Nicodemus Ugwu V. Francis Emenogba (2009)
LawGlobal-Hub Lead Judgment Report
ABDU ABOKI, J.C.A.
This is an Appeal against the decision of R. O. Olorunfemi J. of the High Court of Justice Kogi State holding at Obangede delivered on the 27th day of July, 2005.
The fact of the case is that the Respondent as Plaintiff in the lower Court took out a Suit under the Undefended List against the Defendant/Appellant for the sum of N806,150.00 and 15% monthly interest on the sum. The Returnable date as endorsed on the Suit served on the Defendant/Appellant was 2/5/2005. On 2/5/2005, the case was not taken and the Suit was adjourned to 11/5/2005. The Defendant/Appellant through his Counsel filed a Notice of Intention to defend the suit on 26/4/2005.
The Defendant/Appellant’s Counsel was not in Court on 2/5/2005 and on 11/5/2005 to argue or move his Notice, instead he wrote a letter for adjournment and the Suit was adjourned to 26/5/2005 for hearing. On 26/5/2005, the suit could not be taken and it was again adjourned to 4/7/2005. On 4/7/2005, the Defendant/Appellant’s Counsel again sent in another letter seeking for a further adjournment of the Suit.
The Plaintiff/Respondent’s Counsel reminded the Court of the nature of the Suit, being one brought under the Undefended Suit but did not object to the further adjournment sought and the Suit was further adjourned to 27/7/2005.
On 27/7/2005, the Defendant/Appellant’s Counsel wrote yet another letter for a further adjournment of the Suit. This application for a further adjournment was opposed by the Plaintiff/Respondent’s Counsel. The learned trial Judge sustained the objection to the adjournment and ordered the Plaintiff/Respondent to go ahead with his case, Order 23 Rule 4 having been complied with, The Plaintiff/Respondent presented his case under the Undefended list and asked for Judgment summarily pursuant to Order 23 rule 4. Judgment was accordingly entered in favour of the Plaintiff as per his claim in the Writ of Summons. It is against this Judgment that the Appellant appealed to this Court.
Parties have exchanged their Briefs. The Appellant’s Brief of argument dated 29th November, 2007, was filed on same date while the Respondent’s Brief of Argument was dated and filed on 10′” December, 2007.
From the five grounds of Appeal contained in the Notice of Appeal, four issues were distilled on behalf of the Appellant and they read as follows:
“(1) Whether or not the trial Court was right when it dispensed with the notice of intention to defend and the supporting affidavit before it heard the suit under the undefended list.
(2) Whether or not the trial lower Court received and evaluated the defence contained in the Counter-affidavit before it arrived at its decisions.
(3) Whether or not the notice of intention to defend is properly placed before the trial Court.
(4) Whether the denial by the trial Court of the appellant hearing and the opportunity of being heard, amounts to breach of the principle of fair hearing.”
On behalf of the Respondent, the following issues are raised for determination of this Appeal:
“(1) Whether the lower Court complied with the provisions of Order 23 Rules 1, 2, 3, and 4 of the Kogi State High Court (Civil Procedure) Rules 1991 before entering Judgment in favour of the Respondent?
(2) Whether the filing of a Notice of Intention to Defend in an Undefended Suit is enough to entitle the Defendant to he granted leave to defend the suit under Order 23 Rules, 1, 3(i) and 4 of the Kogi State High Court (Civil Procedure) Rules 1991.
(3) Whether or not the lower Court considered the defence in the Affidavit of Defence before it refused the Appellant leave to defend.
(4) Whether the refusal by the lower Court to grant leave to the Defendant Appellant to defend the suit is a denial of fair hearing.”
Learned Counsel for the Appellant had argued in his Reply brief that the Respondent had violated Order 17 Rule 3 of the Rules of this Court 2002 when he formulated and argued strange issues not arising from the grounds of Appeal before this Court and he referred the Court to the cases of;
Kano ile v. Gloede and Hoff (Nig.) Ltd. (2005) 4 FWLR Pt. 278 page 69 at 75
Centre-Point Merchant Bank Ltd. v. Afribank Nigeria Plc. (2006) 4 FWLR Pt.338 page 6420 at 6430-6432, 6433 and 6435;
Timothy Tor Abutu v. Lucky Onyedima (2004) 10 FWLR Pt.231 page 487 at 499.
