Umukoro Usikaro & Ors. V. Itsekiri Communal Land Trustees & Ors. (1991)

LawGlobal-Hub Lead Judgment Report

KAWU, J.S.C. 

The Court heard this appeal on 19th November, 1990. After a careful and close study of the record of proceedings and the briefs filed by counsel, and after listening to the oral submissions of counsel in elaboration of the various issues canvassed in their briefs, the court allowed the appeal and reserved its reasons for doing so to today. I now give my reasons for the judgment.

In the High Court, the plaintiffs’ claims, as amended are stated as follows:-

“The plaintiffs for themselves and on behalf of the ISIBOVBE FAMILY of EKUREDE (OKURODE) Urhobo Village of Agbassa, Warri, seek the following reliefs against

1. ALL THE DEFENDANTS is for a declaration of title to all that piece or parcel of land, lying and situate at EKUREDE (OKURODE) Urhobo village of Agbassa, Warri within the jurisdiction of this Honourable Court. The area and exact situation of the said piece or parcel of land is more particularly described and shown verged PINK in the Plan filed in support of this action.
2. The 1st, the 5th,8th defendants jointly and severally is for 5,000 (five thousand pounds) being special and general damages for trespass committed on the said plaintiffs land in that the 1st, the 5th, 8th defendants respectively by themselves, their Agents and/or Servants between 1969 and 1971 broke and entered the said land and damaged plaintiffs’ economic crops and trees without plaintiffs consent.
3. The 1st, the 5th and the 6th defendants is for a declaration that the purported lease of part of the land in dispute made by the 1st defendants to the 5th defendant on the 7th day of April, 1981 and registered as No.44 at page 44 in Volume 86 of the Land Registry Benin City the purported subsequent sub-lease of the same said portion of the land in dispute made by the 5th defendant to the 6th defendant on the 7th day of June, 1971 and registered as No.48 at page 48 in Volume 80 of the Land Registry, Benin City are respectively null and void ab initio and should be set aside. 4. The 7th and 8th defendants jointly is for a declaration that the purported sale or grant of the portion of the land in dispute made by the 7th defendant to the 8th defendant on the 10th day of October, 1969 and registered as No.20 at page 20 in Volume 75 of the Land Registry, Benin City is null and void ab initio and should be set aside.
4. All the defendants is for a perpetual injunction to restrain the defendants, their agents, servants and all other persons purporting to claim through them from entering the said land in dispute and particular from granting leases or other dispositions of the same to third parties.”

After all the pleadings had been filed and exchanged, the parties appeared before the court on 26/4/76 when the case was adjourned to 2/7/76 for mention and possible fixture. It should be noted that this was the first time that the court indicated that the case was ready for hearing when all the necessary preliminaries had been completed. There is no record of what happened on 2/7/76. However, on 8th September, 1976, parties appeared before the court when an application filed by the plaintiffs praying the court to enter judgment against some of the defendants in default of appearance was withdrawn and subsequently struck out. It was also on that day when the 10th and 13th defendants were granted seven days extension of time within which to file their statement of defence. The case was again adjourned to 29/11/76 for “mention and possible fixture.”

On 29/11/76, all the parties were present or represented in court and the case was adjourned to 11th to 15th April, 1977 for hearing.

There is no record of what happened on 11th April but on 9th May, 1977, the ruling of the court was:

“Court: Case adjourned to 12th to 14th October, 17th and 18th October, for definite hearing. Case to proceed if cases already joined (sic) for those dates cannot go.”

That was the ruling of Uche Omo, J. (as he then was) who had been previously hearing the matter. The record shows that the case came before Akpata, J. (as he then was) for the first time on 14th September, 1978. None of the parties was in court that day and the case was adjourned to 20 – 23rd December, 1978.

On 20th December, 1978, parties appeared before the court and on that day Dr. Akpojare for the plaintiff raised the issue of the legal position of the 1st defendant which, he contended was no longer clear having regard to the provisions of the Land Use Decree. The court was of the view that the point was well taken and the case was adjourned to 11/4/79 for mention “to enable them (1st defendant) make up their minds.”

On 11th day of June, 1979, the case was further adjourned to 11th September, 1979 for mention. There is nothing in the record to show what happened on that day but on 4th December, 1979 the case was adjourned to 17th and 18th March, 1978 (sic) for hearing.

Parties appeared before the court on 17th March, 1980 when Siakpere of counsel informed the court that Dr. Akpojaro, the principal counsel for the plaintiffs was ill and that he was in the United Kingdom receiving treatment. He then asked for an adjournment and the application, not having been opposed by any of the parties, was granted on terms. The case was then adjourned to 13th and 14th October, 1980 for hearing, and since it was the proceedings of the 13th October, 1980 that gave rise to this appeal I think the whole of proceedings of that day should be set out. They are as follows:

ON MONDAY THE 13TH DAY OF OCTOBER, 1980

W/66/70 U. Usikaro & 2 Ors.

v.

Itsekiri Comm. Land Trustees & 12 Ors.

10th defendant present.

O. U. Siakpere for plaintiffs.

O.N. Rewane for 1st, 5th, 6th and 9th defendants.

J.O. Obeahon for 10th to 13th defendant.

Siakpere: I have not seen my client, I saw him about six days ago. Our Surveyor is dead. The 7th defendant is dead. I am surprised. I have no instructions. I cannot go on with the case.

Court: This case was fixed for hearing on 26/6/80 for today and tomorrow. The plaintiffs are not in court. Suit No. W/115/69, a sister case, was struck-out for non appearance of the same plaintiffs on 4/12/79. It does not appear to me that the plaintiffs are interested in prosecuting the case. There has been inordinate delay to prosecute case. The action is dismissed with costs.

