TAHIR v. A. S. HIDE SKIN GENERAL MERCHANT LTD & ORS (2022)

TAHIR v. A. S. HIDE SKIN GENERAL MERCHANT LTD & ORS

(2022)LCN/16424(CA)

In The Court of Appeal

(KANO JUDICIAL DIVISION)

On Wednesday, February 23, 2022

CA/K/328/2018

Before Our Lordships:

Ita George Mbaba Justice of the Court of Appeal

Abubakar Muazu Lamido Justice of the Court of Appeal

Usman Alhaji Musale Justice of the Court of Appeal

Between

SADEK TAHIR APPELANT(S)

And

1. A. S. HIDE SKIN GENERAL MERCHANT LIMITED 2. MULTITAN LIMITED 3. ALH. AMINU SULEIMAN RESPONDENT(S)

RATIO

THE PRINCIPLE THAT A PARTY MUST BE GIVEN OPPORTUNITY TO STATE HIS CASE

The law is trite that a party who has been given ample opportunity to state his case in Court, and failed to utilize it, cannot turn round to blame the Court claiming being denied fair hearing. See the case of Nwaigwe & Ors Vs Anyanwu (2016) LPLER – 40613 (CA):
“…One cannot complain of denial of fair hearing, when he aborted every opportunity given to him to state his case or to be heard. See the case of Kaduna Textiles Ltd Vs Umar (1994)1 NWLR (Pt.319) 143 at 159, where it was held: “Where a party to a suit has been accorded a reasonable opportunity of being heard in the manner prescribed under the law, and for no satisfactory explanation, it fails or neglects to attend the sitting of the Court, the party cannot thereafter be heard to complain of lack of fair hearing. The question is, is it fair and just to the other party or parties as well as the Court, that a recalcitrant and defaulting party should hold the Court and other parties to ransom? Should the business of the Court be dictated by the whims and caprices of any party? I think not…” See also Newswatch Communication Ltd Vs Atta (2006)7 MJSC 38 at 95; (2006)12 NWLR (Pt.993)144; (2006) LPELR – 1986 SC, where the Apex Court said: “It is the duty of the Court to create the atmosphere for a fair hearing of a case but it is not the duty of the Court to make sure that a party takes advantage of the atmosphere or environment by involving himself in the fair hearing of the case. A party who refuses or fails to take advantage of the fair hearing process created by the Court cannot turn round to accuse the Court of denying him fair hearing. That is not fair to the Court, and Counsel must not instigate his client to accuse the Court of denying him fair hearing. A trial Judge can indulge a party in the judicial process for some time but not for all times. A trial Judge has the right to withdraw his indulgence at the point the fair hearing principle will be compromised, compounded or will not really be fair as it affects the opposing party” Per Tobi JSC. PER MBABA, J.C.A.

WHETHER OR NOT A PARTY CAN BLAME THE COURT FOR NOT BEING GIVEN FAIR HEARING AFTER HE FAILED TO UTILIZED THE OPPORTUNITY TO PROSECUTE HIS CASE

A party who fails to utilize opportunity of prosecuting his case, cannot turn round to blame the Court for not being given fair hearing. GTB PLC Vs FADCO INDUSTRIES Nig. LTD. & Anor (2013) LPELR 21411 (CA). In the case of F.H.A. Vs Kalejaiye (2011) All FWLR (Pt.562)1633, ratio 8, it was held: “The role of the Court in the adjudication is to maintain a level playing field for the parties by offering them equal opportunity, to present their case or grievances, if they so wish. Once the opportunity is offered, it is the duty of a party to litigation or his Counsel to utilize same in accordance with the rules of procedure and substantive law. Where, however, he or his Counsel fails or neglects to utilize the opportunity so offered, he cannot turn round to blame the Court for the loss of the opportunity as the Court will not allow a party to hold the opponent or the Court to ransom under the guise of the desire to protect the principles of fair hearing.”
See also A.G. Rivers State Vs Ude & Ors (2006) LPELR – 626 (SC), Darma Vs Eco Bank (2017) LPELR – 41663 (SC), Inakoju & Ors Vs Adeleke & Ors (2007) LPELR – 1510 (SC), Esabunor & Anor Vs Faweya & Ors (2019) LPELR – 46961 SC. PER MBABA, J.C.A.

ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment): Appellant filed this appeal against the decision of Kano State High Court in Suit No. K/486/2018, delivered on 12/7/2017 by Hon. Justice Muhammad Yahaya, wherein the learned trial Judge entered judgment for the plaintiffs as per the reliefs sought by 1st and 3rd Respondents, herein.

At the trial Court, the plaintiffs (1st and 3rd Respondents herein) had sought the following reliefs:
(a) An order of this Honourable Court directing the Defendants jointly and severally to pay the plaintiffs the total sum of ₦54,252,774.00 (Fifty-Four Million, Two Hundred and Fifty-Two Thousand, Seven Hundred and Seventy-Four Naira) only, which the Defendants undertook, to pay.
(b) 10% interest at the cost rate, from the date of judgment until liquidation of the judgment sum.
(c) And for such order or other orders as this Hon. Court may deem fit to make. (See pages 4-5 of the Records of appeal).

The suit was commenced by writ of summons, but the Plaintiffs also filed a motion for summary judgment, along with the writ of summons. Appellant was the 2nd Defendant at the lower Court, and in response to the writ of summons and application for summary judgment, had filed statement of defence and counter-affidavit, respectively. The matter was later transferred to the general cause list, as the Plaintiffs abandoned the summary judgment.

After hearing the case on merit and considering the evidence and addresses of counsel, the trial Court held for the plaintiffs (now 1st and 3rd Respondents) as follows:
“…The claim of the plaintiffs is jointly and severally against the defendants, plaintiff by its witness, Alhaji Aminu Suleiman, testified… and tendered 3 exhibits which were admitted without any objection.
Exhibit 1 is a cheque belonging to the 1st defendant paid the sum ₦5,000,000 into the account of the 1st plaintiff, while Exhibit 2 is an (sic) receipt payment issued by 1st defendant to the plaintiffs while Exhibit 3 is an acknowledgement of the indebtedness by the 2nd defendant who said the cheque is from the 1st defendant; under cross-examination by the 1st defendant the plaintiffs witness re-assort (sic) that he made the supply of the goods into the premises of the 1st defendant (sic) no evidence from the 1st defendant to reburt (sic) the assertion and evidence by the 1st defendant that the goods was not received in their premises and no evidence from the 1st defendant that they resisted dumping (the Plaintiff’s goods) in their premises. Exhibit D1, D2 and D3 tendered by the 1st defendant have no relevant (sic) to the case of the plaintiffs and all were made in anticipation of a suit.
There is evidence showing the 2nd defendant was held out as agent of the 1st defendant then (sic) exhibit (sic) 1 and 2 tendered by the plaintiffs. Also Exhibit D4 and D5 are not relevant to the plaintiff’s case.
That it is only the 2nd defendant can approve (sic) or deny to the claim of the Plaintiffs, that he is an agent of the 1st defendant or not, but 2nd defendant did not give evidence. The 1st defendant agree (sic) to be in business relations with the 2nd defendant and he used to supply them with Hide and Skin, payment made in exhibit 1 can only be clarify (sic) by the 2nd defendant on why was the payment made was in the name or cheque belonging to the 1st defendant and not his own personal cheque. It is not for the 1st defendant to orally deny content of Exhibit 1 & 2, which are documentary in nature. It is trite documentary evidence cannot be varied by oral evidence.
Therefore, I hold that Exhibit (sic) 1, 2 and 3 are credible evidence to the effect that the 2nd defendant, being an agent of the 1st defendant, made part payment of the amount due against them by (sic) the Plaintiffs.
…On the whole, the Plaintiff (sic) case succeed against the 1st and 2nd defendant (sic) jointly and severally as claimed and in the circumstance, the 1st and 2nd defendant (sic) are hereby ordered to pay the sum of ₦54,252,774.00…. to the plaintiffs and the 10% Court interest until judgment is liquidated.” (See pages 284-285 of the Records of Appeal).

That is the decision Appellant appealed against being dissatisfied. But it is difficult to understand why Appellant opted to make the 2nd defendant, adjudged by the trial Court, as agent of the Appellant, a Respondent in this Appeal and arranging the said 2nd Defendant (Multitan Ltd) to come in-between the Plaintiffs (as 2nd Respondent) thereby making the Plaintiffs, 1st and 3rd Respondents.

