Basil E. N. Ofole V. Dr Samuel E. N. Ofole & Ors (2016) LLJR-CA
LawGlobal-Hub Lead Judgment Report
EMMANUEL AKOMAYE AGIM, J.C.A.
On the 21 – 10 – 1982, the appellant herein with one Gabriel N. Ofole, as plaintiffs, filed a claim and caused a writ of summons to issue on the same date commencing suit No 0/378/82 in the High Court of Anambra State at Onitsha against the respondents herein as defendants claiming for –
(i) A declaration that the 1st plaintiff as the Okpala of Late Johnson Ofole is entitled to call in all the properties of Late Johnson Ofole to be distributed amongst his children in accordance with the customary law of Eziowelle.
(ii) An order of the Court for the partition and distribution of all the properties of late Johnsons Ofole amongst his sons in according to Eziowelle customary law.
(iii) N500,000.00 or No. 19 Francis Street, Onitsha to be given to the 2nd plaintiff as compensation for the huge sums of money which he spent in renovating and rehabilitating the properties and maintaining them especially after the damages to properties during the civil war.
(iv) An order of injunction restraining the 1st Defendant from further managing or controlling the
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properties to the exclusion of the plaintiffs before the said partition and distribution are finally effected.
After both sides had filed and exchanged pleadings as follows-statement of claim filed on 4-3-83 and statement of defence filed on 27-6-83, they opted to settle the dispute amicably.
On 22-9-1987 they filed their agreed terms of settlement in the trial Court. It was signed by all parties to the suit. The exact of the said terms of settlement is reproduced here as follows- ”
Having received the support of this Honorable Court to co-operate in effecting settlement of this case out of Court amicably and pursuant to the opportunity so offered, Barrister G.F.I. Eonu S.A.N. for the defendants and Barrister Ben. O. Anyaduba and O.C. Igwealor for the plaintiff met and discussed. A letter was written by the leading counsel for the plaintiff Ben. Anyaduba Esq. to senior Advocate of Nigeria Barrister R.R.I. Egonu on 11/2/87 to summon a meeting where the lawyers could put their heads together and assist the disputants to reach a final settlement with members of the family (disputants) who all agreed to attend and did attend the settlement on
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Tuesday, 17th March 1987 at N. 40 New market Road, Onisha chambers of the Senior Advocate of Nigeria by 5 pm.
Having ventilated their feelings, regrets and misgivings after much heated arguments and when tempers died down, the parties went into proposals for settlement, on a quid pro quod basis. IT IS RESOLVED AS FOLLOWS that the properties which form the core and that is to say, the subject matter of this litigation should be shared and distributed as follows:-
1 Dr.SAMUEL N. OFOLE – should take No. 9A new Market Road. Onisha.
2. MR. SYLVANUS I. OFOLE – should take N0.18 Bright Street, Onitsha.
3. Mr. BASIL E.N. OFOLE- should take one half share of No. 19 Francis Street Onitsha.
4. MR. DAVID I. OFOLE – should take the other half share of No. 19 Francis Street, Onitsha. The said premise is made up of 6 flats and 8 shops on the ground floor.
5. MR. CHRISTIAN N. OFOLE SHOULD take No. 8 Modebe Street, Onitsha
And in addition should be paid the sum of Thirty-Five thousand Naira (N35,000.00) from the estate,
6. To GENERATE the necessary fund it is resolved that the Bida Road property should be sold off and the money realized
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there from ”
On the same 22-9-1987 the trial Court entered judgment in the suit on the basis of the said terms of settlement.
By a motion on notice dated 5-10-1990 and filed on 10-10- 1990, Gabriel N. Ofole, (1st plaintiff,) applied for –
(a) An Order of the Honourable Court staying execution of the consent judgment delivered on 22/9/87 by the honourable Justice J. G. O. Aneke.
(b) A further Order of Court that none of the parties to the said suit i.e.Suit No. 0/378/82 shall take benefit, alienante dispose of or in any other manner seek to change the character or title of any of the property contained in the consent judgment until the estate debt and expenses shall have been first determined and settled as per the said judgment.
And for such order or other orders as the honourable Court may deem fit to make in the circumstance.”