Rewane: We ask for #2,000 costs.

Obeahon: We ask for #2,000. No reasonable cause has been shown for not going on with the case. They are disinterested.

Siakpere: I pray that the case be struck-out instead of dismissal.

Only the 10th defendant is present. I offer only #100 in favour of the 10th defendant. I offer the others #80.

Court: The 2nd to the 4th defendants are not in court and they are not represented. 7th and 8th defendants are also not in court and not represented. A nominal cost #50.00 is awarded to the 2nd to the 4th defendants and #50.00 to the 8th defendant. Costs assessed at #300.00 in favour of each of 5th, 6th and 9th defendants represented by Rewane and -N600.00 in favour of the 10th – 13th defendants (for themselves and on behalf of Ahbor-Tosan Eiyee section of Ekpenede-Ogitsi family of Okere- Warri)”

(Sgd.) E.I. Akpata,

Judge

13/10/80″

Being dissatisfied with the decision of the trial court, the plaintiffs appealed to the Court of Appeal, and in a unanimous judgment of that court delivered on 19th day of February, 1988, their appeal was dismissed. They have further appealed to the Supreme Court on six grounds of appeal. In the appellants’ brief of argument the issues for determination are stated as follows:-

“1. Whether there was inordinate and/or inexcusable delay on the part of the Appellants to prosecute this case.

II. Whether the Court of Appeal was right in holding that on 13th October, 1980 the learned trial Judge could not have acted under the provisions of order 26 Rule 6 of the Bendel High Court (Civil Procedure) Rules 1976 investing him with a discretion to make any order other than that of dismissal of the claim.

III. Whether on the facts and in the circumstances of this case, the Court of Appeal was justified in affirming the decision of the learned trial Judge dismissing the appellants’ case without a hearing on the merits.”

As to whether there was inordinate and/or inexcusable delay on the part of the appellants to prosecute their case, it was the submission of Dr. Odje, learned Senior Advocate for the appellants, that the record of appeal did not justify such a conclusion. In this regard learned counsel set out on page 4 of his brief the sequence of fixtures and proceedings of the case before different Judges from 26th April, 1976 when the case was further adjourned to 27/7/76 for mention and possible fixture up to the 13th October, 1980 when it was dismissed, and submitted that a careful perusal of the proceedings shows clearly that the delay suffered in the hearing of the case was due largely to the necessary time taken by the numerous parties in the case in the preparation and filing of their respective pleadings. He also pointed out, quite correctly in my view that it was only on one occasion that the appellants asked for an adjournment of the case and that was on 17th March, 1980 when their counsel was away in the United Kingdom for medical treatment.

It was contended on of the 2nd, 3rd and 4th Respondents that the fact that the case had not taken off ten years after the filing of the writ of summons was a clear indication that the appellants were reluctant to prosecute the case. On behalf of the 5th and 6th respondents it was submitted that throughout the life span of the case in the High Court before it was dismissed on 13th October, 1980, there were altogether twelve interlocutory applications out of which eight were at the instance of the appellants.

It was submitted on behalf of the 10th – 13th respondents that the learned trial Judge correctly exercised his discretion when he dismissed the appellants’ case and that the Court of Appeal was right in affirming that decision. In this regard reference was made to a portion of the judgment of Lord Denning M. R. (as he then was) in the case of Allen v. Sir Alfred McAlpine and Sons Ltd. (1968) 1 All E.R.545 at p.547 where he said:-

“If you read Eaton vs. Storer (1982) 22 Ch.D.91 carefully, it will be seen that the practice described by Sir George Jessel, M.R. applies only to moderate delays of two or three months. It does not apply when “there is some special circumstance such as excessive delay.”

The principle on which we go is clear: when the delay is prolonged and inexcusable, and is such as to do grave injustice to one side of the other, or to both, the court may in its discretion dismiss the action straight away, leaving the plaintiff to his remedy against his own solicitor who has brought him to this plight. Now on the materials before the learned trial Judge was there any prolonged and inexcusable delay on the part of the appellants which was likely to do grave injustice to one side or the other My answer is no.

As was observed by this Court in Rev. Moses A. Abiegbe & Ors. v. Edheremu Ugbodume & Ors. (1973) 1 S.C.133 at p.139, it is best to carefully consider all the circumstances of each case before concluding that there was inordinate delay on the part of a party which will justify the dismissal of his case. It is a discretion which must be exercised judicially. In this case, I agree entirely with the submission of Dr. Odje, learned Senior Advocate for the appellants, that the facts on the record did not justify the conclusion of the learned trial Judge that the appellants were guilty of inordinate delay in prosecuting their case.

As the appellants’ appeal in the court below was dismissed solely on the ground that the learned trial Judge was right in his finding that the appellants were guilty of inordinate delay in prosecuting their case, which finding I have rejected, I do not think it is any longer necessary for me to consider the other issues raised by the appellants in this appeal.

The above are my reasons for allowing the appellants’ appeal on 19th November, 1990 and remitting the case to the High Court of Bendel State for hearing on the merits with #500.00 costs awarded in favour of the appellants.

UWAIS, J.S.C.: On the 19th day of November, 1990 we allowed this appeal and reserved our reasons fordoing so till today. I now give my reasons.

When the suit in the High Court came up as previously adjourned for hearing, the appearances were entered in the Judge’s (Akpata, J., as he then was) record as follows –

“10th defendant present,

O.U. Siakpere for plaintiffs,

O.N. Rewane for 1st, 5th, 6th and 9th defendants.

J.O. Obeahon for 10th to 13th defendants.

Mr. Siakpere stated as follows;

“I have not seen my client (sic) I saw him (sic) about six days ago, our Surveyor is dead. The 7th defendant is dead. I am surprised. I have no instructions. I cannot go on with the case.”

