Benneth N. Okeke & Ors V. Lawrence Chukwu (2002)

LawGlobal-Hub Lead Judgment Report

ABOYI JOHN IKONGBEH, J.C.A. 

On 12/09/97 the respondent herein, as plaintiff, applied to the Registrar of the Imo State High Court, sitting at Orlu for a writ of summons to issue against the appellants herein, as defendants. He did not accompany his application for the writ with a statement of claim but only with particulars of claim to be endorsed on the writ. By Order 25, rule 1 of the Imo State High Court (Civil Procedure) Rules, 1988 –

“1. Unless the court gives leave to the contrary, or a statement of claim is endorsed on the writ, the plaintiff shall serve a statement of claim on the defendant and shall do so either when the writ, or notice of the writ, is served on the defendant or at any time after service of the writ or notice but before the expiration of 30 days after the defendant enters an appearance.
Provided that in land cases, the plaintiff shall serve his statement of claim on the defendant not later than 60 days after the defendant enters an appearance, unless the court gives leave to the contrary.” (Italics mine)

The respondent’s claim before the trial court did not involve land. It was for damages for libel. Therefore, the proviso to the rule just set out did not apply. The plaintiff/respondent, therefore, had only 30 days, after the defendants/appellants entered appearance, to file his statement of claim.

It is common ground, and the record shows, that the defendants/appellants entered appearance on 23/09/97. The plaintiff/respondent should, therefore, have filed the statement of claim on or before 23/10/97. He however did not file it until 28/10/97. He was, therefore, out of time by 5 days. It is common ground also that he did not seek and obtain leave of Court of before filing it.

This last fact prompted the defendants to cause a motion on notice to be filed, seeking orders of court –
“1. Striking out the plaintiff’s statement of claim…for want of compliance with the rules of court as the same was filed and served out of time without leave of court.
2. Striking out or dismissing Suit No. HOR/112/97 Lawrence Chukwu v. Benneth N. Okeke & 2 Ors for want of diligent prosecution.”

The record shows that the motion was fixed for hearing on 16/12/97. Mr. K. V. A. Okwandu, for the defendants/appellants, complained, and Mr. S. N. Chukwuma for the plaintiff/respondent, conceded before us that it was never in fact heard. Neither counsel was heard on it. After recording counsel appearances the learned trial judge just wrote and read a ruling, dismissing the motion and, suo motu, letting the statement of claim in. The record of proceedings at page 12 bears this out. Because of the relevance of the proceedings of that day to the arguments in parties’ briefs and the oral submissions of counsel before us, and because it is short, I think I should set it out in full:

“Parties are present in court
K. V. A. Okwandu for the defendants/applicants
S. N. Chukwuma for plaintiff/respondent.
Court: At a look of the decision of the Supreme Court in U.B.A. Ltd & 2 Ors v. Dike Nwosu (1978) 11 – 12 S.C. page 1 at 9 and 10 where the Court held that the statement of claim having been filed and served, the Court could suo motu without any application from the defendant (sic) accept the filing and service of the statement of claim out of time as regular in order to mitigate cost and waste of time, this court legitimizes the statement of defence (sic) filed by the respondents and served on the applicant.
The motion is dismissed.” (Italics mine for highlight).

Aggrieved by this ruling, the defendants/appellants have come before this court on two grounds of appeal, which, without their particulars, read:

“1. The learned trial judge erred in law and failed to exercise his discretion judicially by merely relying on the decision of U.B.A. Ltd. & 2 Ors v. Dike Nwora (1978) 11 – 12 S. C. 1 at 9 – 10 and suo motu regularized the respondent’s statement of claim already filed by the respondent and served out of time on the appellants without leave of court and without any application from the respondent or his counsel for extension of time.
2. The trial judge exercised his discretion wrongly by dismissing defendants/appellants’ application for striking out of plaintiffs/respondent’s statement of claim…filed… and served…out of time without leave of Court and dismissal of Suit No. HOR/112/97:..for want of diligent prosecution without hearing defendants/appellants or their counsel on 16th day of December 1997 when the said application came up for hearing in court thereby occasioned a miscarriage of justice.” (Italics mine for highlight)

