Alhaji Auwalu Etokhana V. Progress Bank of Nigeria Plc. (1997)
LawGlobal-Hub Lead Judgment Report
MOHAMMED, J.C.A.
By a writ of summons issued on 18/10/90 under the undefended list procedure which was, later transferred to the Ordinary Cause, the respondent in this appeal as plaintiff instituted an action before the High Court of Justice Kano State at Kano and in the statement of claim, claimed the sum of N557,483,65 and interest at the rate of 35.5% from 30th August 1990 until judgment and thereafter interest at the rate of 10% until the judgment is liquidated against the appellant and one other as defendants, The amount claimed in the action was loan to overdraft facilities granted to the defendants by the plaintiff. Before the undefended suit came up for hearing, the defendants duly filed their notice of intention to defend the suit and the suit was consequently transferred to the Ordinary Cause List for hearing and pleadings ordered on 19/4/91. After suffering a number of adjournments, the case ultimately came before Abdu Aboki J., for hearing on 27/7/94, the date fixed with the agreement of counsel to the parties. However, learned counsel to the defendants failed to turn up on that date and the case proceeded to hearing and judgment was delivered on the same date. The learned trial Judge in his judgment found for the plaintiff and granted all its reliefs. The defendants’ attempt to have the judgment against them set aside by the learned trial Judge failed when their application was dismissed on 22/10/94. Aggrieved by the judgment of the learned trial Judge of 27/7/94 and his ruling of 22/10/94 refusing to set aside his judgment, the 1st defendant now appellant had appealed to this court on two separate notices of appeal containing identical grounds of appeal.
Briefs of arguments were duly filed and served in compliance with the rules of this court. The following 2 issues were formulated by the appellant in his brief of argument filed with the leave of this court on 18/1/96.
“1. Whether the respondent Bank was estopped from pursuing its claim in court after agreeing with the appellant on how the claim would be repaid, and the defendant had acted on the basis of the new agreement.
- Whether the learned trial Judge rightly exercised his discretion in entering judgment for the plaintiff/respondent by virtue of Order 37 rule 4 of the Kano High Court (Civil Procedure) Edict 1988, and thus visited the sin of the defendants’ counsel, who was not in court after having taken a date for hearing on the defendant/appellant?”
The respondent while adopting the two issues as identified in the appellant’s brief for determination, reframed its issue No.1 to read as follows:-
“1. Whether the respondent was estopped from pursuing its claim in court as a result of the conditions agreed upon by the parties for the grant of subsequent loan.”
On the first issue, it was submitted for the appellant that the respondent was estopped from continuing with the claims at the lower court after reaching agreement with the appellant on how the indebtedness was to be settled after the outcome of the cases the appellant was prosecuting in the Lagos High Court. That the conduct of the respondent of granting the appellant additional loan and the new terms introduced by the respondent, gave the appellant the impression that the respondent was no longer pursuing its claim at the lower court. Citing the cases of Greenwood v. Marlins Bank Ltd. (1933) AC 5 and Union Bank of Nigeria v. Ozigi (1994) 3 NWLR (Pt. 333) 385; (1994) 3 SCNJ 42 learned counsel for the appellant argued that the learned trial Judge was in error in refusing to set aside the judgment to allow the appellant to defend the action.
Learned counsel to the respondent however contended that having regard to a number of decisions of the superior courts including the case of Ondo State University v. Folayan (1994) 7 NWLR (Pt. 354) 1; (1994) 7 – 8 SCNJ 186 at 205, the issue of estoppel did not arise at all in this case to warrant its application by the lower court against the respondent. The respondent pointed out that the case at the lower court in respect of which judgment was given related to the loan granted to the appellant in 1985 while the transaction on the additional loan of N25,000.00 granted to the appellant in 1992 is entirely a separate transaction which was not before the lower court for determination. That in the absence of any agreement between the parties to stay proceedings in the lower court, the appellant had no explanation for staying away from the lower court on the date fixed for the hearing of the case.
This issue no doubt centered principally on the defence of estoppel by conduct which derives its source from section 151 of the Evidence Act Cap 112 of the Laws of the Federation 1990 which states:-
“151. When one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative in interest shall be allowed, in any proceedings between himself and such person or such person’s representative in interest, to deny the truth of that thing.”
