ABURIME v. ABUMERE (2020)

ABURIME v. ABUMERE

(2020)LCN/14116(CA)

In The Court Of Appeal

(BENIN JUDICIAL DIVISION)

On Friday, March 13, 2020

CA/B/192/2002

Before Our Lordships:

Tunde Oyebanji Awotoye Justice of the Court of Appeal

Moore Aseimo Abraham Adumein Justice of the Court of Appeal

Biobele Abraham Georgewill Justice of the Court of Appeal

Between

BENEDICT ANEGBE ABURIME APPELANT(S)

And

JULIUS ANEGBEMU ABUMERE RESPONDENT(S)

RATIO

THE FUNDAMENTAL PREREQUISITE TO VALID ADJUDICATION OF ONE’S CIVIL RIGHT

Now, the observance of the right of the citizen to fair hearing in the determination of his civil rights and obligations by every Court in the land is a fundamental prerequisite to valid adjudication to ensure that decisions are not reached without a hearing of the citizen.However, an allegation of denial of the right to fair hearing, as grave as it could be and the dire consequences it could have on the proceedings and decisions of a Court if proved, does not operate in a vacuum but is dependent on the facts and circumstances of each given case. In other words, whether the right to fair hearing was breached or not is a question of facts to be determined on the facts and circumstances placed before the Court.
The law therefore, is that each case of allegation of breach of the right to fair hearing must be decided on the peculiar facts and circumstances of each case. Thus, it is only when the facts are ascertained that the law would be applied to the facts so established to see whether or not such established facts constitute a breach of the party’s right to fair hearing. See Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), See also News – Watch Communications Limited V. Alhaji Ibrahim Attah (2006) 12 NWLR (Pt. 993) 144.
There can be no doubt that fair hearing, which in most cases is synonymous with fair trial and natural justice, is an issue which is clearly at the threshold of our legal system and thus once there has been a denial of fair hearing as guaranteed by the Constitution the whole proceedings automatically becomes vitiated. A denial of fair hearing can ensure from either the conduct of the proceedings and or the decisions of the Court in the hearing of a case. PER GEORGEWILL, J.C.A.

THE TRUE TEST OF THE FUNDAMENTAL RIGHT OF FAIR HEARING

Let me pause at once to note it, here and now, that the true test of fair hearing is indeed the impression of a reasonable person who was present at the trial whether from his observation justice has not only been done but is seen to have been done in the case. SeeOtapo V. Sunmonu (1987) 2 NWLR (Pt.58) 587. See also Wilson V. AG of Bendel State (1985) 1 NWLR (pt.4) 572; A. U. Amadi V. Thomas Aplin& Co Ltd (1972) All NLR 413; Mohammed Oladapo OjengbedeV. M. O. Esan & Anor (2001) 18 NWLR (Pt.746) 771. PER GEORGEWILL, J.C.A.

THE DISMISSAL OF A MATTER IN LIMINE

In law, dismissal of a matter in limine is perhaps one of the greatest punishments that a Claimant can be visited with by the Court in the litigation process. Thus, it must be only resorted to as a last resort and when there are no other viable and more tolerable option open to the Court. See S.D.C. Cementation (Nig.) Ltd & Anor v Nagel & Company Ltd &Anor (2003) 4 NWLR (Pt. 811) 611 @ pp. 640 – 641. See also Mrs. Janet Onsachi V. Abel Orji & Anor (1993) 3 NWLR (Pt. 284) 747. PER GEORGEWILL, J.C.A.

WHETHER OR NOT THE APPELLATE COURT CAN INTERFERE WITH THE EXERCISE OF DISCRETION BY A TRIAL COURT

In law, an Appellate Court will readily interfere with the exercise of discretion by a trial Court where (a) such exercise of discretion is deemed not to be in accordance with the dictates of justice and commonsense, or (b) there is any miscarriage of justice in the exercise of such discretion. This is clearly the circumstances in the instant appeal warranting out prompt interference with the wrongful exercise of discretion by the Court below. See University of Lagos V. Aigoro (1985) 1 NWLR (Pt. 1) 143 @ p. 148. See also Igwe V. Kalu (1993) 4 NWLR (Pt. 285) 1 @ p. 11; Oluwa Glass Company Ltd. V. Chief Oladapo Ehinlanwo (1990) 7 NWLR (Pt. 160) 14 @ pp. 31-32. PER GEORGEWILL, J.C.A.

