University Of Lagos & Anor V. M. I. Aigoro (1985)
LawGlobal-Hub Lead Judgment Report
BELLO, J.S.C
We allowed this appeal on 5th November 1984, set aside the decision of the Court of Appeal and remitted the case to the Court of Appeal for hearing on the merits. We reserved our reasons for doing so to be delivered today. I now state my reasons.
In the High Court of Lagos State the respondent as plaintiff claimed jointly and severally against the University and its Vice-Chancellor, now the present appellants, for a declaration that he was the Deputy Chief Engineer of the University, that the purported anticipatory breach of contract between him and the University was null and void and injunction restraining the University from committing breach of contract. In the alternative, he claimed N50, 000 damages for breach of contract.
After hearing the evidence, the trial judge granted the declarations sought and awarded N12, 200 as damages for breach of contract with N1,000 costs against the University. He dismissed the claim against the 2nd Defendant, the Vice-Chancellor, with no order as to costs. Being dissatisfied with the judgment, the University appealed against it while the Vice-Chancellor only appealed against the non-order of costs in his favour to the Court of Appeal. The Court of Appeal dismissed their appeals for want of prosecution without a hearing on the merits.
The record of proceeding in the Court of Appeal on the day the appeal was fixed for hearing thereat is short and may be set out in full:
“Pekun Martins for I.A. Cole for appellants
Kehinde Sofola, SAN, with B.A. Aluko for respondent.
Martins-As of now we are not in a position to file additional grounds for appeal because we have not obtained the record of appeal. I am therefore asking for an adjournment. Moreover Mr. Cole who was in the Lower Court is indisposed.
Sofola – The grounds for asking for an adjournment are untenable. According to pages 205-209, five grounds of appeal have already been formulated. No need therefore arises for filing additional ground to necessitate asking for an adjournment. It appears that the appellants are not interested in the appeal, no steps were taken to get the Record. Submit that the principal actors at the material time in Unilag including the Vice-Chancellor and the Registrar have left the University. Submit that no one is interested in the appeal.
Urges the Court to dismiss the appeal for want of prosecution.”
The Court of Appeal there and then proceeded to enter the following judgment per Kazeem J.C.A., as he was then with which Ademola and Agu JJ.C.A. concurred:
“It seems quite clear from the reasons given for asking for an adjournment that the appellants are not interested in prosecuting this appeal. In the first place as the appellants (sic). It is their responsibility to find out where (sic) the Record of Appeal is ready in the Registry of the Lower Court so that it could be paid for and collected. To come to this Court to say that the record had not been obtained when both the respondent as well as this court had got their copies, shows that no one seems to be interested in having the appeal heard. Mr. Martins says that it is absence of the Record that has prevented him from filing additional ground. But he is quite aware that already five grounds have been filed which seem to cover everything that can usefully be argued in the appeal. I do not think he wants to argue those until he has been able to file additional grounds even though the court offers to lend him a copy of the Record. Moreover, he wants us to believe that Mr. Cole who conducted the case in the Lower Court is indisposed when there is no medical certificate of illness before this court to that effect. It seems to me that Mr. Martins feels that by (sic) merely asking for an adjournment on any ground will be enough to get the matter shifted to another day.
I cannot subscribe to that. As I said earlier it is quite clear that no interest whatsoever has been shown in prosecuting this appeal particularly when the Chief participants at the trial including the former Vice-Chancellor of the University of Lagos-Prof. J.F.A. Ajayi and the Registrar-Mr M. U. Eperokun are no longer with the University. In the circumstances, I am satisfied that the proper order to make in this case is to dismiss the appeal for want of prosecution with N700 costs.”
It was against this judgment that the appellants appealed to this court on the main ground that the learned justices of the Court of Appeal failed to exercise their discretion judicially in refusing the application for adjournment and in dismissing the appeal thereat for want of prosecution.
In his brief, Chief Williams for the appellants, highlighted the reasons relied upon by the Court of Appeal particularly the fact that the appellants did not receive the record. He submitted that there has been no evidence before the Court of Appeal to support the conclusion that no interest whatsoever had been shown in prosecuting the appeal because the chief participants, Professor Ajayi and the Registrar, Eperokun, had left the University. He further submitted that there is no evidence either has left the University and their leaving, if at all, was not a notorious fact of which the court should take judicial notice. Furthermore, the judgment appealed against was against the University which is a corporation separate and distinct from the individual members thereof and not against Professor Ajayi and Mr. Eperokun.