I think the 2nd Respondent should have been the 2nd Appellant, since they were in the same camp, at the trial, and the judgment was against them, jointly and severally. And, if it was necessary for the Multitan Ltd to be a Respondent, then it should have come after the two plaintiffs (as 3rd Respondent)!

Appellant’s Notice of Appeal was filed on 5/9/2017, wherein Appellant formulated three grounds of Appeal – See Pages 291-294 of the Records of Appeal, which was regularized by this Court on 16/10/2018. Appellant filed his brief of arguments on 29/11/2018 and distilled two issues for the determination of the Appeal, as follows:
1. Whether the Appellant was given fair hearing during the cause (sic) of the trial at the lower Court. (Ground 1)
2. Whether the Appellant’s Statement of Defence, as well as its counter-affidavit disclose (sic) a defence on the merit against the 1st and 3rd Respondents (Ground 2).

The 2nd Respondent filed its brief on 29/1/2019, which was deemed duly filed on 10/4/2019. The 2nd respondent adopted the issues distilled by Appellant for the determination of the Appeal. Appellant had therefore abandoned his ground 3 of the Appeal and the same is hereby struck out, as no issue was formulated on it.

Arguing the Appeal on 14/1/2022, Appellant’s Counsel, M. M. Narimi Esq., (who settled the brief) said that Appellant was not given fair hearing at the trial, that during the pendency of the case at the trial Court, Appellant, being a layman felt that things were not being handled properly by his lawyer, and that compelled him to change the counsel and to engage another Counsel; that Appellant applied to be allowed to open his case and enter his defence (as per the motion filed on 23/6/2017), but the trial Court refused, to the greatest surprise of the Appellant, in blatant disregard of the principles of natural justice. Counsel referred us to the ruling of the trial Court, delivered on 12/7/2017 (pages 286-289 of the Records of Appeal), which Counsel said denied Appellant fair hearing, and opportunity to be heard.

Counsel cited several authorities, on fair hearing as being cardinal to the administration of justice. The cases included the case of Ogunsanya Vs The State (2011) 12 NWLR (Pt 261); Ojengbede Vs Esan (2001) 18 NWLR (Pt 746) 77; Audu Vs FRN (2013) LPELR-19897 (SC), which held: “…the effect of denial of fair hearing is trite in law… once there is a breach of the right to fair hearing, the whole proceeding in the course of which the breach occurred and the decision arrived at by the Court, becomes a nullity…”

Counsel also relied on Nwokoro Vs Onuma (1990) 15 SC (Pt 1) 124, where it was held:
“The principle of fair hearing not only demands but also dictates that the parties to a case must be heard on the case formulated and presented by them. It is only then that the concept of fair hearing will have a real meaning.”

Counsel further relied on the case of Pam & Anor Vs Mohammed & Anor (2008) LPELR-2395 SC, to say that it was held therein:
“It has been suggested that a fair hearing does not mean a fair trial. We think that a fair hearing must involve a fair trial, and a fair trial of a case consists of the whole hearing. We therefore see no difference between the two. The true test of fair hearing… is the impression of a reasonable person who was present at the trial, whether from his observation; justice has been done in the case.” Per Oguntade, JSC. Counsel argued that the actions and inactions of the former Counsel of the Appellant should not have been transferred to the Appellant, to punish him. He said that justice demands that the mistakes of a Counsel must not be visited on the litigant, and he relied on cases, including the case of Komolofe & Ors Vs The Chairman National Population Commission (2014) LPELR-22773 (CA); Savanna Bank of Nigeria Ltd Vs Starite Industries Overseas Corporation (2009) LPELR-3020 (SC).

Counsel referred us to pages 35, 39 and 55 of the records of appeal, to explain or illustrate the alleged failings or errors of the former Counsel of the Appellant, at the lower Court, resulting in the foreclosure of the Appellant at the lower Court. He asserted that the decision of the trial Court was therefore perverse and relied on the cases of Atolagbe Vs Shorun (1985) LPELR; (1985) NWLR (Pt 2) 360 for the meaning of ‘perverse’. He urged us to resolve the issue for Appellant.

