Mobil Producing Nigeria Unlimited & Anor. V. Chief Simeon Monokpo & Anor (2003) LLJR-SC

Mobil Producing Nigeria Unlimited & Anor. V. Chief Simeon Monokpo & Anor (2003)

LAWGLOBAL HUB Lead Judgment Report

O. UWAIFO, J.S.C.

Two suits were instituted in the Federal High Court, Calabar on June 1, 1998 by two separate sets of plaintiffs against the same defendants. The said defendants are now the appellants. The first suit No. FHC/CA/CS/30/98 claimed special damages of N3,698,524,656.00 and general damages of N301,475,344.00. The plaintiffs therein are now the 1st set of respondents. The second suit No. FHC/CA/CS/31/98 claimed special damages of N938,200,464.00 and general damages of N61,799,536.00. The plaintiffs in that suit are now the 2nd set of respondents. The defendants in the two suits were sued jointly and severally. The two suits have as their cause of action ecological and environmental pollution arising from crude oil spillage.

In both suits, the statements of claim were filed on 22 July, 1998 and the statements of defence of the 1st defendant only were filed on 12 October, 1998 and latter amended and filed on 29 June, 2000. The 2nd defendant had applied on 12 October, 1998 (in both suits) to have its name struck off the suit as a party improperly joined. It claimed in the supporting affidavits to be “a separate legal entity independent” of the 1st defendant. It then further said in para. 4:

“That the 1st defendant is neither in liquidation nor in receivership. In consequence therefore, the 2nd defendant should not be joined as a necessary party to this suit. An attempt to bring them in as a party in this suit is calculated to embarrass them and bring them into ridicule.”

I cannot make any head or tail out of the reasons given for the application. Suffice it to say that the 2nd defendant was not struck off the suits. The two suits were later consolidated on 10 April, 2000 on the oral application of both the counsel for the defendants and the plaintiffs. The plaintiffs led evidence in support of their case in suit No. FHC/CA/CS/30/98.

Evidence in suit No. FHC/CA/CS/31/98 was commenced by the plaintiffs and concluded on 16th June, 2000. The matter was adjourned to 27th, 28th and 30th June, 2000 for defence because Mr. Ajumogobia for the defence said he did not anticipate that the plaintiffs’ case would be closed that day. But on 27th June, Mr. Ajumogobia, learned counsel, filed a motion to amend the statement of defence in suit No. FHC/CA/CS/30/98 on behalf of the 1st defendant. This was granted that same say. The statement of defence in suit No. FHC/CA/CS/31/98 was similarly amended on behalf of the 1st defendant. Mr. Nwosu, learned counsel for the plaintiffs, was given liberty to file a reply.

The first defendant then immediately opened its defence by calling Dr. Godfrey Okon Udoh, estate manager and urban estate surveyor. He was extensively cross-examined and his evidence was concluded. The case could not go on the next day as scheduled because the court was told that Mr. Ajumogobia was appearing at the Court of Appeal that day. It was then adjourned to 30th June. But on 29th June, 2000, Mr. Ajumogobia filed a motion praying the court to dismiss the action as against the second defendant and to strike it off the suit. The affidavit in support was sworn by Patrick A. Osu, a legal practitioner in the firm of Ajumogobia and Okeke. Paras. 3, 4 and 5 of the affidavit read:

“3. That I am informed by Mr. Odein Ajumogobia that neither the plaintiffs pleadings nor any part of the evidence led by or in support of the plaintiffs case contains any allegations of fact against the 2nd defendant which would entitle the plaintiffs to any relief whatsoever against the said 2nd defendant.

4. That I am informed by Mr. Ajumogobia and I verily believe that the plaintiffs in this suit closed their case on June 16,2000.
5. That I verily believe that the only fact purporting to connect the 2nd defendant with this action is the pleading in paragraph 2 of the statement of claim unsupported by evidence that the 2nd defendant is the parent company of the 1st defendant and directs the 1st defendant’s management policies.”

It was in view of this motion filed on behalf of the second defendant that Mr. Nwosu on behalf of the plaintiffs filed what he called a cross-motion. In it, he sought an order to dismiss the second defendant’s motion and to enter final judgment against the second defendant. Mr. Ajumogobia’s argument was that no case had been made against the second defendant either from the statement of claim or from the evidence. His only concession was the averment that the second defendant is the parent body of the first defendant. It was not also disputed that the claim was for special damages of N3,698,524,656.00 and general damages of N301,475,344, making a total of N4 billion. Mr. Nwosu’s contention was that the two defendants were sued jointly and severally and that in the statements of claim allegations were averred against the defendants accordingly. He submitted that throughout, up to the close of the plaintiffs’ case, no statement of defence was filed on behalf of the second defendant. He therefore argued that the plaintiffs conducted their-case on the assumption that the second defendant having in the circumstances admitted the facts pleaded, the plaintiffs had no obligation to lead evidence against it. He contended further that now that the second defendant had submitted at the close of the plaintiffs’ case that no case had been made against it, the court would have to come to judgment on the merits of the plaintiffs’ case. Mr. Nwosu then urged the court to give judgment for the plaintiffs against the second defendant upon the fact that there had been no evidence led, and indeed no statement of defence filed, by it in court.

Mr. Ajumogobia at that stage applied for an adjournment “to reply to the submissions of my learned friend on points of law as a rejoinder to issues of law raised by my learned friend.” Mr. Nwosu opposed the adjournment sought. But Mr. Ajumogobia insisted, as recorded, by saying: “My learned friend has raised some issues of law which calls (sic) for rejoinder. I am prepared to take a very short adjournment to Monday, 3rd of July, 2000.” The learned trial Judge eventually granted an adjournment to 7 July, 2000 “for the defendants’ counsel to rejoin on points of law thereafter the court will rule on the motions for dismissal and judgment.”

