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MRS. D. O. ADEBAYO V. T.S.G. (NIG.) LTD

(2010) JELR 54501 (CA)

Court of Appeal  •  CA/I/75/2003 THURSDAY, 20 MAY 2010  •  20 May 2010  •  Nigeria

Coram
KUDIRAT M. O. KEKERE-EKUN JCA (Presided) CHIDI NWAOMA UWA JCA MODUPE FASANMI JCA ( Read the Lead Judgment)

Appearances
Ubaka Anthonia (Mrs) (with her, Thelma Otaigbe and A. Makinde) -*- - for the Appellant. -*- Respondent’s counsel was absent -*- FASANMI JCA (Delivering the Lead Judgment): This is an appeal against the ruling on an interlocutory injunction by an Oyo State High Court sitting at Ibadan in suit No. 1/606/2001 delivered on 16 July 2001. -*- The facts are that the appellant who was the plaintiff at the lower court claimed against the respondent at page 2 of the record of proceeding -*- as follows: A declaration that the termination of the plaintiff’s catering -*- agreement is illegal, void, unconstitutional and unlawful having been done without adequate notice to the plaintiff. -*- A declaration that the defendant cannot determine the quality of the food prepared by the plaintiff without a proper -*- laboratory analysis at a laboratory to be agreed upon by the parties and as such the purported termination of the plaintiff’s catering agreement on quantity and quality of the food -*- prepared by her is arbitrary, and illegal more so when such foods were always tested and passed as good in quality and -*- quantity by the nurse employed by the defendant before they were served. -*- (3) A declaration that the plaintiff is a licensee of the defendant at the latter’s canteen and should be given adequate notice to quit. -*- (4) A declaration that until the agreements between the parties are properly terminated, the plaintiff is entitled to the daily -*- feeding allowances of the defendant’s staff and/or profits accruing therefrom. -*- Order of injunction restraining the defendant including their servants assigns and/or privies from molesting or harassing the plaintiff or denying her access to and/or full operation of the defendant’s Iwo Road, Ibadan and/or allowing any other -*- person(s) to operate the said canteen until the agreement is duly terminated. -*- Such other equitable and/or legal reliefs. Appellant thereafter filed a motion ex parte for interim injunction which was granted by the learned trial judge. On 29 June 2001, appellant applied for Form 48 and same was attached with the interim order and all -*- other processes. The motion on notice was adjourned till 5 July 2001 for hearing. -*- On 5 July 2001 when appellant’s counsel was about to move the motion on notice, the respondents were not present in court. The learned -*- trial judge inquired whether the respondent has been served to which applicant’s counsel answered positively. The learned trial judge checked -*- the court’s file. On looking at the affidavit of service, it is dated 28 June A 2001. Being that the respondent was not put on notice, the court’s order of interim injunction granted on 29 June 2001 on ex parte motion was revoked. -*- The motion on notice was rescheduled for 16 July 2001. The court also ordered that the bailiff must serve the revocation order on the respondents -*- and file the affidavit of service of the revocation order on the respondent in B -*- the court’s file plusthe affidavitof service of the motion on notion adjourned -*- till 16 July 2001. -*- On 16 July 2001 when the motion on notice came before the court, Gbaju Akintola, Esq., announced his appearance to the court as holding Chief Yomi Alliyu’s brief and applied for adjournment on the ground that -*- Chief YomiAlliyu who is the appellant’s counselwas indisposed. The learned C trial judge at page 48 of the record of proceedings refused the adjournment and dismissed the motion on notice dated 29 June 2001. -*- The appellant being dissatisfied with the ruling filed his notice of appeal on 30 July 2001. Appellant filed 6 grounds of appeal. -*- In line with the practice of this court, appellant filed her brief of D argument before the court on 28 October 2004. Appellant’s application to set down the appeal for hearing on the appellant’s brief of argument alone -*- dated and filed on 28 October 2004 for failure of the respondent to file any brief of argument was granted on 23 May 2007. -*- At the hearing of the appeal, respondent was absent but the court E -*- was satisfied from its record that respondent was served