Mr. Olasunkanmi Erinfolami & Anor V. Societies General Bank Nig. Ltd (2007)
LawGlobal-Hub Lead Judgment Report
IGNATIUS IGWE AGUBE, J.C.A.
This is appeal against the Ruling of the High Court of Justice Ilorin Kwara State which was delivered by Elelu- Habeeb J. on the 4th day of May, 2006, whereby his Lordship dismissed the plaintiffs/Appellant’s Suit for want of diligent prosecution. Not satisfied with the ruling of the lower court, the Appellant with leave of this Honourable Court filed his Notice of Appeal containing three Grounds on the 17th day of October, 2007. For purposes of this judgment the Grounds of Appeal are reproduced hereunder as follows:-
GROUND 1:-
“The learned trial Judge erred in law in dismissing the appellant’s Suit even when the appellant’s Counsel was present in court.”
PARTICULARS OF ERROR IN LAW:-
i. The plaintiff’s evidence and those of his witnesses had not been completed before Han. Justice Olagunju, J. (as he then was) before he was elevated to the Court of Appeal.
ii. The plaintiff’s father who had earlier given his evidence died during the pendency of the suit.
iii. The present Plaintiff was later substituted for his late father.
iv. The plaintiff had all along appeared in court for his trial but the court did not sit.
v. The plaintiff’s counsel was present in court to explain the absence of the plaintiff on 4th May, 2006.
GROUND 2:-
“The learned trial Judge erred in law in dismissing the plaintiff’s suit,
WHEN,
i. Neither the defendant nor her Counsel was present in court on the 4th day of May, 2006.
ii. The decision of the learned trial Judge in dismissing the plaintiff’s suit was a violation of the plaintiffs’ right to fair hearing.
iii. The dismissal of the plaintiff’s suit was contrary to the provisions of the rules of court when neither the Defendant nor her Counsel was present in court.
iv. The decision of the learned trial Judge led to a grave miscarriage of justice.
GROUND 3:-
“The learned trial Judge erred in law in dismissing the plaintiff’s suit by not exercising her discretion judicially and judiciously.
PARTICULARS OF ERROR IN LAW:-
i. The discretion of a court must be exercised judicially and judiciously.
ii. The dismissal of the plaintiff’s Suit was a wrong exercise of judicial discretion.
iii. Most of the adjournments sought were at the instance of the court and defendant’s Counsel.
iv. The wrong exercise of the court’s discretion led to a grave miscarriage of justice.”
In line with the rules of this court the respective Counsel for the parties were ordered to file their Briefs of Argument and the Appellant’s Brief was filed on the 8th day of December 2006 whereas the Respondent’s Brief was deemed filed on 14/5/07 and having received the Respondent’s Brief, the learned Counsel for the Appellant filed a Reply Brief in respect of the argument proffered by Respondent’s counsel under Issue Number 2 at pages 8-9 of the Respondent Brief.
Upon further applications by way of motions originated by the Counsel to the parties they were granted leave to file their Amended Appellant’s and Respondent’s Briefs respectively on the 26th of September, 2007.
Arising from the three Grounds of Appeal aforementioned, the Learned Counsel for the Appellant Mrs. C. O. Roland Otaru formulated two issues couched in the following terms:
“I. Whether the refusal of the learned trial Judge to grant an adjournment to the plaintiff/Appellant’s counsel on 4th May, 2006 does not constitute a breach of the Appellant’s Right to fair hearing.
“II. Whether in view plaintiff’s/ Appellant’s of the antecedents of the case the learned trial Judge exercised his discretion judicially and judiciously in dismissing the plaintiff’s Suit.”
On the part of Learned Counsel for the Respondent two issues which were simply a juxtaposition of the issues distilled by the Learned Counsel for the Appellant were also formulated as follows: –
“(a). Whether the refusal of the Learned Trial Judge to grant an adjournment to the plaintiff/Appellant’s Counsel on the 4th day of May 2006 constitutes a breach of the Appellant’s right to fair hearing.
“(b). Whether in view of the antecedent of the Plaintiff/Appellant’s case, the Learned Trial Judge exercised his discretion in dismissing the plaintiff’s Suit.”
Arguing ISSUE NUMBER I (one) the Learned Counsel for the appellant alluded to the Ruling of the Learned trial Judge dismissing the case of the plaintiff at page II of the Record of proceedings and submitted that the learned trial Judge failed to take into consideration the antecedent and factual events of the case – the long and several adjournments before arriving at the decision to dismiss the plaintiffs case.
According to the learned counsel for the Appellant, the Appellant had been appearing in court (save for a few instances), since the suit was commenced before Hon. Justice Olagunju (as he then was) in 1995 and it was subsequently transferred to Hon. Justice Elelu – Habeeb before whom the case suffered several undue adjournments culminating in its eventual dismissal by the said trial Judge on the 4th of May, 2006.
He then contended that the refusal of the learned trial Judge to grant a further adjournment amounts to a breach of his fundamental right to fair hearing and an improper exercise of the court’s discretion by refusing to take into consideration the antecedent of the case that is the series of adjournments suffered by the case.
Citing the case of ALSTHOM S. A. VS. SARAKI & ORS (2005) ALL FWLR (pt.246) 1385 at 1399 on the improper exercise of the court’s discretion and Section 36 (1) of the 1999 Constitution, he maintained that the principle of fair hearing is fundamental to all court proceedings and procedures and like jurisdiction its absence vitiates the proceedings no matter how well conducted. In respect of the case at hand it was submitted that despite the presence of the Learned Counsel for the Appellant in court to explain the absence of the plaintiff/Appellant at the hearing of the case the Learned trial Judge still went ahead to dismiss the Appellant’s case in breach of his fundamental right to fair hearing and the principle of audi alteram partem.
Citing again the cases of MOBILE PRODUCING (NIG) UNLIMITED VS. MONOKPO (2003) 18 NWLR (pt. 852) 364; MOKWE VS. WILLIAMS (1997) 11 NWLR (pt. 528) 309 and BATISAN VS. OKUNNIGA (2005) ALL FWLR (pt.286) 809 he emphasized that the trial court did not take into consideration the provisions of section 36 (l) of the Constitution and the principle enunciated therein in spite the fact that the Appellant’s counsel sought for an adjournment on that day and that the court went ahead to dismiss the suit notwithstanding that a court is duty bound to consider and decide on the merit of every application brought before it no matter the perceived strength or weakness of such an application. Placing reliance again on the cases of AFRO CONTINENTALS LTD VS. COOPERATIVE ASSOCIATION OF PROFESSIONALS NIG. (2003) FWLR (pt.149) 1610, ADIGUN VS. A. G. OYO STATE (1987) 1 NWLR (pt.53) 678 Per ESO J.S.C. (as he then was), CEEKAY TRADERS VS. G. M. LTD (1992) 2 NWLR (pt. 222) 132; SALIU VS. EGEIBON (1994) 6 NWLR (pt.348) 23 at 40; ATANO VS. A. G. BENDEL STATE (1988) 2 NWLR (pt.75) 201.
