IYKE COLLINS INVESTMENT LIMITED v. FIRST ATLANTIC BANK PLC (2019)

IYKE COLLINS INVESTMENT LIMITED v. FIRST ATLANTIC BANK PLC

(2019)LCN/13107(CA)

In The Court of Appeal of Nigeria

On Monday, the 15th day of April, 2019

CA/L/747/2015

JUSTICES

JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria

TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria

Between

IYKE COLLINS INVESTMENT LTD Appellant(s)

AND

FIRST ATLANTIC BANK PLC Respondent(s)

RATIO

WHETHER OR NOT THE RECORD OF THE COURT IS BINDING ON THE COURT AND THE PARTIES

WHETHER OR NOT A TRIAL COURT HAS THE POWER TO EXERCISE SOME DISCRETION IN THE JUDICIAL PROCESS

It was held by the Apex Court in the case of CHIEF NICHOLAS BANNA v TELEPOWER (NIG) LTD (2006) LPELR – 1352 (SC), which was referred to in the lead judgment, that;
“A trial Court as a Court of law and equity has the power to exercise some discretion in the judicial process. As long as the discretionary power is exercised judicially and judiciously, an appellate Court cannot interfere by show of appellate power. It is good law that an appellate Court cannot substitute its discretion in the administration of justice for that of the trial Court. And because discretionary power is exercised within the confines of the facts of the case, the trial judge, the judge of facts, is in the best position to exercise the discretion. Where it is clear on the record that the power was not exercised judicially and judiciously, an appellate Court may interfere.” per TOBI, JSC (P.23, PARA. C-F). PER OBASEKI-ADEJUMO, J.C.A.

JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the Leading Judgment): The appeal is from the Ruling of the High Court of Justice of Lagos State (the Court below) whereby the appellant was refused an adjournment to enable it tender the remaining documents in proof of its case.

In summary, the appellant had filed an action at the Court below for the recovery of the sum of N18,330,550 being sum lodged by it on various dates in its account No.109430204901 operated by it with the respondent bank with interest of 30% thereon from 17.11.03 until the final payment of the sum.

The respondent counter-claimed the sum of N40,229,392.59 from the appellant as at 25.02.11 being the principal sum of the overdraft facility granted to the appellant at the rate of 24% per annum from 21.06.04 to the date of judgment and thereafter at the rate of 10% till full liquidation of the said debt.

The trial of the action commenced de novo before the Court below with the PW1 giving evidence-in-chief and tendering substantial number of documents (seven out of eleven set of documents frontloaded). The appellant?s learned counsel then sought for an

adjournment to tender the remaining documents on the grounds that they had not been able to get the documents and that he needed to call an additional witness. The learned counsel to the respondent opposed the request for an adjournment on the ground that the documents had been found by 26.03.15 and that the last costs awarded had not been paid. The appellant?s learned counsel replied that trial had just commenced afresh or de novo and that they were only asking for a short adjournment.

The Court below refused the request for an adjournment reasoning that the action was instituted on 01.07.04 and having been in Court for eleven years at the material time, it deserved priority and referred to an earlier order it made on 26.03.15 that unless the appellant was willing to go on with the trial of the action at the next hearing, its case should be dismissed. The action was then adjourned for hearing on 11.05.15. The appellant started giving evidence before the adjournment was sought.

The Court below refused the adjournment and ordered the appellant to continue with the evidence failing which its case would be closed. The appellant?s learned

senior counsel submitted that he was unable to proceed upon which the witness closed the examination-in-chief and was cross-examined by the respondent?s learned counsel. The appellant?s learned senior counsel indicated that he had no re-examination. He added that they did not have another witness in Court. The appellant?s case was then closed by the Court below. The respondent?s learned counsel requested for an adjournment to open its defence. The case was adjourned for continuation of trial on 04.06.15.

The appellant was dissatisfied with the ruling of the Court below refusing the request for an adjournment and filed a notice of appeal with some grounds of appeal challenging it.

