James Asiegbu V. Access Bank Plc & Ors (2016)
LawGlobal-Hub Lead Judgment Report
HELEN MORONKEJI OGUNWUMIJU, J.C.A.
This is an appeal against the ruling of the Anambra State High Court sitting in Onitsha delivered on 30/5/2013 by Hon. Justice Chudi Nwankwor wherein His Lordship struck out the suit against the 2nd and 3rd respondents and awarded N50,000 costs to each defendant at trial. The appellant herein was the 3rd defendant at trial. The 1st respondent herein was the plaintiff at trial. The 2nd and 3rd respondents herein were 2nd and 3rd defendants at trial. I will hereinafter refer to the parties as they are named on appeal. The undisputed facts that led to this appeal are as follows:
This case first came before the trial Court on 26/02/2013 after which it was adjourned for pre-trial conference with order for Hearing Notice to be served on the 2nd and 3rd respondents who were absent from Court. On 9/4/2013, the learned trial judge gave 10 different dates for hearing of the substantive suit and one outstanding motion with No: O/479M/2012. On 14/05/2013, the 2nd of the ten days selected by the learned trial judge for hearing, the 1st respondent?s counsel applied for
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the matter to be stood down till 11am to enable his witness who was absent due to an illness on the 1st date of adjournment be in Court. The witness did not show up and the Court ruled that if by the next adjourned date the 1st respondent is unable to go on with the case, the case will be dismissed. The learned trial judge went on to awardcost of N20,000 to the appellant and 2nd and 3rd respondents before adjourning the matter. On 30/5/2013, the next date of adjournment, the N20,000 cost awarded in favour of the appellant and others had not been paid by the 1st respondent. 1st respondent?s counsel made an application before the Court for a stand down till 1pm.The learned trial judge refused to grant the application for a stand down, struck out the suit and the cost of N50,000 was awarded to the appellant and the 2nd and 3rd respondents against the 1st respondent.
Dissatisfied with the decision of the trial Court, the appellant initiated this appeal by a Notice of Appeal filed on 18/7/2013 containing one ground of appeal and transmitted records on 13/9/2013. The appellant?s brief of argument was filed on 14/10/2013. The 1st respondent?s
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brief was filed on 13/11/2013 while the 2nd and 3rd respondents? brief was filed on 26/11/2013.
In the appellant?s brief settled by Chief Ikenna Egbuna, one issue was identified for determination as follows:
1. Whether the learned trial judge was right to set aside his earlier decision which is in conformity with the High Court Rules of Anambra State.
In the 1st respondent?s brief settled by C.P Oguchienti, one issue was raised for determination as follows:
1. Whether the Court rightly made an order striking out the suit instead of a dismissal of same.
In the 2nd and 3rd respondents? brief settled by J.E.O Ogbuli, a lone issue was also identified for determination as follows:
1. Whether the learned trial judge was right to strike out the main suit instead of dismissing same in the total circumstance of the case.
After careful consideration of all briefs, I shall adopt the sole issue for determination as couched by the learned counsel for the 1st respondent.
Whether the Court rightly made an order striking out the suit instead of a dismissal of same.
?Learned appellant?s counsel cited Or.
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30 r. 3 of the High Court Civil Procedure Rules of Anambra State 2006. Counsel submitted that the decision of the Court on 30/5/2013 to the effect that the suit was struck out with N50, 000 cost awarded to each of the defendants is contrary to law and the rules of Court and that the decision of the Court on 14/5/2013 conflicts with the decision on 30/5/2013. Counsel submitted that the Court cannot overrule itself in the same proceedings. He cited Y.A Lawal v. Yakubu Dawodu & Or (1972) ALL NLR 707.
