GTB PLC v. FADCO INDUSTRIES NIGERIA LIMITED & ANOR (2013)

GTB PLC v. FADCO INDUSTRIES NIGERIA LIMITED & ANOR

(2013)LCN/6183(CA)

In The Court of Appeal of Nigeria

On Friday, the 10th day of May, 2013

CA/K/324/2001

JUSTICES

ABDU ABOKI Justice of The Court of Appeal of Nigeria

THERESA NGOLIKA ORJI ABADUA Justice of The Court of Appeal of Nigeria

ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria

Between

GUARANTY TRUST BANK PLC. Appellant(s)

AND

1. FADCO INDUSTRIES NIG. LIMITED
2. HUSSEIN FADLALLAH Respondent(s)

RATIO

WHETHER OR NOT A PRELIMINARY OBJECTION SHOULD BE ARGUED FIRST BEFORE THE SUBSTANTIVE SUIT

We have said, repeatedly, that it is wrong to raise and argue preliminary objection in the Respondent’s Brief, without, first of all, filing the Notice of the said preliminary objection, as stipulated by the Rules of this Court – order 10 Rule 1, which requires the Notice of preliminary objection to be filed in 20 copies and served on the other party, at least 3 clear days before the hearing of the Appeal. PER MBABA, J.C.A.

WHETHER OR NOT FAILURE TO FILE A PROCESS OPERATES AGAINST A PARTY WHO SEEKS TO RAISE A PRELIMINARY OBJECTION

WHETHER OR NOT ISSUES RELATING TO THE GRANT OR REFUSAL OF AN APPLICATION FOR ADJOURNMENT IS WITHIN THE DISCRETION OF THE COURT

Of course, the law is trite, and was well appreciated by learned Counsel on both sides, that issues relating to grant or refusal of adjournment is purely within the prerogative and discretion of the Court where the application for adjournment is made, and where the Court exercises its discretion, one way or the other, an appellate Court has no power to interfere with it or fault it, simply because, if it (Appellate Court) had been in a position to exercise that discretion, it would have done it differently. See the case of GROUP CAPTAIN OGAH (RTD) AND ANOR VS. MALLAM GARBA ALI GIDADO & ORS: CA/K/250/2002 and unreported decision of this Court, delivered on 1/3/2013, page 30. PER MBABA, J.C.A.

WHETHER OR NOT THE APPELLATE COURT CAN INTERFERE WITH THE AWARD OF DAMAGES BY THE TRIAL COURT

We have stated, many times, that where it is established that the award of damages was justified in law, the appellate Court is not permitted to substitute its feelings or discretion with that of the trial Court as to the amount awardable, except it is proved that the trial Court did not observe the acceptable rules/principles for making the award, namely:
(1) That the trial judge acted on a wrong principle of law
(2) That the judge made an estimate of damages which is entirely erroneous, that is which no reasonable tribunal would have made
See the case of WILLIAMS V. DAILY TIMES (1990) 1 NWLR (Pt. 124) 1.
In the case of IFEANYI CHUKWU OSONDU CO. LTD V. AKHIGBE (1999) 11 NWLR (Pt. 625) 1, the Supreme Court said:
“an appellate Court does not make it its business to interfere with general damages awarded by the trial Court unless it is satisfied that the trial judge acted in the award of such damages, upon some wrong principle or that the amount awarded was so large or so small as to make it a completely erroneous assessment of the damages.” Per UWAIFO JSC.”
That principle is applicable in every and any situation of exercise of discretion by a Lower Court. Appellate Court can only interfere, where it is establish that the Lower Court did not exercise its discretion properly, taking into consideration all the judicial procedures and the requirements of justice thereof. See the case of S & D CONSTRUCTION LTD. VS. AYOKU (2011) 13 NWLR (Pt. 1265) 487; NNPC VS. WIFCO NIG. LTD. (2011) 10 NWLR (Pt. 1255) 209; AJUWA VS. SPDCN LTD (2011) 18 NWLR (Pt. 1279) 797.

WHETHER OR NOT ADJOURNMENT IS GIVEN AS A MATTER OF COURSE

I cannot, therefore, fault the exercise of discretion of the trial Court to refuse the application for adjournment, in the circumstances. Adjournment is not given as a matter of course. Applicant must adduce tangible reason(s) to persuade the Court to exercise the discretion in his favour. See NORTH-WEST HEAVY DUTY IND. PLASTIC LTD. VS B.O. FOLARIN (1992) NWLR (Pt. 239) 54; JOEL OKUNRINBOYE EXPORT CO. LTD. VS. SKY BANK PLC. (2009) 6 NWLR (Pt. 1138) 518 at 542. PER MBABA, J.C.A.

