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Francis v. Osunkwo

IKENGA FRANCIS

V

  1. JEROME OSUNKWO
  2. BONIFACE CHUKWUEZE
  3. COLLUMBUS EZE

COURT OF APPEAL

( KADUNA DIVISION )

ISA AYO SALAMI,  J.C.A. ( Presided )

VICTOR AIMEPOMO OYELEYE OMAGE,  J.C.A.( Read the Lead Judgment )

OLUDADE OLADAPO OBADINA,  J.C.A

CA/K/74/97

FRIDAY, 3RD MARCH, 2000

APPEAL - Appeal duly filed by party - Duty of court not to dismiss except duly heard on merit

APPEAL - Exercise of discretion by lower court - Attitude of appellate court thereto

APPEAL - Extension of time to appeal - Application for - Applicable principles

APPEAL - Extension of time to appeal - Grounds for - Explanation, not justification, for delay required

CONSTITUTIONAL LAW - Fair hearing - Need for court to give effect to when presented with application for adjournment to enable counsel fix himself to facts of case

COSTS - Appeal duly filed by party - Duty of court not to dismiss except duly heard on merit

COURT - High Court exercising appellate jurisdiction - Discretionary power to grant application for adjournment

COSTS - Nature and object of

COSTS - Purpose of - Unsuccessful litigant not to be punished by award of cost COURT- Counsel’s mistake not to be visited on litigant

JUSTICE - Substantial justice to supersede technical justice

LEGAL PRACTITIONER - Mistake of counsel - Duty of court not to visit on litigant

PRACTICE AND PROCEDURE - ‘Ubi jus ibi remedium’ - Application of

PRACTICE AND PROCEDURE - Adjournment - Application for - Discretionary power of court to grant

PRACTICE AND PROCEDURE - Adjournment - Governing principles

PRACTICE AND PROCEDURE - Adjournment - Application for by counsel to enable him to be properly seised of facts of case - Need for court to give effect to principles of fair hearing

PRACTICE AND PROCEDURE - Mistake of Counsel - Court not to visit on litigant

PRACTICE AND PROCEDURE - Rules of Court - Duty of court to construe to assure substantial justice as opposed to technical justice

Issues:

  1. Whether the High Court of Kaduna State sitting in its appellate jurisdiction properly refused the application for an extension of time within which to appeal against the decision of the District Court, Kaduna.
  2. Whether the High Court acted judicially in refusing the appellant’s application for adjournment and in dismissing the substantive appeal without first hearing the merits of the appeal.
  3. Having regard to the whole case, whether the cost awarded by the High Court against the appellant is justifiable.

Facts:

The appellant in this appeal filed an action in the District Court of Kaduna in 1992.  When hearing commenced in October 1995, the appellant presented only one witness and further hearing was adjourned till 20th November, 1995 on which date the appellant failed to attend court.  The suit was further adjourned to 23/11/ 95  but the appellant was again absent from court.

On 23/11/95 the defendants/respondents orally applied for judgment to be entered on their counter-claim and the court gave judgment in the sum of N10,000.00.

When the respondents took steps to execute the judgment, the appellants moved to forestall levying execution on his movable properties by paying the judgment debt to court.  By a motion filed on 7/2/96, the respondents prayed the court to order the payment by the plaintiff/judgment debtor to them the sum of N4,890.00 being execution cost.  The District Court granted the order and awarded N1,000.00 against the appellant who subsequently appealed to the High Court on 24 /6/96, two days after the expiration of time prescribed by the law.  He also filed an application at the High Court for extension of time to appeal.

On the date fixed for hearing of the appeal, the appellant’s counsel, Mr. Shittu applied for an adjournment until the next session of the appellate court for the reason that he was coming into the matter for the first time and was, therefore not seised of the facts; according to him, his principal  in chambers  suddenly had to go to Abuja.

The High Court responded by refusing the application for adjournment and also dismissed the entire appeal with cost of N1,000.00 awarded in favour of the respondents.  Aggrieved, the appellant has now appealed to the Court of Appeal. In determining the appeal, the Court of Appeal considered the procedure laid down by the Supreme Court in the case of Ceekay Traders Ltd. vs. General Motors Co. Ltd (1992) 2 N.W.L.R. (Pt. 222) 132 on the question of adjournment.