It is supported by an affidavit of 19 paragraphs sworn to by the appellant herein. The 1st respondent herein swore to and filed a counter affidavit of 27 paragraphs opposing the above application. The appellant swore to and filed two further affidavits in response to the said counter affidavit.
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On 21 – 3 – 1994, Learned Counsel for the plaintiffs informed the trial Court that Gabriel N. Ofole was dead and applied for his name to be struck out. The trial Court accordingly struck out the name of the late Gabriel N. Ofole from the action.
On 17-10-1994, the trial Court determined the said application, ruling that there is no basis for the application, that it lacks merit and dismissed same.
Dissatisfied with the said ruling of the trial Court, the appellant on 26-10-1994 commenced this appeal No CA/E/72/99 by filing a notice of appeal containing eight grounds for this appeal.
Both sides filed, exchanged and adopted their respective briefs as follows- appellant’s brief and respondent’s brief.
The appellant’s brief raised the following issues for determination –
1. Is the Learned trial Judge right to hold that execution of a judgment can be stayed only when there is an appeal?
2. Was the appellant given a fair hearing by the learned trial Judge?
The respondents adopted the said issues for determination in the appellant’s brief.
?I will determine this appeal on the basis of the issues raised for determination in the
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appellant’s brief.
Learned Counsel for the appellant argued under issue no. 1 that the consent judgment imposed an obligation on the parties to sell the Bida Road property and use the proceeds from the sale to pay the estate debts and expenses, that the respondents appropriated the proceeds from the said sale and did not pay the estate debts including the debt owed to the appellant by the estate, which he said is N500, 000.00 he spent in repairing the buildings destroyed during the civil war, that it is for the above reason that the appellant applied for an order that the execution of the consent judgment be stayed pending the determination and settlement of the estate debts and expenses and an order that the parties be restrained from alienating or meddling with the estate until the said estate debts and expenses are determined and settled, that this Court should hold that the determination and settlement of the estate debts and expenses is one of the incidences of legal occurrence that can warrant the grant of an application for an order of stay of execution of a judgment as it arises naturally from the proceeding and judgment of 22-9-87 , that none of
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the parties should take benefit of the judgment without the estate debt and expenses being first determined and settled.
Learned Counsel further argued that he did not appeal against the consent judgment because he was satisfied with it, that he is only complaining of the non implementation of one of the terms of the consent judgment, that he did not apply for the stay of execution of judgment pending the determination of an appeal therefrom because he did not appeal against the judgment, that the execution of a judgment can be stayed even when no appeal is pending in certain circumstances such as the occurrence of a legal incidence which naturally arises from the proceeding and judgment of the trial Court. For the above submission, Learned Counsel relied on Order 25 Rules 9 and 10, High Court Rules of Anambra State 1988, Oladapo V ACB Ltd. (1950) 13 WACA 100, Lijadu V Lijadu (1991) 1 NWLR (Pt. 169) 627 at 644, Olayinka V Elusanmi & Anor (1971) 1 NWLR 277 and Inter-Contractors V UAC (1988) 2 NWLR (Pt 76) 324.
Learned SAN, for the respondents argued in reply that prayer 2 of the appellant’s application clearly suggests that there is nothing in the
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consent judgment indicating that there is a condition precedent to its execution, that there is no ground of this appeal complaining against the holding of the trial Court that “all the properties comprised in the said estate have been distributed according to the consent judgment, each party to whom property was allocated ought to assume responsibility for any property rates, if any, due on the property allocated to him under the judgment. Apart from general allegations, the applicant has not established how the sum of N500, 000.00 was due to him from the estate”. The Learned SAN submitted that the correctness of the said part of the ruling became implicitly admitted by the absence of a ground of appeal complaining against it, that no valid issue can be raised to determine its correctness and all argument in respect thereto should be discountenanced and struck out.
