STARRING TRADE INTL LTD & ANOR v. BOI
(2021)LCN/15567(CA)
In The Court of Appeal
(KANO JUDICIAL DIVISION)
On Tuesday, March 30, 2021
CA/KN/592/2017
Before Our Lordships:
Hussein Mukhtar Justice of the Court of Appeal
Habeeb Adewale Olumuyiwa Abiru Justice of the Court of Appeal
Abubakar Muazu Lamido Justice of the Court of Appeal
Between
1. STARRING TRADE INTERNATIONAL LIMITED 2. ENGINEER SAGIR KOKI APPELANT(S)
And
BANK OF INDUSTRY RESPONDENT(S)
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision contained in the Ruling of the Federal High Court sitting in Kano delivered in Suit No FHC/KN/CS/69/2011 by Honorable Justice J. K. Dagat on the 6th of July, 2017.
The Appellants commenced the action in the lower Court against the Respondent in 2011 over a loan facility of N79,241,000.00 (Seventy Nine Million, Two Hundred and Forty One Thousand Naira) granted to the Appellants by the Respondent in 2005 for the procurement of polypropylene woven mats plant and machinery. The Respondent counterclaimed for the outstanding sum due on the loan facility. There is no record of what transpired in the matter before the lower Court between 2011 and 2017. In February, 2017, the Appellants changed their firm of Counsel from Messrs Okechukwu Nwaeze & Co to Messrs I. G. Waru & Co and on the 5th of April, 2017, the new Counsel filed a motion to amend the statement of claim. The records of proceedings in the lower Court show that the motion to amend was heard and granted by the lower Court on the 6th of April, 2017 and the Appellants were given ten days to file the amended process and the matter was, with consent of Counsel to the parties, adjourned to the 10th of May, 2017 for hearing.
The records show that on the 10th of May, 2017, Counsel to the Appellants and the Appellants were absent from Court, but Counsel wrote a letter asking for an adjournment. Counsel to the Respondent opposed the request for an adjournment and he prayed that the case of the Appellants be dismissed for want of diligent prosecution. The lower Court overruled the objection of Counsel to Respondent and it further adjourned the matter for 7th of June, 2017. The records show that on the 7th of June, 2017, Counsel to the Appellants was present in Court and he prayed for a further adjournment of the trial on the ground that the second Appellant was meeting with the new Managing Director of the Respondent to work out an amicable settlement of the dispute. Counsel to the Respondent opposed the request and denied that there was any move towards settling the matter and he prayed the lower Court to dismiss the Appellants case and allow him to proceed with the counterclaim. The lower Court again acceded to the request for adjournment and it adjourned the matter to the 6th of July, 2017 either for report of settlement or for definite hearing.
The records show that on the 6th of July, 2017, Counsel to the Appellants sought for another adjournment of the trial on the ground that the parties had made progress in the settlement talks and had only one issue to resolve thereon and he prayed for time for the parties to conclude discussions on the settlement. Counsel to the Respondent again opposed the request for adjournment and informed the lower Court that settlement talks had not progressed and he prayed that hearing proceed in the matter. The lower Court delivered a considered Ruling refusing the request for an adjournment and it directed the Appellants to proceed with the trial. Counsel to the Appellants informed the lower Court that he was unable to proceed with the trial as his only witness was not in Court and he requested for an adjournment to call the witness. Counsel to the Respondent opposed the request for adjournment and prayed the lower Court to either strike out or dismiss the claims of the Appellants and allow the Respondent to prove its counterclaim. The lower Court delivered a Ruling and it refused the request for an adjournment and it struck out the claims of the Appellants for want of diligent prosecution and it adjourned the matter to the 19th of October, 2017 for hearing of the counterclaim.
The Appellants were dissatisfied with the Ruling of the lower Court refusing the adjournment and striking out their claims and they caused their Counsel to file a notice of appeal dated the 18th of July 2017 and containing one ground of appeal against it. The notice of appeal was subsequently amended and the Appellants filed an amended notice of appeal dated the 26th of February, 2019 on the same date and it contained two grounds of appeal. In arguing the appeal before this Court, Counsel to the Appellants filed a brief of arguments dated the 15th of September, 2020 and the brief of arguments was deemed properly filed and served on the 6th of October, 2020. The Respondent’s brief or arguments dated the 16th of October, 2020 was filed on the 20th of October, 2020. Counsel to the Appellants filed a Reply brief of arguments dated the 4th of November, 2020 on the 5th of November, 2020 and the Reply brief of arguments was deemed properly filed and served on the 9th of February, 2021. At the hearing of the appeal, Counsel to the parties relied on and adopted the arguments contained in their respective briefs of arguments as their submissions in the appeal.
Counsel to the Appellants distilled one issue for determination in the appeal and it was:
Whether the trial Court did not deny the Appellants their right to fair hearing when it struck out their case because they were unable to finally report settlement and their request for adjournment to call their only witness was refused.
