EASTERN BULKCEM COMPANY LIMITED & ORS. v. MR. PROMISE AMADI (2010)

EASTERN BULKCEM COMPANY LIMITED & ORS. v. MR. PROMISE AMADI

(2010)LCN/3620(CA)

In The Court of Appeal of Nigeria

On Monday, the 15th day of March, 2010

CA/PH/169/2007

RATIO

COURT: DUTY OF THE JUDGES TO FIRST CONSIDER THE APPLICATION FOR ADJOURNMENT

The learned Judges have a duty in the interest of justice to first consider the application for adjournment and rule on it giving reason for the refusal. Thereafter the court would call on the party seeking adjournment to proceed with the case and if he fails or refuses to do so it can then dismiss the action. See CEEKAY TRADERS LTD v. GENERAL MOTORS CO. LTD (1992) 2 NWLR (pt.222) 132, 155, and paragraph 41.19 of Aguda: PRACTICE AND PROCEDURE OF THE SUPREME COURT, COURT OF APPEAL AND HIGH COURTS OF NIGERIA IN NIGERIA, 1st Edition at page 456 PER EJEMBI EKO, J.C.A

PROCEDURE: STEPS TO BE FOLLOWED BY A JUDGE REFUSING ADJOURNMENT

The summary of all these is the 7 – Point Agenda or steps that the trial Judge refusing adjournment must follow before proceeding to judgment. He must follow them step by step. That is-

The first is to dismiss the application for adjournment with reasons.
He then asks the defendants, or the party asking for adjournment to proceed.
If the party asking for adjournment fails to continue then he will foreclose the witness testifying.
Thereafter, he asks the party whose application for adjournment has been refused to proceed with other witnesses, if any.
If he can not continue with other witnesses the trial Judge then will close the party’s case.
Thereafter, he invites the parties or their counsel to sum up their respective cases by way of final address.
After (6) the trial Judge then proceeds to his judgment which may be either across the bench or reserved.

The failure of His Lordship, the learned trial Judge, to follow these mandatory steps meticulously has the effect of depriving the parties, particularly the Appellants, their right to fair hearing. They were not given fair hearing. This is fatal to the entire proceedings. The judgment delivered on 28th May, 2001 is a nullity and it is therefore hereby set aside. As Lord Denning MR. put it in MACFOY v. U.A.C. LTD (1961) 3 ALL E.R.1169: ”You cannot place something upon nothing and expect it to stand. It will collapse”. See ALSTHOM S.A. v. SARAKI (2005) ALL FWLR [pt.246] 1385. PER EJEMBI EKO, J.C.A

FAIR HEARING: ESSENCE OF THE PRINCIPLE OF FAIR HEARING

COURT: DUTY OF THE TRIAL COURT IN RELATION TO EVALUATION OF EVIDENCE

Before Their Lordships

SULEIMAN GALADIMA (OFR)Justice of The Court of Appeal of Nigeria

TIJJANI ABDULLAHIJustice of The Court of Appeal of Nigeria

EJEMBI EKOJustice of The Court of Appeal of Nigeria

Between

1. EASTERN BULKCEM COMPANY LIMITED
2. MR. I. A. UKO
3. MR. N. OLUNDAAppellant(s)

AND

MR. PROMISE AMADIRespondent(s)

