MRS AGNES ADEBISI ADELEKUN v. MR. BOLAJI FAHM & ANOR
(2014)LCN/7076(CA)
In The Court of Appeal of Nigeria
On Monday, the 31st day of March, 2014
CA/L/700/11
RATIO
POSITION OF THE LAW ON THE BINDINGNESS OF A RECORD OF APPEAL
The law is that a Record of Appeal is binding on the Court, parties and counsel; it is the final reference of events, step by step, that took place in the Court – see Garba v. Omokhodion (2011) 15 NWLR (Pt. 1269) 145, Ndayako & Anor. V. Mohammed & Ors. (2006) 17 NWLR (Pt. 1009) 655 SC, and Agagaraga v. FRN (2007) 2 NWLR (Pt. 1019) 586, wherein this court held as follows –
“- – The records of this appeal do not support the submission of learned counsel. Section 132 of the Evidence Act – – provides for the bindingness of the records of proceedings. – – – The records of the lower Court bind this Court. It cannot, therefore, add to nor subtract from the records before it or guess or conjecture at the contents of the record of proceedings. The written brief of the learned counsel cannot supplement the records of the lower Court“. [Per Dongban-Mensem, JCA]
In this case, I set out the proceedings of 12/4/2011 – as recorded by the Court, and it is quite glaring that the averments in paragraphs 11, 12, 19, 20, 22, 24, 25, 27 & 29 of the Affidavit in support of the Application that led to this appeal, and the above submissions of the Appellant are not borne out by the Record. The lower Court as well referred to events in its Ruling that are not on record; this is unacceptable in law, and such matters are beyond our contemplation. So, any allusion to events that are not on the Record will be discountenanced.
However, the Appellant also hinged his arguments on lack of fair hearing and referred us to the following authorities – Dingyadi V. INEC (2010) 18 NWLR (Pt. 1224) 154, Farajoye V. Hassan (2007) ALL FWLR (Pt. 368) 1070, Ajayi V. Idowu & Ors [CA/I/EPT/NA/77/08] unreported, Ayorinde V. Fayoyin (2001) FWLR (PART 75) 483, Kotoye V. CBN & Ors. (1989) 1 NWLR (PART 98) 419, Oche v. State [2007] 5 NWLR (Pt. 1027) 214, Kim V. State (1992) NWLR (Pt. 233) 12, Ogbodu V. Odogha (1967) 1 ALL NLR 173, Honey Crown Products V. Shell Electric Manufacturing (Unreported) CA/L/273/09 delivered on 15/2/13, and the case of SBN Plc. V. Crown Star & Co. Ltd. (2003) 6 NWLR (Pt. 815) 1. PER AMINA ADAMU AUGIE, J.C.A.
JUSTICES:
AMINA ADAMU AUGIE Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria
Between
MRS AGNES ADEBISI ADELEKUN – Appellant(s)
AND
1. MR. BOLAJI FAHM
2. MISS AJIBIKE FAHM – Respondent(s)
AMINA ADAMU AUGIE, J.C.A. (Delivering the Leading Judgment): The Respondents filed Suit No. LD/537/2009 at the High Court of Lagos State, wherein they claimed as follows against the Appellant as the Defendant –
i) A Declaration that the claimants are the persons entitled to the ownership of the Land and building lying and being at No. 29, Makinde Road, Off Ojuelegba, Surulere Lagos (now known as 33, Western Avenue Surulere, Logos State).
ii) AN ORDER for possession of the property situate, lying and being at No. 29, Makinde Road, off Ojuelegba, Surulere Lagos (now known as 33, Western Avenue Surulere, Lagos State) which were let to the Defendant deceased husband under a monthly tenancy which was duly determined by a Notice to Quit dated 28/7/2008.
iii) N3,260,000.00 being arrears of rent for 163 months covering the period of 1st day of February, 1995 to 31st day of August, 2008 at the rate of N20,000,000 per month.
iv) Mense profit at the rate of N20,000.00 per month from the 1st day of September, 2008 until Possession is given up.
The Appellant filed an Application dated 2/3/2011 to amend her Statement of Defence but her Solicitors thereafter filed a Motion on Notice dated 8/3/2011 to withdraw representation for her at trial. Meanwhile, the suit was adjourned to 9/3/2011 for hearing. On the said 9/3/2011, the Application to withdraw representation was struck out by the Lower Court for failure to file and serve it within the prescribed time by the Rules of the Lagos State High Court Rules.
The suit was further adjourned to 12/4/2011 for trial, and on that day, the Application to amend her Statement of Defence was heard and granted, and trial commenced on that same 12/4/2011. The 2nd Respondent adopted her Statement on Oath and tendered 5 documents as Exhibits 1-5 in evidence. She was not cross-examined by the Appellant’s counsel, and was discharged.
