OLADAPO & ORS v. OYEDELE (2020)

OLADAPO & ORS v. OYEDELE

(2020)LCN/15404(CA)

In The Court Of Appeal

(AKURE JUDICIAL DIVISION)

On Monday, October 05, 2020

CA/AK/8/2013

RATIO

APPEAL: POSITION OF THE LAW ON THE CONSIDERATIONS IN THE EXERCISE OF THE OPTION OF LODGING AN APPEAL

The law is also trite that the exercise of the option of lodging an appeal is not dependent on the party having first exercised the option of applying to the lower Court to set aside the judgment as misstated by the Respondent’s Counsel. The options are mutually exclusive and independent of each other. See the cases of: (1) Davies v. Guildpine Ltd. (2004) 5 NWLR (Pt. 865) p. 131; (2) Magna Maritime Services Ltd. v. Oteju (2005) 14 NWLR (Pt. 945) p. 517; (3) Noga Hotels International SA v. Nicon Hilton Hotels Ltd. (2007) 7 NWLR (Pt. 1032) p. 86; (4) Yussuf v. Ilori (2008) 6 NWLR (Pt. 1083) p. 330; (5) Isong v. Umoren (2010) 6 NWLR (Pt. 1190) p. 364 and (6) Chemist & Ors. v. Messrs Fatlubsy Ventures Ltd. (2015) LPELR-40894 (CA). PER OYEBISI FOLAYEMI OMOLEYE, J.C.A.

DUTY OF COURT: WHETHER AN APPELLATE COURT MAY INTERFERE WITH THE DISCRETIONARY OF A LOWER COURT

It is pertinent to state further that, the granting or refusal of an application for adjournment rests virtually completely with the Court before which the Counsel making the application appears. Hence, although the exercise of this discretionary power may be challenged on appeal, the appellate Court is very slow to interfere with the discretion of a lower Court. The law is therefore settled beyond evasion that, a discretion properly exercised by a lower Court will not be lightly interfered with by an appellate Court even if the appellate Court is of the view that it might have exercised the discretion differently. However, where a lower Court exercised a discretion under a wrong principle or mistake of law or under a misapprehension of the facts or took into account irrelevant or extraneous matters or excluded relevant matters thereby giving rise to injustice, an appellate Court will assume its duty to interfere with the exercise of that discretion in order to correct or prevent an injustice. See the cases of: (1) Jonason Triangles Ltd. v. Charles Moh & Partners Ltd. (2002) 15 NWLR (Pt. 789) p. 176; (2) The owners of the M.V. Lupex v. Nigerian Overseas Chartering & Shipping Ltd. (2003) 15 NWLR (Pt. 844) p. 469 and (3) T.S.A. Ind. Ltd. v. Kema Investments Ltd. (2006) LPELR-3129 (SC).

Before Our Lordships:

Oyebisi Folayemi Omoleye Justice of the Court of Appeal

Ridwan Maiwada Abdullahi Justice of the Court of Appeal

Patricia Ajuma Mahmoud Justice of the Court of Appeal

Between

ABIMBOLA OLADAPO 2. OLUSEYE OLADAPO 3. BUKOLA OLADAPO (Nee Oladapo) (For Themselves And On Behalf Of The Family Of High Chief S. A. Oladapo Of Ondo) APPELANT(S)

And

FRANCIS OLU OYEDELE (For And On Behalf Of The Loduti/Ajaka Family Of Ondo) RESPONDENT(S)

OYEBISI FOLAYEMI OMOLEYE, J.C.A.(Delivering the Leading Judgment): This is an appeal against the decision of the High Court of Ondo State holden at Ondo per O. O. Akeredolu, J. (as he then was, now C.J.) hereinafter referred to as “the trial Court”] in Suit No. HOD/97/2008 delivered on the 7th of June, 2012.

In an action for declaration of title to a parcel of land situate at Lisaluwa Area of Ondo town in Ondo State, the Appellants as Plaintiffs sued and specifically claimed against the Respondent as Defendant per the endorsement on their Writ of Summons filed on the 22nd of August, 2008 and Statement of Claim filed on the 13th of October, 2019 as follows:
“1. A DECLARATION that the Plaintiffs’ family is entitled to a grant of statutory Certificate of Occupancy over a parcel of land lying, situate and being along College Road, Lisaaluwa Ondo.
a. In front it is bounded by College Road.
b. At the back it is bounded by Akinkugbe Avenue.
c. On the right it is bounded by Oando filling station.
d. On the left it is bounded by Akinkugbe Street.
2. A DECLARATION that the judgment in suit No.
HOD/84/89 between Chief Taye Aderoba v. Sunday Olorunfemi and another is not binding on the Plaintiffs as to affect the Plaintiffs’ ownership of the land now in dispute.
3. A DECLARATION that the order for possession contained in the judgment in suit No. HOD/7/2005 is not binding on the Plaintiffs as they are not party to the suit and did not derive title to the land from any of the parties in that suit.
4. AN ORDER setting aside the warrant for possession made pursuant to the judgment in suit No. HOD/7/2005 with regards to the land now in dispute.
5. AN ORDER setting aside the execution of judgment in HOD/7/2005 if any, as affect the property of the Plaintiffs the subject matter of this suit.
6. AN ORDER of perpetual injunction restraining the Defendants whether by themselves, their agents, servants, privies, assigns or anybody whosoever claiming through them from further interfering with the Plaintiffs’ right of ownership and possession of the land.”

