Mains Ventures Limited V. Petroplast Industries Limited (2000)

LawGlobal-Hub Lead Judgment Report

NZEAKO, J.C.A. 

The respondent in this appeal was the plaintiff in the court below. He claimed by his writ of summons taken out on 15th August,1995, the sum of N5,657,610 said to be outstanding prices of 39.018 metric tons of PVC materials supplied by the plaintiff to the defendant, interest at 21% from 9/6/95 till payment was also claimed.

Processes served, the defendant who is appellant herein entered an appearance by Memorandum of Appearance filed on 22/8/95, but filed no defence.

By a summons for judgment pursuant to Order 10 Rules 1 and 2 of the High Court of Lagos Civil Procedure Rules, the plaintiff applied for final judgment against the defendant. This was filed on 27/9/95. The defendant, who had not filed a defence, filed a counter affidavit in reaction to the summons for judgment and a proposed statement of detence.

In the course of time, the hearing of the summons for judgment commenced.

Learned Counsel for the plaintiff’ Mr. Ojeleke made his submission, after which the court adjourned for the defence to reply. The adjournment was at the instance of the learned defence counsel, Chief Adogah.

On the adjourned date, being the 9th of October, 1996, the defence counsel was not in court. He had written a letter dated 7th October, 1996 to the Registrar, seeking for an adjournment. His reason was that he had to be at the Court of Appeal, Benin, and a superior Court on the 9th of October, on which date he was to respond to the submissions in the Summons for Judgment, earlier adjourned at his instance.

The learned trial Judge, after listening to complaint made by the plaintiff’s counsel concerning the application for adjournment upheld same. He refused the application for adjournment, closed the defendant’s case and adjourned the summons for 21/10/96 for judgment.

Learned counsel for the defendant on 14/10/94 filed a Notice of Appeal against the ruling of the trial Judge refusing his application for adjournment. He also filed a motion for stay of further proceedings. The motion was fixed for 25th November, 1996.

On 21/10/96, the learned trial Judge proceeded to deliver judgment on the summons for judgment. He gave judgment in favour of the plaintiff, having decided that the defendant had no defence to the action.

The defendant also appealed against the judgment on 21/10/96, being also dissatisfied.

It has been observed that the appellant did not appeal against the substance of the decision of Martins J. in the judgment given in favour of the plaintiff. Rather he appealed against the procedure by which the learned trial Judge proceeded to judgment without hearing the defence, and notwithstanding the pendency of a motion for stay of proceedings pending in the matter in his court before the judgment was delivered.

The 5 grounds of appeal without their particulars are set out:-

“(i) The learned trial Judge erred in law when he proceeded to give judgment in the matter in spite of a pending application for a stay of further proceedings pending before the court.

(ii) The learned trial Judge erred in law when he descended into the arena of conflict and suo motu closed the defence of the appellant.

(iii) The learned trial Judge erred in law when he dismissed the appellant’s application for an adjournment when it was clear that the appellant’s counsel was appearing before a superior court on the date in issue.

(iv) The learned trial Judge erred in law when he continued to adjudicate on the matter in spite of the fact that he had formed an opinion adverse to the defendant’s case.

(v) The learned trial Judge erred in law when he failed to hear the appellant at all before proceeding to judgment.”

Parties exchanged briefs of argument which their counsel simply adopted at the hearing. The appellant’s brief had been filed on 6/3/98, the respondent on 3/4/98.

The appellant distilled 3 issues for determination thus:-

(a) Whether the motion for stay of further proceedings ought to have been entertained before judgment.

(b) Whether the application for an adjournment was properly refused.

(c) Whether the hearing by the lower court was fair in the circumstances.

For the respondent, counsel identified 3 issues, also thus:

1. Whether the refusal of an adjournment on 9th October, 1996 by the learned trial Judge resulted in miscarriage of justice in this case?
2. Whether the failure of counsel to the appellant to address the court in this suit infringes the fundamental right of the appellant to fair hearing as enshrined in Section 33 of the Constitution of the Federal Republic of Nigeria 1979, to render the trial in the lower court a nullity?
3. Whether the respondent is entitled to judgment from the totality of the material evidence before the court?

