S & D CONSTRUCTION COMPANY LTD. v. CHIEF BAYO AYOKU & ANOR
In The Court of Appeal of Nigeria
On Monday, the 18th day of November, 2002
GEORGE ADESOLA OGUNTADE Justice of The Court of Appeal of Nigeria
PIUS OLAYIWOLA ADEREMI Justice of The Court of Appeal of Nigeria
CHRISTOPHER MITCHELL CHUKWUMA-ENEH Justice of The Court of Appeal of Nigeria
S & D CONSTRUCTION COMPANY LTD. Appellant(s)
- CHIEF BAYO AYOKU
2. LAYO MOTORS LIMITED Respondent(s)
OGUNTADE, J.C:A. (Delivering the Leading Judgment): In suit No. ID/1221/95, the appellant (hereinafter referred to as the plaintiff) brought its suit against the respondents (hereinafter referred to as the defendants) claiming the fol1owing reliefs:
“(1) A declaration that the plaintiff is the owner of the leasehold interest of all the piece or parcel of land lying and situate at Isola Expressway more particularly described and delienated on the survey plan attached to the deed of lease dated 17th day of February, 1978 and registered as No.85 at page 85 in volume 1739 of the Lands Registry Office in Lagos.
(2) Damages for trespass committed by the defendants on the said land in the sum of N10,000.00.
(3) A perpetual injunction against the defendants their servants agents and/or their privies from committing further acts of trespass on the said land.”
The plaintiff later filed its statement of claim. The defendants filed an amended statement of defence and counter-claim dated 24/3/97. The defendants’ counter-claim was couched in these words:
“The 2nd defendant/counter-claimant repeats paragraphs 10, 11, 12, 13 and 14 above and clauses against the plaintiff for a declaration that the 2nd defendant/counter-claimant is the holder of and/or entitled to the right of occupancy in or over all that piece or parcel of land situate lying and being at and known as Plot 23 Block M in the Isolo Industrial Scheme along Isolo/Apapa Expressway, Ilasamaja in the Lagos State more particularly described and delienated in survey plan No. 118/SD/5C dated 11/1/82 with pillar No. TPA 6308, TPA 6125, TPA 1706 and TPA 1709 a copy of which survey plan is attached hereto and marked “Annexture A”.
The plaintiff on 7/4/2000 filed a 2nd amended statement of claim and defence to the defendant’s counter-claim.
As the number of suit reveals, it was filed in 1995. It was finally slated for hearing on 7th and 8th September, 2000. The court notes for 8/9/2000 reveal that the plaintiff and its counsel were not in court. The defendants’ counsel prayed the court to dismiss plaintiff’s case. The suit was accordingly dismissed with N1,200.00 costs in favour of the defendants.
Since the defendants had a counter-claim, the lower court allowed them to call evidence in support of the counter-claim. The defendants called two witnesses in support of the counter-claim and then closed their case. Defence counsel commenced the address in the course of which he sought to recall DW1. The request was granted by the court. At about 12.30 p.m. in the course of the evidence of DW1 on his recall, plaintiff’s counsel Mr. Biodun Bakare appeared in court. He explained that he had been unwell the previous day and was just coming from the doctor on 8/9/2000 when he appeared in court. The hearing proceeded with plaintiff’s counsel fully participating. At the end of the days proceedings, plaintiff’s counsel sought an adjournment to enable him cross-examine DW1, a request which the lower court granted. Three days later however, i.e. on 11/9/2000, the plaintiff’s counsel brought an application (1) that the lower courts order dismissing plaintiff’s claim be set aside and (2) that the defendants’ counter-claim be dismissed or struck out on the ground that the lower court had no jurisdiction. Holloway J. heard the application and in a ruling delivered on 18/10/2000 dismissed it.
Plaintiff’s counsel filed an appeal against the ruling of the lower court. Counsel then refused to cross-examine DW 1 or take a further part in the proceedings before the lower court. The lower court adjourned the case for judgment on the defendants’ counter-claim.
On 26/10/2000, judgment was delivered in favour of the defendants on their counter-claim. The plaintiff filed another appeal against the judgment of the lower court on the counter-claim.