Mr. Ajumogobia no longer pursued the course of making a reply on points of law for which he had sought and was granted an adjournment. Instead, for the first time, he filed a motion on 6 July, 2000 praying for an order extending the time within which the second defendant shall be at liberty to file a memorandum of appearance and statement of defence, and an order deeming as properly filed the said processes filed on 5 July, 2000. He seemed to have taken a different course from the proceedings of 30 June, 2000 in regard to the submission by him to have the case dismissed on the ground that no case had been made against the second defendant. He completely backed off from the circumstances leading to the adjournment granted at his instance to 7 July, 2000 for him “to make his rejoinder” to Mr. Nwosu’s reply. Yet it was deposed in the affidavit in support of the latest motion that the affidavit was made “in good faith in response to the plaintiffs’ notice of cross motion filed and served on the 30th day of June, 2000.”

Mr. Nwosu opposed the hearing of the motion filed by the plaintiffs’ counsel for extension of time to put in the second defendant’s statement of defence. The learned trial Judge held the view that the said motion Mr. Ajumogobia brought at the stage he did to wish to file a statement of defence for the second defendant was an abuse of court process and was intended to overreach the plaintiffs. He said inter alia:

“I have in the main considered the implication of motion for extension of time to file a statement of defence for the 2nd defendant in the circumstances of this case where the plaintiffs have led evidence, tendered exhibits, and closed their case for the plaintiffs and the (1st) defendant had opened its case (and) called a witness. In my considered and humble opinion, the plaintiffs conducted and concluded their case on the assumption that the 2nd defendant filed no pleadings and did not join issues with the plaintiffs. It follows therefore that allowing such filing of pleadings at this stage will amount to over reaching the plaintiffs who had concluded their case as they will not have the opportunity of leading evidence again on the issues to be joined. That is the more reason I agree with Mr. Amego of counsel for the plaintiffs that what is being asked for is a final judgment and not judgment in default…

I hold that the application of the 2nd defendant to move a motion for extension of time within which to file a defence for the 2nd defendant without first rejoining on points of law in conclusion ocourt motions moved on the 30/6/2000 and no application to stay same will amount to abuse of Court process and aimed at overreaching,”

In the end, the trial Judge refused to consider the motion and insisted that either that the second defendant’s counsel would make his reply on points of law or withdraw the motion for extension of time to file a statement of defence.

Mr. Shasore of counsel on behalf of the second defendant proceeded in the circumstances to make his submission in “rejoinder” to the cross-motion. On 11 July, 2000, the learned trial Judge in a considered ruling gave judgment for the plaintiffs against the second defendant as follows:

“Suit No. FHC/CA/CS/30/98, judgment for N3,698,524,656.00 as special damages and N200,000.00 as general damages, with N200,000.00 costs.

Suit No. FHC/CA/CS/31/98, judgment for N938,200,464.00 as special damages and N50.000.00 as general damages, with N100,000.00 costs.”

The two defendants appealed to the Court of Appeal, Calabar Division.

On 10 July, 2001, the Court of Appeal dismissed the appeal. In his leading judgment with which Edozie and Ekpe, JJCA concurred, Opene, JCA agreed with the learned trial Judge that a final judgment could be entered on an application of a plaintiff made to the court to give judgment summarily. The learned Justice then went on to say:

“As regards the question that judgment was wrongly entered against the 2nd defendant having regard to the statement of defence filed out of time on behalf of the 2nd defendant and the statement of defence properly filed on behalf of the 1st defendant. It was argued by the appellants that the learned trial Judge ought not to have entered judgment against the 2nd defendant on the ground that the 2nd defendant failed or refused to file any defence in the matter because there was a statement of defence filed out of time and also a pending motion for extension of time to regularise the statement of defence. In support of their argument, they referred to the following cases:- U.B.A. v. Nwora (1978) 11-12 SC 1; U.T.C. v. Pamotei (1989) 2 NWLR (Pt.103) 244; Nishizawa v. Lethwani (J984) 12 SC 234, (1984) ANLR 470. I have perused at (sic) those judgments and they all deal with two competing applications – one asking for judgment and the other for extension of time where the statement of defence was irregularly filed or a case brought under a summary judgment.

In the instant case, there was a trial, the plaintiffs/respondents called witnesses who testified after which they closed their case. The defence opened and one witness testified before the defendants/appellants brought a motion for an order to dismiss the plaintiffs’ action and in response to that the plaintiffs/respondents applied that a final judgment be entered in their favour

Later he said:

”The appellants in their brief of argument have made a very heavy weather about this issue that the learned trial Judge ignored or disregarded the 2nd defendant/appellants’ statement of claim (sic: defence) and also did not consider the 1st defendant/appellant’s statement of defence and proceeded to enter final judgment in favour of the plaintiffs/respondents but I must say without any equivocation that the learned trial Judge’s ruling on that point cannot be faulted. The motions to dismiss the action and for final judgment had been argued and were adjourned for the defendants/ appellants’ counsel to make a rejoinder on points of law, what the appellants’ counsel had wanted the learned trial Judge to do was to abandon the motions that had been argued midstream without delivering a ruling on them and then take a fresh motion by the defendants/ appellants.”

Further still, the learned Justice said:

“The learned trial Judge in entering final judgment against the 2nd defendant is not obliged to consider the 1st defendant’s statement of claim (sic: defence) as he was considering the case against the 2nd defendant who was sued jointly and severally with 1st defendant. Order 28 rule 4 is very clear on this point and it provides:-

‘4. Where the plaintiff’s claim against a defendant is for unliquidated damages only, then, if that defendant makes default in pleading, the plaintiff may, after the expiration of the period fixed as aforesaid, for service of defence, have judgment entered against that defendant for damages to be assessed by the court and costs, and may proceed with the action against the other defendants, if any.’

Finally, on this issue, I must observe that the learned trial Judge was perfectly right when he ruled that the defendants/appellant’s counsel should make the rejoinder on points of law to the part heard motion before him or withdraw his motion so that he could proceed and rule on the plaintiffs/respondents’ motion. It is after he had ruled on those two motions that the 2nd defendant/appellant’s motion would be ripe for hearing and this also depends on what his ruling would be.”