ITA G. MBABA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the interlocutory decision of Kano State High Court in Suit No. K/561/99, delivered on 14/3/2001, by Hon. Justice Saka Yusuf, wherein the learned trial judge refused the application by the Appellant for adjournment for cross examination of a witness, and further closed the cross-examination and discharged the witness.
A brief facts of the case shows that the Respondents had claimed, as plaintiffs in the suit, the following reliefs:
“(i) Declaration that the terms and conditions stated in the guarantee dated 12th day of June, 1998 between the plaintiffs and the Defendants as well as the supplemental terms and conditions stipulated in the Defendant’s letter dated 5th November, 1998 are binding on the Defendant.
(ii) Declaration that by the express terms of the guarantee deed dated 12th day of June, 1998 and the supplemental conditions contained in the Defendant’s letter dated 5th November, 1998 in relation thereto, it is wrongful, unlawful and illegal for the Defendant to enforce the purported deed of guarantee or take any action or steps in pursuance thereof without any prior notice to the Plaintiffs.
(iii) The Plaintiffs claim jointly and severally from the Defendant the sum of N100,000.00 (One Hundred Million Naira) only being damages suffered by the Plaintiffs for breach by the Defendant of the terms and conditions of the guarantee aforesaid.
(iv) Interest on the sum claimed at 21% per annum until judgment and thereafter at 10% per annum until final liquidation of the judgment sum.
(v) A declaration that as Guarantors, the plaintiff’s liabilities to the Defendant (if any) are secondary and can only arise after the Borrower has refused and is unable to make good any duly adjudged indebtedness.
(iv) Cost of this action”.
After a series of interlocutory applications, the suit was fixed for hearing and the plaintiffs called 2nd plaintiff as their first witness, who started to give evidence on 9/2/2000, and concluded his evidence-in-chief on 10/5/2000. The case was adjourned, on the application of the Appellant’s Counsel, to 21/6/2000, for cross examination.
There is no record to show what happened on 21/6/2000, but on 24/10/2000, when the matter was further adjourned, the Appellant was not in court, neither its Counsel. Respondents’ Counsel was not happy and so told the Court that the date was taken by the Appellant, but that due to the sensitive nature of the matter he would not ask that the defence be closed. He asked for adjournment and the case was adjourned to 28/11/2000. On that date, 28/11/2000, the Appellant was absent and the case was adjourned, again, to 25/1/2001 (erroneously written as 25/1/2000) for the hearing, and notice of same was to be served on the Appellant.
There is no record of what happened on 25/1/2001, but on 1/3/2001, when the case came up for the cross examination, Counsel for the Appellant, Mr. Anthony, told the Court that they were not ready, because they received a letter of the day’s hearing about 3 weeks earlier! That application for adjournment was opposed by the Respondents’ Counsel, who told the Court that the Appellant was rather using the Police against them, while the suit was pending and while refusing to cross examine the PW1.
The Court was not happy with the development, but obliged the Appellant the adjournment, saying:
“It is the policy of the Court not to act on sentiment and always give parties every chance to prevent (sic) his or her case. If defendant, despite of what had transpeired (sic) still want another date, I will concede to the adjournment, but with a prayer for the witness that he would be free from any persecution before the adjourned date. The Counsel to the defendant should inform the Court the date convenience to him to cross examine the witness”.
To that, the Appellant’s Counsel said “The date we would be ready is 14/3/2001.”
The case was adjourned to that date. See PP23-27 of the Records of Appeal.
On 14/3/2001, Counsel for the Appellant, this time, Mr. Abu (showing they were more than one in the Chambers that defended the Appellant) appeared and said:
“The matter is for cross Examination but I am not ready as I am not feeling fine. I ask for another date.”
That application was opposed by the Respondents (Plaintiffs) Counsel, who told the Court that the PW1 had wanted to travel out of Nigeria but had to wait for the cross examination. He urged the Court to close the cross examination and discharge the PW1, if the Appellant would not cross examine him!
Mr. Abu reaction was:
“I object to the application. By my record the witness finished his evidence on 25/5/2001 (sic). Though there are occasions when the case was adjourned, but this was not because of our fault. There are occasions when the Court does not sit and when hearing notice has not been served on us. I urge the Court not to discharge the witness. I cannot see why the Counsel is now worried about my inability to go on.” (page 28 of the Record).
The learned trial Court then review the situation/submissions and ruled, inter alia,:
“…I concede that a party can not conduct a case under ill-health but the rule is that the party must satisfy the Court that he I actually ill.
There must be evidence of illness put before the Court and not evidence by submissions. The Learned Counsel who took today’s date has not satisfied the requirement of Law, since he has failed to produce tangible evidence of his illness. It is for this reason and for the fact that he has been given enough time to prepare his cross-Examinations that will make the Court to refuse the application as not being meritorious. It is hereby refused. The cross-examination of the PW1 is hereby closed and PW1 is discharged accordingly.” (page 29 of the Records)
Appellant had received the leave of the Lower Court to appeal against that Ruling (page 30 of the Records). But the Court refused a subsequent application to stay the proceeding of the case, pending the outcome of this appeal.
Appellant filed Notice and grounds of appeal on 25/5/2001 and raised 4 grounds of appeal. It also obtained the leave of this Court to file additional grounds 5 to 8 to the appeal, making a total of 8 grounds of appeal.
Appellant filed its brief of argument on 14/10/2010, with the leave of Court and distilled two (2) issues for determination, namely:
“(i) Whether the learned trial judge exercised his discretion judiciously and judicially, when he refused the application for adjournment of the cross-examination of PW1 to another date.
(ii) Whether the learned trial judge was right, when after refusing the application for adjournment, he closed the cross-examination of PW1, and discharge him, without calling on Counsel to the Appellant, who had asked for an adjournment of the proceedings to another date, to cross-examine the said witness.”
On being served with the Respondents’ Brief, Appellant filed a Reply Brief on 9/4/2013, which was deemed duly filed on 2/5/13.
The Respondents Brief was filed on 12/12/12, with the leave of Court, wherein Respondents raised a preliminary objection, saying the Notice of appeal was incompetent as it was not signed by a legal practitioner or by the Appellant, as required by law. He argued the preliminary objection on pages 3 to 7 of the Brief.
On the main appeal, Counsel for the Respondents adopted the two issues raised by Appellant for the determination of the appeal and the Respondents related the issues to the grounds of Appeal – as follows:
Issue 1 to grounds 1, 2, 3, 4, 5 and 8, and Issue 2 to grounds 3 and 6.
At the hearing of the Appeal, the parties moved this Court, accordingly, starting with the Respondents, who argued the preliminary objection first. That was on 2/5/13. (And this appeal was head together with CA/K/333/2007 – Appeal over the substantive matter – pursuant to an earlier order of this Court. It is however expedient to consider the two appeals, separately.)
The learned Counsel for the Appellant had replied to the preliminary objection raised by the Respondents in the Reply Brief. See pages 1 to 4 of the Reply Brief, filed on 9/4/13.
But I do not think we need to waste precious judicial time to consider the alleged preliminary objection, as there cannot be said to be a valid preliminary objection before us, as alleged by the Respondents.
At the hearing of the appeal, the Respondents’ Counsel was asked whether the Respondents had filed the preliminary objection, separately, and he answered in the negative, saying that the objection was raised and argued in the Respondents’ Brief.
We have said, repeatedly, that it is wrong to raise and argue preliminary objection in the Respondent’s Brief, without, first of all, filing the Notice of the said preliminary objection, as stipulated by the Rules of this Court – order 10 Rule 1, which requires the Notice of preliminary objection to be filed in 20 copies and served on the other party, at least 3 clear days before the hearing of the Appeal.

