B. E. Orisakwe & Sons Ltd. & Anor V. Afribank Plc. (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MASSOUD ABDULRAHMAN OREDOLA, J.C.A. (Delivering the Leading Judgment)

This is an interlocutory appeal against the ruling of L. C. Dakyen J. (as he then was) of the Plateau State High Court, delivered on 19th April, 2004 in suit No. PLD/J259/88 wherein some of the reliefs sought by the defendants/appellants were refused/dismissed.

It is to be noted from the outset, that due to the antecedents, twists and turns and nuances in this appeal, I do intend to give an extensive rehash and chronological sequence of events, which unfolded at the trial court and gave rise to the instant appeal. The facts of this appeal gleaned and garnered from the record of appeal are to the following effects. On 14th May, 1998 the plaintiff/respondent herein commenced action against the defendants/appellants under the undefended list procedure, claiming the following reliefs:

“The plaintiffs claim against the defendants jointly and severally is for:-

1. The sum of N9, 706,049.52 (Nine Million Seven hundred and six thousand, and forty nine Naira fifty two kobo) being personal loan/overdraft the plaintiff granted to the defendants at the defendants’ request at No. 23 Murtala Mohammed Way, Jos which the defendants failed to pay despite repeated demands.
2. 21% interest on the said sum of N9, 706,049.52 from 1/5/98 until judgment.
3. 10% interest from the date of judgment until final liquidation.”

The said writ of summons was filed together with an accompanying affidavit of 18 paragraphs with various documents annexed thereto. It was sworn to on 14th May, 1998 by one Murtala Idrisou, who described himself as “the officer in charge of credit department in the plaintiff’s office.” The said affidavit disclosed the circumstances which surrounded and warranted the plaintiff/respondent’s claim.

Upon being served with the said writ, the defendants/appellants filed their notice of intention to defend, dated 2nd June, 1998 with a notification therein, “that the defendants herein intend to defend this action in terms of the preliminary objection raised in the schedule hereto and the accompanying affidavit in support of the notice.” The said 17 paragraphs affidavit was belatedly sworn to on 20th June, 1998 by one Collins Orisakwe as the deponent. Thereafter, the plaintiff/respondent on 29th July 1998 filed a further and better affidavit with various documents annexed thereto as exhibits.

On 14th July, 1998 when the matter came up for hearing before the lower court, its record of proceedings showed that the 2nd defendant/respondent herein was present and that the learned counsel for the defendants/appellants, H. N. Ugwuala Esq. who held the brief of L. E. Anyia Esq. applied that the matter be stood down. The learned counsel for the plaintiff/respondent informed the trial court that he was served with the defendants/respondents’ notice of intention to defend, “about five minutes ago.” However, he did not oppose the application. It was however not convenient for the trial court and the matter was adjourned to 29th July, 1998 for hearing.

On 4th November, 1998 when the matter came up again, the trial court’s record of proceedings showed that while, the 1st defendant/appellant was represented by one E.G. Orisakwe, “the 2nd defendant is already deceased.” The learned trial judge heard arguments in support and opposition with regard to the objection by the defendants/appellants and the application by the learned counsel for the plaintiff/respondent that judgment be entered as claimed against the defendants/appellants. The matter was adjourned to 4th December, 1998 for ruling thereon.

For reasons not stated on the record, the matter did not come up on the adjourned date, that is, 4th December, 1998. It came up on 14th December, 1998 and the ruling was not delivered on the said date because it was not ready. However, both the defendants/appellants and their counsel were absent in court. The matter was then further adjourned to 23rd March, 1999. On that day, both the learned counsel for the parties were present and the learned trial judge delivered his ruling, wherein he inter alia ruled that the affidavit in support of the notice of intention to defend, raised triable issues which include the death of the 2nd appellant herein. He then granted leave to the defendants/appellants to defend the suit. It was further ordered that the suit be transferred to the general cause list. (See Pp. 79 and 80 of the record of appeal.)

Thereafter, the learned counsel for the defendants/appellants asked for 30 days within which to file their statement of defence. The matter was then adjourned to 25th May, 1999. On the said date, the lower court’s record showed the presence of the parties and their respective counsel and also that, “the 2nd defendant is present and represents the 1st defendant.” on the said date, the learned counsel for the plaintiff/respondent informed the trial court that the matter is for hearing and they are ready to prove their case. He added that they have filed and served their statement of claim on the defendants/appellants on 31st, March, 1999 and that they are yet to file their statement of defence. Truly, the learned counsel for the defendants/appellants admitted that they have not filed their statement of defence. The reason which he gave for the delay was, “due to the fact that the 2nd defendant was bereaved, he travelled since 27/4/99 and just came back yesterday.” Learned counsel then applied orally, “for extension of time within which to file our statement of defence out of time.” The trial court granted the application in the absence of objection from plaintiff/respondent’s counsel. Fourteen days extension of time was thus given to the defendants/appellants with effect from 25th May, 1999 within which to file their statement of defence.

The matter though adjourned to 30th June, 1999 came up on 26th July, 1999. It was further adjourned to 6th October, 1999 for hearing. On the said next adjournment date, the matter was further adjourned to 19th November, 1999 and thereafter to 7th February, 2000. On the said date, viz; 7th February, 2000 even though the learned counsel for the plaintiff/respondent was ready to proceed with the hearing, an adjournment was granted and the matter was adjourned to 4th April, 2000. Again, on the stated date, the learned counsel for the plaintiff/respondent was ready to proceed and call his sole witness, but the learned counsel for the defendants/appellants applied for an adjournment, on the ground that the representative of the 1st defendant/appellant took his mother’s corpse home for burial. The matter was then adjourned to 25th May, 2000 for hearing.

Similarly, on 25th May, 2000 the learned counsel for the plaintiff/respondent was ready with his “only witness.” The learned counsel for the defendants/appellants informed the court that, “the defendant wrote to us that he was involved in an accident with his entire family as he was travelling”. The matter was further adjourned to 4th June, 2000. The next time the matter came up was on 24th July, 2000. The trial court’s record indicated that the learned counsel for the plaintiff/respondent asked for a date, “because the defendant had approached for settlement.” On 2nd November, 2000 When the matter came up again, both the learned counsel for the parties were present and when no progress has been made on the issue of amicable settlement, the matter was adjourned to 14th December, 2000 for hearing.

On 14th December, 2000 the matter suffered yet another adjournment. The learned counsel for the defendants/appellants wrote a letter to the trial court wherein he asked for an adjournment. The learned counsel for the plaintiff/respondent informed the court of his readiness to proceed as his only witness was present in court. The matter was further adjourned at the instance of the defendants/appellants to 15th March, 2001. Again on the stated date and more or less at the instance of the defendants/appellants, the matter was adjourned to 30th April, 2001 for hearing. On that date, even though the learned counsel for the plaintiff/respondent was ready with his only witness, the matter was further adjourned again at the instance of the learned counsel for the defendants/respondents, to 2nd June, 2001.

The matter however, came up for hearing on 20th June, 2001. It was stood down till 11:00 am, on condition that the learned counsel for the defendants/appellants who was absent, should be duly notified, that the case has been stood down till 11:00 am. Upon resumption, the learned counsel for the plaintiff/respondent informed the trial court, that he went to the Chambers of the learned counsel for the defendants/appellants and informed the Secretary in the presence of three Law Students who were on attachment in the Chambers, that the case has been stood down till 11:00 am. The trial court then observed that on the last adjournment date, viz 30th April, 2001 the learned counsel for the defendants/respondents was present and led two other counsel, Miss Anibogu and Ameh Esq.