The Appellant was ordered to open her defence but her counsel asked for a short adjournment”, which was refused, and she entered the witness box. She adopted her statement on oath, and told the lower Court that she had a “list of documents” she wished to rely on. The Respondents’ counsel had no objection, and it admitted “all the 8 documents listed in [her] list of documents to be relied on at the trial – – – as Exhibits D1-D8”. She was cross-examined by the Respondents’ counsel, and with no re-examination, she was discharged.
Thereafter, the Appellant filed an Application dated 11/5/2011, praying for –
1. An Order of Court granting leave to the Defendant/Applicant to recall the Claimants/Respondents’ witness in this suit.
2. An Order of Court granting leave to the Defendant/Applicant to recall the Defendant/Applicant Witness.
The Application was supported by a 36-paragraphs Affidavit. The Respondents did not file a counter-Affidavit and in its Ruling of 26/6/2011, the lower Court dismissed the said Application for being “unmeritorious and misconceived”.
Dissatisfied, the Appellant sought and was granted leave by this court to file a Notice of Appeal containing 1 Ground of Appeal against the said Ruling, and in line with our Rules, she distilled the following Issue for Determination there-from in her brief of argument settled by Ajibola Dalley, Esq., and that is –
“Whether the Appellant’s application to recall both the Appellant witness and Respondent witness for re-examination and cross-examination was rightly refused in the circumstances of this case?
The Respondents adopted her issue as formulated in their brief of argument prepared by Banjo Abass, Esq., and I will do same in dealing with this appeal.
Before I go into who wins the day, we need to put the records straight. The matter came up for the first time on 21/10/2010. The Appellant’s counsel was not in Court and the lower Court asked the Respondents’ counsel if he had been served with her Statement of Defence and he answered –“On 12th June”.
The lower Court then observed as follows at page 236 of the Record –
“And you filed the Reply on 4th September 2010 without compliance with the Rules. You were in arrears of 8 days. You need to pay the penalty and file affidavit of compliance. Case is further adjourned to – – Defendant too filed the Statement of Defence out of time without compliance served on 27th April and filed Statement of Defence on 10th June. In arrears of 2 days. Case is adjourned to Wednesday, 2nd February 2011 for trial subject to compliance”.
The proceedings of the next adjourned date –2/2/2011, reads as follows –
“Mrs. Olude – We got wind of this matter last week and Mr. Dalley is the one in charge of the case and he would want to take it personally.
Court – There is a pathetic letter from Claimant’s counsel stating that his 18 year old daughter was crushed to death on 30th Jan. 4 days ago. Please show letter to her.
Mrs. Olude – I am very sorry about that my Lord 9th March is convenient.
Court – Case is hereby adjourned to Wednesday, 9th March for trial”.
The proceedings of the said 9/3/2011 at page 239 of the Record is as follows-
“Mrs. Olude – We have a Motion on Notice to withdraw representation for the Defendant dated 8th March 2011. I adopt my address and move in terms.
Court – The Application brought pursuant to O.48 is incompetent having not been brought at least 3 days before this date fixed for hearing. Same is hereby struck out for that reason. I so hold. Trial will commence on scheduled (sic). Mr. Gbadamosi put your witness in the box.
Mr. Gbadamosi – We have not complied with the payment of penalty.
Court – 78 days arrears since Dec. 2010. Matter was adjourned till today because of your letter, since you have only one witness, I may have to grant an adjournment.
Case is adjourned to Tuesday, 12th April 2011 for trial subject to compliance”.
The Proceedings of 12/4/2011 is the foundation of this appeal, and it reads –
“Mrs. Olude – We have an Application dated 2nd March 2011.
Mr. Gbadamosi – No objection.
Mrs. Olude – I adopt our Written Address.
Court– Order as prayed.
Mr. Gbadamosi – It is the same Statement of Claim
TRIAL
Case witness: Miss Ajibike Falm, sworn on the Koran and states in English language.
* … I have documents listed.
Mr. Gbadamosi– I wish to tender them as listed.
Mrs. Olude – No Objection.
Court – All the 5 documents listed in the Claimant’s list of Exhibits to be relied upon at the trial – – are hereby admitted in evidence and marked Exhibits 1 – 5 respectively.
CROSS-EXAMINATION
NIL
Court – Cross-examination is closed. Witness is discharged.
Please open your defence.
Mrs. Olude – I crave your indulgence of the Court for a short adjournment.
Court – The Defendant is in Court and it is just for her to adopt her Examination in Chief, which is already before the Court. Open the defence.
Defence
Defendant: sworn on the Holy Bible and stated in English Language.
* My name is Adeola Adelekan – – – I have a list of documents I wish to rely on.
Mrs. Olude – I will send in the 3rd Document later.
