Chief James Ntukidem & Ors. V. Chief Asuquo Oko & Ors. (1986)

LawGlobal-Hub Lead Judgment Report

KAZEEM, J.S.C.

On the 13th of October, 1986, I allowed this appeal, set aside the decision of the Court of Appeal, Enugu and remitted the appeal to that Court for hearing on the merit. I then reserved my reasons for doing so, which is now given today.

The appeal itself is not against the decision of the said Court of Appeal Enugu on the main issue decided by the High Court on 21st September, 1977. That has not yet been heard on the merit. Rather, this is an interlocutory appeal against the decision of the Court of Appeal Enugu on its refusal to grant an adjournment to hear the main appeal which was then dismissed. The whole proceedings of the Court on 19th January, 1984 leading to that decision read as follows:-

“Appellant in Court and says that his Counsel are Fani-Kayode & Sowemimo who promised to he in court today.

AND Ezeogu for the Respondents.

COURT: Appellant is called upon to argue his appeals as it will he unfair to adjourn the hearing of this appeal again. Appellant has been given ample opportunity to bring his Counsel to Court.

Appellant says he cannot argue the appeal.

COURT: Appeal is dismissed with N100.00 costs to the Respondent.

Signed J, A, Phil Ebosie

Presiding Justice

19/1/84”

On the appellant’s Counsel being informed of the Court’s decision and thinking that the appeal was struck out. he immediately filed an application a week later on 26th January 1984 for the appeal to be relisted. In paragraphs 4 to 7 of the Affidavit in support of that application the reasons responsible for counsel’s absence at the hearing of the appeal were given thus:

That after obtaining boarding pass and he was about to fly to Enugu on 18th January. 1984 (a day prior to the hearing of the appeal), all flights to Enugu were cancelled by the Nigeria Airways for bad weather: -that the cancellation was not announced until about 7 p.m when it was already too late to attempt to go by road; that subsequently early the following morning all efforts to contact the Registrar of the Appeal Court at Enugu by telephone to explain the circumstances, failed; and that later that day a telegram was dispatched to the Court at Enugu to explain the situation necessitating counsel’s non-appearance.

It was at the hearing of the application for relisting that appellant’s counsel became aware that the appeal was dismissed and not struck out. As a result, the application itself was withdrawn by counsel and it was dismissed.

Consequently, this appeal was filed against the dismissal of the appeal on the following two grounds:-

“(1)

The Federal Court of Appeal misdirected itself in law in refusing to grant the application for adjournment by exercising its discretion injudiciously and on wrong considerations.

Particulars a/Misdirection

(a) Inability of the Appellants to prosecute the appeal on the appointed date was due to the default of counsel for being absent in Court due to the cancellation of the Nigerian Airways flight from Lagos to Enugu on the day before the Appeal i.e ….. and not that of the Appellant,.

(b) The Appellants told the Court that he was not a lawyer and in the absence of his lawyer he was seeking an adjournment as he could not argue the appeal.

(c) The grounds of Appeal were formulated and filed by Counsel and only a legal practitioner can competently argue the Grounds of Appeal.

(d) On the last two occasion (prior to the appeal being struck out), when the appeal came up at the Federal Court of Appeal. Appellant, together with their Counsel were always present in Court for example,

(i) on the 20/4/83 appeal came up in Court, but had to be adjourned as Respondent was absent and there was no proof of service, appeal was adjourned as the Court of Appeal had a crowded schedule, appeal adjourned to 30/6/83:

(ii) on the 30/6/83 appeal had to be adjourned as the Court of Appeal had a crowded schedule, appeal adjourned to 19/1/84.

(e) A telegram was sent by Counsel on the morning of the appeal the 19th of January, 1984 to the Court of Appeal in Enugu stating that counsel would he unavoidably absent due to cancellation of the Nigerian Airways flight from Lagos to Enugu the previous day.

(f) Appellant, had previously filed on the 18th of Feb. 1981 an application for accelerated hearing of the appeal indicating their anxiety in having the matter disposed of on appeal as quickly as possible.

(2) The Federal Court of Appeal erred in law in failing to exercise its discretion in granting an adjournment in favour of the Appellants to ensure that they enjoyed their constitutional rights under the 1979 Constitution.

Particulars of Error

(a) The Federal Court of Appeal refused to grant the Appellants application for an adjournment so as to enable their Counsel to argue the appeal as competently and in as professional a manner as Counsel for the Respondent. thus effectively depriving the Appellant’s of a fair hearing contrary to Section 33 of the Constitution.”‘ .

Ground:2 of the Grounds of Appeal has raised the issue of denial of the appellant’s constitutional right to the fair hearing of his appeal under Section 33 of the 1979 Constitution of the Federal Republic of Nigeria; and that has necessitated the setting up of the full Court to hear the issue. However, at the hearing of the appeal, learned Counsel for the appellant was unable to show from the record how the appellant was denied of such right. It was brought to Counsel’s attention that the appellant had adequate opportunity of having his appeal heard; and that was why he retained Counsel who had appeared in Court on several occasions for that purpose. But for certain unforeseen and inevitable circumstances learned Counsel for the appellant could not be present to argue the appeal on 19th January. 1984. It thus became obvious that no constitutional issue had arisen in the appeal. Hence, learned Counsel for the appellant abandoned ground 2.

In arguing Ground 1 which raises a fundamental question of the exercise of discretion by the Court of Appeal in granting an adjournment, both learned Counsel for the appellants and the respondents relied on their briefs. But later, on seeing the futility of opposing the appeal having regard to the circumstances of the case, learned Counsel for the respondents left the matter to the discretion of the Court to decide.

