Mr. John E. Agbor V. The Polytechnic, Calabar (2009)
LawGlobal-Hub Lead Judgment Report
JEAN OMOKRI, J.C.A.
This is an appeal against the ruling of E. E. Ita J., in Suit No.HC/177/2001 delivered on 4/6/06, wherein he refused the appellant’s application to relist the suit that was struck out.
The facts of the case, as can be gleaned from the record, are as follows: By a writ of summon taken out at the registry of the trial court on the 26/4/01, the appellant, who was the plaintiff, sued the respondent, who was the defendant, claiming in paragraph 23 of the statement of claim, at page 5 of the record, as follows:
“23. The plaintiff states he-has- suffered- tremendously due to the act of the defendant and he claim as follows:
(a) A declaration that the termination of the appointment of the plaintiff was invalid, null and void as same was in violation of the right of fair hearing of the plaintiff.
(b) Order of the court that the plaintiff be reinstated in the service of the defendant.
(c) The plaintiff is entitled to his salary during the pendency of this action and part of his half salary during interdiction and other benefits like accommodation during the pendency of this suit.
(d) The sum of N1,000,000.00 as general damages for the mental anguish suffered by the plaintiff due to the act of the defendant.”
The respondent filed his statement of defence of 18 paragraphs which is at page 8 of the record. Shortly before the commencement of hearing, the appellant informed the trial court at page 10 of the record that there was a move to settle the matter out of court. The matter suffered series of adjournment as a result of the said move to settle. The matter was eventually struck out for want of diligent prosecution on 14/11/05. Sequel to the striking out of the matter, the appellant filed an application to relist the matter but it was refused.
Dissatisfied with the ruling of the trial court, the appellant appealed to this court on one ground. The ground of appeal’ subscribed in the notice and grounds of appeal is as follows:
“The learned trial Judge erred in law to have struck out the application to relist the suit.
PARTICULARS OF ERROR
(a) The applicant gave sufficient reasons for allowing the application.
(b) The applicant satisfied the condition precedent as contained in the Practice Direction to relist the application.
(c) The there was no undue delay in bringing the application to the relist.
(d) The application was not opposed.”
The appellant in his brief of argument dated 18/12/07 and filed the same day, formulated one issue from the sole ground of appeal which is as follows:
“Whether the learned trial Judge was right to dismiss the application.”
The respondent on its own part raised two issues from the lone ground of appeal in its brief dated 25/1/08 and filed on 29/1/08. The two issues are:
“1. Was the application for relistment of the suit brought by the plaintiff/appellant before the learned trial Judge competent in law?
- And if the said application is competent in law, did the learned trial Judge in refusing the application exercise his discretion judicially and judiciously?”
Upon being served with the respondent’s brief, the appellant in response filed a reply brief dated 20/2/08 and filed on 21/2/08, wherein the two issues raised by the respondent in its brief were attacked with all vehemence.
It is the appellant’s contention under Issue No.1, that the learned trial Judge was in error to have refused the application to relist the matter as the application was meritorious considering the facts proffered in support of same.
Learned counsel for the appellant, Mr. F. O. Onyebueke, referred to page 15, paragraphs 5 and 6 of the record of proceedings and pointed out that the appellant gave sufficient reasons why his counsel was not in court on the day the matter was struck out, in the affidavit in support of the motion to relist. Moreover, there was no counter-affidavit challenging the averments in the supporting affidavit. Counsel then submitted that facts not denied are deemed admitted. He relied on Sky Power Airways Ltd. vs. Olima (2005) 18 NWLR (Pt.957-) 224; -Chief-of Air-Staff vs.– Iyen-(2005)6 NWLR (Pt.922) 496 and Unibiz Ltd. vs. C. B. I. (2005) 14 NWLR (Pt. 944) 47.
