CHIEF VICTOR UMEH & ANOR. v. PROF. MAURICE IWU ORS.
(2007)LCN/2483(CA)
In The Court of Appeal of Nigeria
On Thursday, the 12th day of July, 2007
CA/A/108/07
RATIO
PRACTICE AND PROCEDURE – APPLICATION FOR ADJOURNMENT: WHAT THE COURT SHOULD BEAR IN MIND WHEN AN APPLICATION FOR ADJOURNMENT IS BROUGHT BEFORE IT
“When an application for adjournment is made as in this case, the court should bear in mind the requirement that justice should be done to both parties and that it is in the interest of justice that the hearing should not be unduly delayed. Salu v. Egeibon (1994) 6 NWLR(pt.348) 23; Creekay Traders Ltd. V. General Motors Co. Ltd. (1992) 2 NWLR (pt. 222) 132; Yisi (Nig.) Ltd. V. Trade Bank Plc. (1999) 1 NWLR (pt. 588) 646); M.F.A. v. Inongha (2005) 7 NWLR (pt. 923) 1.” PER MARY U. PETER-ODILI, J.C.A.
APPEAL – INTERFERENCE WITH THE EXERCISE OF DISCRETION: INSTANCE WHERE AN APPELLATE COURT IS EMPOWERED TO INTERFERE WITH THE EXERCISE OF DISCRETION BY THE LOWER COURT
“In an appeal in which the trial Judge exercised his discretion, the question is not whether the Judges of appeal would have exercised the discretion differently if it had attached to them, but whether the trial Judge gave weight to irrelevant or unproved matters or omitted to take into account matters that were relevant. However if it is seen that on other grounds the trial Judge’s decision would result in injustice being done, the Court of Appeal has both the power and duty to remedy it. See Evans v. Bartlem (1937) AC 473; Enekebe v. Enekebe (1964) All NLR 95. Again the Supreme Court had in Okafor v. Bendel Newspapers Corporation (1991) 7 NWLR (pt. 205) 651 warned that in an appeal against the exercise of discretion by the Lower Court, the appellate court cannot substitute its discretion for that of the court below as any interference must be based on the satisfaction by the appellate court that the discretion was exercised on wrong principles.” PER MARY U. PETER-ODILI, J.C.A.
CONSTITUTION LAW – FAIR HEARING: THE DOCTRINE OF FAIR HEARING
“Fair hearing is the bedrock of adjudication. The consequence of a breach of the rule of natural justice of fair hearing is that the proceedings in the case are null and void. See Salu v. Egeidon (1994) 6 NWLR(pt. 348) 23. The correct attitude of courts to the provisions of fair hearing is to seek after the highest possible ideal of justice and fairness and nothing short of that would suffice. See Ogboh v. F.R.N (2002) 10 NWLR (pt. 774) 21 at 37. It is because of the critical nature of fair hearing that it can neither be waived nor taken away by a statute whether expressly or by implication. See Bamgboye v. University of Ilorin (1999) 10 NWLR (pt. 622) 290.” PER MARY U. PETER-ODILI, J.C.A.
PRACTICE AND PROCEDURE – ADJOURNMENT: WHAT IS THE ATTITUDE OF THE APPELLATE COURT TOWARDS THE EXERCISE OF DISCRETION BY THE TRIAL COURT
“Since adjournment is a matter of discretion of the trial court, the attitude of an appellate court towards such an exercise of discretion has been well settled. That is to say that unless the discretion is seen to have been wrongly exercised or that the exercise was tainted with some illegality or substantial irregularity, the appellate court will in principle not interfere with such an exercise of judicial discretion. See Anyah v. A. N. N. Ltd. (1992) 6 NWLR (pt. 247) 319; Nzeribe v. Dave Engineering Co. Ltd. (1994) 8 NWLR (pt. 361) 124. A discretion is exercisable not on the mere figment of the person doing so but upon facts or circumstance necessary for the proper exercise of that discretion. Hence it is the law that a discretion should be exercised judicially and judiciously ie reasonably, in the sense that relevant matters are taken into consideration while extraneous or irrelevant matters are avoided and a decision which suits the occasion is arrived at. See CBN v. Okojie (2002) 9 NSCQR 612.” PER MARY U. PETER-ODILI, J.C.A.
JUSTICES
OLUFUNMILOLA OYEOLA ADEKEYE Justice of The Court of Appeal of Nigeria
MARY U. PETER-ODILI Justice of The Court of Appeal of Nigeria
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
Between
1. CHIEF VICTOR UMEH
2. ALHAJI SANI SHINKAFI – Appellant(s)
AND
1. PROF. MAURICE IWU
2. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
3. CHIEF CHEKWAS OKORIE
4. ALL PROGRESSIVES GRAND ALLIANCE (APGA) – Respondent(s)
MARY U. PETER-ODILI, J.C.A. (Delivering the Leading Judgment) This is an appeal against the Ruling of the Federal High Court Abuja (Coram Adah J) wherein the learned trial Court refused the Appellant’s application for -adjournment to call the rest of the Appellants’ witnesses including a witness against whom a writ of subpoena ad testificandum was issued by the Honourable Court and directed a closure of the case of the Appellants.
