OLAJUWON OLALEYE v. AFRIBANK NIGERIA PLC & ORS
(2014)LCN/7477(CA)
In The Court of Appeal of Nigeria
On Friday, the 17th day of October, 2014
CA/L/128/2012
RATIO
COURT: THE DISCRETION OF THE COURT; WHETHER THE COURT MUST EXERCISE ITS DISCRETION JUDICIALLY AND JUDICIOUSLY AND WHETHER AN APPELLATE COURT CAN INTERFERE WITH THE DISCRETION OF THE TRIAL COURT NOT EXERCISED AS SUCH
It is trite law as submitted by learned counsel for the appellant that when a Court is exercising its discretion, it must be exercised judicially and judiciously. A plethora of Supreme Court cases have emphasized this principle. In the case of University of Lagos v Aigoro (1985) NWLR (Pt.1) 143 cited by learned counsel, the Supreme Court per Bello JSC held: “The question therefore whether or not to grant an adjournment is a matter within the discretion of that Court. It is well settled that if judicial discretion has been exercised bona fide uninfluenced by irrelevant considerations and not arbitrarily or illegally by the Lower Court the general rule is that an appeal court will not ordinarily interfere. But there are exceptions to this rule. It is in this area that one cannot lay down a hard and fast rule as to the exercise of judicial discretion, for the moment one does that “the discretion of the judge is fettered:-
“see Jones v. Curling 13 Q.B.D. 262. The guiding principle in this respect is that the discretion, being judicial, must at all times be exercised not only judicially but also judiciously on sufficient materials: Saffieddine v. C. O. P. (1965) 1 All N.L.R. 54 at 56; Ugboma v. Olise (1971) 1 All N.L.R. 8. It is upon this principle that the numerous cases showing when an Appeal Court is entitled to impeach the exercise of judicial discretion have been founded. Thus an appeal court may interfere with the exercise of judicial discretion if it is shown that there has been a wrongful exercise of the discretion such as where the tribunal acted under misconception of law or unproved matters or it omitted to take into account matters that are relevant or where it exercised or failed to exercise the discretion on wrong or inadequate materials and in all other cases where it in the interest of justice to interfere: See Enekebe v. Enkebe (1964) 1 All NLR 102 at 106, Saffieddine v. C.O.P. (Supra), Demuren v. Asuni (1967) 1 All NLR 94 at 101, Mobil Oil v. Federal Board of Inland Revenue (1977) 3 SC 97 at 141, Sonikan v. Smith (1967) 1 All NLR 329 and Solanke v. Ajibola (1968) 1 All NLR 46 at 52. The court must balance its discretionary power to grant or refuse an adjournment with its duty to endeavour to give an appellant the opportunity of obtaining substantial justice………..and where the court erred in its balancing exercise an appeal court is at liberty to interfere: Demuren v. Asuni (Supra). As submitted by learned counsel, this principle was restated by the same court in the case of APGA & ANOR, v, UMEH & ORS (2011) 8 NWLR (PART 1250) 544 where the court held per Rhodes Vivour JSC “To grant or refuse to grant leave to discontinue a case is entirely at the discretion of the trial judge. The grant of adjournment is also discretionary. An appellate court will not interfere with the way the trial judge exercises his discretion but would interfere if satisfied that it is in the interest of justice to do so, or the exercise was tainted with some illegality or irregularity. See Udabuchi v. Okoiko v. Esedalue 1974 3 SC p.15; University of Lagos v Aigoro 1985 NWLR pt.1 p.143”. See also Ntukidem & Ors v. Oko & Ors (1986) 5 NWLR (Pt.45) 909. per. CHINWE EUGENIA IYIZOBA, J.C.A.