Learned Counsel for the Appellant further contended that the proceedings of 14th May, 2006 before the trial Judge is a nullity and this court upon finding that there was a breach of the rule of natural justice in this case should grant a remedy.
Learned Counsel for the Appellant also alluded to the fact of the pendency of the Defendant/Respondent’s Counter-Claim as at the day the order of dismissal was made without calling on the Defendant to prove her Counter-Claim which could have afforded the Plaintiff/Appellant the opportunity to put forward whatever defence(s) he had against the Counter-Claim. This failure on the part of the Judge according to Counsel also amounted to a breach of fair hearing and principles of natural justice and the rule against bias and partiality ELIKE VS. NWANKWO ALA & ORS (1984) 12 S.C. 301; ISIYAKU MOHAMMED VS. KANO N. A. (1968) 1 ALL NLR 424, NTUKIDEM VS. OKO (1986) 5 NWLR (pt.45) 909; IKWEKI VS. EBELE (2005) ALL FWLR (pt.257) 1401 at 1426- 1427 and STATE VS. ONAGORUWA (1992) 2 NWLR (pt.221) 33 Per Karibi-Whyte J.S.C. were all cited to reiterate that a fair hearing of case consists of the whole hearing and a trial conducted according to all the legal rules formulated to ensure that justice is done to the parties.
From the foregoing authorities she urged us to resolve the first issue in favour of the Appellant.
In the Respondent’s Brief the Learned Counsel for the Respondent in respect of their Issue Number I referred to pages 77 and 78 where the Learned trial Judge gave the reasons for refusing the application for adjournment by the plaintiff’s counsel which was that the plaintiff’s witnesses were not in court and that the plaintiff was unable to proceed with the matter.
On the submission by the Learned Counsel for the Appellant that the dismissal of the case by the learned trial Judge was a breach of his right to fair hearing, the Learned Counsel for the Respondent conceded that Section 36 (1) of the 1999 Constitution provides for fair hearing to a party within a reasonable time which presupposes that the court has the duty to give each of the parties reasonable opportunity to be heard. He however submitted on the authority of BILL CONSTRUCTION CO. LTD VS. IMANI & SONS LTD (2007) 19 NWLR (pt.1013) pages 12-14 Per Onnoghen J.S.C. that where such an opportunity has been given which the party fails to utilize, such a party cannot be heard to complain of the denial of his right to fair hearing.
Citing again the cases of OKEKE VS. PETMAG NIGERIA LIMITED (2005) 4 NWLR (pt.995) at 245 and KADUNA ILES LTD VS. UMAR (1995) 1 NWLR (pt.319) 143 he maintained that the right to fair hearing within a reasonable time imposes a correlative duty on the court not to allow itself to be bogged down by frivolous complaints as the court has to hear the case within a reasonable time and that the Defendant is also entitled to fair hearing and would have been denied same if he is unable to present his defence within a reasonable time due to protracted delay by the plaintiff.
On the question whether the Appellant as plaintiff was given an opportunity of being heard, learned counsel for the Respondent noted that from the Record of proceedings it would be seen that most of the adjournments, were at the instance of the plaintiff. He enumerated the instances of adjournments sought and granted the plaintiff/Appellant by the court culminating in the eventual striking out and final dismissal and contended that from those illustrations it does not lie in the mouth of the Appellant to complain of not being given the opportunity to be heard.
He referred further to the dictum of ACHIKE J.C.A. (as he then was) in the KADUNA ILES LTD VS. UMAR case (Supra) to submit that the trial Judge was right in dismissing the case after stating that the court would not dance to the whims and caprices of counsel who are not prepared to do their work diligently.
Placing reliance again on the cases of MFA VS. INONGHA (2005) 7 NWLR (pt.923) 1; OKON UDO AKPAN VS. THE STATE (1991) 3 NWLR (pt.181) 646 at 662 para. A per Olatawura J.S.C. and ALSTHOM S. A. VS. SARAKI & OTHER (2005) ALL FWLR (pt. 246) 1385 at 1399 he submitted that the grant of an adjournment is at the discretion of the court which discretion should be exercised judicially and judiciously taking into consideration the antecedents of the case and the fact that justice should be done to both parties without undue delay of the hearing of the case.
He asserted that the reasoning in the ALSTHOM VS. SARAKI’S case supports the Respondent in this appeal as the learned trial Judge took into consideration the antecedents of the case and that the plaintiff was given more than a reasonable time as provided for in section 36 (1) of the 1999 Constitution, to prove his case.
Accordingly, he urged us to hold that the court below was right in its decision as the plaintiff/Appellant’s cannot be heard to complain of breach of his fundamental human right to fair hearing.
ISSUE NUMBER 2: “WHETHER IN VIEW OF THE ANTECEDENTS OF THE PLAINTIFF’S/APPELLANT’S CASE THE LEARNED TRIAL JUDGE EXERCISED HIS DISCRETION JUDICIALLY AND JUDICIOUSLY IN DISMISSING THE PLAINTIFF’S SUIT.”
On this issue the learned Counsel for the Appellant recalled the antecedents of the case from its commencement before Hon. Justice Olagunju (as he then was) on the 19th of May, 1995, and Appellant’s inability to prosecute same before its eventual dismissal by Elelu- Habeeb J. on the 4th of May, 2006.
It was then submitted that if the learned trial Judge had taken into consideration the several judicial set backs suffered by the plaintiff/Appellant, she would have at least struck out the case of the plaintiff rather than an outright dismissal not withstanding his earlier order of striking out made on the 21st January, 2005. She conceded that the decision to strike out or dismiss the suit was at the discretion of the court but such discretion is not exercised in vacuum and placing reliance on the Kwara State High Court (Civil Procedure) Rules 2005 which is now applicable to the case in spite of its being filed in 1995, contended that by the provisions of Order 39 Rules 2 and 4 of the Rules title conditions as to when a case can be dismissed by the court below have been set out and that based on the said provisions before a case is struck out two conditions must have been fulfilled.