Learned Judge ruled as follows –

“This case was fixed for hearing on 26/6/80 for today and tomorrow. The plaintiffs are not in court. Suit No.W/115/69, a sister case, was struck-out for non-appearance of the same plaintiffs on 4/12/79. It does not appear to me that the plaintiffs are interested in prosecuting the case. There has been inordinate delay to prosecute case. The action is dismissed with costs.”

(Italics mine).

On appeal by the plaintiffs to the Court of Appeal against the finding of the learned Judge that there was inordinate delay in prosecuting the case, the Court of Appeal agreed with the decision of the trial Judge and stated as per Musdapher J.C.A., as follows-

“Learned counsel had appeared for the appellants, he said he had as (sic) instructions and could not proceed with the hearing of the mailer which was fixed for that day. He did not even ask for the adjournment of the matter, but simply refused to go on with the case. The writ of summons was filed for over a period of 10 years. The question now to be decided is what should the learned trial Judge do In my view, the learned trial Judge is justified in dismissing the action for failure to adduce evidence. See George Akinwade Jones and Another v. H.S.A. Thomas and Others (1962) L.L.R.9 Despite the inordinate delay the case had suffered on the 13th of October, 1980 a period of over 10 years when the appellants’ case was filed, the appellants “appeared” in court and-

(1) refused to adduced any evidence in support of their pleadings.

(2) refused even to ask for an adjournment, and

(3) threw the case to the learned trial Judge to do whatever he wanted to do. In my view, the appellants cannot now be heard to question the dismissal of their case by the helpless trial Judge.”

(Italics mine).

With respect, the observations underlined in the foregoing quotation were not the reasons for which the trial court dismissed the action. The Court of Appeal therefore misdirected itself in considering such matters as the reasons for dismissing the action by the trial Judge. Therefore, on a proper consideration of the reasons given by the trial Judge for holding that there was inordinate delay in prosecuting the case, was the learned trial Judge right in so holding In other words did he exercise his discretion judicially

Dr. Odje, learned Senior Advocate for the appellants, has convincingly shown to us that the delay in prosecuting the case could not be visited on the plaintiffs alone. The defendants were equally guilty, if not more responsible, for causing the delay through numerous applications for adjournment. Furthermore, learned Senior Advocate has clearly shown that the learned Judge misapprehended what took place in the sister case No.W/115/69. Some of the plaintiffs on the present case were in fact defendants in that a case, which was struck out for want of prosecution and non-appearance by the plaintiffs therein.

Whilst inordinate delay by a plaintiff in the prosecution of his case should not be unduly tolerated by trial courts, in the present case, although the case had been pending for hearing before the High Court for about ten years, the responsibility for the delay was wrongly visited on the plaintiffs by the learned Judge. Consequently, he did not exercise his discretion judicially and the appeal must be allowed even on this issue alone.

It is therefore for these and the reasons given by my learned brother, Kawu, J.S.C. the draft of which I read in advance, that I allowed this appeal, set aside the decisions of the High Court and the Court of Appeal and made the order that the trial of the case in the High Court should be resumed with urgency, since the case had by then been pending for hearing for over 20 years. #500.00 costs were awarded to the appellants.

NNAEMEKA-AGU, J.S.C.: On the 19th of November, 1990, this court heard this appeal. After reading the record of proceedings and briefs of counsel on all sides and listening to the arguments of counsel on behalf of the parties, I allowed the appeal summarily and reserved the reasons for my judgment till today. I now give the reasons for my judgment.

I have had the opportunity of reading in advance the Reasons for Judgment just delivered by my learned brother, Kawu, J.S.C. I agree with him; but wish to add some comments of my own.

In 1970 the appellants commenced an action against all the defendants for a declaration of title to a piece or parcel of land situate at Ekurede village Warri, damages for trespass against the 1st, 5th to 8th defendants, declarations that a lease and sub-lease of a portion of the land to the 1st, 5th and 6th defendants were null and void ab initio, a declaration that the sale of a portion of the land by the 7th defendant to the 8th defendant was null and void ab initio, and perpetual injunction against all the defendants. After the exchange of pleadings, the case was fixed for hearing on the 13th and 14th of October, 1980. Before that date, it had come up several times, sometimes for hearing and at other times for mention. It is, however, pertinent that, apart from the 13th day of October, 1980, when the plaintiffs’ case was dismissed, the only occasion when they were responsible for the adjournment of the case was on 17th March, 1980 when they were present but could not go on because their counsel was reported sick and receiving medical treatment in the United Kingdom. I shall come back to this later.

However, the record of the proceedings on the 13th of October, 1980 runs thus:-

“10th defendant present.

O. U. Siakpere for plaintiff.

O.N. Rewane for 1st, 5th, 6th and 9th defendants.

J.O. Obeahon for 10th to 13th defendants

Siakpere: I have not seen my client. I saw him about six days ago. Our Surveyor is dead. The 7th defendant is dead. I am surprised. I have no instructions. I cannot go on with the case.

Court: This case was fixed for hearing on 26/6/80 for today and tomorrow. The plaintiffs are not in court. Suit No. W/115/69, a sister case, was struck out for non-appearance of the same plaintiffs on 4/12/79. It does not appear to me that the plaintiffs are interested in prosecuting the case. There has been inordinate delay to prosecute case. The action is dismissed with costs”.

It appears from the above record:

(i) That the learned trial Judge proceeded to dismiss the case without any hearing and when there was no application so to do by any of the defendants.

(ii) That the learned Judge proceeded so to do because the plaintiffs were not in court and their counsel stated he could not go on with the case. Clearly defendants numbers 2, 3, 4, 7 and 8 were absent and not represented by counsel.

