United Shipping & Trading Company Inc. V. Agro Allied Development Ent. Limited (2000)
LawGlobal-Hub Lead Judgment Report
A. OGUNTADE, J.C.A.
On 11/2/98, the Respondent, as Plaintiff brought an originating summons before the Federal High Court, Lagos (Coram Jinadu J) against the appellant, as the defendant for the enforcement of an Arbitral award. An affidavit was filed in support of the summons in accordance with the applicable procedural Rules of the Federal High Court. The parties are herewith referred to as ‘Plaintiff’ and ‘Defendant’.
On 27/4/98, the originating summons was first mentioned in court. The Court notes for that day read:
“Mr. Femi Atoyebi for the Plaintiff.
Mr. N. Idris, Manager, Legal Services represents the defendant – says we received the court processes on 14/4/98 and since then we have made efforts to contact our lawyer Mr. Jimi Oduba without success.
I was told that he travelled.
Court: Very well. Adjourned to 4/5/98 for mention.”
The matter next came up on 4/5/98 and the court notes for that day read:
“Mr. Nuhu Idris, Manager, Legal Services represents the defendant.
Mr. Femi Atoyebi for the plaintiff.
Otunba Jimi Oduba says I have not been briefed as counsel in this case.
Atoyebi: I ask for a hearing date.
Court: Very well. Case is fixed for hearing – 27/5/98.”
On 27/5/98, at about 9.45 am, then the lower court granted plaintiff’s counsel leave to move his application, no counsel had appeared for the defendant. The defendant had in court its representative Mr. Nuhu Idris. There is no indication that Mr. Nuhu Idris requested for an adjournment. Plaintiff’s counsel moved his application and at the end of his address, the court notes read:
“Mr. Yinka Raji:- now appears for the defendant says I have just been briefed and I intend to file papers to oppose this application.
Atoyebi: I oppose this application. The respondent was served since February, 1998. I do not want the respondent’s assess dissipated.
Raji- I pray the court to have a date to reply to this application.
Court: I do not think I should indulge the Respondent unnecessarily at the expenses of the applicant in whose favour the award was made. The Respondent was served since 14/4/98. On 27/4/98 the Manager of the Respondent Mr. Idris held the court they were served on 14/4/98 and that all efforts made to contact its lawyer Jimi Oduba proved abortive and sought an adjournment. The matter was then adjourned to 4/5/98. On 4/5/98, Mr. Idris represented the Respondent in court.
Jimi Oduba S.A.N. was in court and he told the court he has not been briefed. The case was then adjourned today for hearing. Today learned counsel Mr. Faji says he has just been briefed. It is my candid view that the Respondent is not prepared to defend this suit. I will therefore grant no adjournment in the matter. I have read the summons and affidavit in support and listened to the arguments of Mr. Atoyebi. I agree that all the facts deposed to in the affidavit in support have not been discloses or contradicted by the Respondent and I believe them. Accordingly, leave is hereby granted to the applicant to enforce the arbitral award as itemized in para. 16 of the affidavit in support with costs assessed at N2,000.00”
Against the above ruling of the lower court, the Defendant has appealed. In the appellant’s brief, two issues were formulated for determination but I accept that the issue formulated by the respondent captures the true essence of this appeal. The issue reads:
“Did the learned trial judge exercise his discretion wrongly by refusing to grant the appellant’s 3rd and consecutive request for adjournment to file a counter-affidavit in the matter and/or to enable them reply to the submission of Respondent’s counsel in the circumstances of this case and did the said refusal constitute a denial of fair hearing and/or occasion a miscarriage of justice to the Appellant?”
The issue raised in this appeal touches the exercise of the discretion of a Judge to grant or refuse an adjournment and the correct procedure to be followed. In Odusote v. Odusote (1971) All N.L.R. 221, the Supreme Court per Udoma J.S.C. observed:
“The question of adjournment is a matter in the discretion of the court concerned and must depend on the facts and circumstances of each case. For in matters of discretion, no one case can be authority for another, and the court cannot be bound by a previous decision to exercise its discretion in a particular way, because that would be in effect putting an end to the discretion.”
I have earlier in this ruling reproduced the relevant court notes of the Court. On 27/4/98, when the matter was first mentioned, the defendant by its representative sought for and got an adjournment to 4/5/98 on the excuse that it had not briefed its counsel, Mr. Jimi Oduba S.A.N. On 4/5/98, Mr. Jimi Oduba for no apparent reason showed up in court to say that he had not been briefed. The court again adjourned the matter to 27/5/98 when at 9.45 as it allowed Mr. Femi Atoyebi of counsel for plaintiff to move the motion. It is note-worthy that Mr. Nuhu Idris, the defendant’s representative was in court when the court allowed Mr. Femi Atoyebi to move his application. Mr. Nuhu Idris did not ask for any adjournment nor after any excuse. After Mr. Femi Atoyebi had concluded his argument, Mr. Yinka Raji, Legal Practitioner appeared for the defendant to ask for an adjournment.