Out of these two grounds, Mr. Okwandu, who prepared the appellants’ brief, formulated the following two issues for determination:
“ISSUE ONE
Whether the manner the trial judge exercised his discretion in the circumstances of the case in hand was based on correct principles.
GROUND 1
ISSUE TWO
Whether the refusal by the trial judge to hear the appellants before he exercised his discretion and dismissed appellants’ motion on notice on 16th December 1997 when it came up for hearing occasioned a miscarriage of justice.
GROUND 2”

On behalf of the respondent Mr. S. N. Chukwuma, who prepared his brief of argument formulated the following two:
“1. Whether the learned trial judge exercised his discretion judiciously by regularizing suo motu the statement of claim of the plaintiff/respondent, filed and served out of time?
2. Whether the said exercise of discretion suo motu by the learned trial judge occasioned a miscarriage of justice.”
It can be seen that the two sets of issues correspond.

Arguing the appeal on the first issue Mr. Okwandu first drew attention to the fact that even as at 16/12/97, when the defendants’ motion for striking out was fixed for hearing, the plaintiff had not applied for order of Court regularizing his position regarding the filing of his statement of claim. While conceding that it was within the discretion of the judge to regularise the plaintiff’s position, counsel submitted that such discretion could, in the circumstances of this case, only be exercised if and when the plaintiff applied for it. Counsel cited in support of this submission Orders 8, rule 2(1) and 22, rule 3(1) and (2) of the State’s High Court Rules and the Supreme Court decision in NIPOL Ltd. v. Bioku Investments (1992) 4 S.C.N.J. 58, @ 71, per Akpata, J.S.C. This case is also reported in (1992) 3 NWLR (Pt. 232) 727.

Counsel compared this decision with that in Nwora’s case, supra, relied on by the learned trial judge, and submitted that there is no conflict between the two and that it, rather than the decision in Nwora’s case, is the applicable authority in the instant case. This, in counsel’s further submission, is because the decision in Nwora’s case was based on Order 18, rule 6 of the Lagos State High Court Rules, which has no equivalent in the Imo State High Court Rules. for these reasons it was counsel’s contention that “the correct principle of law is that the trial judge cannot suo motu regularise respondent’s statement of claim filed and served out of time without leave of court unless on the application of the respondent or his counsel.” He relied on Orders 22, rule 3(1) and (2) and 25, rule 1 of the Imo State High Court Rules. It was counsel’s final submission that the exercise of this discretion by the learned trial judge, in the circumstances of this case, was done “hastily and in an arbitrary or illegal manner since no reason was or has been adduced by the respondent for non-compliance with Order 25, rule 1 of the Imo State High Rules.”

Mr. I. C. Dimiri, who argued the appeal on behalf of the appellants at the oral hearing before us, stressed these points in amplification of the brief.

Mr. Chukwuma, who prepared the respondent’s brief and who also represented him at the oral hearing, did not directly  address the point whether or not an application by this client for order of court regularizing his position was sine qua non to the exercise by they judge of his discretion in that regard. The tenor of his argument, however, tended to suggest that such application by his client was not necessary. What mattered, and what the court should have done, and did, in counsel’s view, was “to consider the status of the statement of claim filed out of time and effect of the said statement of claim on the application for striking out or dismissal of the suit.” It was counsel’s further view that once the statement of claim had been filed, albeit out of time and without leave, and has not been afflicted by any fatal defect, it remained valid until set aside. In the circumstance, the court could exercise its discretion suo motu to regularise it in order to minimize costs. Counsel placed heavy reliance on Nwora’s case. In his view, the NIPOL case dealt with a totally different situation and is distinguishable, the distinction being that Nwora’s case dealt with an application, filed out of time, for an order setting aside an arbitration award, whereas the instant case relates to filing of statement of claim. Counsel relied also on order 27, rule 1 of the Imo State High Court Rules. According to counsel.

“The said Order 27 rule 1 gives the court the discretion, not to dismiss the action, where no statement of claim has been filed but instead to make any other order on such terms as the court or judge shall think just. In this case, a statement of claim had been filed, though irregularly, it is still valid until set aside. Since there was a statement of claim before the court that has not been set aside it was open to the court to exercise its discretion and make any other order upon such terms as it thought just.”

