In The Supreme Court of Nigeria
Holden at Abuja
On Friday, the 7th day of July 2006
Before Their Lordships
Judgement of the Court
George Adesola Oguntade. JSC
This appeal raises the issue of the extent of an appellate court to override the exercise of discretion by a trial court. It is not necessary for the purpose of the appeal to discuss or consider the nature of the claim brought before the trial court. It suffices to say that the respondent was the plaintiff at the Port-Harcourt High Court of Rivers State. It had brought the suit against the appellant as the defendant.
The suit was filed on 13/8/93. On the same day, the plaintiff filed an application for an interlocutory injunction in respect of some properties situate at Rumuodara, Obio in Obio/ Akpor Local Government. On 5-5-94, after a period of nine months since the suit was filed, the plaintiff applied for and was granted extension of time to file its Statement of Claim. It would appear that the case was subsequently adjourned for hearing. The matter was adjourned four times in succession for hearing and on each of those occasions, the plaintiff and its counsel were not in Court. The case was finally adjourned the fifth time for hearing to 9-3-95. As it has previously done, the plaintiff again was not in Court. Neither was its counsel. The trial judge, Abel Tariah .J. in reaction dismissed plaintiff's suit.
On 22-9-95, about six mouths after its suit was dismissed, the plaintiff brought an application to relist the suit for hearing and to set aside the order made on 9-3-95 dismissing the suit. Parties filed affidavit evidence in support, of and against the application to relist and set aside the order dismissing the suit. On 4-12-95, the trial judge, in his ruling dismissed the application on the ground inter alia that the excuse offered for the absence of plaintiff and its counsel on 9-3-95 was unsatisfactory.
The plaintiff was dissatisfied. It brought an appeal before the Court of Appeal, Port Harcourt Division (i.e. the court below). On 11/07/2001, the court below allowed the appeal. The ruling, of the trial Court was set aside and the suit remitted to the High court for fresh hearing. The defendant was dissatisfied with the judgment of the court below. He has brought this appeal against it.
In the appellants brief filed on behalf of the defendant, the issues for determination in the appeal were identified as these:
"I. Whether the lower court was right when it held that the trial court could have merely struck out the respondent's suit instead of dismissing it;
2. Whether the lower court was right in allowing the respondent's appeal and setting aside the judgment of the trial court."
The plaintiff, in its respondent's brief, raised an issue for determination. But the said issue is amply covered by the defendant's two issues above. I shall, in this judgment, be guided by the defendant's issues.
As I observed earlier in this judgment, the trial court had taken the position that the explanation offered by the plaintiff as to its absence and that of its counsel from Court on 9-3-95 was unsatisfactory. The question is - what are the said reasons? In paragraphs 6 -16 of the affidavit in support of the application, it was deposed thus:
6. That the Writ, of Summons in Suit No.PHC/567/93 was taken out about August 1993 and the Plaintiff/Applicant filed its Statement of Claim on 5-5-94;
7. That before the present suit, the Plaintiff had in 1992 taken out a Writ of Summons with No. PHC/554/92 against the same Respondent which suit is pending in High Court No. I before Hon. Justice V. M. Okor;
8. That both suits with Numbers PHC/567/93 and PHC/554/92 are over the estate at Rumuodara owned by the Respondent;
9. That to accelerate the hearing of both suits, the Plaintiff engaged the services ofChief A.B.C. Iketuonye, SAN in both suits;
10. That the entry of the Senior Advocate in the matter made K. I. OlehEsq. hand over the case files to the Senior Advocate;
11. That this in turn created some lapses asthe Senior Advocate missed the adjourned date for PH/567/93;
12. That the Senior Advocate informs us that he did not appreciate that he was expected to handle PHC/567/93 as he thought, it was only PHC/554/92 that was given to him;
13. That PHC 554/92 is part heard and isfurther adjourned to 17-10-95 for continuation;
14. That it was when K.I. OlehEsq. enquiredfrom a counsel working with L. M. AlozieEsq.- the Respondent's counsel who informed K.I. OlehEsq. who in turn informed me and I believe him that the present suit with No. PHC/567/93 was dismissed on 9-3-95 as neither the plaintiff nor its Counsel was in Court;
15. That the absence of both the Plaintiffand its Counsel was as a result of mix-up on dates and we shall make sure it does not happen again:
16. That hearing had not commenced in the suit before it was dismissed."
The defendant in opposing the application filed a counter-affidavit paragraphs 4-10 of which read:
4. That the judgement of this Court which the Applicant seeks to set aside and relist for hearing, was dismissed by the order of this Honourable Court on the 9th day of March 1995 because the Court was satisfied that from the facts and records before it, the Plaintiff/Applicant had abandoned the case for quite a long time.
