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.

While it is true that a party may be represented by counsel but a party who takes that option does so at his own risk. It does not dispense with the duty on a delight (sic) litigant who must find out from his counsel the progress of his case. For a party who had not heard about his case from his counsel for almost one year and did not enquire is nothing but an indolent litigant not to be aided more so when the same applicant had been coming to Port Harcourt for the sister (sic) case with counsel and had been pursuing that case diligently.

At the time K. I. Oleh esquire filed the first application to relist in March, 1995 did he collect the file he claimed he gave to the learned SAN after in 29/9/94 How did he get the file to file the application because on 2/5/95 while the learned SAN was still insisting that he was not briefed nor was he paid for this case.

It has continued to bother me why plaintiff/applicant and K. I. Oleh Esq, should continue to input this very serious allegation of negligence and improper conduct of a counsel to a respected SAN as Chief A. B. Iketuonye. In the further affidavit in support of the plaintiff/applicant application he deposed to the effect in paragraphs 6, 7 that he handed over this case file for this case to the learned SAN as in paragraph 8 he deposed that he assumed that the SAN had been attending court. This would be nothing short of irresponsibility on the part of any counsel to accept a case file on a matter in September 1994 and refuse to attend court and insist 9 months after i.e. 2/5/95 that he was not briefed nor paid for that case. And he did not return the file this is not like the learned SAN and cannot be. I hope applicant realises the implication of without (sic) is being inputted to the learned SAN. In my view the plaintiff/applicant had tried to give a reason for his failure to be in court and why I should relist even if it meant destroying the reputation built up by a respected lawyer over the years. The reason given in the affidavit is self contradictory, defeats itself and has been properly refuted by the defendant/respondent counter-affidavits. I see no good reason and I hold that sufficient material has not been placed before me to enable me exercise my discretion in favour of the plaintiff/applicant.”

Following the appeal to the court below the ruling of the trial court was set aside. In doing so, the court below observed:

“I am well aware that the decision being appealed against was delivered in 1995 while the suit itself was filed in 1993. It cannot be doubted that the appellant’s counsel and I dare say also the court itself have contributed to the quagmire they found themselves. The court below might have reasoned that the appellant was asking the trial court to be very reasonable in that matter. It is all well and good to trumpet to high heavens that where a suit is dismissed because of seeming lack of will to prosecute a case diligently, then on proper consideration the court ought ordinarily to give the party a second chance. That generally should be so I must confess that I am not in the least enamoured by the attitude of the appellant in the handling of the case in the court below.

However, I still believe that where a party has shown considerable remorse in his handling of a matter in court and prays fervently to be admitted to have the case argued on its merit, the court ought not to continue to be too rigid in acceding to the prayers. In such a case a punitive cost imposed by court below would do the trick. I have never supported a resort to short circuiting a trial summarily. Indeed it never ends trial but prolongs it. The court below could have merely struck the suit instead of dismissing it. In the present case, I am prepared to fall backwards to accommodate the appellant. In the circumstances, I will allow the appeal and set aside the judgment of the court below. The matter should be remitted to another court below to handle. I make no order as to costs.”

It is apparent from the ruling of the trial court, an extract of which was reproduced above, that the plaintiff’s application failed for two clearly stated reasons namely:

1. Indolence of plaintiff in not finding out from his counsel for about one year the progress in the suit.
2. Inability of the trial court to accept as exculpatory, the failure of counsel retained by plaintiff to appear in court on five consecutive occasions.

The court below did not reach the conclusion that the reasons given by the trial court as stated above were unfounded or unjustified.

It nonetheless proceeded to express the view that the trial court should have merely struck out the suit. Was the court below right in overruling the trial court on a matter of the exercise of discretion falling squarely within the power or jurisdiction of the trial court I do not think the court below was right. Order 37 Rules 6(2), 7, 8 and 9 of the Rivers State High Court (Civil Procedure) Rules, 1987 provide:

“6(2) If, when the trial of an action is called on, neither party appears, the action may be struck out of the list, without prejudice, however, to the restoration thereof, on the direction of a Judge.

7. If, when a trial is called on the plaintiff appears, and the defendant does not appear, then the plaintiff may prove his claim, so far as the burden of proof lies upon him.
8. If, when a trial is called on the defendant appears, and the plaintiff does not appear, the defendant; if he has no counter claim, shall be entitled to judgment dismissing the action, but if he has a counter claim, then he may prove the counter claim, so far as the burden of proof lies upon him.

Provided that if the defendant admits the cause of action to the full amount claimed, the court may, if it thinks fit, give judgment as if the plaintiff had appeared.