Order 27, rule 1, which, in counsel’s view, gives the court no discretion to dismiss the action, but merely “to make any other order” reads:

“27. If the plaintiff, being bound by these rules or an order of court or a judge in chambers to file a statement of claim, does not file it within the time allowed for that purpose, the defendant may at the expiration of that time apply to the court or a judge in Chambers to dismiss the action with costs for want of prosecution and on the learning of such an application the court or judge may, if no statement of claim shall have been filed, order the action to be dismissed accordingly, or may make such other order on such terms as the court or judge shall think just.” (Italics mine).

Now, the crucial question is this: In what sense did the Supreme Court use the term “suo motu” in Nwora’s case? Did the court mean that a judge could, in all circumstances, on his own, and without prompting from anybody, regularise an irregularly field statement of claim? More specifically, is the statement that the trial judge in Nwora’s case could act, and should have acted suo motu to regularise the statement of claim applicable in the case now on appeal before us to justify the action of the learned trial judge complained of? Or should he have waited until the defendant moved him and placed some material before him before he could act to save the statement of claim?

As we saw earlier on, the learned trial judge in the case on appeal before us expressly ruled that “the court could suo motu without any application from the defendant accept the filing and service of the statement out of time.” (Obviously the judge meant “the plaintiff”, not “the defendant”, since he was dealing with an irregularly filed statement of claim). Also as we have seen, Mr. Chukwuma, for the respondent, implied by his arguments that the judge needed no prompting. Counsel’s view is clearly that once the statement of claim is filed, even out of time, the matter ends there and the judge can without further ado make use of it. Mr. Okwandu, for the appellant, as we also saw, took the opposite view. According to him, the judge should have waited until he was prompted, and Nwora’s case was no authority for him to act without prompting.

Having myself read the authorities, I have little or no difficulty in voting for the appellants. They have stated the correct position of the law. Nothing, with all due respect to the learned trial judge and the respondent’s counsel, could be farther from the true position of the law than that Nwora’s case has effected what clearly would amount to clothing the judge with more authority than the nature of his office allows and the constitution has bestowed on him. One of the attributes of judicial powers is the want of initiative in the possessor of them. No matter how flagrant the violation of a person’s rights, unless that person brings the matter up himself, the court or judge, though possessed of the powers to give him reliefs, cannot come to his aid. A judge who offers aid to aggrieved parties unasked is, with respect, a meddlesome one. And, as Professor Nwabueze warns, “A meddlesome judiciary poses the danger of abuse… and is calculated to undermine, if not destroy, the court’s popular image of an impartial, disinterested arbiter between contestants in a dispute.” (See The Presidential Constitution of Nigeria (1982) p. 314). As I will endeavour to show, the Supreme Court has been very much alive to the danger of clothing the Courts with power that would undermine their image of impartiality and was careful, even in Nwora’s case, to highlight the danger.

Now, in what circumstances did the Supreme Court in that case employ the term “suo motu” in relation to the order that the learned trial judge could make? In that case the plaintiff filed his statement of claim but the defendants did not. After the period allowed for filing the statement of defence had expired the plaintiff moved the court for judgment. The plaintiff’s motion gingered the defendants, who rushed and filed their statement of defence, needless to say, out of time. The learned trial Chief Judge heard full arguments on the plaintiffs motion, after which he ruled that the fact and circumstances revealed to him in the course of hearing the motion for judgment did not warrant denying the defendants the opportunity of defending themselves against the plaintiff’s claim and that they ought to be allowed to file their statement of defence. Instead, however, of there and then extending the time for the defendants to the date of his ruling and then ordering the statement already filed to be deemed as having been duly filed on that date, he gave the defendants ten days within which to file an application to seek extension of time to file a fresh statement of defence. It was this patently unnecessary waste of time and money entailed in the ordering of an application by the trial Chief Judge that the Supreme Court took exception to. The further proceedings ordered by the Chief Judge were not calculated to achieve anything beyond what was already on the ground to move the case forward but was sure to involve avoidable waste of time and money. The fact that the defendants took objection to being made to incur further expenses in applying for extension of time to file another statement of defence was clear evidence that they did not intend to file anything different from what they had already file. Their contention, which the Supreme endorsed, was that since the learned trial Chief judge had determined that the defendant ought to be allowed to file a statement of defence and one had already been filed, albeit irregularly, he should have used his inherent powers suo motu to make the consequential order, flowing naturally from that determination, deeming the statement already filed as having been properly filed. A consequential order is one that becomes necessary for the purpose of effectuating the determination by the court. By its very nature it is clearly within the inherent powers of the court to make, even where it has not been specifically asked for. In deed it is rarely necessary to ask for such an order. Every court of justice of necessity possesses the inherent power to make it. Exercising that power without a specific prayer for it in no way constitutes the court into a meddlesome one.

