MR. AKIN IRE-OLAPADE & ANOR v. AGBARA ESTATES LIMITED (2011)

MR. AKIN IRE-OLAPADE & ANOR v. AGBARA ESTATES LIMITED

(2011)LCN/4456(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 12th day of April, 2011

CA/I/13/2010

RATIO

DUTY OF THE COURT: WHETHER WHERE A DEFENDANT FAILS TO FILE PLEADINGS WITHIN THE STATUTORY TIME LIMIT AND HE THEN FILES A MOTION TO REGULARISE ITS POSITION, THE COURT MUST CONSIDER ITS MOTION

The fact of failure to file pleadings within statutory time limit, without more, does render them a nullity. See U.B.A. v. Nwora (1978) 2 L.R.N. 149. Now there is a motion by the Defendant to regularise its position. That being the case, it will be foolhardy of the court to go ahead and consider the motion for judgment in default of defence ahead of a motion seeking to regularise the statement of defence to allow for proper joinder of issues in order to determine the matter on the merits. Justice demands that the court should be interested in the substance of the matter. See Falobi v. Falobi (1979)1 NRNLR 169 at 177. Justice is better served where the substance of a matter is examined than where a default judgment is rendered. PER STANLEY SHENKO ALAGOA, J.C.A.

DISCRETIONARY POWER OF COURT: WHETHER WHERE THE COUNSEL IS ABSENT WITHOUT REASONS AND HE HAS A PENDING MOTION TO ARGUE, THE COURT CAN EXERCISE ITS DISCRETION TO EITHER STRIKE OUT THE MOTION OR ADJOURN SAME TO ANY OTHER DATE

DUTY OF COUNSEL: WHETHER ONCE A PARTY OR HIS COUNSEL IS PUT ON NOTICE OF THE HEARING DATE OF A PENDING ACTION IN COURT, IT IS THE RESPONSIBILITY OFTHAT COUNSEL OR THE LITIGANT TO KEEP ABREAST WITH THE TIME-TABLE OF THE LITIGATION

Once a party or his counsel is put on notice of the hearing date of a pending action in court, it is the responsibility of counsel or the litigant to keep abreast with the time-table of the litigation. Both of them cannot be heard to complain of fair hearing if the matter is heard in their absence see the case of Aina v. Obabiolorunkosi (1986) 2 NWLR (Pt.22) 316 at 329 per Kolawole, J.C.A., thus: My understanding of the rules is that after the preliminaries before a matter is ready for hearing namely: service of the writ, entry of appearance and the issues of summons for directions, legal practitioners are obliged to keep themselves informed of the business of the courts. PER JOSEPH SHAGBAOR IKYEGH, J.C.A.

JUSTICES

STANLEY SHENKO ALAGOA Justice of The Court of Appeal of Nigeria

MODUPE FASANMI Justice of The Court of Appeal of Nigeria

JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria

Between

1. MR. AKIN IRE-OLAPADE
2. ENGR. PATRICK NWABUNIE Appellant(s)

AND

AGBARA ESTATES LIMITED Respondent(s)

