Yisi Nigeria Limited V. Trade Bank Plc. (1998)
LawGlobal-Hub Lead Judgment Report
OGEBE, J.C.A.
T
he appellant instituted an action in Kwara State High Court Ilorin demanding a reinstatement of a stun of 86.560 dollars allegedly improperly taken out or its account by the respondent without its knowledge and consent. The appellant brought an ex-parte motion and was granted an interim order of the lower court restraining the respondent from taking any further steps regarding the account of the appellant with the respondent pending the determination of the motion on notice filed by the appellant which was fixed for hearing on the 24th day of February 1997. The interim order was made on the 27th November 1996.
On the 2nd of December 1996 the respondent brought a motion which read thus:-
“Take notice that this honourable court will be moved on 5th day of December 1996 at the hour of 9 o’clock in the forenoon or so soon thereafter as counsel may be heard on behalf of the defendant for an order of the court to discharge the order made ex parte on 27th day or November, 1996 on the following grounds:
(1) The court has no jurisdiction to deal with the cause or matter in the suit having regard to the provisions or sections 7(1)(b), and (5) of the Federal High Court (Amendment) Act 1991 and Decree 107.
(2) That the said order was obtained by some material nondisclosure and mala fide.
(3) That there was no extreme or urgency for the ex parte application.
Further take notice that the defendant shall rely on all the court’s processes forming part of the record of the court at the hearing of this application,”
The appellant’s counsel wrote a letter to the court asking for adjournment so that he could react to this motion, The trial court refused to honour the letter asking for adjournment and proceeded to hear the motion in the absence of the appellant’s counsel. In its ruling dated the 6th of December. 1996 the court granted the reliefs sought and struck out the case for lack of jurisdiction.
Dissatisfied with that ruling, the appellant appealed to this court on three grounds of appeal and in accordance with the rules of court formulated four issues for determination, but abandoned issue III during the course of the argument. The remaining three issues are as follows:
(1) Was the appellant afforded a fair hearing as enshrined in S. 33 of the Constitution of the Federal Republic of Nigeria 1979 when his suit was struck out in his absence and that of his counsel after the said appellant’s counsel had applied for an adjournment to enable the appellant respond to the averments in the respondent’s affidavit?
(II) Did the learned trial Judge exercise his discretion in refusing the request by the appellant’s counsel for adjournment judicially and judiciously in view of the fact that the appellant had only 48 hours to respond to the respondent’s affidavit in support of their motion on notice?
(III) In a motion to vary or discharge an interim order under Order 8 rule 11 of the Kwara State High Court (Civil Procedure) Rules 1989 could the honourable court exceed the prayers sought by the respondent and proceed to dismiss the entire suit filed by the appellants?”
The learned counsel for the respondent filed a brief of argument in which he raised preliminary objection to grounds 1 and 3 of the grounds or appeal and then formulated two issues for determination in the alternative:-
“1. Whether the learned trial Judge exercised his discretion judiciously and judicially in refusing to adjourn hearing of the preliminary objection based on the reason adduced in the appellant’s letter asking for an adjournment.
- Whether the learned trial Judge was in error in striking out the entire suit as opposed to just vacating the order obtained ex parte,”
B The appellant filed a reply brief.
The learned counsel for the appellant submitted under the 1st issue that the appellant was not given fair hearing in that the trial court without hearing the appellant struck out its entire case for want of jurisdiction in spite of the appellant’s application to it for the adjournment of the matter. He relied on the case of Food and Commodities Production Group Limited v. Mrs C.J. Areme (1990) 2 NWLR (Pt. 134) 554.
On the 2nd issue the learned counsel for the appellant submitted that he got notice of the respondent’s motion at 4.00 p.m. of the day before the motion was to be taken. He was based in Lagos and could not possibly assemble all the materials to react to the motion which was due to be argued the following day. He wrote asking for an adjournment. The court was duly informed of the application for adjournment but refused same and went on to hear the motion behind the appellant.
The learned counsel submitted that the refusal to grant an adjournment was injudicious. He relied on the case of Ceekay Traders Ltd. v. General Motors Co. Ltd. (1992) 2 NWLR (Pt. 222) at page 132.
On the 3rd issue it was the contention of the learned counsel for the appellant that the trial court was merely asked in the respondent’s motion to set aside the interim order made against it, but the court went beyond that relief to dismiss the entire suit. This was a gross error. He relied on the case of Katto v. C.B.N. (1991) 9 NWLR (Pt. 214) 126.