(iii) The main reasons for the dismissal would appear to be:

(a) that there has been inordinate delay, and

(b) that the plaintiffs were also plaintiffs in the sister case of suit

No. W/115/69 which was also struck out for the non-appearance

of the same plaintiffs.

(iv) The dismissal was by the invocation of the courts coercive powers as it was not asked for and there was no hearing at all.

(v) When learned counsel for the appellants stated that he could not go on with the case he was not heard as to what order the court should have made.

However the plaintiffs’ appeal to the Court of Appeal was dismissed. The plaintiffs (hereinafter called the appellants) have further appealed to this court. The defendants shall be called the respondents. The issues for determination have been set out in the appellants’ brief thus:-

(i) Whether there was inordinate and/or inexcusable delay on the part of the appellants to prosecute this case.

(ii) Whether the Court of Appeal was right in holding that on 13th October, 1980 the learned trial Judge could not have acted under the provisions of Order 26 Rule 6 of the Bendel State High Court (Civil Procedure) Rules 1976 investing him with a discretion to make any order other than that of dismissal of the claim.

(iii) Whether on the facts and in the circumstances of this case, the Court of Appeal was justified in affirming the decision of the learned trial Judge dismissing the appellants’ case without a hearing on the merits.

On the issue as to whether or not there was inordinate delay, it is helpful to set out the course of the proceedings and the reasons for the different adjournments. The dates when the case came up for hearing were as follows:

(a) 26/4/76 Case adjourned to 2/7/76 for mention and possible fixture.

(b) 8/9/76 Case adjourned to 29/11/76 for mention and possible fixture following the extension of time granted by Court to the 1st to 6th and 9th to 13th respondents to enable them file their respective statements of defence.

(c) 29/11/76 Case adjourned to April 11-15, 1977 for hearing.

(d) 9/5/77 Case adjourned to October 12-14, 17-18, 1977

(e) 10/5/77 For definite hearing, provided cases already adjourned for these dates cannot go on.

(f) 14/9/78 Case adjourned to December 20-22, 1978.

(g) 20/12/78 Case adjourned to 11/4/79 for mention to enable the position of the 1st respondent to be clarified in the light of the provisions of the Land Use Act No.6 of 1978.

(h) 11/6/79 Case adjourned to 11/9/79 for mention

(i) 4/12/79 Case adjourned to March 17 and 18 1978 (Sic) for hearing.

(j) 17/3/80 Case adjourned to 26/6/80 for hearing because of the absence of the appellants’ counsel who was reported to be then very ill, and receiving medical treatment in the United Kingdom.

(k) 26/6/80 Case adjourned to October 13-14, 1980 for hearing, because of the application by the 10th to 13th respondents for leave to file their amended statement of defence.

(l) 13/10/80 The proceedings and events of this day gave rise to this appeal.

It may be observed that although the case had been pending since 1970, pleadings were in fact not finally settled until the 26th June, 1980, when the 10th to 13th respondents were granted leave to amend their statement of defence. The appellants could not be expected to go on until that stage. Although as pointed out by learned counsel for the 5th and 6th respondents the appellants filed eight of the twelve interlocutory applications in the case – for joinder, extension of time to file their statement of claim and so on, I see them, if they were faults at all , as those of counsel. In any case, the court exercised its discretion according to the merits of each of those applications. As I stated above, the appellants had had to ask for an adjournment only once that is on 17th March, 1980, due to circumstances beyond their control. The court and the respondents were also sometimes responsible for the adjournments. On the other side of the scale is the fact that the case had been pending for about ten years. Was there inordinate delay in the circumstances. While Dr. Odje, for the appellants submitted there was not, Messrs Jemide Edodo, and Urowayino for the respondents contended that as the case had been pending for ten years, there was undue delay. They made heavy weather of the decision of Denning, L.J. in Allen v. Sir Alfred McAlpine & Sons Ltd. (1968) 1 All E.R. 544, at p.S47 where he stated:

“If you read Eaton v. Storer (1882) 22 Ch.D.91 carefully, it will be seen that the practice described by Sir George Jessel, M.R. applied only to moderate delays of two or three months. It does not apply when there is some special circumstance such as excessive delay. The principle on which we go is clear: when the delay is prolonged and inexcusable, and is such as to do grave injustice to one side or the other or to both, the Court may in its discretion dismiss the action straight away leaving the plaintiff to his remedy against his own solicitor who has brought him to this plight.”

(Italics and parenthesis mine).

It is noteworthy that even the above ratio of Lord Denning does not contemplate that for the Court to properly invoke its powers and dismiss the suit against the plaintiff, all that needs to be shown is that the case has been pending for a long time. No: the delay must also be inexcusable and also be such that injustice will result to one party or both if the action is not dismissed. The three conditions must co-exist. In considering whether there has been inordinate delay. I am bound to take cognizance of our local conditions. I must advert to the apt warning of this court where it stated, per Sowemimo, J.S.C. (as he then was) in Rev. Moses A. Abiegbe & Ors. v. Edheremu Ugbodume & Ors. (19730 1 All N.L.R. (Part 11) 52, at p. 63 thus:

“It is not necessary to re-state the principle under which a discretionary power is exercised by a court. It is, however necessary to point out that in deciding to exercise such a discretion, local conditions should always be taken into consideration. It has been pointed out quite often, decisions in English courts applying some principles of law or practice to circumstances obtaining in that country, are not necessary guidelines to the application of such principles to local conditions., situations or circumstances. It requires to be emphasized that whilst English decisions can be of considerable help in the examination and application of many principles of law, the determination of the meaning and effect of primary facts as affected by such principles depend absolutely on the given situation or circumstances existing in this country. It is tempting, and sometimes attractive, to adopt descriptive words as “inordinate”, ‘inexcusable’ or ‘unreasonable’ as characterizing some facts peculiar to cases here in Nigeria, in order to make applicable English decisions in which those words have been used.”

