Festus Onyekaonwu & Anor V. Christian Udegbunam (2009)

LawGlobal-Hub Lead Judgment Report

AMIRU SANUSI, J.C.A.

This is an interlocutory appeal against the ruling of Anambra State High Court (the lower court) (Coram Nweze J) delivered on 17th of May 2005 wherein the lower court dismissed the suit instituted by the plaintiffs/appellants. At the lower court, the plaintiffs who are now appellants in this case took a writ of summons against the defendant now respondent. In their third further Amended Statement of Claim, the following reliefs were sought namely:

a) A declaration setting aside the Deed of Assignment between the Plaintiffs and the defendant dated 27th day of January 1974 and registered as NO. 69 at page 69 in Volume 439 of the Deeds Registry, kept in the Lands Registry, Enugu on grounds of fraud and misrepresentation.

b) A declaration of title to a statutory right of occupancy over the property situate at and known as NO.21 Umunna Street Odoakpu, Onitsha.

c) An order for accounts over the said property from January 1974.

d) An order for possession of the said property.

The facts which gave rise to the instant appeal can be summarized briefly as follows: The case was initially commenced by Olike J of the lower court and had reached the stage of taking the address of the defendant’s counsel before His Lordship, Olike J retired. Upon OIike J’s retirement P.A. Obidigwe J, commenced the hearing of the case de novo before he was transferred to another division. The learned counsel the plaintiffs then applied for the documentary exhibits tendered and the copies of same proceedings of the trial before Obdigwe J in order to commence proceedings before another judge. Only copy of the testimony of one witness could be produced by the court officials, while the exhibits tendered in evidence could not be located. The case, with the departure of Obidigwe J, was subsequently transferred to Nweze J who commenced hearing in the case on 10/5/2005 after he granted order for accelerate hearing. On that day, the plaintiffs commenced their case by calling their witness. Midway into the testimony of the witness, the plaintiffs’ counsel asked for adjournment. The application for adjournment was granted by the court which awarded N1, 000.00 costs to the defendant. The case was then adjourned to 12/5/2005. On 12/5/2005 the case was further adjourned by the court, albeit reluctantly, at the instance of the plaintiffs’ counsel apparently due to the absence of his clients from court. The court again awarded N3, 000.00 cost to the defendant. Then on 17/5/2005, instead of proceeding with the hearing of the case, the plaintiffs’ counsel filed a Motion on Notice for amendment on that same day the learned counsel again applied for adjournment of the case and applied to the court to vacate of the two days earlier fixed for the hearing of the case. The defendant’s counsel opposed the application for adjournment and urged the court to dismiss the suit or in the alternative he asked the court to award him N5,000.00 costs for the adjournment on that day and another N5,000.00 for the vacation of the two remaining dates earlier slated for the continuation of the substantive case. The trial court adjourned the matter to 19/7/2005 and merely awarded N5, 000.00 for the adjournment without awarding any costs for the vacation of the two earlier days and fixed the case against 12/9/2005 for the hearing of the motion. The learned counsel for the plaintiffs however became aggrieved with the latest award of cost by the lower court and thereupon filed an interlocutory appeal against the same.

On 12/9/2005, the trial court heard and granted the plaintiffs’ motion for amendment of their statement of claim and thereafter adjourned the substantive case to 24/1/2006 and subsequently set the 8th, 9th, 22nd, 23rd and 24th of February 2006 for continuation of hearing of the substantive case in line with its earlier order for accelerated hearing of the case and again awarded N2000.00 costs to the defendant/respondent.

Then on 24/1/2006 when the court reconvened, the plaintiffs counsel intimated the court that his witnesses were not in court and that the court officials failed to provide him with all the documents he applied for because they could not trace them adding that without them the case could not go on.

