Victor Ebong & Anor V. Reicon Company Limited (1998)
LawGlobal-Hub Lead Judgment Report
TOBI, J.C.A.
On 13/7/93, the respondent as plaintiff, filed a writ of summons in the Undefended List claiming from the appellants as defendants, jointly and severally the sum of N260, 000.00. On 26/7/93, the appellants filed a Notice of Intention to Defend the Action. The Notice was duly served on the respondent. The case was adjourned to 9/11/93.
The matter came up on 9/11/93. Counsel for the respondent asked for a date for argument. The matter was accordingly adjourned to 2/2/94. On 2/2/94, the matter was again adjourned to 14/3/94, at the instance of the appellants. On 14/3/94, the appellants and their counsel were absent and the matter was again adjourned to 11/4/94. On 11/4/94, both counsel were in court. Counsel for the respondent asked for another adjournment. The matter was again adjourned to 7/6/94.
Both counsel were present in court on 7/6/94. On that day, counsel for the respondent moved the motion. He urged the court to enter judgment in favour of his client. He addressed the court to the effect that the affidavit of the appellants did not disclose any defence to the action. At the close of the address, counsel for the appellants asked for a date to reply. The matter was adjourned to 12/7/94 for reply. Came 12/7/94 and counsel for the appellants, by a letter, asked for another adjournment. Counsel for the respondent informed the court that counsel for the appellants who was said to be indisposed had actually been seen in court. The matter was however adjourned to 31/8/94 for reply. The Judge ordered that if there was no reply on that date, he would adjourn for judgment.
On 31/8/94, both counsel were present in court. Counsel for the appellants still asked for another adjournment claiming that he was not ready to proceed after counsel for the respondent had made a lot of insinuations from the Bar that counsel for the appellants were trying to use the court as an instrument of fraud. The learned trial Judge refused the application and adjourned the matter for judgment which he delivered on 21/11/94.
Aggrieved, the appellants filed an appeal. Briefs were filed and exchanged. The appellants filed a reply brief. The appellants formulated five issues for determination:
“(i) Whether the learned trial Judge did not err in law when he refused the appellants counsel one more adjournment to enable counsel for the appellants proffer a reply to the address of the respondent’s counsel.
(ii) Whether the learned trial Judge did not err in law when he failed to consider the affidavit disclosing a defence filed by the appellants irrespective of whether the defendants/appellants counsel addressed Court or not.
(iii) Whether the learned trial Judge did not err in law when he refused to consider the affidavit disclosing a defence and by so doing occasioned a miscarriage of justice.
(iv) Whether the learned trial Judge’s judgment as it were, did not amount to justice on technicalities.
(v) Whether the learned trial Judge did not err in law and on the facts when he proceeded to act on the unsworn testimony of the respondents counsel and proceeded to use same in entering or arriving at his judgment in the matter.”
The respondent formulated three issues for determination:
“(1) Whether the refusal of learned trial Judge to grant the appellants an adjournment before entering Judgment under the undefended list procedure of the Cross River State High Court Rules occasioned a Miscarriage of Justice?
(2) Whether the appellant’s counter-affidavit disclosed a defence on the merit?
(3) Whether the statement made by Steven Asuquo Esq. from the Bar could be regarded as an unsworn testimony.”
On Issue No. 1, learned Counsel for the appellants, Chief Richard Efa, submitted that the learned trial Judge in refusing the appellants counsel another adjournment to deliver address in reply did not act in the circumstances judicially and judiciously. He relied on Salu v. Egeibon (1994) 6 NWLR (Pt. 348) 23.
On Issues Nos.2 and 3, learned Counsel submitted that the learned trial Judge was clearly in error when he failed to consider the affidavit of the appellants disclosing a defence. Counsel claimed that the learned trial Judge did not make any reference to the affidavit throughout the judgment, an affidavit in which the appellants denied liability. He relied on Ladoke V. Olobayo (1992) 8 NWLR (Pt. 261) 605 and Jipreze V. Okonkwo (1987) 3 NWLR (Pt. 62) 737. Counsel submitted that by not considering the affidavit disclosing a defence, the appellants suffered a miscarriage of justice.
On Issue No.4, learned counsel submitted that the judgment amounted to doing “justice on technicalities.” It was also the submission of counsel that failure to consider the affidavit denied the appellants of their fundamental right to a fair hearing. He relied on Baba v. National Civil Aviation Training Centre (1991) 5 NWLR (Pt. 192) 388.
On Issue No.5, learned trial Judge was wrong when he proceeded to act on the unsworn testimony of the respondent’s counsel and entered judgment in the matter. He urged the court to allow the appeal.
