LAGOS STATE GOVERNMENT & ANOR v. BENEFICIAL ENDOWMENT LIMITED
(2018)LCN/12098(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 30th day of October, 2018
CA/L/669/2017
RATIO
COURT AND PROCEDURE: TO EXERCISE DISCRETION TO A PARTICULAR CASE
“The application of the Appellants was for a discretionary remedy from the lower Court. It is settled law that in the exercise of discretion no hard and fast rule can be laid down as to the manner of the exercise of the discretion, for once that is done, the discretion of the judex is fettered. Therefore no one case can afford a precedent for another in matters of exercise of discretion. The manner of exercise of discretion depends on the diacritical circumstances of the particular case. Howbeit, the guiding principle is that the discretion being judicial must be exercised judicially and judiciously on sufficient grounds. See UNIVERSITY OF LAGOS vs. AIGORO (1985) 1 SC 265 at 271, NNEJI vs. CHUKWU (1988) 3 NWLR (PT 87) 184 at 199 A-B andSULEMAN vs. C. O. P. PLATEAU STATE (supra)…” PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.
JUSTICE
TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria
UGOCHUKWU ANTHONY OGAKWU Justice of The Court of Appeal of Nigeria
GABRIEL OMONIYI KOLAWOLE Justice of The Court of Appeal of Nigeria
Between
1. LAGOS STATE GOVERNMENT
2. NEW TOWNS DEVELOPMENT AUTHORITYAppellant(s)
AND
BENEFICIAL ENDOWMENT LTDRespondent(s)
UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment):
The provenance of this appeal is the action before the High Court of Lagos State in SUIT No. LD/1002/2009: BENEFICIAL ENDOWMENT LTD vs. LAGOS STATE GOVERNMENT & ANOR. In the said action, the Respondent, as Claimant before the lower Court claimed the following reliefs against the Appellants herein, the Defendants at the lower Court:
A. DECLARATION that the Claimant having paid the consideration specified in the letter of Allocation Ref. No. LU/Y2/ABIJO/BLK.9/PLT266, are the rightful owners of the right of occupancy over the piece/parcel of land lying being and known as Block 9 Plot 266 Abijo GRA Scheme Lagos.
B PERPETUAL INJUNCTION restraining the Defendants from interfering with the Claimants rights and enjoyment of the said right of occupancy.
Alternatively,
A. An Order that the Claimant do recover from the Defendants jointly and severally the sum of N1,500,000 being the amount paid as purchase price to the Defendants for the piece/parcel of land lying being and known as Block 9 Plot 266 Abijo GRA Scheme Lagos.
B. Interest on the said payment at the rate of 21. 50% per annum with effect from April 2002 until complete liquidation.
C. Cost of this action. (See page 39 of the Records)
The parties filed and exchanged pleadings and the matter proceeded to trial. After the Respondent has closed its case and on the date fixed for defence to open, the Appellants sought an adjournment. The lower Court refused to grant an adjournment and proceeded to close the case for the defence and thereafter adjourned the matter for address.
The Appellants later filed an application seeking leave of Court to reopen their case so that the matter could be determined on the merits. Even though the Respondent did not oppose the application, the lower Court could not see its way clear in granting the application; it dismissed the same. The Appellants being dissatisfied with the decision of the lower Court appealed against the same. The chafed Ruling of the lower Court is at pages 75-77 of the Records of Appeal, while the Notice of Appeal is at pages 79-81 of the Records of Appeal.
Upon the compilation and transmission of the Records of Appeal, the parties filed and exchanged briefs of argument. The Appellants Brief was filed on 24th August 2015 while the Respondents Brief was filed on 10th November 2015. Both briefs were deemed as properly filed on 24th September 2018.
At the hearing of the Appeal, Mrs. O. Oyegunle, Chief State Counsel, Ministry of Justice, Lagos State, learned counsel for the Appellants adopted and relied on the Appellants Brief which was settled by A. O. Idowu, Esq., in urging the Court to allow the appeal. In the same vein, C. O. Ngoka, Esq., of counsel for the Respondent adopted and relied on the Respondents Brief settled by Mrs. Olufunmilayo Jimoh and Frances Ogie and urged the Court to dismiss the appeal.