In respect of the appeal against the order dismissing plaintiffs’ suit, the appellant has formulated the following issues for determination.
“3.01 Whether the learned trial Judge was right in refusing to set aside the judgment dismissing the plaintiff’s case in default of appearance when there was no hearing notice given in respect of the date the plaintiff’s case was dismissed?.
3.02 Whether in the circumstances of this case the appellant could be held responsible for non-hearing of the suit within 6 years that it was filed?.
3.03 Whether the learned trial Judge was right in refusing to set aside the judgment dismissing the plaintiff’s case in default of appearance for the reason that the plaintiff still had the opportunity to defend the counter-claim?.
3.04 Whether the learned trial Judge was right in refusing to strike out the counter-claim when the defendants did not file same within the 14 days ordered by the court and application for extension of time was never filed by them?.”
In respect of the appeal against the final judgment of the lower court given On 28/11/2000 On the defendants counter-claim, the appellant’s counsel formulated the following issues:
“8.01 Whether the learned trial Judge was right dismissing the appellant’s case in default of appearance when the appellant had no notice of hearing of the case?.
2.02 Whether in all the circumstances of this case, it could rightly be said that the plaintiff/appellant had a fair trial.
2.03 Whether the learned trial Judge was right in refusing to hear and determine the appellant’s application for stay of proceeding pending appeal and went on with the case to judgment?.”
The respondent formulated the following issues for determination in respect of the two appeals:
“(i) Is the notice of appeal dated 24th October, 2000 and grounds (ii), (iii), (v) and (vii) of the notice of appeal dated 28th November, 2000 valid when the appellant failed to obtain leave either of the lower court or of this court for the appeals which raise grounds of fact and/or mixed law and fact and when in the latter case the said grounds of appeal were filed out of time and do not relate to the judgment said to have been appealed against?
(ii) Was the appellant aware that the suit was fixed for trial on 7th and 8th September, 2000 and if the answer is in the affirmative, was it necessary in the circumstance that hearing notice be issued and served on the appellant?
(iii) Did the learned trial Judge give due and proper consideration to the circumstances under which judgment obtained in the absence of a party may be set aside before arriving at the decision not to set aside the dismissal of the appellant’s case on 8th September, 2000?
(iv) Was the learned trial Judge justified in refusing to strike out or dismiss the counter-claim for want of jurisdiction?.
(v) Was the learned trial Judge in error to have granted the application of counsel to the respondent to recall DW 1 for further examination?
(vi) Was any application made to the court by counsel to the appellant to call witnesses in defence of the counterclaim and if the answer is in the negative, was the learned trial Judge wrong to have declared the evidence led on behalf of the 2nd respondent unchallenged and uncontradicted?.
(vii) Was any application made to the court by counsel to the appellant for adjournment for purposes of addressing the court and if the answer is in the negative, is it correct to allege that the learned trial Judge failed to exercise his discretion judiciously in the circumstances of this case?
(viii) Did the refusal to abridge the time for the hearing of the applicant’s motion for stay of proceedings amount to an improper exercise of judicial discretion on the part of the learned trial Judge?.”
It is necessary that I make some observations concerning respondents’ issues. Issues for determination are formulated from the grounds of appeal. It is apparent that the respondents’ issue one above is merely a challenge to the competence of the notice of appeal.
The respondent ought not have made their challenge to the competence of appellant’s notices of appeal an issue in the appeal since that would not ordinarily arise from the grounds of appeal.
I shall be guided in this appeal by the appellant’s issues in so far as the issues arise from grounds of appeal validly raised.
On 24/10/2000, the lower court made an order dismissing plaintiff’s suit. That order is a final decision. It is as good in its effect as an order for dismissal of a suit after a hearing on the merits.
Under section 241(1)(a) of the 1999 Constitution, the plaintiff can appeal against the decision as of right without the necessity to ask for leave from the lower court or this court.
I now consider the appellant’s first issue for determination. The contention of the appellant in its brief is that as the case was not fixed for hearing on 8/9/2000, the lower court was wrong to have dismissed it on the ground of absence from court of the plaintiff.
