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Home » Nigerian Cases » Court of Appeal » S.A.Oteju & Anor V. Magma Maritime Services Limited & Anor (1999) LLJR-CA

S.A.Oteju & Anor V. Magma Maritime Services Limited & Anor (1999) LLJR-CA

S.A.Oteju & Anor V. Magma Maritime Services Limited & Anor (1999)

LawGlobal-Hub Lead Judgment Report

ADEREMI, J.C.A.

In the court below (the Federal High Court, Lagos Division) the plaintiffs (hereinafter referred to as respondent/cross appellants) claimed against the defendants (hereinafter referred to as the appellants/respondents) the following reliefs:-

(1) N2,839,000.00 (Two Million, Eight Hundred and Thirty-Nine Thousand Naira) being the equivalent of $33,314.00 (Thirty-Three Thousand, Three Hundred and Fourteen Dollars) calculated at the autonomous rate of N85.00 per dollar being the amount owed the plaintiff by the defendants as at 22nd of March, 1993 in that the defendant failed or neglected to effect payment for Auto Gas Oil supplied by the plaintiff and/or his agent to the defendants’ vessels (M/V Seafriend and Victory, Reefer) at the defendants’ request.

(2) The plaintiffs also claim interest on the said amount at the regulated rate of 21 % monthly from 1st April, 1993 till judgment and thereafter at the same rate until the final liquidation of the entire sum with costs.

The appellants, in the main appeal who are the respondents to the cross appeal, upon the service of the court summons on the first defendant/appellant/respondent brought an application to have the service of same set-aside for reason of noncompliance with the Rules of Court. The main plank of the application to set aside was that the 1st appellant/respondent was not personally served with the writ of summons. After taking arguments from counsel on both sides the trial judge, based on the proof of service filed by the court bailiff ruled that the 1st appellant/respondent was served with the process personally in terms of Order 10 Rule 16 of the Federal High Court Rules. The ruling of the court was delivered on the 16th of October, 1996. Again by an application on notice dated 25th October, 1996 but filed on 11th December, 1996, the appellants/respondents prayed the court below for an order dismissing the suit on the ground that it is an abuse of the court process or in the alternative for an order consolidating the suit with Suit No. FHC/L/CS/108/96: Golden Rules Limited and M. V. Victory Reefer versus Magna Maritime Services Ltd. and U.D.U. Etuk. Suffice it to say that the suit that led to the bringing of this appeal and cross/appeal is FHC/L/CS/209/96: Magna Maritime Services Ltd. and U.D.U. Etuk S.A.B. Oteju and Golden Rule Nigeria Ltd. The grounds upon which the application for dismissal or consolidation was founded are that the claim in FHC/L/CS/209/96 and that in FHC/L/CS/108/96 are the same, the parties in the two suits are substantially the same, the subject-matters in the two suits are the same and finally that Suit No. FHC/L/CS/108/96 was first in time and the plaintiffs in Suit No. FHC/L/CS/209/96 were served before they issued the suit (FHC/L/CS/209/96) on 27th February, 1996. The respondents/cross-appellants had filed their statement of defence and counter-claim on the 30th of July, 1996 in Suit No. FHC/L/CS/108/96. Reacting to the application for dismissal or in the alternative for consolidation, the plaintiffs/respondents/cross-appellants in a counter-affidavit sworn to on their behalf by their counsel on 25th April, 1997 deposed to the fact that Suit No. FHC/L/CS/108/96 had been struck-out on 23rd April, 1997 by Hon. Justice G.A.A.T. Jinadu. An enrolment of the order to that effect was attached to the said counter-affidavit. By an application dated 25th April, 1997, the plaintiffs in FHC/L/CS/108/96 prayed the court to relist on the cause list, the suit that was struck-out on the 23rd April, 1997.