He urged the court to vacate the dates it earlier gave for the continuation of hearing in the case. He also said he could not mind re-listing the case at a later stage. In opposition to the plaintiffs’ counsel’s application supra, the learned defendant’s counsel applied under Order 24 Rule 12 of the High Court (Civil Procedure) Rules for the dismissal of the suit with N10, 000.00 costs since the plaintiff had already given evidence in the case. Responding to this request of the defendant’s counsel, the learned counsel for the plaintiffs urged the court to strike out the case rather than dismissing it and also urged it not to award any costs. In a short ruling dated 24/2006 which gave rise to the substantive appeal by the present appellant upon being dissatisfied with same, the lower court ruled as below:

“Court:- This is a 1979 case. The court had done all in its power to expedite the hearing of the case. The plaintiff CANNOT go on. In my view there must be an end to litigation. The plaintiffs are not even in court. In my view there is not point (sic) retaining this case on the cause list. It is hereby dismissed with N5, 000.00 cost in favour of the defendant.

Sgd J.I. Nweze

(JUDGE)

24/1/2006.”

Initially aggrieved by both the interlocutory decision on award of costs of N5, 000.00 by the lower court and the final decision of the lower court dismissing his suit, the appellants appealed to this court. They filed two Notices of Appeal dated 39th May 2005 and 27th March 2006 in respect of the interlocutory and on the final decision of the lower court respectively. In keeping with the practice in this court the appellants’ counsel filed Brief of Argument on behalf of the appellants on 13/10/2006 dated 12/10/2006 wherein he distilled one issue for determination from each of the two Notices of Appeal. The issues so distilled are:

(1) Interlocutory appeal

“Was the award of N5, 000.00 in the circumstance of this case a judicious and judicial exercise of discretion by the learned trial judge?

(2) Substantive Appeal

Was the dismissal of the plaintiffs (sic) case by the learned trial judge a fair and equitable decision in the circumstance of this case?”

The appellants also filed appellants’ Reply Brief on 31/8/2007 dated 4/8/2007 in response to a Notice of Preliminary Objection filed by the respondent which was also argued in his brief of argument dated 20/6/2007. The respondent filed his brief of argument on 29/10/08 dated 20/6/2007, wherein he also incorporated his argument on the Preliminary Objection.

When the appeals came up for hearing before us on the 28th of April 2009, Mr. G.R.I. Egonu SAN, the learned Senior Counsel of the Respondent applied to withdraw his Preliminary Objection on Issue No. 1 which pertained to the interlocutory appeal on the award of costs by the trial court. He equally applied to withdraw all the arguments therein contained on pages 1 to 3 of his Brief. He however adopted his argument on the Preliminary Objection in Issue No.2. I will first consider the preliminary objection on Issue No. 2 which is the only subsisting issue raised in the Preliminary Objection. It is the submission of the learned counsel for the respondent that the sole issue raised in the substantive appeal is incompetent as it was formulated on an incompetent ground of appeal. He referred to the case of Dr. Olawale Alakija & Ors v. Alhaji Olawale Alakija (1998) 6 NWLR (Pt. 552) 1 at 9/10 para. H -A. He also stated that the Notice of Appeal is incompetent because the relief sought there is inconsistent with the case and the application made by the plaintiffs/appellants at the lower court. The learned counsel for the respondent in his brief of argument referred to page 81 of the record of proceeding of 24/1/2006 and argued that the appellants as plaintiffs at the lower court had never asked for adjournment on that day but had merely told the court that he was not ready to go on with the case and thus asked the court to strike out the suit as they intended to relist the case later adding that an appeal is a continuation of the case at the lower court. He referred to the case of Harka Air Services (Nig) Ltd. v. Emeka Keazor Esq., (2006) 1 NWLR (Pt. 960) 160 at 232 B – D, Chris N. Ngige v. Peter Obi & Ors (2006) 14 NWLR (Pt. 999) 1 at 232, Lawrence Adebola v. Oredoyin & Ors. (1989) 4 NWLR (Pt. 114) 172 at 211 E – F. The learned silk emphasized that since the appellants asked for the striking out of their case they should not turn round to make a different case that it ought to have been adjourned at the lower court. He argued that a ground of appeal is incompetent when the factual basis is false or non-existent. See M.U. Ikem & 3 Ors. V. Victor Ezianya (2003) 4 NWLR (Pt. 757 245 at 261 G- H. He concluded his argument by submitting that issue of adjournment was not a point raised at the lower court, hence such issue cannot be raised here without first obtaining leave to raise such fresh issue. See Nigeria Deposition Insurance Corporation & Anor v. Savanah Bank of Nigeria Plc. (2003) 1 NWLR (Pt. 801) 311 at 355/356 D – A. He said that having raised it without leave the argument therein contained in the appellants’ brief is incompetent and ought to be struck out. See: Edward Goji v. Joseph Ewete (2001) 15 NWLR (Pt. 736) 273 at 281 D – H. He stated that a court cannot separate incompetent argument from a competent one in an issue hence the entire Issue NO.2 should be struck out for being incompetent. He urged that Issue 2 be struck out and also urged this court to sustain his objection adding that if that is done there would be no need to consider the appeal on the merit at all. See Alhaji Rugau Mosoba v. Umaru Abubakar (2005) 6 NWLR (Pt. 922 460 at 472 E -F.

