Ceekay Traders Ltd. V. General Motors Co. Ltd & Ors. (1992)

LawGlobal-Hub Lead Judgment Report

KAWU, J.S.C 

This is a further appeal to the Supreme Court by the appellant from the decision of the Court of Appeal which had dismissed its appeal against the decision of the Federal High Court, Lagos Division.

In the trial court, the appellant, as plaintiff, had instituted an action against the respondent claiming as follows:-

“1. A declaration that the plaintiff are as against the defendants entitled to the possession of the motor vehicles (particulars of which are set out in the scheduled hereto) being part of the motor vehicles purportedly seized by the 3rd defendant under a Notice or Seizure dated 18th March, 1983.

2. A declaration that the said vehicles are the exclusive property of and belong to the plaintiffs.
3. An injunction restraining the defendants, their servants and/or agents from interfering with the plaintiffs’ possession and right to possession of the said vehicles or otherwise selling or purporting to sell or in any other way dealing with the said vehicles.

SCHEDULE

1. Nissan Patrol 80 units
2. Renault 8 units.”

Pleadings were ordered, filed and exchanged.

The circumstances leading to the dismissal of the appellant’s case by the trial judge are as stated in the Ruling of the trial court on the 3rd day of June, 1986 at pg.101 of the Record. He stated as follows:-

“This case was filed on the 11/4/84 and on four occasions the ease had been fixed for hearing but could not proceed. On the first occasion when the case came up for hearing, learned counsel for the plaintiff stated that he had filed an application to amend the Statement of Claim. He urged the court to allow him move his application and he asked for adjournment to enable him file the amended Statement of Claim. The application was granted. Later on the 1/7/85 the case came up and counsel informed the court that they had agreed for the 15th and 16th October, 1985 for the hearing of the case. On the 15th October, 1985 when the case came up for hearing plaintiff or its representative was not in court and learned counsel for the plaintiff asked for an adjournment on the ground that the principal witness who is the Managing Director of the plaintiff company had been deported and he wanted an adjournment in order to get one of the Directors to give evidence and that if he found it impossible he would apply that their evidence be taken on commission.

Learned counsel for the defendant opposed the adjournment and he urged the court to dismiss the action. The action was adjourned with costs against the plaintiff. On the 21st January 1986 when the case came up for hearing, the plaintiff or its representative was not in court, learned counsel for the plaintiff asked for an adjournment on the ground that the principal witness was not yet in the country.

Learned counsel for the 1st defendant opposed the application for an adjournment and urged the court to dismiss the action.

The application for an adjournment was granted with costs against the plaintiff and the case was fixed for today. When the case was called the plaintiff or its representative was not in court and the learned counsel for the plaintiff asked for an adjournment on the same similar reason that the principal witness is not around.

From the facts as related it is obvious that the plaintiff is not ready to prosecute this case and it will serve no useful purpose adjourning the case.”

Thereupon the learned trial judge dismissed the appellant’s case.

Being dissatisfied with the ruling of the trial court, the appellant appealed to the Court of Appeal on a number of grounds and that court, having given careful consideration to all the various points made by all the parties, unanimously dismissed the appeal on 26th May, 1988. In the lead judgment of the Court delivered by Awogu, J.C.A., with which Akpata, J.C.A. (as he then was), and Kalgo, J.C.A., concurred, that Court held that the learned trial judge was right in refusing the appellant’s application for adjournment and that “the claim was properly dismissed for want of prosecution.”

It is from this decision that the appellant has, with the leave of the Court of Appeal, further appealed to this Court on six grounds of appeal which grounds, without their particulars, are as follows:-

“NOTICE OF APPEAL

GROUNDS OF APPEAL

1. The learned Justices of the Court of Appeal erred in law and misdirected themselves on the facts in not holding that the learned trial Judge ought to have first considered but failed to consider and adjudicate upon the plaintiff’s application for adjournment which was before it before dismissing the suit, thereby causing a miscarriage of justice.
2. The learned Justices of the Court of Appeal misdirected themselves in law and on the facts when they held as follow:-

“Thus, the issue of functionally (sic) and of adjournment must be separately considered. In the present action in which an adjournment was refused, counsel’s presence was immaterial because he was unable to perform.”

3. The learned Justices of the Court of Appeal erred in law and misdirected themselves on the facts when they failed to review the discretion (if any) exercised by the learned trial judge in respect of the plaintiff’s application for adjournment.
4. The learned Justices of the Court of Appeal erred and misdirected themselves in law when they held as follows:

“The impression that a formal ruling must first be delivered refusing an adjournment appears to result from two separate and independent provisions of our civil procedure rules. The first relates to adjournments when evidence has started and the parties are no longer dominilitis, so to say. Understandably, a plaintiff may wish to discontinue his suit with leave and seek an adjournment to so decide. Here, the trial court is, to my mind, obliged to first refuse the application and then call the party to proceed with this case and if he refused to do so, dismiss the claim. Similar situations arise where evidence is being taken and an application for adjournment is made and refused. (See Adeoye Adejobi Trading Stores Ltd. v. Alhaji Aina & Anor (1986) 3 NWLR (Pt.29) 506. In such situations, the trial has opened and whether or not it is in the interest of justice to grant an adjournment must first be resolved before a decision is reached as to whether or not to dismiss the suit. The second situations arise in cases in which the taking of evidence was yet to commence and an adjournment is sought either because the plaintiff/defendant was absent or because of plaintiff’s unwillingness to prosecute the claim. Here, it suffices that reasons be given for refusal of the adjournment and the party asked to proceed. Thereafter, the suit may be dismissed for want of prosecution and, if the refusal is against the defendant, judgment for the plaintiff. It is therefore not necessary in the second category of cases to first write a formal ruling refusing the adjournment and then call upon the party to proceed with his case and, if he fails to do so, dismiss it. It suffices that the reason for the refusal of the adjournment appears in the judgment.”

and also by relying on the provisions of the High Court of Lagos State Civil Procedure Rules to dismiss the plaintiff’s appeal.