In arguing the issue for determination, Counsel answered the question posed in the issue for determination in the affirmative and he stated that this was because the case of the Appellants was struck out because they reported to the lower Court that progress had been recorded towards amicable settlement and their request for just one more adjournment to enable parties conclude and take decisive position on what should be paid as advance payment. Counsel stated that the efforts put in place by the Appellants towards achieving an amicable settlement were not out of place and were in fact commendable and trial Courts are enjoined to encourage amicable settlement of disputes out of Court and that as such the decision of the lower Court to strike out the claims of the Appellants was wrong and he referred to the cases of Habib Bank (Nig) Plc Vs Lodigiani (Nig) Ltd (2010) LPELR 4228(CA) and Salihu Vs Ministry of Education, Gombe State (2015) LPELR 40626(CA).
Counsel stated that upon the change of the Counsel for the Appellants in February, 2017 only three sittings took place before the lower Court struck out the claims of the Appellants and he thereafter reproduced the proceedings of the 6th of April, 2017, 10th of May, 2017, 7th of June, 2017 and that of the 6th of July, 2017 when the lower Court struck out the claims of the Appellants. Counsel stated that it was obvious from the reports of Counsel to the parties during the proceedings of the 6th of July, 2017 that the parties had made serious efforts towards settling the matter amicably, but that the lower Court wrongly found in its Ruling that there had been no settlement in the matter. Counsel conceded that the grant of an adjournment is always at the discretion of the Court and which discretion must be exercised judicially and judiciously and stated that the progress and successes recorded towards an amicable settlement of the matter were more than enough reasons why the lower Court should have adjourned the matter to enable the parties conclude settlement and he referred to the cases ofRegistered Trustees of Christ Faith Mission Vs Akugha (2008) LPELR 4894(CA) and Sani Vs Aidoko (2017) LPELR 42353(CA).
Counsel stated that the grant of the requested adjournment to enable the parties finally report settlement would not have in any way caused a delay in the prosecution of the case before the lower Court. Counsel stated that the request for adjournment made on the 6th of July, 2017 and which the lower Court refused was the third adjournment sought by the Appellants and that, in refusing the request for adjournment, the lower Court did not advert its mind to the provisions of Order 19 Rule 4 of the Federal High Court Rules 2019 which gives a party a right to three adjournment during the course of trial and that this vindicates the position of the Appellants that the lower Court was in unnecessary haste. Counsel referred to and quoted extensively from the case ofNnachi Vs Onuorah (2011) LPELR 4626(CA) in asserting that Rules of Court are not made for fun and they are binding on the Court and the parties and stated that the lower Court did not follow the provisions of the Rules of Court in refusing the adjournment sought.
Counsel stated that the lower Court did not treat the Appellants fairly, equitably and justly when it refused their request for adjournment to conclude settlement and struck out their claims and that this act of the lower Court shows that the Appellants were not given a fair opportunity to present their case and he referred to the cases of Uguru Vs State (2002) LPELR 3325(SC) and UBN Vs Nwaokolo (1995) LPELR 3385(SC). Counsel concluded his arguments by urging the Court to resolve the issue for determination in favour of the Appellants and to allow the appeal and set aside the Ruling of the lower Court.
Counsel to the Respondent also distilled one issue for determination in the appeal and this was:
Whether the Appellants were denied fair hearing when they failed to comply with the order of Court that adjourned the matter for report of settlement or definite hearing of the matter if no settlement was reached before the adjourned date and on the adjourned date there was report of failure of settlement but the Appellants failed to call their witness when called upon to do so before the case was struck out.
In arguing the issue for determination, Counsel to the Respondent traversed through the history of the case before lower Court from February, 2017 to the 6th of July, 2017 when the claims of the Appellants were struck out, and as summarized in the earlier part of this judgment, and stated that it was clear that the Appellants were given a fair hearing but that the Appellants failed to take advantage of the opportunity offered and they cannot turn round to accuse the lower Court of denying them fair hearing and he referred to the case of Dantata Vs Mohammad (2013) All FWLR (Pt 672) 1791. Counsel stated that the Appellants were offered several opportunities to present their case and they refused to take advantage of same and the Court cannot force a party to present his case and that where a party fails to take advantage of opportunities offered it, the Court is entitled to make the appropriate order to ensure that justice is done, and which the lower Court did in the instant case, and he referred to the cases of Chidoka Vs First City Finance Co. Ltd (2013) All FWLR (Pt 659) 1024 and Ayoola Vs Ajibare (2013) All FWLR (Pt 698) 1011.
Counsel reiterated that a party to a case cannot claim denial of fair hearing where he willfully absented himself from Court or failed to lead evidence when called upon to do so and that the Appellants contemptuously ignored the order and directive of the lower Court and have turned around to rely on flimsy excuses to allege lack of fair hearing and he referred to the case of A.G, Rivers State Vs Ude (2007) All FWLR (Pt 347) 598. Counsel stated that the grant of adjournment is at the discretion of the Court and that having granted four consecutive adjournments to the Appellants to present their case and they failed to do so, the lower Court judicially and judiciously exercised its discretion when it refused to grant a further adjournment to the Appellants on the 6th of July, 2017 and he referred to the cases ofA.G. Rivers State Vs Ude supra and B.C.C. Ltd Vs Imani & Sons Ltd/Shell Trustees Ltd (2007) All FWLR (Pt 348) 805.