In his reply to the respondent’s counsel’s argument on the Preliminary objection, the learned counsel for the appellants after extensively quoting what transpired in the lower court’s proceedings on 24/1/2006 in his brief, submitted that the case he ventilated at the lower court was simply that the dismissal of the case by the lower court instead of striking same out was unjust and injudicious. That was the sole reason for their appeal. He said he never asked for relief which was inconsistent with his case or with the application he made at the lower court. He urged that the preliminary objection be overruled.

At this stage I think it will be apt to reproduce the sole ground of appeal from which the only subsisting issue for determination was lifted. The grounds of appeal in question are reproduced below along with its particulars including the relief sought, for ease of reference.

“GROUND 1

ERROR IN LAW

The, learned trial Judge erred in law when he dismissed the Plaintiffs’ suit and rejecting the application for adjournment

PARTICULARS OF ERROR

1. This is a 1979 case which reached the stage of address of Counsel before Hon. Justice C. Olike before he retired. The Defendant’s Counsel had in fact started his address.
2. The case before Hon. Justice P.A.C. Obidigwe de novo but His Lordship left on transfer.
3. The case later came before Hon. Justice Nweze.
4. On 17/2/05 before His Lordship Hon. Justice Nweze the case was adjourned to 10th, 12th, 17th, 19th and 24th May 2005 and 7th June 2005 for hearing.
5. On 10/5/2005 the PW 1 (1st Plaintiff started his evidence in chief.
6. On this date it became clear to the Plaintiffs’ Counsel and the court that the said 1st Plaintiff was not coherent and could not understand a simple question posed to the witness about his deceased wife.
7. Plaintiffs’ Counsel prayed for an adjournment which the court graciously allowed.
8. On the next adjourned date of 17/5/2006 Plaintiffs’ counsel had filed an motion before the court seeking to amend Plaintiffs’ 2nd Further Amended Statement of Claim the purpose of which was to allow the Counsel tender the Plaintiffs’ earlier evidence which had gone through evidence-in-chief and cross-examination by the two Counsel in the matter. A.O. Amene Esq. and G.R.I. Egonu Esq. SAN. under Section 34(1) if the Evidence Act.
9. The Defendant Counsel asked for time to file his own address.
10. The Court adjourned the case to 19/7/05 with N5,000.00 costs. The Appellants had appealed against this award separately with the leave of the trial court.
11. On 19/7/05 the Defendants Counsel served his Counter-affidavit on the Plaintiffs’ Counsel in Court and the case was further adjourned to 12/9/05.
12. On 12/9/05 the motion of 14/5/05 filed by the Plaintiff for amendment was taken.
13. The court granted the application for Amendment and adjourned the case to 24th, 25th, 26th January 2006 and 8th, 9th, 22nd, 23rd, 24th February, 2006 for hearing.
14. On 24/ 1/06 the Plaintiffs were absent. The Plaintiffs counsel informed the court that he was not been able to obtain the certified copies of the proceedings he had applied to the court for. That the 1st Plaintiff for whom he had obtained the leave of the court amending his 2nd further Amended Statement of Claim and for whom he had tendered his sick report showing his incapacity was not in court. With more dates pending Counsel asked for the dates to be vacated and the case adjourned to enable him secure the C.T.C. he had applied for from the Court’s Registry so that the case can go on.
15. The Defendants Counsel asked that the case be dismissed and the court dismissed the Plaintiffs suit with N5,000.00 (Five thousand naira) costs.

