Victor Ebong & Anor V. Reicon Company Limited (1998)

LawGlobal-Hub Lead Judgment Report

TOBI, J.C.A.

On 13/7/93, the respondent as plaintiff, filed a writ of summons in the Undefended List claiming from the appellants as defendants, jointly and severally the sum of N260, 000.00. On 26/7/93, the appellants filed a Notice of Intention to Defend the Action. The Notice was duly served on the respondent. The case was adjourned to 9/11/93.

The matter came up on 9/11/93. Counsel for the respondent asked for a date for argument. The matter was accordingly adjourned to 2/2/94. On 2/2/94, the matter was again adjourned to 14/3/94, at the instance of the appellants. On 14/3/94, the appellants and their counsel were absent and the matter was again adjourned to 11/4/94. On 11/4/94, both counsel were in court. Counsel for the respondent asked for another adjournment. The matter was again adjourned to 7/6/94.

Both counsel were present in court on 7/6/94. On that day, counsel for the respondent moved the motion. He urged the court to enter judgment in favour of his client. He addressed the court to the effect that the affidavit of the appellants did not disclose any defence to the action. At the close of the address, counsel for the appellants asked for a date to reply. The matter was adjourned to 12/7/94 for reply. Came 12/7/94 and counsel for the appellants, by a letter, asked for another adjournment. Counsel for the respondent informed the court that counsel for the appellants who was said to be indisposed had actually been seen in court. The matter was however adjourned to 31/8/94 for reply. The Judge ordered that if there was no reply on that date, he would adjourn for judgment.

On 31/8/94, both counsel were present in court. Counsel for the appellants still asked for another adjournment claiming that he was not ready to proceed after counsel for the respondent had made a lot of insinuations from the Bar that counsel for the appellants were trying to use the court as an instrument of fraud. The learned trial Judge refused the application and adjourned the matter for judgment which he delivered on 21/11/94.

Aggrieved, the appellants filed an appeal. Briefs were filed and exchanged. The appellants filed a reply brief. The appellants formulated five issues for determination:

“(i) Whether the learned trial Judge did not err in law when he refused the appellants counsel one more adjournment to enable counsel for the appellants proffer a reply to the address of the respondent’s counsel.

(ii) Whether the learned trial Judge did not err in law when he failed to consider the affidavit disclosing a defence filed by the appellants irrespective of whether the defendants/appellants counsel addressed Court or not.

(iii) Whether the learned trial Judge did not err in law when he refused to consider the affidavit disclosing a defence and by so doing occasioned a miscarriage of justice.

(iv) Whether the learned trial Judge’s judgment as it were, did not amount to justice on technicalities.

(v) Whether the learned trial Judge did not err in law and on the facts when he proceeded to act on the unsworn testimony of the respondents counsel and proceeded to use same in entering or arriving at his judgment in the matter.”

The respondent formulated three issues for determination:

“(1) Whether the refusal of learned trial Judge to grant the appellants an adjournment before entering Judgment under the undefended list procedure of the Cross River State High Court Rules occasioned a Miscarriage of Justice?

(2) Whether the appellant’s counter-affidavit disclosed a defence on the merit?