EJEMBI EKO, J.C.A (Delivering the Leading Judgment): On 4th November, 1994 more than a decade and a half ago the Respondent, as plaintiff in the suit No PHC/933/34 at the High court of Rivers State took out against the Appellants as the defendants, a writ of summons endorsed with the following claims. That is:
1. As against the 1st Defendant:
(a) a declaration that the act of the Defendant in suspending the plaintiff from duty by placing him on a indefinite compulsory leave without pay and withholding all his entitlements to housing, transport and medical allowances with effect from November,1993 is wrongful and invalid.
(b) a declaration that the Plaintiff is entitled to his full salary and housing, transport and medical allowances from the month of November, 1993 until his employment with the 1st Defendant is determined.
(c) the sum of N30,700:00 (Thirty Thousand and Seven Hundred Naira) being portions of the plaintiff’s salaries, housing, transport and medical allowances from November, 1993 to October, 1994 inclusive which has been unlawfully withheld by the 1st Defendant; and salaries and allowances to be calculated at the same rate due to the plaintiff from November, 1994 until judgment, and thereafter at the same rate until whenever the plaintiff’s employment is lawfully determined.
As against the 1st and 2nd Defendants, jointly and severally:-
The sum of N300,000:00 (Three Hundred Thousand Naira) as damages for slander when the 2nd defendant as agent and servant of the 1st Defendant on or about 28/6/93 at the premises of the 1st Defendant, falsely and maliciously spoke and published of and concerning the plaintiff to Messrs Emmanuel Wagbara, Frankline Amadi and other bystanders whose names are at present unknown to the plaintiff words to the effect that the plaintiff stole cement belonging to the 1st Defendant.
3. As against the 1st and the 3rd Defendants, jointly and severally:-
The sum of N500,000:00 (Five Hundred Thousand Naira) as damages for libel contained in a public notice dated 8/7/93 published by the 1st and 3rd Defendants and pasted on all the gates of the 1st Defendant’s premises.
4. As against all the Defendants, jointly and severally:-
An order of injunction restraining the Defendants from further speaking, writing or circulating or otherwise publishing of the plaintiff the said words or similar defamatory words.
Hearing in the suit commenced on 5th November, 1996 before Hon. E. A. Olukole, J. with the evidence of the plaintiff, as PW1 the evidence of the PW1 was not concluded until 8th June, 1999. At conclusion of the plaintiff/PW.1’s evidence on 8th June, 1999 the defence was adjourned to 16th June, 1999. It is not clear from the minutes of the proceedings if the court sat on 16th June, 1999. The Respondent’s Brief at page 4, paragraph 2.4 thereof, however suggests that on 16th June, 1999, the evidence of the 1st defence witness, DW.1, was taken and the matter was adjourned to 21st June, 1999 for defence to continue. After series of adjournments, the second defence witness, DW.2, one Mrs. Mary Osuji, commenced her testimony. By 28th May, 2001, the DW.2 had not concluded her evidence-in-chief due to series of adjournments and excuses at the instance of the defence counsel. When the defence counsel asked for adjournment on 28th May, 2001 on the ground that DW.2 was not well, Mr. Ugboduma of counsel for the Plaintiff/Respondent vehemently opposed the adjournment and castigated the defence for filibuster and dilatory strategies. The learned trial Judge refused the adjournment and stated inter alia:’I do not believe the learned Defence Counsel that DW.2 was sick. If she was sick, there are persons who could stand in and appear as 1st Defendants moreover today is the defence case for this case to go on as per counsel letter dated 21/5/2001. Order 37 Rule 7 of the, Rules of the High Court takes care of situations like this. It reads:
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.
I am satisfied from the evidence that the plaintiff has discharged the burden of proof which is upon him to prove his claim. Application for adjournment refused. Judgment is accordingly given to the plaintiff [in terms of the claims endorsed on the writ]
The Appellants, not happy with the turn of events promptly filed their notice of appeal on 29th May, 2001 with 4 grounds of appeal. By leave of this Court granted on 12th January, 2009 the original notice of appeal was amended and the grounds of appeal increased to 5. Two issues for determination in the appeal were distilled from the 5 grounds of appeal by the Appellants in the Appellants Brief of Argument filed on 14th January, 2009. The Respondent through his counsel filed Notice of Preliminary objection and the Respondent’s Brief of argument on 27th January, 2009. The preliminary objection was argued in the Respondent’s Brief. Thereafter, the Appellants filed their Reply Brief and therein replied the preliminary objection. Without prejudice to his preliminary objection the Respondent also formulated and argued two issues for determination in his brief of argument.
The issues formulated by the Appellants are as follows:
3.2 Whether the learned trial Judge violated the Defendants/Appellant’s right to fair hearing by foreclosing Defendants/Appellants from calling other witnesses and delivering judgment on 28/5/2001 contrary to the applications of both parties and without affording them the opportunity of addressing the Court on the applicability of Order 37, Rule 7 of the High Court (Civil Procedure) Rules, 1987 of Rivers State in the circumstance of the case.
3.3. Whether the learned trial Judge was right to have acted on Order 37 Rule 7 of the High court (Civil Procedure) Rules, 1987 of Rivers State in the circumstance of the case.
The Appellants did not indicate from which grounds the two issues they had formulated emanated from. The Respondent’s preliminary objection is directed at ground 2 of the five grounds of appeal. While arguing the preliminary objection, the Respondent indicated that issue 3.2 is partly formulated from ground 2. I shall come anon to that.
The two issues formulated by the Respondent are as follows:
1. whether the learned trial Judge took into consideration the provisions of section 36(1) of the 1999 Constitution before he entered judgment for the Respondent in the suit (Ground 1 of the grounds of appeal.
2. whether the learned trial Judge was right to have acted under Order 37 Rule 7 of the Rivers State High Court (Civil Procedure) Rules 1987 and whether he entered the said judgment without recourse to the oral and documentary evidence adduced by the parties. [Grounds 3, 4 and, 5 of the grounds of appeal].
I notice that the Respondent formulated no issue from the Appellants’ ground 2 of the grounds of appeal. I also notice the close semblance of the Appellants’ issue 3.2 and the Respondent’s issue 1. The substance of both is whether the Appellant’s right to fair hearing was violated by the learned trial Judge in the circumstance of the application for adjournment and the Respondent’s vehement opposition to it; and his proceeding to final judgment. It appears the preliminary objection will not achieve much apart from mere academic dissipation of intellectual resources.
Ground 2 of the grounds of appeal shorn of its particulars of error is that-
The learned trial Judge erred in law when he entered judgment for the Plaintiff/Respondent contrary to the application made by the plaintiff’s counsel on 28th day of May, 2001 that the defence be foreclosed or alternatively cost for the adjournment.
The Respondent says that the ground of appeal does not arise from the decision of the trial court and therefore liable to be struck out for being incompetent.

