary that order on the grounds that: a) the order was wrongly made as a result of an error on the part of the court staff; b) a party did not receive proper notice of the proceedings leading to the order; c) the order was made in the absence of a party entitled to be heard; d) new evidence has become available since the making of the order; or e) the interest of justice requires such review.” – Per Z. M. Bashir, J.

 

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EXERCISE OF COURT’S DISCRETION — PARTY SEEKING INDULGENCE MUST PLACE COGENT AND CREDIBLE REASONS BEFORE THE COURT

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“I agree entirely with learned counsel on both sides that a party who seeks the indulgence of the Court to exercise its discretionary powers must place before the Court cogent and credible reasons capable of persuading the Court to exercise such discretion in his favour.” – Per Z. M. Bashir, J.

 

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BARE ASSERTIONS IN AFFIDAVIT — UNCORROBORATED AND UNVERIFIABLE CLAIMS WITHOUT DOCUMENTARY SUPPORT ARE INSUFFICIENT

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“However, these assertions, without more, are bare and uncorroborated. No deployment letter, travel itinerary, official memo, or communication from NLNG has been placed before the Court to substantiate the claim of foreign assignment. The Court therefore finds that the Defendant has failed to demonstrate any verifiable, credible, or documentary proof explaining his prolonged absence or lack of diligence.” – Per Z. M. Bashir, J

 

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FAIR HEARING AS A CONSTITUTIONAL ENTITLEMENT — COURT MAY GRANT INDULGENCE IN INTEREST OF SUBSTANTIAL JUSTICE NOTWITHSTANDING WEAKNESS OF EXPLANATION

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“Despite the weakness of the explanation, the Court is nevertheless minded—in the interest of justice and fair hearing, which is a constitutional entitlement—to consider the Defendant’s application. The Defendant now has new counsel who has demonstrated readiness to proceed diligently with the matter. Shutting the Defendant out completely would defeat the objective of substantial justice.” – Per Z. M. Bashir, J.

 

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BROAD POWER TO EXTEND TIME UNDER ORDER 57 RULE 4(1) — COURT MAY EXTEND TIME EVEN AFTER EXPIRATION OF PRESCRIBED PERIOD

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“Order 57 Rule 4(1) provides the Court with broad powers: ‘Notwithstanding anything contained in these Rules, the Court may, as often as it deems fit, and either before or after the expiration of the time appointed… extend or adjourn the time for doing any act or taking any proceeding.’ This Rule empowers the Court to extend time even after the lapse of the prescribed period.” – Per Z. M. Bashir, J

 

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SETTING ASIDE FORECLOSURE ORDER — DICTATES OF FAIR HEARING WEIGH IN FAVOUR OF ALLOWING DEFENDANT TO BE HEARD ON THE MERITS

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“Upon a careful consideration of the principle of fair hearing and the overarching need to do substantial justice, it is the position of this court that the dictates of fair hearing weigh heavily in favour of allowing the defence to be heard. This court is satisfied that substantial justice in the circumstances requires that the Defendant ought not to be shut out.” – Per Z. M. Bashir, J.

 

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DEEMING ORDER — CURES PROCEDURAL IRREGULARITY WHERE PROCESSES ARE FILED OUT OF TIME BUT DEFAULT FEES HAVE BEEN PAID

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A deeming order cures procedural irregularity where a process has been filed out of time but default fees have been paid. Order 57 Rule 4(1) provides the enabling foundation for the Court to regularize such processes.” – Per Z. M. Bashir, J

 

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CASES CITED

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STATUTES REFERRED TO

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⦁ Constitution of the Federal Republic of Nigeria 1999 (as amended) — Section 36(5)

⦁ National Industrial Court of Nigeria (Civil Procedure) Rules 2017 — Order 9 Rule 6; Order 17 Rule 1; Order 38 Rules 2(5), 9 and 24(1); Order 57 Rule 4(1)

 

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OTHER CITATIONS

CLICK HERE TO READ FULL JUDGMENT

COUNSEL

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1. O. Peters, Esq. for the Claimant

2. I. O. Emmanuel, Esq. for the Defendant