I agree with this opinion. It is of material and relevant significance that while Lord Denning thinks that a delay of over 2 or 3 months in England is inordinate, I can take notice of the fact that most land cases in our trial courts in many states of the Federation last for many years. Moreover, a good number of the adjournments shown above were caused by the respondents and the court itself and cannot be part of the inordinate delay by the appellant. I do not think that in the circumstances of this case, on the facts outlined above the delay can be described as inexcusable when the statement of defence was not ready by the last date of adjournment, and so, the case was

not ready to go to trial. We cannot therefore, take the period which can constitute inordinate delay in England to be necessarily so in Nigeria.

It is true that whereas in England there are quite a lot which a plaintiff can do to expedite the trial. Under various provisions of the rules, he can easily get the Master to make an order to set down the cause for trial expeditiously. On a summons for directions which must be taken out within a certain period after the close of pleadings, the Master must fix a period of days within which the plaintiff is to set down the action for trial (order 34 rule 2).

If it appears that an action in a London Court ought to be expedited, the Master may direct the plaintiff to make an application to the Clerk of the Lists under the L.C.J’s Practice Directions of December, 9, 1958, para. 3, to fix a date for the hearing. This order commonly called “an order for speedy trial” must be made within a week. There are also provisions for Short Cause List for action in the Queen’s Bench Division not expected to take more than two hours, summary judgments for actions where it is believed that the defendant has no defence to the action; and also Judges more regularly make orders for accelerated hearing on applications for interlocutory injunctions. Commercial cases are also tried in the Commercial List in the Queen’s Bench Division for reasons of expedition.

These cases may be tried only, or mainly, on documents, on points of claim or defence ordered in place of pleadings. The sum total of all these is that causes and matters are disposed of more expeditiously and delays are a matter of months and can be avoided by a plaintiff. So the concept of inordinate delay as mentioned in such cases as –

Birket v. James (1978) A.C. 297;

Wallersteiner v. Moir (1974) 3 All E.R. 217 and

Sweeney v. McAlpine (1974) 1 All E.R. 474 must be applied from this background.

In Nigeria, the situation is different. Lists are very long and the machinery for the disposal of cases is less expeditious. Litigants are at the mercy of courts in that, except in cases in which accelerated hearing is granted for very special reasons, cases must take their turn as in the cause list. In the midst of such systemic causes of delay, the concept of inordinate delay for which a plaintiff can take the blame is different. Importantly, it cannot be looked at solely from the length of time since the case was filed. Nor can the court rightly put the whole blame on the plaintiff where, as in this case, both the defendants, the court itself and the machinery for administration of justice all contributed to the delay in hearing the case: see Odesanya v. London African & Overseas Ltd. CA/L/51/81 of 3/12/81 (unreported).

As for whether the justice of the case supported the course taken by the learned trial Judge and confirmed by the Court of Appeal, I must note that the subject-matter of the suit is land. This Court has in the case of Chief James Ntukidem & Ors. v. Chief Asuquo Oko & Ors. (1986) 5 N.W.L.R. (Pt .45) 909 emphasized the need to decide land cases on their merits. I need hardly reiterate it here. I appreciate the fact that it can be very irritating, in fact annoying, for a court to come to court ready to hear a case, particularly at a special fixture, and a party or its counsel just decides to frustrate the hearing. But the court must balance this feeling, justifiable as it may be, with the consideration that land litigations are still very sensitive issues in most parts of Nigeria. An uncanny decision in a land case can lead to a breakdown of law and order. Dismissal of a land case has the effect of shutting the plaintiff out from the seat of justice for good: see Eronini v. Iheuko (1989) 2 N.W.L.R. (Pt.101) 46; also Okpala v. Iberne (1989) 2 N.W.L.R. (Pt.102) 208. As it is so, it is difficult to see how dismissal of plaintiffs’ case without a hearing and when they had not been clearly shown to have been tardy in the prosecution of their case could be in accord with the justice of the case. So even the principle in Allen v. Sir Alfred McAlpine & Son Ltd. (supra) upon which the respondents are relying to support the decision does not help them. I must therefore resolve the first issue in favour of the appellants.

The second issue raises the question whether the Court of Appeal was right to have held that it was not open to the learned trial Judge to have acted under order 26 rule 6 of the Bendel State (Civil Procedure) Rules which invested him with a discretion to make any order, apart from one of dismissal.

Learned counsel for the appellant conceded it that on the decision of this Court in Kehinde v. Ogunbunmi (1968) NMLR 37 a plaintiff whose solicitor appears in court, even though he himself is absent “appears” within the meaning of the provision. But counsel tried to distinguish this case from Kehinde’s Case (supra) in that, according to him, in that case the solicitor was instructed to proceed whereas in the instant case counsel stated that he had no such instruction. Also in this case the evidence of the plaintiff was necessary to prove the case. He relied on Aguda: Practice and Procedure of the Supreme Court, Court of Appeal and High Courts of Nigeria: (1980), p.459 and the decision of the Court of Appeal No.FCA/B/123/83; Oguma Associated Companies (Nig.) Ltd. v. Yoma Esiso & Ors. of the 10th of July, 1984 (unreported): In the alternative, he submitted that the court could have adjourned the case to enable the plaintiffs attend the court and testify. He submitted that on the decision of this court in Abiegbe v. Ugbodume & Ors. (1973) 1 All N.L.R. 52 the trial court could have struck out or adjourned the case.

