CORAM
PARTIES
DIAMOND BANK PLC APPELLANTS
PROFESSOR N.O.HOLLIST (On behalf of the Administrators of the Estate of William Samson Hollist and Theophilus Gbemisola Hollist (Deceased)BABATUNDE DA’SILVAOn behalf of the beneficiaries of the Estate of William Samson Hollist and Theophilus Gbemisola Hollist (Deceased)BASSET NIGERIA LIMITEDISANG UDO AKAGHA (Trading under the name and style of Sam Udo Akagha & Partners)THE REGISTRAR OF TITLES, LANDS REGISTRY, ALAUSA, IKEJA RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
The 1st &2nd Respondents were the Claimants at the trial Court against the Defendants of whom, the present 3rd, 4th, and 5th Respondents herein were Defendants and the Appellant herein was the 2nd Defendant. The Claimants sought for the determination of the following questions:
Whether by virtue of the breach of covenant contained in the Head Lease dated 1st October 1959, i.e. Clauses 2(1), 3 and 6(b), by the 1st Defendant, an Order of forfeiture ought not to be granted against the 1st Defendant?
If the answer to (i) above is in the affirmative, then has the 1st Defendant any residue of the Lease or interest in the property to assign to the 2nd Defendant herein?
Whether by reason of paragraphs (i) and (ii) above, the purported assignment of the property to the 2nd Defendant ought not to be declared null and void?
The Appellant upon receipt of the Originating Summons filed another Originating Summons with the same suit number. The 1st and 2nd Respondents were prompted to file a preliminary objection on the premise that the process of the court has been abused. The Appellant’s reply to the Objection was filed out of time without recourse to the Court for extension of time or reasons to regularize same. The Counsel to the Appellant rather sought for an adjournment to afford him time to regularize his response to the preliminary objection. The Court denied his oral application for adjournment and ordered the 1st and 2nd Respondents to argue their preliminary objection. The trial judge ruled and upheld the preliminary objection of the 1st and 2nd Respondents by holding that the Appellant’s Originating Summons is an abuse of court process and same was dismissed. Dissatisfied with the decision of the court, the Appellant appealed to the Court of Appeal.
HELD
Appeal Dismissed
ISSUES
Whether the Appellant’s constitutionally guaranteed right of fair hearing was not breached when the Judge of the lower court refused the Appellant’s counsel’s request for an adjournment to enable him regularise his reply to the preliminary objection thereby shutting him out of the hearing of the preliminary objection.”
RATIONES DECIDENDI
PARTIES TO AN ACTION- RATIONALE FOR MAKING PERSONS PARTIES TO AN ACTION.
“It is trite law that persons whose names appear on the record as plaintiffs or defendants are parties. See the dictum of Oputa JSC in Green V. Green (supra) which has become the locus classicus on the issue arising in respect of parties to a suit. One of the reasons for making a person a party to an action is to make the person bound by the result of the action or benefit therein.”
PARTIES TO AN ACTION- WHO IS A DESIRABLE PARTY?
“In the case of Gani-Tarzan Marine Enterprises Limited V. Caravelle Resources & Investment Ltd. & Anor. [2011] LPELR-4185 (CA), which followed the decision in Green v. Green (supra), Per Saulawa, JCA at pages 17-18, paras E-B held inter alia thus:
“…Desirable parties are those who have an interest in the suit or may be affected by the result thereof…”
See also Amonu V. Rapheal Tuck & Sons [1956] 1 WN 3571; Settlement Corporation V. Hoshschild (NO. 2) [1959] 1 WLR 1664.”
MISJOINDER OF PARTIES- EFFECT OF MISJOINDER OF PARTIES TO THE PROCEEDINGS
“The misjoinder of parties will not be fatal to the proceedings as long as there is a cause of action and other persons as parties in the suit. See C.R.S.N. CORP. v. ONI [1995] 1 NWLR (Pt. 371) 270; J.F. Oladeinde & Anor. V. I.O. Oduwole [1962] WNLR 41; J.S. Ekpere & Ors. V. Aforije & Anor. [1972] 1 ALL NLR (Pt. 1) 220; Anyaduba & Anor. V NRTC Ltd. [1992] 5 NWLR (Pt. 243) 525 @ 656. The Supreme Court in the case of Sapo V. Sunmonu [2010] 11 NWLR (Pt. 1205) 374; [2010] LPELR-3015 Per Ogbuagbu JSC at pp 22-23, paras F-B held:
“It need be borne in mind always and this is also settled that no cause or matter, shall be defeated by reason of the misjoinder or non-joinder of parties, and the court may in every cause or matter, deal with the matter in controversy so far as regards the rights and interest of the parties actually before it.”
It is also the law that an issue of misjoinder of a party cannot oust the jurisdiction of the court. See Beleivers Fisheries Dredging & Anor. v. U.T.B. Trustees Ltd. [2010] LPELR-3864(CA).”