At the close of pleadings, the action proceeded to trial on the 23rd of February, 2011. That day, the Appellants fielded their first witness, that is, the 1st Appellant who gave evidence as PW1 and he was duly cross-examined on the 29th of June, 2011. The Appellants’ Counsel indicated an intention to call his next witness on the next hearing date.
However, the case suffered several adjournments at the behest of both parties and at the resumed hearing of the case on the 7th of June, 2012, the Appellants and their Counsel were absent from Court. The

Appellants’ Counsel however wrote a letter and applied for an adjournment on the ground of ill-health. The Respondent’s Counsel opposed the said application for adjournment and urged upon the trial Court to dismiss the Appellants’ action pursuant to the provisions of the then Order 37 Rule 8 of the Ondo State High Court (Civil Procedure) Rules, 1987. The trial Court refused the Appellants’ Counsel’s application for adjournment. Rather, it granted the application of the Respondent’s Counsel for the dismissal of the Appellants’ action and awarded the sum of Ten Thousand Naira costs against the Appellants and in favour of the Respondent.

The Appellants were irked that their action was dismissed by the trial Court in the given circumstances and on the 2nd of August, 2012 duly filed to this Court this appeal against the trial Court’s decision. By the Order of this Court made on the 12th May, 2015, the said original Notice of Appeal was duly amended. The Amended Notice of Appeal, of five grounds of appeal, dated the 14th of May, 2014, filed on the 30th of May, 2014 was deemed properly filed and served on the 12th of May, 2015. For good grasp and ease of reference, the five grounds of appeal are hereunder set out as follows:
“GROUNDS OF APPEAL
(1.) The trial Court erred in law when it dismissed the Appellants’ suit based on the incessant absence of the Appellants from the Court.
PARTICULARS OF ERROR
(a) The Appellants were ably represented by Counsel in Court during trials.
(b) It has not being shown that it was the absence of the Appellants that occasioned delay in the Court.
(2.) The learned trial Judge erred in law in wrongfully refusing the Appellants Counsel’s application for an adjournment on health ground and hereby came to the wrong exercise of his judicial and judicious discretion contrary to the fundamental principles of the administration of justice.
PARTICULARS OF ERROR
(a) The Appellants were diligently represented by Counsel on each adjourned date.
(b) The delay in the case was not occasioned in any way by the default of the Appellants.
(c) On the date the Court dismissed the case, the presence of the Appellants in Court on that day would not have served any purpose as the Appellants’ Counsel had written a letter to Court seeking for an adjournment on health ground.
(3.) The learned trial Judge erred in law when he wrongfully dismissed the Appellants’ claim and thereby occasioned a grave miscarriage of justice.
PARTICULARS OF ERROR
(a) Only the 1st Appellant had given evidence and was cross-examined.
(b) The Appellants had earlier intimated the Court that they have more witnesses to call.
(4.) The trial Court erred in law when it dismissed the suit without considering the evidence of the Appellants on record.
PARTICULARS OF ERROR
(a) The 1st Appellant gave evidence and was cross-examined.
(b) The only evidence before the trial Court was that of the Appellants.
(5.) The trial Court erred in law when it adopted an improper procedure in dismissing the suit.
PARTICULARS OF ERROR
(a) The Appellants have opened their case and given evidence on record by calling the 1st Appellant who was cross-examined by the Respondent as a witness.
(b) The trial Court did not close the Appellants’ case.
(c) The trial Court did not call on the Respondent to enter into the defence or address the Court on the evidence on record.”

