NIGERIA AIRWAYS LTD. (PLAINTIFFS)
NURU HAJAJ COMPANY LTD. (DEFENDANTS)
(1971) All N.L.R. 546
Division: High Court, Kano
Date of Judgment: 22nd September, 1971
Before: Wheeler, J.
Application for leave to relist action.
(1) The court was empowered to relist the case by virtue of Order 40, r. 6 of the Civil Procedure Rules.
(2) In any event the order striking out the action not being a final order, it was unnecessary for the court to expressly reserve liberty to the plaintiffs to apply.
(3) The present case was therefore indistinguishable from Hurman Ebet v. Alhaji Haruna Kassim, (1966) N.M.L.R. 123, S.C. and the action was not statute barred.
(4) The considerations which governed the exercise of the court's discretion in the matter were similar to the considerations which fall to be considered when an application is made to set aside a judgment in default of appearance, and applying those considerations it was a proper case to grant leave to the plaintiffs for the case to be relisted.
Cases referred to:-
Cheko v. Kano Native Authority, (1966) N.M.L.R. 162.
Hurman Ebet v. Alhaji Haruna Kassim, (1966) N.M.L.R. 123.
APPLICATION for leave to relist action.
SUIT NO. K/26/70.
G. Ogundipe-Alastise for plaintiffs.
M. A. Akanbi for defendants.
Wheeler, J.:-This is an application seeking leave to relist this action which was struck out on the 16th November, 1971 due to the non-appearance of the plaintiffs in court. The action in question was commenced by writ of summons filed on the 2nd February, 1970 by which the plaintiffs claims the sum of £27,256-19s-0d from the defendants as money paid on behalf of the defendants to Sabena Airlines.
The background to the application is this:-following the disposal of a series of interlocutory applications, the case was on the 15th March, 1971 fixed for hearing on the 21st and 22nd June, 1971. However, on the 21st June, 1971 the action was adjourned to the 25th October on the application of the defendants. The trial duly started on the 25th October and continued on the 26th October when the plaintiffs first witness, a Mr Zaccheaus Onalaja completed his evidence for the plaintiffs. On the following day the case came on again but as the plaintiffs remaining witness had failed to turn up, it was adjourned, on their application, to the 15th and 16th November, 1971. When on the 15th November, 1971 the case was called the plaintiffs were neither present or represented and it was accordingly adjourned to the following day as it was felt the plaintiffs' Counsel may have been delayed on his way from Lagos. Again on the 15th November, 1971 the plaintiffs were not present or represented and following an application by Mr Akanbi for the defendants under Order 40, Rule 2 of the Civil Procedure Rules, I struck out the action.
The notice of motion grounding the present application was filed on the 28th February, 1972 and it should perhaps be explained that it has not been heard until now as it was considered it ought to come before me and in the intervening months I have not been sitting in Kano State. It is supported by an affidavit sworn by one of the Counsel for the plaintiffs who had appeared at the trial. The affidavit explains that Counsel had been taken ill with malaria in Lagos on the 13th November, 1971 and as his other colleague had already left to conduct proceedings in the High Court at Ijebu-Ode, the plaintiffs' Head Office were asked to contact their Kano Office by telex to send the Kano Station Manager to court and explain the position. It was discovered however in late December, 1971 that the plaintiffs' Head Office had not after all been able to contact Kano by telex or telephone and later again, after contacting Counsel for the defendants, it was discovered that the action had been struck out. I observe that no counter-affidavit has been filed on behalf of the defendants, and that the only other affidavit before me is an affidavit indicating that Mr Onalaja, who has given evidence at considerable length for the plaintiffs, has since died.
This application is brought under Order 40, Rule 6 of the Civil Procedure Rules which reads as follows:-
"Any cause struck out may, by leave of the court be replaced on the cause list on such terms as the court may seem fit."
Mr Akanbi for the respondents has submitted that I have no power to grant this application and in support of his submission he has referred me to two cases. The first is Cheko v. Kano Native Authority, (1966) N.M.L.R. 162 where Williams, J. held that he had no power to relist an action in which the plaintiff had been non-suited, and that the only course was for the plaintiff to start a fresh action. I cannot see that this case is relevant to the present application. It was concerned with a party non-suited under Order 45 of the Civil Procedure Rules which is an order of a fundamentally different kind to an order striking-out a case. Further there is no corresponding Rule to Rule 6 of Order 40 in Order 45.