Similarly learned Counsel for the Appellant further posited, a claimant’s Suit cannot be dismissed by the court unless and until the conditions stipulated by Rule 4 Order 39 are met adding that from the provisions of the above Rules, the conditions stipulated were not met both on the 21st January, 2005 and on the 4th of May, 2006 when His Lordship eventually dismissed the Suit. She further noted that a cursory look at the proceedings of the dates the Suit was either struck out or dismissed would reveal that the 21st January 2005 was the first day the plaintiff was unavoidably absent and the court hastily struck out his claim, without any evidence on record that the Counter-claim was withdrawn by Defendant.
Again, on the 4th day of May, 2006, notwithstanding the presence of the plaintiffs Counsel in court, the learned trial Judge went ahead to dismiss the plaintiffs claim in disobedience to the rules, she further contended.
Citing again the cases if ALSTHOM S. A. VS. SARAKI Supra, CEEKAY TRADERS LTD VS. GENERAL MOTORS CO. LTD (1992) 2 NWLR (pt.22) 132; and RASAKI A. SALAU VS. MADAM TOWOKO EGEIBON (1994) 6 NWLR (pt.349) 23 it was conceded that the grant of an adjournment was at the discretion of the lower court and that for an appellate court to interfere in such exercise it must be shown that discretionary power was wrongfully exercised.
Making references again to what transpired in the court below on the 4th day of May, 2005 and the reason given by the court in dismissing the plaintiffs claim, the learned Counsel again insisted that the trial court did not exercise its discretionary powers judiciously and judicially in that it would have exercised patience before closing the plaintiffs case for him or in the alternative call on the Defendant to open her case after the learned counsel for the plaintiff who was present in court had given cogent reasons for her inability to proceed with the case in the absence of the plaintiff.
It was further submitted that a further adjournment would have met the justice of the case and that the exercise of the court’s discretion not to adjourn the case was not founded on the facts and circumstances of the case. UNILAG VS. OLANIYAN (1985) 1 NWLR (pt.1) 156 was relied upon to call upon this court in its appellate jurisdiction to interfere with the exercise of the lower court’s discretion and resolve Issue Number 2 also in favour of the Appellants. After enumerating the events that took place from the 19th of May,1995 when the suit was filed and the antics of the Respondent before the case was eventually dismissed on the 4th day of May, 2006, the learned counsel for the Appellant urged us to allow the appeal on all the grounds and order that the case be restored back to the cause list and the case transferred to be completed by another Judge.
In his reaction the learned Counsel for the Respondent also recalled that Counsel for the plaintiff on the date the plaintiff/Appellant’s case was dismissed stated that the witness for the plaintiff was not in court and as such could not proceed with the case and submitted that the trial court was right in dismissing the Plaintiff’s case as the court was not prepared to wait for counsel who were not prepared to do their work diligently. He noted that the inability of the plaintiff to proceed with the trial on the said date tantamount to the plaintiff and counsel not being in court and the court rightly dismissed the suit which was slated for hearing for want of diligent prosecution according to the rules.
On the issue of the counter-claim of the Defendant which the court did not ask the Defendant to proceed with same, learned counsel for the Respondent further submitted that a counter-claim is a separate action, independent of the plaintiff’s claim and the Defendant being a plaintiff and plaintiff a Defendant in the circumstance, the Defendant/Respondent should be allowed to pursue his counter-claim and it is not the plaintiff/Appellant’s place to comment on the trial court’s refusal to call on the Respondent to prove his said counter-claim.
According to the learned Counsel for the Respondent, the Defendant may, according to the Rules, abandon its counter-claim and where she refuses to proceed with the said Counter-claim, it is deemed abandoned. In any case, learned counsel contended, this issue of counter-claim is irrelevant for the purpose of this appeal.
As for the contention by the learned counsel for the appellant that the trial judge failed to take into consideration the antecedents of the case, learned counsel for the respondent urged us to discountenance the submission because there is nothing from the ruling of the court that refers to the conduct of parties which is being challenged. According to the learned Respondent’s counsel, the matter started de novo before Hon. Justice Elelu-Habeeb that gave the Ruling and in dismissing the case the learned trial Judge took into consideration the attitude of the Appellant to the case before him and for these reasons he maintained that the argument does not relate to issues formulated from the grounds of Appeal.
References were made to OSONDU VS. FRN (2000) 12 NWLR (pt.682) 483; ONUAGULUCHI VS. NDU (2000) 11 NWLR (pt.679) 519 and AIGBADON VS. THE STATE (1999) 1 NWLR (pt. 586) 297 paras. E-G to submit that it is not open to any party to raise any point or issue in the Brief of Argument matters not predicated under the grounds of Appeal and not postulated under the issues for determination.
From the foregoing, he submitted that the trial Judge exercised its discretionary power judicially and judiciously when on the 4th of May, 2006, he dismissed the plaintiff/Appellant’s case, having given the Appellant (15) fifteen opportunities to present his case but to no avail.
I have taken a cursory look at the issues formulated by Learned Counsel in their respective Briefs of Argument and am of the considered view that there has been a mix-up in the formulation of issue Number I by the learned counsel for the appellant. In my humble view, I shall adopt as Issue Number I, issue (a) as formulated by the learned counsel for the Respondent to cover only Ground I of the Grounds of Appeal and Issue 2 of the learned counsel for the Appellant to cover Grounds 2 and 3 thus:-
“ISSUE 1 : – WHETHER THE REFUSAL OF THE LEARNED TRIAL JUDGE TO GRANT AN ADJOURNMENT TO THE PLAINTIFF/APPELLANT’S COUNSEL ON THE 4TH DAY OF MAY, 2006, CONSTITUTES A BREACH OF THE APPELLANT’S RIGHT TO FAIR HEARING? (GROUND 1)
“ISSUE 2: WHETHER IN VIEW OF THE ANTECEDENTS OF THE PLAINTIFFS/APPELLANT’S CASE THE LEARNED TRIAL JUDGE EXERCISED HIS DISCRETION JUDICIALLY AND JUDICIOUSLY IN DISMISSING THE PLAINTIFF’S SUIT? (GROUNDS 2 & 3)”
ISSUE NUMBER I: –
There is no doubt that Counsel on both sides have rightly submitted that Section 36 (1) of the Constitution of the Federal Republic of Nigeria 1999 guarantees a party’s right to fair hearing in the following terms:-
“36-(1). In the determination of his Civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or tribunal established by law and constituted in such a manner as to secure its independence and impartiality.”