5. The learned Justices of the Court of Appeal erred in law and misdirected themselves on the facts when they held that whether or not the case of Rodrigues was misapplied to the present case by the Federal High Court was not an issue for determination in the appeal before it.
6. The Court of Appeal misdirected itself in law and on the facts when it held as follows:-

“On 21st January, 1986, Mr. Fashanu who had appeared for the plaintiff conveniently, it would appear, stayed away. Mr.Igbokwe apparently from the same Chambers, again, asked for adjournment because the principal witness was not in the country).”

Arising from the grounds of appeal filed, counsel for the appellant formulated four issues for determination in this appeal as follows:-

“(a) Whether the Court of Appeal was not wrong in refusing/failing to review the discretion exercised by the Federal High Court in this matter

(b) Whether the Court of Appeal is correct in making distinction, and in the distinction drawn by it between the procedure which a trial court ought to follow when an application for the adjournment of the trial of a case is made before and when an application for the adjournment of the trial of a case is made after, the trial of the case has commenced.

(c) Whether the Court of Appeal is right in not raised for determination in the appeal which issue is properly and competently formulated on the basis of one of the grounds of appeal filed against the decision of the Federal High Court in this case

(d) Whether it is right for the Court of Appeal to conclude that a counsel from the chambers retained by a party “conveniently stayed away” from the case merely because at a later stage of the proceedings another counsel from the same Chambers took over the conduct of the case”

In his own brief of argument, learned counsel for the 1st Respondent submitted questions for determination as follows:-

“Whether the Court of Appeal was correct in affirming the decision of the Federal High Court by dismissing the appeal for lack of prosecution

If question No.1 is answered in the affirmative, will the Supreme Court disturb the concurrent findings of facts found by the two lower courts in this appeal when the Appellant has failed to show any exceptional circumstances warranting a reversal

Was the Court of Appeal correct or justified in making inferences of facts when the inferences so made are limited to admitted or proved and accepted facts on the printed record”

In their own brief of argument, the 2nd and 3rd Respondents, formulated three issues for determination in this appeal as follows:-

“1. Can the Court of Appeal invoke the provisions of the High Court of Lagos Rules to dismiss an appeal from the High Court when the Federal High Court has its own provisions. If the answer is in the affirmative, then the present appeal is liable to dismissal; if otherwise or in the negative then the appeal succeeds and the matter remitted to the Federal High Court for a fresh hearing.

2. Since the Federal High Court based its ruling on Rodrigues case, and which case is not on all fours with the present case, and since the Court of Appeal failed to take cognisance of the said lapses, could this not be an issue of misdirection by the Federal High Court and the Court of Appeal
3. Issue of Discretion

While the Judge’s right to exercise his discretion is unfettered, should he while exercising this discretion rely on a wrong principle of law as in this present appeal”

Having regard to the grounds of appeal filed and the submission of learned counsel for the appellant. it is my view that there are only two main issues that call for determination in this appeal. The first is whether learned counsel for the appellant was right in his contention that the learned trial judge wrongly exercised his discretion when he dismissed the appellant’s application for adjournment without delivering a formal ruling on the application. The second issue is whether, after refusing the application for adjournment, the learned trial judge was not bound to invite the appellant’s counsel to proceed with his case before dismissing it. With regards to both issues, learned counsel for the appellant at page 5 of his brief, outlined the procedure which he contended the trial judge should have adopted as follows:-

“(i) deal first with the application for adjournment by clearly and formally ruling (and by informing the appellant) that its application for adjournment was refused or granted (giving reasons for its decision since the exercise of its discretion is subject to a review by a higher court). The giving of reasons for its refusal implies that a formal ruling must be written on the application for an adjournment.

(ii) if he refuses the application, he should write (sic) or call on the appellant to start or proceed with its case, thereby giving it an opportunity to choose whether or not to start or proceed with the case – fair hearing.

(iii) if the appellant chooses not to start or proceed with its case, the court would strike out the suit or dismissed it as the circumstances of the case dictate.”

In support of the submission he cited the following cases:

1. Ilona v. Dei (1971) 1 All NLR 8 at 11
2. Harrod v. Anifalaje (1986) 5 NWLR (Pt.43) 603
3. Umarco v. Panalpina (1986) 2 NWLR (Pt.20) 65 Per Nnaemeka-Agu, J.CA. (as he then was)
4. University of Lagos v. Olaniyan FCA/L/5/81 of 27/2/81 (Unreported).

He also referred to the provisions of Order 39 rules 1, 2 and 3 of the Federal High Court Rules and to the comments of the learned author of “Practice and Procedure of the Supreme Court, Court of Appeal and High Courts of Nigeria” on the matter. He finally submitted that since the Federal High Court had exercised its discretion wrongly in the matter before it, the Court of Appeal should have interfered with the exercised of the trial court’s discretion and allowed the appeal-citing, in support, the following cases:

1. Bakare v. A.C.B. Ltd. (1986)3 NWLR (Pt.26) 47
2. University of Lagos v. Aigoro (1985) 1 NWLR (Pt.l) 143
3. University of Lagos v. Olaniyan (1985) 1 NWLR (Pt.l) 156.

With regard to the first issue, I am unable to agree with the submission of learned counsel for the appellant that no ruling was made on the appellant’s application for adjournment on 3rd of June, 1984. I think the Court of Appeal was right when it held that the trial judge did make a ruling on the application for adjournment on that day. This is borne out by the record where in his ruling at p.102 of the record, the learned trial judge said:

“From the facts as related it is obvious that the plaintiff is not ready to prosecute this case and it will serve no useful purpose adjourning the case.”

