3PLR – ADEYEMI V. LAN AND BAKER (NIGERIA) LTD

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS  3PLR

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ADEYEMI

V.

LAN AND BAKER (NIGERIA) LTD

In The Court of Appeal

Lagos Judicial Division

3PLR/2000/11  (CA)

OTHER CITATIONS

7. NWLR (Pt.663) 33

 

Before Their Lordships

GEORGE ADESOLA OGUNTADE, JCA

PIUS OLAYIWOLA ADEREMI, JCA

IFEYINWA CECILIA NZEAKO, JCA

 

REPRESENTATION

Prince Lanre Adeyemi – for appellant

Chief Sobayo – for respondent

 

MAIN ISSUES

COMPANY LAW- Company – Status of a vis a vis its shareholders and directors – Incorporation of a company- Consequences of – When the veil of incorporation of a company will be lifted

PRACTICE AND PROCEDURE – Effect of judgment give without hearing a party

PRACTICE AND PROCEDURE – Service of hearing – when notice is not necessary

PRACTICE AND PROCEDURE – Effect on unchallenged evidence adduced at trial of suit

PRACTICE AND PROCEDURE – Award of pre-judgment interest against a judgment debtor

 

 

The 1st respondent sued the appellant and the 2nd respondent jointly and severally claiming a total sum of N132, 000 for a consideration that wholly failed. The 1st respondent also made an alternate claim again the appellant
alone for the same amount of money and compound interest thereon at the rate of 14% from September 1984 until payment or judgment or which ever is earlier.

 

The facts pleaded by the 1st respondent in support of his claim were that the appellant introduced himself to the 1st respondent as the Managing Director and Chief Executive of the 2nd respondent and purportedly acting as such and for himself offered to sell some bags of rice which he had at the ports to the 1st respondent which rice the 1^st respondent could in-turn sell to a third party whom the appellant also introduced the 1st respondent as a prospective purchaser. The 1st respondent further averred that the third party’s latter requesting for a performance guarantee by the 1st respondent by the appellant who also showed other documents to the 1st respondent to convince the 1st respondent that the proposed transaction was genuine. The 1st respondent further averred that it
paid a total sum of N106, 000 in three installments for the rice to the 1st respondent who received same but failed to issue receipts for same despite his promise to do so. In response, the appellant filed a statement of defence.
At the trial, the 1st respondent called three witnesses namely the Managing Director of the 1st respondent company, his lawyer and the accountant of the 1st respondent company who made the two of the instalmental payments to the appellant. These witnesses testified in line with the 1st respondent’s pleading and particularly about the fact that the payments of the money to the appellant were made in their presence.

 

Thereafter, the suit was adjourned at the instance of the appellant and the 2nd respondent, and their counsel to 19th and 26th February, 1986 for their defence.
On 19th February, 1986, the appellant and his counsel were absent from court. Consequently, the trial court adjourned the suit to 26th February, 1986 the next trial date already fixed for the suit but the appellant and his counsel were also absent from court on that date. Whereupon the trial court heard the address of counsel to the 1st respondent and adjourned the suit to 20th March, 1986 for judgment which was delivered on that date in favour of the 1st respondent against the appellant.

The appellant was dissatisfied with the judgment of the trial court and appealed to the Court of Appeal where he contended in the main that he ought not have been held personal liable for the money received from the 1^st respondent because it was pleaded that he acted as agent for a disclosed principal, the 2nd respondent, and the trial court ought not to have proceeded with the trial of the suit on 26th February, 1986 in the absence of the appellant and his counsel without issuing a hearing notice for service on them.

{Issues}

 

1. Whether having regard to the pleadings of parties and the unchallenged evidence adduced in respect of same, the judgment of the trial court against the appellant was justified.

 

2. Whether it was necessary for the trial court to issue and save a hearing notice on the appellant and/or his counsel under the facts and circumstances of this case.

 

MAIN JUDGEMENT

{Held – Summary} (Unanimously dismissing the appeal)

 

1. Effect of judgment give without hearing a party-

Where judgment is given in a case heard in the absence of a defendant, it is so to say, given without jurisdiction particularly where the absence of the defendant is due to failure to serve him a hearing notice.

Such judgment will be set aside.

 

2. Service of hearing – when notice is not necessary

When a case is set down for hearing on dates fixed in open court in the presence of parties and their counsel, there is clearly no duty on the court to order hearing notice, nor is there a duty on the registry of the court to issue hearing notices to parties and their counsel. What is required of the registry of the court is to place the matter on the cause list for the dates so previously fixed in open court.

