Reynolds Construction Company Limited V. John Okpegboro (1999)
LawGlobal-Hub Lead Judgment Report
AKINTAN, J.C.A.
The appellant company, Reynolds Construction Company Limited, was the defendant in this action instituted at the Iguobazuwa High Court of Edo State as suit No. H/GU/19/91. The present respondent, John Okpegboro, was substituted for his father, Francis Okpegboro, the original plaintiff when he died. His claim before the Court as endorsed in paragraph 26 of the amended statement of claim is inter alia, for:
“The sum of N961,000 being special and general damages suffered by the plaintiff as a result of the destruction of his economic crops by the defendant.”
Pleadings were filed and exchanged and the trial thereafter commenced before Hayble, J. The plaintiff opened his case on 8th March, 1994. He gave evidence on that day and he was duly cross-examined by learned counsel for the defendant. The first plaintiff witness also testified on that day before further hearing was adjourned to 14th April, 1994 at the request of the defence. But on 14th April, 1994 the court did not sit and the case was on that day adjourned to 12th May, 1994. Again on 12th May, 1994, the court did not sit and the case was further adjourned to 26th July, 1994.
At the resumed hearing of the case on 26th July, 1994, learned counsel for the defendant was absent. The defendant company was also not represented in court. The court however took evidence from two other plaintiff witnesses. The plaintiff thereafter closed its case and the case was then adjourned to 20/9/94 for defence and address. When the case came up on 20/9/94, the defendant was not represented in court and its counsel was also absent. The court however took the address by learned counsel for the plaintiff and thereafter adjourned the case to 1/11/94 for judgment.
The defendant then filed a motion dated 21/9/94 in which it prayed the court for the following reliefs:
“(i) An order setting aside the adjournment of the proceedings herein for judgment.
(ii) Leave to recall the plaintiff’s 3rd and subsequent witnesses who testified in the proceedings herein for the purposes of cross-examination.
(iii) Leave to allow the defendant enter its defence on record in the plaintiff claim in the proceedings herein.”
The motion was supported by a 17 paragraph affidavit deposed to by Theodore Udochi, learned counsel for the defendant. The facts relied on are adequately set out in paragraphs 8 to 15 of the affidavit. The said paragraphs 8 to 15 read as follows:
“8. That I represented the defendant on the said 12th May, 1994 and upon the adjournment of the suit to the 23rd of June, 1994 I inadvertently omitted to endorse the said date on my file or diary
- That due to the said omission I was unable to attend court on the said 23rd June, 1994, and was unaware that the suit was subsequently adjourned.
- That on the 11th August, 1994 I met the plaintiff’s counsel F.I. Eduvie Esq., who duly informed me that the matter was called on the 26th of July, 1994 and he led his 3rd and subsequent witnesses in my absence and that the suit was adjourned to 20th September, 1994.
11.That I duly endorsed the said date in my diary and had same listed in the office diary.
- That in preparing the cause list for the week commencing on the September, to the 23rd September, 1994 my Secretary Miss Ikpomwonsa Ale inadvertently listed the suit as B/138/91 Igbinoba v. Reynold Construction Company Limited, a different and distinct suit pending at the High Court of Justice, Benin City.
- That counsel assigned to this mater Linus Osita Okeke Esq, duly informed me and I verily believe same, that he acted on the representation stated in my offence cause list and proceeded to the High Court of Justice Benin City on the said 20th September, 1994.
- That the absence of counsel in court on the 26th July, 1994 and 20th September, 1994 was not deliberate but a consequence of the errors and omission as herein before stated.
- That I verily believe that the defendant has a good and sustainable defence to the claims of the plaintiff as disclosed in it’s statement of defenec filed in this proceedings which it diligently intends to pursue.”
The motion thereafter came up for hearing before the same learned Judge Hayble, J. After taking submission from both counsel in the case, the learned Judge in a reserved ruling delivered on 25th October, 1994, refused the requests and dismissed the motion with N300 costs in favour of the plaintiff. The learned Judge said, inter alia, in the concluding portion of his said ruling:
“The defendant solicitor was in court on the adjourned date as per paragraph 8 of his affidavit. Not only that, the plaintiff’s solicitor made sure that when the defendant’s solicitor was absent in the adjourned date, conveyed the new date of adjournment to him per paragraph 10 of the affidavit. According to him he went to Benin Court instead of Iguobazuwa per paragraph 13 of the affidavit. Does it mean that counsel did not read his file he took to Benin court on or before the date he went to Benin court? I find the applicant’s explanation in the affidavit very unconvincing.
