UNITED BANK FOR AFRICA PLC. v. MRS. LABAKE LAWAL & ANOR (2012)

UNITED BANK FOR AFRICA PLC. v. MRS. LABAKE LAWAL & ANOR

(2012)LCN/5689(CA)

In The Court of Appeal of Nigeria

On Friday, the 30th day of November, 2012

CA/I/6/2012

RATIO

APPEAL: CIRCUMSTANCES WHERE THE APPELLATE COURT WILL INTERFERE WITH THE EXERCISE OF DISCRETION MADE BY THE LOWER COURT

In CEEKAY TRADERS LTD VS. GEN. MOTORS CO. LTD (1992) 23 N.S.C.C. (Pt.1) 180 at 202; (1992) 2 NWLR (Pt.222) 133 at 163, His Lordship Olatawura, JSC (Of Blessed Memory) held that:

“This court can only interfere with the exercise of discretion where it was not exercised judicially or judiciously. NTUKIDEM & ORS VS. OKO & ORS (1986) 17 N.S.C.C. (Pt.11) 1303;(1986) 5 NWLR (Pt.54) 909.” PER CHIDI NWAOMA UWA, J.C.A.

COURT: DUTY OF THE COURT IN DISCHARGING ITS DISCRETIONARY POWER IN THE GRANT OR REFUSAL OF AN ADJOURNMENT

The court in discharging its duty, must balance its discretionary power to grant or refuse an adjournment bearing in mind the right of the parties, since justice is also for both parties, see UNIVERSITY OF GIWA (1986) 3 NWLR (Pt.32) 796 and ECHAKA CATTLE RANCH LTD VS. N.A.C.B. LTD (1993) 8 NWLR (pt.310) 223 at 232. The court also owed the parties a duty to ensure that cases are not unnecessarily delayed by a party that would not file its processes in time prior to the date fixed for definite hearing. PER CHIDI NWAOMA UWA, J.C.A.

JUSTICES

MONICA B. DONGBAN-MENSEM Justice of The Court of Appeal of Nigeria

CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria

JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria

Between

UNITED BANK FOR AFRICA PLC. – Appellant(s)

AND

1. MRS. LABAKE LAWAL

2. MR. LEKAN LAWAL – Respondent(s)

CHIDI NWAOMA UWA, J.C.A. (Delivering the Leading Judgment): This appeal arose from the Ruling of A. A. Aderemi, J. of the Oyo State High Court sitting at Ibadan, delivered on the 16th day of March, 2011 wherein the lower court refused the appellant’s application for adjournment of the case fixed for hearing on that day.

The background facts are that the appellant (then defendant) contended that the lower court refused to adjourn the case fixed for hearing to one of the subsisting dates earlier fixed for trial of the case on the ground of ill health of the defence counsel, Musibau Adetunbi Esq. of the firm of Musibau Adetunbi & Co. in seeking for the adjournment a medical report of counsel was attached to the letter of application. The application was opposed by the learned counsel to the claimants/respondents.

The appellant also contended that this appeal was not founded on the mere fact of refusal to grant an adjournment, which learned counsel agreed is at the discretion of the court to exercise judicially and judiciously but, on the ground that the said discretion was exercised in violation of known principles of law and around circumstances of likelihood of bias of the court below against the appellant as defendant.

The Respondents on their part were contended that on 16th March, 2011 the date the case was fixed for definite hearing, a date mutually agreed upon by both counsel when the matter came up on 23/2/11, the appellant submitted a letter from its counsel’s law firm praying for an adjournment to a further date outside the three dates the case was fixed for hearing.

On refusal of the application, the court set down for hearing and took the evidence of the 1st respondent and adjourned till the following day, 17th march, 2011 for further hearing. On 17th March, 2011, learned counsel to the appellant, E. E, Jacob Esq., who appeared for the Appellant on 23/2/11 appeared and refused to cross-examine the 1st Respondent who was recalled into the dock for cross examination on the basis that an appeal had been filed against the refusal for adjournment by the lower court, on the previous day.

The Respondents on their part were of the opinion that this appeal is merely academic since the Appellant has since filed and been granted leave to recall and cross – examine the 1st respondent, who was cross examined and the matter adjourned at the instance of the appellant’s learned counsel to cross examine the only other witness called by the Respondents.

Dissatisfied with the refusal of the application for adjournment of the 16th March, 2011 in the lower court’s Ruling, the appellant’s original Notice of Appeal contained six grounds of appeal and later additional grounds of appeal were filed, totaling nine (9) grounds of appeal, all filed within time. From the nine (9) grounds of appeal the appellants distilled three (3) issues for determination by this court, they are as follows:-

“1. Taking into consideration the way and manner our noble Lord of the court below accepted the submissions of facts of learned Senior Counsel (for the claimants an 16th March, 2011 and the disposition of her Lordship on 17th March, 2011, would a reasonable man who has no interest howsoever, not entertain doubt about the ability of her Lordship to hold the scale of justice evenly between the parties. Grounds 1, 7 and 8.

2. Whether in view of the undisputed facts on records as at 16th March, 2011 it is obvious that the learned trial judge did not exercise her discretion judicially and judiciously when she refused the application for adjournment. Grounds 2, 3, 4, 5 and 6.

3. Whether the learned judge of the court below was not in utter error occasioning injustice to the appellant when he opened the case of the claimants/respondents that was not ripe for hearing, behind the appellant. Ground 9.”

The respondents on their part distilled a sole issue for determination that is:-

“Whether in the circumstances of this case and considering the various steps taken by Appellant this appeal is not academic and not worthy of being considered by the Court of Appeal.”

When the appeal was argued, the learned counsel to the Appellant Musibau Adetunbi Esq. adopted and relied on his brief dated and filed on 6th March, 2012 and his reply brief dated l1th May, 2012 filed on 14th May, 2012.

