Nigerian Telecommunications Plc V. Chief S. J. Mayaki (2006)
LawGlobal-Hub Lead Judgment Report
RAPHAEL CHIKWE AGBO, J.C.A.
The respondent as plaintiff in the court below i,e. the High Court of Lagos State sitting in Lagos claimed of the appellant, in paragraph 10 of his 2nd amended statement of claim as follows:
“(1) An order directing the defendant to release to the plaintiff forthwith telephone line No.820890 or another telephone line with International Direct Dialing System in exchange;
(2) The sum of $30,000.00 (Thirty Thousand American Dollars) or its equivalent in Naira as special damages;
(3) N2,000,000 (Two Million Naira) as general and exemplary damages for the defendant’s wrongful acts and contempt of the rule of law.”
The case of the plaintiff, a legal practitioner was that he was a subscriber to the defendant’s telephone line No. 820890 in October 1996. The defendant now appellant disconnected the said telephone line on the ground that the telephone had an accumulated debt of N1,966.70k, a debt the plaintiff denied owing. The defendant transferred the said telephone line to another subscriber. As a result of the loss of access to the telephone line the plaintiff lost one of his most valuable retainers leading to the loss of an income of thirty thousand American dollars from the retainership transaction. Issues were joined, pleadings exchanged and the defendant denied these transactions and denied liability for any damages following therefrom.
After several adjournments, the case proceeded to hearing on 14th February 1996. Both parties were represented by counsel. Plaintiff testified and was cross-examined. Plaintiff called no witnesses and closed his case. The court then called on defendant to proceed with the defence. The defence counsel said he was not prepared to go on. He asked for an adjournment giving as his reason his desire to amend the statement of defence. The court below refused the application stating that the case had been set down for hearing for that day and that the defendant had all the time in the world between 20-2-95 when the statement of claim was amended and that day 14-2-96 to make any amendment it thought necessary to its pleadings but made no such amendment. The court was of the opinion that the defendant was non-serious in prosecuting its case. The court once more asked the defence to proceed. Defence counsel informed the court that the defendant was not in court and asked once more for an adjournment. The court refused the application and again called on the defence to proceed. The defence could not. Plaintiff’s counsel at this point asked the court close the defence case. This, the presiding judge did. The judge then called for addresses. None of the counsel offered addresses. The court adjourned the case for judgment to 16-2-96. On 15-2-96 the defendant i.e. the appellant in this appeal, filed a motion on notice at the court below seeking the following orders:
“(a) Granting leave to the defendant/applicant to amend its statements of defence dated 1st July 1991.
(b) An order granting leave to the defendant/applicant to recall Chief S. I. Mayaki the P.W.1 in this case for the purpose of concluding the cross examination by the defendant/applicant’s counsel of P.W.1 in this case.
(c) An order deeming the attached amended statement of defence properly filed and served.”
On 16-2-96 the case came up in court. Defence counsel was absent. The court delivered judgment. No mention was made of the pending application. In its considered judgment the court below granted the plaintiff’s prayers. On 4th March, 1996 the defendant’s motion dated 14/2/96 and filed on 15/2/96 came up before the court below. Applicant’s counsel was not in court. Plaintiffs counsel urged the court to strike out the application it being overtaken by events as judgment had been delivered in the case. The judge struck out the motion.
This is an appeal against the judgment of the court below on 16/2/96. In its further amended Notice of appeal dated 26th November 2003 and filed on 27111/2003 the appellant set out the following grounds of appeal:
“Ground 1
The judgment is against the weight of evidence.
Ground 2
The lower court erred in law when it held that on the facts here, I hold that the plaintiff is entitled to the use of the telephone line No. 820890 or another line with International Direct Dialing System in Exchange.
Ground 3
The lower court erred in law when it held that “in my view the defendant knew that the plaintiff is a legal practitioner – see exhibit “C1” – Application for International Direct Dialing (DOD) facility and the essence and importance of telephone to such a customer.
