[PDF copy of this judgment can be sent to your email for N300 only. Just order through lawnigeria@gmail.com and info@lawnigeria.com or text 07067102097]








MONDAY, 12TH MAY, 1986.

SUIT NO. CA/1/188/84

3PLR/1985/4  (CA)


(1986) 3 NWLR (Pt.29) 506



UCHE OMO, J.C.A. (Presided)

MICHAEL EKUNDAYO OGUNDARE, J.C.A. (Read the Lead Judgment)










  1. O. Olutunfese ESQ. – for the Appellant
  2. Oyesanya ESQ. – for the Respondents



[Sam Eleanya, Agboola Omolola Oluwafolakemi, Eleanya Kalu Vincent, Eleanya Ugochi Vine]



CONSTITUTIONAL LAW – Fair Hearing – Denial of opportunity to adduce evidence in support of statement of defence – Implication thereof.

PRACTICE AND PROCEDURE -Duties of trial Judge -Fair Hearing.



OGUNDARE, J.C.A. (Delivering the Lead Judgment):

By a writ of sum­mons issued out sometime in 1979 the plaintiffs claimed from the defendant a total sum of N20,000 being special and general damages for the sale to them by the defendant of a defective 25 KVA generator. The parties filed and exchanged pleadings. A reply was also filed. After a number of adjourn­ments hearing commenced by 1st plaintiff giving evidence. In the course of this evidence leave was sought and obtained to amend plaintiffs’ Reply. The 1st plaintiff subsequently concluded his evidence and was cross examined by learned counsel for the defendant.


At the conclusion of 1st plaintiffs evidence, the plaintiffs closed their case and on the application of the defence counsel further hearing was ad­journed for the defence to present its case. On the adjourned date the defen­dant was absent and further hearing was again adjourned to another date. On this new adjourned date the defendant was again absent the case was once again adjourned to yet another date (24/1/83) for further hearing.

On 24/1/83, the defence counsel was not in court. He had earlier written asking that the case be stood down till 11.30 a.m. which the court obliged. The following notes appear in the record for that day:


“Only the plaintiffs are in Court. The defendant is absent. Mr. A. A. Adedoyin appears for the plaintiffs. The defendant now ap­pears at 11.45 a.m. The defendant says his lawyer is not yet around. The defendant having been told that his lawyer wrote to say that he would be here at 11.30 a.m. and the time now being 11.45 a.m. says he has nothing to say. The letter of A. O. Olutun­fese Esq., counsel for the defendant was put in as Exhibit ‘G’. The case for the defendant is closed. Judgment is adjourned till 14/2/83.”


On learning of the situation that had arisen defence counsel on 4/2/83 filed a motion under rule 1 of Order 35 (now Order 37) of the High Court (Civil Procedure) Rules of Ogun State praying the court for “an order per­mitting the Defendant to call evidence and address the court by its counsel in this suit, notwithstanding that the suit stands adjourned to 14th February, 1983 for judgment.” The motion was supported by an affidavit explaining defence counsel’s absence in court on 24/1/83. The motion was not given a hearing until 14/2/83 when the learned trial Judge delivered his judgment in the case finding in favour of the “plaintiff.” The following notes appear in the record of the trial court for 14/2/83 after judgment had been delivered: “Only the plaintiff/respondent is in Court. The defendant/applic­ant is not in Court but Mr. A. O. Olutunfese appears for him. Mr. A. A. Adedoyin appears for the plaintiff/respondent. Mr. Adedoyin says he has not been briefed for any motion and the motion is not yet served. The motion is adjourned till March 23rd 1983 for hearing.”


The motion was eventually struck out on 5/7/83. Meanwhile, the defendant had on 12/5/83 lodged an appeal against the judgment of 14/2/83.


