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Home » Nigerian Cases » Supreme Court » Chief James Ntukidem & Ors. V. Chief Asuquo Oko & Ors. (1986) LLJR-SC

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

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

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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


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:-


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.

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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.

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(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.

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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.


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