Abraham A. Younan & Ors. V. Professor Babatunde Williams & Ors. (2008)
LawGlobal-Hub Lead Judgment Report
AUGIE, J.C.A.
The Appellants are the Administrators and Executors of the Estate of late Chief Isaac Ojo Ajanaku and were the 3rd – 6th Defendants in an action filed by the Respondents at the Ibadan High Court of Oyo State, wherein they claimed a number of declaratory reliefs, including one that a Deed of Assignment dated 2/4/73 is not capable of transferring the absolute right, title and Interests in the property in dispute to Chief Ajanaku or his Successors in Interest. The Appellants however averred in their pleading that the said Chief Ajanaku became owner in possession of the property under the said Deed of Assignment; that he had exercised many acts of possession thereon by carrying out improvements on the property and letting it out to tenants without let or hindrance; and that the Respondents’ claim is statute barred.
This appeal turns on the issue of lack of fair hearing and it will be necessary to look at the proceedings in the lower Court In some detail. On 13/6/2002, the Respondents were granted an Application to amend their pleading and their counsel objected to the Appellants’ counsel’s application for an adjournment to correct their Statement of Defence. The lower Court ruled –
“The Application for an adjournment “to correct the errors to reflect their own Statement of Defence” made by Mr. Lawore is not only vague but also frivolous. It is refused. This case has been adjourned for hearing several times including today. It shall proceed to trial today”. (Italics mine)
The Respondents opened their case with the testimony of the 5th Respondent and the lower Court later adjourned the case to 14/6/2002. On 14/6/2002, the Registrar received a letter dated same day from Bandele Aiku & Co., seeking an adjournment “as Mr. Babatunde Aiku who is to handle this matter is away in Lagos to attend other official matters”. The Respondents’ counsel remarked that the person who signed the letter must have misled his principal into believing that the case is for mention when it is in fact for hearing but to give them the benefit of doubt suggested an adjournment to 24/6/2002, which the lower Court adjourned the case to for definite further hearing”. However, on 24/6/2002 the lower Court was informed that “Mr. B. Aiku is still at the Federal High Court”. The Respondents’ counsel, Alhaji Y. Agbaje SAN left “the matter to the discretion of the Court” and the lower Court ordered.
“It is now 12 noon. This case shall proceed to further hearing’.
The Said Respondent continued with his testimony and tendered more exhibits. The case was then “adjourned to 28/6/2002 & 1/7/2002 for further hearing”.
On 28/6/2002, Mr. Babatunde Aiku referred the lower Court to Order 26 rule 5 of the High Court Rules and argued that the case is not ripe for hearing as there was no properly Amended Statement of Claim before the Court. After hearing arguments on the issue, the lower Court ruled as follows _
“Order 26 rule 6, although mandatory, is not meant as a clog in the wheel of the progress of a suit the hearing of which had commenced so as to cancel the evidence that had already been put in. In this case, the amendment had been made and filed within fourteen days as provided by Order 26 Rule 4 so that the order for amendment is still valid. I therefore in the exercise of my discretion to grant an amendment extend the time Within which the Plaintiffs shall file a fresh amendment duly marked by seven days from today. Case is adjourned to 8/7/2002 for further hearing”. (Italics mine).
Mr. Aiku thereafter applied “for time to file a consequential Amended Statement of Defence”, and the lower Court then ordered as follows-
“The Amended Statement of Defence to the 3rd to 6th Defendants shall be filed within five days of the receipt of the Amended Statement of Claim. Case is adjourned 11/7/2002 for hearing at 12 noon”.
On 11/7/2002 the case was adjourned to 16/7/2002 for further hearing, but on 16/7/2002, the Registrar received another letter dated 12/6/2002, it reads-
” We apologize for the absence of counsel, Babatunde Aiku Esq. from Court on the last date the matter came up before this honorable Court as he was otherwise engaged at the Court of Appeal. We, however regret to inform the Court that the date to which the above matter was adjourned for mention is not convenient as counsel will be appearing before Honorable Justice Arasi sitting in Court no. 5 in a matter which had earlier been fixed for definite hearing since 6 June, 2002. In the circumstances, we crave the indulgence of this Hounorable Court to grant us an adjournment to enable our Babatunde Aiku, Esq. take up the conduct of the case, accordingly. Subject to the convenience of this Honorable Court, we suggest of the following dates, 2 or 5 August, 2002 for continuation of hearing – – ”
The record of the proceedings on 16/7/2002 is vital to this appeal, it reads.