A competent ground of appeal must be a complaint arising directly from the decision being complained of. A complaint quite extrinsic to and not arising from decision complained of is incompetent and liable to be struck out. See C.C. BANK PLC v. EKPERI (2007) 3 NWLR [pt.1022] 493 at page 509 D – F.
I have read the proceedings of the trial court on 28th May, 2001 contained at pages 85- 86 of the certified record of appeal. The ground of appeal under attack does not, as complained by the Respondent, arise from the proceedings and the decision of the trial court, on 28th May, 2001.
Parties and the appellate court are bound by the certified or the official record of appeal. See OGLI OKO M.F. LTD v. NACB (2008) 34.2 NSCQR. The said ground 2 being at large and incompetent is hereby struck out.
The Respondent says the Appellants’ issue 3.2 being tinted by the incompetent ground 2 is also incompetent having been so contaminated or corrupted. He relies on NOGA HOTELS INT’ L S.A v. NICON HOTELS LTD (2007) 15 NWLR [pt.1056] 1 at 36 E – H and TAHIR v. BANK OF THE NORTH LTD (2007) ALL FWLR [Pt. 88] 1072 at 1098 E – F. I have carefully examined both the incompetent ground 2 of the grounds of appeal and Appellant’s issue 3.2; I do not see any coloration of the said issue 3.2 by the incompetent ground 2 of the grounds of appeal. As I stated earlier the substance of issue 3.2 is whether Appellants’ right to fair hearing, guaranteed by section 36 (1) of the 1999 Constitution, was violated by the trial court in the proceedings of 28th May, 2001 including the judgment of the same date. It appears no issue was formulated from the said ground 2 of the grounds of appeal by all parties. The ground has been abandoned since no issue was formulated therefrom. It is accordingly, hereby struck out.
Appellants’ issue 3.2 and the Respondent’s issue, as I stated earlier, have close semblance. The substance of both is whether the trial court violated the Appellants’ right to fair hearing in the manner it handled the proceedings of 28th May, 2001, including its judgment of that day. The Appellants contend that their right to fair hearing guaranteed by section 36 (1) of the 1999 Constitution was on 28th May, 2001 violated.
The suit was adjourned to 28th May, 2001 for the defence to continue. The DW.2 had not concluded her testimony on 15th November, 1999. Adjournments, since then had been for her to conclude her evidence in chief and cross examination, On 28th May, 2001 the defence counsel, Prince Onolememen asked “for adjournment on the ground that DW.2 was not well”. Mr. Ugboduma of counsel for the plaintiff, now Respondent, vehemently opposed the application for adjournment. The learned trial Judge went straight into writing and delivering his judgment in the suit. I had reproduced the salient portion of the said judgment delivered on 28th May, 2001. He must have responded to the filibuster antics and dilatory tactics of the defence in an angry mood of frustration. One of the sterling attributes of a judge is soberness. That is summed up, with admiration, in the old adage – TO BE SOBER AS JUDGE.
In the course of writing and/or delivering the Judgment, the learned trial Judge refused the adjournment and then took refuge under Order 37, Rule 7 of the Rivers State High Court (Civil Procedure) Rules, 1987 that says –
‘ If when a trial is called and the Plaintiff appears, and the Defendant does not appear, then the Plaintiff may prove his claim so far as the burden of proof lies on him’.
The plaintiff had since 8th June, 1999 closed his case with the evidence of PW.1, himself the Plaintiff. The first defence witness, DW.1’s, evidence had been taken also. As at 28th May, 2001, the evidence of DW.2 was yet to be concluded.
The crux of the matter under Appellant’s Issue 3.2 and Respondent’s issue 1, the substance of which is whether the trial court denied the Appellants fair hearing is as submitted by Appellants counsel at paragraph 4.2 of the appellant’s Brief. That is that