The appellant filed a brief of argument on 11.10.15, but deemed as duly filed on 06.06.17. It was argued in the brief placing reliance on the cases of University of Lagos v. Aigoro (1985) 1 NWLR (pt.1) 143 at 144, Atiku v. Yola Local Government (2003) 1 NWLR (pt.802) 490, Abiegbe and Ors. v. Ugbodume and Ors. (1973) NSCC 25 that the Court below did not act judiciously and judicially in refusing to grant the adjournment for the appellant to complete

the tendering of its documentary evidence thus amounting to wrongful exercise of discretion.

It was argued in the appellant?s brief that although Order 30 Rule 11(2) of the High Court (Civil Procedure) Rules 2012 (the rules of the Court below) empowered the Court below to close the case for a party suo motu, the Court below could act so only where the party fails to conclude trial within a reasonable time which could not have been the same day when the appellant commenced trial and was not expected by the rules of the Court (supra) to conclude and close its case that same day vide Order 30 Rule 6 of the rules of the Court below read with Order 30 Rule 11(2) thereof and the cases of U.B.A. v. Ekpo (2005) All FWLR (pt. 241) 376 at 378 ? 379, Dada v. Dosunmu (2006) 9 S.C. 1 at 21, Oni and Ors. v. The Registered Trustees of the Dioceses of Ekiti West (Anglican Communion) representing the St. Paul?s Anglican Church, Efon Alaye (2006) 1 W.R.N. 17 at 183, Sekoni v. U.T.C. (Nig.) Plc (2006) All FWLR (pt. 310) 1621, Amasike v. The Registrar General Corporate Affairs Commission and Ors. (2006) 3 W.R.N. 70 at 90 enjoining the Court below to follow

its rules which, according to the appellant?s contention, the Court below breached by radically departing from its rules to ?forcefully and wrongly? close the appellant?s case for it when it had not concluded its evidence which it had the right to conclude in the spirit of fair hearing.

It was argued in the brief that the case having started de novo or afresh the Court below should have taken it as a fresh matter before it and not gone or forayed into the history of the case that it was filed in 2004, as what had transpired then was no longer before the Court below for consideration to refuse the request for an adjournment citing in support the cases of Biri and Anor. v. Mairuwa and Anor. (1996) 8 NWLR (pt.467) 425 at 432 ? 433, Agbi and Ors. v. Ogbeh and Ors. (2005) NWLR (pt.926) 40 at 107 ? 108, Ngige v. Obi (2012) NWLR (pt.1280) 87 at 102, Babatunde v. Pan Atlantic Shipping and Transport Agencies Ltd. (2007) 13 NWLR (pt.1050) 113 at 146 ? 147, NNPC v. S.L.B. Consortium Ltd. (2008) 16 NWLR (pt.1113) 297 at 322, Ameyo v. Oyewole (2009) 8 NWLR (pt.1142) 1 at 13.

It was argued in the appellant?s brief that by shutting out the appellant from tendering documents in evidence to establish its case the Court below breached and sacrificed the appellant?s fundamental right to fair hearing on the altar of speedy dispensation of justice citing in support the cases of Ishaku v. Kantiok (2013) 7 NWLR (pt.1300) 457 at 464, Iwakosu, Ibadan South East and Ors. v. Adeleke and Ors. (2007) All FWLR (pt.353) 55, Pam and Ors. v. Mohammed (2008) 16 NWLR (pt.1112) 1, Pam v. All Nigeria Peoples Party and Ors. (2008) 4 NWLR (pt.1077) 219 read with Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999 (1999 Constitution).

It was argued in the appellant?s brief that the Court below had the mindset to refuse the adjournment when it stated at the preceding proceedings in page 10 of the record of appeal (the record) that ?I do hereby aver that UNLESS the claimant is willing and ready to go on with the trial ? its case would be dismissed? which prompted the Court below to refuse the application for an adjournment for the appellant to complete the side of its case in the interest of justice vide Agbo v. The State (2007) 10 W.R.N.

95 at 107; upon which the appellant urged that the appeal should be allowed and the decision of the Court below set aside and the case remitted to another learned Judge of the Court below for determination on the merit.

