Festus L. Adewunmi V. Plastex Nigeria Limited (1986)

LawGlobal-Hub Lead Judgment Report

COKER, J.S.C.

The point in this appeal is short and direct and has aptly been stated in the Appellant’s brief in the following words:-

“The Court of Appeal had held that counsel’s duty was to prosecute the appeal, and not to withdraw it without express authority from the Defendant (hereinafter called “the Respondent”). The Appellant contended that it fell within the scope of counsel’s implied authority, and that the withdrawal was therefore binding on the Respondent.”

The facts of the case are as follows:-

The appellants, Plastex Nigeria Ltd., were the defendants in the High Court of Lagos State. They were tenants of the Plaintiff, Festus L. Adewunmi, in respect of a business premises described as Bournville House Iju Waterworks Road, Ifako, Agege in the Lagos State. The landlord took out a writ of Summons for recovery of possession of the premises on grounds of arrears of rent and breach of covenant of tenancy agreement.

The Plaintiff filed a Statement of claim, but the defendants failed to file any statement of defence throughout the hearing, although their counsel appeared at the trial and cross-examined the plaintiff who was the only witness at the hearing. At the close of plaintiff’s case, Mr. Abifarin, learned Counsel for the defendants, intimated the court that he was “resting the defendant case on the plaintiff’s.” After Mr. Iyanda, learned Counsel for the plaintiff had concluded his closing address, Mr. Abifarin on behalf of the defendants in reply, addressed the Court. Judgment was then reserved.

On the 29th day of July 1983 as would be expected the learned trial judge entered judgment in favour of the plaintiff in the absence of any challenging evidence and proof of service of apparently good statutory notices. He ordered the defendants to give up possession of the premises on 31st day of August 1983 and in addition ordered that they should pay N9,000.00 arrears of rent and in addition, pay mesne profits at the rate of N4,500.00 per annum with effect from 1st September 1982 until possession was given to the plaintiff.

The defendants then appealed to the Court of Appeal against the decision. However before the hearing of the appeal, the defendants filed an application on notice seeking “special leave to admit additional evidence before the Court,” and according to the application, the grounds for the application were as follows:-

“(i) The nature of the evidence which the Appellant now seeks leave to adduce is such that had it been before the Court at the trial of the action the Respondent action would have been dismissed. “(ii) The evidence which the Appellant now seeks to adduce will enable the Court of Appeal to discover the truth and to avoid any miscarriage of justice.

“(iii) The documents which the Appellant now seeks to tender were not available to the Appellant during trial. ”

The application was filed by an eminent and experienced Counsel, Professor A. B. Kasunmu, S.A.N., and was supported by an affidavit sworn to by one Lawai Obelawo, described as the Chairman of the defendants’ company.

And the Plaintiff himself swore to a counter-affidavit. The Plaintiff/Respondent then gave notice of a preliminary objection before the hearing of the application to the effect that the notice of appeal was filed out of time. On the 10th November 1983, when the application came before the court for hearing, Professor Kasunmu applied for an adjournment; meanwhile, the Respondent had levied execution by recovering possession of the premises and that was on the 3rd November 1983. The appellants’ application for a stay of execution was consequently struck out by the Court below on 8th December 1983 although on the 9th January 1984 the application of the appellant for extension of time to appeal was granted. A fresh application for leave to admit additional evidence on the same grounds as the earlier application was then filed by the appellants on the 12th day of January 1984. Professor Kasunmu moved the application on 14th March, 1984 and on the 8th day of May 1984, the application was dismissed in a reserved Ruling.

Faced with the dismissal of the application, it was not surprising that when the appeal came before the court on the 22nd May, 1984, one Mr. Lawson who appeared for the appellants, informed the Court that he was withdrawing the appeal and Mr. Iyanda for the Respondents not objecting, the Court made an order dismissing the appeal with N50 costs to the Respondent. It is obvious that learned Counsel for the appellants considered that without the fresh evidence sought to be adduced at the hearing of the appeal it will be an uphill task to secure a reversal of the decision of the trial court, based on the uncontradicted evidence of the Plaintiff/Respondent.

Then came an application before the lower court filed by Mr. Molajo, S.A.N., on behalf of the Appellants, praying for an order