Mr. Gbadamosi – No objection so that the case can move on. I confirm the documents and l have no objection.
Court – All the 8 documents listed in the Defendant’s list of documents to be relied upon at the trial are hereby admitted in evidence and marked Exhibits D1- D8 resp.
CROSS-EXAMINATION
(Witness cross-examined by Mr. Gbadamosi)
Mr. Gbadamosi–That is all. No re-examination.
Court – Witness is discharged. Parties are enjoined to file in their final written addresses within the time enjoined by the Rules. Case is adjourned to Thursday, 23rd June for possible adoption of final written addresses”.
Meanwhile, the Appellant had filed the Application that led to this appeal, and she averred in paragraphs 9 to 33 of the Affidavit in support of same that –
9. On 2/2/2011, [her] Counsel was present in Court, however, matters could not proceed as the Respondents’ Counsel informed the Court by way of his letter dated 2/2/2011 of the death of his 18 year old daughter. The suit was consequently adjourned to 9/3/2011, a date suggested by the Respondent’s Counsel in his said letter.
10. On 9/3/2011 her Counsel by a Motion on Notice dated 8/3/2011 informed the Court of its decision to withdraw its representation on [her] behalf in this suit.
11. Further to the above, [she] duly informed the Court that [she] became aware of [her] Counsel’s intention to withdraw its representation, just 2 days before and – – craved [its] indulgence to grant [her] enough time to source another legal representative.
12. The Hon. Court informed [her] that [her] Counsel remains the Counsel on record and the said Counsel’s Motion was struck out by the Hon. Court on grounds that it ought to have been filed at least 3 days before its hearing.
13. [She] was surprised that the Hon. Court struck out the said Motion on Notice dated 8/3/2011 even when a date had not been fixed for its hearing.
14. In addition to the above, the Hon. Court noted that the Respondents’ Reply to her Statement of Defence was filed out of time and penalty fees ought to be paid in respect of same in compliance with the Rules of Court. The suit was therefore adjourned to 12/4/2011 for trial subject to the Respondents’ payment of the penalty fees.
15. Thereafter, [she] pleaded with [her] Counsel to remain as Legal representative [and her] Counsel therefore agreed.
16. Accordingly, [her] Counsel filed an application dated 2/3/2011 to amend the Statement of Defence.
17. Naturally, it was expected that the application for amendment would be taken on the next adjourned date and the Respondents’ Counsel would then exercise his right of Reply.
18. On 12/4/2011 [her] Counsel informed the Court of [her] application to amend her Statement of Defence dated 2/3/2011. The said application was duly argued and granted by the Hon. Court.
19. Further to the above, the Respondents’ counsel informed the Court that the matter was adjourned for trial and was ready to proceed. However, [her] counsel duly informed the Court that the commencement of trial was subject to the Respondents payment of penalty fees mentioned in paragraph 14 above.
20. It was at that point that the Respondents’ counsel informed the Court of [their] compliance with the Rules of Court and the Hon. Court confirmed the payment.
21. The Hon. Court ordered that the Respondents’ Witness be put in the witness box and the said witness led evidence in chief
22. Subsequently [her] counsel informed the Court that she would not be able to conduct the cross-examination of the Respondents’ Witness as she did not have the instruction to do so and that her principal in chambers would want to conduct the trial of the suit.
However, the Hon. Court insisted that she conduct the cross-Examination or [her] case will be closed.
23. In light of paragraphs 9-14 of this affidavit, it is clear that her counsel has diligently pursued the prosecution of this case and at no time was the suit adjourned at the instance of her counsel.
24. [Her] counsel informed the Court that she did not have the instruction to conduct the Cross-Examination of the Respondents’ witness and sought an adjournment for Cross-Examination of the Respondents’ witness. However, the court refused the application for adjournment and thereupon closed the Respondents’ case and ordered that [she] be put in the Witness box.
25. Further to the above, upon close of the Respondents’ case, her counsel again sought a short adjournment for the Defence to open its case especially on grounds that the original documents intended to be relied upon by [her] were not readily available in Court in light of the fact that they did not anticipate that trial would commence on that day. Yet again the Hon. Court insisted that [her] counsel examine [her] in Chief and that the Hon. Court would not adjourn the matter.
26. Similarly, since pleading had not closed, it was rightly assumed that trial would not commence on that date.
27. Despite the unavailability of the documents in Court, the Hon. Court offered to accept photocopies of the said documents for identification subject to the consent of the Respondents’ counsel. The Respondents’ counsel had no objection and the Hon. Court accepted the copies and same were marked as Exhibit D1-D8.
28. The Hon. Court further ordered that [her] counsel forward the original of the documents to the Court vide a written letter.
29. Subsequently, the Respondents’ counsel Cross-Examination [her].
30. Consequently, the Hon. Court closed [her] case and adjourned the suit to 23/6/2011 for adoption of Final Written Address.
