Felix Nwanze Obi V. Stephen Young Obi & Anor (2004)

LawGlobal-Hub Lead Judgment Report

D. MUHAMMAD, J.C.A.

This is an appeal against the ruling of Odita, J., sitting at High Court No.2, Asaba, in the Asaba Judicial Division, delivered on 12th April, 1995 striking out the suit.

The plaintiff, by paragraph 24 of his statement of claim is claiming for the following:

“Whereof the plaintiff claims as follows:

1. A declaration that the plaintiff and his brothers by his mother Mrs Ashimedue Obi, are entitled to a share of one fourth (1/4) of the whole estate at No. 36, Onaje Road, Asaba, according to Asaba customs.
2. A declaration that the 1st and 3rd defendants’ occupation of the land at No. 30, Onaje Road, Asaba to the exclusion of the plaintiff and his brothers is wrongful.
3. An order of court that the 2nd defendant shares the land in accordance with Asaba custom.
4. An order of court that the 3rd defendant renders account of all monies received from the structure erected on the land.
5. An order of court that the 3rd defendant remove his structure thereon.
6. Injunction restraining the 1st and 3rd defendants from further entering the land or premises at No. 36, Onaje Road, Asaba or tampering with the land there, by planting economic trees thereon, until the estate is divided in accordance with Asaba customs and tradition and the plaintiff and his brothers receive their shares of estate.”

The defendants entered appearance but did not file any statement of defence. The plaintiff then brought a motion on notice praying for judgment in favour of the plaintiff because the defendants failed to file any defence whatsoever. Instead of giving judgment to the plaintiff, the trial Judge asked the plaintiff to prove his case. PW1 was the plaintiff himself. It was during the course of his examination in chief that the trial Judge stopped him and made the following order:

“It is hereby ordered that the 2nd defendant call all his children as the Diokpa of Chief Obi Dikewiwe, the male sons of each wife of the said Chief Obi Dikewiwe at No. 36, Onaje Road, Asaba, to share the said land within 21 days from today. The plaintiff agrees and is hereby ordered to commission a surveyor to survey the land as shared. I am doing so in view of section 35 of the High Court Law since the 2nd defendant said he had already shared the land but was denied by the plaintiff and the 1st defendant. It is hereby fixed that the partition must be carried out by 23rd July, 1994. Case is adjourned to 1st August, 1994 for report of settlement. This date is by consent of the parties.”

On the adjourned date, the parties informed the court that settlement was not reached. The matter was then adjourned to 14/9/94 for report of settlement. On that day, the defendants were in court but the plaintiff was absent. The matter was further adjourned.

On 9/11/94, parties were present in court and informed the court they could not reach settlement. The Judge then ordered that the sharing must be done on 26/11/94 and report of settlement on 26/11/94. On the next three subsequent adjournments, the plaintiff did not appear. On 12/4/95, the plaintiff was absent from court. The case was struck out by the trial Judge.

The plaintiff is dissatisfied with the striking out. He therefore appealed to this court. The amended notice of appeal contains four grounds of appeal. Without their particulars the grounds of appeal read:

“1. The learned trial Judge erred in law when he struck out the suit on a date which he fixed for mention being a date he fixed for report of settlement.

2. The learned trial Judge erred in law when he gave summary judgment in the suit by the order he made in terms of the plaintiff’s claim, but turned back to set aside his own judgment suo motu without any legal grounds of striking out the suit after the said judgment or decision, without any reason expressed for so doing.
3. The trial Judge erred and misdirected himself when he descended on the arena and made himself an interested party by insisting on the settlement of the suit instead by entering formal judgment as judgment terminating the suit.
4. The trial Judge erred and misdirected himself when he failed to perform his legal role as an impartial arbiter who should listen and record the proceedings and the case of the patties as presented to him, but he abdicated that position, made himself a litigant, pressing for a particular remedy in the suit and failed to record aspects of the case of the plaintiff which he did not like.”

In compliance with the rules of this court, parties filed and exchanged their respective briefs of argument. Four issues were identified in the appellant’s brief for the determination of the appeal.

They are:

“1. Whether the trial Judge acted rightly in law when he struck out the entire suit on a date he fixed for mentioning the suit for purposes of a report of settlement which he imposed suo motu, after granting the substantive reliefs sought by the plaintiff in his claim and writ?.