The respondent?s brief was filed on 01.06.17, but deemed as properly filed on 06.06.17. It was contended in the respondent?s brief that the Court below looked at its own record and considered the age of the case which was filed in 2004 and the series of adjournments it suffered as well as the fact that the appellant who all along had the documents in its possession did not proffer good reason for the request for an adjournment, therefore the Court below exercised its discretion judicially and judiciously in refusing to grant the request for an adjournment on account of insufficient materials to entitle the appellant to the discretion sought citing in support the cases of A.-G., Rivers State v. Ude (2006) 17 NWLR (pt.1008) 436, Nwadiogbu v. A.I.R.B.D.A. (2010) 19 NWLR (pt.1226) 386, Solanke v. Ajibola (1968) All NLR 47 at 53, Northwest Heavy Duty Industries Plastics Ltd. v. Folarin (1992) 5 NWLR (pt.239) (no pagination).

It was also contended by the respondent that fair hearing of a case involves the whole hearing taking into consideration the nature and circumstances of the case and affording the parties the opportunity to be heard in accordance with the relevant laws, rules of Court and the principles of natural justice which the Court below complied with particularly in pages 911 ? 918 of the record by availing the appellant the opportunity to continue its case failing which the case would be closed, which opportunity the appellant failed to fully utilize thereby necessitating the Court below to close the appellant?s case, showing there was no denial of fair hearing, therefore the complaint on denial of fair hearing should not be accepted as the matter had before 11.05.17 been adjourned on no less than six (6) times at the instance of the appellant citing in support the cases of Bomor v. Ekiyor (1997) 9 NWLR (pt.519) (no pagination), Ekpeto v. Wanogho (no citation), FRN v. Akabueze (2010) (no full citation), Bill Construction Co. Ltd. v. Imani and Sons Ltd. (2006) 19 NWLR (pt.1013) 1 at 14, Chami v. U.B.A. Plc (2010) 6 NWLR (pt.1191) 497,

O.S.I.E.C. v. AC (2010) 19 NWLR (pt.1226) 339, Inakoju v. Adeleke (2007) 4 NWLR (pt.1025) 423, Newswatch Communications Ltd. v. Atta (2006) 12 NWLR (pt. 9930) (?) 173, Nwadiogbu v. AIRBDA (supra), Majoroh v. Fasassi (1986) 5 NWLR (pt.39) (no pagination).

It was further contended that the Court below was right in closing the case of the appellant as it was evident that the appellant was prepared to unduly delay the 2004 case by the request for adjournment which was made to truncate the proceedings of the day at the convenience of the appellant without taking into account the competing interest of the respondent citing in support the cases of Egesimba v. Onuzuruike (2002) 15 NWLR (pt.791) 466 at 521, Afribank (Nig.) Plc v. Akwara (2006) 5 NWLR (pt.974) 619 at 654 ? 655, Omidiran v. Etteh (2011) (?) (pt.1232) 471 at 501, Salu v. Egeibon (1994) 16 NWLR (pt.348) 23, Ikoli Ventures Ltd. v. SPDCN (2008) 12 NWLR (pt.1101) 422; upon which the respondent canvassed that the appeal should be dismissed in its entirety.
?
The reply brief filed on 12.06.17 went through the record from the filing of the case in 2004 to the stage the proceedings reached on 23.01.14

spanning pages 102 ? 910 of the record to contend that the appellant had been diligent in prosecuting the case and should not have been denied the request for adjournment by the Court below, therefore the Court is entitled to review the order refusing the request for adjournment vide Solanke v. Ajibola (1968) All NLR 47 at 53.

It was also argued that in Nwadigbu?s case the parties did not join issues and the claimant in the case did not ask for an adjournment thus distinguishing it from the present case; that in North-West Heavy Duty Industries Plastics case, neither of the parties was present in Court without any reason, so the contention that the trial Court should have adjourned the matter was rejected on appeal following the rules of the trial Court; that had the Court below considered the nature and circumstances surrounding the whole case as stated in FRN v. Akabueze (2010) 17 NWLR (pt.1223) 525; it would have granted the appellant?s request for an adjournment.

It was also contended that in Bill?s case (supra), the adjournment for the purpose of filing counter affidavit by the respondent was sought after the motion was

argued which was refused, which was not the case here; more so in the present case, no opportunity was availed the appellant to conduct its case as calling on it to conduct its case without the means or instrument to do so tantamounted to ?setting a trap? for the appellant thus the observation in Inakoju (supra) and O.S.I.E.C. (supra) on fair hearing would not apply in the instant case where the Court below foisted on the appellant a situation of complete helplessness.

