Alhaji Shuaibu Mamman Dan Maifade V. Muhammadu Dan Ige & Ors (1997)
LawGlobal-Hub Lead Judgment Report
MUHAMMAD, J.C.A.
This appeal is on the ruling of a Sokoto State High Court of Justice sitting as an appeal court on appeal No. SS/58A/84. On the 17th day of March, 1994 the appeal was called for hearing. The appellant was absent. It was indicated that the appellant was served with hearing notice. Accordingly, learned counsel for the respondent made an oral application that the appeal be struck out as the appellant was no longer interested in the appeal. The lower court granted the application and struck out the appeal. This appeal is as a result of that striking out order.
Brief facts on the appeal, from the record, show that the Upper Area Court No. II Sokoto (trial court) received a directive vide letter No. S/JACD/3/V1/173 of 24/2/84 from the Area Court Division, Sokoto, for a retrial of the case between the parties. The claim before the trial court was that the respondents as plaintiffs claimed against the appellant as defendant that they were entitled to the ownership of a plot of land which was in possession of the appellant. After taking evidence, judgment was entered in favour of the respondents. Dissatisfied, the appellant appealed to the High Court. The panel that entertained the appeal, F.C. Udoh and B. Abdullahi (JJ) took arguments from the parties on 8/1/87 and reserved judgment to the 12th day of January, 1977. On the said date, judgment could not be delivered due to the fact that the panel could not reconstitute. As a result, the appeal was again listed for hearing by another panel which was constituted by J.O. Omokri and A.I. Anka (JJ) who ordered, vide their ruling of 7/2/91, that the parties should wait for judgment as scheduled by the earlier panel. In essence the latter panel did not consider the appeal. The appeal was then re-scheduled to be taken up by another panel (3rd panel) constituting of F.C. Udoh and J. Mikailu (JJ). This was the last panel that struck out the appeal. The appellant then filed a motion on notice No. SS/H/83194 for relistment of the appeal.
This motion was refused on the 17th day of March, 1994. The appellant then filed his appeal to this court. He filed a Notice of Appeal containing two grounds.
In compliance with the rules of court the appellant filed his brief of argument. The respondents did not file any brief. In the appellant’s brief, learned counsel for the appellant formulated the following issues for the determination of this court;
- “Whether the ruling of the High Court, in its appellate jurisdiction, striking out the appeal for non attendance of the appellant in court can be sustained having regard to the fact that the same High Court had heard arguments from both parties and had reserved judgment thereto.
- Whether in the surrounding circumstances of this case, the High Court was right to hold that” on several occasions the case was mentioned and listed for hearing but on each occasion appellant had refused to show up”, having regard to the fact that the case had been adjourned by the court itself, since judgment had earlier on been reserved.”
This appeal was heard by this court on the 19th day of March, 1997. Learned counsel for the appellant adopted and relied on his brief. He had nothing more to add and urged the court to allow the appeal. The respondents were not in court and were not represented. No brief was filed by the respondents. I shall therefore treat this appeal on the issues formulated by the appellant as relating to the grounds of appeal.
Arguing the issues in his brief, learned counsel for the appellant submitted that striking out an appeal is a matter within the exclusive discretion of the court which must be exercised judicially and judiciously. Learned counsel submitted that in view of the attitude of the different panels of the lower court that acted in one way or the other on the appeal before the lower court, it was a blatant negation of the principle of substantial justice when the court struck out the appeal based on a misconceived application by the respondents. He submitted further that interest of justice required that the parties ought to have been afforded reasonable opportunity to have their rights determined on the merit. He likened the situation of his appeal as that of a party who filed a brief at the Court of Appeal but did not turn up to argue the appeal and by rules of court the Court of Appeal cannot strike out or dismiss the appeal merely on his non appearance. Learned counsel argued further that the lower court decided the application to strike out appellant’s appeal on a ground not relied upon by the respondents and without evidence. It was his submission also having argued the appeal and date for judgment having been fixed there ought to be proper service of hearing notice on the appellant where the court was to re-hear the appeal as the reserved judgment could not be delivered. There was no such proof of service of the hearing notice on the appellant. Further, it was the court’s duty to afford parties an opportunity to address it on the desirability and propriety of striking out order at the stage it did. This, according to learned counsel, is one of the rare instance where the appeal court shall interfere with the exercise of discretion of a trial court. Learned counsel cited a number of authorities in support of his submission including inter alia; Tom v. Ameh (1992) 7 NWLR (Pt.217) 306; Adeka & Anor v. M.A. Vattia (1987) 1 NWLR (Pt.48) 134; Onifade v. Olayiwola (1990) 7 NWLR (Pt. 161) 130; Ajakaiye v. Adedeji (1990) 7 NWLR (Pt.161) 192; Odutola v. Kayode (1994) 2 SCNJ 21 3 KLR 1; (1994) 2 NWLR (Pt.324) 1.This appeal, from the facts made available before this court had its own chequered history. It had its own vicissitudes. I have earlier on setout the historical antecedent of the appeal. It was unfortunate that none of the three different panels constituted by the lower court at different times was able to determine the matter on appeal before the lower court. Be that as it may, there was no judgment on the appeal as same was struck out by the third and last panel of the lower court that sat to hear the appeal. I think there is need to make some clarification in considering the first issue on a judgment reserved but not delivered. The practice in our courts the first issue on a judgment reserved but not delivered. The practice in our courts is that after evidence from the respective parties and counsel’s addresses where desirable, were taken by a trial court or where arguments are taken in elucidation of grounds of appeal or issues formulated for consideration by an appeal court, the matter is reserved for judgment. Where judgment/ruling is delivered within the statutory period, then that is the end of the matter in that court. Where no judgment was forth coming, then the matter may be relisted for a fresh hearing. In the process of re-hearing, the hearing court can make such orders that are within the inherent powers of the court including an order of dismissal or striking out of a case depending on the circumstance of each case.