Being dissatisfied with the Ruling of Justice Ukeje delivered on the 16th of October, 1996 in Suit No. FHC/L/CS/209/96 wherein it was held that the defendants/appellants/respondents were properly served with the writ of summons, consequently, dismissing the application to set aside, the service and the Ruling of the same learned trial judge delivered on the 18th of June, 1997 in the same suit dismissing the application filed on 12th June, 1997 praying for an order for stay of further proceedings in the suit pending the Ruling of Hon. Justice G.A.A.T. Jinadu in Suit No. FHC/L/CS/108/96 reserved for 11th August, 1997 or in the alternative adjourn further proceedings in the suit to a latter date after the ruling of the said Justice Jinadu, the defendants/appellants filed a Notice of Appeal, on 3rd July, 1997, Sequel to the said Notice of Appeal, the defendants/appellants brought an application dated 4th August, 1997 and filed on 11th August, 1997 before the court below praying for an order staying further proceeding in the suit pending the hearing and determination of the appeal lodged in the matter. In a reserved ruling delivered on the 4th of November, 1997, the court below dismissed the application for a stay of further proceedings. But before the delivery of the ruling of 4/11/97, the defendants/appellants had brought two applications both dated 30th October, 1997; the one praying for an order extending the time within which to file the statement of defence for defendants in the suit; suffice it to say that a copy of the proposed statement of defence was annexed to this application. The other application is for the leave of the court below to allow the defendants change their counsel from S. A. Adeyemo Chambers to Messrs. Imey & Coker. On the 4th of November, 1997, the application for leave to change counsel was granted. Immediately, thereafter without entertaining the defendants/appellants’ application for an order extending the time within which to file the statement of defence for the defendants, the court below went ahead to deliver its judgment in the substantive suit. In the course of delivering the said judgment the trial court said in the concluding part making the consequential orders, inter alia

“The plaintiffs’ case therefore succeeds on its entirety and I award the sums as claimed that is –

(a) U$33,314.00 (Thirty Three Thousand, Three Hundred and Fourteen Dollars US), being the sum owing and proved by the plaintiff as owing to it by the defendants; or its naira equivalent at the prevailing rate of exchange on the date of payment.

(b) I refuse to award pre-judgment interest at the rate of 21% which by Exhibits K2-K2 is put at 18,564.31. There is no proof that interest was agreed or contemplated between the parties at the time of the contract. So, that head of claim fails and it is dismissed.

(c) Interest at 5% per annum from the date of judgment until final liquidation in terms of Order 45 Rule 7 of the Federal High Court (Civil Procedure) Rules Cap 234 Laws of the Federation of Nigeria 1990, is awarded to the plaintiff.”

Again, dissatisfied with the said judgment of 4th November, 1997 the defendants/appellants lodged a Notice of Appeal dated 5th November, 1997 incorporating three original grounds of appeal.

The plaintiffs/respondents also not satisfied with part of the decision of the lower court which dismissed the head of claim for prejudgment interest at the regulated rate of 21% from April 1993 till judgment filed a Notice of Cross-Appeal which contains one original ground of appeal.

When this appeal came before us on the 23rd September, 1999, Mr. Vincent Chieyine, learned counsel for the defendants/appellants/respondents in the cross/appeal referred to the appellant’s brief filed on 18th September, 1998. The amended Appellants’ Reply Brief filed with the leave of the court on the 27th of July, 1999 and the Cross/Respondents’ brief filed on 12th April, 1999 and the Reply to the Preliminary Objection filed on 8th March, 1999 and adopted all of them while urging that the appeal be allowed and the cross/appeal be dismissed.

Mr. Abang, learned counsel for the Plaintiffs/Respondents/Cross-Appellants referred to the Notice of Preliminary Objection brought pursuant to Order 3 Rule 15(1) of the Court of Appeal Rules Cap. 62 Laws of the Federation, section 220(1A) and section 277(1) of the 1979 Constitution as amended which challenges the competency of the Notice of Appeal and the argument on which has been well articulated in the Respondents’ brief to the Main Appeal filed on the 5th of October, 1998; he adopted the said Notice of Preliminary Objection, the Respondents’ brief to the Main Appeal filed on 5th October, 1998 and the Cross/Appellants’ brief filed on 3rd August, 1998. While urging that the Cross-Appeal be allowed and the main appeal dismissed, he cited in support of his second contention in the Preliminary Objection that the grounds of appeal are incompetent cases like (1) Katto v. CBN (1999) 6 NWLR (Pt.607) 390 and (2) Nigeria-Arab BankLtd. v. Comex (1999) 6 NWLR (Pt. 608) 648. On the point that fresh issues raised without leave of Court should be discountenanced be cited Jov v. Dom (1999) 9 NWLR (Pt.620) 538.