In due deference to the relevant provisions of the Rules of this Court, briefs of argument were settled and exchanged by the parties’ Counsel in substantiation of their varied positions in the appeal.
The Appellants’ Counsel, Tayo Oyetibo, SAN of the law firm of Abdurrahman Abdulwahab Tayo Oyetibo & Co., settled the Appellants’ Brief of Argument dated the 22nd of September, 2015, filed on the 29th of September, 2015 and deemed properly filed and served on the 21st of March, 2016. In the brief, the two issues distilled from the five grounds of appeal and donated for determination read thus:
“1. Whether the learned trial Judge was right in law when he wrongfully exercised his discretion in refusing to grant the Appellants’ Counsel’s application for adjournment on the ground of ill-health?
2. Whether the learned trial Judge was right in law when he dismissed the Appellants’ case at the trial Court?”

The Respondent’s Counsel, Yinka Muyiwa of the law firm of Yinka Muyiwa Chambers settled the Respondent’s brief. The Respondent’s Brief of Argument dated the 10th of October, 2016, filed on the 11th of October, 2016 was deemed properly filed and served on the 22nd of March, 2017. The sole issue crafted for the determination of the appeal in the said brief states as follows:
“Whether the trial Judge’s exercise of discretion in refusing the Appellants’ application for adjournment and dismissal of the Appellants’ case against the Respondent should be interfered with by this Honourable Court? ”

In response to the Respondent’s brief of argument, the Appellants’ Counsel further settled the Appellants’ Reply Brief dated the 9th of January, 2017 and filed on the 22nd of March, 2017.

The appeal was heard by this Court on the 13th of July, 2020. At the said hearing, although the Appellants’ Counsel was duly served with hearing notice for the day’s proceedings, the Appellants as well as their Counsel were absent from the Court without any excuse, hence, the appeal was deemed duly argued pursuant to the provision of Order 19 Rule 9(4) of the Court of Appeal Rules, 2016.

However, at the said hearing of the appeal, the Respondent’s learned Counsel, Mr. Yinka Muyiwa identified and adopted the Respondent’s brief of argument in urging upon this Court to dismiss the appeal for being lacking in merit and to consequently uphold the decision of the trial Court.

I have considered the two issues donated by the Appellants for the determination of the appeal in their brief of argument as well as the sole issue crafted for determination in the Respondent’s brief of argument. Quite apart from the Appellants being the party unhappy with the decision of the trial Court under review, I consider that their two issues are apt for the just resolution of the appeal, what is more, the submissions thereunder have been adequately responded to under the sole issue of the Respondent. I will therefore adopt the two issues of the Appellants in resolving their grouse about the decision of the trial Court and consider them seriatim.

ISSUE ONE
“Whether the learned trial Judge was right in law when he wrongfully exercised his discretion in refusing to grant the Appellants’ Counsel’s application for adjournment on the ground of ill-health?”
THE SUMMARY OF THE SUBMISSIONS OF THE APPELLANTS’ COUNSEL
Learned Counsel argued that there is no water-tight provision of any law or Rules of Court that stipulate condition(s) for the grant of an adjournment in any given case. Rather, the question of whether an adjournment will be granted or refused is dependent on the circumstances of each case.

He reiterated the settled legal principle that the grant or refusal of an adjournment is a matter within the discretion of a Judge. He referred on this position to the cases of: (1) Bamawo v. Garrick (1995) 6 NWLR (Pt. 401) 356 and (2) Ebele v. Ikweki (No. 2) (1995) 7 NWLR (Pt. 405) 91 CA. That the burden the law places on a Judge in such instance is that the said discretion must, as a matter of strict principle of law, be exercised judicially and judiciously. He relied on the cases of: (1) Governor of Ekiti State v. Osayomi (2005) 2 NWLR (Pt. 909) p. 67; (2) Princewill v. Usman (1990) 5 NWLR (Pt. 150) p. 274; (3) Eronini v. Iheuko (1989) 2 NWLR (Pt. 101) p. 46; and (4) UNILAG v. Aigoro (1985) 1 NWLR (Pt. 1) p.143. That the learned trial Judge must balance his discretion in granting or refusing the application for adjournment against his duty to afford the parties the opportunity of presenting their respective cases. For, the rules of Court do not delimit the minimum or maximum number of times a Judge should allow the postponement or adjournment of a case. Instead, the cardinal principle that will guide a Judge in such instance is the interest of justice.

That the etymology of the word “justice” has always meant fairness and equality. Reference was made to the cases of: (1) Obajimi v. Adediji (2008) 3 NWLR (Pt. 1073) 1; (2) Inakoju v. Adeleke (2007) 4 NWLR (Pt. 1025) 423 and (3) Engineering Enterprise v. Attorney General of Kaduna State (1987) 2 NWLR (Pt. 57) 381.

Counsel also restated that, the test for justice is, whether a fair minded ordinary person would say that justice has been or has not indeed been done.