It is my respectful view, that having regard to the grounds of appeal set out above, the appellant’s issues adequately covers the grounds of appeal. The respondent’s issues 1 and 2 correspond with those issues, though expressed in other words. We should not think the respondent’s issue No, 3 arises from the grounds of appeal and need not be considered in this appeal.

It is for that reason, it is considered unnecessary to go into the facts and merits of the case which the plaintiff sought to make in the court below. More attention will be given to the sequence of events in the course of the proceedings in the High Court from which the controversy in this appeal work its root.

For purposes of this appeal, we will use the issues as set out in the appellant’s brief of argument.

The surrounding events and procedures, out of which the two appeals emerged, could be gathered from the records, I will try to recount them as precisely as can be from the time the appellant who was the defendant in the court below filed his counter affidavit to the summons for judgment and his proposed statement of defence, and also a further-counter affidavit.

The appellant’s counsel glossed over them, in his submissions. The respondent’s counsel on the other hand dwelt on them at length. We cannot just gloss over them as they led up to the issues giving rise to the appeal.

The records show that the problem arose from the delay in hearing the matter before the High Court.

The hearing had been adjourned on a number of occasions. Thus:-

1. 27/11/95 – Mentioned Parties in Court and adjourned to 8/12/95.
2. The matter mentioned on 8/12/95. All parties were in court. The matter was adjourned for hearing to 11/1/96.
3. 11/1/96 – Parties were in court, the matter was adjourned to 15/2/96 for mention.
4. 15/2/96 – Chief Adogah counsel for the defendant wrote to the court and the learned counsel for the plaintiff seeking an adjournment Chief Ojeleke for the plaintiff conceding the case was adjourned to 20/3/96.
5. 20/3/96 – Mr. Osunde held the brief of Chief Adogah Chief Ojeleke was in court. When the court asked Mr. Osunde if Chief Adogah had given a date convenient to him, Mr. Osunde replied that 25/4/96 had been suggested. Chief Ojeleke conceding, the matter was so adjourned for argument.
6. 25/4/96: Chief Adogah being at the court, wrote to the court suggested dates out of which 31/7/96 was conceded by Chief Ojeleke.
7. 31/7196 – Mr. Odde held Chief Adogah’s brief and asked for a date after the court’s vacation as he was not aware Lagos State vacation was starting so early. Mr. Odde said he would be in court on the adjourned date, should Chief Adogah be unable to be present on the date to be fixed. N750 costs awarded plaintiff after Chief Ojeleke complained about that the last adjournments was also caused by the defence counsel. The matter was fixed for hearing on 3/9/96.
8. 3/9/96 – Was the adjourned date. Chief Adogah was in court. He withdrew a Notice of Preliminary Objection which he earlier filed. Hearing of the summons for judgment proceeded. After Chief Ojeleke concluded his submission, the matter was adjourned for Reply at the instance of the defence counsel who was bereaved. It was fixed for 9/10/96.
9. 9/10/96 – Chief Adogah wrote to the court and Chief Ojeleke for the plaintiff seeking an adjournment because he was appearing in a matter at the Court of Appeal, Benin.

Chief Ojeleke bitterly complained to the court, pointing out how long the matter was pending and that much of the adjournments had been at the instance of the learned defence counsel, Chief Adogah. He recounted the events as best he could (we could see some mix up in the dates and actual events).

The court wrote a ruling in which he stated thus:

“I have considered this application of Chief Ojeleke, I am of the view that, Chief Adogah and his client are not interested in the prosecution of their defence having regard to the catalogue history of adjournment in this case. Mr. D. O. Oddeh who appeared in court on the 11/7/96 when he sought adjournment till 3/9/96 told the court that he would be prepared to take up this case on the 3/9/96 if, Chief Adogah is not able to attend court. Although Chief Adogah had stated that, he is in the Court of Appeal today the 9th October, 1996 he has not told the court whereabouts of Mr. Odde in his Chambers who could have reply this application on under summons conveniently. Since there is nothing to show in his letter that Mr. Odde is otherwise engaged in another court, I have no alternative than to close his reply as having no interest in the Reply to the argument in support of summons for Summary Judgment argued on 3/9/96. This Honourable Court has granted over indulgence at his disposal to Chief Adogah in the circumstance the reply is closed. Case adjourned till 21/10/96 for judgment”

Before proceeding with the events, I wish to interrupt myself in order to observe that there seems to be some mix up in the dates on which Mr. Odele undertook to appear should Chief Adogah be unable to do so.

