Salu V. Egeibon (1994)

LawGlobal-Hub Lead Judgment Report

ADIO, J.S.C

In the High Court of Justice of Ogun State of Nigeria, Sagamu Judicial Division, the appellant instituted an action against the respondent for the following reliefs:-

“1. A declaration that the plaintiff is entitled to statutory right of occupancy in respect of a piece or parcel of land at 22, Sode Street, Sagamu.

2. Perpetual injunction restraining the defendant her agents and servants from committing further acts of trespass on the said property.
3. N5,000.00 (Five thousand Naira) damages for trespass committed by the defendant on the plaintiff’s said land.”

Pleadings were duly filed and exchanged. The averments in the pleadings filed by the parties showed that the parties were adjacent neighbors, who acquired their respective pieces of land at different times from the same vendor. Each party surveyed his/her own parcel of land and had a survey plan. The dispute related to the extent or size of the parcel of land acquired by each party. The allegation of the appellant was that the respondent trespassed on his land by building a wall fence which encroached on his own land.

The hearing of the case commenced on the 21st of February, 1984, when the appellant and one of his witnesses testified. After the evidence of the 1st witness for the appellant on that day, the learned counsel for the appellant asked for an adjournment, so as to enable him call appellant’s surveyor and the appellant’s vendor after which he would close his (appellant’s) case. The learned trial Judge granted the application and adjourned further hearing of the case to the 16th day of April, 1984. When the case came up for further hearing before the learned trial Judge on the 16th day of April, 1984, the learned counsel for the appellant abandoned his intention to call appellant’s surveyor and the appellant’s vendor of the land in dispute and, contrary to expectation, closed the appellant’s case.

The learned counsel for the respondent was then requested by the learned trial Judge to open the case for the respondent. The learned counsel for the respondent informed the court that the respondent and his witnesses were not in the court and asked for an adjournment to enable him open the case of the respondent.

The learned counsel for the appellant did not oppose the application for an adjournment. The learned trial Judge refused the application and closed the case of the appellant and the case of the respondent. His reason was, inter alia, that the impression or undertaking given on the 21st February, 1984, by the learned counsel for both parties was that each party would prosecute his/her case to completion on the 16th day of April, 1984. So far, the appellant had not led evidence on the dimensions of the parcel of land which he bought from his vendor who was also the vendor of the land bought by the respondent.

The learned trial Judge thought that there were certain admissions made by the respondent in her pleading and that in any case, there was evidence before him which made the proof of the extent of the appellant’s land unnecessary. He, therefore, granted the first and the second reliefs claimed by the appellant and also awarded N2,000.00 damages to the appellant.

Dissatisfied with the judgment of the learned trial Judge, the respondent appealed against it to the Court of Appeal which allowed the appeal and set aside the judgment of the learned trial Judge. The court below remitted the case to the High Court for a re-hearing de novo before another court of equal jurisdiction in Ogun State. Costs of N200.00 were awarded in favour of the respondent. Dissatisfied with the judgment, the appellant has appealed to this court. In accordance with the rules of this court, the parties duly filed and exchanged briefs. The appellant formulated three issues for determination while the respondent formulated four issues for determination. The four issues formulated by the respondent adequately covered the second and the third issues formulated by the appellant. In my view, the first issue formulated by the appellant and the four issues formulated by the respondent, which were based on the grounds of appeal, are sufficient for the determination of this appeal.

These are as follows:-

(1) Whether the Court of Appeal had jurisdiction to hear, consider and make pronouncements on the learned Judge’s ruling which refused the respondent’s application for adjournment in one of the proceedings that led to the final judgment of 17/7/84, there being no competent appeal against the ruling.

(2) Whether the defendant was given a fair trial.

(3) Whether the Court of Appeal was right in holding that the High Court did not exercise its discretion judiciall by refusing to grant the defendant an adjournment and forcibly closing her case without giving her an opportunity of proving her case.

(4) Whether such failure by the learned trial Judge has occasioned a miscarriage of justice.

(5) Whether on the printed evidence and particularly the findings of Uche Omo, J.C.A., as he then was, at page 163, the proper order should not have been a dismissal of the plaintiff’s claim.”

