Answer on the comment section below.
In a matter before the National Industrial Court, where a matter is fixed for hearing as jointly agreed by the counsel in the matter and the court, and on the day so fixed, a junior counsel appears in court and asks for adjournment on the ground that the principal counsel has expressed the intention through the junior counsel to personally handle the matter, the court may proceed with the hearing notwithstanding the absence of the principal counsel. Where the junior counsel refuses or is unwilling to proceed with the case as directed by the court, the court may order which of the following-(Answer A,B or C)
a. The Court may cite the junior for contempt and award cost against the Principal counsel
b. The court may close and call upon the counsel on the other side to open, continue or proceed with the opposing party’s case as the court deems fit.
c. The court may suo motu strike out the case of the claimant if the junior is the claimant’s counsel and order a re-file of the case or may adjourn for default judgment if the junior counsel is for the defendant.
In the instant case, the court may suo motu strike out the case of the claimant if the junior is the claimant’s counsel and order a re-file of the case or may adjourn for default judgment if the junior counsel is for the defendant.
a
The Court can proceed with the matter because anybody appearing for a Counsel in matter, it’s presume to be familiar with the matter but also the Court can use it’s discretion otherwise.
C
The court may suo motu strike out the case of the claimant if the junior is the claimant’s counsel and order a re-file of the case or may adjourn for default judgment if the junior counsel is for the defendant. It must be noted that the business of the court is serious and the court cannot be used as a time wasting tool by litigants. The RPC is clear about holding briefs . I think the same requirements apply here. A Counsel should have a good grasp of his case before coming to court.
In the instant case, the court has the discretion to issue any of the orders listed in options A, B, or C either jointly or severally, this is because according to the provisions of the Rules of Professional Conduct, a lawyer appears in court to hold a brief and represent a litigant for all intents and purposes.
The court has the discretion to Issues either of the options (a,b or c) separately or jointly.
a. The Court may cite the junior for contempt and award cost against the Principal counsel
B
The court may close and call upon the counsel on the other side to open, continue or proceed with opposing party’s case as the court deems fit.
A. The Court may cite the junior for contempt and award cost against the Principal counsel.
A counsel appearing in court is deemed to have a full grasp of the matter for which he is appearing and should be able to handle the business of the day. The excuse that the Principal will like to prosecute the matter personally is not tenable. See Okoh v Marc-Will (Nig) Ltd (2014) LPELR-23260(CA)
B
B. – The court may close and call upon the counsel on the other side to open, continue or proceed with the opposing party’s case as the court deems fit.
C
A
The Court may cite the Junior Counsel for contempt and award cost against the Principal Counsel.
A
The court may cite the junior for contempt and award cost against the principal counsel
A…
A
B
B
*FROM THE DESK OF C.K. ANYANWU ESQ 👏🤗👍💪✊🤝👆👌🙏🙌✍️*
*(I supplied an answer with regards to the ongoing Courtroom mail prize for young lawyers)*
*OKOH v. MARC-WILL (NIG) LTD*
(2014) LPELR-23260(CA)
*Issue*
PRACTICE AND PROCEDURE – ADJOURNMENT –
*Ratio*
*_Whether the absence of a senior counsel who would want to handle a matter personally can be a ground for seeking an adjournment_*
*Principle*
“The point to be stressed here is that the fact that a thing has been a practice does not make it a law. Besides, it is not Chief M.I. Ahamba, SAN, that handles all the cases in his Chambers but his Chambers; meaning that any lawyer in his Chambers is competent to handle any brief the Chambers has been engaged or hired to handle. In MADU v. OKEKE (1998) 5 NWLR (PT.548) 159 AT 162, it was held that the rule that a Counsel holding the brief of another Counsel is presumed to be properly briefed to go on with the matter and not to ask for adjournment on this basis alone applies equally to a junior Counsel who attends Court to ask for adjournment only on the ground that his senior colleague in Chambers is not around and would want to do the matter himself.” Per UWANI MUSA ABBA AJI, JCA (Pp 9 – 10 Paras C – A)
A
C
The most feasible option is A. Whereas where a counsel holds another’s brief, he holds brief for all purposes. If the absence of the counsel handling the matter is explained and the court finds it not strong enough, he should (with the greatest respect) order an adjournment and cost against the counsel. The wheels of Justice run slow but sure. Justice can never be sacrificed for speed. If however, the absence persists subsequently, the court should (with the greatest respect) foreclose the counsel if he is for the claimant or strike the action out for lack of diligent prosecution. If he is for the defence, foreclose him or enters a default judgment depending on the stage of the matter
C
The correct answer is B – The court may close and call upon the counsel on the other side to open, continue or proceed with the opposing party’s case as the court deems fit.
