Universal Oil Limited & Anor V. Nigeria Deposit Insurance Corporation (2008)
LawGlobal-Hub Lead Judgment Report
HUSSEIN MUKHTAR, J.C.A.
This appeal is against the ruling of the Federal High Court, Lagos delivered by C. Nnamani, J on the 18th July, 2001. The facts of the case may be summarized thus:
Sometime in May 1999 the respondent as receiver/liquidator of Great Merchant Bank Ltd filed an application with suit No. FBFMT/L/Z11/CV/80/99 for the recovery of debt before the Lagos Zone (VII) of the Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Tribunal.
Upon the dissolution of the Failed Banks Tribunal, the application which was still pending before the said tribunal when it was transferred to the Federal High Court (Lagos Division) and assigned for hearing before the Honourable Justice C. Nnamani, with suit number FHC/L/FBC/80/2000.
The respondents claim in the said application was for thirteen million one hundred and eighty three thousand, eight hundred and sixteen naira, twenty eight kobo (N=13, 183,816.28) being the balance remaining unpaid in respect of two million, five hundred and eight one US dollars ($2, 508, 001) ADB/ESL facility granted to the appellant by the defunct bank which balance the appellants have failed to pay and interest on the said sum at 21% per annum from 1st February, 1999 until the entire sum is liquidated.
The appellants entered appearance on 31th May 1999 and the suit was set down for hearing but was not heard on seven previous adjournments until 27th April 2001.
On 27th April 2001 when the suit was called up for hearing the plaintiff/respondent counsel informed the court that he was not able to procure his witness and urged the court to grant him an adjournment to enable him properly present his case. The suit was consequently adjourned to 8th May 2001 for definite hearing or striking out having regard to the protracted history of the case.
On 8th May 2001 when the suit was again called up for hearing, the plaintiff/respondent’s counsel upon being requested to proceed informed the court that though he had his witness in court, he could not proceed to trial but rather requested for a short adjournment to enable him file a formal application as defendant had not filed a state of defence.
The court observed that the suit was slated for definite hearing or striking out as at the last adjourned date having unnecessarily suffered several adjournments. They refused to grant an adjournment and ordered the plaintiffs/respondent’s counsel to proceed with the case, the failure of which led to striking out of the suit.
On 24th May 2001 the respondent’s counsel filed an application praying the court for an order relisting the suit. The appellant opposed the application but His Lordship granted the application and proceeded to relist the suit. Being dissatisfied with the ruling of the court relisting the suit the appellant filed this appeal.
The lone ground of appeal and its particulars are that:
“The trial Judge erred in law in ordering the relisting of suit No. FHC/L/FBC/30/2000: NDIC VS UNIVERSAL OIL LTD which was struck out on the 8th day of May 2001 for the failure of the plaintiff to proceed with the trial of the suit when called upon to do so.
PARTICULARS OF ERROR
a. The Federal High Court has no power under the Federal High Court (Civil Procedure) Rules 2000 to order the relisting of a suit that was struck out for failure of the plaintiff to proceed with the trial of his suit when called upon to do so.
b. Accordingly, the court lacked jurisdiction to entertain plaintiff’s application to relist the suit.”
The common issue raised by both learned counsel for determination is whether the Federal High Court has power to relist the suit which was earlier struck out for want of diligent prosecution.
It was a common ground that the rules of procedure of the Federal High Court do not make any provision for relistment of a struck out suit and no other law expressly empowers the Federal High Court to relist a strikeout suit. The learned counsel to the appellant contended that the Federal High Court, in the absence of any law allowing it to relist a suit does not have power or jurisdiction to relist. He relied on some authorities including MOLAJO VS ALAO (1971) All NLR 571 at 573; the SHELL PRETROLEUM DEV. & 5 ORS VS NWAKA (2001) 10 NWLR (pt. 720) 64 at 80; ARIYO VS OGELE (1968) An NLR 1.
The appellant’s counsel further argued that the court below could not have exercised inherent jurisdiction in the absence of any law permitting it to relist an already struck out suit. He contended that the inherent power of court is only exercisable to supplement its jurisdiction drived under a statute. In ADIGUN VS A. G. OF OYO STATE (No 2) (1987) 2 NWLR (pt. 56) 197 at 235, the Supreme Court per Oputa, JSC stated that:
“… It becomes an issue of vital importance to probe the meaning and nature of the inherent power of courts of law. Simply put, the inherent power of any court is that power which is itself essential to the very existence of the court as an institution and its ability to function as such institution namely as an institution charged with the dispensation of justice, … An inherent power has to be inherent in the sense that it forms an essential and intrinsic clement in the whole process of adjudication. It is inniate in a court, and is not a subject of specific grant by the constitution or by legislation … As soon as any court is established; all its inherent powers adhere and attach to it. Inherent powers of the court are therefore those powers that are reasonably necessary for the administration of justice in the court.”
In CONTINENTAL SHIPYARD VS EZIOGOLI SHIPPING LTD unreported appeal No. CA/L/97/2001 my learned brother Aderemi JCA (as he then was) expressed the following views:
“By that application it seems to me that the applicant is invoking the inherent jurisdiction of this court. Inherent jurisdiction is a very valuable adjunct to the powers conferred on the court by law and rules.”