Failure to file the process (with evidence of payment of fees for the filing) always operates against the party who seeks to raise the objection, as failure to show that the process had been filed and paid for, goes to the root of the jurisdiction of the Court to entertain the application. This is because, evidence of payment of filing fees on a process filed is what breaths life into the Court process, activating the jurisdiction of the Court to entertain it. See the case of MR. JOHN AYODE VS. SPRING BANK PLC. & ANOR: CA/K/297/2006, an unreported decision of this Court, delivered on 19/4/13 (pages 7 – 8), where we state as follows:
“I think the Respondents were in grave error to have thought that arguing the preliminary objection in the Respondents’ brief, without first of all, filing the Notice of Preliminary Objection, as required by law (Order 10 Rule 1 of the Court of Appeal Rules, 2011), was okay. This Court has held, on several occasions, that the requirement of Order 10 Rule 1 of the Court of Appeal Rules, 2011 is not satisfied when the Respondent fails to file the Notice of preliminary objection. See MOYOSORE VS. GOV. KWARA STATE (2012) 5 NWLR (Pt.1293) 2442 at 269 – 270.
The Appellant, in its response to the preliminary objection, had taken it on the merits.
…I must however state that the Appellant’s Counsel did not even have to respond to the alleged preliminary objection, as he did on merit, the same not being competent, having not been formally filed before us with the filing fees paid, to activate the preliminary objection. See the case of GARBA & ORS VS. UMMUANI (2012) LPELR 9841 (CA); MOYOSORE VS GOV. KWARA STATE (2012) 5 NWLR (Pt 1293) 242 at 269 – 270; ESOHO VS ASUQUO (2007) All FWLR Pt (359) 1355; BAYERO VS. MAINASARA & SONS LTD (2006) 8 NWLR (Pt. 982) 391.”
See also the recent decision of the Supreme Court in the case of NWAOLISAH VS. NWABUFOH (2011) 14 NWLR (Pt. 1268) 600 at 641, where the apex Court referring to Order 2 Rule 9 of its Rule, said:
“… These days, preliminary objections are argued in the respondent’s brief, thereby obviating the need to file a separate notice of preliminary objection and to save time. Absence of the required notice makes the preliminary objection incompetent (MENAKAYA VS. MENAKAYA (1994) 5 NWLR (Pt. 345) 512)… A preliminary objection should only be filed against the hearing of an appeal and not against one or more grounds of appeal. This is because, if it succeeds, that is the end of the appeal: NEPA VS. ANGO (2001) 15 NWLR (Pt. 737) 627.”
The 2nd reason, I think, it is not necessary to waste time on the alleged preliminary objection is that, even at a glance, the Notice of Appeal filed by the Appellant, on pages 76 to 79 of the Records, shows a signature appended to the document at the bottom of page 79, above word. “APPELLANT.”
The said purported preliminary objection is therefore discountenanced.
Counsel for the Appellant, OLAJIDE AYODELE SAN with him AKIN AYODELE ESQ and BOLA AYODELE ESQ, (How beautiful to appear with one’s children as learned friends!) arguing the appeal, had urged us to hold that the learned trial Court exercised its discretion, wrongly, by not considering the evidence before it, in respect of the ill health of Counsel for the Appellant, when it refused the application for adjournment, to enable the PW1 to be cross-examined; that though the Appellant’s Counsel took the date for the cross-examination, the fact that it was not that same Counsel who took the date that was the one now complaining and asking for further adjournment, because he was ill, should have been considered by the trial judge; he argued that Counsel had complained of ill health and that was a reasonable excuse in the circumstances, to merit adjournment; that the trial judge failed to consider the fact that statements made by Counsel from the Bar are regarded as one made on oath by Counsel. He relied on the case of UBA PLC VS. SAMUEL IGELLE UJOR (2002) FWLR (Pt.88) 1014 at 1035 – 1036.
Counsel conceded that Appellate Court rarely interferes with the exercise of discretion by trial Court, but said that there are exceptions to the general rule and relied on the case of IKENGA FRANCIS VS. JEROME OSUNKWO & ORS (2000) 7 NWLR (Pt. 666) 564 at 579 – 580, on when the Court can depart from that general rule:
“… Where the trial judge has based the exercise of his discretion on matters extraneous to the issue before him or where he has omitted to take relevant facts into consideration, the exercise if discretion would not be bona fide and for the purpose of the issue before him the appellate Court will be entitled to interfere – JAMMAL ENGINEERING CO. LTD. VS. MISR NIG. LTD. (1972) 1 ALL NLR 322”
Counsel submitted that the refusal of the application for adjournment by the trial judge was a discretion exercised based on matters extraneous to the issue before him. He urged us to so hold.
On the second issue, Counsel submitted that the trial Court was wrong to close the cross-examination of the PW1; that he Appellant was shut out of the proceedings and thus prevented from presenting his own case at the trial through the cross-examination of PW1; that by so doing Appellant, in the circumstance, “it cannot be argued that the Appellant had a fair hearing of its case in the Court below.” He relied again on the case of IKENGA FRANCIS VS. JEROME OSUNKWO (Supra) at 582.
Counsel submitted that, after refusing the application for adjournment, the Court ought to have called on the Counsel for the Appellant to proceed with the cross-examination of PW1; that it was hasty and premature for the Court to close the cross-examination and discharge the PW1; that that shut out the Defendant (Appellant) from presenting its own side of the case through the cross-examination of the Pw1. He relied on the case of IDEMIDIA BAMAWO VS. ISAAC LAYINKA GARRICK (1995) 6 NWLR (Pt. 401) on the need for an application for adjournment to be considered on its own merits. He also relied on the case of CEEKAY TRADERS LTD. VS. GENERAL MOTORS CO. LTD. & 2 ORS (1992) 2 NWLR (Pt. 222) 132 at 148, where KAWU JSC said:
“In this case it is clear on the Record that the Appellant’s Counsel was never called upon by the learned trial judge to proceed with this case after the refusal of his application for adjournment and in my view, failure to do so on the part of the trial Court has occasioned a miscarriage of justice, In my view, it is not enough to assume that in the circumstances of a particular case, even if Counsel was called upon to proceed he would not be in a position to do so. That, in my view, would be nothing but mere speculation. It is only right and proper that before a party’s claim in a Court of law is dismissed, the party should be given opportunity of being heard…”
Counsel urged us to resolve the issues in favour of the Appellant and allow the appeal, set aside the decision of the trial Court and order for a retrial.
The Respondents’ Counsel, KAYODE AMODU ESQ., who settled the Brief of the Respondents, submitted that it is trite that adjournment of cases is done at the discretion of Court. He relied on UNIVERSITY OF ILORIN VS. OYALARA (2001) 15 NWLR (Pt.737) 684 at 703; that the trial Court has a duty to balance the competing interests of the parties while exercising its discretion on the issue of adjournment PROF. MOSES OYEWOLE FAGBULE VS. GILBERT RODRIGUES (2002) 2 NWLR (PT.765) 188 at 208.
Counsel submitted that the trial Court exercised its discretion judiciously and judicially in the circumstances, as there was nothing before the Court to show that Counsel was actually ill, and so there was nothing before the Court to enable it exercises its discretion in favour of the Appellant. Counsel relied on the case of NORTH-WEST HEAVY DUTY IND. PLASTIC LTD VS. B.O. FOLARIN (1992) NWLR (Pt. 239) 54 at 66, where this Court said:
“Indeed an adjournment is not simply granted because Counsel asked for it.
There must be sufficient materials before the Court to enable it give a ruling which must both be judicial and judicious.”
He also relied on JOEL OKUNRINBOYE EXPORT CO. LTD. VS. SKY BANK (2009) 6 NWLR (Pt. 1138) 518 at 542.
On the submission by the learned Senior Counsel that Counsel’s statement on the Bar should be taken as one on Oath, Counsel for the Respondents submitted that, that does not suggest that a Counsel can simply make bare assertions before the Court, without proof, when there is need for proof of the assertion, and expect the Court to believe it and act on it; that the Court has right to require for evidence to prove the assertion by Counsel. He relied on the case of UBA PLC. VS. UJOR (Supra).
Counsel further submitted that there was nothing to show that the trial judge based its discretion on extraneous matters; that the basis of the decision was the lack of evidence to support the assertion of ill health. He added that the appellate Court does not interfere with the exercise of discretion by a Lower Court, to grant or refuse adjournment, unless it was not exercised judiciously and judicially. He relied on the case of GODWIN OKEKE VS. MADAM EBI ORUFF (1993) 2 NWLR (Pt. 277) 622 at 635.
He urged us to resolve the issue against the Appellant, On issue 2, Counsel for the Respondent conceded that after refusal of an application for adjournment, the Court should call on the party applying to proceed with his case; that where this was not done by the trial Court, and it becomes an issue on appeal, what the appellate Court should look at should be whether the fact that the trial Court did not call upon the applying party to proceed with his case has occasioned him injustice. He tried to look at it from 2 perspectives:
(1) Where after the refusal for adjournment, the case comes to an end, that is, the refusal of adjournment puts ‘finality’ to the case and the Court proceeds to give judgment. In that case, Counsel said there will be breach and miscarriage of justice;
(2) Where, after the adjournment the case continues and the party who sought the adjournment still has opportunity to present his case – He said that in the second case, there is no miscarriage of justice.
Counsel argued that this matter falls under the 2nd class; that in this case, Appellant still had opportunity to cross-examine the PW1, as they could apply to recall him for the purpose; he asserted that there was no miscarriage of justice.
He added that the cases of IKENGA FRANCIS VS. JEROME OSUNKWO (Supra); IDEMUDIA VS. ISAAC LAYINKA GARRICK (Supra) and CEEKAY TRADERS LTD. VS. GENERAL MOTORS CO. LTD. (Supra), are not apposite to this case, as they all belong to the first category, where the refusal of adjournment led to the conclusion of the cases i.e. dismissal of the cases without hearing the Appellant.
He urged us to resolve the issue against the Appellant and dismiss the appeal.
RESOLUTION OF ISSUES
I think the two issues by the Appellant (which were adopted by the Respondents) can be merged into one, namely:
Whether the learned trial judge exercised his discretion judiciously and judicially in the circumstances of this case, when he refused the adjournment by the Appellant, closed the cross-examination of the PW1, and discharged him?
Of course, the law is trite, and was well appreciated by learned Counsel on both sides, that issues relating to grant or refusal of adjournment is purely within the prerogative and discretion of the Court where the application for adjournment is made, and where the Court exercises its discretion, one way or the other, an appellate Court has no power to interfere with it or fault it, simply because, if it (Appellate Court) had been in a position to exercise that discretion, it would have done it differently. See the case of GROUP CAPTAIN OGAH (RTD) AND ANOR VS. MALLAM GARBA ALI GIDADO & ORS: CA/K/250/2002 and unreported decision of this Court, delivered on 1/3/2013, page 30.