On the issue as to how a Court should exercise its unfettered discretion to grant an adjournment, and whether or not a Court of Appeal may interfere with the exercise of that discretion, this Court had had an occasion to consider the matter in a recent case of University of Lagos and Anor. v. Aigoro (1985) 1 S.C. 265. In that case, the Senior Counsel for the appellant was absent at the hearing of an appeal at the Court of Appeal Lagos. But the junior Counsel for the Appellant who was present said he could not go on; and he asked for an adjournment because he did not have the record of appeal with him. The Court offered to lend him one Record of Appeal, but he said he was not prepared to go on with the appeal. Consequently, the Court of Appeal instead of adjourning the matter dismissed it with costs against the Appellants. On the appeal against that decision, the appeal was allowed. In a lead judgment, Bello, J.S.C, having duly considered the issue and after reference to many decisions on the matter, summarized the guiding principles at page 271 as follows:-

“Now. Order 1 rule 11 of the Court of Appeal Rules, 1981 confers on that court unfettered discretion at any time on application or of its own motion to adjourn any proceedings pending before it from time to time. The question therefore whether or not to grant an adjournment is a matter within the discretion of that court. It is well settled that if judicial discretion has been exercised bona fide uninfluenced by irrelevant considerations and not arbitrarily or illegally by the lower court the general rule is that an appeal Court will not ordinarily interfere. But there are exceptions to this rule. It is in this area that one cannot lay down a hard and fast rule as to the exercise of judicial discretion, for a moment one does that “the discretion of the Judge is fettered”:- see Jones v. Curling 13 Q.B.D. 262. The guiding principle in this respect is that the discretion, being judicial, must at all times be exercised not only judicially but also judiciously on sufficient materials: Saffieddine v. C.P. (1965) 1 All N.L.R. 54 at 56. Ugboma v. Olise (1971) 1 All N.L.R. 8. It is upon this principle that the numerous cases showing when an appeal Court is entitled to impeach the exercise of judicial discretion have been founded.

Thus an appeal Court may interfere with the exercise of judicial discretion if it is shown that there has been a wrongful exercise of the discretion such as where the tribunal acted under misconception of law or under misapprehension of fact in that it either gave weight to irrelevant or unproved matters or it omitted to take into account matters that are relevant or where it exercised or failed to exercise the discretion on wrong or inadequate materials and in all other cases where it is in the interest of justice to interfere: see Enekebe v. Enekebe (1964) 1 All N.L.R. 102 at 106, Saffiedine v. C.P. (supra), Demuren v. Asuni (1967) 1 All N.L. R. 94 at 101. Mobil Oil v. Federal Hoard of Inland Revenue (1977) 3 S.C.97 at 141, Sonekan v. Smith (1967) 1 All N.L.R. 329 and Solanke v. Ajibola (1968) 1 All N.L.R. 46 at 52.

The Court must balance its discretionary power to grant or refuse an adjournment with its duty to endeavour to give an appellant the opportunity of obtaining substantial justice in the shape of his appeal being granted a fair hearing on its merits provided always that no injustice is thereby caused to the other party and where the court erred in its balancing exercise an appeal court is at liberty to interfere: Demuren v. Asuni (supra).”

In this appeal, the Court of Appeal Enugu dismissed the appeal rather than striking it out. Thus it has defeated altogether the right of the appellant in prosecuting the appeal which resulted in injustice. And it seems to me that the decision was based on wrong premises:

(i) that the Court considered it would be unfair to adjourn the hearing of the appeal again, and

(ii) that the appellant had been given ample opportunity to bring his Counsel to Court.

But the record of appeal does not support that contention. A perusal of pages 105 to 109 of the record shows the following analysis of the various adjournments granted by the Court since the appeal was first listed before it:

“(a) Appeal first came before the Court on 27th April. 1981 – No appearances and adjourned to 6th July, 1981.

(b) Resumed on Tuesday the 11th October, 1981. No appearance as no report of service. Adjourned to 7th February 1981 (Sic) (1982)

(c) Resumed Hearing on Thursday 3rd of June, 1982. – Ademola for the Appellants. No appearance for Respondent as no report of service.

(d) Resumed Wednesday 10th November. 1982. K. Onafowokan holding Chief S.A.S. Sowemimo’s brief for appellant. E.N.D. Ezeogu for Respondent.

Adjourned to 14/2/83 for hearing by consent.

(e) Resumed on 14th February. 1983.

Appellants’ representatives in Court but say their Counsel has not arrived. – Ezeogu – I have no objection to an adjournment as this case was filed by consent on 10/11/82.

Adjourned to 20/4/83 for hearing.

(f) Resumed on 20th April, 1983 – K. Onafowokav for Appellant No proof of service on the Respondent. Appeal adjourned to 30th June. 1983 Notice to the Respondents.

(g) Resumed Thursday 30th June, 1983 – Agbaje-Anozie for the Appellant. E.N.D. Ezeogu for Respondents.

Adjourned to 19/1/84 for hearing.”

The above analysis does not show that learned Counsel for the appellants was habitually absent from Court. Rather it confirms that he was always present at every adjournment; and on those occasions when no Counsel was present at all, it was because there was no report of service on the parties or their Counsel. Moreover there was before the Court the appellant’s application for an order for leave to file and argue additional grounds of law: and also an application by the appellants for an accelerated hearing of the case. How then could the Court have taken the view that the appellants were unwilling to prosecute the appeal by dismissing it’ Although the Court called on the appellants who were present in Court on the 19th January 1984, to argue their appeal in the absence of their counsel but how could they have done so I think it was rather unfair to them to be so called upon. Learned Counsel for the appellant in a later application to relist the appeal which he thought was struck out deposed to the facts which made it impossible for him to travel to Enugu on 18th January, 1984 so as to be present on 19th January, 1984 to argue the appeal. And I think that if the Court was aware of those unforseen and inevitable circumstances when the appeal was being dismissed, it would have been disposed to adjourn the matter till another date.

Firstly, the facts of this appeal appear similar to those in Arisiubu v. Emodi (1975) 2 S.C. 9 where in a land matter the plaintiffs counsel was absent on the day fixed for hearing at the High Court, Onitsha. Before then, the case had previously due to the absence of one or the other of both parties on a number of occasions, been adjourned several times by the Court, On the last occasion both parties and Counsel for the defendant were present; hut Counsel for plaintiff was absent. The plaintiff said that she could not go on with the case in the absence of her Counsel. The Court therefore refused to adjourn the case and dismissed it with costs against the plaintiff. An appeal to the Supreme Court against the decision was allowed. In the judgment of the Court, Elias, C.J.N. (as he then was) said:

