Alsthom S. A. & Anor. V. Chief Dr. Olusola Saraki (2005)

LAWGLOBAL HUB Lead Judgment Report

EJIWUNMI, J.S.C.

This is an appeal and cross-appeal against the majority judgment of the Lagos Division of the Court of Appeal sitting in Lagos (Coram:- Sulu-Gambari, Kalgo, JJCA, as they were then) delivered on the 11th day of August, 1994. Uwaifo, JCA (as he then was) also on the same date delivered his dissenting judgment.

The appeal arose from the judgment of Adeniji, J. sitting then at the High Court of Lagos State in its Lagos Judicial Division. In that court, the two plaintiffs, appellants/cross-respondents claimed jointly and severally from the defendant/respondent and cross-appellant, the sum of N45, 387,264.42 (forty five million, three hundred and eighty seven thousand, two hundred and sixty four Naira, forty two kobo) being outstanding debt owing to the plaintiffs as a result of the loan granted by the 1st plaintiff to the defendant at his request which debt is now in the sum of US $9,747,914.44 (nine million, seven hundred and forty seven thousand, nine hundred and fourteen United States dollars and forty four cents) as at 31st July, 1987, converted to Naira at the prevailing exchange rate on the 31st August, 1987 of US $1 to N4,6561 (b) the plaintiffs also claimed interest on the said debt at the rate of 18% per annum from the 1st of September, 1987 until judgment and thereafter at the rate of interest on the said judgment until the debt is liquidated, The case was tried on pleadings and with the leave of court, the parties also filed amended pleadings in pursuit of the different positions taken by them in respect of the dispute, And on the 27/7/90, the trial court according to the records commenced with the taking evidence in the matter. The plaintiffs led evidence through their only witness, Babatunde Aderonti Moshood Fashanu and who had earlier been appointed as the attorney for the plaintiffs. Apart from his oral testimony, this witness also tendered some documents in support of

the case for the plaintiffs, The thrust of his evidence is that sometimes in March 1982 when defendant was resident in London, he approached the 1st plaintiff abroad for a loan of five million United States dollars ($5, 000, 000, 00), The 1st plaintiff agreed to lend him that sum subject to 2nd plaintiff giving a guarantee, The 2nd plaintiff did give the guarantee. Thereafter the 1st plaintiff gave the loan to the defendant. The loan had been repaid by 2nd plaintiff to 1st plaintiff. But the defendant had not repaid the loan.

The witness further testified that he obtained all the pieces of evidence from documents which came to his possession, after he was appointed by the plaintiffs as their attorney. He then tendered

some of the documents, which were admitted as exhibits. It was at this stage that the hearing of the case was adjourned to the 5th of October, 1990 for continuation. But on that day, hearing was further adjourned without the court taking any evidence. On the 10th of January, 1991, the hearing of the case continued with the cross-examination of the witness. In the course of his evidence, he stated that though he knew that the defendant is a medical officer, it was also known to him that the defendant participated in politics and was a Senator in the 2nd Republic. But also, he knew that in 1982, the defendant was resident in London. And during that period, the witness claimed that he was also in London between August/September 1981/82 doing his post-graduate studies. He claimed that he often saw the defendant walking along the road that the witness took on his way to the college attended by the witness in London.

Furthermore, he claimed that on one of such occasions the defendant stopped to talk to him in the course of which he told the witness that he was resident in London and that he had a permanent suite at Churchill Hotel. On that date, hearing in the matter was adjourned to the 14th and 15th day of March, 1991 for continuation.

On the first adjourned date, i.e. 14/3/91, no evidence was led and hearing was adjourned to the next day 15th of March. On that day, the learned trial Judge granted the plaintiff’s application for leave to file an amended statement of claim. After that order, the trial Judge then granted leave to recall the first plaintiff’s witness and adjourned further hearing to the 22nd and 23rd of May, 1991.

On the first adjourned date, i.e. the 22nd of May, the court had to adjourn further hearing of the case to 19/7/91. This was because learned counsel for the plaintiffs H.A. Lardner S.A.N., could not be in court due to other engagements. On that adjourned day, namely 19/7/91, the printed record does not show what transpired on that day as nothing was recorded to that effect. However the matter came before the court on the 7th of October, 1991, when H.A. Lardner S.A.N., appeared for the plaintiffs but the defendant was not represented. The case was then adjourned to the 14th of October, 1991. On the 14th October, 1991, though counsel for the parties, namely Miss Bassey for the plaintiffs and Miss Maduako for defendant, were in court, the case was adjourned to the 11th and 12th of February, 1992. And on the 11th of February, when the case was called, it was further adjourned for trial to the 14th and 15th of May, 1992 and although both parties were represented by counsel, namely, Dawodu for plaintiffs and Miss Johnstone for defendant, the court adjourned it to 10th June, 1992 for defence. And again though counsel on both sides appeared, the case was adjourned to the 10th day of June, 1992. It must also be noted that on each adjourned date, the parties to the action were also absent. The plaintiffs, who were represented by PW1, B.A.M. Fashanu were present only on the days evidence was taken from him. And he was last in court on the 10th January, 1991.

Now as already noted above, the case was adjourned to the 10th of June, 1992. When the case was called on that day, the parties were absent but their learned counsel, namely, Dawodu for plaintiffs and Delano for defendant appeared for the parties, its hearing was further adjourned to the 30th of September, 1992. And on that day, parties were not in court, although the plaintiffs were represented by their learned counsel, R.O. Dawodu and Chief ER.A. Williams S.A.N., for the defendant, the matter was further adjourned to the 2nd and 3rd of December, 1992 for defence. The matter on the 2nd of December, 1992 was however further adjourned to the 15th of March, 1993, though learned counsel for the parties as noted above were in court. The matter was again similarly adjourned when it was called on the 15th of March, 1993. The court on that adjourned the case to 15th June, 1993 for defence.

On the 15th of June, 1993, when the case was called, the parties were absent but only the learned counsel for the plaintiffs, R.O. Dawodu, Esq. was present in court. The counsel then moved the court to close the case in view of the fact that both the defendant and his counsel were not in court. It would appear that sometime after this submission was made, Chief F.R.A. Williams, S.A.N., appeared in court for the defendant. He then informed the court that his client unfortunately was not in court and for that reason, he asked for an adjournment. This prayer was seriously resisted by learned counsel for the plaintiffs and he urged the court to refuse the prayer for adjournment. The court, Coram Adeniji, J, after hearing the submissions of learned counsel then delivered a ruling in which he concluded by refusing the application for adjournment sought by learned counsel for the defendant to be in court.

There then followed the following exchange between learned counsel for the parties and the court. See page 252 of the record. It reads: –

“Court: Chief Williams – What do you now intend to do.

Chief Williams: My client is just not in court.