The duty remains that of the party trying to fault the exercise of discretion of a Court, to show that it was improperly exercised; that it did not fall within the confines of the required principles as enunciated by the Supreme Court in the recent case of AMOSHIMA VS. STATE (2011) 14 NWLR (Pt. 1268) 530 at 554, where ONNOGHEN JSC said:
“A Court must always posses judicial discretion which it is to exercise only when the interest of justice so demands. A judicial discretion ought to be founded upon the facts and circumstances presented before the Court, from which it must draw conclusion, which must be governed by the law. A judicial discretion must be exercised honestly and in the spirit of the law or statute, otherwise the exercise of such judicial discretion cannot be said to fall within the ambits of the law or statute. In making a pronouncement in the course of or after adjournment, the Court is displaying no other thing that (sic) the power which every legal authority must, of necessity, have to decide controversies between subjects or between Government and the subject. TANKO VS. STATE (2009) 4 NWLR (Pt. 1131) 430, referred to.”
The learned Senior Counsel’s main reason, advanced to fault the exercise of the discretion of the Lower Court, when it refused the application for adjournment and closed the cross-examination of PW1, is that the Court failed to consider the statement of Counsel for the appellant who applied for the adjournment, that he spoke from the Bar, and such statements are regarded as being made on Oath. He also submitted that the learned trial judge based his discretion on matters extraneous to the issue before him – that the trial judge took into consideration the fact that the date was chosen at the convenience of Counsel to the Appellant, and that the Appellant had a long period between the date the case was fixed for cross-examination and the date the cross -examination was to take place, to prepare for it.
With due respect to the learned Senior Counsel, I find it difficult to see how the first reasoning can bar the trial judge from exercising his discretion as he did, and how the second I reasoning can be extraneous to the matter (application for adjournment).
I believe in deciding whether to grant Appellant’s application for adjournment, the trial judge had a duty to consider, not only the reason posed by the applying Counsel for the adjournment, but also the attitude of the Appellant/Counsel in the prosecution of the case, right from when the PW1 concluded his evidence-in-chief.
Of course, the Respondents’ Counsel had raised the various antics, employed by the Appellant to frustrate the case, while also instigating the Police against the Respondents, while the case was pending. On an earlier date, the trial Court had to appeal to the Appellant to allow the case to progress and not to persecute the Respondents. The Court also secured the promise of the Appellant’s Counsel to ensure compliance.
On 1/3/2001, one of the dates the case was due for cross-examination of PW1, Counsel for the Appellant, ANTHONY ESQ., had refused to take up the opportunity. His flimsy reason was that they “received the letter of the day’s hearing about 3 weeks ago.”
When, finally, the Court obliged Appellant the 3 adjournment, the Court bent backwards, and kind of surrendered to the Appellant’s Counsel to fix the next date of hearing! It said: “The Counsel to the defendant should inform the Court the date convenient to him to cross-examine the witness.”
Appellant’s Counsel was not even afraid or humbled by that gesture by the Court, as he, proudly, said:
“The date we would be ready is 14/3/2001.” See page 27 of the Records.
On the 14/3/2001, which Appellant forced the matter to be adjourned, Appellant’s Counsel, this time ABU ESQ., (not ANTHONY ESQ? Of course, they were of the same chambers, and ABU ESQ,, knew that the case was specifically adjourned at their instance, for cross-examination of the PW1), proudly, told the Court:
“The matter is for cross-examination but I am not ready as I am not feeling fine.”
He did not explain what he meant by “I am not feeling fine.”
I do not think it is proper to rush to conclusion that the learned Appellant’s Counsel, by so saying, meant he was ill or sick, having earlier said “I am not ready.”
He came to the Court, not ready to cross-examine the PW1, after over a year of adjourning the case for cross-examination, and on the last adjournment date they had taken the very date, 14/3/2001, as “The date we would be ready …”
It is obvious that the Appellant’s Counsel was determined to frustrate the case of the Respondents by, arrogantly, refusing to take the cross-examination. The claim of “not feeling fine” was, in my humble view, a dishonest and untenable cover for the earlier reason “I am not ready”
Appellant’s Counsel’s claim of “not feeling fine” was capable of several meanings, including not feeling fine about or with the case. It was not for the Court to speculate and so the trial Court was right in requiring particulars or evidence of illness, if his not feeling fine, had to do with sickness!
Even if Counsel’s statement, at the Bar, were to be taken as evidence on oath, the trial judge does not usually swallow every statement on oath hook, line and sinker. It has to assess the probative value of such statement on oath to risk its belief! Even if, by any imagination, MR. ABU were to be believed, that he was sick, why did he come to Court, instead of his colleague, ANTHONY ESQ., who took the date? Where was ANTHONY?
I think, the Appellant’s Counsel was only out to undermine the authority and integrity of the trial Court with that affront and the Court would have greatly ridiculed itself and its earlier position on 1/3/01, if it had yielded to Appellant’s antic, to adjourn the case on their terms.