The Appellants nominated a sole issue for determination, namely:
Whether from the circumstances of this case the Appellants/Defendants will be afforded fair hearing in the final determination of the suit at the Honourable Trial Court.
The Respondent equally crafted a sole issue for determination, as follows:
Whether or not the refusal of the Court to re-open the Defendants case amounts to denial of fair hearing.
The issues as formulated by the parties are the same two and tuppence. I however find the formulation of the issue by the Respondent apt and it is on the basis of the said issue that I would review the submissions of learned counsel and resolve this appeal.
ISSUE FOR DETERMINATION
Whether or not the refusal of the (lower) Court to re-open the Defendants (Appellants) case amounts to (a) denial of fair hearing.
SUBMISSIONS OF THE APPELLANTS COUNSEL
The Appellants submit that fair hearing is synonymous with fair trial and that the implication of the dismissal of the Appellants application to reopen their case is that only the case of the Respondent will be considered in arriving at the final determination of the suit, which will amount to a lack of fair hearing. The provisions of Section 36(1) of the 1999 Constitution and the cases of UNION BANK vs. ARIBA (2015) ALL FWLR (PT 763) 1868, OYEYEMI vs. COMMISSIONER FOR LOCAL GOVERNMENT, KWARA STATE (1992) 2 NWLR (PT 221) 661 and MOHAMMED vs. KANO NATIVE AUTHORITY (1968) 1 ALL NRL 424 were referred to.
It was submitted that the application to reopen the case sought the exercise of discretion by the lower Court, but that the lower Court failed to properly evaluate the reasons given in the supporting affidavit, which reasons were not hollow, empty, bereft of any substance, sinfully or corruptly false, incredible or improbable. The case of PROVOST, LACOED vs. EDUN (2004) 6 NWLR (PT 870) 476 was relied upon. It was stated that evaluation of evidence entails more than stating I believe or I didnt believe … and that the lower Court failed to give any reason for disbelieving the uncontroverted affidavit evidence before it. The cases of EMIRATES AIRLINE vs. MEKWUNYE (2014) LPELR 22685 (CA), OKHUAROBO vs. AIGBE (2002) 9 NWLR (PT 711) 29 at 87 and ADEJUMO vs. AYANTEGBE (1989) 3 NWLR (PT 110) 417 at 445 were cited in support.
The Appellants maintain that they held been diligent in their conduct of the case and that it was on their first application for adjournment to open their defence that the lower Court, suo motu, closed their case. It was iterated that the Respondent did not oppose the application for the case to be reopened, and that not having filed a counter affidavit, the facts in the Appellants affidavit were not disputed. It was conclusively submitted that the duty of the Court is to decide the rights of the parties and not for punish them for errors, if any, in the conduct of their cases by deciding otherwise than in accordance with their rights. This Court was urged to allow the appeal so that the Appellants can be afforded a fair hearing in the determination of the action. The case of I. I. G. (NIG) LTD vs. ALAO (1990) 3 NWLR (PT 141) 773 at 780-781 was called in aid.
SUBMISSIONS OF THE RESPONDENTS COUNSEL
The Respondent submits that the essence of fair hearing is a hearing that is fair to both parties in the action. The case of NDU vs. THE STATE (1990) 7 NWLR (PT 164) 550 was referred to. It was stated that the lower Court did not deny the Appellants fair hearing since the lower Court anchored its decision refusing the Appellants leave to reopen their defence on the fact that the Appellants had not been diligent in the conduct of the case, as a result of which the lower Court was unable to accept the contents of the Appellants affidavit as representing the true position of the matter.