Respondents counsel on the other hand argued that the case was fixed for hearing and that the plaintiff’s counsel was fully aware of the date.
The court notes for 8/9/2000 leading to the order for dismissal are eye-opening. I set them out.
“2nd defendant represented by Mr. S.O. Opayemi, Marketing Manager.
Chief Aderemi Adesina for defendants with Mr. F. Oduah.
No counsel for the plaintiff.
Adesina: We are ready to go on with our counter-claim.
Court: Case stood down. The plaintiff and counsel may still come.
11.20: Case called again.
Adesina: While the plaintiff learned counsel said that he was going away from the court yesterday before the court sat, he never indicated that he would not be in the court today nor was any letter or sick report sent.
Court: In that case, I think that the defendant can proceed with their own case.
Adesina: I apply that the case for the plaintiff be dismissed under Order 33 rule 3 of the High Court Rules.
Court: Since the case is fixed for hearing today and the plaintiff and his counsel chose to stay away from the court, I agree that the plaintiff’s case can be dismissed as provided by Order 33 rule 3 of the High Court Rules.
The plaintiff’s case is therefore hereby dismissed. The defendants are awarded N1,200.00 as costs.
It is apparent from the above court notes that the plaintiffs’ case was dismissed because both court and defence counsel accepted that the case was fixed for hearing on 7th and 8th September, 2000.
Now on 11/9/2000, three days after its suit was dismissed, the plaintiff brought an application to set aside the order dismissing this suit. In paragraphs 12 to 16 of the affidavit in support of the application, the plaintiff’s agent deposed thus:
“12. That Mr. Biodun Bakare of counsel in the chambers of M.A. Yesufa & Co. told me and I verily believed him that at the end of the proceedings of 15th June, 2000 he approached the defendant counsel acknowledging his note of the previous day and since then, counsel have been discussing on behalf of their clients through telephone conversations and viva-voce discussion on terms that this suit would be settled out of court.
13. That the said Mr. Bakare told me and I verily believed that the said discussions had reached advanced stage, as at the 7th day of September, 2000, which was the date, trial in respect of the suit was to commence originally.
14. That Chief Layi Balogun, the Managing Director and Chief Executive of the plaintiff company told me and I verily believed that he thought that trial would no longer be feasible on the adjourned dates because of the discussion on settlement out of court by counsel to both parties in the suit on behalf of their clients.
15. That Mr. Biodun Bakare told me and I verily believed that on the 7th of September, 2000 he was actually in court at about 8.45 a.m. even though he was not feeling fine.
16. That Mr. Biodun Bakare told me and I verily believed that he waited till 10.10 a.m. at which time the court had not sat for the day and had to rush to the hospital when his state of health was deteriorating.”
In reaction to the affidavit in support of the application the extracts from which I produced above, the defendants filed a counter-affidavit.
The plaintiff then filed a Reply to counter-affidavit. Paragraph 16 of the Reply to the counter-affidavit read:
“16. That the fresh trial dates of 7th September, 2000 and 8th September, 2000 were fixed after the strike action of 29th June, 2000.”
It is manifest from the passages reproduced above from the plaintiff’s affidavit in support of the application and the reply to counter-affidavit that the plaintiff knew that the case was fixed for hearing on the 7th and 8th September, 2000. In any case, it was not the plaintiff’s case before the lower court when it sought to set aside the order dismissing its suit that it was not aware of the hearing date. The argument before this court premised on the fact that the plaintiff did not know of the hearing dates was clearly an after-thought and an attempt by appellant’s counsel to use the platform provided by brief writing as an opportunity to give fresh evidence on appeal without first seeking the requisite leave of court. I decide issue I against the appellant.
I intend to take together issues 2 and 3. Under issue 2, the plaintiff argued that it could not be held responsible for the fact that the appeal was not heard for six years whilst under issue 3, it was contended that the lower court was not right to have refused to set aside the order dismissing plaintiff’s suit. In responding to these two issues, it is necessary to consider the applicable Order 33 rule 3 of the High Court of Lagos State (Civil Procedure) Rules, 1994 under which plaintiff’s suit was dismissed. The rule provides:
“If, when a trial is called on, the defendant appears and the plaintiff does not appear, the defendant, if he has no counter-claim shall be entitled to judgment dismissing the action but if he has a counter-claim, then he may prove such counter-claim, so far as the burden of proof was upon him.”