I do not therefore see any substance in the appellant’s complaint relating to the first issue.

Now in the circumstances of the case, was the learned trial judge right in refusing to grant the appellant’s application for adjournment It is settled that the question of whether or not to grant an adjournment in a matter is the discretion of the court which discretion must always be exercised both judiciously and judicially. -Ilona & Anor. v. Dei & Anor. (1971) 1 All NLR 8. Indeed the discretion being that of the trial court, an appellate court should not interfere on the ground that it might have exercised it differently if it were in a position to do so. See President of Ijebu Province & Anor. v. Memudu Lagunju (1955) 14 WACA 549 at 552. An appellate court is, however, entitled to interfere with the exercise of discretion of a trial court if the appellate court is satisfied that it is in the interest of justice to do so. See University of Lagos & Anor. v. M.I. Aigora (1985) 1 NWLR (Pt.1) 143 at p.148, and D.A. Shonekan v. P.G. Smith (1967) 1 All NLR 329 at p.333. However in this case, having carefully perused the record of proceedings I have not been persuaded that in refusing to grant the appellant’s application for adjournment, the learned trial judge did not properly exercise his discretion. Again I see no merit in this complaint. Finally was the trial judge right in proceeding to dismiss the appellant’s case after refusing his application for adjournment without inviting counsel to proceed with the case I think not. In my view, after he had refused to grant the application for adjournment, the learned trial judge should have called upon the appellant’s counsel to proceed with the case, and if counsel then refused to do so, or was unwilling or unable to do so, the case could then be properly dismissed.

In “Aguda: Practice and Procedure of the Supreme Court, Court of Appeal and High Courts of Nigeria (1st Ed.) in paras 41-19 at p.456 under the heading ‘Refusal of the Court to postpone hearing’, the learned author stated the principle as follows:

“If an application for postponement is refused the party applying must be called upon by the trial judge to proceed with his case. If the party is plaintiff and he is unable to proceed, the proper order for the judge to make is one dismissing the suit if he has led no evidence at all or if the evidence he has led is unable to sustain his claim.” He cited in support the case of George Akinwande James & Anor. v. N.S.A. Thomas and others (1962) L.L.R. 9.

In this case it is clear on the record that the appellant’s counsel was never called upon by the learned trial judge to proceed with his case after the refusal of his application for adjournment and in my view, failure to do so on the part of the trial court has occasioned a miscarriage of justice. In my view, it is not enough to assume that in the circumstances of a particular case, even if counsel was called upon to proceed he would not be in a position to do so. That, in my view, would be nothing but mere speculation. It is only right and proper that before a party’s claim in a court of law is dismissed, that party should be given an opportunity of being heard. The appellant was, in this case denied this important right, and that being the case, the decisions o f both the trial court and the Court of Appeal cannot be allowed to stand. In the circumstance, on this point, the appeal succeeds and it is accordingly allowed. The decisions of both the trial court and the Court of Appeal are hereby set aside. The Case is remitted to the Federal High Court, Lagos Division for trial before another Judge of that Court. The appellant is entitled to costs assessed at N1,000.00 in this Court and N500.00 in the Court below.A. G. KARIBI-WHYTE, J.S.C.: I have read the judgment of my learned brother, Kawu, J.S.C. I agree with him that this appeal should be allowed. I however wish to make some contribution to the determination of the issues raised.

On the 3rd day of June, 1986, Learned Counsel to the Plaintiffs, Mr. M.I. Igbokwe made an oral application for the last adjournment in this case. The reasons he gave were that

“Our principal witness is not around and we have been making effort to get some of the Nigerian Directors to come and give evidence. Our problem is that the Nigerian Directors are not familiar with the case. I am asking for the last adjournment.”

Mr. Ajayi, of counsel to the 1st Defendant opposed the application. His reason was that this application for adjournment was the third since the case was fixed for hearing since the 15th and 16th October, 1985. He pointed out that Plaintiff and/or his witnesses, or indeed his representatives have never been in court. He urged the learned trial judge to dismiss the action. He cited and relied on Olayinka Rodrigues v. Public Trustee (1977) 4 S.C. 29; Nwachukwu & ors. v. Nze & ors. 15 WACA 37. Counsel pointed out that an identical suit PHC/L/l12/83 claiming the same reliefs between the same parties had been struck out on an application to dismiss the action. In that action also, Plaintiffs could not proceed with their action after series of adjournments. The reason given was that learned Counsel was unable to get in touch with their clients at the time. The present suit was instituted a month after PHC/L/112/83 was struck out. The suit has been in Court for two years without Plaintiff or his representatives appearing even for one occasion. Mrs. Njokanma, for the 2nd and 3rd Respondents, did not oppose the application for adjournment.

In his reply Mr. Igbokwe submitted that the statement of claim discloses a cause of action and the claim is therefore not frivolous. He distinguished the cases relied upon as inapplicable and different on their facts. He cited and relied on University of Lagos v. M.l. Aigoro (1985) 1 NWLR (Pt.1) 143; Umarco Nig. Ltd. v. Panalpina World Transport Ltd. (1986) 2 NWLR (Pt.20) 65.

In his ruling the same day after argument on the application for adjournment, learned trial judge traced the history of the case as replete with applications for adjournments. This being the 4th since the case was fixed for hearing. He also pointed out that Plaintiffs, or representatives have never appeared in Court. He referred to the admission of learned Counsel to the Plaintiffs that they are unable to proceed with the trial. Firstly, the Managing Director of Plaintiff Company has been deported. The Nigerian Directors are not familiar with the facts of the case. The foreign Directors have not been available consistently to give evidence on each adjourned date.