THE PRINCIPLES GUIDING THE DECISION TO SUMMARILY DISMISS A SUIT

It must be remembered, and most pertinently too, that in law there are well laid down principles guiding the decision whether or not to summarily dismiss a Suit before the proper consideration and determination of the rights, obligations and liability of parties on the merit by a Court of law. These succinct principles include, but are not limited to the following, namely: (a) That the default of the Claimant was intentional and contumelious, e.g. disobedience to a peremptory order of Court or conduct amounting to an abuse of process of the Court; or (b) That there was inordinate and inexcusable delay on the part of the Claimant or his lawyers; and (c) That the delay will give rise to a substantial risk that it will not be possible to have a fair trial of the issues in the action, or the delay is such that have caused serious prejudice to the Defendants either as between themselves and the Claimant or between each other or between them and a third party. See Birkett v. James (1978) AC 297. See also Mrs. Janet Onsachi V. Abel Orji & Anor (1993) 3 NWLR (Pt. 284) 734 @ p. 744. PER GEORGEWILL, J.C.A.

BIOBELE ABRAHAM GEORGEWILL, J.C.A. (Delivering the Leading Judgment): This is an Appeal against the Ruling of the High Court of Edo State, Coram: J. O. Sadoh J., in Suit No. B/622/1996: Benedict Anegbe Aburime V. Julius Anegbemu Abumere & Anor., delivered on 12/11/1999, wherein the Appellant’s Suit was summarily dismissed for want of diligent prosecution.

The Appellant was peeved with the said ruling and had wth the leave of this Court granted on 10/12/2001 appealed against it to this Court vide his Original Notice of Appeal on two grounds of appeal was filed on 19/12/2001 at pages 123 – 132 of the Record of Appeal. The Record of Appeal was deemed properly transmitted to this Court on 20/11/2002. The Appellant’ s Amended Notice of Appeal was filed on 29/9/2015 on two grounds of appeal but deemed properly filed on 12/4/2017. The Appellant’s Further Amended brief was filed 29/9/2015 but deemed properly filed on 12/4/2017. Despite due service of all the processes in this appeal, the Respondent did not file any brief and the Appellant was subsequently granted leave by this Court on 20/2/2019 for the appeal

to be heard and determined on the Appellant’s further amended brief alone.

At the hearing of this appeal on 29/1/2020, K. O. Obamogie Esq., learned counsel for the Appellant appearing with O. M. Momodu Esq., and E. A. Sampson Esq., adopted the Appellant’s further amended brief as their arguments and urged the Court allow the appeal and set aside the ruling of the Court below. The Respondent though duly served with hearing notice was neither present in Court nor represented by counsel at the hearing of this appeal and the appeal was duly heard on the Appellant’s further amended brief alone and judgment was reserved.

By a Writ of Summons in Suit No. HEK/25/1996 filed on 24/4/1996, the Appellant as Claimant claimed against the Respondent and one other person, now deceased, as Defendants the following reliefs, namely:
1. A declaration that the house and premises known as No.1 Aburime Street, Eguare – Ekpoma within the jurisdiction of this Hon Court is the exclusive bona fide property of the plaintiff being as he is the first surviving son of Chief Ogbekhilu Aburime who acquire the area on which the property is and built

single handedly the said house.
2. A perpetual injunction restraining the Defendants by themselves their agent, servants and privies from laying claims to the house of any part thereof.
3. N500,000.00 damages for unlawful destruction of the roof of plaintiff’s house built in 1956 as stores and the removal of doors, ceilings and windows from the main house.
See pages 1 – 2 of the Record of Appeal.

BRIEF STATEMENT OF FACTS
Upon service of the Appellant’s Suit, the parties filed and exchange pleadings and subsequently with the leave of the Court below the Appellant amended his pleadings and a 2nd Defendant was joined as 2nd party to the suit. On 30/7/1996 by an order of Court below made suo motu by D. E. Hayble J, of the High Court, Ekpoma Judicial Division the Appellant’s Suit was transferred to the Hon Chief Judge of Edo State sitting in High Court 1, Benin City for fixture and hearing. The matter was subsequently reassigned to Sadoh J, who on 29/10/1996 heard and granted the Appellant’s motion for joinder of a 2nd Defendant and the Appellant’s Suit was re – numbered as Suit No. B/226/96.