With regard to Mr. Cole’s indisposition, Chief Williams conceded that normally a medical certificate is in practice presented in support of an application for adjournment on the ground of counsel’s illness. He, however, submitted that where counsel stated from the bar that his colleague was ill and could not come to court, such statement ought to be accepted or if the court entertained doubt about the accuracy of the statement it should at least question counsel further to confirm or remove its doubt.
In his reply, Alhaji Razaq for the respondent stated that the Court of Appeal acted rightly on the facts before it and in the circumstances of the case. Relying on Oroke v. Ede (1964) N.N.L.R. 118, he submitted that this Court should not take into account facts not deposed before the Court of Appeal. He said Mr Martins of counsel had failed to convince the Court of Appeal to exercise its discretion in favour of an adjournment.
Now, Order 1 rule 10 of the Court of Appeal Rules, 1981 confers on that Court unfettered discretion at anytime 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.O.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 , Saffieddine v. C.O.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 N.L.R. 46 AT 52. The court must balance its discretionary power to grant or refuse an adjournment with its 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).
Now to return to the facts of the case on appeal, it appears that the Court of Appeal took into consideration, among others, the unproved fact that Professor Ajayi and Mr Eperokun whom that Court regarded as the chief participants in the case had left the University and there from assumed that no one had any further interest in the prosecution of the appeal.
The Court over-looked the fact that the main judgment on appeal before it was against the University which is a public institution. The judgment was neither against Professor Ajayi nor against Mr. Eperokun who was not even a party to the proceedings. That being the case, even if the Professor and Mr. Eperokun had then left the University, which was not proved, the fact of their leaving is irrelevant for the prosecution of the appeal by the University. It follows therefore that the Court of Appeal took into account unproved and irrelevant considerations in refusing to grant an adjournment.
Again the Court of Appeal summarily dismissed Mr. Cole’s illness simply because there was no medical certificate to that effect and for that reason dismissed the appeal for want of prosecution. Like in Solanke v. Ajibola (1968) 1 ALL N.L.R. 46 the Court of Appeal did not seem to have taken all the circumstances of the case into account in refusing adjournment, to wit that the Appellants had satisfied all the conditions of appeal including the payment of additional fees which had been brought to their notice on 10th May, 1982; that the appeal had not unduly waited for hearing because the record was despatched to the Court of Appeal on 2nd April, 1982 and the Court fixed its hearing on 24th May, 1982, that the Court did not check from its record when Mr Cole was served with the hearing notice, which according to Chief Williams was on 23rd May, 1982.
In refusing to grant adjournment, the Court of Appeal was also influenced by the failure of Mr Martins to argue the appeal when the Court offered to lend him a copy of the record. In this respect the Court failed to appreciate that because of the voluminous character of the record which ran to 459 pages, it would be almost an impossible task for Mr Martins, who had not participated at the trial of the case in the High Court, to argue the appeal reasonably there and then without giving him the opportunity to browse over the record at least for a few hours. I think Mr Martins was justified for not accepting the offer and the Court of Appeal erred in dismissing the appeal for want of prosecution on that account.
From the foregoing, it is clear that in the exercise of its discretion to refuse to grant adjournment the Court of Appeal not only gave weight to unproved and irrelevant matters but it also failed to take into account relevant considerations to the issue. These are my reasons for interfering with the decision of that Court.
KAYODE ESO, J.S.C.: I have had the privilege of a preview of the ruling which has just been read by my brother Bello, J.S.C. and I will like to adopt his reasons for my decision to set aside the decision of the Court of Appeal in the exercise of its discretion in this matter whereby the Court dismissed the appeal of the appellants and refused to hear the appeal on its merit.
There were three matters that affected the mind of the Court of Appeal:
(1) That the principal defendants-Professor Ajayi and Mr Eperokun had left the University and so the defendants no longer had interest in the matter;
(2) That there was no medical certificate in regard to Mr Cole of counsel who was reported to have taken ill; and
(3) That Mr Martins of counsel was not prepared to argue the case even when the Court was prepared to lend him its own record.
In regard to (1) it is patent both on the form and the substance of the action in this case that the complaint of the plaintiff was against the University itself as an institution and not merely against the Vice Chancellor and the Registrar.