The records show that it was on 31/7/96, when Mr. Odde did not know the date convenient to Chief Adogah. He undertook that if a date was fixed by the court and Chief Adogah could not appear, he, would do so. The date then fixed was 3/9/96. On the date, the records show that Chief Adogah did appear.

It was on a date subsequent to that that Chief Adogah again wrote for an adjournment for the reason that he was in the Appeal Court.

Also it must be noted that much of the adjournments had been at the instance of the defence counsel, Chief Adogah. A look at the records show that, of the 8 dates on which the matter came up, on 4 of them it was adjourned at the instance of the counsel. It was observed that on the 3rd occasion, being on 31/7/96 after Chief Ojeleke quite rightly in my view complained of the long delay, the court awarded N750 to the plaintiff against the defendant.

What broke the camel’s back was the 4th time, when the Chief again wrote that he was at the Court of Appeal and the learned trial Judge thought, enough was enough.

Was he right in shutting out the defendant from making his submission? Was he right in refusing or failing to hear the motion for stay pending appeal and proceeding to judgment while the motion was pending in his court?

It has not been contested that, the appellant had appealed against the ruling of the trial court rejecting, his counsel’s application for an adjournment and had also find a motion for stay of further proceedings pending the determination of the appeal. For, it was served on the respondent’s counsel.

Learned counsel for the respondent in his brief of argument had stated in his submission that at the time the court delivered the judgment on 21st October, 1996, the appellant’s application for stay “may be in the Court’s Registry but definitely not before the court.”

This does not mean that it was not in the file or that the learned trial Judge was not aware of it. In any event, respondent’s counsel was.

In a paragraph in the particulars of ground 1 in the grounds of appeal, the appellant complained that the learned trial Judge refused to entertain or record the defendant’s counsel’s application to the effect that a motion for stay of proceedings was pending before him.

There is no answer from the respondent to this. It is not clear therefore why the learned trial Judge did not entertain the mention of the motion for stay of execution pending the appeal, filed on 15th October, 1996 against his order closing the case of the defendant on 9th October, 1996, and decided to proceed to judgment without hearing the defendant.

In an appropriate case, an appellant is entitled to apply for an order of the trial court for stay of further proceedings of that court, pending the determination of an appeal from a decision or order of the court. For it is the law that an appeal never operates as a stay of execution of proceedings. And, the court has jurisdiction and a discretion to grant or refuse an application for stay. See Order 61 of High Court of Lagos Civil Procedure Rules 1994, Kigo (Nigeria) Ltd. v. Holman Brothers (Nigeria) Ltd. (1980) 5 – 7 SC 60. Shodeinde v. Ahmadiya Movement (1980) 1 -2 SC 163. Ogunremi v. Dada (1962) 2 SCNLR 417; (1962) 1 ALL NLR 663. The Military Governor, Lagos State v. Ojukwu (1986) 2 SC 277: (1986) 1 NWLR (Pt.18) 621.

The essence of this jurisdiction conferred on the courts and the right of parties in suits coming before the courts which are statutory and inherent, has been repealed times without number by the highest courts of our land the Supreme Court followed by the Court of Appeal.

It is in order to maintain the status quo until the determination of the appeal, also to preserve the res or subject matter of the litigation. So as to ensure that the result of the appeal, if successful, is not rendered nugatory.

Vaswani v. Savalakh (1972) 1 All NLR (Pt.2) 483, Kigo v. Holman Brothers (supra) (per Eso JSC at P.70, citing with approval Wilson v. Church (No.2) (1879-80) 12 Ch.D.454 per Cotton L.J).