The contention of the appellant in relation to the question raised under the first issue above was that the respondent could no longer raise the issue of her not being granted an adjournment by the learned trial Judge because the ruling of the learned trial Judge being on an interlocutory matter the respondent had failed to appeal against the ruling within the time stipulated by law. For that reason, it was further contended that the Court of Appeal had no jurisdiction to entertain an appeal in respect of this aspect of the matter.

In the case of the respondent, reference was made to the provisions of section 33(1) of the Constitution of the Federal Republic of Nigeria, 1979 which guarantee a fair hearing and it was argued that the circumstances were such that the refusal by the learned trial Judge to grant the adjournment requested for by the respondent’s counsel was a breach of the fundamental right guaranteed by section 33(1) of the Constitution and that the issue could be raised notwithstanding the fact that the respondent did not appeal against the ruling of the learned trial Judge within the time prescribed by law for appealing against an interlocutory decision. It was the argument for the respondent that the decision denying her a right to a fair hearing in the case was a final decision which denial could be raised in the appeal against the judgment of the learned trial Judge.

I have already stated the circumstances in which the application for an adjournment by the learned counsel for the respondent was refused and the respondent’s case closed. It was the appellant’s counsel who, on the 21st February, 1984 applied for an adjournment to enable him to call the surveyor, who helped the appellant to draw the survey plan of the land in dispute, and the appellant’s vendor. The application was granted by the learned trial Judge and further hearing was adjourned to 16th April, 1984, to enable the appellant to do so. When he matter came up for further hearing on the 16th April, 1984, the appellant abandoned his intention to call his surveyor and his vendor and, contrary to the expectation of the learned trial Judge and the respondent, the appellant’s counsel closed his case. When the learned counsel for the respondent saw the sudden or surprising development, he applied for an adjournment because the respondent and his witnesses were not in the court. The learned trial Judge called on respondent’s counsel to open the respondent’s case and when he was, for obvious reason, unable to do so, the learned trial Judge closed the respondent’s case. In effect, the respondent was not allowed to put forward her defence, if any to the appellant’s claim despite the fact that the appellant’s counsel indicated that he did not oppose the application for an adjournment. In any case, after closing the respondent’s case further hearing was adjourned to a future date. As, rightly argued for the respondent, what was involved was much more than a mere refusal of an application for an adjournment. It involved the respondent not being given any chance to present her defence which resulted in her being completely denied the opportunity of a fair hearing under section 33(1) of the Constitution of the Federal Republic of Nigeria, 1979, which provides as follows:-

“33(1) In the determination of his civil rights and obligations including any question or determination by or against any government or authority a person shall be entitled to a fair hearing within a reasonable time by a court or tribunal established in such a manner as to secure its independence and impartiality.”

The expression: “fair hearing” means trial of a case or conduct of proceedings according to all relevant rules for ensuring justice. See Ariori v. Elemo (1983) 1 SCNLR. 1 at pp. 24. The question here is whether there was anything which made the refusal of an application for an adjournment by the learned counsel for the respondent appear or look like a denial of fair hearing. The answer is certainly in the affirmative having regard to the fact that the appellant had himself been granted an adjournment on the 21st February, 1984, to enable the appellant to call his surveyor and his vendor as witness; the sudden closing of the appellant’s case which was contrary to expectation; the readiness or willingness of the learned counsel for the appellant not to oppose the application for adjournment; the adjournment of the further hearing of the case to a future date immediately after the refusal of the application for adjournment; and the result of the refusal of the application for adjournment being that the respondent had no opportunity of presenting her defence, if any, to the appellant’s claim.

If what really happened was far more than a mere refusal of an application for an adjournment in the sense that it resulted in a denial of the fundamental right of fair hearing guaranteed by section 33(1) of the Constitution, then the respondent could competently raise it in the Court of Appeal. This is because a breach or an infringement of a fundamental right guaranteed by the provisions of the Constitution of the Federal Republic of Nigeria, 1979 can be raised or canvassed at any stage of the proceedings or on appeal. See Sofekun v. Akinyemi & ors. (1980) 5- 7 SC. 1. (1981) 2 NCLR 135. The answer to the question raised under the first issue above is in the affirmative.