I cannot, therefore, fault the exercise of discretion of the trial Court to refuse the application for adjournment, in the circumstances. Adjournment is not given as a matter of course. Applicant must adduce tangible reason(s) to persuade the Court to exercise the discretion in his favour. See NORTH-WEST HEAVY DUTY IND. PLASTIC LTD. VS B.O. FOLARIN (1992) NWLR (Pt. 239) 54; JOEL OKUNRINBOYE EXPORT CO. LTD. VS. SKY BANK PLC. (2009) 6 NWLR (Pt. 1138) 518 at 542
Appellant had maintained that after ruling against it, to refuse the application for adjournment, that the Court should have called on it to cross-examine the PW1, instead of going ahead, in the same ruling, to close the cross-examination and discharge the PW1.
There would have been a strong point for Appellant in that argument, as that is the law, considering the holding by my Lord, KAWU JSC. CEEKAY TRADING LTD. VS GENERAL MOTORS CO. LTD. (1992) 2 NWLR (Pt. 222) 132, that after the ruling against application for adjournment, the Court should call on the Applicant to proceed with the case.
But, I think, that case cannot apply here, especially as the Appellant’s case was not terminal and was not dismissed, in the instant case. And the Appellant was not denied right of hearing, or opportunity to be heard.
It must be noted that at the point the Respondents opposed the Appellant’s application for adjournment, the Respondents’ Counsel had submitted:
“The matter had been adjourned several times for the witness to be cross-examined. My witness had wanted to travel out of Nigeria but it is we who had prevailed on him to wait until he is cross-examined. Now that the defence is in Court and does not want to cross-examine him, I urge that the witness be discharged.”
Appellant’s Counsel joined issues with the Respondent’s Counsel’s prayer (roped into his opposition to the application for adjournment), as he (MR. ABU) replied:
“I object to the application. By my record, the witness finished his evidence on 25/5/2001, (sic). Though, there are occasions when the case was adjourned but this was not because of our fault. There are occasions when the Court does not sit and when hearing notice was not served on us. I urge the Court not to discharge the witness.” (See page 28 of the Records)
I think what can be deduced, from the last submission by Appellants’ Counsel (above), is that apart from trying to blackmail the court, on why the PW1 was not cross-examined before that date, Appellant also demonstrated a resolve to insist on extracting the adjournment, rather than take the cross-examination. Hence, in his objection to application by the Respondent for closure of the cross-examination and discharge of the PW1, Appellant’s Counsel “urged the Court not to discharge the witness”
At that stage, both the applications for adjournment by Appellant, and the application for discharge of the PW1, by the Respondent, had been taken and replied to, orally. The Court had a duty to rule on the two applications in the same ruling.
Appellant, having demonstrated sufficient resolve not to take the cross-examination on 14/3/2001, it appears an after-thought, to suggest that the trial Court should have ruled on the Application for adjournment, first and, thereafter, call on them (Appellant) to cross-examine the PW1! I do not think Appellant expects to be taken seriously on that.
A Counsel who intended to do the right thing, would have quickly taken the cue from the Respondents’ application for discharge of the PW1, and would have soft pedalled on the issue of adjournment, and would have offered to take the cross-examination, even if by taking a bite, as they always say! After-all, the time the learned Counsel for the Appellant expended in Court arguing the application for adjournment and against the call to close the cross-examination and discharge the PW1, would have been more, gainfully, used to kick start the cross-examination!
Appellant cannot complain of being shut out or not having fair hearing, in the circumstances, as Appellant had all the opportunity to cross-examine the PW1 but aborted same.
A party who fails to utilize opportunity of prosecuting his case cannot turn round to blame the Court for not being given fair hearing. See the case of F.H.A. VS KALEJAIYE (2011) ALL FWLR (Pt. 562) 1633 ratio 8:
“The role of the Court in adjudication is to maintain a level playing field for the parties by offering them equal opportunity to present their case or grievances; if they so wish. Once the opportunity is offered, it is the duty of a party to litigation or his Counsel to utilize same in accordance with the rules of procedure and substantive law. Where, however, he or his Counsel fails or neglects to utilize the opportunity so offered, he cannot turn round to blame the Court for the loss of the opportunity as the Court will not allow a party to hold the opponent or the Court to ransom under the guise of the desire to protect the principles of fair hearing. The right to fair hearing remains the right to opportunity to be heard on any matter affecting one’s rights. Once that opportunity is offered, the duty of the Courts ends there. In the instant case, the defendants failed without good reason to utilize their right to appeal within the time provided tor, therefore, the Court of Appeal rightly dismissed their application for enlargement of time within which to appeal. (P.1651, paras.C-F).
I therefore resolve all the issues against the Appellant, as I see this appeal as one completely devoid of merits. The Appeal is accordingly dismissed, as I uphold the Ruling of the Lower Court.
Appellant shall pay the cost of this appeal assessed at N30,000.00 (Thirty Thousand Naira) only, to the Respondents.

