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  • 2003-01-13
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Fagbule v. Rodrigues

PROF.  MOSES OLUWOLE FAGBULE

V

GILBERT R. RODRIGUES

COURT OF APPEAL

( JOS DIVISION )

ALOMA MARIAM MUKHTAR, JCA ( Presided )

IBRAHIM TANKO MUHAMMAD, JCA ( Read the Lead Judgment )

ISA ABUBAKAR MANGAJI, JCA

CA/J/57/95

TUESDAY, 11TH DECEMBER, 2001

APPEAL - Preliminary objections - Need to raise formally and in accordance with the rules

CONSTITUTIONAL LAW - Fundamental right of fair hearing - Meaning of - Section 33(1) and (2) 1979 Constitution - Two rules or doctrines inherent therein

 COURT - Adjournment - Discretionary power of court to grant - Need for court to assert control over proceedings where a party is engaged in delay tactics

COURT - Relief claimed - Whether court can grant relief not prayed for

EVIDENCE - Evaluation of evidence - Whether lies with trial court

FAIR HEARING - Fair hearing defined - Test for - Meaning of fundamental right of fair hearing in the constitution - Two rules or doctrines inherent in the principle of fair hearing

FAIR HEARING - Principle of fair hearing - Full plenitude of

LEGAL PRACTITIONER - Advocate - Need to be point-blank and clear in his submission

MAXIM - Audi alteram partem and nemo judex in causa sua - Meaning of

NOTAABLE PRONOUNCEMENT - On need for a Judge not to allow dilatory practice aimed at delaying and defeating justice

PLEADINGS  - Amendment of pleadings - Aim of - Whether to be allowed at any stage of proceedings - Exceptions to the general rule

PLEADINGS - Amendment of after the close of parties evidence - When will be allowed

PRACTICE AND PROCEDURE - Adjournment - Discretionary nature of Whether court should allow application for adjournment designed to delay the hearing of the suit

PRACTICE AND PROCEDURE - Preliminary objections - Need to raise formally and in accordance with the rules

PRACTICE AND PROCEDURE - Proceedings -Amendment of -

Discretionary nature of - Need for court to assert control over proceedings where a party is engaged in delay tactics

PRACTICE AND PROCEDURE - Relief claimed - Whether court ought to grant what was not prayed for

WORDS AND PHRASES - ‘Fundamental right of fair hearing’ - Meaning of

Issues:

1.            Whether the learned trial Judge exercised his discretion judicially and judiciously in refusing an application for adjournment by the appellant.

2.            Whether the appellant was denied his fundamental right of fair hearing when the trial court refused to hear the appellant’s witness and suo motu closed the defence of the appellant.

3.            Whether the learned trial Judge ought to have allowed the amendment of pleadings sought by the appellant after the close of the plaintiff’s case.

4.            Whether there was proper evaluation of evidence of the parties

by the trial court.

5.            Whether the learned trial Judge could suo motu amend the cross-appellant’s claim to introduce a relief that was not sought and indeed grant same.

Facts:

The plaintiff granted various sums of money in various currencies to the defendant as loans. The plaintiff made repeated demands on the defendant to repay the loans but the defendant refused or neglected to repay. Then the plaintiff took out a writ of summons against the defendant claiming repayment of the loans with interest from the date of the suit. In the course of trial defendant asked for adjournment on many occasions, even on the day he had promised to close his case and address the court. The learned trial Judge having granted several adjournments at the instance of the defence decided to close their case and called on the parties to address him.

Finally, judgment was entered in favour of the plaintiff. Dissatisfied, the defendant has filed this appeal.