Another argument of the Learned SAN is that the order of stay of execution of the judgment prayed for is indefinite as it is not limited to the occurrence of an event such as the determination of an appeal against the judgment, that there is no rule of Court in Anambra State that provides for
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such indefinite order of stay, that the then applicable High Court Rules 1988 provided only for stay of execution of Judgment or proceedings pending an appeal against the judgment and that the trial Court correctly held that a stay of execution of a judgment can only be predicated on the pendency of an appeal against the judgment sought to be stayed,
Learned SAN also submitted that the appellant wrongly relied on the judicial authorities of Olayinka V Elusanni & Anor (1971) 1 NWLR 277, Oladapo V ACB Ltd. (1950) 13 WACA 100, Deduwa V Okorodudu (1974) 6 SC 2 and Lijadu V Lijadu (1991) 1 NWLR (Pt 169) 627 at 644 as they do not support the argument of the applicant.
Let me now determine the merit of the above arguments of both sides.
The Learned SAN for the respondents correctly submitted that there is no ground of this appeal complaining against the holding of the trial Court that “all the properties comprised in the said estate have been distributed according to the consent judgment and there is nothing for which a stay of execution of the judgment”(sic), It is settled law that by not appealing against the above holding, the parties herein
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accepted the holding as correct, valid and binding upon them. See Iyoho V Effiong (2007) 4 SC (Pt 111) 90, Amale V Sokoto L. G. & Ors (2012) LPER – 7842 (SC), SPDC Nig Ltd. V Edamkue & Ors (2009) LPER 304 (SC) and Biariko & Ors V Edeh – Ogwuile (2011) 4 SC (Pt II) 96.
?The legal consequence of the appellant’s acceptance of this holding as correct and valid is that there was no basis for the application for stay of execution of the consent judgment and therefore this appeal is rendered unarguable. The appellant, having accepted as correct the holding of the trial Court that all the properties comprised in the estate had been distributed according to the terms of the consent judgment and that therefore that there is nothing in respect of which a stay of execution of the judgment could be made, cannot validly argue in this appeal as he has done, that the order of stay of execution of the judgment should have been made. A party who did not appeal against a holding or decision in a judgment or challenge it by any other legal process, cannot, in an appeal against the judgment argue contrary to that holding or decision. Such an argument is invalid. See
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NBCI V Integrated Gas Nig. Ltd & Anor (2005) LPER – 2016 (SC), Amale V Sokoto LG &Ors (Supra) and Dabup V Kofo (1993) (NWLR (Pt 317) 254 at 269.
Another consequence of the acceptance of the correctness of the above quoted holding of the trial Court is that the appellant’s argument in its brief that the trial Court should have granted the second prayer in the application before it is rendered futile and invalid. An order that none of the parties to Suit No. 0/378/82 shall take benefit of any of the property in the consent judgment until the estate debts and expenses shall have been first determined and settled can no longer be made since all the said properties had already been distributed according the terms of the consent and the execution of the said judgment thereby completed. The parties to the suit had already taken benefit of the properties which were subject of the consent judgment so their taking of benefit of the said properties could no longer be restrained. In any case prayer 2 of the application is in substance the same with prayer 1 therein as it has the same effect of stopping the execution of the consent judgment. The appellant having
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accepted as correct the holding of the trial Court that there was no basis for an order staying execution of the consent judgment since all the estate properties had been distributed to all parties, cannot validly argue that the trial Court should have restrained the parties to the suit from taking benefit of any estate property until the estate debts are determined and settled. Such an argument would be contrary to said holding he had accepted as correct and valid and is therefore incompetent.
It is settled law that an order to restrain an act or the occurrence of an event cannot be made after the act or occurrence of the event. Such an order would be baseless and futile. Therefore after properties had been distributed to the parties to a suit or sold to third parties in the execution of a judgment, an order to stay the execution of the judgment or restrain the parties from taking benefits of the judgment properties cannot be validly made. See John Holt Nig. Ltd V Holts Worker’s Union of Nigeria and Cameroon (1961), 1 All NLR 379 or (1963) 2 SCNLR 383 (SC), Adelaja & Ors V Ogunyade (2000), 2 NWLR (Pt 645) 376 at 384 (CA) and UBN Ltd. V Edamkue & Anor
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(2003), LPELR ? 6190 (CA).
Learned Counsel for the appellant has argued in the appellant’s Brief that – “The respondent sold the Bida road property as agreed but instead of using the proceeds to settle the appellant of the expenses of 500, 000.00 which he incurred in the repairs of the properties damaged during the war and property rates he paid in respect of some of the properties they appropriated the money to themselves.
