CHIEF EZENIYILI UZOWULU (ODUAH) & Others v MR. OFULUE AKPOR & Others (CA/B/194/1999) [2014] NGCA 36 (20 January 2014)

 

MAIN JUDGMENT

 

MOHAMMED MUSA SAULAWA, J.C.A. (Delivering the Leading Judgment):

The instant appeal is a fall-out of the Judgment of the High Court of Justice of Delta state, Asaba Judicial Division, which was delivered on November 3, 1997 in Suit No. A/147/94.  By the Judgment in question, the lower court, Coram M. C. U. Odita J; granted all the declaratory and injunctive reliefs sought by the Respondents (Plaintiffs) against the Appellants (Defendants).  Not unnaturally, the Appellants were utterly dissatisfied with the Judgment.  Thus, by the original notice of appeal thereof, dated December 22, 1997, the Appellants appealed to this court seeking the following reliefs:

(1) To set aside the decision of the learned Judge sitting at the High Court of Justice, Asaba dated the 3rd day of November, 1997 and to allow the appeal and dismiss the Plaintiffs/Respondents case.

(2) In the alternative, to declare the while proceedings and Judgment a nullity and send the suit back for retrial before another Judge.

BACKGROUND FACTS:

The circumstances surrounding the present appeal are not at all far-fetched.  Undoubtedly, they are deducible from the record of appeal that's evidently transmitted from the court below to this court since about sixteen years ago i.e. on July 21, 1999.

It is evident from the record (pages 1 - 3), that the Respondent had filed in the court below the said suit (No. A/147/94) vide a writ of summons, seeking various declaratory and injunctive reliefs jointly against the Appellants.  By paragraph 20 of the statement of claim thereof, filed on November 22, 1994, the Respondents claimed against the Appellants the following declaratory and injunctive reliefs –

a. Declaration that the purported coronation of the 2nd to 4th defendants is null and void and in contravention of Oko-Amakom Native Law and Custom.

b. Declaration that the Uwaile quarters of Oko-Amako, which the defendants represents (sic) is not a ROYAL quarters and is not entitled to partake in the taking of the Onihe title, but the exclusive right of the Idoko quarters of Oko-Amakom to which the plaintiffs belongs (sic).

c. An order of perpetual injunction restraining the first defendant from further parading himself as the Onihe of Oko-Amakom.

Pleadings having been filed and exchanged, the suit eventually proceeded to trial.  The Respondents (Plaintiffs) called four witnesses in the persons of the following: (i) OBI ANYAFULU CHRISTOPHER (PW1); (ii) PAUL OZA, PW2; (iii) HUMPHREY EMODI IFEANYI OBUMSE (PW3); and (iv) PATRICK AZUKA IWEZE (PW4), respectively.

On the part thereof, the Appellants called three witnesses in the persons of the following: (i) ENWUNMA COLLINS (DW1); (ii) ENEBELI PETER OGBUCHI (DW2); and (iii) MADINENYE NWADIOWE, (DW3), respectively.  However, on 07/8/97, when the matter came up at the lower court for continuation of hearing, Emodi Esq, the Appellants' counsel orally applied to withdraw his appearance.  The lower court readily granted Emodis' application.  Consequent upon which, the Appellants orally informed the court that they needed to brief another counsel to prepare and present their address.  Not unexpectedly, Mr. Egonu, SAN vehemently objected to the Appellants' application for an adjournment to enable them brief another counsel.  The lower court upheld Mr. Egonu, SAN's objection and accordingly adjourned the matter to November 3, 1997 for Judgment.  Where upon, the lower court proceeded to deliver the vexed Judgment on the said November 3, 1997 to the conclusive effect, thus:

The plaintiffs proved to my satisfaction how they came to own the title of Onihe.  Consequently I find as a fact and so hold that the plaintiffs are the rightful owners of the Onihe Chieftaincy title to the exclusion of the Defendants...
 

From the totality of the evidence before me which I have seriously considered I am satisfied that the plaintiffs have proved their case according to law.