In arguing his first issue, the learned counsel argued that by an application letter dated 16th March, 2011, the law firm of Musibau Adetunbi & Co. wrote a letter to the Registrar of the High Court requesting for an adjournment on the ground of ill health of his principal counsel Musibau Adetunbi Esq. to which a medical certificate was attached. The application was opposed by the respondent and same was refused by the lower court that stood the matter down for trial. The submission in the lower court was reviewed. The learned counsel was of the view that there was no neutrality on the part of the lower court in refusing the adjournment and setting the matter down for hearing, the holding at page 41 agreeing with the submission of the respondents’ counsel is to the effect that there were about ten (10) counsel in court who had previously appeared in the matter and could have handled the case on that day.

The learned counsel dwelt on the contention that Musibau Adetunbi Esq. and/or any other counsel in his law firm did not oppose any application for fiat, for the purpose of the application for stay of proceedings before the lower court.

Further, the learned counsel also argued at length, that the lower court by its refusal of adjournment in its ruling was biased against the appellant by agreeing with the submissions of the respondents’ counsel who urged that the application be refused. Reliance was placed on the following cases in support of the allegation of bias, WOMILOJU VS. ADEBARE (2010) 10 NWLR (Pt.1203) 545 at 561 – 562, KENON TEKAN (2001) 14 NWLR (Pt.732) 12 at 41 – 42, BAMGBOYE VS. UNIVERSITY OF ILORIN (1999) 10 NWLR (Pt.622) 290 at 307 537 at 540 RATIO 24 and ABIOLA VS. FEDERAL REPUBLIC OF NIGERIA (1995) 7 NWLR (Pt.405) 1 NIGERIA.

To buttress the allegation of bias on the part of the lower court, on 17th March, 2011 the proceedings at page 58 of the printed records was reviewed. It was argued that the lower court had made up its mind no matter the circumstances to give judgment against the defendant. We were urged to set aside the Ruling of 16th March, 2011 as well as the proceedings of 17th March, 2011 and order a trial de novo before another judge of the court below and resolve this issue in favour of the appellant. Our attention was drawn to the fact that a medical report had been filed in the lower court which was brought to the Notice of the court below.

Issue two alleged that the lower court did not exercise its discretion judicially and judiciously. Further, that the lower court after sympathizing with counsel who was said to be ill in the letter for adjournment went ahead with the proceedings of the day.

The events and proceedings, preceding the 16th March, 2011 proceedings were reviewed leading to the refusal of the adjournment sought by the appellant. The grounds upon which the respondents as claimants opposed the application for adjournment were reviewed; page 13 of the appellant’s brief of argument was elaborated upon by the appellant. The learned counsel to the appellant criticized the lower courts acceptance of the grounds of facts as canvassed by the respondents’ counsel in refusing to grant the application. It was the contention of the learned counsel that these grounds were false. The grounds were said to be either false or non-existent. We were urged to set aside this exercise of discretion by the lower court.

On the exercise of discretion by the courts, reliance was placed on the following cases; ODUSOTE VS. ODUSOTE (1971) NSCC 231 at 235, lines 13-16. ILORI & ORS VS. DEI & ORS (1971) NSCC 6 at 19 LINES 42-45, NTUKIDEM & ORS VS. OKO & ORS (1986) NSSC 1303, and UNIVERSITY OF LAGOS VS AIGORO (1985) NWLR (Pt.1) 143 at 144 RATIO 6. On the authority of SOLANKE VS. AGBADA (1968) NSCC 40, we were urged to reverse the exercise of discretion of the trial court and to hold that the refusal by the court below of the appellant’s application for adjournment was arbitrarily done and that by opening the respondents’ case behind the appellant’s back, the appellant was denied of its right to fair hearing. It was the contention of the learned counsel that those proceedings were a nullity. We were urged to resolve this issue in favour of the appellant.

The appellant’s third issue alleged error on the part of the lower court, that occasioned injustice to the appellant when he opened the case of the claimants/respondents that was not ripe for hearing in the absence of the appellant on 16th March, 2011 the claimants’ processes for the trial had not been regularized and that pre-trial conference had not taken place in compliance with the Oyo state High court (Civil Procedure) Rules, 2010. The case of ADELEKE VS. AWOLIYI & ANOR, (1962) NSCC 190 was relied upon amongst others by the learned counsel to the appellant, in urging us to allow the appeal and remit the case back to the lower court to be tried before another judge.

On the part of the respondents, the learned counsel Bukola Adeniyi (Miss) adopted and relied on their brief of argument dated 23rd April, 2012, filed the same day pursuant to the order of court of 19th April, 2012 granting seven (7) days within which to file same.

In arguing the sole issue formulated by the respondents the learned counsel reviewed the proceedings before the previous judge M. O. Olagunju, J. before the trial de novo before A.A Aderemi, J. from whose proceedings this appeal arose. The proceedings of 23rd February, 2011 was highlighted to show that the Respondents had complied with the new Rules while the Appellant was not ready to proceed, following which the case was adjourned to 16th, 17th and 21st March, 2011 for definite hearing. It was argued that the appellant did not comply with the new Rules as at 16th March, 2011 when hearing was to commence as earlier ordered by the lower court that is, filing witnesses’ depositions and front loading all relevant processes they would wish to rely on at the trial and that there was no application for extension of time to do so. On the date fixed for hearing, the appellant’s counsel did not appear instead a letter for adjournment on the basis of ill health was written, which was opposed by the respondents upheld by the lower court see, page 40-41 of the printed records. All these, the learned counsel said were to delay the hearing of the matter, the case of ONONOJU VS. ONONOJU (1991) 5 NWLR (pt.192) at PAGE 479 was cited and relied upon.

Further, it was submitted that the grant of an adjournment is at the discretion of the court and that to succeed on appeal against a refusal, it must be shown that the discretion was wrongly exercised, see, ASO MOTEL KADUNA LTD. VS. DEYEMA (2007) ALL FWLR (PT.390), 144 at 1478, STATE VS. DUKE (2003) 5 NWLR (Pt.813), 394 at 431, ODOGWU VS. ODOGWU (1992) 2 NWLR (PT.253) 444, and QUEEN VS. ONYEDIRE (1961) 1 ALL NLR 642.