The record speaks for itself.

RELIEFS SOUGHT FROM THE COURT

That the Court of Appeal should set aside the judgment of the trial court dismissing the Plaintiffs case and transfer the case to the administrative judge in charge of Onitsha for hearing by another Judge in the judicial Division.”

Let again reproduce below the relevant record of proceedings of the lower court of 24/1/2006 and see what transpired on that day even at the risk of being repetitive.

AMENE: My witnesses are not in court. We have not been able to collect the documents we applied for. The Registry says it can’t find the file. Without those documents this case is gone. I ask for the vacation of the dates already given. We cannot go on with the case. We do not mind having to relist this case later.

NYIGIDE: This is most unfortunate. The Court had granted accelerated hearing to go on. This will be the 4th adjournment at the instance of the plaintiff. By Order 24 Rule 12 of the High Court Rules this court can strike out the case. We ask for dismissal of this case. I ask for N10, 000.00 cost.

AMENE: Ask the case to be struck out instead. I also urge the court not to award cost in this case.

COURT: This case is a 1979 case. The court had done all in its power to expedite the hearing of the case. The Plaintiff CANNOT go on. In my view there must be an end to litigation. The Plaintiffs are not even in court. In my view there is no point retaining this case on the cause list. It is hereby dismissed with N5, 000.00 cost in favour of the defendant.

Sgd. J.I. Nwesze

(JUDGE)

Ifeanyi Nweze

24/1/2006

Cursorily looking at the wording of the ground of appeal supra it would seem to me that the main grouse of the appellants is the lower court’s order dismissing their suit instead of striking same out. To my mind, the appellants could not be said to be distinctly complaining of the court’s refusal grant adjournment. In actual fact did not seek or apply for any adjournment since he even urged the court to vacate the two dates it had earlier fixed for the continuation of the hearing of the case. If the appellants had intended to make an issue on adjournment they could have made it a ground, even then there had not been such application. The inclusion of the issue of adjournment in the ground in my view was never meant by them to amount to making a fresh case on appeal as argued by the learned counsel for the respondent, but simply to strengthen their argument on the court’s alleged error in dismissing his suit in limine instead of striking same out. They could not have complained about adjournment when they in fact never asked for same. It could also be noted from what transpired on that day that the appellants even informed the court that they did not mind relisting the case later. Again when the learned counsel for the defendant/respondent requested the court to strike the case out before later changing his mind to ask for its dismissal, the plaintiffs’ counsel even conceded to the case being struck out instead of dismissal. This clearly shows that his complaint was not on adjournment but simply centred on the dismissal of their case. In my humble view, the ground of appeal is simply based on the dismissal of the suit and was NOT intended to complain on adjournment. I reject the respondent’s counsel submissions that the appellants made or raised an issue different from, the one in his ground of appeal or that they raised fresh issue on appeal without leave.

On the relief sought, the appellants simply urged the setting aside of the judgment of the lower court dismissing his suit and seeking the transfer of same to another judge for retrial an did not include anything on adjournment at all. The Relief is simply based on the issue of dismissal of the case by the lower court which is the order or decision of the lower court. I also hold that the issue raised is distilled from a competent ground of appeal and is therefore competent. In the result, I hold that the Preliminary Objection is not well taken. It is discountenanced and dismissed by me. I will now proceed to treat the substantive appeal.

