ALHAJI RASHEED GBEDE & ORS. v. ALHAJI RASHEED RAMONI & ORS. (2010)

ALHAJI RASHEED GBEDE & ORS. v. ALHAJI RASHEED RAMONI & ORS.

(2010)LCN/4096(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 8th day of December, 2010

CA/I/130/2005

RATIO

FORMULATION OF ISSUES FOR DETERMINATION : CIRCUMSTANCES AN APPELLATE COURT IS AT LIBERTY TO FORMULATE ISSUES FOR DETERMINATION

In appropriate circumstances, an appellate court is at liberty to formulate issues for determination so long as they are derived from the grounds of appeal filed. See: Aduku Vs Adejoh (1994) 5 NWLR (346) 528; Barde Egwa vs Moses Ciroma Egwa (2007) 1 NWLR (1014) 71 @ 86. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.

FAIR HEARING: CONSEQUENCE OF THE DENIAL OF THE RIGHT TO FAIR HEARING

The right to fair hearing is one of the two pillars upon which the principles of natural justice rest. The two pillars are: that one must be heard in his own defence before being condemned and that no one should be a judge in his own cause. The consequence of a denial of the right to fair hearing is a nullification of the entire proceedings no matter how well conducted. See: Salu vs. Egeibon (1994) 6 NWLR (348) 23 @ 44; Adigun v. A.G. Oyo State (1987) 1 NWLR (53) 678. An allegation of denial of fair hearing goes to the root of the entire adjudication. It must therefore be considered and resolved before going into the merits of the decision appealed against. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.

DISCRETION OF THE COURT: WHETHER THE GRANT OR REFUSAL OF AN APPLICATION FOR ADJOURNMENT IS AT THE COURT’S DISCRETION

There is no doubt that the grant or refusal of an application for adjournment is at the court’s discretion. The court must however act judicially and judiciously. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.

FAIR HEARING: WHAT IS THE TEST OF FAIR HEARING

The test of fair hearing is that from the observation of any person present in court, justice must appear to have been done. The parties must be afforded equal opportunity to present their respective cases without let or hindrance. The court must be impartial without any degree of bias of the parties. See: Alsthom Vs Saraki (2005) 1 SC (Part 1) 1 @ 14 lines 40 – 43 & 15 lines 1 – 5; Isiyaku Mohammed v. Kano N. A. (1968) 1 All NLR 424; Ndukauba v. Kolomo (2005) 1 SC (Part 1) 80 @ 91 lines 5 – 16; Olumesan v. Ogundepo (1996) 2 NWLR (433) 628 @ 644 – 645 H – B. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.

INTERFERENCE WITH FINDINGS OF FACT OF A TRIAL COURT: CIRCUMSTANCES WHERE AN APPELLATE COURT HAS A DUTY TO INTERFERE WITH THE EXERCISE OF DISCRETION BY A TRIAL COURT

An appellate court would not ordinarily interfere with the exercise of discretion by a trial court. However, where as a result of such exercise, injustice is done to one of the parties or due or sufficient weight was not given to relevant or important considerations, an appellate court has a duty to interfere. see: Olumesan v. Ogundepo (supra) at 647 C – D; R. Benkay (Nig.) Ltd v. Cadbury (Nig.) Plc. (2006) 6 NWLR (976) 338 @ 367 D – E; Ejorkele v. Nwafor & Ors. (2005) 15 NWLR (1110) 418. It was held in; Kotoye v. C.B.N. (1989) l NWLR (98) 419 @ 448 B-D as follows: “For the rule of fair hearing is not a technical doctrine. It is one of substance. The question is not whether injustice has been done because of lack of hearing. It is whether a party entitled to be heard before deciding had in fact been given the opportunity of a hearing. Once an appellate court comes to the conclusion that the party was entitled to be heard before a decision was reached but was not given the opportunity of a hearing, the order or judgment thus entered is bound to be set aside. This is because such an order is against the rule of fair hearing, one of the twin pillars of justice, which is expressed by the maxim audi alteram partem.” PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.

JUSTICES

KUDIRAT M. O. KEKERE-EKUN Justice of The Court of Appeal of Nigeria

SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria

JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria

Between

ALHAJI RASHEED GBEDE & ORS. Appellant(s)

AND

ALHAJI RASHEED RAMONI & ORS. Respondent(s)

