United Bank For Africa Plc. V. Mrs. Labake Lawal & Anor (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CHIDI NWAOMA UWA, J.C.A. (Delivering the Leading Judgment)

This appeal arose from the Ruling of A. A. Aderemi, J. of the Oyo State High Court sitting at Ibadan, delivered on the 16th day of March, 2011 wherein the lower court refused the appellant’s application for adjournment of the case fixed for hearing on that day.

The background facts are that the appellant (then defendant) contended that the lower court refused to adjourn the case fixed for hearing to one of the subsisting dates earlier fixed for trial of the case on the ground of ill health of the defence counsel, Musibau Adetunbi Esq. of the firm of Musibau Adetunbi & Co. in seeking for the adjournment a medical report of counsel was attached to the letter of application. The application was opposed by the learned counsel to the claimants/respondents.

The appellant also contended that this appeal was not founded on the mere fact of refusal to grant an adjournment, which learned counsel agreed is at the discretion of the court to exercise judicially and judiciously but, on the ground that the said discretion was exercised in violation of known principles of law and around circumstances of likelihood of bias of the court below against the appellant as defendant.

The Respondents on their part were contended that on 16th March, 2011 the date the case was fixed for definite hearing, a date mutually agreed upon by both counsel when the matter came up on 23/2/11, the appellant submitted a letter from its counsel’s law firm praying for an adjournment to a further date outside the three dates the case was fixed for hearing.

On refusal of the application, the court set down for hearing and took the evidence of the 1st respondent and adjourned till the following day, 17th march, 2011 for further hearing. On 17th March, 2011, learned counsel to the appellant, E. E, Jacob Esq., who appeared for the Appellant on 23/2/11 appeared and refused to cross-examine the 1st Respondent who was recalled into the dock for cross examination on the basis that an appeal had been filed against the refusal for adjournment by the lower court, on the previous day.

The Respondents on their part were of the opinion that this appeal is merely academic since the Appellant has since filed and been granted leave to recall and cross – examine the 1st respondent, who was cross examined and the matter adjourned at the instance of the appellant’s learned counsel to cross examine the only other witness called by the Respondents.

Dissatisfied with the refusal of the application for adjournment of the 16th March, 2011 in the lower court’s Ruling, the appellant’s original Notice of Appeal contained six grounds of appeal and later additional grounds of appeal were filed, totaling nine (9) grounds of appeal, all filed within time. From the nine (9) grounds of appeal the appellants distilled three (3) issues for determination by this court, they are as follows:-

“1. Taking into consideration the way and manner our noble Lord of the court below accepted the submissions of facts of learned Senior Counsel (for the claimants an 16th March, 2011 and the disposition of her Lordship on 17th March, 2011, would a reasonable man who has no interest howsoever, not entertain doubt about the ability of her Lordship to hold the scale of justice evenly between the parties. Grounds 1, 7 and 8.

2. Whether in view of the undisputed facts on records as at 16th March, 2011 it is obvious that the learned trial judge did not exercise her discretion judicially and judiciously when she refused the application for adjournment. Grounds 2, 3, 4, 5 and 6.
3. Whether the learned judge of the court below was not in utter error occasioning injustice to the appellant when he opened the case of the claimants/respondents that was not ripe for hearing, behind the appellant. Ground 9.”

The respondents on their part distilled a sole issue for determination that is:-

“Whether in the circumstances of this case and considering the various steps taken by Appellant this appeal is not academic and not worthy of being considered by the Court of Appeal.”

When the appeal was argued, the learned counsel to the Appellant Musibau Adetunbi Esq. adopted and relied on his brief dated and filed on 6th March, 2012 and his reply brief dated l1th May, 2012 filed on 14th May, 2012.

In arguing his first issue, the learned counsel argued that by an application letter dated 16th March, 2011, the law firm of Musibau Adetunbi & Co. wrote a letter to the Registrar of the High Court requesting for an adjournment on the ground of ill health of his principal counsel Musibau Adetunbi Esq. to which a medical certificate was attached. The application was opposed by the respondent and same was refused by the lower court that stood the matter down for trial. The submission in the lower court was reviewed. The learned counsel was of the view that there was no neutrality on the part of the lower court in refusing the adjournment and setting the matter down for hearing, the holding at page 41 agreeing with the submission of the respondents’ counsel is to the effect that there were about ten (10) counsel in court who had previously appeared in the matter and could have handled the case on that day.

The learned counsel dwelt on the contention that Musibau Adetunbi Esq. and/or any other counsel in his law firm did not oppose any application for fiat, for the purpose of the application for stay of proceedings before the lower court.