ABDU ABOKI, J.C.A.: I have had the privilege of reading before now the lead judgment of my learned brother ITA G. MBABA, JCA which has just been delivered. I entirely agree with his conclusion that this appeal is devoid of merit and ought to be dismissed. I abide by the consequential orders contained therein.

THERESA NGOLIKA ORJI-ABADUA, J.C.A.: I had read in advance the majority judgment of this Court prepared by my learned brother, Mbaba, J.C.A. With due respect, to my learned brother, I wholly disagree with his reasoning and conclusion in respect of issue No. 2 propounded by the Appellant.
This appeal originated from the proceeding of the High Court of Kano State presided over by Saka Yusuf, J., in Suit No. K/561/99 conducted on the 14th March, 2001.
My learned brother had chronicled in detailed form, the genesis of this appeal. He has quite extensively given a fair summation of submissions of the learned Senior Counsel for the Appellant, Olajide Ayodele SAN., and learned Counsel for the Respondent, Kayode Amodu Esq. Needless recapitulating them and his resolution of issue No. 1 hereat. I will proceed immediately with issue No. 2 raised by the Appellant in its Brief of Argument which reads:
“Whether the learned trial Judge was right when after refusing the application for adjournment, he closed the cross-examination of P.W.1 and discharge him, without calling on Counsel to the Appellant who had asked for an adjournment of the proceedings to another date to cross-examine the said witness.”
P.W.1 was the only witness called by the Plaintiffs in the proceeding. He was supposedly, their star witness who revealed so much during his evidence in-chief that needed to be straightened out during cross-examination. However, the cross-examination was never meant to be by the conduct of the trial Court which completely shut out the Defendant’s Counsel from cross-examining him.
The record of this appeal manifests that on 14/3/2009 when the proceeding came up before the lower Court for continuation of hearing, precisely, for P.W.1 to be cross-examined by the Defendant’s Counsel, the Defendant’s Counsel made an application for an adjournment on the ground that he was not feeling fine. Then, Mr. William, the plaintiff’s Counsel objected to the said application. The record further reveals that the trial Court had not ruled on the said application for an adjournment made by the Defendant’s Counsel when the Plaintiffs’ Counsel followed it up with another application for his witness, i.e., P.W.1, to be discharged. The said application was equally opposed by the Plaintiff’s Counsel. The learned trial Judge then ruled on the two applications together. He refused the application for an adjournment, and, at the same time granted the prayer discharging P.W.1 and closing the case for the Plaintiff, without calling upon the Defendant’s Counsel to proceed with the cross-examination of P.W.1 that was fixed for that day. That then gave rise to this interlocutory appeal.
There is no doubt that the trial Court had the discretion whether to grant or refuse an adjournment. The only limitation to the exercise of such discretion is that, it must be judiciously and judicially exercised, and, as an umpire, the Court should not allow its decision to be beclouded or shrouded in sentiments.