“A letter dated 12th July, 2002 is written to the Registrar – seeking further adjournment as the date fixed by the Court for the further hearir’lg of this case is not convenient to Mr. Babatunde Aiku. Alhaji Agbaje (SAN) says that the Defendants and their counsel are all absent from Court since the trial began; the case had been adjourned at the instance of the Defendants. It shows that they have no intention of the defending this action. Their application for adjournment is not a genuine one, urges the Court to permit the Plaintiffs to close their case and address the Court.
Court: – This case has been adjourned several times at the instance of the Defendants who have never appeared in Court and at the instance of 3rd and 6th Defendants’ counsel. Mr. Babatunde Aiku. On the principle that justice delayed is justice denied, I now call on Plaintiffs’ counsel to close the Plaintiffs’ case and address the Court on the evidence so far given in accordance with Order 37 Rule 7 “.
The Respondents’ counsel addressed the Court, and the case was “adjourned to 30/7/2002 for Judgment”. Before that date, the Appellants filed a Motion dated 25/7/2002 praying the lower Court for “an Order to recall the 5th Plaintiff for the purpose of cross-examination”, on the following grounds-
(1) There is no Ruling on the Application for adjournment made by counsel for the 3rd to 6th Defendants on 16 July 2002, and
(2) Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 preserves the 3rd to 6th Defendants’ right to fair hearing.
The Application was moved on 30/7/2002, and In his Ruling delivered on 1/8/2002, the learned trial Judge, R.G. Oyetunde, J., held as follows-
“…As there was no affidavit in support of the letter and no counsel was available to take down any Ruling on the letter, the Court applied Order 37 rule 7 of the High Court (Civil Procedure) Rules of Oyo State by which the Plaintiffs could proceed with their case in the absence of the Defendants. It is worthy of note that none of the 1st – 6th Defendants has appeared before this Court since the case was transferred to this Court in July, 2001. The grant of an adjournment is discretional. In exercising discretion, the Court must take account of the circumstances of the case. Several adjournments have been granted at the instance of counsel already. Even on 30/7/2002, none of the Defendants nor their witnesses was present in Court. The Indication Is that the Defendants have no intention of defending this suit. The Court can not force them to defend a suit. In Aguda, Practice and Procedure of the Supreme Court, Court of Appeal and High Courts of Nigeria, the learned author has this to say at p. 512 paras. 31-39:
“If however the party that applied for a postponement, which was refused is the Defendant, the Judgment may be entered against him on the case made by the Plaintiff’. (Italics mine).
Aguda’s book envisaged that the application for adjournment would be made by a party or his counsel present. In Court so that a Ruling may be given in open Court, not in the absence of the Applicants and their counsel. In this case, the Court cannot deliver a letter to the chambers of learned counsel in favour of granting or refusing the Application. In the result, this Motion is refused as lacking in merit. It is accordingly dismissed’. (Italics mine).
He also delivered Judgment on the same 1/8/2002, wherein he found in favour of the Respondents and held that the Assignment in issue is void, etc. Aggrieved, the Appellants appealed to this Court with a Notice of Appeal containing two Grounds of Appeal. Briefs of Argument were duly filed and exchanged in line with the Rules of this Court, and in the Appellants’ Brief prepared by Babatunde A. Aiku, Esq., it was submitted that “the crucial issue for determination is whether having regard to the state of the law, the learned trial Judge was right in granting the Plaintiffs’ claims in its entirety without affording the Appellants an opportunity of being heard”. However, the Respondents contended in their own Brief prepared by Akeem A. Agbaje, Esq., that “the Issues properly arising from the Appellants’ Grounds of Appeal for determination by this Honourable Court” are as follows-
(1) Whether having regard to the facts, the peculiar circumstances of this case and the law, the learned trial Judge was right in granting the three reliefs ordered?
(2) Whether or not the Appellants who were given opportunity to defend the action and failed to take advantage of the opportunity are entitled to claim a denial of fair hearing?
