Udoji Nwadiogbu & Ors V. Anambra /imo River Basin Development Authority & Anor (2010)
LAWGLOBAL HUB Lead Judgment Report
MUHAMMAD SAIFULLAH MUNTAKA-COOMASSIE
On the 20/8/2002, the Appellants herein by a motion Exparte obtained the leave of the Federal High court, holden at Enugu to apply for the enforcement of their Fundamental rights to personal liberty and freedom of movement pursuant to the leave granted. The Appellants filed a motion on Notice in which they claimed against the Respondents as follows:-
“a. A DECLARATION that the arrest and the continued detention of the appellants by the Respondents and their servants, agents and privies at the Zone 9 the Headquarters cell Umuahia of the Nigeria police Force since 5.pm of Wednesday 24th July, 2002 till now is illegal, unlawful and unconstitutional, oppressive, intimidatory, persecutory, null and void and a gross violation of the Appellants Fundamental Rights to personal liberty and freedom of movement.
b. A DECLARATION that the Respondents’ refusal to grant the Applicants bail over the trumped charge of conduct likely to cause the breach of peace is illegal, unlawful, intimidatory, unconstitutional and a violation of Appellants, fundamental Rights to personal liberty and freedom of movement.
c. A DECLARATION that the respondent’s threat to continue detaining the Appellants in the crowded and dehumanising police cells at zone 9 police Headquarters, Umuahia until they withdraw the Suit No. FHC/EN/CS/28/02 against the 1st and 2nd respondents pending at the Federal High Court Enugu is unlawful, illegal, unconstitutional, intimidatory, contemptuous of the court, abuse of power and a gross violation of the applicants’ fundamental Rights to personal liberty and freedom of movement.
d. A DECLARATION that the appellants have not done any acts that amounts to conduct likely to cause a breach of peace warranting their arrest and detention by the Respondents.
e. AN ORDER releasing the Applicants forth with from the unlawful detention.
f. AN ORDER restraining the Respondents by themselves, servants, agents and privies from further arrest and detention of the Applicants or in any way whatsoever interfering with the applicants’ Fundamental rights as enshrined in the Constitution of Federal Republic of Nigeria.
g. AN ORDER compelling the Respondents jointly and severally to pay to each of the applicants the sum of N500,000.00 (Five Hundred Thousand Naira) only as general and exemplary damages for the violation of the applicants’ fundamental rights to personal liberty and freedom of movement”.
The Respondents were served with this motion on Notice, the 1st and 2nd Respondents filed a counter-Affidavit dated 2/9/2002. The Applicants filed a further Affidavit in support of the motion dated 20/9/2002.
On the 26/9/2002, the trial court ruled that this Applicants’ further Affidavit and counter-Affidavit of the 1st and 2nd Respondents be served on 3rd, 4th and 5th Respondents, and adjourned the case to 27/11/2002 for hearing. On the 27/11/2002, it was shown that the further Affidavit had been served on all the respondents, and has also been served on the 3rd and 4th respondents, except the 5th respondent. The court then adjourned the matter to 3/2/2003 for hearing.
On the 3/2/2003, the Appellants/Applicants’ counsel moved the motion on Notice. In the course of moving the said motion the trial court stopped the learned counsel to the Applicants to confirm the service of the processes on all the respondents. All the Respondents were confirmed to have been served with all the Court’s processes. While the 1st and 2nd respondents filed counter-Affidavit to the motion on Notice, they did not file any reply to the further affidavit. But the 3rd, 4th and 5th Respondents did not respond to any of the processes and neither have they been represented in all the court’s proceedings. The court then allowed the appellants Applicants’ counsel to proceed with his submissions. He then referred to the averments in the further Affidavit as uncontroverted. At this point the learned trial Judge asked the counsel to the 1st and 2nd respondents to comment on the submission of the learned counsel to the Appellants/Applicants on the further Affidavit. This is what the learned counsel to the respondents said: –
Amene: “It is our understanding of the law that we are not bound to reply to every averments in the further affidavit which only seeks to controvert what was in our counter-Affidavit. I did not see anything new in the further affidavit filed by the applicants.