It is for this reason, I should think, that when a party files an application for stay of further proceedings pending appeal, in the course of a suit, before judgment, that the trial court is obliged to entertain the application and dispose of it one way or the other. It may well be that the application is frivolous or not worth the paper on which it is brought. That is a different consideration altogether. But, countenance or entertain it, the court is bound to.

The catalogue of delays and adjournments which have been set out above much of which would be laid at the foot of the defence counsel, could have rightly irritated the learned trial Judge.

There is however, a powerful force that operates behind the system known as the administration of justice and the rule of law which guide the courts in the course of proceedings in a case.

If recognised at the material time, the court below would not have ignored the motion.

Learned counsel for the respondent who had been served with the motion ought to know that that motion for stay was an obstacle in his way. He should have got it out of his way by drawing the court’s attention to it if he was seriously stating that it was not before the court. It is his duty as an officer of court and he could have got it taken and determined before the judgment was delivered.

The stronger urge to save time because of the antecedents of delay, by ignoring the application, has not promoted the expeditious conclusion of the matter, which was understandably the compelling reason why counsel for the respondent and perhaps the learned trial Judge thought it better to ignore the application.

The defendant had appealed to the Court of Appeal because he wanted the opportunity to be heard at the court below and have the matter determined on its merit. That identifies the “res”.

A trial Judge who fails to hear a motion for stay of further proceedings pending appeal in the circumstances such as in this case but rather goes on with the proceedings, delivering the judgment, is not in a position to preserve the “res or even consider if this, was an appropriate case to do so.

He has foreclosed the determination of the matter and the right.

Failure to take that motion has led to a chain reaction which brought about more delay and now the complaint of denial of fair hearing. Issue (a) must be resolved in the Appellant’s favour. Issue (b):

Learned Counsel for the Appellant in this regard, contends that the learned trial Judge ought to have granted the application for an adjournment having regard to the fact that the reason was undisputed, which was that he was engaged at a superior court, the Court of Appeal, Benin and that as a matter of judicial precedent appearance in a superior court takes a precedence over a lower court.

Further, that the court has power to adjourn in order to do justice between the parties – Hinckley & South Leicesrershire PBS v. Freeman (1941) Ch.32.

Also, that refusal constitutes substantial injustice and the determination made after that refusal in the absence of a party will be set aside. Rose v. Humbles (1972) 1 ALL E.R 314.

Furthermore, that, this is a case in which an adjournment could have been compensated by costs since the adjournments was to enable the appellant exercise its constitutional right of final address – Omadide v. Adajeroh (1976) 12 SC 87 at 94- 95.

In counsel’s view this is a proper case for this court to interfere with the exercise of the learned trial Judge Beck v. Value Capital Ltd. (1976) 2 All E.R 102 at 104.

Where a counsel said his leader was engaged in the Supreme Court’s the request is entitled to be viewed with compassion -Agada Okoiko v. Uzo Esedalue (1974) 3 SC 15 at 26 – 27. (Also reported in 1974 NMLR 337.

Learned appellant’s counsel also cited the case of Niger Construction Ltd. v. Okugbeni (1987) 4 NWLR (Pt. 67) 787 at 792 and Oyekan v. Akinrinwa (1996) 7 NWLR (Pt.459) 128; (1996) 40/41 LRCN 1385 at 1417 to buttress his submission that a final address is very important and is so decreed by the Supreme Court and that its denial is not a mere irregularity but denial of right which renders the proceedings a nullity.

In reaction to this issue, learned counsel for the respondent, Chief Ojeleke recounted the adjournments, and stated that learned counsel for the appellant created ab initio the impression that he wanted to stall the hearing of the summons for judgment, by his petition and preliminary objection, the attitude of the learned counsel coupled with his incessant applications for adjournments created irresistible suspicion that the appellant was purposely engaging in delay tactics to clog the wheel of justice. After recalling the ruling of the Judge, he urged that the learned trial Judge was justified in refusing to exercise his discretion to adjourn having regard to his reasons set out in the ruling (supra).

He further submitted that, where the exercise of the lower court’s discretion does not result in miscarriage of justice as in this case, the Court of Appeal will not interfere – refers to ACB Ltd. v. Agbauyim (1960) SC NLR 57 (this is also reported in (1960) 5SC 192.