It was further argued that there are other counsel in chambers apart from Mr. Adetunbi who was said to be ill, reference was made to Exhibit III and page 53 of the records where names of other counsel appear. The learned counsel to the respondents was of the view that Mr. Adetunbi who was said to be ill was not ill, reference was made to the medical certificate, page 57A of the records dated 16/3/11 while the letter from Best care Hospital on the same page 57A of the printed records falsely reported that counsel visited the hospital on 15/3/11.

We were urged to hold that the trial judge properly exercised his discretion. It was argued that the appellant’s allegation of bias was not borne out of the records, the proceedings of 17th March was highlighted to the effect that E. E. Enos was to Cross examine the only witness who had testified as CW1, counsel informed the court that he was not ready to do so, applied to leave the court, page 58 of the records.

Further, that by an application dated 24th March 2011, filed on 25th March, 2011 the appellant sought extension of time within which to file its list of witnesses, witnesses’ statement on oath, list and copies of documents to be relied on at the trial out of time and an order deeming all the processes filed as properly filed, see pages 93 – 95 of the printed records. It was submitted that the application was granted by the lower court. It was argued that by another application dated and filed on 24th March, 2011 by the appellant, leave was sought to recall the claimant’s witnesses (who had testified and discharged by the lower court) for cross examination, page 102 -106 of the records. The application was said to have been granted and the witness (1st Respondent) recalled and cross examined. On the appellant’s application the case was adjourned to till 2nd May for the cross examination of the other witness who testified for the Respondent and to open up its case. The learned counsel to the respondent was of the opinion that there is no live issue in this appeal since the case has continued to be heard in the lower court. This appeal is said to be academic, reliance was placed on the following cases, A.G. FEDERATION VS. ANPP (2003) 12 S.C. PART 11, 146 at 170, AKEREDOLU VS. AKINREMI (1986) 2 NWLR (Pt.25) 710 AT 725; ATAKE VS. AFEDJUKU (1994) 9 NWLR (Pt.368) 379 at 402; TANIMOLA VS. SURVEYS and MAPPING GEODATA LTD. (1995) 6 NWLR (Pt.402) 617 at 626 – 627. We were urged to dismiss the appeal as it is academic and speculative, aimed at delaying the hearing of the matter.

In reply on Points of law, it was the contention of the learned counsel to the appellant that this appeal is not academic. It was submitted that even though the application for stay of proceedings had been discontinued in the lower court, same was pending before this court which the lower court was notified of the pendency by a letter dated 25th March, 2012 filed in the lower court’s registry on the same day, page 96 – 98 of the record. The appellant submitted that, thereafter, it requested for a temporary stay of proceedings pending that of this court but that the lower court did not grant the application.

It was argued that there was no order for stay of proceedings from the lower court or this court when the trial court in the absence of the appellant adjourned the case for address and that the appellant for this reason was forced to continue participation in the trial, otherwise, that judgment would have been given against the appellant.

It was submitted that, by the continuation of hearing, the lower court attempted to foist a position of helplessness on this court; reliance was placed on the cases of MOHAMMED VS. OLAWUMI (1993) 4 NWLR (Pt.287) 254 at 261 RATIO 4, at PAGE 278. PARAGRAPHS D-E, PAGE 281, PARAGRAPH E-H.

It was the contention of the learned counsel to the appellant that the authority of a superior court ought not to be taken for granted or ignored while relying on the cases of OKANJO vs. ODJE & ORS (1985) N.S.C.C, 1276 at 1277 LINES 35-44; OSAKUE VS. F.C.E.; ASABA (2010) 10 NWLR (Pt.1201) 1 at PAGES 35 – 37; ENITAN VS STATE (1986) 3 NWLR (pt.30) 604 at 612 PARAS. C-D and OLASENI VS. OLASENI (2010) 5 NWLR (Pt.1187) 225 at 247 PARAS. A-D, PAGE 229 RATION 4. It was also argued that the case at hand has not become academic in that in Olaseni’s case (supra) this court set aside the entire judgment even after the case had been concluded by the learned trial judge ignoring a pending application for stay of proceedings as in this case.

Further, that where the issue of likelihood of bias has been raised and sustained even if a final judgment has been given, it must be set aside, reliance was placed on the cases of ABIOLA VS. FEDERAL REPUBLTC OF NIGERIA (1995) 7 NWLR (pt.405) PAGE 1, in arguing that the issue of bias is a live issue before this court and is not academic.

On the medical report bearing a different date from the doctor’s letter saying learned counsel was admitted bearing another date, it was submitted that this is an allegation of a forged medical certificate which is criminal in nature and ought to be proved beyond reasonable doubt, see NWOBODO VS. ONOH (1984) 15 N.S.C.C. 1 and SECTION 135(1) OF THE EVIDENCE ACT, 2011. Learned Counsel was of the opinion that the lower court ought to stay its proceedings pending the application for stay of further proceedings before this court. We were once again urged to allow the appeal, set aside the proceedings at the court below and order a trial de novo before another judge.

From the grounds of appeal and the issues formulated by the parties the crux of this appeal is the refusal of the trial court to adjourn the case based on the application of the appellant (as defendant) for the reason that the counsel handling the matter previously was said to be ill and produced a medical certificate from a doctor to that effect. The Appellant in its brief formulated three issues for determination while the respondent formulated a sole issue. The three issues of the appellant’s could be condensed into one that is:

Whether in view of the circumstances of this case the learned trial judge on 16th March, 2011 exercised his discretion judicially and judiciously in refusing the application for adjournment.

On this court’s power to formulate issue(s) for determination in an appeal, in the case of LABIYI VS. ANRETIOLA & ORS (1992) 8 NWLR (Pt.258) 139; KARIBI WHYTE, JSC at page 159 paragraphs E – F held that:

“The court below was free either to adopt the issues so formulated by learned counsel or to formulate such issues that are consistent with the grounds of appeal filed by the appellant”.

See, also ADEDEJI VS. NBN (2001) 35 WRN 147 at 151 and N.E.P.A. VS. SIEREORE (1997) 7 NWLR (Pt.511) 135 AT 152.