In my view, the Issues formulated by the Respondents amounts to splitting of hairs; the Appellants’ sole Issue encapsulates the complaints in their Grounds of Appeal and is sufficient to deal with this appeal, The gist of the Appellants’ submission is that the lower Court erred in law by not giving them an opportunity to be heard and in not giving consideration to their defence. They argued that they ought to have been given the opportunity to adduce evidence in support of the averments in their pleadings, citing Bosah V. Oji (2002) 6 NWLR (pt, 762) 137 & Anyanwu V. Mbara (1992) 5 NWRL (pt, 242) 386; that the lower Court made heavy weather of their non-appearance in Court contrary to the position of the law stated in Abuul V. Benue State University & Anor (2003) 16 NWLR (pt, 845) 59, Robertson Group Plc V. Geo Group limited (2003) 4 NWLR (pt, 810) 381; and that the law is that where an adjournment is sought by either party and trial has opened, the application for adjournment must first be resolved before a decision is reached as to whether or not to proceed to judgment, citing Bamawo V. Garrick (1995) 6 NWLR (pt. 401) 356, Olumesan V. Ogundepo (1996) 2 NWLR (pt 433) 628, Ceekay Traders limited V. General Motors Co, Limited & Ors (1992) 2 NWLR (pt 222) 132; Francis V. Osunkwo (2002) 7 NWLR (pt. 666) 564, Dawodu V. Ologundudu (1986) 4 NWLR (pt. 33) 104; & Mankanu V. Salman (2005) 4 NWLR (pt.915) 270. Furthermore, that the refusal to grant their application for adjournment, failure to call upon them to present their case and the lower Court proceeding to deliver Judgment without their being heard has occasioned a miscarriage of justice, The Respondents however argued that the Appellants must go further than quoting provisions of the Constitution and prove that they are entitled to its protection, citing Zekeri V. Alhassan (2003) FWLR (pt. 177) 780; that the Appellants are not complaining about the refusal of their application for adjournment but the fact that the lower Court proceeded to hearing in their counsel absence; and that the Appellants were given enough opportunity to present their case for consideration but failed to utilize all the opportunities, thus, the lower Court was duty bound to protect its process and integrity, citing Kuusu V. Udom (1990) 1 NWLT PT. 127) 421, Finnih V. Imade (1992) 1 NWLR (PT. 219) 5180 in the true meaning of denial of fair hearing.
On the issue of adjournments, they cited Order 37 rule 10 of the High Court (Civil Procedure) Rules; AJhaji Ramonu Bello V. Dr. Thompson (1972) WSC4 (Vol. 11) 43, Tsaku V. The State (1986) 1 NWLR (PT. 17) 516, Awani V. Erejuwa II (1976) 11 SC 307, Odusote V. Odusote (1971) 1 NMLR 228, Akpan V. The State (1991) 3 NWLR (PT. 182) 649, Bakare V. A.C.B. (1986) 3 NWLR (Pt 26) 48, Ojukwu V. Nnoruka (2000) 1 NWLR (Pt.641) 353, and the statement of Harry Jones on delay in his book – The American Assembly, the Courts, the Public and the Law Exposition, as follows-
“Delay causes hardship. Delay brings our Courts into disrepute. Delay results in deterioration of evidence through loss of witness, forgetful memories and death of parties and makes it less likely that justice will be done when a case is reached for trial”.
It was further argued that the lower Court had these principles in mind when it refused the application for an adjournment by applying the principle – “Justice delayed is justice denied”, and was therefore right to close the case, take the address of counsel and decide the matter on the available evidence before it since the Appellants and their counsel had failed to come to Court. This Court was urged to adopt “the test of fairness to be applied” formulated in The Queen V. Director of Audit (Western Region) & Anor. Ex parte Oputa & Ors (1961) Ann NLR 687, which would show that the lower Court was fair to the Appellants and that they were not in any way, denied justice. The Appellants’ however argued in their Reply Brief that the Respondents’ arguments are misconceived, misapplied and inapplicable; that the record shows they settled and filed their pleadings and were not afforded an opportunity to cross-examine the Respondents’ witness or of being heard; that there is no evidence that their counsel requested for unnecessary and prolonged adjournments; and that the statement of Harry Jones on “Delay” is inapplicable to the facts of this case, where justice was rushed at the lower Court resulting in justice being crushed to their detriment, citing Governor Ekiti State V. Osayemi (2005) NWLR (pt. 909) 67where this Court said-
” Justice delayed is justice denied but justice rushed may result into justice being crushed.” (Italics mine)
Parties appear to have taken opposing viewpoints – that the lower Court was right to apply the principle “justice delayed is justice denied” and that “justice was rushed resulting in justice being crushed” to the Appellants’ detriment.
