Legalpedia Electronic Citation: LER [2018]CA/L/669/2017

Suit Number: CA/L/669/2017

Areas Of Law:

Appeal, Court, Land Law, Law Of Evidence, Practice And Procedure

Summary Of Facts

The Claimant/Respondent claimed against the Defendants/Appellants a declaration that the Claimant having paid the consideration specified in the letter of Allocation Ref. No. LU/Y2/Abijo/Blk.9/PLT 266, are the rightful owners of the right of occupancy over the piece/parcel of land lying being and known as Block 9 Plot 266 Abijo GRA Scheme Lagos and perpetual injunction restraining the Defendants from interfering with the Claimants rights and enjoyment of the said right of occupancy.

The Claimant/Respondent alternatively sought an order to recover the sum of N1, 500,000 being the amount paid as purchase price to the Defendants for the piece of land lying being and known as Block 9 Plot 266 Abilo GRA Scheme, Lagos, interest on the said payment at the rate of 21.50% per annum with effect from April 2001 until complete liquidation. After exchange of pleadings, the case proceeded to trial. When the Respondent closed its case, the Appellant sought an adjournment on the date fixed for defence.

The lower court refused to grant an adjournment and proceeded to close the case for defence and thereafter adjourned the matter for address. The Appellants filed an application seeking for leave of court to reopen their case; same was not opposed by the Respondent but the court dismissed same. Dissatisfied with the lower court’s decision, the Appellants appealed against same.

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Held

Appeal Allowed

Issue For Determination

• Whether or not the refusal of the (lower) court to re-open the Defendants’ (Appellants’) case amounts to (a) denial of fair hearing.

Rationes

EXERCISE OF DISCRETION – PRINCIPLES GOVERNING THE EXERCISE OF DISCRETION

“It is settled law that in the exercise of discretion no hard and fast rule can be laid down as to the manner of the exercise of the discretion, for once that is done, the discretion of the judex is fettered. Therefore no one case can afford a precedent for another in matters of exercise of discretion. The manner of exercise of discretion depends on the diacritical circumstances of the particular case. Howbeit, the guiding principle is that the discretion being judicial must be exercised judicially and judiciously on sufficient grounds. See University Of Lagos vs. Aigoro (1985) 1 SC 265 at 271, Nneji vs. Chukwu (1988) 3 NWLR (PT 87) 184 at 199 A-B and Suleman vs. C. O. P. Plateau State (supra). PER U.A.OGAKWU,J.C.A

EXERCISE OF DISCRETION – MEANING OF EXERCISE OF DISCRETION

“An exercise of discretion is a liberty or a privilege to decide and act in accordance with what is fair and equitable under the peculiar circumstances of the particular case, guided by the spirit and principles of law. See The Owners Of The M. V. Lupex vs. Nigerian Overseas Chartering & Shipping Ltd (2003) 9 MJSC 156 at 168. In Olumegbon vs. Kareem (2002) 34 WRN 1 at 8, Mohammed, JSC stated:

“…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.”

• PER U.A.OGAKWU,J.C.A

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EXERCISE OF DISCRETION – IMPLICATION OF AN EXERCISE OF JUDICIAL AND JUDICIOUS DISCRETION

“The exercise of discretion being judicial and judicious implies that it must be judicial in the sense that it must not be capricious and must be for a reason connected with the case and judicious in the sense that it must be based on sound judgment marked by discretion, wisdom and good sense. See Eronini vs. Iheuko (1989) 3 SCNJ 13 at 141 and C. O. P. vs. Agholor (2014) LPELR (23212) 1 at 19”. PER U.A.OGAKWU,J.C.A

EXERCISE OF DISCRETION – INSTANCES WHERE AN APPELLATE COURT WILL INTERFERE WITH AN EXERCISE OF DISCRETION BY A TRIAL COURT