It is clear to me that it was in this narrow sense that the Supreme Court used the terms “suo motu” when it said that the learned trial Chief judge should have ordered the statement of defence already filed as having been properly filed from the date of his ruling. With all due respect to the learned trial judge in the present case, to give the term as wide an interpretation as he has done is to do mischief in the sense that I have explained. It would have the effect of empowering the judge to have the diligent litigant at the mercy of the lazy or mischievous one and of robbing some of the essential rules of procedure of all legal meaning and effect. The Supreme Court criticized the learned trial Chief Judge in Nwora’s case for being too legalistic in his overly narrow interpretation of the rules. What, with respect, the learned judge did in the present case went to the other extreme. He said, in effect, that the rules as to filing of documents should not be given any meaning at all. A litigant could walk into the registry of the Court any time, long after the expiry of the time limited for filing a document, and file it. The mere act of filing it would suffice and the other party could have nothing to say, even if he felt strongly about it. The judge could just accept and act on the document, supposedly in the interest of justice.

This, with respect, seems to me to overlook justice to the party not in default, especially, as in the instant case, where that party has taken prompt objection to the irregularly filed document being used by the court. This is the complaint of the appellant under the second issue formulated. I shall deal with that in ore detail in due time.

Happily, the Supreme Court has said, time and again, that the view taken by the learned trial judge in the present case does not represent the correct view of the law. It has made it clear that the ordinary sanctions for breach of procedural rules still apply and that the matter is not left entirely to the discretion of the judge. This is discernable even in Nwora’s case, relied on so heavily by the learned judge and Mr. Chukwuma. After considering the provisions of Order 2, rules 1(1) and (2) and 2(1) of the English Rules, which are identical with Order 2, rules 1(1) and (2) and 2(1) of the Imo State Rules, and which provide against nullifying documents and proceedings for non-compliance with the rules, Fatayi-Williams, J.S.C. (as he then was), observed at p. 7 that –
“When read together, the two rules quoted above show that a document, such as the statement of defence in the present case, if filed out of time is a voidable document. It remains a valid document until it is set aside. That being the case, it is always open to the party at whose option it may be set aside to waive his right to do so. (Italics mine).
Clearly implicit in the italicised words is the fact that the Court recognized that the party at whose option the document may be set aside is entitled to exercise his option in that direction and have the offending document set aside for non-compliance as to time of filing. This shows clearly that the fact that the document has been placed before the Judge does not give him absolute discretion to use it without further ado. He cannot deny the party with the option the opportunity of exercising it. More to the point are the following cases:

1. The NIPOL case.
The appellant in that case was required by the relevant statutory provision to apply by motion within a specified period of time to have an arbitral award made against it set aside. It filed its motion out of time. In opposition to the motion, the respondent relied, inter alia, on the fact of the late filing of the motion. The trial court overruled the respondent’s objection on this ground, holding that the court had power and uninhibited discretion to extend time and of its own motion admit and use papers. The Court of Appeal reversed the trial court on this point, holding that the proceedings based on the motion filed out of time were a nullity on account of the late filing. Affirming this position the Supreme Court, per Akpata, J.S.C., said at pp. 745 – 747 (N.W.L.R.).

“The second issue is whether the filing of the application outside the period was a mere irregularity which could not render the proceedings a nullity. Learned counsel for the appellant made the point that the requirement for filing within 21 days is a provision of the English Supreme Court Rules. He then drew attention to Order 2 Rule 1(1) of the Supreme Court Rules which states:

“1. Where, in beginning or purporting to begin any proceedings or at any stage in the course of or in connection with any proceedings, there has, by reason of anything done or left undone, been a failure to comply with the requirements of these rules, whether in respect of time, place, manner, form or content or in any other respect, the failure shall be treated as an irregularity and shall not nullify the proceedings, any step taken in the proceedings, or any document, judgment or order therein.’

