DR. CHRIS OKOYE v. CHIEF GABRIEL SUNDAY OFOMA J. P. ANOR.
(2013)LCN/5926(CA)
In The Court of Appeal of Nigeria
On Friday, the 15th day of February, 2013
CA/B/45A/2006
RATIO
COURT: DUTY OF THE COURTS TO PRESERVE THE RES IN ANY MATTER
The law is that the court from which an appeal lies as well as the court to which an appeal lies have a duty to preserve the res for the purpose of ensuring that the Appeal, if successful is not nugatory. The power to preserve the res has always been inherent though in certain cases it is also statutory. See:- Kigo (Nig.) Ltd. v. Holman Bros. (1980) 5 – 7 S.C. 60; Vaswani Trading Co. v. Savalakh (1972) S.C. 77; General Oil Ltd v. Odutan (1990) 7 NWLR (pt.163) 1; Arojoye v. U.B.A. (1986) 2 NWLR (Pt.20) 101; Shodeinde v. Registered Trustees of the Ahamadiyya Movement in Islam (1980) 1 – 2 S.C. 163; Yinka Folawiyo and Sons Ltd. v. Hammond Projects Ltd. 3 FRCR (1977) 373.PER SIDI DAUDA BAGE, J.C.A.
ADJOURNMENT: ADJOURNMENTS ARE GRANTED AT THE DISCRETION OF THE COURTS
The Supreme Court had since made a pronouncement on the issue of adjournment. The Apex Court maintained that “the question whether or not to grant an adjournment is a matter in the discretion of the court. But that discretion must at all times be exercised not only judicially but also judiciously.” See:- Albert Ilona & Ors. v. Ojugbeh Dei & Ors. (1971) 1 ALL N.L.R. 8 at 13.PER SIDI DAUDA BAGE, J.C.A.
PRACTICE AND PROCEDURE: THE RIGHT ORDER TO MAKE WHEN THE COURT HAS DETERMINED THAT THERE IS A MISCARRIAGE OF JUSTICE
Since this court had determined that miscarriage of justice has been meted on the Appellant, the appropriate order to be made is that of retrial of the case at the lower court. See:- Duru v. Nwosu (1989) 4 NWLR (Pt.113) 24; Okoduwa v. State (1988) 2 NWLR (Pt.76) 333; Okedare v. Adebara (1994) 6 NWLR (Pt.349) 157; Peters v. Jackson (2001) 49 WRN 118 at 135 – 136.PER SIDI DAUDA BAGE, J.C.A.
JUSTICES
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria
AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
Between
DR. CHRIS OKOYE Appellant(s)
AND
1. CHIEF GABRIEL SUNDAY OFOMA J. P.
2. CHIEF MRS. RITA NNENNE OFOMA Respondent(s)
SIDI DAUDA BAGE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Hon. Justice R. N. Pemu (Mrs.) (as he then was) sitting at High Court of Delta State, at Effurun judicial Division delivered on the 29th day of November 2005, in which the Appellant was the Co-Respondent. The Notice of Appeal filed by the Appellant to initiate this action is dated the 19th of January 2006 and contains Six (6) grounds of Appeal.
The background facts to this action is as follows:
The Petitioner filed his Petition for the Decree of Dissolution of Marriage between the Petitioner and Respondent on 18th February, 2005. The Petitioner joined the Appellant as the Co-Respondent to the said petition. On 22nd February, 2005 the Honourable Trial Court made an order for substituted service on the Co-Respondent of the Notice of Petition and other processes in the suit by Courier in Anambra State. Pursuant to the said order of Court on 28th February, 2005 the Co-Respondent/Appellant was given an envelope (containing documents) that was served by Red Star Express Courier on one of his Staff at Trinity Hospital, Unubi, Nnewi South Local Government Area, Anambra State. On opening the said envelope the Co-Respondent/Appellant saw the Notice of Petition, the Certificate Relating to Reconciliation, the Petition for Dissolution of Marriage, a Photostat copy of the Marriage Certificate and a Photostat copy of the Order for substituted service made by the Honourable Court on 22/2/2005. The Co-Respondent promptly filed his Answer on 23rd March, 2005 and he was informed by his Counsel that an application to set the Suit down for trial as a Defended Suit and the Registrar’s Certificate setting the Suit down for trial would be served on him later and that he should then travel to the Court stated in the said Certificate on the date of hearing stated therein. After filling his Answer no other process was served on the Co-Respondent/Appellant.