What happened at the court below was that on the 17th day of March, 1994, appeal No. SS/58A/84 was scheduled for hearing before the lower court. The appellant was absent. It was shown on record that he was served. Accordingly, learned counsel for the respondents made an oral application for the striking out of the appeal. The lower court granted the application and struck out the appeal. On the 26th day of July, 1994, learned counsel for the appellant moved the lower court on an application for relisting the struck out appeal. The lower court refused to grant an order for relisting the appeal. Appellant then appealed to this court.
Now relisting of a struck out matter by a court is, as rightly observed by learned counsel for the appellant, purely discretionary. I think it is in my view, akin to asking the court for an extension of time to file an appeal or, pursue any other legal right whose stipulated time has expired. In such a situation, and depending on the law and procedure applicable, the applicant has to satisfy the court that he honestly deserves an indulgence from the court.
After having considered the facts deposed to in the affidavit in support of the motion to relist and the counter-affidavit filed by the respondents, the learned trial Judge made the following observation;
“However it is clear the ruling of this court of 11th March, 1994 was based on the absence of the applicants or several occasion (sic) before that date. The applicant have (sic) not justified earlier occasion of the absence.
The learned counsel for the applicant only states that he can not say the reasons being new in the case. I do feel that even the reason advanced for their absence on that day is not acceptable. The learned counsel should have written to the court (sic) informing the court of his inability to appear on that date. The applicant themselves court have some to count (sic) and inform the court that their counsel would not be able to come. Had that been done the court might have considered adjourning the matter to another date. The respondent could highly be prejudiced if an appeal matter filed in 1984 after been (sic) struck out amount ten years later (sic) for want of presentation is be relisted (sic) simply because the applicant says he is now ready to prosecute the matter on a counsel (sic) says I have justice (sic) been briefed not ready to prosecute the appeal.” These observation and holding of the learned trial Judge notwithstanding, it is my view that the appellant should have been afforded another opportunity to prosecute his appeal on its merit, moreso when it was the lower court that jeopardized the progress of the appeal to its finality. Paragraphs 3(i) – (vi) in my view, have furnished valid reasons why learned counsel for the applicant was late in going to the court The wish of the applicant to prosecute the appeal timeously has also been expressed. The paragraphs stale as follows:-
“3. That at about 4 pm on the 17th of March, 1994, Mr. Abdurahaman Adeyi told me and I verily believed him; the following facts:
(i) That on the 17th of March, 1994 he was to appear in the above named case before the Honourahle court.
(ii) That on that same day, he had another case going on in the High Court of Justice Bimin Kebbi.
(iii) That due to this conflict, he had to make arrangements to get another counsel, to hold his brief in the Bimin Kebbi case.
(iv) That by the time he concluded the arrangements and got to the Court the time was about 9.20 am and the case in question had been struck out for absence of appellant
(v) That his coming late to court was not intended to be a sign of disrespect to the court.
(vi) That the appellant/applicant is desirous of having the case re-listed as he is ready to prosecute same.”
In view of the above, I am inclined to allow this appeal. Accordingly, the appeal is hereby allowed. The ruling of the lower court refusing to relist appeal no SS/58A/84 delivered on 17/3/94 is hereby set aside. In its place the appeal is hereby relisted and remitted to the lower court for hearing on the merit. I make no order as to costs.
Other Citations: (1995)LCN/0302(CA)