31. Having not been given the opportunity to cross-Examine the Respondents’ witness and after due consideration of the activities that transpired in Court on 12/4/2011 [she] now finds it pertinent to recall the Respondents’ witness for Cross examination and [herself] in order to properly tender the original documents to be relied upon by her through her.
32. The recall of the Respondents’ witness and [her] will reveal more facts and evidence that would aid this Hon. Court in the effective determination of this matter and afford [her] a right of fair hearing.
33. The purpose of recalling the Respondents’ witness is to Cross-Examine the Witness on the facts deposed to in her Written Deposition on Oath dated 6/4/2009 and 4/9/2009 respectively, which are already before the Court.
In dismissing the Application, the Lower Court reasoned and held as follows-
“- – On 9/3/2011 both parties were not only present in Court but were also represented by Counsel including same Counsel for the Defendant, Mrs. O. A. Olude. She informed the Court that they had an application dated 8/3/2011, i.e. a day before, seeking to withdraw representation for the Defendant. She moved the said application but same was refused for non-compliance with Order 48 of the rules having not been brought at least 3 days before the date fixed for hearing, and the Court insisted that trial would commence as scheduled but because Claimant had not reported compliance, the matter was again for the 3rd time adjourned for trial subject to compliance, which Claimant’s counsel undertook to ensure before then. It finally came up for trial on 12/4/2011 for trial to the knowledge of the Defendant’s counsel and so the attempt to feign ignorance that the matter would indeed go on for trial is of no moment. It had been adjourned for trial the 3rd time in the presence of Defendant’s counsel, Mrs. Olude. The two witnesses by both parties were very short indeed. It is trite that under the 2004 Rules, examination in chief of witness would have been front-loaded and served on the opposite side and so technically, all that the witness is coming to do is to adopt same, tender the documents already front-loaded and be available for cross-examination. As a matter of fact, the evidence of the Claimants’ only witness lasted for barely 3 minutes after which the Defendant’s counsel was to cross-examine but she had no questions for the witness and the next stage was for the Defendant who also was in Court to open her defence by merely adopting her examination-in-chief after which she tendered 8 exhibits. Defendant’s counsel had only asked for an adjournment for the defence and not to cross-examine the only witness for the Claimant which request was denied because not only had no sufficient reason been given for this, it was most unwarranted in view of the fact that no part of the rules of the law says that trial cannot be concluded the same date it commences. Therefore there is nothing before the court to support the contention of the learned defence counsel, Mr. Dalley who had never at once appeared in this Court since the matter was re-assigned for trial after the Pre-Trial Conference and for him to make the allegations referred to by him is akin to taking the Court for a ride. I do not know what Counsel means by paragraph 26 of his Written Address to wit inter alia thus, “… in order to properly tender the original documents to be relied upon by the Defendant/Applicant”, when all the documents listed by them in the List of Documents to be relied upon at the trial have all been tendered. I am satisfied that this application is one that is employed merely to delay the conclusion of this case and same is hereby refused as unmeritorious and misconceived. I so hold”.
The Appellant submitted as follows at page 8 of her brief of argument –
It is trite law that during trial, a witness who was examined by the party who calls him must be allowed by the Court to be Cross-Examined by the other party – – In the instant case, the Respondents’ Witness adopted her deposition but was never Cross-Examined as the Appellant’s Counsel informed the Hon. Court of her lack of instruction to conduct trial and therefore, requested that the matter be adjourned for the Cross-Examination of the Respondents’ witness, however the Court insisted that she proceeded with the Cross-Examination, naturally the said Counsel refused to Cross-Examine the Respondents’ Witness, this is evidenced on page 238 of the records of Appeal where the Court stated “NIL” under Cross – Examination. Despite the Appellant’s Counsel Objection, the trial Judge proceeded and closed the case of the Claimant who had not been Cross – Examine. Thereafter that Trial Judge instructed that the Appellant’s witness who was present in Court enter the Witness box. The Appellants Counsel yet again objected and stated that she was not in a position to lead the Appellants Witness in Chief. At this point the Appellants Counsel did not have the original documents required to be tendered, and this was due to the fact that [she] did not anticipate that Trial would commence on that day. Yet again the Hon. Court insisted that [her] Counsel examine the Appellant’s Witness in Chief and that the Hon. Court would not adjourn the matter”.