This section of the Constitution has been the subject of a plethora of decisions by our Apex Court. See the locus classicus of ADIGUN VS. A. G. OYO STATE (1987) 1 NWLR (pt.53)678 at 72 Per Eso J.S.C.;
AFRO CONTINENTALS LTD VS. COOPERATIVE ASSOCIATION OF PROFESSIONAL, INC. Supra; ELIKE VS NWANKWOALA & ORS. Supra; and MOHAMMED VS. KANO N.A. (1968) 1 ALL NLR 424.
In the recent case of BILL CONST. CO. LTD. VS. IMANI & SONS LTD. (2007) 19 NWLR (pt.1013) 1 at 12; Onnoghen J.S.C. once more restated the scope of this section of the Constitution which is a replication of section 33(1) of the 1979 Constitution that was applicable to the case in question and fell for interpretation thus:-
“The right to fair hearing under Section 33(1) of the 1979 Constitution entrenched the common law concept of natural justice with its twin pillars, namely:
(a) That a man shall not be condemned unheard, or what is commonly known as ‘audi alteram partem’; and
(b) That a man shall not be a Judge in his own cause, or ‘nemo judex in causa sua.’
“The Section conferred on every citizen who had any grievance the right of access to the courts and left doors of the courts open to any person with the desire to ventilate his grievances, and compelled the court that would determine the rights of such person to accord the person a fair hearing. (KENON VS. TEKAM (2001) 14 NWLR (pt.732) 12; DEDUWA VS. OKORODUDU (1976) 9-10 S.C. 329 and MOHAMMED VS. KANO N.A. (1968) 1 ALL NLR 424.”
The Learned Justice also opined that it is the person who alleges (in this case the Appellant) that there is a breach of any of the rules of natural justice that has the burden to prove how his fundamental right to fair hearing has been breached.
In this appeal the gravamen of the Appellant’s case is the refusal of the learned trial Judge to grant an adjournment in spite of the presence of Learned Counsel who explained to the court the inability of the trial to proceed as stemming from the absence of the plaintiff and witnesses. Since part of the Appellant’s grouse with the decision of the lower court is that the learned trial Judge did not take the antecedents of the plaintiff’s case into consideration, it is only fair and just to have recourse to the record of proceedings in order to find out whether the assertion of the Appellants Counsel is well founded.
A careful perusal of the Record of proceedings certified and dated 17/11/2006 would reveal that the plaintiff (now Appellant) commenced his suit by writ of summons on the 19th of May, 1995 before Hon. Justice S. A. Olagunju (as he then was) and by his statement of claim which he later amended claimed against the defendant as follows: –
“(1). A declaration that the detention of the plaintiff’s original copy of certificate of occupancy No- KW 3663 dated 3rd day of July, 1980 covering the plaintiff’s property situate, lying and being at No. 232, Abdul Azeez Road, along Lagos Road, Saw Mill Area, Ilorin by the defendant since 1990 in spite of repeated oral and written demands made by plaintiff to the defendant to release same to the plaintiff illegal, wrongful, unconstitutional and same has adversely affected the plaintiff’s business.
(2). AN ORDER for release of the said original copy of the certificate of occupancy No. KW 3663 dated 3/7/80 to the plaintiff by the Defendant forthwith.
(3). The sum of N3,000,000.00 (Three Million Naira only) against the Defendant being special and general damages suffered by the plaintiff as a result of the illegal and/or wrongful detention of the said certificate of occupancy No. KW. 3663 issued by the Kwara State Government to the plaintiff.”
The Defendant on her part filed her statement of Defence and Counter-Claim on the 20th day of June, 1995 and by a motion sought leave to file same out of time on the 28th day of September, 1995. Plaintiff also filed a Reply to the Defendant’s statement of Defence and Counter-claim on the 20th October, 1995.
Subsequently the Defendant brought a motion to amend the Statement of Defence in May, 1996. See the motion dated 8th day of May, 1996 and filed same day. However, hearing before Olagunju J. (as he then was) commenced on the 23rd day of January, 1996. There after the case was adjourned at the instance of the Defendant/Respondent’s counsel on the 11th of December, 1996; 6th of March, 1997, 19th March, 1997 and then to 10th April, 1997.
On the 15th of December 1997 however, the plaintiff/Appellant closed his case and the case was adjourned to 12th February, 1998 for defence.
On the said 12/2/98 the Defendant’s Counsel was absent in court but she subsequently opened her case on the 30th April, 1998. Between the 13th and 26th of October, 1998 the case was also adjourned because Counsel for the Defendant could not go on and the case was subsequently adjourned to the 29th November, 1998.
In the month of November 1998, the learned Justice S. A. Olagunju was elevated to the Court of Appeal and the case was reassigned to the Honourable Justice Adebara and on the 21st day of May, 1999 following the request of Roland Otaru Esq. (as he then was) for the case to be transferred from Honourable Justice Adebara’s court by reason of the Judge being then in the Chambers of Tunji Arosanyin & Co before appointment and indeed participated in the proceedings, the learned Justice Adebara returned the case to the Honourable, the Chief Judge of Kwara State for reassignment.
On the 12th day of July, 1999 the case was reassigned again to Honourable Justice M, O. Adewara who adjourned same to 12th of October, 1999 and from that date it would appear that hearing of the case was kept in abeyance until the 16th April 2002 when the case came before Honourable Justice R. O. Elelu-Habeeb.
On that day Mrs. Otaru intimated the court that the case was for mention it being transferred from Justice Adebara’s court and that she had earlier filed an application on Notice in that court dated 6/7/2001 but that the Defendant was yet to be put on Notice. She applied for a date for the hearing of the application which the court obliged and adjourned the case to the 11th of June, 2002 for hearing of the motion.
On the 11th of June, 2002 when the case was called the plaintiff and Defendant were absent but Mr. Otaru appeared for the plaintiff while the Defendant who was unrepresented wrote to the court on her inability to be present and suggested dates for hearing the case. The case was accordingly adjourned at their instance to the 24th day of July, 2002.
On 24/7/2002 Parties were again absent. Miss M. O. Ekundayo held Mrs Otaru’s brief for the plaintiff while Rilwanu O. Ibrahim, Esq. appeared for the Defendant. The Application pending before the court was to be moved but counsel for the Defendant said they would like to raise an objection thereto.
