R.C.A. FETUGA substituted by S.A. ADEBAMBO and 2 others

ADMINISTRATORS OF THE ESTATE OF R.C.A. FETUGA (dec'd) (APPELLANTS)

v.

BARCLAYS BANK D.C.O. (RESPONDENTS)

(1971) All N.L.R. 30

Division: Federal Supreme Court

Date of Judgment: 29th January, 1971

Case Number: SUIT NO. S.C. 613/1966.

Before: Ademola, C.J.N., Lewis, Fatai-Williams, JJ.S.C.

Appeal from the High Court (West).

HELD:

(1)     The entries of the adjournments in the record were haphazard and litigants and their Counsel did lose touch. If the trial Judge had paid some attention to the record before him, he would have discovered this and should have ordered that fresh hearing notices be served on the parties. When therefore the case was called on 5th October, 1964 and the appellant was absent, since a defence had been was unfair and prejudicial to him. A judgment given against him therefore on that day could not stand.

(2)     Further, if he had been served with hearing notice and he chose to stay away, a request by the plaintiff to amend the claim by inflating the amount in the absence of the appellant was wrongly granted. A defendant who by his absence agreed to be bound by a judgment against him for £6,239-4s-9d did not necessarily agree to be bound by a judgment for a larger amount of £9,170-3s-6d.

(3)     It was true that the writ did not disclose that the defendants were partners, but this had been cured by the statement of claim which made it clear that the defendants were partners.

(4)     In this case it appeared that one partner had arranged time credit with the Bank. It was impossible to say how the trial Judge found as a fact that the defendants requested the plaintiff bank to give time credit and accommodation to the Company as there was no evidence of this request before him.

Appeal allowed: Judgment against 2nd defendant set aside.

APPEAL from the High Court (West).

SUIT NO. S.C. 613/1966.

Cole (with him Akinola) for the Appellants.

Adedeji for the Respondents.

Ademola, C.J.N. (delivering the judgment of the court):-This is an appeal by the administrators of the estate of R.C.A. Fetuga, who died on the 16th August, 1968, and who before his death had appealed against the judgment of the High Court at Ijebu-Ode dated 5th October, 1964, in which judgment was entered against him and three others jointly and severally for £9,170-3s-6d, being the balance of overdraft given them by the plaintiffs at Ijebu-Ode in 1957.

The evidence against the defendants, which the learned judge believed, was that in 1956 the four defendants formed a partnership in the firm known as Olu-Iwa Partnership, or otherwise known as Olu-Iwa Trading Company. The bank gave the firm overdraft facilities and at the time the action was brought, an amount of £9,170-3s-6d overdraft stood against the firm. At the trial only the 4th defendant was represented by Counsel; the others were neither present nor represented. During the trial the original claim on the writ for £6,239-4s-9d was, shortly before the close of the plaintiff's case, amended to read £9,170-3s-6d an amount for which the learned judge gave judgment, on the 5th October, 1964.

The judgment was attacked on two grounds; namely (1) that the appellant who was the 2nd defendant at the trial was not served with hearing notice before the case was heard, and also that in his absence it was not competent to the court to allow the amendment of the writ to read £9,170-3s-6d and to give judgment for that amount, (2) that members of the partnership were sued not as partners but each as an individual in his personal capacity and as the action was defended as such, if the judgment was valid at all it will be against the 4th defendant only in his personal capacity as he alone was present at the hearing.

In regard to the first ground argued, there is an affidavit before the court sworn to by the appellant sometime after the judgment and indeed on 14th day of August, 1965. Paragraphs 4 and 13 of the affidavit are relevant and they read:

"4.     The last time I attended this honourable Court (High Court) upon one of the adjournments ordered by the court was the 3rd March, 1964. On this occasion the plaintiff's solicitor who was present in court requested that the hearing of the suit be adjourned sine die. His request was granted."

"13. I was not served with hearing notices after the case was adjourned sine die. Until the 10th August, 1965, I was not aware that judgment had been entered in above suit."

Although this affidavit was not controverted, there is however nothing on record to show that there was an adjournment sine die or to 3rd March, 1964. This, of course is not surprising since it would appear from record that series of adjournments were not entered. For instance, the case was called on 2nd October, 1962 and adjourned to 23rd July, 1963. The next entry shows that the case was called again, not on the 23rd July, 1963 but on 3rd September, 1963. Curiously enough Mr Aiyeola is recorded as having appeared for the 2nd defendant (appellant). It was then adjourned till 23rd December, 1963, but it appeared again on the list only on 29th June, 1964. There was no appearance for the appellant on that date and hearing was fixed for 5th and 6th October, 1964. It was heard on 5th October. We can only assume, since the appellants' affidavit as stated earlier was not controverted, that at one time, possibly on a date later than 3rd March, 1964, the case was adjourned sine die and the appellant was not called upon to attend the court again. One thing, however, is clear and this is that the entries of the adjournments were haphazard and litigants and their Counsel did lose touch. If the learned judge had paid some attention to the record before him, he would have discovered this and should have ordered that fresh hearing notices be served on parties. When therefore the case was called on 5th October, 1964 and the appellant was absent, since a defence had been filed on his behalf, to have continued with the hearing in his absence was unfair and prejudicial to him. A judgment given against him therefore on that day cannot, in our view, stand. Further, if he had been served with hearing notice and he chose to stay away, a request by the plaintiff to amend the claim by inflating the amount in the absence of the appellant was to our mind wrongly granted. A defendant who by his absence agreed to be bound by a judgment against him for £6,239-4s-9d does not necessarily agree to be bound by a judgment for a larger amount of £9,170-3s-5d.

The second issue raised is that the defendants were not sued as partners but each in his personal capacity. It is true that the writ did not disclose that the defendants are partners, but this has been cured by the statement of claim which made it clear that the defendants are partners. Paragraph 2 states that the defendants are partners of a firm trading as Olu-Iwa Trading Co. The fact was admitted by the 2nd defendant, but the plaintiff never sued them as partners, nor did they admit in their statement of defence that they were so sued.

The third point raised in this appeal is that it was not proved that the partners (defendants) requested the plaintiff bank of give time credit and accommodation to the company. In other words, to what extent are others bound by the act of one of the partners? In this case it appeared one partner had arranged time credit with the Bank. The learned Judge in his judgment found five facts, and the fourth is relevant. It reads:

"4.     At the request of the defendants, The Barclays Bank gave time credit and bank facilities and accommodation to the said Olu-Iwa Trading Co. as a result of which a sum of £9,170-3s-6d is now due from the said company to the Bank."

We are unable to say how the learned trial Judge arrived at this as there was no evidence of this request before him.

For the above reasons we must allow the appeal of the 2nd defendant in the Suit No. J/3/62 before the High Court, Ijebu-Ode.

The appeal is allowed. The judgment including the order as to costs of the learned Judge in so far as it affects the present appellant who is the 2nd defendant in the case is hereby set aside, and the case against him in the Suit is dismissed.

The following order is made.

In Suit No. J/3/62 before the High Court, Ijebu-Ode the case against the 2nd defendant is hereby dismissed, with 25 guineas costs, and this will be the judgment of the court.

Costs in this Court assessed at 68 guineas.