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SUIT NO. SC 281/1974

3PLR/1975/13  (SC)



(1975) 2 S.C. (REPRINT) 8









Land Law – Declaration that lease still subsisted – Damages for trespass to property – Perpetual injunction to restrain defendant from further acts of trespass – Interim Injunction – Failure to appear for hearing of motion – Plaintiffs claim dismissed – Refusal of adjournment.



ELIAS,C.J.N. (Delivering the Judgment of the Court):

This is an appeal from an order of Oputa, J., made on February 1, 1974, in Suit No. 0/186/71 at the Onitsha High Court dismissing the action filed by the plaintiff, The plaintiff’s claims against the defendant are as follows:


“(i)     A declaration that the lease dated 10th February, 1958 between Charles Emodi and Martin Anisiuba has not been determined; Or Alternatively a specific performance of the said Agreement.


(ii)     £200 damages for trespass on the said property to wit, two stores and three shops together with a strip of land between the shops and the New Market Road as described above.


(iii)    A perpetual injunction to restrain the defendant his servants, agents or assigns from further acts of trespass on the said property.”


The order made by the learned trial judge is as follows:


“Plaintiff in person. She says she has a lawyer who has not appeared. Plaintiff says she cannot go on without her lawyer. Counsel should endeavour to attend court to prosecute their cases. Failure to appear constitutes disrespect to the court and a dereliction of counsel’s duty to his client. The court cannot watt for counsel to appear when as he pleases.


Case is dismissed. Cost assessed at N50.”


What had happened may be summarised as follows. The plaintiff brought a motion, supported by an affidavit, on November 30, 1971 for an interim injunction to restrain the defendant from alienating the property in dispute consisting of two stores and three shops at No. 4 Market Road, Onitsha, and from reconstructing the house. An interim order to this effect was granted pending the hearing of the motion for an interim injunction. On December 13, 1971, both parties and their respective counsel were present when counsel for the plaintiff said that there was a move towards a settlement, and both parties asked for an adjournment to January 31, 1972, for mention and report of the terms of settlement.


On July 5, 1972, when it would appear that nothing had come out of the suggested settlement, the court made an order that the plaintiff should within 60 days file her Statement of Claim and plan and serve the same on the defendant who should also file his Statement of Defence and plan and, if necessary, serve the same on the plaintiff within the same period of 60 days. On July 7, 1972, the order of interim injunction made by Egbuna, J., on November 30, 1971, was struck out the order of injunction discharged when neither the plaintiff/appellant nor her counsel was present in court.


On August 19, 1972, the Statement of Claim was duly filed and the Statement of Defence was also filed on October 10, 1972. When the parties and their counsel next appeared on February 5, 1973, before Oputa, J., the case was adjourned to April 11 and 12, 1973 “for hearing.” On April 11, 1973, although the parties themselves were present in court, there was no representation by counsel on either side, and the case was again adjourned by Oputa, J., to July 2, 1973 “for mention.” On the latter date, both parties were present with their counsel but the case was again adjourned by Oputa, J., to October 16, 1973 “for hearing.” On that date, the parties were present, and so was counsel for the plaintiff, but counsel for the defendant was absent. Oputa, J., therefore, adjourned the case to January 14, 1974 for the general call over.” On January 14, 1974, both parties as well as counsel for the plaintiff were present but counsel for the defendant was absent. Oputa, J., again adjourned the case to February, 1974 for hearing. On that day, both parties and counsel for the defendant were present but counsel for the plaintiff was absent. The learned trial Judge then made the order of dismissal which we have quoted above.


Learned counsel for the plaintiff/appellant submitted that, while he would accept the chiding of him made by the learned trial Judge in his ruling, the adjournment which the plaintiff asked for should have been granted. He submitted that the learned trial Judge either gave no reason for refusing to exercise his discretion in favour of the plaintiff or, If he gave any reason at all, the reason should be reviewed by this Court. In support of this submission, learned counsel referred to our decision in Solanke v. Ajibola (1968) 1 All N.L.R. 46, especially our observation at p. 53 which reads as follows:


“Moreover, in the earlier case of Jones v. S.R. Anthracite Colliteries Limited (1921) 124 L.T.R. 462, where a Judge gave no reason for exercising his discretion in refusing an adjournment, Lord Stemdale, M.R. said at page 463 –


‘If the learned deputy County Court Judge had refused to grant the adjournment asked for upon grounds which showed that he had considered these matters and had come to the conclusion in spite of them and thought the applicant’s conduct, or that of his advisers, had been such as to make it unreasonable for him to grant an adjournment, then we should not have interfered. But no reason appears at all as to why he did it.’


We note too that in Egerton v. Jones (1939) All E.R., 889, Sir Wilfrid Greene, M.R. said at page 891 –


‘On the other hand, it is equally true that, when a matter involving discretion comes before a Judge, there must be in every case a number of considerations which he ought to have in mind for the purpose of enabling him to exercise his discretion. If it appears that he has taken into consideration something which he ought not have taken into consideration, or has omitted to take into consideration something which he ought to have taken into consideration, or if on all the facts this court is satisfied and convinced that the discretion has been wrongly exercised, it is the duty of this court to interfere.”


Learned counsel further submitted that the Judge, by refusing the adjournment asked for by the plaintiff, failed to consider the fact that injustice would be done to the plaintiff if her action was dismissed merely because she refused to go on without her counsel. We think, however, that it would be more correct to say that it was learned counsel’s remissness that provoked the learned trial Judge into making the order he did make. In other words, the learned trial Judge would appear to have dismissed the plaintiff’s claim because of the default of her counsel who failed to appear on the date in question.


Learned counsel also submitted that the learned trial Judge could have granted the adjournment asked for by the plaintiff and then awarded costs against him personally. He pointed out, quite rightly in our view, that the learned trial Judge had not exercised his discretion judicially because on the two earlier occasions that counsel for the defendant was absent, the learned trial Judge had merely adjourned the case further to February 1, 1974, without a word of complaint about the apparently unexplained absence of the defendant’s counsel. While we think that learned counsel for the appellant deserved the blame laid upon him by the learned trial Judge for his absence on February 1, 1974, we are of the opinion that he should not have refused the plaintiff’s plea for an adjournment till she was able, on a later occasion, to get her counsel to court or brief another one. The learned trial Judge should not have taken it out of the plaintiff who had almost always been present on previous occasions, as indeed she was on the fateful occasion. It seems to us that, as the Judge had had occasion to see the pleadings filed by both parties, he should not have allowed the default of counsel to make him dismiss the plaintiff’s claim when it must be obvious that to do so would defeat her claim altogether and thereby result in injustice to her. It would seem that the learned trial Judge was more angered by the dereliction of duty on the part of counsel than by anything for which the plaintiff could be blamed; indeed, his ruling shows clearly no default on the part of the plaintiff/appellant. The learned trial Judge obviously did not take into consideration all the circumstances of the case before dismissing the plaintiff’s action.


Mr. Ezeuko, learned counsel for the respondent, conceded that no blame attaches to the plaintiff personally in the circumstances of this case, and that such fault as there was had been that of her counsel alone.


We accordingly allow this appeal and set aside the judgment of Oputa, J., dismissing the plaintiff’s claim and we also set aside the order as to costs. We hereby order that the case be remitted back to the High Court of Onitsha for hearing before another Judge. We award t the appellant N124 as costs of this appeal, and order that costs in the High Court shall abide the result of the rehearing.


Appeal allowed.



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