On Issue No. 1, learned Counsel for the respondent, Mr. Nta A. Nta submitted that the learned trial Judge was right in refusing the adjournment because counsel for the appellants was using same as delaying tactics. Application for adjournment is discretionary. A trial Judge has the judicial discretion either to grant or refuse an application carefully, that is judicially and judiciously on its merit, learned counsel submitted. He relied on Eronini v. Iheuko (1989) 2 NWLR (Pt. 101) 46; N.S.C.I. v. M.G.I. Co. Ltd (1992) 2 NWLR (Pt. 221) 71.
It was also the submission of learned counsel that counsel for the appellants by his conduct and utterances must be taken to have waived his right of address. He relied on Union Bank (Nig) Ltd V. Ajagu (1990) 1 NWLR (Pt. 126)328, Obodo V. Olomu (1987) 3 NWLR (Pt. 59) 111. He contended that the case or Salu V. Egeibon, supra, cited by counsel for the appellants was not applicable.
On Issues Nos. 2 and 3, learned counsel submitted that the learned trial Judge considered the defendants/appellants counter affidavit and was not bound to accept it if no defence was disclosed on the merit. He relied on George v. State (1993) 6 NWLR (Pt. 297) 41; UTC Nig. Ltd v. Pamotei (1989) 2 NWLR (Pt. 103) 244; Barau V. Cubitts (Nig.) Ltd. (1990) 5 NWLR (Pt. 152) 630; Macaulay V. NAL Merchant Bank Ltd (1990) 4 NWLR (Pt. 144) 283; John Holt and Co. (Liverpool) Ltd v. Henry Fajemirokun (1961) All NLR 513; Jipreze v. Okonkwo (1987) 3 NWLR (Pt. 62) 737.
Learned counsel for the respondent adopted a curious procedure at pages 10, 11 and 12 of the brief. After completion of argument of his three issues, counsel continued with Issue No.4 and Issue No.5 formulated in the appellants brief by arguing same. He did not indicate in the brief that he was adopting the two issues for argument. He simply identified the two issues and proffered contrary arguments.
Such procedure is not known to me. While I concede that a respondent is free to adopt the issues for determination as formulated by the appellant, the type of “mixed grill” or “hybrid approach” is not proper. It creates so much confusion as I am confused. I realise from the argument at pages 10, 11 and 12 that counsel has taken the contrary position in respect of the two issues formulated in the appellants brief. That was expected. I did not expect respondent’s counsel to take a complimentary position with counsel for the appellants.
In his reply brief, counsel mostly repeated existing arguments in the appellants brief. He submitted that the learned trial Judge was wrong to have adopted the submission of the respondent’s counsel and rule on the matter. He also submitted that it is not a general rule that statement of counsel from the Bar has the force of an oath, and that each particular case should be looked at within its peculiar circumstance. While arguing that the case of Salu v. Egeibon, supra, is most apposite, that of George v, State, supra does not apply to the matter under consideration. He urged the court to dismiss the appeal. In Nigerian Bank for Commerce and Industry v. Marine and General Insurance Company Limited (supra), a case cited by learned counsel for the respondent, I said at page 85:
“A trial Judge, being the master of his court, has a wide discretionary power to exercise in matters of adjournment. He can grant an adjournment. He can also refuse. But the issue does not sound as mechanical as that. Whichever position he takes in the matter of adjournment should be backed up by efficient exercise of his discretionary power. Where he exercised his discretionary power judicially and judiciously, an appellate court would not interfere. Otherwise, it will.”
See also Alade v. Alemuloke (1988) 1 NWLR (Pt. 69) 207; Ntukidem V. Oko (1986) 5 NWLR (Pt. 45) 909; Acka v. Akure (1987) 1 NWLR (Pt. 47) 74; Okeke v. Oruh (1993) 2 NWLR (Pt. 277) 622; E.D. Tsokwa and Sons Co. Ltd V. C.F.A.O. (1993) 5 NWLR (Pt. 291) 120.
In an application for adjournment, the court must consider the overall interest of the parties and its own interest too. It is this consideration of tripartite interest that promotes justice in the enforcement of the judicial process. Delay in the administration of justice is one very loud vice which attracts the criticism of the public. Apart from its characteristic inbuilt reverses in the enforcement of the administration of justice, the societal criticism also calls for a reaction by the courts by way of discouraging incessant adjournment of cases. So much valuable litigation time is wasted. So much manpower and money too. Therefore where an application for adjournment is an abuse of the judicial process, and therefore not deserved, a Judge, trial or appellate, must refuse it. It is in the interest of justice to do so, and a Judge whose duty is to promote justice in any litigation, should do so.
What happened in the adjournment scenario, if one may use the language unguardedly? I can rehearse it in paraphrase for purposes of clarity and understanding. It is clear from the record that the matter was adjourned four times at the instance of the appellants. The first one was to 14/3/94, the second to 11/4/94, the third to 12/7/94 and the fourth to 31/8/94, when the Judge refused another application for adjournment.
