VIOLET N. THAVE V. THE DIRECTOR GENERAL/PERMANENT SECRETARY BUREAU OF LAND & SURVEYS MAKURDI BENUE STATE & ORS.
(2011)LCN/4754(CA)
In The Court of Appeal of Nigeria
On Thursday, the 23rd day of June, 2011
CA/J/176/2005
RATIO
GROUND OF APPEAL: WHETHER IT IS EVERY GROUND OF APPEAL THAT RAISES AN ISSUE
In an appeal, it is not every ground of appeal that raises an issue for determination. Sometimes one ground may raise an issue but more often than not, it takes a combination of grounds to raise an issue. The test is whether that ground or combination of the grounds as framed by the appellant, if decided in his favour, will result in a verdict in his favour. See Ibori V. Agbi (2004) 5 NWLR (Pt. 868) 78. PER UCHECHUKWU ONYEMENAM, J.C.A.
ISSUE FOR DETERMINATION: EFFECT OF AN ISSUE THAT IS NOT RELATED TO ANY OF THE GROUNDS FILED IS IRRELEVANT AND GOES TO NO ISSUE
Issues for determination formulated in a brief of argument must be distilled from the grounds of appeal filed, Any issue that is not related to any of the grounds filed is irrelevant and goes to no issue. Consequently any argument in the brief in support of such issue ought to and must be discountenanced by the court. See Amadi V. NNPC (2000) 6 SC (Pt.1) 56 at 72; Shitta-Bey V, A.-G., Federation (1998) 10 NWLR (Pt. 570) 392; It follows that any issue formulated by the respondent for determination in an appeal must relate to the grounds of appeal filed by the appellant. PER UCHECHUKWU ONYEMENAM, J.C.A.
PROLIFERATION OF ISSUES: WHETHER ISSUES FORMULATED FOR DETERMINATION FORMULATED IN ANY GIVEN APPEAL CAN BE MORE THAN THE GROUNDS OF APPEAL
Although one issue can be distilled from many grounds of appeal but a ground of appeal can only raise one issue. It follows therefore that issues for determination formulated in any given appeal cannot be more than the grounds of appeal. See Kalu V. Ohuabunwa (2004) 7 NWLR (Pt. 871) 1. PER UCHECHUKWU ONYEMENAM, J.C.A.
ISSUES FOR DETERMINATION: WHAT IS REQUIRED OF A RESPONDENT WHEN FORMULATING ISSUES FOR DETERMINATION
A respondent in an appeal is only allowed to either adopt the issues formulated by the appellant flowing from the grounds of appeal or to formulate issues outside those of the appellant’s issues but which stem from the grounds of appeal. See Nwosu V. Nwosu (2000) 4 NWLR (Pt, 653) 351; Akunyili V. Ejidike (1996) 5 NWLR (Pt. 449) 381; S.P.D.C. (Nig,) V. Abba (2005) All FWLR (Pt, 257) 1533. PER UCHECHUKWU ONYEMENAM, J.C.A.
DUTY OF COURT: WHETHER AN APPEAL COURT HAS A DUTY TO CONSIDER ALL THE ISSUES FOR DETERMINATION RAISED BEFORE IT
An appeal court is enjoined to consider all issues for determination raised before it except where it is of the view that a consideration of one issue is enough to dispose of the appeal. See Onifade v. Olayiwola (1990) 7 NWLR (Pt.161) 130 and Tunbi v. Opawole (2000) 1 SC 8. PER UCHECHUKWU ONYEMENAM, J.C.A.
INTERFERENCE WITH THE DISCRETION OF A LOWER COURT: CIRCUMSTANCES WHERE AN APPELLATE COURT WILL INTERFERE A TRIAL COURT’S DISCRETION
An appeal court will not ordinarily interfere with the exercise of a trial court’s discretion except it is shown that the trial Judge exercised his discretion upon a wrong principle or mistake of law or under a misapprehension of facts or took into account irrelevant extraneous matters or excluded relevant matters, thereby giving rise to injustice. See Solanke V. Ajibola (1968) ALL NLR 47 at 53; Opekanmi v. N.E.P.A. (2001) FWLR (Pt. 34) 404 @ 413. PER UCHECHUKWU ONYEMENAM, J.C.A.
JUSTICES
KUDIRAT M.O. KEKERE-EKUN Justice of The Court of Appeal of Nigeria
ALI ABUBAKAR BABANDI GUMEL Justice of The Court of Appeal of Nigeria
UCHECHUKWU ONYEMENAM Justice of The Court of Appeal of Nigeria
Between
VIOLET N. THAVE Appellant(s)
AND
1. THE DIRECTOR GENERAL/PERMANENT SECRETARY BUREAU OF LAND & SURVEYS MAKURDI BENUE STATE
2. THE ATTORNEY-GENERAL BENUE STATE
3. CHIEF BARNABAS A.I. GEMADE Respondent(s)
UCHECHUKWU ONYEMENAM, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of the Benue State High Court sitting at Makurdi by Honourable Justice Ejembi Eko in suit No. MHC/89/99, delivered on the 13th day of October, 2000, wherein he dismissed appellant’s suit under the provisions of Order 37 Rule 8 of the Benue State High Court (Civil Procedure) Rules, 1988 for failure of appellant to appear to open her case. Dissatisfied with the ruling of the Court, the appellant filed a Notice of Appeal on the 27th day of September, 2007, containing 4 Grounds of Appeal. With leave of court the appellant on 27th day of September, 2007, filed 3 additional Grounds of Appeal, bringing the total Grounds of Appeal filed to 7. The appellant by a writ of Summons taken out in June, 1999, claimed the following reliefs against the respondents jointly and severally as follows:
“a. A declaration that the plaintiff is entitled to have her C of O processed to completion, as there is no basis for 3rd defendant’s protest against the allocation of plot No. BNB 3505 to her.