 

Consequently, the lower court entered Judgment for the Respondents (Plaintiffs) regarding all the three declaratory and injunctive reliefs thereof against the Appellants (Defendants), to the following effect:

(1) I declare that the purported installation of the 1st defendant as the Onihe of Oko Amakom by the 2nd and 4th Defendants and their people of Uwaile Quarters, Oko Amakom, is null and void and that it is a contravention of the native law and custom of Oko Amakom.
 

(2) I declare that the Uwaile quarters of Oko Amakom, which the defendants represent is not entitled to install or to have any person from that quarter installed the Onihe of Oko Amakom.

(3) An order of injunction restraining the Defendants and their people of Uwaile from holding out any person from Uwaile quarter, Oko Amakom, as the Onihe of Oko Amakom or from installing any person of Uwaile quarter as the Onihe of Oko Amakom or for any person from Uwaile quarter of Amakom parading himself as the Onihe of Oko Amakom from doing anything in contravention of the rights and privileges of the Onihe of Oko Amakom.  I award costs of N1,000.00 for the plaintiffs against the defendants.
 

Thus, as alluded to above, the instant appeal is against the Judgment in question.
 

The parties had the privilege of previously filing their respective briefs of argument regarding the appeal.  Most particularly, the Appellants' extant Amended brief, dated June 18, 2013 was filed on June 19, 2013 by Harold G. Erhabor Esq. of Ken E. Mozia (SAN) & Co.  On the other hand, the Respondents' extant Amended brief was dated 14/10/13, but filed on 18/10/13.
The said Appellants' Amended brief of argument spans a total of ten pages.  At page 2 of the brief, four issues have been formulated for determination, viz -
 

(i) Whether the learned trial Judge was right when he rejected the document tendered by DW1 under subpoena (copied at pages 156 - 169) of the Records.

(ii) Whether the learned trial Judge was right when he rejected the document (copied at pages 170 - 181 of the Records) tendered by the DW2.
 

(iii) If the answer to (i) and (ii) above and No whether in a proper evaluation of the content of the rejected documents the lower court ought to have dismissed the plaintiffs' case.

(iv) Whether the Defendants were deprived of their right to fair hearing when the learned trial Judge refused to adjourn the matter to enable them instruct another counsel to present their address.

On the other hand, the extant Amended Respondents' brief dated 14/10/13 but filed on 18/10/13, was personally settled by Mr. GRI Egonu, SAN.  At page 3 of the Respondents' brief, the learned SAN has couched three issues for determination, viz:

(1) Whether the trial Judge was right in rejecting the documents sought to be tendered in evidence first by DW1 and thereafter by DW2.

(2) Whether the appellants were denied fair hearing?

(3) Whether on the pleadings and evidence at the trial the learned Judge was not right in entering Judgment for the Respondents in the case?

 

On 29/10/13, when the appeal last came up for hearing, the leading senior counsel, Ken. E. Mozia SAN adopted the Appellants' Amended brief filed on 19/6/13, and urged the court to allow the appeal, set aside the decision of the lower court and grant the reliefs sought in the appeal; to either dismiss the Respondents' case, or in the alternative, to remit the matter to the lower court for hearing by another Judge.

On the other hand, chief GRI Egonu, SAN adopted the Respondents' (Amended) brief filed on 18/10/13.  The learned silk submitted, that on the pleadings and evidence on record, the lower court, in entering Judgment for the Respondents, the right of fair hearing of the Appellants had not been breached.  Thus, he urged upon the court to uphold the said Judgment, and dismiss the appeal
In a nutshell, the submission of Mr. Mozia, SAN on issue No.1, is to the effect that the Appellants' case is that by a subpoena Duces Tecum duly issued by the lower court (page 95 line 5 of the Record), the Directorate of Chieftaincy affairs was (ordered) to produce and tender a "Letter dated 24th November, 1990, from Oko - Amakom Community to the Directorate."