The law is that a Record of Appeal is binding on the Court, parties and counsel; it is the final reference of events, step by step, that took place in the Court – see Garba v. Omokhodion (2011) 15 NWLR (Pt. 1269) 145, Ndayako & Anor. V. Mohammed & Ors. (2006) 17 NWLR (Pt. 1009) 655 SC, and Agagaraga v. FRN (2007) 2 NWLR (Pt. 1019) 586, wherein this court held as follows –
“- – The records of this appeal do not support the submission of learned counsel. Section 132 of the Evidence Act – – provides for the bindingness of the records of proceedings. – – – The records of the lower Court bind this Court. It cannot, therefore, add to nor subtract from the records before it or guess or conjecture at the contents of the record of proceedings. The written brief of the learned counsel cannot supplement the records of the lower Court“. [Per Dongban-Mensem, JCA]
In this case, I set out the proceedings of 12/4/2011 – as recorded by the Court, and it is quite glaring that the averments in paragraphs 11, 12, 19, 20, 22, 24, 25, 27 & 29 of the Affidavit in support of the Application that led to this appeal, and the above submissions of the Appellant are not borne out by the Record. The lower Court as well referred to events in its Ruling that are not on record; this is unacceptable in law, and such matters are beyond our contemplation. So, any allusion to events that are not on the Record will be discountenanced.
However, the Appellant also hinged his arguments on lack of fair hearing and referred us to the following authorities – Dingyadi V. INEC (2010) 18 NWLR (Pt. 1224) 154, Farajoye V. Hassan (2007) ALL FWLR (Pt. 368) 1070, Ajayi V. Idowu & Ors [CA/I/EPT/NA/77/08] unreported, Ayorinde V. Fayoyin (2001) FWLR (PART 75) 483, Kotoye V. CBN & Ors. (1989) 1 NWLR (PART 98) 419, Oche v. State [2007] 5 NWLR (Pt. 1027) 214, Kim V. State (1992) NWLR (Pt. 233) 12, Ogbodu V. Odogha (1967) 1 ALL NLR 173, Honey Crown Products V. Shell Electric Manufacturing (Unreported) CA/L/273/09 delivered on 15/2/13, and the case of SBN Plc. V. Crown Star & Co. Ltd. (2003) 6 NWLR (Pt. 815) 1.
She argued that the lower Court ought to have adjourned the matter in the interest of fair hearing and Justice since an order to amend her pleadings had just been granted; that she was not given an opportunity to cross-examine the Respondents’ Witness as it closed their case notwithstanding her Counsel’s applications for an adjournment in order to cross-examine the said Witness at a later date; that pleadings had not closed and it was assumed that trial would not start on 12/4/2011, but the Respondents’ witness was examined-in-chief, and the lower Court insisted she be crossed-examined immediately thereby disregarding her Counsel’s plea for an adjournment; that she was not given an opportunity to present her case in the way and manner she wished to; that she was practically forced to open her case and then the lower Court admitted and marked as Exhibits photocopies of documents to be relied upon by her having been informed that the originals were not in Court as Trial was not due to commence on that day; that it is essential for a fair trial that the parties are given equal treatment, opportunity and consideration in the conduct of their cases; that the question is not whether any injustice has been occasioned but the question of affording parties equal opportunities to be heard; and that justice must not only be done but must always be seen to have been done.
She also cited Buhari V. INEC (2008) 19 NWLR (Pt. 1120) 394 and argued that her prayer to re-call the Respondents’ Witness is borne out of a genuine need to put before the Court, the facts and evidence upon which the suit will be effectively determined by rebutting the Respondents’ witness’ depositions; and that by her Application, she wanted to cross-examine the said Witness so as to expose facts of truth that are germane in determining the suit effectively. She cited Bankole V. Dada (2003) 11 NWLR (pt. 830) 174, and Ordor v. Nwosu (1974) 12 SC 103 and submitted that her purpose of recalling the witnesses is to put some evidence before the lower Court by examining the truth in the deposition of the Respondent’s witness and to properly tender the original documents to be relied upon by her; and that the refusal of the lower Court to grant her leave to recall them has occasioned a miscarriage of justice.
But the Respondents argued that such an Application is not granted as a matter of course since the Court has the discretion to grant or refuse same but that discretion should be used judiciously and judicially, citing SPDC (Nig.) Ltd. V. Olarewaju (2003) FWLR (Pt. 140) 1640; that one of the acceptable reasons for recalling a witness is that for reasons not within the foreseeable reasoning of one party or his counsel could not ask a very important question OR where the other party raised new issues that the party applying has no opportunity to lead evidence or ask questions, citing Ogbodu V. Odogha (supra); that she did not raise substantial reasons in her Affidavit to recall their witness and the said Application is bereft of reasons why the court should exercise its discretionary power in her favour; that when a matter is fixed for trial to the knowledge of the parties, it is not for a party to request for an adjournment because counsel did not anticipate that trial would commence that day; and that her contention is not enough reason for a matter fixed for trial to be adjourned by a diligent High Court Judge, citing Agbonkpolor v. Adubor (2001) FWLR (Pt. 66) 744.
