"It is trite that every application for an adjournment whether made in writing or orally which is properly submitted before the court must be heard on the merits and decided upon before proceeding further with the case. It is never in dispute that the granting or refusal of an application for adjournment rests completely with the court or tribunal before which the application is made. It is at the discretion of the court to grant an adjournment. But there must be a ruling on the application and not as was done in this case. Although there is an application for adjournment and an opposition to it, there is no ruling on the face of the record of appeal. The court below ought to have decided it one way or the other before taking further steps in the matter. See FBN PLC V. Assom (2011) LPELR, Bamawo V. Garrick (supra) and Olumesan V. Ogundepo (supra). Again, in an application for an adjournment, the court must balance the discretionary power to grant or refuse an adjournment and endeavor to give an appellant the opportunity of obtaining substantial justice in the shape of his appeal being granted a fair hearing on its merits provided always that no injustice is thereby caused to the other party and where the court erred in its balancing exercise, an appellate court is at liberty to interfere. See University of Lagos & Anor. v. M. I. Aigoro (1985) 1 SC 295. In Abiodun Adenike Odusote V. Olaitan Olaniji Odusote (1971) ALL NLR 221 at 225-226, Udo Udoma, JSC (of blessed memory) sermonized on this issue as follows:- "On the question of the exercise of discretion in granting application for adjournment, it is pertinent to quote a passage in the judgment of Lord Wright L. J. in Evans V. Bartham (supra) to which our attention was drawn by the learned counsel for the appellant. In his judgment, Lord Wright said at page 487: "A judge's order fixing the date of trial or refusing to grant an adjournment is a typical exercise of purely discretionary powers, and would be interfered with by the Court of Appeal only in exceptional cases, yet it may be reviewed by the Court of Appeal. Thus in Maxwell V. Keun (1928) 1 KB 645, the Court of Appeal reversed the trial judge's order refusing to the plaintiff an adjournment. That was a pure matter of discretion on the facts." Atkin L. J. said at page 653: "I quite agree the Court of Appeal ought to be very slow indeed to interfere with the discretion of the learned judge on such a question as an adjournment of a trial, and it very seldom does so but on the other hand, if it appears that the result of the order made below is to defeat the right of the parties altogether, and to do that which the Court of Appeal is satisfied would be an injustice to one or other of the parties, then the court has power to review such an order and it is, to my mind, its duty to do so." See Evans V. Bartham (1937) A. C. 473. In this case, the refusal to grant the adjournment, apart from the fact that the court below failed to rule on the application for adjournment, it had the effect of terminating the appellant's appeal completely without offering them the opportunity of being heard on the merit. This is more so when the processes were filed, though out of time. It is my view that the Lower Court ought to have ruled on the application before taking further steps in the matter. Unfortunately, the further step taken was to dismiss the Appeal. By this singular act, the appellant was denied his right to be heard in his appeal before the court."
Per OKORO, J.S.C. in
ENAYE SISAMI RICHARD ABAH v. ERIBO MONDAY & ORS (2015) LPELR-24712(SC)
SUMMARY
This case is on practice and procedure and consequent upon the withdrawal of a defective motion filed on behalf of the appellant which was accordingly struck out, his counsel applied for an adjournment to enable him take steps to regularize the said process. The 1st respondent's counsel opposed the appellant's application for adjournment and instead applied orally for the dismissal of the appeal under Order 8 Rule 18 of the Court of Appeal Rules, 2011. At the material time, there was also pending in the Lower Court an application for stay of further proceedings of the matter in the trial Federal High Court filed by the appellant. The Lower Court nevertheless dismissed the appellant's appeal for failure to transmit the record of Appeal within the prescribed time pursuant to Order 8 Rules 4 and 5 of the said Court of Appeal Rules, 2011. The Lower Court then also dismissed all the pending applications including the appellant's said application for stay of further proceedings. The Lower Court nevertheless dismissed the Appellant's appeal for failure to transmit record of appeal within the prescribed time pursuant to Order 8 Rules 4 and 5 of the Court of Appeal Rules, 2011. The Lower Court also dismissed all the pending applications. The appellant being dissatisfied with the ruling of the Lower Court, filed an appeal against same to this court and from his three grounds of appeal, the appellant has distilled two issues for determination as follows:- 1. Whether the Lower Court infringed on the appellant's fundamental human right to fair hearing. 2. Whether in the peculiar circumstances of this case, the Lower Court had the jurisdiction to have dismissed the appellant's appeal. Counsel for the 1st respondent adopted the two issues nominated by the appellant for the determination of the appeal. The other respondents did not file any brief. The appeal succeeded in part and the order of dismissal of the appeal entered by the Lower Court on 12/12/13 was set aside. In its place, an order striking out the said appeal was made. The request or prayer of appellant's counsel to invoke Sections 22 and 26 of the Supreme Court Act to hear and determine the appeal was refused reason being that the appeal had just been struck out. No order as to costs. Appeal allowed in part.