By this provision which has received several judicial pronouncements of the Supreme Court of this Country in a number of cases, if a man either in express terms or by conduct makes a representation to another of the existence of a state of facts which he intends to be acted upon in a certain way, and it be acted upon in that way, in the belief of the existence of such a state of facts, to the damage of him who so believes and acts, the first is estopped from denying the existence of such a state of facts. See Joe Iga & Ors. v. Amakiri & Ors. (1976) 11 S.C. 1 at 12 and Ondo State Universally v. Folayan (1994) 7-8 SCNJ 186 at 205; (1994) 7 NWLR (Pt. 354) 1. What is in contention in the present appeal is whether by agreeing to grant the appellant additional loan of N25,000.00 to enable the appellant to pursue the civil cases he was prosecuting in the Lagos High Court and the security demanded by the respondent for the loan in terms of submission of title documents of the appellants, Fiat Trucks and the undertaking by the appellants’ counsel handling the cases in the Lagos High Court to pay any proceeds of judgment debts to be recovered in those cases to the respondent, amounted to estoppel preventing the respondent from proceeding with the case against the appellant at the lower court. It is quite plain that the respondent in the transaction in 1992 by which it granted the second or additional loan to the appellant, did not by any declaration, act or omission and intentionally give the appellant even by remote impression that it was no longer pursuing its case at the lower court. Even the appellant by his conduct of filing his statement of defence out of time with the leave of the lower court eight months after that transaction and his counsel agreeing to the date fixed for the hearing of the case on 27/7/94, shows quite clearly that even the appellant himself did not have that belief that the respondent was not going to pursue the case at the lower court after granting him the loan in 1992. The learned trial Judge was therefore right when he refused to regard the issue of estoppel as a defence in his ruling refusing to set aside his judgment of 27/7/94 against the appellant. In fact the very fact that no defence of estoppel which by law must be specifically pleaded, was pleaded by the appellant in his statement of defence filed at the lower court prior to the hearing of the case, shows that the issue of estoppel now being raised in this appeal has no basis whatsoever.
The second issue is whether the learned trial Judge exercised his discretion judicially and judiciously in favour of the plaintiff in entering judgment for it by virtue of order 37 rule 4 of the Kano High Court (Civil Procedure) Edict 1988 and thus visited the sin of defendant’s counsel, who did not appear in court on the defendant/appellant. Learned counsel to the appellant after making extensive reference to the provisions of rules 2, 4 & 5 of order 37 of the rules of the Kano High Court, had submitted that by proceeding to hear the case on 27/7/94 and delivering judgment in the absence of the appellant and his counsel, the learned trial Judge had clearly visited the sin of the appellant’s defaulting counsel on the appellant. That for this reason, relying on the case of Ntukidem v. Oko (1986) 5 NWLR (Pt. 45) 909 at 918 – 919,the learned trial Judge cannot be said to have exercised his discretion judicially and judiciously in entering judgment in the absence of the appellant and his counsel. On the refusal of the learned trial Judge to set aside the judgment against the appellant in his ruling of 22/11/94, it was argued for the appellant that in view of the Supreme Court decision in Williams & Ors. v. Hope Rising Voluntary Funds Society (1982) 1-2 SC 145, and having regard to the facts deposed in support of the appellant’s application to set aside the judgment, the learned trial Judge did not exercise his discretion judicially and judiciously when he refused the application.
However, it was the contention of the respondent on this issue that the learned trial Judge exercised his powers correctly under order 37 rules 2 & 4 of the rules of the lower court by entering judgment for the respondent and that the appellant did not satisfy any of the conditions under the law to justify setting aside the judgment obtained against him. The same case of Williams & Ors. v. Hope Rising Voluntary Funds Society (supra) cited and relied upon by the appellant and the case of W.A.P.I.N. v. Nigerian Tobacco Co Ltd. & Anor. (1987) 2 NWLR (Pt.56) 299 at 306, were cited by the respondent in support of this argument. Learned counsel to the respondent observed that the affidavit in support of the appellant’s application to set aside the judgment did not give any reason for his failure to be in court on the date the case was heard. That the application was not also filed within 6 days after the judgment or such longer time as allowed by court apart from the fact that the appellant’s case was manifestly unsupportable. Learned counsel concluded by submitting that the conduct of the appellant throughout the proceedings at the lower court was such that his application was not worthy of sympathetic consideration to justify exercising the discretion of the lower court in his favour.
There is no doubt whatsoever that the trial court was vested with powers under order 37 rules 2 – 5 of the Kano State High Court (Civil Procedure) Rules 1988 when a defendant fails to appear on the date fixed for the hearing of a case, the plaintiff may be allowed to proceed and prove his case and obtain judgment Such a judgment in default may however be set aside at the discretion of the trial court on the application by the defendant where he has good cause for being absent. Order 37 rules 2 & 4 which are relevant in this respect state as follows:-
“2. If, when a trial is called and the plaintiff appears and the defendant does not appear, then the plaintiff may prove his claim, so far as the burden of proof lies upon him.”
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- Any judgment obtained where one party does not appear at the trial may be set aside by the court upon such terms as may seem just, upon an application made within six days after the trial or within such longer period as the court may allow for good cause shown.”