Further submitted by the learned silk, that was the subpoena referred to by the DW1 in his testimony.  That, the DW1 testified that he had the documents. The said documents were duly certified true copies of what was in the custody of the directorate of Chieftaincy Affairs, Delta State.  Thus, no further foundation (was) needed to be laid before the documents, which were not only Certified True Copies, but in the custody of the Directory, could be tendered.  See Sections 109, 111 & 112 of the Evidence Act; THE UNITED INSURANCE CO. LTD VS. UNIVERSAL COMMERCIAL AND INDUSTRIAL CO. LTD (1999) 3 NWLR (Pt. 593) 17 @ 25 A - D; ANATOGU VS. IWEKA II (1985) 8NWLR (Pt. 415) 547 @ 572 paragraphs C - D; TORTI VS UKPABI (1984) 1SCNLR 214.

It was postulated by the learned SAN, that a look at pages 164 and 169 of the Records shows clearly that the preconditions stipulated in Section 111 (I) of the Evidence Act (Supra) were complied with. Therefore, the lower court was wrong in rejecting the said document, more so (when) the objection thereto had nothing to do with the requirements of Section 111 of the Evidence Act: ANATOGU VS. IWEKA (Supra); TORTI VS UKPABI (Supra).
According to the learned silk, the document tendered in the instant case, is clearly relevant and was pleaded in paragraph 13 of the Amended Statement of Defence (page 88 of the Records).  Thus, the court has been urged upon to admit the said document, marked rejected, and to rely on same.

On Issue No.2, the Appellants learned senior counsel submitted, inter alia, that the document in question is exactly of the same contents with the one referred to in Issue one.  However, the only difference is that the present document is a counter copy retained by the DW1 after it was signed.  See page 179 of the Records.

It was contended that the Ruling of the lower court, at pages 98 - 99 of the Records, thereby rejecting the document and so marked, was not tenable in law.  Thus, the court is urged to admit the said document as primary evidence, the same having been signed by the parties thereto as the weight to be attached thereto is a different issue altogether.

On Issue No.3, it was submitted, inter alia, that the Appellants (Defendants) pleaded in paragraphs 12 and 13 of the Amended Statement of Defence that a document reflecting the correct position on traditional chieftaincy titles of Oko-Amakom was produced by consensus, executed and forwarded to the Government.  This was to enable the Government rectify its own records as contained in the Schedule to the Traditional Rulers and Chiefs Edict, 1976.  A Certified True Copy of the said document tendered by DW1, was rejected for no good reason by the lower court.

Thus, according to the learned silk, had the lower court properly appraised the evidence which ought to have been admitted, it would have come to the irresistible conclusion that the Respondents (Plaintiffs) had failed to prove that they were exclusively entitled to the chieftaincy title of Onihe - See page 75 of the Records regarding the evidence of PW3; 136 of the Record, regarding the findings of the lower court.

The reference by the lower court, at page 138 of the Records, to DW4, is allegedly erroneous.  The reason being that "there was no DW4 in this suit."  Equally contended, was the fact the lower court placed reliance on the document not being the one sent to Benin when that fact was not referred to by the witness at all.

The Appellants' Issue No.4 relates to the vexed fundamental question of breach of fair hearing.  An allusion was made to pages 113G to 115 (Records) showing that the Respondents' (Appellants') counsel was permitted to withdraw from the case on 07/8/97.  However, the Appellants' request for an adjournment to brief another counsel was (allegedly) rejected by the lower court.  Instead, the lower court called upon them to address it, failing which they were foreclosed.  Whereupon, the lower court adjourned for Judgment.

It was submitted by the learned silk, that the lower court was wrong in not adjourning the matter; as it did not exercise its discretion judicially and judiciously in refusing the adjournment sought.  See OLORI MOTORS & CO. LTD. VS. UBN LTD. (1998) 6 NWLR (Pt. 554) 493; USIKARO VS. ITSEKIRI LAND TRUSTEES (1991) 2 NWLR (Pt. 172) 150; SALU VS. EGEIBON (1994) 6 NWLR (Pt. 348) 23.

