A. A. T. S. Ltd v. Aina (1986)

ADEOYE ADEJOBI TRADING STORES LTD.

V.

1.    ALHAJI M.O.B. AINA

2.    UNIVERSAL FISHING CO. LTD.

COURT OF APPEAL

(IBADAN DIVISION)

CA/1/188/84

UCHE OMO, J.C.A. (Presided)

MICHAEL EKUNDAYO OGUNDARE, J.C.A. (Read the Lead Judgment)

IBRAHIM KOLAPO SULU-GAMBARI. J.C.A.

MONDAY, 12TH MAY, 1986

  CONSTITUTIONAL LAW – Fair Hearing – Denial of opportunity to adduce evidence in support of statement of defence – Implication thereof

PRACTICE AND PROCEDURE – Duties of trial Judge – Fair Hearing.

Issues:

1.
Whether the denial of the opportunity for the defendant to call evidence in support of the statement of defence amounts to denial of fair hearing provision as provided by the Constitution of the Federal Republic of Nigeria.

2.
Whether it is an improper cause of action for the defendant to seek to set aside the judgment given in default of evidence against the defendant.

Facts:

    The Plaintiffs in 1979 sued the defendant for the sum of N20,000 being special and general damages for the sale of a defective 25 KVA generator to them by the defendants. Pleadings were filed and exchanged. After a number of adjournments hearing started with first plaintiff hearing led in evidence and was later cross-examined by defendant’s counsel. Plaintiffs closed their case on the conclusion of the first plaintiffs evidence. Defence counsel applied that further hearing be adjourned for the defence to present its case. On the adjourned date the defendant was absent and a new date was taken. On the new date, the defendant was again absent and the case was further adjourned to 24/1/83. On this new date the defence counsel was absent from court but had earlier written to the court that the case be stood down till 11.30 am. which the court obliged.

At 11.30 a.m. the defendant was present in court without his counsel and he could not explain his counsel’s absence. The Judge then ordered the defendant’s case closed and adjourned till 14/2/83 for judgment.

[1986] 3 .
A.A.T.S. Ltd. v. Aina
507

On learning of the situation, the defence counsel filed a motion under Rule I Order 36 (now Order 37) of the High Court (Civil Procedure) Rules of Ogun State on 4/2/83 praying the Court for “an order permitting the defendant to call evidence and address the court by its counsel in this suit, notwithstanding that the suit stands adjourned to 14’1′ February 1983 for judgment.” The motion was not given a hearing until 14/2/83 and on which date judgment was delivered in the case finding in favour of the plaintiff. The motion was adjourned to 23/3/83 and it was virtually struck out on 5/7/83. The defendant in the meantime lodged an appeal on 12/5/83 in which he challenged the procedure in the trial court.

Held: (Unanimously Allowing the Appeal):

1.
Having at 11.45 a.m. of 24/1/83 drawn appellant’s attention to the absence of his counsel and the appellant had no explanation to make, the Judge should have there and then called on him to present his defence. It is only where he could not or would not do so that the learned Judge would be justified in regarding the defence as closed.

2.
Were the defendant to apply for an adjournment on being called up to present his defence, the learned Judge ought to consider that application and rule on it before proceeding with the case by once again calling on the defendant to present his case.

3.
The duty of a court at the close of the plaintiff’s case is to ask counsel for the defence (or the defendant if there is no counsel) if he wishes to call evidence and if the answer in the affirmative to hear the defendant’s evidence if in the negative to hear argument on the submission before proceeding to judgment

4.
As the trial Judge had failed to exercise this elementary precaution of giving the defendant who was present in court, this opportunity of being heard, one cannot say that the procedure adopted by the trial Judge met with the requirements of fair hearing.

5.
Since there was a motion pending before the court to have the appellant heard, that motion ought first to be disposed of before judgment was delivered.