COURT: MISTAKES OR OMISSIONS OF COURT OFFICIALS IN THE REGISTRY; WHETHER THE MISTAKES OR MISTAKES OR OMISSION OF COURT OFFICIALS IN THE REGISTRY CANNOT BE VISITED ON THE LITIGANT BY THE COURT
It is trite that mistakes or omissions of court officials in the Registry (not instigated, encouraged or condoned by a litigant) cannot be visited on the litigant by the court penalising the litigant for the said mistakes/omissions – See Anyanwoko v. Okoye and Ors. (2010) 1 S.C. (Pt.11) 30, Famfa Oil Ltd. v. Attorney General of the Federation and Ors. (2003) 12 SCM 85 and Ede and Anor. v. Mba and Ors. (2011) 12 S.C. (pt.11) 106. Accordingly, the court below should not have punished the appellant for the failure of its officer to draw the attention of the court below to the letter of adjournment the appellant had submitted to the said court official. Although a law firm comprising more than one counsel is expected to excuse the absence of all the counsel from court for a piece of litigation in which the law firm is engaged by a client, in deserving circumstances where it is indicated that a particular counsel is to handle the brief, as in this case, an adjournment can be granted on terms as to costs for the particular counsel to attend court to handle the litigation. See Ceekay Traders Ltd. v. General Motors Co. Ltd. and Ors. (1992) 23 N.S.C.C. (Pt.1) 180 at 202 – 203 per Olatawura, J.S.C., (of blessed memory). Per. JOSEPH SHAGBAOR IKYEGH, J.C.A.
JUSTICES
UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria
Between
OLAJUWON OLALEYE Appellant(s)
AND
1. AFRIBANK NIGERIA PLC
2. MR. NEBOLISA ARAH
3. MR. STEPHEN ADAJI Respondent(s)
CHINWE EUGENIA IYIZOBA, J.C.A. (Delivering The Leading Judgment): This is an appeal against the judgment of the National Industrial Court, Ikoyi, Lagos delivered by Kanyip J. on 29/11/11 refusing to relist the Appellant’s suit struck out for non-appearance of all the parties in the suit. The facts of the case as disclosed in the Record of appeal are as follows:
The Appellant filed an action at the National Industrial Court Lagos on 20/4/11 Suit No: NIC/LA/24/2011 – Olaleye v. Afribank & Others. His Claim in the action essentially related to non-confirmation of his employment despite satisfactory compliance with the requirements for his confirmation as contained in his letter of employment. The suit was on the Court’s cause list scheduled for hearing on 13/10/11 before the scheduled date, appellant’s counsel on 5/10/11, wrote and delivered to the Court through its Registrar a letter indicating that the Appellant’s Counsel would be unable to attend Court on that 13/10/11 on grounds of bereavement. From the court’s records, that was the first time the Appellant’s Counsel would be absent from court. A copy of the letter was acknowledged as received by both the Registrar of the Lower Court and Counsel to the Respondents in the suit. Consequently, the parties and their counsel were all absent when the case was called up on 13/10/11.
The Registrar of the Court failed to call the attention of the court to appellant counsel’s letter. The court then struck out the Appellant’s suit from the cause list in its Ruling dated 13/10/11 for non-appearance of all parties pursuant to Order 19 Rule 1 of the National Industrial Court Rules 2007. See page 163 of the Record of Appeal. Upon discovering that the suit had been struck out, the Appellant promptly filed an application on 19/10/11 to re-list the Suit pursuant to Order 19 Rule 6 of the National Industrial Court Rules 2007. See pages 127 – 135 of the Record of Appeal.
The respondent did not file any counter-affidavit in opposition and on 29/11/11 when the application to re-list the Suit came up for hearing, the Respondents’ Counsel informed the court that he had no objection to the Application. Notwithstanding the lack of opposition from Respondent’s counsel, the learned trial Judge refused to re-list the suit. The Ruling at page 165 of the Record reads:
“The reason given by the applicant’s counsel for relisting this suit is that they had written to the Court on f October 2011 intimating the court that senior counsel in the matter is bereaved and so would not be in court; and because senior counsel would want to personally handle the matter, the matter should be adjourned. This said letter was not brought to the attention of the court when the case was called on the 13th October, 2011″.