STANLEY SHENKO ALAGOA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Ruling of Jibodu J. of the High Court of Justice, Abeokuta in the Abeokuta Judicial Division of Ogun State in Suit No. AB/02/2009 delivered on the 16th October 2009. The Appellants’ Notice of Appeal is contained at pages 253-255 of the Record of Appeal and is reproduced hereunder –
“NOTICE OF APPEAL
TAKE NOTICE that the Claimant/Appellants being dissatisfied with the decision more particularly stated in paragraph 2 herein of the High Court of Ogun State, Holden at Abeokuta comprised in the Ruling of Jibodu J., delivered on the 16th October, 2009 DOTH hereby appeal to the Court of Appeal upon the grounds set out in paragraph 3 and will at the hearing of the appeal seek the reliefs set out in paragraph 4.
AND the Appellants further state that the names and addresses of the persons directly affected by the Appeal are those set out in paragraph 5.
2. PART OF THE DECISION COMPLAINED OF:
The whole decision.
GROUNDS OF APPEAL
GROUND ONE:
The learned trial Judge misdirected himself in law in Proceeding to hear and/or entertain the Claimant/Appellants’ Motion on Notice for Orders, inter alia, of interlocutory injunction and to strike out and/or dismiss the same as he so did on the 16th October, 2009 when the Suit was only scheduled on that date for the delivery of a Ruling on which of the two other pending applications, namely, the Claimants’ Notice for Judgment in Default of appearance and/or defence and the Defendant’s Motion on Notice for extension of time, shall be taken first.
GROUND TWO:
The learned trial Judge erred in law in proceeding to hear and/or entertain the Claimant/Appellants’ Motion on Notice for Orders, inter alia, of interlocutory injunction and to strike out and/or dismiss the same as he so did on the 16th October, 2009 when the said application was not fixed for hearing on that or any other date; and, without giving the Claimants a hearing.
GROUND THREE:
The learned trial Judge erred in law in proceeding to hear and/or entertain the Claimant/Appellants’ Motion on Notice for Orders, inter alia, of interlocutory injunction and to strike out and/or dismiss the same as he so did on the 16th October, 2009 when the said application was yet to be moved by the Claimant/Appellants and the same was yet to be fixed for hearing.
GROUND FOUR:
The learned trial Judge erred in law in proceeding to hear and/or entertain the Claimant/Appellants’ Motion on Notice for Orders, inter alia, of interlocutory injunction and to strike out and/or dismiss the same as he so did on the 16th October, 2009 in clear breach of the applicable Rules of Court particularly Order 31 Rule 4, Order 39 Rule 1 (3) of the High Court of Ogun State (Civil Procedure) Rules, 2008.
4. RELIEFS SOUGHT FROM THE COURT OF APPEAL:
i. AN ORDER setting aside the said decision of the High Court of Ogun State, Abeokuta Judicial Division, Holden at Abeokuta and delivered on the 16th October, 2009, per Jibodu J., striking out and/or dismissing the Claimant/Appellants Motion on Notice for Orders, inter alia, of interlocutory injunction filed in this suit.
ii. AN ORDER granting the Reliefs endorsed on the Claimant/Appellants’ Motion on Notice for Orders, inter alia of interlocutory injunction filed in this, as Prayed; AND/OR
iii. AN ORDER that the said application be fixed for hearing and determination before any other Honourable Judge of the High Court of Ogun State, Abeokuta Judicial Division, Holden at Abeokuta other than the Honourable Justice Jibodu.
6. PERSONS DIRECTLY AFFECTED BY THE APPEAL:
S/N     NAMES    ADDRESS
1.     MR. AKIN IRE-OLAPADE
2.     ENGR. PATRICK NWABUNNIE
c/o THEIR LEGAL PRACTITIONERS
ONYEBUCHI ANIAKOR & CO
27, OLUFEMI STREET,
OFF OGUNLANA DRIVE,
SURULERE, YABA, LAGOS.
3. AGBAM ESTATES LTD
c/o ITS LEGAL PRACTITIONERS
PROTEUS LAW OFFICE,
FIRST ASSURANCE HOUSE
(GROUND FLOOR),
1748, MURTALA MUHAMMED WAY,
ADEKUNLE, YABA, LAGOS.
DATED this 21st October, 2009
(Sgd.)
I. O. ANIAKOR ESQ.
ONYEBUCHI ANIAKOR & CO
CLAIMANT/APPELLANTS’ LEGAL PRACTIONERS
27, OLUFEMI STREET, OFF OGUNLANA DRIVE
SURULERE, LAGOS
OR C/O OLUSESAN A. BANKOLE & CO
2A, KUTO ROAD, ABEOKUTA, OGUN STATE
FOR SERVICE ON:
THE DEFENDANT/RESPONDENT,
c/o ITS LEGAL PRACTITIONERS, KUNLE CAREW ESQ.,
PROTEUS LAW OFFICE, 1ST ASSURANCE HOUSE, 174B,
MURITALA MUHAMMED WAY, ADEKUNLE, YABA, LAGOS
OR
C/O LATEEF ADEGBITE & CO, 78/80, ADEKUNLE FAJUYI WAY
AGO-OBA, ABEOKUTA, OGUN STATE”
For a fuller and more thorough understanding of the facts and sequence of events leading up to the Ruling of the 16th October 2009 it is necessary to go into the records of the Court. The proceedings of the High Court that are germane to this appeal are –
(1) the proceedings of the 26th May 2009 at pages 160-161 of the Record of Appeal
(2) the proceedings of the 17th June 2009 at Page 178 of the Record;
(3) the proceedings of the 29th July 2009 at Page 243 of the Record;
(4) the proceedings of the 12th August 2009 at Pages 244-245 of the Record and
(5) the proceedings of the 16th October 2009 at pages 246-252 of the Record.