 

3. Effect on unchallenged evidence adduced at trial of suit

When evidence adduced by a plaintiff establishes his claim in terms of his writ of summons and that evidence is not rebutted by the defendant, the plaintiff is entitled to judgment and the trial court has a duty to enter judgment in the plaintiff’s favour. Also, where evidence given by a party to any proceedings is not challenged by the opposite party who had an opportunity to do so, it is open to the court seized of the matter to act on the unchallenged evidence.

 

4. Award of pre-judgment interest against a judgment debtor

An award of pre-judgment interest must be based on either statute, contract, mercantile custom or equity provided the plaintiff pleads the basis and leads satisfactory evidence in support of his claim. A plaintiff is also entitled to interest in a claim for return of money arising from a commercial transaction where the defendant has held the money of the plaintiff for sometime. In a situation arising from commercial matters, a party holding on to the funds of another for so long without justification ought to pay him compensation for so doing.

 

5. Company – Status of a vis a vis its shareholders and directors

An incorporated limited liability company is always regarded as a separate and distinct entity from its shareholders and directors with the result that acts of any of these biological persons carried out within the ambit of the memorandum and articles of association of the incorporated company is solely the acts of the incorporated company for which it alone is responsible.

 

6. Incorporation of a company- Consequences of

Since a limited liability company only exist in the eye of the law it can only operate by means of human beings; usually, a company acts through its directors and managers whose actions can be attributed to the company.

 

7. When the veil of incorporation of a company will be lifted

If it is discovered from the materials before a court that a company is the creature of a biological person be he a managing director or a director and that the company is a device or a sham or mask which he holds before his face in an attempt to avoid recognition by the eyes of equity, the court must be ready and willing to open the veil of incorporation to see the characters behind the company in order to do justice.

{Held – Lead judgement} Delivered by Nzeako JCA

 

This is an appeal from the decision of Hotonu J. of the High Court of Justice, Ikeja Division of Lagos State in which he delivered judgment for the plaintiff against the 1st defendant.

 

Being dissatisfied, the 1st defendant appealed to this court. There were 7 grounds of appeal, 5 of which were in the original Notice and 2 additional grounds filed with leave of this Court. These, I will set out with their
particulars:

 

“(I)    The learned trial judge erred in law when he found the 1st defendant liable to the plaintiff in the sum of N106,000.00.

 

Particulars of Errors of Law.

 

1. The Plaintiff’s case as presented on the statement of claim was to the effect that the 1st defendant acting for and on behalf of the 2nd defendant offered to sell rice to the plaintiff to the value of N106,000.00.

 

21. Having thus represented the 1st defendant as agent of the 2nd defendant it was not open to the plaintiff to proceed against the 1st defendant who wasonly the agent of a disclosed principal as decided by the Supreme Court in W.A.S.A. v. Kalla (1978) 3 S.C. 21.

 

1. Once it is shown that a party is only as agent to a principal only the principal can be liable for anything done by the agent within the limits of his authority.

 

(II)    The learned trial judge erred in law when he found the 1st defendant liable for the sum of N106,000.00 for purchase of rice when on the evidence it was clear that the money or part of it was handed over to the 3^rd defendant as directed by the plaintiff.

 

Particulars:

 

1. Paragraph 11 of the Statement of Claim showed that the 1st P.W followed the 1st defendant to the office of the 3rd defendant where a sum of N30,000.00 was handed over to the Chairman of 3rd defendant Corporation – Mr. G. O. Abe.

 

1. P.W.I also gave evidence that he followed the 1st defendant to the office of Mr. G. O. Abe Chairman of the Corporation – 3rd defendant where the said N30,000.00 was handed over to Mr. G. O. Abe.

 

(III)   The learned trial judge erred in law when he found that the 1st defendant collected a sum of N106,000.00 for purchase of rice but failed to supply the rice when from the evidence before the court there was no agreement by the 1st defendant to supply rice to the plaintiff.

 

Particulars:

 

1. The 1st P.W gave evidence that the plaintiff was to supply rice to the 3rd defendant as confirmed by the Chairman of the 3rd defendant when the 1st P.W. and 1st defendant went to the office of the 3rd defendant.