With regard to (2) it is highly debatable whether a Court should always seek medical certificate of a counsel. However, this is one point in respect of which I will not wish to interfere with the discretion of the lower court particularly for the reason that it would be wrong for a Court of Appeal to impose its own discretion on a lower court. It is where it has been shown that the discretion has not been exercised judicially or judiciously that a Court of appeal interferes. See Demuren v. Asuni (1967) 1 ALL N. L. R. 94 at 101; Solanke v. Ajibola (1968) 1 ALL N. L. R. 46 at P.52.
As regards the third reason that Mr Martins did not take the offer of the Court to argue the appeal on a record to be lent by the Court I think with respect it would be unreasonable for any court to expect learned counsel to study a record of over 400 pages in a few hours and do justice to the case and his client in the assistance the Court would require from him.
It is for these reasons and the reasons so well stated by my learned brother Bello, J.S.C. that I allowed the appeal on 5th November and remitted the case to the Court of Appeal for hearing on its merit.
A. NNAMANI. J.S.C.: When this appeal came up before this Court on 5th November, 1984 I allowed it, remitted the case to the Court of Appeal for hearing on its merits and indicated that I would give my reasons for that judgment today. I now give my reasons:
The background facts of this appeal have been given in the lead Reasons for judgment just read by my learned brother, Bello, J.S.C. and I do propose to repeat them. I would also wish to state that the reasons given by my learned brother accord with mine and need only emphasis.
There is no dispute about the competence of the Court of Appeal to exercise its discretion in the matter of an application for adjournment or indeed in relation to any question within its jurisdiction in which the exercise of its discretion arises. The question is really whether in the particular circumstances of this case that Court has exercised its discretion in accordance with the principles of law and practice governing such matters. There can be no interference if the discretion has been exercised not arbitrarily or recklessly but judicially and reasonably. In Mobil Oil (Nigerian) Ltd. v. Federal Board of Inland Revenue (1977) 3 S.C. 97, 141 this Court referred with approval to the observation of Lord Macmillan in Fraser and Co. Ltd. v. Minister of National Revenue (1949) A.C. (P.C.) 24 at 36 where the learned Law Lord said:-
“The criteria by which the exercise of a statutory discretion must be judged have been defined in many authoritative cases, and it is well settled that if the discretion has been exercised bona fide, uninfluenced by irrelevant considerations and not arbitrarily or illegally no court is entitled to interfere even if the court, had the discretion been theirs, might have exercised it otherwise.”
Again in Abiodum Adenike Odusote v. Olaitan Olaniji Odusote (1977) 1 ALL N.L.R. 219, 223 in which the facts are not as completely dissimilar to the facts of the present case as Alhaji Abdul Razaq urged on us, this Court dealing with the issue of discretion to grant an adjournment was of the view that:-
“It is a well established principle of law that all judicial discretions must be exercised according to common sense and according to justice, and, if there is any miscarriage of justice in the exercise of such discretion it is within the competence of a Court of Appeal to have it reviewed.”
In the instant appeal it is pertinent to point out that the facts before the Court of Appeal on which it based its decision were as follows:-
(1) That a notice dated 2nd April, 1982 had gone to the parties from the Registry of the High Court informing them that the record had been despatched to the Court of Appeal and that a copy could be obtained on payment of fees.
(2) Hearing notices for the appeal were issued on 15th April, 1982.
(3) That the appeal was set down for hearing on 24-5-82.
(4) That on that day a counsel, Mr Martins, appeared for the appellants but applied for adjournment first because he had not yet obtained a copy of the record of appeal and second because Mr A.J. Cole whose brief he was holding was ill.