Counsel stated that all the postulations of Counsel to the Appellants on the alleged on-going settlement discussions between were untrue as the Appellants reneged on the term to make an agreed down payment of N10 Million and Respondent stepped out of the settlement moves and there was nothing to be thrashed out between the parties on settlement as at 6th of July, 2017 and this much was reported to the lower Court on the 6th of July, 2017 and hence the finding of the lower Court that settlement had broken down. Counsel stated that it was obvious from the happenings on the different days the matter came up that it is incorrect that the lower Court hampered the parties in settling the matter and that the lower Court did encourage the parties to attempt amicable settlement and in fact gave them the opportunity to do so and that the moves failed and the law is that where settlement breaks down, the Court must proceed with hearing and he referred to the case of Salihu Vs Ministry of Education, Gombe State (2015) LPELR 40626(CA).
Counsel stated that the reliance placed on the Federal High Court (Civil Procedure) Rules 2019 was inapposite as the lower Court had granted three adjournments at the instance of the Appellants between February, 2017 when their new Counsel came in and the 6th of July, 2017. Counsel stated that the true facts of the occurrences in the lower Court show that it was untrue that the lower Court treated the Appellants unfairly, inequitably and unjustly when it struck out their case for want of diligent prosecution. Counsel stated that justice is not a one way traffic and it is for all the parties before the Court and that the Appellants who filed a case in 2011 and put wedges in the way of justice by asking for adjournments, even where the purpose of the adjournment had failed, cannot claim unfair treatment when their claims were struck out. Counsel concluded his submissions by praying the Court to resolve the issue for determination in favour of the Respondent and to dismiss the appeal and affirm the Ruling of the lower Court.
The complaints of the Appellants in this appeal are against the refusal of their request for an adjournment by the lower Court and the consequential striking out of their claims. Now, the law, by a long line of cases, is, and has always been, that adjournment of cases fixed for hearing are not obtainable as a matter of course or as of right, but may be granted or refused at the discretion of the Court – African Continental Bank Ltd Vs Agbayim (1960) SCNLR 57. In Ilona Vs Dei (1971) LPELR 1495(SC), Udo Udoma, JSC, stated that “the question of whether or not to grant an adjournment is a matter in the discretion of the Court.” InOdusote Vs Odusote (1971) All NLR 219, Udoma, JSC, again stated that “the question of adjournment is a matter in the discretion of the Court concerned and must depend on the facts and circumstances of each case.” In Alalade Vs Accountants’ Disciplinary Tribunal of the Institute of Chartered Accountants of Nigeria (1975) LPELR 405(SC), Coker, JSC opined that “it is never in dispute that the granting or refusal of an application for adjournment rests completely with the Tribunal or Court before which, the Counsel appears.” In Obomhense Vs Erhahon (1993) 7 SCNJ 479, Karibi-Whyte, JSC, reiterated that “the grant of adjournment in a cause is a matter entirely within the discretionary jurisdiction of the Court which it can exercise in accordance with the particular facts and circumstances of the case.” In Salu Vs Egeibon (1994) 6 NWLR (Pt 348) 23, Adio, JSC, reaffirmed that “the grant or refusal of an application for an adjournment involves an exercise of judicial discretion.”
It is elementary that discretion is a very fluid situation and when a Court is invited to exercise its discretion one way or the other, the Court has to take cognizance of the very facts of the case before it –Bello Vs Yakubu (2008) 14 NWLR (Pt 1106) 104. A Court must always exercise its discretion only on the basis of the materials placed before it and on no extraneous considerations –CFAO (Nig) Plc Vs Sanu (2008) 15 NWLR (Pt 1109) 1.
Thus, the Courts have consistently held that an applicant who seeks the exercise of a Court’s discretion in his favour has a duty to place before the Court sufficient materials to satisfy the Court that he is entitled to a favourable exercise of the Court’s discretion – Alamieyeseigha Vs Federal Republic of Nigeria (2006) 16 NWLR (Pt 1004) 1, In re: NDIC (Liquidator of Alpha Merchant Bank Plc); Adesanya Vs Lawal (2007) 7 NWLR (Pt 1032) 54 and SCOA (Nig) Plc Vs Omatshola (2009) 11 NWLR (Pt 1151) 106.
The applicant has the duty to support his application with all necessary evidence and it is the corresponding duty of the Court to determine whether the applicant had discharged his duty in that regards. If he fails, it is just right and fair that the Court should refuse to exercise its discretion in his favor –Solanke Vs Somefun (1974) 1 SC 141, University of Lagos Vs Aigoro (1985) 1 NWLR (Pt 1) 143, Ali Pindar Kwajafa Garage Ltd Vs Borno State Water Corporation (2009) 17 NWLR (Pt 1171) 429.
In Nwadiogbu Vs Anambra/Imo River Basin Development Authority (2010) 19 NWLR (Pt 1226) 364, the Supreme Court stated at pages 381-382 that:
“When a case has been fixed for hearing, the trial Court must ensure the hearing of the case except if a party applying for adjournment showed sufficient reason why the case must be adjourned, that is, by placing sufficient materials before the Court upon which it can exercise its discretion, otherwise, an adjournment of a case fixed for hearing would mean further delay to the other litigants who might otherwise have had their cases heard.” The lower Court found that the Appellants did not place sufficient materials before it to warrant it exercising its discretion in favour of the request for an adjournment of the hearing and it thus refused the application for adjournment.