On 9/3/1999, the

Appellant opened his case and testified in part before the Court below and in the course of his evidence he sought to tender his late father’s family diary to which an objection was raised by counsel for the Respondents. The Court below took arguments of counsel on the objection and on 13/4/1999 it delivered its ruling wherein the objection was sustained against the Appellant, who being dissatisfied promptly sought the leave of the Court below by way of a Motion on Notice field on 22/4/1999 to appeal against the said ruling of the Court below. On 20/9/1999, the Appellant filed a motion on notice seeking a stay of further proceedings in the Appellant’s suit pending the hearing and determination of the appeal and both motions were fixed for hearing on 12/11/1999 by the Court below.

On 12/11/1999, when the matter came up before the Court below for continuation of hearing and or the Motions already fixed for that date by the Court below, the Appellant was present in Court with his witnesses but his Counsel, one Dr. Jim Akhere, was absent. The Court below then stood the case down to enable the Appellant to get his Counsel to represent him in Court.

However, at the resumed hearing some hours later, another Counsel one Omo – Iyoha, Esq., appeared and held the brief of Dr. Jim Akhere for the Appellant and pleaded with the Court below for an adjournment on the ground that the Appellant’s Counsel had traveled to Abuja. The Court below after hearing from counsel for the parties proceeded to summarily dismiss the Appellant’s Suit as well as striking out the Appellant’s pending Motions without first calling on the Appellant to proceed with the hearing of his case in the absence of his counsel, hence this appeal. See 1 – 20, 23 – 30, 41 – 42, 115 – 119, 120 – 122 and 122A – 122B of the Record of Appeal.

ISSUE FOR DETERMINATION
In the Appellant’s brief, a sole issue was distilled as arising for determination from the two grounds of appeal, namely:
“Was the Appellant’s constitutional right to fair hearing not breached by the Court below when it summarily dismissed the Appellant’s suit without a full hearing?(Distilled from Ground one and two)”

I have taken time to review the circumstances leading to the ruling of the Court below on 12/11/1999 summarily dismissing the

Appellant’s Suit for want of diligent prosecution. I have also considered the submissions of counsel for the Appellant in the Appellant’s Further Amended Brief in the light of the decision in the ruling of the Court below, and it does appear to me that the sole issue as distilled in the Appellant’s further amended brief is apt and best represent the real issue arising for determination in this appeal. Let me proceed anon to consider this sole issue!

SOLE ISSUE
“Was the Appellant’s constitutional right to fair hearing not breached by the Court below when it summarily dismissed the Appellant’s suit without a full hearing?”

APPELLANT’S COUNSEL SUBMISSIONS
Learned counsel for the Appellant had submitted that the Court below did not act judicially and judiciously when it summarily dismissed the Appellant’s suit on 12/11/1999 in that it did not consider the interest of both sides and the interest of justice before taking the hard and punitive decision to dismiss the claims of the Appellant who was physically present in the Court below and contended that had the Court below adverted its mind to the need to

observe strictly the right to fair hearing of the Appellant as guaranteed by the Constitution of Nigeria 1999 (as amended) it would most certainly not have taken the high – handed decision to dismiss the case of the Appellant who had not only opened his testimony but was also physically present in the Court on 12/11/1999 and urged the Court to hold that the decision dismissing the Appellant’s Suit was a nullity being clearly in breach of the Appellant’s right to fair hearing and to allow the appeal and set aside the perverse ruling of the Court below. Counsel relied on Victoria Anisiubu V. Anthony Emodi (1975) 2 SC 9; Doherty V. Doherty (1964)1 All NLR 299.

It was also submitted that the action of the Court below in dismissing the Appellant’s Suit in his presence without first calling upon him to continue with the hearing of his case was clearly to visit the sin of his counsel on a blameless litigant and contended that it is the law that the sin of Counsel ought not to be visited on the litigant and urged the Court to intervene to set aside the decision of the Court below punishing the Appellant merely for the sin of his counsel and to

allow the appeal Counsel relied on Rev. Obiora Okezie Agbogu V. Geoffrey Adiche (2003) 2 NWLR (Pt. 805) 509 @ p. 528.