The Appellants being dissatisfied with the conclusion of the learned trial Court filed a Notice of Appeal containing two grounds of appeal.
FACTS:
By a writ of summons dated 23/9/2005 the 3rd and 4th Respondents commenced this suit in the Federal High Court, Abuja against the 1st and 2nd Respondents as the only Defendants. The matter was part – heard when the Appellants applied to be joined to the suit as 3rd and 4th Defendants (Appellants herein) against the wish of the plaintiffs (3rd and 4th Respondents herein). They were joined as 3rd and 4th Defendants by an order of court made on 8/5/06.
The issue before the lower court was whether in the light of the provisions of Section 222 of the 1999 Constitution, Part 111 of the Electoral Act 2002 and Article 18(1) of the Constitution of the 4th Respondent the All Progressives Grand Alliance (APGA),the 1st and 2nd Defendants/Respondents could assume the powers to pick and choose the leadership of the 4th Respondent by claiming to accord recognition to a dissident faction of the 4th Respondent at the expense of its alleged authentic leadership.
The Appellants having been joined as 3rd and 4th Defendants promptly brought an application praying the lower court to dismiss the suit on the ground that their joinder had constituted the suit into one in abuse of the process of the court. After taking arguments from counsel for the parties the lower court on 20/10/06 dismissed that application. The Appellants being dissatisfied with that ruling filed an appeal to the Court of Appeal by Notice of Appeal dated 30/10/06 and the lower court adjourned sine die to await the decision of the Court of Appeal.
The Court of Appeal granted accelerated hearing of the appeal and in its judgment dismissed the appeal as lacking in merit and directed the continuation of the hearing in the court below.
Hearing continued and on 6/2/2007 the Plaintiffs concluded its case and on 7/2/07 the 1st and 2nd Respondents, the original Defendants against whom all the claims in the suit were made, opened and closed their defence same day.
However, the 3rd and 4th Defendants (Appellants herein) opened their defence on 22/2/07 and called six witnesses, two on subpoena and on 8/3/07 P.I.N. Ikwueto SAN counsel for the 3rd and 4th Appellants informed the court that he had one more witness to call in their defence. On the subsequent adjourned date, 9/3/07 Miss Idigo from P.I.N. Ikwueto SAN informed the trial court that their witness was in the Court of Appeal with her principal and the case was adjourned to 22nd and 23rd March 2007 for continuation of defence and on 22/3/07 the learned Senior advocate for the Appellants did not call his last remaining witness rather he sought an adjournment to enable him apply for a subpoena to summon an additional witness and told the court he had two other witnesses to call.
On the 23/3/07 the subsequent adjourned date after calling two additional witnesses the learned Senior counsel for the Appellants again sought another adjournment to enable him serve the subpoena on David Ukeje, the Administrative Secretary of APGA who Appellants say had played a very significant role in the events giving rise to the subject matter of this suit.
The writ of subpoena though applied for on 15/3/2007 could not be issued until 22/3/07 and by an affidavit of non- service, the bailiff of the Federal High Court stated the reasons why the writ of subpoena issued on 22/3/07 could not be served on Mr. David Ukeje. There was non challenge to the affidavit of no-service filed by the bailiff.
At the resumed hearing on 23/3/07 the Appellants continued with their defence and called 2 witnesses. Thereafter learned counsel for the Appellants applied for an adjournment to enable the subpoena issued the previous day to be served and conclude the case of the Appellants. The learned trial court refused the adjournment prayed for and proceeded to close the case of the Appellants whilst also adjourning the case for address.
The Appellants therefore appealed against the refusal of the trial Judge to adjourn while adjourning for delivery of addresses.
The Appellants by a Brief of Argument filed on 3/6/07 posed two questions for determination which are:-
(a) Whether the learned trial court acted judiciously and judicially on the materials before it in refusing the Application for an adjournment.
(b) Whether the learned trial court was right in proceeding with the hearing of the case without affording the Appellants the right to fair hearing as guaranteed under the Constitution of the Federal Republic of Nigeria 1999.
The Respondents 1st and 2nd did not file any brief preferring to abide by whatever decision the Court would make.
The 3rd and 4th Respondents by a Brief of Argument filed on 6/6/07 and formulated two issues for determination which are as follows:-
1. Given the circumstances of this case should the Court of Appeal interfere with the exercise of the discretion of the trial court in refusing the Applicant’s application for adjournment.
2. Did the exercise of the trial Court’s discretion in refusing Appellant’s application for adjournment tantamount to denial of fair hearing in the circumstances of this case.
The 3rd and 4th Respondents however had filed a Notice of Preliminary Objection which was later incorporated into this brief.
The Appellants made a reply to this Preliminary Objection through Appellant’s Reply Brief filed on 11/6/07. It is stating the obvious in saying I shall tackle the preliminary objection first.
PRELIMINARY OBJECTION
This preliminary objection is raised on the basis that the appeal is incompetent and fundamentally defective in that the Notice of Appeal is in contravention of Section 242 of the 1999 Constitution of the Federal Republic of Nigeria as no leave was sought and obtained before this appeal was filed.
That all the Grounds of Appeal are, grounds of fact or at best grounds of mixed law and fact being that they involve questions relating to the exercise of the trial court’s discretion on an application for adjournment.