b. An order of specific performance against the 1st and 2nd defendants to wit; an order directing the 1st defendant to accept forthwith the additional N10,000.00 demanded from the plaintiff and to process to completion the preparation of the plaintiff’s C of O over the plot of land allocated to her.
c. An order restraining the 1st defendant, his servants’ or agents from further processing of the application of the 3rd defendant for the plot of land already allocated to the plaintiff and for which plaintiff had paid N5,000.00 for the preparation of the C of O thereof, as such processing is illegal, null and void.
d. An order of perpetual injunction restraining the 3rd defendant, his agents, servants or whomsoever on his behalf from entering the said plot of land for any reason whatsoever.
e. Special and general damages against the defendants for breach of contract and for interference with a valid contract limited to the sum of N5,000,000.00.”
In summary the appellant’s case was that sometime in early 1994 she observed a vacant piece of land opposite her rented residence at old GRA Makurdi, and upon confirmation from the Bureau of Land and Survey that it was vacant she applied on the 26th day of April, 1994 for a Right of Occupancy over the said piece of land. Her application was being processed by the Bureau as file No. BNB 3505. The Bureau by a letter dated 11/8/1994 conveyed its approval for the issuance of a Right of Occupancy and requested the appellant to submit a site plan of the said land. The appellant duly complied, 1st and 2nd Respondents proceeded with the processing and charting of the title documents in appellant’s name to the level of final survey in April 1995. The issuance of title documents to the appellant was however stayed when 3rd respondent by a petition dated 5/5/1995 protested the allocation of the plot to her, demanding that same be allocated and processed in his name.
On the 27th day of September, 2000, the Court fixed the matter for hearing to the 13/10/2000 in the absence of both the appellant and her counsel and ordered that Hearing Notice should issue on the appellant through her counsel. On 13/10/2000 when the matter came up, appellant was absent and her absence was explained in a letter from her counsel informing the Court that Plaintiff, a Staff of Bank of the North Ltd, was away on a course at Kano, and was equally not aware that the matter was coming up that morning. Counsel himself sought for an adjournment of the matter on health grounds. None of the learned counsel for the respondents opposed the application for adjournment. However the learned trial Judge after hearing the respondents’ counsel ruled that the application for adjournment was unmeritorious and refused it. Having refused the application the trial court stated that since appellant was unavailable to open her case, the proper order in the circumstances was one under Order 37 Rule 8 of the Benue State High Court (Civil Procedure) Rules, 1988. The court then proceeded to enter an order dismissing the appellant’s suit before it. It is against the ruling and dismissal order that the appellant has brought this appeal.
Briefs were duly filed and exchanged. The appellant’s brief dated and filed 10/6/2010 pursuant to the order of this court was settled by Mrs. F.M. Ebofuame Nezan. The appellant’s brief of parturient raised the following 4 issues for determination;
(1)”whether it was competent for the Lower Court to have suo motu invoked the provisions of order 37 Rule 8 of the 1988 Benue state High court Civil Procedure Rules Edict 1988 to dismiss appellant’s suit without affording appellant the opportunity to be heard on it, and if not, the legal consequences of its so doing.
(2) Whether having regard to the circumstances of the case, it was a proper case for the invocation Order 37 Rule 8 of the 1988 Benue State High court Civil Procedure rules Edict?
(3) Whether the provisions of Order 37 Rule 8 empowering a Court to enter an order dismissing a suit without affording a claimant the opportunity to set forth her case is unconstitutional, being inconsistent with the provisions of the constitution guaranteeing for hearing?
(4) Whether the Lower Court was right to have refused appellant’s application for adjournment on the ground that it was unmeritorious, and proceeded thereafter to summarily dismiss appellant’s case under order 37 Rule 8 for non appearance of plaintiff?”
The 1st and 2nd respondents’ brief dated and filed on 2/7/2010 was settled by Alubo Innocent Obaah Esq. In the said brief of argument 9 issues were formulated for determination. I shall reproduce and consider the 9 issues later in this judgment.
The 3rd respondent’s brief dated 20/9/10 and filed 12/10/2010 but deemed properly filed on 14/3/11 by the order of this court was prepared by S.A. Nguekwagh Esq. The 3rd respondent adopted the 4 issues framed by the appellant’
On 10/5/2011 when the appeal was heard, Mrs. F.M.E – Nezan of counsel adopted and relied on the appellant’s brief dated and filed 10/6/2010; reply brief to 1st and 2nd respondents’ brief dated 27/9/10 and filed 28/9/10 and reply brief to 3rd respondent’s brief dated and filed 28/3/11 as appellant’s argument in the appeal. She urged the court to allow the appeal, to set aside the order of the lower court dismissing the suit and to order that the matter be remitted back to the Lower Court for trial, Mr. Alubo for the 1st and 2nd respondents adopted and relied on their brief dated and filed 2/7/10 as their brief of argument. He urged the court to dismiss the appeal. Mr. Nguekwagh of counsel adopted and relied on 3rd respondent’s brief dated 20/9/10 and filed 12/10/10. He urged the Court to dismiss the appeal as well.