It was further submitted that there was no time on the printed record that the Appellant had intended to mislead the Court below as to the where about of his counsel neither was there any contradictory statement from the counsel who held brief for Dr. Jim Akhere for the Appellant to the effect that the Appellant did not see his Counsel the previous night on 11/11/1999 to warrant both the rebuke and harsh decision of the Court below dismissing the Appellant’s Suit for the absence of his counsel while he was present in Court and urged the Court to hold that as apparent from the printed record the Appellant was present in the Count below at all material times which was clearly an indication of his seriousness and diligence and to set aside the perverse decision of the Court below and allow the appeal in the interest of the protection of the Appellant’s right to fair hearing and to have his case duly determined on the merit.

It was also further submitted that a careful perusal of the record of proceedings for 12/11/1999

shows quite clearly that after one Omo – lyoha, Esq., had applied for an adjournment to enable the Appellant’s principal Counsel conduct the matter, the Court below did not rule on the application for an adjournment but rather proceeded to dismiss the Appellant’s Suit without even giving the Appellant the opportunity of proceeding with the matter either by himself or with the assistance of the Counsel present in Court after a formal refusal of his application for an adjournment and contended that such a proceeding was one steep in the breach of the Appellant’s right to fair hearing and had occasioned grave miscarriage of justice on the Appellant and urged the Court to so hold and to intervene to allow the appeal, set aside the perverse ruling of the Court below and to remit the Appellant’s Suit to the Hon Chief Judge of Edo State for expeditious hearing and determination by another judge of the Court below. Counsel referred to Section 36 (1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and relied on Rev. Obiora Agbogu V. Geofrey Adiche (Supra) @ p. 525; Mrs. Janet Onsachi V. Abel Orji &Anor (1993) 3 NWLR (Pt.

284) 734 @ p. 744; University of Lagos V. Aigoro (1985) 1 NWLR (Pt. 1) 143; Igwe V. Kalu (1993] 4 NWLR (Pt. 285) 1; Oluwa Glass Company Ltd. V. Chief Oladapo Ehinlanwo (1990) 7 NWLR (Pt. 160) 14.

It was also submitted that the discretion of the Court below was not exercised judiciously and judicially as it is without doubt that the dismissal of a matter in limine is the greatest punishment that a Claimant can receive in the litigation process and contended that in law before a Court dismisses an action, it must be very sure that it has no other option open to it and urged the Court to hold that on 12/11/1999 the Court below had several options which it failed to explore and rather summarily dismissed the Appellant’s Suit without any just cause and to allow the appeal. Counsel relied on S.D.C. Cementation (Nig.) Ltd & Anor V. Nagel & Company Ltd & Anor (2003) 4 NWLR (Pt. 811) 611 @ pp. 640 -641; Mrs. Janet Onsachi V. Abel Orji & Anor (1993) 3 NWLR (Pt. 284) 747.

RESOLUTION OF SOLE ISSUE
My lords, the sole issue for determination in this appeal deals squarely with the question whether or not the ruling of the Court below

dismissing the Appellant’s Suit on 12/11/1999 was one given in breach of the constitutionally guaranteed right to fair hearing of the Appellant?
Now, the observance of the right of the citizen to fair hearing in the determination of his civil rights and obligations by every Court in the land is a fundamental prerequisite to valid adjudication to ensure that decisions are not reached without a hearing of the citizen.However, an allegation of denial of the right to fair hearing, as grave as it could be and the dire consequences it could have on the proceedings and decisions of a Court if proved, does not operate in a vacuum but is dependent on the facts and circumstances of each given case. In other words, whether the right to fair hearing was breached or not is a question of facts to be determined on the facts and circumstances placed before the Court.
The law therefore, is that each case of allegation of breach of the right to fair hearing must be decided on the peculiar facts and circumstances of each case. Thus, it is only when the facts are ascertained that the law would be applied to the facts so established to see whether or not such

