JONASON TRIANGLE LTD. & ANOR. v. CHARLES MOH & PARTNERS LIMITED
(1998)LCN/0417(CA)
In The Court of Appeal of Nigeria
On Monday, the 30th day of November, 1998
CA/E/31/97
RATIO
INTERPRETATION OF STATUTE: INTERPRETATION OF ORDER 27 RULE 2 (1) IN REGARDS TO LIQUIDATED DEMANDS AND DEBT
Order 27 rule 2(1) provides as follows –
“2(1) If the plaintiff’s claim be only for a debt or liquidated demand, and the defendants does not, within the time allowed by these rules or an order of court or a judge in chambers for that purpose, file a defence, the plaintiff may, at the expiration of such time, apply for filial judgment for the amount claimed, with costs. ” PER SALAMI, J.C.A.
APPEAL: WHETHER IT IS ALL ERRORS IN A JUDGMENT THAT RESULTS IN THE APPEAL BEING ALLOWED OR THE JUDGMENT BEING OVERTURNED
It is trite that it is not all errors in a judgment that result in the appeal being allowed or the judgment of the court below being overturned. It is only when such errors result in the miscarriage of justice that the appellate court interferes with the decision of the trial court. PER SALAMI, J.C.A.
JUSTICES:
JUSTIN THOMPSON AKPABIO Justice of The Court of Appeal of Nigeria
ISA AYO SALAMI Justice of The Court of Appeal of Nigeria
EUGENE CHUKWUEMEKA UBAEZONU Justice of The Court of Appeal of Nigeria
Between
- JONASON TRIANGLE LTD
2. JONATHAN A. ANAGOR Appellant(s)
AND
CHARLES MOH & PARTNERS LIMITED Respondent(s)
SALAMI, J.C.A. (Delivering the Leading Judgment): In the High Court of the Cross River State of Nigeria, in the Calabar Judicial Division, Ecoma. C.J. on 20th November, 1995 awarded in favour of (he plaintiffs damages, both general and special, of N1,445,000.00 as well as costs assessed at N3,000.00. The defendants were thoroughly aggrieved by the decision and appealed against same on 20th June, 1997 pursuant to an order extending the time within which to bring the appeal.
The defendants, prior to filing the afore-mentioned notice of appeal, applied to the court below for an order setting aside the judgment allegedly obtained in their absence. The application was refused on 26th November, 1996 by Arikpo. C.J., the former trial Chief Judge having retired on attaining the statutory age of retirement. The defendants being equally aggrieved by the refusal filed a notice of appeal against the ruling rejecting the appellants’ application to set aside the said judgment.
The issues raised by the two separate notices of appeal are calling for determination in the instant appeal. The defendants, who are hereinafter referred to as appellants, formulated two issues from each of the two notices of appeal. The issues distilled from the notice of appeal filed against the judgment of 20th November 1995 are set out immediately hereunder-
(1) Whether the purported trial and proceedings of 24th October. 1995 are competent;
(2) If so, whether the judgment and proceedings of 20/11/95 violated the defendants’ right to fair hearing.
Pursuance of the notice of appeal filed on the 26th November, 1995, these issues were framed in the appellants’ brief.
1a. Whether the court below is correct in regarding the trial as a determination on the merit?
2a. If not, whether the court below exercised its discretion judicially and judiciously in refusing to set aside its verdict in the circumstances manifest on the record’?
The plaintiff who is herein referred to as the respondent, in its brief of argument did not frame a separate set of issues rather it adopted the appellants’ four formulations except the words “purported trial”. The two sets of issues are mutually exclusive. The determination of the first set other way seems to resolve all the issues in controversy in this appeal. If the appeal is determined on the face of the record, as in the instant appeal, there would be nothing left for consideration on the basis of the second set of issues. That is to say if this court finds on issues 1 and 2 that the judgment of the trial court was on the merit and that the appellants were not denied their constitutional right to fair hearing, it would tantamount to waste of precious time to indulge in the consideration of issues 1A and 2A.