I note at this point, the submission of Mrs. Nezan learned counsel for the appellant in her reply brief that issues nos. 1, 3, 5, 6, 7 and 8 as formulated by the 1st and 2nd respondents are incompetent the same not arising from any of the appellant’s grounds of appeal. She cited the cases of Sha V. Kwa (2000) FWLR (Pt. 11) 1798 and Shittu V. Fashawe (2005) ALL FWLR (Pt. 278) 1017 at 1029 to urge the court to strike out the said issues. In an appeal, it is not every ground of appeal that raises an issue for determination. Sometimes one ground may raise an issue but more often than not, it takes a combination of grounds to raise an issue. The test is whether that ground or combination of the grounds as framed by the appellant, if decided in his favour, will result in a verdict in his favour. See Ibori V. Agbi (2004) 5 NWLR (Pt. 868) 78. Issues for determination formulated in a brief of argument must be distilled from the grounds of appeal filed, Any issue that is not related to any of the grounds filed is irrelevant and goes to no issue. Consequently any argument in the brief in support of such issue ought to and must be discountenanced by the court. See Amadi V. NNPC (2000) 6 SC (Pt.1) 56 at 72; Shitta-Bey V, A.-G., Federation (1998) 10 NWLR (Pt. 570) 392; It follows that any issue formulated by the respondent for determination in an appeal must relate to the grounds of appeal filed by the appellant. However a respondent can validly raise an issue not related to the appellant’s grounds of appeal if he has either filed a cross appeal or a respondent’s notice. See Momodu V. Momoh (1991) 1 NWLR (Pt. 169) 608; Ossai V. Wakwah (2005) 4 NWLR (Pt. 969) 208.
In the present case the appellant filed 7 grounds of appeal and formulated 4 issues for determination. The 1st and 2nd respondents formulated 9 issues even though they did not file a cross appeal or respondent’s notice as required by the rules of this court. Although one issue can be distilled from many grounds of appeal but a ground of appeal can only raise one issue. It follows therefore that issues for determination formulated in any given appeal cannot be more than the grounds of appeal. See Kalu V. Ohuabunwa (2004) 7 NWLR (Pt. 871) 1. The 9 issues distilled by the 1st and 2nd respondents glaringly constitute a case of proliferation of issues, See Omega Bank Nig. Ltd V. O.B.C, Ltd (2005) ALL FWLR (Pt 249) 1964. A respondent in an appeal is only allowed to either adopt the issues formulated by the appellant flowing from the grounds of appeal or to formulate issues outside those of the appellant’s issues but which stem from the grounds of appeal. See Nwosu V. Nwosu (2000) 4 NWLR (Pt, 653) 351; Akunyili V. Ejidike (1996) 5 NWLR (Pt. 449) 381; S.P.D.C. (Nig,) V. Abba (2005) All FWLR (Pt, 257) 1533. I have carefully considered issues nos. 1, 3, 5, 6, 7 and 8 of the 1st and 2nd respondents, I am of the opinion that they do not stem from the grounds of appeal, The said issues are therefore incompetent and are accordingly struck out.
I shall examine issue no. 9 of the 1st and 2nd respondent’s because it seems to challenge the competence of this appeal. The issue is framed thus;
“Whether the appeal is competent and should be allowed”.
Learned counsel’s submissions on issue no. 9 are predicated on the substantive suit. It is worthy of note that there was no trial of the appellant’s claim on its merits at the lower court. The legal arguments on this issue portray as aptly put by Mrs. Nezan a misconception of the competence and merit of the appeal by Mr. Afubo of counsel. Mr. Alubo’s contentions on this issue as brilliant as they stand are futile in this appeal which the principal complaint is that the appellant was shut out from ventilating her grievances. Again, issue no, 9 is not distilled from the grounds of appeal and is therefore struck out.
Having struck out issues Nos. 1, 3, 5, 6, 7, 8 and 9 of the 1st and 2nd respondents’ issues, the issues left therein are issues 2 and 4 which are;
(2) “Whether the breach of audi alteram partem rule was properly invoked by the Appellant and a party who deliberately faired to pursue his case can complain of lack of fair hearing.
(4) Whether the discretion exercised by the learned trial Judge in dismissing the Appellant’s case was proper in law”.
Issues for determination in an appeal are the combination of facts and law arising from the grounds of appeal which, when resolved one way or the other, determine the fate of the appeal. An appeal court is enjoined to consider all issues for determination raised before it except where it is of the view that a consideration of one issue is enough to dispose of the appeal. See Onifade v. Olayiwola (1990) 7 NWLR (Pt.161) 130 and Tunbi v. Opawole (2000) 1 SC 8. Having painstakingly considered the 4 issues distilled by the appellant’s counsel from the grounds of appeal which issues were adopted by the 3rd respondent’s counsel; the 2 issues left of the 1st and 2nd respondents’ issues; it is my humble view that the issues can all be summed up in one issue which will sufficiently determine the fate of this appeal. Accordingly this appeal shall be determined on the sole issue;
“Whether the trial Judge by dismissing Suit No. MHC/89/99 under order 37 Rule 8 of the Benue State High Court (Civil Procedure) Rule, 1988 after refusing an application for an adjournment breached the appellant’s constitutional right to fair hearing,”
The learned counsel for the appellant submitted that in the circumstances that the court was informed that the appellant was unaware of the date the matter came up and none of the respondents initiated the dismissal of the suit under Order 37 Rule 8 of the Benue State High Court (Civil Procedure) Rules, 1988, it was not competent for the court to have suo motu invoked the provisions of the Order especially in view of the fact that the order being one of dismissal radically shut out appellant’s opportunity to present her case. Learned counsel also submitted that the procedure adopted by the learned trial Judge in which he did not hear the appellant was contrary to the provisions of Section 36 of the Constitution of the Federal Republic of Nigeria, 1999, which guarantees appellant’s Fundamental Right to Fair Hearing. In furtherance/ learned counsel submitted that this failure by the lower court to hear the appellant or her counsel before it proceeded to dismiss her case is a clear violation of her constitutionally guaranteed right to fair hearing. She relied on: I.I.G. Ltd V, Alao (1990) 3 NWLR (Pt. 141) 773 at 780: N.B.C.I. V. M.G.I. Ltd (1992) 2 NWLR (Pt. 221) 71 AT 85, Ugo V. Obiekwe (1989) 1 NWLR (Pt. 99) 566 AT 582; Ejezie V. Anuwu (2008) ALL FWLR (Pt. 422) 1005 at 1049; Ceekay Traders Ltd V. Gen. Motors Co. Ltd (1992) 2 NWLR (Pt.222) 132 at 148.