See also  Sir Friday Nwanozie Nwosu V. Dr. Sampson Uchechukwu Ogah & Ors (2016) LLJR-CA

I wish to observe that there are two Notices of Appeal filed by the defendants/appellants and a Cross-Appeal brought by the plaintiffs/respondents/cross-appellants. The first Notice of Appeal which is dated 2nd July, 1997 and filed on 3rd July, 1997 which was against the two Rulings of Justice Ukeje delivered on 16th October, 1996 and 18th June, 1997 was brought by Mr. S. A. Adeyemo, on behalf of the defendants/appellants. That Notice of Appeal filed on 3rd July, 1997 would seem to have been abandoned as no brief was filed. Suffice it to say that the said Notice of Appeal is incompetent. The Second Notice of Appeal is the one dated 5th November, 1997 and filed the same date on behalf of the defendants/appellants by their present counsel (Mr. Chieyine) directed against the judgment of Justice Ukeje delivered at the Federal High Court, Lagos Division on the 4th of November, 1997. The Notice of Cross-Appeal dated 30th January, 1998 and filed on the same date directed against the part of the decision of Ukeje J, dismissing the head of claim for pre-judgment interest at the regulated rate of 21 % from April 1993 till judgment was filed on behalf of the plaintiffs/respondents/cross-appellants by their counsel Mr. E. O. Abang. The Notice of Appeal dated 5/11/97 and filed the same date contains three original grounds of appeal which I hereunder set-out without their particulars:

(1) The learned trial Judge erred in law in refusing to hear and determine the defendants/appellants’ application for extension of time to file defence dated 30/10/97 before delivering his judgment on the 4/11/97.

(2) The learned trial Judge erred in law in not giving the defendants fair hearing to the claim against them.

(3) The learned trial Judge erred in law in visiting the sin or inadvertence or negligence of the former counsel S.A. Adeyemo Esq. on the defendants.

In their appellants’ brief, the defendants/appellants raised two issues for determination and they are in the following terms:-

(1) Whether the learned trial Judge was right in refusing to hear and determine the defendants’ application dated 30th October, 1997 for extension of time to file defence and to deem the defence already filed as proper in the circumstances before delivering judgment on the 4th of November, 1997?

(2) Whether the learned trial Judge was right after extensively observing the negligence and/or inadvertence of the former defence counsel S.A. Adeyemo at pages 142 and 143 of his judgment still went ahead to deliver same notwithstanding the determination of the defendants to defend the suit by changing their former counsel.

In their Reply Brief, the plaintiffs/respondents/Cross-appellant while rejecting the issues formulated by the appellants on the ground, according to them, as not reflecting the issues arising from the three grounds of appeal filed, formulated three issues for determination, and they are as follows:-

(1) Having regard to the circumstances of the suit, were the appellants denied fair hearing by the trial court before entering judgment against them on 4th November, 1997?

(2) Whether Mr. S. A. Adeyemo appellants’ former counsel ‘sinned’ or acted mistakenly, negligently, inadvertently in the conduct of the appellants’ suit so as to justify the claim of the appellants that the trial court visited his “sins” on them.

(3) Having regard to the mandatory provision of Order 39 Rule 5 Federal High Court Rules what was the appropriate remedy opened to appellants on the day judgment was delivered?

With the leave of court, the defendants/appellants filed an amended appellants’ Reply Brief.

As I have said above, the plaintiffs/respondents/cross-appellants filed a cross-appeal which in its own right, necessitated the filing of a cross-appellants’ brief. Of course, the defendants/appellants/respondents who are respondents to the cross-appeal filed a cross-respondents’ brief.

