OLUKONDO II v. ADEFILA & ANOR

CITATION: (2017) LPELR-42353(CA)

In the Court of AppealIn the Ilorin Judicial Division

Holden at Ilorin

ON FRIDAY, 5TH MAY, 2017Suit No: CA/IL/29/2016

Before Their Lordships:

MOJEED ADEKUNLE OWOADE Justice, Court of AppealHAMMA AKAWU BARKA Justice, Court of AppealBOLOUKUROMO MOSES UGO Justice, Court of Appeal

BetweenOBA ABDULKADIR AHMED DADA OLUKONDO II,OLOREKE OF OREKE-LAND(Suing for himself and on behalf of OrekeCommunity)

- Appellant(s)

And1. OBA JOSEPH SUNDAY OLAKUNLE ADEFILA, THEOLOREKE OF OREKE-OKEGBO(For himself and on behalf of Oreke-OkegboCommunity)2. MR. ISAIAH EMEKIRI

- Respondent(s)

RATIO DECIDENDI

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1. CONSTITUTIONAL LAW - BREACH OF RIGHT TO FAIRHEARING: Circumstances where a complaint of breach offair hearing can be successfully made"Secondly, it has long been established that fair hearing issynonymous to fair trial and that whether there has been afair hearing is one of substance, not of form and mustalways be decided in the light of the realities of anyparticulars case.See:OLAWOYIN & ORS VS. COMMISSIONER OF POLICE 1962N.N.L.R.29?In the instant case, the Claimant Appellant could not besaid to be given fair hearing in relation to the interlocutoryapplication brought by the Respondents. The motion forinterlocutory injunction was heard on the first day it cameto Court, in the absence of the Appellant's Counsel who infact furnished a genuine excuse for his absence and hisapplication for adjournment was not opposed by theRespondents Counsel. Meanwhile the learned trial Judgehurriedly took the Respondents motion without anycounter-affidavit or opportunity to file one by the ClaimantAppellant.In this circumstance, we are bound by the observation ofthe Court in the case of:TEREHMBA AYUA AND 2 ORS VS. MRS. ESTHER FARIMOGBAKA (1997) 7 NWLR (PT. 514) 659 AT 670 that:"it is both a fundamental and an elementary principle ofthe administration of Justice that whenever it is possible todetermine a case on its merits the Court should notsuccumb to the temptation of hastily determining it inlimine without hearing the complainant because of thedelay which may arise from the temporary inability of thecomplainant to prosecute his case. There is the real needfor the Court to appreciate the interest of the properadministration of Justice which demands that acomplainant should be given reasonable opportunity topresent his case for its determination on the merits."PerOWOADE, J.C.A. (Pp. 22-23, Paras. B-E) - read in context

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2. CONSTITUTIONAL LAW - RIGHT TO FAIR HEARING:Attributes of the principle of fair hearing"The attributes of a fair hearing has been enumerated inthe case of Saba Vs. N.C.A.T.C (1991) 5 NWLR (pt. 192)388, as includingi. That the Court shall hear both sides not only in the casebut also in all material issues in the case before reaching adecision which may be pre judicial to any party in the case.ii. That the Court or Tribunal shall give equal treatment,opportunity and consideration to all concerned;iii. That the proceedings are held in public and allconcerned shall have access to, and be informed of such aplace of public hearing.iv. That having regard to all the circumstances, in everymaterial decision in the case, Justice must not only bedone, but must manifestly and undoubtedly be seen tohave been done."Per BARKA, J.C.A. (P. 25, Paras. A-E) - readin context

