CORAM

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JUMMAI HANNATU SANKEY, JUSTICE SUPREME COURT

ADEMOLA ADETOKUNBO

UDO UDOMA

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PARTIES

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ABIODUN ADENIKE ODUSOTE APPELLANTS

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OLAITAN OLANIJI ODUSOTE RESPONDENTS

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AREA(S) OF LAW

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SUMMARY OF FACTS

The Respondent herein as Petitioner, filed in the High Court of Ibadan, a petition for the dissolution of his marriage with the Appellant, who was therein Respondent. When the petition came up for hearing, learned counsel for the Appellant, Mr. Aderemi sought and obtained leave to withdraw from the case as, according to him, he was instructed by the Appellant not to contest the petition. The court then proceeded with the hearing of the petition, and granted the Respondent a decree nisi of divorce. An order for the custody of the children of the marriage was also made in favour of the Respondent. The Appellant shortly thereafter appealed to the Western State Court of Appeal against the decision. When the appeal came up for the first time for hearing. Mr. Aderemi again appeared for the appellant but this time, he informed the court that he was not in possession of the record of appeal and therefore was unable to go on with the appeal. He said that Chief Williams who, apparently was to lead him in the appeal, was in possession of the record of appeal and had not then arrived; that after receiving the hearing notice which was served on him and Chief Williams, he contacted Chief Williams, who was aware that the appeal was coming up for hearing that morning; and that subsequently thereafter, all efforts on his part to contact Chief Williams had proved abortive. He thereupon asked for adjournment, as up to then he did not know when Chief Williams was likely to arrive. The application for adjournment was opposed by the learned counsel for the respondent after which the Court held that the case will go on in view of the fact that no sufficient reasons have been adduced we refuse the application for adjournment. Mr. Aderemi then sought leave to withdraw from the appeal. He pointed out that he could not go on since he was not in possession of the record of appeal. Leave was accordingly granted and he withdrew from the case. Then at the request of the court, the name of the Appellant was called out three times. There was no answer. It was therefore recorded that the appellant was not in court and the appeal was dismissed. Consequent upon the dismissal of the appeal, the Appellant has lodged this appeal complaining that the learned judges of the appeal were in error in law and exercised their discretion injudiciously in dismissing the appeal summarily.

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HELD

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Appeal Allowed

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ISSUES

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Not Available

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RATIONES DECIDENDI

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QUESTION OF ADJOURNMENT: WHETHER THE QUESTION OF ADJOURNMENT IS A DISCRETIONARY ISSUE

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“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” per Kay L.J. in Jenkins v. Bushby (1891) 1 Ch. 484 at p. 495.”

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JUDICIAL DISCRETION – MODE OF EXERCISE OF JUDICIAL DISCRETION

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“It is a well-established principle of law that all judicial discretions must be exercised according to common sense and according to justice, and, if there is any miscarriage of justice in the exercise of such discretion, it is within the competence of a court of appeal to have it reviewed. On the question of the exercise of discretion in granting application for adjournment, it is pertinent to quote a passage in the judgement of Lord Wright L.J. in Evans v. Bartlam(supra), to which our attention was drawn by the learned counsel for the appellant. In his judgement Lord Wright said at page 487:
“A judge’s order fixing the date of trial or refusing to grant an adjournment is a typical exercise of purely discretionary powers, and would be interfered with by the Court of Appeal only in exceptional cases, yet it may be reviewed by the Court of Appeal. Thus in Maxwell v. Keun ([1928] 1 K.B. 645) the Court of Appeal reversed the trial judge’s order refusing to the plaintiff an adjournment. That was a pure matter of discretion on the facts. Atkin L.J. said (at p. 653):- ‘I quite agree the Court of Appeal ought to be very slow indeed to interfere with the discretion of the learned judge on such a question as an adjournment of a trial, and it very seldom does so but on the other hand, if it appears that the result of the order made below is to defeat the rights of the parties altogether, and to do that which the Court of Appeal is satisfied would be an injustice to one or other of the parties, then the court has power to review such an order, and it is to my mind, its duty to do so’.”

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CASES CITED

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Not Available

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STATUTES REFERRED TO

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Not Available|

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