OF LAGOS & ANOR V. AIGORO (1985) 16 (Pt 1) NSCC 88
K. Eleja & Co.
A. O. Mohammad Esq.
March, 2014
“The criteria by which the
exercise of a statutory discretion must be judged have been defined in many
authoritative cases, and it is well settled that if the discretion has been
exercised bona fide, uninfluenced by irrelevant considerations and not
arbitrarily or illegally no court is entitled to interfere even if the court
had the discretion been theirs might have exercised it otherwise”
Mobil Oil
(Nig) Ltd. Vs
Federal Board of Inland Revenue (1977) 3 S.C. 97 at 141
1.01     This is a case review of the Supreme Court
decision in UNILAG & ANOR V. AIGORO (1985) 16 (pt. 1) NSCC 88. For clarity
purposes, the title of the case has another version, albeit with a different
citation. The present case under review was the earlier decision of the Supreme
Court in 1985 which came up for determination upon a dismissal of the appeal by
the Court of Appeal for want of diligent prosecution.
1.02     The latter decision is cited as UNILAG
& ANOR v. AIGORO (1991) 3 NWLR (Pt. 179) 376, which subsequently came up
after the earlier decision in 1985.
1.03     This review will give a brief analysis of
the facts of the case, the reasons for the decisions of the court, the
application of the principles therein and a number of cases where those
principles have been applied. The review will conclude with a brief practical
approach to the case.
2.00     FACTS
2.01     The plaintiff/respondent claimed jointly
and severally against the defendants/appellants a declaration that he was the
Deputy Chief Engineer of the University of Lagos, and also that the purported
anticipatory breach of contract between him and the University was null and void.
He also claimed an injunction restraining the university from committing breach
of contract. In the alternative, he claimed N50,000 damages for breach of
2.02     After
hearing the evidence, the trial judge granted the declarations sought and awarded
N12,200 as damages for breach of contract with N1000 costs against the
university. He dismissed the claim against the vice chancellor, with no order
as to costs.
2.03     Being dissatisfied with the judgment, the
defendants appealed to the Court of Appeal. The court of Appeal dismissed their
appeals for want of prosecution without hearing on the merits. On the hearing
date, the appellants had applied for an adjournment, their reasons being
firstly that they had not received the appeal record and secondly that their
counsel was ill.
2.04     The court of appeal refused the application
on the grounds that the defendants had failed to produce a medical certificate
of their counsel’s illness, that the counsel holding brief refused to argue the
appeal on the spot with the court’s copy of the record consisting of 400 pages
and concluded also that the defendants were no longer interested in pursuing
their appeal. The court also awarded N700 as costs against the appellants. The
appellants appealed to the Supreme Court for the refusal of their application
for adjournment by the court of Appeal as well as the order of dismissal for
want of prosecution.
3.00     HOLDINGS/
3.01     In a
unanimous decision of the apex court, the court allowed the appeal, with the
following reasons
a.         An appeal
court will only interfere with
judicial discretion exercised by a lower court where the discretion has been
exercised arbitrarily, guided by irrelevant considerations, under a
misconception of law, under a misapprehension of fact, illegally, or where such
has not been exercised bona fide, or in any way where it is in the interest of
justice to do so.
b.         The guiding principle in the exercise
of discretion is to make sure that it is exercised judicially and judiciously
on sufficient materials.
c.         A court must balance its discretionary
power to grant or refuse an adjournment with its duty to endeavor to give the
party asking for same the opportunity and also not doing injustice to the other
4.00     ANALYSIS
4.01     The
above principles were enunciated in the lead decision by Bello JSC (as he then
was). While reviewing the facts, his lordship made reference to the records of
appeal on the particular date when counsel to the appellant asked for an
adjournment because they hadn’t the records which would guide them in
preparation for additional grounds, and that counsel who handled the matter in
the trial court was indisposed. As against the application, counsel on behalf
of the respondent submitted that the grounds for the objection were untenable
and submitted that the appellants were not interested in the appeal. He further
strengthened his stand by insisting that both the Vice chancellor and Registrar
of the University, who were the principal actors had left the university.
4.02     The
decision of the Court of appeal was in line with the submissions of the
Respondent’s counsel. Holding that the appellants had the obligation to source
out the record of appeal, that five grounds had already been filed, that the
court was even ready to lend him a copy, there and then, that there was no
proof of illness of the counsel who handled the case in the lower court and
that the chief participants have left the school.
4.03     The
Appellant’s case was that there was no evidence before the court before it formed
the opinion that the appellant had no interest in the appeal, that there was no
evidence of the departure of the named officers (as the case was against the
university and not the officers), that the lawyer’s statement from the bar was
sufficient enough to prove his colleagues absence in court.
4.04     In
resolving the issues, the court reiterated the position of law concerning the
status of an institution suing in its own capacity, that the lower court took
irrelevant issues into consideration, did not take the vital ones into
consideration (like the payment of additional fees, records was duly dispatched
on time), that it would have been impossible for the counsel to go through 459
pages when the court below offered to give out its own record of appeal. The
summation of the lead judgment was therefore that the court took irrelevant
things into consideration and shut its eyes to the relevant ones while
exercising its discretion.
4.05     It
is worthy of note that these guiding principles had come up before the same
court in Odusote v. Odusote (1971) 1 All NLR 219 at 233 as Nnamani JSC (as he
then was) quoted out the relevant portion which reads:
“it is a well established principle of
law that all judicial discretions must be exercised according to common sense
and according to justice and if there is any miscarriage of justice in the
exercise of such discretion, it is within the competence of a court of appeal
to have it reviewed”
4.06     As