It was learned counsel’s submission that by invoking the radical provisions of Order 37 Rule 8, the learned trial Judge appeared to have lost sight of its primary duty to do justice to the parties by allowing them the opportunity to ventilate their grievances before it. She contended that the duty of a court to do justice to the parties before it is a fundamental one in aid of which the rules of procedure are made. Learned counsel added that this being the case, such rules should be seen as handmaids to the courts in the fulfillment of their fundamental objective of dispensing justice with ease and dispatch. She referred to: UTC V. Pamotei (2002) FWLR (Pt. 129) 1557 at 1625. Learned counsel in her submission argued that the rule of court that ceases to be a helpful handmaid to the courts in the performance of their fundamental objective of dispensing justice to the parties by allowing a determination of their cases on the merits, and begins to look more like a tyrannical and uncompromising master, whose operation puts it on a collision course with this fundamental objective, loses the very essence of its being and deserves to lose its place in the rule book, She cited: Nishizawa Ltd V. Jethwani (1984) ANLR 470 at 497.
Mrs. Nezan for the appellant again submitted that although it is well settled that the question of the grant of an adjournment is a matter within the discretion of the court, the guiding principle is that the discretion must at all times be exercised judicially and judiciously. Learned counsel added that although an appeal court ought to be slow to interfere with the exercise of the judicial discretion by a trial court on applications such as the grant or refusal of an adjournment, if it is satisfactorily shown that there has been a wrongful exercise of the discretion such as where the trial court took into consideration irrelevant facts while disregarding material facts, or where the result of the order made was to defeat the rights of the parties altogether, resulting in an injustice to one of the parties, the appeal court is empowered and indeed duty bound to interfere in such wrongful exercise of discretion in order to secure the interest of justice. Learned counsel relied on: Solanke V. Ajibola (1968) ALL NLR 47 at 53 – 54. Learned counsel urged the court to hold that the application for adjournment was meritorious and that the courts’ ruling to the contrary resulted from its consideration of irrelevant matters, In conclusion counsel urged the court to allow the appeal.
In reply learned counsel for the respondents relied heavily on facts not borne out of the record: facts that go to the merits of the appellant’s case, facts arising from proceedings of the lower court after 13/10/2000 when the ruling appealed against was made; and more importantly facts not borne out of the appellant’s grounds of appeal. Consequently I shall discountenance any argument or submission of learned counsel for the respondents that is guilty of this fallacy in my summary of their briefs of argument, See Ibator V. Barakuro (2007) 9 NWLR (Pt. 1040) 475.
In the light of the above the relevant submissions of learned counsel for the 1st and 2nd respondents are as summarized hereunder. Mr. Alubo for the 1st and 2nd respondents submitted that a party who by deliberate decision fails to avail himself the opportunity of a hearing cannot complain of a breach of fair hearing. He argued that the appellant has a duty to attend court and if she becomes indolent to do so as in this case she shall not complain of breach of fair hearing. Learned counsel referred to: Muhammed v. Kpelai (2001) FWLR (Pt.69) 1404 at 1408; Ayorinde v. Fayoyin (2001) FWLR (Pt.75) 483 @ 490; Yonwuren v. Modern Signs Nigeria Ltd. (1985) 1 NWLR (Pt.2) 244; Williams v. Hope Rising Voluntary Fund Society (1982) 1 – 2 SC 145; Doherty v. Doherty (1964) NMLR 144 at 145; Mohammed v. Hussein (1998) 14 NWLR (Pt.584) 108 @ 130.
It was learned counsel’s further submission that the appellant wrongly invoked the principle of audi alteram partem since the principle is not a massive shield for a litigant from the consequences of litigation at his whims and caprices. He contended that a litigant must show that he was deliberately excluded from proceedings before he can successfully invoke the principle of audi alteram Partem.
In addition learned counsel submitted that the lower court exercised its discretion judicially and judiciously, he therefore urged the court not to interfere with the learned trial Judge’s discretion, For when an appeal court can interfere with the discretion of the lower court, he referred to: Opekanmi V. N.E.P.A. (2001) FWLR (Pt. 34) 404 at 413 Saraki V. Kotoye (1990) 4 NWLR (Pt, 143) 144. He further contended that the authorities of UTC V. Pamotei (2002) FWLR (Pt.129) 1625; University of Ilorin V. Oyalana (2001) FWLR (Pt. 83) 2193; cited by the learned counsel for the appellant are not apposite to this case.
It was also learned counsel’s submission that the discretion exercised by the trial court is not contrary to the provisions of section 36(1) of the 1999 constitution. He relied on the following cases: Yamusa v. Aromeh (2001) FWLR (Pt.74) 328; Ayusi v. Akanji (1995) 7 SCNJ 254; Oholo v. Uzoka (1978) 4 SC. 77. Mr. Alubo submitted that the learned trial Judge was justified in applying order 37 Rule 8 of the High court Rules as the court is duty bound to adhere to the Rules of court. He referred to Orjiekwe v. Orjiekwe (2001) FWLR (Pt.38) 1181 at 1183.