Mr. Onyebueke contended that the appellant fulfilled the requirement of the Practice Direction by paying the sum of N5,000.00 as penalty for lack of diligent prosecution and the application was brought timeously. He contended further that the learned trial Judge in refusing the application highlighted the history of appearance of the appellant which is not a reason for refusing the application. Counsel pointed out that the major reason for non prosecution of the case was the out of court settlement process which was on going and the matter was adjourned for that purpose and not for hearing on the day it was struck out. He then concluded that all these factors should have weighed in the mind of the trial Judge to exercise his discretion in favour of the appellant. Relying on Dalfam Nig. Ltd. vs. Okaku Int. Ltd. (2001) 15 NWLR (Pt. 735) 203 at 219 and In Re: Alase (2002) 10 NWLR (Pt. 776) 553 at 557, counsel concluded that the trial Judge failed to exercise his discretion judicially and judiciously.
Learned counsel for the respondent, Mr. Nta A. Nta, submitted in the respondent’s brief, that the appellant’s application for relistment was incompetent since the averments in the supporting affidavit was false. He referred to the proceedings of the trial court from 26/10/04 to 14/11/05 which is at pages 17 and 18 of the record and submitted that the appellant’s averment that he has been very consistent and diligent in the prosecution of the case is false, because out of the ten times his case came up in the trial court, the appellant was absent.
Learned counsel submitted further that the appellant failed to meet the conditions for relistment stated in Abeo vs. Ogunyemi (1990) 3 NWLR (Pt.141) 758 at 759, In: Re Ejide Ejide; Ex Parte Bintu Ejide, therefore, the trial Judge was right in refusing to relist the appellant’s suit.
On Issue No.2, Mr. Nta-relied-on the provisions of Order 37 Rule 9 of the Cross River State -High Court (Civil Procedure) Rules and submitted that the appellant ought to apply for extension of time to bring his application after allowing the stipulated time to elapse and no reasons were given for the delay in the appellant’s affidavit in support of application for relistment. Relying on Nnonye vs. Anyiche & Anor. (2005) (Pt. 910) 623 at 656 – 657; Aromolaran & Anor. vs. Oladele & Ors. (1990) (Pt. 162) 359 at 371 and Ifediorah vs. Ume (1988) 2 NWLR (Pt. 74) 8, Mr. Nta submitted that the appellant did not comply with the rules of court.
Counsel for the appellant, Mr. Onyebueke, in the appellant’s reply brief, submitted that Issue No.1 raised by the respondent goes to no issue because it never arose from the ground of appeal filed by the appellant and the respondent neither cross appealed nor filed a respondent’s notice. He relied on Brifina Ltd. vs. Intercontinental Bank Ltd. (2003) 5 NWLR (Pt. 814) 540 at 554. Counsel also submitted that in an application for relistment the law requires the applicant to state his inability to be in court on that particular date the case was struck out and not on the other dates. He pointed out that it was wrong for the trial court to strike out the suit when the case was not adjourned for hearing but for report of settlement and that the trial court ought to have fixed the matter for hearing and order for hearing notices to be served on the parties.
On the issue of non-compliance with Order 37 Rule 9 of the Cross River State High Court (Civil Procedure) Rules, learned counsel submitted that the respondent had ample opportunity to raise same at the trial court but he did not, he must therefore be taken to have waived same. He contended that the provisions of the rules are waivable by parties and that rules of court are to guide the proceedings in court, they do not confer jurisdiction on the court. He relied on Afribank Nig. Plc. vs. Akwara (2006) 5 NWLR (Pt. 974) 619 at 630.
It is well settled law that a respondent cannot formulate more issues than the grounds of appeal contained in the notice of appeal, and the issues so formulated must be distilled from the-grounds of appeal as contained in the notice of appeal. Ordinarily a respondent is expected to address the issues that have arisen in the appeal by replying to the appellant’s argument. In the instant appeal, Issue No. 1 raised by the respondent is totally at variance with and divergent from the lone ground of appeal filed by the appellant. A respondent, who has not cross-appealed or filed a respondent’s notice, cannot formulate issues outside the ground of appeal filed by the appellant. A respondent’s issue or issues, particularly where the respondent has not cross appealed, must arise from or relate to and must be based on and correlate with the ground or grounds of appeal of the appellant. In Ezukwu vs. Ukachukwu (2004) 17 NWLR (Pt. 902) 227, Edozie, JSC, held at page 243 of the report as follows:
“Where a respondent has not filed a cross-appeal, the role of the appellate court is limited to seeking whether or not the decision of the court below is correct such a respondent does not have an unrestrained or unbridled freedom of raising issues for determination which have no relevance to the grounds of appeal filed….”