I shall deal with the main appeal first as the result of that exercise will determine whether I should proceed with the cross-appeal or not. But, before then, I wish to observe that I have had a critical examination of the two issues formulated by the defendants/appellants in their brief of argument and relating same to the three original grounds of appeal. I do not hesitate to say that they substantially flow from the said three grounds of appeal. Again, issues 1 and 2 formulated by the plaintiffs/respondents to the main appeal in the Reply Brief focus on the same substance as the issues formulated by the defendants/appellants; it is all a matter of semantics. The third issue raised by the plaintiffs/respondents relates to the application and effect of Order 39 Rule 5 of the Federal High Court Rules.

However, I must not fail to remind myself that Order 39 being a rule of court or a rule of procedure is no more than an aid to the course of justice, it does not exist like other rules do not exist, to defeat course of justice.

In their brief of argument, the appellants contended vigorously that the failure of the trial Judge to hear and determine the defendants/appellants’ application for an order extending the time to file the statement of defence and to deem the defence already filed before proceeding to deliver the judgment was a denial of fair hearing to them; a breach of the provisions of Section 33(5) of the 1979 Constitution, they placed reliance on the Supreme Court decision in Olumesan v. Ogundepo (1996) 2 NWLR (Pt.433) 628. For failing to consider the said application the trial Judge breached the fundamental duty placed on the court by the law, to determine all applications pending before it before proceeding to deliver judgment, they further argued, placing reliance on the decision in Nnamani v. Nnamani (1996) 3 NWLR (Pt.438) 591 and Ani v. Nna (1996) 4 NWLR (Pt.440) 101. The negligent conduct or the inadvertence or error of the defendants’ counsel to file the defence which, according to their argument, was visited on the defendants was a negation of the time-honoured principle of law which forbids it, they again called in aid some decisions of this Court and the Supreme Court such as (1) Olumesan case referred to supra (2) Anisiuba v. Emodi (1975) 2 S.C. 9 and (3) Imo Broadcasting Corporation v. Sunday Iwueke (1995) 1 NWLR (Pt.372) 488. They finally urged this court to allow the appeal, set aside the judgment of the court below and remit the case to the court below for retrial before another judge.

After the events which led to series of adjournments before the court below, which according to the Plaintiffs/Respondents were attributable to the defendants/appellants, the Respondents submitted through their brief of argument that the defendants/appellants were given fair hearing and/or afforded ample opportunity to be heard by the court below before the judgment of 4/11/97 was delivered against them. Referring to Order 31 Rules 1 and 18 of the Federal High Court Civil Procedure Rules they argued that its provision requires mandatory compliance and that throughout the gamut of the Rules of that Court no provision is made for extension of time to file statement of defence. Having failed to avail themselves of the opportunities to defend the action, they argued, the defendants/appellants cannot now be heard to complain of being denied fair hearing and they relied on such cases as Okoye v. Nigerian Construction & Furniture Co. Ltd. (1991) 6 NWLR (Pt. 199) 501: Kuusu v. Udom (1990) 1 NWLR (Pt. 127) 421 ; N.E.W. Ltd. v. Denap Ltd. (1997) 10 NWLR (Pt.525) 481 and Kaduna Textiles Ltd. v. Umar (1994) 1 NWLR (Pt.319) 143. While re-affirming the time-honoured principle of law that the sin of a counsel must not be visited on the innocent litigant he submitted that the steps taken by Mr. S. A. Adeyemo, the former counsel of the defendants/appellants arose from procedural irregularities, which were independent decisions, the counsel, in his good wisdom, took to enhance the case of the appellants. A litigant they further argued cannot take the benefit of a counsel’s professional display of his expertise to the exclusion of the adverse consequence of such an exercise; a litigant is always bound by the conduct of his counsel and placing reliance on the likes of decision in Ikeanyi v. ACB Ltd. (1991) 7 NWLR (Pt.205) 626; Trans Nab Ltd v. Joseph (1997) 5 NWLR (Pt.504) 176; Akanbi v. Alao (1989) 3 NWLR (Pt. 108) 118 and Ajide v. Kelani (1985) 3 NWLR (Pt. 12) 248. They urged that the appeal be dismissed.