By the act of wrongful tossing or its line, the defendant ought to know or anticipate the result consequences of its act to such professional man. In my view the damages which flowed from the breach of contract to the plaintiff and which ought to have been within the contemplation of the parties are… the sum of $33,000.00 (Thirty thousand American Dollars) or its equivalent in Naira.
Ground 4
The learned trial judge erred in law when he failed and or refused to (i) grant the Appellant’s applicants for adjournment to enable it properly defend the suit; and (b) hear and determine, prior to delivery of judgment on 16th February; 1996, Appellant’s pending motion dated 14th February 1996 and filed on 15th February 1996.
Ground 5
The lower court erred in law when it found and held that “in its statement of defence, the defendant averred that the lawful and bona fide subscriber to Telephone line No. 820890 is one Mr. E. A. Geselschaff of 73 D’alberto Road Palmgrove. The application for IDD facility by the said E.A. Gesclschaff was not produced or exhibited by the defence and the said person was not even called as a Witness, after all he who asserts must prove; and more averment is not evidence.”
The appellant sought that the judgment be set aside and the suit dismissed or in the alternative, an order for the retrial of the suit before another judge of Lagos State High Court.
From the grounds of appeal the appellant distilled three issues for determination to wit:
“(i) Did respondent prove the fact of his contractual relationship with appellant at all and/or sufficient to justify the holding by the court that respondent was the subscriber to the telephone line and was therefore “entitled to the use of telephone line No. 820890 or another telephone line with International Direct Dialing System in exchange?
(ii) As a corollary to issue I above, but notwithstanding the answer to the said issue I, did the respondent prove his case at all and/or sufficient to justify the award by the court to him of US $30,000.00 special damages (or any damages whatsoever and howsoever constituted)?
(iii) In the alternative to issues 1 and 2, was the trial court right in:
(a) Refusing appellant’s consecutive and respective applications for adjournment in order to file and amended statement of defence and to call witness for the defence; and
(b) Not hearing and determining the pending motion that was duly filed and before the court, prior to the delivery of judgment in the proceedings on February 16, 1998?”
The respondent in his brief of argument adopted the issues for determination as set out in the appellant’s brief of argument.
Because the consequences of the success of issues No.1 and 2 are vastly different from that of issue 3, I shall proceed to first consider issue 3.
If it succeeds, it shall be unnecessary to deal with issues 1 and 2. Issue 3 which is founded on ground 6 of the appeal reads:
“Was the trial court right in:
(a) Refusing applicant’s consecutive and respective applications for adjournment in order to file an amended statement of defence and to call witness for the defence; and
(b) Not hearing and determining the pending motion that was duly filed and before the court, prior to the delivery of judgment in the proceedings on February 16, 1998” The appellant used this format to argue the issue.
On adjournment, appellant’s counsel rightly set out the guiding principle governing the determination of application for adjournment as enunciated by Igu, JSC in Okeke vs Oruh (1999) 6 NWLR (Pt. 606) 175 at 188:
“The first point that must be made is that adjournments of cases fixed for hearing are not obtainable as a matter of course but may be granted or refused at the discretion of the court… The exercise of this discretion, however, is a judicial act against which an aggrieved party may lodge an appeal, but since it is a matter of discretion, an appellate court will be slow to interfere with it… It would however appeal that 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.”
I refer further to Unilag vs Aigoro (1985) 1 NWLR (Pt.1) 143; Alsthom vs Saraki (2005) 1 SC (pt.) 1; (2005) 3 NWLR (Pt.911) 208; Caekey Traders Ltd vs Gen. Motors Co. Ltd. (1992) 2 NWLR (Pt. 222) 132; George vs George (2001) 1 NWLR (Pt 694) 349. It is therefore the clear duty of the appellant to establish the wrongful exercise of discretion by the court below in refusing the two applications for adjournment made by the appellant.