 

1. The 1st defendant introduced the plaintiff through its solicitor as the supplier of rice to the 3rd defendant.

 

1. The first P.W. in his evidence started that the 3rd defendant demanded for a performance Bond from the Plaintiff’s Banker’s which was supplied.

 

(iv)    The learned trial judge erred in law in finding that the 1st defendant collected a sum of N106, 000.00 from the plaintiff and failed to collected a sum of N106, 000.00 from the plaintiff and failed to refund same evidence that the plaintiff paid any money to the 1st defendant for purchase of rice.

 

Particulars:

 

1. There was no evidence to establish the receipt of any money from the plaintiff by the 1st defendant even when it was alleged that the plaintiff wrote to demand receipts for three installment payments.

 

1. The alleged letter of demand for a receipt for the payment was not tendered.

 

(v)     The judgment is against the weight of evidence.

 

(vi)    The learned trial judge erred in law by proceeding with the further trial of this court on 25th February, 1987 in the absence of the appellant and his counsel when there was no proof of service of the hearing date on the appellant and his counsel.

 

Particulars:

 

1. Since the appellant and his solicitor were absent form the court on 19th of February, 1987 when the court further adjourned the case to 25th February, 1987 for continuation of hearing, it was incumbent on the learned trial judge to ensure that notice of the new hearing date was served on the appellant and/or his counsel before proceeding to hearing.

 

1. By proceeding with the further hearing of the case with service of hearing notice on the appellant and/or his solicitor, the trial court had denied the appellant fair hearing.

 

(vii)   The learned trial Judge erred in law when he awarded 14% interest on the sum of N106,000.00 claimed by the plaintiff to take effect from September 1984 till the date of judgment.

 

Particulars:

 

1. There was no pleading and evidence to justify the award.”

 

I have decided to set out fully the claim as laid in the writ, which is as repeated in the statement of Claim, in view of the fact that it became an issue in the argument of course in the appeal whether the claim or the alternative claim was proved.

 

Statement of Claim:

 

“The Plaintiff’s claim is

 

1. Jointly and severally from the defendants a total sum of N106,000.00 and a further sum of N26,500.00 the former being money had and received between August and September, 1984 by the 1st and 2^nd defendants from the plaintiff in Lagos; and supposedly paid to the 3rd defendant by the 1st and 2^nd defendants at Ibadan to the plaintiff’s account on a consideration that has totally failed (to wit for the sale and delivery of rice consignment to the plaintiff in Lagos) whilst the latter being the 25% loss of profits thereon; as liquidated damages.

 

1. Alternatively, the plaintiff claims the aforesaid amounts jointly and severally from the 1st and 2^nd defendants being money had and received by the 1st and 2nd defendant at Lagos and Ibadan between August and September, 1984 from the plaintiff on a consideration that has totally failed (to wit; for the sale and delivery of rice consignment to the plaintiff in Lagos.

 

1. Further, and still in the alternative, the plaintiff claims, from the 1st defendant alone, the sum of N106,000.00 with interest thereon at 14% bank rate compound interest from September 1984 until payment or judgment which ever is earlier being money had and received by the 1st defendant from the plaintiff at Lagos between August and September 1984 for a consideration that has totally failed (to wit; supply and delivery of rice consignment to the plaintiff in Lagos).

 

1. And for such further and/or other reliefs as to the court may seem just”.

 

The court below gave judgment based on the 3rd alternative claim in paragraph (c) against the 1st defendant. It found for the plaintiff’s claimed and it was the 1st defendant who appealed to this court.

 

On the matter of issues for determination the appellant’s Counsel stated in his brief of argument that he made out the following issue for determination:-

 

“Whether on the pleadings and the evidence the learned trial Judge has right in finding defendant personally liable for N106, 000.00 claim by the plaintiff”.

 

It has been observed that in a manner not in accordance with the procedure in this court of clearly setting all identified issues for determination under numbered heads distilled from the grounds of appeal, appellant’s counsel adopted his own usual method. Although he set out only one issue, yet in his written submission, after dealing with what he headed “First Issue” and which he stated covered grounds 1-5, counsel put up tow other heading titled “2nd issue – covers ground 6” and “3rd issue covers Ground 7”. No issue were identified. Rather he dealt with the grounds.

 

Since appellant’s counsel was not in court when this appeal came up before us for hearing, we were unable to obtain his clarification of the foregoing.

 

Be that as it may, in order to proceed with the substance of he matter before us as far as can be discerned, I am leaving the normally alone.

