Ngozi Anyafulu V. Vincent Agazie (2004)
LawGlobal-Hub Lead Judgment Report
UMOREN, J.C.A.
This is an appeal from the decision of the High Court of Justice, Enugu by Agbatah, J. in suit E/100/95 dated 17th April, 2000.
The facts that gave rise to this appeal are as culled from the only brief filed and on which the appeal was heard.
On 24th February, 1995 the plaintiff, a tenant, instituted suit No. E/100/95 against the defendant her landlord claiming N100,000.00 special and general damages for obstructing her use and enjoyment of a room in the landlord’s premises situate at 30, Nike Road, Abakpa Nike, let to the plaintiff where she ran the business of a hair salon, and injunction against further interference.
The background to this suit is that the said landlord sued the tenant for possession of the said room in the Magistrate’s Court which suit is now before this court as appeal No.CA/E/170/2001 and being impatient with the pace of court proceeding decided to annoy her out of the room by digging two holes in the room and depositing bamboo poles and cement blocks at the entrance to the said room while the suit for possession was pending.
More than seven months after instituting this action the plaintiff applied to the High Court for an order for substituted service of the writ of summons and subsequent processes on the defendant by delivering the documents to Ifeanyi Uko, Esquire, who was the landlord’s counsel prosecuting the suit for possession in the Magistrate Court. The affidavit in support of the motion showed the futile efforts made at personal service of the writ of summons on the landlord who lived outside Enugu State. The High Court granted the application on 17th October, 1995 and further ordered that such service be deemed good and proper service on the landlord (defendant). The service was effected by the court bailiff in compliance with the court’s order on 25th October, 1995. Indeed the landlord’s solicitor confirmed in an affidavit made in the proceedings that the service was so effected. The plaintiff’s statement of claim was served on Ifeanyi Uko, Esquire, on 7th February, 1996.
Order 7 rules 14(1) and 2(b) under which the High Court made the order read:-
“14(1) Where it appears to the court (either after or without an attempt at personal service) that for any reason personal service cannot be conveniently effected, the court may order that service be effected in any manner by which it appears to the court that the document is likely to come to the know ledge of the person to be served”
(2) Without prejudice to the generality of the provision of sub-rule (1) of this rule, the court may order the service to be effected either by…
(b) delivery thereof to some person being an agent of the person to be served, or to some other person, on it being proved that there is reasonable probability that the document would in the ordinary course, through that agent or that other person, come to the knowledge of the person to be served.”
(Italics for emphasis)
On the application of the plaintiff under Order 23 rules 3 and 4 of the High Court Rules, the Registrar of the court issued a notice to the defendant, served on the same Ifeanyi Uko, Esquire, fixing the case for call-over on the 13th of May, 1996.
On the said 13th May, 1996, C. J. Anyamene, Esquire, of counsel appeared for the plaintiff while the said Ifeanyi Uko, of counsel appeared for the defendant in court 5 to which the case was transferred from court 4. By agreement of both counsel, the clerk of court 5 included the suit in the list of cases for call-over on 10th June, 1996. But the court did not sit on the 10th of June, 1996 and on the further adjourned date of 24th June, 1996, on which date the clerk of court adjourned the suit to the 24th of September, 1996.
Neither the defendant nor his counsel attended court on 24th September, 1996 on which date the court ordered hearing notices to be served on the defendant personally and on Ifeanyi Uko, Esquire, of counsel, and adjourned the suit to 12th November, 1996, then to 4th December, 1996, then to 10th February, 1997 then to 13th March, 1997 on which date the court was informed by plaintiff’s counsel that the hearing notice ordered by the court was served on the defendant personally at his residence in Onitsha on 18th February, 1997. The court ordered that the bailiff who effected service should appear in court to testify at the next adjournment which it fixed for 19th May, 1997. It should here be noted that the service of the hearing notice on the defendant on 18th February, 1997 gave him notice of the pendency of this suit against him.
On 19th May, 1997 the said bailiff named H. E. Ngwu serving in the Onitsha Judicial Division testified as P.W.1 that he served the hearing notice on the defendant on 18th February, 1997 and tendered the affidavit of service which he made after the service which was admitted in evidence and marked exhibit A. The court then directed that the plaintiff was at liberty to file her motion for judgment and serve same on the defendant when he attended the Magistrates Court for his possession case against the plaintiff on 3rd June, 1997, and adjourned the instant suit to 11th June, 1997.