On 8th April, 2005 Co-Respondent’s Counsel received through the Red Star Express Courier a copy of the Counter Affidavit sworn to on 5/4/2005 by the Petitioner. No Motion on Notice or nnnHearing Notice was attached to the said Counter Affidavit and the Co-Respondent was not served with even the Answer of the Respondent. The Co-Respondent saw his Counsel several times on the issue but the latter advised him that the Court made an order for substituted service on him by Courier and once the matter is set down for hearing he would be served the process or an Hearing Notice. Learned Counsel informed the Co-respondent that if he received any process from the Court in respect of the Suit he would immediately inform him. On 1st December, 2005 Counsel for the Co-Respondent was in Onitsha High Court to appeal in a Suit and coincidentally he saw the Learned Counsel for the Respondent who told him that somebody telephoned him on 30/11/2005 and told him that judgment had been delivered in the suit and that the Co-Respondent was ordered to pay one million naira damages for adultery to the Petitioner. Counsel for the Co-Respondent asked the Learned Respondent’s Counsel when hearing started in the Suit as they were not served with any process setting the Suit down for trial or with any Hearing Notice.
Respondent’s Counsel stated that he filed an appeal against the Ruling of the Honourable Court on a Motion he filed and Counsel for the Co-Respondent stated that they were not served with any Motion or Appeal document apart from the Counter Affidavit of the Petitioner.
As Counsel for the Respondent stated that he had not obtained the said judgment of the Honourable Court, on 15/12/2005 Co-Respondent’s Counsel sent a legal practitioner to Effurun Court to obtain:
(3) Certified True Copies of all the documents contained in the Court’s file in respect of this Suit;
(ii) Certified True Copy of the Judgment of the Honourable Court; and
(iii) Certified True Copy of the record of proceedings in respect of this Suit.
The said Counsel succeeded only in bringing the certified true copies of all the documents contained in the Court’s file in respect of this Suit. From the certified true copies of all the said documents in the file of the Honourable Court it was noticed that there was no application to set the Suit down for trial as a Defended Suit and there was no Registrar’s certificate setting the Suit down for trial. As the Honourable Court made an order for substituted service by Courier on the Co-Respondent the only Courier receipt of service on the Co-Respondent was the Red star Express Courier receipt showing that the Co-Respondent was served on 25th February, 2005 which was the date of service on his staff of the Notice of Petition, the Petition and the other processes stated in paragraph 5 (supra). It was also seen in the Judgment that a whopping damage of one million naira was awarded against the Co-Respondent for adultery and for his refusal to come to Court to refute the allegation against him when he was not served a hearing Notice or Registrar’s certificate setting the suit down for hearing as a defended Suit.
The Co-Respondent on 12th January 2006 filed a Motion dated same 12/1/2006 to set aside the judgment of the Honourable Court on the ground that no Registrar’s Certificate setting the Suit down for trial was applied for or issued and that no Hearing Notice was served on him before the Suit was heard and determined and Judgment entered against him. The Honourable Court fixed the Motion for hearing on 7th March, 2006. As the Co-Respondent was afraid that his time for appeal would run out before the hearing of the said Motion he filed his Notice of Appeal on 2nd February, 2006. On said 7/3/2006 when he went for the hearing of the said Motion he was informed that the Records of Appeal and the case file had been transferred to the Court of Appeal, Benin. Co-Respondent was surprised and he paid for and was given the copy of the said Record of Appeal.
From the said Notice of Appeal, the Appellant distilled the following Six (6) issues for determination:
(i) Whether the petitioner stated the ground and facts for dissolution of the marriage in accordance with section 15(2) of the Matrimonial Causes Act (MCA) and Order V Rule 12 of the Matrimonial Causes Rules (MCR).
(ii) Whether the Honourable Court was right in Law when it held that there is evidence that the Petitioner and the 1st Respondent had lived apart for a continuous period of at least three years immediately preceding the presentation of the petition.
(iii) Whether there was evidence of proof of adultery cognizable by law between the 1st Respondent and the Co-Respondent as found by the Honourable Court.
(iv) Whether the Honourable Court was right in law when it awarded damages of One million naira against the Co-Respondent when such was not prayed for in the petition.