The learned trial judge held that Rodrigues v. Public Trustee (supra) are on the facts on all fours which the case before him. The case of Umarco Nigeria Ltd. v. Panalpina World Transport Ltd. (supra) he held was different and inapplicable. He then came to the following conclusion.

“In the present case the Plaintiff and his representatives have not appeared in Court and Counsel for the Plaintiff has always come up on each occasion the case is fixed for hearing to ask for adjournment. I am of the view that the plaintiff is not willing and ready to prosecute the case and in the circumstance the case is dismissed with N300 costs against the Plaintiff payable to the 1st Defendant.

With regard to the 2nd and 3rd Defendants, the counsel argument is that she will abide by the ruling of the Court. Plaintiff to pay N100 as costs to the 2nd and 3rd Defendants.

I hereby order that the case is dismissed. Plaintiff to pay N300 as costs to the 1st Defendant and to pay N100 costs to the 2nd and 3rd Defendants.

(Sgd.) S.A. Sowemimo

Judge”

It seems to me that the learned trial judge was in the same ruling considering Plaintiff s application for adjournment and at the same time 1st Defendant’s application that the action of the Plaintiff be dismissed on the grounds of want of diligent prosecution.

Plaintiff appealed to the Court below on three grounds alleging errors and Misdirections in law. The first ground was that the application for adjournment was not considered before the consideration of dismissing Plaintiff’s case. The second ground was on the application of Rodrigues v. Public Trustees (supra). The third ground related to the exercise of discretion to grant the application before dismissing the action of the Plaintiff.

I do not consider, it necessary to refer to the issues formulated in the Court below. Suffice it to say that the learned Justice of the Court of Appeal Awogu, J.C.A. correctly identified the crux of the complaint of the Plaintiff when he declared:

“The complaint in this appeal appears to be that firstly the learned Judge did not rule on the application for adjournment before proceeding to dismiss the suit for want of prosecution (at the instance of the defence counsel) and secondly, in doing so the learned Judge did not call on the appellant to proceed with the case” (See p.155 lines 11-17).

Awogu, J.C.A. in the lead judgment considered the issue whether the learned trial Judge dealt with the application for adjournment and gave reasons for refusing it and said; at p.156 lines 11-16

“Reading through the ruling of the learned Judge, it is clear that having regard to the circumstances, it was his view that “no useful purpose will be served by adjourning the case.” In my view, this was good enough reason, and cannot be regarded as “no reason.”

The Learned Justice of the Court of Appeal analysed the two circumstances where an application for adjournment would necessitate the giving of reasons for refusal. First, in the cases where trial has commenced, and parties are no longer domini litis, the trial Judge must first refuse an application for adjournment, before calling on the other party to proceed with the case, if he is unable to dismiss the claim. The second, which is the instant case, where taking of evidence was yet to commence, an adjournment was being sought either because Plaintiff was absent or unable or unwilling to prosecute the claim. It is sufficient to give reasons for refusal of adjournment and the applicant asked to proceed with his case. If he is unable to proceed the suit may be dismissed for want of prosecution. In his view, “it is therefore not necessary in the second category of cases to first write a formal ruling refusing the adjournment and then call upon the party to proceed with his case, and if he failed to do so, dismiss it. It suffices that the reason for the refusal of the adjournment appears in the judgment” (See p.158 lines 43 to p.15 lines 1-2).

The learned Justice of the Court of Appeal referred to the contention of learned counsel to the Plaintiff that the learned trial Judge ought to have invited him to proceed with the case on refusing his application for adjournment. He argued that the order for dismissal should only have been made if he had refused or been unable to do so thereafter.

The learned Justice of Court of Appeal considered the facts of this case and held that in the present action in which an adjournment had been refused, counsel’s presence was immaterial because he was unable to perform.

The Court below unanimously dismissed the appeal. Plaintiff appealed again to this Court. He relied on six grounds of appeal.

Learned Counsel filed and exchanged briefs of argument. Before argument, Duro Ajayi, Esq. learned counsel to the 1st Defendant/Respondent by motion dated 24th September, 1991 raised a preliminary objection to the competence of the brief of argument filed on behalf of the 2nd and 3rd Respondents. 2nd and 3rd Respondents have in their joint brief of argument attacked the judgment of the court below. They have not cross-appealed against the judgment. The brief of argument filed on behalf of the 2nd and 3rd Respondent was accordingly struck out. We are left with the briefs of argument of the Appellant and for the 1st Respondent. 2nd and 3rd Respondents did not seek leave to present oral argument. They therefore ceased to take part in this appeal.

Learned Counsel adopted their briefs of argument. Four issues for determination were formulated by learned counsel to the Appellant as against three by learned counsel to the 1st Respondent. As learned Counsel to the 1st Respondent formulated the issues for determination without regard for or reference to the grounds of appeal filed, I do not consider them relevant. I will accordingly adopt the issues formulated by learned Counsel to the Appellant which are as follows:-

“(a) Whether the Court of Appeal was not wrong in refusing/failing to review the discretion exercised by the Federal High Court in this matter

(b) Whether the Court of Appeal is correct in making distinction, and in the distinction drawn by it between the procedure which a trial court ought to follow when an application for the adjournment of the trial of a case is made before and when an application for the adjournment of the trial of a case is made after, the trial of the case has commenced.

(c) Whether the Court of Appeal is right in not considering an issue raised for determination in the appeal which issue is properly and competently formulated on the basis of one of the grounds of appeal filed against the decision of the Federal High Court in this case

(d) Whether it is right for the Court of Appeal to conclude that a counsel from the chambers retained by a party “conveniently stayed away” from the case merely because at a later stage of the proceedings another counsel from the same Chambers took over the conduct of the case”

A careful examination of the grounds of appeal discloses that issues (c) and (d) are not related to any of the grounds of appeal relied upon for the formulation of issues. The issues for determination must arise from and be related to the grounds of appeal. They of course cannot constitute issues for determination unless they determine issues raised in the grounds of appeal. Hence issues (c) and (d) above, will be ignored and disregarded in this judgment. It is convenient to consider the remaining two issues together.

