Abiodun A. Odusote V. Olaitan O. Odusote (1970)

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UDOMA, J.S.C.

This is an appeal against the order the Western State Court of Appeal summarily dismissing an appeal no.CA W/68/69 a matrimonial cause. Only one short but important point of practice has arisen for consideration and decision in the appeal.

The circumstances which gave rise to the appeal are these:-
On 29th September, 1967, the respondent herein as petitioner, filed in the High Court of Ibadan, suit no. 1 /191 /67 a petition of divorce for the dissolution of his marriage with the appellant, who was therein respondent.

On 4th November, 1967, the appellant duly filed her answer to the petition. On 14th March, 1968, when the petition came up for hearing Mr. Aderemi, learned counsel for the appellant, sought and obtained leave to withdraw from the case as, according to him, he had been instructed by the appellant not to contest the petition. He accordingly withdrew.

The court then proceeded with the hearing of the petition, and on 15th March, 1968, E.B. Craig J. granted the respondent herein a decree nisi of divorce. An order for the custody of the children of the marriage was also made in favour of the respondent.
The appellant shortly thereafter appealed to the Western State Court of Appeal against the decision. On 12th May, 1969, the appeal came up for the first time for hearing. Mr. Aderemi again appeared for the appellant but this time, he informed the court that he was not in possession of the record of appeal and therefore was unable to go on with the appeal.

He said that Chief Williams who, apparently was to lead him in the appeal, was in possession of the record of appeal and had not then arrived; that after receiving the hearing notice which was served on him and Chief Williams, he contacted Chief Williams, who was aware that the appeal was coming up for hearing that morning; and that subsequently thereafter, all efforts on his part to contact Chief Williams had proved abortive. He thereupon asked for adjournment, as up to then he did not know when Chief Williams was likely to arrive.

The application for adjournment was opposed by the learned counsel for the respondent. There then followed this remark by the court:
“Court: In view of the fact that no sufficient reasons have been adduced we refuse the application for adjournment. The case will go on now.”
Mr. Aderemi then sought leave to withdraw from the appeal. He pointed out that he could not go on since he was not in possession of the record of appeal. Leave was accordingly granted and he withdrew from the case.

Then at the request of the court the name of the appellant was shouted out three times. There was no answer. It was therefore recorded that the appellant was not in court. The significance of this ritual of shouting out the name of the appellant three times seemed to us obscure as, according to the record, there was no evidence that the appellant was ever personally served with the hearing notice of the appeal nor indeed that she knew that the appeal was coming up for hearing that day. On the contrary, the only available information was that service was affected on counsel for the appellant.

There is another aspect of this matter which calls for comment. It is incomprehensible to us why learned counsel’s application to be discharged from the case was so readily granted, especially in the absence of the appellant. There was no indication on his part to the court that he was not instructed to appear in the appeal or that his instructions had been withdrawn or that there was disagreement between him and the appellant. If even there was any disagreement between him and the appellant, we do not think that the court would have been justified to discharge him from the appeal without hearing from the appellant.

Be that as it may, after the learned counsel had left the court, the following notes appear in the record of proceedings before the Appeal Court.
“Olatawura: Submits. Asks for dismissal of the appeal. Refers to order 7 rule 21. Rule 20 does not apply. This is an undefended petition. Refers to page 15, line 13 et seq. On page 29, there was leave to appeal. It would appear nobody is interested in the matter.

Court: This is a case where we think we should exercise our power under order 7 rule 21 to dismiss the appeal. Appeals hereby dismissed. ”
Consequent upon that order this appeal has been brought. The appellant has complained that the learned judges of appeal were in error in law and exercised their discretion under order 7 rule 21 injudiciously in dismissing the appeal summarily in the circumstances.

Mrs. Solanke, learned counsel for the appellant, contended that in the circumstances of this case and having regard to the predicament of the learned counsel for the appellant, as disclosed in the record of proceedings in the Court of Appeal, the application for adjournment should have been granted and that the refusal to adjourn the appeal has the effect of defeating the right of the appellant, as she has thereby been denied the opportunity of ventilating her grievances against the judgement of the learned trial judge and probably being granted some relief.