with the hearing -*- notice for that day. Appellant through her counsel proceeded to argument by adopting and relying on her brief of argument filed on 28 October 2004. Appellant distilled four issues for determination from the six grounds of appeal thus: -*- Whether the learned trial judge was right in discharging the ex F -*- parte injunction order simply because the affidavit of service wrongly dated by the bailiff and Form 48 which was served with the other processes. -*- Whether in refusing the application for adjournment, the learned -*- trial judge exercised his discretion judicially and judiciously G -*- Whether an application that was never heard at all on merit can be successfully dismissed in law on the ground of lack of merit as was done by the learned trial judge Whether the learned trial judge acted fairly to the appellant. -*- A thorough or careful study of the issues formulated by the appellant H -*- shows that issues one, two and four relate to the exercise of the discretion -*- of the learned trial judge although couched differently. Since issues 2 and 4 are interwoven, I am of the considered view that issues 2 and 4 can be -*- amalgamated into one and determine the appeal on three out of the four issues formulated by the appellant, i.e. issues 1, 2 and 3 which still suffice to address the grievances articulated in the appellant’s grounds of appeal. -*- Issue one -*- Whether the learned trial judge was right in discharging the ex parte -*- injunction order simply because the affidavit of service was wrongly dated by the bailiff and Form 48 which was served with the other processes. -*- Learned counsel for the appellant submitted that the motion ex parte for injunction was argued and granted on 29 June 2001. After the court had granted the ex parte order of interim injunction, appellant applied for the enrolment of order Form 48 and caused same to be served together with -*- the writ of summons and motion on notice on the respondent by the bailiff. However in filing the affidavit of service, the bailiff mistakenly dated the affidavit of service 28June 2001. Learned counsel submitted that the insertion -*- of a wrong date is the act of a court official, to wit bailiff for which the litigant cannot be guilty of. Learned counsel referred to the case of Alatede -*- v. Falode and Or. (1996) All NLR 101 at 103. He submitted that section 85 and 132(a) of the Evidence Act (1990) permit re-swearing of a defective affidavit and oral evidence to vary the wrong date on the affidavit. -*- Learned counsel submitted that the revocation order by the court is a serious error since Form 48 in its usual context always refers to an order -*- which the respondent is to obey. He argued further that Order 9, rule 13 of the Judgments (Enforcement) Rules, Cap. 117, Laws of Oyo State, 1978, -*- made under the Sherrifs and Civil Process Law permit the registrar to endorse an injunctive order with Form 48 as done in this case and as such, the learned trial judge’s fear of seeing Form 48 in the affidavit of service is misplaced. He submitted that Form 48 and injunctive order go hand in hand. -*- He contended that there is no legal basis for the learned trial judge to vacate the ex parte order of injunction and not hearing the appellant before vacating -*- the interim order is against the principle of fair hearing. He urged the court to resolve the issue in favour of the appellant. -*- It is settled in the jurisprudence of our courts that the award of an G injunctive order is discretionary. The exercise of judicial discretion shall not be interfered with by an appellate court unless it is shown that the lower court exercised its discretion wrongly and arbitrarily. It is immaterial that -*- the appellate court would have exercised that discretion differently. The cases of Banna v. Telepower (Nig) Ltd (2006) All FWLR (Pt. 334) 1813, -*- H (2006) 7 SC (Pt. 1)1; Dokubo-Asari v. FRN (2007) All FWLR (Pt. 375) -*- 558 and Salami v. Yahyah (2010) 7 WRN 84 at 108 lines 20 - 25. -*- Again an interim injunctive order automatically terminates on the date the motion on notice is fixed for hearing: Kotoye v. C.B.N. (1989) 1 -*- NWLR (Pt. 98) 419, (2001) FWLR (Pt. 49) 1567. In the instant appeal, A -*- there was no legal representation for the respondent on the date the motion on notice was fixed for hearing and the respondent was absent. The learned trial judge observed as follows at page 40, lines 