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3. PRACTICE AND PROCEDURE - PRELIMINARYOBJECTION: When preliminary objections should be andshould not be filed"?Clearly and as pointed out by the learned Counsel for theAppellant, the Respondent's preliminary objection is notwithin the purview of the provision of Order 10 Rule 1 ofthe Court of Appeal Rules 2011. If the Respondent is/wasaggrieved that the appellant did not comply with theprovision of Section 99 of the Sheriffs and Civil Process Act2004 as to the service of Writ of Summons, the Respondentcould have come by way of cross-appeal and not through anotice of preliminary objection to the jurisdiction of theCourt of Appeal.Indeed this Court does not have vires to entertain theRespondent's preliminary objection having failed to fulfillthe conditions precedent to the filling of preliminaryobjection.See: MADUKOLU VS. NKEMDILIM (1962) 2 SCNLR 341.The procedure of preliminary objection is only to beadopted where a Respondent opposes the hearing of anappeal, as the purpose of preliminary objection is toterminate the hearing of the appeal in limine eitherpartially or totally.See: THE SHELL PETROLEUM DEVELOPMENT COMPANY OFNIGERIA LIMITED VS. OJIOWHOR MONDAY AMADI & 4 ORS(2011) 5 SC (PT.1)1."Per OWOADE, J.C.A. (Pp. 8-9, Paras. F-F) - read in context(2

017)

LPELR

-4235

3(CA)

4. PRACTICE AND PROCEDURE - ADJOURNMENT: Attitudeof courts to the grant of adjournment"In the first place, where an application for an adjournmentis made to a Court, the Court should bear in mind therequirement that justice should be done to both parties andthat it is also in the interest of justice that the hearing of acase should not be unduly delayed. It should grant theadjournment if as in the instant case, a refusal of theapplication is most likely to defeat the rights of the parties'altogether or be an injustice to one or other of them unlessthere is a good or sufficient cause for such refusal.If otherwise, an appellate Court will not only have powerbut will be under a duty to review the ruling refusing theapplication.See: RASAQ A. SALU VS. MADAM TAWURO EGEIBON (1994)6 SCNJ 223."Per OWOADE, J.C.A. (Pp. 21-22, Paras. D-B) - read incontext

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MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the

Leading Judgment): This is an Appeal against the

decision of the Kwara State High Court sitting at Omu-Aran

delivered by T.S. Umar, J. in Suit No. KWS/OM/8/2015.

By a Writ of Summons and Statement of Claim of

6/11/2015, the Appellant as Claimant for himself and on

behalf of the entire people of Oreke town/Community

jointly and severally claim against the Respondents as

follows:

1. A Declaration that Claimant’s community is entitled to

the customary right of occupancy over the entire farm land

which shares boundary with Oreke-Okegbo immediately

after the Ogboloo stream (Gbayawo).

2. A Declaration that the Defendants have trespassed and

encroached on part of the Claimant’s land, lying and situate

at immediate after Ogboloo stream at Oreke town.

3. An Order of perpetual injunction restraining the

Defendants whether by themselves, agents, privies or

servant from disturbing, harassing, molesting, assaulting,

attacking or threatening the lives of the Claimant’s and

disturbing the quiet and peaceful enjoyment of their land,

the subject matter of this Suit.

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4. An Order restraining the 1st Defendant from further

parading himself as the Oloreke of Oreke land.

The 1st and 2nd Respondents as Defendants filed a joint

statement of Defence on 08/12/2015 and counter-claimed

as follows:

(12) WHEREOF the counter Claimant claims the following

reliefs:

a) A declaration that the land being occupied by the

defendant/claimant herein belongs to the family of counter-

claimant and his community (Oreke-Okegbo).

b) A declaration that Oreke-Oke communities are

customary tenant on Oreke-Okegbo community land.

c) A declaration that all mineral resources presently

discovered (Marbles) and likely subsequent discoveries

solely belong to the counter-claimant’s family and

community (Oreke-Okegbo)

d) An Order directing the defendant/claimant herein and

his community to account for the proceeds realized from

the said mineral resources since its discovery in 1989 or

thereabout, as reflected on the Agreement between the

defendant/claimant and the miner.

e) An interlocutory injunction restraining the

defendant/claimant, Agents, privies from further managing

or giving approval or lease any part of the land for the

purpose of extracting or quarrying henceforth.

f) A declaration that the title of the

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defendant/claimant is Oloreke of Oreke-oke and not

Oloreke of Oreke land.

g ) A p e r p e t u a l i n j u n c t i o n r e s t r a i n i n g t h e

Defendant/Claimant, Agents, privies from further managing

or giving approval or lease any part of the land for the

purpose of extracting or quarrying pending the

determination of substantive suit.

h) The sum of N10 Million naira only for the defamation of

character o f the 1st counter -c la imant by the

defendant/claimant, for the publication annexed to the

original suit by the defendant/claimant herein.

i) An injunction restraining the Defendant/Claimant from

parading himself as Oloreke of Oreke land pending the

determination of this suit and thereafter.