The Courts have held that where a Court refuses to exercise its discretion in favour of an applicant on the ground of insufficient materials, it is a legitimate reason for refusal of exercise of discretion – Williams Vs Mokwe (2005) 14 NWLR (Pt 945) 249, Federal Housing Authority Vs Kalejaiye (2010) 19 NWLR (Pt 1226) 147, Olatubosun Vs Texaco (Nig) Plc (2012) 14 NWLR (Pt 1319) 200, Nigerian Laboratory Corporation Vs Pacific Merchant Bank Ltd (2012) 15 NWLR (Pt 1324) 505.
The law is that where a Court gives legitimate, sufficient and correct reasons for exercise of discretion, and that the exercise is not based on its whims and fancies, it is presumed that it acted judicially and judiciously – Divine Ideas Ltd Vs Umoru (2007) LPELR 9009(CA), Nwaenang Vs Ndarake (2013) LPELR 20720(CA).
To succeed on their complaint in this appeal therefore, the onus is on the Appellants to show that the reasons given by the lower Court for failing to exercise its discretion in favour of their request for adjournment were not appropriate on the peculiar facts and circumstances of this case and that the exercise of discretion by the lower Court was wrongful and requires the interference of this Court – Chijoke Vs Soetan (2006) 10 NWLR (Pt 990) 179, Ikenta Best (Nig) Ltd Vs Attorney General, Rivers State (2008) 6 NWLR (Pt 1084) 612.
Counsel to the Appellants, in his brief of arguments, berated the lower Court for being in too much haste in closing the case of the Appellants and for not encouraging amicable settlement of the matter between the parties, contrary to the disposition of the Courts, and for not commending the enviable steps taken by the Appellants to resolve the matter amicably. Counsel stated that the lower Court wrongly found that there was no settlement between the parties and that the lower Court, very unfortunately, terminated the settlement process despite the tremendous success recorded by the parties thereon. Counsel stated that the lower Court denied the Appellants their right to three adjournments as provided for in the Rules of Court and he accused the lower Court of not treating the Appellants fairly, equitably and justly in striking out their claims for want of diligent prosecution and for not giving them a fair opportunity of presenting their case.
In dealing with these assertions of Counsel to the Appellants, this Court considers it pertinent to reproduce the proceedings of the lower Court relevant to the resolution of this appeal and these are the proceedings of the 10th of May, 2017, 17th of June, 2017 and 6th of July, 2017. As stated earlier, the Appellants effected a change of Counsel and the new Counsel’s motion to amend the statement of claim was heard and granted by the lower Court on the 6th of April, 2017 and the matter was, with consent of both Counsels, adjourned to the 10th of May, 2017 for hearing. On the 10th of May, 2017, the following took place:
“Parties absent
Aliyu Yakubu for the Defendant.
Yakubu: The matter is for hearing.
Registrar: There is a letter from the Plaintiffs’ counsel, that the learned counsel of Plaintiff and the only witness of the Plaintiff missed their flight yesterday, that’s why they are not in Court today.
Yakubu: Learned counsel has always appeared in this matter with a minimum of 2 lawyers. They did not email their flight documents to their office to convince the Honorable Court. It is a 2011 matter. I urge the Court to dismiss the case for want of diligent prosecution.
Court: This case is coming up for the 3rd time before me. On 2/3/17, I.G. Waru Esq. announced appearance for the plaintiffs and informed the Court that he is coming into the matter afresh and taking over from the former counsel. The case was adjourned to 6/4/2017 for hearing. On 6/4/2017 I.G. Waru Esq. moved an application to amend the statement of claim which was granted and the matter was adjourned to today for hearing.
Today, there is a letter from Plaintiffs’ counsel asking for an adjournment on the ground that he and his only witness missed their flight from Lagos. I have observed that this is a 2011 case with a charged history. I have also observed that the letter written by the Plaintiffs’ counsel does not bear the NBA stamp. However, the history of the case before me shows that the Plaintiffs’ counsel has appeared in Court on the last 2 adjournments and I am of the view that it will amount to a grave injustice to dismiss the suit on the ground that neither the Plaintiffs nor counsel is in Court today. I am inclined in the overall interest of justice to give the Plaintiffs a last opportunity to prove their case and this shall be the last adjournment at the instance of the Plaintiffs. Case is hereby adjourned to 7/6/17 for definite hearing. Plaintiffs shall be served fresh hearing notice.” (underlining and bold for emphasis)
On the 7th of June, 2017, the following transpired in the lower Court:
“Defendant represented by Muhammad Dahiru
I.G Waru with M.N. Faruk for the Plaintiffs
Aliyu Yakubu for the Defendant
Waru: The matter is for hearing today. We are not ready to go on. Our only witness, i.e. the 2nd Plaintiff, is billed to have a meeting with the new MD of the Defendant in Abuja with a view of settling the matter out of Court. When I took over the matter we started discussing with the defence counsel to settle and we even put it in writing.
We have made progress. We ask for another date in the spirit of out of Court settlement. The inconvenience is regretted.
Yakubu: I oppose the application. Settlement usually takes place between 2 parties. The Defendant is not aware that the Plaintiff is seeking to meet the MD. The legal adviser called me this morning and he did not inform me that there will be a meeting between the parties. On 22/3/17 we gave them 40% waiver and till date nothing has been paid to settle the amount. I urge the Court to refuse the application and close the Plaintiffs’ case. We are ready to go on with our counterclaim.