Learned counsel submitted that if the Court of Appeal had adverted to Order 2 Rule 1(1) it would have dawned on it that failure to file the application within 21 days was a mere irregularity which would not by itself render the judgment of the trial court a nullity and that the Court of Appeal would have suo motu extended the time for filing.

I find the criticism of the appellant’s counsel directed against the Court of Appeal for not extending time suo motu baseless and unjustifiable. It is not supported by any Rule of Court, Section 16 of the Court of Appeal Act which counsel relied on is not a provision which empowers the Court of Appeal to play the role of Father Christmas in circumstances such as this. As stated by this Court per Iriekefe, J.S.C., (as then was) in the case of National Bank Nig. Ltd. v. The Are Brothers Nig. Ltd. (1977) 6 S.C. 97 @ page 107 ‘although the Court has an inherent jurisdiction to extend time in any given case with a view to the avoidance of injustice to the parties, it should not do so suo motu, but upon the application of the party in default.’ Where a party or his counsel finds that his cause or matter is incompetent because it was filed out of time, it is his responsibility to apply for extension of time to put things right. He should not blame the Court for his woes arising from his failure to do the right thing.

The real question is whether the Court of Appeal was right in declaring the proceedings in the High Court a nullity regardless of the provision of Order 2 Rule 1(1). Generally a court is not competent to entertain a case if any condition precedent to the exercise of jurisdiction is not fulfilled. Therefore where an application should be brought within a time period and it is filed out of time the application would be incompetent unless is extended by the Court. In Agnes Ejiofodomi v. H. C. Okonkwo (1982) 11 S.C. 74 @ page 115 this Court per Aniagolu, J.S.C., made the point that a challenge to the jurisdiction of the court could be based on, among others that the period allowed the court to embark upon the hearing of the case has expired.’
In the instant case the respondent promptly raised the issue of the incompetence of the trial court to entertain the application on the ground that it was not filed within time. In my view, if the time for filing the application had been only 21 days and the trial court erroneously held that it was six weeks, that is, 42 days, the proceedings would have been most irregular and would of necessity be set aside, particularly as the applicant would not apply for extension of time.” (Italics mine).

In his own contribution Olatawura, J.S.C. said at pp.752 – 753:
“The next issue is whether the failure to file within the time stipulated was a mere irregularity which ought not to affect the validity of the entire proceedings. The appellant has submitted that the Court on its own could have extended the time. This submission has no basis in law. It is true the respondent’s brief challenges the jurisdiction of the High Court or in other words its competence to hear the case. But the basis for the challenge base on jurisdiction is predicated on the time limit and that if this issue succeeds consequently the High Court lacked jurisdiction. Having granted the appellant leave to argue the point or issue not raised in the lower court, I will say the leave so granted is to ensure that justice is done. Leave is not granted as a matter of course, care must be taken so that the case of the other part is not prejudiced.” (Italics mine).

2. Williams & Ors. v. Hope Rising Voluntary Funds Society (1982) N.S.C.C. Vol. 13) 36.
Judgment was entered against the respondents in their absence. They applied out of time, for, inter alia, an order setting aside the judgment. The trial court granted this prayer among others. The appellants’ appeal to the Federal Court of Appeal was dismissed. Before the Supreme Court the appellants contended that the trial judge had no basis for the exercise of this discretion in granting the respondents’ application to set the judgment aside, as it had been filed out of time and no explanation had been given for the tardiness in filing it. The Supreme Court, per Idigbe, J.S.C. endorsed this contention pointing out at pp.39 – 40 that –
“When a court is called upon to make an order for extension of time within which to do certain things. (i.e. extension of the time prescribed by the Rules of Court for taking certain procedural steps), the court ought always to bear in mind that Rules of court must prima facie be obeyed and that it, therefore, follows that in order to justify the exercise of the court’s discretion in extending the time within which a procedural step has to be taken there must be some material upon which to base the exercise of that discretion, any exercise of the courts discretion where no material for such exercise has been placed before the court would certainly give a party in breach of the Rules of court uninhibited right to extension of time and the provisions as to time within which to take procedural steps set out in the Rules of Court would, indeed, in such circumstances, have no legal content. Non-compliance with Rules of Court do not prima facie invalidate proceedings unless reasons for such non-compliance are not advanced to the court, and, in addition, the party in breach fails to put before the court sufficient material upon which to exercise its discretion to waive or overlook the omission. In the words of Edmund Davies, L. J., (as he then was) which I gratefully adopt…’the rules (i.e. Rules of Court) are there to be observed, and if there is non-compliance (other than a minimal kind), that is something which has to be explained away. Prima facie if no excuse is offered, no indulgence should be granted’. (See Revici v. Prentice Hall Incorporated and Ors (1969) 1 All E. R. 722 at 774.)”