The Respondent posits that the decision to adjourn a matter is discretionary and must be based on the facts and circumstances of the case since the question of stereotype or strict application of the rule of judicial precedent is of no importance in matters involving discretion. The case of SULEMAN vs. C. O. P., PLATEAU STATE (2008) 8 NWLR (PT 1089) 298 was relied upon. It was stated that adjournments are not granted as a matter of course or as of right and that sufficient materials must be provided in order to sway the Court to exercise its discretion to grant the adjournment sought. The case of NWADIOGBU vs. A. I. R. B. D. A. (2010) 19 NWLR (PT 1226) 364 at 385 was cited in support.
The Respondent further contends that the fact that it did not oppose the Appellants application to reopen its defence is of no moment. It was opined that a Court is not bound to accept the facts deposed to in an affidavit as representing the truth merely because they are uncontroverted. The cases ofEKEKEUGBO vs. FIBERESIMA (1994) 3 NWLR (PT 335) 707 and NATIONAL BANK vs.ARE BROTHERS (1977) 6 SC 97 were called in aid. It was maintained that the unchallenged affidavit must be such that supports the case of the applicant, vide OGOEJEOFO vs. OGOEJEOFO (2006) 3 NWLR (PT 966) 205. It was then asserted that the reason given for the failure of the Appellants witness to attend Court was nothing urgent or life-threatening to make it permissible for the witness to truncate a Court fixture, especially as the Court is not subservient to the Appellants.
It was conclusively submitted that the lower Court properly evaluated the affidavit evidence and record of the Court and found that the reason adduced for the absence of the Appellants witness was untenable and unacceptable.
RESOLUTION
Let me rehash the salient facts of this matter in order to properly conualize the disceptation in this appeal. On the date fixed for defence to open, the Appellants applied for an adjournment which was refused and the lower Court proceeded, suo motu, to close the case of the Appellants. The reaction of the Appellants was to file an application for leave to reopen their defence, which application was refused hence this appeal.
With due deference to the Respondent, the issue in this appeal is not whether the lower Court rightly exercised its discretion to refuse an adjournment; since this appeal is not against the refusal of the lower Court to grant the adjournment sought by the Appellants. The narrow issue in this appeal is whether the lower Court was right in its decision refusing the Appellants leave to reopen their case, which the lower Court had closed suo motu.
The application of the Appellants was for a discretionary remedy from the lower Court. It is settled law that in the exercise of discretion no hard and fast rule can be laid down as to the manner of the exercise of the discretion, for once that is done, the discretion of the judex is fettered. Therefore no one case can afford a precedent for another in matters of exercise of discretion. The manner of exercise of discretion depends on the diacritical circumstances of the particular case. Howbeit, the guiding principle is that the discretion being judicial must be exercised judicially and judiciously on sufficient grounds. See UNIVERSITY OF LAGOS vs. AIGORO (1985) 1 SC 265 at 271, NNEJI vs. CHUKWU (1988) 3 NWLR (PT 87) 184 at 199 A-B andSULEMAN vs. C. O. P. PLATEAU STATE (supra).
An exercise of discretion is a liberty or a privilege to decide and act in accordance with what is fair and equitable under the peculiar circumstances of the particular case, guided by the spirit and principles of law. See THE OWNERS OF THE M. V. LUPEX vs. NIGERIAN OVERSEAS CHARTERING & SHIPPING LTD (2003) 9 MJSC 156 at 168. In OLUMEGBON vs. KAREEM (2002) 34 WRN 1 at 8, Mohammed, JSC stated:
“…judicial discretion would mean that they were to act according to the rules of reason and Justice, not according to private opinion and according to law and not humour.
The exercise of discretion being judicial and judicious implies that it must be judicial in the sense that it must not be capricious and must be for a reason connected with the case and judicious in the sense that it must be based on sound judgment marked by discretion, wisdom and good sense. See ERONINI vs. IHEUKO (1989) 3 SCNJ 13 at 141 and C. O. P. vs. AGHOLOR (2014) LPELR (23212) 1 at 19.
