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SUIT NO. SC 47/1985

22ND APRIL, 1986

3PLR/1985/24  (SC)









OPUTA, J.S.C.   



Mr. Akinlolu Akiyode – for Appellant

Mr. A.O. Adefala – for Respondent



Practice and Procedure – Adjournment – Unopposed application by respondent for accelerated hearing of appeal and departure from rules granted and counsel holding brief for appellant’s counsel called upon to proceed – Adjournment sought by him but refused and appeal thereupon argued by him – Further appeal against Court of Appeal judgment upholding High Court reversal of Rent Tribunal’s decision – No resultant miscarriage of justice shown – Appeal dismissed



ESO, J.S.C. (Delivering the Lead Judgment):

This appeal came before the Court of Appeal on 19th March, 1984. On the day the record shows as follows, after the respondent here had asked for accelerated hearing of the appeal before that court:

“Otomiewo: (for the present appellant) not opposing the application for accelerated hearing and a departure from the rules to hear the application.

Adefala: Formally moves an application for accelerated hearing and a departure from the rules to hear the appeal on the papers filed. Relies on affidavit in support and urges court to grant the order as prayed.

Court: Order as prayed. The appeal will be heard today.”

After this order Mr. Otomiewo for the appellant applied for an adjournment to enable his senior who was then in Benin City to be present to argue the appeal as he was not seised of the facts of the case.

Mr. Adefala opposed this and the court went on with the hearing of the appeal whereupon Mr. Otomiewo presented arguments on the grounds of appeal before the court. After hearing Mr. Adefala the court adjourned for judgment, and later gave a considered judgment spanning over six pages. The court examined all the issues very thoroughly and dismissed the appeal saying there was ample evidence before the Rent Tribunal for the Chief Judge to reach the decision he came to.

The appellant was dissatisfied with the decision and has appealed to this court mainly on the ground that the Court of Appeal after granting accelerated hearing should not have proceeded with the hearing of the appeal that same day. Be it noted that counsel for the appellant in the Court of Appeal agreed to a waiver of the rules of the Court of Appeal even before a formal application for accelerated hearing was made by the respondent.

In this court, we have given learned counsel opportunity to urge upon us those grounds he would have urged upon the Court of Appeal on 19th March 1984 (two years ago) had he been personally present. Counsel, even after two years, and having been in the case from the Court of Appeal, said he needed time to do his home work. We offered him three hours for this “home work” he would not accept the offer.

Of course there Is a no merit whatsoever in the appeal before us. It is absolutely strange that learned counsel should come with such frivolous appeal to this court. This court is not a play ground or theatre to exhibit to clients. On the merits of the case itself I have read the entire record and there is no iota of merit in the case. The evidence was abundant that no reasonable tribunal could have come to a contrary conclusion from that arrived at by the High Court (over-ruling the decision of the Tribunal) and of the Court of Appeal.

The appeal fails and it is hereby dismissed, without even our calling upon the respondent. The appellant shall pay costs of N300.00 to respondent.

UWAIS, J.S.C.: I agree that this appeal has no substance and that it should be dismissed. I endorse the order made by my learned brother Eso, J.S.C.

COKER J.S.C.: I agree that the appeal should be dismissed. The learned counsel has been given the opportunity for an adjournment for say three hours to get his papers and argument ready but has declined the offer. He says he has some additional evidence to put before the court and that he had no opportunity of doing so before the lower court. He has also declined to address the court when offered the opportunity on any point which he had intended or could have argued in the court below. As regards the merit of the appeal, I see the whole issue as one of fact. The question is who was the actual tenant of the L.S.D.P.C. of the premises? The record and receipts were all in the name of the respondent. Appellant himself admitted they were all in the respondent’s name and that he was paying rents to him or in his name. It was a case of landlord and tenant and I cannot see how the tribunal could have decided the case otherwise than on that basis. The appellant could have instituted an action in the High Court for declaration of his claim of ownership. He never did. As no argument has been urged to justify interference with the decisions of the two lower courts, the appeal is therefore dismissed and the judgments of the High Court and the court below are affirmed. N300.00 costs to the respondent.

KAWU, J.S.C.: I am in entire agreement with the judgment of the Presiding Justice which has just been read. In my view, there is no merit whatsoever in this appeal. I too would dismiss the appeal. The appeal is hereby dismissed with N300.00 costs to the respondent.

OPUTA, J.S.C.: This appeal lies within a very short compass. This case started in the Rent Tribunal where the plaintiff lost. On appeal to the High Court the plaintiff won. The order of the Rent Tribunal was set aside and the defendant now appellant was ordered to vacate the premises in dispute. He (defendant) appealed to the Court of Appeal.

In that court, there was an application for accelerated hearing brought by the plaintiff who was respondent in that court. That application was not opposed by the appellant. On granting the application, the Court of Appeal then called on learned counsel for the appellant to proceed. He asked for an adjournment which was refused and rightly too in my view. It has to be pointed out that where counsel holds another counsel’s brief, he holds it for all purposes including going on with the case/appeal if the court so decides. There is nothing like holding a brief for adjournment only. Before accepting to hold another counsel’s brief, counsel should ensure that they are fully and adequately briefed.

Having refused the application for an adjournment, the appeal was fully argued and the Court of Appeal dismissed the appeal after hearing both sides. In this court, learned counsel for the appellant complained about ‘failure to accord the appellant fair hearing.” There cannot possibly be a breach of the rules about fair hearing when counsel on both sides were heard and fairly too. Refusal to grant an adjournment is not ipso facto a breach of the rules requiring fair hearing. It is an invitation for the appeal to be heard. If there was anything in the hearing of the appeal offending the rules of natural justice or section 33 of the 1979 Constitution, then the appellant can complain but not otherwise.

We now have a situation where the appellant lost in the High Court and the Court of Appeal. It is the policy of this court not to interfere with the concurrent findings of two courts unless it is shown that there was a miscarriage of justice, a violation of some principle of law or a serious error of procedure. The authorities in support of the above proposition are many but see Enang v. Adu (1981) 11/12 S.C. 25 at p.42: Ojomu v. Olojo (1983) 9 S.C. 22 at p.53. There was here no miscarriage of justice or any other exacerbating circumstance.

At p.217 lines 19-26 of the record, there is an affidavit sworn to by the plaintiff/respondent that he has in fact bought the house. There was no counter-affidavit. This being so, the property in dispute belongs to the plaintiff/respondent. I do not see what else will be urged in this court. The appeal is totally lacking in merit. It is hereby dismissed. There will be costs to the respondent which I assess at N300.00

Appeal dismissed.



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