The question raised under the second issue was whether the respondent was given a fair trial. Some of the views expressed by me in relation to the question raised under the first issue are also relevant here. Before setting out what those views were and saying something more on this aspect of the matter, it is necessary to state what the court below said on the point. The court below stated, inter alia, as follows:-

“The court must balance its discretionary power to grant or refuse an adjournment with its duty to endeavour to give a party to the case the opportunity of obtaining substantial justice by his being granted a fair hearing on its merits, provided always that no injustice is thereby caused to the other party. In this case as the other party did not object to the adjournment sought and has not complained of any injustice, none can be said to have been caused to him. Where the court below erred in its balancing exercise, an appeal court is at liberty to intervene. See the case of Demuren v. Asuni (1967) 1 All NLR.94.”

The argument in the appellant’s brief was that order 26 rule 10(1) of the High Court (Civil Procedure) Rules, 1977 of Ogun State conferred wide powers on the High Court in relation to an adjournment of a case. It was submitted that if a judicial discretion had been exercised bonafide uninfluenced by irrelevant consideration and not arbitrarily or illegally exercised by the lower court, an appellate court will not ordinarily interfere even if it holds a different view from that of the trial court and Awoyale v. Ogunbiyi (No.1), (1985) 2 NWLR (Pt.10) 861 was cited. It was pointed out that the learned trial Judge made a note that it was with the concurrence of the learned counsel for both parties that the further hearing of the case was adjourned to 16th April, 1984 and the attention of this court was drawn to the fact that the respondent was absent in the court on that day despite the fact that further hearing of the case was in her presence adjourned to 16th April, 1984.

It was submitted by the learned counsel for the appellant that the fact that the learned counsel for appellant did not oppose the application did not matter. The learned trial Judge did not in advance tie his hands and he was right when he called upon the learned counsel for the respondent to proceed with the defence of the respondent. It was argued for the respondent that if the learned trial Judge granted indulgence to the appellant by adjourning further hearing of the case to 16th April, 1984, to enable the appellant to call his surveyor and his vendor, similar indulgence should have been granted to the respondent when the learned counsel for the respondent asked for an adjournment on the 16th April, 1984, to enable the respondent present her defence, in the interest of justice, especially as the learned counsel for the appellant did not oppose the application and no injustice would have been caused to the appellant.

It was also pointed out that after refusing the application for an adjournment made by the learned counsel for the respondent, the learned trial Judge immediately thereafter “for other reasons of doing justice between the parties in this case” adjourned further hearing to 16th May, 1984, for the address of both counsel.

A court is not bound to grant an adjournment as the question whether to grant an adjournment is a matter of discretion and it depends on the facts and circumstances of each particular case. See Odusote v. Odusote (1971) 1 NMLR 228; (1971) 1 All NLR 219 and Nigeria Ports Authority v. Construzioni G. F Cogefar SPA., (1974) 12 SC 81 at pp. 91. For that reason, where a trial Judge has exercised ’97 a discretion over a matter, an appellate court should not interfere on the ground that it might have exercised the discretion differently if it were in a position to do so. However, an appellate court is 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 Ceekay Traders Ltd., v. General Motors Ltd., (1992) 2 NWLR (Pt. 222) 132. The terms “fair trial” and “fair hearing” mean the same thing. See Abdullahi 42 Nigerian Weekly Law Reports 8 August 1994 (Adio, J.S.C.) Baba v. NCATC & anor. (1991) 5 NWLR (Pt. 192) 388. I have already, in this judgment, come to the conclusion that the refusal of the application of the learned counsel for the respondent for an adjournment resulted in the respondent being denied a fair hearing guaranteed by section 33(1) of the Constitution. For that reason, it can reasonably be said that the respondent was not given a fair trial. Where an application for an adjournment is made to a court, the court should bear in mind the requirement that justice should be done to both parties and that it is also in the interest of justice that the hearing of a case should not be unduly delayed. It should grant it if a refusal of the application is most likely to defeat the rights of the parties altogether or be an injustice to one or the other of them, unless there is a good or sufficient cause for such refusal, otherwise an appellate court will not only have power but will be under a duty to review the ruling refusing the application. In the present case, it did not appear that, in the circumstances, there was good or sufficient cause for the refusal of the application. The fact that 16th April, 1984, was fixed for further hearing of the case with the concurrence of both parties, could not, in the circumstances of this case, be regarded as a good cause. A case may, with the concurrence of both parties be fixed for further hearing on a particular date. That could not reasonably mean that further hearing must, at all costs and under any circumstances, go on. The parties or the court may have genuine and sufficient reasons for seeking for an adjournment or adjourning the further hearing of the case, as the case may be. To contend that the further hearing must go on in such circumstance is to put shackles on the undoubted discretion which the court has in future in the matter. See Tondo v. Ifedioranma, (unreported) CA/J/47/84 delivered on 20th March, 1987. The answer to the question raised under the second issue is in the affirmative.