It is settled that cross-examination of witnesses is a safeguard to truthfulness and accuracy, and may be used either to develop facts favourable to the cross-examiner, or to discredit a witness, and that, it is as important to measure credibility of a witness in a civil trial as in criminal actions. Although the extent to which cross-examination may go upon an appropriate subject is within the wide latitude of the trial Court’s discretion, abuse of discretion which results in prejudice to the complaining party provides grounds for appellate action. Thus, it is the general rule that refusal to allow any cross-examination upon matters tending to affect the credibility of a witness is error.
It has been expressed that the right to impeach a witness and destroy his credibility may be accomplished by showing bias, prejudice or motive, either by testimony of the witness or by other evidence. The right has been said to rest upon the reason that in furtherance of justice, the sentiments of a witness, which would tend to bias or prejudice his point of view, should be made known so that the Court may know such facts in order to weigh the credibility of the testimony.
It should, however, be recognized that the discretion vested in the trial Courts to control the extent of cross-examination by which credibility of a witness is attacked does not extend to the entire exclusion of such right to cross-examine.
On this note, I would place reliance on the case of Erinfolami vs. Societe Generale Bank (Nig) Ltd (2008) 7 NWLR Part 1086 p.306 at 338 – 339 where Agube, J.C.A. referenced the Supreme Court case of Ceekay Traders Ltd vs. General Motors Co. Ltd & 2 Ors (1992) 2 NWLR part 222 page 132 per, Kawu, J.S.C., and queried, ‘what should have been the proper approach where the Court refused to postpone or adjourn the case in the exercise of its undoubted discretion? His Lordship expressed thus:
” writers and judicial authorities are of the view that where an application for postponement or adjournment is refused, the party applying must be called upon by the Court to proceed with the case.
This position was endorsed by the Supreme Court in the celebrated case of ‘Ceekay Traders’ Ltd vs. General Motors Co. Ltd & 2 Ors (1992) 2 NWLR Part 222 page 132, where emeritus Kawu J.S.C., quoted with approval the commentary at page 450 paragraphs 41.19 of Aguda, “Practice and Procedure of the Supreme Court, Court of Appeal and High Courts of Nigeria, (1st Edition) which is to the effect that if an application for postponement is refused, the party applying must be called upon by the trial Judge to proceed with the case and that if the party is the plaintiff and he is unable to proceed, the proper order for the Judge to make is one of striking out the suit if he has led no evidence at all. If he has led some evidence and there exists a possibility that if he were to complete his evidence he might have made no case, then the court may also order a striking out. See Izieme vs. Ndokwu (1976) 1 NMLR 280. On the other hand, if he has led some evidence and there is nothing to show that any further evidence may improve his case to a sustainable level then an order of dismissal may be made. See George Akinwade Jones & Anor vs. H.S.A. Thomas & Ors. (1962) L.L.R. 9…
Finally in Okorodudu v. Okoromadu (1977) 3 S.C. 21 and Nwachukwu vs. Eze (1955) 15 WACA 36, both the Supreme Court and West African Court of Appeal opined that it is only after the plaintiff has refused or has been unable to proceed with his case that the court can order a dismissal or striking out. Thus in Ceekay Traders Ltd. v. General Motors co. Ltd. (supra) Karibi-Whyte; Kawu J.S.C., and Belgore, J.S.C. (as they were then) had cause to pronounce on Order 36 Rule 1 and 39 rules 1 and 2 of the Federal High Court (Civil Procedure) Rules and the High Court of Lagos State (Civil Procedure) Rules which were in pari material with the Kwara State High Court (Civil Procedure) Rules. 2005 particularly Order 39 rules 2-4 thereof and agreed with the submissions of Counsel that it was clear that the appellant’s counsel was never called upon by the Learned trial Judge to proceed with his case after the refusal of his application for adjournment and in their view, the failure of the learned trial Judge to do so had occasioned a miscarriage of justice. According to the learned justices, it was not enough to assume that in the circumstances of the case, if counsel was called upon to proceed, he would not be in a position so to do. That assumption in their view would be speculative. The emeriti Justices also took the view that the paramount interest of justice between parties as decided in Egbe vs. Yonwuren & Anor (1978) 2 LRN 136 at 141-143; Solanke vs. Ajibola (1968) 1 All NLR 46 at 54 was not met since the test of fair hearing as laid down in Mohammed vs. Kano N. A. (supra) was not satisfied because upon refusal of the plaintiff’s application for adjournment, he was denied the option of either proceeding with his case or withdrawing the case as counsel who was dominis litis in the case. Where, as in this case, it is clear from the record of proceedings of the 4th of May, 2006 that the learned Judge of the lower court did not call on the plaintiff’s counsel to proceed with the case after ruling on the application for adjournment, there was a breach of the rules of court and the plaintiff’s right to fair hearing. Agube, J.C.A., further held thus: I am bound by the authorities of the Supreme Court cited by learned counsel for the appellant that there was a breach of the appellant’s right to fair hearing in the exercise of the lower court’s discretionary power in dismissing the plaintiff’s claim without calling on his counsel to proceed with his case after the refusal of the application for adjournment. See Umakoro vs. Usikoro & Ors. vs. Itsekiri Communal Land Trustees (supra) and Ntukidem vs. Oko (supra.) (Underlined for emphasis).
The revered Justices of the Supreme Court in Ceekay Traders Ltd’s case (supra), bared it all. What else can I add than observing that there is substance in the Appellant’s learned Senior Counsel’s contention that the refusal of an application for an adjournment by the trial Court does not rob the Applicant of his right to fair hearing. He has to be called upon by the trial Court to play his own role in the proceedings. P.W.1, was a material witness. To my mind, refusal by the lower Court to give the Appellant the opportunity to cross-examine the only material witness for the Plaintiffs, amounts to giving an undue advantage to the Plaintiffs over the Appellant in a trial that is supposed to be free and fair under the rules of Court. As far as I am concerned, there were lots of intrigues in this case, that the lower Court ought to have used its microscopic eyes to perceive. For this reason, I allow this appeal and set aside the decision of the trial Court made on the, 14th March, 2001 in Suit No K/561/99, discharging the P.W.1 and closing the Plaintiff’s case. It is hereby ordered that the matter be remitted to the Chief Judge of Kano State for re-assignment to another Judge for fresh trial.

Appearances

Olajide Ayodele S.A.N., with Akin Ayodele Esq; and Bola Ayodele Esq.For Appellant

AND

Kayode Amodu Esq.For Respondent