Now, contrary to the Respondents’ argument that the Appellants are not complaining about the refusal of their application for adjournment, It is clear from their Grounds of Appeal and arguments that the mainstay of their contention is that the lower Court should have ruled on their application for adjournment before proceeding to Judgment against them, In any case, this appeal cannot be resolved without looking into the issue of the application. To start with, the grant or refusal of an adjournment is entirely within the discretion of a trial Court, however the Court must confine Itself to the reason for the particular adjournment because the reason for one adjournment may be completely different from another, thus “a Court’s negative impression about a previous application for adjournment should not be allowed to becloud its dispassionate consideration of a subsequent one – see Ashiru V. Ayoade (2006) 6 NWLR (Pt. 976) 405. See also E. D. Tsokwa & Sons Ltd. V. C.F.A.O. (1993) 4 NWLR (Pt. 291) 120, where the trial Court said –
“Mr. Ejiofor is only trying to delay unreasonably the determination of this case. He knows that he has no witness to call. He is only trying to be clever and to further postpone the determination of this case which started since 1982. He cannot take this Court for a ride. The application is therefore refused’.
On appeal to this Court, Katsina-Alu, JCA (as he then was) stated as follows-
“These remarks, with due respect to the learned trial Judge are not borne out by the evidence. Undoubtedly the case has been on for quite some time. Be that as it may the issue for determination at that stage was not the inordinate delay of hearing the case to conclusion but the reason for the application for adjournment on 8/5/90. The learned that Judge has allowed the undue delay to affect the consideration of the application. He was in error. I think there were compelling reasons to grant the adjournment sought. Two of the witnesses were on subpoena duly signed by the learned trial Judge. The learned Judge’s conclusion that defence counsel had no witnesses to call is unfair.”
See also Ceekay Traders’ case (supra), where the Supreme Court held.
“I quite appreciate that it is frustrating for a trial Judge to be faced with situations where parties ask for adjournments day-in day-out, but the question is; what is the justice of the case? We must balance the need not to delay justice with an important requisite in the administration of justice – non-denial of justice by not refusing adjournment where compensation by way of costs will be adequate and just. Applications for adjournment will be considered on their merits, the overriding consideration is the interest of justice. In such a situation, the nature of the claim should be one of the considerations”.
In other words, the Court has two competing interests to contend with when considering an application for adjournment, namely, the need to dispose of the case speedily and the right of the Applicant to be heard on the matter, and to negotiate a balance between the two competing interests, the Court must be guided by the need to do substantial justice; justice, not just for the parties but for the Court as well, and this would entail looking into the nature of the claim and whether the other party would be compensated by costs. In this case, the lower Court did not actually consider the application for adjournment. In the letter dated 12/7/2002, rather it appeared to have been irked by the previous applications for adjournments made by the Appellants’ counsel, and got carried away by the comments of the Respondents’ senior counsel that the application was not a genuine one that it proceeded to call on him to close their case and address it in the absence of the Appellants and their counsel, thus, it fell over a stumbling block because it had to resolve the question of whether or not to grant the application for adjournment, which was the issue for determination that day of 16/7/2002, before it went further. As the Appellants’ rightly submitted, where an adjournment is sought and the trial has opened, as in this case, the application for adjournment must first be resolved before a decision is reached as to whether or not to proceed to judgment – see Bamawo V. Garrick (supra) where Ige, JCA observed-
“- – The issue for determination on 14/6/90 before judgment was given, was not the inordinate delay in hearing the case to conclusion but for the Court to consider the application for an adjournment and give reasons for his refusal after hearing both sides, From the face of the proceedings it is crystal clear that the learned trial Judge simply swallowed the submission of the learned SAN for the Plaintiff/Respondent and proceeded to judgment without first resolving the Issue of whether or not to grant an adjournment. This is my view is a very wrong approach on the part of the learned trial Judge”. See also the full statement of Aguda in his book relied on by the lower Court –
“If an application for postponement is refused the party applying must be called upon to proceed with his case. If the party is the Plaintiff and he is unable to proceed, the proper order for the Judge to make is one dismissing the suit If, however, the party that applied for a postponement, which was refused is the Defendant, the Judgment may be entered against him on the case made by the Plaintiff. – – However, without Ruling on the Application for adjournment a trial Court cannot proceed to qive judqment in the case. (Highlights mine).
