Albert Ilona And George Ugboma V. Ojugbeli Dei & Mabeku Olise (1971)
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Parties
ALBERT ILONA
GEORGE UGBOMA
(For themselves and on behalf of Ugboma Obia Family of Abalagada Village in Aboh) Appellant(s)
AND
OJUGBELI DEI & MABEKU OLISE (For themselves and on behalf of Olise Family and Odigili Village in Aboh) Respondent(s)
UDO UDOMA, J.S.C.
This appeal raises a short but important point of practice and procedure. The appeal is against the judgment of Rhodes-Vivour, J. as he then was, in suit No. S/1/66 in the High Court of the Mid-Western State, Sapele, in which the claim by the plaintiffs, now appellants, was dismissed with 84pounds costs in favour of the defendants, now respondents.
Albert Ilona and George Ugboma for themselves and as representing Ugboma Obia family of Abalagada village, Aboh Division, instituted proceedings against Ojugbeli Dei and Mgbeku Olise for themselves and on behalf of Olise family of Odigili village, Aboh Division. The claim was for a declaration of title to certain fishing ponds “together with the piece or parcel of land known as AGWITI” 20pounds damages for trespass and an injunction.
Pleadings were ordered and duly filed and delivered. On 1st December, 1966, the case came up for hearing. A preliminary objection that the action was not properly before the court because the plaintiffs had failed to comply with Order 2, rule 1 of the Western Nigeria High Court (Civil Procedure) Rules, in that the particulars of claim were not properly indorsed on the writ of summons was rejected in a reserved ruling dated 5th January, 1967 by the learned trial Judge.
On 9th May, 1967 an application by the defendants to file their own plan of the area in dispute was granted.
The plan was ordered to be filed within three days and a copy thereof to be served on the plaintiffs. On 25th May, 1967, the case came up again. The 1st plaintiff was present but the 2nd plaintiff and their counsel were absent. Another counsel appeared holding brief for counsel for the plaintiffs. The defendants and their counsel were present. The case was adjourned with 10 guineas costs to 26th May, 1967 on the application of the counsel for the plaintiffs.
On 26th May, 1967, the case duly came up for hearing. The notes made by the learned trial Judge, which appear in the record of proceedings, read as follows:-
1st plaintiff present; 2nd absent. Defendants present. Takpor holds Ogbobine’s brief for plaintiffs. Oji, Etuwewe with him for defendants. Takpor-Plaintiffs not prepared to go on; asked for adjournment. Ogbobine gone to the Supreme Court, Lagos. Surveyor not traced. Oji – prepared to go on now. Adjourned to 29/5/67 for judgment.
(Sgd.) R.W. RHODES-VIVOUR, JUDGE
26/5/67″
On 29th May, 1967, the learned trial Judge delivered a judgment which is the subject matter of this appeal. He dismissed the plaintiffs’ claim under Order 28, rule 1 of the Western Nigeria High Court (Civil Procedure) Rules.
Now, the point of complaint in this Court by the counsel for the plaintiffs against the judgment is that the learned trial Judge erred in law in dismissing the plaintiffs’ claim under Order 28 rule 1 of the Western Nigeria High Court, (Civil Procedure) Rules, there being no notice of discontinuance or withdrawal before him, and without making any ruling on the application for adjournment duly made to him by the counsel for the plaintiffs.
In his submission, counsel for the plaintiffs contended that it is quite apparent from the record of proceedings that the learned trial Judge failed to give any consideration at all to the application for adjournment since, according to his notes, what he did was to reserve judgment; that that failure has resulted in a miscarriage of justice as the counsel for the plaintiffs and, indeed, the plaintiffs themselves were denied the opportunity of electing whether to go on with the case or to refuse to do so; and that the learned trial Judge erred in treating the application for adjournment as a notice of discontinuance or withdrawal under Order 28, rule 1 of the Western Nigeria High Court (Civil Procedure) Rules.
There is considerable force in these contentions; and counsel for the defendants rightly, we think, conceded that having regard to the notes made by the learned trial Judge on 26th May, 1967, there is nothing to show that any ruling was in fact given on the application for adjournment; and also that there was no notice of discontinuance or withdrawal by the plaintiffs before the court. Counsel, nevertheless, maintained that, despite the absence of any such ruling, the inference to be drawn from the fact that instead of a ruling, a judgment was reserved must be that the application for adjournment was refused. It was further contended by counsel that the learned trial Judge was entitled to assume from the wording of the application for adjournment by counsel for the plaintiffs when he stated:
“Plaintiffs not prepared to go on; asked for adjournment”
that the plaintiffs were determined not to proceed with the case whatever the ruling of the court on the application for adjournment. “-
We are not persuaded by these contentions, though very ingenious. This is a case in which the record indubitably speaks for itself. It is clear that the learned trial Judge did not direct his mind, nor did he exercise his discretion with respect to the application for adjournment properly made to him. It is obvious in the present case that the application for adjournment was not dealt with at all. It was the duty of the learned trial Judge before deciding to dismiss the plaintiffs’ case to have disposed of the application by clearly informing the counsel for the plaintiff that the application was refused. That was not done. Instead the learned trial Judge reserved judgment which he delivered as already stated above.
