Welko Industrile Spa Milan V. J. I. Nwanyanwu and Sons Ent. (Nig.) Ltd. (2000)
LawGlobal-Hub Lead Judgment Report
GALADIMA, J.C.A.
On 30/3/98 respondent/appellant filed motion on notice for preliminary objection and pray for an order dismissing and/or striking out the appellant’s notice of appeal dated 4/3/96 filed by the law firm of Messrs Akinrele & Co., purportedly acting as counsel for the defendant/appellant as it constitutes an abuse of the process of the court.
The grounds of objection were stated as follows:-
“(a) The plaintiff/respondent/applicant is served with two notices of appeals dated 4/3/96 and 23/5/96 filed by the law firms of Messrs Akinrele & Co. and Messrs S.I.O. Okpuno & Co., respectively on behalf of the defendant/appellant.
(b) The law firm of Messrs Akinrele & Co. is not properly before the Honourable Court as the issue of representation of both counsels for the defendant for the purpose of appeal that arose during proceedings at the court below had not yet been determined by the lower court.
(c) The preliminary objection dated 14/6/96 filed by the law firm of Messrs Akinrele & Co. to determine the issue of representation of counsel for the defendant/appellant is still pending before the court below and has not been struck out/dismissed.
(d) The law firm of Messrs S.I.O. Okpuno & Co., has not only filed a notice of appeal as aforesaid but has also filed a motion for stay of execution dated 23rd day of May, 1996.
(e) None of the said applications filed by the respective counsel and pending before the lower court has been heard or struck out by the Honourable Court nor withdrawn by any of the respective legal firms.
On the 18th day of October, 1999 upon reading the above motion and the affidavit and having heard A. Akinrele S.A.N., counsel for the appellant in the absence of the respondent and its counsel, this court struck out the above application and adjourned the appeal to 10/1/2000 for hearing.
On 1/12/99 the respondent/applicant filed a motion on notice, subject of this ruling praying for the following orders:
“(1) Enlarging the time within which to apply for leave to file an application setting aside an order made in the absence of the applicant.
(2) Leave to file the application out of time; and
(3) Extension of time setting aside the order of the honourable court made on 18/10/99.
The grounds for which this application was brought are as follows:
“(1) The said order of the court dated 18/10/99, deprives the respondent/appellant its right of
fair hearing as enshrined under the constitution of the Federal Republic of Nigeria. The motion dated 25/3/98 was improperly before the court and wrongly referred to the court by the appellant/respondent counsel. The steps so far taken before honourable court by the applicant/respondent are premature and stage managed”.
The application is supported by an affidavit of 17 paragraphs to which a number of Exhibits have been attached.
On 11/4/2000 we took arguments from counsel for the parties. It is the submission of learned counsel for the respondent/applicant that they have not been given fair hearing in the circumstance of this case since the respondent had always been present except on 18/10/99 when the respondent’s application was struck out. It is further submitted that since the respondent’s counsel has shown good reasons for his absence from the court the application ought to be allowed. Reliance was placed on Duba Saleh (1997) 2 NWLR (pt.488) 502 at 508; Salu v. Egeibon (1994) 6 NWLR (pt.348) 23.
Replying, learned counsel for the appellant submitted that the three prayers in this motion are superfluous and procedurally defective. It is contended that the proper procedure was to file an application to re-list the motion that was struck out not for an application setting aside the order of this court made on 18/10/99.
The relevant considerations upon which the court will base its decision as to whether or not to grant the application to set aside judgment or order made where there is default of appearance by an applicant are as follows:
(a) The reasons for the applicant’s failure to appear in court;
(b) Whether there has been undue delay in making the application so as to prejudice the respondent;
(c) Whether the respondent would be prejudiced or embarrassed upon an order for rehearing being made so as to render it inequitable to permit the case to be re-opened; and
(d) Whether applicant’s application is manifestly unsupportable;
(e) Whether the conduct of the application generally and particularly regarding interest shown on the case, has been such as to make his application worthy of a sympathetic consideration.
See Agwu v. Aba and Others (1961) All NLR 438; N.A. Williams and Others v. Hope Rising Voluntary Funds Society (1982) 1 – 2 SC 145; Muh. Dangardi v. Yusuf Jibril (1997) 4 NWLR (Pt.501) 590. I am of the view that the above factors will be equally relevant where the consideration is for the application for extension of time to apply for leave to file an application setting aside an order made in the absence of the applicant. I will therefore consider the factors in the course of this ruling.
I have carefully considered the reason for the absence of the respondent/applicant’s counsel on 18/10/99 and reasons for the delay in bringing this application. These are copiously explained in paragraphs 3, 4, 5, 6, 7, 8, 9 and 10 of the affidavit in support of this application. I now reproduce the said paragraphs as follows:-
(3) On 18th day of September, 1999 both the plaintiff/respondent/applicant and its counsel were absent in court as the hearing notice dated 11/10/99 was served at the Chambers of the applicant’s solicitors on 14th October, 1999 when Chief B.L.D. Ezeogu, counsel to the applicant had traveled out of Lagos to Imo State on religious matters. The hearing notice is attached as Exhibit ‘O’.
(4) The reasons for Chief B.I.D. Ezeogu’s absence, was duly communicated by letter to the honourable court and the appellant’s counsel. The said letter dated 15/10/99 is hereby attached and marked as Exhibit OX.
(5) Chief B.I.D Ezeogu has been the counsel personally handling this suit since his chambers were briefed by the plaintiff/respondent/applicant in 1991 and had the case files locked in his own apartment.