The other issues raised were also considered by the court below and in the end the appeal was dismissed and the judgment of the trial court affirmed. In the appeal to this court, the appellants set down 12 issues for determination which they stated thus:

“1. Whether the plaintiffs’ action as constituted was competent. Grounds 1,2,3,4.

2. Whether the Court of Appeal was right in confirming the award of N4 billion unliquidated damages made in favour of the plaintiff in spite of the fact that the valuation report on which the High Court replied (sic) was not placed before the Court of Appeal. Ground 27.
3. Whether the judgment of N4 billion unliquidated damages made against the 2nd defendant was proper when the co-defendant was still giving evidence and vigorously defending and disputing the alleged common acts of negligence in respect of pipes allegedly owned by the 1st and 2nd defendants. Ground 5.
4. Whether award of unliquidated damages could be based on plaintiff’s pleadings and uncompleted evidence of a co-defendant. Grounds 6 and 15.
5. Whether there was proper evaluation of the evidence before the court and whether the judgment of N4 billion Naira was on merit. Grounds 20, 21 and 25.
6. Whether the construction placed on the provision of Order 38 rule 1 and Order 28 rule 7 was correct and whether the award of N4 billion unliquidated damages could be based on the said rules. Grounds 13 and 14.
7. Whether the appellants’ right to fair hearing was not violated by the lower courts refusal to consider on its merits the 2nd appellant’s motion to dismiss on the ground that the motion was in the nature of a demurrer. Grounds 19 and 20.
8. The liability of the defendants being joint and several, whether the judgment against the 2nd defendant based on the inconclusive evidence was not seriously prejudicial to the 1st defendants case yet to be concluded and therefore wrongly upheld by the lower court.
9. Whether the lower courts have any valid legal reasons for failing to consider and/or grant the prayers contained in the 2nd defendant’s motion to dismiss especially when no counter-affidavit was filed to challenge the facts forming the basis of the prayer and if so, whether judgment for the plaintiffs was a necessary and automatic corollary of refusing the prayers. Grounds 10, 12 and 19.
10. Whether or not the Court of Appeal was right in upholding the ruling of the High Court in refusing to entertain and grant the 2nd defendant’s application to regularise the statement of defence filed out of time. Grounds 7, 8, 11 and 19.
11. Whether the plaintiffs ‘notice of cross-motion’ not being known to law and unsupported by affidavit was competent. If the answer is in the positive, whether the hearing thereof without giving the defendant’s counsel the mandatory two clear days to react to it was not in breach of the rules of court, the principles of natural justice and the 2nd defendant’s constitutional right to fair hearing. Ground 18.
12. Whether the award of costs of N300,000.00 was in judicial and judicious exercise of the discretion of the High Court based on proper procedures and correct principles as to justify a confirmation of the award by the lower court. Grounds 22, 23 and 24.”

There is a preliminary objection by the respondents which I shall deal with here very briefly. It is in three parts: (1) That the first defendant is not an aggrieved party since no judgment was given

against it. (2) That no leave was obtained to file the grounds of appeal argued by the appellants and therefore the appeal is incompetent. (3) That an affidavit having been deposed to saying that the second defendant does not exist, it cannot file this appeal to contest the judgment against it.

It is true that the judgment of the trial court which was affirmed by the court below was given against only the second defendant. In effect, the first defendant is not an aggrieved party that can appeal against the judgment of the court below to this could simply on the basis that it was a party to the proceedings in which judgment was given in reliance on the provision of section 233(5) of the 1999 Constitution which says that: “Any right of appeal to the Supreme Court from the decisions of the Court of Appeal conferred by this section shall be exercisable in the case of civil proceedings at the instance of a party thereto.” That provision must be understood to apply to an aggrieved person or party.

A party to proceedings cannot appeal a decision arrived thereat which does not wrongfully deprive him of an entitlement or something which he had a right to demand. Unless there is such a grievance, he cannot appeal against a judgment which has not affected him since the whole exercise may turn out to be academic. Under no circumstances can it be argued that a party to proceedings who has not been affected by a decision may nevertheless appeal against it merely as a party. See, for instance, Akinbiyi v. Adelabu (1956) SCNLR 109 where it was recognised that a person entitled to appeal is a person aggrieved by a decision, i.e. a person against whom a decision has been pronounced which deprived him of some right.

It is conceded, however, that section 233(5) also contains a provision that any other person (not necessarily a party to proceedings) having an interest in the matter of the proceedings may appeal with the leave of court against a decision given therein. He will have to disclose in an application for leave that he has a genuine and legally recognisable interest in respect of such a decision: See Ademola v. Sodipe (1992)7 NWLR (Pt.253) 251. The first appellant did not appeal under the said provision as a party interested. I am satisfied that it is not a proper appellant in this appeal. However, the relevant grievances made, for the purpose of this appeal, are sufficiently referrable to the situation of the second defendant. For that reason, its appeal is competent.

As regards the objection that no leave was obtained to raise the grounds of appeal canvassed in this appeal, Chief Babalola, SAN is right that leave was accordingly obtained. On 8 April, 2002, this court considered an application containing eight prayers including those for leave to file additional grounds of appeal, to argue fresh issues, to amend and file amended notice of appeal, to depart from the rules to compile record, and for deeming orders. They were all granted.

The third objection is that the second defendant does not exist because an affidavit was deposed to on its behalf that it is nonexistent. A defendant is entitled to raise any defence which it believes will relieve it of liability. In some cases it is known that such a defence may simply be frivolous or untrue; and in some cases alternative defences may be raised. If a defendant says it is not a legal personality the matter does not end there . .That issue can be pursued to ascertain its validity. If so investigated, it is for the court to rule on it. In the present case, the issue was not examined nor acted upon. As a matter of fact the trial court gave judgment against the second defendant in which it was made liable to pay huge sums to the plaintiffs. The plaintiffs cannot be heard to argue that the said second defendant is non-existent in order to deprive it of the right to appeal against that judgment. If that argument were to be upheld, it would be indefensible in principle and at the same time counterproductive to the interest of the plaintiffs because this court would be obliged to declare the judgment either unenforceable or that the proceedings are a nullity as they led to judgment against a nonexistent party. I have come to the conclusion that the preliminary objection must be overruled and I accordingly do so.

