MR. ANTHONY OBIAJULU OSAGWU v. ENGR. JOE BOSAH
(2019)LCN/13684(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 23rd day of July, 2019
CA/B/100/2012
JUSTICES
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
MOORE ASEIMO ABRAHAM ADUMEIN Justice of The Court of Appeal of Nigeria
Between
MR. ANTHONY OBIAJULU OSAGWU
(Trading under the name and style Bar De Graceland) Appellant(s)
AND
ENGR. JOE BOSAH Respondent(s)
RATIO
THE ESSENCE OF A PRE-TRIAL CONFERENCE
In Ikeyi v. Crown Realities Plc. (2010) 6 NWLR Pt. 1189 Pg. 114 at 127, the Court, per Rhodes-Vivour JCA (as he then was) expressed the purpose of pre-trial conference as follows:
?A pre-trial conference is an extraordinary procedure before trial where parties are encouraged to resolve dispute or settle the case. Order 25 of the High Court of Lagos State (Civil Procedure) Rules 2004 is designed to save the precious judicial time, expense involved in a full blown trial and avoid unnecessary litigation when there are no longer any live issues after a successful pre-trial conference or after some of the live issues have been dispensed with. Successful pre-trial conference reduces drastically a judge?s docket, thereby hopefully ensuring speedy conclusion of contested case. PER OGUNWUMIJU, J.C.A.
WHETHER OR NOT ISSUANCE AND PROPER SERVICE OF HEARING NOTICE IS A CONDITION PRECEDENT TO THE EXERCISE OF JURISDICTION OF THE COURT
I agree with the learned Appellant? counsel that issuance and proper service of hearing notice is a condition precedent to the exercise of jurisdiction of the Court since any judgment obtained against a party who has not been served with a hearing notice is a nullity and therefore cannot stand. However, where a party or his counsel was in Court when the case was adjourned to another further date, it will be inappropriate for such a party to insist that failure to serve hearing notice on him or his counsel caused his failure to appear in Court on the next adjourned date. See NACRDB Ltd. & Anor. v. Mbio Oku Ikot Oku Odung Multi-Purpose Co-op Society Ltd. & Ors. (2013) LPELR- 20202 (CA); Gabdo v. Usman (2015) LPELR-25678 (CA). It is when a case is not fixed for a definite day and for a definite action to be done in the open Court, that the registrar is obligated to serve hearing notices on the parties regarding the date and cause or matter adjourned to the next date. See Access Bank PLC v. Sijuade (2016) LPELR-40188 (CA).
The essence of hearing notice is to put on notice or notify or inform a party or his counsel who are not aware of a date set down by the Court in their absence for the hearing of the case. Therefore, issuance or service of hearing notice only arises where or when a party was not aware of a date fixed by the Court for the hearing of a case. PER OGUNWUMIJU, J.C.A.
THE FUNDAMENTAL PRINCIPLE OF FAIR HEARING
There is no doubt that the principle of fair hearing as enshrined in the 1999 Constitution of the Federal Republic of Nigeria (as amended) is not a technical doctrine, it is a rule of substance which goes beyond the mere technical question of whether a party is entitled to be heard before a decision is reached, but whether he has been duly accorded an opportunity of being heard.
Fair hearing means giving equal opportunity to the parties to be heard in the litigation before the Court. The constitutional principle of fair hearing is to the advantage of both parties in litigation. However, where parties are given equal opportunity to be heard as in this case, they cannot complain of breach of the fair hearing principles. Dangote Gen ile Products Ltd. & Ors v. HASCON Associates (Nig.) Ltd. & Anor. (2013) LPELR-20665 (SC); (2013) 16 NWLR Pt. 1379 Pg. 60; INEC v. Musa (2003) LPELR-24927 (SC); (2003) 3 NWLR Pt. 806 Pg. 72. In the instant case, parties were aware that the Pre-Trial conference was set down for 8/2/12, and no matter the explanation given by the Appellant?s counsel in justifying their absence at the Pre-Trial Conference, there is no evidence to substantiate the fact that the letter was brought to the attention of the trial judge before judgment was entered. Relevant facts and applicable law were taken into consideration to reach the conclusion. See Duru v. FRN (2013) LPELR-19930 (SC) Pg. 17 Par. E-F.; Sagay v. Sajere (2000) 6 NWLR Pt. 661 Pg 360 at 364- 365. PER OGUNWUMIJU, J.C.A.
HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering The Leading Judgment): This is an appeal against the default judgment of the Delta State High Court delivered by Honourable Justice T.C. Makwe on 8/2/12, wherein judgment was given against the Appellant.
Below are the facts that led up to this appeal:-
The Respondent, Claimant at trial, filed a writ of summons/Statement of Claim on 18/1/2011. The Claim at the trial Court against the Appellant are as follows:
(a) An order of this Honourable Court compelling the Defendant to abate his nuisance value which disturbs the Plaintiff?s right to enjoy the comfort of his home as complained in this suit.
(b) An order of the Honourable Court for injunction restraining the Defendant, his servant(s), aid(s), privies or any other person(s) whatsoever name called from playing any form of music loudly within and around the business premises of the defendant popularly known as ?BAR DE GRACELAND? from 7PM daily to 5AM the next day.
(c) N500, 000 (Five Hundred Thousand Naira) General Damages against the Defendant for his nuisance value complained in this suit.
?
After the exchange of pleadings between parties, the various Pre-Trial Conference Information Sheets were filed in line with the rules of High Court of Delta State. The Matter came up on 8/2/12 for Pre-Trial Conference before the learned trial judge but neither the Appellant nor his counsel was present. The Respondent?s Counsel moved the Court to enter judgment for the Respondent in default of the attendance in Court by the Appellant and his counsel and the trial judge granted same. The Appellant?s application to set aside that judgment was later dismissed.
Dissatisfied with the default judgment, the Appellant filed Notice of Appeal on 9/3/12. Record was transmitted on 2/5/12. Appellant?s brief was filed on 27/8/12 and deemed filed on 6/6/13.
In the instant appeal, the Appellant filed a motion on Notice on 28/8/13 praying this Honourable Court to have the appeal heard on the Appellant?s brief alone, Respondent?s counsel having failed, refused or neglected to file his brief of argument after being served with the Appellant?s brief. The prayer was granted by this Court on 3/12/14. Also, the Respondent was absent at the
hearing of this appeal on 18/6/19, but there is a report of service made by Blessing Eko, a Bailiff of this Court on 13/6/19 to the effect that Hearing Notice was pasted on the last known address of the Respondent. It is obvious that the Respondent is not willing or unable to defend this appeal. I would in any event determine whether or not the Appellant?s appeal is sustainable in law on the issues canvassed in the Appellant?s brief of argument.
Since the Appeal was heard on the Appellant?s brief alone and the Respondent did not file brief of argument to respond to the issues and points canvassed in the Appellant?s brief, only the submissions by the Appellant are available for consideration in the determination of the appeal. However, failure of the Respondent to file a Respondent?s brief is of no moment because an Appellant must only succeed or fail on the strength of the legal arguments canvassed before the Court. See Ogbu & Anor v. State (2007) LPELR-2289 (SC); (2007) 5 NWLR Pt. 1028 Pg. 635. In my humble view, the absence of a Respondent?s brief will not place the Appellant at undue advantage since Respondent
already has in its favour, a judgment of the trial Court.
Vicar Ikwogu Oguafor Esq. who settled the Appellant?s brief identified 2 (two) issues for the determination of this appeal to wit:
(i) Whether the right to fair hearing and judgment of the Honourable Court is not a fundamental breach of the Appellant fundamental Rights as enshrined in Section 36 (1) of the 1999 Constitution of the Federal Republic of Nigeria as amended
(ii) Whether the Trial Court exercised his discretion judicially and judiciously when in the face of evidence before the Court (letter of adjournment) proceeded to hear the case and deliver judgment in favour of the Respondent in default of appearance without trial of the suit.
In my humble but firm view, I feel this appeal can be determined with a sole issue as follows:
Whether the trial Court exercised its discretion judicially and judiciously to have entered judgment in favour of the Respondent
SOLE ISSUE
Whether the trial Court exercised its discretion judicially and judiciously to have entered judgment in favour of the Respondent.
?
