Legalpedia Citation: (2023-08) Legalpedia 65475 (CA)

In the Court of Appeal

Holden At Abuja

Thu Aug 10, 2023

Suit Number: CA/MK/EPT/HR/BN/02/2023

CORAM

Muhammed Lawal Shuaibu JCA

Habeeb Adewale Olumuyiwa Abiru JCA

Abdul-Azeez Waziri JCA

PARTIES

ALL PROGRESSIVE CONGRESS

APPELLANTS

1. MZONDU BEM BENJAMIN
2. PEOPLES DEMOCRATIC PARTY (PDP)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
4. TARKIGHIR

RESPONDENTS

AREA(S) OF LAW

APPEAL, CONSTITUTIONAL LAW, DOCUMENTS, ELECTION, PRACTICE AND PROCEDURE

SUMMARY OF FACTS

Hearing in Petition No: EPT/BN/HR/04/2023 commenced on the 10th day of June, 2023 when the petitioners now 1st and 2nd Respondent fielded their lone witness (PW1) and closed their case. The petition was then adjourned to 14/6/2023 for defence, with the Tribunal admonishing all the Respondents, each of whom had a lone witness to come ready for their defence.

On 14/6/2023, the 3rd Respondent herein who was the 1st Respondent at the Tribunal informed the Tribunal that it shall be calling no witness and rested its case on that of the petitioners, and closed its case.

​The 4th Respondent who was the 2nd Respondent at the Tribunal pleaded for another adjournment on the ground that there had been a mix-up and the hearing of the petition was then adjourned to the 15th June, 2023 for defence by the 2nd and 3rd Respondents with a caveat that the adjournment is the last, the parties having agreed to abridge their days to present their case to one day for both parties. On the said 15th June, 2023, the Appellant and the 4th Respondent applied for yet another adjournment and when it was refused, the 4th Respondent then took the witness stand, and testified for himself as (RW1) and closed his case. It was after that the Appellant (3rd Respondent at the Tribunal) sought for yet another adjournment which was opposed by the 1st and 2nd Respondents

The Tribunal refused the application for adjournment. ​Dissatisfied with the decision of the tribunal, Appellant approached this Court vide a Notice of Appeal.

 

HELD

Appeal dismissed

 

ISSUES

Whether the Tribunal’s refusal to grant the Appellant’s application for adjournment amounts to a denial of fair hearing or of equal opportunity?

RATIONES DECIDENDI

REPLY BRIEF – PURPOSE OF A REPLY BRIEF

By the provisions of Order 19 Rule 5 (1) of the Court of Appeal Rules 2021, the only purpose for which a reply brief should be filed by an Appellant is to deal with new points arising from the Respondent’s brief. An Appellant’s Reply brief cannot be used to extend the scope of the Appellants’ brief or used to raise an objection. SeeDADA V. DOSUNMU (2006) 18 NWLR (PRT.1010) 134 AND NLOGA V. BAGADAM (2010) 3 NWLR V. (PRT 1182) 517. InA.C.B LTD V. APUGO (1995) 6 NWLR (PRT.399) 65, it was held that where an Appellant fails to comply with the rules on reply brief such reply brief will be discountenanced.  – Per M. L. Shuaibu, JCA

COURTS – DISCRETIONARY POWER OF COURTS TO GRANT AN ADJOURNMENT

It is to be borne in mind that the power of a Court to grant an adjournment is a typical exercise of discretionary power which must at all times be exercised not only judicially but also judiciously. MOBIL OIL (NIG.) LTD V. NABSONS LTD (1995) LPELR 1885 (SC). It is also trite that granting or refusal of an application for adjournment rests completely with the Tribunal or the Court before which the counsel appears.

Furthermore, where an application for adjournment is made to a Court, the Court should bear in mind the requirement of justice to both parties. Thus, the determinants are that both parties should be heard and at the same time, a case should not be unduly delayed.

