Demsa Local Government V. Jokems Nigeria Limited (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

SOTONYE DENTON-WEST, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the ruling of Hon. Justice I. K. Banu of Adamawa State High Court delivered on 15th March, 2006.

The Respondent commenced an action against the Appellant at the trial court claiming the followings:

1. The sum of N5million being outstanding balance of a contract sum awarded to the Respondent by the Appellant herein.
2. 20% interest on the outstanding balance of N5 million.
3. The cost of litigation.

The writ was placed under undefended list but the Appellant brought a notice of intention to defend, consequently, it was transferred to the general cause list.

The full trial of the matter commenced and at the end of which the trial Judge entered Judgment in favour of the Respondent herein and ordered as follows:-

1. The Defendant known as Appellant herein shall pay to the plaintiff herein known as the Respondent the sum of N5 million only being the outstanding balance of contract sum for the electrification of Bwashi, Mugurang and Kodomun towns in Demsa Local Government Area.
2. The Defendant shall also pay to the Plaintiff 10% interest on the Judgment sum of N5 million which is N500,000.
3. The cost of N9,390 only to be paid to the plaintiff by the Defendant.

Against the above decision, the Appellant appealed to this court vide a notice of appeal filed on 24/14/2006 containing two grounds of appeal.

The Appellant in its brief of argument dated and filed on 20th June, 2011 and deemed filed on 21st June, 2011 submitted the following issues for determination:-

1. Whether the Appellant was given fair hearing by the trial court, as enshrined by Section 36 of the 1999 Constitution.
2. Whether the Appellant was given fair hearing by the trial court, when the court refused to allow it opportunity by way of adjournment to engage the services of another Counsel to handle its case.

The Respondent on its own part identified only one issue far determination i.e:-

Whether having regards to the facts and circumstances of this case, the Appellant could be said to haven been denied fair hearing by the trial court when it refused to grant adjournment and when it subsequently proceeded to give judgment in favour of the Respondent.

In the determination of this appeal, Appellant’s issue No. 1 shall be the focus of this court. This is because it covers other issues raised in the appeal. Whether the Appellant was given fair hearing by the trial court as enshrined by Section 36 of the 1999 Constitution.

In his argument, the learned Counsel for the Appellant Abubakar Sa’ad Esq. submitted that the trial court on the 17th January, 2005 ruled following an application of the Counsel to the Appellant as Defendant to withdraw his services to the Appellant as follows:-

1. If the Defendant and Chief J. R. Ndawalam are able to sort out their differences, Chief J. R. Ndawalam is to appear on the next date.
2. If they are however unable to sort out their differences, the Defendant has the choice of either bringing another Counsel or to proceed with their case without a Counsel, in short the case must proceed to hearing on the next adjourned date and referred to page 28 and 29 of the record of the proceedings.

On 8th February, 2006 according to the learned Counsel, a representative of the Defendant/Appellant was in court and informed the court that they were unable to resolve their differences with their Counsel and would therefore need adjournment, but the court refused and proceeded to trial. The Plaintiff called one witness and tendered 7 documents and referred to page 29 and 30 of the record of proceedings.

It was argued by the learned Counsel that the essence of fair hearing under Section 36 of the 1999 Constitution of Nigeria is to allow both parties be plaintiffs or Defendant’s, prosecution or defence an equal opportunity to be heard and he referred to the Supreme Court case of Pam Vs Mohammed (2008) 16 NWLR (Pt.112) at page 13 & 11.

It was argued that in the circumstances of this case, the trial court never gave the Appellants the opportunity to be heard, as it did not give the Appellant the privilege of adjournment to engage the services of another counsel of their choice. However, it was submitted that Section 36 of the constitution has provided for a person to be given reasonable time to be heard. The case of Pam vs Mohammed (supra) at page 18 and 20 was referred to where it was held as follows:-