the apex court had noted, the court below clearly shut its eyes to the relevant
materials and clothed its reasons with irrelevant ones. One of such mentioned
by the court was the issue of timing, and its relevance towards determining the
interest of the appellant in prosecuting the appeal. In his lead judgment, Eso
JSC (as he then was) restated the fact that the appellants had satisfied all
the conditions of appeal including the payment of additional fees which had
been brought to their notice on 10th May, 1982; that the appeal had
not unduly waited for hearing because the record was dispatched to the Court of
Appeal on 2nd April 1982 and the court fixed its hearing on 24th
May, 1982; that the court did not check from its record when counsel to the
appellants was served with the hearing notice, which according to the
appellant’s counsel was 23rd May, 1982.
4.07     Similar
cases over the years have been decided on the same front, as appellate courts
try to examine the exercise of jurisdiction by lower courts. On adjournments,
the Supreme Court in the case of Nwadilogbu v. A.L.R.B.D.A. (2011) All FWLR (Pt
562) 1612 did not disturb the exercise of discretion to refuse an application
of adjournment. While relying on Unilag’s case, the court reiterated the point
of law that courts have the discretion to either allow adjournments or not. And
that once the basis is on reliable materials, such would not be questioned on
appeal. In the case, affidavits in support of motion were filed by the
Applicants in the trial court, counter affidavits were also filed by the respondent,
after which further affidavits were filed by the applicants. On the date fixed
for hearing, the court confirmed service on all parties and whether the
Respondents have issues to file in relation to the further affidavit, which
they refused. While the counsel to the applicant was about ending his
submissions, the respondent counsel then applied for an adjournment to ‘reply
to the new issues’. The court refused. Upon appeal to the court of appeal, the
decision was reviewed and upon further appeal to the Supreme Court, the Court
held the refusal to be in accordance with the laid down principles of
exercising discretion judiciously. It should be further noted here that the
exercise of discretion seems proper in Nwadilogbu’s case, if at all one is to
wonder why a similar one was allowed in Unilag’s case. This is because granting
an adjournment in that wise would negate the principles laid down in Eronini
& Ors v. Iheuko (1989) 1 N.S.C.C. 503 where the Supreme court held inter
alia that an order of dismissal would be required once hearing of a case had
commenced and the other party seeks to discontinue (in Nwadilogbu’s case, add
to or perfect) his case.
4.08     The
above case could however be distinguished from Unilag’s case. It is important
to stress that in Nwadilogbu’s case, hearing had already commenced when the
application for adjournment was made, unlike in Unilag’s case where the date
was only fixed for hearing and same had not commenced. It is also noteworthy
that under the extant Court of Appeal Rules, filing of brief of argument was
not the practice back then, in Unilag’s case. If at all the appellant had filed
his brief of argument, the issue of asking for adjournment wouldn’t have come
up as he would have already filed his brief of argument and simply adopt same
on hearing date.
4.09     Another
case that explains the discretionary powers of a court is that of Adeniyi v.
Akinyede (2010) All FWLR (Pt. 503) 1257 at 1340 – 1341, a case on election
petition, the court recapped the principles of exercise of discretion as stated
in Unilag’s case. Interestingly, a party had asked for adjournment because an
appeal was pending in the court of appeal, an application which the court
refused, relying on the provisions of the practice direction to the effect that
appeals do not operate as stay of proceedings in election petition matter, as
same is sui generis. The case was
also referred to in NNPC v. Clifco (NIG) ltd (2011) All FWL (Pt 583) 1875 at
1893 where the court’s discretion to award cost of 7,500 was questioned on
appeal, a discretionary power which the Supreme Court held to be valid and
devoid of illegality or absurdity. 
4.10     In
sum, a court’s exercise of discretion is always guided by the principles
discussed in Unilag’s case. It must be exercised judicially and judiciously,
based on relevant and sufficient materials placed before a court. Once these
are in order, an appellate court will be reticent in interfering in such an
exercise of discretion.
5.00     PRACTICAL
5.01     Applications
for adjournments are totally within the discretionary powers of a court. A
court may allow or refuse same based on reasons it deems fit. It is therefore a
duty of counsel to make sure that relevant material facts as well as proof of
same, if necessary, are placed before the court. Where the court refuses to
grant an application for adjournment, counsel could seek to test the exercise
of such discretion by the court in an appellate court.
5.02     The
right to fair hearing has its tentacles upon applications for adjournments.
Where such is prayed by a party, one should try to accede to same to afford the
other party present its case. This is mainly because where such is refused, and
upon appeal found to have been done maliciously, the overall effect would tell
on the time it takes to complete the trial.
5.03     Counsel
should not always be ready to accept all applications for adjournment from an
opposing party all in the name of fairness and fellowship. Where adjournments
are calculated to cause unnecessary delay, objections should be made promptly
as it would affect the overall management of the case, especially with regards
to time.

One Reply to “UNIVERSITY OF LAGOS & ANOR V. AIGORO (1985) 16 (Pt 1) NSCC 88”

  1. Olatunji Muritala says:

    This is a well researched piece. Fair Hearing presupposes that a party must be heard no matter how illogical his arguments might be. Hence, denial of an Adjournment could be equated to denial of Fair Hearing. However, in curbing the use of Adjournment as an instrument of delay, there should be a regulation as to the number of times an Adjournment can be sought. Parties will be more cautious in seeking Adjournments if this is in place.
    I have a contrary opinion to your position in paragraph 4.08. Under the extant Court of Appeal Rules, a Brief of Argument can only be filed upon the receipt of the records of appeal by the appellant(O. 18). I think the appellant would still have sought for an adjournment under the present rules as it couldn't have filed its brief without the records (which is the ground upon which its adjournment is premised.
    Keep up the good work
    Muritala Olatunji

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