It was further canvassed for the Appellant that the learned trial Judge did not observe the inviolable concept of justice in the case before him. Instead, it exercised the discretion on wrong facts. Hence, even if the Appellants were present in Court on 7th June, 2012, it would still have made no difference to the trial Court, as the Appellants’ case would still have been dismissed by it. The learned trial Judge failed to observe the true spirit of justice as admonished by the appellate courts, when it refused to grant concession to the Appellants’ Counsel for an adjournment like he graciously obliged the Respondent’s Counsel on two previous occasions even when he was absent from Court, after all, it is said that what is good for the goose is equally good for the gander. The decision reached by the learned trial Judge on 7th June, 2012 when he refused the application for adjournment was therefore erroneously made and without due recourse to antecedents of the case. Thus, the said decision was found on a wrongful exercise of discretion and thereby occasioned a grave miscarriage of justice in this case.

According to Counsel, notwithstanding that a Counsel who has been briefed to handle a client’s case in Court has a duty to devote his attention, expertise and energy to the service of his client, it must be borne in mind, that Counsel being human is equally prone to health crisis. What is more, the law does not place a heavy burden on a Counsel to justify the granting of adjournment by the Court in a case. All that is required of Counsel is to put the Court on notice of his absence from Court on a particular date via an application for adjournment stating his reasons for his inability to attend the Court proceedings which had been earlier scheduled to come up on a specific date.
Reliance was placed on the cases of: (1) Magna Maritime Services Limited v. Oteju (2005) 14 NWLR (Pt. 945) 517 and (2) UBA Plc. v. Ujor (2001) 10 NWLR (Pt. 722) 589.

In the present case, the Appellants’ Counsel did write a letter to the trial Court. The learned trial Judge had knowledge of the said letter and same was also served on the Respondent’s Counsel. The Counsel for the Appellants, in his said letter stated his reason for not attending the Court proceedings as being ill health and sought the Court’s indulgence for an adjournment to enable him seek medical treatment

It is trite that Counsel deserve to be accorded some honour and dignity by the Court which ought to believe the truth of Counsel’s assertion or testimony more particularly when the contrary is not proven to the Court by the adverse party. It was the view of Counsel that the learned trial Judge ought to have accordingly granted the Appellants’ Counsel’s application for adjournment, at least, in the interest of justice and good conscience. What is more, the subject-matter of the instant case is for a declaration of title to a large expanse of land. It is sacrosanct that land cases should ultimately be heard and determined on their merits by the Courts. Reference was made on this legal position to the case of:Ebele v. Ikweki (No. 2) (1995) 7 NWLR (Pt. 405) 91. This Court was urged to hold that the learned trial Judge fell into grave error when he hastily refused the application of the Appellants’ Counsel for an adjournment and consequently resolve this issue in favour of the Appellants.

THE SUMMARY OF THE SUBMISSIONS OF THE RESPONDENT’S COUNSEL
It was submitted by learned Counsel that, under Order 37 Rule 10 of the High Court of Ondo State (Civil Procedure) Rules, 1987 the grant or refusal of an application for adjournment is a matter within the discretion of a Judge. He relied on the cases of: (1) UBA Plc. v. Astra Builders (2010) 5 NWLR (Pt. 1186) p. 1 at 28, para. A-C and (2) Main Ventures Ltd. v. Petro Plastic Industry Ltd. (2000) 4 NWLR (Pt. 651) p. 151. A Court is therefore not obliged to grant an application for adjournment merely because counsel asked for it. The request of a counsel in this regard is a favour to be taken into account by the Court as the Court is also obliged to bear in mind the necessity of ensuring speedy justice to contesting litigants. The trial Court in the instant case considered and evaluated the materials presented before it and the peculiar circumstances of the delays in prosecuting the suit. The exercise of discretion by the trial Court in refusing an application for an adjournment on that occasion was thus exercised judicially and judiciously in accordance with law.

The law is settled that; it is only in exceptional circumstances that the appellate Court will interfere with or review the exercise of discretion by a lower Court. Before the appellate Court will interfere with a lower Court’s exercise of discretion, the appellant must establish that the lower Court wrongly exercised its discretion as a result of misconception of law or under misapprehension of facts or by considering irrelevant matters which had led to miscarriage of justice to the other party. He referred on this position to the cases of: (1) Demsa Local Government v. Jokems Nigeria Ltd. (2012) LPELR – 20864 (CA); (2) Oduba v. Houtmangracht (1997) 6 NWLR (Pt. 508) p. 185 and (3) Nwadiogbu v. A.I.R.B.D.A. (2010) 19 NWLR (Pt. 1226) p. 364 at p. 385, paras. E-H.