Learned Appellant?s counsel argued that the
adjudication and subsequent judgment of the suit on the 8/2/2012 in the face of counsel?s letter for adjournment runs contrary to the provisions of Section 36 (1) of the 1999 Constitution of the Federal Republic of Nigeria as amended, particularly as it relates to the right of fair hearing.
Counsel submitted that the Appellant was denied the right of fair hearing and suffered miscarriage of justice when he was not given the opportunity to defend the suit on issues joined in their pleadings.
Learned counsel argued that rather than considering the fact that a letter was written by the Appellant?s counsel to say that hearing notice of a criminal trial was served on him on the 7/2/12 and that he had to appear for the criminal trial on the same date, the lower Court went ahead and entered judgment in the absence of the Appellant and his counsel.
Learned counsel submitted that the issue of application for adjournment and the grant of same is a matter entirely within the discretionary jurisdiction of the Court in accordance with the peculiar facts and circumstances of the case and must be patently clear from the Record why the discretion is
exercised one way or the other in order to ensure that justice is done to both parties. Counsel cited Shell Petroleum Development Company Nigeria Ltd. v. Udi (1996) 6 NWLR Pt. 455 Pg 483 at 496 (G-A); Ceekay Traders Ltd. v. General Motors Company Ltd. & Ors. (1992) 2 NWLR Pt. 222 Pg. 132 at 162-163 (H-A); Daniang v. Teachers Service Commission (1996) 5 NWLR Pt. 446 Pg. 97 at 103 (F); 107 (D-E) and (E-G); University of Lagos & Anor. v. Aigoro (1985) NWLR Pt. 1 Pg. 143.
Counsel further submitted that the discretion was wrongly exercised because the time frame for Pre Trial Conference under Order 25 Rule 4 of the High Court (Civil Procedure) Rules of Delta State, 2009 is within three (3) months of its commencement and also because the trial Court did not order the Respondent to enter the witness box for proof of his case against the herein Appellant since issues had been joined in the pleadings exchanged between the parties. Counsel cited United Spinners Ltd. v. Chartered Bank Ltd (2001) FWLR Pt.66 Pg. 640 at 657 (F-G); Eronini & Ors v. Iheuko (1989) 2 NWLR Pt. 101 Pg 46 at 61 (A); Iroegbu & Anor. v. Okwordu & Anor. (1990) 6 NWLR Pt. 159
Pg. 643 at 669 (B-F); Daniang v. Teachers Service Commission (Supra).
Counsel argued that the letter for adjournment was written because of the cogent reason of a hearing notice served on the counsel on the 7/2/12 for a criminal matter due on the 8/2/12 at the High Court of Justice Obiaruku in Charge No. HOB/1C/2012- The State v. Uchejim Anthony Onyeka & 11 Ors.
Learned counsel submitted that from the facts of the case, the exercise of discretion by the trial Court with respect to the provisions of Order 25 Rules 6 (b) of the High Court (Civil Procedure) Rules of Delta State, 2009 was not judicial and judicious because the said letter of adjournment and reason for the Appellant?s absence was right before the Court.
Counsel argued that the trial Court?s proceeding to judgment without proof of case by evidence from the claimant/Respondent amounted to breach of the principle of justice or of fair hearing. Counsel relied on Cross Lines Ltd. v. Thompson (1993) 2 NWLR Pt. 273 Pg. 74 at 80 (E-F) and 80 (D-E).
Counsel opined that it would have been proper for the Court to cause hearing notice to be issued to the Appellant because
any judgment obtained against a party who has not been served with a hearing notice is a nullity and therefore cannot stand. This is because the question of parties having notice of a hearing before a matter is heard is fundamental as it affects not only the form, but goes to the root of the conception of the proper procedure in litigation. Counsel cited United Bank of Africa PLC v. Okonkwo (2004) 5 NWLR Pt. 867 Pg. 445 at 465 Para. C-H; Hon Justice Nwaogwugwu v. President of The Federal Republic of Nigeria & Ors. (2007) 6 NWLR Pt. 1030 Pg. 237 at 271 para. B-D
Counsel argued that an essential condiment of fair hearing is that a Court must hear both sides to a case and consider all material issues before reaching a decision. A hearing cannot be said to be fair if any of the parties is refused a hearing or denied the opportunity to be heard or present his case. Counsel cited: National Assembly & Anor. v. CEE Chris Investment Company Ltd. (2008) 5 NWLR Pt. 1081 Pg. 519 at 543-544 Par H-C; Ushie v. Edet & Anor. (2010) 6 NWLR Pt. 1190 Pg. 386 at 405 para A-C.