As I have said above, I shall later come to the consideration of Order 39 Rules 3 and 5 of the Federal High Court Rules. But let me say, in the opening discussions here, that unbridled use of court processes with an undertone of some mischief calculated to disturb the free flow or smooth dispensation of justice must never be allowed in the citadel of justice, if justice, in the real sense of the word, is to be seen to be done. Justice is neither to be denied nor to be postponed. Indeed, it has long been a received rule of law and justice that no one is to be condemned, punished or deprived of his property or legal right in any judicial or quasi-judicial proceeding unless he has had an opportunity of being heard, It is an indispensable requirement of justice, That is the import of the Latin maxim: Audi Alteram Partem – which, when translated, means “hear the other side.’ Parties must be heard on the cases put forward by them before the court. It is their right. And that right to fair hearing does not stop with the parties being present in court. Hearing before a court of law can only be described as fair when all parties to the dispute are given hearing or opportunity of hearing. If one of the parties to the dispute is refused a hearing or not given an opportunity to be heard such a hearing in the citadel of justice cannot qualify to be described as a fair one. See (1) Elike v. Nwankwoala & Ors. (1984) 12 S.C, 301 and (2) Ekuma v. Silver Eagle Shipping Agencies PH Ltd. (1987) 4 NWLR (Pt.65) 472. Indeed, right to fair hearing or fair trial is a demand of public policy and not just a personal right by Ariari & Ord v. Elema & Ors. (1983) 1 S.C, 13; (1983) 1 SCNLR 1.

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As I have reviewed above, up till 30th October, 1997 the defendants did not file their statement of defence notwithstanding that the plaintiffs/respondents cross-appellants filed their statement of claim on the 8th of May, 1996. On the 10th of June, 1996, the defendants/appellants brought an application dated 30th May, 1996 praying for an order to set aside the service of the writ of summons on the first defendant. The court below dismissed that application on 16th October, 1996 and ruled that the service of the writ of summons was proper. The defendants were consequently ordered by the court to file their defence within 14 days from 16th October, 1996. Again the defendants filed an application on 11th December, 1996 praying for the dismissal of the suit for reason of being an abuse of the court processes or in the alternative for an order consolidating this suit with Suit No. FHC/L/CS/108/96 pending as at then before Federal High Court No.3, Ikoyi, Lagos. It is instructive to note that Suit No. FHC/L/CS/108/96: Golden Rule Ltd. and M.V. Victory Reefer versus Magna Maritime Service Ltd. and Etuk was struck-out on the 23rd of April, 1997 for want of prosecution. Later some other interlocutory applications praying for stay of proceedings and relisting of the case struck-out were brought. And the rulings delivered after hearing arguments precipitated appeals being lodged. On the 31st of October, 1997 the defendants finally brought an application dated 30th October, 1997 praying for an order extending the time to file the statement of defence. Attached as an exhibit to the said motion is a copy of the statement of defence and counter-claim. Of course, they had filed separately the statement of defence and counter-claim on the 31st October, 1997. Simultaneously, the defendants brought another application on the 31st October, 1997 for leave of court to change their counsel. Suffice it to say that the application for change of counsel was granted on the 4th of November, 1997. Immediately after the motion for change of counsel was granted, the new counsel for the defendants/appellants (Mr. Chieyine) reminded the court of the application for an extension of time to file their defence. I pause here to say that all the interlocutory applications I referred to were legitimate exercise of the constitutional rights of the applications. For ease of understanding of this case I feel called upon to reproduce the proceedings of the court on 4/11/97 with regard to the application for an order extending the time to file defence; same are set out hereunder: CHIEYINEM:

“We also have another application dated 30/10/97 for extension of time to file the defence in this suit. That is without prejudice to the ruling of the court which was reserved till today. We are aware that the plaintiffs are entitled to 2 days application to be served on this application. And that is the duty of the officers of the court to serve them with all the processes filed. To ensure that justice is done, we took the extra step of serving them with advance copy of the motion. We leave the court with the discretion to either allow us move our motion or grant the plaintiffs their statutory 2 days. That is our humble prayer.

ABANG:

“At the last adjourned date on 20/10/97, the defendant filed a motion for stay of proceedings pending the determination of the appeal.

