An appellate court will not interfere with the exercise of discretion by a lower/trial cotirt simply because if faced with a similar application, it would have exercised the discretion differently. However, it may do so in special circumstances such as where the discretion was exercised on wrong or inadequate weight was given to relevant considerations or where the court acted under misapprehension of fact or that the exercise was tainted with some irregularities and in all other cases, where it is in the interest of Justice to so interfere.
In the instant case, the plaintiff’s application for adjournment did not overreach the defendant, the trial court wrongly exercised its discretion to refuse the application and its decision was set aside on appeal. [Mobil Oil (Nig.) Ltd v. Federal Board of Inland Revenue (1977) 3 SC 97; v. A.N.N. Ltd (1992) 6 NWLR (Pt. 247) 319; v. Yola Local Government (2003) 1 NWLR (Pt. 802) 487; (1964) 1 All NLR 102; John v. Blakk (1998) 6 NWLR (Pt. 555) 524 referred to] [P. 1937, para
Duty of court to afford equal opportunities to parties to present their case, conditions that presupposes existence of and determinant of breach of fair hearing, Constitution of the Federal Republic of Nigeria, 1999, section 36 (1) considered-
By the provisions of section 36 (1) of the Constitution of the Federal Republic of Nigeria, 199, courts of tribunals are enjoined to give equal opportunity to parties to present their case in court, In determining whether such opportunity of being heard was given, the following conditions must be inherent in the conduct of the case:
(a) Both parties must be heard on all material issues before the court determines or pronounces on them;
(b) The court must give equal treatment opportunity and consideration to both parties;
(c) The proceedings/trial shall be held in public and all concerned shall have access to and be informed of the place of public hearing;
(d) That having regards to all circumstances in every material decision in the case, justice must not be done but be manifestly seen to have been done for instance, parties should be given chance to cross-examine witnesses called by the adverse party or to call witnesses of their choice and make submissions to court before the case is determined.
In order to determined whether the principle of fair hearing has been breached, the crucial point to consider is not whether any injustice was done to any of the parties due to want of hearing but whether the party or parties was afforded opportunity to be heard.
In the instar.it case, the refusal of the trial court to grant an adjoa.rnment was an exercise of its discretion and did not am ount to breach of fair hearing. [Awuse v. Odili (2005) All FWLR (Pt. 253) 720, (2005) 16 NWLR (Pt. 952) 416;Durode v. Slate (2000) 15 NWLR (Pt. 691) 467;J.C.C. Inter Ltd v. N.GI. Ltd (2002) 4 WRN 91; v. CBN (1989) 1 NWLR (Pt. 98) 419;Adigun v. Attorney-General, Oyo State (1987) 1 NWLR (Pt. 53) 678; Deduwa v. Okorodudu (1976) 9-10 SC 329;Udo-Akagha v. Paico Ltd (1993) 4 NWLR (Pt. 288) 434;Saleh v. Monguno (2002) FWLR (Pt. 87) 671, (2003) 1 NWLR (Pt. 801)
221 referred to] [P. 1939, paras. B – G]
Per SANUSI JCA [Pp. 1939 -1940, paras. G – D].