Victoria Anisiubu V Anthony Emodi (1975)

LawGlobal-Hub Lead Judgment Report

O. ELIAS, C.J.N.

This is an appeal from an order of Oputa, J., made on February 1, 1974, in Suit No. 0/186/71 at the Onitsha High Court dismissing the action filed by the plaintiff. The plaintiff’s claims against the defendant are as follows:

“(1) A declaration that the lease dated 10th February, 1958 between Charles Emodi and Martin Anisiuba has not been determined; OR alternatively a specific performance of the said Agreement.

(ii)200pounds damages for trespass on the said property to wit, two stores and three shops together with a strip of land between the shops and the New Market Road as described above.

(iii)A perpetual injunction to restrain the defendant his servants, agents or assigns from further acts of trespass on the said property.”

The order made by the learned trial Judge is as follows:

“Plaintiff in person. She says she has a lawyer who has not appeared. Plaintiff says she cannot go on without her lawyer. Counsel should endeavour to attend court to prosecute their cases. Failure to appear constitutes disrespect to the court and a dereliction of counsel’s duty to his client. The court cannot wait for counsel to appear when as he pleases.

Case is dismissed. Cost assessed at N50.”

What had happened may be summarized as follows. The plaintiff brought a motion, supported by an affidavit, on November 30, 1971, for an interim injunction to restrain the defendant from alienating the property in dispute consisting of two stores and three shops at No. 4 Market Road, Onitsha, and from reconstructing the house. An interim order to this effect was granted pending the hearing of the motion for an interim injunction. On December 13, 1971, both parties and their respective counsel were present when counsel for the plaintiff said that there was a move towards a settlement, and both parties asked for an adjournment to January 31, 1972, for mention and report of the terms of settlement.

On July 5, 1972, when it would appear that nothing had come out of the suggested settlement, the court made an order that the plaintiff should within 60 days file her Statement of Claim and plan and serve the same on the defendant who should also file his Statement of Defence and plan and, if necessary, serve the same on the plaintiff within the same period of 60 days. On July 7, 1972, the order of interim injunction made by Egbuna, J., on November 30, 1971, was struck out and the order of injunction discharged when neither the plaintiff/appellant nor her counsel was present in court.

On August 19, 1972, the Statement of Claim was duly filed and the Statement of Defence was also filed on October 10, 1972. When the parties and their counsel next appeared on February 5, 1973, before Oputa, J., the case was adjourned to April 11 and 12, 1973 “for hearing”. On April 11, 1973, although the parties themselves were present in court, there was no representation by counsel on either side, and the case was again adjourned by Oputa, J., to July 2, 1973 “for mention”. On the latter date, both parties were present with their counsel but the case was again adjourned by Oputa, J., to October 16, 1973 “for hearing”. On that date, the parties were present, and so was counsel for the plaintiff, but counsel for the defendant was absent. Oputa, J.,therefore, adjourned the case to January 14, 1974 “for the general call over”. On January 14, 1974, both parties as well as counsel for the plaintiff were present but counsel for the defendant was absent. Oputa, J., again adjourned the case to February 1, 1974 for hearing. On that day, both parties and counsel for the defendant were present but counsel for the plaintiff was absent. The learned trial Judge then made the order of dismissal which we have quoted above.

Learned counsel for the plaintiff/appellant submitted that, while he would accept the chiding of him made by the learned trial Judge in his ruling, the adjournment which the plaintiff asked for should have been granted. He submitted that the learned trial Judge either gave no reason for refusing to exercise his discretion in favour of the plaintiff or, if he gave any reason at all, the reason should be reviewed by this court. In support of this submission, learned counsel referred to our decision in Solanke v. Ajibola (1968) 1 All NLR 46, especially our observation at p. 53 which reads as follows:

“Moreover, in the earlier case of Jones v. S.R. Anthracite Collieries Limited (1921) 124 LTR 462, where a Judge gave no reason for exercising his discretion in refusing an adjournment, Lord Sterndale, MR said at page 463

‘If the learned Deputy County Court Judge had refused to grant the adjournment asked for upon grounds which showed that he had considered these matters and had come to the conclusion in spite of them and thought the applicant’s conduct, or that of his advisers, had been such as to make it unreasonable for him to grant an adjournment, then we should not have interfered. But no reason appears at all as to why he did it.’