(Mrs) Bomo Ivbiyaro (Nee Francis) & Ors. V. Mrs Omokaro Moni Francis (Nee Obire) (2001)
LawGlobal-Hub Lead Judgment Report
IKONGBEH, J. C. A.
This is an appeal against the ruling of the Rivers State High Court (D W. Okocha, J.), sitting at Port Harcourt, dismissing an application to re-list a suit dismissed for want of diligent prosecution. The appellants before us, were the plaintiffs before the court below. Hearing of the suit had started before D.W. Abbey-Kalio, J., with the evidence-in-chief of P.W.1. The witness had not been cross-examined as at 6/12/95, when the learned trial Judge dismissed the suit for want of diligent prosecution, because the plaintiffs and their counsel were absent from court and had been consistently, so absent a number of times before.
Counsel on behalf of the plaintiffs applied to the same High Court for an order re-listing the suit. The application came up for hearing before Okocha, J. Before her, the applicant’s counsel, relying on the copious facts deposed to in the supporting affidavit, tried to explain why neither the applicants nor their counsel were present in court.
The respondent’s counsel, relying on equally copious facts deposed to in a counter-affidavit filed in opposition, argued strenuously to convince the court, that the applicants had not satisfactorily explained their absence to entitle them to the exercise of the court’s discretion.
In addition, counsel raised the issue that the court lacked the competence to restore the suit to its hearing list, same having been dismissed as opposed to being merely struck out.
It was counsel’s view that in the circumstances, the only remedy open to the applicants, was by an appeal to the Court of Appeal against the order of dismissal. The applicants’ counsel in reply urged the Court to take judicial notice of the fact that the dismissal was not on the merit and so “could not be considered absolute” especially, having regard to the provisions of Order 37, rule 8 of the Rivers State High Court (Civil Procedure) Rules, 1987.
Okocha, J., in her ruling, delivered on 24/1/97, took the issue of her competence to make the order for re-listing in the circumstances first. She ruled that, she was not competent to make the order sought because “it would be requiring this court to review and/or correct the ruling of my brother Judge, having concurrent jurisdiction with me.” She went on to reason and conclude thus:
“The fact that the suit was dismissed is indicative that this court (the High Court) finally determined the matter.
As opposed to if the suit was struck out. The suit having been dismissed by the High Court, the High Court has thus, finally determined it, the matter can only be reviewed or corrected by a higher court which as in this case, will be the Court of Appeal. This court thus, cannot and does not, have jurisdiction to re-list a matter that has been dismissed by it. The learned Counsel for the defendant/respondent has strongly argued that this court, cannot grant the relief sought as the court cannot re-list a matter dismissed by it. That the option open to the applicant was to appeal against the ruling dismissing the suit and that Order 37 rule 6(2) High Court Rule by which the application was brought, was inapplicable to the issue before the court. I entirely agree with learned Counsel on all the points he has raised in opposition to this application.
I hold that the suit having been dismissed, this court cannot re-list it, it is only the Court of Appeal that can review this decision, set it aside and order for its re-listment.
Having held thus, I cannot go into the merits of the application as I have no jurisdiction to do so, this court being functus officio in the matter. The application therefore lacks merit. I hereby, dismiss it with N500.00 costs awarded-to the defendant/respondent.”
Thus, as can be seen, she declined to rule on the other issue canvassed before her, i.e., whether or not the applicants before her had satisfactorily explained their absence in court, when their suit was thrown out and generally met the other requirements for obtaining a re- listing.
Aggrieved by the ruling, the applicants have appealed to this court on two grounds. Alhaji F.A. Oso, for them, has formulated two issues. As he himself has readily acknowledged, by the way he argued the two issues together, only one issue is really called for in this appeal and that is whether or not because Abbey-Kalio, J., had expressed his order to be one of dismissal, the suit so dismissed, could no longer be restored to the hearing list by the same High Court.
Taking on the two issues together, Alhaji Oso started by referring to Order 37, Rule (of the Rivers State High Court (Civil Procedure) Rules, 1987, which empowers the court to dismiss the plaintiff’s action, if he fails to appear at the hearing. He then pointed out that the same rules of court, appreciating the injustice that would be done to the plaintiff, were his action to be finally dismissed other than on merit, introduced a saving provision in rule 9, which directs that –
“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 6 days after the trial or within such longer period as the court may allow for good cause shown”.
