Gtb Plc V. Fadco Industries Nigeria Limited & Anor (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ITA G. MBABA, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the interlocutory decision of Kano State High Court in Suit No. K/561/99, delivered on 14/3/2001, by Hon. Justice Saka Yusuf, wherein the learned trial judge refused the application by the Appellant for adjournment for cross examination of a witness, and further closed the cross-examination and discharged the witness.

A brief facts of the case shows that the Respondents had claimed, as plaintiffs in the suit, the following reliefs:

“(i) Declaration that the terms and conditions stated in the guarantee dated 12th day of June, 1998 between the plaintiffs and the Defendants as well as the supplemental terms and conditions stipulated in the Defendant’s letter dated 5th November, 1998 are binding on the Defendant.

(ii) Declaration that by the express terms of the guarantee deed dated 12th day of June, 1998 and the supplemental conditions contained in the Defendant’s letter dated 5th November, 1998 in relation thereto, it is wrongful, unlawful and illegal for the Defendant to enforce the purported deed of guarantee or take any action or steps in pursuance thereof without any prior notice to the Plaintiffs.

(iii) The Plaintiffs claim jointly and severally from the Defendant the sum of N100,000.00 (One Hundred Million Naira) only being damages suffered by the Plaintiffs for breach by the Defendant of the terms and conditions of the guarantee aforesaid.

(iv) Interest on the sum claimed at 21% per annum until judgment and thereafter at 10% per annum until final liquidation of the judgment sum.

(v) A declaration that as Guarantors, the plaintiff’s liabilities to the Defendant (if any) are secondary and can only arise after the Borrower has refused and is unable to make good any duly adjudged indebtedness.

(iv) Cost of this action”.

After a series of interlocutory applications, the suit was fixed for hearing and the plaintiffs called 2nd plaintiff as their first witness, who started to give evidence on 9/2/2000, and concluded his evidence-in-chief on 10/5/2000. The case was adjourned, on the application of the Appellant’s Counsel, to 21/6/2000, for cross examination.

There is no record to show what happened on 21/6/2000, but on 24/10/2000, when the matter was further adjourned, the Appellant was not in court, neither its Counsel. Respondents’ Counsel was not happy and so told the Court that the date was taken by the Appellant, but that due to the sensitive nature of the matter he would not ask that the defence be closed. He asked for adjournment and the case was adjourned to 28/11/2000. On that date, 28/11/2000, the Appellant was absent and the case was adjourned, again, to 25/1/2001 (erroneously written as 25/1/2000) for the hearing, and notice of same was to be served on the Appellant.

There is no record of what happened on 25/1/2001, but on 1/3/2001, when the case came up for the cross examination, Counsel for the Appellant, Mr. Anthony, told the Court that they were not ready, because they received a letter of the day’s hearing about 3 weeks earlier! That application for adjournment was opposed by the Respondents’ Counsel, who told the Court that the Appellant was rather using the Police against them, while the suit was pending and while refusing to cross examine the PW1.

The Court was not happy with the development, but obliged the Appellant the adjournment, saying:

“It is the policy of the Court not to act on sentiment and always give parties every chance to prevent (sic) his or her case. If defendant, despite of what had transpeired (sic) still want another date, I will concede to the adjournment, but with a prayer for the witness that he would be free from any persecution before the adjourned date. The Counsel to the defendant should inform the Court the date convenience to him to cross examine the witness”.