While we think that the learned Counsel for the appellant deserved the blame laid upon him by the Learned trial Judge for his absence on February 1, 1974, we are of the opinion that he should not have refused the Plaintiffs pleas for an adjournment till she was able, on a later occasion, to get her Counsel to court or brief another one, The Learned Trial Judge should not have taken it out on the Plaintiff who had almost always been present on previous occasions as indeed she was on the fateful occasion. It seems to us that, as the Judge had had occasion to see the pleadings filed by both parties he should not have allowed default of Counsel to make him dismiss the Plaintiff’s claim when it must be obvious that to do so would defeat her claim altogether and thereby result in injustice to her. It would seem that the learned trial Judge was more angered by the dereliction of duty on the part of Counsel than by anything for which the Plaintiff could be blamed: indeed, his ruling shows clearly no default on the part of the Plaintiff/Appellant. The Learned Trial Judge obviously did not take into consideration all the circumstances of the case before him before dismissing the Plaintiffs action,”

it seems to me that having regard to the guiding principles discussed above, the learned justices of Court of Appeal did not act judiciously in refusing to adjourn the appeal before them on 19th January, 1984, particularly when it was obvious to them from the record of appeal that the land matter involved complex issues of law for which the appellants were not legally equipped; and by dismissing the appeal, the appellants’ case would be defeated altogether and result in injustice’ to them.

It was for the above reasons that I allowed the appeal on 13th October, 1986, set aside the decision of the Court of Appeal dated 28tb March. 1984 and remitted the appeal to that court for hearing on its merit with N300.00 costs to the appellants.

BELLO, J.S.C.:(Presiding): I have had the opportunity of reading in advance the reasons for judgment just delivered by my learned brother. Kazeem, J.S.C. I adopt them as mine.

ANIAGOLU, J.S.C.: Having had the advantage of reading in draft the Reasons for Judgment just delivered by my learned brother. Kazeem, J.S.C., in this Appeal with which I am in agreement. I shall content myself with making a few observations.

In the determination of cases, a Court aims always at achieving substantial justice for the parties and. Therefore, in the exercise of judicial discretion, the primary objective of the Court must be to attain substantial justice As Thesiger, L.J., had stated in the often cited case of COLLINS v. VESTRY OF PADDINGTON (1880) 5 Q.8.D, at 308 and 381.

Each party has a right to have the dispute determined upon the merits, and Courts should go everything to favour the fair trial of the questions between them.

He went on to observe that blunders must take place from time to time and such cases of blunder may be remedied by payment of costs or the imposition of terms and conditions. The West African Court of Appeal adopted this reasoning in OJIKUTU V. ODEH (1954) 14 W.A.C.A. 640. It is true that at the time the appeal was called for hearing, neither the Court nor the parties knew of Counsel’s Nigerian Airways Flight predicament in Lagos but since the appellants had previously been attending Court with their Counsel and, indeed, had applied for accelerated hearing, the situation could have been saved by an adjournment coupled with infliction of heavy costs, if necessary, on the Appellant”.

There was no way in which the Appellants could have been able to argue their appeal, in the absence of their Counsel, given the legal issues usually attendant upon these appeals.

Even if arguing the legal intricacies of the appeal would not have been beyond the capacity of the Appellants, they could not be expected to argue the appeal without the appeal documents which would normally be in the possession of Counsel they briefed to argue their appeal. When the Court required of them to proceed with their appeal, with what materials were they expected to argue the appeal – not to talk of the traumatic and embarrassing effect the Court’s demand would have upon them At best, the Court as, I have said, could have adjourned the appeal with heavy costs against the Appellants at worst, the Court could have struck out the appeal, again with heavy costs, if necessary, against them. To dismiss their appeal was to determine the appeal against them on the merits – a determination which, in the circumstances, clearly worked injustice upon the Appellants by defeating their case without hearing them, In MAXWELL v. KEUN And Ors. (1928) 1 K. B. 645, while recognising the principle that the Court of Appeal ought to be very slow to interfere with the discretion vested in the trial Judge in respect of adjournments of trials of actions before him, yet an Appeal Court must act and interfere where it is satisfied that the trial Judge’s refusal to adjourn will have the effect of defeating the right” of one or the other of the parties.

The central theme is the desirability of securing justice. No two cases are alike in all particulars. Each case must be examined on it” own fact” not circumstances. As was said in UNIVERSITY OF LAGOS v. AIGORO (1985) 1 N.W.L.R. 143 (per Bello, J.S.C.) it is a “balancing exercise’ in which I must hold that the Judge must adjust the scale of justice in such a way as to be fair to each party.

It must further be noted that the suit on which the appeal went to the Court of Appeal was one of a land dispute between two autonomous village communities of Ikot Udo in Northern Uruan in Uyo Division and Ikot Ayan, in Itam, in Itu Division. Any person who is acquainted with land disputes in this country, and especially in the Eastern States, knows the level of tensions generated by land disputes and how easily the whole thing can degenerate into riots and inter-communal village wars in which, more often than not, innocent lives are lost. This emphasizes the utmost necessity of hearing those cases on their merits and satisfying the parties that the merits of their contentions have been gone into, critically analyzed, and justly decided upon. Anything short of this is an invitation for trouble. But this is not to say that the Courts must shy from firm and courageous determination of cases before them for fear of intimidatory violent reactions. What it all means is that every effort must painstakingly be made to do justice. A snappy short-cut decision, bereft of an examination of the merits of the case often settles nothing but rather exacerbates the conflict.

There is no doubt in my mind that if the Court of Appeal had been aware of the reasons for the failure of Appellants’ Counsel to appear in Court in Enugu on 19th January, 1984, the Court would not have dismissed the appeal of the Appellants. Had the Court adjourned the appeal with costs, or merely struck it out, the subsequent explanation of Counsel as to the reasons for his absence as set out in his affidavit would, undoubtedly, have satisfied the Court and would have justified the putting of the appeal back on the Court list, for hearing and determination on the merits. Appellants’ Counsel had good and substantial reasons for his absence in court.

It was for the above reasons and the wider reasons adduced by my learned brother, Kazeem J.S.C., that I allowed this appeal on 13th October, 1986, set aside the judgment of the Court of appeal, and ordered the hearing of the appeal on its merit. N300.00 costs to the Appellants.

COKER J.S.C.: On the 13th October, 1986, this appeal was allowed the judgment of the Court below dismissing the appeal was set aside, and I ordered the appeal be heard and decided on the merits. I then inflicted that the reasons for my decision will be given today.