 

I shall take it that 3 issues are involved.

 

For the respondent, his issues was put thus:

 

“Whether, shed of (sic) all the legal cosmetics, the judgment appealed against is sustainable in the light of the evidence adduced records against the appellant alone”.

 

Having considered the materials in the record of proceedings including the pleadings, the evidence, judgment of the court below, the grounds of appeal and the written submission of the parties, it seems to me that on the whole,
the main issues raised in the appeal boil down to 2, the first of which incorporates the appellant’s first issue and the respondent’s issue-

 

Issue No 1:

 

Whether the judgment is justified having regard to the evidence before the court with particular reference to the following:

 

1. The status of the 1st defendant – whether he is an agent of a disclosed principal viz the 2nd defendant.

 

2. Is there evidence of agreement between the parties for sale of rice and evidence of payment of N106,000.00 to 1st defendant by the plaintiff

 

3. Is evidence required before interest of 14% can be awarded by the court?
   Issue No 2.

 

Where the defendant and his counsel secured an adjournment for the defence to lead evidence and 2 distinct dates were fixed in open court but they failed to come to court on the first of the dates and the court adjourned to the second of the fixed date to enable them appear, is the court obliged to order hearing notice to the party and his counsel before proceeding with the hearing on that second date?

 

Does failure to order hearing notice in such circumstance amount to denial of fair hearing?

 

Before dealing with the issues, I will summarize the back ground to this appeal.
After parties exchanged pleadings the 3rd defendant sought by an application to the court to be struck out as party to the suit. The plaintiff, before the motion was heard, withdrew the claim against it and its name was duly struck
out. Then, it remained the 1st and 2nd defendants only, who had filed a joint statement of defence and had one counsel.

 

The 1st defendant was described as representing himself as the Managing Director and Chief Executive of the 2^nd defendant.

 

Yet, it was noted that throughout the testimonies of witness concerning the transaction with the plaintiff , it was the 1st defendant who was said to have made all the representations, received the money involved and failed to
fulfill his pledge to supply rice to the plaintiff who paid for it.

The sum of N106,000.00 was said to be paid to him personally in 1984 for rice, which he said he had at the port but had no money to clear. It was paid in 3 installments-N30,000 + N70,000+N6,000.

 

At the trial before Huponu J., the plaintiff called three witnesses and closed its case.

 

Although the defendant filed a statement of defence, they led no evidence. For, at the close of the case of the plaintiff, the defence counsel applied for an adjournment to open his defence. The court obliged and there and then set down two dates, being 19th and 26th February 1986 for the hearing to continue.
On the first of the two adjourned dates, neither the defendants nor their counsel came to court.

 

The matter was adjourned to the 2nd fixed date of 26th February to enable the defendants and their counsel to come to court. They did not again appear on that date. The court on that date then proceeded to take the final address of the plaintiff’s counsel and thereafter adjourned the matter for judgment on March 20 1986. Judgment was on that day delivered I will now consider the issues.

 

I must note that before the learned trial judge came to the decision complained of he recorded a detailed over view of the pleadings of the parties and the only evidence before him from the plaintiff’s 3 witnesses duly cross examined by learned counsel for the defendants. He noted that although the defendants file a defence, they called no evidence and that the plaintiff had withdrawn his claim against the 3rd defendant and the trial was against the 1st and 2nd defendants.
The records show as noted by the learned trial judge in his judgment how at the trial for two dates fixed in court for the defence which obtained adjournment for the purpose, the defendants and their counsel never appeared in court. This in spite of every opportunity given them they led no evidence. The Judge’s notes for 19th February1987 record that on that day when the defendants failed to appear. That learned counsel for the plaintiff. Chief Sobayo who was in court with the plaintiff conceded adjournment to the next date fixed with parties being 25^th February 1987 (saying he would not ask for costs).

(I will return to this later when dealing with issue No. 2.)

 

Suffice it to state here that in my respectful view, the learned trial judge made detailed and painstaking review of the events and evidence before him which he assessed.

To see if there was sufficient evidence to support the judgment, the pleadings and the plaintiff’s witnesses have had to be considered.

 

The relevant averments in the statement of claim in paragraphs are hereby set out-

 

“2.     The 1st defendant puts himself up and represented to the plaintiff’s chairman Alhaji Yusuf Subair Adebayo as the Managing Director and Chief Executive of the 2nd defendant/company sometime in 1984.