On this sole issue for determination, the learned counsel for the appellants tried to distinguish between the effect of dismissal of a suit and that of striking out of the suit by the court. He argued that in the case of dismissal, the plaintiff whose case is dismissed can not re-litigate while if a case is struck out, a plaintiff can relist the case or when the deficiency leading to the striking out of same is corrected. See the case of SDC Cewnt (Nig.) Ltd. v. Nagel Co. Ltd. (2003) 4 NWLR (Pt. 811) 611 Ratio 12 &13.

The learned Counsel also submitted that in the instant case the suit was merely part heard by all the judges that handled it. He said although as at the date the suit was dismissed by the trial judge the plaintiffs were not in court to testify, the court could simply have awarded cost or at worst strike it out to enable the plaintiffs come back later instead of dismissing the suit. He further argued that by arbitrarily dismissing the suit, the trial court denied them their right to fair hearing of the plaintiffs’ case.

In a further submission the learned counsel for the appellants argued that court has the discretion to adjourn matters to a later time where it deems it necessary in order to do justice between, the parties before it, adding that discretional powers are exercised by courts in the interest of justice and for the purpose of proper determination of the matters before it. He said where a party seeks adjournment in a matter he has the legal duty to place before the court sufficient materials or reasons on which the court will exercise its discretion to grant or refuse the application for adjournment. See Chijoke v. Soetan (supra) Ratio 8-10. He said in the instant case the plaintiffs sought adjournment to enable it retrieve the processes (for the prosecution of their case) from the court registry and also to get the 1st plaintiff to come to court to continue his testimony hence their application for adjournment.

Replying, the learned counsel for the respondent submitted that the lower court was right in dismissing the plaintiffs/appellants’ case instead of striking it out since the case was already part heard by Nweze J. when the 1st plaintiff/appellant testified on 10/5/200 before the counsel for the plaintiffs/appellants’ asked for adjournment. He said the plaintiffs’ /appellants’ counsel’s reason for seeking adjournment on 24/1/2006 to the effect that he applied for Certified True Copies of the evidence of some of his witnesses, was insufficient to make the court strike out the case instead of dismissing same. He said since by their 3rd further statement of claim the plaintiffs had other witnesses to call besides the 1st plaintiff they should have called their other witnesses to testify but their counsel instead informed the court that they could not go on with the case.

He said in that circumstance the trial court as entitled to dismiss the case on the application of the defendant/respondent or even suo-motu since the evidence already received by it could not prove the case or warrant the court to call the defendant to defend the action. He added that once pleadings were filed and exchanged by parties in a case and a plaintiff applies to withdraw the case such case should be dismissed and not struck out and such dismissal is on the merit. See Raphael Okwudi Nwokedi v. Roxy Travel Agency Ltd. & Ors (2002) 6 NWLR (Pt. 762) 181 at 199 F to H. He said the plaintiffs’ counsel’s application for striking out of the case on 24/1/2006 amounted an application to discontinue his action by virtue of the provisions of Order 22 Rule 4(1) of Anambra State High Court (Civil Procedure) Rules of 1988. Under the provisions of these rules supra a court has the discretion to grant or refuse and dismiss the case where a party refuses to proceed with a suit as in this instant case.

In the first place, my lords, permit me to draw distinction between order of dismissal of a matter or suit and striking out of a suit. An order striking our matter clearly gives the parties the right to relitigate the matter as such matter has not properly determined on the merits. See Registered Trustees of Ifelodun v. Kuku (1991) 5 NWLR (Pt. 189) 65; Soetan v. Total Nigeria Ltd (1972) 1 S C 86; Oranti v. Onigbanjo (2004) 17 NWLR (Pt.903) 601. On the other hand dismissal of case by a court has a very serious consequence in that where a case/matter is dismissed by a court the party whose case is dismissed has no right to religigate on the same matter again. There is however a rider to that in that it is not in all cases where a matter is dismissed that such dismissal would completely terminate the case. This is for instance where a case is dismissed in the High Court but the circumstances of the dismissal show that the dismissal could not possibly connote or denote the determination as to put finality to the case. In such situation such dismissal merely amount to striking out. See Obasi Bros. Co. Ltd. v. MBAs Ltd. (2005) 9 NWLR (Pt.929) 117.