On 13/01/2016, the Respondent counter claimant brought a

motion on notice for interlocutory injunction with grounds

in following terms.

I. An Order of interlocutory injunction restraining the

Claimant/Respondent, his agents and privies from further

managing the marble site or giving approval or lease on

any part of the land where marble is discovered in Oreke

land in Ile-ire district in Ifelodun local government area of

Kwara State for the purpose of extracting or quarrying

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henceforth pending the determination of the substantive

suit before this Honourable Court.

II. And for such other Order(s) as this Honourable Court

may deem fit to make in the circumstances of this case.

GROUNDS OF THE APPLICATION

1. The Claimant/Respondent had trespassed, taken

possession of land belonging to Oreke and leased

parts of the land with mineral resources deposit to

platoon Rocks and Minerals Ltd. Without the consent

and authority of the Counter-Claimant/Applicant.

2. The Counter-Claimant/Applicant inherited the

lands situate and lying at Oreke from his forefathers

from time immemorial and have been in possession of

same ever since.

3. The Claimant/Respondent has taking possession of

the land and leasing same to unsuspecting members

of public for money considerations.

4. The interest of the Counter-Claimant/Applicant will

be prejudiced since they are deprived of the

ownership and possession of the lands if the

Defendant/Respondent is allowed to continue in his

dastard act.

On 6/01/2016 Counsel for the Appellant sought the

indulgence of the Court to file Claimant’s response to the

defence. The Court

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thereafter granted an adjournment and the case was

adjourned till 8/02/2016 for mention.

On 8/02/2016, both the Claimant/Appellant and his Counsel

were absent Mr. M. O. Aminu of Counsel for the

Respondents counter-claimants re-echoed the fact that the

case was slated for mention, pointed out that the

Appellants wrote in a letter asking for future adjournment

and that Appellant’s Counsel suggested 4th,11th, 16th or

17th March. He suggested that the Court should invoke the

provision of Order 56 of the Rules of Courts to make an

interim order restraining the Claimants (Appellants) from

further tampering with the marble site pending the

determination of the motion on notice. He requested for

N50,000:00 costs if the Court was inclined to grant

adjournment to the Claimant Appellant.

The learned trial judge on the other hand noted that the

letter (excuse) from the Appellant’s Counsel is not tenable

more especially as there was no counter affidavit to the

Respondents counter Claimants motion on notice for

interlocutory injunction. He ruled that the Respondents

Counsel should move the motion on notice for interlocutory

injunction.

Learned

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Counsel for the Respondents then adopted his written

Address on the interlocutory application and relied on all

the processes.

The case was adjourned till 15/02/2016 for ruling.

On 15/02/2016, the case was further adjourned to

24/02/2016 for Ruling.

In his Ruling of 24/02/2016, the learned trial Judge found

inter alia that both parties are laying claim to the

ownership of the land in dispute. That mining or quarrying

was going on and that the balance of convenience was on

both sides. He, therefore granted order of injunction

restraining both parties, from further managing the marble

site or giving approval or lease on any part of the land

where marble is discovered in Oreke land in Ile-Ire district

in Ifelodun Local Government Area of Kwara State for the

purpose of extracting or quarrying pending the

determination of the substantive suit before the Court.

Dissatisfied with this decision, the Appellant filed a Notice

of Appeal containing six (6) Grounds of Appeal in this Court

on 26/02/2016.

The relevant Briefs of Argument for the Appeal are:-

a) Appellant’s brief of argument dated 16/01/2017

incorporating,

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preliminary objection filed on 18/01/2017 but deemed filed

on 19/01/2017. … settled by O. L. Omoleye Esq.

b) Respondent’s brief of argument dated 30/01/2017, filed

on 7/02/2017 and deemed filed on 21/02/2017.

c) Appellant’s Reply Brief of argument dated 21/02/2017

and filed on the same day.