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Ogun State, Ijebu-Ode Judicial Division (hereinafter referred to as the lower court) delivered on 4/3/05.
By a writ of summons dated 6/10/03 the 1st respondent herein, as plaintiff sought the following reliefs from the lower court:
(a) A declaration that the 1st defendant is not entitled to be installed as or parade himself as the Oloritun of Idewon II, Ijebu-Ode having not been so elected.
(b) A declaration that the 1st plaintiff is the duly elected Oloritun of Idewon II, Ijebu- Ode, and should be so recognised and installed.
(c) An order of injunction restraining the 1st defendant from parading himself as Oloritun of Idewon II Community, Ijebu-Ode.
(d) An order of injunction restraining the 2nd, 3rd, 4th, 5th and 6th defendants from recognising, parading and/or installing the 1st defendant as the Oloritun of Idewon II Community, Ijebu-Ode.
(e) A declaration that the 2nd, 3rd, 4th, 5th and 6th defendants cannot act as a body, jointly or severally impose a candidate on any Quarter (Itun) as the Oloritun.
The parties filed and exchanged pleadings and the matter proceeded to trial. The plaintiffs (respondents herein) called four witnesses. The defendants (appellants herein) called two witnesses. On 22/2/05, learned counsel for the defendants wrote to the court to request an adjournment on grounds of ill health. The application was refused, the case for the defence was closed and learned counsel for the plaintiffs was called upon to address the court. Thereafter the matter was reserved for judgment. On 4/3/05 judgment was entered in favour of the plaintiffs granting all their claims.
The appellants were dissatisfied with the judgment and filed a notice of appeal dated 8/3/05 containing three grounds of appeal. The parties herein, in compliance with the rules of this court filed and exchanged their respective briefs of argument. At the hearing of the appeal on 19/10/2010 Olayinka Bolanle Esq. adopted and relied on the appellant’s brief dated and filed on 10/10/05. In adumbration of his brief he submitted that the critical aspect of the appeal is as regards the denial of fair hearing as reflected at page 64 lines 5 – 12 of the record. In support of the submissions in respect of issue 2 at paragraph 5.2 of his brief, he cited an additional authority:
Thomas Olumesan Vs Ayodele Ogundepo (1996) 2 SCNJ 172 @ 186 – 187 per Iguh, JSC. He urged the court to allow the appeal and remit the case back to the trial court for retrial before another Judge. Chief Biyi Odugbesan adopted and relied on the respondents brief dated 24/11/06 and filed on 27/11/06. It was deemed properly filed by an order of court dated 4/7/07. He urged the court to dismiss the appeal.
The appellant formulated 2 issues for determination as follows:
1. Whether having regard to the state of the pleadings and the judgment of the lower court, the trial Judge’s judgment could be sustained in law in view of the apparent breach of the appellants’ right to fair hearing.
Or
Whether the case was heard and decided on merit and the rule of fair hearing was adhered to when the appellants’ effort to present a full and proper defence was scuttled by the lower court. (Grounds 1 & 2)
2. Whether the refusal of the trial court to allow adjournment and consider the appellant’s motion on notice dated the 1st day of March, 2005 has any negative impact on the judgment of the lower court. (Ground 3)
The respondents formulated a single issue for determination thus:
“Whether the case was heard and determined on merit and the rule of fair hearing and natural justice was adhered to by the trial court as required by law.”
After a careful examination of the issues formulated by the parties, I am of the respectful view that the issues formulated by the appellant although inelegantly drafted address the issues in contention in this appeal. In appropriate circumstances, an appellate court is at liberty to formulate issues for determination so long as they are derived from the grounds of appeal filed. See: Aduku Vs Adejoh (1994) 5 NWLR (346) 528; Barde Egwa vs Moses Ciroma Egwa (2007) 1 NWLR (1014) 71 @ 86. I adopt the issues formulated by the appellant but modified thus:
1. whether the judgment of the lower court could be sustained having regard to the pleadings and the state of evidence.
2. whether the refusal of the learned trial Judge to allow an adjournment and/or to consider the appellant’s motion on notice dated the 1st day of March 2005 amounted to a breach of the appellant’s right to fair hearing.
The second issue for determination deals with the constitutional right to fair hearing. The right to fair hearing is one of the two pillars upon which the principles of natural justice rest. The two pillars are: that one must be heard in his own defence before being condemned and that no one should be a judge in his own cause. The consequence of a denial of the right to fair hearing is a nullification of the entire proceedings no matter how well conducted. See: Salu vs. Egeibon (1994) 6 NWLR (348) 23 @ 44; Adigun v. A.G. Oyo State (1987) 1 NWLR (53) 678. An allegation of denial of fair hearing goes to the root of the entire adjudication. It must therefore be considered and resolved before going into the merits of the decision appealed against. In support of this issue, learned counsel for the appellant submitted that on 3/2/05 the defence called two witnesses and the case was adjourned at the court’s instance to 22/2/05 for further hearing. Hestated that on 22/2/05 learned counsel for the defendants, Alhaji A. A. Oduwole wrote to the court to request an adjournment on grounds of ill health and also copied the plaintiffs’ counsel. He referred to the record and submitted that the request for adjournment by the defendants’ counsel on 22/2/05 was the first to be made on their behalf since the inception of the case while the plaintiffs (respondents in this appeal) had sought and been granted adjournments on at least five occasions. He referred to the letter for adjournment reproduced at page 64 of the record and noted that the defendants’ counsel had indicated that he had two suits before the court on that day in respect of which he sought an adjournment. He submitted that while the request was granted in one of the suits: HCJ/138/2004 Lateef Lawal & Anor. v. R.T.A.N.P.S & Ors. it was refused in the instant case on the ground that the learned trial Judge was about to retire. He submitted that the learned trial Judge sacrificed justice on the altar of speed and therefore failed to exercise his discretion judicially and judiciously. He submitted that the haste to dispose of the case because of his imminent retirement was inordinate. He referred to the case of: Francis Vs Osunkowo (2000) FWLR (14) 246 @ 248.
