"Two reasons are discernible from the Ruling of the learned trial Judge in granting extension of time to apply to set aside the Judgment of the 10th February, 2012 to the Respondents/Applicants. The learned trial Judge looked into paragraph 3(k) of the Supporting Affidavit, Paragraph 5(f) of the Counter-Affidavit and Paragraph 3(f) of the Further and Better Affidavit and came to the conclusion:

1. "that the fact that it was only recently that their said former Counsel drew their attention to the letter written by the Counsel to the defendants/counter-claimants respondents dated 28th February, 2012 to which is attached the default judgment ....." was not really contradicted by the Appellants in Paragraph 5(f) of their counter-affidavit.
2. That the Appellants as 1st - 3rd Defendants/Counter Claimants did not file a Further and Better Counter Affidavit and that undenied Paragraphs of Affidavit should be treated as admitted. Even at this very early stage, it ought to be noted that Appellant's Paragraph 5(f) is not admission of the Respondents Paragraph 3(k) of the Supporting Affidavit as it is not equally right to say that failure of the Appellants to file a Further and Better Counter Affidavit when issues have been joined by the Supporting Affidavit, Counter Affidavit and Further and Better Affidavit constitutes an admission.

 After granting Respondents' Prayer 2 for extension of time to apply to set aside the default judgment, the learned trial Judge then set out the five factors that should guide the exercise of discretion to set aside default judgment as laid down in the cases of: TENO ENGINEERING LTD. VS. ADISA (2005) ALL FWLR (PT. 260) 183 SC AT 188; WILLIAMS VS. HOPE RISING VOLUNTARY FUNDS SOCIETY (1982) 1 - 2 SC 145 juxtaposed portions of the Affidavit evidence of the contesting parties and indeed resolved each of the factors in favour of the Respondents.

As I mentioned however, in the earlier part of this Judgment, the discerning rationale of the learned trial Judge could be categorized into three perhaps two compartments. The first is the alleged ill health of the 1st Respondent and the wife of the 2nd Respondent. The second is the inadvertence of the Respondents' Counsel, B. O. Okoh Esq., for which the learned trial Judge reasoned should not be visited on the Respondents (Litigants). The third, rightly or wrongly is the perception of the learned trial Judge that the failure of the Appellants to contradict the Respondents Further and Better Affidavit with a Further and Better Counter-Affidavit constitutes admission of the Respondents' averments.

 For clarity of purpose, the factors laid down for the exercise of the discretion of the Court in the cases of: TENO ENGINEERING LTD. VS. ADISA (Supra) and WILLIAMS VS. HOPE RISING VOLUNTARY FUNDS SOCIETY (Supra) are as follows:

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) would be prejudiced or embarrassed upon an order of rehearing of the suit being made so as to render such a course inequitable and
4. Whether the Applicant's case is manifestly unsupportable.
5. The Court must be satisfied that the Applicant's conduct throughout the proceedings that is from the service of writ upon him to the date of judgment, has been such as to make this application worthy of a sympathetic consideration.

In more general terms, I think the question of ill-health of the 1st Respondent and the wife of the 2nd Respondent have been given undue consideration in the determination of the application before the learned trial Judge, the Respondents having engaged a Counsel who did not make any such complaint to the Court until judgment was entered after a trial that lasted from 2007 when the Respondents' case was instituted to 10th day of February, 2012 when judgment was entered for the Appellants. It seems to me that the crucial issue in this appeal is the remedy available to litigants when they have entrusted their case to Counsel who willy-nilly decided to treat their case with reckless abandonment.