THE PRELIMINARY OBJECTION

Learned Counsel for the Respondent raised a preliminary

Objection to the hearing of this appeal. He contended that

the writ of summons filed in the substantive suit herein fell

foul of the mandatory provision by requiring appearance by

the Respondents within 7 days which is less than the thirty

days stipulated under Section 99 of the Sheriffs and Civil

Process Act 2004.

He urged us to decline jurisdiction and strike out the

Appellant’s Appeal, as the Court does not labour in vain.

He believes that by the Section 15 power of the Court of

Appeal, this Court is equally empowered to determine the

said question of jurisdiction that arose in the Court below.

Learned Counsel for the Appellant submitted that the

alleged objection by the Respondents is not an objection to

the Appeal

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itself but a surreptitious way to file an appeal against

another Ruling delivered by the Court below which was

never appealed against by the Respondents. That the

present appeal is about the Ruling of 24th of February,

2016 to which the Respondents have not filed any cross-

appeal or Respondents Notice.

He submitted that the preliminary objection so raised by

the Respondents is not and cannot be a preliminary

objection envisaged by Order 10 Rule 1 of the Court of

Appeal Rules 2011. That this Honourable Court has no

jurisdiction to determine the preliminary objection, the

Respondents having failed to fulfill the requirement of due

process of law in bringing the preliminary objection before

this Honorable Court.

He submitted further that Section 15 of the Court of Appeal

Act cannot be invoked by the Court to determine the

preliminary objection which is not properly before it.

On this, he referred to the case of:

HON. MICHAEL DAPIAN LONG & 5 ORS VS. CHIEF

(DR) JOSHUA CHIDI DARIYE & 1 ORS. (2007) 8

NWLR (PT. 1036) 332 AT PAGES 404-405.

He urged us to dismiss the preliminary objection.

Clearly and as pointed

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out by the learned Counsel for the Appellant, the

Respondent’s preliminary objection is not within the

purview of the provision of Order 10 Rule 1 of the Court of

Appeal Rules 2011. If the Respondent is/was aggrieved that

the appellant did not comply with the provision of Section

99 of the Sheriffs and Civil Process Act 2004 as to the

service of Writ of Summons, the Respondent could have

come by way of cross-appeal and not through a notice of

preliminary objection to the jurisdiction of the Court of

Appeal.

Indeed this Court does not have vires to entertain the

Respondent’s preliminary objection having failed to fulfill

the conditions precedent to the filling of preliminary

objection.

See: MADUKOLU VS. NKEMDILIM (1962) 2 SCNLR

341.

The procedure of preliminary objection is only to be

adopted where a Respondent opposes the hearing of an

appeal, as the purpose of preliminary objection is to

terminate the hearing of the appeal in limine either

partially or totally.

See: THE SHELL PETROLEUM DEVELOPMENT

COMPANY OF NIGERIA LIMITED VS. OJIOWHOR

MONDAY AMADI & 4 ORS (2011) 5 SC (PT.1)1

In the circumstance, the

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Respondents preliminary objection is incompetent and it is

accordingly struck out.

THE MAIN APPEAL

Learned Counsel for the Appellant formulated three (3)

Issues for the determination of the Appeal as follows:-

1. Whether the trial Court acted correctly in deciding

to grant an interlocutory injunction as prayed for by

the counter Claimant when the prayers are essentially

the same with the reliefs sought for in the counter

claim Ground 1.

2. Whether the trial Court had due regards to the

relevant legal principles and judicial precedents

governing the grant of an interlocutory injunction in

arriving at its decision. Grounds 3, 4, 5, and 7

3. Whether or not by refusing the adjournment

sought for by the Counsel to the Claimant/Appellant

and by going ahead to hear the application for

interlocutory injunction when the application was

fixed for mention on the 8th February, 2016, the

learned trial Judge afforded the Appellants any fair

hearing Ground 6.