Before proceeding to consider the argument canvassed in support of the issues adumbrated in the briefs, it is apt to state the facts albeit succinctly. The respondent, in this appeal, is an incorporated body with its head office at Bedwell Street, Calabar. The first appellant is also an incorporated firm with its head office in Port Harcourt, while the second appellant is its managing director. The appellants were sued in Calabar and were duly served and filed a conditional memorandum of appearance. On the strength of the memorandum of appearance, the appellants sought that the suit be transferred to Port Harcourt for trial. Both Calabar and Port Harcourt are in separate jurisdictions. Calabar is the capital of Cross River State while Port Harcourt is the capital of Rivers State. It is, therefore, doubtful if the learned Chief Judge of Cross River State has competence to transfer a case from his State to a High Court of another State. The application for transfer suffered several adjournments at the instance of the appellants. The motion was eventually struck out on 27th September, 1995 when the suit was adjourned in the presence of the appellants to 24th October, 1995 for hearing. On the adjourned date, neither the appellants nor their counsel was in court. They were inexplicably and conspicuously absent from court.
The respondent called a witness in proof of its case which was adjourned for judgment on the 20th November, 1995 when the appellants were present in court.
The reserved judgment acceding to the respondent’s prayer was delivered in the presence of the appellants as well as their counsel.
The appellants, subsequent to the delivery of the judgment, filed a motion for an enlargement of time to file a defence. When this step would not avail them, they moved to have the judgment set aside which application was contested and dismissed. Appellants appealed against the ruling and later with leave of this court brought an appeal against the judgment.
Substantial part of the argument canvassed in issue 1 of the appellants’ brief touched upon matters that were not previously canvassed before and pronounced upon by the learned trial Chief Judge. The argument which are not relevant to this appeal, would have been properly canvassed if the learned trial Chief Judge had pronounced upon the appellants’ application for the transfer of the same suit to Port Harcourt. But the motion on notice was struck out for want of diligent prosecution.
The same application cannot be surreptitiously moved in this court. This court cannot be lured into determination of that application on its merit.
The only submission worthy of consideration deals with the handling of the suit on the 24th October, 1995, the date the matter was adjourned to on 27th September, 1995. In this regard, learned counsel for appellants contended that it was incumbent on the court to first entertain and determine the fate of the application for accelerated hearing before proceeding to hear the matter on the merit. Counsel submits further that there being no defence filed in the proceeding as at 24th October, 1995 the trial court lacked jurisdiction to hear the matter on that day at the instance of the plaintiff alone as what the court did, learned counsel contended, is against the principle of natural justice and “the requirements of Order 27 rule 2(1) of the Rules of the Court applicable makes mandatory that the plaintiff must first put the defendants on notice of his intention to move the court to give judgment in default of defence”. It is only then, according to learned counsel for appellants. Dr. Ibik, SAN, that the jurisdiction of the court to deal with the substantive action can be activated. He referred the court to the case of Akimudi v. Ayo-Odegbesan (1992) 8 NWLR (Pt. 258) 178. Learned senior counsel stated that there was no application for default judgment before the trial court and contended that in the absence of such application, the trial court had no jurisdiction to entertain the action in the circumstance. Learned senior counsel then submitted that the trial court, therefore, lacked jurisdictional competence or basis to hear the substantive suit on 24th October, 1995.
