Tunde Oshunrinde V. Olufemi Akande (1996)

LAWGLOBAL HUB Lead Judgment Report

MOHAMMED, J.S.C. 

This is an appeal against the judgment of the Court of Appeal, Lagos Division, upholding a ruling of Ayorinde J (as he then was) of Lagos State High Court.

Before I go further into the substance of this appeal I find it relevant to explain, in a short narrative, the cause of the dispute which brought about the subject matter of this appeal. The respondent who was plaintiff before the High Court of Lagos State sued the appellant, as defendant and claimed N210,218,04 as damages for breach of contract. The case which was originally filed on 22/7/80 suffered several adjournments, and on 11/11/83, when both counsel for the parties were present in court the case was fixed for hearing on 18/4/84. On the adjourned date neither the defendant nor his counsel appeared and the Court directed the counsel for the plaintiff to call evidence in proof of the plaintiff’s claim. At the conclusion of the hearing the court adjourned and delivered its judgment on 4/7/84.

Soon after Ayorinde J (as he then was) delivered his judgment, the appellant filed a motion and prayed for the following orders:

“(1) Granting extension of time within which to apply for an Order setting aside the Judgment/Order obtained herein on the 4th July, 1984;

(2) Setting aside the Judgment/Order obtained by the plaintiff in this matter on Friday, the 4th of July, 1984 in default of appearance of the defendant and his counsel at the trial;

(3) Setting aside the Writ of Execution/Attachment obtained by the plaintiff in this case pending the determination of this application; and/or

(4) Staying the execution (by the plaintiff, his agents and privies) of the said JUDGMENT/ORDER pending the determination of the application.”

The application was supported by the affidavit of the appellant himself. There was also a counter-affidavit from the respondent and a reply to the counter-affidavit from a counsel in the chambers of the plaintiff’s solicitor. It is quite clear from the averments in the affidavits that the parties had given conflicting evidence and in order to resolve the conflict, the learned trial Judge ordered parties to adduce oral evidence.

During the proceedings the learned trial Judge admitted in evidence a file jacket, belonging to the appellant’s solicitor, in which an entry was made showing that the hearing of the substantive claim to damages for breach of contract had been fixed for hearing on 18/4/84. In his ruling, Ayorinde J (as he then was) disbelieved the argument of counsel for the appellant that they were not aware of the date on which the substantive claim was fixed for hearing and in consequence therefore the learned Judge refused all the prayers applied for in the motion.

Dissatisfied with that decision the appellant went before the Court of Appeal. He was not successful, because the Court of Appeal believed that the learned trial Judge exercised his discretion both judicially and judiciously. The appellant has finally come before us armed with twelve grounds of appeal. It is plain that most of the grounds are repetitive of the issues upon which the appellant based his arguments for the prosecution of this appeal. Learned counsel for the appellant, Mr. Olutola, formulated five issues from the twelve grounds. The issues are as follows:-

“(1) Whether the Court of Appeal was wrong in refusing to review/interfere with the exercise of the learned trial Judges discretion taking into consideration all the circumstances of the case.

(2) Whether the Court of Appeal was right in the circumstances to hold that the appellant had been notified of the default judgment before its execution.

(3) Whether the Court of Appeal was right in holding that the appellant and his counsel constantly delayed the hearing of the case to cause mischief when there was no evidence to justify reaching such a conclusion.