Counsel for the Defendant also sought for a date to enable him file a counter affidavit against the application but the court overruled the learned counsel for the Defendant granted the plaintiffs application and adjourned the substantive case to the 29/10/2002 for hearing.
It would appear again that the court did not sit from 29/10/02 until 16/1/2003 and on that date parties were again absent with Mrs. C. O. Otaru appearing for plaintiff and Rilwanu Ibrahim Esq. for the Defendant. Mrs Otaru informed the court that the case would not go on because they (plaintiffs) had not filed their Amended Statement of Claim and the writ of summons and she asked for another date for hearing and the court obliged the adjournment to 13/3/03 with costs of N300.00 in favour of the defendant. Again the case did not go on from the 13/3/03 until 16/7/03 where in the absence of the plaintiff and Defendant Obafemi Oyetunji appeared for the plaintiff while the Defendant was unrepresented and Oyetunji Esq. acknowledged the fact that the case was for hearing but intimated the court to give them another date for Report of settlement which the court again obliged them and adjourned to 21/8/03 for Report of settlement.
It would appear again from the Records that on the 21/8/2003 the court did not sit and the case was adjourned to the 24th day of September, 2003. Parties were again absent but Babaniyi Folorunsho Emmanuel, Esq. appeared for the plaintiff while the absent Defendant was unrepresented. On that day the Learned Counsel for the plaintiff tried to hold brief for the absent Defendant and her counsel and the court ruled that because of the series of adjournments and transfers suffered by the case if by the next adjourned date the parties could not settle amicably, the case would be struck out. She however adjourned the case to 13/11/2003 for Report of settlement.
On the 13/11/2003 parties were again absent. Defendant was unrepresented.
However, Counsel for the plaintiff Femi Oyetunji Esq. informed the court that settlement was in progress and asked for a further adjournment for Report of settlement. The case was again adjourned to the 9th of March, 2004 for Report of settlement.
There is no indication as to whether the court sat on the said 9th of March, 2004 but on the 28th of April 2004, parties were again absent with Damola, Adeola (Miss) for the plaintiff and Defendant unrepresented, yet upon the request of Counsel for the plaintiff the case was adjourned to the 6th of July, 2004, and 18th of November, 2004 when plaintiff for the first time appeared in court. On that day Femi Oyetunji Esq. for the plaintiff, with him Mr. Eyitayo Fatogun while Rilwanu Ibrahim Esq was for the Defendant agreed that pleadings had been exchanged and the case was adjourned by their consent to 25/1/2005.
On that said 25/1/2005 Parties were again absent. Rilwanu Ibrahim Esq. who appeared for the Defendant while the absent plaintiff was unrepresented, prayed the court to strike out the case for want of diligent prosecution which the court obliged and accordingly struck out the case. The case was however relisted on the 8th day of March, 2005 with cost of NI,000.00 in favour of the Defendants and adjourned to the 26th of April, 2005.
On that 26th of April 2005, the case could not be heard because even though the plaintiff and his counsel were present in court, they complained of hindrances that forestalled the hearing – that the Exhibits they needed for the prosecution of the case were in the custody of the Registrar of the High court who had been issued subpoena to that effect. The plaintiff asked for more dates to enable them sort out things and the court granted them another adjournment to 7/6/2005 with N1,000.00 costs in favour of the Defendants.
On the 30th of November 2005 when the case came up for hearing the plaintiff was present with his Counsel Mr. 0lasunkanmi Erinfolami and Olasunbo Jaiyeola (Miss) while the Defendant was absent and unrepresented. The plaintiff’s Counsel expressed their readiness to go on but asked for another date because according to her, the defendant and counsel were absent. The court again adjourned the case to the 24th of January, 2006 but on that date the excuse of the plaintiff’s counsel who was present with the plaintiff in court was that their witness was an official witness who was not available.
Defendant’s Counsel O. G. Kuranga Esq. consented with Miss Jaiyeola’s application on behalf of the plaintiff for an adjournrnent which the court again obliged and adjourned the case to the 14th of March, 2006, and subsequently to the 4th of May, 2006.
On that day parties were absent Miss Jaiyeola appeared for the plaintiff and told the Court again that their witnesses were not in court and that in the circumstance they were constrained to seek for an adjournment and “the last adjourned date for hearing.”
The Learned trial Judge in her considered Ruling which catalogued the chequered history of the case and series of adjournments of the case which were all at the instance of the plaintiff thereby stultifying the hearing of the case held at page II (78) of the Record of proceedings dated and certified on the 17/11/2006 in part: –
“Application to strike out was granted by the Court.
This was on 25/6/05. But on 8/3/05, the plaintiff brought in an application to re-list. The case was re-listed and a date for hearing was once again fixed. Case was fixed to 26/04/2005.
Both Learned Counsel for the parties were in Court.
The plaintiff represented by Miss. Jaiyeola informed the court that hearing would not hold because they had some hindrances that forestall the hearing.
Another adjournment for hearing was granted with costs. On 30/11/05, 24/1/06, the case came up for hearing but witnesses for plaintiff were not available. The same thing has repeated itself this morning. This case is long overdue for outright dismissal because this court has been taken for granted for too long. This is a 1999 case and this case ought not to be seen in the court again.
The court is not to be dancing to the whims and caprices of counsel who are not prepared to do their work diligently. This case is hereby dismissed in it’s entirety.” Now from the catalogue of adjournments in this case right from when it was transferred to His Lordship Elelu-Habeeb’s Court can we with all sense of justice and sincerely say that the learned trial Judge breached any of the fundamental rules of Natural justice and/or denied the plaintiff/Appellant of his right to fair hearing?
The Learned Counsel for the Appellant has cited several cases on Natural justice and the holding of the Courts that natural justice demands that a party ought to be heard before the case against him is determined as even God gave Adam an oral hearing despite t e evidence supplied by his act of covering his nakedness and that once the proceeding of a court is conducted in breach of the rules of natural justice that proceeding is a nullity no matter how well conducted. See ADIGUN VS. A.G. OYO STATE Supra, AFRO CONTINENTALS LTD VS COOPORATIVE ASSOCIATION OF PROFESSIONAL INC. Supra.
The Learned Counsel for the Appellant h s also cited CEEKAV TRADERS VS. G. M. LTD (1992) 2 NWLR (pt.220) 132; SALIU VS. EGBEDION (1994) 6 NWLR (pt.348) 3 at 40 and ATANO VS. A.G. BENDEL STATE (1988) 2 NWLR (pt.75) 2001.