There is no substance in the submission of the learned senior counsel to the effect that his client was denied the benefit of the natural justice principle of audi alteram partem and “the specific requirement of Order 27 rule 2( I) of the rules of court applicable”, I must state dearly or emphatically that I have looked for the “rules of court applicable” that makes it mandatory for plaintiff to pot the defendants on notice of his intention to move the court to enter judgment in default of the defence, I have searched through the Laws of Cross River State of Nigeria and cannot find any rule styled “rules of court applicable”. May be learned senior counsel had in mind the provisions of Order 27, rule 2(1) of the Cross River State High Court (Civil Procedure) Rules No.7 of 1987. Assuming I am correct, sub-rule(1) of rule 2 of Order 2.7(supra) docs not avail the appellants. The respondent’s claim herein is neither for only a debt nor liquidated demand. Since the respondent’s claim is for special and general damages it does not fall within the purview of the sub-rule to warrant its bringing a motion for final judgment for the amount claimed even though the appellants failed to file defence within the time allowed by the rules. Order 27 rule 2(1) provides as follows –
“2(1) If the plaintiff’s claim be only for a debt or liquidated demand, and the defendants does not, within the time allowed by these rules or an order of court or a judge in chambers for that purpose, file a defence, the plaintiff may, at the expiration of such time, apply for filial judgment for the amount claimed, with costs. ” (italics mine)
The respondent’s case is in damages which must be pleaded specifically and proved strictly viz on preponderance of evidence. It, therefore, follows that it is a claim incapable of being entertained on a mere motion as contemplated in Order 27 rule 2(1) (supra). The procedure enunciated in Order 17 rule 2.(1) is not suitable for the circumstance of the present claim.
Be that as it may, the suit was initiated by way of writ of summons which was duly served on the appellants. The appellants on receipt of the writ of summons caused a conditional memorandum of appearance to be filed and subsequently sought to invoke the jurisdiction of the court below by asking for the transfer of the matter to Port Harcourt, ostensibly on the ground that the agreement, the subject of litigation, was entered into in Port Harcourt but the motive was clear. It was for convenience or both parties. This is borne out by paragraph 12 of the affidavit in support of the motion on notice praying the court to transfer the matter from Calabar, Cross River State to Port Harcourt in Rivers State. It was averred thus in paragraph 12 –
“12. That my counsel. Chidi N. Ikeji Esq., informed me and I verily believe him that because of the inconvenience of the venue of the institution of the suit a conditional appearance was entered. The memorandum of conditional appearance is hereby tendered and marked as Exhibit ‘B’.”
(italics mine)
Clearly the filing of a conditional memorandum of appearance was not predicated on lack of jurisdiction on the part of the trial court; rather it was founded on the convenience of parties. I, therefore, agree with learned counsel for respondent that if the appellants were mindful of challenging the competence of the court it would have asked that the matter be struck out or distance themselves from it, But in the instant case the appellants were merely asking for transfer of the suit on the grounds of convenience because they cannot approbate and reprobate by asking a court that is alleged to have no jurisdiction to invoke the same jurisdiction being challenged by them in their favour by adjourning the same suit to another court which they claim has competence to treat it.
The motion dated 25th April 1995 praying the court to transfer the matter from High Court of Cross River State to High Court of Rivers State suffered several adjournments. The application was adjourned more than four times, that is, 23/5/95, 12/6/9, 4/7/95 and 31/7/95 before it was struck out on 17th September 1995 for want of diligent prosecution. The application, to my mind, was a mere ruse to frustrate the respondent or delay the course of justice.
On the day the application was struck out, the substantive action was adjourned to 24/1 0/95 for hearing. The relevant order read as follows –
“Court: The motion filed on the 25/4/95 by the defendants is hereby struck out without prejudice. The case is hereby adjourned to 24th October, 1995 for hearing of the motion for accelerated hearing and hearing of the substantive suit.”
The appellants and their counsel, who were in court on 17th September, 1995 when the action was adjourned along with the motion for accelerated hearing to 24th October, 1995, were conspicuously absent from court on the hearing dale. Neither counsel nor his clients were in court. The appellants by their conduct have voluntarily opted out of the trial because they had adequate information of the hearing date, the venue of trial and had adequate time to react to the order granting adjournment but they chose to keep mute. Surely there can be no better notification
to parties than the one communicated to them personally in the open court as it is the case in the present appeal. The parties to the suit were aware of the subject of the action as they had been duly served the statement of claim as well as the writ of summons for almost seven months before the suit was eventually fixed for hearing. It is not appellants’ case that they were not aware of the respondent’s case.