3. Ogbu & Ors. v. Urum & Ors (1981) 4 S.C. 1
At page 10 of the Report Obaseki, J.S.C., who delivered the judgment of the Supreme Court, quoted with approval the observation of Lord Guest in Ratnam’s Cumarasamy (1964) 3 All E. R. 933, @ 935 that –
“…it must be emphasized and realized that the rules of court must, prima facie, be obeyed and, in order to justify a court in extending the time during which some step or procedure requires to be taken, there must be some material on which the court can exercise its discretion. If the law were otherwise, a party in breach would have unqualified right to an extension of time which would defeat the purpose of the rules which is to provide a time table for the conduct of litigation”

4. National Bank of Nig. Ltd. v. Are Brothers (Nig.) Ltd. (1977) 6 S.C. 97
The appellant bank had petitioned for the winding-up of the respondent company. The relevant statute required the respondent, if he needed to file any affidavit in opposition to the petition, to do so within seven days. It filed two affidavits in opposition, but both were filed out of time. At the hearing of the petition the appellant’s counsel drew attention to this fact and urged the trial court to disregard the affidavits so filed out of time. The respondent made no effort to obtain extension of time to regularise them. Instead it tried to explain away the reason for the delay in filing them. The trial judge accepted the explanation and took account of them in deciding the petition before him. The appellant, on appeal to the Supreme Court, complained about this. Irikefe, J.S.C., as he then was, dealt with the respondent’s counsel’s submissions in support of the judge’s actions complained of thus at pp.105 – 107.

“Is there any merit in these submissions?

Rule 36(1) of the Companies (Winding-up) Rules, 1949 (S.1. 1949 No.330) relied upon by learned counsel for the appellants in support of his plea for the exclusion of the affidavits reads:
‘(1) Affidavits in opposition to a petition shall be filed within seven days of the date on which the affidavit verifying the petition is filed, and notice of the filing of every affidavit in opposition to such a petition shall be given to the petitioner or his solicitor on the day on which the affidavit is filed.”

The facts here show that… the two affidavits in opposition were filed… well over thirty days from the collapse of negotiations as deposed to by the respondents.

The learned trial judge dealt with the non-compliance with the above cited rule in these words:
‘…Counsel for the petitioners attacked these affidavits in the course of his address and stated that they were not filed within the period of seven days from the date of the affidavit verifying the petition, as provided by Rule 36(1) of the Companies (Winding-up) Rules, 1949. To this counsel for the respondents replied and stated that this was due to the time taken up by negotiations to settle the matter out of court. This reply, I find, was borne out by references in the first affidavit to meetings held with a view to settlement. This had not been denied in a counter-affidavit in reply by the petitioners. I am therefore satisfied that the delay in filing the affidavit in opposition to the petition was genuinely due to the protracted negotiations for the purpose of settlement. I therefore, in the interest of justice, allow the affidavits even though filed out of time.’

The record in the case in hand shows that before the ruling the subject of this appeal, no attempt was made by the respondents to move the court for extension of time for compliance with the provisions of Rule 36(1) (supra).

Again, although no such extension was sought, the learned trial judge, nevertheless, purported to act on the conflicting affidavits before him, by granting the respondents and extension, on the argument that, because the appellants had failed to lodge a counter-affidavit to the explanation for the delay given by the respondents, such default by the appellants, rendered their (respondents) explanation acceptable in the circumstances.

In as much as the reception of the respondents’ affidavits constituted the main basic for the ruling now the subject of this appeal, we think that the learned trial judge was in error in dealing with this matter in the manner he had done.