 

5. About August, 1984 the 1st defendant purportedly acting for and on behalf of the 2nd defendant offered to sell to the plaintiff rice to the value of N106,000.00 in Lagos and further undertook to procure the 3^rd defendant to bulk purchase same from the plaintiff at a not less profit of not less than

 

6. The first defendant for the purpose of convincing the plaintiff of the authenticity and geniuses of the offer brought the plaintiff accompanied by his then solicitor, Mr. Bamidele Omotayo to Ibadan and introduce the plaintiff and the rice by business to the then chairman of the 3rd defendant corporation/company, a certain Chief G.O. Abbe.

 

9. By the 2nd defendant letter No. LAB/IICC/84-4 of 3rd September, 1984 under the hands of the 1^st defendant and addressed to the 3rd defendant and a signed copy of which was delivered to the plaintiff also in Lagos both the 1st and 2nd defendants unequivocally asserted the locus of the plaintiff as the performing
   company.

 

10. By the 2nd defendants letter of 19th September, 1984 No. LAB/Y.R.S..84-I under the hands of the 1^st defendant a Photostat copy of the 3rd defendants letter to the 2nd defendant calling for the plaintiff’s banks performance guarantee mentioned in paragraphs 7 and 8 above was delivered to the plaintiff in Lagos by the 1st defendant.

 

11. The plaintiffs avers that the 1st installment of N30,000.00 deposit against the purchase of the rice was paid in cash to the 1st defendant acting for himself and on behalf of the 2nd and 3rd defendants in the presence of the plaintiff’s solicitor, Mr. Bamidele Omotayo, and who accompanied the 1st defendant from Lagos to Ibadan to the office of the 3rd defendant where the money was handed over to the chairman of 3^rd defendant Corporation. Company a certain Mr. G.O. Abbe by the 1st defendant who later went back to the 3rd defendant’s chairman office, after seeing the solicitor off to the entrance

 

12. The plaintiff avers that the 1st defendant himself personally called at its office and collected a further sum of N70,000.00 and a final installment of N6,000.00 all in cash in the presence of (1) Bamidele omotayo (2) Mr. Olu Rotibi, (3) Mr. Olajide Olaitan (4) Mr. Dipo and a host of others all present at the plaintiff’s office all totaling N106,000.00 and all between August, and September, 1984.

 

13. The plaintiff avers that consequent upon its demand for receipt for the various sums of money thus collected against the supply and delivery of the rice as pleaded in paragraphs 11 and 12 above its time of delivery having long expired, the defendant delivered to the plaintiff in Lagos a Photostat copy of an undated letter purportedly written by His Excellency, The Military Governor of Oyo State, Lt. Col. Adetunji Olurin to the honourable Minister of Trade, Major General M.G. Nasco purportedly intimating the interest of the Governor of Oyo State in the rice transaction and seeking the issuance of import licence for its clearance from the wharf, and which the 1st defendant claimed would still meet the 1985 festivities.

 

14. The plaintiff avers, that neither the 1st nor the 2nd defendant has caused any rice to be delivered either to him or to the 3rd defendant to his knowledge to enable the 3rd defendant effect payment to the plaintiff on such and delivery as pleaded in paragraph 5,6,7 and 8 above. “

 

Paragraph 16(a), (b), (c), (d) and already set out being the same as in the writ.
The evidence in proof of these averments were contained in the testimony of the 3 witnesses of the plaintiff-

 

Through out their testimony, it was to the 1st defendant all the acts and deeds giving rise to the cause of action in the suit was attributed by each witness.
The evidence of the witnesses showed that as averred in the Statement of Claim (supra), it was the 1st defendant who performed all the actions, which led to the matters complained of in the suit.

 

It was 1st defendant who represented to P.W.I and P.W.2 that he had rice to sell, but had no money to clear it from the port, in order to sell to 3rd defendant. He represented and introduced 3rd defendant as requiring the rice and would purchase the rice he would sell to the plaintiff from the plaintiff who could make profit of N25 on each bag. He produced documents to PW1 and PW2 to show that he had rice to sell and that the business he was doing with the plaintiff was genuine. He it was to whom the total sum of N106,000.00 was personally paid in 3 installments of N30,000.00 + N70,000.00 + N6,000.00 by the plaintiff to which the 3 witnesses testified. He it was who made promises to PWI that he would issue receipts for the sums N30,000.00 + N70,000.00 +N6,000.00, paid him through PWI, the plaintiff’s lawyer of 15 years but never did despite demands even in writing.