On 11th June, 1997 the defendant was as usual absent but A. I. Ekeji, Esquire, of counsel appeared for him holding the brief of Ifeanyi Uko, Esquire. A. I. Ekeji, Esquire, stated in court for the first time that they (the chambers of Ifeanyi Uko, Esquire) returned to the registrar the writ of summons and statement of claim delivered to them for the defendant by order of the court because they were at the time of service not briefed by the defendant. The court ordered them to retrieve the writ of summons and statement of claim since they had now appeared for the defendant, and adjourned the suit to 26th September, 1997 for hearing.
On 26th September, 1997 both the defendant and his counsel were absent, and this date marked the beginning of the comedy that traversed the proceedings in this suit. The court suo motu referred to the proceeding of 11th June, 1997 and stated that the instant suit would not go forward until judgment was delivered in the Magistrate’s Court suit between the parties for possession of the said room let to the plaintiff and a copy of the judgment filed in this court, and adjourned to 25th November, 1997 for further mention.
On 25th November, 1997 neither the defendant nor his counsel was in court, and the court stated that it would regard the case as being undefended and asked plaintiff’s counsel what he proposed to do, whereupon the plaintiff’s counsel informed the court that he had a motion in the court for proving the plaintiff’s case but the court blurted that the court would no longer entertain this suit until it sees the decision of the Magistrate’s Court in the suit for possession, and further adjourned the proceedings to 13th February, 1998 for possible hearing subject to the judgment of the Magistrate’s Court being served on the court and the plaintiff filing a statement of claim. Be it noted that the plaintiff filed her statement of claim on 7th February, 1996 and was issued with receipt No.0775218 for payment of the court fees and Ifeanyi Uko, Esquire, of counsel acknowledged being served on 7th February, 1996 with a copy thereof.
On 13th February, 1998 the court was informed by the plaintiff’s counsel that the judgment of the Magistrate’s Court was against the plaintiff herein. As usual the defendant and his counsel were absent and the court adjourned to 3rd April, 1998 for hearing.
On 3rd April, 1998, Ifeanyi Uko, Esquire, appeared for the defendant who was also in court, and stated that the writ of summons had not been served on the defendant and asked that the said process be served on the defendant present in court and referred to his letters dated 2nd April, 1997 and 25th November, 1997 respectively which were not brought to the notice of the plaintiff or her counsel nor to the notice of the court when they were written for any directive.
The plaintiff’s counsel then asked for an adjournment to enable him “readjust himself’. The court instantly struck out the suit without first considering the application for adjournment and deciding whether to grant it or not as directed by the Supreme Court in Albert Ilona and Anor. v. Dei (1971) 1 NMLR 5; (1971) 1 All NLR 8, saying, very surprisingly, that the writ of summons had not been served on the defendant.
On 21st September, 1998 the plaintiff filed a motion in the High Court to re-list the suit struck out as provided in Order 24 rule 16 of the High Court Rules which reads:-
“Any cause or matter struck out may, by leave of the court, be re-listed on such terms as to the court may seem fit.”
The defendant filed a counter-affidavit on 4th November, 1998 in paragraphs 2 and 3 of which he deposed that he never knew of the pendency of the action nor did he instruct any solicitor or counsel to act for him or take any steps in his defence “until on or about 3rd day of June, 1996″when he instructed the firm of Ifeanyichukwu Uko and Associates to receive process on his behalf.
The plaintiff notes that the writ of summons was dated 24th February, 1995 and by the 3rd of June, 1996, the writ was not yet void altogether or stale as used by the defendant’s counsel and the court, as two years had not elapsed since its issue on 24th February, 1995. The same defendant in paragraph 5 of his said affidavit deposed that on 22/5/95, 31/5/95, 13/12/95, 27/2/96, 10/4/96, 15/5/ 96, 25/7/96, 20/8/96 “and other dates thereafter he attended the Magistrates Court, Enugu” – yet his solicitor swore in paragraph 4 of his affidavit dated 13th May, 1996 that the chambers could not locate the defendant and in his submission in court on the 4th of February, 2000 that as they were not agents of the defendant in the suit “they did not bother to serve him.”
After hearing arguments from counsel, the High Court rejected the application to re-list and awarded costs of N500.00 to the defendant, hence the appeal to this court on four grounds. Appellant’s counsel filed his brief on 26th April, 2002 and on the 29th April, 2003, on application by counsel for the appellant, this court granted appellant leave to be heard on appellant’s brief only, the respondent having failed to file his brief within the period prescribed by the rules of this court. In the appellant’s brief two issues were distilled for determination as follows:-
“(1) Was the court below right in holding that it had no jurisdiction to re-list the case it struck out. (2) Were there sufficient facts before the court below upon which it would rightly have exercised its discretion to re-list if it had held it had jurisdiction.”