They did not deny service of respondent’s case, writ of summons and statement of claim on them prior to the date fixed for hearing. There is no better evidence or notice of the case the respondent intended to make at the trial than his statement of claim- see Obmiami Brick & Stone (Nig.) Ltd v. African Continental Bank Limited (1992) 3 NWLR (Pt. 229) 260 at page 293.
The appellants are, by natural justice principle of audi alteram partem enshrined in the constitutional provision of fair hearing, only entitled to be offered an opportunity to be heard. They were given opportunity to be heard and voluntarily scuttled or compromised it. It is not the law that they must be willy nilly forced to attend the trial. Once they have adequate notice of the trial the principle or doctrine is satisfied. They are not compellable to tender a defence to an action as it is not within the competence of the court to compel a party to proffer defence to an action. The principle of audi alteram partem does not include forcing a defendant to a suit to defend the claim. Indeed, the exercise of the option not to defend may be part of the strategy adopted to defeat the claim which stratagem, if successful, inures to the appellants, if it otherwise boomerangs, they cannot be heard to complain. There is sufficient material on the record to demonstrate that the appellants were adequately afforded opportunity to be heard or defend the suit but they defaulted. This conduct of the appellants, in the circumstance of this case, is typified by the Latin maxim of volenti non fit injuria. The appellants, having surrendered their right to defend voluntarily, having been adequately informed of the hearing date, cannot be permitted at this stage to complain. In any case, against whom are they to complain in the peculiar circumstance of this case’? In other words, who is responsible for the appellants’ present predicament’? Of course against themselves. But the law forbids his taking advantage of his own malfeasance.
The doctrine of audi alteram partem only operates in a situation where a party is denied opportunity of being heard through failure of putting him on notice. The appellants, in the instant appeal, cannot be heard to complain of denial of the right to be heard having been told of the hearing date and deliberately stayed away from court. The appellants have been afforded opportunity to present their defence to the suit by communication of hearing date to them on the day the suit was adjourned for hearing, if through their own default, inadvertence, negligence or tardiness they failed to present their defence to the claim they are estopped from complaining. They cannot turn round to lay their blame at the door of their opponent nor the court. See Shahimi v. Akinola (1993) 5 NWLR (Pt. 294) 434. In the instant case, the appellants were afforded ample opportunity to mount their defence.
On the adjourned date, the respondent went into the witness box to establish his case because the suit was not for a liquidated sum or debt. It is equally not an action brought under the undefended list. It was, therefore, unnecessary for the respondent to bring a motion on notice asking for judgment to be entered in its favour in lieu of appellants’ defence as contended by learned senior counsel for appellants. The contention of the appellants to the effect that the failure of the respondent to bring such a motion on notice deprived the trial court of jurisdictional basis, to say the least, is preposterous. The plaintiff who incidentally is the present respondent claimed general and special damages. The latter being special damages must be specifically pleaded and strictly proved which implies that the respondent is required to go into the witness box or produce witness to establish the claim strictly, which means no more than proof on balance of probability. The respondent adduced evidence. Thereafter, the learned trial Chief Judge reserved judgment on 20th November, 1995. On the adjourned date, learned Chief Judge delivered his reserved and considered judgment which took into account the evidence, both documentary and oral, tendered by the respondent before coming to the conclusion on the preponderance of evidence. The burden of proof placed on the respondent having been discharged, he thereby entered judgment in his favour in the sum of N1, 445,000.00 with costs assessed at N3,000.00. On all accounts the judgment which was delivered in the presence of the appellants as well as their counsel is on the merit and cannot be set aside as being postulated by the appellants. See Akinnuli v. Ayo-Odugbesan (1992) 8 NWLR (Pt. 258) 172 and Obmiami Brick and Stone (Nig.) Ltd v. African Continental Bank Ltd (supra) at 296.