PROLIFERATION OF ISSUES FOR DETERMINATION- ATTITUDE OF COURTS TO PROLIFERATION OF ISSUES FOR DETERMINATION
“The law is trite that a party is precluded from formulating more than one issue out of a ground of appeal, though two or more ground of appeal can be combined in formulating an issue for determination. In Amodu V. The Commandant Police College Maiduguri [2009] 15 NWLR (pt. 1163) 75; [2009] LPELR-467, pp 10-11, paras. E-C, Per Muntaka-Coomassie, JSC held:
“It is settled law that a party is not allowed to formulate more than one issue for determination out of a ground of appeal even though he can combine two or more ground of appeal in formulating an issue for determination. This is the principle against proliferation of issues for determination. In the instant case learned counsel has submitted two issues out of the single ground of appeal for determination thereby rendering the issues incompetent…”
See also Orji V. The State [2008] 4 SCNJ 85; Nwankwo V. Yar’adua [2010] 12 NWLR (Pt. 1209) 518; Agu V. Ikewibe [1991] 3 NWLR (PT. 130) 382 at 401; Ayisa V. Akanji & 5 ORS. [1995] 7 SCNJ 245; Gwar V. Adole [2003] FWLR (Pt. 808) 747 at 760. Issues for determination so formulated by counsel must not out-number the grounds of appeal filed by the Appellant.”
FAIR HEARING- RATIONALE AND PRINCIPLE OF FAIR HEARING
“The purpose of fair hearing under the rule of law is to afford all parties to a suit the opportunity of being heard on the merit before the court finally determines the suit based on facts and evidence before it. See Otapo V. Sunmonu [1987] 5 S.C. 228; F.C.S.C v. Laoye [1989] 2 NWLR (pt. 106) 652; Adedeji V. Police Commission [1967] 1 ALL NLR 67; New Nigeria Bank Ltd. V. Obevudiri [1986] 3 NWLR (pt. 29) 387.
The principle is hinged on the twin pillar of the rules of natural justice which must be duly observed. They are: (i) Audi Alteram Partem (hear the other side) and (ii) Nemo judex in causa sua (no one should be a judge in his own cause, the rule against bias). Failure of any court of law or tribunal to observe any of these two rules renders the proceedings and decisions a nullity. See Bamgboye v. UNILORIN [1999] 10 NWLR (pt. 622) 290; Akinfe V. The State [1988] 3 NWLR (pt. 85) 729 at 753. The test of fair hearing is the impression a reasonable person who was present at the trial would have whether from his observation justice has been done in the case. See Okafor v. A.G. Anambra [1991] 6 NWLR (pt. 200) 659.
There is no doubt the crux of section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) which is to the effect that in all trials, the person against whom a complaint is laid must be heard in compliance with the principle of audi alteram partem.”
PRINCIPLE OF FAIR HEARING – WHAT AMOUNTS TO ADEQUATE TIME AND FACILITIES WHICH MUST BE AFFORDED TO A DEFENDANT IN A MATTER BEFORE A COURT?
“To this extent, the law is settled beyond dispute that in order for fair hearing to have been adhered to, adequate time and facilities must be given to parties. The Supreme Court in Etsako West Local Government Council v. Christopher [2014] LPELR-23023 held on what amounts to adequate time and facilities which must be afforded to a defendant, to be heard before a court. Per Muhammad, JSC at pages 18-19, paras C-B held thus:
“What amounts to adequate time and facilities which must be afforded to a defendant in a matter before a court of law, are matters already decided by the Constitution of the Federal Republic of Nigeria, 1999 (as amended); Court Rules and decided cases, for instance, [i] the Constitution in section 36 therefore, provides as follows:
“[1] In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.
[2] Without prejudice to the foregoing provisions of this section a law shall not be invalidated by reason only that it confers on any government or authority power to determine questions arising in the administration of a law that affects or may affect the civil rights and obligations of any person if such law – [a] provides for an opportunity for the person whose rights and obligations may be affected to make representation to the administering authority before that authority makes decision affecting that person.” (Underlining mine).
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RIGHT TO FAIR HEARING- RESTRICTION AS TO THE APPLICATION OF THE RIGHT TO FAIR HEARING.
“If a party has no right to be heard in respect of a court process because the court processes does not comply with the Rules of court, the party cannot be heard to invoke the principles of fair hearing. See Sosoyan V Onadeko (supra); Military Gov. Of Lagos State V. Adeyiga (supra).”