Based on this comment the learned trial Judge asked the learned counsel to the appellants/Applicants to proceed with his submission. The said counsel, concluded his submissions and urged the trial court to grant his prayers. The court then called on the respondents’ counsel to reply, and this is what happened in the proceedings: –
Amene – I pray for a short adjournment to enable me fully amend.
Court – Did you have notice of today’s hearing and the purpose for which we are here.
Amene – My learned friend has raised several issues that I need to work upon.
Court – Are these issues of fact or law.
Amene – They are both issues of facts and law that the applicants have raised which I need to address.
Court – Now what are the issues of law raised.
Amene – I want to convince the court that while evidence is going on in a matter that either side has a right to seek leave of court to adduce further evidence.
Court – Are you suggesting a respondent having not filed a further counter-Affidavit to controvert an affidavit can after argument on a motion moved by an applicant properly seek leave of the court to then file a counter-Affidavit to controvert an affidavit in support of a motion already present (sic) or heard.
Court – Any other reason.
Amene – My further reason is to enable me reach the 3rd and 4th respondents”.
The court in its ruling, held as follows: –
Court: “I find that there are no new issues of law that the respondents were not appraised of on the motion papers filed by the applicants that were raised in the cause (sic) of the applicants’ arguments and presentation. We have also dealt with the matter of opportunity for fair hearing on the part of the 3rd, 4th and 5th respondents. Adjournment sought by counsel for 1st and 2nd respondent denied”.
Thereafter the ruling the counsel to the 1st and 2nd respondents refused to go on with the matter. In conclusion, the trial court gave judgment in favour of the applicants’ as he claimed in the Motion paper.
Dissatisfied with the judgment of the trial court, the 1st and 2nd respondents successfully appealed to the Court of Appeal, Enugu Division, herein referred as court below. In a unanimous decision the court below held at page 238 of the Record:-
“In my own view with the reasons placed before the trial court, it should have acceded to the request for adjournment if only upon terms, but it looked as if the trial Judge was in a haste to compute the case on his first day of sitting in that court without giving the other party the opportunity to file necessary papers and be heard. The action of the learned trial Judge has caused a miscarriage of Justice. The trial court failed to take all the Circumstances of the case into consideration. In the circumstance, the refusal of the trial court to grant the appellants’ application for adjournment to enable him file further counter affidavit and also get in touch with the 3rd and 4th defendants/respondents amounted to denial of fair hearing…
In the final analysis, this appeal has merit and it is allowed. The decision of the trial court delivered on 3/2/03 which granted the applicants, the reliefs sought in (c), (f) and (g) of their statement to the extent that only the 1st and, 2nd respondents are liable to pay the sum of Five Hundred Thousand Naira (N500,000.00) in general and exemplary damages is hereby set aside…”
The learned Justices of the court below remitted the case back to the Federal High court Enugu for re-assignment and hearing de novo.
Dissatisfied with the above judgment the appellants appealed to this court. In compliance with rules of the court both parties have filed and exchanged their respective briefs of argument.
The appellants in their brief of argument dated 2/2/07, and filed on 5/2/2007, distilled two issues for determination from the three grounds of appeal, thus:-
“(a) Whether the Court of Appeal was right in holding that the refusal of the trial court to grant the respondents, application for adjournment to file further counter affidavit amounted to denial of fair hearing.
(b) Whether the Court of Appeal was right to hold that the affidavit evidence of the parties showed a lot of conflicts which ought to be resolved by calling on the parties to give oral evidence”.
The Respondents in their amended Brief of argument adopted the issues for determination as distilled by the appellants. At the hearing of this appeal, the learned counsel to the Appellant adopted his brief of argument and urged this court to allow the appeal. In his brief, the learned counsel submitted on the issue that by a long line of decided cases, the grant or refusal of adjournment in a matter is entirely at the discretion of the trial Judge and the exercise must depend on the facts and circumstances of the case. The cases of:- Okeke v. Oruh (1999) 6 NWLR (pt. 606) 175, Odusote v. Odusote Ltd (1991) 1 NMLR 228, Seekaye Traders Ltd V. General Motors Co. Ltd (2002) 2 NWLR (pt. 222) 132. were cited.