Learned counsel finally urged the court to hold that the dismissal order was a proper exercise of discretion in law and to dismiss the appeal.
Mr. Nguekwagh for the 3rd respondent’s submissions are of similar nature with that of Mr. Alubo for the 1st and 2nd respondents. I shall not repeat Mr. Nguekwagh’s submissions where they are sufficiently identical with that of Mr. Alubo as that will not add value to this appeal. It was also Mr8 Nguekwagh’s submission that Order 37 Rule 8 of the Benue State High Court (Civil Procedure) Rules, 1988, does not violate the provisions of the constitution. He submitted that the lower court properly exercised its discretion under Order 37 Rule 8 and did not Suo Motu invoke the order. He contended that appellant’s counsel wrote a letter which was considered by the lower court; the court also took into consideration the submissions of learned counsel for the respondents; the totality of the conduct of the appellant in the case before arriving at a decision. He placed reliance on Opekanmi V. NEPA (2001) FWLR (Pt. 34) 404 at 413.
Learned counsel argued that the appellant who was availed an opportunity to present her case failed to do so and cannot be heard to complain of lack of fair hearing. He relied on the following cases: Ayorinde V. Fayoyin (2001) FWLR (Pt. 875) 483 AT 490; Yonwuen V. Modern Signs Nig. Ltd (1985) 1 NWLR (Pt. 1) 244, Muhammed v. Kpelai (2001) FWLR (Pt. 69) 1404 at 1408; Mohammed V. Hassein (1998) 14 NWLR (Pt. 584) 108 AT 130.
It was the 3rd respondent’s submission that the appellant’s counsel incompetently raised the principle of audi alteram parterm and Section 36 of the 1999 constitution in asserting absence of fair hearing. Learned counsel contended that fair hearing is not a one way traffic as it applies to both sides to a case and that a party must exhibit that he was not afforded opportunity to be heard before he can successfully invoke the principle of fair hearing. Learned counsel submitted that the discretion exercised by the lower court did not infract section 36(1) of the constitution. He referred to Yomusa v. Aromeh (2001) FWLR (Pt. 74) 328 at 335. In conclusion counsel urged the court to dismiss the appeal and affirm the decision of the lower court dismissing appellant’s suit. Both the ruling refusing the grant of an application for adjournment and the order dismissing Suit No. MHC/89/99 fall under the discretionary powers of the trial Judge. A judicious and judicial discretion is that power of a Judge directed by sound judgment in determining the right of a litigant where such right is not absolute. It is the liberty of a Judge to decide and act in accordance with that which is fair and equitable under the peculiar circumstances of the given case guided by the spirit of the law. An appeal court will not ordinarily interfere with the exercise of a trial court’s discretion except it is shown that the trial Judge exercised his discretion upon a wrong principle or mistake of law or under a misapprehension of facts or took into account irrelevant extraneous matters or excluded relevant matters, thereby giving rise to injustice. See Solanke V. Ajibola (1968) ALL NLR 47 at 53; Opekanmi v. N.E.P.A. (2001) FWLR (Pt. 34) 404 @ 413.
The facts that led to the exercise of the trial court’s discretion is as seen at pages 44 to 46 lines 1 – 4 of the record. In the case under consideration it was clear from the letter written by the appellant’s counsel that the appellant was not aware of the date of 13/10/2000 and was also away to Kano on a course. At page 44 lines 22 – 27 of the record, the clerk of court read out appellant’s counsel’s letter as follows:-
“Plaintiff’s counsel, D.V. Zuanah has written for an adjournment stating that he has an appointment with St. Vincent Hospital Aliade for treatment. He writes also that plaintiff is a staff of Bank of the North and is on course at Kano, and that she is not aware of today”‘
In reaction to this application counsel for the respondents responded as herein under reproduced:-
“Mrs. Amile: The case was on 27.9.2000 adjd at the instance of the plaintiff. We hope this will be the last adjournment. The nature of treatment is not stated. No medical certificate is exhibited.
Iorun: From the circumstances of this case it does appear that the plaintiff is not keen to prosecute this case. She has never appeared in the case.
Counsel has not stated the nature of ailment that he is on appointment with a doctor, I will not doubt it, Mr, Zuanah was not here on 27.9.2000.”
The date of 27:9:2000 was the date immediately after the strike action of the Benue State Judiciary staff. At page 44 lines 5 – 14, the record of the lower court reads:-
“N. I. Iorun for 3rd Defendant says: on 23.6.2000 we took 14.7.2000 date which fell within the strike period. I came to take today’s date later. I do not know if other counsel did as i did.
Mrs. Amile: Mr. Alubo was the counsel handling the matter, He conveyed the date to me, I do not know how he got the date or if the plaintiff’s counsel is aware of this date, Court: adjd to 13.10.2000 for hearing, Hearing notice to issue on plaintiff through her counsel,
Sgd, E. Eko
Judge.
27.10.2000”
Undesirable as it is that the appellant’s counsel who should have been zealous to have the matter heard was the one who did not make effort to get the 27:9:2000 date, the fact before the lower court still remains that the matter was not adjourned on said date at his instance. The court also appeared to have conceded the fact that the counsel for the appellant through whom the Hearing Notice was served on the plaintiff, probably did not convey the date to the plaintiff when at page 45 lines 20 -23 he observed thus in his ruling:-
“The letter in a fortunate states (sic) that the plaintiff herself, a staff of Bank of the North, is on course at Kano and is not aware of today’s date, The counsel is saying may be that he did not convey the date to her. How he got to know that plaintiff is on course is lazy (sic)
Adjournments are matters for exercise in discretion. The plaintiff has not come with any satisfactory reason to warrant my discretion in her favour. As I am not satisfied that the adjournment is meritorious i hereby refuse it.”