The Record for the 26th May 2009 shows that the Claimants/Appellants had a motion dated the 15th May 2009 which was filed on the 19th May 2009 and that the motion had been served on the Defendant/Respondent. Appellants’ Counsel I. O. Aniakor was present and informed the Court that the Claimants/Appellants had a motion dated the 15th May 2009 which was filed on the 19th May 2009 and that the motion had been served on the Defendant/Respondent. Shortly thereafter at 9.30 a.m. Counsel for the Defendant F. A. Babatunde with him Akinola Owolabi arrived in court. Mr. Babatunde after apologising to the Court for coming late said he had just filed an application that morning dated the 15th May 2009. He confirmed receipt of the Claimants/Appellants’ motion dated the 15th May 2009. He sought for an adjournment as according to him parties were exploring possibilities to settle the matter out of Court. Counsel for the Claimants/Appellants opposed the application for adjournment contending that even if his application for judgment is not ripe, he had a pending motion for injunction which he was prepared to move. Mr. Babatunde confirmed receipt of the motion and that the motion was indeed ripe for hearing. He however still sought for an adjournment because there were moves to settle the matter. Mr. Aniakor said the Claimants were not aware of settlement moves. The learned trial Judge noted in his ruling that the defendant/Respondent’s Counsel had not helped the Court as the interlocutory injunction was indeed ripe for hearing. However in view of the settlement that the Defendant/Respondent wanted to propose, the Court would adjourn for the parties to explore possibilities for settlement of the matter out of Court. The case was then adjourned to the 17th June 2009 as agreed by all counsel.
On the 17th June 2009 (page 178 of the Record of Appeal) both Counsel were present in Court. Mr. Aniakor Counsel for the Claimants/Appellants informed the Court that parties met to discuss settlement but that the Claimants had not received the proposal of the Defendant/Respondent. Mr. Babatunde for the Defendant/Respondent confirmed this and asked for a further date to finalise settlement. The Court then adjourned till 29th July 2009 for report of settlement.
On the 29th, July 2009 (page 243 of the record) Mr. Babatunbe Counsel for the Defendant/Respondent was present in court but the claimants/Appellants’ counsel was absent. Mr. Babatunde informed the court that he had sent a letter dated 13th July 2009 confirming Defendant/Respondent’s proposal on settlement out of court and that the claimants/Appellants’ counsel had also replied by letter dated 20th July 2009 stating that the proposal was not acceptable to the Claimants/Appellants. He (Counsel for the Defendant/Respondent) said it would appear that settlement moves had failed and that he had filed a statement of defence with accompanying documents dated 24th July 2009. He also said he had also filed a motion to regularise the Defendant/Respondent’s pleadings dated 29th July 2009 that morning. He asked for the 12th August to move the motion. The Court ruled as follows –
“Case is adjourned till August 12 for mention and possibly for the hearing of Defendant’s motion or any ripe motion. Hearing notice to issue and be served on the Claimants.”
On the 12th August 2009 (pages 244-245 of the Record of Appeal) both counsel for the parties Mr. I. O. Aniakor for the Claimants/Appellants and F. A. Babatunde for the Defendant/Respondent were present. Mr. Aniakor informed the Court that there were four pending motions, two by the Claimants/Appellants and two by the Defendant/Respondent. Mr. Aniakor sought to move the motion dated 15th May 2009 for judgment in default of appearance. Mr. Babatunde said that his own application is for regularisation dated 29th July 2009. The Court then asked both Counsel to address it on which motion to take first. Mr. Aniakor argued that his motion for judgment in default was filed on the 15th May 2009 and served same day on the Defendant/Respondent and that it was not until the 29th July 2009 nearly three months thereafter that the Defendant/Respondent thought it fit to approach the Court for extension of time. He said there was inordinate delay. Mr. Aniakor said he would ask for substantial cost and withdraw the application. Mr. Babatunde in reply said his own (Defendant/Respondent’s) motion should be taken first. He said it is settled that where there are two applications before the Court, one to kill and the other to save, the Court is enjoined to take the application to save first. Mr. Babatunde said parties were exploring settlement and that was what led to earlier adjournments. It was when settlement appeared to have broken down that he filed the statement of defence. Mr. Babatunde urged the Court to take his motion first. Mr. Aniakor referred the Court to INAKOJU V. ADELEKE and informed Court that he would forward the authority.
The Court thereupon reserved ruling to the 16th October 2009. On the 16th October 2009 (pages 246-252 of the Record of Appeal) Claimants/Appellants’ Counsel Mr. Aniakor was absent frorm Court while Counsel for the Defendant/Respondent Mr. Babatdnde was present. The Court’s ruling on the 16th October 2009 as contained at pages 246-252 of the Record of Appeal is reproduced hereunder –
IN THE HIGH COURT OF OGUN STATE
IN THE ABEOKUTA JUDICIAL DIVISION
HOLDEN AT ABEOKUTA
SUIT NO. AB/02/2009
BETWEEN:
1. MR AKIN IRE-OLAPADE
2. ENGR. PATRICK NWABUNNE …… CLAIMANTS
AND
AGBARA ESTATE LTD   ……..   DEFENDANT
BEFORE HON. JUSTICE A. O. JIBODU – JUDGE