The learned counsel for appellants also contended, in his oral submission, that the learned trial Chief Judge, having adjourned both the motion for accelerated hearing as well as the substantive suit to 20th November 1995 for hearing, ought to have disposed of the application for accelerated hearing before proceeding to hear the action itself. This submission is adroit but not candid. Learned Chief Judge found himself saddled with hearing the substantive suit and the motion for speedy trial. In his effort, apparently to expedite the hearing of the suit itself, he decided to proceed with hearing of the suit immediately rather than further dissipating energy on a motion for accelerated hearing which, as I observed earlier, was not opposed, before settling down to the formal hearing of the suit itself would amount to exercise in futility. Such an approach smacks of circus show, a luxury which the court with a heavy list can ill afford. The learned trial Chief Judge by proceeding with the trial of the substantive suit has, by implication, granted without more ado, the motion on notice asking that the hearing of the substantive suit be quickened. The hearing of the substantive suit there and then in no manner prejudiced the appellants who have not demonstrated how the approach adopted by the learned trial Chief Judge resulted in a miscarriage of justice. It is trite that it is not all errors in a judgment that result in the appeal being allowed or the judgment of the court below being overturned. It is only when such errors result in the miscarriage of justice that the appellate court interferes with the decision of the trial court.The learned senior counsel for appellants contended that Order 37 rules 1 to 7 of the Rules of court applicable provide –
(a) that the case has been set down for hearing by the registrar;
(b) that the case has been fixed for hearing on a particular date;
(c) that hearing notice has been served on the defendants; and
(d) that the defendants do not appear when the case is called up in court.
Learned counsel contended that the first pre-condition was not complied with and there is nothing on the record to establish to the contrary. Learned senior counsel further contended that the first pre-condition is practically unattainable since no defence had been filed on behalf of his clients. He further argued that none of the preconditions seems to have been complied with.
I agree with learned senior counsel for appellants that the purpose of the conditions precedent is to afford the adverse party the right to fair hearing. It seems to me, in the peculiar circumstance of this case, that all the conditions precedent were met. In the circumstance of this case, it was no longer necessary for the action to be formally set down for hearing by the register of the court since the same was already before the court in connection with the appellants’ application for transfer of the case as well as the respondent’s motion on notice asking for the suit to be sped up. For the same reason it was no longer necessary to issue the appellants with a hearing notice after communicating the date for hearing to them in court on 17/9/95 when the case was fixed for hearing on 24th October, 1995. The purpose of these conditions is to avoid a party being overreached. The appellants have not denied that the case was on 17th September, 1995 fixed for hearing on a particular date, that is, on 24th October, 1995. Furthermore they failed to satisfy this court that the date so fixed was not communicated to them. It follows that if the case was fixed for hearing to the knowledge of the appellants and they unilaterally boycotted or opted out of the trial, the decision arrived at as a result or such trial would not be set aside for any mundane reason. The appellants’ refusal to file their statement of defence is a right or privilege, exercise of which the court cannot question. It is within the competence of each litigant to default on certain steps to be taken but defaulting party must not complain when they get their fingers burnt. It does not lie in the mouth of any litigant that the court proceeded improperly with the trial of the case because they failed to file their papers within the time fixed for so doing. The trial in the instant case is on the merit notwithstanding the appellants’ default on pleadings. The decision in the case was on the merit and the trial culminating in the judgment is fair. The appellants’ complaint of lack of fair hearing is baseless and without foundation whatsoever: Obmiami Brick and Stone (Nig.) Ltd V. African Continental Bank Lid (1992) 3 NWLR (Pt. 229) 260 and Williams v. Hope Rising Voluntary Fund Society (1982) 1-2 SC 145 and Shahimi v. Akinola (1993) 5 NWLR (Pt. 294) 434.
Having resolved issues I and 2 in favour of the respondent, the remaining issues viz 1A and 2A do not call for determination. The grounds of appeal from which issues 1A and 2A are formulated are consequently struck out. The notice of appeal filed on 26th November, 1995 is equally struck out. The remaining grounds of appeal leading to formulation of issues I and 2 fail and are dismissed.
The appeal also fails and it is dismissed with costs which is assessed at N3,500.00 in favour of the respondent.