 

The testimony of the 3 witnesses, PWI, a solicitor and the lawyer, of plaintiff for 15 years, P.W. 2, the Chairman/Managing Director of the plaintiff who had known PWI for 16 years and PW3, the accountant of the plaintiff who had instruction from PW2 to pay and did pat the two major installments of N30,000.00 and N70,000.00 to the 1st defendant, all gave their testimony naming the 1st defendant in such unequivocal items, it would appear.

 

The claim in the writ has an alternative claim against the 1st defendant alone paragraph 16(c) which the court below found proved.

 

For, when the learned trial judge considered all this he rightly said in his judgment:-

 

“The plaintiff’s witnesses have impressed me as truthful and I have found their evidence reliable I accept their evidence and have found that indeed in 1984 1st defendant collected from the plaintiff a total sum of N106,000.00 for purchase of rice but has failed to supply the rice. He has also failed to refund the money
collected despite repeated demand for same.

 

The plaintiff has adduced evidence to establish its claims on the writ of summons and statement of claim and since the evidence has not been rebutted by the defence the plaintiff is entitled to judgment.

 

See Nwabuoku v. Ottih (1961) All NLR at 490.

 

The Plaintiff’s claims as reproduced above are three but in alternative. I have found that the claim has been established by evidence is the third and last one”.
The defence led no evidence. All the evidence led was on one side of the imaginary scale of justice as rightly submitted by learned respondent’s counsel.
Where evidence adduced by the plaintiff in suit establishes his claim in the terms of his writ and that evidences not rebutted by the defence, the plaintiff is entitled to judgment and the trial judge has a duty to enter judgment in
his favour. Nwabuoku v. Ottih (1961) 2 SCNLR 232; (1961) All NLR 490, per Ademola JCF (as he then was) at page 490. Also Imana v. Robinson (1979) 3 and 4 SCI.

 

Also where evidence given by a party to any proceedings is not challenged by the opposite party who had an opportunity to do so it is open to the court seized of the matter to act on the unchallenged evidence- Odulaja v. Haddad (1973) II S.C. 35.

 

Also, Nigerian Maritime Service Limited, v. Afolabi (1978) 2 SC 79 at 1-82 and the Privy Council in the case of Adel Boshali v. Allied Commercial Exporters Ltd. (1961) 2 SCNLR 322; (1961) All Nig. L.R 917 (per Lord Guest).

 

So it was in this case and it can be seen that Hotonu J. rightly performed his duty in this case when he entered judgment for the plaintiff against the 1st defendant who failed to come to court and did not, inspire opportunity
to do so, rebut any part of the evidence adduced against him by the three witnesses for the plaintiff.

 

It is only when the evidence is unsatisfactory in a case that judgment should be for the defendant. Frempong v. Brempong 14 WACE 13.

 

Furthermore, the learned trial judge who heard and watched the three witnesses in the witness-box testify in-chief and under cross-examination by learned defence counsel found them witness of truth and their evidence reliable.
It seems clear that the court below had a proper appraisal of the evidence and the witnesses before he came to his decision. If find no reason to interfere with it.

 

I hold myself bound by the age long decisions of our Courts to the effect that a Court of Appeal must not, in the absence of compelling evidence indicating erroneous appraisal of facts and erroneous conclusion, interfere with well considered findings of the court of first instance.

 

Also it is wrong for the appellate court to reverse the findings of the trial court based on primary evidence before that court. See Okafor v. Idigo (1984) 1 SC NLR 481, (1984) 6 SC1, Woluchem v. Gudi (1981) 5 SC 291.

 

In this case the learned trial judge went to the extent of asserting the credibility of the three witnesses for the plaintiff who testified. This court in the premises will not interfere with his findings.

 

In my humble view the evidence sufficiently establishes the claim of the plaintiff against the 1st defendant as set out in the pleadings.

 

The only evidence linking the 2nd defendant company described by the witnesses as that of the 1st defendant and in a manner that he is its alter ego, did not portray it as a contracting party except that some of the letters written
by the 1st defendant was on the note paper of the 2nd defendant. The evidence before the court did not portray any act of agency on the part of the 1st defendant , acting for a known principal as it is now being presented for
the appellant in this appeal.