The reply brief added that the six (6) adjournments attributed to the appellant are false as the adjournments were majorly at the instance of the respondent; that as the refusal to grant adjournment was bound to defeat the rights of the appellant altogether inflict injustice to it, the Court below should have granted the adjournment vide Salu v. Egeibon (1994) 16 NWLR (pt.348) 23 that the adjournments sought by the appellant were three (3) in number vide pages 906 ? 908 of the record; and that there is no iota of evidence in the record to suggest lack of due diligence of the appellant in conducting the case, therefore on the strength of the arguments in the brief and

reply brief the appeal should be allowed.

The record of the Court is binding on the Court and the parties. The Court is also entitled to look in its own record to ascertain what is contained therein or to ascertain the state of affairs in the record. Once a case starts de novo the record of the past proceedings are reduced to facts which the Court may refer to, to assure itself of the true state of affairs contained in the record. It is only the evidence and findings in the aborted or the first trial that cannot be used to sustain the decision in the second trial, or trial de novo.
The evidence in the abortive trial could, however, be used as previous statements to cross-examine the witness that gave it for the purpose of discrediting or contradicting the witness if the witness seriously deviated from the earlier testimony. The facts in the previous trial can therefore be taken judicial notice of by the Court of new trial to inform it of what had transpired before the case started de novo. The Court below was therefore right to look at its own record to ascertain the date the case was filed at the Court below vide Fadiora and Anor. v. Gbadebo and

Anor. (1978) NSCC 121 at 129 (line 10 ? 15), Osafile and Anor. v. Odi (1990) 3 NWLR (pt.137) 130, Oji Ada and Ors. v. Ossai Uku and Ors. (1977) 5 F.C.A. 218.

It is true from the record that the case was filed in 2004. The significant fact is that the Court below warned the appellant on the previous adjourned date that if it was unwilling to prosecute the case on the next adjourned date, its case should be dismissed vide page 910 of the record where the Court below stated in these unedited words ?
?In the light of the foregoing, I do hereby aver that UNLESS the Claimant is at willing and ready to go on with the trial of this Suit as the business of this Court may permit at the next hearing its case should be dismissed.”
The Court below is the master of the internal control mechanism and the time-table and schedule of cases before it. An appellate Court hardly meddles into the case flow and/or schedule of cases by a trial Court, on the understanding that it is expected to be in control of the domestic running of its Court. In this case the Court below forewarned the appellant of the fate of the case at the next adjourned

date if the appellant was sloven or dilatory in the prosecution of its case. There is an adage that to be forewarned is to be forearmed.
The forewarning (or yellow card, to use a soccer expression) in question meant the action would meet its grief, if not duly prosecuted on the next adjourned date. The danger signal was given by the Court below on 26.03.15. The case was adjourned on 11.05.15 ?as agreed by learned counsel for trial? vide the tail-piece of the ruling of the Court in page 910 of the record. With the said looming danger contained in the order of the Court below (supra) the appellant?s learned counsel who, also, consciously agreed on the date the matter was adjourned to indicated, counsel had no cause to complain of the adjourned date to which he had subscribed.
The effect of the order (supra) given on 26.03.15 amounted to definite fixture of the case for hearing on 11.05.15. The interval made for the hearing of the case was more than one month. Or to be exact it was 45 days. It is usual for a Court to tie parties or counsel to definite fixtures with superadded warning of the action liable to be dismissed or liable to

meet its demise, if the order is not complied with. It has to be so because litigation deals with the scarce natural resource called time. The time for litigation is shared among the tripartite stakeholders comprising the claimant, the defendant and the public (other litigants and the Court) in civil cases. This arrangement is in tandem with the constitutional right to fair hearing.
In somewhat analogous circumstances the Supreme Court considered an issue of adjournment in the case of N.P.A. v. Construzioni Generali F.C.S. and Anor. (1974) NSCC 622 at 627 ? 628 which I crave indulgence to lavishly copy below ?
?It is Chief Amachree’s contention under ground 2 that the rejection of the application made by the learned counsel for the appellants in the lower Court for an adjournment so as to enable the appellants to call their witnesses is tantamount to a denial of fair trial on the part of the learned Chief Justice. This argument on the face of it sounds attractive, but it loses its force on a closer scrutiny of the circumstances surrounding the application and its eventual rejection, as disclosed by the record of appeal.

