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Afonja Community Bank (Nig.) Ltd v. Akpan

AFONJA COMMUNITY BANK (NIG.) LTD.

V

MR. M. F. AKPAN

COURT OF APPEAL

( ILORIN DIVISION )

MURITALA AREMU OKUNOLA, JCA ( Presided )

PATRICK IBE AMAIZU, JCA ( Read the Lead Judgment )

WALTER SAMUEL NKANU ONNOGHEN, JCA

CA/IL/10/2000

MONDAY, 10 TH DECEMBER,  2001

FAIR HEARING - Requirement of objective test in determining issue of fair hearing - Consideration of circumstances of each case

FAIR HEARING - Right of hearing - Need to grant parties equal opportunity

JUDGMENT AND ORDERS - Default judgment - Application to set same aside - What court must consider - Williams vs. Hope Rising Voluntary Funds Society considered

LEGAL PRACTITIONER - Counsel conducting a case - Duty of to keep abreast of court business

LEGAL PRACTITIONER - Service of process on party through counsel’s address - Whether good service

PRACTICE AND PROCEDURE - Service of process on party through counsel’s address - Whether good service

Issues:

1.            Whether the appellant or his counsel had adequate opportunity to defend this suit before the trial High Court.

2.            Whether if the answer to issue No. 1 is in the affirmative, there was any breach of the rules of fair hearing.

Facts:

The plaintiff/respondent filed an action in the Kwara State High Court, Ilorin against the defendant/appellant seeking declaratory and injunctive reliefs as well as claiming N1.5m damages for unlawful detention, sundry harassment and embarrassment on account of the loan owed by Modern Morgy & Sons Ltd.

Pleadings were duly filed and exchanged by the parties. The hearing of the suit suffered several adjournments at the instance of the defendant/ appellant’s counsel who did not attend the sitting of the court. After eight adjournments, spanning 2 years, 6 months and 10 days from the 7th day of May, 1996, the case was finally heard on 17/11/98 in spite of hearing notice served personally on the counsel for the appellant. The trial Judge after listening to the evidence of the plaintiff/respondent and his counsel’s address awarded N1,250,000 in favour of the plaintiff/respondent.

Copy of the said judgment was served on the defendant/appellant on 25 th May, 1999 and he thereafter filed a motion before the same court seeking extension of time within which to seek to set aside the said judgment and also order setting aside the judgment of 18th December, 1998. The trial Judge, after hearing the parties, dismissed the application.

The defendant/appellant being dissatisfied with the said ruling brought this appeal.