The court took the argument and adjourned ruling for today with the rider that if it is necessary, the court is to deliver its judgment earlier reserved. The 2nd motion to file a defence is the abuse of court process. I urge the court to deliver the ruling to make the court’s reserved today (Sic)

COURT:-

Mr. Chieyinem actually said the court could deliver its ruling. Mr. Abang also agrees. I shall proceed now to deliver the ruling. Thereafter, the matter will proceed as appropriate.

ABANG

We shall be asking for N7,000.00 cost.

COURT:-

The predicament in which the defendants found themselves, flows from their counsel, decision and handling of his case. Although the defendants are bound by that decision of their counsel, I shall not compound it further. I shall make no order as to costs.

ABANG

“We are grateful. Since there is nothing staying further proceedings I urged the court to consider Order 45, Rule 2 Federal High Court Rules which requires the Court to deliver any judgment reserved. I urge the court to deliver its justice (sic) so that the judgment does not lapse.

CHIEYINEM

“I seriously objects to the prayer of my learned friend. I seriously mention that there is seriously before the court an application for extension of time to tile defence to adduce reason why we should defend. Ani v Nna (Pt.440) permits that this court should be heard. He is praying the court to give a default judgment which can be set aside on the application of the defendants. The court should give us the opportunity to argue our motion. That is our application.

ABANG:

There is no rule to ask for extension of time,

COURT:-

I have reserved a judgment.

I shall proceeds to deliver it.

It will be seen from the above narration that counsel for the defendants insisted that their motion for an order extending time to file the defence be taken before the judgment was delivered. Indeed, the counsel was pleading with the court that the defendants be allowed to defend the action. The application for an order extending the time to file defence was supported by a ten – paragraph affidavit. The plaintiffs/respondents did not file a counter-affidavit and so the averments in the said affidavit remain unchallenged and uncontradicted. I have had a careful reading of the said affidavit and I do not hesitate to say that it contains cogent reasons explaining the delay in filing the statement of defence. As I have observed supra, the statement of defence was filed separately.

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The law is settled that if before judgment is entered, the defendant serves a defence even though it is out of time, a court of trial must never ignore it. Consequently, a judgment in default cannot be entered see (1) Gill v. Woadfin (1884) 25 CH.D. 707 C.A. and (2) Gibbings v. Strong (1884) 26 CH.D. 66 C.A. One curious aspect of this case is that the motion praying for an order extending the time to file the statement of defence is still in the file of the court unattended to. I am in agreement with the submission of the defendants/appellants in their brief of argument that a court is under a firm duty to determine all applications properly filed before it before giving judgment and failure to do so is fatal to the whole proceedings, as well as the judgment delivered therefrom. This court in Nnamani v. Nnamani (1996) 3 NWLR (Pt.438) 591 per the judgment of Muhammad J .C.A. at page 597 said:

“It is a cardinal principle of our administration of justice that all applications properly brought before our courts must be heard. A party to a cause or matter is entitled and must be given the opportunity to be heard before a decision can be given against him.”

In fact, principles of fair hearing command that every application must be heard on its merits see Nalsa and Team Associates v. N.N.P.C., (1991) 7 NWLR (Pt.212) 652. Again, this court in Ani v. Nna & Ors. (1996) 4 NWLR (Pt.440) 101 in a similar vein, per the judgment of Tobi JCA at page 120 observed thus:-

“A court of law and indeed a court of equity has neither jurisdiction nor discretionary power not to take a process before it, whatever may be its pre-trial opinion on it. The process may be a down right abuse of the judicature as an institution or judicialism. It may be stupid, reckless, irregular, aberrant or unmeritorious; the court must hear it and rule on it.”

There is a breach of that fundamental duty by the court below when it refused to hear and determine the application for an order for extension of time. The observation of the trial Judge on the conduct of Mr. S.A. Adeyemo, former counsel to the defendants/appellants leaves me in no doubt that that court was conscious of the negligent manner in which that counsel was handling the defendants/appellants’ case. The lower court’s refusal to entertain the application for leave to file a defence out of time cannot be any other thing but visitation of the sin of the counsel on the innocent litigant who must always rely on him. The law frowns at such a practice by a court of law, it breeds injustice. I agree with the contention of the defendants/appellants in their brief of argument that the decision in Olumesan v. Ogundepo (1996) 2 NWLR (Pt.433) 628 is apposite to this case at hand.