Learned counsel further submitted that there must be sufficient materials placed before the court to enable it give a ruling one way or the other but which must be both judicial and judicious. In the instant case, they failed to provide the trial court with any material. The record shows clearly that the respondents were duly served with the applicants’ further affidavit long before the suit was first fixed for hearing on the 26/2/2002 and particularly on the 3/2/2003 while the respondents said at the hearing that there is nothing new in the Applicants’ further affidavit to warrant him filing a reply. It was the learned counsel’s submission that the court of Appeal was in error in interfering with the exercise of discretion of the trial Judge, thus, the appellate court must be slow in interfering with the discretion of the trial court, see Okeke V. Oruh (supra) at 188. Learned counsel submits that when a matter is fixed for hearing, a trial court has no other business than to proceed with the hearing of same, learned counsel cited in support the case of:-
Jonason Triangles Ltd v. Charles Moh and partners Ltd (2002) 15 NWLR (pt. 789) 176. It was also the learned counsel’s submission that the respondents could not complain of breach of fair hearing as they were given all the opportunity to file reply to the further affidavit but have chosen not to present its case when given opportunity to do so cannot be heard to complain of a denial of fair hearing. See the case of Oyeyipo v. Oyinloye (1987) I NWLR (pt 50) 356.
On the 2nd issue, learned counsel submits that the respondents having failed to file a reply to the further affidavit are deemed to have admitted the correctness contained therein, hence the issue of conflict in the affidavit that may warrant the calling of oral evidence does not arise. Counsel referred to the cases of:-
(a) Attorney general Anambra State v. Okeke (2002) 12 NWLR (pt. 782) 575.
(b) Egbuna V. Egbuna (1989) 2 NWLR (pt. 106) 773.
Learned counsel to the respondents adopted his amended brief of argument at the hearing of the appeal and urged this court to dismiss the appeal.
On the issue No. 1, learned counsel agreed with the appellants/applicants that the question of grant or refusal of an application for adjournment is discretionary, however, an appeal court may interfere with the exercise of discretion if it is shown that there has been a wrong exercise of the judicial discretion. Learned counsel cited the cases of:-
University of Lagos v. Aigoro (1985) 1 NSCC (pt. 1) 88, and Enehebe v. Enehebe (1964) All NLR 95 at 100. In the instant case, learned counsel pointed out that this matter came up for the first time before the trial Judge on 3/2/2003. It was his submission that there were material facts placed before the court which would have warranted the court granting the application for adjournment i.e. to enable him amend, to controvert the affidavit in support by filing further counter/affidavit and to enable him reach the 3rd and 4th respondents. Learned counsel submitted that the trial High court did not exercise its discretion judicially and judiciously in refusing the application for adjournment.
On the 2nd issue, learned counsel submitted that the issues between the parties were whether the applicants were unlawfully arrested and detained by the police at the behest of the respondents, and these issues were contradicted in the counter-affidavit.
The affidavits are in conflict on material facts. When affidavits are in conflict on material facts court is duty bound to resolve the conflicts by calling oral evidence. He cited the case of:
L.S.D.P.C V. Adold Stamm International Nig. Ltd (2005) 2 NWLR (pt 603 at 617.
My Lords, I have carefully gone through the record of proceedings and I respectfully found as follows:
(1) The Appellants processes were served on the respondents and on 2/9/2002, the 1st and 2nd respondents filed the counter-affidavit.
(2) The appellants filed a further affidavit in support of the motion on 20/9/2002 and the 1st and 2nd Respondents were duly served.
(3) On the 26/9/2002, the Trial Court Ordered that the appellants, further affidavit shall be served on the 1st and 2nd respondents. He also ordered that the Appellants further Affidavit shall be served on the 3rd, 4th and 5th respondents and adjourned the case to 27/1/2002 for hearing.