The second case relied on by Mr Akanbi is the decision of the Supreme Court in Hurman Ebet v. Alhaji Haruna Kassim, (1966) N.M.L.R. 123, and this case is very much in point. Indeed it bears a remarkable similarity to the present case. In Ebet's case, Bello Ag. J., as he then was, struck out an action with liberty to apply for relisting without payment of a further summons fee. He subsequently granted leave to relist the case at a date when the action, it was argued, had become statute-barred. On appeal to the Supreme Court it was contended that the action was already dead and that the learned Judge had therefore no power to have given leave for the case to be relisted at the point in time at which he did.
It is interesting that in the present application both Counsel have conceded, although there is no affidavit before me from either side to that effect, that if the present action were now to be commenced afresh, it would be statute-barred, although Mr Alatishe for the applicant has stated that it was not statute-barred at the date the application was filed, that is to say, on the 28th February, 1972, a point which Mr Akanbi was not prepared to concede.
To revert to Ebet's case, in deciding that the learned Judge was right in rejecting the plea that the action was statute-barred and in relisting the case, Ademola, C.J.N., in delivering the judgment of the court said this:-
"This first question which comes to our mind is this: has a Judge power to strike out a suit with liberty to apply for a relist? It is clear that under Order 40 Rule 6 of the old Supreme Court Rules which are still applicable in Northern Nigeria, a Judge has a discretion in striking out a case before it; and under Order 40 Rule 6, 'any cause struck out may, by leave of the court be replaced on the cause list on such terms as the court may seem fit'.
What then was the effect of the Order made by the Judge in the instant case. It appears to us that the true meaning of the Order was that the case be discontinued as from the date of the Order, but to be kept on the General List of the court and could be brought back to the Hearing List after an application to the court had been made and granted accordingly.
When therefore the learned Judge on 31st May, 1963, ordered that the case be struck out with liberty to apply for it to be relisted, the case, in our view still subsists until an order is made for it to be put on the hearing or cause list. It is our view therefore that it is a pending cause which has been relisted in this case. As Lord Jessel, M.R., put it in Re. Clagett's Estate, Fordham v. Clagett, (1882) 20 Ch.D., 637 at p. 653 'A cause is said to be pending in a Court of Justice when any proceedings can be taken in it. That is the test. If you can take any proceeding it is pending.'"
Mr Akanbi has argued that I cannot relist this case because, unlike Bello J. in Ebet's case, I did not reserve the right to the plaintiffs for liberty to apply to relist. I am unable to agree. It was unnecessary to reserve such a right to the plaintiffs having regard to Order 40, Rule 6 which expressly confers that right on any party whose case has been struck out under Order 40 to apply to have his case relisted. In my view an order striking out a case under Order 40, having regard to Rule 6, is not a final order but an interlocutory order and as is stated in a note on pg. 153 of Vol. 10 of the Encyclopaedia of Court Forms and Precedents in Civil Proceedings (First Edition):-
"Liberty to apply need not be expressly reserved in the case of orders which are not final, as they carry with them in gremio liberty to apply to the court."
In the result I am unable to distinguish Ebet's case from the present case and I accordingly hold that it is not time-barred and that it is within my power to relist this case.
The next question is whether or not I should exercise my discretion in the applicant's favour. In this regard, I agree with the submission of Mr Alatishe for the applicant that the matters which I should take into account in deciding this point are similar to the matters which fall to be considered when an application is made to set aside a judgment in default of appearance by a defendant. These considerations were stated very clearly in the Court of Appeal in England in Grimshaw v. Dunbar I, (1953) All E.R. 350 which was followed by Idigbe J. in Ogwu v. Aba and others, (1961) All N.L.R. 438.
The first consideration is has the reason for non-appearance been explained? In the present case there has been an explanation for the failure of the plaintiffs' Counsel to appear and I have no reason not to accept that explanation or to treat it as inadequate. Secondly, has there been undue delay in making this application to relist so as to prejudice the respondent? The delay in the present case has been in the order of three and a half months and although it is clear the application could and should have been filed much more expediously, I am not prepared to say in the circumstances of this case that it has been made unreasonably late or that the respondent has been prejudiced by the delay, and indeed that has not been suggested. Finally, I cannot say having regard to the pleadings and the evidence I have already heard that the plaintiffs' case is one which manifestly cannot succeed.
Having regard to all these matters, I consider it would be appropriate to restore this case to the cause list and that is the order I make. It will be on terms, however, that the applicants pay a further summons fee of three fifths of the original summons fee pursuant to note (g), paragraph (vii) of the Second Schedule to the Civil Procedure Rules.
The respondents are entitled to their costs of this application which I assess at 15 guineas.