Equally postulated by Learned SAN, that an address of a counsel forms a party's case.  And failure to hear the address of one party, however overwhelming the evidence on one side, vitiates the trial; as it's not a mere procedural irregularity, but a breach of the right to fair hearing.  See OBODO VS. OLOMU (1987) 3NWLR (Pt. 59) 111 @ 121; SALAMI VS. ODOGUN (1991) 2 NWLR (Pt. 173) 291; NDU VS. STATE (1990) 7 NWLR (Pt. 164) 550 @ 561; AMOUGH VS. ZAKI (1998) 3 NWLR (Pt.542) 483.

In conclusion, the court has been urged upon to allow the appeal and dismiss the plaintiffs' case because –

(i) The document dated the 20th November was wrongly rejected;
 

(ii) A proper appraisal of the evidence before the court including the document rejected reveals that the plaintiffs' case is manifestly unsupportable; and

 
(iii) The Appellants' right to a fair hearing was denied them.

 

On the other hand, as alluded to above, the Respondents' Amended brief of argument spans a total of 19 pages.  It was settled by G.R.I. Egonu, SAN.  At page 3 of the said brief, the learned silk has couched three issues for determination viz:

(1) Whether the learned trial Judge was right in rejecting the documents sought to be tendered in evidence, first by DW1, and thereafter by DW2?

(2) Whether the Appellants were deemed fair hearing?
(3) Whether all the pleadings and evidence at the trial the learned Judge was not right in entering judgment for the Respondents in the case.

 

In a nutshell, the submission of Mr. Egonu, SAN on issue No.1 is to the effect that, having regard to the evidence on record, it's clear that the subpoena referred to by the DW1 in his evidence at page 95 lines 3 to 7 of the Record of Appeal was not tendered before the court.  And that there was nothing connecting the documents sought to be tendered with the alleged subpoena in question.

It was further submitted, that the quotation under paragraph 4.1. at page 3 of the Appellants' brief, to wit –

"Letter dated 24th November, 1990, from Oko-Amakom Community to the Directorate."

 

was introduced into this appeal in the Appellants' brief; it's not part of the record of appeal.  Thus, it should be discarded.  It was an attempt by the Appellants to improve on their case at the trial.

It was postulated by the learned silk, that the two cases of UNITED NIGERIA INSURANCE CO LTD. VS. UNIVERSAL COMMERCIAL AND INDUSTRIAL CO. LTD. (1999) 3 NWLR (Pt. 593) 17, and CHIEF PHILIP O. ANATOGU & ORS VS. HRH IGWE IWEKA II & ORS (1995) 8 NWLR (Pt. 415) 547, have no application to the present appeal.  In both cases, (unlike in the present case) the documents sought to be tendered were produced before the trial courts.  See also the case of OBANWUNA OGBUNYIYA & ORS VS. OBI OKUDO & ORS (1979) 6 - 9 SC 32.

According to the learned senior counsel, for a decision or principle in a previous case to apply to a later case, the facts and circumstances of both cases must be the same, similar or substantially the same or similar.  See ADEGOKE MOTORS LTD VS. DR. BABATUNDE ADESANYA & ANOR (1989) 3 NWLR (Pt.109) 250 @ 256 - 266 G - A; 275 B - E; SUNDAY OBASOHAN VS. THOMAS OMORODION & ANOR (2001) 14 NWLR (Pt. 729) 206 @ 223 - 224, H - A; CHIEF ABUBAKAR ZIBIRI ODUGBO VS. CHIEF ALIU ABU & ORS (2001) 14 NWLR (Pt. 732) 45 @ 91 -92  H - C; 100 G - H.