 

No issue of agency arose at the trial. Finally, the claim in paragraph 16 (c) of the Statement of Claim against the 1st defendant, no appellant is against him personally, not as an agent of the 2nd defendant and there is sufficient evidence found by the learned trial Judge from which he has been held personally liable. I am of the humble view that he was right.

 

The decision did not contradict paragraphs 2, 5 and 11 of the Statement of claim as submitted by learned appellant’s counsel in paragraph 4.3 of his brief. Those paragraphs were dealing with the alternative claim in paragraphs 16 (a) and (b), not 16 (c) on which the court found for the plaintiff now respondent.

 

On the issue of the N30,000 said handed to the Chairman of the 3rd defendant, which the appellant is cashing in the evidence before the court below was that it was the 1st defendant who had collected ‘N30,000. At Ibadan, he took the PWI to the office of man whom he introduced as Chairman of the 3rd defendant. The 1st defendant handed the money to him, then saw off the 1st PWI at the door and returned to the man to whom he handed the money. The 1st defendant/appellant is still accountable for the money and cannot hide under the foregoing facts to escape liability.

 

There was sufficient pleading of the contract to sell and buy rice for which the plaintiff paid N106,000.00. the authority of Shell BP v. Onasanya (1976) 6 SC 89 contains a well known proposition of the law relating to what must be pleaded in an action in contract, but it does not apply to this case in the manner the appellant cites it.

 

There is abundant pleading and evidence of the contract and performance on the part of the plaintiff and of failure on the part of the 1st defendant who took the plaintiff’s money.

 

On the issue of interest raised by the appellant in paragraph 5.4 of his brief of argument, it was submitted that the trial judge was in error when he ordered that the plaintiff be paid the sum of N106,000.00 with interest at 14%
per annum from 1st September, 1984 till the date of judgment (20th March 1986).

 

In his view the law on pre-judgment interest is that the award must be based either on statute, contract or mercantile custom or equity and the plaintiff must plead the basis and lead satisfactory evidence. That is so.

 

But the law also recognizes the right to interest, of a plaintiff in a claim for the return of money arising from commercial transaction particularly where the defendant has held the money of the plaintiff for sometime.

 

Nigeria General Superintendent Co. (NGSC) Ltd v. Nigerian Ports Authority (1990) 1 NWLR (Pt 129) 741.

 

In a situation arising from commercial matters I should think that a party holding on to the funds of another for so long without justification, ought to pay him compensation for so doing.

 

The plaintiff in the circumstances of this case has a right to interest, the defendant having held his money since 1984.

 

Akpata JCA in the NGSC Ltd’s case (supra) put the matter of the right to interest thus:-

 

“A judgment for the return of money is usually accompanied by an award of interest for the period for which it is claimed. In appropriate cases when interest is awarded though not claimed in the writ, it is in the nature of consequential order”.

 

He adopted the views of Lord Denning M.R. in the case of Harbutt’s “plasticine” Ltd. V. Wayne Tank and Pump Corporation Ltd. (1970) 1 QBD 447 at 468 where he said.

 

“It seems to me that the basis for the award of interest is that a defendant has kept the plaintiff out of his money and he defendant has had the use of it to himself. So he ought to compensate the plaintiff accordingly”.

 

In the light of the foregoing the answer to this sub-issue under issue No. 1 is that in the circumstances of this case, – learned trial judge rightly awarded interest as claimed by the plaintiff.

 

Issues No. 2.

 

In his amended brief of argument, Counsel for the appellant had submitted thus:

 

“Thus failure of the learned trial judge to order and satisfy himself that hearing notice was served on the appellant against 25th February, 1987 is fatal to the judgment .”

 

Considering the facts and the circumstances of this matter there can be no legal ground for this complaint and inapplicable conclusion.

 

The Court below had no such duty to order or to ensure that hearing notice was given to a party such as the defendant/Appellant and his Counsel who were in Court when the suit adjourned at their instance for defence, was fixed for the two specific dates, 19th and 25th February, 1987. This is so by virtue of the provisions of the Rules of Court to be dealt with presently.

 

This is an appropriate stage to affirm that, as the learned trial judge stated in his judgment, the Court indeed gave the defence every opportunity to present their case. They and their Counsel failed on each of the two dates to come to Court. As they did not turn up and there was nothing on record that they ever showed the courtesy of sending word to the Registrar, excusing their absence, the Court has no alternative but to proceed with the hearing of the plaintiff’s Counsel’s address.

 

There is no duty on the Court to wait for parties and/or their counsel except as provided by law.

