CEEKAY TRADERS V. GENERAL MOTORS.

• Pages: 180-203

180



NIGERIAN SUPREME COURT CASES

[1992] 1 N.S.C.C.

CEEKAY TRADERS V. GENERAL MOTORS.

5

CEEKAY TRADERS LTD.



APPELLANTS

V.

2.

ATTORNEY-GENERAL OF THE FED.



RESPONDENTS

1. GENERAL MOTORS CO LTD.



10

3.

BOARD OF CUSTOMS & EXCISE

APPEAL No. SC. 73/1989.

SUPREME COURT OF NIGERIA



15

KARIBI-WHYTE,



J.S.C.

KAWU,



J.S.C.

BELGORE,



J.S.C.

WALT,



J.S.C.

0 LATAWU RA ,



J.S.C.



20

14th February, 1992.

Appeal Issues for determination - Formulation of - To arise from grounds of appeal -

Exercise of discretion to trial court - When appellate court may interfere.

Constitutional Law - Fair hearing - What constitutes denial of - Whether court order

dismissing suit without hearing party constitutes a denial.

Practice and Procedure - Application for adjournment - How

if

may be treated - Not to be

heard together with application for dismissal of suit - Adjournment - Purpose of - Not

to he granted for the purpose of mere delay. Questions of adjournment - Discretion of

court in respect of - To be exercised judiciously and judicially.

Professional Ethics - Partnership - Age long practice change of counsel at trial - Court not

entitled to insist on a particular counsel in chambers to conduct the case.

25

30

ISSUES:

1.

How may a trial court exercise its discretion to grant an adjournment and when

may an appellate court interfere?

2.

Whether it is proper for a party's claim in a suit to be dismissed without the

party being heard.

FACTS:

The appellant as plaintiff instituted an action in the Federal High Court, Lagos

Division against the respondent claiming two declarations and injunction in respect

of motor vehicles purportedly seized by the Board of Customs and Excise, the third 45

defendant. Pleadings were ordered, filed and exchanged. The case had on four

occasions been fixed for hearing but could not proceed. This is because the

learned counsel for the plaintiff had asked for adjournment four times to enable

him get his principal witness who was not in the country.

representative was not in court and the learned counsel for the plaintiff asked for

On the last occasion when the case came up for hearing the plaintiff or its 50

35

40

CEEKAY TRADERS V. GENERAL MOTORS.



181

an adjournment on the same similar reason that the principal witness is not around.

In his ruling the same day after argument on the application for judgment the trial

judge stated that,

"from the facts as related it is obvious that the plaintiff is not ready to

5





prosecute this case and it will serve no useful purpose adjourning the

case."

Thereupon the learned trial judge dismissed the appellant's case without

hearing the plaintiff in respect of defendant's application to dismiss the action.

Being dissatisfied with the ruling of the trial court, the appellant appealed to the

10 Court of Appeal on a number of grounds and that court, having given careful

consideration to all the various points made by all the parties unanimously

dismissed the appeal holding that the learned trial judge was right in refusing the

appellant's application for adjournment and that "the claim was properly dismissed

for want of prosecution." It is from this decision that the appellant has with the

15 leave of the Court of Appeal further appealed to the Supreme Court.

HELD:

1.

The question of whether or not to grant an adjournment in a matter is the

discretion of the court which discretion must always be exercised both

judiciously and judicially. Indeed the discretion being that of the trial court, an

appellate court should not interfere on the ground that it might have exercised

it differently if it were in a position to do so. An appellate court is however,

entitled to interfere with the exercise of discretion of a trial court if the appellate

court is satisfied that it is in the interest of justice to do so.

(See p.187, lines

49 - 50 & p.188, lines 1 - 8).

2.

It is not enough to assume that in the circumstances of a particular case, even

if counsel was called upon to proceed he would not be in a position to do so.

That would be nothing but mere speculation. It is only right and proper that

before a party's claim in a court of law is dismissed, that party should be given

an opportunity of being heard.

(See p.188, lines 31 - 36).

Per

KARIBI-WHYTE, J.S.C:

3.

The issues for determination must arise from and be related to the grounds of

appeal. They of course cannot constitute issues for determination unless they

determine issues raised in the grounds of appeal.

(See p.192, lines 3 -

5).

35



4. There is no provision in the rules dealing with the situation where the plaintiff

is unable to proceed with his case either when expressly asked to do so or by

implication from reasons for seeking adjournment. In the circumstances the

Federal High Court is empowered by section 9 of the Federal High Court Act,

1973 to apply the rules of the High Court of Lagos State. (See

p.193, lines 43

40



-

47).

5. An application for adjournment is

prima facie

evidence that applicant is not

ready to proceed with the case. It is clearly not conclusive. This is however,

no reason why applicant should not be given opportunity to decide whether

to proceed with his case. Counsel representing the plaintiff is the plaintiff. The

45





limitations counsel may suffer trom his inability to proceed with his witnesses

cannot be taken advantage of in denying the plaintiff the right to be heard. The

right to be heard is a fundamental and indispensable requirement of any

judicial decision. The judge cannot assume an answer as has been done in

the instant case, without a hearing. (See

p.197, lines 22 - 31).

50

20

25

30