Counsel also submitted that in granting adjournments the court should always weigh the necessity for speedy trials with the request of counsel for adjournment. The fact that counsel asked for an adjournment does not mean that it ought to be granted -Akintunde Banjoko Solanke v. Augustine O. Ajibola (1968) 1 All NLR 47 at 54, per Lewis J.S.C.

Counsel further argued, that delay in hearing a case speedily too … is a contravention of Section 33 of the 1979 Constitution, in respect of which the respondent too could complain, fair hearing being when a case is heard within a reasonable time.

The rest of the learned counsel for the respondent’s submissions went into the merits of the substantive suit and the final judgment which he tries to justify.

As earlier stated this appeal does not go that far and it is appropriate to limit the court’s consideration to the issues from the grounds of appeal before us.

It is clear from the foregoing submissions and the antecedents of the controversy in this appeal that there is some force in the cast being made by learned counsel for both parties. The arguments are sound, so are the legal authorities. We have however had to examine the pith of the matter to come to justice, having regard to the circumstances of this particular matter.

One cannot but recall having observed the delay which had occurred in this matter. It is important to emphasize that undue delays do defeat the purpose of the application of the Order 10 procedure of securing summary judgment pursuant to the High Court of Lagos Civil Procedure Rules and of the Undefended List provisions applicable in some other States of the Federation, which procedures are aimed at speedy determination of suits where it can be shown that there is no defence to the action for liquidated claim.

And of course, it continues to be true that justice delayed can be justice denied.

It is trite that an application for adjournment is not granted as a matter of course. It is entirely at the discretion of the court, depending on the circumstances of the particular case. But, much discretion must be exercised judiciously and judicially.

See Okeke v. Oruh (1999) 6 NWLR (Pt.606) 175 (per Iguh J.S.C. at P.188), Odusote v. Odusote (1971) 1 NMLR 228.

The above principles and also the concern of our superior courts for the delays caused by numerous adjournments are clearly demonstrated in the dictum of Lewis J.S.C. in the case of Solanke v. Ajibola (1968) 1 All NLR 47 at P.54 cited by the respondent.

It is simply that a Judge is not obliged to grant an adjournment merely because counsel has asked for it. The request of counsel is a favour to be taken into account but the Judge is also obliged to bear in mind the necessity for ensuring speedy justice to contesting litigants.

In effect, the Judge has to strike a medium in determining whether to grant or refuse an application for adjournment, taking all the circumstances of the case into account particularly the justice of the matter. Could the opposing party be adequately compensated in costs. What are the reasons proffered by the applicant for seeking an adjournment? These are issues to consider. See Omadide v. Adajeroh (1976) 12 SC 87 at P.94.

Also, if the application amounts to an abuse of process, the court will of course refuse to grant it. See Alade v. Alemuloke (1988) 1 NWLR (Pt.69) 207 SC.

Usually, the deciding factor is the quest for justice, justice for the parties on both sides. If the interest of justice will be better served by granting the application than refusing it, the trial court is obliged to grant it. See ACB Ltd. v. Agbanyim (1960) SCNLR 57; (1960) 5 FSC 19.

The reason given by the learned defence counsel for seeking adjournment was that he was appearing at the Court of Appeal, Benin. It was not disputed that he was so appearing.

It is noted that at the 3rd of the adjournments caused by the counsel for the defence, conceded without costs by plaintiff’s counsel costs of N750 was awarded against the defendant/appellant when the learned counsel for the plaintiff/respondent rightly asked for substantial costs.

There is however a feeling of compulsion to accede to an application to adjourn when the reason is that, counsel is engaged in a superior court, following judicial precedents.

In spite of the “suspicion” that counsel was deliberately stalling the hearing of the case, the reason given for the particular adjournment looks special and is the type which often assuages or ameliorates the feeling or a trial Judge because in its con, it is not frivolous. It is one of those types of situations which Hubbard AG FJ referred to in ACB Ltd. v. Agbanyim (supra) when he said “undoubtedly there may be cases where, in spite of a warning that no further adjournment will be granted., the interest of justice do require that the court should grant an adjournment”.