The learned trial Judge purported to rely in his judgment on Nwobu Nwachukwu and Others vs. David Nze and Others. In re: Ofoegbu Nze For Himself And On Behalf Of The Ugwuoba People vs. David Nze For Himself And On Behalf Of The People of Achi (1955) 15 WACA. p. 36 which was based on the construction of Order XLIV, rule 1 of the Supreme Court (Civil Procedure) Rules which rule the learned trial Judge rightly held was in pari materia with the provisions of Order 28, rule 1 of the Western Nigeria High Court (Civil Procedure) Rules, Laws of Western Nigeria Vol. II of 1959.
Although Order 28, rule 1 already referred to is irrelevant for the purpose of deciding the point at issue in this appeal, it is nonetheless instructive and pertinent to look at its provisions, which are in the following terms:-
“1. (1) If before the date fixed for hearing the plaintiff desires to discontinue any suit against all or any of the defendants, or to withdraw any part of his claim, he shall give notice in writing of discontinuance or withdrawal to the Registrar, and to every defendant as to whom he desires to discontinue or withdraw.
After the receipt of such notice such defendant shall not be entitled to any further costs with respect to the matter so discontinued or withdrawn than those incurred up to the receipt of such notice, unless the Court shall otherwise order, and such defendant may apply ex parte for an order against the plaintiff for the costs incurred before the receipt of such notice and of attending the Court to obtain the order. Such discontinuance or withdrawal shall not be a defence to any subsequent suit.
- If in any other case the plaintiff desires to discontinue a suit or to withdraw any part of his claim, or if a defendant desires to discontinue his counterclaim, or withdraw any part thereof, such discontinuance or withdrawal may be allowed on such terms as to costs, and as to any subsequent suit and otherwise as the Court may seem just.” (italics ours)
The above provisions are designed to cover cases of discontinuance or withdrawal of suits pending in court and the costs to which defendant affected by such discontinuance or withdrawal is entitled. In Nwobu Nwachukwu and Others vs. David Nze and Others (Supra), the plaintiffs, without previous notice as prescribed by the rules set out above, sought to discontinue the suit after the date on which it was fixed for hearing. The learned trial Judge refused him leave to do so. As a result the plaintiffs’ counsel declined to proceed with the case. The court thereupon dismissed the claim.
The plaintiffs’ appeal to the West African Court of Appeal was dismissed on the ground that the learned trial Judge was right to have dismissed the claim, when the counsel for the plaintiff declined to proceed with the case, on being called upon to do so. The court held also that, while it is correct that the rule gives a plaintiff a right to discontinue his suit by notice given before the date fixed for hearing, on or after that date, the suit can only be discontinued or withdrawn by leave of the court; and that a trial Judge has the power to refuse such leave where notice has not been given as prescribed by the rule.
With respect, we are of the view that the decision in Nwogbu Nwachukwu vs. David Nze (supra) is irrelevant to the issue raised in the present appeal. The plaintiffs or their counsel never at any time indicated any intention expressed or implied to discontinue or withdraw their case against the defendants. All they asked for was an adjournment.
As already stated, the point which calls for decision in this appeal is a short one. The question is: was the learned trial Judge right to have dismissed the plaintiffs’ claim in the circumstances disclosed by the record without first giving consideration to and making a ruling on the application for adjournment The answer to that question must be in the negative.
We think the learned trial Judge fell into error and so left himself open to criticism by his failure to communicate to the plaintiffs’ counsel and, indeed, also to record in his notes that he had refused their application for adjournment. The question whether or not to grant an adjournment is a matter in the discretion of the court. But that discretion must at all times be exercised not only judicially but also judiciously. The facts and circumstances in George Akinwande Jones and Anr. vs. H.S.A Thomas and Ors. (1962) L.L.R. 9 to which our attention was drawn by the counsel for the defendants are distinguishable from those in the case on appeal before us. On the date fixed for hearing in that case, counsel for the plaintiff therein had asked for adjournment, despite the fact that on a previous occasion when an adjournment, also at the instance of the plaintiffs, was granted, the court had then made an order to the effect that if the case was not proceeded with on the date to which it was adjourned, it would be struck out.
The application for adjournment was subsequently refused by the court and the counsel for the plaintiffs so informed. When asked to proceed with the case, counsel refused to do so. The court had no alternative but to dismiss the case, which it did.
It follows that for the reasons given above, this appeal succeeds. It is allowed. The order of the learned trial Judge dismissing the plaintiffs’ claim together with the order for costs is accordingly set aside. It is ordered that the case be and it is hereby restored on the list of the Mid-Western High Court, Sapele, to be there heard and determined de novo by another Judge. The plaintiffs are awarded the costs of this appeal against the defendants assessed and fixed at 67 guineas.
Order accordingly.
SC.346/1967