The main plank on which issues (c) and (b) rest is the failure of the learned trial judge to exercise his judicial discretion in the procedure he adopted. It was argued that where there is an application for adjournment, and another to dismiss the suit the proper course to follow is first to determine the application for adjournment giving reasons. On refusing the application to call upon the party seeking adjournment to proceed with his case. It is only after the party had indicated inability or unwillingness to proceed with his case is the trial judge entitled to dismiss the suit for want of prosecution. It was submitted that the procedure followed by the learned trial judge in determining the two applications in one judgment was irregular. The Court below was wrong to have affirmed the exercise of this discretion.

It was submitted that the decisions of Ilona v. Dei (1971) 1 All NLR 8 at p.11; Harrods v. Anifalaje (1986) 5 NWLR (Pt.43) 603, Umarco v. Panalpina (1986) 2 NWLR (Pt.20) 65 where the correct procedure has been decided are binding. Learned counsel argued that the failure to hear counsel for the Plaintiff on the question whether or not he was to proceed with his case was a violation of the Constitutional right to be heard contrary to section 33 of the Constitution 1979. An application for adjournment cannot be considered and determined by implication.

It was submitted that even where the trial judge was satisfied that “no useful purpose will be served by adjourning the case” and the court below considered this as good enough reason to be regarded as a formal refusal of the application, the learned trial Judge ought to have thereafter proceeded to call on the applicant to proceed with his case. The two applications, namely, for adjournment, and to dismiss the suit ought to have been treated differently. It was wrong to subsume the former under the latter. Learned Counsel referred to the question of the right to begin in a litigation which can only be settled by the question of the burden of proof.

It was finally submitted that the learned trial Judge exercised his discretion arbitrarily under a misconception of law, substantial irregularity and contrary to all existing binding decisions. The Court below ought to have interfered with the exercise of discretion – Bakare v. ACB Ltd. (1986) 3 NWLR (Pt.26) 47; University of Lagos v. Aigoro (1985) 1 NWLR (Pt.l) 143; University of Lagos v. Olaniyan (1985) 1 NWLR (Pt.1) 156 were cited and relied upon.

In his reply to the submissions of learned Counsel to the Appellant, learned Counsel to the Respondent referred to and relied on the facts as found in the two Courts below and argued that being concurrent findings in the two courts this Court can only interfere on exceptional grounds. It was stated that the matter of adjournment involves the exercise of discretion. The discretion if judicially exercised cannot be disturbed. Appellant has not given reasons why the exercise of discretion should be interfered with. Learned Counsel cited several decided cases in support of his submissions.

It was submitted that the contention that the decision was wrong because there was no formal ruling on the application for adjournment before the suit was dismissed is misconceived. Learned Counsel referred to the history of previous adjournments in the appeal on the 3rd April, 1985, 15th October. 1985. and 21st January, 1986 and that on each occasion the same or similar reason for asking for adjournment had been given. On each previous occasion the adjournment asked for was granted. It was pointed out that even on the 3rd June, 1986 Counsel did not indicate he had any witness in Court. In fact he did not withdraw his application seeking adjournment with a view to proceedings with his case. Learned Counsel cited Ilona v. Dei (1971) 1 All NLR 8; Harrods v. Anifalaje (1986) 5 NWLR (Pt.43) 603; Umarco v. Panalpina (1986) 2 NWLR (Pt.20) 65 at p.74, University of Lagos v. Olaniyan (supra). Learned counsel to the Respondents referred to and relied on the reasons given by Appellant for seeking adjournment and Willoughby v. IMB (1987) 1 NWLR (Pt.48) 105 for the conclusion that his application was frivolous. He pointed out that witnesses for the Plaintiff were not available in Court for Appellant to begin with his case.

Learned Counsel referred to the submission that Appellant did not have fair hearing before his suit was dismissed and pointed out that Appellant was heard on his application for adjournment. The suit was dismissed on the oral application of learned Counsel to the 1st Respondent. Learned Counsel to Respondent answered the contention by the Appellant that the determination of the right to begin was still an issue, with the submission that the application for adjournment by the Plaintiff indicated that Appellant had the right to begin. The issue had been determined by the trial Court. The Court of Appeal found on the evidence on the record that the complaint of the Appellant could not succeed and dismissed the appeal. Learned Counsel relied on Rodrigues v. The Public Trustee (supra) as authority for the dismissal of the suit by the court.

As I have already pointed out, the real issue around which all subsidiary issues are encrusted is that the learned trial judge heard together the application for adjournment by the Plaintiff and for dismissal of the suit, by the Defendant and made a ruling dismissing the suit. The contention of the Appellant is that the application for adjournment should have first been determined. Thereafter, the application to dismiss the suit would be considered.

These matters have been touched upon but not completely covered by the Rules of the Federal High Court. In governing the application for adjournments the Rules of the Federal High Court (Civil Procedure) 1976 by Order XXXVI, rule 1 provides that “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.” Thus the purpose of granting an application for adjournment under Order XXXVI rule I, is to enable hearing and determination of the questions between the parties. An adjournment is not to be granted for the purpose of mere delay.

Again, where both parties to an action are absent, the Court shall, unless it sees good reason to the contrary, strike the cause out of the cause list. – See Order XXXIX rule 1. The Court shall, unless it sees good reason to the contrary, strike out the cause (except as to any counterclaim by the Defendant), if the Plaintiff does not appear, and make such orders as to costs in favour of the defendant appearing as seems just, – See Order XXXIX rule 2.