the law is settled that where a witness who is in the witness box testifying fails to appear subsequently in court to continue or conclude his evidence, the trial court can foreclose the witness from further testifying, and then take such steps that would guarantee the fair trial of the matter. See IKENGA FRANCIS v. JEROME OSUNKWO & ORS (2000) FWLR [pt.14] 2469 at 2487 E – H, and Mrs. JUNE GEORGE v. OLABODE GEORGE (2000) FWLR [pt.23] 1130 at 1189.
The issue here is not whether the party, the litigant, entitled to be heard absented himself from the trial on the adjourned date. That is what distinguishes the instant case from the authorities cited by Respondent’s counsel; particularly A.G. RIVERS STATE v. UDE (2007) ALL FWLR [pt.347] 598 and BILL CONSTRUCTION CO. LTD v. IMANI & SONS LTD v. SHELL TRUSTEES LTD (2007) ALL FWLR [pt.348] 806.
I do not also see how EKE v. OGBONDA (2007) ALL FWLR [pt.351 1456 at 1479 B – C and INAKOJU v. ADELEKE (2007) ALL FWLR [pt 53] 3 at 111 D – E will be invoked to provide any assistance to the Respondent in view of the particular circumstance of the instant case. If the learned trial Judge merely refused the adjournment sought by the Appellants and foreclosed the evidence of DW.2 and no more, then the dictum of Tobi, JSC in INAKOJU v. ADELEKE (supra) at pages 115 – 116 inter alia that-
A party who seeks fair hearing from the court must be fair in the litigation to the adverse party and to the proceedings -The principles of equity and fair play will certainly deny him of the fair hearing that he refused to surrender in the judicial process. Although fair hearing is a constitutional guarantee, it has some resonance in the principles of equity and fair play. Can the appellants really ask for what they were unable to supply in the hearing of this case?…
may have some force to the advantage of the Respondent:
Clearly, the learned trial Judge blundered in his handling of the application for adjournment, the vehement opposition to it and his final judgment. Here, the portion of the judgment in IKENGA FRANCIS v. JEROME OSUNKWO (supra) at 2487 E – H becomes most appropriate and apposite. It states –
The learned Judges have two applications before them, one for an adjournment and the other for dismissal of the appeal.
The learned Judges have a duty in the interest of justice to first consider the application for adjournment and rule on it giving reason for the refusal. Thereafter the court would call on the party seeking adjournment to proceed with the case and if he fails or refuses to do so it can then dismiss the action. See CEEKAY TRADERS LTD v. GENERAL MOTORS CO. LTD (1992) 2 NWLR (pt.222) 132, 155, and paragraph 41.19 of Aguda: PRACTICE AND PROCEDURE OF THE SUPREME COURT, COURT OF APPEAL AND HIGH COURTS OF NIGERIA IN NIGERIA, 1st Edition at page 456
where the learned author sets the procedure for refusal of application for an adjournment at the trial:
41.19 Refusal of the court to postpone hearing:
If an application for postponement is refused the party applying must be called upon by the trial judge to proceed with his case.
The summary of all these is the 7 – Point Agenda or steps that the trial Judge refusing adjournment must follow before proceeding to judgment. He must follow them step by step. That is-
1. The first is to dismiss the application for adjournment with reasons.
2. He then asks the defendants, or the party asking for adjournment to proceed.
3. If the party asking for adjournment fails to continue then he will foreclose the witness testifying.
4. Thereafter, he asks the party whose application for adjournment has been refused to proceed with other witnesses, if any.
5. If he can not continue with other witnesses the trial Judge then will close the party’s case.
6. Thereafter, he invites the parties or their counsel to sum up their respective cases by way of final address.
7. After (6) the trial Judge then proceeds to his judgment which may be either across the bench or reserved.
The failure of His Lordship, the learned trial Judge, to follow these mandatory steps meticulously has the effect of depriving the parties, particularly the Appellants, their right to fair hearing. They were not given fair hearing. This is fatal to the entire proceedings. The judgment delivered on 28th May, 2001 is a nullity and it is therefore hereby set aside. As Lord Denning MR. put it in MACFOY v. U.A.C. LTD (1961) 3 ALL E.R.1169: ”You cannot place something upon nothing and expect it to stand. It will collapse”. See ALSTHOM S.A. v. SARAKI (2005) ALL FWLR [pt.246] 1385.