2. Whether the trial Judge acted rightly in law when he assumed further jurisdiction in the suit in which he is already functus officio by the fact that by his order, he granted the reliefs sought at the close of the plaintiff’s case or a motion/or judgment which in law constituted ‘judgment’ in the suit before the striking out of the suit?.
3. Whether the trial Judge acted rightly in law, when he played the role of a litigating party, as plaintiff, by insisting on termination of the suit by settlement out of court and not by formal judgment by the court when neither party on record asked for same?.
4. Whether the trial Judge performed his legal judicial role as an impartial arbiter, when he failed to record the essential elements of the plaintiff’s reliefs proved before the court, and he hung the record of proceedings in midair, thereby omitting the conclusion which would have clarified the full entitlement of the plaintiff’s reliefs?.”

On the other hand, the respondents formulated three issues, in their joint brief, for the determination of the appeal. The issues are:

“(a) Whether the learned trial Judge was right in law when he struck out the suit after seven adjournments out of which the plaintiff was absent on four occasions?.

(b) Whether the directive of the learned trial Judge on the partition and surveying of the land in issue is a judgment of the court?.

(c) Whether the plaintiff/appellant proved his case on the preponderance of evidence to entitle him to judgment?.”

Considering the facts of the case and the grounds of appeal filed, I believe the following issues are more appropriate to the determination of the appeal:

“1. Whether or not the learned trial Judge is right in striking out the suit on a date fixed for report of settlement?.

2. Whether or not the order made by the trial Judge ordering the 2nd defendant to share the land in dispute within 21 days is the judgment of the court, which made him functus officio?.”

I will now deal with the first issue, i.e., whether the trial Judge was right in striking out the suit on a date fixed for report of settlement. It was submitted in the appellant’s brief that the trial Judge was in error in striking out the case, because a court should not in law make any adverse order against a litigant who is not present in court on a date merely fixed for mention. It was then submitted that a date fixed for ‘report of settlement’ is a date fixed for mention. It was also submitted that failure to give any reason why the suit was struck out is wrong in law.

In the respondent’s brief, it was submitted that it was not stated in the record that the matter was adjourned for report of settlement or mention. It was submitted that since the record was silent on the issue, it is wrong to import into the record, facts which are not there. It was then submitted that the trial Judge has a discretion to strike out the case when the appellant lost interest in the case. It was conceded by the respondents that it would be wrong to treat a date fixed for mention or report of settlement as for the hearing of the case.

The order striking out the suit would have been a nullity and set aside on appeal. The case of Ibrahim v. Habu (1993) 5 NWLR (Pt. 295) 570 was referred to. It was further submitted that since the parties agreed on the issue of partition, what the appellant would have done was to ask the suit be relisted instead of appealing. We were urged to hold that the appeal lacks merit and a reference to the lower court is a waste of time. In support, the case of Nzegwu v. Adewole (1964) 2 All NLR 57 was referred.It is trite law that a court cannot treat a date fixed for mention as one for hearing. Any proceedings conducted in such circumstances would be a nullity and liable to be set aside. See Alhaji Uba Kano v. Bauchi Meat Products Company Ltd. (1978) 9 & 10 SC 51 where the Supreme Court held that it is wrong for a Judge to treat a date fixed for mention of a case as one for hearing and that any judgment entered shall be set aside on appeal and a retrial ordered. See also Alhaji Ibrahim v. Alhaji Gamba Habu (1993) 5 NWLR (Pt. 295) 570.

On 23/6/94, when the trial Judge made his order that the land be shared, he adjourned the matter to 1st August, 1994 for report of settlement. On 14/9/94; 17/10/94; 9/11/94 and 28/11/94 the matter was being adjourned for report of settlement. On 28/11/94 the plaintiff wrote for adjournment and the matter was adjourned to 20/2/95. However, it was not stated whether or not the matter was adjourned for report of settlement or hearing. On 20/2/95, the plaintiff was not in court but wrote for adjournment. The matter was then adjourned to 12/4/95. It was not stated whether the matter was for hearing or report of settlement. On 12/4/95, the plaintiff was absent. The matter was then struck out. The proceedings of that day is very short. I therefore reproduce same below.

