S & D Construction Company Limited V. Chief Bayo Ayoku & Anor (2011)
LAWGLOBAL HUB Lead Judgment Report
A. FABIYI, J.S.C.
This is an appeal against the judgment of the Court of Appeal, Lagos Division (“the court below” for short) delivered on 18th November, 2002.
On 8th September, 2000, Holloway, J. of the High court of Justice, Lagos state dismissed the appellants claim vide order 33 Rule 3 of the Rules of the court. When the matter was called for trial, the appellant was absent and not represented without any reason given to the court. The 2nd respondent was allowed to prove the counter-claim. Learned counsel for the appellant, on the same date, showed up in court and participated in the proceedings and secured an adjournment to cross-examine D.W.1.
The appellant’s counsel thereafter filed an application seeking to set aside the dismissal of the appellant’s claim. The learned trial Judge heard the application and dismissed it on 18th October, 2000. The appellant filed a Notice of Appeal dated 24th October, 2000 against the refusal of its application. Learned counsel for the appellant refused to proceed with the cross-examination of D.W.1 for which adjournment was granted at his instance. The trial court entered judgment on the counter-claim in favour of the 2nd respondent on 25th October, 2000. The appellant filed its 2nd Notice of Appeal dated 28th November, 2000 to challenge the judgment of the trial court.
The appeal was heard by the court below which dismissed same on 18th November, 2002. This is a final appeal by the appellant to this court.
In this court, briefs of argument were duly filed and exchanged. On 4th April, 2011 when the appeal was heard, learned counsel on each side of the divide adopted the brief of argument filed on behalf of his client.
On behalf of the appellant, three issues were formulated for a due determination of the appeal. They read as follows:-
“(i) Whether in the circumstance of this case, the Court of Appeal was right in dismissing the appellant’s appeal on the ground that the explanations proffered by the appellant in the application to set aside the trial court’s order dismissing the appellant’s suit for want of prosecution was unsatisfactory.
(ii) Whether the Court of Appeal was right in dismissing the appellants appeal on the ground that it was not the plaintiff’s (appellants) case at the trial court when it sought to set aside the order dismissing its suit that it was not aware of the hearing date.
(iii) Whether in the circumstances of this case, the Court of Appeal was right in dismissing the appellants appeal on the ground that the plaintiff (appellant) had the opportunity to present its case.”
On behalf of the respondents, three (3) issues were also couched for determination. They read as follows:-
“(i) Was it the case of the appellant at the trial court when it sought to set aside the dismissal of its suit that it was not aware of the dates fixed for hearing, and was the appellant in any event aware of those dates
(ii) Did the learned justices of the Court of Appeal give due consideration to the reasons proffered by the appellant for its absence in court on the date the matter was fixed for trial and rightly came (sic) to the conclusion that the court below was correct in the decision that they were unsatisfactory
(iii) Were the learned justices of the Court of Appeal right to have held that the appellant had the opportunity to present its case before the trial court”
Arguing issue 1, learned counsel for the appellant maintained that they are aware of the established principle of law that once there is a concurrent finding by the two courts below, unless it is shown that such findings are perverse or substantive that there was substantial error either in or procedural law, the court will not disturb such concurrent finding of fact. He cited the case of Ojo v. Anibire (2004) 5 SC (Pt.1) 13. Learned counsel submitted that there are special circumstances which warrant interference with concurrent findings of fact of the two courts below.
Learned counsel observed that the case of the appellant was not heard on the merits and yet it was dismissed for want of prosecution. He observed that courts of law are always reluctant in granting such orders. He cited the case of Inakoju v. Adeleke (2007) 2 MJSC 1 at 48. Learned counsel opined that the trial court had no competence to dismiss the appellant’s case as it did and the court below was in error not to have set aside the decision of the trial court.
Learned counsel observed that there was no hearing notice issued to state clearly that 7th and 8th September, 2000 were dates meant for trial and that he was indisposed on 7th September, 2000. He also stated that parties were in the process of settlement.
The court below, with respect to the appellant’s awareness of hearing dates found as follows at page 235 of the Record.
“It is manifest from the passages reproduced above from the plaintiffs affidavit in support of the application and the Reply to counter affidavit that the plaintiff knew that the case was fixed for hearing on the 7th and 8th September, 2000. In any case it was not the plaintiff’s case before the lower court when it sought to set aside the order dismissing its suit that it was not aware of the hearing date. The argument before this court premised on the fact that the plaintiff did not know of the hearing date was clearly an after thought and an attempt by the appellant’s counsel to use the platform provided by brief writing as an opportunity to give fresh evidence on appeal without first seeking the requisite leave of court.”