ON FRIDAY THE 16TH DAY OF OCTOBER, 2009
RULING
On 12-08-09 when this matter came up, Claimants’ Counsel, I. O. Aniakor, Esq. informed the court that 4 motions were pending. 2 filed by the Claimants and 2 by the Defendant.
Subsequently, Claimants Counsel referred me to Claimants’ motion dated 15-05-09 filed on 19-05-09 and sought to move same first. The motion is for the following prayers; and I quote:
1. “AN ORDER entering final judgment in favour of the Claimants upon their Statement of Claim in this suit and that the declaratory and other reliefs inclusive of the Pecuniary damages claimed by the Claimants’ sole witness sworn Deposition and the Documents to be relied upon filed in this suit on behalf of the Claimants in default of the Defendant’s appearance and/or defence. AND/OR
2. AN ORDER setting the Claimants’ claims in this suit down for trial and that the same be heard and finally determined upon the Claimant’s sole witness sworn Deposition and the Documents to be relied upon filed in this suit on behalf of the Claimants in default of the Defendant’s appearance and/or defence.”
Defence Counsel, F. A. Babatunde, Esq on his part drew my attention to Defendant’s motion dated 29-07-09 for the following orders:
“1. Extending the time within which Defendant/Applicant may file and serve its statement of Defence; and
2. Deeming as properly filed within the extended time and served, the Statement of Defence dated and filed herein on 24th July 2009 and already served on Claimant’s Counsel”.
In spite of being aware of Defendant’s motion dated 29-07-09, which indeed was brought to the court’s attention in his presence, Claimant’s Counsel was vehement in his insistence on moving his motion for judgment; and moving it first. In the circumstance, the court directed both Counsel to address it on the issue of which of the motions to take first.
Claimant’s Counsel commenced by conceding that at times it might be proper to consider applications for extension of time when one for judgment in default is pending, but, according to him, this should not be so when such an application is calculated to over reach the applicant and when no circumstance would justify the same. Counsel referred to the records of the Court to establish the date the action was filed, the date the motion for judgment was filed and the number of appearances put in vis-a-vis the date the Defendant filed the motion to regularise his position.
Defence Counsel called the attention of the court to the fact that the Defence has filed a Statement of Defence albeit out of time. He said the motion he sought to move is to regularise the position of the Defendant. He submitted that where the court is faced with an application to determine a matter at the preliminary stage and another to save the matter from being so determined, it is settled that the court is enjoined to take the application aimed at saving the action.
My record shows that truly the Defendant filed a Statement of Defence with the requisite accompanying documents on 24-07-09. I cannot ignore this process. The fact of failure to file pleadings within statutory time limit, without more, does render them a nullity. See U.B.A. v. Nwora (1978) 2 L.R.N. 149. Now there is a motion by the Defendant to regularise its position. That being the case, it will be foolhardy of the court to go ahead and consider the motion for judgment in default of defence ahead of a motion seeking to regularise the statement of defence to allow for proper joinder of issues in order to determine the matter on the merits.
Justice demands that the court should be interested in the substance of the matter. See Falobi v. Falobi (1979)1 NRNLR 169 at 177. Justice is better served where the substance of a matter is examined than where a default judgment is rendered.
I am therefore in total agreement with the Learned Defence Counsel, which is in line with practice and procedure, that the proper stance of the court should be to entertain the motion seeking to regularise the Defendant’s position first; and it is so ordered,
(Sgd)
A. O. Jibodu
Judge,
16-10-2009″
In essence the learned trial Judge by his Ruling of the 16th October 2009 allowed Counsel for the Defendant/Respondent to move his motion seeking to regularise the defendant’s position first. Mr. Babatunde thereupon moved the motion dated 29th July 2009 for extension of time to file the Statement of Defence and to deem same as filed. That application was granted. Mr. Babatunde then drew the attention of the Court to the Claimants/Appellants’ motion for judgment in default dated the 15th May 2009 saying that same had been overtaken by events and that Claimants/Appellants’ Counsel was not in court. He urged us to strike out the motion. The learned trial judge in his ruling noted that the claimants/appellants’ motion for judgment in default dated the 15th May 2009 had indeed been overtaken by events and that claimants/Appellants counsel being aware of the fixture for that day ought to at least have been in court to withdraw same but was absent from court. He thereupon struck out motion. Mr Babatunde also referred the court to the Claimants/Appellants’ motion dated the 23rd December 2008 for interlocutory injunction and urged the Court to strike it out with N15,000.00 costs. The learned trial Judge in his ruling noted that the Claimants/Appellants’ Counsel was in Court on the 12th August 2009 when the matter was adjourned to the 16th October 2009 and that Counsel was absent without conveying any reason by letter or otherwise. He also noted in this ruling that the Claimants/Appellants were also absent. He did not therefore find it difficult to agree with the Defendant/Respondent’s Counsel that there was a lack of diligent prosecution of the motion in question by the Claimants/Appellants. He accordingly struck out the Claimants/Appellants’ motion for interlocutory injunction and related reliefs dated the 23rd December 2008 while making no order as to costs.