The appeal to the court below was against the decision of the High Court of Cross River State which entered judgment against the defendants in favour of the Plaintiffs for declaration of title to a piece or parcel of land situate at Ikot Udo along Ikot Anya-Ikot Udo Road, Uyo; N400.00 damages for trespass and for an order of injunction. The defendants, the people of Ikot Anya Itam, appealed to the Court of Appeal, sitting at Enugu and duly complied with the conditions of appeal. The record of appeal showed that on the 2nd March, 1981 an application to the Court of Appeal was filed on their behalf by Messrs. Fani-Kayode and Sowemimo. Legal Practitioners for leave to argue additional grounds of appeal. It was not listed and no mention was made of the application until the appeal was finally dismissed on 19th January, 1984. Before that date, and to be precise, on the 9th March, 1981, the same legal practitioners had filed an application to the Court for accelerated hearing of the appeal. Although the application indicated that it would be heard on the 15th April, 1981, it never appeared before the court list and was never heard.

The appeal itself then came before the Court several times between 3rd June, 1982 when Ademola appeared for the appellants and the 19th January, 1984 when the appeal was dismissed. The appellants were always present or represented in Court with their Counsel excepting on one occasion.

I on the 20/4/83, Counsel appeared for the Appellants, but the Respondents’ Counsel was absent. It was recorded that there was no proof of service on the Respondents even though their Counsel was present on the 14/2/83 when cost of N100.00 was awarded against the appellants occasioned by the absence of Counsel.

On the 30th June, 1983 Counsel for both parties appeared in Court and the appeal was adjourned to 19/1/84 for hearing, the date the appeal was dismissed.

The net result was that the appeal came before the Court nine times; thrice, the parties were absent for none service of notice or for some mistakes of some kind or error committed by the court itself. It is pertinent to note that the appellants were always present in Court whenever they had notice.

On the 19th January, 1984, a representative of the appellants was in Court and informed the Court that his Counsel had promised to be in Court and could not explain his absence. The Court insisted that he should proceed with the argument of the appeal as the record showed:-

“as it will be unfair to adjourn the hearing of this appeal again.

Appellant had been given ample opportunity to bring his Counsel to Court, appellant says he cannot argue the appeal.”

Thereupon the Court dismissed the appeal with N100.00 costs to the Respondents.

The Appellants subsequently reported to their Counsel on 23rd January 1986, that the appeal was “struck out” (according to his understanding of the order); whereas it was an order of dismissal. As a result, learned Counsel filed an application on the 26th January, 1984 praying the Court to relist the appeal and as it was stated, “which was struck out on 19th January, 1984 for non appearance of Counsel.” In the affidavit in support of the application. It was reveled that the absence of Counsel in Court on the 19th January, 1984 was due to a factor far beyond his control. It was due to late cancellation of Nigeria Airways flights to Enugu from Lagos on the 18th January due to had weather condition. Their Counsel. Mr Seyi Sowemimo, had obtained a boarding pass to take flight to Enugu and it was practically impossible to reach Enugu by road the following morning and his attempt to contact the Court at Enugu by telephone on 19th January was abortive’. The telegram which he sent on the morning of 19th January could not reach the Court before the appeal was dismissed. These facts were not known to the Court when the appeal was dismissed.

The only point in the appeal IV as whether the order of the Court of Appeal dismissing the appeal for inability of the appellants personally to argue the appeal as ordered by the Court should he allowed to stand. The real issue was whether the dismissal was just to the parties. In other words, whether the ends of justice could have been served by completely shutting the doors of appeal to the appellant’s simply because their Counsel failed to appear in Court bearing in mind the regularity of appearance in Court, the issues raised in the grounds of appeal and the value of the subject matter of the appeal, the effect of the dismissal on all the parties and particularly the very likelihood of breach of peace between the two communities resulting from a feeling of injustice.

The question therefore is whether the Court should in the circumstance not disturb the exercise of the discretion of the Court below. The power of an appeal Court to interfere with the exercise of the discretion of a court is not open to doubt. But it is one of reluctance and circumspect. It is a power to be seldom exercised. Seldom will it disturb the discretion whether it should adjourn or not adjourn any matter before it. By virtue of its inherent power and Order 1 Rule 10 of the Court of Appeal Rules, the Court of Appeal has the power to adjourn for the purpose of doing justice in any matter before it. However, the Court has the power to interfere and reverse the exercise of the discretion where the interest of justice so demands. See Solanke v. Ajibola (1968) 1 A.N.L.R. 46. If the result of the order of dismissal is to defeat the rights of the parties altogether without consideration of the merits of the case and if it is satisfied that by allowing the order of dismissal to stand it would be doing injustice to one or both of the parties, then the court has the duty to review the order and if necessary reverse it. See also Odusote v. Odusote (1971) 1 All N.I..R. 119. pp.123 – 124 and Anisiubu v. Emodi (1975) 1 5.C.9. Before arriving at its decisions the Appeal Court ought to consider all the circumstances of the case. These include the nature of the subject matter of the case the issues involved in the appeal, he antecedent conduct of the parties in relation to the prosecution of the proceedings, the reason for the application requesting for adjournment and what consequences the grant or refusal of the discretion to adjourn would involve the parties. The Court should always be liberal and inclined towards giving the parties freedom of fair hearing, particularly where costs would be adequate compensation for the adjournment requested. The discretion should be one of balancing the need for speedy hearing of the matter and doing substantial justice by the determination of the matter on the merits.

In the case in hand, the record showed that the appellants had at all times appeared in Court and showed keen interest in prosecuting the appeal. They had consistently appeared in Court personally. They consulted Counsel, who applied for leave to argue additional grounds of appeal; some were serous points of law and of mixed law and fact. They were such which no lay person not experienced in the practice of law could venture to argue. There was no history of absence by their Counsel. Appellants were not previously warned to engage the services of another Counsel. It does not appear to me that the Court read the record of appeal or the proposed grounds of appeal in order to decide whether or not there were serious issues involved in the appeal; it failed to consider the grave irreparable injustice the dismissal of 13 appeal would cause to the appellants and the possible breach of peace which might result by denying them the right of pursuing their constitutional right of contesting the judgment which perpetually enjoined them and members of their community from using or claiming the land over which they had exercised some rights of ownership at one time or the other, particularly when the Court had found

“The case for the plaintiff has been evenly balanced by the case for the defendant with no side being stronger than the other.