From the introductory part of the appellant’s brief, at paragraph 1, page l, the last sentence reads thus:

“This appeal was not founded on the mere fact of refusal to grant an adjournment which is within the discretion of the court to be exercised judicially and judiciously (sic), but on the ground that the said discretion was exercised in utter violation of known principle of law and around circumstances foreshadowing likelihood of bias of the court below against the defendant/appellant.

(underlining mine for emphasis)

From the above, it is clear that the learned counsel to the appellant has agreed and/or recognized the fact that grant or refusal of an adjournment is at the discretion of the court. The appellant’s grouse is that the discretionary power exercised by the lower court in refusing to grant the application for adjournment was in violation of the law and circumstances of the likelihood of bias against the appellant as defendant. The appellant having agreed that the grant or refusal of adjournment is at the discretion of the court there would be no need for me to go through the line of authorities in support to establish same but, I would rather limit the resolution of the sole issue to whether the exercise of discretion by the lower court was judicially and judiciously exercised or on the other hand whether it was arbitrary and non/improper exercise of discretion, one thing is clear; the exercise depends on the facts and circumstances in the particular case, there is no hard and fast rule guiding such exercise, therefore no one case can be an authority to determine another because the circumstances leading to the application’s refusal or grant are not and cannot be the same. At the same time it is not granted because it has been applied for, see ODUSOTE VS. ODUSOTE (1971) 1 NMLR 228; SOLANKE VS. AJIBOLA (1968) 1 ALL N.L.R. 46 at 54; BAMAWO VS. GARICK (1995) 6 NWLR (Pt.401) 356 AT 367 and OBOMHENSE VS. ERHAHAN (1993) 7 NWLR (Pt.303) 22 at 45.

Therefore, as rightly argued by the learned counsel to the respondents, in order to succeed on appeal against a refusal as in the present case, the appellant must show that the trial court exercised its discretion wrongly. In OBOMHENSE VS. ERHAHAN (SUPRA) HIS LORDSHIP, KARIBI WHYTE, JSC at PAGE 45 held that:

“The grant of adjournment in a cause is a matter entirely within discretionary jurisdiction of the court; which it can exercise circumstances of the case.” (underlined mine for emphasis)

In the present case, has the appellant placed before the court facts or reasons to show that the learned trial judge did not exercise its discretion correctly. We will examine the facts before the court on 15th March, 2011 when the application was refused.

The matter was undoubtedly fixed for 16th, 17th and 21st March, 2011 for hearing. In Exhibit III, list of cases for the week 14th-18th March, 2011 at page 53 of the records, or the list, on the 16th March, the present case was listed against three names of counsel, they are: the principal (Musibau Adetunbi), Bolatito and Kunle. The letter of adjournment written on Musibau Adetunbi & Co’s letter headed paper, dated 16th March, 2011 was signed by Enos Jocob Esq for Musibau Adetunbi & Co. At the foot of the letter of adjournment (page 52 of the records) there is a list of counsel in the chambers of Musibau Adetunbi & Co, in which the principal partner is Musibau Adetunbi who was said to be sick and was issued with a medical certificate, page 52A of the printed records. From Exhibit III, at least one of the three learned counsel in the chambers was expected to appear on the 16th March. Taken that the Principal took ill, nothing was said to explain the absence of Bolatito and Kunle, both counsel listed to appear in court on the said date. Further, none of all the other listed counsel in chambers attended court; there were more than ten names of counsel listed in the letter of adjournment, including the author of the letter, page 52 of the records. It is on record that when the adjournment was sought through the letter, the respondent opposed its grant and pointed out that even though the application was sought to enable Musibau Adetunbi Esq handle the matter personally, part of the letter read thus:

“We are counsel for the defendant in this case. This case has been fixed to today, the 16th and 17th and 21st of March, 2011 for hearing by this Honourable Court.

However, our Principal Partner Mr. Musibau Adetunbi who is seised of the facts of this case and who has been personally conducting the trial, has unfortunately taken ill and is presently receiving medical treatment at a private hospital in Ibadan.”

But, in the submissions of the learned counsel in opposing the application, pages 40-41 of the printed records, submitted that the two times the parties appeared in the past, one Adekunle Adesina appeared on 13/10/10 and when the 16th March, 2011 date was fixed, on 23/3/11, E. E. Jacob appeared for the defendant (appellant) and on each occasion he did not hold the brief of any counsel, see also pages 2-3 of the appellant’s brief where learned counsel reproduced pages 40-41, the opposition of the adjournment sought by the appellant on the basis of the ill health of the Principal, Musibau Adetunbi Esq. The appellant has not shown or argued that Mr. Adesina and/or Mr. Jacob did not appear in this case on the above mentioned dates. Learned counsel’s quarrel is that the trial court agreed with the respondent’s counsel. When the trial court held as follows, at page 41 of the printed records:

“COURT: I agree entirely with the submission of the Learned Counsel to the claimant Bode Elemide, Esq. he has fully expressed the mind of the court. I sympathize with Musibau Adetunbi in respect of his health. But as rightly observed by the learned counsel about 10 other counsel are in this court who have been appearing before this court in respect of this case and who can also handle this matter.”

Obviously the trial court was in agreement with the submissions of the learned counsel to the claimant to the effect that Musibau Adetunbi’s absence should not have stopped the representation of the defendant by counsel that previously appeared in the matter from the same firm or any of the other counsel listed in the same chambers. The trial court was in my humble view not under any obligation to grant the application under these circumstances, where the applicant is not alone in chambers.

The authenticity of the medical certificate at page 52A of the printed records, and the letter from Best Care Hospital is not in issue as alleged by the learned counsel to the Respondent who termed the variance in dates as fraudulent. Whether, both documents bore the same date or different dates it would not have made a difference in the refusal of the adjournment. The learned trial judge did not make the variance in the dates the basis for the refusal of the adjournment.