Counsel argued that the decision to strike out the suit is not in conformity with Or. 30 r.3 of the High Court Rules of Anambra State 2006, the proper order the Court below should have made is to dismiss the case as it concerns the appellant. He submitted that the rules of Court are meant to guide and regulate the practise of law in the Courts and therefore command obedience to ensure equity and fairplay. Counsel cited Chief A.O Aina v. Alhaji (Chief) Amina Abiodun & Or(2005) 10 NWLR Pt. 933 Pg. 375; Abia State Transport Corporation & Ors v. Quorum Consortium Ltd (2009) 9 NWLR Pt. 1145 Pg. 1; Orakul Resources Limited & Or v. Nigerian
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Communications Commission & 4 Ors (2007) 16 NWLR Pt. 1060 Pg. 270. Counsel urged this Court to set aside the decision of the trial Court and to dismiss this appeal.
Learned counsel for the 1st respondent argued that the Court rightly made an order striking out the suit instead of dismissing same as hearing was yet to commence in the suit and no evidence has been led. Also, the counter claim of the 1st and 2nd defendants now 2nd and 3rd respondents is yet to be heard and determined. Counsel cited Or. 39 R. 7 of the High Court (Civil Procedure) Rules of Anambra State 2006.
Counsel submitted that the only issue that arose and consequently led to the striking out order was the issue of payment of costs awarded by the Court in the previous proceedings and 1st respondent?s counsel prayed the Court for a stand down in order to pay the cost for hearing to proceed but was rebuffed by the Appellant?s counsel and 2nd and 3rd respondents? counsel who vehemently opposed the application for a stand down. Counsel submitted also that all outstanding costs awarded in favour of the respondents and appellant have since been paid in full and the
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appellant who received N70, 000 from the 1st respondent by order of Court is seeking to challenge the very decision from which he has benefitted. Counsel cited Ogbole v. Lawal (2008) FWLR Pt. 187 Pg. 862.
Counsel argued that striking out a suit is different from dismissing the suit because a suit can only be dismissed after litis contestatio. Counsel contended that the appellant?s appeal is not mindful of the 1st respondent?s motion for relisting of the suit upon the striking out order and that where there is a motion to relist a suit that has been struck out, such motion and suit are intricately bound and inseparable until motion to relist has been disposed of. Counsel cited Idoko v. Ogbeikwu (2003) FWLR Pt. 149 Pg. 1530; Obasi Brothers Merchant Ltd v. Merchant Bank of Africa Securities Ltd (2005) All FWLR Pt. 261 Pg. 216; Union Bank of Nigeria Plc & Anor v. Mrs Jibueze & Anor (2003) FWLR Pt. 151 Pg. 1898.
Counsel argued also that this appeal is founded on the realm of technicality and prominence should not be given to technicality at the expense of substantial justice. Counsel submitted that the dismissal of an action in limime is
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the most punitive relief a Court can grant a defendant against a plaintiff. He cited Addas Petroleum (Nig.) Ltd v. Duke (2010) All FWLR Pt. 542 Pg. 1649; Inakoju v. Adeleke (2007) All FWLR Pt. 353 Pg. 77,Oduyemi v. Agbede (2008) All FWLR Pt. 412 Pg. 1180; UTC Ltd v. Pamotei (1989) 2 NWLR Pt. 103 Pg. 244, (2002) FWLR Pt. 129 Pg. 1557, OBMC Ltd v. M.B.A.S Ltd (2005) All FWLR Pt. 261 Pg. 232.
Counsel argued further that the appellant failed to take cognizance of the pending counterclaim of the 1st and 2nd defendants now 2nd and 3rd respondents, if the suit is dismissed, what then will be the status of the counterclaim which is also part of the suit in the unlikely event of the Court countenancing the appellant?s request for a dismissal?
Learned counsel for the 2nd and 3rd respondents submitted that the striking out of the suit by the Court was for non-payment of costs awarded against the 1st respondent and that this suit is not within the purview and intendment of Or. 30 R. 3 of the High Court (Civil Procedure) Rules of Anambra State 2006.