He submitted further that the court has a duty to consider and pronounce on every application filed, no matter how absurd. He referred to: Ailo Nig. Ltd. & Anor. Vs Ankpa Co-Operative Credit (2003) 9 FR Vol.9 114; Okoro v. Okoro (1998) 3 NWLR (540) 65 @ 74 B – C. He argued that the failure of the learned trial Judge to consider the motion dated 1/3/05 to enable the appellants call their remaining witnesses amounts to a fundamental procedural error and goes to the root of the court’s jurisdiction. He urged the court to resolve this issue in the appellants’ favour.
Learned counsel for the respondents argued issues one and two together. In response to the arguments in respect of the issue of fair hearing, he submitted that the closure of the appellants’ case on 22/2/05 by the learned trial Judge was neither rash nor irregular. He submitted that the decision whether or not to grant an application for adjournment is within the discretion of the court. He argued that no medical report was attached to the letter requesting an adjournment and therefore the learned trial Judge was correct when he observed that the appellants were not ready to proceed with their defence. As regards the application dated 1/3/05 said to have been filed on 4/3/05, he submitted that the application was not before the court and was not brought to the court’s attention. He contended further that the said application was not served on the respondents. He submitted that it is the duty of counsel to bring the existence of a pending application to the court’s attention. He submitted that having failed to do so, the appellants could not be heard to complain on appeal. He urged the court to resolve this issue against the appellants.
In considering this issue I consider it appropriate to reproduce the record of 22/2/05 at page 64 lines 1 – 13 of the record. It is as follows:
“In the Ijebu Ode Judicial Division
Holden at Ijebu Ode
Before the Hon. Justice T. Ibikunle Adesalu, Judge
On Tuesday the 22nd day of February, 2005
Suit No. HCJ/101/2003
Alhaji R. Ramoni & Ors. v. Alhaji R. Gbade & Ors.
Plaintiffs absent. 1st and 5th defendants present; other defendants absent.
Chief Biyi Odugbesan for plaintiffs. Alhaji Oduwole for defendants writing for an adjournment because he is sick.
Court: This is a part-heard case and in fact defence has opened and have called two defence witnesses. I am not prepared to adjourn this case. The defendants are not ready to proceed with their defence. I have little time between now and 9th March when I will retire and counsel know this. The defence of the defendants is deemed close (sic). I call upon Chief Odugbesan if he wants to address the court to do so or else I proceed to judgment.”
Two factors, are immediately apparent from the proceedings. The first is that the 1st and 5th defendants (now appellants) were physically present in court on 22/2/05. Secondly that learned trial Judge, having exercised his discretion in refusing the request for an adjournment, did not at any stage call upon them to proceed with their case in the absence of their counsel. It is necessary to also to consider the record of proceedings to determine whether there was any previous conduct by the appellants to support the finding that they were not ready to proceed with their defence. The dates on which the matter came up and what transpired are as follows:
8/10.03: Alhaji oduwole, learned counsel for the appellants, informed the court that he had just been served with the writ of summons and a motion on notice (for injunction) the previous day. He asked for time to study the motion and file a counter affidavit, if necessary. He however urged the court to grant an accelerated hearing of the substantive case rather than proceeding with the motion for injunction. The court granted the request, ordered an accelerated hearing and adjourned the case to 18/12/03 for hearing.
18/12/03: Mr. Odugbesan, learned counsel for the respondents sought an adjournment to enable him react to the joint statement of defence just served on him. The case was adjourned to 27/1/04.
27/1/04: Mr. D. T. Dawodu, holding Mr. Odugbesan’s brief requested an adjournment on the ground that Mr. Odugbesan was bereaved.
12/2/04: Trial commenced. PW1 testified, was cross-examined by Alhaji Oduwole who then sought an adjournment to enable him attend a burial.
9/3/04: Trial continued with evidence in Chief and cross-examination of PW2. Adjourned by the court to 20/5/04.
20/5/04: Mr. Odugbesan wrote to request an adjournment. Case adjourned to 14/6/04.
14/6/04: Mr. Odugbesan wrote to request an adjournment to enable him keep a medical appointment. Case adjourned to 21/7/04.
21/7/04: Mr. Odugbesan wrote to request an adjournment on the ground that he was bereaved. Case adjourned to 6/10/04
19/1/04: Evidence in chief and cross-examination of PW4. Plaintiffs’ case closed. Case adjourned to 2/2/05 for defence at court’s instance.
3/2/05: Evidence in chief and cross-examination of DW1 and DW2. Case adjourned to 22/2/05 for further hearing at the court’s instance.
22/2/05: Alhaji Oduwole wrote to request an adjournment on grounds of ill health. Defence closed. Plaintiffs’ address taken. Case adjourned for judgment.