I have set out, in extenso, the facts leading to ground 3 of the grounds of appeal contained in the Notice of Appeal. The ground reads:


“3.     The learned trial Judge erred in law in giving judgment against the Defendant in default of evidence, despite the fact that Defen­dant Representative was willing to call evidence in the presence of the defendant Counsel.




“i.      Pleadings were properly filed and exchanged between the parties to the action and Defendant was entitled to plenary session for giving evidence in support of the Statement of Defence, notwithstanding the absence of his Counsel when the case was called.


  1. The denial of the opportunity for Defendant to call evi­dence in support of the Statement of Defence amounts to denial of Fair Hearing provision as provided by the Con­stitution of the Federal Republic of Nigeria.


iii.      The refusal of the Court to entertain a motion dated 31st January 1983, praying for an order to permit Defendant to call evidence which motion was listed on the Court list on the 14th of February, 1983, When judgment was delivered and to which the attention of the Court was invited put the litigants on an equal (sic) footing before the Court.


  1. It is not an improper course of action for the Defendant to seek to set aside the judgment given in default or about to be delivered in default of evidence against the defendant.”


Both parties filed briefs. The appellant contends that by the procedure adopted by the learned trial Judge he was denied of the opportunity to pre­sent his case. The respondent both in the brief and in oral argument con­tends to the contrary.


I must observe that the appellants conduct in the court below cannot be too strongly condemned. I deprecate it in no uncertain terms. It is no wonder that having exhausted the learned trial Judge’s patience, the latter was rather impatient in the conduct of the proceedings on 21/1/83.


For two reasons, I cannot support the procedure adopted by the learned trial Judge on 21/1/83 and subsequently. First, having at 11.45 a.m. of that day drawn appellant’s attention to the absence of his counsel and the latter had no explanation to make, he should have there and then called on the ap­pellant to present his defence. It is only where the latter could not or would not do so that the learned Judge would be justified in regarding the defence as closed. Were the defendant on being called upon to present his defence applied for an adjournment, the learned trial Judge ought first to consider that application and rule on it before proceeding with the case by once again calling on the defendant to present his case.


The duty of a court at the close of the plaintiffs case is to ask counsel for the defence (or the defendant if there is no counsel) if he wishes to call evi­dence and if the answer is in the affirmative to hear the defendant’s evi­dence, if in the negative to hear argument on the submission before proceed­ing to judgment – see: TANDOR v. CFAO 10 WACA 186; FETUGA v. W.N. HOUSING CORPORATION (1968) NMLR 233. As the trial Judge had failed to exercise this elementary precaution of giving the defendant who was present in court, this opportunity of being heard, I cannot say that the procedure adopted by him met with the requirements of fair hearing.


Secondly, since there was a motion to have the appellant heard pending before the court, that motion ought first to be disposed of before judgment was delivered. The trial Judge ought not to have ignored the existence of this motion and proceeded to deliver his judgment before having the motion cal­led up for hearing. In my view, what the learned trial Judge did amounted to a mockery of justice.


For these reasons, 1 uphold appellant’s contention that the defence was denied of the opportunity to present its case and this denial of its right oc­casioned a miscarriage of justice.


This appeal succeeds on ground 3 and it is allowed by me. I set aside the judgment (including the order for costs) of the High Court of Ijebu Ode Jud­icial Division given on 14/2/83 in Suit No. HCJ/28/79 and order that the suit be heard de novo before another Judge of Ogun State.


In view of the conduct of the appellant in the court below, I make no order as to costs.


OMO, J.C.A. (Presiding): 1 have nothing further to add to the judgment just delivered by my learned brother, Ogundare, J.C.A.


I agree with same in toto and hereby allow the appeal with consequen­tial orders as made by him.


SULU-GAMBARI, J-C.A.: I have had the privilege of reading in advance the judgment just delivered by my learned brother, Ogundare, J.C.A. and I entirely agree that this appeal succeeds and it is hereby allowed.


Appeal Allowed


error: Our Content is protected!! Contact us to get the resources...