In his argument, the appellant’s counsel relates his first issue to grounds 1, 2 and 3 of the grounds of appeal. The view of the court below was that the order striking out the suit was a final order and can only be set aside on appeal. He relies on Order 24, rule 16 of the High Court of Enugu State Rules which is reproduced above. The learned senior counsel for the appellant went to town and brought in other issues that to my mind are extraneous to the issue before the court. The simple question, which to my mind, calls for a simple answer is, had the court below the jurisdiction to re-list a matter it struck out?
It is clear that at the lower court, the plaintiff asked for an adjournment to enable him re-adjust himself. What was handed down by the court below was “the suit is struck out, application for adjournment is refused. The court cannot be taken to unnecessary length in this suit”. This suit was struck out and nothing more. The question is, can the lower court refuse to re-list a suit it struck out without a hearing and therefore not on the merit? The answer is found in the words of Order 24 rule 16 of that State High Court Rules which reads “any cause or matter struck out may, by leave of court, be re-listed”. The definition section of the said High Court Rules (Order 2) defines cause to mean “A civil action in the original proceeding” arid, matter to mean “an action other than a cause”.
Before the Judicature Acts of 1873-75, “Cause” was the generic term for ordinary civil proceedings whether at law or in equity, and therefore included actions and suits, but not statutory proceedings in equity commenced by petition, motion, summons etc. which were and are known as matters. Since the Acts came into operation (which was a law of general application), the word cause has practically been superseded by “actions”. After 1990 the words “cause” and “matter” have been defined in our own laws and rules of courts such as the definition above in our Order 24, rule 16 of the Enugu State High Court Rules. The wording of the rule is clear and unambiguous. Effect should therefore be given to it.
In the exercise of a court’s discretion in granting an application for adjournment, it is pertinent to quote a passage in the judgment of Lord Wright, L. J. in Evans v. Bartlam (1937) A. C. 473. In his judgment Lord Wright said at page 487:
“A Judge’s order fixing the date of trial or refusing to grant an adjournment is a typical exercise of purely discretionary powers, and would be interfered with by the Court of Appeal only in exceptional cases, yet it may be reviewed by the Court of Appeal. Thus in Maxwell v. Keun (1928) 1 K.B. L 645, the Court of Appeal reversed the trial Judge’s order refusing to grant the plaintiff an adjournment. That was a pure matter of discretion on the facts. Atkin, L. J. said at page 653:
‘I quite agree that the Court of Appeal ought to be very slow indeed to interfere with the discretion of the learned Judge on such a question as an adjournment of a trial, and it very seldom does so; but, on the other hand, if it appears that the result of the order made below is to defeat the rights of the parties altogether, and to do that which the Court of Appeal is satisfied would be an injustice to one or other of the parties, then the Court of Appeal has power to review such an order, and it is to my mind, its duty to do so.’”
I must say clearly and firmly that we do not consider that a Judge is obliged to grant an adjournment solely on the ground that counsel on each side ask for it. That is a factor certainly to be taken into consideration but a Judge must also bear in mind the necessity for ensuring speedy justice to the contesting litigants and he must also bear in mind that by adjourning a case to a day fixed for hearing it means further delay to other litigants who might otherwise have had their cases heard then. I would, moreover, add that it is sometimes, in our view, a little less than scandalous that delays to a case are caused by the great number of adjournments, that on record to us have occurred in simple and straight forward cases.
I think that I must stress here that in civil cases, it is the duty of the parties to tidy up their cases and produce their witnesses, and as far as possible, either party should be alert throughout the trial. I think that there are occasions when it will not be in the interest of justice to grant an adjournment. It should always be borne in mind that the interest of justice does not mean just the interest of the applicant, it also includes the interest of the respondent and the court.
In other words, the adjournment being sought should, in a strict sense, be in the interest of all concerned.
Therefore the question whether or not to grant an adjournment is a matter solely in the discretion of the court. But that discretion must at all times be exercised not only judicially but also judiciously.
In the appeal before us, the plaintiff/appellant asked for an adjournment simply to enable him “readjust himself’. The court simply struck out the suit and no reasons were given. In the circumstances, the striking out was not judiciously and judicially and a motion to re-list ought to have been granted. I have essayed to look at the appeal from both the appellant’s and respondent’s perspective. In no way can the refusal be justified. So this first issue is resolved in favour of the appellant.