From the facts and circumstances of the instant case the lower court used its discretionary power to dismiss the plaintiffs/appellants’ suit upon the oral application of the learned for the defendant/respondent apparently due to incessant applications for adjournment by the plaintiffs/appellants’ counsel especially when the latter informed it that he could not go on with the case because his inability to get the document/exhibits he had earlier tendered in earlier proceedings before one of the judges who part heard the case earlier.

The learned counsel for the respondent cited and relied on the decision of this court in the case of Rephael O. Nwokedi v. Roxy Travel Agency Ltd. & 2 ors (2002) 6 NWLR (Pt.1762) 181 to justify the propriety of the lower court’s order dismissing the plaintiffs’ /appellants’ suit. With due deference to the learned Silk for the respondent, the facts in that case differ from those in the instant case. In the first place in Nwokedi’s case, the hearing had reached the stage of addresses by counsel to the parties before the plaintiffs/appellants therein applied for leave to discontinue with the suit vide Order 22 Rule 4(1) of the Anmabra State High Court (Civil Procedure) Rules 1988 when he, through a motion for discontinuance of the suit, asked the trial court to strike same out. In that motion for discontinuance, the plaintiff in that case based his application on the grounds that he erroneously believed that one of the parties he sued i.e. 1st respondent was a limited liability company or a juristic person which can sue and be sued. The defendant/respondent in that case successfully urged the lower court to dismiss the case instead of striking it out. The lower court in a considered judgment dismissed the suit of the plaintiffs/appellants in that case instead of striking it out as urged by the defendants’ counsel without even allowing the plaintiffs counsel to reply. It is clear that in Nwokedi’s case the main reason why the plaintiff wanted to discontinue with the case was because one of the parties he sued as respondent was not a juristic person. Therefore, it is evident that even if the suit was struck out by the court, the plaintiffs thereat could not relitigate it again as it was not properly constituted as one of the parties in the suit was disqualified or incapacitated for not being a juristic person who could be sued. But in the instant case, there is no such incapacitation on the part of any of the parties to the suit.

As I said earlier, the reason why the plaintiffs choose to discontinue the hearing and wanted the case struck out was to enable him relitigate same later because of the missing exhibits which they would want to use to prove their case which said exhibits could not be traced as at the time he applied to discontinue with the suit. More importantly, unlike in Nwokedi’s case which had reached the stage of address to be delivered by the plaintiff/appellant, the instant case had only reached the stage of calling evidence by the plaintiffs and had not even reached the stage of defence, not to talk of addresses by counsel. In other words, while all evidence and exhibits were tendered and all witnesses heard in Nwokedi’s case, only the plaintiffs commenced or opened their case in the instant case.

Admittedly, under the provisions of Order 22 Rule 4(1) of Anambra State High Court (Civil Procedure) Rules. 1988, once a case is slated for hearing or hearing had commenced, a plaintiff can only discontinue such case with leave of the trial court. In other words, leave to discontinue with a case no longer becomes automatic or is no longer at the whims and caprices of the plaintiff. The trial court therefore, has the discretion to allow or refuse to discontinue with such case. See Aghadinuno v. Onubogu (1998) 5 NWLR (Pt. 5480 16; Eronini v. Ihuko (1989) 5 NWLR (Pt. 101 46; Giwa v. John Hold & Co. Ltd. 10 NLR 77; Oorodudud v. Okoromadu (1977) 3 SC 21; Wachukwu v. Cooperative Bank of Eastern Nigeria Ltd. (1974) 4 ECSLR 1.