Learned Counsel for the Respondent on the other hand

formulated two Issues for determination of the Appeal.

They are:-

1. Whether on the peculiar facts of this case, the

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learned trial judge’s order of injunction against both

the Appellant and the Respondents is in line with the

principles governing grant of injunctions Grounds 1,

3, 4, 5, and 7.

2. Whether by the learned trial Judge’s hearing of the

application for injunction on the 8th day of February

2016 any injustice or other prejudice was occasioned

to or suffered by the Appellant.

I noticed that Appellant’s Issue three (3) deals with fair

hearing and therefore intend to take the issue first as it

may turn out to be a determinant issue for the Appeal.

Learned Counsel for the Appellant reiterated the facts

leading to the ruling appealed against through Issue three

and stated that on the 8th of February, 2016, the matter

was listed for mention on the cause list of the Court. That

on the 5th February, 2016, the Appellant’s Counsel sought

for an adjournment through the letter dated 5th February,

2016 on health ground to which he attached a medical

report.

That, in-spite of the above facts, the Court refused the

application for adjournment and went ahead to hear the

application for interlocutory injunction.

He submitted

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that by the act of refusing the application for adjournment

and by going ahead to hear the application in the absence

of the Counsel to the Appellant, the Appellant was not

afforded the due fair hearing in the determination of the

application.

He referred to the case of:

TEREHMMA AYUA & 2 ORS VS. MRS ESTHER

FARIMO GBAKA (1997) 7 NWLR (PT.514) 659 AT 670

that there is a need for the Court to strife to determine a

case on its merits.

He submitted that the reason for the Appellant not being

able to go on with case on 8th February, 2016 was due to

absence of his Counsel which is by implication the fault of

his Counsel. He submitted further, referring to the case of:

TERHEMBA AYUA & 2 ORS VS. MRS ESTHER FAIMO

GBAKA (SUPRA) AT PAGE 672.

That the fact that a case was adjourned to a particular date

as a last adjournment does not mean that proceedings in

the case must willy-nilly continue on that date irrespective

of any reason given for a further adjournment. That to

dismiss or close a party’s case on the ground of the absence

of his Counsel is to visit the sins of the Counsel on its

clients, a practice which

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is deprecated by the Courts.

He also referred on Issue three to the case of:

KOTOYE V. CBN & ORS (1989) 1NWLR (PT.98) 419

AT 444 and urged that the trial Court did not afford the

Appellant a fair hearing in the determination of the

application for interlocutory injunction.

Learned Counsel for the Respondent on the other hand

urged us to answer Appellants Issue three in the negative

and resolved same against the Appellant. He submitted that

the complain of the Appellant is that the matter was listed

for mention on the 8th day of February, 2016 and not for

hearing and that the procession to hearing has led to a

breach of his right to fair hearing. He submitted that the

Appellant’s argument is based on wrong premise and ought

to be discountenanced.

This, he said is because although the suit was at the

proceedings of 16th January, 2016 adjourned and fixed for

mention on the 8th day of February, 2016, the

Respondent’s motion for injunction was subsequently filed

and duly served on the Appellant’s Counsel. He urged that

it is clear beyond peradventure that at the time Counsel

received the service of the motion,

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he knew that the motion was to be moved on the 8th day of

February, 2016, and that this fact has superceded the

adjournment for mention.

He contended that the Appellant’s reliance on the Court list

on page 94 of the Records is therefore self serving and

misleading, as the copy of the application served on the

Appellant made it clear that the application was for hearing

(to be moved) on the 8th day of February, 2016. Hence,

said Counsel, the learned trial Judge’s observation at page

90 of the records that:

“The case is slated for motion today…”

Respondents’ Counsel further submitted that the case of:

TEKHEMBA AYUA AND 2 ORS VS. MRS ESTHER

FARIMO GBAKA (SUPRA)

copiously cited by the Appellant is distinguishable from the

facts and circumstances of the instant case. Also, that a

party who complains of denial of fair hearing has a duty to

prove that assertion in the light of the peculiar facts of the

case. After referring to the case of:

MAIKYO VS. ITODO (2007) SC (PT.II) 34,

Respondents Counsel submitted further that contrary to the

Appellant’s assertion, the learned

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trial Judge did accord the Appellant his right to fair hearing

in full, and the Appellant lost nothing by his Counsel’s

absence from Court. The learned trial Judge’s refusal of the

Appellant’s application for adjournment was also well-

reasoned, taking into account the antecedents of the

Appellant as well re-canted in his lordship’s ruling of the

24th day of February, 2016, on page 96 of the Records.