Thus, although the Court has an inherent jurisdiction to extend time in any given case with a view to the avoidance of injustice to the parties, it should not do so suo motu, but upon the application of the party in default. See Keymer v. Reddy (1912) 1 K. B. p. 215 and Schafer v. Blyth (1920) 3 K. B. p. 14.” (Italics mine)

The analysis that I have made of Nwora’s case and the other cases leads me to agree with the appellants’ counsel that there is no conflict at all between it and them. In my view, they are mutually complimentary, merely covering different grounds. While the general law, as represented by the other cases, is that the judge has no power to extend time without an application from the party who needs the extension of time, it is also the law that where the judge has made a determination, after a hearing, that a party ought to be allowed to file his papers he may act suo motu to extend time to regularise the papers already filed. The judge would thereby be merely taking cognizance of what had naturally flowed from his determination. I agree with the appellants also that the ground covered by their position is different from that covered by the appellant in Nwora’s case. I agree with them, therefore, that what the Supreme Court said in that case is not applicable here.

One point that emerged from the cases, including Nwora’s case, is that the materials upon which the judge could base his determination that would necessitate the consequential order being made suo motu by the judge may be supplied by either party at the hearing. But first there must be a hearing of some sort. In Nwora’s case the materials were supplied by the plaintiff while moving the court for judgment. Usually, however, it is the party who needs the extension of time that places the material before the court. The important thing is that there must be some form of open investigation, brought about by one of the parties, not cloistered justice by the judge of the type about which the appellant before us has complained.

That brings me to the second issue. As we noted at the beginning of the judgment, the learned trial judge dismissed the appellants’ motion to strike out the irregularly filed statement of claim when it had not been argued at all. Counsel on their behalf complained that this was a serious infraction of Section 33(1) of the 1979 Constitution (applicable at the time). I agree. No judge has the right or power to decide on an issue that has not been canvassed before him. Even if the issue is patently without merit the judge must still allow, at least the party who has raised it, to address him. The original sin required little or no evidence to establish. It was obvious, especially to the Omniscient and Omnipresent creator, that the man, Adam, had eaten of the forbidden fruit. Yet he still gave a hearing. He knew that from the feeble mouth of man would fall forth the equally feeble answer, “The woman whom thou gavest to be with me, she gave me of the tree, and I did eat.” Yet He asked him anyway. And He did not condemn the woman, Eve, outright, but asked her, knowing she would say, “The serpent beguiled me, and I did eat.” No doubt the framers of constitution intended to follow the Divine example: Give a hearing in all circumstances before you condemn. Moreover as I noted earlier on, there are certain actions that are inimical to the posture of a judge as an impartial and fair arbiter. No matter how knowledgeable in the law he may be, he should maintain his position and let the parties do their case. Even if he is aware of higher authority that clearly renders a party’s case untenable he should refrain from using it to deal the case out of court brevi manu, as the learned judge in this case did. What he should have done was to let the appellant’s counsel move the motion to dismiss and then confront him with Nwora’s case and ask for his reaction. What is more, by dismissing the motion without hearing it on the basis of an authority, which with due respect, he did not appear to fully appreciate, he rendered his decision totally unsupportable.

For all the reasons I have given, I must, and do hereby, resolve both issues in favour of the appellants. Consequently I allow their appeals. I set aside the ruling of S. N. Nwachukwu, J., wherein he dismissed the appellants’ motion to strike out the respondent’s statement of claim.

The appellants have asked us to substitute the order of the learned trial judge just set aside with “the grant of the appellants’ application… for striking out the respondent’s statement of claim.”

With all due respect, we cannot do that. The appellants are asking us to do the same thing that they have successfully persuaded us to hold that the learned trial judge was guilty of.

When you either dismiss or grant a motion you imply thereby that you have followed the proper procedure and investigated the merit or otherwise of it. I have just held that since the learned trial judge had not heard the appellants’ motion on the merit he was not competent to dismiss or grant it. If we now change the dismissal of the notice to the grant of it, then we would be committing the same illegality. For these reasons I refuse to adopt the consequential order suggested by the appellants.

The order I make is that the matter be remitted to the Imo State High Court, Orlu, for the motion of the appellants to be taken. What happens after that will depend on the outcome of the hearing of the motion.

The respondent is to pay costs of N5,000.00 to the appellants.

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Other Citations: (2002)LCN/1293(CA)