First Inland Bank Plc V. Gilbert Fiddi (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ABUBAKAR DATTI YAHAYA, J.C.A. (Delivering the Leading Judgment)

This appeal emanated from the judgment of the trial High Court of the Federal Capital Territory, Abuja delivered on the 29th of November, 2007. The plaintiff, who is the respondent in this appeal, took out a writ on the Undefended List, claiming the sum of N21,625,000.00 removed by the defendant/appellant, from his account without his authorization, and 10% interest on the judgment sum until liquidation. The Suit was fixed for hearing on the 29/11/07.

On the hearing date, the defendant/appellant had not filed a Notice of Intention to defend. Its counsel, Mr. Mathew Echo appeared in court, apologized and prayed for an adjournment to regularize the position, as he was briefed only two days earlier. Counsel for the plaintiff/respondent objected to the application for adjournment as the defendant had been served with the processes ten days earlier and had not responded. The trial court was satisfied with the submission of the counsel for the plaintiff/respondent and it therefore entered judgment in the claimed sum. Hence this appeal.

The appellant filed two grounds of appeal, one original and one additional, with the leave of court. The two grounds of appeal without their particulars, are –

1. The learned trial judge of the court below erred in law and thereby came to a wrong decision when he entered judgment for the Respondent under the Undefended List inspite of the application for adjournment by the Appellant’s counsel, to enable the appellant file a defence on the merit to the Respondent Suit.
2. The learned trial judge of the court below erred in law in hearing and determining the suit as he lacked the requisite jurisdiction in law to hear and entertain same.

From the two grounds of appeal, learned counsel for the appellant who settled the brief filed on the 7/2/11, Mr. Ademola Adeniji, identified two issues for determination –

1. Whether the court below was not in error, which has occasioned miscarriage of justice when it refused the appellant’s passionate plea for a short adjournment to enable the Appellant file its defence to the Respondent Suit brought under the Undefended List, given the reason supplied/furnished to it by the Appellant’s counsel.
2. Whether the court below had the jurisdiction to entertain the Suit in the first place.

The respondent’s brief of argument was settled by his counsel Mr. Larry, S. and was filed on the 17/2/11. He also identified two Issues to be –

A. Whether in the light of the law relating to undefended list proceedings, the trial court properly exercised discretion when it refused the application for adjournment and proceeded to hearing and entered judgment in favour of the plaintiff respondent.

B. Whether in the light of the circumstances of this case the trial court was seized with the requisite jurisdiction to entertain this matter in the manner it did.

Since the issues identified by both parties are very similar, I shall utilize the issues raised by the appellant in deciding this appeal.

ISSUE NO. 1

Whether the court below was not in error, which has occasioned miscarriage of justice when it refused the Appellant’s passionate plea for a short adjournment to enable the appellant file its defence to the Respondent Suit brought under the Undefended List, given the reason supplied/furnished to it by the Appellant’s counsel.

Learned counsel for the appellant submitted that although the appellant was served with the Writ of Summons on the Undefended List on the 19/11/07, for hearing on the 29/11/07, the appellant could only brief counsel on the 27/11/07, two days before the hearing date. Counsel for the appellant on that 29/11/07, appeared in court, explained the inability to file the Notice of Intention to defend or any process timeously, and prayed for adjournment to regularize the position. The court refused and went ahead to give judgment. Counsel argued, by referring to AILO NIGERIA LTD VS. ANKPA COOPERATIVE CREDIT & MARKET UNION LTD (2004) ALL FWLR (Pt. 210) 13336 at 1350 that the trial court should have exercised its discretion judicially and judiciously in favour of the appellant since it showed interest in defending the Suit. The refusal to grant the adjournment had shut the doors of justice against the appellant who was not heard – IBETO METRO TRADE LTD VS. GULF BANK OF NIGERIA PLC (2008) ALL FWLR (Pt. 402) 1092 at 1107. Counsel submitted that miscarriage of justice had been occasioned against the appellant. He urged us to resolve the Issue in favour of the appellant.

In responding to the position taken by the appellant, learned counsel for the respondent submitted that the grant or refusal of an application for adjournment is a matter of discretion to be exercised judicially and judiciously “based on the given set of facts and attendant circumstances in accordance with justice.” He placed reliance on UNIVERSITY OF LAGOS VS. OLANIYAN (NO.1) (1985) 1 NWLR (Pt. 1) 156; SIRPI ALUSTEEL CONST (NIG) LTD VS. SNIG (NIG) LTD (2000) 2 NWLR (Pt. 644) 229; DOKUBO ASARI VS. F.R.N (2007) 12 NWLR (Pt. 1048) 350 and ABUBAKAR VS. CHUKS (2007) 12 NWLR (Pt.1066).

Learned counsel for the respondent also argued that the exercise of discretion of a judge, is in accordance with the ordinary principles laid down by law, where the situation is governed by the rule of law. It is when there is no rule of law, that the exercise of discretion of a judge would depend upon what he thinks is fair and just in particular cases. He referred to ABUBAKAR VS. CHUKS (Supra)at 422 and Order 21 rule 4 of the High Court of the Federal Capital Territory, Abuja (Civil Procedure) Rules 2004, to submit that the court had been directed to the path which it should take once there is no Notice of Intention to defend filed by a defendant. He cited many other authorities which include FIRST BANK (NIG) LTD VS. KALADU (1993) 9 NWLR (Pt. 315) 44 at 57; BEN THOMAS HOTELS LTD VS. SEBI FURNITURE LTD (1989) 5 NWLR (Pt. 123) 523; ATAGUBA VS. GURA (NIG) LTD (2005) 8 NWLR (Pt. 927) 429′ G.M.O.N & S. CO. LTD VS. AKPUTA (2010) 9 NWLR (Pt. 1220) 443 and GIDADO VS. DAKU (2006) ALL FWLR (Pt. 292) 25.