I get the impression that the defendant had not manifested the requisite disposition to pursue the matter before the lower court diligently. I think it is wrong and tardy of a party to proceedings to employ tactics to delay the expeditious disposal of cases. In any case, the court has a duty to insist that parties must get on with their cases or have it dismissed. It is alarming the extent of congestion we have in our courts. Justice must be done in our courts but justice delayed is justice denied. In Solanke v. Ajibola (1968) 1 All N.L.R. 46 at 54, the Supreme Court observed:
“We must say clearly and firmly that we do not consider that a judge is obliged to grant an adjournment solely because counsel on each side asks for one. That is a factor certainly to be taken into consideration but a judge must also bear in mind the necessity for ensuring speedy justice to the contesting litigants and he must also bear in mind that by adjourning a case on a day fixed for hearing, it means further delay to other litigants who might otherwise have had their cases heard then. We would moreover, add that it is sometimes, in our view, little less than scandalous that delays to a case are caused by the greater number of adjournments that on records to us have occurred in simple and straight forward cases.”
The above statement was made by the Supreme Court over thirty years ago. Since then situation has worsened. Cases needlessly drag because parties and their counsel now employ the court, an institution set up to deliver justice, as a vehicle to stall the realization of the rights of their adversaries which happen to be tied up in litigation. No civilized system of court ought to accept the practice. I am not unmindful of the observation of the Supreme Court per Olatawura J.S.C. in Ceekay Traders Ltd. v. General Motors Co., Ltd., (1992) 2 N.W.L.R. (Pt.222) 132 at 162 that:
“We must balance the need not to delay justice with an important requisite in the administration of justice – non-denial of justice by not refusing adjournment where compensation by way of cost will be adequate and just. Delay of justice in bad, but denial of justice is worse and outrageous. The denial inflicts pain, grief, suffering and untold hardship on those who rely on impartial administration of justice. It is for this reason that when a case is not fought and heard on merits, the order to be made must be one that does not shut out a party permanently from obtaining justice.”
See also the news of Belgore J.S.C. in Salu v. Egeibon (1994) 6 N.W.L.R. (Pt.348) 23 at 43.
The opinion of the Supreme Court above was not intended as approbation of the practice of adjourning matters in undeserving cases. It is an effort in emphasizing the nature of the discretion involved in the matter. There are obviously instances when a prudent exercise of discretion must dictate in a particular instance that the matter be adjourned. The court must in each case consider what is just in the circumstance. No further authority is needed on the point than Order XXXVI rule 1 of the Federal High Court (Civil Procedure) Rules, 1976 which is applicable. The rule provides.
“The court may postpone the hearing of any cause as being satisfied that the postponement is likely to have the effect of better ensuring the hearing and determination of the questions between the parties on the merits and is not made for the purpose of more delay. The postponement may be made on such terms as to come seem just.” (Underlining mine).
Thus, the guiding approach is that adjournments are not to be granted for the purpose of mere delay.
Having said the above, I must say that the lower court in this case employed the wrong procedure. When Mr. Yinka Faji, learned counsel for the defendant made the request for an adjournment, the lower court should first have refused the adjournment and left counsel with his options. Mr. Faji might have elected to deliver his argument in opposition to plaintiff’s counsel’s argument. Rather than do this, the lower court in the same ruling refusing the request for adjournment awarded to the plaintiffs its claim. The facts in this case are similar to those in Ilona v. Dei (1971) 1 All L.R. 8. In that case, learned counsel for plaintiff had asked for adjournment in a case fixed for hearing. The trial court proceeded to dismiss the suit without first ruling on the application for adjournment and leaving counsel with his options. The Supreme Court said on the point at page 11:-
“This is a case in which the record indubitably speaks for itself. It is clear that the learned trial judge did not direct his mind, nor did he exercise his discretion with respect to the application for adjournment made to him. It is obvious in the present case that the application for adjournment was not dealt with all. It was the duty of the learned trial judge before deciding to dismiss the plaintiff’s case to have disposed of the application by clearly informing the counsel for the plaintiff that the application was refused. That was not done. Instead, the learned trial judge reserved judgment which he delivered as already stated above.”
“We think the learned trial judge fell into error and left himself open to criticize by his failure to communicate to plaintiff’s counsel and indeed to record in his notes that he had refused their application for adjournment. The question whether or not to grant an adjournment is a matter in the discretion of the court. But that discretion must all times be exercised not only judicially but judiciously.”
In the instant case the trial judge clearly expressed in his ruling appealed against that he was refusing an adjournment. But without first communicating his decision to refuse an adjournment, he went on to read his final judgment. This was as bad as not recording the refusal of the adjournment sought.
Was there miscarriage of justice? It seems to me that once a trial judge has proceeded in a manner akin to shutting out a party who ought to be heard, the question whether or not there was a miscarriage becomes academic. When there is a denial of fair hearing the decision arrived at is a nullity.
See Amadi v. Aplin & Co. (1972) All NWLR 413 and Adigun v. A.G. Oyo State (1987) All N.L.R. 1. I cannot here speculate on the legal address the defence counsel would have made to the trial judge if he had first been told of the refusal of his application for adjournment; or on the effect which such an address would have had on the judge. The final address by counsel is regarded always as important. See Obode v. Olomu (1987) S.C. 154.
The conclusion I arrive at is that this appeal is meritorious. It is allowed. The judgment of Jinadu J. including the award of costs given on 27/5/98 is set aside. It is ordered that the originating summons be heard de novo before another judge of the Federal High Court, Lagos. The appellant is entitled to costs which I fix at N5,000.00
Other Citations: (2000)LCN/0724(CA)