9. Any judgment obtained where one party does not appear at the trial may be set aside by the court upon such terms as may seem just, upon an application made within six days after the trial or within such longer period as the court may allow for good cause shown.”

Now, the relevant record of proceedings for 9-3-95 read:

“Between:

Telepower (Nigeria) Ltd. Plaintiff

Versus

Chief Nicholas Banna Defendant

Plaintiff is absent

Defendant in court

I. M. Alozie for defendant

Counsel submits that plaintiff have abandoned this matter. Plaintiff attended court last in June 1994. Since there had been four or five adjournments and neither plaintiff nor their counsel had been in court. The matter is for hearing today, but neither plaintiff nor counsel is in court. The cost award against the plaintiff on 7/6/94 to be paid before the next adjournment had not been paid.

Counsel urged this court to dismiss the suit in accordance with Order 37 Rule 8. Defendant had no counter claim.

Court:

It is clear to me that for the attitude of plaintiff in this matter, they must be taken to have abandoned this suit.

I hereby dismiss this suit under Order 37 Rule 8 with N500.00 costs.”

It is apparent from the record of proceedings reproduced above that the plaintiff and its counsel were absent from court on the date fixed for hearing. Under Order 37 rule 8 above, the trial court is authorised to dismiss the plaintiff’s suit when on the date of hearing the plaintiff is absent and the defendant is present. The trial court so exercised its power to dismiss.

Under Rule 9 of Order 37, the trial Judge has the discretion to set aside the order to dismiss a suit upon such terms as he may impose.

The trial court felt unable to exercise its discretion in favour of the plaintiff because the reasons offered by the plaintiff were found unsatisfactory. The court expressed that it was unable to accept the excuse that the case file was given to Chief A. B. C. Iketuonye, SAN after he had been fully briefed; and that the said senior counsel disrespectfully refused to attend court. I should have thought that in such setting, it was necessary for Chief A. B. C. Iketuonye, SAN to explain by an affidavit evidence the reason why he failed to appear in court after he had collected the case file and been fully briefed. It is needful that it be stressed that a plaintiff who is not ready to pursue his suit with diligence upon which the court must insist has no business bringing such case to court. Counsel and parties alike must bear in mind that the time of the court is valuable and must be apportioned between the different cases requiring attention.

It is the duty of the court to proceed with the hearing of the cases before it expeditiously. The courts in the land must exact from parties and counsel as much diligence in the prosecution of their cases as would enable the court consign the incidence of congestion in our courts to history.

In any case, this court per Bairamian JSC in Enekebe v. Enekebe (1964) 1 All NLR 102 at 107 emphasised the desirability of the need to treat with respect the exercise of discretion by the court of first instance. It quoted therein with approval the observation of Lord Simon in Charles Osenton v. Johnston (1942) AC 130 at 138 where he said:

“The appellate tribunal is not at liberty merely to substitute its own exercise of discretion for the discretion already exercised by the Judge. In other words, appellate authorities ought not to reverse order merely because they would themselves have exercised the original discretion, had it attached to them, in a different way. But if the appellate tribunal reaches the clear conclusion that there has been a wrongful exercise of discretion in that no weight or no sufficient weight, has been given to relevant considerations such as those urged before us by the appellant, then the reversal of the order on appeal may be justified.”

See also Solanke v. Ajibola (1968) 1 All NLR 46. The provision dealing with fair hearing under section 36 of the 1999 Constitution of Nigeria is for the protection of all the parties to a case, the plaintiffs and the defendants alike. It will be oppressive to interpret the provision as conferring a protection on just one of the parties to a case. In this connection. I like to call to mind the views of this court per Oputa, JSC in Willoughby v. International Merchant Bank (Nig.) Ltd. (1987) 1 NWLR (Pt. 48) 105 at 131 para H:

” The court’s primary function is to do justice between the parties to a dispute. One sided justice will amount to injustice. The law is made to ensure justice. Rules of Court are hand maids of justice. It is only by the orderly administration of law and obedience to the rules that legal justice can be attained. When a particular decision is against all known rules; against all known principles, then it is certainly, not made in the interest of justice.”

It is my firm view that the court below was in error to have unjustifiably interfered with the exercise of discretion by the trial court without antecedently holding that the reason relied upon by the trial court to refuse the application was unsustainable.

I would allow the appeal. The judgment of the court below is set aside. I make an order restoring the ruling of the trial court. The defendant is entitled to costs in the court below and this court which I fix at N5,000.00 and N10,000.00 respectively.

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SC.407/2001