The trial court merely looked into its records, which it is permitted to do, and in fact sympathized with the absent Musibau Adetunbi Esq. but, did so considering that there were other counsel in the firm that could have attended court on the said 16th March, 2011 when the matter was listed for hearing. There is nothing in the above pronouncement of the trial court to show that same was arbitrarily done or that it put the neutrality of the lower court in doubt as alleged by the appellant.

The appellant has not shown on record that it is not true that there were several other counsel in chambers, those who had appeared in the past and others who had not.

The learned counsel to the appellant in his brief dwelt on the issue of fiat, whether it opposed same or not, it did not form part of the ruling that gave rise to this appeal, it is therefore not in issue. The learned counsel to the appellant also acknowledged this fact, at page 4 paragraph 2.7 of his brief when he submitted thus:

“Our humble submission is that the relevant grounds of appeal do not have anything to do with whether we opposed the application for fiat or not.”

The issue of fiat was not covered in the grounds of appeal and the issues formulated for determination. I would and do hereby discountenance all the argument on opposition or not of the grant of the fiat after the matter was billed to start de novo before A. A. Aderemi, J. The appellant alleged bias by the trial court in refusing the application, the alleged bias was not established. The allegation of private conversation between the trial court and counsel to the claimant was not substantiated.

The learned counsel to the appellant also recognised this fact when at page 6 of his brief he submitted that:

“We are not making a positive allegation that indeed her Lordship and counsel to respondents did discuss behind us. Our simple contention is that the arithmetic of her Lordship knowing what was purportedly discussed between counsel and which was not brought to the knowledge of her Lordship officially is bound to create an impression and did create that impression that there was a behind the scene discussion between her Lordship and learned counsel for claimants/respondents’ ”

At the same page 6 of the brief the learned counsel had submitted as follows:

“If there were no communication between the counsel for the respondents and learned judge of the court below, it would be very difficult or indeed impossible for the learned judge to know what the counsel for the respondents knew'”

Before these submissions, at page 5 of the appellant’s brief the learned counsel had submitted that,

“It is our humble submission that a reasonable person who has no interest in this matter howsoever would come to the conclusion that the learned senior counsel for the claimant and the honourable court below were communicating behind the defendant and her counsel in respect of this matter.

…………………………………………………………………….

Simply put the implication of her Lordship ruling is that the court has a mind against the interest of defendant. This is what the apex court called judicial bias.”

From all of the above submissions, with due respect, it is clear that the learned counsel to the appellant is fishing on the allegation of bias, by his argument going back and forth. Learned counsel seems not to be sure about the outright allegation of bias on the part of the trial court, in one breathe he submitted that the trial court was biased against the appellant in another breathe submitted that he is not saying the trial court was biased! It was an argument of arguing ways, blowing hot and cold like trying his luck, for this reason also I discountenance all the argument and legal authorities cited in its support on the alleged judicial bias.

I agree with the submissions of the learned counsel that an allegation of bias must not be lightly made because it is not only an attack on the concerned learned trial judge but, also an attack on the entire judicial system and must be real before it is made, the reality is the ability of counsel to prove or substantiate the allegation.

The learned counsel to the appellant reviewed the proceedings of 17th March, 2011, the challenge of the records of the lower court on that day, the pendency of the application for stay of proceedings highlighted on 17th March, 2011; all these in my humble view are not relevant to this appeal. The appeal is against the ruling of 16th March and not the proceedings of 17th March. All the argument in that respect is hereby discountenanced.

The learned counsel to the appellant in urging us to set aside the ruling of 16th March, 2011 and order a trial of the suit de novo before another judge, the proceedings of 17th March, 2011 was further reviewed as well as a challenge of the lower court’s records, which do not form the basis for this appeal. In this appeal the proceedings of 17th March, 2011 which was challenged by the appe llant in its brief is outside the scope of the present appeal, is earlier stated in this judgment therefore the proceedings cannot be set aside as urged by the learned counsel to the appellant.

On the authority of SOLANKE VS. AGBADA (1968) NSCC 40, we were urged to reverse the exercise of the lower court’s discretion in refusing an adjournment where there is a medical report showing that Musibau Adetunbi Esq was ill and could not attend court. In my humble but firm view, this above case can be distinguished from the present case in that the facts and circumstances are not the same. In Solanke’s case (supra) the plaintiff’s counsel was shown to have sought and been granted adjournments several times from the history of the case, while the defendant’s counsel sought for an adjournment on the basis of ill health, which did not mean unwillingness to prosecute the case. In that case on appeal the appeal was allowed and the judgment of the lower court set aside, the refusal by the trial court was held to be arbitrary and the discretion exercised by the trial court was reversed. I am of the firm but humble view that every case therefore must be considered with the surrounding circumstances, and the particular facts of each case. It is not applicable to the case at hand.

It was argued that, the adjournment ought to have been granted because of the medical certificate and the letter, I am not aware of any law that says that a production of a letter and/or a medical certificate to explain counsel’s absence from court entitles counsel to an automatic grant of an adjournment without the court examining other factors surrounding the case.

In my humble view,and as rightly argued by the learned counsel to the respondents, no other counsel appeared from the chamber of Musibau Adetunbi & Co to handle the matter on 16th March, 2011 when the matter was fixed for definite hearing. It is obvious that the adjournment sought was to delay the hearing of the suit and defeats the ends of justice; justice after all is for both parties.

On the other hand as rightly argued by the learned counsel to the respondents, the appellant know that the application for adjournment was to buy time and to delay the hearing of the substantive suit and on seeing that the trial court did not encourage this antic and/or tactics, the appellant after the proceedings of 16th March, 2011 which resulted in this appeal, filed an application for stay of proceedings dated and filed on 17th March, 2011 (the date fixed for continuation of hearing from 16/3/11) which in his brief was dwelt on, see page 66-67 of the printed records for the application, which was dwelt on in arguing this appeal to the effect that the trial court ought not to have continued with the subsequent hearing of this case with the pending application for stay of proceedings. Learned counsel heavily relied on the case of OLASENI vs. OLASENI (SUPRA). From the 16/3/11 the case was adjourned to 17/3/11, and subsequently to 28th March, 2011, see pages 58-59 of the printed records, the proceedings of 17/3/11.

