Chief Nicholas Banna Vs Telepower Nigeria Ltd (2006)

LAWGLOBAL HUB Lead Judgment Report

OGUNTADE, J.S.C.

This appeal raises the issue of the extent of an appellate court to override the exercise of discretion by a trial court. It is not necessary for the purpose of the appeal to discuss or consider the nature of the claim brought before the trial court. It suffices to say that the respondent was the plaintiff at the Port-Harcourt High Court of Rivers State. It had brought the suit against the appellant as the defendant.

The suit was filed on 13/8/93. On the same day, the plaintiff filed an application for an interlocutory injunction in respect of some properties situate at Rumuodara, Obio in Obio/ Akpor Local Government. On 5-5-94, after a period of nine months since the suit was filed, the plaintiff applied for and was granted extension of time to file its statement of claim. It would appear that the case was subsequently adjourned for hearing. The matter was adjourned four times in succession for hearing and on each of those occasions, the plaintiff and its counsel were not in court. The case was finally adjourned the fifth time for hearing to 9-3-95. As it has previously done, the plaintiff again was not in court. Neither was its counsel. The trial Judge, Abel Tariah J. in reaction dismissed plaintiff’s suit.

On 22-9-95, about six months after its suit was dismissed, the plaintiff brought an application to relist the suit for hearing and to set aside the order made on 9-3-95 dismissing the suit. Parties filed affidavit evidence in support of and against the application to relist and set aside the order dismissing the suit. On 4-12-95, the trial Judge, in his ruling dismissed the application on the ground inter alia that the excuse offered for the absence of plaintiff and its counsel on 9-3-95 was unsatisfactory.

The plaintiff was dissatisfied. It brought an appeal before the Court of Appeal, Port Harcourt Division (i.e. the court below). On 11/07/2001, the court below allowed the appeal. The ruling of the trial court was set aside and the suit remitted to the High Court for fresh hearing. The defendant was dissatisfied with the judgment of the court below. He has brought this appeal against it. In the appellant’s brief filed on behalf of the defendant, the issues for determination in the appeal were identified as these:

“1. Whether the lower court was right when it held that the trial court could have merely struck out the respondent’s suit instead of dismissing it.

2. Whether the lower court was right in allowing the respondent’s appeal and setting aside the judgment of the trial court.”

The plaintiff, in its respondent’s brief, raised an issue for determination. But the said issue is amply covered by the defendant’s two issues above. I shall, in this judgment, be guided by the defendant’s issues.

As I observed earlier in this judgment, the trial court had taken the position that the explanation offered by the plaintiff as to its absence and that of its counsel from court on 9-3-95 was unsatisfactory. The question is- what are the said reasons In paragraphs 6 – 16 of the affidavit in support of the application, it was deposed thus:

“6. That the writ of summons in suit No. PHC/567/93 was taken out about August 1993 and the plaintiff/applicant filed its statement of claim on 5-5-94;

7. That before the present suit, the plaintiff had in 1992 taken out a writ of summons with No. PHC/554/92 against the same respondent which suit is pending in High Court No.1 before Hon. Justice V. M. Okor;
8. That both suits with numbers PHC/567/93 and PHC/ 554/92 are over the estate at Rumuodara owned by the respondent;
9. That to accelerate the hearing of both suits, the plaintiff engaged the services of Chief A. B. C. Iketuonye, SAN in both suits;
10. That the entry of the Senior Advocate in the matter made K. I. Oleh Esq. hand over the case files to the Senior Advocate;
11. That this in turn created some lapses as the Senior Advocate missed the adjourned date for PHC/567/93;
12. That the Senior Advocate informs us that he did not appreciate that he was expected to handle PHC/567/93 as he thought it was only PHC/554/92 that was given to him;
13. That PHC/554/92 is part heard and is further adjourned to 17-10-95 for continuation;
14. That it was when K. I. Oleh Esq., enquired from a counsel working with L. M. Alozie, Esq. the respondent’s counsel – who informed K. I. Oleh Esq., who in turn informed me and I believe him that the present suit with No. PHC/567/93 was dismissed on 93 – 95 as neither the plaintiff nor its counsel was in court;
15. That the absence of both the plaintiff and its counsel was as a result of mix- up on dates and we shall make sure it does not happen again;
16. That hearing had not commenced in the suit before it was dismissed.”

The defendant in opposing the application filed a counter affidavit paragraphs 4 – 10 of which read:

“4. That judgment of this court which the applicant seeks to set aside and relist for hearing was dismissed by the order of this Honourable Court on the 9th day of March 1995 because the court was satisfied that from the facts and records before it, the plaintiff/applicant had abandoned the case for quite a long time.

5. That since the commencement of this action, the plaintiff was never in court except on 30/3/94 when the ruling on the application brought for injunction was delivered, and in all we had 10 (ten) court appearances namely on: 1/12/93, 8/12/93, 28/2/94, 30/3/94, 7/6/94, 29/9/94, 7/11/94, 19/12/94, 2/2/95 and 9/3/95.
6. That the applicant has even refused to pay most of the costs awarded against it in course of the proceedings. On 7/6/94 when one Mr. Linus Nwaigbo represented the applicant in court for a motion for extension of time and on 9/3/95 when this suit was dismissed, costs were awarded against the applicant but these costs have remained unpaid till date.
7. That since 1/12/93 when the matter came for motion on the application of the plaintiff/applicant the suit has always remained on the cause list and even on 8/11/94 and 10/11/94 the suit was on the cause list for definite hearing but plaintiff/applicant and his counsel were absent from court.
8. That thereafter the matter was again listed for hearing on 7/11/94, 19/12/94, 2/2/95 and 9/3/95 without the plaintiff/applicant or its counsel appearing in court.
9. That the matter was then dismissed on 9/3/95 because the plaintiff/applicant and its counsel had continued to abandon the matter.
10. That the plaintiff/applicant has no good case of action against me but only want this matter to drag on just to punish me.”

The trial Judge in refusing the application and dismissing the application said at pp. 80 – 82 of the record:

“When on 7/6/94 this court granted leave extending time for plaintiff/applicant to file his statement of claim, one L. A. Nwaigbo, Esq., held brief to K. I. Oleh (sic) for plaintiff/applicant and he filed the statement of claim, the defendant filed their statement of defence on 21/6/94. The matter was adjourned to 29/9/94 for mention.

Thereafter for hearing on 6/11/94, 10/11/94, 19/ 12/94, 2/2/95, 9/3/95. In all these adjournments granted was by the court on its own without a letter from plaintiff/applicant (sic) or its counsel against the defendant/respondent’s counsel, objection all in the interest of justice and to ensure that the matter is determined on its merit, but justice they say is a two edged sword the scale of justice must not tilt towards one side only.