Allegedly, from the evidence of DW1 at page 95 lines 3 to 7 of the Record, the DW1 appeared in court pursuant to the subpoena to the Directorate of Chieftaincy Affairs Asaba to tender document.  He was unsworn.  That, the DW1 could have produced the documents by placing the subpoena and the documents on the table in court where they could be identified and made evidence and use by other witnesses.  See R. VS. GREMORE (1961) NZLR 384 quoted at page 40 lines 29 - 41 in OGBUNYIYA'S case (Supra).

That the DW1 could also have entrusted the subpoena and the documents to the counsel for the party who caused the subpoena to be issued.  However, the DW1 wrongly turned himself into a witness in the case.  See ANATOGU'S case (Supra) at 589 paragraph.  In the instant case, the alleged subpoena was not before the court.  There was nothing connecting the documents sought to be tendered with the alleged subpoena.

One other remarkable point raised by the learned silk, is that the documents sought to be tendered in evidence through DW1 were not specifically pleaded.  Therefore, they could not be tendered in evidence.  See G.S. PASCUTTO VS. ADECENTRO NIG. LTD. (1997) 11 NWLR (Pt. 529) 467 @ 481 B - C; DR. A.A. NWANFOR ORIZU VS. FRANCIS E.A. ANYA EGBUNAM (1978) 5SC 21 @ 32 lines 13 - 35, 19.

Equally contended, that the document in question sought to be tendered being a public document, must be certified for it to admissible in evidence.  See Sections 96, 97 (1)(e)(f); 97 (2)(c); 109(a)(b); 111(1) and 112 of the Evidence Act CAP. 112 volume 8 Laws of the Federation of Nigeria 1990; JACOB A. JOLAYEMI & ORS VS. ALHAJI LAJIOLAOYE & ANOR (1999) 10 NWLR (Pt. 624) 600 @ 615 paragraph H; ERNEST NZEKWU & ORS VS. MADAM CHRISTIANA NZEKWU (1989) 2 NWLR (Pt. 104) 373 @ 404 paragraph G.

That, the said letter dated 24th November, 1990 was inadmissible, thus the lower court was right in rejecting same.  See NATIONAL INVESTMENT & PROPERTIES CO. LTD VS. THE THOMPSON ORG. LTD. & ORS (1969) 1 AII NLR 138 @ 142 lines 40 - 143, 5; ILASALI A. RAIMI VS. ALHAJI AKINTOYE (1986)5SC 87 @ 104 lines 20 105.

The said letter dated 24th November, 1990, was allegedly executed on 09/11/90 by the thumb-impression of the illiterate signatories thereto.  It was argued that as at 09/11/90, the letter in question (dated 24/11/90) was not in existence.

By paragraph 13 of the Appellants (Defendants) statement of defence, it's clear that the bundle of documents sought to be tendered through the DW2 were neither specifically pleaded nor certified as required under Sections 96, 97(1) (e) (f), 97(2) (c), 109, 111 and 112 of the Evidence Act (Supra).  Thus, the lower court was right in rejecting same. The court is urged to so hold.

On Issue No.2, it was submitted, without much ado, that the Appellants were not denied fair hearing in the trial of the case.  On the contrary, they were given fair hearing.

  
The Appellants allegedly applied all sorts of tactics in an attempt to delay determination of the suit. Various instances were given regarding the delay tactics applied by the Appellants at the trial of the case. That on 26/02/97, the suit was adjourned to 14/4/97 for the Appellants to start their defence. Yet, on the said 14/4/97, the Appellants applied for an adjournment which the lower court granted.  See page 80 lines 11 to 14; 93 line 9; 94 lines 6 to 10 of the Record.
 

Again on 12/5/97, the suit was adjourned to 05/6/97, for cross examination of DW3.  But on the said date, the Appellants' counsel was absent from court.  The case had to be adjourned.  On 10/7/97 and 31/7/97, the case came up for confirmation of cross examination, but Appellants' counsel was again absent from court.  The case suffered further adjournments to 07/8/97 at the instance of the Appellants' counsel.  On the said 07/8/97, the Appellants' counsel's application to withdraw from the case was granted by the lower court.
However, Mr. Egonu, SAN argued to the effect that notwithstanding the fact that the Appellants' counsel was –

granted permission to withdraw (from the case) he is still representing the defendants - appellants in this case up till this day.  See page 149 lines 24 to 29 and page 151 lines 10 to 41 of the record:

 

For the above postulation, the learned silk cited and relied upon the case of BOLA TINUBU VS. I.M.B. SECURITIES PLC (2001) 16 NWLR (Pt. 740) 670 @ 707 paragraph E.