It is worthy of note that from the facts as reproduced above none of the respondent’s counsel opposed the application for adjournment. While 1st and 2nd respondents’ counsel conceded to the application by saying she hoped that will be the last adjournment, the 3rd respondent’s counsel in keeping with the hallowed tradition and etiquette at the bar regarding the word of a counsel from the bar as being the truth, stated in very clear terms that he will not doubt that counsel had an appointment with the doctor. The learned trial Judge did not consider this conciliatory stance of the respondent’s counsel but rather focused on the immaterial facts that neither the urgency of the appointment nor the nature of the illness of counsel could be ascertained from the letter for an adjournment, It is apparent from the ruling of the lower court on this issue that the learned trial Judge did not believe the appellant’s counsel. To maintain the integrity of the bar which is also the Judges’ root, it is my humble view that Judges should strive not to question a counsel’s word once spoken from the bar unless there is good reason to do so. This is our professional convention and etiquette which is the pride of our profession in terms of its nobility, respectability, integrity and honour. Very instructive on this note are the words of Ogundare JCA (as he then was) in Princewill V. Usman (1990) 5 NWLR (Pt. 150) 274 @ 286 paras E- F, where he said;
“It is therefore obvious that once a court sees that the application for adjournment is on grounds of ill health of counsel…..The court should take the counsel’s word from the bar as having the force of an oath and grant the adjournment in the interest of fair hearing guaranteed by S.33 of the 1979 constitution”‘
Conclusively on this, I refer to the words of His Lordship Nnamani JSC in University of Lagos State v. Aigoro (1985) 1 NWLR (Pt.10) 143 at 152 Para C. to wit:
“As to the alleged ill health of Mr. Cole it seems to me out of the usual practice to demand a medical certificate after Mr. Martins had from the bar informed the court that his learned senior was indisposed”‘
In the light of the above, the learned trial Judge was wrong to have refused the application for adjournment when Mr. Zuanah’s letter for an adjournment was predicated on grounds of ill health. It is also for the same reason that I am of the opinion that the trial court was wrong when he doubted the fact that the appellant had travelled to Kano on a course more so when there was no contrary information. Judges are enjoined to give credibility to the words of counsel from the bar not for the sake of the counsel but for the sake of our noble profession. There is no gainsaying that some counsels have greatly abused this honour that the courts magnanimously accord them, all the same we cannot sacrifice the dignity associated with the profession for few bad eggs.
In the exercise of its discretionary power to grant an application for adjournment, courts are required to balance the need for speedy trial with the all important need for fair hearing by ensuring that matters are determined on its merits. See Ceekay Traders Ltd. v. Gen. Motors Ltd. (1992) 2 NWLR (Pt.222) 132 Per Olatawura JSC @ 162 Paras. C – D; G – H;
“I quite appreciate that it is frustrating for a trial judge to be faced with situations where parties ask for adjournment day-in day out, but the question is: what is the justice of the case? ………we must balance the need not to delay justice with an important requisite in the administration of justice – non denial of justice by not refusing adjournment where compensation by way of costs will be adequate and just. Delay of justice is bad, but denial of justice is worse and outrageous, The denial inflicts pain, grief, suffering and untold hardship on those who rely on impartial administration of justice. It is for this reason that when a case is not fought and heard on merits, the order to be made must be one that does not shut out a party permanently from obtaining justice. It must be appreciated that no court will grant frivolous applications for adjournment. Applications for adjournment will be considered on their merits, the overriding consideration is the interest of justice. In such a situation the nature of the claim should be one of the considerations to be considered in the exercise of the discretion. In other words the court should consider the effect of the order made……”
The mere fact that the trial judge had the knowledge that the appellant was not aware that the matter was coming up on 13:10:2000; the suit before the lower court was for declaration of title to land; the application for adjournment was the first by the appellant’s counsel; the respondents’ counsel did not oppose the application for adjournment; the application was predicated on grounds of ill health and counsel’s letter for adjournment amounted to speaking from the bar; the learned trial Judge in the interest of justice ought to have exercised his discretion in favour of the appellant by granting the application for adjournment. For the sole reason that the suit pending before lower court was a claim for land, the learned trial Judge would have been very slow and extremely cautious in the exercise of his discretion in such a manner that will bar the hearing of the suit on its merits. His Lordship Aniagolu J.S.C. captured the sensitive nature of land cases when he said in Ntukidem v. Oko (1986) 5 NWLR (Pt. 45) 909 @ 922, Paras C – E;
“Any person who is acquainted with land disputes in this country…….. knows the level of tension generated by land disputes and how easily the whole thing can degenerate……this emphasizes the utmost necessity of hearing those cases on their merits and satisfying the parties that the merits of their contentions have been gone into, critically analyzed and justly decided upon…….what it all means is that every effort must painstakingly be made to do justice. A snappy short cut decision bereft of an examination of the merits of the case often settles nothing but rather exacerbates the conflict”.
Justice requires patience, this is why the virtues of a good Judge include patience and meekness. A Judge must always painstakingly ensure the determination of the suit before him on its merits. Without more, I hold that the ruling of the learned trial Judge refusing the application for an adjournment was wrong the same not borne out of a judicial and judicious exercise of his discretionary power.