Nothing in the above rules ties the exercise of the power to dismiss a plaintiff’s suit upon a prior decision of the Judge on the question whether one of the parties had previously been responsible for some previous adjournments. That issue is therefore irrelevant.
On 8/9/2000, when this particular case was called for trial, the plaintiff was absent from court. The defendants were present. A clear situation was therefore placed before the court to exercise its power under Order 33 rule 3 to dismiss the suit.
In the application brought to set aside the order dismissing plaintiff’s case, the plaintiff gave two reasons for its failure to be in court on 8/9/2000. The first was that parties had discussed the possibility of a settlement. The second was that plaintiff’s counsel, Mr. Biodun Bakare had been unwell on 7/9/2000. With regard to the first excuse, I do not think there is any justification for a plaintiff to stay away from court on a date fixed for the hearing of his case which was six years old in court on the excuse that it was hoped settlement might be reached. It is particularly instructive to bear in mind that the excuse was not that a settlement had been reached. Now in N.A. Williams & Ors. v. Hope Rising Voluntary Funds Society (1982) 1-2 SC 145 at 153/154, the Supreme Court considered the factors to be borne in mind in the exercise by a trial court of its discretion whether or not to set aside a judgment given in the absence of a party under Order 32 rule 4 of the High Court of Lagos State (Civil Procedure) Rules, 1972. The court said:
“When however, the application before the court is for it to set aside its own judgment given in the absence of one of the parties before it in order to give the other party opportunity of being heard, different considerations apply. These were fully set out by me in Idam Ugwu & Others v. Nwaji Aba & Others (1961) All NLR 438. See also Adebayo Doherty v. Ade Doherty (1964) NMLR 144 at 145. Among other things, the court must consider –
(1) the reasons for the applicant’s failure to appear at the hearing or trial of the case in which judgment was given in his absence;
(2) whether there has been undue delay in making the application to set aside the judgment so as to prejudice the party in whose favour the judgment subsists;
(3) whether the latter party (i.e. in whose favour the judgment subsists) would be prejudiced or embarrassed upon an order for rehearing of the suit being made so as to render such a course inequitable; and
(4) whether the applicant’s case is manifestly insupportable and I respectfully agree with the views expressed by my learned brother, my Lord Bello, S.P.J. (as he then was) in Momdi v. Gulf Insurance Corporation (1975) 1 NMLR 184 that in addition to the foregoing factors the court being asked to exercise its discretion to set aside its own judgment must also be satisfied that the applicant’s conduct throughout the proceeds i.e. “from the service of the writ upon him to the date of judgment” has been such as to make his application worthy of a sympathetic consideration.”
The above opinion of the Supreme Court was followed by the same court in Sanusi v. Ayoola (1992) 2 NWLR (Pt. 265) 275, 294295.
The lower court in refusing the application to set aside its order said at page 100:
“The reason given by the failure of the applicant to be present when the court heard the application by the
defendant/respondent to dismiss the plaintiff/applicant’s case is not good enough.
The case was set down for trial for 2 days. The plaintiff was absent on the 1st day and his counsel left before the court sat claiming to be sick. The following day the plaintiff was absent again and no written, apology sent, no sick report was forwarded and even though the court close to have the case stood down for 2 hours yet neither of them came before the court decided to allow the defendant to proceed with their own case and an application for dismissal of the plaintiff’s case under Order 33 rule 3 was made and the court granted the application so that the defendant could state their own counter-claim.”
I entirely agree with the trial Judge that the explanation given for plaintiff’s absence was unsatisfactory. The business of the court must be conducted with expedition. It is to ensure that parties to a case do not needlessly waste time in the presentation of their case that Order 33 rule 3 was made. To allow a plaintiff to stay away from court on the date his case is fixed for hearing on the excuse that a settlement was being considered is to defeat the object of Order 33 rule 3. As it turned out the plaintiff was not in court and neither was his counsel. No explanation of any kind was made to court. It is my view that the lower court was right to refuse the application to set aside the order dismissing plaintiff’s suit.