On issue 2, whether the statement of defense, as well as counter-affidavit of Defendants disclosed any defense against Respondent’s claim, Counsel answered in the affirmative. Counsel noted that the case had earlier been transferred to the general cause list, because of the processes filed by the defense, which aborted the application for summary judgment, under Order 11 of the High Court (Civil Procedure) Rules. He however argued that the breach of Appellant’s right of fair hearing affecting his chance of proving its defence in the case, which would have led to a different and opposite decision by the trial Court.

Counsel said justice of the matter would have been attained, had the case filed at the lower Court, which gave rise to this appeal, been determined, based on the merit of the pleading of the parties. He relied on the case of Ubah Vs Okafor (2013) LPER-21261 (CA) and urge us to allow the appeal and quash the decision of the lower Court and order for retrial of the case.

Responding, Counsel for 2nd Respondent, Baba Nasiru Lawal Esq., on issue 1, said Appellant was given fair hearing at the trial Court and was, in fact, afforded the opportunity of being heard, but it refused, neglected and failed to take advantage of the opportunity to present its case. He relied on the cases of Reynolds Construction Co. Ltd Vs Okpegboro (2000) 2 NWLR (Pt 645) 367 and Idris Vs Audu (2008) ALL FWLR (Pt 422) 1129, to say that, where a party to a suit has been granted a reasonable opportunity of being heard, but he deliberately refused to avail himself of the opportunity thereof, through his Counsel’s neglect or tardiness, he cannot turn around to complain of breach of fair hearing.

Counsel also relied on Airforce Vs Okwuafor (2012) ALL FWLR (Pt 639) 1159, to the effect that, a party who absents himself from hearing proceedings cannot complain of breach of fair hearing. He also relied on Zekeri Vs Alhassan (2003) FWLR (Pt 177) 780 and Newswatch Comm. Ltd Vs Atta (2006) ALL FWLR (Pt 318) 583 on the same point, that one who has been given opportunity to present his case and he failed to do so, cannot complain of denial of fair hearing. See also Obienu VS Okeke (2006) ALL FWLR (Pt 340) 1168.

On issue 2, whether Appellant’s statement of defence as well as counter-affidavit, disclosed a defence against the Respondent’s claim, Counsel answered in the negative and said that the issue was superfluous, as it is what the trial Judge already established in the case; that Appellant’s argument thereon was mere repetition of the earlier argument at the trial Court and so, incompetent. He urged us to strike it out, relying on the case of Ogunsola Vs NICON (1996) 5 NWLR (Pt 123) 126 and Shell Petroleum Dev. Co. Ltd Vs FBIR (1996) 8 NWLR (Pt 466) 350.

Counsel urged us to dismiss the appeal and affirm the decision of the lower Court.

RESOLUTION OF THE ISSUE
I think the relevant issue for the determination of this appeal is:
Whether, in the circumstances of this case, Appellant was denied fair hearing, when the Court granted the claims of Plaintiffs, (the 1st and 3rd Respondents) for the payment of the judgment sum of ₦54,252,000.00 by the Defendants (Appellant inclusive) jointly and severally.

There are some strange things about this appeal, which jolt sound reasoning, namely:
The 1st and 3rd Respondents did not file any brief in this Appeal. But, surprisingly, the brief filed by the 2nd Respondent (who was 1st Defendant in the suit, and was jointly held liable by the trial Court) urged us to dismiss the appeal. The 2nd Respondent’s brief assumed the position of the 1st and 3rd Respondents and argued as if engaged by the 1st and 3rd Respondents, against its interest!

This is quite strange, in my view, considering the fact that, while summarizing the facts of the case and the handling of it at the trial Court, the Counsel for 2nd Respondent had said:
“However, to the greatest surprise and in blatant disregard with the principles of natural justice, the lower trial Court refused the said application in its ruling delivered on the 12th July, 2017…” See Page 6 (Paragraph 4. 03) of the 2nd Respondents brief.

But in his conclusion, the 2nd Respondent Counsel urged us:
“…to dismiss Appellant’s appeal and affirm the judgment of the lower Court against him, as there was no miscarriage of justice nor error to justify the order of retrial or rehearing prayed for by the Appellant….” Page 9 of the Brief.

That, obviously, was admission against interest.