In the instant appeal, Issue No. 1 raised by the respondent did not derive from the appellant’s ground of appeal.
It is therefore imperative that in the formulation of issues for determination, counsel should bear in mind that any issue not in consonance with ground of appeal does not fall for determination. See Nigeria Customs Service vs. Bazuaye (2006) 3 NWLR (Pt. 967) 303 at 321 and Effiong vs. Ebong (2006) 18 NWLR (Pt. 1010) 109. See Akinlagum vs. Oshobaja (2006) 12 NWLR (Pt. 993) 60; Globe Fishing Ind. Ltd. vs. Coker (1990) 7 NWLR (Pt.162) 265; and Anyafulu vs. Agaze (2005) 5 NWLR (Pt. 923) 260.
Secondly, the respondent formulated two issues from the lone ground of appeal filed by the appellant. The two issues raised by the respondent are unnecessary prolix. Issues for determination in a brief of argument must of necessity be limited by the grounds of appeal filed. While an issue may cover or traverse one or more grounds of appeal, issues for determination should not be more in number than the grounds of appeal on which they are based. It is incompetent to formulate more issues than the grounds of appeal filed. The courts in a plethora of cases have always frowned at proliferation of issues for determination. See Nfor vs. Ashaka Cement Co. Ltd. (1994) 1 NWLR (Pt.319) 222; Santory Co. Ltd. vs. B.O.N. Ltd. (2005) 8 NWLR (Pt. 925) 594; M. B. N. Plc. vs. Nwobodo (2005) 14 NWLR (Pt. 945) 379 and NITEL vs. Tusboyele (2005) 3 NWLR (Pt. 912) 334.
In the instant appeal, the respondent raised two issues from one ground of appeal. I find that Issue No. 1 is unrelated to the ground of appeal filed by the appellant, it is incompetent and it is hereby discountenanced and struck out.
Issue No.2 relates to the ground of appeal filed so it is proper. Having carefully considered and reflected on the issues formulated by the parties. I find the lone issue filed by the appellant more relevant and derivable from the ground of appeal filed. I shall therefore adopt and rely on it for the determination of this appeal.
This appeal is confined to the issue whether the learned trial Judge erred in law in striking out the application to relist the suit filed by the appellant before the trial court. In an application to relist a case for hearing, the court must consider:
“(a) The reason for the applicant’s failure to appear when the case was heard.
(b) Whether there has been undue delay in making the application to relist so as to prejudice the respondent.
(c) Whether the respondent would be prejudiced or embarrassed upon an order for rehearing being made, so as to render such course inequitable; and
(d) Whether the applicant’s case is manifestly unsupportable;
(2) In such matters embarrassment ordinarily results where rights of third-persons have intervened. It is on the respondent to show such embarrassment.”
See Ugwu vs. Aba & Ors. (1961) All NLR 438 at 439; Grimshaw vs. Dunbar (1953) 1 All E. R. 350; Ojikutu vs. Odeh 14 WACA 640; Harley vs. Samson (1914) 30 TLR 450 and Abeo vs. Ogunyemi, In: Re Ejide (supra).
The issue now is whether the appellant met the conditions for re-listment outlined above. The appellant in paragraphs 4 and 5 of the supporting affidavit at the court below averred as follows:
“4. I traveled out of jurisdiction on this date and asked my counsel, T. N. Edor, Esq. to represent me.
- My counsel, T. N. Edor, informed me and I verily believed him that he was involved in a minor motor accident on his way to the court on the said date and that occasioned his appearing in court late.”
Apparently, the respondent did not file any counter-affidavit, to challenge, controvert or contradict the averments in the supporting affidavit of the appellant before the trial court. Therefore, the facts deposed to in the supporting affidavit particularly paragraphs 4 and 5 must be deemed to be true, correct and admitted. See Buhari vs. Obasanjo (2003) 17 NWLR (Pt. 850) 587 at 657 – 658. In Sun Insurance Plc. vs. Adegoroye (2003) 11 NWLR (Pt.831) 379; Aderemi, JCA, stated as follows:
“Where there is no counter-affidavit to an affidavit, the depositions are deemed to be admitted in law and they therefore form the agreed facts of the case between the parties , ”
See also Akwa vs. C. O. P. (2003) 4 NWLR (Pt. 811) 461 and Akpabuyo Local Govt. vs. Edim (2003) 1 NWLR (Pt. 800) 23.