That the decision appealed against is an interlocutory decision of the Federal High Court on facts and as such by virtue of Section 15(1) of the Court of Appeal Act, 1976 appeal does not lie to the Court of Appeal without leave of either the Federal High Court or of this Court.
Mr. Uzoho, learned counsel for 3rd and 4th Respondents stated that the decision appealed against is an interlocutory decision and not a final decision. Also that the two grounds of appeal notwithstanding the title given to them are not grounds of law but are grounds of facts or at best of mixed law and facts. He referred to Section 15(1) of the Court of Appeal Act 1976. He said Section 241(1) of the 1999 Constitution has had a somewhat toning down effect on Section 15(1) of the Court of Appeal Act even though for the purposes of the instant appeal Section 15(1) of the Act still carries its full weight. He cited Ikweki v. Ebele (200S) 11 NWLR (pt. 936) 397; Onigbeden v. Balogun (1975) 1 All NLR (pt. 1) 233; Tilbury Construction Co. Ltd v. Ogunniyi (1988) 2 NWLR (pt. 74) 64; Nwadike v. Ibekwe (1987) 4 NWLR (pt. 67) 718.
Mr. Uzoho of counsel for the Respondent’s/Applicant stated that this appeal of the Appellants is against the exercise of the discretion of the trial court and so this appeal cannot be brought without the leave of court being sought and obtained. Therefore the Appellants having not obtained the leave of the Federal High Court or this court, this Appeal is incompetent and should be struck out. He cited the case of C.B.N. v. Okojie (2002) 9 NSCQR.
Learned counsel pointed out that Section 233(3) of the 1979 Constitution is the equivalent of Section 242(1) of the Constitution as applicable to the Court of Appeal.
Learned counsel for the Appellant in reply submitted that it is now firmly established that in the conduct of any proceedings, a court of trial and indeed every court is enjoined to observe the constitutional principles of fair hearing in adherence to the twin pillars of natural justice and so any judgment or ruling based on breach of the constitutional right to fair hearing as provided in Section 36 of the 1999 Constitution will not be allowed to stand on appeal. He cited Omokhodion v. Federal Republic of Nigeria (2005) 10 NWLR (pt. 934) 581 at 608.
Mr. Dodo for the Appellant stated that the crucial issue in this appeal is whether having issued a subpoena commanding the said David Ukeje to appear and testify in this case, the learned trial court acted in accordance with the dictates of fair hearing when it closed the case of the Appellant and thereby prevented the said David Ukeje from giving evidence in this case. That by closing the case of the Appellants and adjourning the case for address, the Appellants were contrary to the Constitutional right to fair hearing denied from fairly presenting their side of the case and a witness duly summoned on the application of the Appellants was shut out from the trial.
The learned SAN went on to posit that the subpoena issued on 22/3/06 it cannot be said it accorded with fair hearing for the trial court to have closed the case of the Appellants on 23/3/06 without that witness being given the opportunity to testify that it is trite that a writ of subpoena such as issued in the instant case is issued to compel the attendance of a witness and disobedience to same is punishable by committal and so it is submitted that the learned trial Judge totally failed to take into account the legal force of the subpoena already issued. He cited Halsbury’s Law of England (3rd Ed.) P. 424; Encyclopedia of Evidence law and Practice by Sir T.A. Nwamara Page 1359 para 2694 and 2696; Asein v. University of Ibadan (1994) 6 NWLR (pt. 353) 735 at 751; Isulight Nig. ltd v. Jackson (2005) 11 NWLR(pt 937) 631 at 647.
Learned counsel for Appellant contended that the position of the law is now settled that the test for determinating whether the decision of a court is final or interlocutory is to consider the nature of the order and not merely the type of proceedings. He cited Igunbor v. Ajolabi (2001) 11 NWLR (pt 723) 148 at 165; Omonuwa v. Oshodin (1985) 2 NWLR(pt. 10) 924; Akinsanya v. U.B.A. Ltd (1986) 4 NWLR (pt. 35) 283 at 298.
Mr. Dodo stated further that by the decision/order of the trial court, the appellants right to have their case fully presented before the lower court was irrevocably foreclosed by the trial court and that issue was finally determined by the order of the trial Judge and that decision qualified as a final decision. He referred to Falola v. USN Plc (2005) 7 NWLR(pt. 924) 405 at 427.
Mr. Dodo SAN stated on that the radical effect of failure to observe the constitutional provisions in Chapter IV of the 1999 Constitution entrenching the principles of fair hearing is that it is irrelevant whether the grounds of appeal under this head are grounds of law or not, the appeal lies as of right. He cited Civil Procedure in Nigeria, 2nd Edition P. 797 by Fidelis Nwadialo; Bamgboye v. University of Ilorin (1999) 10 NWLR (pt. 622) 290 at 324.
That is a summary of the submissions in respect of the preliminary object. Indeed an aggrieved person who requires leave to appeal and fails to obtain such leave before bringing such appeal the appeal is incompetent. See Onigbede v. Balogun (1975) 1 All NLR (pt.1) 232; Nwadike v. Ibekwe (1987) 4 NWLR (pt. 67) 718.