B
The most probable answer would be option A, but the Court can in it’s discretion take up any of the other options B and C.
A counsel’s intention to handle a Matter personally is not grounds for adjournment, it is not known to our law.
Where the court wants to actually adjourn the matter, then option A would come in, but where it wants to go on with the matter, then options B and C are very much likely to be taken.
Preference for option A.
B.
B
B- The court may close and call upon the counsel on the other side to open, continue or proceed with the opposing party’s case as the court deems fit.
B
B.
B
For the interest of justice, the court will do A because doing B or C will cause hardship to the party involved.
It is pertinent to point out that the method to be adopted by the court is not cast in a stone, hence it is totally at the discretion of the court to choose the option to apply but that must be done judiciously and in the interest of justice.
Option: B
Most times the Court will adopt the party’s application and proceed to hear the other party’s application.
It’s always at the discretion of the Honourable Court.
C. The court may suo motu strike out the case of the claimant if the junior is the claimant’s counsel and order a re-file of the case or may adjourn for default judgment if the junior counsel is for the defendant.
This is in tandem with the decision inMADU v. OKEKE (1998) 5 NWLR (PT.548) 159 AT 162
B
B
B
B
C
In line with the facts illustrated above, the Court of Appeal in the case of Unity Bank P. L. C v. Zango (2013) All F. W. L. R (Prt 658)912 at 945 (paras F-G) while allowing the appeal for failure of the learned trial judge to rule on an application for adjournment, placed reliance on the case of Madu v. Omeje (1998)5 NWLR (Pt. 548)519, Niki Tobi JCA held at page 162 that:
” counsel should refrain from attending court merely to ask for adjournment to enable a more senior colleague do the matter”
it is indeed trite that the order the court will make upon refusal for the application for an adjournment in line with the circumstances in the above question will be in accordance with the principle of law made lively in the full house of the Court of Appeal in the cases of Maduabuchi v. Att. Gen, Lagos State (2012) All FWLR ( Pt653)1977at1995 (paras E-F), YOUNAN & Ors v Williams & Ors (2008) LPELR-3573 (CA), and Erinfolami & Anor v. Societies General Bank Nig. Ltd (2007) LPELR -8763 (CA) where the court held as follows:
“Now what should have been the proper approach in this case where the Court refused to postpone or adjourn the case in the exercise of its undoubted discretion under Order 39 Rule 7 of the Rules but went on to dismiss the plaintiff’s Suit. Text writers and judicial authorities are of the view that where an application for postponement or adjournment is refused, the party applying must be called upon by the trial Court to proceed with the case. This position was endorsed by the Supreme Court in the celebrated case of CEEKAY TRADERS LTD VS. GENERAL MOTORS CO. LTD & 2 ORS (1992) 2 NWLR (pt. 222) 132 where the emeritus Kawu J.S.C. quoted with approval the commentary at page 456 paras. 41.19 of Aguda; “Practice and Procedure of the Supreme Court, Court of Appeal and High Courts of Nigeria (1st Edition) which is to the effect that if an application for postponement is refused the party applying must be called upon by the trial Judge to proceed with his case and that if the party is the plaintiff and he is unable to proceed, the proper order for the Judge to make is one of striking out the suit if he has led no evidence at all. If he has led some evidence and there exists a possibility that if he were to complete his evidence he might have made no case, then the Court may also order a striking out. See IZIEME VS. NDOKWU (1976) 1 NMLR 280. On the other hand, if has led some evidence and there is nothing to show that any further evidence may improve his case to a sustainable level, then an order of dismissal may be made”
b. The court may close and call upon the counsel on the other side to open, continue or proceed with the opposing party’s case as the court deems fit.
B
The Registration is now closed. The answer to the question can be found in Order 38 Rule 12 of the National Industrial Court of Nigeria (Civil Procedure rules) 2017
The next question will be posted next Saturday May 14th at 8am