The legal battle over the Nigeria Democratic Congress (NDC) has entered a new phase, with some of Nigeria’s most respected constitutional lawyers now dissecting not just the outcome of the Federal High Court’s ruling in Lokoja but the procedure that produced it. Among them is Senior Advocate of Nigeria, Jibrin. S. Okutepa who argues that the court overlooked a critical procedural requirement before setting aside its own earlier judgment compelling INEC to register the party. In this commentary, he explains why, in his view, the decision raises troubling questions about judicial discretion, due process and the administration of justice.
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Hear Chief Okutepa, SAN:
I have resisted the urge to comment on the ruling of Hon Mr Justice Dashen of the Federal High Court sitting in Lokoja on the NDC matter until I read the judgement. Having read the judgement I am just wondering why the learned trial judge agreed to set the judgement his lordship gave in December 2025 wherein INEC the only Defendant in that case was ordered to register NDC as a political party.
That order was obeyed and NDC registered as a political party. Now an association known as Peace Movement Party PMP was never a party to that judgement. So when an application was filed on the 5th May 2026, the application had two prayers. Praye on3 was for extension of time to apply to set aside the said judgement and an order setting aside the said judgment.
The learned trial judge in the ruling under review set out the two prayers in the motion in the ruling but his lordship did not consider at all prayer one that deals with extension of time to apply to have the judgment set aside. Why. Nobody can hadzard a guess. But was his lordship right. I do not think so.
The principle of law is well established that where a person seeks extension of time within which to apply to set aside a judgment entered in his absence, the applicant must satisfy two conditions, namely good and substantial reasons for the failure to appear or defend the action; and show that there is a prima facie defence on the merits, usually by exhibiting a proposed statement of defence disclosing triable issues.
These two conditions are conjunctive, not disjunctive. In other words, both conditions must co-exist before the court can exercise its discretion in favour of the applicant. Failure to satisfy either is fatal. The Supreme Court in Williams vs Hope Rising Voluntary Funds Society held that an applicant seeking to set aside a judgment entered in default must: show good reasons for the default; and disclose a defence on the merits.
In fact the first hurdle must be crossed before a consideration can be given to the second question. The discretion of the court is exercised only where both requirements are met. In Nalsa & Team Associates vs. NNPC, the Supreme Court reaffirmed that the applicant must satisfy the court as to: the reason for the default; and the existence of a defence raising triable issues.
In Skenconsult (Nig.) Ltd. vs Ukey, even though principally dealing with judgments entered without jurisdiction or without service, the Supreme Court also distinguished cases where the court’s discretion to set aside a regular judgment depends upon the applicant satisfying the recognised conditions.
In A.C.B. Plc vs Losada (Nig.) Ltd, the Supreme Court reiterated that a party seeking to set aside a regular judgment must explain the default and show a defence on the merits. In Macaulay vs. NAL Merchant Bank Ltd the court emphasized that both conditions are prerequisites before discretion can be exercised. Are these conditions conjunctive or disjunctive? The authorities consistently state that the conditions are conjunctive, not disjunctive.
The applicant must establish both: good and substantial reasons for the failure to appear; and a defence on the merits. The use of the word “and” in the Supreme Court decisions is deliberate. The courts have repeatedly refused applications where only one condition was established. A commonly quoted statement of the law is that the applicant must show good reasons for his absence and disclose a defence on the merits before the court can exercise its discretion in his favour.
In this ruling, his lordship left out most fundamental judicial function and did not interrogate the reason for failure to apply to have the judgment set aside before INEC obey it. The court did not give us the opportunity to know what informed its reasons to set aside the judgment when there is no finding on the point why the applicants waited till 4th May 2026 before they apply to set aside the judgment. It appears there are more the public did not know.
J. S. Okutepa, SAN.