(4) On the adjourned date i.e. 27/1/2002, the trial court found that the appellants further affidavit has in fact been served on all the respondents, while the 1st and 2nd respondents counter-affidavit had also been served on the parties, except the 5th respondent. The court further adjourned the case to 3/2/2003 for hearing.
(5) Between the 27/11/2002 and 3/2/2003, the 1st and 2nd respondents had at least three (3) months of opportunity to file a reply to the appellants further affidavit if they so wish.
(6) I also found as a fact that the 3rd to 5th respondents did not file any process in defence of the Appellants case inspite of the fact that they were duly served with all the court’s processes.
(7) The Trial Court, on the date of hearing i.e. 3/2/2003, gave the opportunity to the 1st and 2nd respondents to file a reply to the further affidavit if they so wish, in view of the averments contained therein, counsel to the respondents answered thus: –
“It is our understanding of the law that we are not bound to reply to every averment in the further affidavit which seeks to controvert what was in our counter-affidavit. I did not see anything new in the further affidavit filed by the applicants”.
With tremendous respect, in view of the above findings, can it be rightly said that the respondents were denied the right to fair hearing by the refusal of the trial court to grant the respondents’ application for adjournment The question of adjournment is within the discretion of the court, in exercising such discretion the court must consider all the circumstances of the case in ensuring that the discretion is exercised judicially and judiciously. In exercising its discretion no case can be authority for the other, because that in effect would be an end to the discretion. Each case has its peculiar facts which cannot be the same with the others although they may be similar. Hence, in exercising its discretion the court has to consider the totality of the cases. The fact that the appellate court would have exercised its discretion differently from that of the trial court is not a sufficient reason to interfere with the exercise of discretion by the trial court. See Okeke v. Oroh (1999) 6 NWLR (pt 606), Odusote V. Odusote (1971) 1 NWLR 228.
When a case has been fixed for hearing the trial court must ensure the hearing of the case except if a party applying for adjournment showed sufficient reason why the case must be adjourned, that is, by placing sufficient materials before the court upon which it can exercise its discretion, otherwise, an adjournment of a case fixed for hearing would mean further delay to the other litigants who might otherwise have had their cases heard. See Solanke v. Ajibola (1968) 1 All NLR 46 at 54; Norwest Heavy Duty industrial plastic Ltd. v. Folarin (2002) 2 NWLR (pt.239) 54166; and Jonason Triangles Ltd v. Charles Moh and Partners (supra) at 176.
However, an appellate court may interfere with the exercise of judicial discretion if it is shown that there has been a wrong exercise of the judicial discretion such as where the court acts under a mis-conception of law or under mis-apprehension of fact by considering irrelevant matter. See University of Lagos and Anor V. Aigoro (supra) 88; Enekebe V, Enekebe (1964) All NLR 95:
Applying these principles to this case at hand, and in particular, in view of my findings above, it is my candid view that the trial court exercised its discretion judicially and judiciously in refusing the respondents’ application for an adjournment. Apart from the fact that the respondents had a grace of not less than 3 months to file its reply to the further affidavit before the date fixed for hearing, on the date fixed for hearing. That court also gave the opportunity to the respondents, if they wished to file a reply, but the counsel arrogantly refused it.
The findings of the lower court that the trial Judge was in a haste to determine the case on his first day of sitting cannot be supported with the evidence in the record. The trial court is bound to look at the records, and having gone through the records and seeing the opportunities already given to the respondents, he rightly rejected the application for adjournment.
My Lords, the issue of conflicts in affidavits was never raised in the appellants Notice of appeal before the trial, and neither was it canvassed before it. It was an obiter dictum having not been linked or related to any of the issues canvassed before it. I have no hesitation in holding that the issue is incompetent.
All said and done, I hold that this appeal has tremendous merit and is accordingly allowed. The judgment of the lower court is set aside. The beautiful and painstaking judgment of the trial court is reinstated and affirmed, Fifty thousand Naira (N50,000) costs is awarded to the Appellants.
Appeal is allowed.
SC.299/2006