They also argued that by Order 30 Rule 12 of the High Court Rules, it is not necessary to tender originals of documents where the other party has not objected to the tendering of front – loaded copies of documents; that if it is accepted that her counsel did not have the original documents as required, it is not enough reason to adjourn the matter; that her contention that she was not given opportunity to cross-examine their witness is highly misconceived and calculated with intent to mislead this Court because she had earlier submitted that when her counsel was called upon to examine their witness, she refused; that a party, who refuses to utilize such an opportunity, cannot complain of lack of fair hearing afterwards; and that the Appellant deliberately refused to utilize the opportunity of being heard. They also submitted that the procedure for trial of this matter is regulated by the said Rules, and referred to Order 30 Rule 11(2) of the High Court of Lagos State (Civil Procedure) Rules, which says –
“Notwithstanding the provisions of sub-rule 1 above, the judge may suo motu where he considers that either party fails to conclude his case within a reasonable time, close the case for the party”.
The Respondents concluded as follows at page 13 of their brief of argument – “It is our final submission that the Appellant’s Counsel in this appeal only intended to take through the back door by her application to recall the witnesses at the trial Court what she had deliberately refused to take through the front door. Therefore, this Honourable Court should and cannot be taken for granted in this circumstance. Justice is a two – way traffic; Justice for the Claimant and Justice for the Defendant. Our Courts have come of age and does not operate at the whims and caprices of counsel or anticipation of Counsel. We therefore urge this Honourable court to affirm and uphold the Ruling of the Trial Court dated the 23rd June, 2011”.
To affirm the Ruling or not to affirm the Ruling; that is the question before us, and to answer same, we will rely on the record of the proceedings as we see it, and not what the Appellant said transpired or what the Lower Court alluded to.
Be that as it may, the Appellant’s grounds for challenging the Ruling are two-fold – that the Lower Court refused her counsel an adjournment to enable her tender original documents and cross-examine the witnesses that testified, and that the time for pleadings had not closed when the trial commenced.
The first leg relates to adjournments and it is well settled that the grant or refusal of an adjournment is entirely within the discretion of a trial Court – see Ceekay Traders Ltd. V. General Motors Co. Ltd. & Ors. (1992) 2 NWLR (pt. 222) 132 where the Supreme Court per Karibi-Whyte, JSC, elaborated as follows –
“The discretion – – must be exercised judicially and judiciously. The exercise must, however, not be capricious or for reasons, which are extraneous to the subject matter of the discretion being exercised. Generally, an appellate Court will not interfere in the discretion of the Court of trial in matters within the exercise of its discretion. The exercise of discretion in granting adjournment is a matter within the discretion of the trial Judge – – -However, where it is established on appeal that the trial Judge had acted under a misapprehension of facts or had taken irrelevant factors into consideration, the appellate Court will interfere to set it aside. It will not merely interfere because it would have acted differently in the same situation. The Court of Appeal will not substitute its own views for that of the Court of trial“.
The notable pronouncement in the above case is from Olatawura, JSC, thus –
“I quite appreciate that it is frustrating for a trial Judge to be faced with situations where parties ask for adjournments 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 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“.
As he said – delay of justice is bad but denial of justice is worse and outrageous. Thus, a Court has two competing interests to contend with when considering an application for adjournment – the need to dispose of the case speedily and the right of the Applicant to be heard on the matter. To negotiate a balance between the two competing interests, the Court must be guided by the need to do substantial justice; justice, not just for the parties but for the Court also. Justice simply means fair treatment, and the justice in any case demands that competing rights of the parties must be taken into consideration and balanced in such a way that justice is not only done but must also be seen to be done.
To this end, the Court must confine itself to the reason for the particular adjournment as the reason for one may be completely different from another. See Ashiru V. Ayoade (2006) 6 NWLR (Pt. 976) 405 and Tsokwa & Sons Ltd. V. CFAO (1993) 4 NWLR (Pt. 291) 120, where the trial Court commented that –
“Mr. Ejiofor is only trying to delay unreasonably the determination of this case. He knows that he has no witness to call. He is only trying to be clever and to further postpone the determination of this case which started since 1982. He cannot take this Court for a ride. The application is therefore refused“.
On appeal to this Court, Katsina-Alu, JCA (as he then was) observed as follows –
“These remarks – – are not borne out by the evidence. Undoubtedly the case has been on for quite some time. Be that as it may, the issue for determination at that stage was not the inordinate delay of hearing the case to conclusion but the reason for the application for adjournment on 8/5/90. The learned trial Judge has allowed the undue delay to affect the consideration of the application. He was in error. I think there were compelling reasons to grant the adjournment sought...”.