The principle of fair hearing is fundamental to all court procedure and proceedings. The absence of it vitiates the entire proceedings, no matter how well the judgment is written. The consequence of a breach of the rule of fair hearing, particularly audi alteram partem [Latinism for give the other party a hearing] is that the proceedings are null and void. See NDUKAUBA v. KOLOMO (2005) ALL FWLR [pt 248] 1602 at 1614.
The appeal on this issue is hereby allowed. That should dispose of the appeal and render the remaining issue academic. I will however touch it briefly for whatever it is worth.
The Appellant’s issue 3.3 and the Respondent’s issue 2 appear to me to touch on the merits of the judgment of the learned trial Judge dated 28th May, 2001. The judgment awarded all the reliefs in toto as claimed by the Respondent. The claims are a juxtaposition of declaratory and injunctive reliefs as well as damages, both special and general, for breach of contract and defamation.
We must bear in mind, again, at this juncture that before 28th May, 2001 the plaintiff testified and had closed his case. The testimony of the DW.1 had been concluded. The learned trial Judge did not at all bother to evaluate the evidence before him not to say properly or improperly.

It is trite that every trial court has a primary duty to evaluate evidence before it before reaching its decision, particularly where the evidence on both sides of the divide are inconsistent, as they are always. See YADIS LTD v. GNIC LTD (2007) 30 NSCQR 495; OLUJINLE v. ADEAGBO (1988) 2 NWLR (pt.75) 238.
It has been submitted for the Appellants, quite rightly, that declaratory reliefs are not usually granted on admissions in the pleadings and that the plaintiff is still under obligation to produce evidence to establish same even if on the pleadings the other party admits them. See IBRAHIM JIMOH AJAO v. MICHAEL JENYO ADEMOLA (2005) ALL FWLR [pt.256] 1239. The granting of declaratory reliefs is discretionary and the court must act judiciously and judicially.

The trial court has to evaluate the totality of the evidence adduced to satisfy itself on the probative value of the evidence produced before granting them to the plaintiff. See MOGAJI v. ODOFIN (1978) 4 SC 91 at 93.
Apart from the learned trial Judge failing in his duty to properly evaluate the totality of available evidence before reaching his decision to award in lump all the reliefs claimed, he acted completely in error under Order 37 Rule 7 of the High Court (Civil Procedure) Rules. This provision presupposes that the defendant is absent at the court when the trial is called and that only the plaintiff was present. I agree with the Appellants that a party who is represented by a counsel is “present” in court if the counsel announces his appearance for him when the case is called for trial. See COMMISSIONER OF POLICE v. EFFONG OROK AYI (2005) ALL FWLR [pt.286]. On this ground the Appellants, as defendants, were present in court on 28th May, 2001 when the case was called for trial. Only their witness, DW.2, who was to conclude her evidence, was absent. Order 37 Rule 7 of the Rules of the trial High Court can not, in the circumstance, be used to justify the trial court’s denial of Appellants’ right to fair hearing. Order 37 Rule 7 cannot be used as a cloak for the trial court to refuse to consider available evidence. That will be a complete, if not reckless, abdication of basic judicial responsibility or duty. Order 37 Rule 7 can only be relevant at the stage when no evidence had called on both sides. In the circumstance of the present case, the learned trial Judge had wrongly invoked Order 37 Rule 7. The strenuous argument of the Respondent on this issue does not impress me, after consideration.
I allow the appeal also on this issue. The judgment of the Rivers State High Court in suit no PHC/933/94 delivered on 28th May, 2001 shall be and is hereby set aside. The case is hereby remitted to the said High Court to be heard de novo by another Judge, other than Hon. E. A. Olukole, J.

SULEIMAN GALADIMA, J.C.A (OFR): I have had the privilege of reading in advance the lead Judgment by my Learned Brother, EKO, JCA just delivered. I agree with his reasoning and conclusion which are ably set out. I will also allow this appeal; set aside the Judgment of the Court below delivered on 28/5/2001 and remits the case to the Honourable Chief Judge for re-assignment and to be heard expeditiously before another Judge.

TIJJANI ABDULLAHI, J.C.A: I have had the preview of the draft judgment written by my Learned brother, Eko JCA just delivered.
His Lordship has ably considered and rightly resolved the two issues submitted to us for determination in this appeal.
The views expressed by his Lordship are in harmony with mine and I agree that for all the reasons given by him, the appeal deserves to succeed.
Accordingly, I allow the appeal and remit the case for retrial before another Judge of the High Court of Rivers State other than Hon. A. E,. Olukole J.

Appearances

C.N. Obullor, Esq.For Appellant

AND

J.T.O. Ugboduma Esq. with H. Amrurhobo Esq.For Respondent