He further argued that even if the issues formulated and argued were to be competent (which is not conceded) the issues and argument are of no moment as they amount to a misconception and failed to answer the credible relevant issues and cogent argument canvassed by the Appellant in his Brief.
Learned Counsel for the Appellant submitted that since the Respondent did not file any Cross-appeal he could not formulate issues for determination which do not conform to the ones formulated by the Appellant.
I have carefully perused Order 17 rule 3 of the Rules of this Court 2007 which states:
“3.(1) The brief, which may be settled by Counsel, shall contain what are, in the Appellant’s view, the issues arising in the Appeal as well as amended additional grounds of Appeal.”
I have also examined the grounds of Appeal in the Notice of Appeal filed by the Appellant as contained on pages 51-54 of the Record of Appeal.
It is trite that the issues for determination formulated by the Respondent must also arise from the grounds of Appeal filed by the Appellant. A Respondent will not formulate an issue, which is extraneous or strange to the grounds of Appeal contained in the Appellant’s Notice of Appeal except where he had filed a Cross-appeal. Sec Jatau v. Ahmed (2003) FWLR Pt.151 page 1887.
In this Appeal, the issues raised by the Respondent are identical to those raised by the Appellant. The issues arose from the grounds of Appeal contained in the Notice of Appeal and I see nothing wrong with them. They are neither extraneous nor strange to the grounds of Appeal contained in the Notice of Appeal. The issues formulated by the Respondent have in no way offended the provisions of Order 17 Rule 3(1) of the Rules of this Court 2007.
However, I must point out that the Respondent did not canvass any argument on the four issues raised by him for the determination of this Appeal but rather canvassed argument on the issues as formulated by the Appellant. It follows therefore that the Respondent is deemed to have abandoned those issues as raised by him.
Issues 2 and 4 formulated by the Appellant are capable of determining this Appeal as issues 1 and 3 of the Appellant can be collapsed into 2. Hence, I adopt issues 2 and 4 as distilled by the Appellant for the determination of this Appeal.
In his submission in respect of the issues collapsed into issue 2 learned Counsel for the Appellant Chief U. M. Enwere submitted that Counsel to the Defendant/Appellant was before the National Election Tribunal sitting on the bye election into Adavi Constituency when on 27/7/2005 the trial Court heard the case of the Plaintiff on the Undefended List and gave judgment against the Appellant and that he had earlier written a letter to the Court informing it of the development.
He argued that ejection matters are of special proceedings and referred the Court to the case of Ogolo v. Legg-Jack (2007) EPR 44 at 447. Learned Counsel for the Appellant maintained that the reasons adduced for the adjournment were not considered rather the trial Court based its decision on different principles of law and that the misconception led to serious miscarriage of justice.
He referred the Court to page 44 of the Record of proceedings where the Plaintiff opposed the letter seeking for an adjournment.
Learned Counsel also referred the Court to the decision of the trial Court refusing to grant an adjournment.
He submitted that the reasons adduced by the lower Court for arriving at its decision prejudiced the matter and that it is not in line with rules of practice and the law.
He argued that the trial Court erroneously refused the application for adjournment on the understanding that a wrong procedure had been adopted, when that is not the case. He maintained that the proper procedure was adopted and referred the Court to Order 23 Rule 3(1) of the Kogi State High Court Civil Procedure Rules 1991.
Learned Counsel argued that the misconception of what is required by law led the trial Court to a wrong decision and conclusion, which occasioned a miscarriage of justice in refusing the adjournment and making its finding that the absence of the Counsel will not affect the moving of the motion since as it conceived the facts as wrong procedure was adopted by the Appellant.