The record of this appeal at page to shows quite clearly that on 6/6/94 both parties to this appeal were before the lower court duly represented by their learned counsel both of whom specifically requested the lower court to fix a date for the hearing of the case. In answer to their request, the learned trial Judge fixed 27/7/94 as the date for the hearing of the case. However, on this date, although the learned counsel to the plaintiff/respondent was in court, the defendant/appellant was not only absent but that he was also not represented by counsel. In the absence of any explanation for the absence of the defendant/appellant and his counsel, the learned trial Judge allowed the plaintiff/respondent to lead evidence and prove its case. Having been satisfied that the burden of proof was discharged, judgment was accordingly entered against the defendant/appellant on the same date 27/7/94. I have no doubt at all in my mind that from these facts which are not disputed even by the appellant himself, the discretion exercised by the learned trial Judge in allowing the respondent to call evidence to prove his case and the subsequent entering of judgment in favour of the respondent, was in accordance with the rules of the lower court. Thus, the discretion was therefore exercised judicially and judiciously.
On whether or not the learned trial Judge exercised his discretion judicially and judiciously in refusing to set aside his judgment of 27/7/94 on the application by the appellant, what I now have to resolve is whether the appellant had satisfied all the conditions necessary to justify the lower court exercising its discretion in his favour. These conditions or considerations were fully set out by Idigbe J. (as he then was of the blessed memory) in Ugwu & Ors. v. Aba & Ors. (1961) 1 All NLR 438 and restated by him in the Supreme Court in the case cited and relied upon by both parties to this appeal, Williams & Ors. v. Hope Rising Voluntary Funds Society (1982) 1 All NLR (Pt.1) 1 at 5 as follows:-
“Among other things the court must consider-
- The reasons for the applicants’ failure to appear at the hearing or trial of the case in which judgment was given in his absence.
- Whether there had been undue delay in making the application to set aside the judgment so as to prejudice the party in whose favour the judgment subsists.
- Whether the latter party (i.e. in whose favour the judgment subsists) would be prejudiced or embarrassed upon an order for re-hearing of the suit being made; so as to render such a course inequitable.
- Whether the applicants’ case is manifestly unsupportable; and
- That the applicant’s conduct throughout the proceedings, i.e. from the service of the writ upon him to the date of judgment has been such as to make his application worthy of sympathetic consideration.” From the events which I have earlier stated and the facts as found by the learned trial Judge, it is manifest that none of the considerations or conditions stated above can be resolved in favour of the appellant. In fact the learned trial Judge in his well considered ruling of 22/11/94 extensively considered each of the requirements before coming to the conclusion that the appellant did not satisfy any of them to warrant the discretion of the lower court being exercised in his favour. Indeed I have no reason at all to disagree with the learned trial Judge. It is quite clear from the appellant’s statement of defence dated 28/5/91 that the appellant did not plead any facts in support of the alleged defence of estoppel on the basis of which the appellant wanted the judgment set aside. The appellant’s case is therefore manifestly unsupportable. The appellant also did not give any reason for his failure to be in court on 27/7/94, nor did he give any excuse for the delay in filing the application which was filed well after 6 days from the decision contrary to rule 4 of order 37 and no extension of time was given to the appellant to cure this defect in the application. Indeed learned counsel to the appellant raised heavy storm in his arguments that the learned trial Judge visited the sin of the appellant’s counsel on the appellant by refusing to exercise discretion in favour of the appellant. Let me observe here that the failure to appear at the hearing was undoubtedly due to the fault of the appellant’s counsel who was in court and took the date for hearing. However, as Idigbe J.S.C. (as he then was of the blessed memory) said in the case of Williams & Ors. v. Hope Rising Voluntary Funds Society (supra) all the 5 considerations or conditions must be resolved in favour of the appellant before the judgment should be set aside. It is just not enough that some of them can be resolved in favour of the appellant.
The two issues raised in this appeal centered on the exercise of discretion by the learned trial Judge in entering judgment for the respondent in the absence of the appellant and in refusing to set aside that judgment on the application by the appellant. It is well settled that if judicial discretion has been exercised bona fide, uninfluenced by irrelevant considerations and not arbitrarily or illegally by the lower court, the general rule is that an appeal court will not ordinarily interfere. The guiding principle in this respect is that the discretion, being judicial, must at all time be exercised not only judicially but also judiciously on sufficient materials: Saffieddine v. C.O.P. (1965) 1 All NLR 54 at 56; Ugboma v. Olise (1971) 1 All NLR 8 and University of Lagos v. Aigoro (1985) 1 NWLR (Pt.1) 143 at 148. Having regard to all the circumstances of this case, I do not think the exercise of discretion by the learned trial Judge in the present case was improperly made, or that it affected the justice of the case to justify any interference by this court. I therefore hold that the learned trial Judge in the instant case indeed had exercised his discretion judicially and judiciously not only in entering judgment for the respondent but also in refusing to set aside that judgment on the application by the appellant.
For the various reasons I have given in resolving the two issues raised in this appeal, I have come to the conclusion that there is no merit at all in this appeal.
Accordingly the appeal is hereby dismissed.
The respondent is entitled to costs assessed at N1,500.00 (one thousand, five hundred naira only).
Other Citations: (1997)LCN/O312(CA)