Court: The matter is coming up before me for the 4th time. On the last date Plaintiffs’ counsel wrote a letter for adjournment on the ground that he and his witness missed their flight from Lagos and the matter was adjourned to today for definite hearing.
The reason given today for the application for adjournment is that the 2nd Plaintiff is billed to meet the new MD of the Defendant this morning for discussions with a view to settling the matter out of Court. However, the Defendant’s counsel has informed the Court that he is not aware of any such meeting with the Defendant’s MD. Obviously, it is expected that if any such meeting has been scheduled, the Defendant’s counsel should as of necessity be aware. As a policy, the Courts usually encourage out of Court settlement, but such a move must be shown to be genuine and done in good faith. Despite the doubts created by the defence counsel about the genuineness of the move to settle, I am inclined to give the Plaintiffs the benefit of doubt in the spirit of out of Court settlement.
For the records, let me state that the matter is coming up for the 4th time before this Honorable Court and on all 4 dates the matter has consistently been adjourned at the instance of the Plaintiffs. By Plaintiffs’ own showing, discussions are being held today, and I shall adjourn the case for the last time for parties to report settlement or definite hearing, for nothing stops the parties from settling a matter even when hearing has commenced. For the avoidance of doubt, this shall be the last adjournment at the instance of the Plaintiffs. The case is adjourned to 6/7/2017 for report of settlement or definite hearing.” (underlining and bold for emphasis)
The records show that on the 6th of July, 2017, the following took place in Court:
“Defendant represented by Mohammed Baba
Plaintiff absent
I.G. Waru with K.A. Hashim and N.N. Farouk for the Plaintiffs
Aliyu Yakubu for the Defendant
Waru: The matter is for report of settlement and or hearing. We are happy to inform the Court that discussions have reached an advanced stage in this matter. They have waived over N25 Million for my client, they want an advance of N10 Million but we responded and said we will advance the sum of N5 Million. In the circumstances we ask for time to conclude discussions.
Yakubu: Settlement between the parties has failed as the Plaintiffs failed to comply with the condition given to them. They have not paid the N10 Million we gave as a condition. There is no settlement. There is nothing that stops the Court from proceeding with the case and while settlement is ongoing.
Court: I have listened to the submissions of Counsel on both sides. While learned Counsel to the Plaintiffs is insisting that settlement is ongoing in this matter, learned counsel to the Defendant stated that settlement between the parties has failed. Since parties are not ad idem on the issue of settlement, the only reasonable inference that can be drawn by the Court is that there is no settlement in the matter.
On the last date, this Honorable Court adjourned the matter for the last time for report of settlement or definite hearing and that was on the 7th June, 2017. This Court ordered thus: ‘for avoidance of doubt, this shall be the last adjournment at the instance of the Plaintiffs. The case is adjourned to 6/7/2017 for report of settlement or definite hearing.’
Court orders are meant to be obeyed as they are not made for joke. Having held that there is no settlement in the matter, hearing shall commence forthwith.
Waru: I am not ready to go on with the hearing this morning. My reason is that the only witness is not in Court because of the progress we have achieved towards settling the matter evidenced by the various correspondences between the parties. I apply for the matter to be adjourned to enable us call the only witness we have.
Yakubu: I object to the application. Parties are bound by the orders of Court. On 7/6/17 the Court made it clear to parties to come and report settlement or proceed to trial. It was clear to the Plaintiffs that from our letter to them which they failed to comply with, settlement had broken down. They did not respect the order of this Court. What they have done is a complete disobedience of the order of Court to have failed to bring their witness. Parties in disobedience of Court are not entitled to the discretion of the Court. I urge the Court to strike out or dismiss the matter. We have a counterclaim and we are ready to proceed with it.
Court: The reason given by the Plaintiffs’ Counsel for the application for adjournment is that his only witness is not in Court because of the progress achieved towards settling the mater evidenced by the correspondences between the parties. On the last date, the Court made it clear that the matter was adjourned to today for either report of settlement or definite hearing. Settlement is reached when both parties agree on terms and either file such term in Court or at agreement between each other that there is settlement. That is not the case in this matter, and due diligence demands that since there was no such agreement, the Plaintiffs’ witness ought to have been in Court today. The Plaintiffs’ witness has taken a gamble by not being in Court today and I must state that it has not paid out for the Plaintiffs. Since the Plaintiffs are not ready to proceed as their only witness is not in Court and having in mind this Court’s order of 7/6/2017 which the Plaintiff has not complied with, this Court is left with no other option than to make the appropriate order in the circumstances of this case.
I hereby order that the Plaintiffs’ case is struck out for want of diligent prosecution and the case is adjourned to 19/10/2017 for hearing of the Defendant’s counterclaim.” (underlining for emphasis)
This Court has gone this length in reproducing the proceedings of the relevant dates in full so as to put the useful facts in this appeal in proper perspective. A dispassionate reading of the above reproduced proceedings shows that the allegations made by Counsel to the Appellants against the lower Court were untrue and very dishonest. It is not correct that the lower Court was in too much haste and did not encourage the amicable settlement of the matter. The proceedings show that even after adjourning the matter for definite hearing from the 10th of May, 2017 to the 7th of June, 2017, the lower Court, despite not being totally convinced of the sincerity of the new found desire of the Appellants to resolve the matter amicably, granted an adjournment at the instance of the Appellants, against the vehement opposition of the Counsel to the Respondent, to allow the parties to explore settlement and report by the next adjourned date.