He referred the Court to the decision of the trial Court at page 45 of the printed Record of Appeal and urged the Court to set aside the decision of the trial Court and allow the Appeal. He referred the Court to the cases of:
Saraki v. Kotoye (990) 6 SC 1 at 30, 35-44; Yakubu Enterprises Ltd. v. Omolaboje (2006) 1 SC Pt. 111 page 1 and argued that the issue of motion and affidavit which the Defendant ought to file and serve were not canvassed or raised by any of the parties including the Plaintiff and that even if it was canvassed it was an application of wrong principle of law. Learned Counsel submitted that as an appellate Court, this Court can set aside the ruling of the trial Court on misapplication of law and cited the case of Saraki v. Kotoye (supra). He maintained that the mistake of law is apparent in the decision and that this Court can intervene to correct it.
Learned Counsel for the Respondent submitted that the finding of fact of the trial Court that it did not see anything in the Affidavit of defence disclosing a defence on the merit to the Suit has remained unchallenged and no issue can therefore properly stand or be argued which turns on the said finding. If there was an Appeal challenging that finding of fact, then the onus would be on the Appellant to show that the said findings are not based on the proper evaluation of the Affidavit evidence before the Court. He cited the case of Iriri v. Erhurbobara (1991) 3 SCNJ 1 where it was held that the onus to show that those findings are not based on the proper evaluation of evidence is on the party who sets out to challenge them and that this has not been done in this case.
He submitted that without any ground of Appeal challenging the specific finding by the lower Court that there is nothing in the Affidavit of defence disclosing a defence on the merit, it is sheer idle exercise to want to formulate an issue on whether or not the trial Court reviewed and/or evaluated the defence in the Counter-affidavit before it arrived at its decision.
Learned Counsel submitted that a defence under Order 23 must be a defence on the merit, not a sham, He cited the cases of:
Cottia v. Sanusi Brothers (2000) 6 SCNJ 450 at 464;
Macauley v. NAL Merchant Bank Ltd. (1990) NWLR Pt.144 page 281 at 290.
The Provisions of Order 23 Rules 1, 3(1) and 4 of the Kogi State (Civil Procedure) Rules 1991 provides as follows:
“1. Whenever application is matter to a Court for the issue of a Writ of Summons in respect of a claim to recover a debt, liquidated money or any other claim and the application is supported by an affidavit setting forth the grounds upon which the claim is based and stating that in the deponent’s belief there is no defence thereto, the Court shall, if satisfied that there are good grounds for believing that there is no defence thereto, enter the suit for hearing in what shall be called the “Undefended List” and mark the writ of summons accordingly, and enter thereon a date for hearing suitable to the circumstances of the particular case.
2. …….
3.(1) If the party served with the Writ of Summons and affidavit delivers to the Registrar, not less than five days before the date fixed for hearing, a notice in writing that he intends to defend the suit, together with an affidavit disclosing a defence on the merit, the Court may give him leave to defend upon such terms as the Court may think just.
(2) …..
4. Where any defendant neglects to deliver the notice of defence and affidavit prescribed by rule 3(1), or is not given leave to defend by the Court, the suit shall be heard as an undefended suit and Judgment given thereon, without calling upon the plaintiff to summon witnesses before the Court to prove his case formally.”
It is clear from the above provisions of the Kogi State (Civil Procedure) Rules 1991 that before a trial Court can enter a Suit for hearing in the Undefended List, it must be satisfied that there are good grounds for believing that there is no defence to the claim.
Where a Defendant can show in his Affidavit that he has a defence on the merit, he will be granted leave to defend the Suit. The Defendant at this stage need not show a complete defence. It is sufficient if the defence set up shows that there is a triable issue or that for some other reasons there ought to be a trial. See Fesco (Nig.) Ltd. NR & CP. Co. Ltd (1998) 1 NWLR Pt. 573 page 227.
A defence on the merit must not contain merely a general statement that the Defendant has a good defence to the action. Such a general statement must be supported by particulars which if proved would constitute a defence. It is sufficient if the Affidavit discloses:
(a) a triable issue or that a difficult part of law is involved;
(b) that there is a dispute as to the facts which ought to be tried;
(c) that there is a real dispute as to the amount due which requires the taking of an account to determine; or
(d) any other circumstances showing reasonable grounds of a bona fide defence. See Ataguba & Co. v. Gura (Nig.) Ltd (2005) 8 NWLR Pt. 927 page 429.
