IN THE COURT OF APPEAL OF NIGERIA
On Friday, The 11th day of July, 2014
CHELLARAMS PLC ................. Appellant
1. PASHTUN NIGERIA LIMITED .............. Respondents
2. UMARU FAROUK ALIYU
P. Y. Garuba for Appellant
Respondent Absent, Unrepresented
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.
The appellant being dissatisfied with the grant of the adjournment, filed a notice of appeal on 14th February, 2013 challenging the entire ruling on 3 grounds of appeal.
By a writ of summons dated 5th December, 2012, the appellant as plaintiff, commenced civil proceedings before the lower court against the respondent and applied for summary judgment vide a motion dated same 5th February, 2012 claiming against the respondents (as defendants) jointly and severally the following reliefs:
"(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 judgment.
(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 objection.
The learned trial Judge overruled the objection taken to the application for adjournment and granted the adjournment sought to the 15/4/13.
The displeasure of the defendant (now Appellant) about the adjournment granted by the learned trial Judge gave raise to this appeal filed by P. Y. Garuba Esq. on 14th February, 2013 challenging the said decision.
In compliance with the Rules of this Court, the learned counsel to the appellant and to the respondent exchanged their briefs of argument. The appellant's brief of argument dated 21/3/13 and the reply dated 25/04/13 and filed on 30/4/13 were settled by P. Y. Garuba Esq. The respondent's brief of argument dated and filed on 19/4/13 was settled by Araga A. O. Esq.
The learned respondent's counsel filed a motion on notice on 10/02/14 to argue a preliminary objection to the appeal. Same was however withdrawn and struck out on 13/2/14.
Consequent upon the withdrawal and the striking out of the motion, the respondents argument on the struck out preliminary objection contained at pages 2 - 8 of his brief of argument as well as the appellant's reply brief as pertaining to the preliminary objection shall be discountenanced in this judgment.
The appellant raised two issues for determination viz:-
"(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.
I am not in complete agreement with the learned appellant's counsel on this argument. This is because a cross-appeal can only be filed where the respondent whose duty it is to defend the decision appealed against wants to depart from his role by turning round to attack the decision. It is then that the law requires him to file a cross-appeal. Adefulu & ors vs. Oyesile & ors (1989) 5 NWLR (Pt.122) 377.
However, where the respondent desires that the decision of the lower court be sustained on grounds other than that upon which the decision of the lower court was based, Order 9 Rule 1 requires the respondent to file a respondent's notice which the respondent has not filed in this case.
Having not filed same and having withdrawn his notice of preliminary objection which was thereupon struck out, I must find favour with the appellant that the respondent cannot raise this issue.
I find the 2nd issue raised by the appellant as unnecessary, same being adequately covered in the first issue. I therefore adopt the appellant's first issue as the sole issue for determination in this appeal, to wit:
"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.
Learned counsel contended that the adjournment granted by the trial court had occasioned a miscarriage of justice which this Court should overturn.
For the respondent, it was contended that apart from the fact that the trial court did not have jurisdiction and could not have entered judgment for the appellant, Order 15 Rule 5(2) of the said Rules of the lower court, uses the word "may" thereby giving a discretion to the court.
In determining this appeal, it is apt to reproduce not only the relevant Kaduna State High Court Rules, Order 11 Rule 4 and Rule 5(2) but also the proceedings of the 13/02/13 leading to this appeal.
At pages 89-90 of the record, this is what transpired at the Lower Court:
PASHTUN NIGERIA LIMITED
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 fair hearing.
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 discountenance same.
In the light of the issues raised by counsel and the need to ensure that the defendants are granted one more opportunity to be heard, I hereby grant the applicants an adjournment of the matter and the case is adjourned to 15/04/13 for hearing."
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:-
"Where any defendant fails or neglect to comply with the provisions of Rule 4 of this Order, or it appears to the Judge that the defendant has no good defence to the claim, the Judge "may" enter judgment for the plaintiffs."
There is no doubt that Order 11 Rule 4 requires (and uses the word shall) the defendant to file the listed processes not later than the time prescribed by the Rules for the filing of the defence.
By Order 9 Rule 2 of the Rules, the defendant has 21 days from the service of the plaintiff's originating processes on him to file a statement of defence.