ADJOURNMENT- DISCRETIONARY RIGHT OF THE COURT TO GRANT AN ADJOURNMENT
“The grant of adjournment falls within the ambit of the discretion in Pam V. Mohammed [2008] 16 NWLR (Pt. 1112) 1 SC, the Apex Court held that in its exercise of the discretionary power, ‘the court of law must act judiciously and judicially.’ The court must balance its discretionary power to grant or refuse an adjournment with its duty to endeavour to give litigants the opportunity of obtaining substantial justice. See also University Of Lagos V. Aigoro [1985] 1 NWLR (pt. 1) 142; Ogundoyin V. Adeyemi (supra).”
EXERCISE OF JUDICIAL DISCRETION – WHETHER THE PRINCIPLE OF JUDICIAL PRECEDENT IS APPLICABLE IN THE EXERCISE OF DISCRETIONARY RIGHT OF THE COURT
“A point to note is that in exercising discretion, no case can be authority for the other. Each case has its peculiar facts which cannot be the same with the others. See Nwadiogbu V. A.I.R.B.D.A. [2010] 19 NWLR (pt. 1226) 364; Okeke V. Oroh [1999] 6 NWLR (pt. 606) 175; Odusote V. Odusote [1971] 1 NWLR 228.”
JUDICIAL DISCRETION- MEANING OF JUDICIAL DISCRETION
“What then is judicial discretion? The Supreme Court, Per MOHAMMED, JSC in the case of Olumegbon & Ors. V. Kareem & Ors. [2002] 5 S.C. (pt. 1) 101, p. 10, paras B-C defined judicial discretion as follows:
“Judicial discretion would mean that they were to act according to the rules of reason and justice, not according to private opinion and according to law and not humour.”
ADJOURNMENT- DUTY OF COURT IN EXERCISING ITS DISCRETION IN ALLOWING OR REFUSING AN APPLICATION FOR ADJOURNMENT.
“It is trite that the adjournment of cases fixed for hearing is not obtained as a matter of course. See Alsthom S.A. V. Saraki [2005] 3 NWLR (Pt. 911) 208; Okeke V. Oruh [1999] 6 NWLR (Pt. 606) 175 at 188. In essence, what the court is required to do is to consider the totality of the conduct of the parties with regard to the proceedings of the court. See Echaka Cattle Ranch Ltd. v. N.A.C.B. LTD. [1998] 4 NWLR (Pt. 547) 526.
One of the basis for the exercise of the court’s discretion in allowing or refusing adjournment is to save the time litigants spent in court and to minimise costs.
In the case of Ndu V. State [1990] 11-12 S.C. 122; [1990] LPELR-1975, Per Akpata, JSC (as he then was) at p. 21, paras E-G held thus:
“A trial court in exercising its discretion as to whether to grant an adjournment always bears in mind that it is the duty of the court to minimise costs of litigation and to see to it that justice is not unnecessarily delayed. The court will refuse an application by either party to an adjournment of the hearing if it is of the opinion that the application was made only for purposes of delaying the proceedings.”
In the same case, at page 45, paras C-F, NNAEMEKA-AGU, JSC held:
“But it is fundamental in our system that the law will never protect any person against his own deliberate default or misdeed. Once it is abundantly clear, as was the case here, that the application to adjourn the case in order to enable counsel prepare and deliver his address was made mala fide, or simply, in view of so many concessions and indulgence already granted, to deliberately hold the court to ransom, the same party cannot be heard to successfully complain.”
ABUSE OF COURT PROCESS- MEANING OF ABUSE OF COURT PROCESS
“Abuse of court process generally means an improper use of the process of court. It includes multiplicity of actions between the same parties and or their privies on the same matter. It is also the irregular use of court’s process or the use of same mala fide for the purpose of the irritation and annoyance of the other party. See PDP v. Lawal & Ors [2012] LPELR-7972(CA); Nwadike V. Ibekwe [1987] 11-12 SCNJ 72; Dumuye V. Idiazo [1978] 2 SC 1 at 7-8; Inakoju V. Adeleke [2007] 4 NWLR (pt. 1025) 423; Amaechi V. INEC [2008] 5 NWLR (pt. 1080) 227; Dipcharima & Anor. V. Ali & Anor. [1974] 1 ALL NLR (pt. 2) 420 at 422; Okafor V. A.G. Anambra [1991] 6 NWLR (pt. 200) 659 (SC).”
RIGHT TO BE HEARD – LIMIT TO THE RIGHT OF PARTIES TO BE HEARD BY A COURT OF LAW.
“The opportunity of hearing to be accorded parties in a suit is not without limit. It is wrong for parties to remain in perpetual disobedience to the court, elect not to do that which is expected to be done within limited time and seek endless adjournment to make up or regularise his neglected act.”
CASES CITED
Not Available|
STATUTES REFERRED TO
Constitution of the Federal Republic of Nigeria, 1999 (as amended)|High Court Law, Cap. H3 Laws of Lagos State 2003|High Court of Lagos State (Civil Procedure) Rules 2004,|