A Defendant who intends to defend an action brought under the Undefended List procedure is expected to file a Notice of Intention to Defend together with an Affidavit disclosing a defence on the merit or a triable issue. See Haido v. Usman (2004) 3 NWLR Pt.859 page 65.
In the instant case, the Plaintiff/Respondent look out a Writ of Summons under the Undefended List pursuant to Order 23 rules 3 and 4 of the Kogi State High Court (Civil Procedure) Rules 1991 supported by an Affidavit of 24 paragraphs, stating that the Defendant has no defence to the claim. Attached to the Affidavit are four Exhibits marked as Exhibits A, B, C, D1, D4.
Exhibit A referred to in paragraph 8 is the agreement entered between Plaintiff/Respondent and the Defendant/Appellant. Exhibits B and C referred to in paragraph 17 of the Affidavit in support are the letters of demand dated 10/2/2005 and 10/6/2005.
Exhibits D1-D4 referred to in paragraph 20 of the Affidavit in support are copies of the Defendant/Appellant’s vehicle particulars deposited with the Plaintiff/Respondent as collateral. The vehicle is a Peugeot 504 Saloon car Registration No. AP737 RSH (formerly KW1011 EA).
Exhibit E is a written statement by the Defendant/Appellant dated 3rd February 2003 that the originals of Peugeot 504 Registration No. AP737 RSH given as collateral are in the custody of the Defendant/Appellant. The said Exhibit E is hereby reproduced for ease of reference:
“PEUGEOT 504 3rd February, 2003
RE: AP737 RSH
Loan’s Agreement and Collateral with Mr. Francis Emenogha
The Originals of the particulars of the ahove vehicle are all with me as at the time o/this transaction.
Mr. Ugwu Nicodemus
(signed)
Endorsement:
This endorsement relates to the Loan’s Agreement of 3/2/2003 in respect of N806,150.00 between MR. FRANCIS EMENOGHA and MR. NICODEMUS UGWU who hereby acknowledges retention of his original papers.
PREPARED BY
(Signed)
3/2/03
Barry & Co.
Okene.”
Exhibit A, the Loan Agreement is reproduced for ease of reference thus:
(LOAN AGREEMENT)
“THIS LOAN AGREEMENT is made this 3rd day of February 2003 BETWEEN FRANCIS EMENOGHA of Idoji Street Okene in Okene Town of Kogi State and herein called ‘the Lender’ of the one PART and NICODEMUS UGWU of 8 Idoji Street Okene in Okene Town of Kogi State and herein called ‘the Borrower’ a/the other PART.
WHEREAS:
1. The expression “the Lender and Borrower” shall wherever the con so admits include their heirs, assigns, Director, Beneficiaries in title, and/or their representatives-in-title;
2. The Lender is/is not a registered Money lender and has therefore charged/not charged any interest in this transaction and the transaction is of legal efficacy; (not applicable).
3. The amount involved in this transaction is the sum of N806,150.00 Eight Hundred & Six Thousand one Hundred and fifty Naira which the Borrower has requested from the Lender and the Lender has agreed to give out at 15% interest monthly.
4. The loan shall be repaid fully in ONE SINGLE installment of N806,150.00 (Eight Hundred and Six Thousand one Hundred and fifty Naira) starting from the 25th day of April 2003 and paying on the ….. day of every successive month, except that the last installment which is the sum of N…..
NOW THIS AGREEMENT WITNESSETH:
1. In consideration of the sum of N806,150.00 (Eight Hundred and Six Thousand one Hundred and fifty Naira) now lent by the Lender to the Borrower and the receipt of which sum the Borrower thereby acknowledges, the Borrower hereby covenants with the Lender to pay back the loan in ONE (SINGLE) installment of N806,150.00 (Eight Hundred and Six Thousand, One Hundred and fifty Naira at 15% interest monthly.