After the appellant’s suit was dismissed on 8-9-2000 an application to set aside the order was filed on 11-9-2000. In paragraphs 15 and 16 of the affidavit in support, it was deposed as follows:
“15. That Mr. Biodun Bakare told me and I verily believed that on 7th of September, 2000 he was actually in court at about 8.45 a.m. even though he was not feeling fine.
- That Mr. Biodun Bakare told me and I verily believed that he waited till 10.10a.m at which time the court had not sat for the day and had to rush to the hospital when his state of health was deteriorating.”
The defendants filed a counter-affidavit in reaction to the above and the plaintiff fired a Reply to the counter-affidavit. Paragraph 16 of same reads as follows:-
“16 – That the fresh trial dates of 7th September, 2000 and 8th September, 2000 were fixed after the strike action of 29th June, 2000.”
From the above, it is clear to me that the appellant was attempting to hide behind one finger when it said that it was not aware of the stated hearing dates. From admissions made under oath as set out above, the appellant was aware of same and no further proof is required’ See: Olagunyi v. Oyeniran (1996) 6 NWLR (Pt. 453) 127. There is no evidence stronger than the appellant’s admission. The court below was right in its conclusion that the appellant was aware of the stated hearing dates.
It was canvassed on behalf of the appellant that hearing notice was not issued in respect of the two dates fixed for trial. To my mind, the new stance equates to clinging to a straw. A party as herein, who already knows or is reasonably presumed to know of the date for which its case is scheduled for hearing, does not require hearing notice to be served on it. See: Jonason Triangles Ltd. v. CM & P Ltd. (2000) 15 NWLR (Pt. 759) 176.
I also wish to make it clear that there should be consistency in prosecuting a case at the trial court as well as on appeal. There should be no somersault; as herein. See: Ajide v. Kelani (1985) 3 NWLR (Pt.12) 248.
I hereby resolve issue 1 in favour of the respondents and against the appellant.
Issue 2, put briefly, is whether the justices of the court below gave due consideration to the reasons proffered by the appellant for its absence in court on the dates the matter was fixed for trial.
The appellants, in the main, advanced two reasons for its absence. Firstly, it contended that parties were discussing prospect for settlement. Secondly, the appellant claimed that its counsel was sick.
On prospect for settlement, the court below at pages 236-237 of the record held as follows:-
“I do not think that there is any justification for a plaintiff to stay away from court on a date fixed for hearing of his case which was six years old in court on the excuse that it hoped settlement might be reached. It is particularly instructive to bear in mind that the excuse was not that a settlement had been reached”
In my view, the above stance of the court below has no blemish. It sounds plausible, in the main. Even if there were discussions about settlement, that was no reason or justification for the plaintiff to stay away from the court on a date the matter was fixed for hearing. In any event, the appellant tried to play a game of hide and seek. It maintained that it’s counsel was in court on 7th September, 2000 not to report settlement; but to inform the court that the appellant was unaware of the trial for that date.
On the claim of ill-health by the appellant’s counsel, the learned trial Judge at page 100 of the record explained in detail why he disbelieved same. The suit was set down for two days. On 7-9-2000, counsel left before the court resumed sitting. No official from the appellant’s company was present in court. On 8-9-2000 both counsel and appellant’s representatives were not in court. No letter was written to court. The court stood down the matter for hearing in anticipation that counsel would come. After appellant’s claim was dismissed, counsel came in to say ‘I am just coming from my Doctor’. However, in the affidavit seeking to set aside the judgment, a clerk from counsel’s chambers deposed that he went to the appellant’s counsel’s house to inform him that the proceedings were going on in appellant’s absence and the counsel dressed up and came to the court.
The learned trial Judge saw the two positions as contradictory. The cock and bull story was not believed by the trial judge. The appellant and its counsel embarked upon a farce. They cannot complain in the circumstance created by them.
The above is still not the end of the matter. There was no sick report shown to the trial court. No hospital card or prescription note was exhibited. The nature of illness was never stated. The appellant who sought the trial court’s discretion did not place sufficient materials before the court to justify an exercise in its favour to its chagrin. See: Williams v. Hope Rising Voluntary Funds Society (1982) 13 MCC 36 cited by respondent’s counsel. The principles to be considered by a court in setting aside a judgment obtained in the absence of a party were stated by this court in Williams v. Hope Rising Voluntary Funds Society (supra) at page 42. These are:-
“1. The reasons for the applicant’s failure to appear at the trial in which judgment was given against him. There must be good reasons enough to excuse his absence.
- Whether there has 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 party 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 appellant’s case is manifestly unsupportable.
- Whether the applicant’s conduct throughout the proceedings i.e. from service of the writ upon him to the date of judgment has been such as to make his application worthy of sympathetic consideration.”