It is evident from the record of proceedings as reflected above that from the date the case was set down for hearing there was no time the proceedings were truncated due to the inability of the appellants to go on. Even on 12/2/04 when the appellants’ counsel sought an adjournment to attend a burial, the evidence in chief of PW1 was taken and he was duly cross-examined by the appellants’ counsel. Indeed a close study of the record reveals that most of the adjournments during the course of trial were at the instance of the respondents’ counsel. There was therefore no basis for the finding of the learned trial Judge that the appellants were not prepared to proceed with their defence, particularly as the 1st and 5th defendants were present in court.
There is no doubt that the grant or refusal of an application for adjournment is at the court’s discretion. The court must however act judicially and judiciously. In the instant case, I am of the respectful view that the discretion was not so exercised. The reason of ill health was cogent enough for the court to have considered the application favourably, as the record showed diligence on the part of the defence up to that stage in defending the suit. A very short adjournment would have met the justice of the case. Having refused the application for adjournment, the learned trial Judge ought to have called on the defendants who were in court to proceed with their defence. In the event that they were unable to do so, the court would, at that stage, have been in order to close their case.
The test of fair hearing is that from the observation of any person present in court, justice must appear to have been done. Parties must be afforded equal opportunity to present their respective cases without let or hindrance. The court must be impartial without any degree of bias of the parties. See: Alsthom Vs Saraki (2005) 1 SC (Part 1) 1 @ 14 lines 40 – 43 & 15 lines 1 – 5; Isiyaku Mohammed v. Kano N. A. (1968) 1 All NLR 424; Ndukauba v. Kolomo (2005) 1 SC (Part 1) 80 @ 91 lines 5 – 16; Olumesan v. Ogundepo (1996) 2 NWLR (433) 628 @ 644 – 645 H – B. In the instant case the court was quite peremptory in the manner, in which it disposed of the case for the defence. Because of his imminent retirement, it appeared that the learned trial Judge was prepared to proceed with the hearing no matter the circumstances. I repeat part of the proceedings of 22/2/05 for emphasis. His Lordship held, inter alia:
“I am not prepared to adjourn this case. The defendants are not ready to proceed with their defence. I have little time between now and 9th March when I will retire and counsel know this. The defence of the defendants is deemed close (sic). I call upon Chief Odugbesan if he wants to address the court to do so or else I proceed to judgment.”
(Emphasis mine)
I am of the view and I do hold that by failing to call upon the defendants to proceed with the matter, if they could, in the absence of their counsel, they were denied fair hearing. The indulgence previously granted freely to the respondents was not extended to them. The imminent retirement of the learned trial Judge should not have been justification for sacrificing the appellants’ right to fair hearing. Having shown diligence in the prosecution of the case up till that time, justice demanded that they ought to have been given a further opportunity to conclude their case before the matter was reserved for judgment.
Learned counsel for the appellants has argued that the learned trial Judge failed to consider and pronounce upon an application dated 1/3/05 and filed on 4/3/05 to enable the defence call their remaining witnesses. I have carefully examined the record. The said application is not part of the record. Learned counsel also failed to show from the record that the said application was ever brought to the court’s attention. The argument in this regard therefore goes to no issue and is hereby discountenanced.
An appellate court would not ordinarily interfere with the exercise of discretion by a trial court. However, where as a result of such exercise, injustice is done to one of the parties or due or sufficient weight was not given to relevant or important considerations, an appellate court has a duty to interfere. see: Olumesan v. Ogundepo (supra) at 647 C – D; R. Benkay (Nig.) Ltd v. Cadbury (Nig.) Plc. (2006) 6 NWLR (976) 338 @ 367 D – E; Ejorkele v. Nwafor & Ors. (2005) 15 NWLR (1110) 418.
It was held in; Kotoye v. C.B.N. (1989) 1 NWLR (98) 419 @ 448 B-D as follows:
“For the rule of fair hearing is not a technical doctrine. It is one of substance. The question is not whether injustice has been done because of lack of hearing. It is whether a party entitled to be heard before deciding had in fact been given the opportunity of a hearing. Once an appellate court comes to the conclusion that the party was entitled to be heard before a decision was reached but was not given the opportunity of a hearing, the order or judgment thus entered is bound to be set aside. This is because such an order is against the rule of fair hearing, one of the twin pillars of justice, which is expressed by the maxim audi alteram partem.” In the instant case the appellants ought to have been heard before the defence was closed. There is no doubt that they were denied the right to fair hearing. It follows that the entire proceedings are a nullity and liable to be set aside. This issue is accordingly resolved in favour of the appellants.
Having resolved issue 2 in favour of the appellants’ a consideration of the first issue, which deals with the merits of the decision appealed against has become academic.
In conclusion, the appeal succeeds. It is hereby allowed. The judgment of the High court of Ogun State, Ijebu-Ode Judicial Division in Suit No.HCJ/101/2003 delivered on 4/3/05 is hereby set aside. The case is hereby remitted to the Ogun State High Court to be heard de novo by a different Judge.
The parties shall bear their respective costs in this appeal.