In Ceekay Traders V. General Motors (supra), the trial Court stated as follows-
“- – When the case was called, the Plaintiff or its representative was not in Court and the learned counsel for the Plaintiff asked for adjournment on the same similar reasons that the principal witness is not around. From the facts as related it is obvious that the Plaintiff is not ready to prosecute this case and it will serve no useful purpose adjourning the case“.
In the Judgment of the Supreme Court, Karibi-whyte, JSC, categorically said –
“Of course, an application for adjournment is prima facie evidence that Applicant is not ready to proceed with the case. It is clearly not conclusive. This is, however, no reason why Applicant should not be given opportunity to decide whether to proceed with his case. Counsel representing the Plaintiff is the plaintiff — – The limitations counsel may suffer from his inability to proceed with his witnesses cannot be taken advantage of in denying the Plaintiff the right to be heard. The right to be heard is a fundamental and indispensable requirement of any judicial decision. The Judge cannot assume an answer, as in [this] case, without a hearing“.
What is the situation in this case? The Court proceedings (reproduced above) are at pages 236 – 242 of the Record of Appeal. First off, the Appellant is right; the adjournments that were made in this case were never at her own instance. On 21/10/2010, her counsel was not in court, and “Mr. Gbadamosi” said –
“We were served a written notice of today. I believe they were served. I will like to have another date for trial. I shall notify my learned friend on the other side”.
The case was adjourned to 2/2/2011 for trial subject to compliance to enable the parties pay arrears of penalty fees, and “to file the affidavit of compliance”.
On the said 2/2/2011, the Appellant’s counsel told the Court that they got wind on the matter the week before and “Mr. Dally is the one in charge of the case and he would want to take it personally”. But the matter could not go on because the Respondent’s counsel sent in a letter dated 2/2/2011 to inform the Court that “his 18 year old daughter was crushed to death” on 30/1/2011. The matter was then “further adjourned to 9th March for trial”. On 9/3/2011, the Application by her counsel to withdraw their representation was struck out by the lower Court and it added that trial will commence on schedule. It asked “Mr. Gbadamosi” to put his witness on the box but he told the Court that they “have not complied with the payment of penalty”. The lower Court then adjourned the case to “Tuesday 12th April 2011 for trial subject to compliance”.
“Subject to” simply means “depending on” – see English Law Dictionary by P. H. Collin; it introduces a condition, a restriction, a limitation, a proviso – see NDIC V. Okem Enterprise (2004) 10 NWLR (Pt. 880) 107 SC. In this case, adjourning the case to 12/4/2011 for trial subject to compliance meant that the commencement of trial that day would depend on whether the arrears of penalty fees had been paid. The Appellant averred in paragraphs 19 and 20 of her supporting Affidavit that when the Respondent’s counsel told the Court that they were ready to proceed with the trial, her counsel reminded the Court that the commencement of trial was “subject to” their payment of penalty fees and that it was at that point that the Respondents’ counsel informed the Court that they had complied, and the lower Court confirmed the said payment.
But there is nothing on the record of proceedings of 12/4/2011 to show that the issue was raised before the trial commenced. With the same token, there is nothing on the Record to show that she was aware they had complied. In fact, she could not have known they had since the Affidavit of Compliance is dated 11/4/2011 – the day before the matter was to come up on 12/4/2011.
She also averred in paragraphs 16 and 17 of the said supporting Affidavit that her counsel filed an Application to amend her Statement of Defence, and “naturally it was expected that the Application for amendment would be taken on the next adjourned date and the Respondents’ counsel would then exercise his right of Reply”, which is the other leg of her complaint against the Ruling.
The Appellant’s contention is that the Lower Court ought to have, in the interest of fair hearing and justice, adjourned the matter especially when an Order for the amendment of her Statement of Defence had just been granted. I agree; however, I am not looking at this issue from the perspective of what happened on 12/4/2011 but from the angle of what the lower Court ought to have taken into account when considering the Application to recall witnesses. The Appellant had a pending Application to amend her statement of Defence and deem it as properly filed and filed. The Rules allow time for a Claimant to follow up with a Reply to the Amended Statement of Defence or amend his Statement of Claim entirely. The lower Court granted the “order as prayed”, and Mr. Gbadamosi is recorded as saying –“It is the same Statement of Claim”.
He probably meant he would not amend their Statement of Claim but I am not allowed to guess or speculate as to what he meant by what he said. There is nothing on record to explain what he meant but the Appellant’s case is that her counsel was not prepared for trial on that day since her Application for amendment had just been granted and time for pleadings had not closed.
In effect, she was laying foundation for the said Application to recall witnesses to be granted on the ground that she was not given the opportunity to present her case properly since she was stampeded into trial on 12/4/2011. It is trite that the Court must hear both sides in all material issues in the case before reaching a decision, which may be prejudicial to any party in the case – see Kotoye V. CBN & Ors (supra), and her position is that she was not heard.