The importance of this finding is that the case of the defendants was not found to be frivolous; The Court below ought to have weighed the injustice which would result to the appellants and their people against the inconvenience which the temporary delay of adjournment will cause the respondents. Further, to dismiss the appeal without considering the merits of the appeal was clearly doing injustice to the appellants.

There was also the question of breach of Section 33 of the Constitution. Mr. Sowemimo submitted that the refusal of the court to adjourn in the circumstance to enable appellant to engage the services of another Counsel to argue the appeal and the insistence of the Court that the appellant should themselves personally argue the appeal therefore leaving them with no choice amount to denial of fair hearing and in breach of Section 33 of the Constitution. I was of the view that the point was well taken. It was an Hobson’s choice. It was an irrational exercise of discretion.

The fact remained that the appellants were not responsible for the absence of their Counsel, who was prepared and ready to appear in Court, but for the inevitable reason over which he had no control. That he was willing and ready to proceed to Enugu on the 18th January, day before the hearing was reasonable and the fact was not denied by the respondents. That he could not afterwards travel by road to arrive Enugu the following morning early enough to reach Court before sitting was quite understandable. If the Court knew the reasons for his non-appearance as subsequently revealed to it, and as Mr. Egbuziem himself conceded. I have no doubt that the Court below would not have dismissed the appeal as it did.

This Court has always expressed the view that a party should not normally be penalised solely for the default of his Counsel. In this case I can find no default on the part of their Counsel. The power of the Court to dismiss a case is one which should be exercised not irrationally hut with circumspection.

With some measure of caution and consideration by the court below the further delay in hearing this appeal and the expenses ensuing therefrom could have been avoided.

I allowed the appeal for the above reasons and other reasons clearly stated in the lead reasons just delivered by my learned brother Kazeem J.S.C., all of which accord with my reasons for allowing the appeal.

KARIBI-WHYTE, J.S.C.: I hereunder give the reasons for my judgment allowing this appeal on the 13th October, 1986. 1 also made an order remitting the appeal to the Court of Appeal Division, Enugu, for hearing on its merits. I have read the judgment of B.O. Kazeem J.S.C in this appeal I agree entirely with his reasoning and conclusions which agree perfectly with my own views.

The appeal which came before us was against the judgment of the Court of Appeal, dismissing the appeal of the Appellants before it. The reason adduced in support of the judgment of the Court of Appeal was that Appellants had failed in the absence of Counsel in Court, to argue their appeal which was adjourned to that date for hearing. Accordingly, the Court refused to exercise its discretion to grant an adjournment to the Appellants on the facts as it was known to them. The question before this Court which is by no means a simple one but fortunately in respect of which there is no dearth of decided cases, is whether the Court of Appeal exercised its discretion judicially The facts on which the appeal was brought are not disputed. Even the antecedents to the events of the day on which the appeal was dismissed are admitted as stated in the record of proceedings. I think the full facts of the events of the 19th January 1984 as known to the court in respect of which the court exercised its jurisdiction are as recorded in the record of appeal before us at p.109 as follows:-

“Appellant in court and says that his Counsel are Fani-Kayode & Sowemimo who promised to be in court today.

E.N.D. Ezeagu for Respondents

Court: Appellant is called upon to argue his appeal as it will be unfair to adjourn the hearing of this appeal again. Appellant has been given ample opportunity to bring his Counsel to Court. Appellant says he cannot argue the’ appeal

Court: Appeal is dismissed with N100.00 costs to the Respondents. (Sgd) J A Phil-Fhosie

Presiding Justice

19/1/84′”

It is obvious from the above quoted record of the proceeding”- on the 19th January 1984, that Appellant did not ask for an adjournment. His Counsel promised to be in Court that day. Appellant was unequivocal that he could not argue the appeal without counsel. The only fair deduction on the facts is that the Court refused to exercise its discretion to adjourn the appeal because it considered it unfair to do so. It did not consider it unfair to call upon the appellant who. to the knowledge of the Court had employed the services of Counsel, to argue his appeal himself which involved points of law.

After the appeal of the Appellant was dismissed on the 19th January 1984, Appellants reported to their Counsel that the appeal had been struck out. Counsel then took steps to have the appeal relisted for hearing. A motion to relist the appeal was filed on the 25th January 1986 and was fixed for hearing on the 26th March 1986. This is the proper step to take if in fact the appeal was struck out. It was not. The appeal was dismissed.

It is pertinent to mention that the affidavit supporting the application to relist the appeal contained averments of reasons why Counsel to the Appellant failed to appear in Court on the 19th January, 1984. An affidavit by one Kunle Aclegbite.a Law Clerk in the chambers of Appellants Counsel deposed in paragraphs 3, 4, 5, 6. 7, 8, 9, 11 as follows:

3. “That in consequence of the hearing notice fixing the hearing of this appeal for the 19th January 1984, a Counsel in Chambers. Mr. Seyi Sowemimo, was instructed by the Head of Chambers, Chief Sobo Sowemimo, S.A.N. to fly to Enugu on the 18th of January, 1984 in order to argue this appeal.
4. That I am informed by Mr. Seyi Sowemimo and I verily believe the same to he true that all flights to Enugu scheduled for the 18th of January 1984 were cancelled for reasons of bad weather.
5. That I am also informed by by Mr. Seyi Sowemimo and I verily believe the same to he true that it was not until about 7 p.m. on the evening of the 18th of January, 1984 after he had been issued with a boarding pass, that the cancellation was announced and by that time it was too late to attempt to go by road.
6. That I am further informed by Mr. Seyi Sowemimo that immediately he arrived in the office the next morning he tried to contact one of the Registrars at the Federal Court of Appeal, that is Miss Rita Emuriam on telephone number 042-255054..Extension 6 to inform her of his inability to be in Court but could not get through by telephone.
7. That a telegram was then immediately dispatched to the Court to explain the reason for Counsel’s non-attendance. A copy of the telegram is herewith attached and marked Exhibit “A”.
8. That the Appellants visited our Chambers on the 23rd of January, 1984 to inform their Counsel that the Appeal had been struck out for non-appearance of Counsel.
9. That I am informed by Mr. Seyi Sowemimo and I verily believe the same to be true that counsel for the Appellants had in the past attended court regularly both at Enugu and Calabar in order to prosecute this appeal but for one reason or the other, it had not been possible to argue the appeal.
10. That the Appellants are still very anxious to prosecute their appeal. A copy of the notice of appeal is herewith attached and marked Exhibit ‘B’.