It was pronounced by Idigbe, JSC that ‘all of the above ought to be resolved in favour of the application of the applicant before the judgment should be set aside. It is not enough that some of them can be resolved.” See: also Sanusi v. Ayoola (1992) 9 NWLR (Pt.265) 275 and Nigerian National Supply Company v. Establishment Sima of Vaduz (1990) 21 NSCC (Pt. 3) 526 at 537 cited by respondent’s counsel.
In this matter, the appellant failed to show up in court on 8-9-2000 when its matter came up for hearing. He was not represented at the appropriate time and none of its officials was in court. It failed to satisfy the first and vital prerequisite.
The appellant complained that its suit was dismissed without a full blown trial of its claim, Such is not a big deal as the learned trial Judge acted in accordance with the provision of Order 33 Rule 3 of the High Court of Lagos State (Civil Procedure) Rules, 1994 which provides that –
“If, when a trial is called on, the defendant appears and the plaintiff does not appear, the defendant, if he has no counter claim shall be entitled to judgment dismissing the action, but if he has a counter claim, then he may prove such counter claim so far as the burden of proof lies upon him.”
It was not correct to state that the trial competence to dismiss the appellant’s case learned trial court acted within its Rules.
The court below agreed with the trial Judge that the explanation given for the plaintiff’s absence was unsatisfactory. I also agree with the court below. The appellant and its counsel put up a poor and despicable show and got enmeshed in the web created by them. I accordingly resolve the issue in favour of the respondents and against the appellant.
The 3rd issue is whether in the circumstances of this case, the court below was right in dismissing the appellant’s appeal on the ground that the plaintiff had the opportunity to present its case.
In respect of this issue, learned counsel for the appellant contended that the appellant was not afforded a fair hearing. He noted that the trial court refused to entertain the application for stay of proceedings pending determination of an interlocutory appeal. There is no real point in this complaint as it was designed to further stall the hearing of the matter. In any event, the said interlocutory appeal was taken along with the main appeal in the court below and so, nothing was lost in the game set up by the appellant.
The court below at page 243 of the record held as follows:-
“The second issue queries whether in all the circumstances of this case the plaintiff could be said to have had a fair trial. The issue appears to me an abstract one. In the course of hearing, the plaintiff had the opportunity to present its case. But if it had not utilized the opportunity afforded it to ventilate its case that cannot be blamed on the respondent or the lower court.”
The appellant complained that ‘the procedure adopted by the trial court after discharging the respondent’s witness and horridly adjourning the case to the following day for judgment is a short-cut which breached fair hearing. Learned counsel for the appellant applied for, and was granted adjournment to cross-examine D.W.1. When D.W.1 showed up, learned counsel refused to cross-examine him and asked for adjournment. This prompted the judge to discharge the witness. I cannot see any firm ground for complaint by the appellant as it was its counsel who refused to cross-examine the witness.
The learned counsel for the appellant complained that he was not given room to address the court. The notes at page 125 of the Record do not support the assertion. It goes as follows:-
“Adesina: I have more or less completed my address.
Court: In that case Mr. Bakare who has not called any witness should proceed with his own address.
Bakare: I shall not proceed with the address for the same reason.”
In my considered view the above allegation of denial of fair hearing, like those earlier considered in this judgment, were self induced and/or imposed by the appellant and more especially its counsel whose conduct could hardly be comprehended by me from all that transpired as extant in the transcript record of appeal. Instead of doing his real job, counsel refused to act positively in most material and vital respects. That ought not to be.
A party, who had the opportunity of being heard but failed to utilize same, as herein, cannot complain of breach of fair hearing. See: Omo v. Judicial Service Commission, Delta State (2000) 12 NWLR (pt. 652) 444; Okoye v. Nigeria Construction & Furniture Co. Ltd. (1991) 6 NWLR (Pt. 199) 501 at 541 both cited by learned counsel for the respondents. I resolve this issue in favour of the respondents.
The two courts below made concurrent findings of fact in respect of all the issues canvassed in this appeal. It is only where an appellant is able to establish a clear error of law or fact that would warrant interference by this court. No compelling reason has been shown to warrant interference. I shall not interfere. See: Kale v. Coker (1982) 12 SC 252; Echi & Ors. v. Nnamani & Ors (2000) 5 SC 62 at 70; Fajemirokun v, C. B. Nig Ltd. (2009) 5 NWLR (pt.1135) 588 at page 599.
I come to the unalloyed conclusion that the appeal lacks merit. It is hereby dismissed. I affirm the judgment of the court below. I award N50, 000, 00 costs in favour of the respondents against the appellant’
SC.52/2003