It is true that the court should bear in mind when exercising its discretion the interest of the parties and the justice of the case. And should exercise its discretion where the justice of the case requires it to do so. But whereas in this case the conduct of the applicants shows a deliberate lack of interest and no proper reason has been advanced for tardiness in bringing this application, the court ought to reject the same. The applicants themselves who failed to check on their counsel from time to time regarding the progress of their case and have also kept away from court since this suit was filed are guilty as their counsel. In the circumstance, this application is refused with N300 costs to the plaintiff.”
The defendant was dissatisfied with the ruling and has appealed against it in this court. Three grounds of appeal were filed against the ruling. The parties filed their respective brief of argument to this court. The appellant formulated the following single issue in the appellant’s brief as arising for determination in the appeal.
“Whether the refusal of the appellant’s application by the learned trial Judge did not amount to denial of fair hearing.”
The respondent also formulated a similar issue in the respondent’s brief which I therefore need not reproduce in this judgment.
The main complaint of the appellant as canvassed in the appellant’s brief is that the refusal of his application by the learned trial Judge amounted to a denial of fair hearing guaranteed him in the Constitution. It is further argued that a litigant should not be punished and his right to a fair hearing should not be fettered by errors, omission, inadvertence and/or negligence of the counsel briefed by the litigant to represent its interest in any litigation. It is further argued that in the instant case, the two occasions (26th of July, 1994 when the respondent’s second witness testified and 20th of September, 1994 when the respondent’s counsel addressed the court) when learned counsel for the appellant was absent, the circumstances warranting his absence were well explained in the affidavit in support of the motion and that the averments were not controverted. It is therefore submitted that the court ought to have accepted the explanations and grant the prayers in the motion. It is further argued that the court’s refusal had prevented the appellant from presenting its defence before the trial court and the result would amount to great injustice.
Since the right to fair hearing, it is argued includes the right to have litigation determined on the merits and not resolved by default, this court is urged to allow the appeal in order that the issues joined by the parties in their pleadings could be resolved.
On the absence of representative of the appellant company, it is submitted that such absence could not be taken as showing- lack of interest because the appellant had always been represented in court by counsel and had therefore satisfied the requirement of appearance before court.
It is submitted in reply in the respondent’s brief that the appellant has a misconception as to the true meaning of fair hearing enshrined in section 33(1) of the 1979 Constitution. It is submitted that what is envisaged under that section of the 1979 Constitution is that a party is given an opportunity of being heard in the determination of his civil right. It is therefore argued that the term fair hearing means nothing but what appears to be a fair trial to every right thinking observer in the circumstances of the particular case. The question whether to grant or refuse the application of the appellant to recall the plaintiff’s witnesses who had testified was said to be clearly one for the discretion of the trial Judge in the case and that unless the appellant is able to show that the learned trial Judge had failed to exercise that discretion judicially, the appellate court cannot interfere, even on the ground that it might have exercised the discretion differently if it were in a position to do so unless the discretion was not judicially and judiciously exercised by the Judge. The appellant is said to have failed to show that the discretion in the instant case was not judicially and judiciously exercised.
The need to do justice to both parties in a case before a court is also said to be paramount when considering whether or not the rule relating to fair hearing had been breached. It is argued that the appellant did not allege that the learned trial Judge did not exercise his discretion judicially and judiciously. Rather the learned counsel for the appellant put the blame entirely on himself. But he is said to have totally failed to explain why the appellant company failed to send any representative to court since the case started in 1991. The failure of the appellant company in that respect is said to be part of a design by the appellant at ensuring that the case would not be concluded within a forseable time. This court is urged to hold that it was the appellant that opted out of the proceeding after cross-examining the respondent’s first two witnesses. The allegation of denial of fair hearing is therefore said to be baseless.
The main complaints of the appellant, as already set out above, are that the learned trial Judge turned down its request for a recall of the plaintiff’s witnesses that testified when learned counsel for the appellant failed to turn up for the purpose of being cross-examined and the rfusal to allow him to reopen the case which had been adjourned judgment after the respondent’s counsel had concluded his final address. The learned counsel for the appellant did not deny that he was duly aware of the date to which further hearing in the case was adjourned. His complaint was that the error was his and that his client, the appellant, ought not be penalized for counsel’s errors or omissions. But he was totally silent on the failure of the appellant company’s representative to show up on any of the days when the case came up for hearing. The complaints of the appellant are said to amount to a breach of the principle of fair hearing as enshrined in section 33(1) of the 1979 Constitution.