The facts of this case at the trial Court shows that the claim of the Plaintiffs (now 1st and 3rd Respondents) which was for recovery of debt of Fifty-Four Million, Two Hundred and Fifty-Two Thousand Naira (₦54,252,000) and which they brought an application for summary judgment, was finally heard on the general cause list, as the application for summary judgment was withdrawn. Appellant had filed a statement of defence and counter-affidavit to deny the claim. Appellant’s Counsel was not forthcoming, much of the times, for the trial as the Appellant was absent from Court, consistently and failed to defend the suit, opting to play delatory games.

At a time, parties had opted for settlement, and Appellant had sought for time to make a better proposal, or improve on the amount proposed, to settle the case. On page 34 of the records, Appellant’s Counsel informed the Court of the arrangement to credit the account of the plaintiff (Respondent – 1st and 3rd) and sought adjournment.

On that date (27/6/2016), Appellant’s Counsel (Hussaini Umar) told the Court:
“The position stated by the plaintiff counsel is true, we have signed an agreement on Friday for the financial support that will enable us to write him, officially, there is plan to credit the plaintiff account, this week, in line of the above, we shall be asking for a short adjournment.” (See page 34 of the Records)

On the next adjourned date (14/7/2016), Appellant and his Counsel were absent in Court and there was no explanation for their absence. The Court allowed the Plaintiff to continue with his evidence and the case was adjourned for cross-examination of the PW1 and for defence, on 25/7/2016, with hearing notice to be issued to the defendants.

On that next adjourned date, the Counsel for defendants were present, and Hussaini Umar told the Court:
“…We are happy to report to the Court that we have reached settlement with the plaintiff. We hve (sic) Ten Million Naira a postdated cheque, which will be matured by the 18th August, 2016. The amount will be paid in bulk on the 18/08/2016 to the Plaintiff. The copies of the bank draft are before the Court. In addition, we have agreed with the Plaintiff that 2 additional draft will be issued between August 19 to end of September. The term of settlement as consent judgment will be filed in due course, when the 1st payment is made.” (See page 37 of the Records)

To the above, Counsel for the 1st defendant, Nasiru Lawal, Esq Said: “I have nothing to say because it is a matter between the plaintiff and the 2nd defendant.” (Page 37 of the Records)

Counsel for the Plaintiff did not oppose the application for adjournment and so the matter was adjourned to 5/10/2016 for report of settlement. But on the said date (5/10/16), the Defendants (including Appellant) were absent and their Counsel, too. The Counsel for the Plaintiffs reported that the ₦10,000,000 which was to be paid on 18/8/2016 was not paid and that they (Plaintiffs) succeeded to collect only ₦5,000,000 from the Appellant, who became incommunicado thereafter. Having closed the Plaintiffs’ case, Counsel asked the Court for adjournment, for the cross-examination of PW1 and for defence by the defendants.

The case was adjourned to 19/10/2016. On that date, Bello Mukhtar, Esq., appeared for Appellant, holding the brief of Umar Hussaini, Esq. He told the Court that he was not ready for the cross-examination, not being abreast of the facts. He sought adjournment, which was opposed by the Plaintiffs’ Counsel. The trial Court granted the adjournment, but discharged the PW1 (from the cross-examination) and adjourned the case for defence on 2/11/2016.

On that date 2/11/2016, the defendants were absent, but counsel for 1st defendant sent a letter for adjournment and the case was adjourned to 15/11/2016. On that date, 15/11/2016, both counsel for defendants argued a motion for the Court to rescind the order discharging the PW1, and sought to recall him for cross-examination. The trial Court obliged them and adjourned the case again for cross-examination of PW1. The motion by 2nd Defendant (Appellant) was withdrawn and struck out, being the same as the one moved by 1st defendant and granted.

On the next adjourned date 29/11/16, PW1 was cross-examined by Counsel for the 1st defendant (Nasiru Esq), after which he elected to make a no-case submission and the case was adjourned to 15/12/2016, Appellant and his counsel were absent.

On 25/1/2017, Appellant and his Counsel were absent. The no-case addresses were exchanged between 1st Defendant Counsel and plaintiffs and the case adjourned for ruling with hearing notice issued to the Appellant.