SIDI DAUDA BAGE, J.C.A.: I read before now the judgment just delivered by my learned brother, Kekere-Ekun, J.C.A. I agree that the trial by the lower court was vitiated by a rack of fair hearing. I therefore also allow the appeal and set aside the judgment of the court below.
I abide by the orders contained in the lead judgment and make no order as to Costs.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I had the advantage of reading in advance the pain-staking judgment just delivered by my learned brother, Kekere-Ekun, J.C.A., with which I am in complete agreement. I adopt same as mine.
It is, however, desirable to repeat by way of emphasis that adjournments are in the absolute discretion of the court. Like any discretion, it must be exercised judiciously and judicially. If done otherwise, the censure of review by the reviewing authority may have it set aside – see the lead judgment of Bello, J.S.C. in University of Lagos and Another v. Aigoro (1985) 1 NWLR (Pt.1) 143 at 148 – 149.
“The question therefore whether or not to grant an adjournment is a matter within the discretion of that court. It is well settled that if judicial discretion has been -exercised bona fide uninfluenced by irrelevant considerations and not arbitrarily or illegally by the lower court the general rule is that an appeal court will not ordinarily interfere. But there are exceptions to this rule. It is in this area that one cannot lay down a hard and fast rule as to the exercise of judicial discretion, for the moment one does that, the discretion of the judge is fettered:- see Jones v. Curling 13 Q.B.D. 262. The guiding principle in this respect is that the discretion, being judicial, must at all times be exercised not only judicially but also judiciously on sufficient materials: Saffieddine v. C.O.P. (1965) 1 All N.L.R. 54 at 56, Ugboma v. Olise (1971) 1 All N.L.R. 8. It is upon this principle that the numerous cases showing when an appeal court is entitled to impeach the exercise of judicial discretion have been founded.
Thus an appeal court may interfere with the exercise of judicial discretion if it is shown that there has been a wrongful exercise of the discretion such as where the tribunal acted under misconception of law or under misapprehension of fact in that it either gave weight to irrelevant or unproved matters or it omitted to take into account matters that are relevant or where it exercised or failed to exercise the discretion on wrong or inadequate materials and in all other cases where it is in the interest of justice to interfere: see Enrekebe v. Enekebe (1964) 1 All NLR 102 at 106, Saffieddine v. C.O.P. (supra), Demuren v. Asuni (1957) 1 All N.L.R. 94 at 101, Mobil Oil v. Federal Board of Inland Revenue (1977) 3 S.C. 97 at 141, Sonekan v. Smith (1967) 1 All N.L.R. 329 and Solanke v. Ajibola (1968) 1 All N.L.R. 45 at 52. 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:
Demuren v. Asuni (supra).”
The court below gave weight to an irrelevant factor – the imminent retirement of the learned trial judge – as one of the reasons, if not the major reason, to deny the appellants an adjournment. To use some of the words of the learned trial judge:
“I am not prepared to adjourn this case ….. I have little time between now (22.2.2005) and 9th March (9.3.2005) When I will retire and counsel knows this.”
The case could have gone on before another judge, afresh, if the learned trial judge was unable to complete it on the merits before his retirement. The reason the court below gave for refusing the request for adjournment was, in my respectful view, untenable.
Another factor was the illness of the appellants’ learned counsel. The court below failed to attach weight to it, even in the face of the opposing learned counsel not showing any objection to the request.
Undisputed illness of counsel could constitute a good ground to grant an adjournment – see Akintunde Banjoko Solake v. Augustine O. (1968) 1 All N.L.R.46, and University of Lagos v. Aigoro (supra).
Some instances in the compiled record of appeal, also, indicated that the respondents, learned counsel was indulged some adjournments by the court below. On one occasion – 27.1.04 – respondents’ learned counsel was given an adjournment on ground of bereavement’ He was, again, given an adjournment on 20.5.04, for undisclosed cause. Then on 14.6.04, the court below gave him another adjournment to enable him keep a medical appointment. Yet, again, on 21.7.04, he secured an adjournment on ground of bereavement.
In between the four adjournments granted to the respondents learned counsel in succession, the appellants’ learned counsel had one adjournment after the P.W.1. was taken and cross-examined by him. His second request for an adjournment was the one that was rejected causing the present appeal.
There was, in my respectful view, imbalance or lopsidedness in the exercise of discretion to grant the adjournments by the court below, which weighed more in favour of the respondents to the detriment of the appellants. There should be equality before the law. What is good for the goose is also good for the gander. The appellants were, in the circumstances of the case, not treated fairly by the court below. The exercise of discretion in the matter by it was, with utmost deference, arbitrary or erratic.
For the fuller and better reasons given in the vivid judgment of my learned brother, Kekere-Ekun, J.C.A. I too would allow the appeal and abide by all the consequential orders contained in the said judgment.KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Ogun State, Ijebu-Ode Judicial Division (hereinafter referred to as the lower court) delivered on 4/3/05.
By a writ of summons dated 6/10/03 the 1st respondent herein, as plaintiff sought the following reliefs from the lower court:
(a) A declaration that the 1st defendant is not entitled to be installed as or parade himself as the Oloritun of Idewon II, Ijebu-Ode having not been so elected.