established facts constitute a breach of the party’s right to fair hearing. See Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), See also News – Watch Communications Limited V. Alhaji Ibrahim Attah (2006) 12 NWLR (Pt. 993) 144.
There can be no doubt that fair hearing, which in most cases is synonymous with fair trial and natural justice, is an issue which is clearly at the threshold of our legal system and thus once there has been a denial of fair hearing as guaranteed by the Constitution the whole proceedings automatically becomes vitiated. A denial of fair hearing can ensure from either the conduct of the proceedings and or the decisions of the Court in the hearing of a case.
The gravamen of the complaint of the Appellant in this appeal as encapsulated under the sole issue is that the Court below was in haste to terminate his claims without giving him the opportunity of being heard and thereby acted clearly in breach of his right to fair hearing as constitutionally guaranteed to him. It is also his complaint that the dismissal of his Suit when he was present in Court and without being asked to continue

with the hearing of his case, which was already part heard, merely because of the absent in the Court below of his principal counsel amounted clearly to punishing him for the sin of his counsel and therefore amounted to an injudicious exercise of discretion by the Court below.
By the first leg of his complaint, the Appellant alleges that he was not given a fair hearing before his case was summarily dismissed by the Court below. Let me pause at once to note it, here and now, that the true test of fair hearing is indeed the impression of a reasonable person who was present at the trial whether from his observation justice has not only been done but is seen to have been done in the case. SeeOtapo V. Sunmonu (1987) 2 NWLR (Pt.58) 587. See also Wilson V. AG of Bendel State (1985) 1 NWLR (pt.4) 572; A. U. Amadi V. Thomas Aplin& Co Ltd (1972) All NLR 413; Mohammed Oladapo OjengbedeV. M. O. Esan & Anor (2001) 18 NWLR (Pt.746) 771.
To determine whether the proceedings and decision of the Court below on 12/11/1999 was or was not in breach of the Appellant’s right to fair hearing as constitutionally guaranteed to him by Section 36 (1) of the Constitution of Nigeria 1999 (as amended),

it is pertinent at this juncture in this judgment to capture the proceedings and decision of the Court below that is the fulcrum of this appeal. Happily, the entire proceedings of the Court below on 12/11/1999 were very concise that it could be conveniently reproduced in extenso in this judgment, and that is what I intend to proceed to do anon as follows:
“IN THE HIGH COURT OF JUSTICE EDO STATE OF NIGERIA
IN THE BENIN JUDICIAL DIVISION: HOLDEN AT BENIN CITY
BEFORE HIS LORDSHIP THE HON. JUSTICE J.O. SADOH JUDGE
ON FRIDAY THE 12TH DAY OF NOVEMBER 1999
SUIT NO: B/622/96
BETWEEN
BENEDICT ANEGBE OGBEKHILU ABURIME – PLAINTIFF
AND
PROFESSOR SYLVESTER IRUMUDOME ABUMERE&2 ORS – DEF
Case called: Parties are present.
Mr. O.A. Otaigbe with him R.I. Esekhaigbe for the defendants/Respondents.
Mr. Otaigbe say the lawyer for the plaintiff/Applicant is not in Court, and no information as to why he is not in Court. He applies that the main suit which is also fixed for today be dismissed for want of prosecution. The suit be dismissed as it is part-heard.
COURT:

At this stage, in view of the absence of learned counsel for the plaintiff, this suit is stood down till 11 a.m. (Sgd) Hon. Justice J.O. Sadoh, (Judge), 12/11/99
Re-suit No. B/C22/96 earlier stood down is called.
Parties are as before. At this stage Omo- Iyoha for the plaintiff holding brief for Dr. Jim Akhere.
Mr, Iyoha say Dr. Jim Akhere has gone to Abuja and asks for short adjournment.
Mr, Otaigbe insists that the Plaintiff and his lawyer are not serious. That the 1st defendant has come all the way from Ibadan. He urges that the motion pending in the case be struck out and the case dismissed.
COURT: When this case was called earlier today, the Plaintiff was present but his counsel was not in Court. He informed the Court that he was in his lawyer’s chamber last night and he promised to be in Court this morning. In view of this statement I decided to stand the case down till 11 am as it was a part-heard matter and to give Plaintiff opportunity to go to the Chambers of his lawyer to find out why he is not in Court as he expressed the fear that something wrong may have happened. At ten minutes passed 11 am the Plaintiff walked into