(v) Whether the Honourable Court was right when it awarded Costs of Ten thousand naira against the Co-Respondent in favour of the Petitioner when it was not prayed for and for adultery that was not proved.
(vi) Whether the Honourable Court was right in law when it heard and determined the petition when there was no application to set the Suit down for trial and when there was no Registrar’s Certificate setting the Suit down for trial and when no such process or any other process was served on the Co-Respondent fixing the petition for hearing.
On the other hand the Petitioner/1st Respondent adopts the Six (6) Issues as formulated by the Appellant above in response to the arguments in the appeal.
In arguing the Issue No.1 learned counsel to the Appellant submitted that the pleading in the petition did not state the facts in support thereof as is required by section 15(2) of the Matrimonial Causes Act and Order V of the Matrimonial Causes Rules stated in paragraphs 25 – 27 of the petition. In fact Order V Rule 12(1) quoted in paragraph 26 states that a person shall state the ground and the facts in support thereof.
The word shall is mandatory and since the petition did not comply with the Act and the Rules, then the Honourable trial court cannot grant it as rules are meant to be obeyed. See:- Solanke v. Somefun (1974) 1 SC 141 at 148; Hart v. T.S.K.J. Nig. Ltd. (1998) 12 NWLR (Pt.578) 372 at 390 Paras E – F. Akinbuwa v. Akunbuwa (1998) 7 NWLR (Pt.559) 661 at 669 Para E; Ekrebe v. Ekrebe (1999) 3 NWLR (Pt.596) 514 at 523 Para F.
In reply the learned counsel to the Petitioner/1st Respondent submitted that there is only one ground for dissolution of all marriages under the Matrimonial Causes Act Cap M7 LFN 2004 (MCA) and that is as provided in Section 15(1) of the MCA that the marriage has broken down irretrievably and no other. The provisions of section 15(2) do not constitute separate grounds they are only various species of the irretrievable break down. See:- Anagbado v. Anagbado (1992) 1 NWLR (Pt.216) 207 at 216 – 217 H – B; Harriman v. Harriman (1989) 5 NWLR (pt.119) 6 at 15 F – H; Akinbuwa v. Akinbuwa (1998) 7 NWLR (Pt.559) 661 at 669.
Learned Counsel further submitted that this court is referred to the averments of facts in the petition. In paragraph 14 of the said petition, the petitioner sought a decree of dissolution of the marriage on the ground that the marriage has broken down irretrievably. The 2nd Respondent, Appellant or other person did not controvert those evidence. It is trite that evidence which is not challenged or contradicted must be accepted as established. See:- Omoregbe v. Lawani (1980) 3 – 4 SC 108 at 117 – 118; American Cynamid v. Vitality Ltd. (1991) 2 NWLR (pt.171) 118; Onigbede v. Balogun (1998) 1 NWLR (Pt.535) 643 at 658 Para. D.
Learned Counsel further submitted that even though the Respondent and the Appellant filed their respective answers to the petition, they did not lead evidence in support of the facts pleaded. It is trite that averments in pleadings are not proof of the facts contained therein. See:- Wema Bank Ltd. v. lntl. Fishing Co. Ltd. (1998) 6 NWLR (Pt.555) 557 at 572 Paras B – C.
Learned Counsel submitted further that it will amount to undue legal technicality to hold that because a competent ground is included amongst incompetent grounds in a petition for dissolving of marriage under the MCA, then the petition is incurably defective. See:- Anagbado v. Anagbado (Supra) at page 217 Para C- D.
Learned Counsel submitted further that it is not every error on the part of the trial court that will be a good ground to upset its Judgment. For an Appeal to succeed on the ground of misdirection, it must be shown to be weighty, that is to say, it must be established that the misdirection has occasioned a substantial miscarriage of justice and the aggrieved party has lost a chance of success which was fairly open to him upon a substantial part of the case. See:- Chukwuma v. Chukuma (1996) 1 NWLR (Pt.426) 543 at 558 Paras D – E.
In resolving this issue, the provisions of Section 15(1) and (2) of the Matrimonial Causes Act and Order V (1), (3)(g) must be properly reviewed. The said provisions are hereunder reproduced:
Section 15(1)
“A petition under this Act by a party to a marriage for a decree of dissolution of the marriage may be presented to the Court by either party to the marriage upon the ground that the marriage has broken down irretrievably”.