It is incorrect that the lower Court wrongly found that there was no settlement between the parties and that it, very unfortunately, terminated the settlement process despite the tremendous success recorded by the parties thereon. It is pure common sense that it takes two parties to settle a matter; one party cannot settle a matter by itself. The common saying is ‘it takes two people to do the tango dance; one person cannot do the tango dance on his own.’ The above reproduced proceedings show that Counsel to the Respondent consistently opposed the request for adjournments made by the Appellants for settlement purposes and he stated clearly on the 6th of July, 2017 that settlement between the parties had broken down as the Appellants failed to comply with the conditions given for the settlement. Counsel to the Appellants did not contest this assertion. It is fool hardy to insist that settlement was still progressing and ongoing in such circumstances.
It is also not correct that the lower Court did not treat the Appellants fairly, equitably and justly in refusing the adjournment and in striking out their claims for want of diligent prosecution and did not give them a fair opportunity of presenting their case. The above reproduced proceedings show that in granting the adjournment from the 7th of June, 2017 to the 6th of July, 2017, the lower Court stated very emphatically thus:
“…I shall adjourn the case for the last time for parties to report settlement or definite hearing, for nothing stops the parties from settling a matter even when hearing has commenced. For the avoidance of doubt, this shall be the last adjournment at the instance of the Plaintiffs. The case is adjourned to 6/7/2017 for report of settlement or definite hearing.”
An understanding of the simple English words used in this Ruling by the lower Court would have made it clear to any reasonable person that once the parties were not able to report final settlement on the adjourned date, the matter would proceed to hearing. It is trite that where a Court fixes a matter for definite hearing, except something extraordinary happens, the hearing of the matter would proceed on the date and none of the parties can claim lack of opportunity to be heard if he is not prepared for hearing on the day. In Ofole Vs Ofole (2016) LPELR 42037(CA), this Court made the point thus:
“In civil proceedings, when an application or any matter is adjourned in the presence of a party and his counsel or either of them to a named date for definite hearing, the absence of the party or his counsel from Court on the date the matter is fixed for definite hearing cannot prevent the Court from proceeding with the hearing of the application or matter if it chooses to. The reason is that the said party and/or his counsel had reasonable notice of the said date for the said definite hearing and had reasonable opportunity to be heard in the matter.”
The law is that the right to fair hearing is not absolute. The concept of fair hearing postulates that it is the duty of a Court to create a conducive environment and atmosphere for a party to enjoy his right to fair hearing, but it does not say that it is part of the duty of the Court to make sure that the party takes advantage of the atmosphere or environment so created to exercise his right to fair hearing. It is not part of the business of a Court to compel a party to exercise his right to fair hearing. Where a party fails, refuses or neglects to take advantage of or utilize the environment created by a Court to exercise his right of fair hearing, he cannot turn around to complain of lack of fair hearing – Independent National Electoral Commission Vs Musa (2003) 3 NWLR (Pt 806) 72, Dantata Vs Mohammed (2012) 8 NWLR (Pt 1302) 366, National Films & Video Censors Board Vs Adegboyega (2012) 10 NWLR (Pt 1307) 45, Ezechukwu Vs Onwuka (2016) LPELR 26055(SC), Eze Vs Federal Republic of Nigeria (2017) LPELR 42097(SC), Darma Vs Eco Bank Plc (2017) LPELR 41663(SC).
The above reproduced proceedings show that the lower Court gave the Appellants every opportunity to present their case, but they failed to utilize the opportunities. Counsel to the Appellants treated the orders of the lower Court setting down the matter for definite hearing on the 7th of June, 2017 and 6th of July, 2017 with absolute contempt and disdain. Not only did the Counsel attend the lower Court on those dates totally unprepared for hearing and with the belief that nothing could happen, he encouraged the second Appellant, the sole witness of the Appellants, to also disrespect and disregard the orders and to embark on frolics of his choice, instead of attending the lower Court for hearing.
Even more rankling is that after exhibiting all these behaviors in the lower Court, the Appellants and their Counsel have the temerity to approach this Court to complain of lack of fair hearing. The doctrine of fair hearing is not a “one way traffic concept” for the benefit of the party who first parrots it. It is not an abstract term available to a party at all times and in all circumstances, even when the party has displayed un-seriousness and nonchalance. It means fairness to all the parties and fairness to the Court. In Okocha Vs Herwa Ltd (2000) 15 NWLR (Pt 690) 249 at 258 G-H, Oguntade, JCA, (as he then was) made the point thus:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
</br<> “It is not fair or just to the other party or parties as well as the Court that a recalcitrant and defaulting party should hold the Court and the other parties to ransom. The business of the Court cannot be dictated by the whims and caprices of any party. Justice must be even handed.”