A copy of the telegram sent by Counsel after he was unable to appear in court was also appended to the affidavit.

“Telegram: To THE REGISTRAR

FEDERAL COURT OF APPEAL ENUGU

WE ARE COUNSEL FOR THE APPELLANT IN SUIT NO. FCA/E/127/78 SCHEDULED FOR 19TH INSTANT. WE COULD NOT ATTEND COURT DUE TO FLIGHT CANCELLATIONS. PLEASE FURNISH US WITH NEW HEARING DATE.

FANI-KAYODE & SOWEMIMO.”The application to relist the appeal was dismissed with N25 costs to the Respondents on the 24th March. 1984. Appellant has now appealed to this court against the dismissal of the Appeal on the 19th January, 1984.

I have already stated that the only point before this court is whether the decision to dismiss rather than to adjourn or strike out the appeal was a proper exercise of their judicial discretion on the facts before them. If it is, this Court cannot interfere. If however it is not, we can set aside the decision resulting from an improper exercise of discretion.

Appellants have filed two grounds of appeal which are as follows:

Grounds of Appeal

“(1) The Federal Court of Appeal misdirected itself in law in refusing to grant the application for adjournment by exercising its discretion injudiciously and on wrong considerations.

Particulars of Misdirection

(a) Inability of the Appellants to prosecute the appeal on the appointed date was due to the default of Counsel for being absent in Court due to the cancellation of the Nigerian Airways flight from Lagos to Enugu on the day before the Appeal i.e and not that of the Appellants.

(b) The Appellants told the Court that he was not a lawyer and in the absence of his Lawyer he was seeking an adjournment as he could not argue the Appeal.

(c) The Grounds of Appeal were formulated and filed by Counsel and only a legal Practitioner can competently argue the Grounds of Appeal.

(d) On the last two occasion (prior to the appeal being struck out), when the appeal came up at the Federal Court of Appeal, Appellants together with their Counsel were always present in Court for example.

(i) on the 20/4/83 appeal came up in Court, but had to he adjourned as Respondent was absent and there was no proof of service; appeal adjourned to 30/6/83.

(ii) on the 30/6/83 appeal had to he adjourned as the Court of Appeal had a crowded schedule; appeal adjourned to 19/1/84

(c) A telegram was sent by Counsel on the morning of the appeal the 19th of January, 1984 to the Court of Appeal in Enugu stating that Counsel would be unavoidably absent due to cancellation of the Nigerian Airways flight from Lagos to Enugu the previous day.

(f) Appellants had previously filed on the 18th of February. 1981 an application for accelerated hearing of the appeal indicating their anxiety in hearing the matter disposed of an appeal as quickly as possible.

The Federal Court of Appeal erred in law in failing to exercise its discretion in granting an adjournment in favour of the Appellants to ensure that they enjoyed their constitutional rights under the 1979 Constitution.

Particulars of Error’

(a) The Federal Court of Appeal refused to grant the Appellants Application for an adjournment so as to enable their Counsel to argue the appeal as competently and in as professional a manner as Counsel for the Respondent thus effectively depriving the Appellants a fair hearing contrary to Section 33 of the Constitution.”

The questions for determination formulated by Counsel to the appellants and which the Counsel to the Respondents accepted are as follows:

Questions for Determination

From the Grounds of Appeal filed two main questions arise for determination in this appeal. namely:

“(i) Did the Court of Appeal exercise its discretion judiciously in dismissing the appeal on the 19th of January, 1984 given the circumstances surrounding this appeal

(ii) Was the judgment of the Court of Appeal in consonance with the provisions of Section 33 of the Constitution of the Federal Republic of Nigeria 1979, granting to every citizen a right to fair hearing”

The provisions of Order 3, rule 25(1)(a) of the Court of Appeal Rules 1981 are as follows:

“25(1) If the appellant fails to appear when his appeal is called on for hearing and has not taken action under Rule 24 of this Order, the appeal may he struck out or dismissed with or without costs. ”

(2) When the appeal has been struck out owing to the non- appearance of the appellant, the Court may. if it thinks fit, and on such terms as to costs or otherwise as it may seem just, direct the appeal to be entered for rehearing.”

It seems to me clear that this provision can only be invoked where Appellant is absent and has not filed and served a declaration as required under Rule 24 that he did not wish to be present in person or by a legal representative on the hearing of the appeal. It can in any event not be invoked when appellant is present when his appeal is called. Appellant in litigation is present personally or through Counsel. Rule 25(1) cannot be invoked to strike out or dismiss an appeal when appellant is present when his appeal is called. The in ability to argue the appeal is not a condition for dismissing or striking out the appeal of appellant who is present when his appeal is called. The Court of Appeal cannot therefore be regarded as having exercised their discretion by virtue of Order 25 r.1.

The question whether the exercise of the discretion of the Court below can be disturbed in appropriate circumstances, has for a long time been free from doubt and controversy. This can be done provided the exercise of the discretion of the Court below was in the circumstances improper and has resulted in a miscarriage of justice in the proceedings. The question whether the Court below exercised its discretion judiciously is the subject matter of the 1st ground of appeal.

Both learned Counsel to the Appellants and Counsel to the Respondents relied on their briefs of argument.

Counsel to the Appellants submitted that the dismissal of the appeal of the Appellants on the facts before the Court of Appeal was not a proper exercise of discretion. It was submitted that the court acted on wrong consideration. Counsel referring to the provisions of Order 1 r.10 of the Court of Appeal Rules 1981, submitted that the court can, in the exercise of its discretion, either on the application of a party or suo motu adjourn any pending, proceedings before it to another place or time. It was argued that the facts of this case called for the exercise of such a discretion. The following cases were cited and relied upon ” Odusote v. Odusote (1971) 1 All NLR.219, 223, Ilona v. Dei (1971) 1 All NLR. 8,13, Anisuru v. Emodi (1975) 2 S.C.9; Maxwell v. Keun & Ors. (1928) 1 K.B. 645; Priddle v. Fisher (1968) 3 All ER, 5106.