21 - 23 thus: -*- “The order is to be served on the defendant for them to appear -*- today to argue the motion on notice slated for today. The B -*- defendant was not present in the court, the plaintiff/applicant’s -*- counsel informs the court that the affidavit of service is in the court’s file. On looking at the affidavit of service, it is dated 28 June 2001 and what it refers to was Form 48 and not the -*- order of 29 June 2001. Being that the defendant is not put on notice of the court’s order of 29. The ex parte order made is C -*- hereby revoked. Motion on notice dated 29June 2001 is hereby fixed for disposal for 16 July 2001. -*- The order of revocation made by the learned trial judge was a surplusage since an interim injunctive order terminates on the hearing date -*- of the motion on notice which was on 5 July 2001. The learned appellant’s D counsel submission that the court is visiting the act or dereliction of the court official on the litigant cannot be right and Alatede v. Falode and Ors. cited by the learned appellant’s counsel cannot be applicable. The hearing -*- of the motion on notice in the absence of the respondents will amount to -*- lack of fair hearing since the respondent was not served. The fear of the E -*- learned trial judge was well placed and the revocation of the injunctive -*- order in the absence of service of the hearing date of the motion on notice on the respondent was quite apt. Where the inadvertence of court official defeats the constitutional right of a party to seek any relief, the party is never blamed. The faults are ordered to lie where they squarely should and -*- the right salvaged: Akintunde v. Olona Yinka (2004) 48 WRN 57 at lines F -*- 41 - 45. I am unable to see what the litigant, i.e. the appellant has suffered by the revocation of the interim injunctive order. It is the appellant’s fear that is misplaced in my view and I so hold. The discretionary power of the learned trial judge was judiciously and judicially exercised. Issue one is -*- hereby resolved against the appellant. G -*- Issue four has been subsumed in issue two which states: -*- Whether in refusing the application for adjournment, the learned trial judge exercised his discretion judicially and judiciously. -*- Learned counsel for the appellant conceded the fact that the granting -*- of an application for adjournment is at the discretion of the judge but the H -*- discretion must be exercised judicially and judiciously. He relied on Olatunji -*- v. Alaba (1998) 8 NWLR (563) 569-5. He submitted that the learned trial judge failed to exercise his discretion judicially and judiciously because the -*- case was just 18 days old in court and within its first day in court, the appellant argued motion ex parte , applied for Form 48 and caused same to be served on the respondent. The adjournment was the first to be applied -*- for by the appellant unlike in Olatunji’s case where the counsel had applied for several adjournments. Learned counsel submitted that hasty justice is -*- no justice. He relied on Paul Unongo v. Aper Aku and Ors. (1983) 11 SC 129 and Ntukidem v. Oko (1986) 5 NWLR (Pt. 45) 909 at 931. Learned -*- counsel argued that the counsel who appeared in court said from the onset that it was not his brief. He argued that forcing the counsel to continue with the brief amounted to forcing a counsel on a litigant which violates the constitutional provision that a litigant is entitled to a lawyer of his choice. He -*- contended that the illness of the appellant’s counsel was enough to have swayed the learned trial judge to exercise his discretion in favour of the appellant. He submitted that the court cannot visit the sin of the counsel on -*- the litigant. He referred to the cases of Doherty v. Doherty (1964) 1 All NLR at 299 and Iroegbu v. Okwordu (1990) 6 NWLR (Pt. 159) 643 at -*- 667 and 669. Learned counsel urged the court to resolve the issue in favour of the appellant. -*- Application for an adjournment is not granted as a matter of course. Application for adjournment must be well grounded and convincing before the court can exercise its discretion in favour of the applicant. -*- An appellate court does not as a matter of practice readily intervenes in matters concerning the exercise of discretion by a trial court merely -*- because it would have otherwise exercised it: Atiku v. State (2002) 4 NWLR (Pt. 757) 265 at 278 - 279, (2003) FWLR (Pt. 139) 