5. That since the commencement of this action, the Plaintiff was never in Court except on 30/3/94 when the ruling on the application it brought from injunction was delivered, and in all we had had 10 (ten) Court appearances namely on: 1/12/93, 8/12/93, 28/2/94, 30/3/94, 7/6/94, 29/9/94, 7/11/94, 19/12/94, 2/2/95, and 9/3/95.
6. That the Applicant has even refused to pay most, of the Costs awarded against it in course of the proceedings. On 7/6/ 94 when one Mr. Linus Nwaigbo represented the Applicant in Court for a Motion for extension of time and on 9/3/95 when this suit was dismissed, costs were awarded against the Applicant but these costs have remained unpaid till date.
7. That since 1/12/93 when the matter came for motion on the application of the Plaintiff/ Applicant the suit has always remained on the cause list and even on 8/11/94 and 10/11/94, the suit was on the cause list for Definite Hearing but Plaintiff/Applicant and his Counsel were absent from Court.
8. That thereafter, the matter was again listed for hearing on 7/11/94, 19/12/94, 2/2/95 and 9/3/95 without the Plaintiff/Applicant or its Counsel appearing in Court.
9. That the matter was then dismissed on 9/3/95 because the Plaintiff/Applicant and its Counsel had continued to abandon the matter.
10. That the Plaintiff/Applicant has no good cause of action against me but only wants this matter to drag on just to punish me.
The trial judge in refusing the application and dismissing the application said at pp. 80-82 of the record:
"When on 7/6/94 this Court granted leave extending time for Plaintiff/Applicant to file his Statement of Claim, one I.A. NwaigboEsq. held brief to K.I.Oleh (sic) for Plaintiff/Applicant and he filed the Statement of Claim, the defendant filed the Statement of Defence on 21/9/94. The matter was adjourned to 29/9/94 for mention, thereafter for hearing on 6/11/94, 10/11/94, 19/12/94, 2/2/95, 9/3/95. In all these adjournments granted was by the Court on its own without a letter from Plaintiffs/Applicant (sic) or its Counsel against the Defendant/Respondents Counsel, objection all in the interest of justice and to ensure that the matter is determined on its merit, but justice they say is a two-edged, sword the scale of justice must not tilt towards one side only.
While, it is true that a party may be represented by Counsel, but a party who takes that option does so at his own risk. It does not dispense with the duty on a diligent litigant, who must find out from his Counsel, the progress of his case. For a party who had not heard about his case from his Counsel for almost one year and did not enquire is nothing, but an indolent litigant not to beaided more so when the same Applicant had been coming to Port Harcourt for the sister (sic) case with Counsel and had been pursuing that case diligently.
At the time K.I. Oleh Esquire filed the first application to relist in March, 1995, did he collect the file he claimed he gave to the learned SAN after in 29/9/94? How did he get the file to file theapplication because on 2/5/95 while the learned SAN was still insisting that he was not briefed nor was he paid for this case.
It has continued to bother me why Plaintiff/Applicant and K.I. OlehEsq. should continue to input this very serious allegation of negligence and improper conduct of a Counsel to a respected SAN as Chief A.B.C. Iketuonye. In the further affidavit in support of the Plaintiff/Applicant application he deposed to the effects in paragraphs 6, 7 that he handed over this case file for this case to the learned SAN as in paragraph 8 he deposed that he assumed that the SAN had been attending Court. This would be not short of irresponsibility on the part of any Counsel to accept a case file on a matter in September 1994; refused to attend Court and insist 9 months after i.e. 2/5/95 that he was not briefed nor paid for that case. And he did not return the file, this is not like the learned SAN and cannot be. I hope Applicant realises the implication of without (sic) is being, inputted to the learned SAN.
In my view the Plaintiff/Applicant had tried to give a reason for his failure to be in Court and why I should relist even if it meant destroying the reputation built up by a respected lawyer over the years. The reason given in the affidavit is self contradictory, defeats itself and has been properly refuted by the Defendant/Respondent counter-affidavits. I see no good reason and I hold that sufficient material has not been placed before me to enable me exercise my discretion in favour of the Plaintiff/Applicant."