A Plaintiff is entitled to appear either in person or by Counsel. This is sufficient appearance for the purpose of the rules. There is no provision in the rules dealing with the situation where the Plaintiff is unable to proceed with his case either when expressly asked to do so or by implication from reasons for seeking adjournment. In the circumstances the Federal High Court is empowered by section 9 of the Federal High Court Act 1973 to apply the Rules of the High Court of Lagos State. I have already stated the facts of this case. I shall now discuss some of the decisions relied upon by both parties. In Ilona & Ugboma v. Dei & Olise (1971) 1 NMLR 5, This was a case for a declaration of title to certain fish ponds together with the piece or parcel of land known as Agwetti, 200pounds damages for trespass and an injunction, The case was fixed for Dec. 1, 1966 and again on May 25, 1967. On the latter date 2nd Plaintiff and Counsel were absent. Defendants and Counsel were present. The case was adjourned to 26th May, 1967 on the application of learned Counsel to 1st Plaintiff. On this date 2nd Plaintiff was still absent. Appearance was as on 25th May, 1967. 1st Plaintiff asked for adjournment. Defendant was prepared to proceed with hearing. His Counsel Ogbobine was appearing in the Supreme Court. 1st Plaintiff said he could not trace his surveyor. The learned trial judge adjourned to the 29th May, 1967 for judgment. On the 29th May, 1967, the learned trial judge relying on Order 28 rule 1 of the Rules of the Western Nigeria High Court, dismissed the Plaintiff’91s claim.

Plaintiffs appealed to the Supreme Court. It was argued that the trial judge could not have relied on Order 28 rule 1 to dismiss the Plaintiff’s claim when there was no notice of discontinuance or withdrawal before him. He could not have treated the application for adjournment as such notice. In allowing the appeal, this Court held that Order 28 rule 1 of the Western Nigeria High Court Rules as designed to cover cases of discontinuance pending. It was also held that it was the duty of the learned trial judge before deciding to dismiss the Plaintiff’s case to have disposed of the application for adjournment by clearly informing counsel for the Plaintiff that the application was refused.

In this case pleadings had been filed and delivered. Proceedings had commenced in the suit. A preliminary objection on the competence of the action had been refused. An application by Defendants to file their plan had been granted. The contention here was that the learned trial Judge failed to give any consideration to the application for adjournment. The failure has resulted in a miscarriage of justice; since Plaintiffs were denied the opportunity of electing whether to go on with the case or to refuse to do so.

This Court then summed up the real issue in the case, which is the same as in the instant appeal.

“The question is: was the learned trial Judge right to have dismissed the Plaintiffs claim in the circumstances disclosed by the record without first giving consideration to making a ruling on the application for adjournment The answer In that question must he in the negative.” (See (1967) 1 NMLR at p.9).

This method suggested was that adopted in Akinwande Jones & anor. v. Thomas & ors. (1962) L.L.R. 9. The error of the learned trial judge in Ilona v. Dei & Olise (supra), was again committed by the learned trial Judge in Harrods Ltd. v. Anifalaje & Harrods Ltd. (1986) 5 NWLR (Pt.43) 603. Also in this case, it was a motion for adjournment, which resulted in the application of Order 28 rule 1 of the High Court of Oyo State (Civil Procedure) Rules, which are in pari materia with Order 28 rule 1 of the Western Nigeria High Court (Civil Procedure) rules.

It was held that the trial Judge should have considered Appellant’s motion for an adjournment and to have ruled first on the motion, and if the application was refused, he could then proceed to consider whether or not to strike out the action should the appellant fail to proceed with its case.

This was a passing off action before the High Court of Oyo at Ibadan. After completion of pleadings, Counsel to the Plaintiffs wrote to the Principal Registrar, requesting setting down the action for hearing pursuant to Order 28 rr.1 & 2 of the High Court Rules. When he did not receive any hearing notice he wrote another letter referring to his earlier letter and requested for a reasonably long period of notice in order to prepare for his witnesses, who will come principally from the United Kingdom. In his letter dated the 29th November, 1984, he requested the Principal Registrar to issue the Hearing Notices. When the case came up on the 12th November, 1984, only the Defendants’ Counsel was present. The case was adjourned to 3rd and 4th December, 1984. On the 3rd, Plaintiff and Counsel were absent. The Defendants’ Counsel was in Court and applied that Plaintiff be served with the hearing notice through his Ibadan address. In his ruling the trial judge said that the case will be forwarded to the Chief Registrar, for the Certificate that “this case is ripe for striking out”. He then ordered accordingly. The return date was fixed for 16th January, 1985.

Plaintiff filed a motion dated 15th January, 1985 seeking to adjourned the trial to some future date. The reasons were set out in the supporting affidavit. There was no affidavit contradicting the averments therein. On the 29th January, 1985. Plaintiffs’ motion for adjournment was argued. Defendant’s Counsel in reply submitted that the case was ripe for striking out. The trial judge without ruling on the motion for adjournment, struck out the Plaintiff’s action. He made the following Order: “It does not appear the Plaintiff is prepared to diligently prosecute its claim which is in the circumstances struck out. It appears to me also in this case the application for adjournment was treated erroneously as a notice of withdrawal or discontinuance under Order 28 rule 1. In fact, the trial judge in this case did not receive the certificate of the Registrar before he made the Order dismissing the action. He obviously was wrong to do so.