Having regard to what transpired in the trial court, I shall at this point focus attention on issue 10. I have considered the arguments under this issue, first, in regard to the propriety of the “cross-motion” of the respondents (as plaintiffs in the trial court); second, whether it was a motion for judgment in default of filing a defence by the second defendant; and third, as to the obligation of the court to consider the motion for extension of time within which to file the second defendant’s statement of defence. The cross-motion for judgment, as the process filed by the plaintiffs in reaction to the second defendant’s motion to dismiss was headed, did not in anyway indicate that it was brought in default of pleading by the second defendant. The implication of the motion by the second defendant appears to have been misunderstood by all, even by its counsel, at the time it was argued. I shall return to these motions later.

In the meantime let me say that all the counsel who represented the defendants, particularly the second defendant, at different stages of the trial failed to live up to the minimum standard of commitment and in some respect the competence one would expect of them professionally. I shall give a few instances. First, after the defendants had been served with the statement of claim, Mrs. Omodele O. Ekpo, of counsel, in the law firm of Idowu & Co. brought a motion on 12th October, 1998 on behalf of the second defendant, as stated on the face of the motion, for-

“AN ORDER striking out the name of the 2nd defendant/applicant as a party in this suit for being improperly joined.

(a) That the non-joinder of the 2nd defendant will not lead to injustice and inconvenience.

(b) That the absence of the 2nd defendant as a party will not prevent the court to effectually and completely adjudicate upon and settle all the questions involved in the cause or matter.

(c) The cause or matter is not liable to be defeated by the non-joinder.

(d) It is possible for the court to adjudicate on the cause of action set up by the plaintiffs without the 2nd defendant.

(e) The 2nd defendant sought to be joined is not a person who ought to be joined.”

The relevant paragraphs of the affidavit in support read as follows:

“3. That the 1st defendant is a separate legal entity independent of the 2nd defendant and registered as an unlimited liability company under the Companies and Allied Matters Decree.

4. That the 1st defendant is neither in liquidation nor in receivership. In consequence therefore, the 2nd defendant should not be joined as a necessary party to this suit. An attempt to bring them in as a party in this suit is calculated to embarrass them and bring them into ridicule.”

The remaining paragraphs of the affidavit simply repeated the order grounds stated on the face of the motion. I cannot see the rational behind the motion from the grounds stated thereon and the deposition in the affidavit other than a display of incompetence. The motion disclosed no known reason for objecting to a party being allowed to continue as a defendant to a suit. Paragraph (e) of the motion is misleading because it was not being sought to join the second defendant to the suit. It was already made a defendant from the outset.

Second, Chief Ekong Bassey, SAN was, at a point on 8 March, 1999 before actual hearing began, announced as likely to take over from Chief Idowu but he really never came in. On 17 May, 1999, the said Chief Bassey and one Eric Utang appeared for the defendants. He had come with a request apparently on behalf of Ajumogobia & Okeke for adjournment on the ground that they were still studying the case.

Evidence of the PW1 commenced that day nonetheless. It is not very clear at what stage the firm of Ajumogobia & Okeke began to represent the defendants. Third, on 16 February, 2000, there was no appearance for the defendants but it was recorded that a letter for an adjournment had been sent in from Ajumobogia & Okeke saying that Mr. Ajumogobia was appearing in the Court of Appeal. An adjournment was granted but on two dates set for the hearing, 17 March, 2000 and 10 May, 2000 Mr. Ajumobogia did not appear. It was on 15 May, 2000 he announced in court that he had brought an application dated 17 April, 2000 for change of counsel. It was granted.

Fourth, Mr. Ajumogobia then referred to a motion he filed on 12 May, 2000 for stay of further proceedings in the case pending the determination by the Court of Appeal, Lagos Division of a motion on notice dated 17 March, 2000. It was a most curious application because, as the learned trial Judge pointed out, there was no appeal pending against his own decision on which such motion could be based. In any case, the Lagos Division of the Court of Appeal would have been a most unlikely venue. It appeared the motion was either a ploy to delay proceedings or an aspect of incompetence. The application was refused.

Fifth, on 30 May, 2000, one Mr. Okuobi who appeared for the first defendant brought a letter from Mr. Ajumogobia for an adjournment of the hearing of the case which had been fixed for 29 and 30 May, and June 1, 2000. He wanted all three dates abandoned because he was billed to travel out of the country that night saying that “it was only after returning to Lagos on 15/5/2000 that it came to my notice that ICCA International Court of Arbitration has been scheduled for May 31st, 2000.” After much discussion, the court adjourned to the next day May 31st, to enable Mr. Okuobi to familiarise himself with the case. Surprisingly, Mr. Ajumogobia appeared the next day, 31st May, 2000, and the record shows among other things: “Mr. Ajumogobia: I apologise for not being here yesterday in person to ask for adjournment this was due to the fact that I was feeling ill.” He then went further to talk about the International Court of Arbitration sitting that day which, from an earlier request for adjournment, he was supposed to appear in. It was simply an attempt by Mr. Ajumogobia to delay the proceedings.

Sixth, the plaintiffs closed their case on 16 June, 2000 and the case was adjourned to 27, 28 and 30 June for the defence. On 27 June, Mr. Ajumogobia argued two motions to amend the statements of defence of the first defendant in respect of the two suits. They were granted. Evidence for the first defendant commenced and further hearing was adjourned to the next day. Mr. Ajumogobia did not come the next day 28 June but asked Mr. Patrick Osu of counsel to seek further adjournment to 30 June. This was accordingly granted. It is on record that the 29 June had been skipped in the fixture for hearing because Mr. Ajumogobia said it was his birthday which he wanted to observe. But on 29 June, Mr. Ajumogobia filed the motion for an order to dismiss the action against the second defendant. That led to the “cross-motion” by Mr. Nwosu. The two motions were argued on 30 June, 2000.

