S & D Construction Company Limited V. Chief Bayo Ayoku & Anor (2011)

LAWGLOBAL HUB Lead Judgment Report

A. FABIYI, J.S.C.

This is an appeal against the judgment of the Court of Appeal, Lagos Division (“the court below” for short) delivered on 18th November, 2002.

On 8th September, 2000, Holloway, J. of the High court of Justice, Lagos state dismissed the appellants claim vide order 33 Rule 3 of the Rules of the court. When the matter was called for trial, the appellant was absent and not represented without any reason given to the court. The 2nd respondent was allowed to prove the counter-claim. Learned counsel for the appellant, on the same date, showed up in court and participated in the proceedings and secured an adjournment to cross-examine D.W.1.

The appellant’s counsel thereafter filed an application seeking to set aside the dismissal of the appellant’s claim. The learned trial Judge heard the application and dismissed it on 18th October, 2000. The appellant filed a Notice of Appeal dated 24th October, 2000 against the refusal of its application. Learned counsel for the appellant refused to proceed with the cross-examination of D.W.1 for which adjournment was granted at his instance. The trial court entered judgment on the counter-claim in favour of the 2nd respondent on 25th October, 2000. The appellant filed its 2nd Notice of Appeal dated 28th November, 2000 to challenge the judgment of the trial court.

The appeal was heard by the court below which dismissed same on 18th November, 2002. This is a final appeal by the appellant to this court.

In this court, briefs of argument were duly filed and exchanged. On 4th April, 2011 when the appeal was heard, learned counsel on each side of the divide adopted the brief of argument filed on behalf of his client.

On behalf of the appellant, three issues were formulated for a due determination of the appeal. They read as follows:-

“(i) Whether in the circumstance of this case, the Court of Appeal was right in dismissing the appellant’s appeal on the ground that the explanations proffered by the appellant in the application to set aside the trial court’s order dismissing the appellant’s suit for want of prosecution was unsatisfactory.

(ii) Whether the Court of Appeal was right in dismissing the appellants appeal on the ground that it was not the plaintiff’s (appellants) case at the trial court when it sought to set aside the order dismissing its suit that it was not aware of the hearing date.

(iii) Whether in the circumstances of this case, the Court of Appeal was right in dismissing the appellants appeal on the ground that the plaintiff (appellant) had the opportunity to present its case.”

On behalf of the respondents, three (3) issues were also couched for determination. They read as follows:-

“(i) Was it the case of the appellant at the trial court when it sought to set aside the dismissal of its suit that it was not aware of the dates fixed for hearing, and was the appellant in any event aware of those dates

(ii) Did the learned justices of the Court of Appeal give due consideration to the reasons proffered by the appellant for its absence in court on the date the matter was fixed for trial and rightly came (sic) to the conclusion that the court below was correct in the decision that they were unsatisfactory

(iii) Were the learned justices of the Court of Appeal right to have held that the appellant had the opportunity to present its case before the trial court”