It is noted that by virtue of Section 220(1) (a) and (b) of the 1979 Constitution which is impart materia of the 1999 Constitution Section 241(1) an aggrieved person whether the issue is interlocutory or final could appeal to the Court of Appeal as of right in any civil or criminal proceeding. However under Section 241(1) of the same Constitution, an appeal shall lie subject the provisions of Section 242 from the decision of the High Court to the High Court with the leave of the High Court or the Court of Appeal. See Ikweki v. Ebele (2005) 11 NWLR (pt. 936) 397 at 422 – 423; Tilbury Construction v. Oguninyi (1988) 2 NWLR (pt 74) 62 Supreme Court.
Section 241(2) of the Constitution enumerates those decisions that court be appealed against and of right and that covers instances of questions of law alone, the interpretation or application of the Constitution, whether there has been a violation of fundamental rights or threatened violation of fundamental rights such as a breach of fair hearing. In such a case leave to appeal is not needed. See Tilbury Construction v. Ogunniyi (1988) 2 NWLR (pt. 74) 64.
A final order or judgment at law is one which brings to an end the rights of the parties in the action. It disposes of the subject matter of the controversy or determines the litigation as to all parties on the merits. On the other hand, an interlocutory order or judgment is one given in the process of the action or cause, which is only intermediate and does not finally determine the rights of the parties in the action. It is an order which determines some preliminary or subordinate issue or settles some step or question but does not adjudicate the ultimate rights of the parties in the action. However, where the order made finally determines the rights of the parties, as to the particular issue disputed, it is a final order even if arising from an interlocutory application.
Where an order of the trial court granting an application which determines the right of the parties in the application. Such an order which did not require something else to be done in answer, and without any further reference to itself or any other court of co-ordinate jurisdiction. The order of the trial court is therefore final and an appeal in the said order is as of right under Section 220(1) of the 1999 Constitution. Adeyemi v. Awobokun (1968) NWLR 289. Igunbor v. Afolabi (2001) 11 NWLR (pt. 723) 148; Akinsanya v. UBA Ltd (1986) 4 NWLR (pt. 35) 273 Supreme Court.
In determining whether or not decisions of Court of first instance are final or interlocutory, the test to be applied is that laid down in Bazsans v. Altrinchanm (1903) 1 QB 574 namely: Does the judgment or order as made, finally dispose of the rights of the parties? If it does,-then the order is a final order. If it does not it is interlocutory.
An order of court is final if the court orders something to be done according to the answer to the enquiries, without any further reference to itself. I rely on Akinsanya v. U.B.A. Ltd (1986) 4 NWLR (pt.35) 273; Ajani v. Giwa (1986) 3 NWIR (pt. 32) 796; Omonuwa v. Oshodin (1985) 2 NWIR (pt. 924).
It needs be restated that even an interlocutory decision is appealable as of right under Section 241(1) (b) of the 1999 Constitution where the grounds of appeal are grounds of law but the right of appeal in that respect only subsists where the action giving rise to the decision remains pending before the trial court so that in the event of the appeal succeeding, the court can direct the trial court to proceed with the determination of the issue on the merit. I place reliance on Attorney-General Anambra v. N.I.W.A. (2004) 3 NWLR (pt.861) 640 at 653; Akinsanya v. UBA Ltd (1986) 4 NWLR (pt. 35) 273; Saraki v. Kotoye (1992) 9 NWLR (pt. 264) 156.
The issue in controversy in this preliminary objection on the competence of the appeal is that the Appellant has come with the full confidence of the competence of the process basing their attitude to the fact that the fundamental right of the Appellant to fair hearing was jeopardised and so inspite of the matter of adjournment being interlocutory they posit their appeal is of right and no leave is required to initiate same. However the attack on that competence stems from the Respondents/Applicant being of the view that an application for adjournment as in this instance is not so covered by Section 241 (1) of the 1999 Constitution upon which an appeal against the decision of the Lower Court on the matter of application for adjournment and so such an appeal is not as of right and a lack of leave robs the Appellant of the necessary jurisdiction to proceed since the appeal would be incompetent.
Fair hearing includes the rule of audi alteram parterm, the violation of which per se has in the breach of the fundamental human right. Once the right is violated, it is immaterial whether a decision made subsequently is correct. This principle is at the heart of Nigerian judicial system. But an appellant who wishes to benefit from this principle has to attack directly the failure of the trial court to observe it. See Ikweki v. Ebete (2005) 11 NWLR (pt. 936) 397 at 431 – 432 per Ejuwunmi JSC.
In the light of the above there is no hesitation in holding that the issue at stake is that of fair hearing, too fundamental to be ignored since it is at the root of our judicial system and therefore covered under Chapter IV of the 1999 Constitution and so an appeal on a denial of fair hearing whether interlocutory or on a final decision or even upon a mixed point of law and fact would be covered by the provisions of Section 241 (1) of the 1999 Constitution and an appeal would lie as of right. Therefore this objection fails and is dismissed.