Further contended, that the course taken by Appellants and the counsel thereof was merely a strategy in hope of defeating the course of justice.  Thus, the lower court was right in refusing the Appellants' application for further adjournment of the case on 7th day of August, 1997, and thereby adjourning the case for Judgment when the Appellants refused to address the court on that day.  For the above contention, the learned SAN cited and relied upon - NIGERIAN PORTS AUTHORITY VS. CONSTRUCTION GENERAL FARSURA COGEFAR SPA & ANOR (1974) 12 SC 81 @ 91 lines 21 to 36; E. CHAKA CATTLE RANCH LTD VS. NIG. AGRIC. AND COOPERATIVE BANK LTD. (1998) 4 NWLR (Pt. 547) 526 @ 544 paragraphs E - G;  OKON UDO AKPAN VS. THE STATE (1991) 3 NWLR (Pt. 182) 646 @ 662 Para. A; NIGER CONSTR. LTD VS. CHIEF A.O. AKUGBENI (1987) 4 NWLR (Pt. 67) 787 @ 792 para. H; CHIEF N. TONOBA EKARA VS. JOSEPH OKONGOTAKIN (1995) 5 NWLR (Pt. 394) 242 @ 251 - 252 paras H - A.

The case was adjourned by the lower court from the said 07/8/97 to 03/11/97.  Yet, the Appellants did nothing.  They were not serious in their complaint that they were denied fair hearing in the case.  The court was urged upon to hold by the learned silk. On Issue No.3, the learned silk alluded to the testimonies of the PW1, PW2, PW3 & PW4 and DW1, DW2 & DW3, respectively.  It was submitted, that as the lower court saw, heard and watched the demeanour of the witnesses when they testified, it was the responsibility of the lower court to make findings of fact on the evidence before it.  As such, the lower court is competent to believe or disbelieve a witness or a piece of evidence and to determine the case on the facts found by it.  See OYIBO IRIRI & ORD VS. ESE RORAYE ERHURHOBARA & ANOR (1991) 2 NWLR (Pt. 173) 252 @ 265 para. F; 273 para. G.

It was submitted that the lower court rightly and justifiably rejected the bundles of documents sought to be tendered in evidence by DW1.  And that, even if the lower court had admitted the bundle of documents in question, they would not have been of any assistance to the Appellants.  The reason being that (i) the letter in question (dated 24/11/90) was not read over and interpreted to H.H. Onihe Ofulue Olisa (an illiterate), and that the letter was not in existence on 09/11/90.  (ii)  the said letter did not comply with the provisions of Sections 2 and 6(1) of the Illiterates Protections Act CAP. 513 Laws of the Federation of Nigeria, 1990; and that (iii) the documents allegedly attached to the affidavits do not bear the certificate of the Registrar of the lower court, to show they were so attached.

Equally contended, that from the evidence of PW3 & DW2, the evidence of Oko-Amakom, Oko-Anala, Oko-Ogbele and Umuoko is an established fact.  There was no dispute that Udeaja founded Oko-Anala, Oko-Ogbele and Umuoko.  On the whole, the court has been urged upon to dismiss the appeal, and accordingly affirm the Judgment of the lower court.

Having accorded critical, albeit dispassionate, consideration upon the far-reaching submissions of the learned senior counsel, I am of the firm view that the issues raised in the respective briefs of argument thereof are not mutually exclusive.  I am of the considered opinion that the four issues raised in the Appellants' brief are apt for the determination of the appeal.  It's, therefore, my privilege to adopt the said issues for the determination of the appeal.  However, of the four issues raised in the Appellants' brief in question, the fourth issue deals with the fundamental question of denial (breach of) the right to fair hearing.  Thus, it ought to be accorded priority and determined first and foremost.
 