Learned counsel further contended that to have dismissed the appeal summarily was a wrong and arbitrary exercise of the discretion vested in the Court of Appeal under order 7 rule 21 of the rules of the court as applicable to the Western State Court of Appeal and that on the authority of Evans v. Bartlam (1937) A.C. 473 any discretion vested in a court must be exercised judicially.

We think there is considerable force in these submissions. We must not, however, be taken as accepting the wider proposition implied in the submissions that in all cases of this kind, a court is bound to grant adjournment. The question of adjournment is a matter in the discretion of the court concerned and must depend on the facts and circumstances of each case. For in matters of discretion, no one case can be authority for another and “the court cannot be bound by a previous decision to exercise its discretion in a particular way, because that would be in effect putting an end to the discretion” per Kay L.J. in Jenkins v. Bushby (1891) 1 Ch. 484 at p. 495.

It is of course true, as was submitted by Mr. Sonoiki, learned counsel for the respondent, that a wide discretionary power is conferred upon the court by order 7 rule  21, the provisions of which are in the following terms:
“21. (1) If the appellant fails to appear when his appeal is called on for hearing and has not taken action under rule 20 of this order, the appeal may be struck out or dismissed with or without costs.
(2) When an appeal has been struck out owing to the non appearance of the appellant the court may,  thinks fit, and on such terms as to costs or otherwise as it may deem just, direct the appeal to be re-entered for hearing.”

The short answer to Mr. Sonoiki’s contention is that, however wide the discretion of the court may be under this rule; the cardinal principle is that such power must be exercised judicially. According to the rule as set out above, having refused the application for adjournment, it was within the discretion of the court either to strike out the appeal or to have it dismissed. In view of the fact that this was a matrimonial cause, involving as it does the question of the custody of the children of the marriage, it is not clear to us why the court should have chosen the latter course, which has the effect of shutting out the appellant altogether from pursuing her appeal.

Had the appeal been merely struck out, it might then have been possible for the appellant to exercise her right, if she so wishes, under order 7 rule 21, sub rule (2) and apply to the court to have the appeal re-entered for hearing on whatever terms the court might deem fit. But the Appeal Court thought otherwise.

With respect, we are satisfied that in the circumstances of the present case the Court of Appeal was in error in refusing the application for adjournment and dismissing the appeal, especially as the appellant was herself not present in court and there was no evidence that she knew the appeal was fixed for hearing that day. It cannot be denied that the dismissal of the appeal in the circumstances has occasioned a miscarriage of justice and it will be wrong for us to hold that the court was justified in dismissing the appeal or that it was exercising its discretion properly and judicially in so acting. It is a well established principle of law that all judicial discretions must be exercised according to common sense and according to justice, and, if there is any miscarriage of justice in the exercise of such discretion, it is within the competence of a court of appeal to have it reviewed.

On the question of the exercise of discretion in granting application for adjournment, it is pertinent to quote a passage in the judgement of Lord Wright L.J. in Evans v. Bartlam (supra), to which our attention was drawn by the learned counsel for the appellant. In his judgement Lord Wright said at page 487:
“A judge’s order fixing the date of trial or refusing to grant an adjournment is a typical exercise of purely discretionary powers, and would be interfered with by the Court of Appeal only in exceptional cases, yet it may be reviewed by the Court of Appeal. Thus in Maxwell v. Keun ([1928] 1 K.B. 645) the Court of Appeal reversed the trial judge’s order refusing to the plaintiff an adjournment.

That was a pure matter of discretion on the facts. Atkin L.J. said (at p. 653):- ‘I quite agree the Court of Appeal ought to be very slow indeed to interfere with the discretion of the learned judge on such a question as an adjournment of a trial, and it very seldom does so but on the other hand, if it appears that the result of the order made below is to defeat the rights of the parties altogether, and to do that which the Court of Appeal is satisfied would be an injustice to one or other of the parties, then the court has power to review such an order, and it is to my mind, its duty to do so’.”

In all the circumstances of this case it seems to us quite clear that the Court of Appeal acted arbitrarily and did not exercise its discretion judicially.

This appeal therefore succeeds. It is allowed. The order of the Court of Appeal dismissing the appeal is hereby set aside. It is ordered that the appeal be re-entered for hearing by the Western State Court of Appeal.

The appellant is entitled to the costs of this appeal assessed and fixed at 56 guineas. Order accordingly.

Other Citation: (1970) LCN/1769(SC)