Owena Bank (Nigeria) Plc V. Alhaji Yusuf Muhammed (1997)
LawGlobal-Hub Lead Judgment Report
OGEBE, J.C.A.
The respondent sued the appellant before the Kano High Court claiming in para. 15 of the statement of claim as follows:-
“i. Declaration that the suspension of the plaintiff’s salary and remuneration by the defendant is unreasonable, unwarranted, wrongful, unlawful and cannot be sustained in law.
ii. An order directing payment of the plaintiff’s salary and entitlement from the 17th of November 1989 to date.
iii. A declaration that the plaintiff be at liberty to relinquish his appointment with effect from the date of the orders above if granted and to seek employment elsewhere.”
The appellant filed a statement of defence denying the claim. The respondent gave evidence on his own behalf and on the 20th of September 1993, the learned counsel for him, Mr. Ojo Williams closed his case and the appellant’s counsel before that court, Mr. Abubakar asked for a date to open their defence. The learned trial Judge, Omar J. then adjourned the case to the 6th of October 1993 for defence.
On the 6th of October 1993 only the plaintiff was in court. His counsel was absent. The appellant and his counsel were also absent. The trial court minuted in the record of appeal at page 33 as follows:-
“The case has been fixed for defence today but the defendant is absent and unrepresented. I hereby hold that the defendant has got no defence to offer in this case. Case is adjourned to 28.10.93 for judgment.”
The trial court delivered judgment dated the 26th day of October 1993 on the 28th day of October 1993 in favour of the respondent and granted all the reliefs sought. It is against that judgment that the appellant appealed to this court on ten grounds of appeal. In accordance with the rules of court the appellant filed a brief of argument and identified 4 issues for determination as follows:
i. Whether the learned trial Judge exercised his discretion judicially and judiciously in adjourning the case for judgment following the absence of the appellant and his counsel and whether the failure to notify the appellant of the fact that the suit was fixed for judgment is not a violation of the rules of fair hearing.
ii. Whether the respondent’s appointment was duly determined by his letter of resignation or whether the failure of the appellant to accept the resignation can be interpreted to mean that respondent was still in the service of the appellant.
iii. Whether the respondent was still in the service of the appellant even after the delivery of Exhibits 8 and 8A to his Solicitors and Exh. 9 to him.
iv. Whether the respondent is entitled to the various orders made in his favour and the claims granted to him.”
The respondent also filed a brief of argument and identified 4 issues for determination as follows:-
“1. Can Exhibits 8, 8A and 9 which are mere photocopies of documents, have any evidential value in law when:-
a. the whereabouts of their originals were not explained to the trial court.
b. the said documents, even if originals, (which is not admitted) were made by a party interested in the proceedings when those proceedings were pending or at least anticipated (Grounds 2, 4 appellant’s ground of appeal and Ground 1 (a) and (b) in the respondent’s Notice).
- What is the effect of Exhibit 3 on Exhibits 1 and 2 which constitute the master-servant relationship between the parties to this appeal? (Grounds 3, 4 and 9 of the appellant’s grounds of appeal and ground 2 in the respondent’s Notice).
- Whether there is sufficient evidence before the court to support the granting of the reliefs claimed by the plaintiff/respondent having regard to:-
a. paragraph 15 of the amended statement of claim particularly the addendum thereof appearing on page 16 of the record of appeal on which no issue was joined by the defendant/appellant.
b. evidence of plaintiff/respondent on his entitlements appearing on page 32 of the record which was not challenged even under cross-examination. (Grounds 5, 6, 7 and 8 of the grounds of appeal).
- (a) was the trial court in error in closing the appellant’s case in its absence and in holding that the appellant had no defence when:-
i. there was no application before the court for adjournment for further hearing.
ii. the appellant’s statement of defence, even if taken as established, cannot constitute a challenge to the main claim and oral evidence of the respondent?
(b) If the answer to (a) is in the positive, did the error, if any, occasion a miscarriage of justice? (Ground 10 of the grounds of appeal).”
In addition to his brief, the respondent also filed respondent’s Notice under Order 3 Rule 14(2) of the Court of Appeal Rules 1981 as amended contending that the decision of the court below be affirmed on grounds other than those relied upon by that court.
The most critical issue in this appeal is the 1st issue formulated by the appellant which is equivalent to the 4th issue formulated by the respondent. If that issue is decided in favour of the appellant, then the case between the parties will have to be heard de novo and the remaining issues in the appeal which have to do with the merits of the case will have to abide the result of the retrial. I shall therefore consider the 1st issue prior to the remaining issues.
Under this issue the learned Senior Advocate for the appellant submitted that the appellant was not given the opportunity of presenting its case and denied fair hearing when the trial Judge on the 6th of October 1993 adjourned the case for judgment in the absence of the appellant and its counsel. He said on that day only the plaintiff was present without his counsel in court. The trial Judge without asking the plaintiff/respondent to make any comment took over the case and adjourned the matter for judgment after holding that the appellant had no defence to offer in the case. The learned Senior Advocate submitted that this exercise of discretion by the trial court was arbitrary and was not a proper exercise of judicial discretion. He said that on other occasions when the respondent and the counsel were absent, the case was adjourned in their favour but on the only occasion when the appellant and his counsel were absent the appellant was shut out from presenting its defence. The trial court did not even order that a fresh hearing notice should be issued to the appellant to notify it of the date of the judgment. He relied heavily on the cases of Ceekay Traders Ltd. v. General Motors Co. Ltd. & 2 Ors (1992) 2 NWLR (Pt.222) P. 132 at p. 156; and Usikaro & Ors. v. Itsekiri Communal Land Trustees & Ors. (1991) 2 NWLR (Pt.172) 150 at 176 to 177.
