Jonason Triangle Ltd. & Anor. V. Charles Moh & Partners Limited (1998)

LawGlobal-Hub Lead Judgment Report

SALAMI, J.C.A. 

In the High Court of the Cross River State of Nigeria, in the Calabar Judicial Division, Ecoma. C.J. on 20th November, 1995 awarded in favour of (he plaintiffs damages, both general and special, of N1,445,000.00 as well as costs assessed at N3,000.00. The defendants were thoroughly aggrieved by the decision and appealed against same on 20th June, 1997 pursuant to an order extending the time within which to bring the appeal.

The defendants, prior to filing the afore-mentioned notice of appeal, applied to the court below for an order setting aside the judgment allegedly obtained in their absence. The application was refused on 26th November, 1996 by Arikpo. C.J., the former trial Chief Judge having retired on attaining the statutory age of retirement. The defendants being equally aggrieved by the refusal filed a notice of appeal against the ruling rejecting the appellants’ application to set aside the said judgment.

The issues raised by the two separate notices of appeal are calling for determination in the instant appeal. The defendants, who are hereinafter referred to as appellants, formulated two issues from each of the two notices of appeal. The issues distilled from the notice of appeal filed against the judgment of 20th November 1995 are set out immediately hereunder-

(1) Whether the purported trial and proceedings of 24th October. 1995 are competent;

(2) If so, whether the judgment and proceedings of 20/11/95 violated the defendants’ right to fair hearing.

Pursuance of the notice of appeal filed on the 26th November, 1995, these issues were framed in the appellants’ brief.

1a. Whether the court below is correct in regarding the trial as a determination on the merit?

2a. If not, whether the court below exercised its discretion judicially and judiciously in refusing to set aside its verdict in the circumstances manifest on the record’?

The plaintiff who is herein referred to as the respondent, in its brief of argument did not frame a separate set of issues rather it adopted the appellants’ four formulations except the words “purported trial”. The two sets of issues are mutually exclusive. The determination of the first set other way seems to resolve all the issues in controversy in this appeal. If the appeal is determined on the face of the record, as in the instant appeal, there would be nothing left for consideration on the basis of the second set of issues. That is to say if this court finds on issues 1 and 2 that the judgment of the trial court was on the merit and that the appellants were not denied their constitutional right to fair hearing, it would tantamount to waste of precious time to indulge in the consideration of issues 1A and 2A.

Before proceeding to consider the argument canvassed in support of the issues adumbrated in the briefs, it is apt to state the facts albeit succinctly. The respondent, in this appeal, is an incorporated body with its head office at Bedwell Street, Calabar. The first appellant is also an incorporated firm with its head office in Port Harcourt, while the second appellant is its managing director. The appellants were sued in Calabar and were duly served and filed a conditional memorandum of appearance. On the strength of the memorandum of appearance, the appellants sought that the suit be transferred to Port Harcourt for trial. Both Calabar and Port Harcourt are in separate jurisdictions. Calabar is the capital of Cross River State while Port Harcourt is the capital of Rivers State. It is, therefore, doubtful if the learned Chief Judge of Cross River State has competence to transfer a case from his State to a High Court of another State. The application for transfer suffered several adjournments at the instance of the appellants. The motion was eventually struck out on 27th September, 1995 when the suit was adjourned in the presence of the appellants to 24th October, 1995 for hearing. On the adjourned date, neither the appellants nor their counsel was in court. They were inexplicably and conspicuously absent from court.

The respondent called a witness in proof of its case which was adjourned for judgment on the 20th November, 1995 when the appellants were present in court.

The reserved judgment acceding to the respondent’s prayer was delivered in the presence of the appellants as well as their counsel.

The appellants, subsequent to the delivery of the judgment, filed a motion for an enlargement of time to file a defence. When this step would not avail them, they moved to have the judgment set aside which application was contested and dismissed. Appellants appealed against the ruling and later with leave of this court brought an appeal against the judgment.