Exercise of discretion by lower court

• Pages: 561-564

561

1073. How discretion of Court to grant adjournment is exercised.

“It is abundantly clear from the extract above that the appellant was not heard

before the Court below proceeded to dismiss his appeal. As shown above the Court

below put certain questions to appellant’s counsel, Mr. Azeta, which he answered,

counsel immediately therefore asked to be granted an adjournment. There is nothing

on the record to show that that request was either granted or refused. This is a

serious error. The question whether or not to grant an adjournment is a matter in the

discretion of the Court. But the discretion must be exercised not only judicially

but judiciously and it must be patently clear from the record why it is exercised

one way or the other. It is clear that in the present case the application for

adjournment was not dealt with at all. Moreover it was the duty of the Court

below before deciding to dismiss appellant’s case not only to have disposed of

the application for adjournment first but to have afford counsel a hearing on the

application to dismiss his appeal and before dismissing same. (See Ilona & Ors.

v. Dei & Ors. (1976) 1 N.M.L.R. 5, (1976) 1 All N.L.R. 8; Odusote v. Odusote

(1971) All N.L.R. 223 (1990 Edition). Obviously appellant’s constitutional right

as enshrined in Section 33(1) of the 1979 Constitution had been breached, which

rendered the proceedings null and void. In the case of Amadi v. Thomas Aplin

& Co. Ltd. (1972) 1 N.L.R. (Pt. 1) 409; (1971 – 1972) N.S.C.C. Vol. 7 p. 263,

Udoma, J.S.C., delivering the judgment of the Court said as follows –

“Furthermore, the high handed manner in which the learned trial Judge dealt

with the application by dismissing it summarily without hearing the plaintiff at all

was in our view, a denial to the plaintiff of his right to be heard, a direct

infringement of the fundamental maxim audi alteram partem which, in effect is

denial of a fair hearing.” Also in Adigun v. Attorney-General of Oyo State

(1987) 1 N.W.L.R. (Pt. 53) 678 at 709, Obaseki, J.S.C., observed thus – “The

right to fair hearing being a fundamental Constitutional right guaranteed by the

constitution, the breach of it in any trial or investigation or inquiry nullified the

trial, investigation or inquiry and any action taken on them is also a nullity. So it

is in this case.” - Per Karibi-Whyte, J.S.C., in Obomhense v. Erhahon Suit No.

S.C. 20/1988; (1993) 7 N.W.L.R. (Pt. 303) 22 at 47.

(65) EXERCISE OF DISCRETION BY LOWER COURT

1074. Appellate Court’s attitude to exercise of direction by lower Court.

(1) “It is a well established principle of law that an Appeal Court will not interfere

with the exercise of discretion by a lower Court when such discretion has been

exercised judicially. It is only when the lower Court exercised the discretion upon a

wrong principle or mistake of law or under a misapprehension of the facts or as

taken into account irrelevant matters or on the ground that injustice could arise or

has arisen that the appeal Court will interfere. See Kudoro v. Alaka (1956) 1 F.S.C.

82; (1956) S.C.N.L.R. 225; Enekebe v. Enekebe (1964) 1 All N.L.R. 102 ;

557 Exercise of discretion by lower Court Paras. 1073-1074