Anthony G. Okotcha V. Herwa Limited (2000)

LawGlobal-Hub Lead Judgment Report

OGUNTADE, J.C.A.

O

n 27-9-99, this court upon a motion by Telephone Cables Ltd., now respondent made orders in the following words:-

“C. Court orders as prayed. Leave is granted to the applicant to appeal as an interested party against the judgment of Jinadu J. in suit No.FHC/L/CS/1044/95 delivered on 21st April, 1998.

2. Time to appeal against the said judgment is extended till today 27th September, 1991 and the Notice of Appeal dated 3rd August, 1998 marked Exhibit (FC01) is deemed properly filed.
3. Appeal is to be heard on the bundle of documents annexed and marked Exhibit FC02 and such other documents as the respondents may wish to file within 21 days from today.
4. The execution of the terms of the judgment of Jinadu J. in suit NO.FHC/L/CS/1044/95 delivered on 21st April, 1998 is unconditionally stayed pending the determination of the appeal.”

Before we allowed Mr. Chike Ofodile SAN to move the application in respect of which we gave the above orders, we had satisfied ourselves that both parties to the application were in court on 25-6-99 when the matter last came up. In reaction to the orders made above, the plaintiff has now brought this application praying for the following orders:

“1. An order setting aside the order of this Honourable Court made on 27-9-99 granting the application of the applicant/respondent dated 30th October, 1998 including, to wit, Staying the execution of the judgment of Jinadu J. in suit No. FHC/L/CS/1044/95 delivered on 21st April, 1995.

2. (a) An order granting rehearing of the whole of the said application/respondent’s application; or

(b) An order granting the plaintiff/applicant leave to be heard on the application before ruling can be delivered on it.

ALTERNATIVELY:

3. An order enlarging time within which the plaintiff/applicant may file his reply to the Notice of Appeal filed by the applicant/respondent.

And for such further order or other orders as this Honourable Court may deem fit to make in the circumstances.

And take further notice that the grounds upon which this application is brought are:

i) That the order sought to be set aside was made in the absence of the plaintiff/respondent.

ii) The said order, particularly as it affects the judgment of Jinadu J. is null and void and of no affect as the said judgment is a declaratory one and cannot be stayed.”

A 21 paragraph affidavit to which were annexed several documentary exhibits was filed in support of the application. The respondent i.e. Telephone Cables Ltd. filed a counter-affidavit on 23-11-99; and the applicant filed a reply to the said counter-affidavit on 1-12-99. We heard arguments for and against the application on 18-4-2000.

In paragraphs 4 to 14 of the affidavit in support of the application, it was deposed thus:

“4. That on 27-9-99 being the last day when this matter came up for hearing, I was in court but went briefly to the High Court, Lagos adjacent to this Honourable Court where I had another matter the same day to inform the court that because of this matter, I would not be available for the said case.

5. That before I left for the said court, I had made an enquiry as to the number of my case herein on the cause list and going by the information obtained therefrom, I had reason to believe that I would be back from the High Court before the matter would be mentioned.
6. That at the time I left for the High Court, aforesaid, none of my solicitors handling this matter had arrived the court.
7. That surprisingly, by the time I came back from the said High Court, I met my solicitor, Omachi D. Ologbo Esq. who told me and I verily believe him that the matter had been called and the applicant/respondent’s application had been taken before he arrived the court and that the Honourable presiding Justice was reading the last leg of his ruling on the said application when he came into the court and appealed to announce his appearance.
8. That I was further informed by my Solicitor, aforesaid and I verily believe him, that despite the court’s recording of his appearance which was also read to the court, he was denied explanation of his lateness to court and any participation in the proceedings in the matter same day.
9. That I was further informed by the said Solicitor and I verily believe him as follows:-

a). That at the last but one adjournment when this matter also came up for mention, the said solicitor did inform the court of his recent discharge from the hospital and his leadership by Mr. F. Nwadialo SAN and sought an adjournment to enable him recuperate and contract Mr. Nwadialo before further participation in the hearing of the applicant/respondent’s application.

b.) That while on admission in the Lagos University Teaching Hospital on 13th May, 1999, the said Solicitor wrote to the court informing them of the same ill health. A copy of the said letter is hereby attached and marked Exhibit “G3″.

c). That his inability to come early to court the day under reference when the court made the order sought to be set aside was due to the re-occurring weakness of his body as a result of the said sickness.

d). That if he had been given the opportunity, he would have explained this fact to the court.

10. That were it not for the ill-health of my solicitors aforesaid, I have been diligent in the prosecution of my defence in this matter.
11. That I even personally visited my solicitor, during the period of his ailment to testify for myself that he was seriously sick.
12. That since the lateness of my counsel to court was due to ill-health, it should not be counted against me in the matter.
13. That the issue I raised in my affidavits referred to in paragraph 3 above are issues that are very vital and cogent to the just and fair determination of the applicant/respondent’s application aforesaid.
14. That I should not be made or allowed to suffer the effect of my solicitors ill-health.”