For purpose of clarity, we think that the relevant portion of the proceedings should be set out as follows:
“Court: At 12.30 noon, Mr. Amachree is in difficulty and cannot proceed as his witnesses some of whom were here at the commencement of the case on Subpoena have left the Court premises without seeking the leave of the Court or informing counsel.
Court: Refuses to adjourn the matter. Notifying counsel that the case was specially taken out of the turn and the other 2 cases fixed for today were adjourned about 10.30 a.m. Amachree closes.”
It seems to us that the stand which was taken by the learned Chief Justice in this regard was justified. We think that we should stress here that in civil case, it is the duty of the parties to produce their witnesses; and as far as possible, either party should be alert throughout the trial. We think that there are occasions where it will not be in the interest of justice to grant an adjournment. It should always be borne in mind that the interest of justice does not mean just the interest of the applicant; it also includes the interest of the respondent and the Court. In other words, the adjournment

being sought should, in a strict sense, be in the interest of all concerned. .
It seems to us that in the circumstances of this case, the learned Chief Justice had no alternative than to continue with the trial of the case before him. We do not think that in civil proceedings the machinery for the administration justice should be allowed to grind to a halt simply because one or two careless witnesses have chosen to disappear from the Court without seeking the leave of the court, or informing counsel.?
The appellant thus had 45 days to prepare for tendering of evidence in a case it had filed in 2004 and had frontloaded all the documents it required for the case. When the case came up for hearing on 11.05.15 as mutually agreed by the parties on 26.03.15, the appellant?s learned senior counsel took the only witness

frontloaded for the case. He put the witness in the witness box. He tendered seven documentary Exhibits in evidence through the witness and then applied for a short adjournment to enable them tender the other documents which he alleged they had not been able to get and that they also needed to call an additional witness. The respondent?s learned counsel opposed the request for an adjournment on the ground that the Exhibits had been found by 26.03.15. Appellant?s learned senior counsel in reply stated that they had commenced trial and were just asking for a short adjournment. He did not address the issue raised by the respondent?s learned counsel that the Exhibits had been found by 26.03.15.
It was on that basis and relying on its earlier order of 26.03.15 that the Court below rejected the request for an adjournment. The witness was then cross-examined. The learned senior counsel for the appellant stated in re-examination that he had no question for the witness. The witness was then discharged. The learned senior counsel then stated that they had no other witness in Court. He did not make any application. The appellant?s case was

then closed by the Court below and adjourned for 04.06.15 for defence as the respondent?s learned counsel had sought for a date to open the defence. All these transpired in pages 911 ? 918 of the record.
I think in the circumstances and nature of the case, the Court below exercised its discretion judiciously and judicially or fairly in refusing the request for an adjournment. I do not, with deference, see any impropriety in the exercise of the said discretion which was neither wanton, nor unreasonable, nor capricious, nor against the tide of materials placed before the Court below.
The appellant did not renew an application for an adjournment to call any other witness, understandably, because only the solitary witness led in evidence on that fateful day had his statement on oath frontloaded; nor did the appellant express that it had a witness whose statement on oath need not be frontloaded and thus be brought on subpoena to give evidence. There was thus no material for the Court below to adjourn further hearing of the appellant?s case.

Whilst it is not generally disagreeable for a trial Court to close a party?s case suo

motu, where the circumstances of the case, as in this case, indicate the reluctance of the claimant to have his case expeditiously determined to clear the way for other litigants, whose cases are pending or impending, the trial Court Judge as master of his own Court, can close such case if from all indications the erring party does not respect the time fixed specifically for the litigation and thus not willing to have its case concluded within a specifically reasonable time fixed for the hearing which appears to be of the intendment tenor of Order 30 Rule 11(2) of the rules of the Court below. This accords with Section 36 of the 1999 Constitution enjoining the determination of cases within a reasonable time after affording the parties the opportunity to be heard, as in this case, where the opportunity to be heard was given to the appellant but it failed to properly utilize it to the detriment of the respondent who was equally entitled to fair hearing of the dispute showing the principle of fair hearing is at least for the parties concerned with the litigation vide Newswatch Communications Limited v. Alhaji Ibrahim Atta(supra).
Moreover, the principle of