I have perused the two issues by the Appellants in their Brief and the two as couched by the Respondents 3rd and 4th and I am satisfied that each of the issues in the two Brief are substantially the same. An answer to any of the two issues whether in that of the Appellants or the Respondent would settle the other issue and lead to unnecessary repetitions and so I shall draft a single issue which would substantially give me the appropriate body of questions that would settle the dispute in this appeal one way or the other. That single issue is:
WHETHER THE LEARNED TRIAL COURT ACTED JUDICIOUSLY AND JUDICIALLY IN KEEPING WITH THE CONSTITUTIONAL RIGHT TO FAIR HEARING IN REFUSING THE APPLICATION FOR ADJOURNMENT.
Learned counsel for the Appellant stated that it is conceded that the granting of an adjournment in any case before a trial court is a matter entirely within the discretion of that court. That in matters of discretion no hard and fast rule as to the exercise of a judicial discretion can rightly be laid down for to do so will unwittingly mean that the discretion of the Judge is fettered. He cited Jones v. Curling 13 QBD 262.
Mr. Dodo stated on that the position of the law is now firmly entrenched that an exercise of discretion must not only be exercised judicially and judiciously but must take into account all the relevant materials before the court. He cited the cases of: University of Lagos v. Aigoro (1985) 1 NWLR(pt. 1) 143 at 148; Creekary Traders Ltd. V. Federal Motors Co. Ltd. (19S8) 3 NWLR (pt. 82) 347.
Learned counsel for the Appellant stated that the application for adjournment was to enable Appellant serve the subpoena which the learned trial court only issued on the 23/3/07 though same was applied for on 16/3/07. He pointed at the following facts:-
That the subpoena was issued by the court on 22/3/2007 was applied for since 16/3/07 and that the bailiff of the court swore to an affidavit giving reasons why the witness on subpoena was not served on 22/3/07 as the witness was said to have gone to court and had not returned. Exhibit D 10 admitted before the trial court was a letter written by Davie Ukeje in relation to the substratum of the issue in dispute in this case. That the need to compel. David Ukeje, a vital witness arose on 8/3/07 and the said witness sought to be called was commanded by the authority of the court by the subpoena which was yet to be served on that witness. Therefore that the discretion open to the court to adjourn or not had not been properly exercised taking into consideration the parties competing rights to justice. He cited Ajani v. Guina (1986) 3 NWLR (pt. 32) 796; Odusote v. Odusote (1972) 1 All NLR 219 at 223; Anisiuba v. Emordi (1975) 2 SC 9.
Learned counsel for the Appellant went on to say that the failure to have brought the witness on subpoena was in no way the fault of the Appellant and though the subpoena was applied for on 16/3/07 same was not issued until the 22/3/07 as it was not disputed that the learned trial judge having been transferred outside Abuja Judicial Division of the Federal High Court, did not come to court daily.
Learned counsel said this court should interfere and hold that the wrongful exercise of discretion has resulted in a manifest denial of the constitutional right to fair hearing and this occasioned a grievous miscarriage of justice that the position of the law is now cast in granite that the true test of a fair hearing is the impression of a reasonable person who was present at the trial whether from his observation, justice has been done in the case. He cited Kotoye v. CBN (1989) 1 NWLR (pt. 98) 419; MFA v. Inongha (2005) 7 NWLR (pt.923) 1; Ndukuba v. Koklomo (2005) 4 NWLR (pt. 915) 411; Agbu v. Agbu (2007 1 NWLR (pt.1016) 528 at 539; Niger Construction Ltd. v. Okugbeni (1987) 4 NWLR (pt. 67) 878; Section 36 (1) of the 1999 Constitution.
Learned counsel said a reasonable and fair minded observer who was present at the trial court on 23/3/07 would from the manner the case of the Appellants was hurriedly closed by the trial court, conclude that justice had not been done in the case. That if this court finds that there has been a violation of the rule of audi alteram parterm which per se amounts to a breach of fundamental human right, then the proper course would be for this court to put an end to the proceedings, irrespective of whatever decision the trial court will eventually deliver, as same is no decision. That this principle resides at the very core of the Nigerian judicial system. He cited Ikweki v. Ebele (2005) 11 NWLR (pt. 936) 397; State v. Onagoruwa(1992) 2 NWLR (221) 33.
Learned counsel for the Appellant further contended that whilst it is accepted that an appellate court ought in the main to be slow in interfering with the discretionary powers of a trial court, an appellate court has the power to interfere, and indeed should review the decision of the trial court where it appears that the decision would defeat or would result in injustice to one or other of the parties to the suit. He referred to Anyafulu v. Agazie (2005) 3 NWLR (pt. 912) 416; Evans v. Bartlam (1937) AC 473; Abana v. Obi (2005) 6 NWLR (pt. 920) 183 at 204.
In response learned counsel for the 3rd and 4th Respondents stated it is a well settled proposition of law in respect of which there can hardly be a departure that an Appeal Court cannot lightly interfere with the exercise of the judicial discretion of a lower court. He cited S.G.B. (Nig.) Ltd. v. Braimoh (1991) 1 NWLR (pt. 168) 428 at 436 – 437; Okafor v. Bendel Newspapers Corporation (1991) 7 NWLR (pt. 206) 651.