Issue No.2 was related to grounds 1 and 4 of the grounds of appeal. The learned Senior Advocate for the appellant contended in this issue that the learned trial Judge failed to exercise his discretion in favour of re-listing the suit. He argued that the learned trial Judge failed to exercise his jurisdiction in case he would be wrong in holding that he had no jurisdiction. He referred to arguments above which I have taken care of in the first issue. He urged this court to set aside the ruling of the court below that it had no jurisdiction to re-list the suit and order that the case be re-listed. because there were sufficient materials that were staring the court below in the face when it heard the application. From the record, it appears that:
“(a) The court made an order for service of the writ of summons on the defendant by delivery thereof to Ifeanyi Uko, Esquire of counsel, not as agent of the defendant as wrongly argued by the said counsel but in the words of Order 7 rule 14(2)(b) as a person through whom there is reasonable probability that the document would in the ordinary course come to the knowledge of the defendant. The court which made the order pronounced that such delivery was good service on the defendant.
(b) Ifeanyi Uko, Esquire was the solicitor of the defendant prosecuting his case in the Magistrate’s Court for possession of the room he let to the plaintiff in the instant suit. He admitted the writ of summons was received by him.
(c) The defendant recounted at least eight separate days he appeared in the Magistrate’s Court with the said Ifeanyi Uko, Esquire, after delivery of the writ of summons to Ifeanyi Uko, and it is very reasonable to expect that Ifeanyi Uko, Esquire, would inform the defendant of the writ of summons against him, on at least on these occasions.
(d) The letter by Ifeanyi Uko, Esquire, allegedly returning to the registrar of the court the writ of summons and statement of claim delivered to him by order of the court was dated 30th May, 1996 when the defendant swore to an affidavit that he gave instructions to Ifeanyi Uko of counsel “to act for me … in my defence … on or about 3rd June, 1996″.
(e) On or about the said 3rdJune, 1996 the writ of summons had not run out its life of two years from the date of issue on 24th February, 1995.
(f) The letter returning the writ of summons and statement of claim to the registrar of the court was not copied to the plaintiff’s counsel for him to do the needful in the interest of the plaintiff, nor brought to the notice of the court at the time it was written for the court’s directive as was done in Odutola v. Kayode (1994) 2 SCNJ 21; (1994) 2 NWLR (Pt. 324) 1 cited by the said Ifeanyi Uko, Esquire, of counsel. On the contrary, when the defendant’s solicitor informed the court of the return of the documents the court ordered him to retrieve them which the said counsel never did.
(g) No copy of the statement of claim or a spare copy of the writ of summons meant for service was seen in the court’s file. Did counsel in fact return the writ of summons and the statement of claim to the registrar?
(h) It was with great respect a howler for the court to somersault by saying that service effected in accordance with its order was not good service in law.”
It is not clear how the learned trial Judge came to the conclusion that he lacked jurisdiction to re-list the suit when, apart from the facts enumerated above, consideration should have been given to what the trial Judge himself observed in his ruling. The learned trial Judge had recalled that in the submission of the defendant’s counsel, they did not bother to serve the respondent i.e. the defendant, because they were not his agents; that they did inform the Assistant Chief Registrar of the court below that they could not locate the learned counsel of the applicant; that that court ordered that the same Ifeanyi Uko who said he had returned the processes should go to trace them
and get them served on the applicant’s counsel; and this court order was not carried out.
It is unfortunate that these contradictions and inconsistencies did not appear to make any impression in the mind of the trial Judge. Again the learned trial Judge failed to avert his mind to Order 5, rule 20(1) of the High Court of Enugu State (Civil Procedure) Rules which stipulates that a process not served after two years of its issue … shall become void altogether and the suit shall be struck out. The learned trial Judge also did not avert his mind to the fact that the suit before him, issued on the 24th February, 1995 was not yet two years old on the 18th February, 1997 when the hearing notice for the suit was served on the defendant personally. I refer to page 38, lines 35- 49 etc. of the record.
An appellate court will be reluctant to interfere with the decision of a trial court on issues of assessment or weight of evidence except such decision is perverse and not the result of proper exercise of judicial discretion. In this appeal, as the trial Judge failed to consider issues some of which are listed above, the decision of the lower court was bound to be perverse and not the result of a proper exercise of judicial discretion. See Lord Jankerton in WATT Thomas v. Thomas (1947) A.C. 484. This decision was approved in Okpiri v. Jonah & Ors. (1961) 1 SCNLR 174; (1961) 1 All NLR 102 at 104.
In the result, I find merit in this appeal and hereby allow it. I hereby set aside the decision of the court below and substitute for it an order re-listing the said suit No. E/100/95 pending in the High Court of Enugu State, Enugu for trial thereat and determination. I make no orders as to costs.
Other Citations: (2004)LCN/1665(CA)