These cases with the greatest respect were decided on their peculiar facts and circumstances and on solid legal principles but as far as this Appeal is concerned any reasonable person going through the record of proceedings of the Lower Court would agree that the Learned trial Judge did even handed justice to the parties and indeed before the date in question gave the Learned Counsel for the Appellant and his client enough opportunities to state his case.
As the Learned Counsel for the Respondent aptly observed citing the case of BILL CONSTRUCTION CO. LTD VS. IMANI & SONS LTD (2006) 19 NWLR (pt.1013) at page 1 particularly at 14 paragraphs C-A per Onnoghen J.S.C. “It is settled law that where a party is given ample opportunity to present his case within the confines of the law, but he chooses not to utilize same, he cannot be heard to complain that his right to fair hearing has been breached.”
The position taken by Onnoghen J.S.C. echoed by another of our most erudite Justices of the Apex Court, Tobi, J.S.C., in the case of AKINDURO VS. ALAY (2007) ALL FWLR (pt.381) 1653 at 1672-1673 Paras H- A when he stated inter-alia:
“I have said it in the past and I will say it again that the duty of the court is to create the environment for fair hearing and it is the decision of a part to take advantage of the environment created. A party cannot blame the court if he fails to take advantage created by the court. I see such a situation in this matter. The appellant should not blame the Court of Appeal. He has himself to blame.”
In our instant appeal on a careful perusal of the record of proceedings right from the date the case was transferred to Elelu-Habeeb J; the learned trial Judge had demonstrated absolute transparency, extreme patience and magnanimity to an otherwise unserious and vacillating plaintiff nay Counsel whom she obliged several adjournments which culminated in the eventual dismissal of the Plaintiff’s Claim for want of diligent prosecution.
It smacks of crass indolence and indeed an abuse of court process for a plaintiff to file a suit like this one which has become an irritant not only to the Defendant but to the court without providing same and then seek incessant adjournments to the detriment of the defendant and court’s judicial time and energy.
Accordingly, the plaintiff who is the architect of his fortune in this case should not turn round to blame a court which encourages him to get justice but his unseriousness refusal of the application for adjournment and the case.
I agree intoto with learned Counsel for the Respondent and the authorities of OKEKE VS. PETMAG NIGERIA LTD (supra), KADUNA ILES LTD VS. UMAR Supra and indeed the dictum of Achike J.C.A. (as he then was) that the right to fair hearing conceives of a correlated duty on the court to hear the case within a reasonable time and not allowing itself to be bogged down by frivolous complaints from the plaintiff. It also entails that justice be done the Defendant by affording him the opportunity to proffer his defence in time without the court and the machinery of Justice being held to ransom by the whims and caprices of the plaintiff and his Counsel.
As the learned Counsel for the Respondent ably observed a plaintiff who was obliged fifteen adjournments for hearing all at his instance cannot with the greatest respect complain of lack of fair hearing.
Even on the date in question Counsel was heard in her application for adjournment so that the case of MOBIL PRODUCING (NIG) UNLIMITED VS. MONOKPO (2003) 18 NWLR (pt. 852) 346; MOKWE VS. WILLIAMS Supra and BATISTAN S. OKUNNIGA (2005) ALL FWLR (pt.286) 809 and the dictum of Muhammed J.S.C. with the greatest respect are inapplicable to this case.
The court in this case heard the Learned Counsel for the Appellant on the application for adjournrnent. If the hindrance of the plaintiff on the last adjourned date was an official witness, what then happened to the Plaintiff? Must there be a particular mode of calling witnesses knowing full well that the plaintiff who brought his case ought to prove the case, otherwise the claim would be dismissed?
In MFA VS. INONGHA (2005) 7 NWLR (pt.923) 1 and OKON UDO AKPAN VS. THE STATE (1991) 3 NWLR (pt.181) 646 at 662 both the Court of Appeal and the Supreme Court had held that the grant of an adjournment is at the discretion of the court which discretion must be exercised judicially and judiciously under certain rules.
Where a refusal of adjournment would cause or result in a serious injustice to the party requesting it, the adjournment should only be refused if that is the only way to do justice to the other party, it was further held. See ACKA VS. AKURE (1987) 1 NWLR (pt. 7) 74; ADEBOANU MANUFACTURING INDUSTRIES (NIG.) LTD. VS. AKIYODE(2000) 13 NWLR (PT.685) 576.
The courts have also held that where an application is made for adjournment, the court should bear in mind the requirement that justice should be done to both parties and that it is in the interest of Justice that the hearing of a case should not be unduly delayed. See Order 39 Rule 7 and the cases of HINCKLEY & ORS. VS. FREEMAN (1941) 32 and A.C.B. LTD. VS. JOSEPHAT AGBANYIN (1960) 5 F.S.C.
As the Learned trial Judge rightly noted, that was a case that had lasted in the court below for eleven years without hearing and it was long overdue for dismissal because the court had be taken for granted for too long before rounding up, the learned Counsel for the Appellant has also complained of the dismissal of the plaintiff’s claim without calling on the Defendant to prove her counter-claim. It must be listed straight away that the plaintiffs claim would stand and fall on its own merit or right and it is independent of the Defendant’s counter-claim. Each party would be expected to succeed on the strength of his/her case and it is not the business of the plaintiff whether the Defendant abandoned her Counterclaim or not.
On the whole, I resolve issue number I (on) against the appellant as the learned trial judge considered the antecedents of the plaintiff’s case and gave him a fair hearing before refusing the adjournment.
Ground I of the Appeal shall therefore fail.
ISSUE NUMBER 2:
On this Issue the contention of the Learned Counsel for the Appellant is that in view of the antecedents of him plaintiff’s case the learned trial Judge did not exercise her discretion judicially and judiciously in dismissing the plaintiff’s case.
Learned Counsel for the Appellant’s position is anchored on the fact that the plaintiff could not prosecute his case before its eventual dismissal owing to judicial set backs suffered for period of eleven years which set backs have been traced to the several adjournments at the instance of the Defendant/Respondent and the transfers to different Judges after the elevation of Honourable Justice S. A. Olagunju (as he then was). I must say here that there is no doubt that the plaintiff’s case suffered set backs before it was eventually transferred to Hon. Justice Elelu-Habeeb’s court. It would also be recall that the plaintiff had closed his case on the 15th of December, 1997 and the case was adjourned to 12th February, 1998 for the Defendant to open her case but she could not go on until the case was transferred to Justice Elelu-Habeeb.
