Owena Bank (Nigeria) Plc V. Alhaji Yusuf Muhammed (1997)

LawGlobal-Hub Lead Judgment Report

OGEBE, J.C.A.

The respondent sued the appellant before the Kano High Court claiming in para. 15 of the statement of claim as follows:-

“i. Declaration that the suspension of the plaintiff’s salary and remuneration by the defendant is unreasonable, unwarranted, wrongful, unlawful and cannot be sustained in law.

ii. An order directing payment of the plaintiff’s salary and entitlement from the 17th of November 1989 to date.

iii. A declaration that the plaintiff be at liberty to relinquish his appointment with effect from the date of the orders above if granted and to seek employment elsewhere.”

The appellant filed a statement of defence denying the claim. The respondent gave evidence on his own behalf and on the 20th of September 1993, the learned counsel for him, Mr. Ojo Williams closed his case and the appellant’s counsel before that court, Mr. Abubakar asked for a date to open their defence. The learned trial Judge, Omar J. then adjourned the case to the 6th of October 1993 for defence.

On the 6th of October 1993 only the plaintiff was in court. His counsel was absent. The appellant and his counsel were also absent. The trial court minuted in the record of appeal at page 33 as follows:-

“The case has been fixed for defence today but the defendant is absent and unrepresented. I hereby hold that the defendant has got no defence to offer in this case. Case is adjourned to 28.10.93 for judgment.”

The trial court delivered judgment dated the 26th day of October 1993 on the 28th day of October 1993 in favour of the respondent and granted all the reliefs sought. It is against that judgment that the appellant appealed to this court on ten grounds of appeal. In accordance with the rules of court the appellant filed a brief of argument and identified 4 issues for determination as follows:

i. Whether the learned trial Judge exercised his discretion judicially and judiciously in adjourning the case for judgment following the absence of the appellant and his counsel and whether the failure to notify the appellant of the fact that the suit was fixed for judgment is not a violation of the rules of fair hearing.

ii. Whether the respondent’s appointment was duly determined by his letter of resignation or whether the failure of the appellant to accept the resignation can be interpreted to mean that respondent was still in the service of the appellant.

iii. Whether the respondent was still in the service of the appellant even after the delivery of Exhibits 8 and 8A to his Solicitors and Exh. 9 to him.

iv. Whether the respondent is entitled to the various orders made in his favour and the claims granted to him.”

The respondent also filed a brief of argument and identified 4 issues for determination as follows:-