At the hearing of the motion for injunction, said Counsel,

the Respondents Counsel merely adopted his written

submission in support thereof without any further oral

submissions in adumbration.

He submitted that the Ruling on the Respondents motion

for interlocutory injunction itself demonstrated the learned

trial Judge’s appreciation of the Appellant’s right to fair

hearing. Thus, at page 96 of the Records, the following

passage appears in the ruling.

“The Respondent having filed the process which is in

the Court file, the Court decided to look at its

contents. As it is trite that Court can rely on any

document or fact already before it or forming part of

its record for determination of any issue

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before it. See: NIGER GATE VS. NIGER STATE

GOVERNMENT (2008) ALL FWLR (PT.408) PG. 1938

AT 1946 “from the counter-affidavit, the Respondents

admitted granting mining lease to Platon Rocks and

Minerals Limited”.

Counsel submitted that this passage shows that the learned

trial Judge accorded the Appellant in full, his right to fair

hearing as required by law. He referred to the case of:

NEWSWATCH COMMUNICATIONS LTD VS. ATTA

(2006) 4 SC (PT.II) 114

and declared that the complaint of denial of fair hearing is

no more than a phantom.

The antecedents of the contentions of the parties in relation

to Issue three would be better understood by reference to

the proceedings of the Court on 6/01/2016 and 8/02/2016

which are hereby reproduced from pages 88 - 90 of the

printed Record.

6/1/2016

Parties are in Court

Mr Mathew Ogunleye: for the claimant

Mr. M. O. Aminu with me are B. J. Adedayo and G. O.

Rotimi for Defendant/Counter Claimants.

Mr Ogunleye: All processes have been filed and served. We

seek the indulgence of the Court to file our response to

their defence.

Mr Aminu: No objection to

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file response to our defence in counter-claim provided due

process is followed.

Signed

Judge

6/1/2016

Court: This case is adjourned till 8/2/2016 for mention.

8/2/2016

The 2nd Defendant/Counter-Claimant is in Court.

The Claimant is absent.

The 1st Defendant/Counter-claimant is absent.

Counsel for Claimant is absent.

Mr. M. O. Aminu with B.J. Adedayo and G.O Rotimi for

Defendant/Counter Claimants.

Mr. Aminu: The case is for mention. At the last adjourned

date we told Court we have filled our statement of defence

and counter-claim on 8/12/2015. Since then there is no

reply to our counter-claim. On 6/1/2016 we were here, I

raised the same point, learned Counsel for claimant sought

for adjournment till today within which to regularize their

position. The only thing I saw is a letter of adjournment.

Assuming but without conceding that he is entitled to an

adjournment, they ought to have taken steps at least by

filing document before the Court. The claimant themselves

are not before the Court. This is deliberately done. The

reason is not farfetched. Upon filing and service of our

statement of defence and

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counter-claim, problem started they are jittery. What we

have attempted to prevent from being destroyed they have

accelerated the destruction. There are so many applications

before the Court. At least 20 trailers come to site every day

since they were served the processes.

On 13/1/2016, we filed a motion for interlocutory

injunction, the respondents were duly served as well, there

is no counter-affidavit. As at last Friday, the rate at which

marbles were extracted was alarming while our application

is still pending. I urge the Court to invoke Order 56 of the

rules Court to make an interim order restraining the

claimants, their agents or privies from further tampering

with the marble site pending the determination of the

motion on notice.

On the letter, they suggested four dates- 4, 11, 16 or 17 of

March. We stood by 17th March. We request for cost of

N50,000:00 against the claimant if the case would be

adjourned.