Seventh, Mr. Ajumogobia sought an adjournment for him to reply on issues of law. The matter was adjourned to 7 July, 2000. But on 6 July, Mr. Ajumogobia filed a motion for an order extending the time within which the second defendant may file a memorandum of appearance and statement of defence; and to deem properly filed the memorandum of appearance and statement of defence already so filed. This was the motion the learned trial Judge refused to consider.

Now, to the three motions involved directly in this appeal. It seems to me from my understanding of the central issue upon which this appeal depends, I ought to limit my judgment to those motions. The motion filed by Mr. Ajumogobia on 29 June to have the suit against the second defendant dismissed and its name struck off the suit was moved on 30 June by him in reliance on Order 12, rule 16 of the Federal High Court (Civil Procedure) Rules, 2000 which came into effect on May 1,2000. The rule reads:

“16. An application to add or strike out or substitute a plaintiff or defendant may be made to the court or Judge in Chambers at any time before trial by motion or summons or in a summary manner at the trial of the action.”

That motion cannot be regarded at the time it was brought, to be appropriate. It certainly does not fall under Order 12, rule 16 because trial had already begun at the time the motion was brought and evidence had also been taken. This is more so when the affidavit in support placed some reliance on the evidence thus:

“3. That I am informed by Mr. Odein Ajumogobia that neither the plaintiffs pleadings nor any part of the evidence led by or in support of the plaintiffs case contains any allegation of fact against the 2nd defendant which would entitle the plaintiffs to any relief whatsoever against the said 2nd defendant.

4. That I am informed by Mr. Ajumogobia and I verily believe that the plaintiffs in this suit closed their case on June 16th, 2000.
5. That I verily believe that the only fact purporting to connect the 2nd defendant with this action is the pleading in paragraph 2 of the statement of claim unsupported by evidence that the 2nd defendant is the parent company of the 1st defendant and directs the 1st defendant’s management policies.”

That was a very unusual motion in the circumstances of the case in reliance on Order 12, r.16 of the said civil procedure rules. In the same way the “cross-motion” by the plaintiffs is very strange. It was meant for an order to dismiss the second defendant’s said motion and at the same time get judgment against the second defendant. No ground or reason of any type was stated on the said process; and it was not supported by affidavit. It would appear that both counsel decided to operate outside the known procedures in civil suits to put a quick end to their respective side of the case.

In view of the contents of the affidavit relied on by Mr. Ajumogobia, one may now turn to Order 38 of the Federal High Court Rules, 2000. In essence, Mr. Ajumogobia by that affidavit evidence was saying that at the close of the plaintiffs’ case, no case had been made against the second defendant. But in that situation, the procedure is not for the defendant relying on a no case to approach the court with a motion. It is up to him to proceed under and keep within the provisions of r.15 as he may desire. That rule says:

“15(1) The party beginning shall produce his evidence and examine his witness.

When the party beginning has concluded his evidence, he shall ask the other party if he intends to call evidence (in which term is included evidence taken by affidavit or deposition, or under commission, and documentary evidence not already read or taken as read) and if answered in the negative, he shall be entitled to sum up the evidence not already given, and comment thereon, but if answered in the affirmative, he shall wait for his general reply.”

The above-stated provisions were not observed. It is important to note that the said provisions require that a defendant be asked at the close of a plaintiff’s case if he intends to call evidence; that is to say, he should be put to his election unless it is clear he does not wish to call evidence, such as indicating that he is resting his case on that of the plaintiff. In that case he will be bound by the evidence as it stands. In Toriola v. Williams (1982) 7 C 27 at 33, Idigbe, JSC observed, though obiter, that the appellants had overlooked the consequences of the position in which they – “placed themselves by resting their case on that of the respondents i.e. by in effect submitting that the respondent as plaintiff failed to make out a prima facie case and by electing, in consequence, not to call evidence in support of their own case. The legal position in such a situation is, of course, that the appellants are bound by the evidence called in support of the case for the respondent qua plaintiff, and the case must be dealt with on the evidence as it stands (per Lord Greene M. R. in Laurie v. Reglan Building Co. Ltd. (1942) 1 KB 152 at 156. See also Goddard LJ. in Parry v. Aluminium Corporation (1940) W.N. 44 at 46 and Lord Greene M.R. in Yuill v. Yuill (1945) 1 All ER 183 at 185.”

It has been recognised as part of the practice that where a Judge is trying an action without a jury and if at the close of the case for the party who begins there is a submission of no case, he should in general refuse to rule on it unless counsel for the defendant says or otherwise indicates that he is going to call no evidence. Lord Greene M.R. made the point in Laurie v. Raglan Building Co. Ltd. (supra) at 155 when he said:

“After the evidence for the plaintiff had been concluded on the question of liability, counsel for the defendants submitted that there was no case for him to answer. It is unfortunate, I think, that the learned trial Judge did not follow the practice which ought to be followed in such cases, as has been quite clearly laid down in this court, of refusing to rule on the submission unless counsel for the defendant said that he was going to call no evidence.”

If the defendant announced that he was going to rest his case on that of the plaintiff, and the submission made by him failed, he would not be allowed to lead evidence nor obviously, on appeal, would he be given leave to lead fresh evidence as was attempted in Akanbi v. Alao (1989) 3 NWLR (Pt.108) 118. In that case, the defendants’ counsel rested their case on that of the plaintiffs and addressed the court extensively. But judgment went against his clients. On appeal to the Court of Appeal, the defendants sought leave to adduce fresh evidence by way of tendering two judgments which they pleaded in their statement of defence saying that their counsel made the mistake not to tender them at the trial. The Court of Appeal gave leave. The plaintiffs then appealed to the Supreme Court. It was in those circumstances that Craig, JSC who gave the leading judgment observed inter alia at page 140:

“It is true that the courts will not punish a litigant for the mistake or inadvertence of his counsel in procedural matters. But the question which arises in the present appeal is whether a decision by counsel not to call evidence is a mistake or mere inadvertence In my view, it is neither far from being a mistake, it is in actual fact a distinct exercise of a legal right …

In my experience, a decision not to call evidence has always been regarded as a legal strategy, not a mistake. If the strategy succeeds, then it enhances the case of that party; but if it fails, such a litigant cannot ask for leave to adduce further evidence in order to repair his damaged case.”