(6) The plaintiff/respondent/applicant has never been absent from any court proceedings since this action commenced in 1990 even though travels all the way from Aba, in Abia State of Nigeria to Lagos in each occasion.
(7) We applied for a certified true copy of the court order. The letter dated 23/10/99 is hereby attached and marked as Exhibit XO1.
(8) The court order could not be obtained immediately as the presiding Judge traveled out of the country and on her return was involved in the National Judicial Conference at Abuja both of which lasted for about three weeks. The officers of the court told me this and I verily believed them.
(9) I am informed by Chief B.I.D. Ezeogu my principal and head of the Chambers and I verily believed him that:-
(a) The order of the court now attached and marked as Exhibit OX2 and dated 18/10/99 emanated from a motion dated 25th March, 1998.
(b) The only motion papers before the court on 18/10/99 and between the parties was the motion dated 27/10/98 with its supporting affidavit filed by the defendant/appellant respondent and the counter-affidavit dated 12/2/99 filed by the plaintiff/respondent/applicant opposing same. The said motion and the counter-affidavit are hereby attached and marked as Exhibit OX3 and OX4 respectively.
(c) The plaintiff/respondent/applicant motion dated 25/3/98 and its supporting affidavit upon which the court was wrongly directed and deliberated upon same were not properly before the court.
(d) It was after the disposal of Exhibit OX3 & OX4 in 1998 the defendant/applicant/respondent filed its motion dated 27/10/98 and the plaintiff/respondent/applicant filed its counter-affidavit dated 12/2/99 now pending before the honorable court.
(10) I am further informed by Chief B.I.D. Ezeogu of counsel and Principal/Head of Chambers and I verily believe him as follows that:-
(i) Neither him nor his client has any intention whatsoever to cause any delay in the early determination of this action but he travelled by road on 14/10/99 with his wife to his home town Umuozu in Nwangele Local Government area of Imo State to welcome the Bishop of Orlu Diocese, the Rt. Rev. (Dr.) Benett C.L Okoro who was on a Pastoral visit to Isu Anglican Church Parish being the parish church of Chief B.I.D. Ezeogu.
(ii) The Lord Bishop Pastoral visit covering the six Anglican Church in Isu Parish (which St. Peters Anglican Church Umuozu is one) commenced from 15/10/99 to 17/10/99 with a Church on 17/10/99 at St. John’s Anglican Church Isu, the Headquarters of Isu Anglican Church Parish.
(iii) The Lord Bishop and his entourage were later entertained after service on 17/10/99 at Chief B.I.D. Ezeogu Lodge, Umueze Umozu. Attached is a letter of appreciation from the Lord Bishop dated 18/10/99 attached as Exhibit OX5.
(iv) Chief B.I.D. Ezeogu rested at his home town for two days and left Imo State for Lagos by Road and arrived Lagos at about 6.30 p.m. on Wednesday 20th October, 1999.
(v) The hearing notice herein attached as Exhibit O was served while he had already travelled out of Lagos and out of his Chambers and had no knowledge of it until his return to the Chambers on 21/10/99.
(vi) All that happened in court on 18/10/99 were narrated to him by the Litigation Secretary, Miss Eunice Nwaeje who served the Exhibit ‘OX’ upon the court registrar and the opponent counsel and was in court when the honourable court adjourned the case to 10/1/2000 and he believed all she told him.
(vii) The defendant/appellant/respondent capriciously avoided the hearing of its motion (Exhibit OX4) but directed the court to a wrong motion not properly before the court.
(viii) Until the defendant/appellant/respondent motion (Exhibit OX4) is heard it will be premature for the appellant/respondent to seek for a date for hearing of its appeal.
(ix) Since the commencement of this action in 1990 it is the appellant/respondent and not the plaintiff/respondent/applicant that has been craving for the adjournments of this action’.
The applicant’s counsel has given convincing reasons to justify the application for extension of time within which to apply for leave to file an application setting aside an order of this court made on 18/10/99 in the absence of the applicant. The averments contained in paragraphs 3 – 16 of the affidavit in support of this application were neither denied nor challenged. I am bound to consider them as the prevailing circumstances unknown to this court when the order was made. It would appear the only motion papers before this court on 18/10/99 and between the parties was the motion dated 27/10/98. See Exhibit OX3. This court was wrongly directed on 18/10/99 to the respondent motion dated 25/3/98. It was not properly before the court. It was wrongly referred to the court by the appellant/respondent’s counsel.
The order of this court made 18/10/99, as it stands, deprives the respondent/applicant his right of fair hearing as enshrined under S.36(1) of the Constitution of the Federal Republic of Nigeria, 1999.
It is quite clear to me that from the facts averred in paragraphs 3-16 particularly paragraphs 9 and 10 that the only reason why the respondent/applicant’s counsel failed to appear in court on 18/10/99, was that no hearing notice was served on him. The hearing notice Exhibit ‘O’ was served in his Chamber while he had already travelled out of Lagos. He had no knowledge of it, until his return to the Chambers on 21/10/99. This fact is confirmed by one G.O. Egbine (Mrs.), the writer of Exhibit ‘O’ and the deponent of the affidavit in support of this motion. One Miss Eunice Nwaeje who served this letter on the court Registrar and the appellant’s counsel was in court on 19/10/99 when this court adjourned the case to 10/1/2000 for hearing.
In the final result this application succeeds. The respondent/applicant is granted extension of time till today to seek leave to file an application setting aside the order of this court made in the absence of the applicant on 18/10/99. He is also granted leave to file the application out of time. The said application is to be filed within 7 days from today. No order is made as to costs.
Other Citations: (2000)LCN/0808(CA)