According to Counsel, the Appellants did not state in their Brief of Argument and it cannot be gleaned from the Record of Appeal that the trial Judge exercised his discretion as a result of misconception of law or under a misapprehension of facts. The request of the Appellants that the discretion be interfered with by this Court should therefore be refused. He further submitted that, to argue that Counsel could attend Court at their pleasure in the name of being afforded a fair hearing and justice is to carry the doctrine of fair hearing and justice to a preposterous level. For the Court is not a slave to time that it must wait indefinitely for a party to decide on when it suits him to present his case. Moreover, to delay hearing of a case deliberately is indeed an abuse of the process of Court which in turn defeats the ends of justice. Counsel urged this Court to dismiss the appeal and affirm the decision of the trial Court.

RESOLUTION OF ISSUE ONE
The crux of this issue is: whether the refusal of the Appellants’ Counsel’s application for adjournment was in proper exercise of the discretionary power of the trial Court in view of the particular circumstances of the present case? In tune with the solid position of the law, the two sets of parties herein are “ad idem” that, the power of a Court to grant an adjournment is a typical exercise of purely discretionary power which must at all times be exercised not only judicially but also judiciously. This is the jurisdiction which is naturally vested in the Courts. See the cases of: (1) Ilona & Ors. v. Dei & Ors. (1971) 1 All NLR p. 8; (2) Mobil Oil (Nig.) Ltd. v. Nabsons Ltd. (1995) 7 NWLR (Pt. 407) p. 254: (3) Unilag & Anor. v. Aigoro (1985) LPELR- 3418 (SC) and (4) Alsthom S. A. & Anor. v. Saraki (2000) 14 NWLR (Pt. 687) p. 415.
It is pertinent to state further that, the granting or refusal of an application for adjournment rests virtually completely with the Court before which the Counsel making the application appears. Hence, although the exercise of this discretionary power may be challenged on appeal, the appellate Court is very slow to interfere with the discretion of a lower Court. The law is therefore settled beyond evasion that, a discretion properly exercised by a lower Court will not be lightly interfered with by an appellate Court even if the appellate Court is of the view that it might have exercised the discretion differently. However, where a lower Court exercised a discretion under a wrong principle or mistake of law or under a misapprehension of the facts or took into account irrelevant or extraneous matters or excluded relevant matters thereby giving rise to injustice, an appellate Court will assume its duty to interfere with the exercise of that discretion in order to correct or prevent an injustice. See the cases of: (1) Jonason Triangles Ltd. v. Charles Moh & Partners Ltd. (2002) 15 NWLR (Pt. 789) p. 176; (2) The owners of the M.V. Lupex v. Nigerian Overseas Chartering & Shipping Ltd. (2003) 15 NWLR (Pt. 844) p. 469 and (3) T.S.A. Ind. Ltd. v. Kema Investments Ltd. (2006) LPELR-3129 (SC).