It is, however, the law that if an election to call no evidence does not actually take place, and the submission of no case fails, the right to call evidence is not lost. In that case, evidence may be called as if the submission had never been made. The practice is to put the defendant to his election. If, however, for any reason, as was said by Lord Greene M.R. in Yuill v. Yuill (supra) at page 185, “either through oversight or (as here) through a misapprehension as to the nature of counsel’s argument, the Judge does not put counsel to his election and no election in fact takes place, counsel is entitled to call his evidence just as much as if he had never made the submission.” For a defendant to lose his right to call evidence when he makes a no case submission, there must be no doubt as to the final course he had chosen, in whatever manner he might have done that. That Judge will need to be satisfied of a clear intention not to call evidence: See Ekpanya v. Akpan (1989) 2 NWLR (Pt.101) 86 at 94-95.

The learned trial Judge did not appreciate the implication of the motion brought on behalf of the second defendant in which, as I have pointed out, Mr. Ajumogobia relied on the fact of lack of evidence against the second defendant in his affidavit in support of the motion and in his argument. In the argument, he said inter alia:

“The grounds for this application as stated on the face of this motion paper is that at the close of plaintiffs’ case, no evidence whatsoever has been laid (sic) or introduced to connect the 2nd defendant, Mobil Incorporated of USA with any of the claims or the reliefs sought by the plaintiffs in this action … Neither the pleadings nor the evidence laid (sic: led) by the plaintiffs disclosed any evidence whatsoever against the 2nd defendant. That the only evidence or case of the plaintiffs in their pleading is that the 2nd defendant is the parent body of the 1st defendant and directs their management policy …. That there is no iota of evidence to substantiate that allegation of fact. Counsel submitted that that alone entitles the court to dismiss the suit against the 2nd defendant.”

This is a clear instance of a no case submission which is covered by Order 38, r. 15 primarily and IT. 16 and 17 consequentially. The provisions are similar to those of Order 42 rr. 5 and 6 of the High Court of Cross River State (Civil Procedure) Rules Cap. 51 Vol. III, Laws of Cross River State, 1979 considered in Ekpanya v. Akpan (supra). That being so, there was a prima facie obligation to comply with the usual practice in the treatment of a no case submission.

The learned trial Judge should have dealt with the matter of the motion as a no case submission, instead of as a matter falling under Order 28 as he did. That order deals with default of pleadings. The learned trial Judge relied on rr. 2,4 and 7 which read:

“2. If the plaintiff’s claim is only for a debt or liquidated demand, and the defendant does not, within the time allowed by these rules or an Order of court or Judge in Chambers for that purpose, file a defence, the plaintiff may, at the expiration of the time, apply for final judgment for the amount claimed, with costs.

4. Where the plaintiff’s claim against a defendant is for unliquidated damages only, then, if that defendant makes defaults in pleading, the plaintiff may, after the expiration of the period fixed as aforesaid, for service of defence, have judgment entered against that defendant for damages to be assessed by the court and costs, and may proceed with the action against the other defendants, if any.

7(1) Where the plaintiff makes against a defendant or defendants a claim of a description not mentioned in rules 2 to 5 of this Order and the defendant or all the defendants (where there are more than one) fails or fail to serve a defence on the plaintiff, the plaintiff may, after the expiration of the period fixed as aforesaid for service of the defence, apply to the court for judgment, and on the hearing of the application the court shall give such judgment as the plaintiff appears entitled to on his statement of claim.

(2) Where the plaintiff makes such a claim as is mentioned in sub-rule (1) of this rule against more than one defendant, then, if one of the defendants makes default as mentioned in that sub-rule, the plaintiff may

(a) if his claim against the defendant in default is severable from his claim against the other defendants, apply under that sub-rule for judgment against that defendant, and proceed with the action against the other defendants; or set down the action on motion for judgment against the defendant in default at the time when the action is set down for trial, or is set down for motion for judgment against the other defendants.

(3) An application under sub-rule (1) of this rule shall be by summons or motion on notice.”

These rules are inapplicable when a defendant waits till the plaintiff has closed his case after leading evidence. The rules in question under Order 28 envisage the implication of admission of a claim by a defendant who fails to file a defence. The plaintiff will have to act as directed by the rules on the basis of the facts of his statement of claim. But once the plaintiff leads evidence in support of his case even without a statement of defence, he must rely on the evidence to discharge the burden that lies on him. This is more so where reliefs which cannot be normally granted even on admission, e.g. declaratory reliefs, are sought. But it will apply in respect of other reliefs where the plaintiff resorts to leading evidence as in the present case. In that situation, a defendant is entitled to consider the quality of the evidence led and decide to submit a no case notwithstanding that he filed no statement of defence. Admittedly, this can happen only in very rare cases because no serious-minded defendant will take the risk of not filing a defence simply to hope that the plaintiff will fail to make a case out upon his pleadings. I do not at all overlook the difficulty that may arise when such a defendant is put to his election as to whether he intends to call evidence since he has not laid the foundation upon which he could call evidence. The difficulty will have to be confronted in the event of a defendant finding himself in such an awkward situation seeks leave to file a statement of defence out of time. It will depend on the circumstances of a particular case when the Judge is faced with considering an application for that purpose. However, the issue of that difficulty was not given a chance to be tested and resolved in the present case because a procedure unknown to the rules of court was adopted with the consequence that the normal practice of dealing with a no case submission was not given due attention.