The grant of an adjournment being a discretionary power of Court means that the applicant for an adjournment must place before the Court sufficient material containing compelling grounds and circumstances, to enable it exercise the discretion in his favour otherwise, the application would be refused. – Per M. L. Shuaibu, JCA

 

COURTS – CONDUCT OF COURTS IN GRANTING ADJOURNMENT

In OMEGA V. STATE (1964) LPELR – 25229 (SC) PER COKER, JSC (P. 11, PARAS’ C – D) ”We cannot subscribe to the view that a Court of trial should adjourn the hearing at the instance of any party (be it the accused or the prosecution) when it is manifest that the application for such adjournment was made only for the purpose of delaying the proceedings.” – Per M. L. Shuaibu, JCA

FAIR HEARING – CONDUCT OF COURTS IN RELATION TO THE RIGHT TO FAIR HEARING

It is however pertinent to note that the right to fair hearing are such that must be exercised within the confines of law, regulatory and procedural provisions applicable to a particular case. Thus, where a party as in this case, indulges in dilatory tactics, it cannot be said that such a party seeks fair hearing. Rather, the party is using that process to defeat justice being done to the opposing party. In such act of filibustering, the Tribunal should be firm in refusing unnecessary application for adjournments. See UKWUYOK V. OGBULU (2019) 15 NWLR (PRT 1695) 308 AT 327. – Per M. L. Shuaibu, JCA

 

ADUDICATION – CONDUCT OF PARTIES IN ADJUDICATION

If a man, either in express terms or by conduct makes representation to another to the existence of a state of facts which he intends to be acted upon in that way, in the belief of the existence of such a state of facts, to the damage of him who so believes and acts, he is estopped from denying the existence of such state of facts. See U.B.A. PLC V. COMRADE CYCLE LTD & ANOR (2013) LPELR – 20737 (CA). In C .B. DEV. CO LTD V. MIN. E. H. U. D. (2019) 5 NWLR (PRT 1666) 484 AT 503, the apex Court has held that the principle of estoppel by conduct is based on the public policy that there must be an end to litigation. Thus, its aim is not only to hold a party to his undertaking that he will no longer insist on his right but also not to allow a person benefit from his prevarication. – Per M. L. Shuaibu, JCA

 

ADJOURNMENT – CONDUCT OF COURTS IN EXERCISING THEIR DISCRETIONARY RIGHTS TO GRANT ADJOURNMENTS

With respect to Counsel to the Appellant, his contention proceeded from a totally wrong premise; that the Appellant was entitled to the adjournment sought because the lower Court had granted the other parties an adjournment when they sought for one. The law is that no party has a right to an adjournment. Adjournment is not granted gratis, every adjournment must be earned by the party requesting for it — Olori Motors & Co Ltd Vs Union Bank of Nigeria Plc (1998) 6 NWLR (Pt 554) 493, Uzowulu Vs Akpor (2015) All FWLR (Pt 763) 1954. A Court does not grant adjournment simply because a party asks for it and there is nothing like an automatic grant of a request for adjournment — Solanke Vs Ajibola (1968) SC-NLR 92, Anyafulu Vs Agazie (2004) LPELR 5944(CA), The City Waiters Ltd Vs Adio (2015) All FWLR (795) 368.

​The law, by a long line of cases, is, and has always been, that adjournment of cases fixed for hearing are not obtainable as a matter of course or as of right, but may be granted or refused at the discretion of the Court — African Continental Bank Ltd Vs Agbayim (1960) SCNLR 57, Ilona vs Dei (1971) LPELR 1495(SC), Odusote vs Odusote (1971) All NLR 219, Alalade Vs Accountants’ Disciplinary Tribunal of the Institute of Chartered Accountants of Nigeria (1975) Obomhense Vs Erhahon (1993) 7 SCNJ 479, Karibi Whyte, JSC, reiterated that “the grant of adjournment in a cause is a matter entirely within the discretionary jurisdiction of the Court which it can exercise in accordance with the particular facts and circumstances of the case.” In Salu Vs Egeibon (1994) 6 NWLR 348) 23, Adio, JSC, reaffirmed that “the grant or refusal of an application for an adjournment involves an exercise of judicial discretion.” – Per H. A. O. Abiru, JCA

 