2. The Borrower hereby pledges as lien his vehicle (make) PEUGEOT (model) 504 Saloon Reg. No. AP737 RSH and CHASIS No. 4017959,
3. The Borrower hereby further authorizes the Lender to sell the said vehicle if after two months of the Loan becoming due for full discharge the Borrower fails to discharge fully under this Agreement.
4. In furtherance to his pledges and undertakings under this Agreement the Borrower hereby gives unto the Lender photocopies of relevant paper of the said vehicle as evidence with original vehicle Registration Book.
5. In the event of the Lender having cause to seize the said vehicle, the Borrower hereby further undertakes to pay to the Lender the sum of N5,000.00 (Five Thousand Naira) for the towing of the vehicle and the sum of N200.00 (Two Hundred Naira) every day for the security of the vehicle pending its disposal.
WHEREFORE the parties of this Agreement have hereunder set their respective hands and seals this day and year first above-written.
Signed, Sealed and Delivered,
by the within-named Lender Francis Emenogha (signed)
In the presence of …..
Signed, Sealed and Delivered,
by the within-named Borrower Nicodemus (signed)
In the presence of ……..
JURAT: This document was first read and interpreted from English to …….. language und parties herein appear to have understood before signing. Interpreter …… This document was prepared by:
J. U. BARRAH Esq.,
Barry & Co. (signed)
Barry Chambers,
18 Attah Road,
(2nd Floor)
P. O. Box 755, Okene
KOGI STATE.”
The Defendant/Appellant filed a Notice of Intention to Defend the Suit supported by an Affidavit of 37 paragraphs. The gist of the defence of the Defendant/Appellant is a denial of any loan agreement with the Plaintiff/Respondent.
He deposed in paragraph 3 of the affidavit in support of Notice of Intention to Defend that he never borrowed any money from the Defendant as stated in the agreement and the affidavit in support of the Writ.
The Defendant/Appellant further deposed in paragraphs 4, 7, 8, 13 & 14 of the affidavit that all the transactions were between Nikotech Investment Nig. Ltd. and the Plaintiff/Respondent and that it was not a personal business between them. He denied the claims of the Plaintiff/Respondent in paragraph 30 of the affidavit that the agreement was never executed, that he was shocked to see the agreement and that he did not borrow any money from the Plaintiff.
In paragraph 36, he deposed that all the original documents of his vehicle are with him and that he was surprised to see them in the said agreement.
The learned trial Judge after a careful evaluation of the affidavit evidence of both parties and the Exhibits tendered came to the following conclusion at page 50 of the Record of Appeal thus:
“I have gone through the processes in this suit and I have listened carefully to the argument and submissions (If the learned Counsel for the plaintiff in proving the case of the plaintiff against the defendant.
And I believe the plaintiff have fulfilled all the requirement of the rule in order 23 of the rule of this court to warrant the judgment being entered in his favour against the defendant.
The defendant has no defence on the merit in this suit, he maintained rather an excuse stand which cannot deny the plaintiff the fruit of his litigation against him under the Summary trial procedure is therefore entered in favour of the plaintiff against the defendant in compliance with order 28 rule 4 of the rules of this court.
Judgment is accordingly entered infavour of the plaintiff as per his claim in the writ of summons.”
I have carefully examined as well as evaluated the Exhibits together with the affidavit evidence. I am in agreement with the opinion of the trial Court that the Appellant has not presented any useful defence against the claim of the Respondent. The Appellant has also not exhibited any material capable of swaying this Court to disturb this finding of fact of the trial Court. Thus, this issue is resolved in favour of the Plaintiff/Respondent.
On the last issue for determination, learned Counsel for the Defendant/Respondent argued that the trial Court entered judgment against the Defendant in default of the filing of motion and an affidavit in response to the claim brought under the Undefended List. He contended that the Defendant was not heard and that it was only the Counsel to the Respondent that was heard. He maintained that the Appellant was not heard or given opportunity of being heard even when he was present in Court. He referred the Court to page 42 of the Record and Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999.