“A/58/92: Plaintiff absent. 1st and 2nd defendants present 3rd defendant reported dead. Court case is hereby struck out.”

It could be seen that the court did not give any reason why the case was struck out. It is my considered opinion that a court is duty bound to state the reason why it has struck out a case. It is also the duty of the court to verify and establish that a party has been served with a hearing notice before it could make an adverse order against such a party.I think the trial Judge is wrong in striking out the matter without stating the reasons why he did so. Moreover, looking at the whole proceedings, it is obvious that the matter was fixed for report of settlement on the day it was struck out. My answer to the first issue is in the affirmative. The trial Judge is wrong to have struck out the case.

I now come to the second issue which is whether the order made by the trial Judge ordering the 2nd defendant to share the land in dispute amounts to the judgment of the court which made the trial Judge functus officio. It was submitted by the appellant that the order for sharing of the land made by the trial Judge amounted to the judgment pronounced by the court after evidence of the party. It was then submitted that having delivered a judgment, the trial Judge becomes functus officio in respect of the suit. It was further submitted that the trial Judge lacks jurisdiction to continue to fix dates for further consideration. It was also submitted that since the trial Judge is functus officio, his action and decision to strike out the suit is a nullity and that the effect of such striking out is that the first order subsists. In support of these submissions, the following cases are relied upon: Mbadinuju v. Ezuka (1994) 8 NWLR (Pt.364) 535, (1994) 10 SCNJ 109 and John Andy v. National Cereals (1997) 3 NWLR (Pt.491) 1, (1997) 2 SCNJ 157.

The respondent on the other hand, submitted that the trial Judge did not deliver any judgment since the plaintiff was still giving evidence in proof of his case when the trial Judge ordered the 2nd defendant to share the land. It was further submitted that the order made by the trial Judge was not binding, since it was not made at the end of the trial. The rights of the parties were not decided at that stage of the proceedings. It was then submitted that the trial Judge was not functus officio since he did not deliver any judgment. In support, the case of Kaduna iles v. Obi (1999) 10 NWLR (Pt.621) 138 at 144 was relied upon.

It is settled law that after a Judge has delivered his judgment, he becomes functus officio in the matter and could not reopen the matter again in order to take fresh evidence from the parties. See: Nnajiofor v. Ukonu (1985) 2 NWLR (Pt. 9) 686 and John Andy Sons and Co. Ltd. v. N.C.R.I. (1997) 3 NWLR (Pt. 491) 1. Once a Judge has delivered his final judgment in a suit, he ceases to be seized of the matter and cannot reopen the suit for any purpose whatsoever, except for making of ancillary orders such as an order for stay of execution of the judgment or for ordering the judgment debt to be paid instalmentally.

At the beginning of this judgment, I reproduced the order made by the trial Judge. The order was made before the appellant finished giving evidence. He ordered that the land be shared, which incidentally is one of the reliefs sought by the appellant. The trial Judge made the order, according to him, to effect settlement between the parties. He asked them to come back and report to him after the land was shared. The parties were unable to share the land up to the time, the trial Judge struck out the case. The question now is: Is that order made by the Judge, the judgment of the court? A judgment, the way I understand it, is a reasoned decision of the court which is delivered at the end of a trial after hearing all the parties to the suit.

It is a binding judicial decision of the court which has decided the tight of the parties.

In our present case, I am of the opinion that the order made by the lower court is not a judgment. It was made before the plaintiff finished his testimony. He was never cross-examined. The order did not decide all the rights of the parties. There are reliefs sought by the appellant which were not addressed to. However, this order no matter how unorthodox and unconventional, irrespective of whether or not the trial Judge was right to make it, is a subsisting order of the court, unless it is set aside. Whoever is aggrieved with the order should appeal. Because of this order which was subsisting, the trial Judge was wrong in striking out the suit. He cannot ignore an order which he made and strike out the suit.

In the circumstance, the appeal has merit and is allowed. The order of striking out the suit by Odita, J. of 12/4/95 is hereby set aside. In the circumstance of this case, the proper order to make is to send the matter back to the lower court for retrial. The suit No. A/58/92 is remitted back to the lower court to be heard by another Judge. I make no order as to costs.

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Other Citations: (2004)LCN/1531(CA)