From the well articulated facts reiterated in paragraphs 2.1 to 2.17 in pages 1 to 6 of the Appellants’ brief of argument and indeed as can be gleaned from the proceedings of the trial Court, it is quite evident that the trial under consideration suffered a great deal of setback as a result of the series of adjournments initiated by both the Appellants and Respondent. The frustration of the trial Court is therefore quite graspable when it refused the application of the Appellants’ Counsel for adjournment on the ground of ill-health on the day in question. What is more, as rightly brought to the fore by the Appellants’ Counsel, the business of the day that day was the continuation of hearing, as the Appellants’ Counsel did indicate at the close of the previous proceedings that he would be fielding the Appellants’ second witness. Albeit one wonders if the said Appellants’ Counsel was the only Counsel in his law firm.
The Courts are now constantly taken aback by the prevalence of Counsel from law firms with two or more Counsel, writing to apply for an adjournment for whatever reason, when another Counsel could easily have taken over to save the day’s proceedings from being aborted. The law is equally trite that, it is part of the duty of a Judge to see that everything is done to facilitate the hearing of an action pending before him. That being said, the law is also well settled that, the trial Court must balance its discretionary power to grant or refuse an application for adjournment with its duty to endeavor to give a plaintiff the opportunity of obtaining substantial justice in the shape of his suit being granted a fair hearing on its merits, provided always that injustice is not thereby caused to the other party. Hence, where a trial Court erred in its balancing exercise, an appellate Court will be at liberty to interfere. See the cases of: (1) R. Ariori & Ors. v. M.B.O. Elemo & Ors. (1983) 7 SC p. 13 at pgs. 25-26; (2) Unilag & Anor. v. Aigoro (Supra) and (3) Ofoma v. Ofoma & Anor. (2013) LPELR-20166 (CA). On this subject, the Apex Court per Wali, JSC (of blessed memory) in the case of: Nneji & Ors. v. Chukwu & Ors. (1988) 3 NWLR (Pt. 81) p. 184, pointedly stated the following:
“The Court must balance the application of its discretionary power to grant or refuse an application to dismiss an appeal for noncompliance with the Rules of that Court with its duty of giving an Appellant the opportunity of obtaining substantial justice by granting him a fair hearing in the appeal when that is considered expedient on the face of the materials before it. See Colins v. Vestry of Paddington (1880) 5 QBD. 308 at 381 where Thesiger, L. J. said on the exercise of judicial discretion by the Court – “each party has a right to have the dispute determined upon merits, and courts should do everything to favour the fair trial of the questions between them” See further Ojikutu v. Odeh (1954) 14 W.A.C.A. 640.”
In the instant matter, from all the prevailing circumstances, I am of the strong view and hold that, the trial Court did not give a very careful consideration to the application of the Appellants’ Counsel for an adjournment and thereby failed to act in accordance with the direction of the Apex Court for the balancing procedure. For the Courts must be generally balanced in dishing out their discretionary power to grant or refuse an application for adjournment, with their duty to endeavour to give a plaintiff or an Appellant the opportunity of obtaining substantial justice in the shape of the hearing of his suit or appeal, as the case may be, on its merits.
As brought to the fore earlier on in this judgment, trial had already commenced in the case before the trial Court with the full evidence of the first witness of the Appellants and the case was adjourned for further hearing, specifically for the fielding of the Appellants’ second witness. Furthermore, the Appellants’ Counsel at the material time was relatively new and more importantly wrote a letter to the trial Court for permission to be excused on the ground that he was ill.
I do not agree with the trial Court’s opinion that a medical/doctor’s report/certificate was obligatory to verify the application of the Appellants’ Counsel for adjournment on the ground that he was ill. There is no such requirement in any law or rules of Court. Moreover, the Respondent’s Counsel did not advance any reason indicative of a deliberate ploy on the part of the Appellants’ Counsel to delay the hearing of the case. It is also immaterial that the Appellants themselves were not present in Court on the day in question. The law is now well settled beyond any equivocation that where a party to a proceedings before a Court is duly represented by a Counsel of his choice, his physical appearance at the proceedings is no longer necessary except where for good reasons, the Court conducting the proceedings orders otherwise. To put it in other words, where in a case a party is not present in person, but has instructed a legal practitioner who is present in person, the party is indeed deemed to have appeared. That is the reason I agree with the Appellant’s Counsel’s position that, the absence of the Appellant at the hearing of the application is not only cogent, I dare add that it is a nonissue and indeed the Appellant could not be said to be absent since his appointed Counsel was present in person, so, the Appellant was actually present.
On the face of the materials already made available before the trial Court therefore, it was expedient for the trial Court to have given the Appellants’ Counsel the benefit of the doubt and favourably considered his application for the adjournment sought on the ground of ill-health rather than accede to the application of the Respondent’s Counsel for the dismissal of the Appellants’ suit. The Appellants were entitled in the circumstances to be allowed to conclude their case and thereby obtain substantial justice in the suit. What is more, the granting of the application for adjournment would not have caused any injustice to the Respondent, at least the Respondent’s Counsel had failed to spell out the injustice that would be caused to the Respondent if the adjournment sought by the Appellants’ Counsel was granted. In short, I hold that the trial Court failed to properly exercise its discretionary power when it refused the Appellants’ Counsel’s application for adjournment and thereby shirked its duty of giving the Appellants the opportunity of a fair hearing on the merits and of obtaining substantial justice in their suit. Indeed, the trial Court’s decision does not accord with the paramount duty of Courts to do everything to favour the fair trial of the questions between the parties before them.

In sum, this issue is resolved in favour of the Appellants and against the Respondent.

ISSUE TWO
“Whether the learned trial Judge was right in law when he dismissed the Appellant’s case at the trial Court?”
THE SUMMARY OF THE SUBMISSIONS OF THE APPELLANTS’ COUNSEL
In reaction to the contention for the Respondent that the Appellants, rather than file this appeal ought to have applied to the trial Court to set aside its decision under review pursuant to the Rules of the trial Court, the Appellants’ Counsel argued that, a party in whose absence a decision was given has an option to either apply to that Court for an order setting aside its earlier decision or lodge an appeal against the decision. He relied on the case of: N.H. Int’l S.A. v. N.H.H. Ltd. (2007) 7 NWLR (Pt. 1032) p. 86. That the Appellants had chosen the second option, considering the order of dismissal made by the trial Court. It is a basic principle of law that generally, an order of dismissal disposes of an action completely. He further argued that, the case of Ceekay Traders Ltd. v. General Motors Co. Ltd. (Supra) relied upon by the Respondent rather supports the Appellants’ case. In the referred case, the Supreme Court held that, after a plaintiff’s application for adjournment has been refused, the trial Court must call on him to proceed in the matter and if he refuses to proceed, it would then be appropriate for the Court to dismiss the matter.