Following the appeal to the Court below, the ruling of the trial court was set aside. In doing so, the court below observed:
"I am well aware that the decision being appealed against was delivered in 1995 while the suit itself was filed in I993. It cannot be doubted that the Appellant's counsel and I dare say also the Court itself have, contributed to the quagmire they found themselves. The Court below might have reasoned that the Appellant was asking the trial to be very reasonable in that matter. It is all well and good to trumpet to high heavens that where a suit is dismissed because of seeming lack of will to prosecute a case diligently, then on proper consideration, the Court ought ordinarily to give the party a second chance. That generally should be so I must confess that I am not in the least enamoured by the attitude of the Appellant in the handling of the case in the Court below.
However, I still believe that where a party has shown considerable remorse in his handling of a matter in Court and prays fervently to be admitted to have the case argued on its merit, the Court ought not to continue to be too rigid in acceding to the prayers. In such a case a punitive cost imposed by Court below would do the trick. I have never supported a resort to short circuiting a trial summarily. Indeed it never ends a trial but prolongs it. The Court below could have merely struck out the suit instead of dismissing it. In the present case, I am prepared to fall backwards to accommodate the Appellant. In the circumstances, I will allow the appeal and set aside the judgment of the Court below. The matter should beremitted to another Court below to handle. I make no order as to costs."
It is apparent from the ruling of the trial court, an extract of which was reproduced above, that the plaintiff's application failed for two clearly stated reasons namely-
1. Indolence of plaintiff in not finding out from his Counsel for about one year the progress in the suit.
2. Inability of the trial court to accept as exculpatory, the failure of Counsel retained by plaintiff to appear in Court on five consecutive occasions.
The court below did not reach the conclusion that the reasons given by the trial court as stated above were unfounded or unjustified. It nonetheless proceeded to express the view that the trial court should have merely struck out the suit.Was the court below right in overruling the trial court on a matter of the exercise of discretion falling squarely within the powers or jurisdiction of the trial Court? I do not think the court below was right. Order 37 Rules 6(2), 7, 8 and 9of the Rivers State High Court Civil Procedure Rules, 1987 provide:
6(2) If when the trial of an action is called on, neither party appears, the action may be struck out of the list, without prejudice, however to the restoration thereof, on the direction of the judge.
7. If when a trial is called on, the plaintiff appears and the defendant appears,then plaintiff may prove his claim as far as the burden of proof lies upon him.
8. If when a trial is called on, the defendant appears and the plaintiff does not appear, the Defendant if he has no counter-claim shall be entitled to judgment dismissing the action but if he has a counter-claim, then he may prove thecounter-claim so far as the burden lies upon him.
Provided that if the defendant admits the cause of action to the full amount claimed, the court may, if it thinks fit, give judgment as if the plaintiff had appeared.
9. Any judgment obtained where one party does not appear at the trial maybe set aside by the Court upon such terms as may seem just, upon the application made six days after the trial or within such longer period as the court may allow for good cause shown."
Now the relevant record of proceedings for 9-3-95 read:
Plaintiff is absent.
Defendant is absent.
L.M. Alozie for Defendant
Counsel submits that Plaintiff have abandoned this matter. Plaintiff attended Court last in June 1994. Since there had been four or five adjournments and neither plaintiff nor their Counsel had been in Court. The matter is for hearing today, but neither Plaintiff nor Counsel is in Court. The cost award against the Plaintiff 7/6/94 to be paid before the next adjournment had not been paid.
Counsel urges this court to dismiss the suit in accordance with Order 37 rule 8. Defendant had no counter-claim.
It is clear to me that for the attitude of the plaintiff this matter, they must be taken to have abandoned this suit.
I hereby dismiss this suit under Order 37 Rule 8 with
It is apparent from the record of proceedings reproduced above that the plaintiff and its Counsel were absent from the Court, on the date fixed for hearing. Under Order 37 rule 8 above, the trial court is authorized to dismiss the plaintiffs suit when on the date of hearing the plaintiff is absent and the defendant is present. The trial court so exercised its power to dismiss.
Under Rule 9 of Order 37, the trial judge has the discretion to set aside the order to dismiss a suit upon such terms as he may impose. The trial court felt unable to exercise its discretion in favour of the plaintiff because the reasons offered by the plaintiff were found unsatisfactory. The court expressed that it was unable to accept the excuse that the case file was given to Chief A.B.C. Iketuonye SAN after he had been fully briefed; and that the said senior Counsel disrespectfully refused to attend court. I should have thought that in such setting, it was necessary for Chief A.B.C. Iketuonye SAN to explain by an affidavit evidence the reasons why he failed to appear in Court after he had collected the case file and been fully briefed.