(b) A declaration that the 1st plaintiff is the duly elected Oloritun of Idewon II, Ijebu- Ode, and should be so recognised and installed.
(c) An order of injunction restraining the 1st defendant from parading himself as Oloritun of Idewon II Community, Ijebu-Ode.
(d) An order of injunction restraining the 2nd, 3rd, 4th, 5th and 6th defendants from recognising, parading and/or installing the 1st defendant as the Oloritun of Idewon II Community, Ijebu-Ode.
(e) A declaration that the 2nd, 3rd, 4th, 5th and 6th defendants cannot act as a body, jointly or severally impose a candidate on any Quarter (Itun) as the Oloritun.
The parties filed and exchanged pleadings and the matter proceeded to trial. The plaintiffs (respondents herein) called four witnesses. The defendants (appellants herein) called two witnesses. On 22/2/05, learned counsel for the defendants wrote to the court to request an adjournment on grounds of ill health. The application was refused, the case for the defence was closed and learned counsel for the plaintiffs was called upon to address the court. Thereafter the matter was reserved for judgment. On 4/3/05 judgment was entered in favour of the plaintiffs granting all their claims.
The appellants were dissatisfied with the judgment and filed a notice of appeal dated 8/3/05 containing three grounds of appeal. The parties herein, in compliance with the rules of this court filed and exchanged their respective briefs of argument. At the hearing of the appeal on 19/10/2010 Olayinka Bolanle Esq. adopted and relied on the appellant’s brief dated and filed on 10/10/05. In adumbration of his brief he submitted that the critical aspect of the appeal is as regards the denial of fair hearing as reflected at page 64 lines 5 – 12 of the record. In support of the submissions in respect of issue 2 at paragraph 5.2 of his brief, he cited an additional authority:
Thomas Olumesan Vs Ayodele Ogundepo (1996) 2 SCNJ 172 @ 186 – 187 per Iguh, JSC. He urged the court to allow the appeal and remit the case back to the trial court for retrial before another Judge. Chief Biyi Odugbesan adopted and relied on the respondents brief dated 24/11/06 and filed on 27/11/06. It was deemed properly filed by an order of court dated 4/7/07. He urged the court to dismiss the appeal.
The appellant formulated 2 issues for determination as follows:
1. Whether having regard to the state of the pleadings and the judgment of the lower court, the trial Judge’s judgment could be sustained in law in view of the apparent breach of the appellants’ right to fair hearing.
Or
Whether the case was heard and decided on merit and the rule of fair hearing was adhered to when the appellants’ effort to present a full and proper defence was scuttled by the lower court. (Grounds 1 & 2)
2. Whether the refusal of the trial court to allow adjournment and consider the appellant’s motion on notice dated the 1st day of March, 2005 has any negative impact on the judgment of the lower court. (Ground 3)
The respondents formulated a single issue for determination thus:
“Whether the case was heard and determined on merit and the rule of fair hearing and natural justice was adhered to by the trial court as required by law.”
After a careful examination of the issues formulated by the parties, I am of the respectful view that the issues formulated by the appellant although inelegantly drafted address the issues in contention in this appeal. In appropriate circumstances, an appellate court is at liberty to formulate issues for determination so long as they are derived from the grounds of appeal filed. See: Aduku Vs Adejoh (1994) 5 NWLR (346) 528; Barde Egwa vs Moses Ciroma Egwa (2007) 1 NWLR (1014) 71 @ 86. I adopt the issues formulated by the appellant but modified thus:
1. whether the judgment of the lower court could be sustained having regard to the pleadings and the state of evidence.
2. whether the refusal of the learned trial Judge to allow an adjournment and/or to consider the appellant’s motion on notice dated the 1st day of March 2005 amounted to a breach of the appellant’s right to fair hearing.
The second issue for determination deals with the constitutional right to fair hearing. The right to fair hearing is one of the two pillars upon which the principles of natural justice rest. The two pillars are: that one must be heard in his own defence before being condemned and that no one should be a judge in his own cause. The consequence of a denial of the right to fair hearing is a nullification of the entire proceedings no matter how well conducted. See: Salu vs. Egeibon (1994) 6 NWLR (348) 23 @ 44; Adigun v. A.G. Oyo State (1987) 1 NWLR (53) 678. An allegation of denial of fair hearing goes to the root of the entire adjudication. It must therefore be considered and resolved before going into the merits of the decision appealed against. In support of this issue, learned counsel for the appellant submitted that on 3/2/05 the defence called two witnesses and the case was adjourned at the court’s instance to 22/2/05 for further hearing. Hestated that on 22/2/05 learned counsel for the defendants, Alhaji A. A. Oduwole wrote to the court to request an adjournment on grounds of ill health and also copied the plaintiffs’ counsel. He referred to the record and submitted that the request for adjournment by the defendants’ counsel on 22/2/05 was the first to be made on their behalf since the inception of the case while the plaintiffs (respondents in this appeal) had sought and been granted adjournments on at least five occasions. He referred to the letter for adjournment reproduced at page 64 of the record and noted that the defendants’ counsel had indicated that he had two suits before the court on that day in respect of which he sought an adjournment. He submitted that while the request was granted in one of the suits: HCJ/138/2004 Lateef Lawal & Anor. v. R.T.A.N.P.S & Ors. it was refused in the instant case on the ground that the learned trial Judge was about to retire. He submitted that the learned trial Judge sacrificed justice on the altar of speed and therefore failed to exercise his discretion judicially and judiciously. He submitted that the haste to dispose of the case because of his imminent retirement was inordinate. He referred to the case of: Francis Vs Osunkowo (2000) FWLR (14) 246 @ 248.