Be that as it may, our concern here is not with what transpired before the past Judges, as the case started de novo before Honourable Justice R. O. Elelu-Habeeb. We therefore ought to consider the antecedents of the case from when that case commenced anew before the said Judge.
As I held before, the plaintiff was given every opportunity to prove his case but he was always complaining of witnesses. On the 4th of May, 2006 no reasonable excuse was given as to why the plaintiff was not in court to testify even if other witnesses – be they official or otherwise -were absent. The Learned counsel did not also tell the court that the documentary Exhibits which were in the custody of the Acting Chief Registrar had not been retrieved. In fact on the 30th day of November, 2005 the Learned Counsel for the plaintiff had created the impression on the court that they were ready for the case to be heard but gave the excuse that since the defendant and her counsel were absent they were constrained. See Order 39 Rule 3 which would have necessitated the plaintiff to go on with the case. They (Counsel) sought for adjournment which the court granted them to the 24th of January, 2006. On that next date they purported that their “list witness is an official witness but he is not available. We urge the court to give us another date for hearing,” and the court adjourned the case to 14/3/2006 and subsequently to 4/5/2006- almost two months interval – only for the plaintiff to absent himself again along with his witnesses.
I think that the court over-indulged the plaintiff and ought to dismiss his claim particularly as it had earlier struck out the case and granted an application to re-list same, all things being equal.
This brings us to the crux of this issue which eventually turns on the applicability and interpretation of Order 1 Rule 1 and 4 and Order 39 Rules 2 and 4 of the Kwara State High Court (Civil Procedure) Rules)2005.
Order 1 Rule 4 (1) provides that: – “These Rules shall apply to all proceedings including all part heard matters in respect of steps to be further taken in such causes and matters.”
On the other hand, Order 39 which governs proceedings at trial, by Rule 2 thereof states thus:-
“When a cause on the Weekly Case List has been called for hearing and neither party appears, the Judge shall unless he sees good reason to the contrary strike out the cause.”
Under Rule 3: “when a cause is called for hearing if the claimant appears and the Defendant does not appear, the claimant may prove his claim, so far as he burden of prove lies upon him;” and by Rule 4 thereof:
“when a cause is called for hearing, if the defendant appears and the claimant 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 upon him.”
Without engaging in any legal gymnastic or bothering ourselves with interpretational rules, the words of the rule are simple and straight forward and we shall accord them their ordinary and natural meanings. It seems to me that from the foregoing provision of the Rules it is clear that the scenarios created in Rules 2,3, and 4 did not exist on the 4th day of May 2006 when the case was dismissed the conditions under Rule 4 which ought to apply when the case was dismissed was not fulfilled because in the first place, even though the plaintiff was absent he was represented by Counsel and could not have been said to be absent in court,
Secondly the condition that it is only where the Defendant appears in the absence of the plaintiff that the said Defendant shall be entitled to judgment dismissing the action, was also no fulfilled since neither
defendant nor her Counsel was present in court, Again, even if the Defendant were to be present in court, since he had a counter-claim he had the option to prove such counter-claim so far as the burden of proof lay on him.
In sum, the effect of the provisions of the rules above quoted is that where a default of appearance is by the Defendant only, the plaintiff may prove his claim so far as the burden of proof his upon him.
Where the plaintiff however fails to attend, the case may be struck out except there is cogent and compelling reason not to do so. If parties are absent, the same consequence may follow and where the defendant fails to appear but the plaintiff appears, the case may proceed except the absence of the Defendant is sufficiently explained. See U.A.C. (TECH) LTD. VS. ANGLO CANADIAN CEMENT LTD (1966) NWLR 349 at 350 where it was held that a dismissal as stipulated in Rule 4 where the plaintiff does not appear in effect means a striking out since the suit can be re-listed.
Before rounding up it is pertinent to note that in each of the Rules relating to appearance of parties, a party is not bound to appear in person in order to comply there with as appearance by Counsel is enough.
This position of the law was enunciated in KEHINDE VS. OGUNBUNMI & OTHERS (1968) 1 NMLR 37 where it was held that a ‘party’ in Rule 2 means the party in person or by legal practitioner representing him. Also under Rules 3 and 4 the terms “claimant” of “plaintiff” and “Defendant” mean the claimant or Defendant in person or their counsel. See UMOKORO UJIKO ITSEKIRI COMMUNAL LANDS TRUSTEES & OTHERS (1991) 2 NWLR 150, at 174-175 S.C. In BRITISH & FRENCH BANK LTD VS. EL-ASSAD (1967) NWLR 40 the court held that a plaintiff appears in court where, he is personally absent in court but nonetheless represented by his counsel for it is not in the spirit and meaning of the provisions the Rules to dismiss the action of parties, who, though absent, are represented by legal practitioner present in court, unless it be shown that the absence was deliberate and intended to cause unnecessary delay in the prosecution of the case. See further the case of N.B.C.I. VS. M.G.I. CO. LTD.(1992) 2 NWLR 71 at 83.
The fact that there is no rule of practice that requires a plaintiff in a Civil Suit to appear in person to prove his case if he can otherwise do so and that there is no rule which compels a defendant to appear personally in court and testify before he may successfully defend an action against him has been underscored by the Supreme our in the case of NEWSPAPER CORPORATION VS. ONI (1995) 1 S.C.N.J. 218 at 239-240.
Plaintiff or defendant may prove his case without physically appearing to testify in court and judgment in appropriate cases may be entered on the pleadings only so long as they are ably represented by Counsel. See NEWSPAPER CORPORATION VS. ONI Supra.
However, it should be noted that there may be difficulties inherent in a situation where in order to succeed a plaintiff or claimant’s evidence is necessary. In such a case (as in our instant case) where Counsel was present but could not go on with the case, it was held that the presumption is that the plaintiff was absent from court and that on the failure of the plaintiff to appear, it is incompetent for the court to dismiss the Suit (see ABIDOGUN VS. AROWOMOKUN (1990) 6 NWLR 619). (See Order 39 Rule 2) as the proper Order is that of striking out.
However in OPEOLUWA ALAKIJA VS. A. B. ADEBAYO CCHCJ/5/74/647, the court held that a person who appeared by counsel or by an attorney or by a next of friend, if an infant or lunatic cannot, complain of a judgment being obtained in his absence.