These are the facts as borne out by the Records of the Court leading to this appeal.
From the four Grounds of Appeal contained in the Notice of Appeal, the Appellants have formulated the following two issues for the determination of this Court –
(i) Whether it is open to the learned trial judge to proceed on a date in which ruling was reserved on the case with the hearing of the same and/or to entertain and hear any pending applications therein without any prior notice to that effect and without hearing a party thereto such as the Claimants/Appellants?
(ii) Whether given the clear provisions of Order 39 Rule 1(3) of the High Court of Ogun State (Civil Procedure) Rules 2008 the Defendant/Respondent could competently be heard on the Claimants/Appellants’ said motion on Notice for orders inter alia of interlocutory injunction in the absence of any compliance with the provisions thereof and or an order extending time in its favour in respect thereof?
These issues are contained in paragraph 3.1 at page 5 of the Appellants’ Brief of Argument dated the 25th January 2010 and filed on the 26th January 2010.
Respondent has formulated the following sole issue for the determination of this Court –
“Whether in the circumstances of this case the lower Court appropriately exercised its discretion when it struck out the Appellants’ motion for interlocutory injunction for want of diligent prosecution.”
This sole issue is contained in paragraph 3 at page 1 of the Respondent’ Brief of Argument.
When this Appeal came up for hearing on the 16th February 2011, neither the parties nor their Counsel was present in Court. From the Court’s Records it was discovered that on the 8th July 2010 when this appeal was adjourned to the 16th February 2011 for hearing both Counsel were present in Court. This Court therefore invoked the provisions of Order 17 Rule 9(4) of the Court of Appeal Rules 2007 to hear the Appeal as the Briefs of Arguments of the Appellants and Respondent had been filed. Learned Counsel for the Respondent has in reliance on OKUMODI V. SOWUNMI (2005) 2 NWLR (PART 856) 26-27 submitted that issue 3.1(ii) i.e. the 2nd issue in the Appellants’ Brief of Argument is incompetent since it does not arise from the grounds of Appeal. There is no gainsaying that fact. I think the sole issue for determination is whether the learned trial Judge exercised its discretion rightly in striking out the Appellants’ application for interlocutory injunction dated 23rd December 2008 in the court’s ruling of the 16th October 2009. I had earlier reproduced from the Records of the court below, the chronological sequence of events that led to the striking out of the said Appellants’ motion for interlocutory injunction. It all had to do with discretion and whether that discretion of the Court to so strike out the motion for interlocutory injunction filed by the Appellants and indeed any other motion struck out by the learned trial Judge on 16th October 2009 was discretion properly exercised. The learned trial Judge referred to the court’s proceedings of the 12th August 2009 from which date the matter was adjourned to the 16th October 2009 and noted quite rightly that claimants/Appellants’ counsel was in court. If he was going to be absent from court on the 16th October 2009 he should have had the courtesy of informing the Court either in writing or by some other means. Not only was Counsel absent from court on the 16th October 2009, his clients the Claimants/Appellants were also absent. It is instructive at this stage to once again go into the Record of the court’s proceedings for the 12th August 2009. This is contained at pages 244-245 of the Record of Appeal.
On that day Counsel for the Claimants/Appellants Mr. Aniakor had intimated the court that there were four pending motions before the Court, two filed by the Appellants and two filed by the Respondent. The Issue that confronted the Court was which motions were to be heard first. The Court after hearing Counsel on both sides then adjourned to the 16th October 2009 for ruling. The Court’s ruling of the 29th July 2009 (page 243 of the Record of Appeal) is also instructive.
The Court ruled as follows,
“Case is adjourned till August 12 for mention and possibly for the hearing of the defendant’s motion or any ripe motion. Hearing Notice to issue and be served on the Claimants.”
(Underling mine).
Thus on the 12th August 2009 when Claimants/Appellants’ counsel Mr. Aniakor informed the Court that there were four pending motions before the Court he was in fact not saying anything new. The question at all material times was “in what order were the pending motions to be heard”?