Learned counsel for the Respondents 3rd and 4th referred to the circumstances leading to the application for adjournment and refusal thereof, subject matter of this appeal. He stated further that since the dismissal of the Appellants’ first interlocutory appeal in the suit by the Court of Appeal on the 14/12/06 and the resumption of hearing at the trial court on 19/1/07, twelve out of the fourteen adjournments occasioned in this suit all of which were at the instance of the Appellants against whom Plaintiffs/3rd and 4th Respondents made no claims in their writ of summons and statement of claim, and who did not file any counter-claim against the Plaintiffs. That the Appellants are mere interlopers who forced their way into the suit against the wish of the Plaintiffs/3rd and 4th Respondents with the sole mission of frustrating the hearing of this suit and truncating same. That the learned trial Judge considered the entire circumstances of the case, no relevant matters were excluded and no extraneous matter and irrelevant matters introduced nor considered in the trial judge’s exercise of his discretion to refuse the Appellant’s umpteenth application for adjournment. He referred to Attorney-General Anambra State v. N.I.W.A. (2004) 3 NWLR (pt.861) 640; Shagari v. Cop. (2007) 5 NWLR (pt. 1027) 272; Enekebe v. Enekebe (1964) All NLR 95 at 96.
Learned counsel for the Respondents 3rd and 4th said the test of fair hearing is subjective and the opinion of a reasonable person formed from his observation of the proceedings as to whether justice was done. He cited Ekiyor v. Bomor (1997) 9 NWLR (pt. 519) 1; Ogbo v. F.R.N. (2002) 10 NWLR (pt. 774) 21; Afro-Continental v. Co-op. Association (2003) 5 NWLR (pt. 813) 303.
Mr. Uzoho of counsel said that a fair – minded and reasonable observer who watched the events in the proceedings of the lower court in the case would come to the inevitable conclusion that the appellants were not only afforded or given an opportunity and facilities even to a point of over-indulgence by the trial court to defend the claim which was not even against them but against the original Defendants in the suit. That rather than utilise the abundance of opportunities availed than to present their defence, the Appellants set out to frustrate and stall the proceedings in the trial court. He cited M. M. S. Ltd. V. Oteju (2005) 14 NWLR (pt. 945) 517; Zaboley Int’L Ltd. V. Omogbehin (2005) 17 NWLR (pt. 953) 200 at 222 – 223.
Learned counsel submitted that the Appellants’ Statement of Defence made no reference not even obliquely to the David Ukeje subpoenaed or the matters which they want him to testify to, nor is he a party to the proceedings. Therefore that whatever evidence the subpoenaed witnesses will give at the trial would be evidence or unpleaded facts which would go to no issue. He referred to Okoromaka v. Odiri (1995) 7 NWLR (pt. 408) 411; Atanbi v. Alao (1998) 3 NWLR (pt. 108) 118; Onibudo v. Akibu (1982) 7 SC 29; A. G. Federation v. Alkali (1972) 12 SC 29.
That the above stated fact brings to the fore the bad faith and less than Honourable and transparent reason for the adjournment to call a witness whose testimony would have had no effect whatsoever on the trial, other than to waste judicial time. That Exhibit D 10 which the Appellants say was a letter written by David Ukeje had already been admitted and one wonders what the said David Ukeje was coming to testify to. That it is trite law that oral evidence is not admissible to vary the contents of a written document already admitted by the court. He referred to Section 132 Evidence Act; Nnubia v. Attorney-General Rivers State (1999) 3 NWLR (pt. 593) 82.
Learned counsel for respondents said appellants had not discharged the burden in proof of the alleged breach of fair hearing. He cited Maikyo v. Itodo (2007) 7 NWLR (pt. 1034) 443 at 465.
I would want to start with the provision of Section 36 of the 1999 Constitution relating to fair hearing which is fundamental as the right is guaranteed by the Constitution to every citizens in Nigeria, the Supreme Law of the Country which cannot be taken away. Menakaya v. Menakaya (2001) 16 NWLR (pt. 738) 203; Ogundojin v. Adeyeim (2001) 13 NWLR (pt. 730) 403; Omokhodiom v. F.R.N. (No.2) (2005) 10 NWLR (pt. 934) 581.
The court or tribunal shall give equal treatment, opportunity and consideration to all concerned in a case. It is wrong to found a decision of a court of law on any ground in respect of which it has neither received argument from or on behalf of the parties before it nor even raised by or for the parties or either of them. See Omokhodion v. FRN (No.2) (supra). Even when a court raises a point suo motu, the parties must be given an opportunity to be heard on the point particularly the party that may suffer a loss as a result of the point raised suo motu. On no account shall a court raise a point suo motu, no matter how clear it may appear to be, and proceed to resolve it one way or the other without hearing the parties. If it does so, it will be in breach of the party’s right to fair hearing. Ntukidem v. Oko (1986) 5 NWLR (pt. 45) 909; Ogundoyin v. Adeyemi (2001) 13 NWLR (pt. 730) 403; Alli v. Alesinloye (2000) 6 NWLR (pt.660) 177; Shitta-Bey v. F.P.S.C. (1981) 1 SC 40; Saude v. Abdullahi (1989) 4 NWLR (pt. 116) 387; Ebba v. Ogodo(1984) 1 SCNLR 372; Odisae v. Agwo (1972) 1 All NLR (pt. 1) 170; Ajao v. Ashiru(1973) 11 SC23; Atanda v. Lakanmi (1974) 3 SC 109; Adejoke v. Adibi (1992) 5 NWLR (pt.242) 410; Oshodi v. Eyifunmi (2000) 13 NWLR (pt. 684) 298.