The appellant's counsel has canvassed that the writ of summons was served on the respondents on 20/12//12.
Thus, the respondent was required to file his statement of defence and other processes by 10th January, 2013.
By the 13/2/13 when the case came up for hearing, the Respondent had not filed any process to defend the suit. The reason for that was stated by the Respondent's counsel. He was only briefed on the 12/2/13.
In addition, he raised orally the issue of jurisdiction of the lower court to entertain the suit.
The pertinent question is whether the learned trial judge had the discretion to adjourn the case on those reasons.
The issue of the grant or refusal of an application for adjournment is one which is subject to the Court's discretion, an adjournment of a case being a matter for the discretion of the court. Being a discretionary power to be exercised in a judicial capacity, it follows that same must be so exercised judiciously and judicially and not arbitrarily or at the whims and caprices of the judge concerned. Thus adjournment of cases fixed for hearing are not obtainable as a matter of course or just for the asking, but must be based on some cogent reasons warranting the grant of same. See Okeke v. Oruh (1999) 6 NWLR (Pt.606) 175 at 188.
However, it is settled law that the exercise of the discretion depends on the facts and circumstances of each case. This is because in matters of discretion, no one case can be authority for another and the court cannot be bound by a previous decision to exercise a discretion in a particular way, because that would be in effect, putting an end to the discretion.
See Odusote v Odusote (1971) 1 All NLR 219 at 222, per Udoma JSC.
The argument of the learned appellant's counsel is that the Respondent who had failed to comply with Order 11 rule 4 of the Rules of the lower court was not entitled to an adjournment.
It is clear to me from what transpired in the court on that 13/2/2013, the issue was more than a mere application for adjournment to file the necessary processes to defend the suit. The Respondent made it clear, as borne out from the records already reproduced in this judgment that he was drawing the court's attention to the absence of the competence of the suit and the jurisdiction of the court to entertain the suit. Although that was by an oral observation, the trial court was obliged to consider such an observation before proceeding with the matter. Admittedly by the said date, no formal notice of preliminary objection had been placed before the Court but the law is settled that jurisdiction being the live wire of any adjudication can be raised at any stage and in any manner. Once raised, even orally, the judge cannot shut his ears to it and must hear and determine same. Indeed even the court can suo motu raise the issue VAB Petroleum Inc. v. Mr Mike Momoh (2013) LPELR 1977 (SC).
It is therefore my view that the observation made by the Respondent's counsel touching on the jurisdiction of the court grounded enough reason for the grant of the adjournment inspite of the wordings of Order 11 rule 4 of the Rules.
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.
ABDU ABOKI, J.C.A.:
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.
OLUDOTUN ADEBOLA ADEFOPE OKOJIE, J.C.A.:
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.
The reasons given by the Respondent's Counsel at the trial for seeking an adjournment were that he had just been briefed the evening before and required a short adjournment to enable them file processes in response to the suit and the application. Also that a condition precedent before resort to litigation had not been complied with, in regard to arbitration.
My learned Brother Amina Audi Wambai JCA has adequately dealt with the provisions of Order 11 Rules 4 and 5 of the Kaduna State High Court (Civil Procedure) Rules of 2001 as regard the procedure to be adopted where the Defendant seeks to defend the suit. Also the actions to be taken by the court where there is a failure or neglect by the Defendant in complying with the provisions, or in failing to disclose a good defence.
The use of the permissive "may" in Order 11 Rule 5 (2) of the said Rules gives the court a discretion whether or not to enter judgment even where there is such neglect.
On the issue of discretion, it was held by the Supreme Court in the case of A/G. Rivers State v. Ude  17 NWLR Part 1008 Page 435 at 460-461 Para H - A per Katsina -Alu, JSC (as he then was) as follows:-
"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 grant of the adjournment by the lower court was stated to be as a result of the issues raised by Counsel to the Respondents and to ensure that the Respondents are granted one more opportunity to be heard.
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.
In the instant case the application has not yet got to the stage of hearing, the trial judge having granted an adjournment.
I am in agreement with my brother Amina Audi Wambai JCA that the exercise of the discretion by the trial judge in granting the adjournment has not been shown to have been wrongly exercised.
This appeal fails and is hereby dismissed. The case is remitted to the trial judge for determination.