1466. -*- In the instant case, appellant filed a motion on notice for injunction restraining the respondent. The counsel who appeared in court was not -*- ready to go on with the case because he was merely holding brief for the appellant’s counsel who is indisposed. The counsel who appeared in court -*- did not state how long or short he wants the adjournment. A court of law does not operate at the pace of a party and a party must be desirous of prosecuting his case diligently and timeously. The learned trial judge rightly -*- held at page 48, lines 23 - 25 of the record that: -*- “This type of adjournment if granted by the court adds to delay in adjudication and must be refused.” -*- As a matter of fact, it is better to allow applications of this nature to abide the hearing of the substantive suit before the court so as not to waste -*- the useful and precious time of the court and also to enable the court give a decision one way or the other on the case. Any party who is dissatisfied -*- thereafter can go on appeal on both the substantive and interlocutory decisions. -*- Appellant who was given opportunity to present her case but for A whatever reason fails to do so has waived her rights to complain. It is too late for the appellant now to turn round to complain of want of fair hearing. -*- The cases of Okike v. LPDC (2005) All FWLR (Pt. 266) 1176,(2005) 7 -*- SCNJ 596, (2005) 15 NWLR (Pt. 949) 471, Idowu v. LPDC (1971) All -*- NLR 126, Oladipo v. Moba L.G.A. (2010) 5 NWLR (Pt. 1186) 117 at 170, B -*- paragraph Hand the learned jurist Niki Tobi, JSC in Orugbo v. Una (2002) -*- FWLR (Pt. 127) 1024 , (2002) 16 NWLR (Pt. 792) 175 at 211 - 212, where -*- he had this to say: -*- “It has become a fashion for litigants to resort to their right to fair hearing on appeal as if it is a magic wand to cure all their inadequacies at the trial court. But it is not so and it cannot be C -*- so. The fair hearing constitutional provision is designed for both parties in the litigation and the court as the umpire, so to say, has a legal duty to apply it in the litigation in the interest of fair play and justice. The court must not give a burden to the provision which it cannot carry or shoulder. I see that in this D -*- appeal. Fair hearing is not a cut and dry principle which parties -*- can in the abstract always apply to their comfort and convenience. Itis a principle which is based and must be based on the facts of the case before the court. Only the facts of the -*- case can influenceand determine the application or applicability E -*- of the principle. The principle of fair hearing is helpless or -*- completely dead outside the facts of the case.” -*- The application was first adjourned till 5 July 2001. There was no service on the respondent before it was later adjourned till 16 July 2001. On this date counsel who appeared says he was only holding brief. It is -*- immaterial that the counsel in court was holding Mr. Alliyu’s brief. A counsel F -*- holding brief for another stands in the position of the counsel whose brief he holds for all purposes. The case of Peoples Redemption Party v. INEC (2004) All FWLR (2009) 1071. Counsel should avoid unnecessary adjournments as the one here so that the adage justice delayed is justice denied may cease to apply to the proceedings in our courts. Issue two is G -*- hereby resolved against the appellant. -*- Issue three -*- Whether an application that was never heard at all on merit can be successfully dismissed in law on the ground of lack of merit as done by the -*- learned trial judge. H -*- Learned counsel for the appellant submitted that before an application -*- could be dismissed for lack of merit, the pros and cons of same must have been considered by the adjudicating judge by hearing argumentsfrom parties -*- or their counsel. The learned trial judge hastily dismissed the motion on notice without any hearing. He contended that since no legal argument was proffered by parties, appellant’s application was decided on “walk-over.” -*- The counter affidavit of the respondent served on the appellant was without exhibits referred to therein and thereby made the said counter-affidavit -*- inconclusive. Learned counsel for the appellant further submitted that the hasty dismissal of the application has occasioned miscarriage of justice. He -*- referred to the case of Ntukidem v. Oko (1986) 5 NWLR (45)909 at 931 where the eminent jurist, Karibi Whyte, JSC (as he then was) stated that: “A court should not succumb to the temptation of hastily -*- determining a case in limine without hearing the complaint -*- because of the delay which may arise from the temporary inability of the complainant to procute his case.” -*- He further submitted that hurried justice is also a denial of justice. Learned counsel referred to the case of Unongo v. Aper Aku (1983) 11 SC 129 at 153, per Bello, JSC, as he then was, held thus: -*- “The old adage that delay of justice is denial of justice has the same force as the maxim that hasty or hurried justice is also a denial of justice.” -*- Learned counsel urged the court to resolve the issue in favour of the appellant. -*- The ruling of the learned trial judge at page 48 of the record of proceedings is that adjournment will not be granted on flimsy excuse and -*- that this type of adjournment if granted by the court adds to delay in adjudication and must be refused. I am on one with the learned counsel for the appellant that before an application could be dismissed for lack of merit, the trial judge must have taken arguments from the counsel to the parties, -*- consider the arguments before making pronouncements on whether or not the application is meritorious. For a court to dismiss an application without -*- hearing it on the merit is a breach of the appellant’s constitutional right. Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999. Also, the case of Afosi v. State (2008) 33 NSCQR 1445 at 1447. The -*- learned trial judge in the instant application rushed to justice by dismissing the application without hearing arguments on the matter. Hasty and rushed justice are as bad as justice delayed. The case of CBN v. Adedeji (2005) -*- All FWLR (Pt. 244) 912 at 929, paragraphs D - E. Since no argument has been taken from the counsel to the parties, the proper order should have -*- been striking out and not a dismissal. -*- The court has a duty to interfere with the dismissal of the application -*- by the learned trial judge in the present appeal. The dismissal is perverse and has occasioned miscarriage of justice: Oju L.G v. INEC (2007) 14 -*- NWLR (Pt.1054) 242 and Atolagbe v. Shorun (1985) 1 NWLR (Pt. 2) A -*- The court will interfere in the circumstance because the dismissal order was not on merit. The order of dismissal is hereby reverse to striking out. Motion on notice in suit No. 1/606/2001 dated 29 June 2001 seeking -*- order to restraining the respondent is accordingly struck out. Issue 3 is B -*- hereby resolved in favour of the appellant. -*- In the final analysis, the appeal succeeds in part. No order as to cost. -*- KEKERE-EKUN JCA : I have had a preview of the judgment of my learned brother, M. Fasanmi, JCA just delivered. I agree that the appeal C -*- succeeds in part to the extent that the learned trial judge erred in dismissing an application that had not been heard in its merits. The proper order should have been one striking out the application. I agree with the fuller reasons contained in the lead judgment and abide by all the consequential order -*- therein. D -*- UWA JCA : I read before now thejudgment delivered by my learned brother, -*- Modupe Fasanmi, JCA. I agree with the reasoning and conclusion arrived -*- at in allowing the appeal in part. I abide by the order made awarding no E -*- Appeal allowed in part

Judgement

MRS. D. O. ADEBAYO V

T.S.G. (NIG.) LTD

COURT OF APPEAL (IBADAN DIVISION ) KUDIRAT M. O. KEKERE-EKUN JCA (Presided ) CHIDI NWAOMA UWA JCA

MODUPE FASANMI JCA ( Read the Lead Judgment ) CA/I/75/2003 THURSDAY, 20 MAY 2010

FAIR HEARING - Right to fair hearing - When party can be said to have waived his right to fair hearing INJUNCTION - Interim injunctive order - When lapses INJUNCTION - Injunctive order - Discretionary nature thereof - When appellate courts will interfere therewith LEGAL PRACTITIONERS - Counsel - Counsel holding brief for another Status of LEGAL PRACTITIONER - Counsel - Duty on to avoid unnecessary adjournment PRACTICE AND PROCEDURE - Adjournment - Application for - When would be granted by court PRACTICE AND PROCEDURE- Application before court - Trial court pronouncing thereon without hearing parties - Impropriety thereof - Attitude of appellate courts thereto WAIVER - Right to fair hearing - When party can be said to have waived his right to fair hearing

Issues:

Whether the l…

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