The learned counsel to the respondent on the other hand submitted that the Federal High Court has been empowered by section 9 of the Federal High Court Act to adopt the procedure under the High Court of Lagos State (Civil Procedure) Rules. The provision states:
“The jurisdiction vested in the court shall, so far as practice and procedure are concerned, be exercised in the manner provided by this Act or any other enactment or by such rules and orders of court as may be made pursuant to this Act or in the absence of any such provisions, in substantial conformity with the practice and procedure for the time being in fore in the High Court of Lagos State,”
He also submitted that order 33 rule 1 of the High Court of Lagos State (Civil Procedure) Rules 1994 has made a provision for relistment of a suit, which has been struck out. It states:
“Where a cause on the weekly cause list has been called and neither party appears, the court shall, unless it sees good reason to the contrary, strike the cause out. Any cause thus struck out may, by leave of the court, be replaced on the waiting list kept under the provisions of Order 32 rule 1 on such terms and in such position as the court may think fit.”
The respondents’ counsel further submitted that the above provision equally applies to the case in hand even though it was struck out for want of deligent prosecution not due to absence of the parties. The respondents counsel also relied on the provision of order 54 rules 1 of the Federal High Court (Civil Procedure) Rules 2000, which states as follows:
“Subject to particulars rules, the court may in all causes and matters makes any order which it is considered necessary for doing justice, whether the order has been expressly asked for by the person entitled to the benefit of the order or not.”
This omnibus provision is usually invoked by the court in the exercise of its inherent jurisdiction as an adjunct where there is no clear provision in the procedural rules. My learned brother Oguntade, JCA (as he then was) in ABACHA VS STATE (2001) 3 NWLR (pt. 699) 35 at p. 45 para F was of the view that:
“The inherent jurisdiction of the court is an adjunct to assist the delivery of justice only when the laid down procedure is silent but it ought to be evocable only when it promotes the ends of justice.”
An inherent jurisdiction of court is that power which a court of law exercises for the purpose of doing substantial justice in any matter with which it is seized under certain peculiar circumstances. The inherent jurisdiction supplements the statutory powers of the court and is dictated by need for the court to fulfill itself in order to meet the ends of justice. The Supreme Court per Karibi Whyte, JSC in ADIGUN VS A. G. OF OYO STATE (supra) aptly stated this:
“Thus the inherent powers of the court can be invoked in the interest of justice to supplement the statutory jurisdiction where the exercise of such jurisdiction was likely to result in injustice. The inherent powers which a court is entitled to exercise merely because it is a court seems to me to be the exercise of an equitable jurisdiction which enables the court to fulfill itself as a court and to do substantial justice where necessary in the particular case.”
The jurisdiction of court below to relist the struck out suit is normally determinable from its rules of procedure, in the absence of which the issue of whether if it can, in the circumstances, exercise an inherent power will arise. While the procedural rules of the Federal High Court make no provision for relistment as conceded by learned counsel on both sides, section 9 of the Federal High Act has, in such a situation imported the practice and procedure for the time being in force in the High Court of Lagos State. Thus, in the exercise of its jurisdiction to determine the application for relistment, the Federal High Court must look at the Lagos State High Court (Civil Procedure) Rules and adopt the procedure as therein provided. Order 33 rules 1 of the Lagos rules provides for replacement on the wailing list in respect of suits struck-out due to absence of parties. The emphasis here is on the procedure for relistment of suits previously struck out, which forms the singular ground and issue for determination in this appeal. The Federal High Court must adopt a procedure that substantially conforms with the practice and procedure for the time being in force in the High Court of Lagos State.That procedure clearly provides for replacement of the suit struck out on waiting list rather than relistment as was done by the lower court. The respondent therefore, ought to have applied for leave to replace the suit on the waiting list and not no relist as they did. The court under such circumstances should have invoked its statutory or inherent power to strike out that incompetent process.
An inherent jurisdiction of a court is exercisable where no enabling law or rule of court is applicable in the circumstances, but cannot be exercised on the face of clear statutory provision. The Supreme Court in ECHAKA CATTLE RANCH LTD VS N.A.C.B. LTD (1998) 4 NWLR (pt. 547) 526 at p. 538 paras B-C per Uthman Mohammed, JSC held:
“Whenever the grounds for seeking a relief cannot be properly brought under a rule of court or any enabling statutory provision, courts can resort to the inherent jurisdiction of the court.”
Where the rules of court have made a provision in respect of reinstatement of suit, the court’s jurisdiction must only be invoked in accordance with the laid down procedure which provides for an application for leave to replace by refilling a fresh action in substitution for the one earlier struck out.
The jurisdiction of the court below is only exercisable in accordance with the procedure laid by the rules of court. The invocation of a self manufactured procedure by way of relistment renders the application before the lower court as improperly constituted and therefore incompetent. The court below acted without jurisdiction when it granted an order relisting the suit. The application to relist and the entire proceedings conducted by the court below including the order relisting the suit are void in law since the initiating motion is incompetent. The Supreme Court in Governor of KOGI STATE VS YAKUBU (2001) 5 NSCQR 598 at 607 per Uthman Mohammed, JSC expressed the following views.
“When a court finds an action improperly constituted, the proper order to make is to strike it out and not to dismiss it … Any further pronouncement on the merit of the action after it had been struck out is incompetent and outside the jurisdiction of the court…”
The defendants/appellants’ prayer for striking out the plaintiff/respondent’s action is superfluous since it had already been struck out by the trial court on the 8th May 2001 which order has not been appealed against and is therefore still valid and subsisting.
For the foregoing reasons my sight is very clear and well focused on allowing this appeal. The lone issue is resolved in favour of the appellants and the ground of appeal accordingly succeeds.
The proceedings of 18th July 2001 and the order for relistment granted by the lower court were null and void, and are accordingly struck out.
The appellants are entitled to cost assessed at N=30, 000.00
Other Citations: (2008)LCN/2630(CA)