The learned counsel for the respondent submitted that grounds 1 and 3 of the grounds of appeal are defective and should be struck out. In the alternative he submitted under issue I formulated by him that the trial Judge properly exercised his discretion to refuse the adjournment which was a matter purely within his discretionary powers. He relied on the following cases:-
Resident of Ibadan Province v. Momudu Lagunju (1954) 14 WACA 549; Adesokan v. Adegorodu (1997) 3 NWLR (pt.493) 261 and Ceekay Traders Ltd v. General Motors Co. Ltd (1992) 2 NWLR (Pt.222) 132; (1992) 2 SCNJ 151 at 162.
On the 2nd issue the learned counsel submitted that the trial court was right in not limiting itself to vacating the order of the court granted ex parte but went on to strike out the entire case for lack of jurisdiction. In the course or oral argument the learned counsel for the respondent virtually conceded the appeal when he agreed that the relief sought before the lower court was merely to vacate the interim order.
I have taken a look at the grounds of appeal, particularly, grounds 1 and 3 attacked by the respondent’s counsel as vague, I do not agree with his submission.
The grounds accord with the rules of court and I see no basis for the preliminary objection whatsoever. It is hereby over-ruled.
It is a basic rule of the administration of justice that before a court takes a decision affecting any of the panics in an action, it should afford both parties the opportunity of being heard. The right of fair hearing is basic to the administration of justice in Nigeria, and it is even a constitutional requirement. See section 33 of the 1979 Constitution of the Nigeria. See also the case of Saka Salamai and Anor. v. Ademolu Odogun (1991) 2 NWLR (pt.173) 291 and also the case of Adigun v. Attorney General Oyo State (1987) 1 NWLR (Pt.53) 678 in which it was held that to accord with the principle of natural justice, each party to a dispute must have notice of the case it has to meet and must be given an opportunity of slating its case and answering if it wishes any argument put against if. The right to fair hearing being a fundamental constitutional right, if breached, nullifies the trial.From the facts of this particular appeal the trial court granted an interim order on an ex parte application on the 27th of November, 1996; it then adjourned the motion on notice for interlocutory injunction to the 24th of February, 1997. On the 3rd of December the respondent brought an application to set aside the interim order which the court hurriedly heard in spite of the appellant’s application for adjournment. Since the appellant’s motion on notice for interlocutory injunction was pending, the justice of the case demanded that the appellant’s motion and the respondent’s motion, should be taken together. Even if the trial court chose to take them separately, it should have afforded the appellant the opportunity to be heard on the respondent’s motion.
I daresay that the appellant was denied hearing altogether in circumstances that led to miscarriage of justice, It is the law that while an application for 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 in the interest of justice that the hearing of the case should not be unduly delayed. It should grant it, if the refusal of the application is most likely to defeat the right of a party or be an injustice to one or the other, unless there is a good or sufficient cause for this refusal. See the cases Rassaki Salu v. Madam Towuro Egeibon (1994) 8 NWLR (Pt.348) 23 and Ceekay Traders Ltd. v. General motors Co. Ltd (1992) 2 NWLR (pt.222) at page 132. I am firmly of the view that the learned trial Judge did not properly exercise his discretion judiciously in refusing the appellant’s application for adjournment.On the 3rd issue it is quite clear that a court should not grant to a party a relief that has not been sought by that party, A court of law is not Father Christmas that doles out gifts to the parties. It must confine itself to the reliefs sought by the parties. See the cases of Katto v. C.B.N. (1991) 9 NWLR (Pt.214) 126 at page 149 and Hassan v. Maiduguri Management Committee (1991) 8 NWLR (Pt.212) 738. In this case the only relief sought from the court in the respondent’s motion which has been earlier reproduced in this judgment was for an order of the court to discharge the order made ex parte on the 27th day of November 1096. There was no relief asking for the striking out of the suit. In the ruling of the court at page 41 of the record, it put the reliefs sought as follows:-
“(1) The court has no jurisdiction to deal with the cause or matter in the suit having regard to the provisions of sections 7(1)(b), and (5) of the Federal High Court (Amendment) Act 1991 and Decree 107.
(2) That the said order was obtained by some material non-disclosure and mala fide.
3) That there was no extreme or urgency for the ex-parte application.”
This is a complete misconception of the relief sought in the motion. What the trial Judge did was to quote the grounds for seeking the relief as reliefs in themselves.
This misconception led the trial court into grave error of granting what was not sought by the respondent.
In the result it is my firm view that this is an appeal that must be allowed. The trial court committed too many blunders that cannot be ignored.
Accordingly the appeal is allowed and the ruling of the trial court delivered on the 6th day or December 1996 is hereby set aside. The case is remitted to the High Court of Justice Ilorin for hearing before another Judge other than Iboweye J.
The appellant is entitled to costs of N2.000.00 against the respondent.
Other Citations: (1998)LCN/0356(CA)