Umarco Nigeria Ltd. v. Panalpina World Transport Ltd. (1986) 2 NWLR (Pt.20) 65, which involves the same issue is somewhat different. Here, as in Harrods, pleadings have been completed. But more than in Harrods, trial had commenced, and Plaintiff has called all his witnesses but one. During the trial, Counsel could not tender a letter he was relying upon because he only had a copy in court. He applied for an adjournment to enable him by telex to ask his clients to sent to him the original of the letter. This letter he said was material to the just determination of the case. Learned Counsel to the Defendant did not oppose the application, and did not ask that the case be dismissed. The learned Judge decided suo motu to dismiss the suit. He did not hear any address on the issue. The only application before him was for adjournment of the trial. The learned trial Judge did not give any reason for the refusal of the application for adjournment. The appeal of the Plaintiffs against the judgment was allowed by the Court of Appeal.

The Court of Appeal held that in the circumstances of this case the application for adjournment ought to have been granted. It was also held that there was a duty on the learned trial judge to give reasons for his decision not to adjourn. In each of the cases discussed above the learned trial Judge’s decision was set aside when he did not consider and make his ruling on the application for adjournment. The principle which flows from the decisions is that where a Judge has before him a matter in which there is both an application for adjournment and to dismiss the suit, it is in the interest of justice obligatory on him, first to rule on the application for adjournment, and giving the reasons, if any, for the refusal. Learned trial Judge will thereafter call on the applicant for adjournment if Plaintiff, to proceed with the case. It is only when Plaintiff has failed to proceed with his case will it be appropriate for the trial Judge to make his ruling on the application to dismiss the suit.

In the instant appeal the learned trial Judge who heard both the Plaintiff’s application for adjournment, and Defendant’s application to dismiss the suit gave one ruling dismissing the suit. It seems to me deducible from the composite ruling that the learned trial Judge refused the application for adjournment when he stated as follows:-

“From the facts as related it is obvious that the Plaintiff is not ready to prosecute the case and it will serve no useful purpose adjourning the case.” (See p.102 lines 14 – 15).

Learned trial Judge then went on to state,

“At one of the adjournments learned Counsel for the Plaintiff stated that if he could get one of the directors to give evidence, yet today learned Counsel has stated that the Nigerian Directors are not familiar with the facts of the case.” (See p.102 lines 16-21).

The probability of the Plaintiff being able to bring the witnesses required for the hearing of the action at the next adjourned date and the experience of earlier adjournments might have persuaded the trial judge to refuse the application for adjournment. This could be inferred from his observation that

“in this present case the plaintiff and his representative have not appeared in court and Counsel for the Plaintiff has always come up on each occasion the case is fixed for hearing to ask for adjournment.” ..(See p: 102 lines 40-43),

The question of adjournment is entirely within the discretion of the Court. The discretion it has been often held must be exercised judicially and judiciously. The exercise must however not be capricious, or for reasons which are extraneous to the subject matter of the discretion being exercised.

Generally an Appellate Court will not interfere in the exercise of the discretion of the Court of trial in matters within the exercise of its discretion. The exercise of discretion in granting adjournment is a matter within the discretion of the trial Judge. – See University of Lagos & anor. v. Aigoro (1985) 1 NWLR (Pt.1) 143.

However, where it is established on appeal thatthe trial Judge had acted under a mistake of law, or in complete disregard of principles, or was under a misapprehension of facts. or had taken irrelevant factors into consideration, the Appellate Court will interfere to set it aside. See Solanke v. Ajibola (1969) 1 NMLR 253. It will not merely interfere because it would have acted differently in the same situation. The Court of Appeal will not substitute its discretion for that of the Court of trial. -See Enekebe v. Enekebe (1964) 1 All NLR 102.

The Court below has observed correctly and it has also been the same in this Court that there has been no criticism that the exercise of discretion was not judicial. The Court below pointed out that the learned trial Judge gave reason for refusing the application.

I agree with the distinction in the cases where trial has begun after completion of pleadings, as in Harrods v. Anifalaje (supra) and Umarco v. Panalpina Ltd. (supra) and the situation before trial begins as in Ilona v. Dei (supra). But I do not subscribe to the view that no formal ruling is necessary in the second case. In my opinion since the ruling is subject to appeal, the reasons for the exercise of discretion must be stated at the time of the ruling.

The Court of Appeal was right in not interfering in the exercise of discretion to refuse the application for adjournment. This is no judicial basis for interference. There is judicial support for this view in Odusote v. Odusote (1971) 1 NMLR 228 where Udo Udoma J.S.C., quoting Kay L.J. in Jenkins v. Busby said;

“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 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. “”

Although the learned trial judge was right in the exercise of discretion to refuse the application for adjournment, and the court below was right in affirming. See A.C.B. Ltd. v. Agbanyim (1960) 5 FSC 19, (1960) SCNLR 57, I do not think the Court below is right to hold that the trial judge could proceed to dismiss Plaintiff’s suit without hearing Counsel after refusal of the application for adjournment.

Learned Counsel to the Appellant has referred to the decided cases which have established the principle that where an application by the Plaintiff for an adjournment is refused he must be given the opportunity to proceed with his case. It is only when he has failed or been unable to do so that the trial judge can properly dismiss the suit for want of prosecution. That this is the correct procedure has been laid down in the decisions of Ilona & anor. v. Dei (1971) 1 NMLR, Harrods v. Anifalaye (1986) 5 NWLR (Pt. 43) 603; Umarco v. Panalpina (1986) 2 NWLR (Pt.20) 65. It is not in dispute that the learned trial Judge did not follow this procedure.