Learned counsel for the 2nd-4th respondents pointed out, rightly I hold, that the learned trial Judge did not state that he was acting under order 26 rule 6. Learned counsel for the 10th to the 13th respondents submitted that the power of the learned trial Judge to dismiss the action was derived from the inherent jurisdiction of the court and not under order 26 rule 6 and that the dismissal order was in order. According to learned counsel for the 5th and 6th respondents, the cases cited by learned counsel for the appellants are not in point, as order 26 rule 6 was not applicable.

I agree with learned counsel for the 2nd to 4th respondents that the learned trial Judge did not say that he was invoking his powers under order 26 rule 6 of the Bendel State (Civil Procedure) Rules, 1976. That rule was only imported into the proceedings by the Court of Appeal while trying to justify the order of dismissal made by the learned trial Judge. In the circumstances, I believe that my inquiry should be directed into finding out whether the learned Judge had power to have made the order and whether it was justifiable in the circumstances of the case.

I must say straight away that in my respectful opinion, order 26 rule 6 could not have been the proper authority for the court’s decision on the matter. This is because order 26 rule 6 is designed to deal with a situation where a plaintiff does not appear when a cause or matter fixed for hearing has been called. But by the clear decision of this court in Sanni Kehinde (Mogaji Agunbiade) v. Amole Ogunbunmi & Others (1967) 1 All N.L.R.306, at p.309 a plaintiff who is not present in person but is represented by his legal practitioner who is present in court “appears” within the meaning of order 26 rule 6. So, the appellants appeared on the date in question within the meaning of that rule.

But that is not the end of the problem posed by this appeal. The crux of the problem is that under the rules, although every legal practitioner who has been engaged in a cause or matter has the duty to conduct it to conclusion unless, for special reason, he is excused by court, his duty does not include giving evidence on behalf of his client. So, much as it is immaterial that on the 13th of October, 1980, the learned counsel for the appellants stated that he had no instructions -whatever that meant – the fact remained that the failure to give evidence, which was the other main reason for the dismissal, was the function of the party, and not that of counsel. This is a special feature of this case which distinguishes it from Kehinde’s Case (supra) which was decided on whether the plaintiff was bound to be present in order to appear, within the meaning of the rule, if his counsel was present in court. It appears to me that within the rule counsel can satisfy the technical requirement of “appearance” on behalf of his client as the legal practitioner representing him but cannot “appear” when that is tantamount to fulfilling the requirement of giving material evidence for or on behalf of his client. Indeed the attitude of the law is that although there is no statutory provision in the Evidence Act prohibiting counsel who is appearing for a party in a case from giving evidence in the case, it is contrary to the practice of the Courts, is irregular, and capable of rendering the trial unsatisfactory, for counsel to give evidence in the case and continue to act as counsel therein. See Adesanya Idowu v. Adekoya (1960) W.N.L.R. 210; also Iris Winifred Horn v. Robert Rickard (1963) 2 All N.L.R 41. As it is so, can it be said that the case was rightly dismissed for counsel failing, or refusing, or neglecting to do what the law clearly frowns at I think not.

But then, the learned justices of the Court of Appeal, stated at page 233 of their judgment:

“In my view, the learned trial Judge is justified in dismissing the action for failure to adduce evidence. See George Akinwade Jones & Anor. v. H.S.A. Thomas & Ors. (1962) L.L.R.9. Despite the inordinate delay the case had suffered on the 13th of October, 1980 a period of over 10 years when the appellant’s case was filed, the appellants “appeared” in court and –

(1) refused to adduce any evidence in support of their pleadings.

(2) refused even to ask for an adjournment, and

(3) threw the case to the learned trial Judge to do whatever he wanted to do.

As it was recorded that the appellants themselves were absent, it is clear that they could not by themselves have refused to adduce evidence. That was obviously imputed to them on the ground that they were present by their counsel. But I have shown that that was of no consequence in so far as it was a question of failure to give evidence, as that was not a part of the duty of counsel. As for their refusing to apply for an adjournment and throwing the case to the trial Judge to do whatever he wanted to do, I do not think that the records stated so. It appears that the better view is that as learned counsel stated, he was surprised and bewildered by the surprise he got by the absence of his clients and their witnesses. He scarcely finished when the learned trial Judge cut in and gave his ruling and dismissed the case. It would, of course, be irritating to any trial Judge to have come to court prepared for a two-day of trial on a special fixture only to have a two-day unexpected holidays forced down on him. The only question in this appeal is not whether he was right, as I believe he was, to have reacted adversely to the situation. It is, however, whether he made the order which the justice of the case justified.

Before I go further, I should ask whether any other orders, apart from that of dismissal, were open to the learned trial Judge. I must note that under Order 26 rule 5 of the Rules:

“(1) The Court may postpone the hearing of any cause on being satisfied that the postponement is likely to have the effect of better ensuring the hearing and determination of the questions between the parties on the merits, and is not made for the purpose of mere delay. The postponement may be made on such terms as the Court seem (sic) fit.”

Moreover, as the court was a superior court of record it had all the inherent powers and sanctions of a court of law (see Section 6(6)(a) of the 1979 Constitution). And it is settled that, apart from the rules, a court of record has an inherent power to postpone the hearing of any matter set down for hearing before it if the justice of the case so demands: see Hinckley & South Leicestershire Permanent Benefit Building Society v. Freeman (1941) Ch.32. So, I hold that an order for adjournment of the suit was one of the orders open to the court on the day in question. Also, an order of striking out the suit could on the rules and on invocation of the court’s inherent power, be made in a variety of cases where an order of dismissal could have been made if the justice of the case so demanded.