Counsel to the Respondents conceded the suggestion that on the facts of this appeal, dismissal of the appeal demonstrated that the Court did not exercise its discretion consistent with the justice of enabling the appeal to he heard on its merits.

It is trite knowledge that Order 1 r. 10 of the Court of Appeal Rules 1981 vested in the Court ample powers for exercising its discretion to adjourn an appeal before it where the circumstances of the case warranted such an exercise of discretion. Order 1 r. 10 provides:

“(10) The Court may at any time on application or of its own motion adjourn any proceedings pending before it from time to time and from place to place.”

This rule enables the exercise of the discretion to adjourn the matter either on the application of a party to the action or suo motu, if the circumstances so dictate. Accordingly where the Court has failed to exercise its discretion conformably this Court is entitled to interfere. The application of Order 1 r. 10 was decided in University of Lagos & Anor. v. Aigoro (1985) 1 S.C.265, where Bello, J.S.C. said.

“Now. Order 1 rule 10 of the Court of Appeal Rules, 1981 confers on that Court unfettered discretion at any time on application or of its own motion to adjourn any proceedings pending before it from time to time. The question therefore whether or not to grant an adjournment is a matter within the discretion of that Court. It is well settled that if judicial discretion has been exercised bona fide uninfluenced by irrelevant considerations and not arbitrarily or illegally by the lower Court the general rule is that an appeal Court will not ordinarily interfere. But there are exceptions to this rule. It is in this area that one cannot lay down a hard and fast rule as to the exercise of judicial discretion, for a moment one does that “the discretion of the Judge is fettered”:- see Jones v. Curling 13 Q.B.D. 262. The guiding principle in this respect is that the discretion, being judicial, must at all times be exercised not only judicially but also judiciously on sufficient materials: Saffreddime v. C.P. (1964) All N.L.R 14 at . Ugbama v. Olise (1971) 1 All N.L.R. 8. It is upon this principle that the numerous cases showing when an appeal Court is entitled to impeach the exercise of judicial discretion have been founded.

Thus an appeal Court may interfere with the exercise of judicial discretion if it is shown that there has been a wrongful exercise of the discretion such as where the tribunal acted under mis-conception of law or under misapprehension of fact in that it either gave weight to irrelevant or unproved matters or it omitted to take into account matters that are relevant or where it exercised or failed to exercise the discretion on wrong or inadequate materials and in all other cases where it is in the interest of justice to interfere: see Fnekebe v. Fnekebe (1964) 1 All N.L.R. 102 at 106, Saffieddine v. C. P. (supra), Demuren v. Asuni (1967) 1 All N.L.R.94 at 101, Mobil Oil v. Federal Board of Inland Revenue (1977) 3 S.C. 97 at 141. Sonekan v. Smith (1967) 1 All N.L. R. 329 and Solanke v. Ajibola (1968) 1 All NLR.46 at 52. The Court must balance its discretionary power to grant or refuse an adjournment with its duty to endeavour to give an appellant the opportunity of obtaining substantial justice in the shape of his appeal being granted a fair hearing on its merits provided always that no injustice is thereby caused to the other party and where the court erred in its balancing exercise an appeal Court is at liberty to interfere: Demuren v. Asuni (supra).”

The question of the exercise of discretion whether an adjournment will be granted or not was discussed in Odusote v. Odusote (supra). It was there stated to be a well settled principle that all judicial discretions must be exercised according to common sense and justice. If any miscarriage of justice results from the exercise of the discretion, the appellate Court is entitled to interfere. In Odusote v. Odusote (supra) at p. 228 the Court stated as follows:-

“We are satisfied that in the circumstances of the present case the Court of Appeal was in error in refusing the application for adjournment and dismissing the appeal, especially as the appellant was herself not present in Court and there was no evidence that she knew the appeal was fixed for hearing that day. It cannot be denied that the dismissal of the appeal in the circumstances has occasioned a miscarriage of justice: and it will he wrong for us to hold that the Court was justified in dismissing the appeal or that it was exercising its discretion properly and judicially in so acting.”

There is no doubt that a careful reading of ‘Order 1 r. 10 demonstrates that the question of adjournment is in the discretion of the Court and depends upon the circumstances of the case. It is true that in matters of this nature it is difficult for one situation to be cited as authority for another and governing the exercise of discretion in all similar cases. The golden thread which runs through and controls the valid exercise of discretion is the avoidance of injustice by the exercise of discretion. I think in the exercise of the discretion to dismiss or strike out an appeal under Order 3 r.25(1), or to grant an adjournment in the circumstances under order 1 r. 10 regard ought to be had to the (a) nature of the subject matter of the appeal (b) the issues involved in the case (c) the conduct of the party in whose favour the discretion is to be exercised. (d) the consequences of the refusal of the exercise of discretion to grant an adjournment.

It is both a fundamental and an elementary principle of the administration of justice that whenever it is possible to determine a case on its merits the Court should not succumb to the temptation of hastily determining it in limine without hearing the complainant because of the delay which may arise from the temporary inability of the complaint to prosecute his case. There is a real need for the Court to appreciate the interest of the proper administration of justice which demands that a complainant should be given reasonable opportunity of presenting his case. for its determination on the merit.

The facts of this appeal do not disclose that Appellants have been tardy in the prosecution of their appeal; rather it shows how diligent they have been. They have been represented by Counsel, and in the rare occasions when Counsel was not present one of the Appellants was always present in Court. Indeed on the 19th January, 1984 when the appeal was dismissed, Appellant was present in Court. The record of proceedings discloses that there was no consistent history of absenteeism on the part of Counselor the Appellants. When Counsel was found to be absent, the proper course for the Court to do was to advise Appellants to brief another Counsel who must be present on the next adjournment date and to adjourn the appeal to such date. There was nothing to show that Appellants have been previously warned to engage the services of another Counsel. It is clear that Appellants were not disobeying directives of the Court and were not pusillanimous in prosecuting their appeal. The Court should, in the circumstance when appellant unequivocally stated his inability to argue the appeal. have suo motu exercised its discretion under Order 1 r.10 and adjourned the appeal. Such expedient should have served the interest of justice. Its anger should be visited on Appellants only in respect of the award of costs. Although distinguishable from Odusote v. Odusote (supra) on the facts, appellants not being present, the principle which protects the doing of justice by the exercise of discretion is the same. In Anisubu v Emodi (supra), where the facts are identical to those of the appeal before us, Elias C.J.N. said,

“The learned trial Judge should not have taken it out on the Plaintiff who had almost always been present on previous occasions as indeed she was on the fateful occasion. It seems to us that, as the Judge had occasion to see the pleadings filed by both parties he should not have allowed default of counsel to make him dismiss the Plaintiffs claim when it must be obvious that to do so would defeat her claim altogether and thereby result in injustice to her. It would seem that the learned trial Judge was more angered by the dereliction of duty on the part of Counsel than by anything for which the Plaintiff could be blamed; indeed, his ruling shows clearly no default on the part of the Plaintiff/Appellant. The learned trial Judge obviously did not take into consideration all the circumstances of the case before him before dismissing the Plaintiffs action.”