He submitted further that the court has a duty to consider and pronounce on every application filed, no matter how absurd. He referred to: Ailo Nig. Ltd. & Anor. Vs Ankpa Co-Operative Credit (2003) 9 FR Vol.9 114; Okoro v. Okoro (1998) 3 NWLR (540) 65 @ 74 B – C. He argued that the failure of the learned trial Judge to consider the motion dated 1/3/05 to enable the appellants call their remaining witnesses amounts to a fundamental procedural error and goes to the root of the court’s jurisdiction. He urged the court to resolve this issue in the appellants’ favour.
Learned counsel for the respondents argued issues one and two together. In response to the arguments in respect of the issue of fair hearing, he submitted that the closure of the appellants’ case on 22/2/05 by the learned trial Judge was neither rash nor irregular. He submitted that the decision whether or not to grant an application for adjournment is within the discretion of the court. He argued that no medical report was attached to the letter requesting an adjournment and therefore the learned trial Judge was correct when he observed that the appellants were not ready to proceed with their defence. As regards the application dated 1/3/05 said to have been filed on 4/3/05, he submitted that the application was not before the court and was not brought to the court’s attention. He contended further that the said application was not served on the respondents. He submitted that it is the duty of counsel to bring the existence of a pending application to the court’s attention. He submitted that having failed to do so, the appellants could not be heard to complain on appeal. He urged the court to resolve this issue against the appellants.
In considering this issue I consider it appropriate to reproduce the record of 22/2/05 at page 64 lines 1 – 13 of the record. It is as follows:
“In the Ijebu Ode Judicial Division
Holden at Ijebu Ode
Before the Hon. Justice T. Ibikunle Adesalu, Judge
On Tuesday the 22nd day of February, 2005
Suit No. HCJ/101/2003
Alhaji R. Ramoni & Ors. v. Alhaji R. Gbade & Ors.
Plaintiffs absent. 1st and 5th defendants present; other defendants absent.
Chief Biyi Odugbesan for plaintiffs. Alhaji Oduwole for defendants writing for an adjournment because he is sick.
Court: This is a part-heard case and in fact defence has opened and have called two defence witnesses. I am not prepared to adjourn this case. The defendants are not ready to proceed with their defence. I have little time between now and 9th March when I will retire and counsel know this. The defence of the defendants is deemed close (sic). I call upon Chief Odugbesan if he wants to address the court to do so or else I proceed to judgment.”
Two factors, are immediately apparent from the proceedings. The first is that the 1st and 5th defendants (now appellants) were physically present in court on 22/2/05. Secondly that learned trial Judge, having exercised his discretion in refusing the request for an adjournment, did not at any stage call upon them to proceed with their case in the absence of their counsel. It is necessary to also to consider the record of proceedings to determine whether there was any previous conduct by the appellants to support the finding that they were not ready to proceed with their defence. The dates on which the matter came up and what transpired are as follows:
8/10.03: Alhaji oduwole, learned counsel for the appellants, informed the court that he had just been served with the writ of summons and a motion on notice (for injunction) the previous day. He asked for time to study the motion and file a counter affidavit, if necessary. He however urged the court to grant an accelerated hearing of the substantive case rather than proceeding with the motion for injunction. The court granted the request, ordered an accelerated hearing and adjourned the case to 18/12/03 for hearing.
18/12/03: Mr. Odugbesan, learned counsel for the respondents sought an adjournment to enable him react to the joint statement of defence just served on him. The case was adjourned to 27/1/04.
27/1/04: Mr. D. T. Dawodu, holding Mr. Odugbesan’s brief requested an adjournment on the ground that Mr. Odugbesan was bereaved.
12/2/04: Trial commenced. PW1 testified, was cross-examined by Alhaji Oduwole who then sought an adjournment to enable him attend a burial.
9/3/04: Trial continued with evidence in Chief and cross-examination of PW2. Adjourned by the court to 20/5/04.
20/5/04: Mr. Odugbesan wrote to request an adjournment. Case adjourned to 14/6/04.
14/6/04: Mr. Odugbesan wrote to request an adjournment to enable him keep a medical appointment. Case adjourned to 21/7/04.
21/7/04: Mr. Odugbesan wrote to request an adjournment on the ground that he was bereaved. Case adjourned to 6/10/04
19/1/04: Evidence in chief and cross-examination of PW4. Plaintiffs’ case closed. Case adjourned to 2/2/05 for defence at court’s instance.
3/2/05: Evidence in chief and cross-examination of DW1 and DW2. Case adjourned to 22/2/05 for further hearing at the court’s instance.
22/2/05: Alhaji Oduwole wrote to request an adjournment on grounds of ill health. Defence closed. Plaintiffs’ address taken. Case adjourned for judgment.
It is evident from the record of proceedings as reflected above that from the date the case was set down for hearing there was no time the proceedings were truncated due to the inability of the appellants to go on. Even on 12/2/04 when the appellants’ counsel sought an adjournment to attend a burial, the evidence in chief of PW1 was taken and he was duly cross-examined by the appellants’ counsel. Indeed a close study of the record reveals that most of the adjournments during the course of trial were at the instance of the respondents’ counsel. There was therefore no basis for the finding of the learned trial Judge that the appellants were not prepared to proceed with their defence, particularly as the 1st and 5th defendants were present in court.