I shall now deal with issue 3 raised in the plaintiffs/respondents’ brief in which they posed the question as to what was the appropriate remedy opened to the defendants/appellants on the day judgment was delivered having regard to the provision of Order 39 Rule 5 of the Federal High Court Rules. It was also their side argument that Order 31 Rules 1 and 18 of the same rules are mandatory and that there is no provision for an extension of time to file a statement of defence in the entire Rules. Order 39 Rule 5 which is the substratum of Issue 3 provides:

“Any judgment obtained against any party in the absence of such party may on sufficient cause shown be set aside by the Court upon such terms as, the court may seem fit.”

To my mind, the practical effect of this rule is that a party aggrieved with any judgment obtained against him in his absence can move the court (the trial court) on an application to have the said judgment set aside on good and sufficient cause shown. The defendants/appellants have come to this court to have the said judgment set aside instead of moving the court below that handed down the said judgment to have it set aside. By approaching this court (Court of Appeal) for the setting – aside of the judgment the defendants/appellants are exercising their constitutional right. In our set up, the Constitution is superior to any law or rules. Even under the military regime (I do appreciate that the appeal was filed in the military era) where the decrees were regarded as superior to all other laws including unsuspended part of the constitution where the provisions of the constitution did not run counter to the provisions of a decree to the extent to which did not the unsuspended provisions of the constitution are superior to other laws except decrees. I have not found and my attention was never drawn to any decree that forbade the right of a citizen to appeal against a decision such as the one under consideration. Let it be said that rules of court, like practice directions, are rules touching the administration of justice, they exist for the attainment of justice with ease, certainty and despatch. They must never be an antithesis of the fundamental principles of justice. They are aids to the course of justice. Consequently, where strict adherence to the rules of court would clash with the fundamental principles of justice the courts must be too ready to jettison them and lean heavily on the side of doing justice see U.T.C. (Nig.) Ltd. v. Pamatei & Ors (1989) 2 NWLR (Pt.103) 244. Therefore, any rule of court that forbids a party from bringing an application for an order extending the time to put his case across to court for determination is null and void. Issue 3 formulated by the plaintiffs/respondents is thus, resolved against them. For the avoidance of doubt, issues 1 and 2 formulated by the defendants/appellants are answered in the negative; in other words; they are resolved in favour of the defendants/appellants. Issues 1 and 2 thrown up by the plaintiffs/respondents for resolution are answered in the negative; they are resolved against the plaintiffs/respondents. The net result of all I have been saying is that this appeal succeeds. The judgment of the court below is hereby set-aside; the suit is remitted to the Chief Judge of the Federal High Court for re-assignment to another judge for re-trial.

As I have observed above, the plaintiffs/respondents have filed a cross-appeal against the part of the judgment of the court below dismissing pre-judgment interest claimed by them at the rate of 21% from 1st April, 1993 till judgment on the principal sum of N2,839,000.00. Having regard to the conclusion I have reached in my treatment of the main appeal, would it be proper to now embark on the cross-appeal which touches on a narrow point – pre-judgment interest? I think I should not. Whatever conclusion I may reach in the treatment of the cross-appeal, will in my view, be pre-emptive of what another trial judge, seised of the facts of the case and privileged to see and hear the witnesses, may reach at the end of the day. Path of judicial sanctity informs me that I should refrain from treating the cross-appeal. Such an exercise by me will be one in futility. In the final analysis, the main appeal, for all I have said supra, succeeds: the judgment of the court below is hereby set-aside, the suit is remitted to the Chief Judge of the Federal High Court for re-assignment to another judge for re-trial. For reasons that I have stated supra, I shall refrain from making a pronouncement on the cross-appeal.

I make no order as to costs.


Other Citations: (1999)LCN/0643(CA)

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