However, in the instant case, although the Appellants’ Counsel was not present in Court to be called upon to proceed in the matter, the trial Court should have, in the circumstance, closed the Appellants’ case and called on the Respondent to open his defence and thereafter ordered both parties’ Counsel to present their respective final written addresses. That way, the ultimate interest of justice would have been served instead of an outright dismissal of the case as wrongfully done by the trial Court. Counsel urged upon this Court to resolve this issue in favour of the Appellants.

THE SUMMARY OF THE SUBMISSIONS OF THE RESPONDENT’S COUNSEL
The learned Counsel canvassed that, under Order 37 Rule 8 of the High Court of Ondo State (Civil Procedure) Rules, 1987, the trial Court was enjoined to dismiss the Appellants’ case as the plaintiffs, as they did not appear at the trial. Put in different words, the trial Court having refused the Appellants’ Counsel’s application for adjournment the trial Court was duty bound to dismiss their case especially since the Appellants and their Counsel were equally not in Court. What is more, the Respondent did not have a counter-claim against the Appellants. In Counsel’s view, the most appropriate Order to make in the circumstance was to enter judgment of dismissal of the case against the Appellants as the trial Court rightly did. He relied on the cases of: (1) Ceekay Traders Ltd. v. General Motors Co. Ltd. & 2 Ors. (1992) 2 NWLR (Part 222) page 132 and (2) George Akinwade James & Anor. v. N.S.A. Thomas (1962) L.L.R. 9.

On the question of whether the exercise of the discretionary power of the trial Judge in refusing the application for adjournment and dismissal of the Appellants’ case amounts to a miscarriage of justice, Counsel answered the question in the negative. For a miscarriage of justice will only occur when a decision or outcome of legal proceedings is prejudicial or inconsistent with the substantial rights of a party. Counsel opined that in the instant matter the Appellants have not suffered any injustice, therefore the decision of the trial Court dismissing their case is not liable to a reversal and should be allowed to stand.

Counsel further argued that the Appellants were bound by the provision of Order 37 Rule 9 of the High Court of Ondo State (Civil Procedure) Rules, 1987. Under the said rules, any judgment obtained where one party does not appear at the trial may be set aside by the trial Court upon such terms as may seem just upon an application made within six days after the trial or within such longer period as the trial Court may allow for good cause shown. The Appellants failed to take advantage of the provision since 2012 when the Orders refusing the application for adjournment and dismissing the Appellants’ case against the Respondent were made, thereby failing to exhaust the procedural step provided by the rules of the trial Court.

The Respondent’s Counsel urged on this Court to resolve this issue against the Appellants and therefore dismiss the present appeal, the Appellants having failed to obey the rules of the trial Court.

RESOLUTION OF ISSUE TWO
Before I proceed to the pronouncement of the proper order in the circumstances of this matter having regard to the outcome of issue one above, it is pertinent to firstly consider the effect of the provision of Order 37 Rule 8 of the 1987 Rules of the trial Court.
Order 37 Rule 8 provides as follows:
“If when a trial is called and the Defendant appears, and the plaintiff does not appear, the defendant, if he has no counter claim, shall be entitled to judgment dismissing the action, but if he has a counter-claim, then he may prove such Counter-Claim so far as the burden of proof lies upon him;
Provided that if the defendant shall admit the cause of action to the full amount claimed, the Court may, if it thinks fit give judgment as if the plaintiff had appeared.”
The simple interpretation of the provision of the above set out rule is that, an action of a plaintiff can be dismissed though not heard on the merits if the plaintiff refused to appear when the action is set down for trial and the defendant has no counter claim. However, in the instant matter, trial had already commenced, hence, it is my firm view and I hold that, the provision of Order 37 Rule 8 is inapplicable in the scenario. Consequentially, the trial Court’s order dismissing the Appellants’ case was erroneous. I agree with the position of the Appellants that, the case of:Ceekay Traders Ltd. v. General Motors Co. Ltd. & Ors. (Supra) does not in any way advance the case of the Respondent. In that case, although the plaintiff’s representative was not in Court, its Counsel who applied for an adjournment was actually present in Court. The principle laid down by the Apex Court in that case is that, after refusing the application for adjournment, the trial Court ought to have invited the plaintiff’s Counsel to proceed with the plaintiff’s case and if Counsel was unwilling or unable or refused to do so and the defendant had no counter-claim, then the order of dismissal would be appropriate in the circumstances.
In the instant matter, the erroneous dismissal of the Appellants’ case by the trial Court was prejudicial to the substantial rights of the Appellants and amounts to a miscarriage of justice. Without equivocation, this Court must assume its duty to interfere with the wrong exercise of the trial Court’s discretion in order to correct the injustice.