There is no doubt that the grant or refusal of an application for adjournment is at the court’s discretion. The court must however act judicially and judiciously. In the instant case, I am of the respectful view that the discretion was not so exercised. The reason of ill health was cogent enough for the court to have considered the application favourably, as the record showed diligence on the part of the defence up to that stage in defending the suit. A very short adjournment would have met the justice of the case. Having refused the application for adjournment, the learned trial Judge ought to have called on the defendants who were in court to proceed with their defence. In the event that they were unable to do so, the court would, at that stage, have been in order to close their case.
The test of fair hearing is that from the observation of any person present in court, justice must appear to have been done. The parties must be afforded equal opportunity to present their respective cases without let or hindrance. The court must be impartial without any degree of bias of the parties. See: Alsthom Vs Saraki (2005) 1 SC (Part 1) 1 @ 14 lines 40 – 43 & 15 lines 1 – 5; Isiyaku Mohammed v. Kano N. A. (1968) 1 All NLR 424; Ndukauba v. Kolomo (2005) 1 SC (Part 1) 80 @ 91 lines 5 – 16; Olumesan v. Ogundepo (1996) 2 NWLR (433) 628 @ 644 – 645 H – B. In the instant case the court was quite peremptory in the manner, in which it disposed of the case for the defence. Because of his imminent retirement, it appeared that the learned trial Judge was prepared to proceed with the hearing no matter the circumstances. I repeat part of the proceedings of 22/2/05 for emphasis. His Lordship held, inter alia:
“I am not prepared to adjourn this case. The defendants are not ready to proceed with their defence. I have little time between now and 9th March when I will retire and counsel know this. The defence of the defendants is deemed close (sic). I call upon Chief Odugbesan if he wants to address the court to do so or else I proceed to judgment.”
(Emphasis mine)
I am of the view and I do hold that by failing to call upon the defendants to proceed with the matter, if they could, in the absence of their counsel, they were denied fair hearing. The indulgence previously granted freely to the respondents was not extended to them. The imminent retirement of the learned trial Judge should not have been justification for sacrificing the appellants’ right to fair hearing. Having shown diligence in the prosecution of the case up till that time, justice demanded that they ought to have been given a further opportunity to conclude their case before the matter was reserved for judgment.
Learned counsel for the appellants has argued that the learned trial Judge failed to consider and pronounce upon an application dated 1/3/05 and filed on 4/3/05 to enable the defence call their remaining witnesses. I have carefully examined the record. The said application is not part of the record. Learned counsel also failed to show from the record that the said application was ever brought to the court’s attention. The argument in this regard therefore goes to no issue and is hereby discountenanced.
An appellate court would not ordinarily interfere with the exercise of discretion by a trial court. However, where as a result of such exercise, injustice is done to one of the parties or due or sufficient weight was not given to relevant or important considerations, an appellate court has a duty to interfere. see: Olumesan v. Ogundepo (supra) at 647 C – D; R. Benkay (Nig.) Ltd v. Cadbury (Nig.) Plc. (2006) 6 NWLR (976) 338 @ 367 D – E; Ejorkele v. Nwafor & Ors. (2005) 15 NWLR (1110) 418.
It was held in; Kotoye v. C.B.N. (1989) 1 NWLR (98) 419 @ 448 B-D as follows:
“For the rule of fair hearing is not a technical doctrine. It is one of substance. The question is not whether injustice has been done because of lack of hearing. It is whether a party entitled to be heard before deciding had in fact been given the opportunity of a hearing. Once an appellate court comes to the conclusion that the party was entitled to be heard before a decision was reached but was not given the opportunity of a hearing, the order or judgment thus entered is bound to be set aside. This is because such an order is against the rule of fair hearing, one of the twin pillars of justice, which is expressed by the maxim audi alteram partem.” In the instant case the appellants ought to have been heard before the defence was closed. There is no doubt that they were denied the right to fair hearing. It follows that the entire proceedings are a nullity and liable to be set aside. This issue is accordingly resolved in favour of the appellants.
Having resolved issue 2 in favour of the appellants’ a consideration of the first issue, which deals with the merits of the decision appealed against has become academic.
In conclusion, the appeal succeeds. It is hereby allowed. The judgment of the High court of Ogun State, Ijebu-Ode Judicial Division in Suit No.HCJ/101/2003 delivered on 4/3/05 is hereby set aside. The case is hereby remitted to the Ogun State High Court to be heard de novo by a different Judge.
The parties shall bear their respective costs in this appeal.

SIDI DAUDA BAGE, J.C.A.: I read before now the judgment just delivered by my learned brother, Kekere-Ekun, J.C.A. I agree that the trial by the lower court was vitiated by a lack of fair hearing. I therefore also allow the appeal and set aside the judgment of the court below.
I abide by the orders contained in the lead judgment and make no order as to Costs.