DISCRETION – CONDUCT OF COURTS IN EXERCISE OF THEIR DISCRETIONS

It is elementary that discretion is a very fluid situation and when a Court is invited to exercise its discretion one way or the other, the Court has to take cognizance of the very facts of the case before it — Bello Vs Yakubu (2008) 14 NWLR (PT.1106) 104. A Court must always exercise its discretion only on the basis of the materials placed before it and on no extraneous considerations — CFAO (Nig) Plc Vs Sanu (2008) 15 NWLR (Pt 1109) 1. Thus, the Courts have consistently held that an applicant who seeks the exercise of a Court’s discretion in his favour has a duty to place before the Court sufficient materials to satisfy the Court that he is entitled to a favourable exercise of the Court’s discretion — Alamieyeseigha Vs Federal Republic of Nigeria (2006) 16 NWLR (Pt 1104) 1, In Re: NDIC (Liquidator of Alpha Merchant Bank Plc); Adesanya vs Lawal (2007) (Pt 1032) 54 and SCOA (Nig) Plc vs Omatshola (2009) 11 NWLR (Pt 1151) 106.

In Nwadiogbu Vs Anambra/lmo River Basin Development Authority (2010) 19 (Pt 1226) 364, the Supreme Court stated at pages 381-382 that;

“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.” – Per H. A. O. Abiru, JCA.

COURTS – WHEN A COURT EXERCISES DISCRETION JUDICIALLY AND JUDICIOUSLY

The Courts have held that where a Court refuses to exercise its discretion in favour of an applicant on the ground of insufficient materials, it is a legitimate reason for refusal of exercise of discretion — Williams Vs Mokwe (2005) 14 NWLR (Pt 945) 249, Federal Housing Authority Vs Kalejaiye (2010) 19 NWLR (P: 1226) 147, Olatubosun Vs Texaco (Nig) Plc (2012) 14 NWLR (Pt 1319) 200, Nigerian Laboratory Corporation Vs Pacific Merchant Bank Ltd (2012) 15 NWLR (Pt 1324) 505.

The law is that where a Court gives legitimate, sufficient, and correct reasons for exercise of discretion, and that the exercise is not based on its whims and fancies, it is presumed that it acted judicially and judiciously – Divine Ideas Ltd Vs Umoru (2007) LPELR 9009(CA), Nwaenang vs Ndarake (2013) LPELR 20720(C.A). To succeed on their complaint in this appeal therefore, the onus was on the Appellant to show that the reasons given by the lower Court failing to exercise its discretion in favour of their request for adjournment were not appropriate on the peculiar {acts and circumstances of this case and that the exercise of discretion by the lower Court was wrongful and requires the interference of this Court — Chijoke Vs Soetan (2006) 10 NWLR (Pt 990) 179, Ikenta Best (Nig) Ltd Vs Attorney General, Rivers State (2008) 6 1084) 612. – Per H. A. O. Abiru, JCA .

 

FAIR HEARING – DUTY OF THE COURT TO CREATE AN ATMOSPHERE FOR PARTIES TO ENJOY THEIR RIGHTS TO FAIR HEARING

The allusion of the Appellant to the principle of fair hearing does not help its case. The law is that the right to fair hearing is not absolute. The concept of fair hearing postulates that it is the duty of a Court to create a conducive environment and atmosphere for a party to enjoy his right to fair hearing, but it does not say that it is part of the duty of the Court to make sure that the party takes advantage of the atmosphere or environment so created to exercise his right to fair hearing. It is not part of the business of a Court to compel a party to exercise his right to fair hearing. Where a party fails, refuses or neglects to take advantage of or utilize the environment created by a Court to exercise his right of fair hearing, he cannot turn around to complain of lack of fair hearing — Independent National Electoral Commission Vs Musa (2003) 3 NWLR (Pt 806) 72, Dantata Vs Mohammed (2012) 8 NWLR (Pt 1302) 366, National Films & Video Censors Board Vs Adegboyega (2012) 10 NWLR (Pt 1307) 45. Ezechukwu Vs Onwuka (2016) LPELR 2605 (SC), Eze Vs Federal Republic of Nigeria (2017) LPELR 42097(SC), Darma vs Eco Bank Plc (2017) LPELR 41663(SC). – Per H. A. O. Abiru, JCA .

CASES CITED

STATUTES REFERRED TO

Court of Appeal Rules 2021

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