The fourth issue for determination relates to the counter-claim brought by the defendants. It was the contention of the applicant that as the defendants had filed the counter-claim out of time the lower court had no jurisdiction to entertain it. Counsel relied on Odofin v. Agu (1992) 3 NWLR (Pt. 229) 350; Ogar v. James (2001) 10 NWLR (Pt.722) 621, (2001) Vol. 21, WRN 130 and Clough v. Clough (1968) 1WLR 525 or (1968) All E.R. 1179.
A similar submission was made before the lower court. At pages 101 to 102 of the record of proceedings, the lower court said concerning the contention:
“Mr. Bakare has also argued that this court lacks jurisdiction to try the counter-claim since the said counter-claim was not filed within the time ordered by a court.
There is of course no doubt that amended statement of defence and counter-claim was filed out of time by
the defendant. But while it is the view of this court that Rules of the court must be obeyed yet the Rules itself allow for extension of time to file pleadings and as Chief Adesina submitted under Order 17. Counsel could give their consent for the other side to file the pleadings out of time without such defaulting party needing to made an application to the court see UBA v. Nwaonu.
I do agree with Chief Adesina that such lapse as not filing pleadings within time is only an irregularity.
At least so did Order 5 rule 1(1) provides;
This rule provides as follows:
“1(i) Where in beginning or purporting or at any stage in the course of or is connection with any proceeding there has been by reason of anything done or left undone, been a failure to comply with requirements of these rules whether in respect of time place, manner form or content or in any other respect the failure shall be treated as an irregularity and shall not nullify the proceedings and step taken in the proceedings or any document judgment or order therein. Thus, the failure to file the counter-claim is no more than an irregularity despite the fact that the counterclaim is an action on its own. Now is an irregularity the party who wants such irregularity to be set aside shall file the application within reasonable time and before the party applying has taken any fresh step after becoming aware of the irregularity in filing the counter-claim. Thus, the plaintiff had waived the irregularity. See Sonuga v. Anadein (1967) 1 All NLR 91; Eboh v. Akpotu (1968) 1 All NLR 220. The plaintiff has adopted the counter-claim he can therefore not be heard to say that the court has no jurisdiction to try it.”
When the defendants filed their counter-claim out of time, the plaintiff did not take objection to the late filing. Rather, the plaintiff filed a defence to the counter-claim. When the suit was set down for hearing it was on the assumption by the parties and the court that the counter-claim was properly before the court. It is odd on the part of the plaintiff to turn round after it had filed a defence to urge the court to strike the counter-claim. The respondent’s counsel in his brief said concerning the objection to the counter-claim.
The court will not shut its eyes to pleadings even when irregularly filed so long as they have been duly filed.
See Essang v. Bank of the North (2001) 6 NWLR (Pt.709) 384, 397. The learned trial Judge was also right when he held that pursuant to Order 5 rule 2(1) of the High Court of Lagos State (Civil Procedure) Rules 1994, in failing to file an application to set aside the irregular process within a reasonable time after becoming aware of it, the appellant must be taken to have waived same.
The said Rule provides:
“An application to set aside for irregularity any proceedings, any step taken in any proceedings or any document, judgment or order therein shall not be allowed unless it is made within a reasonable time and before the party applying has taken any fresh step after becoming aware of the irregularity.”
In Onifade v. Oyedemi (1999) 5 NWLR (Pt. 601) 54, 68, it was held that the principle of waiver has two elements. The party said to have waived:
(a) must be aware of the act or omission; and
(b) must do some unequivocal act adopting or recognising the act or omission.
Non-filing of a defence and/or counter-claim by a party can be waived by his adversary. See Ogbonna v. A.-G., Imo State (1992) 1 NWLR (Pt. 220) 647, 691, 696. The appellant was served with the counter-claim, it filed a defence to the counter-claim having secured an order to do so and to amend its claim on the basis of its motion dated 25th November, 1999. See page 73 of the Record.