In the instant case on appeals the respondent not having filed any counter-affidavit to challenge the appellant’s averments in the supporting affidavit, must be deemed to have admitted the averments. Thus the appellant before the trial court gave the reason for his failure to appear when the case was heard and they form the agreed fact in the matter between the parties before the trial court. There was therefore a cogent reason for the appellant’s failure to appear on the day the matter was struck out.
However, from the ruling of the trial Judge at pages 17 to 18, the application for relisting was struck out because the appellant did not give reasons for his absence on the other days when the appellant was absent. The learned Judge’s reason is encapsulated in his words at page 18, paragraph 2 of the record where he said that:
“Applicant has tried to tell me what happened on 14th November, 2005. What about all other days which informed my action of 14th November, 2005. No explanation at all has been offered for them. This application fails and is hereby refused. A plaintiff is not entitled to file a case in court and go to sleep while the court sworts through the pleading on each adjourned date.”
It is glaringly clear from the above that the trial Judge did not disbelieve the reasons given by the appellant as to why he was not in court on 14/11/05. The learned trial Judge refused the application to relist the suit because the appellant did not offer any explanation in respect of other days when he was absent.
At this juncture, it is important to state here that what the law requires is for the appellant to state his inability to be in court on the day the matter was heard, that is the particular date the case was struck out, which is 14/11/05, and not the other dates. See Adeo & Anor vs. Ogunyemi & Ors. (supra) at 763 – 764. In Atiku vs. Yola Local Govt. (2003) 1 NWLR (Pt. 802) 487 at 500, it was held that:
“In an application seeking to have a suit relisted, the desiratum rest on the following-factors:
(a) good and substantial reasons for the failure to come to court on the date the suit was struck out.
(b) good and substantial reasons for the delay in bringing the application to relist the suit.”
All that the appellant is required to do is to give reasons for his absence or inability to be present in court on the day the suit was struck out and good and substantial reasons for the delay in bringing the application to relist the suit. The learned trial Judge was therefore in error when he held that the appellant did not explain his absence on other dates.
The appellant contended that there was no undue delay in making the application to relist so as to prejudice the respondent. Rather, he contended that he acted timeously. The learned trial Judge did not consider this point in his brief ruling. Learned counsel for the respondent, Mr. Nta, relied on Order 37 Rule 9 of the Cross River State High Court (Civil Procedure) Rules, and submitted that the appellant did not apply for extension of time to bring his application after the 6 days stipulated by the rules had elapsed. He pointed out that the appellant’s application was made on 9/2/06, about 3 months after the matter was struck out and the appellant failed to apply for extension of time before applying for relistment. Moreover, the appellant did not give reasons for the delay in applying for relistment.
In the first place the learned trial Judge did not consider the provisions of Order 37 Rule 9 of the Cross River State High Court (Civil Procedure) Rules, as it was not part of the ruling appealed against.
Secondly, Order 37 Rule 9 of the aforesaid rules is not applicable to the issue in the instant appeal.
The Rule provides as follows:
“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.”,
In the instant appeal, we are dealing with the relisting of a suit which was struck out. This is very different from the situation within the contemplation of Order 37 Rule 9 aforesaid, dealing with a situation where a judgment obtained in the absence of a party at the trial, may be set aside. This is clearly distinguishable from an application for relistment of a case which was struck out. That being the case, the question of the appellant applying within 6 days after the trial for the setting aside of the judgment does not arise at all in the instant appeal.
Thirdly, the respondent did not oppose the appellant’s application before the trial court and neither did he challenge the application for relistment. Moreover, the trial Judge did not consider the provisions of Order 37 Rule 9 of the aforesaid Rules in his ruling and neither did he consider the question of whether or not the appellant’s application was incompetent. The contention of the respondent in the circumstance has no legs to stand and it is of no moment.