Section 15 (2)
“The court hearing a petition for a decree of dissolution of marriage shall hold the marriage to have broken down irretrievably if but only if, the petitioner satisfies the Court of one or more of the following facts:
a. That the Respondent has willfully and persistently refused to consummate the marriage;
b. That since the marriage the Respondent has committed adultery and the Petitioner finds it intolerable to live with the Respondent;
c. That since the marriage the Respondent has behaved in such a way that the Petitioner cannot reasonably be expected to live with the Respondent;
d. That the Respondent has deserted the Petitioner for a continuous period of at least two years immediately preceding the presentation of the petition;
e. That the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition and the Respondent does not object to the Decree being granted;
f. That the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition.
g. That the other party to the marriage has, for a continuous period of not less than one year failed to comply with a decree of restitution of conjugal rights made under this Act.
h. That the other party to the marriage has been absent from the petitioner for such time and such circumstances as to provide reasonable grounds for presuming that he or she is dead.”
Section 15 (3):
“For the purposes of subsection (2) (e) and (f) of this Section the parties to a marriage shall be treated as living apart unless they are living with each other in the same household.”
Order V (1), (3) (g) of the Matrimonial Causes Rules provides as follows:
“A Petition shall state the facts, but not the evidence by which the facts are to be proved, relied on as constituting the ground or each ground specified in the petition, stating if more than one ground is so specified, the facts relating to each ground, as far as practicable, separately.”
After a painstaking reading of the entire appeal, an unescapable fact would emerge, and that is, that the Issue Number One (1), cannot be effectively and decisively determined, unless the Issue Number Six (6) in the Appellants brief of argument runs first. This issue deals with the challenge as to the fair hearing of the petition by the lower court. The Issue Number Six (6) is as follows:
“Whether the Appellant received a fair hearing of the petition when the court proceeded to give judgment during the pendency of the motion for stay of proceedings and motion for interim order of stay of proceedings pending the hearing and determination of the Motion on Notice at the Court of Appeal fixed for hearing on 7th December 2005 and 5th of April 2006 respectively (all of which are to the knowledge of the court). Ground 1 of the Notice of Appeal at page 153 of the Record of Appeal.”
In this regard, the determination of the arguments put forward for the Issue Number One (1) is put on hold by this court, to consider those forwarded for Issue Six (6) before returning to the former.
In arguing the Issue Number Six (6), learned counsel to the Appellant submitted that it is the law, that once there is a motion for stay of proceedings filed in the Court of Appeal, the trial High Court is duty bound to stay proceedings until the outcome of the application for stay of proceedings pending in the Court of Appeal. The failure of the trial court to stay action is tantamount to deprivation of the right of the Appellant to a fair hearing of the petition. This also has implication on the jurisdiction of that court to hear the petition. See. Somai Sonke Co. Nig. Ltd v. Adzege (2001) 9 NWLR (Pt.718) 312 at 322, 325; Mohammed v. Kano Native Authority (1968) 1 All NLR 424; Ariori v. Elemo (1983) 1 SC NLR 1; Akoh v. Abuh (1988) 3 NWLR (Pt.85) 698.
Learned counsel to the Appellant further submitted that, the implication of finding of breach of right to fair hearing is separate from the question of the merit of the trial court’s decision. Once there is breach of fair hearing, the Judgment is a nullity. See:- Idakwo v. Ejiga (2002) 13 NWLR (Pt.783) 156; Ezegbu v. F.A.T.B. Ltd (1992) 1 NWLR (Pt. 220) 699; Ojukwu v. Lagos State Government (1985) 2 NWLR (Pt.10) 806.
In reply, the learned counsel to the 1st Respondent submitted that there is no proof from the records that any motion for stay of proceedings was served on the lower court. We searched through the length and breadth of the record of appeal and found no reference to any such service. There is therefore a presumption that the records of court are correct and any person who contests the correctness of same has an onerous duty to discharge. The Appellant apart from her Ipse dixit has not adduced any evidence to show that the lower court was served with the motion for stay of proceedings. All the authorities cited by the Appellant above, are not applicable to the instant appeal. We urge this court to hold that there is no denial of fair hearing in the circumstance.