In reply the learned counsel for the respondent submitted that the grant of an adjournment in a trial is within the absolute discretion of a trial court. He said that in this case the matter was fixed for defence with the knowledge and at the request of the appellant, but the appellant chose to absent itself without any reason and made no application for an adjournment. The trial Judge was therefore right in adjourning the matter for judgment. He said that to grant an adjournment in the circumstance of this case would have amounted to granting the party what that party had not asked for. It would also have amounted to wrong-doing to the other party. He relied on the ease of Odusole v. Odusote (1971) All NLR 219 at 223. He said that the closure of the appellant’s ease by the trial court was in compliance with Order 37 rules 1(2) and 2 of the Kano State High Court (Civil Procedure) Rules 1988.
It is a well-known principle of law that the question of an adjournment of a matter is entirely within the discretion of a trial court. A trial court must always be the master of the proceedings before it. The question of whether or not a matter should be adjourned or continued must always be decided judicially and judiciously, the exercise must not be capricious or made in such a way that injustice would result to either party. See the case of Ceekay Traders Ltd. v. General Motors Co. Ltd. & 2 Ors. (1992) 2 NWLR (pt222) P. 132 at P. 156. In the case of Usikaro and Ors. v. Itsekiri Communal Land Trustees & Ors. (1991) 2 NWLR (Pt. 172) 150 at page 180 Olatawura J.S.C. stated the principles to be followed in such cases thus:-
“It is acknowledged that it is sometimes frustrating when a Judge is fully prepared to hear a case only to be faced with an application for adjournment. If he had struck out the case as against the dismissal which permanently deprived them of having their case heard on merit, I am sure the appellants would have had the case relisted. The power of the court to dismiss cases without affording the parties the opportunities to hear their cases on merit must be used if at all, sparingly … Let no man walk out of our courts disappointed in the administration of justice. He will prefer to lose the case on the merits than to allow his opponent win by default. There is no provision for a walk over in our adversary system. It is not a game of football or a tennis competition. It must be shown and seen that any party has a fair trial.”
Applying these principles to this case, let us examine the peculiar facts of this case. On the 6th of October 1993 only the respondent was in court, his counsel was not present. The appellant was absent and his counsel was also absent. The case had earlier been adjourned on the 20th of September 1993 for defence. Faced with that situation, what option was left to the trial court? If the defendant and his counsel were present to begin their defence, would the respondent have handled the matter without his counsel when he was being represented all along by counsel? Was the trial court justified in holding that the defendant had no defence to offer in the case when in fact it filed a copious statement of defence of 18 paragraphs? Does the mere absence of a defendant from the court on the day fixed for defence mean that the defendant had no defence to offer?
It would appear to me that neither the respondent nor the appellant was ready to go on with the case on the 6th of October 1993. As I said earlier the respondent’s counsel was not in court, and in all probability he would not have gone on to face the defence alone without his counsel. The learned trial Judge did not even ask for his comments before adjourning the matter for judgment. It did not occur to the court to ask the respondent to address the court on the case before judgment. Since the adjournment for judgment has the effect of shutting out the appellant from putting its defence the learned trial Judge ought to have put the defence on notice so that the appellant would be in full picture of what transpired in its absence.
In normal circumstances a person who has been appearing in a matter before a court of law and absents himself on a particular date set for hearing has a duty to check the progress of the matter in his absence without any formal notification of an adjourned date. However, in the present situation where the adjournment for judgment would permanently shut the appellant from presenting its defence, the trial court had a duty to notify the appellant of the adjourned date.
There is no evidence whatsoever to support the holding of the trial Judge that the appellant had no defence to offer in the case. That holding was purely speculative and a trial court must not speculate.
Order 37 rules 1(2), 2 and 5 of the Kano State High Court (Civil Procedure) Rules 1980 read:-
“1.(2) If, when the trial of an action is called on, neither party appears, the action may be struck out of the list, without prejudice, however, to the restoration thereof, on the discretion of a Judge.
- If, when a trial is called on 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.
- The Judge may, if he thinks it expedient for the interest of Justice, postpone or adjourn a trial for such time, and upon such terms, if any, as he may think fit.”
Under these rules if a plaintiff fails to appear as well as the defendant, the action may be struck out without prejudice to its restoration on the discretion of the Judge. If the plaintiff appears and the defendant does not appear, the plaintiff may prove his claim. Under rule 5 the Judge can adjourn a trial without any formal application by either party in the interest of justice. In this case, it was the first occasion when the appellant failed to appear to open its defence that the matter was adjourned for judgment by the court suo motu. What was the hurry all about? The important consideration in these rules is that in every given situation the trial Judge has discretion depending on the circumstances of the case.
From what I have been saying in this judgment, it is clear to me that the trial court’s exercise of its discretion to adjourn the matter for judgment and shut out the appellant from presenting its defence without even the simple courtesy of notifying the appellant of the drastic turn of events was capricious and arbitrary and was a denial of fair hearing to the appellant. A trial court should always remain an umpire and should not descend into the arena to the disadvantage of either party. The parties should be allowed to fight their own battle. In this particular case, the trial Judge went far beyond his role as an impartial arbiter and his judgment cannot be allowed to stand.
Having resolved this issue in favour of the appellant, I find it unnecessary to go into the other issues formulated by both sides and the respondent’s Notice to affirm the decision on other grounds than the ones stated by the trial court. As these other issues have to do with the merit of the case, it will not be proper or safe for this court to go into them now so as not to prejudice the outcome of a retrial of the matter before the lower court. Accordingly this appeal is allowed and the judgment of the trial court, including the order on costs is hereby set aside. The case is remitted to the Chief Judge of Kano State for retrial before another Judge. The appellant is entitled to costs of N1, 500.00 against the respondent.
Other Citations: (1997)LCN/0300(CA)