The question raised under the third issue is whether the Court of Appeal was right in holding that the High Court did not exercise its discretion judicially by refusing to grant the defendant an adjournment and forcibly closing her case without giving her an opportunity of proving her case. After reviewing and evaluating the evidence and the legal authorities on the various issues involved in this appeal, the court below came to the conclusion that the learned trial Judge did not exercise his discretion judicially and judiciously. The court below stated, inter alia, as follows:-

“In view of the refusal of the learned trial Judge to exercise his discretion of granting the adjournment and his arbitrary closure of the defendant’s case, which is tantamount to deprivation of the right of the appellant to obtain substantial justice, I have come to the conclusion that the discretion has not been exercised judicially and judiciously. For the above reasons, I will allow the appeal.”

The submission in the appellant’s brief was that by virtue of Order 28 rule 11(3) of the High Court (Civil Procedure) Rules, formerly Order 26 rule 6(3) of the High Court (Civil Procedure) Rules of Ogun State the trial Judge’s exercise of his discretion in this matter was judicial, judicious and constitutional. The contention of the respondents was that the discretion of a Judge to grant or refuse an application for an adjournment must be exercised judicially and judiciously and that one more adjournment granted by the learned trial Judge could not have, in the circumstances of this case, caused any harm especially as the application was not opposed by the learned counsel for the appellant. The grant or refusal of an application for an adjournment involves an exercise of judicial discretion and being a judicial discretion it should not be exercised arbitrarily, and should be seem to have been exercised judicially and judiciously. See Udo v. The State (1988) 3 NWLR (Pt. 82) 316; and Tasaku v. The State, (1986) 1 NWLR (Pt.17) 516, discretion which was said to have been exercised in refusing the application for an adjournment resulting in denial of fair hearing and/or fair trial to the respondent could not reasonably be said to have been exercised judicially or judiciously. The answer to the question raised under the third issue is in the affirmative.

The question raised under the fourth issue above was whether the failure of the learned trial Judge to grant the respondent an adjournment had occasioned a miscarriage of justice. As rightly stated by the court below, the learned trial Judge, by refusing to grant an adjournment and peremptorily decreeing that the case be deemed closed had effectively shut out the respondent altogether from presenting her case for the consideration of the court. The result was that for the purpose of determining the case, the only evidence before the learned trial Judge was the evidence led by the appellant. The appellant eventually won and the learned trial Judge entered judgment for him.

The averments in the pleading filed by the respondent must have established a prima facie defence to the appellant’s claim otherwise instead of engaging in the arduous task of leading evidence to support the averments in the statement of claim, the appellant would have urged the court to enter judgment for him on the pleadings as the respondent’s pleading did not disclose any defence to his (appellant’s) claim. Whether the respondent could have been able to lead evidence in support of the averments in her pleadings and thus successfully resist the appellant’s claim, the court could not say since the court itself made it impossible for the respondent to present her defence, if any, and for what it was worth.

I, therefore, have no difficulty in coming to the conclusion that the refusal of the application of the learned counsel for the respondent for an adjournment occasioned a miscarriage of justice. It is within the competence of an appellate court to review the exercise of discretion by a lower court where such exercise is deemed not to be according to common sense and according to justice or if there is any miscarriage of justice in the exercise of such discretion. See Odusote’s case (supra).

The question raised under the fifth issue was whether on the printed evidence and particularly the findings of Uche Omo, J.C.A., as he then was, at page 163 (of the record) the proper order should not have been dismissal of the appellant’s claim. The court below, after allowing the appeal, made an order remitting the case for re-hearing de novo before another court of equal jurisdiction in Ogun state. The argument in the appellant’s brief was that the main ground for allowing the appeal was the refusal of the respondent’s application for adjournment. The contention of the learned counsel for the appellant was that there was no competent appeal against the ruling of the learned trial Judge on the point.