The point was re-echoed by Tobi, JSC, in Newswatch Communication Ltd Vs Atta (2006) FWLR (Pt 318) 580 at 600-601 thus:
“Counsel, quite a legion, find the fair hearing principle duly entrenched in the Constitution as a pathway to success whenever they are in trouble on the merits of a case before the Court. Some resort to it as a magic wand that cures all ills of the litigation. A good number of Counsel resort to the principle even when it is inapplicable in the case. The constitutional principle of fair hearing is for both parties in the litigation. It is not only for one of the parties. In other words, fair hearing is not a one-way traffic but a two-way traffic in the sense that it must satisfy a dual carriage-way in the context of both the plaintiff and the defendant or both appellant and respondent. The Court must not invoke the principle in favour of one of the parties to the disadvantage of the other party undeservedly. That will not be justice. This will be injustice.”
Again, in Banna Vs Telepower Nigeria Limited (2006) 15 NWLR (Pt 1001) 198, Oguntade, JSC, reiterated that:
“The provision dealing with fair hearing under Section 36 of the 1999 Constitution of Nigeria is for the protection of all parties to a case, the plaintiffs and the defendants alike. It will be oppressive to interpret the provision as conferring protection on just one of the parties to a case.”
What seems obvious from the above proceedings is that the disrespectful attitude of the Appellants and their Counsel to the orders of the lower Court were fueled by a false sense of right and entitlement to adjournments just for the asking. This was buttressed by the nonsensical arguments canvassed by the Counsel to the Appellants in this appeal that the lower Court denied the Appellants their right to three adjournments as provided for in the Rules of Court. Firstly, the allegation is incorrect because the lower Court found in its Ruling of the 7th of June, 2017 that the request for adjournment granted on that day was the fourth one at the instance of the Appellants. The Appellants did not appeal against the finding and it is binding on them and on this Court – Olukoga Vs Fatunde (1996) LPELR 2623(SC), First Bank Plc Vs Ozokwere (2013) LPELR 21897(SC), Anyanwu Vs Ogunewe (2014) 8 NWLR (Pt 1410) 437.
Secondly, and more importantly, the law is that no party has a right to an adjournment. Adjournment is not granted gratis, every adjournment must be earned by the party requesting for it – Olori Motors & Co Ltd Vs Union Bank of Nigeria Plc (1998) 6 NWLR (Pt 554) 493, Uzowulu Vs Akpor (2015) All FWLR (Pt 763) 1954. A Court does not grant adjournment simply because a party asks for it and there is nothing like an automatic grant of a request for adjournment – Solanke Vs Ajibola (1968) SCNLR 92, Anyafulu Vs Agazie (2004) LPELR 5944(CA), The City Waiters Ltd Vs Adio (2015) All FWLR (795) 368. What the Rules of Court, Order 19 Rule 5 of the Federal High Court (Civil Procedure) Rules 2009, the applicable Rules at the time material to this case, provide is “that a party shall not be entitled to more than three adjournments during the course of trial”. This means that the Court shall not grant a party more than three adjournments, and not that the party must be granted three adjournments.
Exercise of discretion must always depend on the facts and particular circumstances of each application – Odusote Vs Odusote supra, Obomhense Vs Erhahon supra, Salu Vs Egeibon supra. It is not subject to the dictates of parties to an action or of their Counsel.
It is trite law that the Court is not at the beck and call of any of the parties to do as they wish and must, should always, be in control of proceedings before it – Fagbule Vs Rodrigues (2002) 7 NWLR (Pt 765) 188, Executive Governor of Osun State Vs Folorunsho (2014) LPELR 23088(CA). In Onnoghen Vs Federal Republic of Nigeria(2019) LPELR 47689(CA), this Court made the point that “a Judge of a Court or tribunal is the master of the proceedings. He is in charge of how and when the matters before him are heard. That is all within his prerogative. No one can remove that from the Court or Tribunal.”
It is trite law that an appellate Court will only interfere with the exercise of judicial discretion by a lower Court if it is shown that there has been a wrongful exercise of discretion such as where the lower Court acted under misconception of law or under misapprehension of fact in that it either gave weight to irrelevant or unproved matters or it omitted to take into account matters that are relevant or where it exercised or failed to exercise the discretion on wrong or inadequate materials and in all other cases where it is in the interest of justice to interfere – Ntukidem Vs Oko (1986) 5 NWLR (Pt 45) 909, Okeke Vs Oruh (1999) 6 NWLR (Pt 606) 175, Eye Vs Federal Republic of Nigeria (2018) LPELR 43599(SC), Elf Petroleum Plc Vs Umah (2018) LPELR 43660(SC), Alioke Vs Oye (2018) LPELR 45153(SC) Attorney General, Federation Vs Kashamu (No 2) (2020) 3 NWLR (Pt 1711) 281.
In Alsthom S. A. Vs Saraki (2000) 14 NWLR (Pt 687) 415, Akintan, JSC, stated that:
“It is settled law that adjournments of cases fixed for hearing are not obtained as a matter of course. They may be granted or refused at the discretion of the Court. The exercise of such discretion, however, is a judicial act which must be premised on well established legal principles. It is therefore an act against which an aggrieved party may lodge an appeal. To succeed in such an appeal, the appellant must satisfy the appellate Court that the trial Court acted on an entirely wrong principle or failed to take all the circumstances of the case into consideration and that it is manifest that the order would work injustice to the appellant.”