It is noteworthy that E. E. Jacob Esq. Of the same firm was in court on 17/3/11 the next adjourned date from 16/3/11, instead of continuing with the hearing informed the court that he was not ready to cross-examine the witness, CW1 instead he applied to leave the court and indeed was allowed to do so by the trial court. On the same date, Mr. Jacob chose to file an application for stay of proceedings. At page 58 of the printed records the proceedings of 17/3/11 went thus:

“Claimant Present-:

Defendant absent.

Bode Elemide for the claimant with him is

Miss Moji Aworemi.

E. E. Jacob for the defendant.

Case is for further hearing Mr. Jacobs:

CW1 is presented for cross examination.

Mr. Jacobs informed the court that he is not ready to cross exam the witness.

RE EXAMINATION: – NIL

At this stage Mr. E. E. Jacobs applied to live the court. He is allowed to leave the court.”

The proceedings continued in the absence of Mr. Jacobs, at the end of which the case was adjourned to 28/3/11. It is also worthy of note that Mr. Jacob was the same counsel that had agreed on the dates for hearing, including the 17/3/11 when he was not ready for cross examination of cw1 and asked to be excused from court for no reason, except in my humble view that he was not prepared for court and wanted to delay the proceedings further.

This confirmed the trial court’s mind and the submissions of the learned respondents’ counsel that the appellant as defendant was purposely delaying the matter and that any other counsel in the same chambers could have attended court on 16/3/11 and proceeded with hearing.

At page 92 of the printed records there is a notice of discontinuance of the application for stay of proceedings 22/3/11 in the lower court dated and filed on 23rd March, 2011. In the second paragraph of the said notice, signed by the same counsel Musibau Adetunbi Esq. (who was said to be ill on 16th March, 2011 when the adjournment was sought.) Learned counsel said a similar motion for stay of proceedings had been filed in this court and Division, the particulars were not indicated in the letter of discontinuance.

From the records of court (page 96 of the printed records.) there was a letter dated 25th March, 2011 to the Registry of the lower court notifying the registry of the pendency of the application for stay of proceedings fixed for 28th March, 2011. Attached was the hearing Notice dated 24th March, 2011 served on the then respondents in the motion for stay of proceedings on the same day, page 99 of the records. The motion paper itself was dated 21st March, 2011 and filed on 22nd March, 2011.

Meanwhile before the 28th March, 2011 the date for continuation of proceedings in the lower court and the same date fixed for hearing the application for stay of proceedings in this court, precisely on 25th March, 2011 (same date of the letter of notification of the pendency of the application before this court) the appellant filed the two applications dated 24th March, 2011 before the lower court. See pages 93-95 and 102-106 of the printed records. The details of the applications would be highlighted hereafter.

Interestingly, at pages 93-96 of the printed records of appeal, there is an application brought by Bolatito David of Musibau Adetunbi & Co. Chambers whose name had appeared at pages 53-54 as one of the counsel handling the matter in the firm of Musibau Adetunbi & Co. was also not in the court on 16/3/11.

The said application before the trial court was dated 24th March, 2011 filed on 25/3/11 the prayer sought as follows: (page 93 of the records)

(1) “An Order of this Honourable Court, extending the time within which the defendant/applicant shall file its list of witnesses, witnesses’ statement on oath, list and copies of documents to be relied on, at the trial, out of time.

(2) An Order Deeming the defendant/Applicant’s list of witnesses’ Statement on oath, list and copies of documents to be relied on, at the trial, already filed and properly filed and served.

ANY SUCH FURTHER ORDER OR ORDER AS this Honourable court may deem fit to make in the circumstances of this suit'”

In the supporting affidavit to the application, paragraph 5 states that the claimant/respondent filed their statement of claim on 20th December, 2010. By paragraph 6 of the same affidavit the statement of claim and other front-loaded processes were served “sometime in January, 2011, the exact date was not specified by the deponent.

Paragraph 7 acknowledged that by the Rules of the High Court, the defendant/applicant upon service of the witnesses’ statement on oath and other processes had thirty (30) days to file his statement of defence, written statement on oath and other accompanying documents, see page 94 of the Printed records.

From all of the above, it is clear that as at 25th March, 2011 when the application was filed the appellants as defendants had not filed these processes as at 16/3/11 when the matter came up for hearing.

The same trial court accused of bias and wrongful exercise of discretion granted the application for extension of time to file list of witnesses, witnesses’ statement of oath as prayed in the motion paper.

By yet another application dated and filed on the same dates as the previous application, that is 24/3/11 and 25/3/11 respectively the appellants filed another application seeking the following orders:

“1. AN ORDER OF THIS HONOURABLE COURT GRANTING LEAVE FOR THE APPLICATION TO RECALL THE CLAIMANTS’ ALREADY DISCHARGED BY THIS HONOURABLE COURT FOR CROSS EXAMIANTION.

ANY SUCH FURTHER ORDER OR ORDERS as this Honourable Court may deem fit to make in the circumstances of this suit.”

(underlined mine for emphasis)

Paragraphs 4 and 5 of the grounds for the application reads as follows:

“4. This honourable court refused the application for an adjournment and called the claimants witnesses who were not cross examined by the defendant’

5. The defendant/Applicant descries to cross examine the witnesses, and to object to some of the documents tendered.”

The application is at pages 102 -106 of the printed records. The lower court also granted this application; this fact was not refuted, in the appellant’s reply brief.

It was submitted by the learned counsel to the appellant that after the grant of the applications, the learned counsel to the appellant on 20th March, 2012 recalled the 1st Respondent (who testified in his absence) and Cross-Examination of the other witnesses who testified and for the appellant as defendant to open up his case, All these facts were conceded, the appellant did not in any way refute or challenge these as untrue or have a contrary record of events after 16th March, 2011. The continuation of hearing with the appellant participating fully was not denied.

The mere filing of the two applications after 16th March confirms that the adjournment sought on that day was because the appellant was out of time to file his processes after service on him of the statement of claim.