“It is hornbook law that a discretion properly exercised will not be lightly interfered with by an appellate court, even if the appellate court may have exercised the discretion differently. It is only where a court has exercised discretion under a wrong principle or mistake of law or under a misapprehension of the facts or took into account irrelevant or extraneous matters or excluded relevant matters thereby giving rise to injustice that an appellate court will interfere with the exercise of discretion in order to prevent injustice. See Oyekanmi vs. NEPA (2000) 12 SCNJ 75 at 95 and T. S. A. Industries Ltd vs. Kema Investments Ltd (2006) 2 NWLR (PT 964) 300”. PER U.A.OGAKWU,J.C.A

UNCHALLENGED FACTS IN AN AFFIDAVIT – HOW DO COURTS TREAT UNCHALLENGED FACTS IN AN AFFIDAVIT?

“It is trite law that unchallenged facts in an affidavit are deemed as admitted and a court can act upon them provided that the facts are not wilfully or corruptly false, incredible, and improbable or fall below the required standard of proof. See Neka B. B. B. Manufacturing Co Ltd vs. A.C.B. LTD (2004) LPELR (1982) 1 at 27-28, Tanko vs. Echendu (2010) LPELR (3135) 1 at 40, Ogoejeofo vs. Ogoejeofo (2006) LPELR (2308) 1 at 14 and FAAN vs. Wamal Express Services (Nig) Ltd (2011) LPELR (1261) 1 at 14-15. In Akiti vs. Oyekunle (2018) LPELR (43721) 1 at 7-8, Rhodes-Vivour, JSC stated:

“I must state that depositions in affidavit on material facts resolve applications in court. Where depositions on material facts in an affidavit in support of an application are not denied by the adverse party filing a counter- affidavit, such facts not denied in the affidavit in support remain the correct position and the court acts on them except they are moonshine.”

See also The Honda Place Ltd vs. Globe Motor Holdings Nig Ltd (2005) LPELR (3150) 1 at 33 and Lawson-Jack vs. SPDC (2002) 7 SC (PT II) 112”. PER U.A.OGAKWU,J.C.A

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EXERCISE OF DISCRETION- GROUND FOR INTERFERENCE BYAN APPELLATE COURT WITH AN EXERCISE OF JUDICIAL DISCRETION

“The exercise of discretion by the lower court was not a proper exercise of judicial discretion and it occasioned injustice as it shut out the Appellants from defending the matter so that a decision could be arrived at on the merits. In such circumstances, an appellate court will interfere: Oyekanmi vs. NEPA (supra) and Solanke vs. Ajibola (1968) LPELR (25527) 1 at 14-15”. PER U.A.OGAKWU,J.C.A

EXERCISE OF DISCRETION – WHEN AN APPELLATE COURT WILL INTERFERE WITH THE EXERCISE OF DISCRETION BY A TRIAL COURT

“The exercise of discretion by the lower court was capricious and was not for a reason connected with the case. It was definitely not based on sound judgment marked by wisdom and good sense. It was therefore not a judicial and judicious exercise of discretion as it had the effect of depriving the Appellants of their right to fair hearing in the determination of their civil rights and obligations as enshrined in Section 36 (1) of the 1999 Constitution. In the circumstances therefore, an appellate court will interfere to set aside the wrong exercise of discretion. See Duwin Pharmaceutical And Chemical Co. Ltd vs. Benek Pharmaceutical And Cosmetics Ltd (2008) LPELR (974) 1 at   43-44 and Gbeneyei vs. Isiayei (2014) LPELR (23216) 1 at 19.  In Ikenta Best (Nig) Ltd vs. A-G Rivers State (2008) LPELR (1476) 1 at 23, Tabai, JSC stated:

“While the correct position of the law is that an appellate Court would not, ordinarily, interfere with a lower court’s exercise of its discretion, such an interference becomes necessary where the discretion was not exercised judicially and judiciously.”

• PER U.A.OGAKWU,J.C.A

STATUTE REFERRED TO:

None

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