NTUKIDEM & ORS. V. OKO & ORS
| Pages | 1303-1326 |
NTUKIDEM & ORS. V. OKO &
ORS.
1303
NTUKIDEM & ORS. V. OKO & ORS.
5
CHIEF JAMES NTUKIDEM & ORS
APPELLANTS.
V
10 CHIEF ASUQUO OKO & ORS
RESPONDENTS.
SUIT NO. SC 141/1985
SUPREME COURT OF NIGERIA
BELLO,
J.S.C.
ANIAGOLU,
J.S.C.
15
KAZEEM,
J.S.C.
COKER,
J.S.C.
KARIBI-WHYTE,
J.S.C.
KAWU,
J.S.C.
OPUTA,
J.S.C.
20 5th December, 1986
Cii'il Action- Practice and Procedure - Land claim - Appeal to Court of Appeal
- Adjournment - Discretional)
,
power of court - Exercise of - Duty to ensure
substantial justice between panics - Non- appearance of appellant's counsel
-
25
Reason for absence of counsel unknown to court - Appellants called on to
argue appeal - Inability of appellant to proceed - Court dismissing appeal -
Whether proper - Failure of court to exercise its discretion judicially.
ISSUE:
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1. How should the Court of Appeal exercise its unfettered discretion to grant an
adjournment?.
FACTS:
The appellants appeal to the Court of Appeal was dismissed due to the ab-
sence of their counsel in court and their inability to proceed on their own. Their
35
request for an adjournment was refused by the Court of Appeal. The matter on ap-
peal was a land matter involving complex issues of law and both the appellants
.
and their counsel on almost all occasions previous to the incident were usually
present in court. The reason for the appellants' counsel's absence, though un-
known to the court at the hearing of the appeal, was caused by the last minute can-
40
cellation of his flight to Enugu. The appellants thus appealed against the dismissal
of their appeal, contending that the Court of Appeal had not exercised its discre-
tion to grant an adjournment judiciously.
HELD:
The learned justices of the Court of Appeal, Enugu did not act judiciously in re-
45
fusing to adjourn the appeal before them particularly when it was obvious to them
from the record of appeal that the land matter involved complex issues of law for
which the appellants were not legally equipped; and by dismissing the appeal, the
appellants' case would be defeated altogether and result in injustice to them. In
view of the fact that prior to the incident they had shown an intention to prosecute
50
the appeal, by being in court, and filing an application for accelerated hearing of
their appeal and leave to file additional grounds of appeal, the Court of Appeal
ought to have granted them an adjournment and the appeal is remitted for a hear-
ing on the merits.
1304
NIGERIAN SUPREME COURT CASES [1986] 2 N.S.C.C.
CASES REFERRED TO IN THE JUDGMENT:
1
Collins v. Vestry of Paddington
(1880) 5 Q.B.D. 308 at 381.
2
Ojikutu v. Odeh
(1954) 14 W.A.C.A. 640.
3.
Maxwell v. Keun and ors
(1928) 1 K.B. 645.
4.
University of Lagos v. Aigoro
(1985) 1 N.W.L.R. 143.
5
5.
Jones v. Curling
13 Q.B.D. 262.
6.
Saffieddine v.
C.P. (1965) 1 All N.L.R. 54 at 56.
7.
Ugborna v. Olise
(1971) 1 All N.L.R. 8.
8.
Enekebe v. Enekebe
(1964) 1 All N.L.R. 102 at 106.
9.
Demuren V. Asuni
(1967) 1 All N.L.R. 94 at 101.
10
10.Mobil Oil v. Federal Board of Inland Revenue
(1977) 3 S.C. 97 at 141.
11.Sonekan v. Smith
(1967) 1 All N.L.R. 329.
12.Solanke v. Ajibola (1968) 1 All N.L.R. 46 at 52.
13.Anisiubu v. Emodi
(1975) 2 S.C. 9.
14.Odusote v. Odusote
(1971) 1 All N.L.R. 219, 223- 224.
15
15. Ilona v. Del
(1971) 1 All N.L.R. 8, 13.
16.Priddle v. Fisher
(1968) 3 All. E.R. 506.
17.Dixon Gokpa v. Inspector-General of Police
(1961) 1 All N.L.R. 423.
18.
Galos Hired v. The King
(1944) A.G. 149.
19.
Gideon v. Wainwright
20
20.Jackson & Co. v. Napper
(1886) 35 Ch. D. 162 at 172.
21.Pett v. Grayhound Racing Association
(1969) 1 Q.B. 125.
22.James Bushi V. Collector of Ganjam
A.I.R. (1959) Orissa 152.
23.Nitya Ranjan v. The State
A.I.R. (1962) Orissa 78.
24.Baidhar Das v. The State
A.I.R. (1970) Orissa 2210 at 223.
25
25.Enderby Town Football Club Ltd v. Football Association Ltd.
(1971) 1 Ch.
191
26. Fraser V. Mudge
(1975) 1 W.L.R. 1132.
27.Ariori & ors. v. Elemo & ors.
(1983) 1 S.C. 13, 23-24.
28.Maclean v. Workers Union
(1929) 1 Ch. 602.
30
Mr. O.S. Sowemimo
for the Appellants.
Mr. R.I. Egbuziem
for the Respondents.
KAZEEM, J.S.C. (Delivering the Lead Judgment): On the 13th of October, 1986,
35
I allowed this appeal, set aside the decision of the Court of Appeal, Enugu and
remitted the appeal to that court for hearing on the merits. I then reserved my
reasons for doing so, which are now given today.
The appeal itself is not against the decision of the said Court of Appeal Enugu
on the main issue decided by the High Court on 21st September, 1977. That has
40
not yet been heard on the merits. Rather, this is an interlocutory appeal against
the decision of the Court of Appeal Enugu on its refusal to grant an adjournment
to hear the main appeal which was then dismissed. The whole proceedings of the
court on 19th January, 1984 leading to that decision read as follows:
45
"Appellant in court and says that his counsel are Fani-Kayode & Sowemimo
who promised to be in court today.
E.N.D. Ezeogu for the respondents.
COURT:
Appellant is called upon to argue his appeal as it will be unfair to ad-
50
journ the hearing of this appeal again. Appellant has been given
ample opportunity to bring his counsel to court. Appellant says he
cannot argue the appeal.
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