Counsel submitted that the appellate Court will interfere with the exercise of
discretion of a lower Court on special circumstances like when same is exercised on wrong and insufficient materials or substantial irregularity and in all cases where it is in the interest of justice to interfere. Counsel cited Waziri v. Gumel & Anor. (2012) ALL FWLR (Pt. 632) Pg. 1660 at 1678 (A-G); Lead Merchant Bank Ltd. v. Salami & Ors (2009) ALL FWLR Pt. 404 Pg. 1587 at 1600-1601 (F-A); Ugwu v. Emenogba (2009) ALL FWLR Pt. 499 Pg. 496 at 514 (A-B). Counsel argued that justice of the case will be better met when parties defend the suit to its logical conclusion before judgment is reached. Counsel cited Madam Atiku & Anor. v. Yola Local Government (Supra) at 496 (B-E).
Counsel argued that the refusal of the trial judge to set aside the judgment was not reasonable in the circumstances of this case.
OPINION
This appeal bothers on whether the trial Court was right to have delivered judgment at the Pre Trial Conference in favour of the Respondent pursuant to the provisions of Order 25 Rules 6 (b) of the High Court (Civil Procedure) Rules of Delta State, 2009.
A pre-trial conference is aimed at resolving the dispute or
streamlining the area of contention by the parties before trial. It is not meant to reap away the case of a party. Parties are encouraged to speedily conclude pre trial conferences. In Ikeyi v. Crown Realities Plc. (2010) 6 NWLR Pt. 1189 Pg. 114 at 127, the Court, per Rhodes-Vivour JCA (as he then was) expressed the purpose of pre-trial conference as follows:
?A pre-trial conference is an extraordinary procedure before trial where parties are encouraged to resolve dispute or settle the case. Order 25 of the High Court of Lagos State (Civil Procedure) Rules 2004 is designed to save the precious judicial time, expense involved in a full blown trial and avoid unnecessary litigation when there are no longer any live issues after a successful pre-trial conference or after some of the live issues have been dispensed with. Successful pre-trial conference reduces drastically a judge?s docket, thereby hopefully ensuring speedy conclusion of contested case?
?Let me start with the issue relating to whether hearing notice should have been served on the Appellant in the circumstances of this case. I agree with the learned Appellant?s
counsel that issuance and proper service of hearing notice is a condition precedent to the exercise of jurisdiction of the Court since any judgment obtained against a party who has not been served with a hearing notice is a nullity and therefore cannot stand. However, where a party or his counsel was in Court when the case was adjourned to another further date, it will be inappropriate for such a party to insist that failure to serve hearing notice on him or his counsel caused his failure to appear in Court on the next adjourned date. See NACRDB Ltd. & Anor. v. Mbio Oku Ikot Oku Odung Multi-Purpose Co-op Society Ltd. & Ors. (2013) LPELR- 20202 (CA); Gabdo v. Usman (2015) LPELR-25678 (CA). It is when a case is not fixed for a definite day and for a definite action to be done in the open Court, that the registrar is obligated to serve hearing notices on the parties regarding the date and cause or matter adjourned to the next date. See Access Bank PLC v. Sijuade (2016) LPELR-40188 (CA).
The essence of hearing notice is to put on notice or notify or inform a party or his counsel who are not aware of a date set down by the Court in their absence for
the hearing of the case. Therefore, issuance or service of hearing notice only arises where or when a party was not aware of a date fixed by the Court for the hearing of a case. It is clear from the Record that the Appellant herein was aware of the date set down for the Pre-Trial conference. At Pg. 53 of the Record the trial Court stated during the proceedings of 6/12/2011 as follows:
?The main case is adjourned with the consent of counsel to 8/2/12 for pre-trial conference?.
The case was adjourned to 8/2/12 for Pre-Trial conference with the consent of Counsel. The Appellant who was aware of the hearing date having consented to 8/2/12, cannot turn around to complain that he was not served hearing notice.