It is needful that it be stressed that a plaintiff who is not ready to pursue his suit with diligence upon which the court must insist has no business bringing such case to court. Counsel and parties alike must bear in mind that the time of the Court is valuable and must be apportioned between the different cases requiring attention. It is the duty of the court to proceed with the hearing of the cases before it expeditiously. The courts in the land must exact from parties and counsel as much diligence in the prosecution of their eases as would enable the court consign the incidence of congestion in our courts to history.
In any case, this Court per Bairamian JSC in Enekebe v. Enekebe (1964) 1 All NLR 102 at 107 emphasized the desirability of the need to treat with respect the exercise of discretion by the court of first instance. It quoted therein with approval the observation of Lord Simon in Charles Osenton v. Johnson (1942) A.C 130 at 138 where he said:
The appellate tribunal is not at liberty merely to substitute its own exercise of discretion already exercised by the Judge. In other words, appellate authorities ought not to reverse order merely because they would themselves have exercised the original discretion, had it attached to them, in a different way. But if the appellate tribunal reaches the clear conclusion that there has been a wrongful exercise of discretion in that no weight or no sufficient weight has been given to the relevant considerations, then the reversal of the order on appeal may be justified."
See also Solanke v. Ajibola (1968) All NLR 46.
The provision dealing with fair hearing under section 36 of the 1999 Constitution of Nigeria is for the protection of all the parties to a case the plaintiffs and the defendants alike. It will be oppressive to interpret the provision as conferring, a protection on just one of the parties to a case. In this connection, I like to call to mind the views of this Court per Oputa .JSC in Willoughby v. International Merchant Rank (Nig) Ltd. (1987) 1 NWLR (Pt 48) 105 at 131 para 11
..the Courts' primary function is to do justice between the parties to a dispute. One sided justice will amount to injustice...... The law is made to ensure justice. Rules of Court are hand maids of justice. It is only by the orderly administration of law and obedience to the rules that legal justice can be attained. When a particular decision is against all known rules; against all known principles, then it is certainly, not made in the interest of justice."
It is my firm view that the court below was in error to have unjustifiably interfered with the exercise of discretion by the trial court without antecedently holding that the reason relied upon by the trial court to refuse to the application was unsustainable.
I would allow this appeal. The judgment of the court below is set aside. I make an order restoring the ruling of the trial Court. The defendant is entitled to costs in the Court below and this Court which I fix at
Judgement delivered by
Idris LegboKutigi, JSC
I read before now the judgment just delivered by my learned brother Oguntade, JSC. I agree with his reasoning and conclusions. The appeal is allowed. The judgment of Court of Appeal is set aside. The order of the trial Court dismissing Plaintiff's suit is restored. I endorse the order for costs.
Judgement delivered by
Niki Tobi, JSC
This is yet another appeal where a party either due to indolence or overt acts of indifference or nonchalance, failed to take advantage of the judicial process in the hearing of a case before the High Court. I did a generally similar appeal some two months ago. It is the case of Newswatch Communications Limited v. AlhajiAliyu Ibrahim AttaSC. 101/2001, delivered on 28th April, 2006, not yet reported. The two cases share so much in common as they relate or affect organized delaying tactics. In Newswatch, it was the defendant. In this appeal, it is the plaintiff who filed the action. Both applied some tricks and both tricks seem to have boomeranged. Tricks have no place in the judicial process and so why play them?
On 13th August, 1993, the respondent as plaintiff filed a suit at the High Court of Rivers State claiming three reliefs. On the same day, the respondent filed a motion on notice for an order of interlocutory injunction against the appellant. The learned trial Judge, Tariah, J. dismissed the motion.
The respondent filed its Statement of Claim on 5th May, 1994. The appellant, as defendant filed his Statement of Defence on 21st June, 1994. On 11th July, 1994, the respondent filed a reply to the Statement of Defence. And so the pleadings got into the judicial process.
The case was fixed for mention on 29th September, 1994. Thereafter the matter was adjourned to 6th November, 1994; 2nd February 1995 and 9th March 1995, for hearing. On 9th March, 1995 the matter came up again for hearing. Appellant was absent. The following proceedings are at page 57 of the Record:
"Counsel submits that Plaintiff have (sic) abandoned this matter. Plaintiff attended Court last in June 1994. Since then, there have been four or five adjournments and neither Plaintiff nor (sic) their counsel has been in court. The matter is for hearing today, but neither Plaintiff nor counsel is in Court. The cost awarded against the Plaintiff on 7/6/94 to be paid before the next adjournment had not been paid. Counsel urges this Court to dismiss the suit in accordance with Order 37 Rule 6. Defendant has no counter claim.