In the instant case, the fact that Respondents' former Counsel did not handle the Respondents' case with the seriousness that the case deserved cannot be seriously disputed by the parties to this Appeal. Abundant testimony for the above fact could be found both in Paragraph 3 of the Respondents' Supporting Affidavit and Paragraphs 4 and 5 of the Appellants' Counter Affidavit for example thus: SUPPORTING AFFIDAVIT: 3. (a) The Claimants/Applicants filed this Suit against the Defendants' Counter Claimants/Applicants on the 8th day of May, 2007. (b) The Defendants/Counter-Claimants/Respondents filed their Statement of Defence and Counter Claim on the 26/10/2007. (c) On the 12/04/2011, the Claimants/Applicants' Counsel, B. O. Okoh Esq., was absent from Court hence the Claimants claim was struck out. (d) The Claimants/Applicants' Counsel, B. O. Esq. then filed a motion for Relistment and amendment dated 22nd July 2011, which was later struck out on 23rd November, 2011 when it came up as a result of the absence of B. O. Okoh Esq. (e) Her said Counsel, B. O. Okoh Esq., was not calling her on phone or visiting her to give her an update of what was happening in the case knowing fully well that she was very ill and unable to move around. (f) When she managed to call the said B. O. Okoh Esq., on two particular occasions to find out the position of the case, he assured her that she has nothing to worry about and that he was on top of the situation unknown to her the reverse was the case. (g) In view of the above, the Claimants/Applicants were unable to attend proceedings and the said Counsel kept them in the dark about the progress of the case. APPELLANTS' COUNTER AFFIDAVIT 4. That Paragraphs 1, 2 and 3 (a - c) of the Claimant/Applicant Affidavit in support of the motion is admitted. 5. That Paragraphs 3 (d - r) are not true and is hereby denied. a) That Paragraph 3 (d) of the Claimants/Applicants Affidavit in support of motion is false. The Claimants/Applicants' motion for relisting was struck out on the 5th day of December, 2011 and not 23rd day of November, 2011. c) In denial to Paragraph 3(f), I say that B. O. Okoh Esq. has always been in touch with the 1st Claimant/Applicant and has given her an update information of this case. The 1st Claimant in one occasion broke into the land while the case was still pending and cleared the land for cultivation. The fact was reported to the Court on the 5/4/11 and 12/4/11 with the pictures of the burnt bush attached and marked Exhibit 'A' is the photograph showing the burnt area. d) That Paragraph 3(g) is false and in denial, I say that the 1st Claimant and her lawyer has been in touch and B. O. Okoh Esq. never at any time throughout the pendency of the case informed the Court of the ill-health of the 1st Claimant. v) That on the 20/7/2011 when the case was slated down for hearing, the Court ordered the service of hearing notice on the Claimant' Counsel which was in fact served but he failed to appear in Court. The Order for hearing Notice and the Affidavit of service of the hearing Notice forms part of the record of proceedings of this Honourable Court and I refer to same as Exhibit. w) That on the 27/9/2011, DW2 testified and the case was further adjourned to 31/10/11 for cross examination with an order to serve hearing Notice on the Claimant's Counsel which was in fact served on him. The Order of Court of 27/9/2011 and the Affidavit of service of Hearing Notice form part of the record of proceeding of the Honourable Court and I refer to same as Exhibit.

My Lords in all the circumstances of this case, I am convinced that the decision of the Supreme Court in the case of NGERE VS. OKURUKET AND ORS. (2014) LPELR - 22883 (SC) Per Rhodes Vivour JSC throws a greenlight to the determination of this Appeal. While commenting on the duty of Counsel, that is whether the client is bound by how Counsel conducts his case, the Apex Court held thus:"The well laid down position of the law is that when Counsel is briefed to handle a case and he accepts the brief, he has authority to decide within his own knowledge of the law how to conduct the case and the client is bound by how the Counsel conducts the case. The remedy open to the client if he is not satisfied with Counsel is to withdraw the brief or sue for professional negligence if that appears to be the case."

 Before the above, learned Senior Counsel for the Appellants equally made a valid point that the law is that while error, negligence or inadvertence of Counsel should not be visited on the litigant, the Counsel himself must explain by Affidavit evidence his role albeit inadvertence or negligence in the matter. In the instant case in order for the Respondents to avail themselves of the negligence or inadvertence of Counsel as a sword to secure the setting aside of default judgment, there must be some explanation through the said Counsel by Affidavit evidence. It is not enough for an Applicant for the exercise of the Court's indulgence to blame a Counsel in order to obtain the Court's indulgence. This Court per Eko JCA (as he then was) explained the position in the case of ONONAKU VS. AKUBUE (2009) 15 NWLR (PT. 1165) 539 AT 550

Thus: "While error, negligence or inadvertence of Counsel should not be visited on the litigant, the Counsel ought by Affidavit evidence, himself explain his role albeit inadvertence or negligence in the saga. It is not enough to heap the blame on Counsel in order to move the Court's indulgence. See OJORA VS. BAKARE (1976) 1 SC 47 AT 52 and J.I.C. LTD. 7 SCNJ 93 AT 108 (reported as Lauyers Import-Export VS. JOZEBSON LTD. (1988) 3 NWLR (PT. 83) 429. The Counsel, L. A. Njemanze filed no Affidavit in this matter." Similarly, in the instant case, Benjamin Okoh Esq., of Counsel to the Respondents/Applicants did not file any Affidavit to explain his role, albeit negligent role which led in the first place to the default judgment.

In the circumstance, it is difficult to accept that the Respondents/Applicants placed sufficient materials before the trial Court as reasons for failure to appear at the hearing in which Judgment was given in his absence or even that the Applicants case is not manifestly unsupportable. A second important element of this appeal is resolution of all the factors leading to the setting aside of default judgment in favour of the Respondents also on the ground that the Appellants/Respondents did not file a Further and Better Counter-Affidavit to the Respondents/Applicants Further and Better Affidavit and thereby treated the Respondents Applicants Further and Better Affidavit as uncontradicted.

This position by the learned trial Judge is wrong, untenable at law and has indeed occasioned a miscarriage of justice against the Appellants. The picture goes this way. In a case based on Affidavit evidence as with pleadings, the evaluation of the evidence of parties is through the processes filed. There is usually a supporting affidavit and a counter-affidavit, if the supporting affidavit is not worthless and deserving of a counter. However, issues are joined when there is a supporting affidavit and a counter-affidavit and the duty of the judex to evaluate arises.