Also, the argument that the Trial Court should have ordered that hearing notice be served on the Appellant for the last time since the Appellant and his counsel were not in Court the first day of the Pre-Trial Conference in view of the provisions of Order 25 of the High Court (Civil Procedure) Rules of Delta State, 2009 is totally misconceived.
Order 25 Rule 6 of the Rules provides thus:
?6. If a party or his legal
practitioner fails to attend the pre trial conference or obey a scheduling or pretrial order or is substantially unprepared to participate in the conference or fails to participate in good faith the judge shall-
(a) In the case of the Claimant dismiss the claim;
(b) In the case of the defendant enter final judgment against him.
Provided that any judgment given under this rule may be set aside upon an application made within 7 days of the judgment or such other period as the pre trial judge may allow not exceeding the pretrial conference period. The application shall be accompanied by an undertaking to participate effectively in the pre trial conference.?
From the provisions of Order 25 Rule (6), it is apparent that the trial Court has the power to enter judgment at any stage of the Pre-Trial Conference including the first day, if the party or his counsel fails to attend or obey a scheduling or pretrial order or is substantially unprepared to participate in the conference or fails to participate in good faith. See Mutual Benefit Assurance Plc. v. Prosper Funds Ltd. (2018) LPELR-44799 (CA). In the instant case, neither the party nor his
counsel was present at the Pre-Trial Conference.
The justification of the Appellant for his absence on the adjourned date was that he wrote a letter of adjournment to the trial Court in view of an urgent hearing notice served on him on 7/2/12 for a criminal matter in Charge No. HOB/1C/2012- The State v. Uchejim Anthony Onyeka & 11 Ors that was scheduled for the same date with the Pre trial conference. According to the learned Appellant?s Counsel, the trial Court should have adjourned the Pre-Trial Conference in the interest of justice and to give all parties fair hearing.
I have thoroughly read the Record and I could not find anything to show that the purported letter was before the learned trial judge as at 8/2/12 when the default judgment was delivered. No reference was made to the purported letter as being part of the proceedings of that day. An appellate Court and indeed parties are bound by the Record of Appeal. It is presumed correct and accurate until the contrary is shown by affidavit. A party who thus wishes to challenge the correctness or authenticity of a record of appeal must file an affidavit stating the facts which are in his
opinion the true version of the proceedings of the trial Court. The said affidavit must be served on the judge and the Registrar of the Court concerned. See Adegbuyi v. APC & Ors. (2014) LPELR-24214 (SC); Ogli Oko Memorial Farms Ltd. v. Nigerian Agricultural and Co-operative Bank Ltd. (2008) 4 SCNJ 436; Okali & Anor. v. Okali & Anor. (2017) LPELR-42838 (CA).
The Appellant did not challenge the Record of appeal, it is therefore presumed correct. There is nothing in the Record to show that the letter of adjournment was before the learned trial judge as at 8/2/12 when the judgment was delivered. The Appellant in the circumstances of this case could have impugned the Record of Proceedings of the lower Court by filing an affidavit and setting out the facts or part of the proceedings as wrongly stated in the Record before the lower Court. An additional record showing that the letter was before the learned trial judge when judgment was delivered would have been transmitted to this Court to consider in this appeal.
?Why did the Appellant?s counsel feel the need to write a letter of adjournment if he was unaware of the date of adjournment
and needed to be reminded by a hearing notice?
In any event, I do not agree that the Appellant was denied fair hearing, since judgment was delivered based on the facts available before the trial judge and as evident in the Records. First it is obvious on the Record that the Appellant was aware of the hearing date for the Pre-Trial Conference and secondly, there is nothing on the Record to show or evidence that the said letter of adjournment was before His Lordship as at when judgment was delivered at the Pre-Trial Conference.
There is no doubt that the principle of fair hearing as enshrined in the 1999 Constitution of the Federal Republic of Nigeria (as amended) is not a technical doctrine, it is a rule of substance which goes beyond the mere technical question of whether a party is entitled to be heard before a decision is reached, but whether he has been duly accorded an opportunity of being heard.