Signed

Judge

8/2/2016

Court: I have noted the counsels (sic) submission. I am not

disposed to granting an interim order of injunction since

the motion on notice is pending. The case is slated for

motion today and as

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far as I am concerned this letter is not tenable, counsel can

proceed with the motion on notice. From the Court’s file

there is no counter affidavit. Or if the counsel is not ready I

strike out the application.

Signed

Judge

8/2/2016

Mr. Aminu: we have a humble application. It is dated

12/1/2016 and filed 13/1/2016 it is brought pursuant to

Order 11 Rules 1, 2 (1) and (2) of Kwara State Civil

Procedure/Rules 2005. The application is praying for an

order restraining the Defendants/Respondents, his agent

and privies from further managing the marble site or giving

approval or lease on any part of the land where marble is

discovered in Oreke land in Ile-Ire district in Ifelodun Local

Government Area of Kwara State for the purpose of

extracting or quarrying henceforth pending the

determination of the substantive suit before the Court.

There are 4 grounds. In support of the application, is a 9

Paragraphs a f f i dav i t deposed to by the 1s t

Defendant/Counter-Claimant. We rely on all the paragraphs

therein. In line with the rules of the Court is a written

address which we adopt. We rely on all the processes. All

the requirements of the Law are

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highlighted and we complied with all requirements. We

urge the Court to grant the application.

Signed

Judge

8/2/2016

Court: This case is adjourn (sic) till 15/2/2016 for ruling.

The following facts emerge from the events that took place

on 6/01/2016 and 8/02/2016 vis a vis the totality of the

printed record.

1. The suit was adjourned on 6/01/2016 to 8/02/2016 for

mention to enable the Claimant’s Appellant’s Counsel to file

response to Respondents defence in counter claim.

2. The motion for interlocutory injunction by the

Respondents was filed on 13/01/2016.

3. The motion for interlocutory injunction by the

Respondents itself came up for the first time in Court on

8/02/2016.

4. The Court’s cause list of Monday the 8th day of February

2016 listed the suit between the parties as “civil case for

mention” (see page 94 of the records)

5. On 8/02/2016, the learned Counsel for the

Claimant/Appellant was absent from Court but had written

a letter for adjournment on health ground supported by

medical certificate.

6. Learned Counsel for the Respondent himself conceded

adjournment and

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prayed the Court for costs of N50,000:00.

7. The Claimant Appellant had not filed a counter affidavit

nor a written Address in opposition to the written Address

in support of the interlocutory application brought by the

Respondents.

8. The Court refused the Claimant’s Appellants application

for adjournment even when it was not opposed by the

Counsel to the Respondents.

On these facts, the critical question that arises in relation

to fair hearing is whether a reasonable man viewing the

proceedings could come to the conclusion that the Claimant

Appellant was given a fair hearing on the matter of the

interlocutory application brought by the Respondents. I will

answer that question in the negative.

In the first place, where an application for an adjournment

is made to a Court, the Court should bear in mind the

requirement that justice should be done to both parties and

that it is also in the interest of justice that the hearing of a

case should not be unduly delayed. It should grant the

adjournment if as in the instant case, a refusal of the

application is most likely to defeat the rights of the parties’

altogether or be an

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injustice to one or other of them unless there is a good or

sufficient cause for such refusal.

If otherwise, an appellate Court will not only have power

but will be under a duty to review the ruling refusing the

application.

See: RASAQ A. SALU VS. MADAM TAWURO EGEIBON

(1994) 6 SCNJ 223.

Secondly, it has long been established that fair hearing is

synonymous to fair trial and that whether there has been a

fair hearing is one of substance, not of form and must

always be decided in the light of the realities of any

particulars case.

See:OLAWOYIN & ORS VS. COMMISSIONER OF

POLICE 1962 N.N.L.R.29

In the instant case, the Claimant Appellant could not be

said to be given fair hearing in relation to the interlocutory

application brought by the Respondents. The motion for

interlocutory injunction was heard on the first day it came

to Court, in the absence of the Appellant’s Counsel who in

fact furnished a genuine excuse for his absence and his

application for adjournment was not opposed by the

Respondents Counsel. Meanwhile the learned trial Judge

hurriedly took the Respondents motion without any

counter-affidavit or

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opportunity to file one by the Claimant Appellant.

