Exercise of discretion by lower court

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.
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

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