AKPABIO, J.C.A.; I have had the privilege of reading in draft the lead judgment of my learned brother Salami, J.C.A., just delivered and I agree with him that this appeal lacked merit and should be dismissed.
This was a case in which the respondent, a Calabar-based company, was awarded a contract by L.P.O. by another company to supply thickwood (logs) to the tune of N3.3million naira between 24th October, 1994 and 7th November, 1994. The respondent therefore contacted the appellant, a Port Harcourt based haulage company to help transport the logs from Gboko to Calabar, at a total cost of N275,000.00 which was paid in advance. Also, in order to expedite and facilitate easy loading of the logs into appellants’ truck, the respondent also hired a pay-loader at a cost of N180,000.00. The transportation of the logs was to commence on 2/11/94, and conclude on 6/11/94, as time was of the essence. So the respondent duly sent the pay-loader to Gboko to wait for the appellants. However, the appellants’ trucks never showed up at the site from 2nd to 7th November, 1994, after which the pay-loader had to return to Calabar, without loading any log. According to the respondent, he could have made a profit of N550.000.00 from the transaction, if there had been no breach. Respondent later contacted the appellant to refund his money paid to him, but none was made, whereupon the respondent instituted this action claiming an inclusive sum of N5,000.000.00 (five million naira) as special and general damages for breach of contract.
With leave of court, the writ of summons was finally served on the appellants outside jurisdiction at Port Harcourt. The appellants first entered a conditional appearance, after which they filed a motion on notice asking that the venue of the trial be transferred from Calabar to Port Harcourt. In respect of this application so many affidavits, counter-affidavits and further affidavits were filed. The application also suffered numerous adjournments, all at the instance of the appellants’ counsel who continued to give one bogus excuse after the other for his absence. Ultimately, the learned trial Judge Ecoma. C.J., got tired of waiting, and so struck out the said application for transfer of venue. At this stage the respondent had already filed its statement of claim, while the appellants had filed nothing. On 27/9/95 when respondent’s counsel urged the court to strike out the motion dated 25/4/95 for want of prosecution, both the respondent and his counsel were in court, while only the appellant in person was in court, without his counsel, Mr. Ikeji. On that date the court made the following order:-
“The motion filed on the 25/4/95 by the defendants is hereby struck out without prejudice. The case is hereby adjourned to the 24th of October, 1995 for hearing of motion for accelerated hearing and hearing of the substantive suit. I make no order as to costs.”
Then on the said 24/10/95, both the respondent and his counsel were in court while the appellants and their counsel were absent. On respondent’s counsel insisting to go on with the case he was allowed to do so. The court duly heard the case with only one witness called to tender the receipts of payments made to appellants and for the hiring of the pay-loader. Judgment was thereafter adjourned to 20/11/95.
On the said 20/11/95, both the respondent and his counsel as well as the two appellants and their counsel, Mr. C.U. Ikeji, were present. The learned trial Judge then delivered a 5-page judgment in which he found in favour of respondent and awarded him N455,000.00special damages and N1,000,000.0 as general damages making a total of N1,455,000.00 plus N3,000 costs in favour of respondent.
It appears that after this judgment the appellants did nothing until 16/4/96, when an application was brought for a stay of execution of judgment of court delivered on 20/11/95 and also an order setting aside judgment of the court dated 20/11/95. The said application was duly heard by Arikpo, C.J., who had succeeded Ecoma, C.J., as the new Chief Judge of Cross River State. On 26/11/96, the said application was dismissed in its entirety with costs of N500.00. Then on the 16/11/96, the appellants filed their first appeal to this court, against Aritpo J’s refusal to set aside the judgment and order a retrial. I consider the above date 16/11/96 to be erroneous as the ruling appealed against was delivered on 26/11/96. Be that as it may, the appellants subsequently filed an amended notice of appeal dated 1st September, 1997, which was said to be “pursuant to order of the Court of Appeal dated 4th day of June, 1997”.
