Savannah Bank of Nig. Plc & Anor V. Crown Star & Company. Ltd & Anor (2002)

LawGlobal-Hub Lead Judgment Report

ADEREMI, J.C.A.

Before the court below, the respondents, as plaintiffs in that court claimed against the appellants as defendants jointly and severally the following reliefs:

(1) A declaration that the 1st plaintiff is not indebted to the defendant under and by virtue of the contract in 1994 for the purchase of 2,000 metric tonnes of cement from the 1st plaintiff by one Jemcil (Nig.) Ltd.

(2) An order compelling the defendants to release the C plaintiff’s Peugeot 505 Station Wagon Reg. No. RV1685 DB forthwith and to make good all the necessary repairs to the said vehicle:

(3) An order of injunction restraining the defendant whether by itself, its privies, agents or assigns or however constituted from taking step or further step whether by way of complaint, report or any manner whatsoever to cause security agencies including the police force, the S.S.S. to arraign the directors of the 1st plaintiff and the 2nd plaintiff before any tribunal or otherwise by virtue of the contract between Jemcil (Nig.) Ltd. and the 1st plaintiff.

(4) An order of injunction restraining the defendant whether by itself, its privies, agents or assigns or however constituted from harassing or further harassing or disturbing the plaintiffs in their normal business or private engagement.

(5) special and general damages of N25,000.000.00 only as follows:-

(a) Special damages of N1,260,000.00 being cost of alternative transportation’s from June 12, 1995 to February 11,1997.

(b) General and exemplary damages of N23, 000.000.00 including for disruption of business or business activities, nervous shock, false imprisonment, harassment, trespass to property, conversion, misuse of government agencies infringement of the plaintiff’s human rights.

(c) Such further or other sums as the court shall hold the plaintiffs entitled to for the acts of the defendants.

Pleadings were filed and exchanged between the parties, Thereafter the case suffered a number of adjournments from the 26th of May, 1997 when both sides were represented by their different counsel and the case was adjourned for mention on 1st July, 1997 on which date by consent of both counsel, the case was adjourned for hearing on 17th and 18th September, 1997 for trial. The case came up before the court below on 17/9/97, 14/10/97, 2/12/92, 19/2/98, 24/3/98, 21/10/98, 19/4/99, 25/11/99, without the defendants and their counsel appearing in court. It was on 18/12/99 the date to which the case was adjourned from 25/11/99 for trial to commence that proceedings started in the case, Suffice it to say that neither the defendants nor their counsel were in court on 25/11/99 when the case was fixed for hearing on 8/12/99. Perhaps I should also say that evidence-in-chief of the plaintiff lasted from 8th December, 1999 till 17th February, 2000 when cross-examination was further adjourned to 6th March, 2000 and the trial Judge making an order that hearing notice be served on the defendants before the next date of adjournment. On 6th March, 2000 while the 2nd plaintiff was present, the case was again adjourned to 5/4/2000, I shall hasten to add that there is nothing on the record to show that the defendants were ever served with the hearing notice as ordered by the court. On 5/4/2000 in the absence of the defendants and their counsel, the plaintiff’s counsel (Mr. Anumudu) announced, the close of the plaintiffs’ case and the defence and addresses of counsel were adjourned to 26/4/2000, There is no record that the trial Judge sat on 26/4/2000 but the proceedings of 17/5/2000 show that the plaintiffs and their counsel were present in court and Mr. Anumudu, counsel for the plaintiffs drew the trial Judge’s attention to the fact that the defendants were served with the hearing notice. It was on that date (17/5/2000) after hearing Mr, Anumudu that the case was adjourned for judgment on 10/7/2000. Judgment was eventually delivered on 6/9/2000. The defendants thereafter brought an application dated 13th September, 2000 seeking leave extending the time within which to apply to set-aside the judgment and to set same aside, they also sought, inter alia, leave to recall the plaintiffs’ witnesses and for the defendants to call their witnesses. The application was supported by a 21-paragraph affidavit and an 11-paragraph affidavit of urgency and another 21paragraph further-affidavit. The plaintiffs/respondents who were the judgment-creditors in the lower court brought an application dated 5th October, 2000 praying the lower court to strike out the motion dated 13th September, 2000. That motion is supported by a 7-paragraph affidavit. The defendants/appellants filed a 7-paragraph counter affidavit in opposition. Sequel to taking arguments on the application dated 5th October, 2000 the learned trial Judge in a reserved ruling delivered on 18th January, 2001 upheld the prayer of the plaintiff/judgment – creditor/applicant and consequently dismissed the application of the defendants/appellants dated 13th September, 2000. In granting the application of 5th October, 2000 the learned trial Judge said inter alia:

“It is plaintiff’s application in question and the defendants application dated 13th September, 2000, have been argued together as I cannot dismiss an application unless I hear the merit thereof.

The substance of the defendants application dated 13th September, 2000 is that there was no service of the hearing notice issued on them. This is borne out in the affidavit in support of the application. There is no doubt that the application the defendants is seeking is for declaratory reliefs and is therefore equitable. There is the counter-affidavit to which exhibits K – MI are attached. There is nothing in the further affidavit deposed to on the 5th day of October, 2000 dissociating the defendants from the recipients of these documents which advised the applicants of the hearing dates. Moreover, there is the affidavit of the service of the hearing notice issued by the registrar of this honourable court on the defendants. There is no direct denial of this document by the applicant except a glib assertion that the defendants were not served. There is no doubt that the time within which the defendant may ask for setting aside of the judgment/proceedings had elapsed. The rules of this honourable court on the issue was interpreted by the Supreme Court in Williams v. Hope Rising Voluntary Funds Society (1982) 12 SC 145. A party that is seeking for the court’s indulgence must give reasons for and explain away, his delay. The affidavit filed by the defendants herein have not given any reason for the delay in bringing this application. I cannot in the circumstances grant the first prayer to wit. “an order granting leave extending time within which to apply to set-aside the judgment of this honourable court dated 6th September, 2000…. If I cannot grant this relief, I cannot grant any other relief prayed for ….. In the circumstance I hold that the defendant’s application does not deserved any sympathetic consideration. It is accordingly dismissed with N2,100.00 costs awarded in favour of the plaintiff, and the plaintiff/judgment – creditor/respondents’ objection is hereby upheld.”

It is against this ruling that the defendant/appellants have appealed to this court on six grounds. Distilled from the six grounds of appeal are five issues for determination, as set out in their brief of argument they are in the following terms: