OLAJUWON OLALEYE VS AFRIBANK NIGERIA PLC

CORAM

CLARA BATA OGUNBIYI, JUSTICE, COURT OF APPEAL

JUSTICE UZO I. NDUKWE-ANYANWU, JUSTICE COURT OF APPEAL

JUSTICE JOSEPH SHAGBAOR IKYEGH, JUSTICE COURT OF APPEAL

PARTIES

OLAJUWON OLALEYE APPELLANTS

1. AFRIBANK NIGERIA PLC

2. MR. NEBOLISA ARAHMR.

3. STEPHEN ADAJI

RESPONDENTS 

AREA(S) OF LAW

SUMMARY OF FACTS

The Claimant/Appellant instituted an action against the Defendants/Respondents at the National Industrial Court, Lagos praying the trial Court to compel the Defendants/Respondents to confirm his employment having met the requirements for confirmation as stipulated in his letter of employment. The suit was listed on the Court’s cause list for hearing. The Claimant/Appellant Counsel however wrote a letter to the Court asking for an adjournment on the ground that he was bereaved and would like to handle the case personally. The letter for adjournment was received and acknowledged by the senior Court’s Registrar but the said Registrar of the Court failed to draw the attention of the Court to the letter of adjournment in the consequence of which the Claimant/Appellant’s suit was struck out for want of diligent prosecution. The Claimant/Appellant’s Counsel filed a motion before the Court to relist the suit and notwithstanding the lack of opposition from the Defendants/Respondents; the trial Court refused to grant the said application on the ground that there were other counsel in chambers of the Claimant/Appellant’s Counsel who should have appeared in Court. Dissatisfied with the ruling of the trial Court, the Claimant/Appellant appealed to the Court of Appeal.

HELD

Appeal Allowed

ISSUES

1. Considering the facts and circumstances of this case, did the Lower Court exercise its discretion judicially and judiciously in refusing the Appellants Motion to Re-list?

2. Whether the Lower Court was right to have made conjecture of facts not placed before it suo motu as reason for refusing the Appellants Application for re-listing without giving Counsel the opportunity to address it on the point so raised thereby violating the Appellants right to fair hearing guaranteed under Section 36 of the Chapter IV of the 1999 Constitution?

3. Was the Lower Court right to have neglected and or failed to act on the unchallenged affidavit evidence attached to the Appellants Motion dated 19th October 2011 which the Respondents’ Counsel expressly stated that they were not opposing?

RATIONES DECIDENDI

JUDICIAL DISCRETION – JUDICIAL DISCRETION MUST BE EXERCISED JUDICIOUSLY AND JUDICIALLY

“Judicial discretion must be exercised judiciously and judicially at all times. Offodile V Egwuatu (2006) 1 NWLR (Pt. 961) Pg (421).” PER NDUKWE-ANYANWU, JCA

MISTAKES OF COURT OFFICIALS – WHETHER MISTAKES OR OMISSIONS OF COURT OFFICIALS CAN BE VISITED ON A LITIGANT

“It is trite that mistakes or omissions of court officials in the Registry (not instigated, encouraged or condoned by a litigant) cannot be visited on the litigant by the court penalising the litigant for the said mistakes/omissions – See Anyanwoko v. Okoye and Or, (2010, 1S.C (Pt.11) 30, Famfa Oil Ltd. v. Attorney General of the Federation and Ors, (2003) 12 SCM 85 and Ede and Anor. V. Mba and Ors, (2011) 12 S.C. (pt.11) 106.” PER IKYEGH, JCA

EXERCISE OF JUDICIAL DISCRETION – AN APPELLATE COURT WILL NOT INTERFERE WITH THE PROPER EXERCISE OF DISCRETION OF A LOWER COURT EXCEPT WHERE SAME WAS NOT EXERCISED JUDICIALLY AND JUDICIOUSLY

“Ordinarily, the Court of Appeal will not interfere with a proper exercise of discretion of a lower Court. However, where the lower Court fails to exercise its discretion judiciously and judicially, the Appeal Court must employ its “judicial sledge hammer” to salvage the situation. Ehindimhen Vs. Musa (2000) 4 SC (Pt. 11) PG. 166, Oyekanmi Vs. Nepa (2000) 12 SC (Pt. 1) Pg. 70, Biocon Agro Chemicals Vs. Kudu Holding (2000) 12 SC (pt. 1) pg. 139.” PER NDUKWE-ANYANWU, JCA

ADJOURNMENT – AN ADJOURNMENT CAN BE GRANTED ON TERMS AS TO COSTS FOR FAILURE OF A COUNSEL TO ATTEND COURT TO HANDLE LITIGATION

“Although a law firm comprising more than one counsel is expected to excuse the absence of a the counsel from court for a piece of litigation in which the law firm is engaged by a client in deserving circumstances where it is indicated that a particular counsel is to handle the brief, as in this case, an adjournment can be granted on terms as to costs for the particular counsel to attend court to handle the litigation. See Ceekay Traders Ltd. v. General Motors Co. Ltd. and Ors. (1992) 23 N.S.C.C. (pt.1) 180 at 202 – 203.” PER IKYEGH, JCA

CASES CITED

STATUTES REFERRED TO

National Industrial Court Rules 2007

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