In an appeal in which the trial Judge exercised his discretion, the question is not whether the Judges of appeal would have exercised the discretion differently if it had attached to them, but whether the trial Judge gave weight to irrelevant or unproved matters or omitted to take into account matters that were relevant.
However if it is seen that on other grounds the trial Judge’s decision would result in injustice being done, the Court of Appeal has both the power and duty to remedy it. See Evans v. Bartlem (1937) AC 473; Enekebe v. Enekebe (1964) All NLR 95. Again the Supreme Court had in Okafor v. Bendel Newspapers Corporation (1991) 7 NWLR (pt. 205) 651 warned that in an appeal against the exercise of discretion by the Lower Court, the appellate court cannot substitute its discretion for that of the court below as any interference must be based on the satisfaction by the appellate court that the discretion was exercised on wrong principles.
When an application for adjournment is made as in this case, the court should bear in mind the requirement that justice should be done to both parties and that it is in the interest of justice that the hearing should not be unduly delayed. Salu v. Egeibon (1994) 6 NWLR(pt.348) 23; Creekay Traders Ltd. V. General Motors Co. Ltd. (1992) 2 NWLR (pt. 222) 132; Yisi (Nig.) Ltd. V. Trade Bank Plc. (1999) 1 NWLR (pt. 588) 646); M.F.A. v. Inongha (2005) 7 NWLR (pt. 923) 1.
Since adjournment is a matter of discretion of the trial court, the attitude of an appellate court towards such an exercise of discretion has been well settled. That is to say that unless the discretion is seen to have been wrongly exercised or that the exercise was tainted with some illegality or substantial irregularity, the appellate court will in principle not interfere with such an exercise of judicial discretion. See Anyah v. A. N. N. Ltd. (1992) 6 NWLR (pt. 247) 319; Nzeribe v. Dave Engineering Co. Ltd. (1994) 8 NWLR (pt. 361) 124.
A discretion is exercisable not on the mere figment of the person doing so but upon facts or circumstance necessary for the proper exercise of that discretion. Hence it is the law that a discretion should be exercised judicially and judiciously ie reasonably, in the sense that relevant matters are taken into consideration while extraneous or irrelevant matters are avoided and a decision which suits the occasion is arrived at. See CBN v. Okojie (2002) 9 NSCQR 612.
Where a challenge is made as to the improper exercise of discretion, it will necessarily involve facts and circumstances and it is usually at best a question of mixed law and fact. See CBN v. Okojie (2002) 9 NSCQR 612, it was held by the Supreme Court:-
“1. The decision whether or not to grant solely is the discretion of the court. But that discretion must at all times be exercised not only judicially but also judiciously. In this case, the appellant asked for an adjournment to enable him lire-adjust himself but the trial court struck out the suit without stating any reason for its order. In the circumstances, the striking out of the suit did not arise from a judicial and judicious exercise of the discretion of the court.
2. The phrase “in the interest of justice” does not mean just the interest of the applicants it also includes the interest of the respondent and the court. Consequently the grant or refusal of an application for adjournment in the interest of justice mean the grant or refusal of the adjournment in the interest of all concerned. P.428 – 429.
3. Generally, an appellate court ought to be slow in interfering with the decision of a trial court to grant or refuse an application for adjournment of a suit because it is an exercise of purely discretionary power of the trial court. However, if it appears that the decision of the trial court would defeat or would result in injustice to one or other of the parties to the suit, an appellate court has the power to review and would review the decision of the trial court. P.428″.
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 a point had in fact been given an opportunity of hearing. See Omokhodion v. FRN (NO.2) (2005) 10 NWLR (pt.934) 568; U.N.T.H.M.B. V. Nnoli (1994) 8 NWLR (pt. 363) 376; Kotoye v. CBN (1989) 1 NWLR (pt. 98) 419.
The principles of natural justice are part of the pillars that support the concept of the rule of law. They are an indispensable part of the process of adjudication in any civilised society. See Otapo v. Sunmonu (1987) 2 NWLR(pt.58) 587.
Once an appellate court comes to the conclusion that a party entitled to be heard before a decision was reached but was not given the opportunity of a hearing, the order or judgment thus entered must be set aside. This is because such an order is against the rule of fair hearing. See Kotoye v. CBN (1989) 1 NWLR (pt. 98) 419.
In this case at hand the Appellant’s point of view which has been strenuously put across is that the witness that needs to testify is vital and that the witness would not do so without a subpoena which subpoena was applied for on 16/3/07 but was not issued until 22/3/07 and the bailiff was unable to effect service as at 23/3/07 next return date of hearing. The posture of the Respondent which persuaded the learned trial judge was that the Appellants had been over-indulged in adjournment application and this was just the last straw which snapped the patience of the learned trial Judge. I must confess that the situation posed a delicate challenge to the learned trial judge. I
know that in the case: Abana v. Obi (2005) 6 NWLR (pt. 920) 193 Court of Appeal held:
“A litigant who had the opportunity to present his case before the court but fails to do so cannot be heard when he turns around to complain of the breach of his right to fair hearing”. S & D Construction Co. v. Ayoku (2003) 5 NWLR (pt. 813) 278; Mohammed v. Kpelai (2001) 6 NWLR (pt. 710) 700, Chidoka v. First City Finance (2001) 2 NWLR (pt.697) 216.