If the learned trial Judge had appreciated this he would have drawn learned counsel’s attention to the proper procedure under the rules. In the same way, the cross-motion by the plaintiffs for judgment was misconceived. It was no longer a matter for judgment by motion when the case had gone to trial. At a point in the ruling of the learned trial Judge in which he acted on that motion to give plaintiffs judgment, he relied on Order 38 r. 11 in addition to Order 28 already set out in this judgment. The Judge said: “The plaintiffs need no formal application for judgment as there was trial. Order 38 rule 11 of the rules of this court makes it mandatory for a trial Judge to enter judgment at or after trial without a formal motion.” He then quoted the rule, and said: “The judgment entered in this case after the plaintiffs have closed their case could qualify as judgment entered during or after trial.” The learned trial Judge was certainly at that stage under a misconception because even though he realised that the said rule 11 does not permit of such judgment to be given on motion, strangely enough, he still went ahead to do so.

The rule reads:

“11. The trial Judge shall, at or after trial, direct judgment to be entered as he thinks right, and no motion for judgment shall be necessary in order to obtain the judgment.”

While the trial court was in this double error and while the argument in respect of the two motions was raging, Mr. Ajumogobia probably realised that he placed himself in a difficult situation. He persisted on having an adjournment to reply to points of law. As I have earlier narrated in this judgment, the court granted an adjournment to 7 July, 2000. On 6 July, Mr. Ajumogobia filed a motion (the last of the three motions concerned in this appeal) for an order extending the time within which the second defendant may file a memorandum of appearance and statement of defence and to deem them properly filed. This was brought to the notice of the court on 7 July. The court’s reaction has earlier been stated. In short the learned Judge insisted on determining the fate of the two motions in respect of which he was still to receive further submission. He refused to consider this third motion. The ruling he eventually gave on 11 July, 2000 pre-empted the said motion and irreversibly determined the liability of the second defendant. The Court of Appeal upheld the decision of the trial Judge to refuse to entertain the motion to file a statement of defence out of time.

The arguments before this court on that refusal as canvassed by the appellants may be briefly put. First, that the refusal to entertain that motion on the ground that it was filed too late in the proceedings is not in consonance with Order 3 of the Federal High Court Rules, 2000. I have perused Order 3 which deals with the effect of noncompliance with the rules. I find it clearly inapplicable. I do not see how the failure of the court to consider that motion can be a matter falling within non-compliance. Also, failure of a party to file pleadings within time cannot be cured under non-compliance saving. Order 3 is meant to save proceedings which have taken place from being declared a nullity for some irregularity committed by any of the parties, or even, in certain circumstances, by the court itself. The second argument is that the courts in Nigeria have generally, in the interest of justice, leaned heavily in favour of such procedures as would ensure the trial of cases on their merits and also minimize the time and expense of litigation. Reliance is placed on United Bank for Africa Ltd. v. Nwora (1978) 11-12 SC 1; UTC v. Pamotei (1989) 2 NWLR (pt.103) 244; Nishizawa v. Jethwani (1984) 12 SC 234. The first case deals with the normal circumstances where a defendant fails to file a statement of defence within time or regularly as in the present case; the others deal with cases under summary judgment procedure where instead of affidavit, a statement of defence is filed. The central point of convergence of what was decided in the two situations is that a court faced with the difficulty as to the late filing of a statement of defence should not shut its eyes to such a process, even if filed irregularly or sought to be filed, but ought to have a look at it to see if it discloses a defence which might be considered in the interest of justice. I do not think that statement of principle can be disputed.

There is a third argument which I consider hugely crucial to this appeal. This is because (a) the plaintiffs had closed their case and had assumed that the second defendant who failed to file a defence had admitted the averments in the statement of claim in reliance on Mosheshe General Merchants Ltd. v. Nigerian Steel Products Ltd. (1987) 1 NWLR (Pt.55) 110; Federal Capital Development Authority v. Naibi (1990) 3 NWLR (Pt.138) 270, decisions of this court; (b) the second defendant’s counsel in reliance on the plaintiffs’ pleading and evidence applied by motion for a dismissal of the plaintiffs’ suit, although I have shown that at that stage a no case submission was the appropriate course to take; (c) having not taken the proper course, and the learned trial Judge being in error as to the implication of the motion before him, there was no opportunity to put second defendant’s counsel to his election; (d) had he been put to his election, a decision not to call evidence would have foreclosed him; but a decision to call evidence in case his submission failed would have there and then raised the further question: upon which pleading was he going to lead evidence There would appear to be a bundle of legal tangle put together by both counsel and the trial court. This is where the essence of the third argument must be examined, and if possible used to unravel that tangle.

The argument is that two courts below were in grave error occasioning a miscarriage of justice when they refused to entertain the second defendant’s motion for an order of extension of time within which to file a statement of defence and to regularise the one filed out of time on the ground that the motion for judgment had been argued. It goes further to say, and I think this touches the heart of the matter, that the issue is not whether or not the motion would have been granted because that depends on the judicious and judicial exercise of the discretion of the court; but that a complete refusal to consider the motion was an affront to the rule of natural justice and the appellants’ constitutional right to a fair hearing, leading to a nullity of the proceedings. The learned Senior Advocate for the appellants cited Salu v. Egeibon (1994) 6 NWLR (Pt. 348) 23; (1994) 18 LRCN 241 at 259.

The learned counsel for the respondents in his reaction to the above relied in his brief of argument on what the court below said that the learned trial Judge “was perfectly right when he ruled that the defendants/appellants’ counsel should make the rejoinder on points of law to the part-heard motion before him or withdraw his motion so that he could proceed and rule on the plaintiffs/respondents’ motion. It is after he had ruled on those two motions that the second defendant/appellant’s motion would be ripe for hearing and this also depends on what his ruling would be.” So the issue now is whether the Court of Appeal, was right in what it said and whether the respondents’ counsel can rely on it for this appeal.