In this circumstance, we are bound by the observation of

the Court in the case of:

TEREHMBA AYUA AND 2 ORS VS. MRS. ESTHER

FARIMO GBAKA (1997) 7 NWLR (PT. 514) 659 AT

670 that:

“it is both a fundamental and an elementary principle

of the administration of Justice that whenever it is

possible to determine a case on its merits the Court

should not succumb to the temptation of hastily

determining it in limine without hearing the

complainant because of the delay which may arise

from the temporary inability of the complainant to

prosecute his case. There is the real need for the

Court to appreciate the interest of the proper

administration of Justice which demands that a

complainant should be given reasonable opportunity

to present his case for its determination on the

merits”.

In the light of the above, Issue three is resolved in favour of

the Appellant.

Issue Three in this Appeal has turned out to be a

determinant issue and having resolved the said Issue three

in favour of the Appellant, I consider that the Appeal is

meritorious and it is accordingly

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allowed by me.

The Ruling of T.S. Umar, J. delivered on 24th February,

2016 in Suit No. KWS/OM/8/2015 is hereby set aside. Suit

No. KWS/OM/8/2015 is remitted to the Honourable, the

Chief Judge of Kwara State for assignment to another Judge

of the High Court of Kwara State.

The sum of Thirty Thousand Naira (N30,000:00) Costs is

awarded to the Appellant.

HAMMA AKAWU BARKA, J.C.A.: The judgment just read

was made available to me in draft before now.

The claim therein are for declaratory reliefs, an order of

perpetual injunction and order restraining the 1st

defendant from parading himself as the Oloreke of Oreke

land. The defendant counter-claimed and also sought for

declaratory reliefs, order to account as well as order for an

interlocutory injunction. The determinant issue as

identified in the lead judgment is whether or not by

refusing the adjournment sought for by the counsel to the

claimant/appellant and by going ahead to hear the

application for interlocutory injunction when the

application was fixed for mention on the 8th February,

2016, the learned trial judge afforded the appellants any

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fair hearing.

The attributes of a fair hearing has been enumerated in the

case ofSaba Vs. N.C.A.T.C (1991) 5 NWLR (pt. 192)

388, as including

i. That the Court shall hear both sides not only in the case

but also in all material issues in the case before reaching a

decision which may be pre judicial to any party in the case.

ii. That the Court or Tribunal shall give equal treatment,

opportunity and consideration to all concerned;

iii. That the proceedings are held in public and all

concerned shall have access to, and be informed of such a

place of public hearing.

iv. That having regard to all the circumstances, in every

material decision in the case, Justice must not only be done,

but must manifestly and undoubtedly be seen to have been

done. The appellant's complaint relates to the refusal of the

trial Court to entertain his application for adjournment on

health grounds. Certainly there cannot be fair hearing

where as in this case, the trial Court not only refused the

application for adjournment by counsel, but also failed to

indicate that the respondent (appellant) was afforded the

opportunity to respond to the application. My

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Lord MOJEED ADEKUNLE OWOADE JCA/PJ, in the lead

judgment creditably dealt with the issue to my utmost

satisfaction. The issue having succeeded as it should, the

determination of the other issues are of no moment. This

appeal therefore succeeds, and the ruling of the lower

Court delivered on the 24th of February, 2016 in suit No.

KWS/OM/8/2015 is hereby set aside. I also order that the

case be remitted to the Chief Judge of Kwara State to be re-

assigned to another judge. I abide on order as to costs in

the lead judgment.

BOLOUKUROMO MOSES UGO, J.C.A.: I had the

opportunity of reading in advance the lead judgment of my

learned brother, the Honourable Justice Mojeed Adekunle

Owoade J. C. A. and I agree with his reasoning and

conclusions.

I also allow the appeal and align myself with all the orders

made in the lead judgment, including the order as to costs.

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