It is hornbook law that a discretion properly exercised will not be lightly interfered with by an appellate Court, even if the appellate Court may have exercised the discretion differently. It is only where a Court has exercised discretion under a wrong principle or mistake of law or under a misapprehension of the facts or took into account irrelevant or extraneous matters or excluded relevant matters thereby giving rise to in Justice that an appellate Court will interfere with the exercise of discretion in order to prevent in Justice. See OYEKANMI vs. NEPA (2000) 12 SCNJ 75 at 95 and T. S. A. INDUSTRIES LTD vs. KEMA INVESTMENTS LTD (2006) 2 NWLR (PT 964) 300. Therefore at the pith of the resolution of this appeal is whether the exercise of discretion by the lower Court on the state of the materials before it was a proper exercise of judicial discretion. We will find out in a trice.
In the affidavit in support of the application for leave to reopen their case, the Appellants, inter alia, deposed as follows in paragraphs 13, 14 and 16:
13. On the morning of the adjourned date, the said witness called me to say that say received an urgent call from the Governors Office to attend a meeting there at 9am in respect of encroachments and actions to be taken against the encroachers at the Abijo Scheme and that the Governor was to preside.
14. The Defence Witness is the statutory Secretary of the 2nd Defendant and her presence at the above mentioned meeting was not an act of disrespect to the Honourable Court or to the other Counsel in this matter but was also in public interest as several allottees had been displaced in the said Scheme with [sic] and this meeting was aimed to resolve the situation and avoid litigation as threatened by some of these allottees.
16. The 1st and 2nd Defendants hereby give an undertaking to proceed with this promptly [sic] with this case if this application is granted.(See page 54 of the Records)
The Respondent did not file any counter affidavit, so the above depositions remained unchallenged and uncontroverted. It is trite law that unchallenged facts in an affidavit are deemed as admitted and a Court can act upon them provided that the facts are not wilfully or corruptly false, incredible, and improbable or fall below the required standard of proof. See NEKA B. B. B. MANUFACTURING CO LTD vs. A.C.B. LTD (2004) LPELR (1982) 1 at 27-28, TANKO vs. ECHENDU (2010) LPELR (3135) 1 at 40, OGOEJEOFO vs. OGOEJEOFO (2006) LPELR (2308) 1 at 14 and FAAN vs. WAMAL EXPRESS SERVICES (NIG) LTD (2011) LPELR (1261) 1 at 14-15. In AKITI vs. OYEKUNLE (2018) LPELR (43721) 1 at 7-8, Rhodes-Vivour, JSC stated:
I must state that depositions in affidavit on material facts resolve applications in Court. Where depositions on material facts in an affidavit in support of an application are not denied by the adverse party filing a counter- affidavit, such facts not denied in the affidavit in support remain the correct position and the Court acts on them except they are moonshine.
See also THE HONDA PLACE LTD vs. GLOBE MOTOR HOLDINGS NIG LTD (2005) LPELR (3180) 1 at 33 and LAWSON-JACK vs. SPDC (2002) 7 SC (PT II) 112. I iterate that the Respondent did not file any counter affidavit; so since the facts deposed to by the Appellants were unchallenged and uncontroverted, the lower Court was enjoined by law to act on the said facts except where the facts are hokum.
In dismissing the Appellants application the lower Court stated as follows at pages 76-77 of the Records:
The Court is not bound to accept the averment in an affidavit simply because the opposite party did not file a counter affidavit, I am not prepared to accept the averments in the affidavit in support of the motion dated 28th May, 2015 as representing the true position of matter in the instant case…
The business of the Court in respect of this 2009 matter is for adoption of final address of the claimant, I am not prepared to allow the defendant to dictate how to operate this Court.
In the result, motion dated 28th May, 2015 is hereby refused and it is accordingly struck out.
It has to be remembered that the unchallenged facts deposed to by the Appellants is that their witness was not in Court to testify as she was required to be at meeting where the issue of encroachments at the Abijo Scheme was to be discussed with a view to resolving the matter and avoiding further litigation. It is instructive that the Respondents action herein is in respect of land allocation at the said Abijo Scheme. The Respondent did not challenge the facts so there were no alternative facts presenting a different scenario. The lower Court did not hold the facts as deposed to be false, improbable, incredible, moonshine or hokum, as having informed its conclusion that the facts did not represent the true position of the matter. The question then is: on what material did the lower Court arrive at what the true position of the matter was, especially when the only narrative was the meeting the Appellants witness was required to attend which made it impossible for her to attend Court to testify?