 

When a case is set down for hearing on dates fixed in open Court in the presence of parties and their Counsel, there is clearly no duty on the Court to order hearing nor the Registry of the Court to issue notices to such parties
and their counsel. It is only required of the Registrar that the matter be set down on the Cause List for the dates so previous fixed. See 2, High Court of Lagos Civil Procedure Rule 1972, applicable at the time of this suit.

 

Let me state here that Counsel owes the Court the duty of respect to attend court on dates on which to his knowledge a case in which he acts as counsel is set down for hearing. The rules of court and Ethics require that if for any cogent reason, counsel and/or his client are unable to appear or to proceed with the trial on such a date, he has a duty to notify the Registry of the court and the opposite party in reasonable time before the date of his inability – See Order 31 and Order 32 Rule 2, High court of Lagos Civil Procedure Rules 1972.

 

The rules and principle applicable when a matter set down for trial is called and the defendant fails to appear are well spelt out in the Rules of Court and decisions of our courts.

 

It is simply that in such circumstance, unless the defendant sufficiently excuses his absence, the Court may proceed to hear the case and give judgment – See Order 31 and Order 32 Rule 2, High Court of Lagos Civil Procedure Rules 1992 applicable at the time of the trial of this suit in 1987 (The Rules have since been replaced by the 1994 Rules) see also the case of Grisby v. Jubwe (1954) 14 WACA 637.

The type of circumstances where a judgment in a case heard in the absence of a defendant under the above rules may be regarded as one given without.

Jurisdiction is where the absence of the defendant is due to failure to serve him hearing notice. Such a judgment will be set aside – Lawrence v. Scott – Emuakpor v. Ukaube (1975) 2 SC 41.

 

Serving of hearing notice is not required where a suit had been previously set down for hearing in open Court on dates specified to parties. That is the effect of order 31 of the Lagos State Rules.

 

In this case, the suit was adjourned at the instance of the defendants and their Counsel for their defence. Two dates, 19th and 25th February 1987 were fixed on that date of adjournment and the case duly came up on both dates.

 

Since the defendants and their Counsel chose to absent themselves on the 18th February, 1987, one of the dates earlier fixed in court, the learned trial judge was within his duties when he proceeded with the hearing on 25^th February the second of the previously fixed dates, when again they absented themselves.

 

The learned trial judge acted in accordance with the law. The Appellant cannot take refuge in the complaint of denial of fair hearing, which is entirely unavailable to him in the circumstances of this case. The complaint fails also.

 

In the premises, as ordered by the court below, the plaintiff/Respondent is entitled to the sum of N10,000 with interest at the rate of 14% per annum from 1st September 1984 till 20th March, 1986 being the date of its judgment and further, interest on the said sum at the rate of 4% per annum from 21st March, 1986 till the whole debt is liquidated.

 

Our conclusion is that this appeal fails as it lacks merit and ought to be dismissed. It is hereby dismissed.

 

The judgment of Hotonu J. delivered on 20th March, 1986, wherein he found for the plaintiff, is therefore affirm

 

The will be N2, 000 costs to the Respondent. From the facts of this case the 1st defendant/appellant is roundly liable.

 

On the issue of award of interest on the sum claimed at the rate of 14% per annum from 1st September, 1984 till 20th March, 1986 – a pre-judgment interest – I cannot find any fault with the pronouncement of the court below on
it. The principle admits of no argument indeed, it is very equitable that when money is Oguntade and Aderemi JJCA both concurred with the lead judgement.
{Nigerian Cases Referred to}

 

Akpan v. State (1986) 3 NWLR (Pt. 27) 258

Boshali v. Allied Commercial Exporters Ltd. (1961) 2 SCNLR 322

Imana v. Robinson (1979) 3 and 4 SCI

Nigerian General Superintendence Co. Ltd. v. NPA (1990) 1 NWLR (Pt. 129) 971

Nigerian Maritime Service Ltd. v. Afolabi (1978) 2 SC 79

Nwabuoku v. Ottih (1961) 2 SCNLR 232

Odulaja v. Haddad (1973) 11 S.C. 357

Okafor v. Idigo (1984)

Scott – Emuakpor v. Ukavbe (1975) 2 SC 41

Shell BP v. Onasanya (1976) 6 SC 89

W.A.S.A. (Nig.) Ltd. v. Kalla (1978) 3 S.C.21

Woluchem v. Gudi (1981) 5 SC 291