Disable Preloader

CaseLaw

Julius Berger (Nig.) Ltd. V. Femi (1993) CLR 3(h) (CA)

Judgement delivered on 30th March, 1993

Brief

  • Exercise of discretion by trial court
  • Record of appeal
  • Adjournment of hearing
  • Service of process

Facts

The plaintiff, herein respondent, is a driver/mechanic employed by the defendant, herein appellant, as a generator operator. The appellant is an engineering company incorporated in Nigeria carrying on business in Abuja and are owners of a quarry at Mpape, Abuja. Apparently, in the course of appellant's quarry business sometime in July 1988, a piece of rock being blasted by the appellant hit the respondent on his right arm while he was some 300 metres away from the scene of blasting. The affected arm was subsequently amputated. The respondent in consequence of the amputation, instituted an action against the appellant alleging that the injuries he suffered arose from the negligence and lack of due care by the appellant in the course of their rock blasting operation. He instituted this action and claimed as follows, as per paragraph 13 of his statement of claim:

  • "Whereupon the plaintiff now claims from the defendant the sum of two hundred and fifty thousand naira as damages and or compen¬sation for the loss of arm which resulted to a 75% disability for the young man to cushion the diminution in prospect of future earnings, physical deprivation, future economic loss, loss of enjoyment of life, actual and potential reduced remuneration, inflation from the act or the defendant."

The respondent himself was the only witness who testified at the hearing of this suit while the appellant rested their case on the respondent's case, not having called any witnesses. At the close of respondent's case on 26.6.90, the court adjourned to 19.7.90 to enable the appellant to open their defence, but on the resumed sitting respondent's counsel was not present in court; the case was further adjourned for hearing to 19.9.90. On the said date both parties were present but their counsel were absent, and, accordingly, the case was adjourned to 23.10.90 for continuation. On 23.10.90 the court sat but only respondent's counsel appeared to have been present and the following recording is evident:

  • "Uye Ogedengbe for the plaintiff.
  • Plaintiff counsel - The matter is for defence and the defence has not been able to take up since the last adjournment date. I therefore seek to address the court.
  • Court - case adjourned to 24.10.90 for address."

On 24.10.90 neither the appellant nor their counsel was present but the court proceeded with their address by learned counsel for the respondent, and thereafter judgment was reserved to 17.1.91. Again, on the adjourned date, without any hearing notice having been served on the appellant, the learned trial Judge, Kusherki J. entered judgment for the respondent in the sum of N220,000 as damages against the appellant, with Nl,000 costs.

Dissatisfied with this judgment the appellant has now appealed to this Court.

Read More