Learned counsel for the appellants submitted that the appellants asked for adjournment only twice. With respect that is not correct. It is clear from pages 3 to 5 of his own brief that the matter was adjourned four times at the instance of the appellants; thrice on their application and once on the ground that they and their counsel were absent in court.
And what is more, except once, no substantial reason was given for the adjournment of the case. Let me reproduce the proceedings of the court for 31/8/94, the Fourth adjournment:
“Mr. Asuquo says that Chief R. Effa was in court on the day 12/7/94 and gave him the letter from Joe Effa. He subsequently saw Joe Effa who said that he had sent in a letter. He was of the view that they were trying to use the court as an instrument of fraud.
Mr. Joe Effa says ‘be that as it may, we are not ready to go on.’
Mr. Asuquo relies on Order 27(2). The next adjournment should he for judgment with costs. The court cannot go on as it is obvious that the defendants/respondents want to dribble the plaintiff.
COURT: I would agree that the attitude of counsel for the defence in the circumstance smarks of fraud and dribbling tactics for which, there is a duty on the court to discourage. The court cannot wait indefinitely for a reply which in the circumstance of this case the impression is given that there is none even though Mr. Joe Effa says there is. That being so the case is hereby adjourned to 21/11/94 for judgment.”
I cannot fault the learned trial Judge, who was most patient in the circumstances. He took the correct decision to deliver judgment, which he did, as indicated, on 21/11/94. The issue on adjournment therefore fails.
The next issue is whether the learned trial Judge considered the affidavit of the appellants in his judgment, and if not, why not? I have carefully gone through the judgment of the learned trial Judge and I cannot see where he examined the contents of the “Affidavit Disclosing a Defence”, an affidavit of 21 paragraphs.
The affidavit sworn by Amayime Etim Amaku deposes in part:
‘”5. That the defendants deny liability to the plaintiff in the sum of N260.000.00 or to any sum whatsoever.
- The defendants in this action seriously intend to defend this action and hereby give notice to that effect.
- That the defendants have paid back all monies it collected from the plaintiff.
- That rather it is the plaintiff that is indebted to the defendants in the sum of N91, 490.00 ….
- That if this honourable court allows the defendants to defend this action, they would lead evidence to show that they are not indebted to the plaintiff rather it is the plaintiff who is indebted to the defendants for which the defendants intend to counter claim for if allowed to defend this action.”
There is nowhere in the judgment where the above paragraphs or arty other paragraphs were examined. Let me be more specific. In the three and half pages judgment, the learned trial Judge used about three pages (if not more) in dealing with the submissions of counsel. Thereafter, the learned trial Judge said, and I quote two paragraphs of the judgment verbatim ad literatim:
“In the circumstances of this case, it is as clear as crystal that counsel for the defendants are employing dribbling tactics coupled with what may be described as legal chicanery to avoid making a reply in this case. Buying time by filing papers in court and then leaving the papers dormant in the court case file is a well-known gimmick or prank and constant resort to it, for whatever reason, is not only unfortunate but reprehensible: and, as indicated earlier in these proceedings, the court is under a duty to discourage the practice.
Once again, I find myself in complete agreement with learned Counsel for the plaintiff; that the defendants have no answer to the submissions of the plaintiff and the common adage that justice delayed is justice denied holds sway in the instant case. Accordingly judgment is hereby entered in favour of the plaintiff in the sum of N260, 000 with cost which is hereby assessed at N500.00 in line with Order 27(2) of the High Court (Civil Procedure) Rules. 1987.”
As it is, the learned trial Judge held that “the defendants have no answer to the submissions of the plaintiff.” In my view, before arriving at that conclusion, the learned trial Judge was under a legal duty to examine the 21-paragraph affidavit deposed to by Amayime Etim Amaku. That he failed to do so is most unfortunate.
It is good law that a trial Judge must consider a defence put forward before him however stupid and unmeritorious. He has no right to ignore it and hold that there is no defence. A trial Judge who holds that there is no valid defence without considering the defence put forward is jumping the gun. A Judge should not do such a thing because he could be ‘hurt’ in the process.
Section 33 of the 1979 Constitution and the natural justice principle of audi alteram partem demand that parties in litigation must be given a hearing. This means that no party should he condemned in a litigation without given a hearing. That, in essence, is what the learned trial Judge did.
In the circumstances, this appeal succeeds and it is allowed. It is ordered that the case be sent back to the Chief Judge of the court below that is the High Court of Cross River State, for a trial de novo either by himself or by another Judge of competent jurisdiction. I award N3,000.00 costs in favour of the appellants.
Other Citations: (1998)LCN/0430(CA)