The appellant’s counsel pointed out that the reason for the non-prosecution of the matter at the trial court, was because the parties were exploring the opportunities for settlement out of court. He also pointed out that the case before the trial court was adjourned severally for report on the settlement and more importantly, that when the case was adjourned to 14/11/05 it was for report of settlement and not for hearing. Mr. Onyebueke may have a good point there but the appeal before this court is confined to the issue of the refusal to relist the suit that was struck out. There is no appeal before this court presently, dealing with the striking out of the main suit.It is the primary objective of a court to confine itself to the hearing and determination of issues raised in the grounds of appeal and issues formulated therefrom. I shall therefore confine myself to the issues validly and properly raised in the appeal and not transgress into issues not properly before the court. When an issue is not placed before the Court of Appeal, it has no business whatsoever to deal with it. A Court of Appeal is not a knight errand looking for skirmishes all over the place. See Dungus vs. Mondiye (2005) 8 NWLR (Pt. 927) 292 at 308 and Ebba vs. Ogodo (1984) 1 SCNLR 372.
Mr. Onyebueke contended that the appellant complied with the Cross River State High Court, Practice Direction, by paying the sum of N5,000.00 cost for not being in court on the day the suit was struck out. He also contended that there was no delay on the part of the appellant in applying for the relistment of the suit and moreover, the respondent did not oppose the application and neither did he file any counter-affidavit to challenge, controvert or contradict the averments in the appellant’s supporting affidavit to the motion. Counsel then submitted that all these should have weighed in the mind of the trial Judge to exercise his discretion in favour of the appellant. Having carefully considered the submission of Mr. Onyebueke, I am inclined to agree with him. There was no evidence that the respondent would be embarrassed if the application was granted. In Abeo & Anor. vs. Ogunyemi & Anor., Ex Parte Bintu Ejide (supra), it was held that the intervention of third party’s rights would ordinarily constitute embarrassment to the respondent in considering an application to relist a case already struck out’ and the onus is on the respondent to show any such intervention. In the instant case on appeal, the onus was on the respondent to show that he would be prejudiced or embarrassed upon an order of relisting being made so as to render it inequitable to permit the case to be re-opened.
The respondent ought to have sworn to a counter-affidavit to that effect at the trial court. Not having done so, the respondent must be taken to have admitted that it will not be prejudiced or embarrassed by the relisting of the suit.
In the circumstances, there was no good reason why the trial court refused the application for the relistment of the case that was struck out. The justice of this case demands that the trial court should have allowed the appellant to present his case so that it can be heard on the merits.
Whenever a court is to exercise its discretion in a matter, it is obliged to do so judiciously and judicially. See–Dalfam- Nig. Ltd. Vs. Okaku Int. Ltd. (supra). In Re Alase (supra), it was held that acting judicially imports the consideration of the interest of both sides and weighing them in order to arrive at a just and fair decision. Acting judicially means:
“(a) proceeding from or showing sound judgment;
(b) having or exercising sound judgment;
(c) marked by discretion, wisdom and good sense.”
See Agbenyi vs. Abo (1994) 7 NWLR (Pt. 359) 735 at 747; Okorodudu vs. Okoromadu (1977) 3 SC 21 and Odutola vs. Kayode (1994) 2 NWLR (Pt. 324)
- Where a trial court fails to exercise its discretion judicially and judiciously in the interest of justice, an appellate court would correct the error and make the right order that is just and proper in the circumstances of the case. See Agbenyi vs. Abo (supra) at page 748.
It is the bounding duty of the court to do substantial justice in each and every case before them. It is well-established principle of law that judicial discretion must be exercised according to common sense and according to justice and if there is any miscarriage of justice in the exercise of such discretion, it is within the competence of an Appeal Court to have it reviewed. See John Andy Sons & Co. Ltd. vs. Mfon (2007) 4 WRN 173 at 193.
There is merit in this appeal and it deserves to be allowed.
Accordingly, this appeal be and is hereby allowed. The ruling of the lower court refusing the application be and is hereby set aside. The application for relisting the suit be and is hereby granted. The suit is hereby remitted to the Chief Judge of the High Court of Cross River State for re-assignment to another Judge for hearing on the merits. N10,000.00 costs to the appellant.
Appeal allowed.
Other Citations: (2009)LCN/3159(CA)