Learned Counsel for the Appellant argued that the trial Court did not throughout the proceeding inquire any matter from the Defendant who was present. The Defendant, he contended was not afforded any opportunity by the Court to make any comment or request and that he was not given any opportunity to present its case even when his Lawyer’s letter for adjournment was not allowed.
He maintained that this breach is fundamental and makes the entire proceedings a nullity, He referred the Court to the case of Ezenwaji v. UNN (2006) 3 NWLR Pt. 967 page 325 at 339.
Learned Counsel referred this Court to the provisions of Order 53 Rules 4, 6, and 7 of the High Court Civil Procedure Rules 1991 of Kogi State which stipulates that an adjournment can be granted and that cost is an appropriate remedy for the adjournment.
Learned Counsel for the Appellant maintained that the reason for the adjournment is not flimsy but grounded on appearance put on Election Tribunal that is time bound.
He maintained that the fact of being at the Tribunal was not refuted or denied; that an adjournment with cost as provided by the Rules would have sufficed.
Learned Counsel for the Appellant submitted that the refusal to hear from the Defendant who was present, coupled with the absence of Counsel and the rejection of Notice of Intention to Defendant are wrong principles which have occasioned a breach of Fundamental Right to fair hearing which renders the entire proceedings a nullity.
He urged this Court to set aside the entire proceedings which he said was conducted in breach of Chapter IV of the Constitution. Learned Counsel finally urged the Court to allow the Appeal in the terms of the Notice of Appeal and set aside the judgment of the lower Court.
Learned Counsel for the Respondent J. U. Barrah Esq. in response to the submission of the Appellant submitted that the lower Court in exercise of its unfettered discretion refused to grant leave to the Defendant/Appellant to defend the Suit. He argued that this is one of the lower Court’s discretionary powers under Order 23 Rules 3(1) and 4 of the Kogi State High Court (Civil Procedure) Rules 1991. He referred the Court to the cases of:
Imah v. Okogbe (1993) 12 SCNJ 57 at 71;
Obomhense v. Erhahon (993) 7 SCN.J Pt. 11 page 479;
Udoh v. Orthopaedic Hospital Management Board (1993) 7 SCNJ Pt.2 436.
He further argued that the exercise of the discretion of the lower Court has not been faulted or challenged by the Defendant/Appellant. Learned Counsel submitted that there is no Appeal against the lower Court’s exercise of its discretion. He further submitted that Order 23 Rule 1 of the Kogi State High Court (Civil Procedure) Rules 1991 operates to vest in the trial Judge the discretion to either hear the Suit as Undefended or to place it in the ordinary Cause list.
Learned Counsel for the Defendant/Appellant submitted that adjournment is discretionary and leave to defend is also discretionary. He referred the Court to the cases of:
NBN Ltd. v. Wende & Co. (Nig.) Ltd. (1996) 42 LRCN 1545;
Planwell v. Ogala (2003) 113 LRCN 2436.
He further submitted that it is well settled that if a judicial discretion is exercised bona fide by a lower Court uninfluenced by irrelevant considerations and not arbitrary or illegal, the general rule is that an appellate Court will not ordinarily interfere, He referred the Court to the cases of:
University of Lagos v. Aigoro (1985) 1 NWLR Pt.1. page 143;
Ogero Egiri v. Ededho Uperi (1974) NMLR 27;
Ikweki v. Ebele (2005) 2 SCNJ 242 at 255.
Learned Counsel argued that the Defendant/Appellant has not challenged or appealed either the refusal to grant an adjournment on 27/7/2005 nor has he challenged the exercise of Court’s discretion refusing to grant leave to the Defendant to defend the Suit He maintained that those Orders remain as valid on 27/7/2005 as they were today before this Court.