On page 131 of the record, in the Judgment of the trial court, from paragraph two thereof, the court stated as follows:
“On the 12th of October, 2005, after the Petitioner testified, this matter was adjourned to the 2nd of November, 2005 for cross-examination. I ordered that the Respondent be in court on that day, which date turned out to be a public holiday due to the Muslim Idel Fitri. The matter is adjourned to the 12th November 2005, for cross-examination. On that day i.e. 12th November 2005, the Respondent and the Co. Respondent were absent. The Respondent was unrepresented but there was a letter written to court from one Mr. O. J. Nadi Esq. dated 10th November, 2005, where he states that he appears in protest. He asked for adjournment to enable him wait for the outcome of the appeal filed which appeal (from records) has not been entered. He also applied for transfer of this case. Dafe Akpedeye (SAN) oppose the application and the court upheld this and called upon him to address the court, while foreclosing the Respondent.”
On page 122 of the record of appeal is the protest letter written to the trial court dated the 10th of November, 2005, by O. J. Nnadi of counsel to the Respondents seeking for the adjournment of the matter. The letter reads as follows:
RE: SUIT NO.EHC/44/2005
CHIEF GABRIEL SUNDAY OFOMA
VS
CHIEF MRS. RITA NNENNE OFOMA & ANOTHER NOW PENDING BEFORE HONOURABLE JUSTICE R. N. PEMU HIGH COURT NO.2 EFFURUN
We appear in protest as counsel to the Respondent in the above divorce petition which is fixed for 11th November 2005 without notice to our chambers. We have filed an appeal against the Ruling of the High Court Coram R. N. Pemu (Judge) delivered on 20th July 2005. We have also filed a motion for stay of proceedings in the above suit at the Court of Appeal, after the refusal of a similar application by the trial Judge.
Notwithstanding the above including the fact that the motion for stay of proceedings filed at the Court of Appeal was served on the court long before 12th October 2005, and same in the case file at pages 116 to 120 of the case file which is to the knowledge of the trial Judge, the trial Judge continued with hearing of the suit even when all the parties have not been served. We have applied for the transfer of the above suit from High Court No.2 Coram R. N. Pemu to another High Court Judge.
We have also filed a petition against the trial Judge with the National Judicial Council as per attached annexture ‘A’.
We believe that by proceeding to cross-examine PW1 is tantamount to waiver of our client’s right to insist on moving the motion for stay of proceedings in the Court of Appeal fixed for 7th December 2005. We consider any date fixed by the court without the disposal of the motion for stay of proceedings at the Court of Appeal as a judicial trap calculated to meet our client with the plea of waiver in respect of the motion for stay.
Our client has been advised not to fall into this trap. Consequently and on the very important fact that O. J. Nnadi who wants to personally be in court to do the needful is sick and no counsel is available in chambers to take up this matter, a situation foisted on our chambers by the fact that the case which came up on 2nd November (a public holiday) was adjourned to 11th November 2005 without any Hearing Notice served on us but which we came to know only yesterday. We shall not be able to attend court today.
The medical paper of O. J. Nnadi of counsel is hereby attached. Our client is unavoidably absent due to ill-health. We therefore in the interest of justice, dignity and integrity of the High Court and the Court of Appeal apply that this matter be adjourned to the 27/1/2006, 30/1/2005, 10/2/2006 to await the outcome of the Court of Appeal decision in the application of proceeding for stay fixed for 7/12/2005 at the Court of Appeal and the application for transfer of the above suit to another Judge as well as the petition filed against the trial Judge by our client.
Please bring this letter to the attention of his Lordship.
Thank you.
Yours faithfully,
O. J. Nnadi Esq.
Cc: (1) Dafe Akpedeye (SAN)
No.1 Ovie Palace Road
Effurun.
Note:- The sick leave certificate No.1458 from Anambra State of Nigeria Hospital Management Board in favour of O. J. Nnadi Esq. date of placing on sick list 10/11/05, probable duration of illness, seven days is on page 124 of the record of appeal.
From the above, the decision of the trial court in refusing the adjournment sought, the protest letter of counsel which had sought for same, is brought out by this court into full glare. Was the trial court therefore right to have refused the Appellant the adjournment sought before it, and proceeding to take the address of the Respondents counsel (then Petitioner)? After that, the trial court entered Judgment in favour of the Respondent (Petitioner) having foreclosed the Petitioners right to put up a defence on account of default of appearance on an appointed date by the court itself after a public holiday.