fair hearing does not negate expeditious determination of cases. Both complement each other. Thus in the case of Chief Nicholas Banna v. Telepower Nigeria Ltd. (2006) 15 NWLR (pt.1001) 198 at 216, 217, 220, 221, 224 ? 225 the Supreme Court emphasized speedy and expeditious dispensation of justice in these words?
?It is needful that it be stressed that a plaintiff who is not ready to pursue his suit with diligence upon which the Court must insist has no business bringing such case to Court. Counsel and parties alike must bear in mind that the time of the Court is valuable and must be apportioned between the different cases requiring attention. It is the duty of the Court to proceed with the hearing of the cases before it expeditiously. The Courts in the land must exact from parties and counsel as much diligence in the prosecution of their cases as would enable the Court consign the incidence of congestion in our courts to history

The provision dealing

with fair hearing under Section 36 of the 1999 Constitution of Nigeria is for the protection of all the parties to a case, the plaintiffs and the defendants alike. It will be oppressive to interpret the provision as conferring a protection on just one of the parties to a case. In this connection.
The best Judge in trial procedure is undoubtedly the trial Judge. He sees it all because he closely watches the proceedings and all that. He feels the pinch when parties try to dilly-dally the proceedings or adopt tricks to overreach or outsmart the adverse party. If the trial Judge fails to take a position in the light of the rules of Court and takes or tows the line of sympathy in the way the Court of Appeal did, then he will have a plethora or load of cases in his cause list to the extent that he cannot get out of a mounting backlog of

cases. That will reflect on him adversely and in these days of continuous assessment of the performance of Judges, he will be in for it. While I concede that a trial Judge cannot throwaway the constitutional provision that parties should be given a hearing in matters before the Court because of repercussions of performance assessment, a Judge owes the administration of justice a duty to facilitate and ensure the speedy hearing of a case before him. The notoriety that delayed justice attracts to the judiciary is such that Judges must work towards the speedy dispensation of justice. We do not have a choice in this troublesome matter. Let us do our best and our best is to facilitate the speedy hearing of cases. ?
Besides no litigant should be allowed to take a Court to ransom. It is the vogue for the public to attack Courts on delays of cases in Court’s, when unknown to the generality of the public the fault does not lie in the Courts alone. The litigants and lawyers also share in these snail pace of litigations.?

In conclusion, I am slow to interfere with the exercise of the discretion of the Court below in this case, nor would it be right to substitute my own views in the place of the views of the Court below. Accordingly, I find the appeal unmeritorious and hereby dismiss it and affirm the ruling of the Court below (Williams, J.) with N100,000 costs to the respondent against the appellant.

TIJJANI ABUBAKAR, J.C.A.: I agree with the leading Judgment prepared and rendered in this appeal by my learned brother Joseph Shagbaor Ikyegh JCA. I have nothing extra to add.

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I had the privilege of reading in draft, the judgment just delivered by my learned brother JOSEPH SHAGBAOR IKYEGH, JCA.

is good law that an appellate Court cannot substitute its discretion in the administration of justice for that of the trial Court. And because discretionary power is exercised within the confines of the facts of the case, the trial judge, the judge of facts, is in the best position to exercise the discretion. Where it is clear on the record that the power was not exercised judicially and judiciously, an appellate Court may interfere.” per TOBI, JSC (P.23, PARA. C-F)
In light of the above, I agree entirely with his reasoning and conclusion that the appeal is devoid of merit. I also dismiss the appeal and abide with the consequential orders made in the lead judgment.

Appearances:

Prof. I. O. Smith, SAN with him, T. Abidoye, Esq. and T. Oluwayimika, Esq.For Appellant(s)

Mr. P. Okonjo with him, O. Amadi Esq.For Respondent(s)

Appearances

Prof. I. O. Smith, SAN with him, T. Abidoye, Esq. and T. Oluwayimika, Esq.For Appellant

AND

Mr. P. Okonjo with him, O. Amadi Esq.For Respondent