However, an Applicant may choose to file a Further and Better Affidavit if he needs to raise new issues either arising from the counter-affidavit or in further support of his supporting affidavit. By the above explanation, it becomes clear that there is no legal obligation to file a Further and Better Affidavit just as there is none to file a Further and Better Counter-Affidavit if there are no new issues raised by the Further and Better Affidavit. In the instant case, I do agree with the learned Senior Counsel for the Appellants that the Appellants had no need to file a Further and Better Counter-Affidavit restating the facts already articulated in their Counter-Affidavit which said Counter-Affidavit had effectively controverted the facts contained in the Affidavit in support of the Respondents Motion and the Respondents Further/Better Affidavit. Indeed, in the case of ODUTOLA VS. PAPERSACK (NIG.) LTD. (2006) 11 - 12 SC 60 AT 75 - 76, Tobi JSC, speaking for the Supreme Court, taught us that there is no need for a party to reply or counter a worthless Affidavit. His words: "I realise that the so called admissions in Exhibits P3, P6 and the evidence of 1st Appellant under cross-examination did not reflect the true legal position of the matter in respect of the status of the tenancy. There was a clear mistaken belief on the part of the parties as to the true legal position and this Court cannot deviate from the position of the law merely because there are admissions which are not borne out in law. After all, this is a Court of law and must therefore uphold the law as its clientele. An admission against interest, in order to be valid in favour of the adverse party, must not only vindicate or reflect the material evidence before the Court; it must also vindicate and reflect the legal position.

Where an admission against interest does not vindicate or reflect the legal position, it will be regarded for all intents and purposes as superfluous. And a Court of law is entitled not to assign any probative value to it." The learned trial Judge was wrong and occasioned a miscarriage of justice by holding against the Appellants their failure to file a Further and Better Counter-Affidavit when in fact no new issues were raised in the Respondents/Applicants Further and better Affidavit. From a careful perusal of the Record of Appeal in this case, the learned Senior Counsel for the Appellants was right when he observed at Pages 6 and 22 to 23 of the Appellants' Brief of Argument. i. The Court below was wrong in setting aside its earlier Judgment delivered in favour of the Appellants when none of the Affidavits relied upon by the Respondents in their Application for setting aside was sworn to by the Respondents former Counsel (Benjamin Okoh, Esq.) who was alleged to have failed to communicate to the Respondents the goings in the matter. ii.

The Court below in granting the Application for setting aside of Judgment failed to appreciate that contrary to the assertions of the 1st - 2nd Respondents that they were unable to follow the proceedings since after its filing in 2007, the said 1st - 2nd Respondents filed written depositions in the matter in 2010 and 2011 respectively sworn to by the self same 1st - 2nd Respondents. iii. The Court below in granting the Application for setting aside failed to take into cognizance that the 1st - 2nd Respondents had filed a motion to relist their suit which was struck out on the 5th day of December, 2011 for lack of diligent prosecution. iv. The Court below in granting the Application for setting aside failed to take into cognizance that on the said 5th day of December, 2011, Counsel for the 1st - 2nd Respondents was actually present in Court and had announced his appearance in the matter (albeit walking into the Court after his motion to relist the suit had been struck out) when the Appellants' Counsel adopted his final Written Address in respect of the Counter Claim. v. The trial Court failed to advert to the fact that the Respondents did not raise fresh issues in their Further and Better Affidavit that should necessitate the filing of a Further and Better Counter-Affidavit by the Appellants.

In all of these, it is important to note that one of the reasons for the various factors/criteria in the exercise of the discretion to set aside a default judgment is that there must be an end to litigation as the system of justice cannot afford an uncertain and unending time for litigation, even if this principle must be delicately balanced with the principle of fair hearing and fair trial. In the instant case, the criteria set out for the setting aside of a default judgment are in all the circumstances not favourable to the case of the Respondents/Applicants. Relatedly, the exercise of discretion by the learned trial Judge was not carried out judiciously and judicially.

It is now trite law that all judicial discretion must be according to common sense and according to justice and if there is any miscarriage of justice in the exercise of discretion as I believe, it is in the instant case, it is within the competence of an Appeal Court to have it reviewed. See: J. A. ODUTOLA VS. INSPECTOR KAYODE (1994) 3 KLR 1 AKIN ADEJUMO AND ORS. VS. AJANI YUSUF (1989) 6 SC (PT. 1) 76; GENERAL AND AVIATION SERVICES LTD. VS. CAPTAIN PAUL M. THAHAL (2004) 4 SCM 52; R. V. STAFFORD JUSTICES (1940) 2 K. B. 33 AT 43. For the reasons stated above, the only Issue in this Appeal is resolved in favour of the Appellants. The Appeal is meritorious and it is allowed."

Per OWOADE, J.C.A CHUKWUNEKE & ORS v. AKARAIWE & ORS CITATION: (2018) LPELR-45024(CA)