The Appellant’s counsel letter on page 122 of the records which trial court had acknowledged receipt of complained amongst others of:
(1) Appearing in protest as no hearing notice formally was served to their chambers of adjournment made by the trial court fixed 11th November, 2005.
(2) Motion for stay of proceeding pending at the Court of Appeal.
(3) Application for the transfer of the case from High Court No.2 Coram R. N. Pemu to another High Court Judge.
(4) A petition filed against the trial Judge with National Judicial Council.
(5) The medical report attached to the said letter in favour of O. J. Nnadi Counsel to Appellant to show inability to be in court as a result of ill-health.
From the five (5) reasons advanced by the learned counsel to the Appellant at the lower court, seeking for the adjournment of the continuation of hearing of this case, three (3) are fundamental. (1) Lack of hearing notice to the parties, (2) Motion for stay of proceeding pending at the Court of Appeal, (3) Medical report of ill-health of counsel. As regards hearing notice, nowhere in the record before this court that a return of service indicating the Appellant being duly served to appear on that date, suo motu appointed by the trial court, when the original date for hearing was interrupted by a public holiday. The Appellant’s counsel wrote to court to say they were not formally served, they only heard of the date. The court has not said it had a return of service showing Appellant on Notice of that date. This alone in the opinion of this court is enough reason to have slowed down the trial court from continuing with the proceeding of that date. The law is already trite on the effect of failure to give notice of proceedings to an opposing party in a case where service is required, it is a fundamental omission which renders such proceedings void because the court has no jurisdiction to entertain it. See:- Wema Bank Nig. Ltd v. Odulaja (2000) 3 SC. 83; A.G. Rivers State v. Ude & 12 Ors. (2006) 6 – 7 SC 13.As regards the stay of proceedings because of the pending motions at the Court of Appeal. The Appellant in his letter to the trial court reminded it of the pendency of the motion at the Court of Appeal, and that the proceedings at the Court of Appeal was served on the trial court long before 12th October 2005 and same is to be found in the trial court’s case file at pages 116 to 120. The trial court in its Judgment said it searched its records but could not find such notice to it. Despite that fact, the trial court ought to be mindful of its power to preserve the Res of an Appeal. The law is that the court from which an appeal lies as well as the court to which an appeal lies have a duty to preserve the res for the purpose of ensuring that the Appeal, if successful is not nugatory. The power to preserve the res has always been inherent though in certain cases it is also statutory. See:- Kigo (Nig.) Ltd. v. Holman Bros. (1980) 5 – 7 S.C. 60; Vaswani Trading Co. v. Savalakh (1972) S.C. 77; General Oil Ltd v. Odutan (1990) 7 NWLR (pt.163) 1; Arojoye v. U.B.A. (1986) 2 NWLR (Pt.20) 101; Shodeinde v. Registered Trustees of the Ahamadiyya Movement in Islam (1980) 1 – 2 S.C. 163; Yinka Folawiyo and Sons Ltd. v. Hammond Projects Ltd. 3 FRCR (1977) 373.
As regards the third important reason for which the adjournment sought was for at the trial court was the ill-health of the learned counsel to the Appellant. This consideration in the letter was accompanied with a sick leave certificate duly stamped in favour of the counsel from the Anambra State of Nigeria Hospitals Management Board at page 124 of the record of appeal. The trial court ignored and or refused to work on this certificate. This alone in the opinion of this court is enough reason to have granted the adjournment sought for. The Supreme Court had since made a pronouncement on the issue of adjournment. The Apex Court maintained that “the question whether or not to grant an adjournment is a matter in the discretion of the court. But that discretion must at all times be exercised not only judicially but also judiciously.” See:- Albert Ilona & Ors. v. Ojugbeh Dei & Ors. (1971) 1 ALL N.L.R. 8 at 13. In this case, on the date fixed for hearing of this matter in this High Court, Plaintiffs counsel was absent because he was said to be before the Supreme Court on the same day, but he sent a counsel to hold his brief. The counsel holding his brief informed the court that he was not prepared to go on and asked for an adjournment. Defendants said they were prepared to go on. Without ruling on the application for adjournment, learned trial Judge adjourned the matter for Judgment and eventually dismissed plaintiffs claim under 028 rit of the Western Nigeria High Court (Civil Procedure) Rules. On appeal the order was set aside and the case ordered to be heard de novo by another Judge.