I know firsthand that applications for adjournments can be frustrating, but in negotiating a balance between the need to dispose of the case speedily and the right of the Applicant to be heard on the matter, the Court is guided by the need to do substantial justice, and this would entail looking into the nature of the claim and whether the other party would be compensated by costs.
In this case, the facts on which trial was based are that the Appellant’s late husband was a tenant in the property in dispute, and she says that an offer to sell same was made on behalf of the representatives of the beneficiaries to the Estate of the late Pa Yekinni Fahm, who owned the property, and that her late husband accepted and paid the sum of N300,000.00 as consideration with the approval and consent of all the beneficiaries. However, the Respondents deny the sale of the property, and instituted the action at the Lower Court, wherein they claimed that she is still a tenant and not owner of the property.
Both sides listed the documents to be relied upon in proof of their cases, and in paragraphs 31 and 32 of the Affidavit in support of the Application that culminated in this appeal before us, the Appellant averred as follows; that –
31. Having not been given the opportunity to cross-examine the [Respondents’] witness and after due consideration of the activities that transpired in Court on 12/4/2011, the [Appellant] now finds it pertinent to recall the [Respondents’] witness for Cross examination and myself in order to properly tender the original documents to be relied upon by the [Appellant] through me.
34. The recall of the [Respondents’] witness and I will reveal more facts and evidence that would aid this Hon. Court in the effective determination of this matter and afford the [Appellant] a right of fair hearing.
However, in dismissing the Application, the Lower Court concluded as follows –
“I do not know what counsel means by stating by paragraph 26 of his written Address to wit: inter alia thus, “… in order to properly tender the original documents to be relied upon by the Defendant/Applicant”, when all the documents listed by them in the List of Documents to be relied upon at the trial have all been tendered. I am satisfied that this Application is one that is employed merely to delay the conclusion of this case and same is hereby refused as unmeritorious and misconceived. I so hold”.
I must say I do not know what the lower Court means because it is trite law that the best evidence of the contents of a document is the document itself – see Ogu V. Manid T & M Co-Op. Society (2010) LPELR – 4690(CA), Salami V. Savannah Bank (1990) 2 NWLR (Pt. 130) 106. This inexorable legal principle should have weighed more in favour of granting the Application than against it.
As the Supreme Court said in Ceekay Traders V. General Motors (supra), “counsel representing the Plaintiff is the Plaintiff [and] the limitations counsel may suffer from his inability to proceed with his witnesses cannot be taken advantage of in denying the Plaintiff the right to be heard”, which means that the Appellant’s counsel is entitled to present her case in the best possible light, and the Application aimed at rectifying matters ought to have been granted.
The lower Court was quick to strike out the Application of her counsel to withdraw its representation because it was not brought at least 3 days before the date fixed for hearing, and yet, in considering whether or not to grant the Application to recall witnesses, it failed to address its mind to the fact that the adjournment to 12/4/2011 for trial was truly made “subject to” another event – payment of penalty, and that the time allowed for pleadings had not closed.
Consequently, the interlocutory Appeal succeeds and is hereby allowed. The lower Court’s decision in its Ruling of 26/6/2011 is set aside, and the suit is remitted to the lower Court for trial before another Judge. No order on costs.
JOSEPH SHAGBOAR IKYEGH, J.C.A.: I agree with the Judgment prepared by my learned brother, Amina Adamu Augie, J.C.A. [Hon. PJ], and adopt it as my Judgment inclusive of the consequential orders contained in the said lead Judgment.
CHINWE EUGENIA IYIZOBA, J.C.A.: I read before now the judgment just delivered by my learned brother, A. A. AUGIE JCA. I agree with his reasoning and conclusions. His Lordship has as usual dealt with all the issues involved. I add the following just by way of emphasis. In the case of Odusote v. Odusote (1971) LPELR-2257 (SC) the Supreme Court per Udoma JSC observed:
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. For in matters of discretion, no one can be authority for another and “the court cannot be bound by a previous decision to exercise its discretion in a particular way, because that would be in effect putting an end to the discretion” per Kay L.J. in Jenkins v. Bushby (1881) 1 Ch. 484 @ p. 495,”
Again, in the case of University of Lagos v Aigoro [1985] 1 NWLR (Pt. 1) 143, the Supreme Court observed:
“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 sense 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.”
It is not in doubt that the Lower Court erred in its balancing exercise as clearly shown in the lead judgment of my learned brother. It is right therefore that this court should interfere with the court’s exercise of discretion. I agree that the appeal is meritorious and ought to be allowed. I also allow the appeal. I abide by the consequential orders in the lead judgment including the order as to costs.
Appearances
F. A. Falley, Esq., with Mrs. A. O. Olude For Appellant
AND
Banjo Abass, Esq. For Respondent
