JUDGMENTS OF THE NIGERIAN COURTS OF JUSTICE
Restoring Nigeria's Law to Nigeria's People - One by One
PASHTUN NIGERIA LIMITED
AMINA AUDI WAMBAI, J.C.A. (Delivering The Leading Judgment):
The appeal herein is against the ruling of Kaduna State High Court, Kaduna Judicial Division in suit No.KDH/KAD/1015/2015 delivered on 13th February, 2013 by Hon. Justice Dogara Mallam, wherein the learned trial Judge obliged an adjournment to the respondent's counsel on the day fixed for hearing of motion for summary judgment, to enable the respondent file the necessary processes to defend the appellant's claim.
"(i) The sum of N11,333,000,00 (Eleven Million, Three Hundred and Thirty Three Thousand Naira) being the outstanding balance of the value of 400 (Four Hundred) units of motorcycles supplied by the plaintiff to the 1st Defendant on credit basis at the defendant's request, which balance payment has since the year 2009, become due and payable but remained unpaid.
(ii) The sum of N9,442,072.00 (Nine Million, Four Hundred and Forty Two Thousand Seventy Two Naira) being the accrued interest on the outstanding balance payment as at 21/10/2011.
(iii) 3% (three percent
interest rate) per calendar month from the 22/10/2011
on the outstanding balance payment until the date of
(iv) 10% Court rate interest, from the date of judgment on the judgment sums until final liquidation of the entire judgment sums
(v) The plaintiff also claim against the defendants jointly and severally the cost of filing and prosecuting this case."
On the date fixed for the
hearing of the motion 13/3/2013, learned respondent's
counsel asked for an adjournment because according to
him, they were only briefed at 5.00pm of the previous
day, the 12/3/13. He also orally raised a preliminary
"(i) Whether the learned trial Judge was right in law to have adjourned the application for summary judgment in the absence of the respondents complying with the mandatory Rules of the Honourable Court.
(ii) Whether the learned trial Judge was right in law in adjourning the suit to another date for hearing and if answered in the negative what is the proper order in the circumstance to make in order to redress the breach?"
The respondent's counsel also at paragraph 6.01 of his brief raised one issue for determination, to wit:-
"6.01. Whether having regard to the provision of Article 9 of the motorcycle supply agreement between the appellant and the respondents and the Supreme Court decision in Sken Consult Nig. vs. Ukey (1981) 1 SC 6, this suit is competent and the high court has jurisdiction to act on order 11 rule 5(2) of the Kaduna State High Court (Civil Procedure Rules) of 2007."
The learned appellant's counsel has challenged the right of the respondent to raise such an issue which neither flows from the grounds of appeal nor is supported by a cross-appeal filed by the respondent.
"Whether the learned trial Judge was right in law to have adjourned the application for summary judgment in the absence of the respondents complying with the mandatory Rules of the Hon. Court."
It was canvassed for the
appellants that the respondents having not complied with
the mandatory provision of Order 11 Rule 4 of the Kaduna
State High Court Civil Procedure Rules, and the matter
having been fixed for hearing on the said date and
without any formal application for extension of time
before the court, the trial court had no power to grant
an adjournment as his only duty was to hear the case or
enter judgment for the appellant. Learned counsel
referred to some judicial authorities including Co-operative
& Commerce Bank (Nig) Plc vs. A.G. Anambra State
& Anor (1992) 10 SCNJ 137 at 163 on the
absence of respondents right to the grant of an
adjournment having not complied with the law and also
the case of Ben Thomas Hotels Ltd vs. Sebi Furniture
Co. Ltd (1989) 12 SCNJ 171 at 175 on the
contention that the only duty of the court was to see
whether there was compliance with the Rules or enter
judgment for the appellant.
UMARU FAROUK ALIYU
Appearances: P. Y. Garuba for the Plaintiff/Applicant.
Araga A. O. for the Defendant/Applicant.