After waiting endlessly for the respondents to implement fully the terms of settlement, the appellant in 1990 filed a motion to stay the execution of the consent judgment” This argument is not supported by the terms of the consent judgment. There is no term therein entitling the appellant to the payment of the sum of N500,000.00 or any sum of money as the expenses he incurred in repairing the estate properties destroyed during the civil war. The terms of settlement and the judgment based thereon merely state that “the Bida Road Property should be sold off and the money realized there from should be ploughed into the settlement of the estate debt and expenses”. There is nothing in the terms of settlement or consent
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judgment stating or indicating that the parties settled and agreed that appellant expended any such money in repairing the estate or that they had agreed that he be paid his said expenses from the proceeds of the sale of the Bida Road property.
Paragraphs 25 and 26 of the statement of claim in Suit No 0/378/82 had stated thusly –
“25. After the civil war when the plaintiffs returned to Onitsha they discovered that No. 18 Bright Street Onitsha, (A New Market Road, 3A Bright Street, No 19 Francis Street Onitsha and No 6 Mobebe Avenue Onitsha were all damaged during the war.
26. 2nd Plaintiff expended large sums of money in reconstructing renovating rehabilitating and developing the said damaged properties.”
The respondents in Paragraph 21 of their statement of defence denied the above averments thusly-
‘In answer to Paragraph 215 of the statement of claims, the defendants aver that 19 Francis Street, Onitsha was not damaged during the Nigerian Civil War or at any other time. With advance rents collected from tenants, the damages to 18, Bright Street, Onitsha and 9A New Market Road, Onitsha, were repaired.’
The parties to the suit
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did not settle and agree on this claim in their terms of settlement contained in the consent judgment. Since it was not settled and agreed on by the parties in their terms of settlement, it means that both sides did not agree that the appellant incurred any such expenditure. The appellant clearly abandoned or waived the same claim by signing the terms of settlement that did not acknowledge and agree that he expended such money on the estate and so was entitled to the reimbursement of same. The consent judgment is meant to give legal effect to the terms of settlement. The parties to the suit can only enforce the rights and interests adjudged by the judgment as theirs. The consent judgment did not adjudge that the appellant incurred expenses in respect of the estate property, that the estate was indebted to him and so was entitled to be paid such debt by the estate. So, the judgment did not give him a right to be paid N500, 000.00 or any other sum by the estate. So, he had no legal right to employ the judicial process to cause the estate to pay him such money as a judgment debt accruing to him under the consent judgment because no such judgment debt exists in
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the consent judgment.
The “estate debt and expenses” in clause 6 of the terms of settlement and the consent judgment required to be settled from the proceeds of the sale of the Bida Road property are not specified therein. This portion of the terms of settlement and consent judgment cannot be invoked by any of the parties to the suit to reassert his entitlement to a payment he claimed in the pleadings and gave up during settlement. The lack of specificity of “the estate debt and expenses” to be settled under the consent judgment cannot be exploited to reopen a claim that had been abandoned under the guise of the enforcement of the consent judgment. In any case, if the appellant insists that the estate is indebted to him and that he is entitled to the benefit of the said clause 6 of the terms of settlement as contained in the consent judgment, then he has to first prove the existence of such a debt and then claim for its recovery. This can only be done by a fresh originating action and not by a post judgment interlocutory process in the suit in which the judgment was rendered.
The appellant in Paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10 of his affidavit
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in support of his application deposed that –
7. That if any of the parties had as much as mounted any form of opposition to any proposal, I would never have subscribed to the consent judgment.
8. That the defendants fully appreciate that I spent not less than the sum of N500, 000.00 between 1970 when the war ended till the date of the consent judgment on the following properties which form part of our late father’s estate viz; No. 18 Bright Street Onitsha, no. 9A new Market Road, Onitsha, No 3A Bright Street Onitsha, No. 19 Francis Street, Onitsha and No. 8 Modebe Avenue Onitsha.
9. That I had settled the property rate in respect of most of these property from my personal account up to when the consent judgment was entered and it was in agreement between the parties that I shall be recompensed fully from the proceeds of sale of some of the property.