It is my humble view that courts have discretionary power to grant leave to discontinue with a case under Order 22 Rule 4(1) of the Anambra State High Court (Civil Procedure) Rules 1988. It can grant or refuse leave to a party to discontinue a suit and where it refuses such leave; it can either strike out or dismiss the suit even in limine. However, when courts exercise such discretionary powers they must do so judicially and judiciously. That is to say, when exercising such discretionary powers, consideration of the justice of the case is of paramount importance. Now, the question I will pause here and ask: “Could it be the justice of the case to permanently shut out the plaintiffs who have not finishing ventilating their case apparently due to the disappearance, (through no fault of theirs) of some exhibits which they want to use for the prosecution of their case? I don’t think so. I feel it is unjust for the trial court to dismiss their case at that stage. By so doing the trial/lower court is permanently shutting them out as they can no longer relitigate the case especially in the event the exhibits later resurface or are later traced. It should be noted also that the plaintiffs have not even finished presenting their case to the court and were yet to meet the defendant in his case. It would to my mind, only be a fair justice if the lower court had given them leave to discontinue their suit by striking it out so that they would have the liberty of resuscitating it later (if they so wish) against the defendant/respondent. It is only if a case reaches a very late or advanced stage of hearing that courts should be reluctant to strike out a suit. But where it is only at a tender stage of the hearing, as in this instant case, the appropriate order of discontinuance to make is one of striking out and NOT of dismissal. It is my humble view therefore that by dismissing and not striking out the case, the trial court did not exercise its discretion judiciously and judicially as expected of it so to do.

It is trite law that before a court exercises its discretionary powers to dismiss a suit of a plaintiff for example on ground of delay in the prosecution of such suit, it must be evidently shown that:

(i) that the case had been pending for a long period of time;

(ii) that the delay is in excusable; and

(iii) that the delay must be such that injustice must be occasioned if the action is not dismissed.

All these conditions must co-exist before a court can dismiss a suit due to inordinate delay. See Usikaro v. Itsekiri, and Trustees (1991) 2 NWLR (Pt.172) 150; John Andy Sons & Co. Ltd. v. Mfon (2006)12 NWLR (Pt.995) 461. In the instant case the delay in the prosecution was not solely caused by the plaintiff but was also contributed to by the transfers or retirement of some judges. Another cause of the delay was the failure of the court staff to furnish him with the exhibits he earlier tendered in proceedings before one of the judges that part heard the case. Again in most of the adjournment granted at the instance of the plaintiffs/appellants heavy costs were awarded to the defendant/respondent. The delay which must have influenced the lower court to dismiss the plaintiffs/appellants’ suit was in my view excusable, considering the circumstance caused by the disappearance of the exhibits which appellants wanted to use when they called one of plaintiffs to testify. The inability of the court officials to produce the exhibits put the plaintiffs’ counsel in a precarious situation and forced him to say that there was no how he could go on with the case and even opted to be obliged with an order striking the suit so that he could relist it at a later stage. In my view there would, be no injustice to be occasioned to the defendant/respondent if the matter was struck out so that the plaintiff could get it relisted later, possibly when the missing exhibits were recovered by the court officials. In the instant case therefore, I hold that none of the three conditions listed supra were met as to warrant the lower court’s resolve to dismiss and not strike out the plaintiffs’ suit as they applied or requested the court so to do. The circumstances of this case do not support the exercise of discretion by the lower court to dismiss the case instead of striking same out. By dismissing the suit in limine after the case was partly heard by the court, to say the least, amounts to totally shutting out the plaintiffs which negates the need to adhere to the rules of fair hearing and thus visiting them with greatest punishment that a plaintiff can receive in the litigation process. It is well settled law also, that before a court dismisses an action, it must be pretty sure that it has no other option but to do so. See NBCI v. MGI Co. Ltd. (1992) 7 NWLR (Pt.221) 71; Rivway Lines Ltd. v. Rhem Mas United GMBH Ltd. (1993) 7 WNLR (Pt. 308) 612: In the result I resolve this sole issue in favour of the appellant.

On the whole, the appeal is adjudged meritorious by me. It succeeds and is accordingly allowed. The decision of the lower court in Suit No. 0/120/79 dismissing the plaintiffs/appellants’ suit, delivered on 17th May 2005 is hereby set aside. The said suit is hereby remitted to the Chief Judge of Anambra State for reassignment to another judge for retrial.

Cost of N30,000 is awarded to the plaintiffs/appellants against the defendant/respondent herein.

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Other Citations: (2009)LCN/3331(CA)