This brings me to the final question: was the court of trial right to have opted to dismiss the case rather than make any other order, considering the fact that it could have struck it out or adjourned the proceedings. Was the Court of Appeal right to have confirmed it To answer these questions correctly, I must advise myself that they bring me thus face to face with the tricky question of appeal against the exercise of its discretion by the High Court – a discretion that is neither that of this Court nor that of the Court of Appeal. The principle that has emerged from decided cases on such appeals is that, as it is not the discretion of this court, the question is not whether or not this court could have exercised it differently and made a different order. It is rather that while it is not doubted that the exercise of its discretion by a court of trial may be reviewed on appeal, the appellate court must not interfere if the discretion has been exercised judicially and judiciously, that is bona fide, and not arbitrarily or illegally and without reference to extraneous considerations or otherwise in a manner that does not meet the ends of justice. The appellate court will only interfere if it is satisfied that the discretion was exercised on wrong principle based on the above criteria.

See on this – The Resident Ibadan Province v. Lagunju (1954) 14 W.A.C.A.549, p.552

Aruna Kudoro v. Alaka (1956) 1 F.S.C.82 at 83; (1956) SCNLR 255

University of Lagos v. Aigoro (1985) 1 N.W.LR. (Pt.1) 143 at p.148.

The above principles come under closer examination when, in a case like this, the discretion has been exercised in such a manner as to defeat the rights of any of the parties altogether. The manner of exercise of it is similarly scrutinized when it appears that it results in injustice against one of the parties.

As I pointed out above, the learned trial Judge dismissed the case for a B number of reasons, namely:

(i) That the appellants who appeared by their counsel were not ready to go on with the case which had been fixed for two days;

(ii) That there has been inordinate delay;

(iii) That the appellants were plaintiffs in a sister suit of W/115/69 and similarly backed out when the suit came up for trial so that it had to be struck out.

(iv) It is also noteworthy that the case was dismissed without an application to that effect by the respondents and, in fact without the parties being heard.

It appears, from what I have been saying, that none of these alleged defects could support the decision. Although the appellants technically appeared by counsel in terms of order 26 rule 6 of the Rules, it was none of the functions of the learned counsel to give evidence. Also even counsel himself was surprised about the absence of his clients. Could the case not have been stood down or adjourned till the following day for counsel to investigate the reasons for the absence of his clients As pleadings were not fully settled till the 26th of June, 1980, when the amended statement of defence filed by the 10th to 13th respondents was regularized, and, as it appears that the appellants were not solely responsible for the failure of the case to go to trial for ten years since it was filed, they could not have been rightly held solely responsible for any undue delay. Also, as it emerged, one of the appellants was a defendant and not the plaintiff in suit No.W/115/69. So, they could not be rightly charged with backing out and causing the case to be struck out when the stage was set for the hearing. It is important to note that in circumstances such as the one that arose in court on the 13th of October, 1980, the court ought to hear the parties as to the proper order to be made, before an order was made. This Court emphasized this in Odusote v. Odusote (1971) 1 N.M.L.R. 228. Indeed for a court to make an order which no party has asked for and on which the parties were not heard is a breach of the party’s constitutional right of fair hearing. For all the above reasons, I am satisfied that the learned trial Judge both proceeded on wrong principles and was influenced by a misapprehension of the true facts in suit No.W/115/69. It is of material significance, too, that defendants numbers 2, 3, 4, 7 and 8 were not in court at all, were not represented, and could not be heard. Yet costs were awarded in their favour. I am, therefore, satisfied that the High Court exercised its discretion on wrong principles. So, this Court has the right, indeed the duty, to interfere.

Considering what correct order should have been made, I must re-affirm the principle that since the abolition of the old practice whereby a plaintiff could during the proceedings elect to be non-suited to enable him to begin again, the law is now firm that once the preliminaries are closed, the case fixed for hearing, and the stage set for the real conflict, the plaintiff can no longer elect to back out, as it were through the back door, only to begin again. Once that stage is reached and he elects to offer no evidence then, unless the court grants him leave to discontinue with leave to come back, the court may proceed to dismiss his case, save where the circumstances justify an order of non-suit (in the modern sense) or one of striking out. See on this Nwobu Nwachukwu & Ors. v. David Nze & Ors. (1955) 15 W.A.C.A. 36. The House of Lords re-affirmed the same principle in Fox v. The Star Newspaper Co. Ltd. (1900) A.C.19, per Lord Halsbury, L.C. As that is the law, I should not be understood to say that an order of dismissal for refusal or failure to give evidence is wrong in all cases. But being an order which has the effect of defeating the rights of the parties altogether and for good, it is one which this Court may review and sometimes intervene in the interest of justice. See-

Anisiuba v. Emodi (1975) 2 S.C.9

Maxwell v. Keun (1928) 1 K.B.645

Evans v. Bartam (1937) A.C.473.

In any event, it would be difficult to apply the principle in the case of Nwachukwu v. Nze (supra) in a case like this in which the plaintiffs were absent for some inexplicable reason, to the surprise of their counsel. It would be difficult to say that they refused to give evidence when they were absent. After considering all the circumstances of the case, I am satisfied that the ends of justice would have been best met by an adjournment, with costs. Let me emphasize that most faults of parties in court may better be compensated for by an award of costs rather than driving them away from the seat of justice.

Before I conclude, I wish to state that this case is, no doubt, the clearest illustration of what Lord Evershed had in mind when he said in Windsor Refrigerator Co. Ltd. v. Branch Nominees Ltd. (1961) Ch.375, at page 396:

“My experience has taught me (and this case emphasizes the teaching) that the shortest cut so attempted inevitably turns out to be longest way around.”

The suit in a land case was dismissed without a hearing in 1980. In 1991, it has been sent back for a hearing on the merits. This puts a big question mark on such short-cuts to justice. For the above reasons and those contained in the Reasons for judgment just delivered by my learned brother, Kawu, J.S.C.I allowed the appeal on the 19th day of November, 1990 and subscribed to the orders made.