Araga: We were briefed by the
defendants at about 5:00p.m yesterday 12/02/13 we
humbly apply for a short adjournment to enable us file
a motion for leave to the memo of appearance,
statement of defence, affidavit disclosing defence on
the merit to the suit in the interest of justice and
Garuba: We oppose, the application vehemently because under Order 11 Rule 5 where the defendant fails to show a good defence on the merit to the plaintiffs case the only option open to the court is to enter judgment for the plaintiff. I therefore urge the court to do so here.
Araga: In the spirit of Section 36
we urge the court to grant us the adjournment.
Court clerk: The defendants were served
with the court processes on the 20/12/12.
Araga: We wish to draw the attention of the court to an important issue i.e. the issue of jurisdiction. The plaintiffs have not complied with a condition precedent to the exercise of the court's jurisdiction as no arbitration has been done in respect of the matter before same came to court as provided in clause 9 of Exhibit BP1.
Garuba: The parties in this case
have taken steps which preclude the involvement of an
arbitrator and therefore the court should
Now, "ORDER 11 RULE 4, Provides:-
"Where any defendant served
with the processes and document referred to in Rule 1
of this Order intend to defend the suit, such
defendant shall not later than the time prescribed by
these Rules for filing a defence, file:
(a) a statement of defence (b) depositions of witnesses (c) exhibits to be used in defence; and (d) a written address in reply to the application for summary judgment."
"ORDER 11 RULE 5(2) Provides:-
Thus, the respondent was required to file his statement of defence and other processes by 10th January, 2013.
See Odusote v Odusote (1971) 1 All NLR 219 at 222, per Udoma JSC.
Furthermore, the Rules invest in the judge the discretion to grant an adjournment on the date fixed for hearing a suit for summary judgment even where, as in this case, the defendant fails or neglects to comply with the provisions of Rule 4. This is evident by the use of the word "may" in Order 11 rule 5(2) of the Rules already reproduced in this judgment.
In view of all these, the appellant has
not shown that the learned trial judge wrongly
exercised his discretion in granting the adjournment
sought. Respondent's counsel having orally indicated
that the court had no jurisdiction over the matter, as
the suit was contended to be incompetent. I therefore
find no reason to interfere with the exercise of the
courts discretion in the granting of the adjournment. In the circumstance, this
Appeal fails and is dismissed. Consequently, this suit
No.KDH/KAD/1015/12 the subject of this appeal is hereby
remitted back for determination.
I have had the advantage of reading the draft judgment of my learned brother AMINA AUDI WAMBAI, JCA in this appeal. I agree with her reasoning and conclusions reached therein that the appeal fails. I abide by the consequential order in the lead judgment.
This appeal revolves around the question whether the lower court was right to have granted an adjournment to the Respondent on the date fixed by the trial judge for hearing of the Appellant's Motion for Summary Judgment.
"It is now settled law that it is a matter within the discretion of the court whether or not to grant an adjournment. The discretion must however be exercised not only judicially but judiciously. It is the duty of a Judge to clearly state whether he grants or refuses an adjournment and his reasons for doing so and it should be apparent from the record that he gave a careful consideration for his decision: Ude V. The State  3 NWLR [Pt.82] 316. In matters of discretion, no one can be authority for another and the court cannot be bound by a previous decision to exercise its discretion in a particular way, because that would be as it were, putting an end to the discretion: Ceekay Traders Ltd. V. General Motors Co. Ltd.  2 NWLR [Pt.2220] 132 at 147. Clearly, adjournments and control of proceedings are matters within the discretion of the trial judge which discretion must be exercised judicially and judiciously."
In the instant case the application has
not yet got to the stage of hearing.
The trial judge had set out his reasons for granting the adjournment. This Court will not fetter this discretion to adjourn. The case of Ben Thomas Hotels Ltd. V. Sebi Furniture Co. Ltd.  NWLR part 123 P. 523 is distinguished. The statute that came up for deliberation in that case is Order 3 Rule 12 of the High Court (Civil Procedure) Rules 1975 of Kwara State, which states that once the Defendant in an action in the Undefended List fails to deliver the notice of intention to defend and affidavit and is not let in to defend, the Plaintiff is entitled to judgment, once the affidavit in support of the application shows that the Defendant has no defence to the action.
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