10. That up till now in spite of the agreement and the further fact that it is contained in the consent judgment. I have not been paid even a kobo nor any of the property
The 1st respondent herein in response to the above averments deposed in Paragraphs 3, 4, 5, 6, 7, 8, 9, 10 11 and 12 of
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his counter-affidavit that –
3. That a consent judgment based on terms of settlement between the parties to this suit and the solicitors acting for them has been entered in this suit before the honourable justice J. G. O. Aneke on the 22nd day of September, 1987,
4. That a copy of the terms of settlement upon which the said consent judgment of September 22, 1978 is hereto exhibited and marked Exhibit A and the certified true copy of the consent judgment and is Exhibited as Exhibit B.
5. That all parties to the said consent judgment have since taken control of the properties given to them in the said judgment and have been dealing in them as owners thereof including the plaintiff/applicant.
6. That all duly ascertained estate debts and expenses have been settled.
7. That the application is in bad faith and a continuation of the attempts to render the judgment of this Court nugatory by the plaintiff/applicant.
8. That the applicant has since the judgment of September 22 1987 nether given notice of appeal nor has refused to take his own half share of 19 Francis Street Onitsha and has been enjoying quiet possession of the said 19 Francis Street, Onitsha.
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9. That the only property which was according to the said consent judgment is to be sold is the one situate at Bida Road, Onitsha.
10. That the said property located at Bida Road Onitsha had been sold and the estate debts due settled from the proceeds which amounted to N35, 000.00 (THIRTY – FIVE THOUSAND NAIRA).
11. That some of the other beneficiaries under the same consent judgment of September 22, 1987 have already sold their properties or pledged or rented same out.
12. That the plaintiff/applicant participated in the consent judgment without any pressures or pre-conditions and is also enjoying peaceable ownership of his share of the said estate, to wit, and half of 19 Francis Street, Onitsha.”
?There is nothing in the terms of settlement stating that it was the understanding and agreement of the parties that the appellant expended his money on the estate properties, and that he shall be reimbursed whenever the estate debt shall be settled first before any person could claim any benefit from the estate. So the depositions in the above reproduced paragraphs of his affidavit in support of his application are not supported by the terms of
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settlement and are therefore false. The consent judgment which is as per the terms of settlement did not adjudge so. There is therefore nothing in the consent judgment stating that it shall be executed or that the parties to the suit can take benefit under it only on the condition that the estate debts and expenses are first determined and settled.
So, the appellant’s application which proceeded on the false assumption or suggestion that the consent judgment stipulated such a condition precedent to its execution was ab initio ill fated.
Let me now deal with the issue of whether the execution of a judgment can be stayed in the absence of pending appeal.
Ordinarily, the execution of a judgment can only be stayed pending the determination of a pending appeal or other legal process challenging the judgment or the execution of the judgment.
The cases of Olayinka V Elisanmi & Anor (Supra), Deduwa V Okorodudu (Supra) and Lijadu V Lijadu (Supra) relied on by the Learned Counsel for the appellant support my above proposition. See also Intercontractors V UAC (Supra) cited by Learned SAN for respondents and Dingyadi V INEC (No 2) (2010) LPELR – 952
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(SC).But where no appeal against a judgment is filed or pending, but there is a legal process challenging the validity of the judgment or seeking to set it aside for certain reasons or there is legal process challenging the execution of the judgment or seeking to set it aside for certain reasons, then the execution of the judgment can in appropriate circumstances be stayed or suspended pending the determination of the legal process. In our present case there was no pending appeal against the consent Judgment and there was no pending legal process challenging the validity of the judgment or its execution. So the application for stay of execution of the consent judgment was not anchored on any existing valid legal process. It is therefore incompetent.
In the light of the foregoing, issue No. 1 in the appellant’s brief is resolved in favour of the respondents.
I will now determine the appellant’s second issue which asks
“Was the appellant given a fair hearing by the learned trial Judge?”