WALI, J.S.C.: On 19th November, 1990 after studying the record of proceedings filed in this appeal, the brief of arguments filed by learned counsel on both sides and the oral submissions in elaboration thereof, I allowed the appeal and remitted the case to the High Court of Bendel State for hearing on the merit. I now proceed to state my reasons.

I have been privileged to have read before now the lead reasons for judgment of my learned brother, Kawu, J.S.C. with which I hereby entirely agree and adopt as mine as it was for these same reasons that I too allowed the appeal on 19th November, 1990 and made the consequential orders that of costs inclusive.

I have nothing more useful to add.

OLATAWURA, J.S.C.: On 19th November, 1990 after going through the record of appeal, the briefs filed by the parties and after listening to the Counsel on all sides I allowed the appeal and I indicated that i would give my reasons today.

I had a preview of the reasons given by my learned brother, Kawu, J.S.C. I will, with respect, adopt them as my own. My learned brother has carefully set out in details the sequence of events so far as they are material to the issues raised before us and I need not go into the hislory of the case except where it may be necessary to highlight any point.

This case has brought into focus the delay in the trials of cases and for which the Courts have consequently been at the receiving end. The peculiar circumstances of each case are not taken into account by members of the public. A generalization that the courts cause the delays has pushed to the background the roles played by litigants and counsel. True it is the demands of justice that cases should be heard expeditiously cannot often be met in view of certain constraints. In this appeal the parties and their counsel played dominant roles about what the learned trial Judge called “inordinate delay.”

As clearly set out by Kawu, J.S.C. in his judgment, although the Writ was filed on 5th June, 1970, the case was not ready for hearing until 26th June, 1980. What were the reasons There were applications on both sides for one thing or another in order to bring before the Court the real issues. Were the applications frivolous The record of appeal does not show that the applications made by the parties were in any judicial sense frivolous. The proceedings of 13th October and the reasons given by Counsel for the plaintiffs who are the appellants in this court led to the dismissal of the suit. The case was adjourned for hearing on 13th and 14th October, 1980.

On 13th October, Mr. Siakpere said:

“I have not seen my client. I saw him about six days ago. Our Surveyor is dead. The 7th defendant is dead. I AM SURPRISED. I have no instructions. I cannot go on with the case”

(Capital supplied).

The Court in my view, ought to have adjourned the case to the next day i.e. 14/10/80 to enable counsel find out about his clients more so when he said he was “surprised” at their absence in court. Besides, a counsel who appeared in court when the case was to be heard and who later said he had no instruction should be asked to explain. There is a difference between seeking permission to withdraw from a case and having no instructions. Counsel appears in court on instructions of their clients. Once he appears in court, he can only withdraw with the leave of court.

When we talk of inordinate delay, there are many factors that contribute to the delays in the trial of cases; adjournment on the part of the court because-of older cases or due to accumulation of too many part-heard cases, applications on part of Counsel either due to ill-health of counsel on vital witnesses, or absence of witnesses even after they have been duly served, or unforseen urgent applications which from their nature must take precedence over cases already fixed for hearing. Each application for adjournment will be considered on its merit bearing in mind the justice of the case.

From the proceedings of 13th October, 1980 already reproduced in the judgment of my learned brother, Kawu, J.S.C. there is no gain-saying that the learned trial Judge was influenced in his final decision by what he considered the ineptitude of the appellants in a sister case; W/115/69. This erroneous conclusion was corrected in the contribution of Ogundere J.C.A. to the lead judgment of Musdapher, J.C.A. I however disagree with Musdapher, J.C.A. when he described the situation in which the Judge found himself as “helpless.” It is acknowledged that it is sometimes frustrating when a Judge is fully prepared to hear a case only to be faced with an application for adjournment. If he had struck out the case as against the dismissal which permanently deprived them of having their case heard on merit, I am sure the appellants would have had the case relisted. The power of the court to dismiss cases without affording the parties the opportunities to hear their cases on merit must be used if at all, sparingly. In Allen v. Sir Alfred McAlpine & Sons Ltd. (1968) 2 Q.B. 229/245 Lord Denning when faced with a similar situation said:

“The delay of justice is a denial of justice. Magna Carta will have none of it. To no one will we deny or delay right of justice.”

All through the years men have protested at the law’s delay and counted it as a grievous wrong, hard to bear. Shakespeare ranks it among the whips and scorns of time. Dickens tells how it exhausts finances, patience, courage, hope. To put right this wrong, we will in this court to all in our power to enforce expedition; and, if need be, we will strike out actions when there has been excessive delay. This is a stern measure. But it is within the inherent jurisdiction of the court….

This question of delay is not peculiar to England. Fortunately, Nigerian Constitution is not silent. It gives the courts the power to act swiftly but fairly as provided by the enshrined provision of section 33(1) of the 1979 Constitution of the Federal Republic of Nigeria which deals with fair hearing. I agree with Dr. Odje in his brief when he said:

“There is therefore no gainsaying that the determination of their case in the circumstances set out above has caused injustice to the Appellants in that the dismissal had defeated and destroyed not “only their claim to the land in dispute, but indeed, their very right to have their case determined on the merit.”

Let no man walk out of our courts disappointed in the administration of justice. He will prefer to lose the case on its merits than to allow his opponent win by default. There is no provision for a walkover in our adversary system. It is not a game of football or a tennis competition. It must be shown and seen that any party has a fair trial.

It is for the above reasons and for the fuller reasons given by my learned brother, Kawu, J.S.C. that I allowed the appeal and ordered that the case be heard on merits by another Judge of Bendel State High Court.

Appeal allowed.

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SC.84/1988