It is also pertinent to add that learned counsel for the respondent before the Court of Appeal contended on 24th May, 1982 that the appellants were no longer interested in the appeal because the former Vice-Chancellor and Registrar, Professor Ajayi and Mr Eperokun respectively had left the institution. The materials contained in the affidavit of Moses Ogunsola of the appellants, sworn on to the 30th day of June, 1982 particularly paragraphs 4 and 5 thereof, (to the effect that the appellants received a notice dated 10-5-82 to pay more fees for a copy of the record and that Mr Martins collected N1,108 from the appellants for purposes of this payment on 21-5-82) were not before the Court of Appeal when it took its decision on 24-5-82, nor can the further information given to this Court by Chief Williams, SAN, for the appellants as to the difficulty of collecting the necessary fees from the appellants, a corporation, be held against the Court of Appeal. I think there is therefore substance in the submission of Alhaji Abdul Razaq for the respondent that in determining whether the Court of Appeal exercised its discretion properly such material which is only available to this Court should not be taken into account. But the question still remains, even on the basis of the material before it on the 24th May, 1982 did the Court of Appeal exercise its discretion judicially and reasonably I think the answer is in the negative. There is no question of lack of bona fides nor was there arbitrariness or illegality. But the court clearly took into account matters which were irrelevant. The departure of Professor Ajayi and Mr Eperokun from the University of Lagos was clearly irrelevant to the issues before that Court. Those men do not constitute the University which was the appellant. It cannot be reasonable in my view to request counsel who for some reason has not obtained a copy of the record of proceedings to argue the appeal with a copy lent to him by the Court particularly when the records run to 513 pages and counsel was holding brief for another counsel who appeared in the matter in the lower court. As to the alleged ill health of Mr Cole, it seems to me out of the usual practice to demand a medical certificate after Mr Martins had from the Bar informed the Court that his learned senior was indisposed.
Finally, from all the circumstances of this case a grant of adjournment would not have occasioned any miscarriage of justice. The matter was a fresh one, hearing notices having only been issued on 15-4-82. The date 24th May, 1982 appears too to be the first date on which the matter was coming up for hearing. It was for these reasons, and the more exhaustive reasons given earlier by Bello, J.S.C. that I allowed the appeal.
S. KAWU, J.S.C.: On the 5th November, 1984, we allowed this appeal and we reserved our reasons for doing so to be delivered today.
I have since then had the advantage of reading in draft, the reasons for the judgment just delivered by my learned brother, Bello, J.S.C. It was for those reasons that I allowed the appeal, set aside the decision of the Court of Appeal and remitted the case to the Court of Appeal for hearing on the merit.
C. A. OPUTA, J.S.C.: This appeal was argued on 5-11-84. After listening very carefully to the oral arguments of counsel for the Defendants/ Appellants and the Plaintiff/Respondent in elaboration of their respective Briefs, the Court decided to allow the appeal and remit the case to the court of Appeal, Lagos Division, for the appeal pending before that Court to be heard on its merits. The court also decided that reasons for judgment should be given on 25th January, 1985. Hereunder are my reasons.
This appeal is from the order of the Court of Appeal dismissing the Defendants/Appellants’ appeal from the judgment of Savage, J. of the Lagos High Court dated 2nd October, 1979, for want of prosecution. The trial court-the Lagos High Court-awarded the Plaintiff/Respondent in this Court N12, 200 damages for “wrongful termination” and N1, 000.00 costs against the 1st Defendant, the University of Lagos. The Defendants being dissatisfied with the above judgment naturally appealed against it to the Court of Appeal, Lagos Division. The appeal before the court below was competent as the requisite Notice and Grounds were filed within time. Five original grounds of appeal were filed before the receipt by the appellant of the Record of Proceedings. It is trite law that any appellant is at liberty either to file additional grounds of appeal on receipt of the records or even to substitute new grounds for the original grounds filed before the receipt of those records. This liberty to file additional grounds is not something that can be easily brushed aside. The aim being that an appellant should feel quite free to urge, agitate and canvass any point or points which he thinks will help the court to arrive at a just determination of the appeal.
On the 24th May, 1982, the appellants’ appeal came up for hearing before the Court of Appeal, Lagos Division, and the following dialogue ensued between the learned counsel for the appellants and the court below:-
“Martins-As of now we are not in a position to file Additional Grounds of Appeal because we have not obtained the record of appeal. I am therefore asking for an adjournment. Moreover Mr Cole who was in the lower court is indisposed.
Court-It seems quite clear from the reason given for asking for an adjournment that the appellants are not interested in prosecuting this appeal. In the first place, it is their responsibility to find out when the Record of Appeal is ready in the Registry of the lower court so that it could be paid for and collected. To come to this court to say that the record had not been obtained when both the respondent as well as this court had got their copies shows that no one seems to be interested in having the appeal heard. Mr Martins says that it is the absence of the Record that has prevented him from filing additional grounds. But he is quite aware that already five grounds have been filed which seem to cover everything that can usefully be argued in the appeal . . .
Moreover, he wants us to believe that Mr Cole who conducted the case in the lower court is indisposed when there is no medical certificate of illness before this court to that effect.”