Briefs of arguments were subsequently filed and exchanged, and issues for determination formulated. Appellant formulated four issues numbered 1, and 2 and then 1A and 2A. These were also adopted by the respondent with minor variations. They raised the issues whether the trial of 24/10/95 was competent or incompetent; or whether it was a trial on the merit or in default. My learned brother in the lead judgment has held that the judgment of Ecoma C.J., of 20/11/95 was on merit as the appellants were given every opportunity to state their case, but waived their right to be heard, and I agree with him.
I only wish to add a few words of my own as follows:- In both the original and the amended notices of appeal, the reliefs sought from the Court of Appeal were the same, namely:-
“(i) An order setting aside the ruling of the Calabar High Court and (ii) An order for retrial of the suit on its merit by the trial court.”
In connection with the above orders sought from this court, I want to say that the locus classicus on this branch of the law is the case of N.A. Williams and ors v. Hope Rising Voluntary Funds Society (1982) 1-2 S.C. 145 at 160, in which the Supreme Court laid down the conditions under which a trial court could set aside its own default judgment and then retry the case on the merits to be as follows:-
“whether (1) the applicant has good reasons for being absent at the hearing, (2) he has shown that there was good reason for his delay in bringing the application i.e. in other words whether there was undue delay in bringing the application so as to prejudice the party in whose favour the judgment subsists. (3) the respondent will not be prejudiced or embarrassed if the order for re-hearing was made, (4) the applicants’ case was manifestly unsupportable and, (5) the applicants’ conduct throughout the proceedings is deserving of sympathetic consideration. All of these matters ought to be resolved in favour of the applicant before the judgment should be set aside: it is not enough that some of them can be so resolved.”
I have carefully applied all the above conditions to the facts of this case, and cannot say that any of them could avail him. As regards condition (I) appellant did not give any reason whatsoever to the trial court to say why he could not attend court, even though he was in court on 27/9/95 when the substantive suit was fixed for hearing on 24/10/95. But on that 24/10/95 the appellants and their counsel were e absent from the court without any reason (see the case of Shell Petroleum Development Co. (Nig.) Ltd v. Udi (1996) 6 NWLR (Pt. 455) 483 decided by the Court of Appeal (Benin Division) on similar facts). In that case, the counsel for the appellant had written to the court to say that he was attending a conference of the African Bar Association holden at Abuja on the same date as the date of hearing of the case. We held that such an excuse was not substantial as the appellants’ counsel was not an official of the A.B.A. but was going to Abuja as a mere spectator. In the instant case the learned counsel for appellants did not even have the courtesy to send any letter to Ecoma. C.J., to explain his absence. The same applied to the appellant in person. As regards condition No.2, the judgment of Ecoma C.J., was delivered on 20/11/95, but the application to Arikpo Ag. C.J., to set it aside was never brought till 12/2/96, a period of almost three months. In the case of NA. Williams & ors “. Hope Rising Voluntary Funds etc. (supra) which was decided under the Lagos State Rules of Court, an unsuccessful defendant was required to move the court to set aside a default judgment within six days of its delivery. and give good reasons why he was not present at the trial. But in the Shell Pet. Dev. Co. Ltd v. Udi (supra) which was decided under the Bendel State Rules of Court, there was no stipulation as to the number of days within which application for setting aside should be brought. It was decided however (hat such application must he brought within a reasonable time. In the instant case I consider the period of almost three months (in comparison with six days) to have been grossly unreasonable. So there was undue delay before the appellant filed his application before Arikpo. Ag. C.J. As for condition (5), I cannot say that appellant’s conduct throughout the proceedings was deserving of sympathetic consideration. In the first place he filed an application to challenge the venue of the trial, but would not come to move it until it was struck out; secondly he absented himself from court on the date of trial without any explanation or apologies whatsoever, and thirdly; he was said to have come to file his statement of defence and counter-claim, on the same day that judgment was being delivered. These conducts to my mind cannot be said to be deserving of any sympathy. Rather, they bordered on the irresponsible.
Finally is the fact that all the conditions stipulated in the NA. William’s case are supposed to exist together, and not only some of them. Therefore, since I hold that conditions 1, 2 and 5 did not avail the appellant, his case must fail.