With due respect, I am of the opinion that the appellant was using the lower court as a scape goat for his laxity and turns round to allege bias by the refusal of the adjournment which was sought because all the processes had not been filed nor front loaded within the stipulated period.

On the same date 25/3/11 the two applications were filed, the appellant through Adekunle Adesina Esq. one of the counsel in the chambers of Musibau Adetunbi Esq wrote a letter to the High Court registry to which he attached a copy of the hearing Notice and a copy of the proof of service of the motion on Mr. Bode Elemide, counsel to the claimant, fixing the application for stay of proceedings in the Court of Appeal for 28th March, 2011, see page 96-99 of the printed records.

This interlocutory appeal is against the Ruling of the High court on 16th March, 2011. The letter notifying the high court of the pendency of the motion for stay of proceedings in the court of appeal is dated 25/3/11 and the case fixed for 28/3/11. The learned counsel to the appellant in his reply brief and main brief argued that he notified the trial court of the pendency of the application for stay of proceedings pending before this court, the notification was on 25/3/11 long after the appellant proceeded with hearing after being granted extension of time to regularise his processes.

I have looked at the proceedings of 16/3/11 there was no mention of the pendency of any such application before this court. The trial court on the 23/2/11 when the matter was fixed for hearing was in the presence of E. E. Jacobs Esq. of counsel to the Appellant who sought the adjournment on the basis that the witness who was to sign the witnesses’ deposition was on leave and would be back in two weeks.

On 16th march, 2011 the date agreed upon in the presence of counsel to the appellant who also chose to be absent on that date, after the proceedings was stood down. There is nothing to show (when the court resumed) that any mention was made of the application for stay of proceedings, I did not see it in the printed records, pages 40-44, I do not therefore agree that the lower courts disrespected this court by the proceeding of 16/3/11, the case of MOHAMMED vs. OLAWUNMI (1993) (supra) relied upon by the learned counsel to the appellant is not applicable in the present circumstances. The appellant’s counsel argued that the appellant was forced to continue to participate in the trial after 16/3/11. There is nothing on record to substantive this allegation by counsel, who on his own volition brought the application to regularize his processes to enable him participate in the proceedings. The issue is that the appellant fully participated on 20th March and argued the applications that brought him fully back into the proceedings.

The learned appellants counsel also relied heavily on the case of OLASENI VS. OLASENI (supra); coincidentally I had the privilege of writing the leading judgment in that case. The facts were not the same as in the present case. In olaseni’s case (supra) there was a pending appeal against the Ruling of the trial court, and an application to stay, proceedings in the trial court was also pending in this court and both were brought to the Notice of the trial court who proceeded with hearing of the substantive matter in course of which several applications which were off shoots of the Ruling and pending appeal were struck out. The trial court also resolved issues in the interlocutory application which bordered on the same issues in the substantive matter. Again, when all the processes had not been filed, the trial court stampeded the appellant in that case to continue with the matter and made sure judgment was given before the date fixed for hearing the appeal against the ruling and the application for stay of proceedings pending in this court. The facts and circumstances were not the same as in the present case and is therefore not applicable. As at 16/3/11, the date of the ruling that gave rise to this appeal, the lower court could not have been made aware of a process filed on 22/3/11 as argued by the appellant’s counsel.

In any case, with the appellant’s applications for extension of time to file witnesses statement on oath, list of witnesses and list of documents to be relied upon and a deeming order, and the second application seeking leave for the applicant to recall witnesses earlier discharged by the trial court shows that the appellant had abandoned the application for stay of proceedings and conceding his laxity, which he remedied by these applications and prosecution of the substantive matter. Learned counsel has continued participating in the proceeding up till when this appeal was filed and argued.

With a look at the prayers sought in this appeal, paragraph 2.5 of the reply brief, the appellant urged this court to stay further proceedings in view of the pending application for stay of further proceedings before this court, this would be an appropriate prayer if this was an appeal against a refusal of a stay of proceedings by the lower court. The appellant also urged us to set aside all the proceedings at the court below and order a trial de Novo before another judge. With respect learned counsel to the appellant is blowing hot and cold, in one breathe urged for a stay of proceedings in view of the pending application for stay of proceedings before this court, in another breathe urged that the matter starts de Novo before another judge, all these in my view would and is aimed at further delay of the substantive suit which is still pending before the trial court.

It is observed that the appellant filed his brief in this appeal on 6/3/12 and thereafter proceeded with the hearing of the case in the trial court on 20th March, 2012, after which he proceeded to file his reply on points of law in this appeal on 14/5/12 after the respondent’s brief was filed on 23/4/12.

The courts have constantly frowned at this type of attitude of delay tactics to frustrate the hearing of the substantive suit in the lower court. I am of the humble view that the moment the learned counsel to the appellant made up his mind to participate in the proceedings and regularized his processes he ought to and should have withdrawn this appeal and concentrated on the continuation of hearing of the matter in the lower court. A lot of time, energy and resources would have been saved, see, AJUWA VS. S.P.D.C.N. LTD (2011) 18 NWLR PAGE 797 at 841, PARAGRAPHS C-F. On the other hand, this interlocutory appeal was unnecessary; it could have waited until the final conclusion of the trial. Any party dissatisfied with the final decision could appeal once and for all on the interlocutory decision and the substantive judgment. The courts are inundated with interlocutory applications and appeals that would not end the substantive matter to the extent that all that the litigants and counsel end up achieving is recycling motions and interlocutory appeals while the real issues remain unresolved for years. This should be discouraged.

In this case all the cases relied upon in support of bias on the part of trial court are not applicable in the circumstances of the present case, and all the cases along the line of OLASENI (supra) in respect of the courts’ attitude in respect of continued trial when there is a pending appeal over on interlocutory ruling and application for stay of proceedings do not apply in the instant case.

Since the appellant agreed or conceded that an adjournment by a court is discretionary but alleged bias on the part of the lower court which was not established but, argued that the reasons behind the refusal was not justified. With details of the events surrounding the 16th March, 2011 when the application was refused and the proceedings after the said date, it is patently clear that the learned trial judge exercised his discretion judicially and judiciously.