The interesting thing is that Mr. Ayodeji Jolaoso, who signed the said letter of 5th October, 2011 and said senior counsel would want to handle the matter in court personally, is the counsel in court today moving for relisting of the case. Mr. Ayodeji Jolaoso as counsel could have appeared in court on the said 13th October, 2011 when the matter came up for hearing. Courts have been enjoined not to take excuses for appearances of counsel especially when there are other counsel in chambers who can handle the matters at hand.”
The Appellant being dissatisfied with the refusal appealed against the ruling by Notice of Appeal dated and filed on 27/1/12. The appellant later amended the notice by an order of the court. The Amended Notice of Appeal dated and filed on 19/3/14 but deemed properly filed and served on 3/6/14 contains three grounds of appeal. In their amended brief of argument, the appellants formulated three issues out of the three grounds of appeal viz:
i. Considering the facts and circumstances of this case, did the Lower Court exercise its discretion judicially and judiciously in refusing the Appellant’s Motion to Re-list? This issue is distilled from Ground 2 of the Notice of Appeal.
ii. Whether the Lower Court was right to have made conjecture of facts not placed before it suo motu as reason for refusing the Appellant’s Application for re-listing without giving Counsel the opportunity to address it on the point so raised thereby violating the Appellant’s right to fair hearing guaranteed under Section 36 of the Chapter IV of the 1999 Constitution? This issue is distilled from Ground 3 of the Notice of Appeal
iii. Was the Lower Court right to have neglected and or failed to act on the unchallenged affidavit evidence attached to the Appellants Motion dated 19th October, 2011 which the Respondents’ Counsel expressly stated that they were not opposing? This issue is distilled from Ground 1 of the Notice of Appeal.
The Respondents did not file any brief of argument. At the hearing of the appeal on 24/9/14, learned counsel for the appellant moved a motion dated and filed on 18/9/14 for leave to substitute the name of the 1st Respondent with the name “Mainstreet Bank Ltd”. The application was not opposed by learned counsel for the Respondents and was consequently granted as prayed. Learned counsel for the Respondent informed the court that it filed a notice of intention not to contest the appeal. There is consequently no need to go into the full details of the submissions of learned counsel for the appellant. Suffice it to say that we are satisfied that the discretionary power of the Lower Court to relist the suit was not exercised judicially and judiciously.
It is trite law as submitted by learned counsel for the appellant that when a Court is exercising its discretion, it must be exercised judicially and judiciously. A plethora of Supreme Court cases have emphasized this principle. In the case of University of Lagos v Aigoro (1985) NWLR (Pt.1) 143 cited by learned counsel, the Supreme Court per Bello JSC held:
“The question therefore whether or not to grant an adjournment is a matter within the discretion of that Court. It is well settled that if judicial discretion has been exercised bona fide uninfluenced by irrelevant considerations and not arbitrarily or illegally by the Lower Court the general rule is that an appeal court will not ordinarily interfere. But there are exceptions to this rule. It is in this area that one cannot lay down a hard and fast rule as to the exercise of judicial discretion, for the moment one does that “the discretion of the judge is fettered:-
“see Jones v. Curling 13 Q.B.D. 262. The guiding principle in this respect is that the discretion, being judicial, must at all times be exercised not only judicially but also judiciously on sufficient materials: Saffieddine v. C. O. P. (1965) 1 All N.L.R. 54 at 56; Ugboma v. Olise (1971) 1 All N.L.R. 8. It is upon this principle that the numerous cases showing when an Appeal Court is entitled to impeach the exercise of judicial discretion have been founded.