The Respondent’s Counsel had also contended that rather than file this appeal, the Appellants were bound to take advantage of the procedural step laid down under the provision of Order 37 Rule 9 of the Rules of the trial Court and ought to have applied to the trial Court to set aside its order of dismissal of their suit within six days of the making of the order or within such longer period as the trial Court may allow. That failure to do so is fatal to the appeal of the Appellants. I must again agree with the reply of the Appellants’ Counsel to the contention, for that is indeed the settled legal position, that, a party faced with a default judgment has open to him one of two options to explore. He need not apply to set it aside under the Rules of the lower Court as he could rather lodge an appeal against it under the provisions of Sections 240, 241 and 242 of the Constitution of the Federal Republic of Nigeria, 1999 as amended, as the case may be.
The law is also trite that the exercise of the option of lodging an appeal is not dependent on the party having first exercised the option of applying to the lower Court to set aside the judgment as misstated by the Respondent’s Counsel. The options are mutually exclusive and independent of each other. See the cases of: (1) Davies v. Guildpine Ltd. (2004) 5 NWLR (Pt. 865) p. 131; (2) Magna Maritime Services Ltd. v. Oteju (2005) 14 NWLR (Pt. 945) p. 517; (3) Noga Hotels International SA v. Nicon Hilton Hotels Ltd. (2007) 7 NWLR (Pt. 1032) p. 86; (4) Yussuf v. Ilori (2008) 6 NWLR (Pt. 1083) p. 330; (5) Isong v. Umoren (2010) 6 NWLR (Pt. 1190) p. 364 and (6) Chemist & Ors. v. Messrs Fatlubsy Ventures Ltd. (2015) LPELR-40894 (CA). In the instant matter, the choice of the Appellants to lodge this appeal against the judgment of the trial Court is therefore proper in law.

Furthermore, as adverted to earlier on in this judgment, the dismissal of the Appellants’ suit by the trial Court is substantially inconsistent with their right. For it is antithetical to established principles of justice in land litigation for the lower Court to dismiss “in limine” an action for declaration of title to land and perpetual injunction. Parties, especially a plaintiff should be allowed to present his case and the trial Court after also listening to the case of the adverse party, should then deliver a judgment on the merits. I am therefore of the view and hold that the Appellants are entitled, in the circumstances of this matter, to be afforded the benefit to approach the trial Court and duly present their action as constituted. This issue two is also resolved in favour of the Appellants and against the Respondent.

In conclusion, I find merit in this appeal. The appeal is thus allowed. The decision of the trial Court in Suit No. HOD/97/2008 delivered on the 7th of June, 2012 by J. Akeredolu, (now Chief Judge), is accordingly set aside. The case file of this matter is remitted to the said incumbent Chief Judge of Ondo State for assignment to a Judge of that Court other than himself, for an expeditious hearing “de novo” and on the merits. The parties are hereby ordered to bear their respective costs for the prosecution and defence of the appeal.

RIDWAN MAIWADA ABDULLAHI, J.C.A.: I have had the privilege of reading the lead judgment delivered by my learned brother, Oyebisi Folayemi Omoleye, J.C.A.
I am in agreement with the reasoning and conclusion of the lead judgment with nothing different to add thereto.

I find merit in this appeal. The appeal is thus allowed. The decision of the trial court in Suit No.HOD/97/2008 delivered on the 7th of June, 2012 by Honourable Justice O.O Akeredolu, (now Chief Judge) is accordingly set aside. The case file of this matter is remitted to the said incumbent Chief Judge of Ondo State for assignment to a judge of that Court other than himself, for an expeditious hearing “de novo” and on the merits.

The parties are hereby ordered to bear their respective costs for prosecution and defence of the Appeal.

PATRICIA AJUMA MAHMOUD J.C.A.: I read before now the lead judgment just delivered by my learned brother, OYEBISI F. OMOLEYE, JCA. Based on the reasoning in the lead judgment, I agree that this appeal has merit and should be allowed.

I allow this appeal. In addition I abide by all the consequential orders made by his Lordship in the lead judgment.

Appearances:

Appellants and Counsel were absent For Appellant(s)

Mr. Yinka Muyiwa For Respondent(s)