The lower Court cannot be faulted in any way for its refusal to grant the adjournment sought by the Appellants. And when the Appellants refused to proceed with the hearing of the matter after the request for adjournment was refused, the lower Court made the proper order of striking out their case –The Nigerian Navy Vs Labinjo (2012) 17 NWLR (Pt 1328) 56, Attiogbey Vs UBA Plc (2013) LPELR 20326(CA). In Banna Vs Telepower (Nig) Ltd (2006) 15 NWLR (Pt 1001) 198, Oguntade, JSC, in his lead judgment made the point at page 216 E-G thus:
“It is needful that it be stressed that a plaintiff who is not ready to pursue his suit with diligence upon which the Court must insist has no business bringing such case to Court. Counsel and parties alike must bear in mind that the time of the Court is valuable and must be apportioned between the different cases requiring attention. It is the duty of the Court to proceed with the hearing of the cases before it expeditiously. The Courts in the land must exact from parties and counsel as much diligence in the prosecution of their cases as would enable the Court consign the incidence of congestion in our Courts to history.”
Elucidating further on the above statement, Tobi, JSC, in his contributory judgment in the same case stated at page 220 E-G:
“A plaintiff has not only a right to file an action in Court to redress a wrong done him by a defendant; he also has a duty to prosecute the matter to conclusion within the rules of Court. Of course, the duty is not mandatory, compulsory or sacrosanct, as he can decide not to prosecute. A plaintiff who files an action in Court and exhibits some indolence or non-challance has himself to blame. After all, he brought the defendant to Court and if he decides not to pursue the case diligently, the Court has no option that to either strike out or dismiss the matter, depending on the enabling rules of Court.”
The lower Court must be commended for the very calm and mature manner it handled the shenanigans of the Appellants and of their Counsel.
Counsel to the Appellants filed this appeal with the apparent aim of misleading this Court and he concocted untruths and made false allegations, not borne out by the records of proceedings, against the lower Court. This is not the right and honorable way to practice the law. It is not in question that the Appellants had a right of appeal against the Ruling of the lower Court. But, it is essential for Counsel to understand that it is not a right that should be utilized to pursue the selfish interest of a client, as in the instant case. A practicing lawyer or a barrister will only qualify to be called “ethical” in his practice of law, the only way law should be practiced, when he shows a clear understanding of the difference between what you have a right to do and what is right to do. All the stakeholders and partakers in the administration of law and the legal system must understand that if we desire respect for the law, we must first make the law respectable; and not a spectacle. We must conduct our activities in a manner that edifies and brings honor, respect and belief to the justice system.
It is pertinent that this Court reminds Counsel to the Appellants of the onerous responsibility that their privilege of being lawyers, and to address a Court, carries. In Rondel Vs Worsley (1967) 1 QB 443, Lord Denning, MR, explained the role of a Counsel thus:
“As an advocate, he is a minister of justice equally with the Judge. He has a monopoly of audience in the higher Courts. No one save he can address the Judge, unless it be a litigant in person. This carries with it a corresponding responsibility. A barrister cannot pick and choose his clients. He is bound to accept a brief for any man who comes before the Courts…. He must accept the brief and do all he honorably can on behalf of his client. I say ‘all he honorably can’ because his duty is not only to his client. He has a duty to the Court which is paramount. It is a mistake to suppose that he is the mouthpiece of his client to say what he wants; of his tool to do what he directs. He is none of these things. He owes allegiance to a higher cause. It is the cause of truth and justice. He must not consciously mis-state the facts. He must not knowingly conceal the truth… He must produce all the relevant authorities, even those that are against him. He must disregard the most specific instructions of his client, if they conflict with his duty to the Court. The code which requires a barrister to do all this is not a code of law. It is a code of honour. If he breaks it, he is offending against the rules of the profession and is subject to its discipline ….”
The postulations of Counsel to the Appellants in this appeal do not show any allegiance to the higher cause of truth and justice.
The appeal is downright frivolous and has no iota of merit. It is hereby dismissed. The decision contained in the Ruling of the Federal High Court sitting in Kano delivered in Suit No FHC/KN/CS/69/2011 by Honorable Justice J. K. Dagat on the 6th of July, 2017 is affirmed. The Respondent is awarded the cost of the appeal assessed at N100,000.00. These shall be the orders of the Court.
HUSSEIN MUKHTAR, J.C.A.: I have had the advantage of previewing the judgment of my learned brother Habeeb Adewale Olumuyiwa Abiru, JCA just delivered. I totally agree with reasons reasons therein and the conclusion that the appeal is audaciously bereft of merit.
For same reasons, which I adopt, the appeal has to be and is hereby dismissed. I subscribe to all other orders made in the judgment.
ABUBAKAR MUAZU LAMIDO, J.C.A.: I have had the privilege of reading in draft the judgment delivered by my learned brother HABEEB ADEWALE OLUMUYIWA ABIRU, JCA, I am in complete agreement that the appeal is unmeritorious and it ought to be dismissed as lacking in merit. I too dismiss the appeal and abide by all other consequential orders contained in the leading judgment.
Appearances:
I. G. Waru, with him, M.U. Waru, R. M. Ahmad and G. B. Harris For Appellant(s)
Aliyu Yakubu For Respondent(s)