?Learned counsel for the appellant started his argument of this issue by stating the facts forming the basis of the complain under this issue. He stated thusly –
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“On issue No. 2 which is based on ground 2 of the further grounds of appeal. Appellant argued that he was denied of fair hearing by the lower Court during the argument on the motion for stay of execution dated 5th October, 1990. It is the case of the Appellant that on the 12th day of September 1994, the learned trial judge called up the motion for argument. Appellant Counsel was not in Court Appellant informed the Court that his counsel’s absent in Court was owing to ill-health and applied for adjournment to enable his counsel be in Court to argue his motion. The trial Court instead of adjourning the motion compelled the Appellant who is a layman to move the motion in the absence of his counsel personally. Appellant argues that this is a clear case of denial of fair hearing?
I agree with the argument of learned SAN for the respondents that the events alleged in the above quoted address of learned counsel for the appellant are not supported by the record of the proceedings of the trial Court on 12-9-1994. The record of the proceedings which is at pages 42 – 43 of the record of this appeal did not state that the trial Court called up the motion
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filed on 10-10-1990 for argument. The record of the proceedings of 18-7-1994 at page 41 of the record of this appeal state that in the presence all existing parties and their respective counsel the motion was adjourned to 12-9-1994 for definite hearing. The record of the said proceedings at page 42 of the record of this appeal state that “G. A. M. applicant says he relies on all paragraphs of his affidavit dated 10th October 1990 to support his application, urges to grant prayer in the motion paper. Says he was not paid N5000,000 cost of building the house.” The record do not state that the appellant explained his counsel’s absence from Court or informed the Court that his counsel’s absence in Court was owing to ill health or any reason and do not state that the appellant applied for adjournment to enable his counsel to be in Court to argue his motion.
The said records do not state that the trial Court compelled the appellant to personally move the motion in the absence of his counsel. The records do not state that the appellant is a layman. Even though the record of the proceedings of 12-9-1994 do not state the occurrence of these events, learned counsel
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for the appellant has alleged their occurrence in his above quoted address and based his entire argument of this issue on these alleged events.
The appellant has not challenged the record of the proceedings of 12-9-1994 as contained in the record of this appeal as incomplete and inaccurate and has not applied to amend the record of this appeal to include the alleged events as part of the proceedings of the trial Court on 12-9-1994. Learned SAN for the respondents correctly stated the law which is now settled that the record of the proceedings of the Court as contained in the record of an appeal binds both the Court and the parties to the appeal and is the only legally recognized basis for the arguments and determination of the appeal. So allegations of events not contained in the record of proceedings are not valid for consideration and the appellate Court must determine the appeal only on the basis of what is apparent on the record see Idemudia v State (1995) 55c (pt 11) 110, Summer & Ors V FHA (1992) since 73, Fawehinmi Co. LTD V O.A.U (1998) 5SC 43 and Owope V Osanibi & Ors (2009) LPELR 3954 (CA)
The record of the proceedings of a Court is
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presumed correct and accurate until the contrary is shown. The burden of rebutting its correctness and accuracy is on the party alleging that it is not correct or accurate. See Ogli Oko Memorial Farms Ltd & Anor V NACB LTD & Anor(2008) 34 NSCQR (pt 11) 157 in which the Supreme Court held that “Any person who is contending that the record of proceedings before an appellate Court is not a fair record of what happened at the Court of first instance must first formally impeach the record of proceedings,
Where the record of proceedings is not formally impeached, it is not open to the appellate Court to speculate that other things happened in the trial Courts which were not recorded in the record of proceedings.
See also Agbeofu V Brisibe & Ors (2004) LPELR- 7377 (CA).
Through the cases, it is settled that the appropriate method by which the record of proceedings of a Court can be impeached is by the filing of a sworn affidavit of the facts or events omitted from or wrongly stated in the record and serving the affidavit on the other parties to the case and the judge or registrar of the Court whose record is being impeached to avail him or
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her an opportunity to respond thereto by a counter affidavit. See Peremolize Nig Ltd & Anor v Globe Motor’s Holding Ltd (2007) LPELR – 4840 (CA), Akwa v COP (2003) 4 NWLR (pt 811) FHA Supra).
Since the appellant has not formerly impeached the record of the proceedings of 12-9-1994, by an affidavit of the events that occurred in the trial Court on that day which are not recorded in the record of proceedings, the allegations of such events in the address of learned counsel for the appellant are not valid for consideration in this appeal and this Court cannot speculate that such events occurred when they are not recorded in the record of proceedings. The arguments of issue No.2 which are based on the alleged occurrence of events not recorded in the record of proceedings are speculative and invalid.