Nigerian Cases Referred to in the Judgment:

Fetuga v. W.N. Housing Corporation (1968) NMLR 233

Tamloh v. C.F.A.O. 10 WACA 186

Nigerian Rule Referred to in the Judgment:

Rule 1 of Order 35 (now Order 37) of the High Court (Civil Procedure)

Rules of Ogun State

History of the Case:

Court of Appeal:

Division of the Court of Appeal to which the appeal was brought: Court of Appeal, Ibadan.

Names of the Justices that sat on the Appeal: Uche Omo, J.C.A.

.
9 June 1986
(Ogundare, J.C.A.)

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(Presided); Michael Ekindayo Ogundare, J.C.A. (Read the Leading Judgment); Ibrahim Kolapo Sulu-Gambari, J.C.A.

Date of Judgment: Monday, 12th May, 1986

Appeal No.: CA/1/188/84

High Court:

Name of the High Court: High Court of Ogun State, ljebu-Ode Judicial Division

Date of Judgment: 14th February. 1983

Suit No.: HCJ/28/79.

Counsel:

A. O. Olutunfese, Esq. – for the Appellant

O.Oyesanya. Esq. – for the Respondents

OGUNDARE, J.C.A. (Delivering the Lead Judgment): By a writ of summons issued out sometime in 1979 the plaintiffs claimed from the defendant a total sum of N20,000 being special and general damages for the sale to them by the defendant of a defective 25 KVA generator. The parties filed and exchanged pleadings. A reply was also filed. After a number of adjournments hearing commenced by 1st plaintiff giving evidence. In the course of this evidence leave was sought and obtained to amend plaintiff’ reply. The 1st plaintiff subsequently concluded his evidence and was cross examined by learned counsel for the defendant.

At the conclusion of 1st plaintiff’s evidence, the plaintiffs closed their case and on the application of the defence counsel further hearing was adjourned for the defence to present its case. On the adjourned date the defendant was absent and further hearing was again adjourned to another date. On this new adjourned date, the defendant was again absent the case was once again adjourned to yet another date (24/1/83) for further hearing.

On 24/1/83, the defence counsel was not in court. He had earlier written asking that the case be stood down till 11.30 a.m. which the court obliged. The following notes appear in the record for that day:

“Only the plaintiffs are in court. The defendant is absent. Mr. A.A. Adedoyin appears for the plaintiffs. The defendant now appears at 11.45 a.m. The defendant says his lawyer is not yet around. The defendant having been told that his lawyer wrote to say that he would be here at 11.30 a.m. and the time now being 11.45 a.m. says he has nothing to say. The letter of A.O. Olutunfese Esq., counsel for the defendant was put in as exhibit ‘G’ The case for the defendant is closed. Judgment is adjourned till 14/2/83.”

On learning of the situation that had arisen defence counsel on 4/2/83 filed a motion under rule 1 of Order 35 (now Order 37) of the High Court (Civil Procedure) Rules of Ogun State praying the court for “an order permitting the defendant to call evidence and address the court by its counsel in this suit.

[1986] 3 .
A.A.T.S. Ltd. v. Aina
(Ogundare, J.C.A.)
509

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notwithstanding that the suit stands adjourned to 14th February, 1983 for judgment.” The motion was supported by an affidavit explaining defence counsel’s absence in court on 24/11/83. The motion was not given a hearing until 14/2/83 when the learned trial Judge delivered his judgment in the case finding in favour of the ‘plaintiff’. The following notes appear in the record of the trial court for 14/2/83 after judgment had been delivered:

“Only the plaintiff/respondent is in court. The defendant/ applicant is not in court but Mr. A.O. Olutunfese appears for him. Mr. A.A. Adedoyin appears for the plaintiff/respondent. Mr. Adedoyin says he has not been briefed for any motion and the motion is not yet served. The motion is adjourned till March 23rd 1983 for hearing.”

The motion was eventually struck out on 5/7//S3. Meanwhile, the defendant had on 12/5/83 lodged an appeal against the judgment of 14/2/83.