Fair hearing means giving equal opportunity to the parties to be heard in the litigation before the Court. The constitutional principle of fair hearing is to the advantage of both parties in litigation. However, where parties are given equal
opportunity to be heard as in this case, they cannot complain of breach of the fair hearing principles. Dangote Gen ile Products Ltd. & Ors v. HASCON Associates (Nig.) Ltd. & Anor. (2013) LPELR-20665 (SC); (2013) 16 NWLR Pt. 1379 Pg. 60; INEC v. Musa (2003) LPELR-24927 (SC); (2003) 3 NWLR Pt. 806 Pg. 72. In the instant case, parties were aware that the Pre-Trial conference was set down for 8/2/12, and no matter the explanation given by the Appellant?s counsel in justifying their absence at the Pre-Trial Conference, there is no evidence to substantiate the fact that the letter was brought to the attention of the trial judge before judgment was entered. Relevant facts and applicable law were taken into consideration to reach the conclusion. See Duru v. FRN (2013) LPELR-19930 (SC) Pg. 17 Par. E-F.; Sagay v. Sajere (2000) 6 NWLR Pt. 661 Pg 360 at 364- 365.
Thus, in the circumstances of this case, the Appellant?s right to fair hearing was not breached since the trial Court fairly gave parties a fixed date and definite action to be done on that date. A party who fails to take and make use of the opportunity given to him to present his
case cannot be heard or allowed to complain of a denial of fair hearing. See Uhembe v. Parkes (2014) 3 NWLR Pt. 1395 Pg.475; Nichandani v. Pmheiro (2001) FWLR Pt 48 1307 at 1318-1320.
Constitutional guaranteed right to fair hearing must be construed in the light of the facts of the case and the facts alone. It cannot be construed outside the facts. Accordingly, a party alleging the breach must copiously show to the satisfaction of the Court from the facts of the case that the right is violated or breached. Owing to the facts of this case, I cannot agree with the Appellant?s counsel that the right of the Appellant to fair hearing was breached. See Gbadamosi v. Dairo (2007) LPELR-1315 (SC); (2007) 3 NWLR Pt. 1021 Pg. 282.
I have to emphasis that a Court at pre trial stage is given the discretion to make decisions to ensure the speedy disposal of the case at hand. This discretion is a judicial discretion and should be exercised judicially and judiciously.
At Pg. 60 of the Record, the learned trial judge ordered as follows:
“The defendant shall always lower the volume of his music and loudspeakers to reduce their level of disturbance to
the claimants.
There shall be no order as to costs”
I am of the considered view that the learned trial judge was on the right footing when he observed that the appellant herein has no legal right to disturb his neighbor with the music played in his premises. The Appellant ought to have been reasonable while playing his music.
In my humble but firm view, the discretion of the learned trial judge was exercised judicially and judiciously and I do not see any reason why it should be upturned. An appellate Court would not necessarily interfere with the exercise the discretion judicially and judiciously. See Minister of Petroleum & Mineral Resources v. Expo-Shipping Line (Nig.) Ltd. (2010) 12 NWLR 261; Omini v. Eno (2010) 8 NWLR Pt. 1197 Pg. 453.
In the circumstances, I find no merit in this appeal. The judgment of the Hon. Justice T.C. Makwo in Suit No. A/11/2011 delivered on 8/2/12 is hereby affirmed. Appeal Dismissed. No order as to costs.
TUNDE OYEBANJI AWOTOYE, J.C.A.: I had the opportunity of reading the draft judgment just delivered by my learned, HELEN MORENIKEJI OGUNWUMIJU, JCA. I have no hesitation in
fully supporting the reasoning and conclusion therein.
The appellant cannot seriously seek to challenge the decision of the learned trial judge when he left undone what he ought to have done and did what he ought not to have done.
The rules of Court are not designed to aid the indolent.
I also see no merit in this appeal. The appellant was quite aware of the proceedings at the lower Court but neglected to participate.
The exercise of the discretion of the learned trial judge in the circumstances of this case is unimpeachable.
This appeal deserves to be dismissed. No order as to costs.
MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I had a preview of the judgment of my learned brother, Helen Morenikeji Ogunwumiju, JCA, just delivered.
I agree that this appeal is devoid of merit and I also dismiss it.
?There is no order as to costs.
Appearances:
E.W. AsinyirimbaFor Appellant(s)
Respondent AbsentFor Respondent(s)
Appearances
E.W. AsinyirimbaFor Appellant
AND
Respondent AbsentFor Respondent