Of course, on 14/2/2017, the Court ruled and the no-case submission failed and the Court adjourned the matter to 28/2/2017 for defence and further ordered hearing notice to be issued on Appellant.

On 28/2/2017, Appellant was represented by Hauwa Yahaya who held the brief of Umar Hussaini, Esq. They (Defendants) were not ready to take the defence and asked for adjournment, which was opposed by the Plaintiffs’ Counsel, the Court ruled:
“…I therefore hold that no cogent reason advanced for adjournment but however I am inclined to adjourn this case, because this is the first time the case is fixed for defence, but certainly I am not going to give more than two weeks, from today.”

It adjourned the case to 16/3/2017. See page 48 of the Record of Appeal.

The defence was aborted again on the 16/3/2017. Rather, 1st defendant’s Counsel brought a motion (dated 13/3/2017) which was granted, unopposed, to amend the written statement on oath by way of substitution, and the statement on oath of Mr. Anthony Khoru, dated 14/1/2016, was struck out and, the 1st defendant gave evidence as DW1 on 16/3/2017, and the case was adjourned for continuation of evidence on 30/3/2017. Idris Baba, Esq held the brief of Umar Hussaini, Esq for 2nd defendant (Appellant) on 30/3/2017 and said they were not ready, because their witness was not in Court and sought adjournment, which was opposed. The adjournment was, however, granted with cost of N50,000.00 against Appellant.

And on the next adjournment date, 26/4/2017, Baba Idris Esq., again said they were not ready to take their defence and asked for another date, this was opposed and the trial Court refused the application and closed the case of the 2nd Defendant (Appellant) and adjourned the case for final addresses by the parties.

On 7/6/2017 when the matter came up for addresses, M.M. Narimi appeared to hold brief for Umar Hussaini for Appellant. He said he had filed a notice of withdrawal, dated 6/6/2017. One Mustapha Idris Esq., appeared to say he had been briefed by the Appellant to take over the case. He asked for a short adjournment to take charge of the case. The trial Court refused the application for adjournment, in a considered ruling, as shown on Pages 56 – 57 of the Records, for being frivolous and vexatious, and adjourned the case for judgment, after taking note of the written addresses of the Counsel for 1st Defendant and the Plaintiffs.

I have taken the troubles and pains to narrate and document the tortuous journey of this case at the trial Court and the various acts of the Defendants (particularly Appellant), to frustrate the case. I think the trial Court deserves some award for his patience and tolerance of the recalcitrance and belligerence of the Defendants (particularly Appellant) in the way it (Court) allowed them to play their delatory games of mischief and fight to frustrate a simple claim of debt, which they did not deny, and had even opted to settle by installmental payments!

I had already reproduced the various admissions by Appellant’s Counsel, showing that Appellant opted for amicable settlement with the 1st and 3rd Respondents and told the Court of the postdated cheque of N10,000,000, issued as first installment to settle the debt and of subsequent cheques. Appellant’s Counsel had boasted that subsequent payments would be made to settle the debt and took adjournment to report, only to stay away from Court on the next adjournment date! Appellant, finally paid only N5,000,000, as part of the debt settlement, and kept dribbling the Court to post-pone the impending judgment, having admitted the debt!

Appellant Counsel’s tactical withdrawal from the suit, on 7/6/2017 (that is, M.M. Narimi Esq, who held the brief of Umar Hussaini, filing notice of withdrawal), appeared to me to be another ploy to sustain the frustration of the case, as a new Counsel, Mustapha Idris Esq., immediately stepped, in to continue the game of delay and frustration, when he asked for adjournment!

I think the trial Court acted rightly when it refused the application for further adjournment for defence, as it was obvious Appellant had no defence and never intended to enter any credible defence. Appellant cannot therefore complain of denial of fair hearing, as it consistently aborted every opportunity given to him to defend the suit, if he had any.

The law is trite that a party who has been given ample opportunity to state his case in Court, and failed to utilize it, cannot turn round to blame the Court claiming being denied fair hearing. See the case of Nwaigwe & Ors Vs Anyanwu (2016) LPLER – 40613 (CA):
“…One cannot complain of denial of fair hearing, when he aborted every opportunity given to him to state his case or to be heard. See the case of Kaduna Textiles Ltd Vs Umar (1994)1 NWLR (Pt.319) 143 at 159, where it was held: “Where a party to a suit has been accorded a reasonable opportunity of being heard in the manner prescribed under the law, and for no satisfactory explanation, it fails or neglects to attend the sitting of the Court, the party cannot thereafter be heard to complain of lack of fair hearing. The question is, is it fair and just to the other party or parties as well as the Court, that a recalcitrant and defaulting party should hold the Court and other parties to ransom? Should the business of the Court be dictated by the whims and caprices of any party? I think not…” See also Newswatch Communication Ltd Vs Atta (2006)7 MJSC 38 at 95; (2006)12 NWLR (Pt.993)144; (2006) LPELR – 1986 SC, where the Apex Court said: “It is the duty of the Court to create the atmosphere for a fair hearing of a case but it is not the duty of the Court to make sure that a party takes advantage of the atmosphere or environment by involving himself in the fair hearing of the case. A party who refuses or fails to take advantage of the fair hearing process created by the Court cannot turn round to accuse the Court of denying him fair hearing. That is not fair to the Court, and Counsel must not instigate his client to accuse the Court of denying him fair hearing. A trial Judge can indulge a party in the judicial process for some time but not for all times. A trial Judge has the right to withdraw his indulgence at the point the fair hearing principle will be compromised, compounded or will not really be fair as it affects the opposing party” Per Tobi JSC. I think in this case that Appellants appeared to have demonstrated consistent lack of interest to defend, as shown in delays to file memorandum of appearance and defence or come to Court to defend it, and the case having been adjourned for judgment but later aborted on the plea of the Appellants, to enable them take steps to defend, but again abandoning the defence, and defying the Court order, I do not think Appellants are right to complain of denial of fair hearing, when the Court ran out of patience to further indulge them in their dilatory games. The Respondent too had a right to fair hearing of this old case, to a conclusion. A party who fails to utilize opportunity of prosecuting his case, cannot turn round to blame the Court for not being given fair hearing. GTB PLC Vs FADCO INDUSTRIES Nig. LTD. & Anor (2013) LPELR 21411 (CA). In the case of F.H.A. Vs Kalejaiye (2011) All FWLR (Pt.562)1633, ratio 8, it was held: “The role of the Court in the adjudication is to maintain a level playing field for the parties by offering them equal opportunity, to present their case or grievances, if they so wish. Once the opportunity is offered, it is the duty of a party to litigation or his Counsel to utilize same in accordance with the rules of procedure and substantive law. Where, however, he or his Counsel fails or neglects to utilize the opportunity so offered, he cannot turn round to blame the Court for the loss of the opportunity as the Court will not allow a party to hold the opponent or the Court to ransom under the guise of the desire to protect the principles of fair hearing.”
See also A.G. Rivers State Vs Ude & Ors (2006) LPELR – 626 (SC), Darma Vs Eco Bank (2017) LPELR – 41663 (SC), Inakoju & Ors Vs Adeleke & Ors (2007) LPELR – 1510 (SC), Esabunor & Anor Vs Faweya & Ors (2019) LPELR – 46961 SC.

I had earlier stated that Appellant, by conduct, had admitted the debt, and had disclosed some steps to settle it, only to adopt dilatory tactics to frustrate the case. Appellant cannot therefore complain of denial of fair hearing, upon the Court entering judgment for the 1st and 3rd Respondents.

The 2nd Respondent, who was on the same side with Appellant, has also attested to the soundness of the decision of the trial Court. I therefore see no merit in this appeal, as I resolve the issues against Appellant and dismiss the appeal, with cost of N100,000 (One Hundred Thousand Naira) against Appellant, payable to the 1st and 3rd Respondents.

ABUBAKAR MUAZU LAMIDO, J.C.A.: I have had the privilege of reading in draft the judgment delivered by my learned brother, ITA G. MBABA, JCA, and I am in complete agreement with the reasoning and conclusion reached that this appeal is without any merit. I too dismiss the appeal and abide by all the consequential orders as contained in the lead judgment.

USMAN ALHAJI MUSALE, J.C.A.: My learned brother, Ita G. Mbaba, JCA had availed me with a draft of the lead judgment before now. I am in agreement with the reasoning and conclusions reached. The appeal is also dismissed by me and I abide by the consequential orders made therein.