It is clear to me that for the attitude of plaintiff in this matter, they must be taken to have abandoned this suit. I hereby dismiss this suit under Older 37 Rule 8 with
And so the matter was dismissed by the learned that Judge under Older 37 Rule 8 of the Rivers State High Court (Civil Procedure) Rules 1987.
Refusing the motion to relist the suit dismissed the learned trial Judge in his Ruling of 4th December, 1995 said at pages 81 and 82 of the Record:
"In my view the Plaintiff/Applicant had tried to give a reason for his failure to be in Court and why I should relist even if it meant destroying the reputation built up by a respected lawyer over the years. The reason given in the affidavit is self-contradictory, defeats itself and has been properly refuted by the Defendant/Respondent counter-affidavit. I see no reason and I hold that sufficient material has not been placed before me to enable me exercise my discretion in favour of the Plaintiff/Applicant... I hereby dismiss the Plaintiff/Applicant's application to relist the suit and set aside the judgment."
Dissatisfied the applicant appealed to the Court of Appeal. That Court allowed the appeal. The Court said at page 130 of the Record:
"However, I still believe that where a party has shown considerable remorse in his handling of a matter in Court and prays fervently to be admitted to have the case argued on its merit, the Court ought not to continue to be too rigid in acceding to the prayers. In such a case a punitive cost imposed by Court below would do the trick. I have never supported a resort to short-circuiting a trial summarily. Indeed it never ends a trial but prolongs it. The Court below could have merely struck out the suit instead of dismissing it. In the present case, I am prepared to fall backwards to accommodate the Appellant. In the circumstances, I will allow the appeal and set aside the judgment of the Court below. The matter should be remitted to another Court below to handle. I make no order as to costs."
The question here is whether the Court of Appeal was light in allowing the appeal and holding that the learned trial Judge ought to have struck out the matter instead of dismissing it.
The best Judge in trial procedure is undoubtedly the trial Judge. He sees it all because he closely watches the proceedings and all that. He feels the pinch when parties try to dilly-dally the proceedings or adopt tricks to overreach or outsmart the adverse party. If the trial Judge fails to take a position in the light of the rules of court and takes or tows the line of sympathy in the way the Court of Appeal did, then he will have a plethora or load of cases in his cause list to the extent that he cannot get out of a mounting backlog of cases. That will reflect on him adversely and in these days of continuous assessment of the performance of Judges, he will be in for it. While I concede that a trial Judge cannot throw away the constitutional provision that parties should be given a hearing in matters before the court because of repercussions of performance assessment, a Judge owes the administration of justice a duty to facilitate and ensure the speedy hearing of a case before him. The notoriety that delayed justice attracts to the Judiciary is such that Judges must work towards the speedy dispensation of justice. We do not have a choice in this troublesome matter. Let us do our best and our best is to facilitate the speedy hearing of cases.
A plaintiff has not only a right to file on action in court to redress a wrong done him by a defendant, he also has a duty to prosecute the matter to conclusion within the rules of court. Of course, the duty is not mandatory, compulsory or sacrosanct, as he can decide not to prosecute. A plaintiff who files an action in court and exhibits some indolence and nonchalance has himself to blame. After all, he brought the defendant to court and if he decides not to pursue the case diligently, the court has no option than to either strike out or dismiss the matter, depending on the enabling rules of court.
In Newswalch Communications Limited v. AlhajiAliyu Ibrahim Atta, I said:
"A trial Judge can indulge a party in the judicial process for sometime but not for all times. A trial Judge has the right to withdraw his indulgence at the point the fair hearing principle will be compromised, compounded or will not really be fair as it affects the opposing party who equally yearns for it in the judicial process. At that stage, the party who is not up and doing to take advantage of the fair hearing principle put at his door steps by the trial Judge, cannot complain that he was denied fair hearing, such is the situation I see in this appeal."
Although the parties did not canvass fair hearing in this appeal, the issue of indulgence on the part of a trial judge clearly applies in this appeal. Let me not say more on that.
In this matter, the learned trial Judge invoked Order 37 Rule 8 of the Rivers State High Court (Civil Procedure) Rules 1987. The Rule is in the following terms:
"If when a trial is called and the Defendant appears and the Plaintiff do