He argued that there is no ground of appeal challenging the specific findings of facts of the lower Court. He contended that it is the duty of the Appellant to challenge a finding of fact. Learned Counsel submitted that an appellate Court will not upset or interfere with a clear finding of fact which has not been challenged or appealed. The Court was referred to the cases of:
W. T. Ejuetami v. Mrs Benedicta O. Olaiya (2001) 12 SCNJ 140; Leventis Technical Ltd. v. Petrojessica Enterprises Ltd. (999) 4 SCNJ 121; Chief Jacob Cleopas Blariko v. Chief A. M. Edeh-Ogwuile (2001) 4 SCNJ 332; Saeby Jernstoberi Maskinfabric A/s v. Olagun Enterprises Ltd. (1999) 12 SCNJ 171.
The question whether to grant or refuse an adjustment of a matter fixed for hearing is within the discretion of the Court. However such discretion must at all times be exercised not only judicially but also judiciously. See Albert Uma & Ors v. Ogugbeli Dei & Ors. (1971) 1 All NLR 8 at 13.
It is a well-established principle of law that all judicial discretions must be exercised according to common sense and according to justice, and if there is any miscarriage of justice in the exercise of such discretion, it is within the competence of an appellate Court to have it reviewed. However in order to succeed in an Appeal against such exercise of discretion, the Appellant shall satisfy the appellate Court that the trial Court acted on an entirely wrong principle or failed to take all the circumstances of the case into consideration and that it is manifest that the Order would work injustice to the Appellant. See Okeke v. Drub (1999) 4 S.C. (pt. 11) page 37.
A trial Court in exercising its discretion as to whether to grant an adjournment must always bear in mind that it is the duty of the Court to minimize costs of litigation and to see to it that justice is not unnecessarily delayed. A Court has a duty to refuse an application by either party for an adjournment of the hearing if it is of the opinion that the application was made only for purposes of delaying the proceedings. See: Omega v. The State (1964) 1 All NLR 179; Donatus Ndu v. The State (1990) 12 SCNJ 50 at 60.
In the present case the Appellant who was the Defendant at the trial Court soon after filing a Notice of Intention to Defend the Suit filed by the Plaintiff/Respondent developed a penchant for writing letters seeking for adjournments on all dates fixed for the hearing of the matter. A catalogue of such events showed that the Defendant/Appellant’s Counsel was not in Court on 11/5/2005 but wrote a letter for an adjournment and the matter was adjourned to 26/5/2005 for hearing. See page 42 of the Record.
On the 26/5/2005, the matter could not go on and it was adjourned to 4/7/2005. On 4/7/2005, Counsel to the Defendant/Appellant wrote yet another letter seeking for an adjournment on the ground that he was involved in another matter at High Court I, Lokoja and the case was again adjourned to 27/7/2005 for hearing. See page 43 of the Record of Appeal.
Counsel to the Defendant/Appellant wrote another letter to the Court on 27/7/2005 seeking for yet another adjournment on the ground that he was involved at the Ejection Tribunal. Learned Counsel for the Plaintiff/Respondent considered this letter of 27/7/2005 as one adjournment too many and opposed the request of the Defendant/Appellant. See page 44 of the Record of Appeal.
Learned Counsel for the Plaintiff/Respondent urged the Court to allow him address the Court on the matter which is on the Undefended List. The trial Court, in granting the application of Counsel for the Plaintiff/Respondent to move his case, said on page 45 of the Record of Appeal as follows:
“This matter brought on the undefended list of the Court pursuant to Order 23 of the Rules of this Court has been dragging on since April, 2005 with the learned Counsel for the Defendant who filed a Notice of intention to defend with supporting affidavit refusing to come to Court to press in the defence on merit of this case by the Defendant. The learned Counsel for the Defendant has always been asking for adjournments. The one he asked for this morning is devoid of diligence. Subsequent ones have been granted in the interest of justice not that the reason given was credibly convincing.
The purpose of proceedings under Order 23 of the Rules of this Court is to make room for Summary trial and judgment for the Plaintiff in the absence of any notice of intention to defend by the Defendant or where leave is not granted to the Defendant to defend the suit on merit.
I have gone through the Notice of intention to defend the suit filed in by the Defendant and the supporting affidavit and I have not seen any fact disclosing a defence on merit deposed to in the said affidavit by the Defendant. Even if his Counsel was to be in Court he is expected to have filed a motion on notice for intention to defend alongside the notice of intention to defend and argued same.