For the appellant to contend later that the counter-claim ought to be regarded as non-existent is ridiculous. The appellant cannot approbate and reprobate. See: Sonuga v.Anadeil 1 (1967) 1 All NLR 91, 93 Eboh v. Akpotu (1968) 1 All NLR 220, 224. Besides, the application challenging the counter-claim was filed over 3 years after the counter-claim was filed to the knowledge of the appellant. This cannot be “reasonable time” as contemplated in Order 5 rule 2(1). The complaint of the appellant in this respect, had they been valid, would in any event have amounted to mere technicality which, as has been consistently held in a plethora of authorities, ought not be permitted to defeat the ends of justice. See: Okenwa v. Military Governor of Imo State (1997) 6 NWLR (Pt. 507) 136, 166 Oikherhe v. Inwanfero (1997) 7 NWLR (Pt. 512) 226,242.”
I entirely agree with respondent’s counsel on his submission.
The plaintiff having waived any objection to the late filing of the counter-claim cannot now be allowed to raise the same objection.
I now come to the appellant’s issues on the notice of appeal against the final judgment given on 28/11/2000. The first issue for determination raises the question whether or not the lower court was right to dismiss plaintiff’s suit. The short answer to this issue is that the plaintiff’s suit was not dismissed in the final judgment of the court on 28/11/2000. That issue could not therefore have arisen under the final judgment given on 28/11/2000. The suit was dismissed on 8/9/2000.
The second issue queries whether in all the circumstances of this case, the plaintiff could be said to have had a fair trial. This issue appears to me an abstract one. In the course of hearing, the plaintiff had the opportunity to present its case. But if it had not utilised the opportunity afforded it to ventilate its case, that cannot be blamed on the respondents or the lower court.
On 24/10/2000, the plaintiff filed an application for stay of proceedings. The application was fixed for hearing on 30/11/2000. On 25/10/2000, in the course of hearing Mr. Biodun Bakare, plaintiffs counsel urged the court to abridge the time for the hearing of the application. The lower court observed at page 123-124.
“Court: As I had stated above, the Registrar has just shown the said motion to the court a minute ago.
I have not even looked at it much less read it.
Mr. Bakare however is urging the court to abridge the time and get the motion heard now to which Chief Adesina is objecting as they would want to react to it. Much as the court would have wished to consider Mr. Bakare’s application to abridge the time for hearing the motion from 30/11/2000 to 25/10/2000 but to do so would be prejudicial to the party on the other side who were served less than 24 hours ago. The law on the rules of practice allow a party 48 hours notice to take a motion. The defendants have claimed that it would be prejudicial to them if the court orders the motion to be moved now.
It is noted that the motion has not even been accompanied by an affidavit of urgency which alerts the other side and the court too that the motion is to be heard at the soonest time. In the circumstances particularly in view of the objective of the other party which this court does not consider unreasonable, I shall not allow the motion to be moved now.”
The plaintiff has not appealed against the observation made by the lower court on 25/10/2000. It is therefore strange that the plaintiff appellant can formulate an issue for determination in respect of observation made on 25/10/2000 without first appealing on the matter. The 3rd issue formulated by the appellant in its notice of appeal against the judgment of 28/11/2000 is misconceived. It must be discountenanced.
In the final conclusion, it is my view that this appeal has no merit. It is dismissed with N5,000.00 costs against the appellant.
ADEREMI, J.C.A.: I agree with my learned brother, Oguntade, J.C.A. whose reasons for judgment I have had the privilege of a preview that the appeal is unmeritorious. I would also dismiss it with cost assessed at N5,000.00 in favour of the respondents.
CHUKWUMA-ENEH, J.C.A.: I have read in draft the judgment of my learned brother, Oguntade, J.C.A. just delivered. I agree with his reasoning and conclusion. I also dismiss the appeal with N5,000.00 costs in favour of the respondent.
Biodun BakareFor Appellant
- Yussuf (with him, Olusanya [Mrs.], and K. A. Lawal)For Respondent