Reynolds Construction Company Limited V. John Okpegboro (1999)

LawGlobal-Hub Lead Judgment Report

AKINTAN, J.C.A.

The appellant company, Reynolds Construction Company Limited, was the defendant in this action instituted at the Iguobazuwa High Court of Edo State as suit No. H/GU/19/91. The present respondent, John Okpegboro, was substituted for his father, Francis Okpegboro, the original plaintiff when he died. His claim before the Court as endorsed in paragraph 26 of the amended statement of claim is inter alia, for:

“The sum of N961,000 being special and general damages suffered by the plaintiff as a result of the destruction of his economic crops by the defendant.”

Pleadings were filed and exchanged and the trial thereafter commenced before Hayble, J. The plaintiff opened his case on 8th March, 1994. He gave evidence on that day and he was duly cross-examined by learned counsel for the defendant. The first plaintiff witness also testified on that day before further hearing was adjourned to 14th April, 1994 at the request of the defence. But on 14th April, 1994 the court did not sit and the case was on that day adjourned to 12th May, 1994. Again on 12th May, 1994, the court did not sit and the case was further adjourned to 26th July, 1994.

At the resumed hearing of the case on 26th July, 1994, learned counsel for the defendant was absent. The defendant company was also not represented in court. The court however took evidence from two other plaintiff witnesses. The plaintiff thereafter closed its case and the case was then adjourned to 20/9/94 for defence and address. When the case came up on 20/9/94, the defendant was not represented in court and its counsel was also absent. The court however took the address by learned counsel for the plaintiff and thereafter adjourned the case to 1/11/94 for judgment.

The defendant then filed a motion dated 21/9/94 in which it prayed the court for the following reliefs:

“(i) An order setting aside the adjournment of the proceedings herein for judgment.

(ii) Leave to recall the plaintiff’s 3rd and subsequent witnesses who testified in the proceedings herein for the purposes of cross-examination.

(iii) Leave to allow the defendant enter its defence on record in the plaintiff claim in the proceedings herein.”

The motion was supported by a 17 paragraph affidavit deposed to by Theodore Udochi, learned counsel for the defendant. The facts relied on are adequately set out in paragraphs 8 to 15 of the affidavit. The said paragraphs 8 to 15 read as follows:

“8. That I represented the defendant on the said 12th May, 1994 and upon the adjournment of the suit to the 23rd of June, 1994 I inadvertently omitted to endorse the said date on my file or diary

9. That due to the said omission I was unable to attend court on the said 23rd June, 1994, and was unaware that the suit was subsequently adjourned.
10. That on the 11th August, 1994 I met the plaintiff’s counsel F.I. Eduvie Esq., who duly informed me that the matter was called on the 26th of July, 1994 and he led his 3rd and subsequent witnesses in my absence and that the suit was adjourned to 20th September, 1994.

11.That I duly endorsed the said date in my diary and had same listed in the office diary.

12. That in preparing the cause list for the week commencing on the September, to the 23rd September, 1994 my Secretary Miss Ikpomwonsa Ale inadvertently listed the suit as B/138/91 Igbinoba v. Reynold Construction Company Limited, a different and distinct suit pending at the High Court of Justice, Benin City.
13. That counsel assigned to this mater Linus Osita Okeke Esq, duly informed me and I verily believe same, that he acted on the representation stated in my offence cause list and proceeded to the High Court of Justice Benin City on the said 20th September, 1994.
14. That the absence of counsel in court on the 26th July, 1994 and 20th September, 1994 was not deliberate but a consequence of the errors and omission as herein before stated.
15. That I verily believe that the defendant has a good and sustainable defence to the claims of the plaintiff as disclosed in it’s statement of defenec filed in this proceedings which it diligently intends to pursue.”

The motion thereafter came up for hearing before the same learned Judge Hayble, J. After taking submission from both counsel in the case, the learned Judge in a reserved ruling delivered on 25th October, 1994, refused the requests and dismissed the motion with N300 costs in favour of the plaintiff. The learned Judge said, inter alia, in the concluding portion of his said ruling:

“The defendant solicitor was in court on the adjourned date as per paragraph 8 of his affidavit. Not only that, the plaintiff’s solicitor made sure that when the defendant’s solicitor was absent in the adjourned date, conveyed the new date of adjournment to him per paragraph 10 of the affidavit. According to him he went to Benin Court instead of Iguobazuwa per paragraph 13 of the affidavit. Does it mean that counsel did not read his file he took to Benin court on or before the date he went to Benin court? I find the applicant’s explanation in the affidavit very unconvincing.