One thing clearly emerges from the above dialogue and that is, the Justifiable anxiety of the court below to see that cases are disposed of with minimum delay. It is in the interest of justice that this should be so. The court below even very generously offered to lend Mr Martins a copy of the Record. In some cases, this may save the situation and lead to the hearing of the appeal as fixed. But the records in this case ran up to over 450 pages and Mr Martins must possess a gargantuan brain and an extraordinary power of perception to wade through 450 pages there in court, and still have reserve energy left to enable him address the court, without ultimately resorting to an adjournment, which was exactly what he asked for initially.
Accordingly to the Brief filed by Chief Williams, SAN, the questions for determination in this appeal are as follows:
(1) “In what circumstances should the Court of Appeal dismiss an appeal for want of prosecution
(2) Where counsel for an appellant claims that he is unable to present oral argument to the court when an appeal is called on for hearing on the ground that he has not prepared the presentation of his arguments, what options are open to the Court of Appeal”
It will be purely academic to attempt to answer the above questions as framed. In the case on appeal, what was refused was a request by the counsel for the appellants for a grant of an adjournment. It is safer for the court to confine itself to the only issue raised on the record rather than speculating on issues not exactly and squarely before it.
It is certainly within the discretion of the court seized with the matter to grant or refuse an adjournment. And since no two cases have exactly the same facts and the same surrounding circumstances, one cannot pontificate on matters touching the exercise of its discretion by a court. Also since in the exercise of discretion, no case is a binding precedent for future exercise of its discretion by other courts in other cases and other circumstances, it will be better to confine the question for determination here simply to:-
“Was the court below right in this case, to refuse the appellants’ application for an adjournment and to dismiss the appellants’ appeal for want of prosecution”
The key words in the question formulated above are “dismissal” and “Want of prosecution.”
An action may be dismissed for want of prosecution or on the merits. When an action is dismissed for want of prosecution, it certainly is not dismissed on the merits. The same thing may apply to an appeal. Dismissal of an appeal for want of prosecution is normally a dismissal not on the merits. It is the refusal of the appellate court to examine the merits of the case. As I observed earlier on, I quite frankly appreciate the anxiety of the court below to dispose of appeals before it promptly. In fact speedy trial is guaranteed by section 33(1) of the 1979 Constitution.
Our 1979 Constitution in Section 33(1) guaranteed to both appellants and respondents in the court below “a fair hearing within a reasonable time.” What constitutes a reasonable time will surely depend on the surrounding circumstances. Would it have been unreasonable to grant an adjournment in this case That then is the question and my answer is No. It would not have been. The need for speedy trial should never be used to do an apparent injustice.
The court below was under a fundamental duty to see to it that justice was done to the parties-to the respondent as well as to the appellants by hearing the appeal on its merits for as Lord Bowen aptly observed in Cropper v. Smith (1884) Ch. D. 700 at p. 710
“The principal object of Courts is to decide the rights of the parties and not to punish them for mistakes they may make in the conduct of their cases by deciding otherwise than in accordance with their rights.”
The dismissal for want of prosecution is certainly not a decision in accordance with the rights of the appellants and respondent in this case. It looks like a punishment to Mr Martins who is merely a counsel and not a party. A review of the authorities seems to suggest that unless and until the court has pronounced a judgment upon the merits or by consent it ought to use the power which it certainly has to punish any mistake or blunder committed either by the parties or their counsel by an imposition of costs or terms and do everything possible to keep cases alive and then hear them on their merits, rather than applying the guillotine of dismissal for want of prosecution: Collins v. Vestry of Paddington (1880) 5 Q.B.D. 368 at p. 381 .
In the case on appeal, the respondent will not suffer an irreparable loss or injury by an adjournment and an award of costs; but the appellants will, by the dismissal of their appeal for want of prosecution. This was not a case of prolonged and inexcusable delay on the part of the appellants-the day the appeal was dismissed for want of prosecution was the very first day the appeal came before the court below for hearing.
In the final result, it is my humble view that in the surrounding circumstances of this case, the discretion of the court below to dismiss the appeal before it for wants of prosecution rather than adjourning it for evens a single day was a discretion not exercised either judicially or judiciously. An appellate court has the right and in fact the duty to interfere in such cases. It was for the reasons given above and for the more detailed reasons given in the leading judgment of my learned brother and presiding Justice Bello, J.S.C. that I allowed the appeal on the 5-11-84 and remitted the appeal to the Court of Appeal, Lagos Division to be heard on its merits.
Appeal Allowed.
SC.32/1984