The respondent in its counter-affidavit deposed thus in paragraphs 7 to 11:-

“7. On 7-12-98 F. Nwadialo SAN appeared with Omachi D. Ologbo Esq. for the plaintiff. The learned SAN informed the court that he had just been briefed and needed time to familarise himself with the brief and the matter was adjourned to the 8/3/99 for motion.

8. On 8/3/99 the Motion did not go on and was adjourned to 13-5-99.
9. On 13-5-99 Omachi D. Ologbo Esq., – counsel for the plaintiff wrote to the court that he was hospitalised and indicated dates to which the matter should be adjourned one of the date was 28-6-99 and the matter was adjourned to that date.
10. On 28-6-99 Omachi D. Ologbo Esq., appeared for the plaintiff without his leading counsel. The matter was adjourned on his application and the court advised him to engage another counsel to appear in his stead at the next adjourned dated if his ill health will not allow him. Motion was thereafter adjourned to 27-9-99.
11. Chike Ofodile SAN of counsel informs me as follows and I verily believe him that on 27-9-99:-

a. Omachi D. Ologbo Esq., counsel for the plaintiff walked into court at 9.35 am.

b. The Motion before the court has been taken and Orders made before then.

c. Omachi D. Ologbo Esq., announced his appearance and was politely reminded that court starts sitting at 9.00 am.

d. Chike Ofodile SAN arrived the court Hall at 8.40 am he never set eyes on the plaintiff-Anthony G. Okotcha from 8.40 am to 9.45 am when he left the court premises.”

Mr. A. D. Ologbo of counsel for the applicant, in arguing the application relied on the affidavit in its support and the reply to respondents counter-affidavit counsel referred to Ndigwe v. Nwude (1999) 11 NWLR (Pt.626) 314 at 324; P.D.P. v. INEC (1999) 11 NWLR (pt.626) 200 at 207; Ayua v. Gbaka (1997) 7 NWLR (Pt.514) 659 at 672; Iyalabani v. Bank of Baroda (1995) 4 NWLR (Pt.387) 20, He then submitted that the sins of a counsel should not be visited on the litigant. He said that the applicant had filed a counter-affidavit to the application by the respondent which this court granted on 27-9-99. The applicant had also filed some documentary exhibits against the said application. Counsel said further that the orders granted by this court had the effect of staying the declaratory reliefs or orders granted by the lower court – Makinde v. Akinwale (1995) 6 NWLR (Pt.399) 1.

Mr. Chike Ofodile SAN in reply said that this court before it made the orders which the applicant now wished to set aside had considered the affidavit of the applicant sworn to on 4-12-98 and his further affidavit of 7-12-98. That counsel was not in court did not open the door to a complaint of absence of fair hearing. He said that the lower court had made a declaratory relief without first taking evidence.

Counsel said that the order made by the court was final. And there was no power in the court to set aside its own order; Ude v. Ojechemi (1995) 8 NWLR (pt.412) 152 at 155. Counsel finally asked us to strike out the application. I start a consideration of this application by stating that this was not a case of the applicant not being served the processes of court which resulted in the making of orders now sought to be set aside. The applicant was duly served. Although, applicant’s counsel was in court on 28-6-99 when the matter was adjourned to 27-9-99 for argument, neither the applicant nor his counsel was in court when the case was mentioned for argument. No letter was sent to court for an adjournment. In this connection it is necessary to recall that this court had been willing to adjourn and had adjourned the matter on two earlier occasions at the instance of the applicant. The argument that the applicant was not afforded fair hearing does not therefore arise.

The business of the court must be conducted with expedition; and a counsel who was not in court at the time his client’s case was called could not blame anybody but himself. I also accept that it is wrong in principle to visit the sins of a counsel on his client but in the instant case both the client and his counsel were in sin and I do not see the justification to penalise the party that was in court at the proper time to argue its case only because of such principle of not visiting counsel’s sin on the litigant. The application in my view, if granted will needlessly set the hands of the clock back. All we did was to stay the execution of the terms of the judgment of the lower court. Appellant’s brief has since been filed, and if we had respondents brief, we would have heard this appeal. It is in my view an unnecessary waste of time to set aside the orders we made on 27-9-99 to enable parties argue it afresh when we could use the time involved in such an effort to hear and dispose of the appeal.

Applicant’s counsel sought to make the point that our order staying execution was a nullity because our order in its effect stayed reliefs which were declaratory. Counsel ought to be forgiven for the error in his argument. He appeared to have overlooked order (e) in the judgment of Jinadu J. delivered on 21-4-98 which reads:-

“That the defendant, her servants and or agents in whatsoever capacity are restrained from interfering with the management (rights) of the plaintiff over the defendants until such rights are properly determined.”

Surely the above order is executory. A breach or infraction of the order would amount to contempt.

Everything considered, this application fails. It is dismissed with N1,500.00 costs to the respondents Telephone Cables Ltd. The applicant in its alternative prayer sought for extension of time to file respondent’s brief. Mr. Chike Ofodile did not oppose this. Time to file respondent’s brief is extended accordingly by 14 days from today.

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Other Citations: (2000)LCN/0800(CA)