The Supreme Court in that decision added:
“It is a well established principle of law that all judicial discretions must be exercised according to common sense and according to justice and, if there is any miscarriage of justice in the exercise of such discretion, it is within the competence of a Court of Appeal to have reviewed.”
The Supreme Court further observed that:
“On the question of the exercise of discretion in granting application for adjournment, it is pertinent to quote a passage in the Judgment of Lord Wright L.J. in Evans v. Bartlam (1937) AC 473 to which our attention was drawn by the learned counsel for the Appellant. In his Judgment Lord Wright said at page 487:
“A Judge’s order fixing the date of a trial or refusing to grant an adjournment is a typical exercise of purely discretionary powers, and would be interfered with by the Court of Appeal only in exceptional cases yet it may be reviewed by the Court of Appeal. Thus in Maxwell v. Keun (1928) 1 KB 645, the Court of Appeal reversed the trial Judges’ order refusing the Plaintiff an adjournment. That was a pure matter of discretion on the facts. Atkin L.J. said at (P.653): “I quite agree that the Court of Appeal ought to be very slow indeed to interfere with the discretion of the learned Judges on such a question as an adjournment of a trial and it very seldom does so, but on the other hand, if it appears that the result of the order made below is to defeat the rights of the parties altogether, and to do that which the Court of Appeal is satisfied would be an injustice to one or other of the parties, then the Court has power to review such an order and it is to my mind its duty to do so.”
The Supreme Court again in reviewing exercise of discretion power by trial court applied the same principles in Abiobun Adenitee Odusote v. Olaitan Olaniji Odusote (1971) 1 All NLR 219 at pp. 223 – 224.
This was a matrimonial cause on appeal from the High Court Ibadan to the then Western State Court of Appeal. On the date the appeal first came up for hearing, Respondent/Appellant was absent (there was no proof that she was served with a hearing notice). One of her counsel was present but he told the appellate court that the senior counsel who was to lead him in the appeal was not yet in court. He therefore asked for an adjournment. Counsel for the Petitioner/Respondent opposed the application and his submission for the dismissal of the appeal was upheld.
On a further appeal to the Supreme, the order of the Western State Court of Appeal was set aside and it was ordered that the matter be re-entered for hearing. The Supreme Court stated thus:-
“It is to be observed that the grant of adjournment is in the discretion of the Judge and the discretion is expected to be exercised judicially. These adjournments until the contrary is proved must in my opinion be presumed to have been granted in the interest of justice and fair hearing.”
I find the facts and circumstance in Odusote v. Odusote (Supra) above, almost in all fours with the present appeal.
The Supreme Court expounded its positions on this subject in its subsequent decisions. Per Obaseki JSC in R. Ariori & Ors v. Muraino B. O. Elemo & Ors. (1983) 1. SC 13 at pp. 25 – 26 stated as follows:
“The court must balance its discretionary power to grant or refuse an adjournment with its duty to endeavour to give an Appellant the opportunity of obtaining substantial justice in the shape of his appeal being granted a fair hearing on its merits provided always that no injustice is thereby caused to the other party and where the court erred in its balancing exercise an appeal court is at liberty to interfere. See:-Demuren v. Asuni (1967) 1 All NLR 94.”
Also per Bello, JSC (as he then was) in University of Lagos & Anor. v. M. I. Aigoro (1985) 1 SC 265 at 275, was decided as follows:
“This was an appeal against the decision of the Court of Appeal. The appeal was on the ground that the learned Justices of the Court of Appeal failed to exercise their discretion judicially in refusing the application for adjournment sought by the Appellants and thereby dismissing the appeal for want of prosecution without hearing it on the merits. Counsel for the Appellants had submitted in the Court of Appeal that they were unable to file additional grounds of appeal because they were yet to obtain the record of appeal (whereas the court and the Respondent had obtained the record of appeal). The appeal was allowed and the case was remitted to the Court of Appeal for hearing on its merit.”
In the instant appeal from all that was stated above, the trial court had not acted in accordance with the direction given by the Supreme Court in the cases cited. The Supreme Court propounded the balancing procedure, where the court must balance its discretionary power to grant or refuse an adjournment with its duty to endeavour to give an Appellant the opportunity of obtaining substantial justice in the shape of his appeal. The letter written by the learned counsel to the Appellant no doubt contained cogent and compelling reasons for the trial court to have granted the adjournment that was sought for. At page 124 of the record of appeal was the medical report validly stamped to show the state of the health of counsel and why unavoidably he could not be in court. All these were ignored by the trial court. In this regard therefore, this court must review the discretionary power used by the trial court in refusing the adjournment sought for.