Thus an appeal court may interfere with the exercise of judicial discretion if it is shown that there has been a wrongful exercise of the discretion such as where the tribunal acted under misconception of law or unproved matters or it omitted to take into account matters that are relevant or where it exercised or failed to exercise the discretion on wrong or inadequate materials and in all other cases where it in the interest of justice to interfere: See Enekebe v. Enkebe (1964) 1 All NLR 102 at 106, Saffieddine v. C.O.P. (Supra), Demuren v. Asuni (1967) 1 All NLR 94 at 101, Mobil Oil v. Federal Board of Inland Revenue (1977) 3 SC 97 at 141, Sonikan v. Smith (1967) 1 All NLR 329 and Solanke v. Ajibola (1968) 1 All NLR 46 at 52. The court must balance its discretionary power to grant or refuse an adjournment with its duty to endeavour to give an appellant the opportunity of obtaining substantial justice………..and where the court erred in its balancing exercise an appeal court is at liberty to interfere: Demuren v. Asuni (Supra).
As submitted by learned counsel, this principle was restated by the same court in the case of APGA & ANOR, v, UMEH & ORS (2011) 8 NWLR (PART 1250) 544 where the court held per Rhodes Vivour JSC
“To grant or refuse to grant leave to discontinue a case is entirely at the discretion of the trial judge. The grant of adjournment is also discretionary. An appellate court will not interfere with the way the trial judge exercises his discretion but would interfere if satisfied that it is in the interest of justice to do so, or the exercise was tainted with some illegality or irregularity. See Udabuchi v. Okoiko v. Esedalue 1974 3 SC p.15; University of Lagos v Aigoro 1985 NWLR pt.1 p.143”.
See also Ntukidem & Ors v. Oko & Ors (1986) 5 NWLR (Pt.45) 909.
Learned counsel is right that the Appellant placed sufficient materials before the Lower Court to guide it in reaching a just and fair decision.
Five clear days before the suit was to come up for hearing, the Appellant’s Counsel had written to the Court of the inability of Counsel who was seized of all the facts in the suit to appear in Court on the next adjourned date as shown on page 125 of the Records of Appeal where the letter was marked as received by the Senior Registrar of the Lower Court. It was referred to the appropriate Court Official to take the necessary action. The letter was never brought to the attention of the Court as acknowledged by the court in its ruling.
Despite all the facts put forward before the Lower Court and the Respondents’ Counsel’s unwillingness to oppose the application to relist the suit, the Lower Court refused to re-list the suit. The court was apparently more concerned with the fact that there were other counsel in the chambers who should have appeared, but this, on its own cannot be a ground for denial of adjournment. There may be a special reason why the particular counsel wanted to handle the case personally. It was also the first time an adjournment was sought in the case and on grounds of bereavement, a very compelling reason.
Learned counsel for the appellant is again right that the court shut its eyes to the obvious satisfaction of all the condition precedents as prescribed by the Rules and case-laws. This has occasioned miscarriage of justice to the Appellant. Surely, allowing the Lower Court’s decision refusing to relist the Appellant’s suit to stay would amount to visiting and blaming the inadequacy or inadvertence of Court’s official on the litigant. This is contrary to the established principle of law that the sin of the court or its official or that of his counsel cannot be visited on the litigant. The appellant placed sufficient materials before the Lower Court to enable it exercise its discretion in favour of the appellant. By failing to re-list the suit, the learned trial Judge did not exercise his discretion judicially and judiciously.
This appeal is bound to succeed. It is hereby allowed. The decision of the Lower Court refusing to relist the suit is set aside. In its place it is hereby ordered that suit no. NIC/LA/24/11 be relisted on the cause list of the National Industrial Court for hearing and that the name of the 1st Respondent Afribank Nigeria PLC be substituted with the name Mainstreet Bank Limited. All processes in the suit to be amended accordingly. I make no order as to costs.
UZO I. NDUKWE-AYANWU, J.C.A.: I had the privilege of reading in draft form the judgment just delivered by my learned brother C. E. Iyizoba, JCA.