Counsel then submitted that by this direction – “the absolute, total and complete effect of a judgment obtained by default for lack of prosecution has been watered down to no effect.”
Learned Counsel criticised the learned Judge’s view that the action having been dismissed cannot be re-Iisted as not representing the law. By virtue of Order 37, rule 9 any Judge of the High Court, whether or not the order of dismissal was made by him, can set aside that order and an appeal against it is unnecessary. Counsel wound up his arguments by submitting that the learned Judge was in error to have declined jurisdiction.
Mr. M. O. Bianeyin, for the respondent, submitted that Order 37, rule 9 does not apply because, it deals with a different situation from the one involved here. According to learned Counsel, the rule deals with a situation, where an action is dismissed for absence in court, by the plaintiff and not where, as in the present case, the Judge expressly states that, he is dismissing the action for want of diligent prosecution. In counsel’s view “default of appearance is different from want of diligent prosecution”. According to him,
“The dismissal of an action for default of appearance, is different from dismissal of an action for want of diligent prosecution. The principles governing the grant of both, are different and so are their effects or consequences.
While an action dismissed for default of appearance may be cured by an application for relistment of the action under Order 37 rules 8 and 9 of the Rules of High Court, an action dismissed for want of diligent prosecution may only be cured through an appeal.”
See paragraph 4.3 of his brief. It was his view also that –
“The dismissal of an action for want of prosecution has serious consequences which distinguishes it from one that was struck out or dismissed, in default which could be relisted in some situations, This is because, when a matter is so dismissed for want of diligent prosecution, the parties can no longer come back to court on the same matter. That is why the dismissal of a suit for want of diligent prosecution, is normally done with much care and consideration,”
See paragraph 4.8 of his brief.
I must observe at once that learned Counsel did not cite any authorities for these rather sweeping assertions, My own research (limited, I must confess) reveals that contrary to learned Counsel’s view, that dismissal for want of prosecution and dismissal for default of appearance are different things is the truth, I gather from my reading of the authorities that the term “want of prosecution” is not an independent item, in a list of items for which an action may be dismissed. It is rather an umbrella term, that covers a wide range of circumstances, including default of appearance by the plaintiff, in which the expeditious disposal of a case, is hampered by the activity or inactivity of the plaintiff. In other words, the default of appearance by the plaintiff is an instance of want of prosecution. It is one of the items in the list of circumstances, that are collectively described as want of diligent prosecution, Jowitt’s Dictionary of English Law, 2nd Edition, P. 626, explains what constitutes dismissal for want of prosecution thus:-
“If the plaintiff in an action does not deliver his statement of claim within the time during which he is bound to do so … or does not take out a summons for directions … within the prescribed time … or does not set down the action for trial within the proper time … or does not appear at the trial … or does not give particulars … the defendant may apply to the court to dismiss the action for want of prosecution. The defendant may also take this step if the plaintiff fails to comply with an order to answer interrogatories or produce documents …”
In view of this, I cannot agree with learned Counsel that –
“The dismissal of an action by a High Court for want of diligent prosecution is not based on the Rules, but is inherent and involves primarily, the exercise of discretion by a trial Judge.”
As has been seen, if the plaintiff is absent in court and his action is dismissed on that account, the dismissal in the circumstances is one for want of diligent prosecution.
Another aspect of Mr. Bianeyin’s arguments that does not impress me, is his attempt to show that Abbey-Kalio, J., dismissed the plaintiffs’ action, not for default of appearance but for want of diligent prosecution. Counsel in paragraph 4.4 of the respondent’s brief harped on the fact that –
“It is clear from the bundle of papers especially the decision of Abbey-Kalio, J., (supra) that suit No. PHC/395/92 was not dismissed in default under Order 37 rule 8, which makes rule 9 of the same Order to become relevant in terms of a possible relistment.”
This argument is just a slight variation on the earlier contention, that dismissal for want of prosecution is not the same as dismissal for default of appearance. It becomes pertinent at this juncture to set out the entirety of the record of the short proceedings of 6/12/95, when the plaintiffs’ action was dismissed.
“Plaintiffs absent.
Defendant present, F. C. Ene, Esq., appears for the defendant.
The Plaintiffs and their counsel are as usual absent and no explanation is given. This has been so for quite sometime.