This court must hasten to mention that the two (2) other reasons, contained in the counsel’s letter, i.e. (i) A petition against the trial Judge to the National Judicial Council (ii) Application for the transfer of matter from the trial Judge to another Judge are of no moment to an application for adjournment.
The event of the 12th November, 2005, negatively affected the right to fair hearing of the Appellant which rendered the determination by the trial court of the merit of the petition, based on the evidence of the Petitioner alone, ultra vires and of no effect whatsoever. This court in the case of Awumah Transport Nig. Ltd v. Oyinlola Atanda Transport Nig. Ltd. (1998) 6 NWLR (Pt.555) 684 at 690 paragraph ‘C’ stated as follows:
“When deciding a case a court of trial must give parties opportunity of a fair hearing by being satisfied that all the due processes of court have been served on all the parties.”
Let me add here also that it is trite on effect of violation of the principle audi alteram partem causing injustice to party, as it did to the present Appellant, any Judgment delivered amounts to a miscarriage of justice and should be declared a nullity. See:- Yakubu v. Gov. Kogi State (1995) 8 NWLR (Pt.414) 386; U.B.N. Ltd. v. Nwokolo (1995) 6 NWLR (Pt.400) 127; Mr. Yesufu Amuda Garba & Ors. v. The University of Maiduguri (1986) 2 S.C. 128; Madukolu & Ors v. Nkemdilim & Ors. (1962) All NLR 582.
On the whole therefore, in the absence of hearing notice from the lower court, served on the Appellant, and the other compelling reasons, as earlier stated by this court for the grant of the adjournment sought by Appellant, the proceedings of 12th of November, 2005, and the Judgment rendered on it, amounted to a miscarriage of justice against the Appellant, and it is hereby set aside by this court.
Let me again state here that all the Issues from 1- 5 as formulated by the Appellant for the determination of this appeal amounts only to academic questions. It will serve no useful purpose determining them again. See:- Atake v. Afejuku (1994) 9 NWLR (Pt.368) 379 at 402; Akeredolu v. Akinremi (1986) 2 NWLR (Pt.25) 710 at 725; Tanimola v. Surveys and Mapping Gaodata Ltd. (1995) 6 NWLR (Pt.403) 617 at 626 – 627.
Since this court had determined that miscarriage of justice has been meted on the Appellant, the appropriate order to be made is that of retrial of the case at the lower court. See:- Duru v. Nwosu (1989) 4 NWLR (Pt.113) 24; Okoduwa v. State (1988) 2 NWLR (Pt.76) 333; Okedare v. Adebara (1994) 6 NWLR (Pt.349) 157; Peters v. Jackson (2001) 49 WRN 118 at 135 – 136.
In the final analysis, this appeal is meritorious and it is hereby allowed by this court.
(1) The Judgment of Hon. Justice R. N. Pemu (Mrs.) in Suit No.EHC/44/2005 delivered on the 29th of November 2005, at the High Court of Justice, No.2 Effurun Delta State, is hereby set aside by this court.
(2) I remit the case back to the Hon. Chief Judge, Delta State for trial before another Judge de novo.
(3) Parties to bear their own costs.
HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I have read the judgment just delivered by Hon. Justice SIDI DAUDA BAGE. I am in complete agreement with his reasoning and conclusion that in view of the lack of proof of Hearing Notice having been served on the Appellant, and the refusal of the adjournment sought by Appellant’s counsel, the subsequent hearing of the case was done in breach of the rules of natural justice. I abide by all the consequential orders made in the lead judgment.
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I have read in advance the lead judgment of my learned brother, SIDI DAUDA BAGE, JCA. I am in full agreement with the reasoning and conclusion reached therein that the appeal is meritorious and ought to be allowed.
In the circumstance, I adopt the lead judgment as mine and I too allow the appeal. Consequently, the judgment of the lower court delivered on 29/11/2005 in Suit No.EHC/44/2005, is hereby set aside. I also abide by the consequential order made in the lead judgment as well as the order relating to costs.
Appearances
Emeka Etiaba Esq.For Appellant
AND
I. I. Iloani
E. A. Nriapia Esq.For Respondent