It has been laid down in many decisions that it is the duty of a court to entertain and decide on the merit of any application brought before it by any party notwithstanding the perceived strength or weakness of such an application. It seems to me that this principle of law has been solidly laid down by the Court of Appeal. There are very many of its decided cases on it, a few may be cited thus: Eguamwense v. Amaghizemwen (1986) 5 NWLR (Pt.41) 282; Harrods Ltd. v. Anifalaje (1986) 5 NWLR (Pt.43) 603; Kotoye v. Saraki (1991) 8 NWLR (Pt.211) 638; Mokwe v. Williams (1997) 11 NWLR (Pt.528) 309; Okoro v. Okoro (1998) 3 NWLR (Pt.540) 65; Eriobuna v. Obiorah (1999) 8 NWLR (Pt.616) 622. Of the six cases cited above, Tobi, JCA made pronouncements in the last four in regard to the principle of law in question which I think well project the principle. Whether in his leading judgments or his contributions in those cases, the learned Justice of Appeal made a consistent observation. To quote what he said in his leading judgment in Eriobuna v. Obiorah (supra) at page 642:

“A court of law or a tribunal has a legal duty in our adjectival law to hear any court process, including a motion before it. The process may be downright stupid, unmeritorious or even an abuse of court process. The court must hear the party or parties and rule one way or the other. A Judge, whether of a court of law or tribunal, has no jurisdiction to come to a conclusion by resorting to his own wisdom outside established due process that a motion cannot be heard because it has no merit. That does not lie in the mouth of a Judge in our adversary system of adjudication. The failure on the part of the learned tribunal to hear the motion of the 1st appellant filed on 1st May, 1999 is against the provisions of section 33(1) of the 1979 Constitution on fair hearing, and particularly the natural justice rule of audi alleram partem. ”

The pronouncements the learned Justice made in the other three cases are virtually to the same end. I entirely endorse them.

It is not only essential but mandatory for a court before which a motion (or application) has been brought to hear and determine it at the appropriate time. It has no right to refuse to hear it unless possibly in a proper circumstance in the exercise of its punitive o jurisdiction against a contemnor of a court order who is expected to purge himself of the contempt before he could be heard. Otherwise the court must set the motion down and hear and determine it one way or another even if it might be of the opinion that the motion was brought late and that what it seeks is downright irregular and frivolous. It has to give the applicant a hearing. It is a basic right. If for any reason the motion was not expeditiously drawn to the attention of the court by the court officials who ought to do so, that could be no excuse for simply discountenancing it when later the court came to learn of its existence and instead proceeding to give judgment or make some order, more particularly when a decision on the motion was likely to have had a bearing on the judgment or order. The adversarial system of our justice administration demands no less. A refusal of a court to hear a motion is a breach of the right to a fair hearing guaranteed under the Constitution and an essence of the audi alteram partem rule of natural justice. It is perhaps important to add that if a Judge or court were at liberty to decide to ignore any motion filed in court it would raise a fundamental issue. There will be a danger that instead of allowing the administration of justice to be done upon a compulsory even keel, it may be left to the tyranny of the arbitrary or selective decision of a particular Judge or court as to if and when any motion will be considered at all. The consequences of this to the normal run of court proceedings are disturbing to contemplate. I think the argument of the appellants that it would be irrelevant to take into consideration now whether the motion for extension of time within which to file the second defendant’s statement of defence would or would not have succeeded is well founded.

In the present case, it is true that the learned trial Judge was already hearing argument in respect of two motions, each of which was capable of bringing an abrupt end (as indeed it happened) to the proceedings. But there was this other motion which was, as it were, in competition with those two. Those two were to achieve some result and terminate the proceedings, the other one was seeking for time to regularise some processes with a view to an opportunity to continue further hearing in the proceedings. The practice has always been to give priority to hearing such motion seeking to regularise a process. That is the hallmark of a proper exercise of discretion. If the motion to regularise succeeds, the other motions or motion seeking to terminate the proceedings will be withdrawn, and in appropriate cases there will be compensation by way of costs. This has been eloquently laid down by this court: See Nalsa & Team Associates v. N.N.P.C. (1991) 8 NWLR (Pt.212) 652 at 667; Long John v. Blakk (1998) 6 NWLR (Pt.555) 524 at 550, 551- 552.

It is upon the error committed by the learned trial Judge as pointed out above that, in my view, the present appeal untimely depends. Some aspects of the excerpts from the judgment of the court below which I earlier reproduced in this judgment show that the learned Judge’s decision on the point was approved by that court when Opene, JCA said:

“I must say without any equivocation that the learned trial Judge’s ruling on that point cannot be faulted. The motions to dismiss the action and for final judgment had been argued and were adjourned for the defendants/appellants’ counsel to make a rejoinder on points of law, what the appellants’ counsel had wanted the learned trial Judge to do was to abandon the motions that had been argued midstream without delivering a ruling on them and then take a fresh motion by the defendants/appellants.”

The prevailing view is that even when a judgment has been prepared, but before it is delivered, a motion is brought which may be relevant to the substance of that judgment, the motion should be considered and determined before the judgment may or may not thereafter be delivered: See Mokwe v. Williams (1997) 11 NWLR (Pt.528) 309; Savannah Bank (Nig) Ltd. v. S.I.O. Corporation (2001) 1 NWLR (Pt.693) 194 at 208. This is always to avoid taking a course that may pre-empt or foreclose the possibility of doing real justice between the parties. The court below therefore fell into the same error as the trial court in the view taken that it was proper to conclude arguments on the motions and deliver ruling in respect thereof before considering the motion seeking extension of time within which to file the statement of defence.

It would appear on the whole that the procedure leading to the judgment given by the trial court and the refusal of the learned Judge to consider and rule on the motion by the second defendant to regularise the filling of a statement of defence have been flawed. The circumstances were such that there was the real likelihood of a miscarriage of justice. I will allow the appeal on that basis and set aside the judgments of the two courts below together with the orders for costs. I hereby order that the case be remitted to the Federal High Court, Calabar for hearing do novo. I make no orders as to costs.

SC.320/2001