I have watched the unfolding events with utmost disgust.
The plaintiffs have just brought the defendant to court just for the fun of it.
It is indeed quite unfortunate, I have no option in the circumstances surrounding this case, than to outrightly dismiss this case.
Case is therefore, dismissed for want of diligent prosecution.
I shall however, make no order as to cost because it appears to me that this is a family matter.”
The learned Judge made it clear that he was dismissing the action because “the plaintiffs and their counsel are as usual, absent and no explanation is given.” It is clear from the entire proceedings that, the want of diligent prosecution that the learned Judge complained of, was in fact the absence of the plaintiffs and their counsel without explanation. The fact that the learned Judge did not expressly state that he was proceeding under Order 37, rule 8 is totally irrelevant.
It suffices that that rule empowers him to exercise the power.
I agree with learned Counsel for the respondent that the dismissal of an action “has serious consequences which distinguish it from one that was struck out.” I agree with him also that, ordinarily “when a matter is so dismissed … the parties can no longer come back to court on the same matter” as they can do when the matter was merely struck out. It is, however, not immutably the case that, once a case is expressed by the Judge to have been dismissed, the parties cannot bring it back before the same court for hearing. In some instances, the rules of court can, and do, authorise the court to treat the dismissal as a mere striking out. This is especially so, where the dismissal has been done not on the merits of the case, but because the plaintiff has been guilty of any of the actions or inactions that could be described as want of diligent prosecution.
Learned Counsel cited the Court of Appeal decisions in Olarinde v.Olarinde (1993) 7 NWLR (Pt. 307) 629, Adapele v.Akintola (1986) 5 NWLR (Pt. 42) 448, and the Supreme Court decisions in Ogbu v. Urum (1981) 4 S.C. I, to argue by analogy that “there is nothing that makes the situation in the High Court different either by the rules, statute or under the inherent jurisdiction.” With all due respect, this argument betrays a gross want of comprehension of the ratio decided in Ogbu v Urum, which the Court of Appeal followed in the other two cases. The Supreme Court made it clear in that case, that it declined jurisdiction to reopen the matter that had been dismissed for the appellant’s default in filing his brief of argument because, the rules did not empower it to do so, in respect of this particular specie, of want of diligent prosecution. The court made it clear that in respect of other species, notably default of appearance, the rules empower it and it can, in appropriate cases exercise that power and set aside its decision, dismissing the appeal and reopen the appeal for hearing. Each of the five Justices who sat on that, made this point abundantly clear. Obaseki, J.S.C., who read the lead judgment, made the point at pages 6 and 8 thus:
“I agree with learned Counsel for the respondents that, the rules relied upon by the appellant’s counsel do not confer the jurisdiction the court is called upon, to exercise in this application. The applicants’ appeal was not dismissed for non-appearance of the appellants, to enable the applicants call for the exercise of the power under Order 7 rule 23(2). Likewise the applicant’s appeal was not dismissed for failure to comply with the conditions of appeal to enable the applicants call for the exercise of the power under Order 7 rule 19(4).”
“Under Order 7 rule 23(1), Supreme Court Rules 1977, the court is empowered to dismiss an appeal for non-appearance, when it is called for hearing and the appellant fails to appear. In the event of such dismissal, the court may on (a proper application) being satisfied direct the appeal to be re-entered under Order 7 rule 23(2).”
Sowemimo, J.S.C. (as he then was), who presided, made it clear at pp. 1-2:
“According to the notice of motion, the application was brought under Order 7, rule 23(2) and Order 9, rule 3(1).
The first arm of the motion deals with an appeal that has been dismissed, owing to the non-appearance of the appellants. That was not what happened in this matter because, the appeal was dismissed for want of due prosecution and in the reasons elaborated by my brother, Obaseki, this court has no jurisdiction inherent or otherwise to grant the application.”
Bello, J.S.C. (as he then was), expressed the same view at p. 2:
“I consider it pertinent to point out that, when an appeal has been dismissed owing to the failure of the appellant to perfect the conditions of appeal or owning to the non- appearance of the appellant or respondent, the court is empowered in proper cases to set aside its judgment and to order the appeal to be restored and re-entered for hearing. Order 7 rule 19(4); Order 7 rule 23(2) and Order 7 rule 25(3) of the said Rules. No such provisions were made for an appeal that has been dismissed for want of prosecution under Order 9 rule 7.