If they were to be in Court with the said Motion on Notice alongside with the supporting affidavit as it were, I would not have ruled differently. The absence of the learned Counsel in Court this morning is no excuse, and will not be a barrier of the Plaintiff moving his case this morning as the Notice o/intention to defend he filed is devoid of any defence on merit to the suit. The objection to the adjournment sought by the learned Counsel for the Plaintiff is hereby sustained. The Plaintiff is to go ahead with his case, Order 23 rule 4 having been complied with.”
I have thoroughly examined the written submission of the learned Counsel for the Appellant as well as the decision of the trial Court and I am satisfied that the several adjournments sought by Counsel to the Defendant/Appellant were meant to delay the hearing of the Plaintiff/Respondent’s claim to which the Defendant/Appellant has no prima facie defence.
This type of attitude of Counsel who seeks to delay the proceedings of a matter particularly when they realize that they do not have a good case should not only be discouraged but should also be condemned in the strongest terms. I have the support of the Supreme Court on this opinion of mine in the case of Okon Udoh Akpan v. The State (1991) 5 SCNJ 1 at 13 Per Olatawura JSC (of blessed memory) thus:
“No encouragement should he given to Counsel who are not ready to prosecute their cases. Unnecessary and prolonged adjournments lead to frustration on the part of litigants and sometimes they may lead to a miscarriage of justice…
We must reduce to the barest minimum applications for adjournments. Adjournments which are designed to delay or defeat justice should be refused. ”
In a similar case of Donatus Ndu v. The State (1990) 12 SCN.J 50 at 60, Appellant was tried and convicted of murder. After the prosecution’s case was closed the defence Counsel sought for an adjournment several times through a period of about fifteen months. When eventually the last defence witness was called, defence Counsel was called upon to address the Court. He refused but instead asked for an adjournment. The Court refused to adjourn the case. The Court eventually ordered that the case be stood down for one hour for address. When the Court resumed sitting, defence Counsel repeated the application for an adjournment. The application was again refused. Counsel for the prosecution then addressed the Court and Judgment was reserved. Appellant was convicted.
The Court of Appeal confirmed the Judgment of the trial Court. On a further Appeal to the Supreme Court, the main issue for determination was whether the refusal by the trial Court to grant defence Counsel adjournment to enable him prepare his address was a denial of his right of address.
The Appeal was dismissed and his conviction thus affirmed. Per Akpata JSC (of blessed memory):
“A trial Court in exercising its discretion as to whether to grant an adjournment always bears in mind that it is the duty of the Court to minimize costs of litigation and to see to it that justice is not unnecessarily delayed. The Court will refuse an application by either party/or an adjournment of the hearing if it is of the opinion that the application was made only for purpose of delaying the proceedings. See Omege v. State (1964) 1 All NLR 179.”
On 27/7/2005 when the matter came up for hearing before the trial Court, the Defendant/Appellant sent in a letter seeking for another adjournment to which Counsel to the Plaintiff/Respondent objected vehemently. The trial Court upheld the objection.
It is trite that when a matter under the Undefended List comes up for hearing on the date it is fixed for hearing, the only duty of the Court in relation to that matter is to see that if a Notice of Intention to Defend with a counter-affidavit in support was filed by the Defendant. If none was filed, the Court must proceed to judgment. See Ben Thomas Hotel Ltd. v. Sebi Furniture Ltd. (1989) 5 NWLR Pt. 123 page 532.
The trial Court was therefore right in refusing the adjournment which in my opinion does not amount to a denial of the Defendant/Appellant’s right to fair hearing. Hence, I see no cause to disturb this finding of fact of the trial Court; as such this last issue is also resolved in favour of the Respondent.
Having resolved all the issues in favour of the Respondent this Appeal fails and is hereby dismissed. The decision of the trial Court as well as consequential Orders made therein is affirmed. Costs of N50,000.00 is hereby awarded in favour of the Respondent.
Other Citations: (2009)LCN/3247(CA)