For that reason, the Court of Appeal had no jurisdiction to entertain the appeal. Alternatively, it was argued that the respondent’s pleading showed that the respondent admitted some averments, particularly the boundaries of the land in dispute, in the appellant’s pleading which could warrant judgment being given for the appellant. Finally, the appellant tendered the survey plan showing the land in dispute. The respondent’s contention was that it was the appellant that was claiming a statutory right of occupancy to the land in dispute. If he failed to prove the boundaries of the land in dispute, the proper order to make was to dismiss his claim.

My view was that the appeal before the Court of Appeal was competent and the Court of Appeal had jurisdiction to hear and determine it. On the question of certain averments in the appellants pleading being admitted by the pleading of the respondent, it is sufficient to say that a declaration of title to a parcel of land cannot be granted solely on the basis of admissions in pleadings. See Bello v. Eweka, (1981) 1 S.C 101 at pp. 102; and Motunwase v. Sorungbe (1988) 5 NWLR (Pt. 92) 190. As for the survey plan tendered by the appellant, the short answer to it is that the appellant was not the maker of the document and could not give oral evidence about its contents. As rightly pointed out by the learned trial Judge himself, none of the parties (appellant and respondent) led any oral evidence in relation to the boundaries of the land in dispute. The appellant who, on the 21st February, 1984, sought and obtained an adjournment to the 16th April, 1984, to enable him call his surveyor and his vendor did not call any of them on that day. Instead of doing so, he closed his case. The situation, in the case of the/respondent, was that he was not given an opportunity to put forward any defence to the appellant’s claim. The following was the observation ofthe learned trial Judge on the point. He said, inter alia as follows:-

“Curiously however, neither plaintiff who offered evidence nor defendant who opposed him tendered any viva voce evidence to specifically show the exact delineation of the boundaries of the land which each of them bought from such their common vendor.”

Ordinarily if a plaintiff claiming that he is entitled to statutory right of occupancy in relation to parcel of land fails to establish by evidence the boundaries of the land, the proper order to make is one dismissing his claim. See Imah v. Okogbe, (1993) 9 NWLR (Pt.316) 159. To some extent, there was, therefore, substance in the submission of the learned counsel for the respondent. However, it should be remembered that it has earlier been found in this judgment that the appellant was denied a fair hearing a fundamental right guaranteed by section 33(1) of the 1979 Constitution. It also has to be remembered that the denial of a fair hearing was a breach of one of the rule of natural justice, that is, the requirement that a party must be given a fair hearing. The consequence of a breach of the rule of natural justice of fair hearing is that the proceedings in the case are null and void. See Adigun v. A.-T., of Oyo State (1987) 1 NWLR. (Pt.53) 678.

If a principle of natural justice is violated, it does not matter whether if the proper thing had been done the decision would have been the same; the proceedings will still be null and void. In other words, if the principles of natural justice are violated in respects of any decision, it is immaterial whether the same decision would have been arrived at in the absence of the departure from the essential principles of justice. The decision must be declared to be no decision. See Adigun’s case, (supra). In effect, the proceedings in this case before the learned trial Judge and his judgment thereon are null and void. In the circumstance, the proper order to make is one affirming the order of the court below for a retrial of this case before another Judge of the High Court of Ogun State.

The appeal fails and it is hereby dismissed. The judgment of the Court of Appeal and its order remitting the case for re-hearing de novo before another court of equal jurisdiction in Ogun State together within the order for costs are hereby affirmed. The respondent is hereby awarded N1,000.00 costs to be paid by the appellant,

BELGORE, J.S.C.: I agree with the judgment of my learned brother Adio, J.S.C. and I also dismiss this appeal. As the granting of an argument is dictated by circumstance of each case, an adjournment should not be refused if it is the only just way of having a matter decided on its merit. A case terminated before its merit is fully known may in many instances defeat the end of justice as the parties may thus be denied the right to put before the court the whole evidence available. Ceekay Brothers Ltd. v. General Motors Ltd. (1992) 2 NWLR (Pt. 222) 132. Odusote v. Odusote (1971) 1 NMLR 228.

It is although a discretion to grant an adjournment, the court must none the less keep in mind what is the best way to do full justice in the case. The Court of Appeal was therefore right to allow the appeal and remit the case for retrial. I therefore do dismiss the appeal with N1,000.00 costs to the respondent.

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Other Citation: (1994) LCN/2633(SC)