The key words are – “If an application for postponement is refused”, so it is only after an application for an adjournment is refused that the Court may ask the Plaintiff to proceed with the case, or may enter Judgment against the Defendant, and Aguda clearly stated that a trial Court cannot proceed to give Judgment in a case without Ruling on the Application for adjournment. Yet, the lower Court relied on the same Statement by Aguda to justify its decision to block out the Appellants and at the end of the day it held as follows-
“As the transaction under which the 1st and 2nd Defendants purportedly acquired their title is void, the assignment to the late chief Isaac Ojo Ajanaku, the predecessor in title of the 3rd, 4th, 5th and 6th Defendants is also void. The maxim is that no one can build something on nothing. In my Judgment,I find that the Plaintiffs’ case succeeds. Accordingly, I make the following orders- – “.
(1) It is hereby declared that the Family of Braimoh Dabiri-Williams are the Lessees, and the present Plaintiffs are his Successors in Interest and assignees of the property at No. 74 Lebanon Street, Ibadan covered by a Deed of Agreement dated 12th July 1939 and by a Deed of Sub-Lease dated 19th July 1939 .
(2) It is also declared that Anthony Younan was, and his Successors in Interest, that is, the 1st and 2nd Defendants are Sub-Lessees of the Plaintiffs in respect of the said property at 74 Lebanon, Street.
(3) It is also declared that the purported Deed of Lease dated 25th October, 1964 made between Anthony Younan and the Olubadan of Ibadan Is null and void.
Again, the Respondents argued that the lower Court’s finding has not been challenged but they are missing the point entirely, this Whole appeal centers on the fact that the lower Court did not do what it should have done before it proceeded to deliver its Judgment against the Appellants to hear from them. It is an Inexorable legal principle that the Court must hear both sides, not only in the case but also in all material issues in the case, before reaching a decision which may be prejudicial to any party in the case -see Kotoye V. C.B.N. & Ors (1989) 1 NWLR (pt.98) 419, where the Supreme Court added-
” The rule of fair hearing is not a technical doctrine. It is one of substance. The question is not whether injustice had been done because of lack of hearing. It is whether a party entitled to be heard before deciding had in fact been given the opportunity of a hearing. Once an Appellate Court comes to the conclusion that a party was entitled to be heard before a decision was reached but was not given the opportunity of a fair hearing, the order or Judgment thus entered must be set aside. This is because such order is against the rule of fair hearing, one of the twin pillars of natural Justice which is expressed by the maxim: audi alteram parteml’. (Italics mine).
In this case, the lower Court was obviously displeased with the Appellants’ counsel and applying the principle – justice delayed is justice denied, ordered the Respondents’ senior counsel to close their case and address it on the evidence so far given, and without giving the Appellants the opportunity of stating their case proceeded to deliver Judgment against them, which is clearly not justice. See Bamawo V. Garrick (supra), where Ige, JCA added-
“The learned trial Judge has not only adopted a wrong procedure on the issue of the application For an adjournment but has violated the principle of fair hearing by proceeding to Judgment without giving the Appellant the opportunity of stating his own case. After the learned SAN had referred the Court to proceed to Judgment under Order 37 rules 7 & 12 of the High Court Rules, the learned trial Judge failed to call upon the counsel for the Appellant to address him on that issue. This in my view is a grave omission on the part of the learned trial Judge which has led to a miscarriage of justice.” (Italics mine).
No doubt, the applications for adjournments must have been frustrating, but applying the test of fairness” to this case, a reasonable man would have expected the lower Court to look beyond the antics of counsel and put the need to do substantial justice above all other considerations, bearing in mind that the transactions involved in this case date back to 1928, 1936, 1964 etc., and that an allegation that a claim is statute barred is not to be treated lightly since it extinguishes a Plaintiff’s right of action, once it is successfully raised. Be that as it may, the lower Court did not even consider the said application for adjournment, not to mention refuse it, but even worse, it refused to hear from the Appellants before it proceeded to deliver its Judgment against them. The end result is that there is merit in this appeal and it is hereby allowed. The Judgment of the lower Court delivered on 1/8/2002 is therefore set aside, and the matter is sent back to the lower Court for trial before another Judge.
The Appellants are awarded costs assessed at N30,000.00.
Other Citations: (2008)LCN/2637(CA)