There is no reason for this court to interfere with such discretion.

In CEEKAY TRADERS LTD VS. GEN. MOTORS CO. LTD (1992) 23 N.S.C.C. (Pt.1) 180 at 202; (1992) 2 NWLR (Pt.222) 133 at 163, His Lordship Olatawura, JSC (Of Blessed Memory) held that:

“This court can only interfere with the exercise of discretion where it was not exercised judicially or judiciously. NTUKIDEM & ORS VS. OKO & ORS (1986) 17 N.S.C.C. (Pt.11) 1303;

(1986) 5 NWLR (Pt.54) 909.”

In my firm but humble view, in the particular circumstances of this case the trial court exercised its discretion in accordance with the principles of law and practice governing such matters, I cannot fault it and we cannot interfere with same.

On the other hand, of what purpose would the outcome of this appeal serve on the part of the appellant, either way the decision goes, when the appellant has continued with the hearing of the suit in the lower court, such fruitless pursuit ought to and should be discouraged on the part of counsel.

In the final analysis, I am at one with the trial court’s refusal of the adjournment; the court was not satisfied or convinced that there were facts before it to enable the exercise of discretion to grant the adjournment sought by the appellant. The appellant failed to establish that the lower court exercised its discretion on wrong grounds reasons, or materials not before him. There is no merit in alleging bias and wrong reasons for the refusal alleged by the appellant.

The appeal is without merit, same is hereby dismissed.

I award costs of N30,000.00 (Thirty thousand Naira) in favour of the Respondents.

MONICA B. DONGBAN-MENSEM, J.C.A.: I agree with the lead Judgment prepared by my learned brother UWA, JCA. There is no reason for this Court to interfer with the exercise of discretion by the learned trial Judge for the reason that no perversity has been cited nor established en-rapping the said exercise Refers: CEEKAY TRADERS LTD VS. GEN. MOTORS CO. LTD. (1992) 23 N.S.C.C. (Pt.1) 180 at 202; (1992) 2 NWLR (PT.222) 133 at 163; ASO MOTEL KADUNA LTD V. DEYEMA 2007 ALL FWLR (part 390) 1444 at 1478; ODOGWU VS. ODOGWU 1992 2 NWLR (PT.253) 444.

It appears impetuous of the learned Counsel to the Appellant to make a mountain out of a mole hill. What operates in the mind of a Judge when an application is made for an adjournment on a date the matter is set down for definite hearing; is: why the application, it is a ploy for delay? These are some of the reasons a Judge must consider in the exercise of the discretion to grant or to refuse to an application for an adjournment. This was 16th March 2011.

The claimant had, upon the order of the court, fronted-loaded since 20th December, 2010. Almost three months after, the 16th March, 2011 the Defendant had not front-loaded, no application was placed before the court for an order extending the time to front-load and then an empty seat .for the Defendant’s Counsel on a date set down for hearing! A conscientious Judge must be concerned and these facts which are well known to the Court, must weigh down on the mind of the Judge who should, in the circumstance, not be very eager to grant an adjournment.

The learned judge was entitled to wonder aloud what is going on with the Defendant? Granted the principal partner is indisposed, what about other learned counsel in chambers? Not even one of the learned counsel could appear or at least file an application for an order extending the time with which to front-load?

These were weighty facts of good Judicial & judicious contemplation in the circumstance. The insinuation that the learned trial judge had prior knowledge of matters not before the court is mischievous. No facts have been disclosed to substantiate that inference. The learned silk for the claimant had mentioned that among other facts and the other facts are matters within the precinct of the Court.

This appeal is without merit and is hereby dismissed with cost as ordered in the lead judgment.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I had the honour of reading in advance the exhaustive judgment of my learned brother, Uwa, J.C.A., with which I agree with these few words.

In as much as certain legal briefs may be personalised by counsel operating a law firm comprising numerous counsel, prudence demands that at no point in time should a legal brief pending in court be left at the vagaries of a particular counsel, for the important reason that the business of the court should not be allowed to suffer because of the absence of counsel in court to conduct his case for his client. Public time as well as the time of the litigants are always weighed in balance before an adjournment of a case is considered and granted or refused see Nigerian Ports Authority v. C.G.F.C.S. and Anor. (1974) 1 All N.L.R. 463 at 471-472 thus:

“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.” (my emphasis).

Here much as the ill-health of learned counsel, Mr. Musibau Adetunbi, who was handling the case, was naturally capable of evoking the sympathy of the court, the fact that the indisposed learned counsel was not operating solo legal practice but had numerous other learned colleagues in the law firm at the material time who at one point in time had severally appeared in the case and were deemed to be conversant with the case called for the continuation of the proceedings of that day by any of the other said learned colleagues of Mr. Musibau Adetunbi, whose absence in court on that day was not explained – see Adeka and Anor. v. Vaatia (1987) 1 N.W.L.R. (Pt.48) 134, 137 thus –

“If any member of a firm of solicitors acting for the litigant is unable, for one reason or another to appear, in court, any other member of the firm should be able to stand in for him.”

In the peculiar circumstances of the case, although the proven ill-health of Mr. Musibau Adetunbi was made out and obviously justified his absence in court on that day of the proceedings, the remedy of another counsel from his law firm stepping in his place was available but was not exploited, therefore the court below properly exercised its discretion to refuse the adjournment sought in the peculiar circumstances of the case. This is not an appropriate case to intervene or review the discretion exercised in the matter by the court below as it balanced the facts before the court below stringently, but judiciously and judicially, exercised its discretion against the appellant – see Enekebe v. Enekebe (1964) 1 All N.L.R. 102, Odusote v. Odusote (1971) N.S.C.C. 231.

It is on account of the reason given above and for the thorough consideration of the matter by my learned brother, Uwa, J.C.A., that I also dismiss the appeal as devoid of merit with N30,000 costs to the respondents.

Appearances

Musibau Adetunbi Esq for the Appellant with J. Olatunji and I. Akanle (Miss).For Appellant

AND

Bukola Adeniyi (Miss) with Dolapo Olutayo (Mrs)For Respondent