On Order 37 Rule 8 of the Benue State High Court (Civil Procedure) Rules, 1988 and its dismissal effect, the law seems to be settled by reason of the statement of His Lordship Oputa J.S.C. in University of Lagos V. Aigoro (1985) 1 N.W.L.R. 143 @ 154 -155:
“A review of the authorities seem to suggest that unless and until the court has pronounced a judgment upon the merits or by consent, it ought to use the power which it certainly has to punishing any mistake or blunder committed by the parties or their counsel by an imposition of costs or terms and do everything possible to keep cases alive and then hear them on their merits rather than applying the guillotine of dismissal for want of prosecution”,
It is correct that no court has the right to raise an issue suo motu and relying thereon, decide the case one way or the other without hearing the parties. Such procedure definitely amounts to a denial of fair hearing as enshrined in the Constitution. However this principle is not applicable in this case where the learned trial Judge as I had earlier on in this judgment fully examined, considered the facts before him from his own perception before proceeding to rule as is expected of him in law. Once an application is heard, the Judge can rule on it as the law directs him. He is under no obligation to tell counsel mid-stream what order he intends to make and get a reply from counsel. Always, two orders are available to a learned trial Judge after hearing an application. One is to grant the application, the other is to refuse it and make subsequent order as is required of him by the law. In the present case, the learned trial Judge refused the application for adjournment which was made on the day the matter was fixed for hearing but before the commencement of evidence. The order required of him to make in the circumstance is an order of dismissal under Order 37 Rule 8 of the High Court Rules since the appellant was not there to put forth her case. See Ejezie v. Anuwu (2008) ALL FWLR (Pt. 422) 1005 at 1049; N.B.C.I. V. M.G.I. Co. Ltd. (1992) 2 N.W.L.R. (Pt.221) 71 @ 81 – 82 paras G – B. However in the instant case as I earlier held, because the learned trial Judge allowed irrelevant materials to weigh heavily on his mind he arrived at a wrong conclusion that the application for adjournment was unmeritorious, consequent upon which he failed to exercise his discretion judicially and judiciously by wrongly invoking the Order. On its own, Order 37 Rule 8 of the High Court Rules is not inconsistent with the provisions of the Constitution. It governs a discretionary power which must always be exercised judicially and judiciously, In invoking the order therefore the spirit of the law which is substantial justice must be followed, Order 37 Rule 8 is important and acts as a watch dog to recalcitrant plaintiffs who tend to take advantage of the fact that learned trial Judges are enjoined to ensure matters before them are determined on its merits. The rule serves to streamline the excesses of plaintiffs who if allowed will over stretch the principles of fair hearing to its elasticity limit to the neglect of the fact that justice delayed is justice denied, that fair hearing and natural justice are for both parties and even for the court, that one who has been given opportunity to be heard and tramples upon it cannot be heard to complain of denial of fair hearing, that fair hearing does not mitigate for plaintiffs who clumsily seek to ventilate their grievances without due consideration of the limits and bounds set to ensure justice for all. It is the wrong invocation of the Order that makes it appear inconsistent with the Constitution particularly Section 36 of the Constitution. When a trial Judge with all due considerations rightly arrives at the decision that the plaintiff is wanting in the prosecution of his case the court is empowered to invoke the Order though not without extreme caution in the light of the pronouncement of Niki Tobi JCA (as he then was) in N.B.C.I. V. M.G.I. Co. Ltd, (supra) @ 85 para. D.
“Dismissal of a matter in limine is to me the greatest punishment that a plaintiff can receive in the litigation process. By it the plaintiff is shut away midstream from the steam of litigation and he is in trouble. Therefore, before a trial Judge dismisses an action, he must be very sure that he has no other option open to him, In the instant case, he had an option open to him and that option was to grant an adjournment”.
The correctness of the invocation of the Order depends on the facts of each case. In the instant case having held that the learned trial Judge did not exercise his discretion judicially and judiciously by refusing the application for adjournment he was certainly wrong in invoking the order to dismiss the suit and I so hold.
The appellant also complained that the dismissal of the suit in the circumstances of the case breached the appellant’s right to fair hearing. Fair hearing as enshrined in Section 36 of the 1999 Constitution of the Federal Republic of Nigeria has been used to express the observance of all the components of natural justice known to common law in the determination of a citizen’s rights and obligations. In the real and strict sense of its meaning, what constitutes fair hearing depends on the circumstances of each case. The fundamental demand of fair hearing is that no one should be deprived of any right in any judicial proceeding unless he has been availed the opportunity of being heard. See Bankar v. Nigerian Civil Aviation Training Centre (1986)3 NWLR (Pt.42) 56. See also Gbadamosi v. Dairo (2007) 29 NSCQR 137 @ 164; His Lordship Niki Tobi J.S.C. on fair hearing said:
“Fair hearing is not an expression of mere rhetoric or empty verbalism but a fundamental right of the individual guaranteed in the constitution, the breach of which will nullify the proceedings in favour of the victim. The constitutional guarantee is construed in the light of the facts of the case and facts alone. It cannot be construed outside the facts, Accordingly, a party alleging the breach must show clearly from the facts of the case that the right is violated or breached”.
