Ukpe Orewere & Ors. V. Rev. Moses Abiegbe & Ors. (1973)

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O. ELIAS, C.J.N. 

This is an application by way of Motion of Notice under Order 7 rules 3 and 37 for an order of this Court for leave to appeal against the decision of the High Court of Justice, Mid-Western State held at Ughelli and delivered on 30th March, 1973 and for such further or other orders as this Court may deem fit to make.

It would appear that, on the failure of the plaintiffs/applicants to appear before Mr. Justice R.A.I. Ogbobine on 20th December, 1972 as had been previously fixed when all the parties were present in court on 28th November, 1972, Mr. Justice Ogbobine gave a ruling, the relevant portion of which reads as follows:

“I may also note that the absence of Dr. Odje and Mr. Amrovhe who have always appeared for the plaintiffs in this case is an act of disrespect to this court, but I have not allowed that issue to influence my discretion at all in dismissing rather than striking out the suit. The defendants cannot have this case hanging over them indefinitely when the plaintiffs have shown no remote sign that they still have some interest in it. The case is accordingly dismissed.”

On 27th December 1972, the plaintiffs/applicants made an application before Ovie- Whiskey, J. for an order that the judgment of Ogbobine, J., of 20th December, 1972 together with the order as to costs made therein be set aside and the action be re-placed on the Cause List for hearing on the merits. In the affidavit in support of the application, the plaintiffs/applicants averred that they were mistaken as to the date of the hearing and thought that 21st and 22nd December, 1972 had been fixed by the court and not 20th and 21st December, 1972. The court records show clearly that the case was in fact adjourned to the 20th and 21st December, 1972 for hearing. This application was brought under Order 26 rule 8 of the High Court (Civil Procedure) Rules of Western Nigeria, 1958, applicable to the Mid-Western State of Nigeria which reads thus:

”Any judgment obtained against any party in the absence of such party may on sufficient cause shown be set aside by the Court upon such terms as may seem fit”.

Ovie- Whiskey, J., after referring to Order 26 rule 9 and the case Ndukwe Amasiri Afikpo v. Nwaji Aba & 2ors. (1961) 1 All N.L.R. 438 (Part II), proceeded to set aside the judgment of Ogbobine, J., and to order that the case be re-listed for hearing. The relevant portion of his ruling reads as follows:

“In my view it is in the interest of justice that the parties should be afforded reasonable opportunity to have their rights investigated and determined on the merits. I am of the opinion that this is a proper case to be replaced on the cause list for hearing. I accordingly hereby set aside the judgment of my learned brother Ogbobine, J., in this case dated 20th day of December, 1972 together with the Order for costs made by the learned judge on the same date, in the absence of the plaintiffs/applicants, in favour of the defendants/respondents.”

It is against this ruling that the present application has been brought.

We think that Ogbobine, J., should not have assumed jurisdiction to hear the case as he did on 20th December, 1972 because, according to the court records, he had acted as counsel for the defendants/respondents and, indeed, settled the defence for them on 23 October, 1969. We also think that in accordance with Order 26 rule 6(1) and (2) of the High Court of Western Nigeria Rules, the proper course for the learned judge to have pursued was to have struck out the cause out of the cause list on the ground of non appearance by the plaintiffs. Order 26 rule 6 reads as follows:

“(1) Where a cause on the cause list has been called, if neither party appears the Court shall, unless it sees good reason to the contrary, strike the cause out of the cause list.

(2) If the plaintiff does not appear, the Court shall, unless it sees good reason to the contrary, strike out the cause (except as to any counter-claim by the defendant) and make such order as to costs in favour of any defendant appearing as seems just:

Provided that if the defendant shall admit the cause of action to the full amount claimed, the Court may, if it thinks fit, give judgment as if the plaintiff had appeared.”

It is to be noted that, in such a case, striking out is mandatory upon the judge, “unless it sees good reason to the contrary”. This exception must surely relate to a discretion, which the judge might decide to exercise to postpone a decision forthwith, and does not seem to comprehend the exercise of the power of dismissal.

With regard to Ovie-Whiskey, J’s ruling, we note that the application before him was purportedly brought under Order 26 rule 8 which reads as follows:

“Any judgment obtained against any party in the absence of such party may on sufficient cause shown be set aside by the Court upon such terms as may seem fit.”

It was argued before us by learned counsel for the plaintiffs/applicants that “any judgment” in Order 26 rule 8 should be taken to include a dismissal, and not limited to a striking out on the ground of non-appearance of the plaintiff. On the other hand, counsel for the defendants/respondents submitted that “any judgment” in Order 26 rule 8 could be only a reference to Order 26 rule 6(3) where, in the absence of the defendant, the plaintiff is allowed to proceed to judgment or the hearing of the cause has been postponed by the court. Counsel submitted that, were it otherwise, Order 26 rule 9 would be otiose. Order 26 rule 9 reads as follows:

“Any cause struck out may, by leave of the Court or of a Judge, upon application made within twenty-one days of such striking out, be replaced on the cause list on such terms as to the Court or Judge may seem fit.”

We think that Order 26 rules 6 to 9 deals only with the issue of non attendance of parties at the hearing of a case and provides for the circumstances in which the trial judge is to strike a cause out of the cause list.

It does not deal with the question of dismissal, which has the normal effect of putting an end to the case dismissed. Ovie- Whiskey, J., would, therefore, appear to have misconceived Order 26 rules 8 and 9, which misconception led him to assume the power of judicial review over his brother judge. We think that the proper course would have been for the plaintiffs/ applicants to have come on appeal to the Supreme Court against the ruling of Ogbobine, J.

We have decided to rely on the record before us in order to treat the matter on the basis of the arguments canvassed before us by counsel for both sides, and not merely to grant leave to appeal in terms of the application. The order of Ovie-Whiskey, J., given on 30 March, 1973 and his ruling made on 4th May, 1973, are hereby set aside.

SC.120/1973