Nnamani, J.S.C., stressed the same point at p. 17:
“The order of dismissal of the appellant’s appeal pursuant to Order 9 rule 7 of the Supreme Court Rules, 1977, being a final judgment, this court cannot review it or set it aside, except on any of the grounds set out in Order 7 rule 30, to which reference has been made in the leading ruling. This Court would also have inherent jurisdiction to set it aside, if it could be shown that it was obtained by fraud. If there was a fundamental defect which goes to the issue of jurisdiction and competence of this Court, on the day it made its order, it would set aside its judgment.”
Further at p. 19, he was – “of the view that in the wider interests of justice, and in order to ensure that appeals are as much as possible disposed of on their merits, it may be desirable to make analogous provisions to Order 7 Rule 23(2), Order 7 rule 19(4) and Order 7 rule 25 of the Supreme Court rules 1977, so as to reduce the rigour of Order 9 Rule 7. If such provisions were available, the application before this court, carrying with it, as it does as an annexure the brief of argument of the applicants/appellants (showing a determination on their part to prosecute their appeal) would I assume, have had a fair chance of success.”
Finally, Uwais, J.S.C., (as he then was), said at Pp 22-23:
“The instances when this court can in its discretion restore appeals which had been dismissed are specially provided under the Supreme Court Rules, 1977. Such instances include the non-compliance with conditions of appeal [Order 7 rule 19(4) the non-appearance of an appellant at the hearing of the appeal [Order 7 rule 23(1)] and the non-appearance of a respondent at the hearing of the appeal [Order 7 rule 25(1)]. Although, Order 9 rule 7 provides for the dismissal of appeal on the failure of appellant to file brief timeously, the rules remain silent on whether such dismissal could specially be set-aside. There is however, the rubric “Miscellaneous” under Order 10 of the Rules which states:
‘Non-compliance on the part of the appellant or respondent with these rules or with any rule of practice for the time being in force shall not prevent the further prosecution of the appeal, if the court considers that such non-compliance was not wilful, and that it is in the interests of justice that such non-compliance be waived. The court may in such manner as they think right, direct the appellant or the respondent as the case may be to remedy such non-compliance, and thereupon the appeal shall proceed …’
I agree that the provisions of Order 10 are wide enough to embrace the circumstances of Order 9 rule 7.
However, the provisions will only come into play when they are raised at the opportune moment. In this case, at the time when application to dismiss the appeal was made by the respondents on 24th November, 1980. Once the appeal is dismissed, it seems to me that this court becomes functus officio and has no power under Order 10 to re-list the appeal.”
Far from supporting the argument on behalf of the respondent that the court cannot reopen a case dismissed for want of prosecution by non-appearance, this case clearly shows that it can, especially where there is authority to do so in the rules. Order 37, Rule 7 of the Rivers State High Court Rules provides for what is to be done with the case in the event of the plaintiff appearing, but the defendant not appearing. The plaintiff may go ahead and prove his case. Rule 8, on the other hand, provides what is to happen if the defendant appears but not the plaintiff. The defendant in such circumstance “shall be entitled to judgment dismissing the action”. The rule 9 provides unequivocally:
“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.”
I would have thought that this provision was too clear in its stipulation to brook any argument, least of all, the type being put forward by the respondent’s counsel. In the light of this provision, I cannot help agreeing with Alhaji Oso, for the appellants, that the stringent effect that rule 8 would otherwise have had, has been watered down almost to no effect. Considering everything, I find substance in this appeal. Okocha, J., was clearly wrong when, in the face of the clear provisions of Order 37, rule 9, she ruled that, she was not competent to grant the prayers sought. She was competent. She should have gone into the merits of the appellants’ application, to see if they had sufficiently explained why they were not available to prosecute their action when they were required to. If they had not, by their affidavit evidence, satisfactorily explained their default, then she was entitled to dismiss the application on that account. She was not entitled, in the circumstances to deal their case out of court in limine as she did.
For all the reasons I have given, I allow this appeal and set aside the ruling of Okocha, J, declining jurisdiction. The matter is hereby, remitted to the Rivers State High Court before another Judge, who will consider the merits of the appellant’s application.
The respondent shall pay costs assessed at N5,000.00 to the appellants.
Other Citations: (2001)LCN/0960(CA)