An important deciding factor in an application for adjournment based on the reason that counsel is engaged in a Superior Court, is the consideration that the primary duty of the court is to do justice. That justice is not possible when a party is denied his right of address, not for any fault of his, suit because his counsel is unable to appear, is clear.

This reasoning derives support from the decision of the Supreme Court in the case of Obodo v. Olomu (1987) 3 NWLR (Pt.59) III. It also accords with the principles that the sin of counsel cannot be visited on the litigant.

It is a pity that the trial court had so forborne on previous occasions; it should at the last moment, when the hearing had virtually come to an end rind itself unable to hold out. In my humble view substantial costs with a serious last warning would better have served the course of justice, considering the stage reached at the hearing.

This has nothing to do wit merits of the case of the parties. It is simply to accord the parties every opportunity to put their case before the court.

We have also noted that Chief Ojeleke’s complaint on that fateful day, 9/10/96, did not in fact contain any application of what he wanted the court to do in the circumstances whether for costs or to close the case of the defence. Also, that the impression that Mr. Oddeh had undertaken to be present if Chief Adogah could not, was for 3/9/96 when it was uncertain if the date given by the court would suit Chief Adogah, and that on that date Chief Adogah came to court.

The complaint of the appellant that the court below suo motu closed his case seems to be correct.

In my humble view, the reason given for the absence of counsel, VI: that he was at the Court of Appeal, Benin does not portray lack of interest on the part of counsel, as stated in the ruling of 9/1 0/96 appealed against.

I would resolve issue (b) in favour of the appellant. Issue (c) questions whether the hearing at the lower court was fair.

It seems to me that this issue, follows on the heels of issue (b) supra. The consideration or the constitutional and inherent right of “fair hearing”, is that element often considered when reference is made to “interest of justice”. It is a major consideration in deciding whether to grant or refuse an application for adjournment.

The principles are clear, where the interest of justice will be better served by granting the application than by refusing it, the application will be granted and vice versa.

On one side of the divide, therefore are cases where the Appeal Courts decree the granting of the motion because it accords the parties the right of fair hearing.

On the other, are those where they have not so decreed because the motion is frivolous and no issue of fair hearing need be entertained. Where does the present case fall? What has already been stated above shows that the decree herein ought to be that adjournment ought to have been granted.

What was denied the appellant in this case was his counsel addressing the court below in the summons for judgment after filing an affidavit of merit and a proposed statement of defence.

It is trite law that counsel’s address is no substitute for evidence Niger Construction v. Okugbeni (1987) 4 NWLR (Pt.67) 787. But, it is also the law that addresses of counsel form part of the case of each party to an action. Thus, failure to hear the address of one party, no matter how overwhelming the evidence on one side, vitiates a trial. It amounts to miscarriage of justice. Obodo v. Olomu (1987) 3 NWLR (Pt. 59) 111 (SC) where Obaseki J.S.C., said:

“The hearing of addresses by every court established by the Constitution … is recognised by the Constitution. It is to be given before judgment is delivered. See Section 258(1) of the Constitution.

… Its beneficial effect and impact on the mind of the Judge is enormous but unquantifiable. The value is immense and its assistance to the Judge in arriving at a just and proper decision, though dependent on the quality of the address cannot be denied. The absence of an address can tilt the balance of the learned Judge’s judgment just as much as the delivery of an address after conclusion of evidence can.”

See also Oboda v. Olomu (supra)

In that case their Lordships of the Supreme Court also held, that an appellate court should not speculate on what the effect of an address by counsel would have been on the learned Judge’s judgment because until his mind is exposed to an address, it is impossible to say what effect it would have on the Judge’s mind.

This answers the submission of the respondent’s counsel that addresses of counsel could have been dispensed with, and therefore that the decision of the learned trial Judge without the address of counsel to the appellant did not occasion miscarriage of justice. It did and the trial and all subsequent actions done based on the same are a nullity.

In the premise, this appeal succeeds. The judgment of Martins J. delivered on 21st October, 1996 is set aside. The matter is remitted to the High Court of Lagos State, Ikeja Division for retrial.

I make no order as to costs.

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Other Citations: (2000)LCN/0657(CA)