To fully appreciate the case of the parties, it must be borne in mind that the case had been fixed for hearing on 14th February 1998. Hearing commenced. The plaintiff testified and was fully cross-examined. Plaintiff’s counsel declined to re-examine the witness and closed the plaintiffs case. The court asked the defence to proceed. Defence counsel stated that he knew the case was for trial but was not prepared to go on. Rather he would like an adjournment to file and amended defence. This application the court refused stressing that the appellant had ample time before that day to file an amended defence if it so desired. Appellant proceeded to further ask for an adjournment through counsel on the ground that the appellant’s witness was not in court. No reason was proffered to explain the absence of the appellant’s witnesses. And the language of Mr. Abodunde of counsel for the appellant was rather trenchant. He told the court below “I know the matter is for trial today, but the witness is not in court; and I want an adjournment”. That was all he placed before the court below.
The basic argument of appellant’s counsel was that the court was too hasty in refusing the applications for adjournment in that (a) it ought to have realized that the appellant would need to amend its pleadings consequent upon the amendment made by the respondent to its pleadings and (b) hearing having commenced that day, the court ought to have allowed the defence an adjournment to produce its witnesses.
As clearly stated by respondent in his brief of argument, there was a subsisting statement of defence before the court. It is for a party to determine whether or not to amend his pleadings. How he goes about his defence, as long as he acts within the provisions of the Rules of court is exclusively his. The court has no business in interfering. The length of his cross-examination of the other party’s witness is purely his tactic or strategy. The amendment to the respondent’s pleadings was not made on that day nor indeed did the appellant seek on that day even though it knew the case was set down for hearing, amend its pleading. The court in considering an application for an adjournment must bear in mind that justice must be done to both parties and that it is in the interest of both parties that the hearing should not be unduly delayed. Sec Mfa vs Inongha (2005) 7 NWLR (pt.932)1, Caekey Traders Ltd vs Gen Motors Co. Ltd. Supra; Salu vs Egeiban (1994) 6 NWLR (pt.348) 23, Yisa (Nig) Ltd vs Trade Bank PLC (1999) 1 NWLR (pt.588) 646.
The appellant did not tell the trial court why even on the date set down for hearing the case it had not applied to amend its pleadings. Applications for the exercise of the court’s discretion are not granted as a matter of course. The applicant must present before the court good and substantial reason or reasons why the discretion should be exercised in his favaur- N. A. Williams vs Hope Rising Voluntary Funds Society (1982) 1 All NLR (Pt.1) 1. I cannot see that the court below was wrong in refusing to grant the appellant’s application for an adjournment of a case set down for hearing in the circumstance of this case on the day it was set down for hearing on the ground of a desire to amend pleadings.
The appellant had further argued that the case ought to have been adjourned for hearing to enable its call its witnesses. But the appellant proffered no reasons whatsoever why, knowing that its case had been set down for hearing, it failed to produce its witnesses. A court has the right to dismiss a case set down for hearing if on that day the plaintiff refuses to lead evidence to establish his case and he has not given good and acceptable reasons for his inability to go on with the case and for an adjournment. See George v. George (2001) 1 NWLR (Pt. 694) 349, Ilona vs. Dei (1971) 1 ALL NLR 8, Rodriguez vs Public Trustees (1977) 4 SC 29.
Muntatis Mutandis a court reserves the right to proceed with the case before it to judgment where a defendant refuses or fails to produce his witnesses on the day the case is set down for hearing and has not given good and acceptable reasons for his inability to call his witness and for an adjournment. As Akintan JSC stated in Alsthom vs Saraki (2005) 3 NWLR (Pt.911) 208 at 232; (2005) 1 SC (Pt.1) 1.
“It is now a notorious fact that trials of cases in our courts are unduly delayed as a result of numerous requests for adjournment made by counsel and granted by the courts. To that end, the exercise of discretion to refuse an application for an adjournment of a case fixed for hearing by a trial court, should therefore not be tampered with by an appellate court as a matter of course.”