There is nothing in the record of proceedings that show an infraction of the appellant’s right to fair hearing during the proceedings of 12-9-1994. The motion on notice filed on 10-10-90 had suffered several adjournments. On 18-7-1994, it was, in the presence of all parties and their counsel, adjourned to 12-9-1994 for definite hearing. On that day, even
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though appellant’s counsel was absent, appellant did not inform the Court the reason for his absence and did not apply for adjournment to enable his counsel attend Court and argue his application. The record show that he argued the motion without any prompting from the Court and made no application for adjournment to enable his counsel attend Court and argue his application. There is nothing in the record of proceedings of 12-9-1994 showing or suggesting that the appellant was deprived the right to present his case through his counsel.
Learned counsel for the appellant had argued that “Appellant concedes that there was nowhere in the record of proceedings where his application for adjournment was recorded but argues at the same time that even if there was no application for adjournment on the part of the appellant, the learned trial Judge should have suo motu, pursuant to Order 24 Rule 7 of the High Court Rules Anambra State 1988, adjourned the motion to another date to enable the appellant procure the services of the same or another counsel to argue the motion in view of the fact that an application for stay of execution involves complex issues of law
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for which the appellant was not legally equipped. Following this submission, learned counsel reproduced the provisions, now corrected as Order 23 Rule 7, as follows
“The Court may postpone the hearing of any cause on being satisfied that the postponement is likely to have the effect of better ensuring the hearing and determination of the question between the parties on the merits and is not made for the purpose of mere delay. The postponement may be made on such terms as to the Court may seen just.?
This provision does not support the argument of learned counsel for the appellant. The motion was adjourned to 12-9-1994 for definite hearing in the presence of all the parties and their respective counsel. There is no law requiring the Court in a civil case to suo motu adjourn it from the date it was fixed for definite hearing because learned counsel for the applicant who was aware that the matter was coming up that date for definite hearing chose to be absent without reason, even though the applicant who is present willingly moves his motion without insisting on the presence of his counsel and did not ask for an adjournment to enable his counsel
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to attend Court and present his case.
In civil proceedings, when an application or any matter is adjourned in the presence of a party and his counsel or either of them to a named date for definite hearing, the absence of the party or his counsel from Court on the date the matter is fixed for definite hearing cannot prevent the Court from proceeding with the hearing of the application or matter if it chooses to. The reason is that the said party and or his counsel had reasonable notice of the said date for the said definite hearing and had reasonable opportunity to be heard in the matter. No legal duty is placed on the Court to mandatorily further adjourn the matter due to the absence of the said party and or his counsel. The Judicial authorities of Agbaponwu V Agbapuonwu (1991) 1 NWLR (pt 165) 33, Ntukidem & Ors v Oko & Ors (1986) 5 NWLR (pt 45) 909, Ebele & Ors v Ikwelki & Ors (1995) 7 NWLR (pt 405) 91 and Adigun V A – G of Oyo State (1987), NWLR (pt. 53) 678 relied on by learned counsel for the appellant for his argument of issue No. 2 are inapplicable and therefore irrelevant to this case. In each of the Agbapuonwu, Ntukidem and Ebele
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cases, there was an application for adjournment that was refused and the appellate Court had to determine if such refusal was proper. That is not the case here in which the appellant who did not apply for adjournment moved his motion and now on appeal contends that the trial Court should have suo motu adjourned the hearing of the application since his counsel was absent.
In Adigun’s case, the record of proceedings showed clearly that the complaining party was not heard before the decision of the commission of inquiry which affected his interest. That is not the case here.
In the light of the foregoing, I resolve issue No.2 of the appellant’s brief in favour of the respondents.
On the whole, this appeal fails as it lacks any iota of merit. It is accordingly dismissed.
?The ruling of the High Court of Anambra State sitting at Onitsha in suit No. 0/378/82 delivered on 17-10-94 by C.J. Okoli J is hereby affirmed and upheld. The appellant shall pay cost of 50,000.00 to the respondents.
Other Citations: (2016)LCN/8976(CA)