ISSUE NO. (IV):

As copiously alluded to above, the fourth issue raises the fundamental question of whether or not the Appellant (Defendants) were deprived of their respective right to fair hearing when the lower court refused to adjourn the matter to enable them instruct another counsel to present their address.  The said fourth issue was argued at pages 9 of the Appellants' extant Amended brief.  Correlatively, the Respondents' issue No. 2, argued at pages 10 - 16 of the brief thereof, equally raises the question of denial or otherwise of the Appellants' right to fair hearing.

Now, the starting point is the Record of Appeal alluded to by the learned senior counsel in the respective briefs thereof.  Most instructively, it's evident from the Record (especially at pages 113G - 114), that when the case came up at the lower court on 07/8/97 for continuation of hearing, Emodi, Esq. the erstwhile counsel for the Defendants (now Appellants), orally applied to withdraw (his appearance) from the case. Indeed, that application was granted by the lower court.  For the record, I have deemed it expedient to reproduce in verbatim proceedings of the lower court, especially at pages 113G to 114 of the Record, thus:

BEFORE THE HONOURABLE JUSTICE M.C.U. ODITA - JUDGE

ON THURSDAY THE 7TH DAY OF AUGUST, 1977

SUIT NO. A/147/97

CHIEF NWANOLUE IWEZE & 4 ORS.    :    PLAINTIFFS

AND
 

CHIEF UGBOLU OPENE & 3 ORS.    :    DEFENDANTS

3rd plaintiff present.

2nd plaintiff absent.

1st and 4th plaintiffs reported dead.

3rd and 4th Defendants present.

1st Defendant reported sick.

G.R.I. EGONU SAN for the plaintiffs with him D.I. Umeji.

A.O. Emodi for the Defendants.

 

MR. EMODI applies to withdraw from the case.  Says he has informed his clients and they agreed.

COURT: informed the Defendants that their counsel Mr Emodi wants to withdraw from the case.  Defendants agreed that Mr. Emodi should withdraw from representing them in this suit.

COURT: Mr. Emodi is permitted to withdraw from representing the Defendants in this case.

 

From the above record, it's obvious that the lower court, having expressly ruled granting Mr. Emodi's oral application to withdraw from the case, the Appellants (Defendants) no longer had a counsel to defend them from that very moment.  Not surprisingly, the Appellants (Defendants) applied –

"for an adjournment to consult another counsel”.  (Page 114, lines 4-5, Record).
 

Mr. Egonu, SAN, in his own wisdom, vehemently objected to the Appellants' application for adjournment on the grounds, inter alia, that to grant the adjournment would be akin to "continue delaying the continuation of this matter"; (ii) that on 31/7/97, the Appellants refused to produce DW3 for continuation of cross-examination; (iii) on 05/6/97, Mr. Emodi wrote to the court that he was indisposed; (iv) on 10/7/97, Mr. Emodi again wrote to say that he was indisposed, when he was actually before the Court of Appeal Lagos on that day; (v) on 31/7/97, the said Mr. Emodi was again unable to produce the DW3 for cross-examination, thus he closed his case; (vi) on 05/8/97, Mr. Emodi filed a motion for stay of proceedings of the case,  regarding an interlocutory appeal filed on 23/5/97 against a ruling of 12/5/97. Thus, according to Egonu, SAN -
"Interest of justice is for the court and the parties.  None of the parties should be allowed to toil with the administration of justice.  Urges court to refuse the application."

Hence, it was against the background of Mr. Egonu, SAN's strenuous objection that the lower court ruled, thus:

"COURT:  It is very clear that this is an attempt to play games to this court.  I shall not allow this (sic).  The application for adjournment is hereby refused." See page 115 lines 1 - 12 of the Record.