Bearing the above authorities in mind I would still go into whether or not in the circumstances of this case there was a compromise of the doctrine of fair hearing. The test of fair hearing is objective and the opinions of a reasonable person formed from his observation of the proceedings as to whether justice was done. See Zaboley Int. ‘L Ltd. V. Omogbehin (2005) 17 NWLR (pt.953) 200, Ekiyor v. Bomar (1997) 9 NWLR (pt. 519) 1; General Oil v. Ogunyade (1997) 4 NWLR (pt. 501) 613; Tunbi v. Opawole (2000)2 NWLR (Pt. 644) 275; Ndukaba v. Kalama (2005) 4 NWLR (pt. 915) 411; Olumesan v. Ogundepo (1996) 2 NWLR (pt. 433) 628.
Fair hearing is the bedrock of adjudication. The consequence of a breach of the rule of natural justice of fair hearing is that the proceedings in the case are null and void. See Salu v. Egeidon (1994) 6 NWLR(pt. 348) 23.
The correct attitude of courts to the provisions of fair hearing is to seek after the highest possible ideal of justice and fairness and nothing short of that would suffice. See Ogboh v. F.R.N (2002) 10 NWLR (pt. 774) 21 at 37.
It is because of the critical nature of fair hearing that it can neither be waived nor taken away by a statute whether expressly or by implication. See Bamgboye v. University of Ilorin (1999) 10 NWLR (pt. 622) 290.
Having explored the principles of fair hearing and by extension natural justice and the constitutional provisions and placing them alongside the specific circumstances in this case and it can be seen that the situation was neither a straight forward matter of an applicant who had been over indulged in applications for adjournment and this being one application that could not be granted. I would say that the circumstances here were special and should be so treated. I can understand the irritation of the learned trial Judge in the position he found himself particularly viewed from the perspective of the accelerated hearing in place. However one cannot ignore the fact that a subpoena applied for on 16/3/07 was issued by the same trial judge on 22/3/07 and the matter for hearing on the 23/3/97. Also the bailiff, an officer of court not that of the Appellant or counsel who had the responsibility of effecting service had not done so and had a sworn affidavit to that effect. It is therefore difficult for the trial court to be exculpated from blame in the view of the Appellants that if they were not allowed to produce this witness who is already under subpoena fair hearing had been denied. I support my conclusion in Odusote v. Odusote (1971) All NLR 221 where Supreme Court held:-
“1. 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 case can be authority for another. 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.
3. In the circumstances of this particular case the Court of Appeal was in error in refusing the application for adjournment and dismissing the appeal, especially as the Appellant was herself not present in court and there was no evidence she knew the appeal was tried for hearing that day. It could not be denied that the dismissal of the appeal in the circumstances occasioned a miscarriage of justice”.
From all that I have stated above the only justice I can see to render is to allow this appeal as I am satisfied the principle of fair hearing to the Appellants is in jeopardy. I allow the appeal and order that the learned trial judge grants the adjournment date to enable the subpoena to be served on the witness, David Ukeje so that he would testify on a stated convenient date to the trial court.
There is no order as to costs.
ADEKEYE, J.C.A.: I was privileged to read in draft the judgment just delivered by my learned brother M.U. Peter-Odili, JCA. I agree with her reasoning and conclusion. Ordinarily when a suit is filed the trial judge becomes the dominus litis and it assumes the duty and responsibility to ensure proceedings agree with the justice of the case.
In the instant case the learned trial judge had the discretion to regulate and conduct hearing in the matters before it and in the task he cannot be subjected to the whims and caprices of a counsel. It is however equally the duty of a trial judge to see that everything is done to facilitate the hearing of an action pending before it. In doing so it has to exercise a discretionary power which undoubtedly belongs to him.
Such power must be exercised so as not to impede the right of fair hearing, which is simultaneously fair trial, and a fundamental constitutional right guaranteed by the 1999 Constitution. This right covers the opportunity given to a counsel to present his case.
Green v. Green 1987 3 NWLR pt 61 pg 480;
Jonason Triangles Ltd v. C M & P Ltd 2002 15 NWLR pt 789 pg 176.
Lastly the question of adjournment is entirely within the discretion of the court and the discretion must be exercised judicially and judiciously. The exercise must however not be capricious or for
UWA, J.C.A.: I read in advance the Judgment delivered by my learned brother Mary U. Peter-Odili, JCA.
The issues were resolved in detail and I agree with the conclusion allowing the appeal. I abide by the order awarding no costs.
Appearances
P. I. N. Ikwueto San, C. I. Mbaeri Esq., J. I. Idigo (Miss), IK BozimoFor Appellant
AND
C. I. Nwako Esq. for the 1st and 2nd Respondents
Okey Uzoho Esq., Chief B. E. Ukah, J. N. Ekumankama for the 3rd and 4th RespondentsFor Respondent