The respondents’ counsel argued that the appellant was accorded the opportunity to present her case in accordance with the dictates of fair hearing but she chose not to attend court the day her matter was adjourned for hearing and as such she cannot be heard to complain that she was denied of fair hearing’ It is true that a party who has failed to submit his case for consideration cannot complain of denial of fair hearing since such failure amounts to abandonment. For the appellant to succeed there must be a good cause for her absence and her conduct in the case must be such that will make her case worthy of sympathetic consideration. The conduct of the appellant in this case can be seen through the eye of the record. From the record the application for adjournment was the first by her counsel; the matter was adjourned for the first time for hearing before all the parties to 14:7:2000; on said date the matter could not go on due to strike action of judiciary workers; on 27:9:2000, which was the next day the matter came up before the court, both plaintiff and her counsel were absent and the court ordered Hearing Notice to issue on the plaintiff through her counsel; on 13:10:2000 when the matter came up the appellant’s counsel’s letter for adjournment on grounds of ill health was read in court by the clerk of court; the letter also informed the court that the appellant was not aware of the date. The record of the lower court shows that the number of sittings up to the dismissal of Suit No. MHC/89/99 were 5 as follows: 14:10:99, 3:4:2000, 23:6:2000, 27:9:2000 and 13:10:2000. For all these days apart from 3:4:2000 when none of the parties with their counsel was in court and 27:9:2000 when even 1st and 2nd respondent’s counsel acknowledged that appellant’s counsel may not have been aware of the date owing to the preceding strike action; the appellant was always represented in court by her counsel except on 13:10:2000 when the suit was dismissed. See pages 42 to 46 lines 1 – 4 of the record. Although one would not give the appellant an excellent mark but her conduct in the prosecution of the case falls short of any legal reason that would command the dismissal order made by the learned trial Judge on 13:10:2000. Her iniquities could have well been atoned for by the award of punitive costs or striking out. The lower court in the circumstances of the case could not be said to have afforded the appellant full opportunity to ventilate her grievances which she neglected. The cases of Williams V. Hope Rising Voluntary Fund Society (1982) 1 – 2 S.C. 145; Doherty V. Doherty (1964) NMLR 144, Mohammed V. Hussein (1998) 14 NWLR (Pt. 584) 108 and Muhammed v. Kpelai (2001) FWLR (Pt.69) 1404; Orjiekwe v. Orjiekwe (2001) FWLR (Pt.38) 1181 at 1188; Yamusa v. Aromeh (2001) FWLR (Pt.10) 328 at 335 cited by respondents’ counsel are not apposite.
From all I have said, it is my view that the arbitrary dismissal of the appellant’s suit amounts to a deprivation of her right to obtain substantial justice which occasioned a miscarriage of justice. It was only right and proper that before the appellant’s claim before the lower court was dismissed, she should have been given full opportunity to be heard. In the instant case where she was denied this all important right, her right to fair hearing no doubt was breached and the decision of the lower court cannot stand. Accordingly, I hold that the order made by the trial, Judge dismissing Suit No. MHC/89/99 is a nullity. Appeal succeeds. The ruling of the lower court delivered on 13th day of October, 2000, is hereby set aside. I order that Suit No. MHC/89/99 be remitted back to Benue State High Court to be tried by another Judge.
Parties shall bear their respective costs.
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A: I have had a preview of the Judgment of my learned brother Onyemenam, JCA, just delivered. His Lordship has exhaustively considered and ably resolved the issue in contention in this appeal. I agree with the reasoning and conclusion that the appeal is meritorious and should be allowed.
There is no doubt that adjournments are never granted as a matter of course. The Court before which such an application is made is required to exercise its discretion judicially and judiciously having regard to the facts and circumstances of the case. In the instant case, two salient facts were before the court: the absence of the plaintiffs counsel on the ground that he had a medical appointment at St Vincent Hospital, Aliade and the absence of the plaintiff on the ground that she was away on a course in Kano and was not aware of the hearing date of 13/10/2010.
Although learned counsel for the 1st & 2nd defendants and the 3rd defendant respectively did not oppose the written request for an adjournment the learned trial Judge was skeptical and did not believe the excuse of a medical appointment for want of particulars i.e, when the appointment was fixed and the nature of the illness.
However what could not be disputed was the fact that learned counsel for the plaintiff admitted in his letter to the Court that the plaintiff was not aware of the date. There was nothing before the Court to suggest otherwise. The learned trial Judge observed at page 45 of the record:
“The letter in a fortunate (sic) states that the plaintiff herself, a staff of Bank of the North, is on course at Kano and is not aware of today’s date. The counsel is saying may be that he did not convey the date to her. How he got to know that plaintiff is on course is hazy”
What is evident from the above is that there was a very high likelihood that the plaintiff was not aware of the date.
Having regard to the fact that the plaintiff’s case had been diligently prosecuted up to that date, the learned trial Judge ought to have given her the benefit of the doubt. To dismiss her suit under order 37 Rule 8 of the Benue state High court (civil Procedure) Rules 1999 amounted to visiting the sin of her counsel on her and depriving her of the opportunity of presenting her case. The dismissal in the circumstances amounted to a breach of her fundamental right to fair hearing as enshrined in Section 36 of the 1999 Constitution. See: Ndukauba vs. Kolomo & Ors. (2005) 4 NWLR (915) 411 @ 43 E-F, Adigun vs. A.G. Oyo State (1987) 1 NWLR (53) 678, Aishtom vs. Saraki (2005) 3 NWLR (911) 208 @ 229 D; Angos Dide & Anor. vs. Ebiotu Seleketimibi (2008) 15 NWLR (1110) 221.
The proceedings were therefore a nullity and liable to be set aside. I also allow the appeal and abide by the orders contained in the lead judgment including the order for costs.
ALI ABUBAKAR BABANDI GUMEL, J.C.A: I have had the privilege of reading before now the lead judgment of my learned brother, Onyemenam, JCA. I agree that this appeal be allowed. I allow it and abide by all the consequential orders of my learned brother.
Appearances
F.M. Ebofuame Nezan (Mrs);For Appellant
AND
Alubo Innocent Obaah Esq.
Samuel A. Nguekwagh Esq.For Respondent