On the totality of the foregoing, I hold that the appellants have not shown sufficient, cause why the judgment of Ecoma. C.J. even if considered to be a “default judgment” should be set aside for “hearing on the merits”. This appeal therefore fails, and is also dismissed by me with same costs awarded in the lead judgment of my learned brother.
UBAEZONU, J.C.A.: I have had the opportunity of reading in draft the judgment of my learned brother Salami, J.C.A. I agree with him that the appeal should be dismissed as lacking in merit.
This appeal is a good example of attempting to use the rules of court or technicality to defeat the cause of justice. It is a case of over-flogging the sacred principle of audi alteram partem. I tend to agree with learned senior counsel for the appellant that proof of plaintiff’s case in default of appearance is predicated in the following pre-conditions as provided for by Order 37 rules 1-7 of the Cross River State (Civil Procedure) Rules i.e.
(a) that the case has been set down for hearing by the registrar;
(b) that the case has been fixed for hearing on the particular date;
(c) that hearing notice has been served on the defendant; and
(d) that the defendant does not appear when the case is called up in court.
Counsel complains that none of the above pre-conditions was met. That is far from the truth. All the pre-conditions were met.
Firstly, there is the condition that the case has been set down for hearing by the registrar. Whether the case is set down for hearing by the registrar or by the court depends on the circumstances of each case. If a case has not been fixed or adjourned in the open court for hearing, it becomes the duty of the registrar to set it down for hearing. Once, however, a case has been dealt with in the open court, the registrar becomes functus officio in so far as setting down the case for hearing is concerned unless directed by the court. In the instant case, the matter has gone into the open court, has been dealt with by the court which on 27th September, 1995 adjourned it to 24th October, 1995 for, inter alia, “hearing of the substantive suit”.
How else can the case he set down for hearing’? Which is more authoritative setting the case down for hearing by the registrar or by the court’? It is my view that pre-condition (a) above is fully complied with.
As regards pre-condition (b) above on the 27th September, 1995, the court fixed the case for hearing on a particular day i.e. 24th October 1995. On that day the case was heard.
On pre-condition (c) above – the need for hearing notice to be served on the defendant becomes necessary if the case was not adjourned in the open court in the presence of the defendant. The record of the court for 27th September 1995 when the case was adjourned for hearing on 24th October, 1995 reads “parties present”.
It does not stop there. The record shows that the defendant said something in court.
The record says: –
“Defendant: Says he met his counsel who said he would be in court. He does not know why he is not here.”
Thus, the record shows that the defendant who is now the appellant in this court was present in the lower court and fully participated in the proceeding on 27th September 1995 when the case was adjourned for hearing on 24th October, 1995.
There is no reason why a hearing notice should be served on him.
On the 24th October, 1995, the appellant as defendant did not appear when the case was called upon. The plaintiff accordingly went on the witness box to prove his case. This is pre-condition (d) above.
All the pre-conditions set out above were met. The appellant cannot justifiably complain.
The principle of fair hearing or audi alteram partem does not require that a party must be heard. This is a misconception which some legal practitioners often fall into. What the principle requires is that the other party should be given an opportunity of being heard. If he throws away the opportunity, that is his own business. He cannot thereafter come to an appeal court to complain about fair hearing. In the case under consideration, the appellant was in court when the case was adjourned for hearing on a particular date. He chose to absent himself from the court on that date. After the hearing on 24th October 1995, the case was adjourned for judgment on 20th November 1995 – a period of almost one month.
He did nothing. On 20th November 1995, that is the day of judgment, he came to court with his counsel and took the judgment. Having lost, he started to complain.
It is too late. There is no repentance in the grave.
There is no merit in this appeal which I also dismiss with costs as stated in the lead judgment.
Appeal dismissed.
Appearances
Dr. J.O. Ibik. SAN (with him. J.O.N. Echezona, Esq) For Appellant
AND
F.O. Onyebueke, Esq For Respondent