By all odds, it is lucent that the lower Court did not take into consideration the pertinent facts in the materials before it. There were no other materials before the lower Court depicting an alternative true position of the matter. The exercise of discretion by the lower Court was not a proper exercise of judicial discretion and it occasioned in Justice as it shut out the Appellants from defending the matter so that a decision could be arrived at on the merits. In such circumstances, an appellate Court will interfere:
OYEKANMI vs. NEPA (supra) and SOLANKE vs. AJIBOLA (1968) LPELR (25527) 1 at 14-15.
The exercise of discretion by the lower Court was capricious and was not for a reason connected with the case. It was definitely not based on sound judgment marked by wisdom and good sense. It was therefore not a judicial and judicious exercise of discretion as it had the effect of depriving the Appellants of their right to fair hearing in the determination of their civil rights and obligations as enshrined in Section 36 (1) of the 1999 Constitution. In the circumstances therefore, an appellate Court will interfere to set aside the wrong exercise of discretion. See DUWIN PHARMACEUTICAL AND CHEMICAL CO. LTD vs. BENEK PHARMACEUTICAL AND COSMETICS LTD (2008) LPELR (974) 1 at 43-44 and GBENEYEI vs. ISIAYEI (2014) LPELR (23216) 1 at 19. In IKENTA BEST (NIG) LTD vs. A-G RIVERS STATE (2008) LPELR (1476) 1 at 23, Tabai, JSC stated:
While the correct position of the law is that an appellate Court would not ordinarily interfere with a lower Courts exercise of its discretion, such an interference becomes necessary where the discretion was not exercised judicially and judiciously.
The interference with the exercise of discretion by the lower Court in this matter is inevitable as the lower Court did not exercise its discretion judicially and judiciously.
It seems to me that every blade of grass in the field of this judgment has been tended and groomed. It remains to conclusively state that from the totality of the foregoing, the issue for determination must be resolved in favour of the Appellants. The appeal consequently succeeds and the decision of the lower Court is hereby set aside. The Appellants application dated 28th May 2009 is granted. The Appellants are given leave to reopen their case and lead evidence in defence of the action. The case is remitted to the lower Court for accelerated hearing de novo, before another judge to be assigned by the Honourable Chief Judge of the High Court of Lagos State, not being Kasali, J. The parties are to bear their respective costs of this appeal.
TOM SHAIBU YAKUBU J.C.A.: I am in complete agreement with the resolution of the Appeal by my learned brother, UGOCHUKWU ANTHONY OGAKWU, JCA in favour of the appellant. The appeal has onions and it is accordingly, allowed.
I abide by the consequential orders contained in the lead judgment.
Each side shall bear own costs of the appeal.
GABRIEL OMONIYI KOLAWOLE, J.C.A.: I have had the privilege of a preview of the lead Judgment of my brother, UGOCHUKWU ANTHONY OGAKWU, JCA.
I am satisfied that all the relevant issues in the appeal have been exhaustively dealt with. By the analysis of the facts and application of judicially established principles garnered from decided cases, it is obvious that the learned trial judge failed to exercise his discretion in relation to the Appellants application for leave to be allowed to re-open their case which, having regard to the facts that could be gleaned from the record, judicially and judiciously.
I really do not have anything to add than to agree that the appeal is allowed, and I abide with the consequential order made directing that the substantive case be remitted back to the lower Court and be heard de-novo by another judge of the High Court of Lagos State to whom the case file shall be re-assigned by The Chief Judge of Lagos State.
Appearances:
Mrs. O. Oyegunle, Chief State Counsel, Ministry of Justice, Lagos State with her, Abdulafeez Apena, Esq., State CounselFor Appellant(s)
C. O. Ngoka, Esq. with him, Miss Omotola AderemiFor Respondent(s)
