Practice and Procedure-Circumstances for adjournment of hearing.
NOTE Where, owing to a relevant appeal, the hearing of a case would work injustice to a party, it should be adjourned pending the determination of the appeal. (W.A.C.A. No. 3901.)
Foster-Sutton, P. In our opinion there is substance in the point raised by counsel for the appellants. In view of the fact that there was an appeal pending in a suit involving ownership of the land which is the subject of the present suit the proper course for the learned trial Judge to have adopted would have been to adjourn the case pending determination of the appeal, with liberty to either side to apply for the hearing to be continued. To do otherwise would work an injustice to the appellants in the event of their appeal in Ekiti Divisional Native Court Suit No.2 of 1949 being successful, as they could not then renew their claim in the present suit.
We accordingly allow this appeal, set aside the judgment of the Court below and remit this suit to the Court below for it to be adjourned sine die with liberty to either party to apply for the hearing to take place.
The costs of the first trial to abide the result of the new trial, any costs paid by the appellants to the respondents to be refunded.
The appellants to have their costs on this appeal fixed at £32 4s. 0d.
Appeal allowed.