Now what should have been the proper approach in this case where the court refused to postpone or adjourn the case in the exercise of its undoubted discretion under Order 39 Rule 7 of the Rules but went on to dismiss the plaintiff’s Suit. writers and judicial authorities are of the view that where an application for postponement or adjournment is refused, the party applying must be called upon by the trial court to proceed with the case. This position was endorsed by the Supreme Court in the celebrated case of CEEKAY TRADERS LTD VS. GENERAL MOTORS CO. LTD & 2 ORS (1992) 2 NWLR (pt. 222) 132 where the emeritus Kawu J.S.C. quoted with approval the commentary at page 456 paras. 41.19 of Aguda; “Practice and Procedure of the Supreme Court, Court of Appeal and High Courts of Nigeria (1st Edition) which is to the effect that if an application for postponement is refused the party applying must be called upon by the trial Judge to proceed with his case and that if the party is the plaintiff and he is unable to proceed, the proper order for the Judge to make is one of striking out the suit if he has led no evidence at all.
If he has led some evidence and there exists a possibility that if he were to complete his evidence he might have made no case, then the court may also order a striking out. See IZIEME VS. NDIOKWU (1976) 1 NMLR 280. On the other hand, if has led some evidence and there is nothing to show that any further evidence may improve his case to a sustainable level then an order of dismissal may be made. See GEORGE AKINWADE JONES & ANOR VS. H.S.A. THOMAS & ORS (1962) L.L.R.9.
In the cases of ILORA & ANOR VS. OJUGBELI DEI & ANOR (1971) 1 NMLR 5; HARRODS LTD VS. ANIFALAJE (1986) 5 NWLR 603; and UMARCO. VS. PALPINA (1986) 2 NWLR 65; it was variously held that without ruling on an application for adjournment a trial court cannot proceed to give judgment in the case as the procedure relating to discontinuance is not applicable in this circumstance.
Finally in OKORODUDU VS OKOROMADU (1977) 3 S.C 21 and NWACHUKWU VS. EZE (1955) 15 WACA 36 both the Supreme Court and West African Court of Appeal opined that it is only after the plaintiff has refused or has been unable to proceed with his case that the court can order a dismissal or striking out.
Thus in the CEEKAY TRADERS LTD VS. GENERAL MOTORS CO. LTD. Supra Karibi-Whyte; Kawu and Belgore J.J.S.C. (as they were then) had cause to pronounce on Order 36 Rule 1 and 39 Rules 1 and 2 of the Federal High Court (Civil Procedure) Rules and the High Court of Lagos State (Civil Procedure) Rules which were in pari materia with the Kwara State High Court (Civil Procedure) Rules 2005 particularly Order 39 Rules 2-4 thereof and agreed with the submission of counsel that it was clear that the appellant’s counsel was never called upon by the Learned trial Judge to proceed with is case after the refusal of his application for adjournment and in their view, the failure of the learned trial Judge to do so had occasioned miscarriage of justice.
According to the learned justices, it was not enough to assume that in the circumstances of the case if counsel was called upon to proceed he would not be in a position so to do. That assumption in their view would be speculative.
The emeriti Justices also took the view that the paramount interest of justice between parties as decided in EGBE VS. YONWAREN & ANOR (1978) 8 LRN 136 at 141-143, SOLANKE VS. AJIBOLA (1968) 1 ALL NLR 46 at 54 was not met since the test of fair hearing as laid down in MOHAMMED VS. KANO N.A Supra was not satisfied because upon refusal of the plaintiff’s application for adjournment, he was denied the option of either proceeding with his case or withdrawing the case as counsel who was dominis litis in the case.
Where, as in this case, it is clear from the Record of proceedings of the 4th of May 2006 that the learned Justice of the Lower Court did not call on the plaintiff’s counsel to proceed with the case after ruling on the application for adjournment there was a breach of the rules of court and the plaintiff’s right to fair hearing. Accordingly there was a wrongful and injudicious exercise of the lower court’s inherent powers and undoubted discretion to dismiss the plaintiff’s case for want of diligent prosecution in spite of the fact that it is clear from the record that the plaintiff has been guilty of in-ordinate delay which was likely to prejudice the Defendant’s case (see BIRKETT VS. JAMES (1977) 3 WLR 38; ALLEN VS MC ALPINE & SONS LTD. (1968) 2 Q.B. 229 (both English -) for the position of the Law in England where the Court’s discretion to dismiss a case in limine for want of diligent prosecution on grounds of inordinate delay on the part of litigant can not be questioned. However as we have been warned in Nigeria not to apply the decisions of the courts in England in this respect but to sparingly exercise the power to dismiss suits on grounds of inordinate delay except on very clear circumstances, I am bound by the authorities of the Supreme Court cases cited by learned Counsel for the Appellant that there was a breach of the Appellant’s right to fair hearing in the exercise of the lower court’s discretionary power in dismissing the plaintiff’s claim without calling on his counsel to proceed with his case after the refusal of the application for adjournment. See UMAKORO VS. USIKORO & ORS. VS. ITSEKIRI COMMUNAL LAND TRUSTEES Supra and NTUKIDEM VS. OKO Supra.
It has been variously held in the cases of RE:YATES SETTLEMENT TRUSTS (1954) 1 WLR 564; PRINCEWILL VS. USMAN (1990) 5 NWLR 734 C.A. ABIODU ODUSOTE VS. OLAINTAN ODUSOTE (1971) 1 NWLR 228 that a court is not bound to grant an application for adjournment but must exercise extreme caution in dismissing a suit in limine for want of prosecution.
Furthermore, the exercise of discretion by a court is a judicial act and therefore subject to appeal but a court of Appeal should be loathe in interfering with such exercise.
Since there was a wrongful and injudicious exercise of the lower court’s discretion, this court in its appellate jurisdiction can interfere with the judgment of the court below and set same aside.
On the whole, Issue Number 2 is resolved in favour of the Appellant and Grounds 2 and 3 of the Appeal shall succeed to the extent only that the plaintiff’s counsel was not called upon to proceed with his case before the Order of dismissal of the case where evidence had not been led, was made by the learned trial Judge.
In essence this appeal succeeds in part and the Order dismissing the plaintiff’s claim for want of diligent prosecution is hereby set aside.
The case is sent back to the High Court of Kwara State, Ilorin Division for reassignment by the Honourable the Chief Judge to another Judge for hearing and expeditious determination. I make no Order as to costs.