Eastern Bulkcem Company Limited & Ors. V. Mr. Promise Amadi (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

EJEMBI EKO, J.C.A (Delivering the Leading Judgment)

On 4th November, 1994 more than a decade and a half ago the Respondent, as plaintiff in the suit No PHC/933/34 at the High court of Rivers State took out against the Appellants as the defendants, a writ of summons endorsed with the following claims. That is:

1. As against the 1st Defendant:

(a) a declaration that the act of the Defendant in suspending the plaintiff from duty by placing him on a indefinite compulsory leave without pay and withholding all his entitlements to housing, transport and medical allowances with effect from November,1993 is wrongful and invalid.

(b) a declaration that the Plaintiff is entitled to his full salary and housing, transport and medical allowances from the month of November, 1993 until his employment with the 1st Defendant is determined.

(c) the sum of N30,700:00 (Thirty Thousand and Seven Hundred Naira) being portions of the plaintiff’s salaries, housing, transport and medical allowances from November, 1993 to October, 1994 inclusive which has been unlawfully withheld by the 1st Defendant; and salaries and allowances to be calculated at the same rate due to the plaintiff from November, 1994 until judgment, and thereafter at the same rate until whenever the plaintiff’s employment is lawfully determined.

As against the 1st and 2nd Defendants, jointly and severally:-

The sum of N300,000:00 (Three Hundred Thousand Naira) as damages for slander when the 2nd defendant as agent and servant of the 1st Defendant on or about 28/6/93 at the premises of the 1st Defendant, falsely and maliciously spoke and published of and concerning the plaintiff to Messrs Emmanuel Wagbara, Frankline Amadi and other bystanders whose names are at present unknown to the plaintiff words to the effect that the plaintiff stole cement belonging to the 1st Defendant.

3. As against the 1st and the 3rd Defendants, jointly and severally:-

The sum of N500,000:00 (Five Hundred Thousand Naira) as damages for libel contained in a public notice dated 8/7/93 published by the 1st and 3rd Defendants and pasted on all the gates of the 1st Defendant’s premises.

4. As against all the Defendants, jointly and severally:-

An order of injunction restraining the Defendants from further speaking, writing or circulating or otherwise publishing of the plaintiff the said words or similar defamatory words.

Hearing in the suit commenced on 5th November, 1996 before Hon. E. A. Olukole, J. with the evidence of the plaintiff, as PW1 the evidence of the PW1 was not concluded until 8th June, 1999. At conclusion of the plaintiff/PW.1’s evidence on 8th June, 1999 the defence was adjourned to 16th June, 1999. It is not clear from the minutes of the proceedings if the court sat on 16th June, 1999. The Respondent’s Brief at page 4, paragraph 2.4 thereof, however suggests that on 16th June, 1999, the evidence of the 1st defence witness, DW.1, was taken and the matter was adjourned to 21st June, 1999 for defence to continue. After series of adjournments, the second defence witness, DW.2, one Mrs. Mary Osuji, commenced her testimony. By 28th May, 2001, the DW.2 had not concluded her evidence-in-chief due to series of adjournments and excuses at the instance of the defence counsel. When the defence counsel asked for adjournment on 28th May, 2001 on the ground that DW.2 was not well, Mr. Ugboduma of counsel for the Plaintiff/Respondent vehemently opposed the adjournment and castigated the defence for filibuster and dilatory strategies. The learned trial Judge refused the adjournment and stated inter alia:’I do not believe the learned Defence Counsel that DW.2 was sick. If she was sick, there are persons who could stand in and appear as 1st Defendants moreover today is the defence case for this case to go on as per counsel letter dated 21/5/2001. Order 37 Rule 7 of the, Rules of the High Court takes care of situations like this. It reads:

If when a trial is called on the plaintiff appears, and the defendant does not appear, then the plaintiff may prove his claim so far as the burden of proof lies upon him.

I am satisfied from the evidence that the plaintiff has discharged the burden of proof which is upon him to prove his claim. Application for adjournment refused. Judgment is accordingly given to the plaintiff [in terms of the claims endorsed on the writ]

The Appellants, not happy with the turn of events promptly filed their notice of appeal on 29th May, 2001 with 4 grounds of appeal. By leave of this Court granted on 12th January, 2009 the original notice of appeal was amended and the grounds of appeal increased to 5. Two issues for determination in the appeal were distilled from the 5 grounds of appeal by the Appellants in the Appellants Brief of Argument filed on 14th January, 2009. The Respondent through his counsel filed Notice of Preliminary objection and the Respondent’s Brief of argument on 27th January, 2009. The preliminary objection was argued in the Respondent’s Brief. Thereafter, the Appellants filed their Reply Brief and therein replied the preliminary objection. Without prejudice to his preliminary objection the Respondent also formulated and argued two issues for determination in his brief of argument.

The issues formulated by the Appellants are as follows: