CaseLaw
FBN V. Ejikeme (1996) CLR 2(q) (CA)
Judgement delivered on February 27th 1996
Brief
Facts
The Respondent as Plaintiff C commenced an action in suit No. PLD/J/408/90 at the High Court of Justice, Plateau State sitting at Jos, presided over by Suleiman Galadima J., against the appellant who was the defendant, claiming as follows:
IN THE ALTERNATIVE
The sum of N252.211.00 being special damages and the sum of N247.789.00being general damages for loss and injury suffered by the plaintiff as a result of the defendant's failure to pay his premium as per agreement.
Court. The case proceeded to trial on 4/2/91. The plaintiff testified as PW l and
When the appeal was heard on 22nd of April 2010, the Appellant relied on the Appellant's brief filed 23/7/07 and the Appellant's Response to preliminary objection and Reply to Respondent's Brief filed on 10/12/07. The learned Counsel for the Appellant submitted that this Court granted some prayers in its application before it on the 10th of April, 2007. The Appellant raised fresh issues and proposed new grounds of appeal - these issues cover grounds 4, 5 and 6 of the grounds of appeal while other grounds raised in the appeal are grounds of law. I intend to come back to this when considering the preliminary objection, raised by the Respondent in its brief. Meanwhile, the Appellant has abandoned ground 2 of the ground of appeal. The ground is automatically struck out. The Appellant also referred to the application of the Respondent filed on the 21st of December, 2006 at the Supreme Court Registry seeking departure from the Rules of the Supreme Court to permit the Respondent to personally undertake the compilation of the Record of appeal for use at the hearing of this appeal. This application was taken in Chambers and granted on the 20th of June 2007. Meanwhile, the Registry of the lower Court had on the 20th day of May, 2007, transmitted to this Court and served on the parties the official compiled record of appeal in two volumes. The Appellant presumes that the time for the filing of briefs will start to run as from the 20th of May, 2007. All reference to record in the appeal shall be to these two Records.
As the defendant was absent and gave no indication of its intention to enter its defence and address, the learned trial Judge fixed the matter for judgment. Before the date for judgment, the defendant by motion on notice supported by affidavit applied for and was granted leave to cross-examine the plaintiff s witnesses and enter its defence. This opportunity was however not utilised by the defendant despite several adjournments before. The court thereafter received the plaintiff's final address in the matter and fixed the case for judgment.
Before the date fixed for judgment, the defendant filed a similar application for leave, this time, to enter its defence and address the court. The defendant filed a 20 paragraph affidavit in support of the application explaining the reasons for the H defendant's failure to appear in court on several previous adjourned dales. The plaintiff also filed an 18 paragraph counter affidavit, (see pp. 50-57 of the Record of proceedings).
After going through the affidavit and the counter affidavit of both parties, arguments and submissions of counsel for the parties, the learned trial Judge in his Ruling of 8/7/92 refused Defendant's application to enter its defence and address the court and proceeded thereafter, to deliver his judgment in the matter on 14/12/ 92 in favour of the plaintiff.
In refusing the defendant's application for leave to enter its defence and address the court, the learned trial Judge in his said Ruling of 8/7/92 at pp. 61-66 particularly at pp. 65-66 of the Records of Proceedings said inter alia:-
"Ordinarily an application of this nature would not be refused. Throughout the proceedings the court has been fair to both parties particularly to the defendant, what learned counsel for the plaintiff would call "over indulgence”. The learned counsel has submitted details with dates this over indulgence. This was done as not to shut out the defendant it was done so that they can be heard fairly, (see Edith Asomugha v. Mandillas Enterprises & Anor. (1985) 3 NWLR (Pt.12) 325 at 333. But going through the whole proceedings and circumstances of this case show that the defendant and counsel have not been diligent and interested in defending this suit It is right for counsel who has earlier on fixed a case for an address with his consent to choose at his own convenience to travel out of the jurisdiction to address another court of equal status. Paragraph 9 of the applicant's affidavit in support of the motion shows that, it was not convenient to defendant/applicants' counsel as he had another matter before the High Court Makurdi for address; Moreso, that the said letter explaining his absence Exhibit 'A' was endorsed by the same counsel who deliberately refused or neglected to let the Court and counsel on the other side have a copy simply because the court has closed for the day" (See paragraph 12 of the affidavit).
It is in view of what have been said above that I cannot grant this application. It would appear that the non-appearance of counsel and indeed the defendant in this action on 12/11/92 was deliberate. This is judged even from their own contents of the affidavit in support of the motion. It does not show diligence on the part of the defendant/applicant in their part to come to court even if the counsel has refused to do so. In the circumstances this application for an order granting leave to the defendant/applicant to defend and address the court is refused as to do that would amount to over indulgence to an unwilling defendant and indeed an abuse of court's process."
In his judgment of 14/12/92 delivered after the said Ruling of 8/11/94, the learned trial Judge entered judgment for the Plaintiff as follows:-