Learned Counsel has submitted that having refused his application for adornment the trial Judge should have called on him to proceed with his case. The decision to dismiss his suit in the circumstance he submits is a denial of fair hearing. There is considerable substance and force in this submission. It is essential for the determination of the applications to separate them. The Court of Appeal agrees distinction between functionality and adjournment; and that they should be considered separately. Their Lordships of the Court of Appeal appear to have fallen into the same error as the trial Judge when they regarded the presence of Counsel as immaterial and irrelevant to the issue of calling on the Plaintiff to proceed with his case. It cannot be denied that Counsel representing the Plaintiff in dominus litis. He is entitled to exercise all the rights of the Plaintiff in the action. The Court below has relied on the reasons given by learned Counsel to the tiff in his application for adjournment for dismissing the suit. This is clear the conclusion

“…..when the case was called, the Plaintiff or its representative was not in Court and the learned Counsel for the Plaintiff asked for adjournment on the same similar reason that the principal witness is not around. From the facts as related it is obvious that the Plaintiff is not ready to prosecute this case and it will serve no useful purpose adjourning the case.”

Of course, an application for adjournment is prima facie evidence that applicant is not ready to proceed with the case. It is clearly not conclusive. This is however, no reason why applicant should not be give opportunity to decide whether to proceed with his case. Counsel representing the plaintiff is the plaintiff – See Kehinde v. Ogunbunmi & ors. (1968) NMLR 37. The limitations Counsel may suffer from his inability to proceed with his witnesses cannot be taken advantage of in denying the Plaintiff the right to be heard. The right to be heard is a fundamental and indispensable requirement of any judicial decision. The Judge cannot assume an answer as has been done in the instant case, without a hearing.

As I have already pointed out, the reply of the Respondent to the application for adjournment was in opposition to the adjournment, urging a dismissal of the suit. Counsel to the Plaintiff was not heard in reply to the application urging the dismissal of the suit before the ruling refusing the adjournment and dismissing the suit was made.

It appears to me that the Court below considered the functionality without hearing the Plaintiff on the issue. The suit should not have been dismissed without calling on learned Counsel to the Plaintiff to proceed with his case. The issue of functionality can be determined only after Plaintiff has indicated his inability or unwillingness to proceed with the case. It is only then that the Court will be satisfied that Plaintiff is unable to proceed with his case. The Court of trial was wrong to have dismissed the suit. The Court of trial has not followed the rules applicable to the case which is Order 28 r.1 of High Court of Lagos State Civil Procedure Rules. The Court below was also wrong to have affirmed the decision.

It was submitted that the paramount consideration is the interest of justice between the parties. – See Egbe & anor. v. Yonwuren & anor. (1978) 2 LRN 136 at p.141-143, Solanke v. Ajibola (1968) 1 All NLR 46 at p.54. This is not disputed. It is conceded. But justice must be seem manifestly to be done. I do not think the test of fair hearing Mohammed v. Kano N.A. (supra) is satisfied where having refused Plaintiff’s application for adjournment; he is denied the right to exercise the option of either proceeding with his case or withdrawing his suit. That was the situation in Rodrigues v. Public Trustee (1977) 4 S.C. 29.

In the circumstances of this case where Plaintiff was not given a hearing and an opportunity to decide whether or not to proceed with his case before the suit was dismissed, the decision in Rodrigues v. Public Trustee (supra) where the Plaintiff was heard and given opportunity to withdraw his suit is not applicable. In Rodrigues case, there was the oral application by Counsel to the Plaintiffs to withdraw the suit. Counsel also gave reasons for seeking to withdraw the suit. But Plaintiff did not seek leave of court to withdraw the suit. The Court was dealing with Plaintiffs application to withdraw his action without seeking leave of the court to do so. Hence the exercise of the discretion to refuse the application was held to be valid and unimpeachable. With due respect to the Courts below Rodrigues case is not on all fours with the appeal before us. Accordingly, in dismissing the suit although the rule, relating to fair hearing was complied with in the Rodrigues case it was clearly not satisfied in the instant case. The Plaintiff having not been heard on the question whether his suit should be dismissed, is not a party to such a decision.

Although the question whether to adjourn a suit before a trial Judge is one within his discretion, and the learned trial Judge complied with the principle of fair hearing in respect of that application, Plaintiff did not apply to withdraw or discontinue the action. The learned trial Judge did not hear the Plaintiff in respect of Defendant’s application to dismiss the action. The decision dismissing Plaintiff’s action is accordingly a nullity. The Court of Appeal was accordingly wrong to have affirmed the decision of the trial Judge dismissing the suit of the Plaintiff.

In the Circumstance, I hold that although the learned trial Judge exercised his discretion properly and judicially to refuse the application for adjournment, the denial of the Plaintiff of the right to be heard before his action was dismissed is a violation of the right to be heard. The result therefore is the nullity of the order of dismissal. The order of dismissal of the suit is hereby set aside.

The appeal of the Appellant is accordingly allowed to that extent. The case is remitted to the Federal High Court Lagos for trial on its merits.

Respondent shall pay to Appellant costs of this action assessed at N1,000 in this Court, and N500 in the Court below.

S. M. A. BELGORE, J.S.C.: It is fundamental that a party’s case must be heard. There are occasions, when for reasons he is unable to disclose to the Court or even for untenable reasons, a party to litigation does not wish to proceed with the case and asks for an adjournment. Each case in its peculiar circumstance will have to be considered by the judge whether to grant the adjournment or not. It is a matter of discretion which of course must be exercised judiciously. But should the judge refuse an adjournment, he still has more to do.

He cannot there and then strike out the case for want of prosecution if the party seeking adjournment is the plaintiff. After refusing to adjourn he must call upon the plaintiff to present his case, which he may as well be ready to do. It is when he is unable to prosecute the case or proceeds to prosecute it that the judge can strike it out for want of prosecution. It is for the aforementioned reasons and fuller reasons in the judgment of Kawu J.S.C with which I am in full agreement that I find merit in this appeal.

The appeal is allowed and the matter is remitted to Federal High Court for trial de novo. I award N1,000.00 costs in this Court and N500.00 as costs in Court of Appeal against the respondents.

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SC.73/1989