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Counsel argued also that any issue for determination not borne out of the ground of appeal is
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incompetent before the Court. The issue before this Court which the appellant based on the obiter dictum of the trial judge on 14/5/2013 was not mentioned in the ground of appeal or its particulars therefore it is incompetent before this Court. Counsel argued that the comment of the trial judge that the case will be dismissed on the next adjourned date cannot form the basis of an appeal, the grounds of an appeal must arise from the ratio decidendi of the decision not the obiter dictum of the trial judge. Counsel cited Igwe v. Alice Owerri (1994) 8 NWLR Pt. 363 Pg. 450; Saude v. Abdullahi (1989) 3 NWLR Pt. 116 Pg. 387; Ede v. Omeke (1992) 5 NWLR Pt. 242 Pg. 428.
Counsel submitted that the rules of Court are a guide to administration of justice and not its mistress and that the words ?shall? and ?must? in the rules of Court may be interpreted to mean ?may?. Counsel cited Fidelity Bank Plc v. Monye & 2 Ors (2012) MRSCJ 1 Pg. 48; UTC v. Pamotei (1989) 2 NWLR Pt. 103 Pg. 244; Chime v. Chime (2001) 3 NWLR Pt. 701 Pg. 527; Odua Investment Co. Ltd v. Talabi (1997) 10 NWLR Pt. 523 Pg. 406. Counsel urged this Court to dismiss
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the appeal.
RESOLUTION
Or. 30 R. 3 of the High Court (Civil Procedure) Rules of Anambra State 2006 states as follows:
When a case is called for hearing, if 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 such counter-claim, so far as the burden of proof lies on him.
We are being asked here to reverse the exercise of discretion by the learned trial judge. All rules of practice and procedure are subject to the exercise of discretion by the judicial officer who must do so judicially and judiciously in the best interest of the justice of the case.
I agree with the learned counsel for the 1st respondent that a suit can only be dismissed after a decision on the merits- that is after litis contestation. See Oduyemi v. Agbede (2008) All FWLR Pt. 412 Pg. 1180; UTC Ltd v. Pamotei (1989) 2 NWLR Pt. 103 Pg. 244; (2002) FWLR Pt. 129 Pg. 1557; OBMC Ltd v. M.B.A.S Ltd (2005) All FWLR Pt. 261 Pg. 232.
The rules of Court are made as aids to the Courts to help the course of justice and not masters of
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the Court. For the Courts to read the rules in the absolute without recourse to the justice of the cause will be making the Courts slavish to the rules and this clearly is not the reason for the enactment of the rules of Court. See Oduyemi v. Agbede (supra); UTC Ltd v. Pamotei (supra).
Even if the Court used the expression ?dismissal? in its proceedings on the 14th of May, 2013, it would necessarily amount to a striking out since evidence is yet to be led in the case. Where a case is said to have been dismissed in the High Court but circumstances show that such dismissal could not possibly connote determination as to put an end to the case, such dismissal is viewed as a mere striking out by the Court. See OBMC Ltd v. M.B.A.S Ltd (supra).
It has long been settled by the Supreme Court that the appellate Court will not interfere with the exercise of discretion by a trial judge simply because a litigant complains against such exercise. We can only interfere where there is proof that the discretion exercised was not exercised judicially and judiciously with the result that gross miscarriage of justice had occurred. See Anyah v A.N.N (1992) NWLR Pt.
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247 Pg. 319; Nzeribe v. Dave Eng. Co. Ltd (1994) 8 NWLR Pt. 361 Pg. 124.
I cannot understand the prudence behind this appeal except as an effort to clog the wheels of justice. The appellant could have opposed the motion to relist. If the motion had been in favour of the 1st respondent then the defendants at trial could have submitted themselves to the trial on the merit where the claim and counter-claim could be proved and a considered judgment given on the merits.
In the circumstances, I find absolutely no merit in this appeal. The ruling of Hon. Justice Chudi Nwankwor delivered on 30/5/13 is hereby affirmed. Costs of N100,000 against the appellant in favour of each of the respondents.
Appeal Dismissed.
Other Citations: (2016)LCN/8883(CA)