Similarly, in this appeal, the Court below could not be complaining about the absence of Appellants who were present in court, but complained only about the absence of their Counsel. The Court of Appeal could not seriously be complaining about the inability of Appellants, who have briefed Counsel, to argue their case themselves without counsel. It did not consider who among appellants was to undertake the argument of the appeal. At least the Court would have given them opportunity to agree on the modalities of doing so. Finally on this ground, an appeal can neither be dismissed nor struck out for failure of Counsel to appear. Absence of Counsel is not the same thing as absence of the Appellant. The right to be present is that of Appellant and not of Counsel. The absence of Counsel should not therefore affect the exercise of the right. Order 3, r.25(1) speaks of absence of Appellant. The Appellant was present at all times. There is no doubt that by dismissing the appeal of appellant instead of granting them an adjournment, the Court of Appeal defeated the right of Appellants to have their appeal determined on its merit. This failure to exercise the discretion to adjourn the appeal which has resulted in injustice is a proper subject matter for intervention by this Court. The Court of Appeal has failed in the exercise of its discretion for its inability to balance its discretion and grant an adjournment with its endeavour to give the appellant an opportunity of a hearing on the merits. This appeal can be allowed on this ground alone. I consider it desirable and not necessarily superflous to express my views on the second ground of appeal. The second ground of appeal is founded on the contention that the failure to exercise the discretion of the Court to grant an adjournment in favour of the Appellants and consequently dismissing their appeal without a hearing on the merits because appellants could not argue their appeal without counsel is a denial of the right to fair hearing entrenched in the Constitution 1979. Section 33(1) of the Constitution 1979 provides;

“In the determination of his civil rights and obligations a person shall be entitled to a fair hearing within a reasonable time by a Court or other tribunal established by law and constituted in such manner to secure its independence and impartiality.”

We are concerned here only with the meaning of fair hearing. The question of the constitution of the Court in number and qualification is not in issue. It is a competent Court. The question is whether a hearing which denied a litigant his right to present his case through his counsel is a fair hearing. In Ariori & Ors. v. Elemo & Ors. (1983) 1 S.C.13 at pages 23-24, Obaseki, J.S.C. after referring to the words “hearing” as defined in the Pocket Law Lexicon 8th Ed. by A.W. Motion, as the trial of a suit, defined “a fair hearing” in these words,

“fair hearing, therefore, must mean a trial conducted according to all the legal rules formulated to ensure that justice is done to the parties.”

I think Order 1 r.10 and Order 3 r.25(1)(a) are rules of the Court of Appeal formulated to ensure the doing of justice in that Court. A fair trial therefore must ensure their observance. It is hardly contestable that the exercise of the discretion of the Court to grant an adjournment on the application of a party or suo motu in Order 1 r.10, or discretion to strike out or dismiss an appeal under Order 3 r.25(1) enable it to afford the litigant in whose favour the adjournment is granted, the opportunity to adequately prepare for the hearing of the case. Thus for the exercise of a discretion to be fair it must not impede the chances of the litigant to prepare for the hearing of the case. I think it is accurate to postulate that every exercise of a discretion by the Court which results in injustice to a party in the litigation cannot be valid. Where therefore the exercise of discretion adversely affects the hearing, such hearing cannot be fair. By the nature of the appeal the services of counsel is indispensable to the Appellants. This is because the arguments in the appeal must necessarily be on grounds of law. This is what appellants who are laymen cannot undertake with commensurate skill. The request by the Court for appellant to argue the appeal without Counsel is an invitation to submit to judgment without a proper contest. What does Appellant do when confronted with points of law which inevitably must arise from the argument The Court has placed him in the situation in which John Lilburne, the contentious Puritan dissenter found himself in 1649 during his trial for treason. Lilburne asked that counsel be assigned to him to consult, so that he may not throwaway his life ignorantly upon forms. When this request was refused he pleaded;

“And now, Sir, I again desire counsel to be assigned to me, to consult with in point of law, that so.I may not destroy myself through my ignorance” – see Lilburne (Treason Trial 1649) 4 Howell’s State Trials. 1294.

This was the position in which Appellants found themselves in the hands of the Court. The Court was inviting Appellants to destroy their appeal, by the display of ignorance in arguing the appeal. The right to present one’s case at a hearing involves the right to brief Counsel to do so. An exercise of a discretion which deprives a litigant of an effective exercise of the right to present his case resulting in the dismissal of his appeal, as was in this case. is without doubt not a valid exercise of discretion. The hearing which resulted in the dismissal of the appeal was therefore not a fair hearing within Section 33(1) of the Constitution 1979. This ground of Appeal also succeeds.

It seems to me that the Court of Appeal demonstrated a peculiar hostility to the Appellants and an unusual intolerance unjustified by the facts of the case or the experience of the Court. The Court of Appeal was wrong to have dismissed the appeal of the Appellants in the circumstance.

These are my reasons for allowing the appeal of the Appellants, N300 as costs to the Appellants.

KAWU, J.S.C.: When this appeal came before us on 11th October, 1986, I allowed the appeal, set aside the decision of the Court of Appeal, Enugu Division, and remitted the appeal to that Court for hearing on the merit, then reserved my reasons for doing so.

I have had the advantage of reading in draft the reasons for judgment just read by my brother, Kazeem, J.S.C. I respectfully adopt them as mine.

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SC.141/1985