In the instant case the appellant failed to produce its witnesses to testify for it on the day fixed for hearing. It proffered no reasons for failing to produce its witnesses. A litigant who by misjudgment or deliberate decision does not avail himself of the opportunity of being heard cannot thereafter be heard to complain – See Offordile vs Egwuatu (2006) 1 NWLR (pt 961) 421; Folbod Investment Ltd. v. Alpha Merchant Bank Ltd. (1996) 10 NWLR (pt.478) 344, S & D Construction Co. vs Ayoku (2003) 5 NWLR (pt 813) 278.
I hold that in refusing the two applications for adjournment by the appellant, the court below properly exercised its discretion.
On whether the court below was right in not hearing and determining a motion pending before it before determining the suit, both parties agree that where there is a pending application before a court, the court ought not to determine the suit before it without first determining the pending application. As held by the Supreme Court in Mobil Producing (Nig.) Unltd vs Monokpo (2003) 18 NWLR (Pt. 852) 346, it is the duty of every court to entertain and determine all applications brought before it. It is immaterial that the application is down right stupid, unmeritorious or even an abuse of the court’s prowess. – See also Mokwe vs Williams (1997) 11 NWLR (Pt.528) 309, Ani v. Nna (1996) 4 NWLR (Pt. 440) 101 at 102, Okoro vs Okoro (1998) 3 NWLR (Pt.540) 65, Eriobuna vs Obiora (1999) 8 NWLR (Pt.616) 622. A refusal to hear a motion by a court or tribunal is a breach of the right of fair hearing enshrined in the constitution and an essence of the audi alteram patem rule of natural justice – See Mobil Producing (Nig) Unltd Supra. The only known exception is in the court’s exercise of its inherent jurisdiction to punish a person in contempt of a court order, where the person is expected to purge himself of the contempt before being heard – See Mobil Producing Unltd v. Mohokpo supra. Counsel for the respondent argues however that where an application is not placed before a judge, the judge cannot be blamed for not hearing it. Counsel is right. Kalgo J.S.C. in Ekpeto vs Wanogho (2004) 18 NWLR (Pt.905) 394 at 412; (2004) 11- 12 SC 201 at 210 did state as follows:
“The court, like any sensible human being, deals with only issues and matters that are before it. It does not speculate or assume things that have not appeared before it for consideration. When for example documents are filed in the registry of the court but have not been filed in the relevant court files and brought to the attention of the judge, such documents cannot by any stretch of imagination be deemed to be within the knowledge of the court or judge. The judge or court concerned is fully entitled to proceed without them since their existence was not known.”
I must however emphasis that once a process is filed in the registry of a court, the party that filed it has done all what is required of him. The process is therefore presumed to be before the court. It is the duty of the party claiming that the judge is unaware of the existence of this process to establish it. In Mobil Producing (Nig) Unltd v. Mohokpo Supra, it was in fact established that the contentious application was being filed while the Justices of the Court Appeal were busy writing their ruling which was delivered immediately thereafter. In the instant case judgment was fixed for 16-2-96. On 15-2-96 the application to recall P.W.1 and amend defence pleadings was filed. On 16-2-96, judgment was delivered. No reference was made to the subsisting application either by the trial judge or the respondent’s counsel. Appellant’s counsel was not in court. On 4th March 1996 the said application came before the court. Respondent’s counsel was in court. Appellant’s counsel was not in court. Respondent’s counsel applied that the motion had been over taken by events as judgment had been delivered and should he struck out. The judge obliged him. No mention was made as to when the judge became aware of the subsistence of the application. It must therefore be presumed that as at 16/2/96 when the judgment was delivered, the trial judge was aware of the subsistence of the application filed on 15/2/96. Issue No.3 is therefore resolved in favour of the applicant. Ground 4 of the grounds of appeal succeeds.
The judgment of the Lagos State High Court in this matter delivered on 16th February 1996 is hereby avoided and suit No. LD/500/91 is hereby remitted back to the High Court of Lagos State for trial denovo. Costs to the appellant is assessed at N10,000.00.
Other Citations: (2006)LCN/1939(CA)