Section 33(1) of the 1979 Constitution provides that:
“In the determination of his rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or tribunal established by law and constituted in such manner as to secure its independence and impartiality.”
The above provision is also repeated in section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999.
The term “fair hearing” as envisaged in section 33(1) of the 1979 Constitution has been subjected to numerous judicial pronouncements. The basic criteria and attributes of fair hearing how ever include:
(1) that the court or tribunal hears both sides not only in the case but also on all material issues in the case before reaching a decision which may be prejudicial to any party in the case;
(2) that the court or tribunal shall give equal treatment, equal opportunity and equal consideration to all concerned; and
(3) that having regard to all the circumstances in every material decision in the case, justice must not only be done but must be manifestly and undoubtedly be seen to have been done.
See Udo-Akogha v. Paico Ltd. (1993) 4 NWLR (Pt.288) 434; and Adeniyi v. Governing Council of Yaba College of Technology (1993) 6 NWLR (Pt.300) 426. The requirement that equal treatment, equal opportunity or equal consideration be given to all concerned is however not breached in a situation where a party was afforded the opportunity to be present at the trial to present his case or to defend himself but he deliberately refused to avail himself of such an opportunity through his won neglect or tardiness, since the law does not aid the indolent. The rule only comes to play where a party is denied any opportunity to be hearted. It is not applicable to a defendant who fails to appear to defend an action against him. See Shahimi v. Akinola (1993) 5 NWLR (Pt.294) 434; and Ekrebe v. Efeizomor (1993) 7 NWLR (Pt.307) 588.
Applying the law as declared above to the facts in the present case, it is clear tht it was the defendant (now appellant) that failed to turn up to defend the claim against it. Its counsel was duly given notice of the date fixed for the hearing. But the man, for whatever reason he gave, failed to turn up. The appellant company was also contented with merely employing the service of a counsel to represent its interest in court. It seems to show any further interest in whatever happened to the case in court thereafter.
It is correct to say that the court will not in all cases visit the misdeeds of counsel on the litigants. But before a litigant could avail himself of that advantage he must show that his absence from court was due to lack of knowledge of the proceedings in question. Thus in Doherty v. Doherty (1964) 1 All NLR 299 the appellants’ solicitors, though served with notice to appear did not attend before the registrar and took no steps to fulfill the conditions of appeal imposed by the registrar. The appeal was therefore dismissed for non-compliance. The appellants who had not been served with the notice to appear before the registrar applied for the appeal to be restored. The Supreme Court held that the appellants could not be held responsible for their solicitors’ failure to comply with the conditions imposed by the Registrar and the appeal struck out was restored. The principle decided in that case is inapplicable to the present case because the appellant company had not in the present case shown that he was not aware of the proceedings that took place on the days his counsel failed to appear in court.
It is necessary, at this stage to refer briefly to the history of the plaintiff’s claims and some of the events that took place since the action was filed in court. As already set out earlier above, the plaintiff’s claim was for compensation for destruction caused by the defendant company’s activities at its quarry site near the plaintiff’s farm plantation. While the action was pending in court, the original plaintiff died and he was substituted by his son, the present respondent. The trial thereafter proceeded and suddenly learned counsel for the defendant who used to show up of the trial just ceased to turn up. The appellant company, however, was too busy with its business activities as a result of which it had no time to spare for any of its employees to represent it in the court. The trial continued without the defendant’s representative and counsel and the case was adjourned for judgment. Then suddenly learned counsel for the defendant showed up in court and requested the court to allow him to recall the plaintiff’s witnesses that testified while he was away and that he should be allowed to reopen the entire case so that he could present the case for the defence. These requests were turned down by the learned trial Judge and I have no doubt that the learned trial Judge was right in his decision to turn down the request. As already stated above, turning down the requests would not, in my view, amount to a breach of the fair hearing provisions since the appellant was given adequate opportunity to be present and present its defence to the claim against it. But it chose not to avail itself of the opportunity given to it.
In the result, I hold that there is totally no merit in the appeal and I accordingly dismiss it with N5,000.000 costs to the respondent.
Other Citations: (1999)LCN/0605(CA)