I am in total agreement with the reasoning and final decision reached therein. Judicial discretion must be exercised judiciously and judicially at all times. Offordile vs. Egwuatu (2006) 1 NWLR (Pt.961) pg.421.
“A proper exercise of discretion should be according to law and not humour. It is not to be arbitrary, vague and fanciful but legal and regular. It must be upon facts and circumstances presented to the court, from which it must draw a conclusion governed by law. UBN Plc vs. Adjarho (1997) 6 NWLR (Pt.507) pg.112. In Re: Alase (2000) 10 NWLR (Pt.776) pg.553.”
A court’s exercise of its discretion without averting to all the peculiar facts and circumstances of the particular case before it, is as bad as its exercise upon a wrong, principle. Also, if there is any miscarriage of justice in the exercise of a judicial discretion, it is within the competence of an appellate Court to have it reviewed. See Oduba vs. Houtmangra (1997) 6 NWLR (Pt.508) pg.185.
Ordinarily, the court of Appeal will not interfere with a proper exercise of discretion of a Lower Court. However, where the Lower Court fails to exercise its discretion judiciously and judicially, the Appeal Court must employ its “Judicial sledge hammer” to salvage the situation.
Ehindimhen vs. Musa (2000) 4 SC (Pt.11) pg.166: Oyekanmi vs. NEPA (2000) 12 (Pt.1) pg.70; Biocon Agro Chemical vs. Kudu Holding (2000) 12 SC (Pt.1) pg.139.
“The grounds upon which the judgment or order based on the discretion of a trial Court can be interfered with are as follows (a) where the trial Court acted under a misapprehension of the law; (b) where the trial Court acted under the misapprehension of facts in that it gave weight to irrelevant or unproved matters; (c) where the trial Court omitted to take into account matters that are relevant; (d) where the discretion of the trial Court is exercised on wrong or inadequate materials and; (e) where it is in the interest of justice to interfere to prevent miscarriage of justice.”
Offordile vs. Egwuatu (Supra).
In this appeal, the learned trial Judge did not take into consideration of all the material facts, placed before it. The letter of adjournment was marked by the Senior Registrar of the Lower Court as received. The Court ought to have taken this into consideration whilst considering the application to relist.
For this and all the other robust reasoning in the lead judgment, I too will allow this appeal. I will also abide by all the consequential orders contained therein.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I am in agreement with the judgment prepared by my learned brother, Chinwe Eugenia Iyizoba, J.C.A., and adopt as my judgment with these few words by way of emphasis.
It is trite that mistakes or omissions of court officials in the Registry (not instigated, encouraged or condoned by a litigant) cannot be visited on the litigant by the court penalising the litigant for the said mistakes/omissions – See Anyanwoko v. Okoye and Ors. (2010) 1 S.C. (Pt.11) 30, Famfa Oil Ltd. v. Attorney General of the Federation and Ors. (2003) 12 SCM 85 and Ede and Anor. v. Mba and Ors. (2011) 12 S.C. (pt.11) 106. Accordingly, the court below should not have punished the appellant for the failure of its officer to draw the attention of the court below to the letter of adjournment the appellant had submitted to the said court official.
Although a law firm comprising more than one counsel is expected to excuse the absence of all the counsel from court for a piece of litigation in which the law firm is engaged by a client, in deserving circumstances where it is indicated that a particular counsel is to handle the brief, as in this case, an adjournment can be granted on terms as to costs for the particular counsel to attend court to handle the litigation. See Ceekay Traders Ltd. v. General Motors Co. Ltd. and Ors. (1992) 23 N.S.C.C. (Pt.1) 180 at 202 – 203 per Olatawura, J.S.C., (of blessed memory).
In the result, I too would allow the appeal and abide by the consequential orders contained in the lead judgment.
Appearances
Dapo Akinosun Esq. with Ayo Deji Jalaoso Esq.For Appellant
AND
Umunna A. C. Esq.For Respondent