If counsel was absent without reasons and he had a pending motion to argue the Court had the discretion of either striking out the motion or adjourning same to any other date. In JONASON TRIANGLE LTD. V. C.M. & PARTNERS LTD. (1999) 1 NWLR (PART 588) 555 at 570 the Court of Appeal held that if a matter was fixed for hearing to the knowledge of the Appellants who chose not to be in Court whatever decision that was arrived at would not be set aside.
The appeal therefore lacks merit and is accordingly dismissed and the Ruling of Jibodu J. of the High Court Abeokuta delivered on the 16th October 2009 striking out the motion for interlocutory injunction filed by the Appellants is hereby affirmed. I however make no order as to costs.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree with the judgment prepared by my learned brother, Alagoa, J.C.A.
Once a party or his counsel is put on notice of the hearing date of a pending action in court, it is the responsibility of counsel or the litigant to keep abreast with the time-table of the litigation.
Both of them cannot be heard to complain of fair hearing if the matter is heard in their absence see the case of Aina v. Obabiolorunkosi (1986) 2 NWLR (Pt.22) 316 at 329 per Kolawole, J.C.A., thus:
My understanding of the rules is that after the preliminaries before a matter is ready for hearing namely: service of the writ, entry of appearance and the issues of summons for directions, legal practitioners are obliged to keep themselves informed of the business of the courts.”
There is no merit in the appeal, -I dismiss it, and abide by the consequential orders contained in the judgment of my learned brother, Alagoa, J.C.A.

MODUPE FASANMI, J.C.A.: I have had the opportunity of reading in advance the lead Judgment of my learned brother, S. S. Alagoa, J.C.A, just delivered.
I agree with his reasoning and conclusion reached. The appeal lacks merit and it is accordingly dismissed by me. I abide with the consequential orders made therein including cost.

Appearances

Counsel were absent at Hearing.For Appellant

AND

Counsel were absent at Hearing.For Respondent