I have set out, in extenso, the facts leading to ground 3 of the grounds of appeal contained in the notice of appeal. The ground reads:

“3.
The learned trial Judge erred in law in giving judgment against the defendant in default of evidence, despite the fact that defendant representative was willing to call evidence in the presence of the defendant counsel.

PARTICULARS OF ERROR

“i.
Pleadings were properly filed and exchanged between the parties to the action and defendant was entitled to plenary session for giving evidence in support of the statement of defence, notwithstanding the absence of his counsel when the case was called.

ii.
The denial of the opportunity for defendant to call evidence in support of the statement of defence amounts to denial of fair hearing provision as provided by the Constitution of the Federal Republic of Nigeria.

iii.       The refusal of the court to entertain a motion dated 31st January 1983, praying for an order to permit defendant to call evidence which motion was listed on the court list on the 14th of February, 1983, When judgment was delivered and to which the attention of the court was invited put the litigants on an equal (sic) footing before the court.

iv.
It is not an improper course of action for the defendant to seek to set aside the judgment given in default or about to be delivered in default of evidence against the defendant…”

Both parties filed briefs. The appellant contends that by the procedure adopted by the learned trial Judge he was denied of the opportunity to present his case. The respondent both in the brief and in oral argument contends to the contrary.

I must observe that the appellants conduct in the court below cannot be too strongly condemned. I deprecate it in no uncertain terms. It is no wonder that having exhausted the learned trial Judge’s patience, the latter was rather impatient in the conduct of the proceedings on 21/1/83.

For two reasons. I cannot support the procedure adopted by the learned trial Judge on 21/1/83 and subsequently. First, having at 11.45 a.m. of that day drawn appellant’s attention to the absence of his counsel and the latter

510
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9 June 1986
(Ogundare, J.C.A.)

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had no explanation to make, he should have there and then called on the appellant to present his defence. It is only where the latter could not or would not do so that the learned Judge would be justified in. regarding the defence as closed. Were the defendant on being called upon to present his defence applied for an adjournment, the learned trial Judge ought first to consider that application and rule on it before proceeding with the case by once again calling on the defendant to present his case.

The duty of a court at the close of the plaintiff’s case is to ask counsel for the defence (or the defendant if there is no counsel) if he wishes to call evidence and if the answer is in the affirmative to hear the defendant’s evidence, if in the negative to hear, argument on the submission before proceeding to judgment – see: Tandoh v. CFAO 10 WACA 186; Fetuga v. W.M Housing Corporation (1968) NMLR 233. As the trial Judge had failed to exercise this elementary precaution of giving the defendant who was present in court, this opportunity of being heard, I cannot say that the procedure adopted by him met with the requirements of fair hearing.

Secondly, since there was a motion to have the appellant heard pending before the court, that motion ought first to be disposed of before judgment was delivered. The trial Judge ought not to have ignored the existence of this motion and proceeded to deliver his judgment before having the motion called up for hearing. In my view, what the learned trial Judge did amounted to a mockery of justice.

For these reasons, I uphold appellant’s contention that the defence was denied of the opportunity to present its case and this denial of its right occasioned a miscarriage of justice.

This appeal succeeds on ground 3 and it is allowed by me. I set aside the judgment (including the order for costs) of the High Court of Ijebu Ode Judicial Division given on. 14/2/83 in suit No. HCJ/28/79 and order that the suit be heard de novo before another Judge of Ogun State.

In view of the conduct of the appellant in the court below, I make no order as to costs.

OMO, J.C.A.: I have nothing further to add to the judgment just delivered by my learned brother, Ogundare, J.C.A.

I agree with same in toto and hereby allow the appeal with consequential orders as made by him.

SULU-GAMBARI, J.C.A.: I have had the privilege of reading in advance the judgment just delivered by my learned brother. Ogundare. J.C.A. and I entirely agree that this appeal succeeds and it is hereby allowed.

Appeal allowed.

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