Court with Barrister Omo-Iyoha who told Court that Dr. Jim Akhere has traveled to Abuja on his private matter, and not to Court. That the Plaintiff is aware of this situation. He nevertheless asked for an adjournment which learned counsel for the Defendants strongly objected in that as he earlier stated the Plaintiff and his counsel are not serious with their case. He again urged the Court to strike out the pending motion and dismissed the case satisfied that the Plaintiff came to Court solely to mislead the Court. On the issue of his counsel not being present, this is a pert-heard case which has been adjourned several times at the instance of learned counsel for the Plaintiff. Mr. Otaigbe says that the 1st Defendant is ordinarily resident in Ibadan and he has to come to Court from Ibadan each time the case comes up for hearing. From the foregoing I am satisfied that the Plaintiff is not interested in prosecuting this case. In the result the Motions filed in this case on 22/4/99 and 20/9/99 are struck out. The main case being part-heard same is dismissed for want of diligent prosecution. There will be cost of N500.00 to the 1st Defendant and N250.00 to each of

the other Defendants. (Sgd) Hon. Justice J.O. Sadoh, (Judge), 12/11/99.
Now, from the above concise but very helpful details of the entire proceedings and decision of the Court below on 12/11/1999, can it be said or inferred that the Court below acted in and reached its decision dismissing the Appellant’s Suit in breach of the Appellant’s right to fair hearing as contended by the Appellant in this appeal?
It is apparent on the record of proceedings that the Appellant had already commenced the hearing of his case and had testified partly on his behalf before an objection was taken to the admissibility of the family diary sought to be tendered by the Appellant. The Court below had in a considered ruling upheld the objection to the admissibility of the document sought to be tendered by the Appellant. There is evidence that the Appellant had been consistent in his appearing before the Court below whenever his matter is slated for hearing or for other purposes by the Court below. It is also apparent that on 12/11/1999 the Appellant still was present before Court below when the matter was scheduled either for continuation of hearing or for two

pending motions filed by the Appellant before the Court below. It is also true that the counsel for the Appellant was absent and the counsel for the Respondent had objected to the adjournment sought by the stand in counsel who held the brief of the Appellant’s principal counsel. This much is not and cannot be disputed as clearly verified by the printed record in this appeal.
Having had a calm evaluation of these facts before the Court below on the date the Appellant’s Suit was dismissed, it would appear that the Court below having come to the conclusion that the Appellant’s counsel was absent without any justifiable excuse or reason, ought in my view, and I so hold, to have called on the Appellant to, if he is able and ready, to proceed to continue with the hearing of his case. After all it is his case and not the case of his counsel!
Thus, it is my view that unless and until the Appellant had been required to proceed with the hearing of his case and he fails, refuses and or neglects to proceed with the continuation of the hearing of his case on 12/11/1999, which

case by the way was already part – heard, that the option of dismissal or perhaps a striking out should be on the table for the Court below to employ in determining the Appellant’s Suit. It is my view therefore, that unless and until the Appellant had failed if called upon by the Court below to proceed with the hearing of his case, which was already part heard, the option of dismissal of the Appellant’s Suit was neither available nor open to the Court below.
In law, dismissal of a matter in limine is perhaps one of the greatest punishments that a Claimant can be visited with by the Court in the litigation process. Thus, it must be only resorted to as a last resort and when there are no other viable and more tolerable option open to the Court. See S.D.C. Cementation (Nig.) Ltd & Anor v Nagel & Company Ltd &Anor (2003) 4 NWLR (Pt. 811) 611 @ pp. 640 – 641. See also Mrs. Janet Onsachi V. Abel Orji & Anor (1993) 3 NWLR (Pt. 284) 747.
My lords, it is therefore, clear to me and I so hold that until the Court below had offered and given an opportunity to the Appellant on 12/11/1999 to proceed with the continuation of the

hearing of his case and a failure of his part to continue with the hearing of the case, the decision to peremptorily and summarily dismiss the Appellant’s Suit for the mere fact of the absence of his principal counsel was an injudicious and capricious exercise of the discretion by the Court below and amounting clearly to a flagrant breach of the Appellant’s right to fair hearing and an undeserved punishment of the Appellant for the obvious sin of his principal counsel, which ought not to have been so. A Court of law must at all times endeavor to stick to the cause of justice to the parties, particularly substantial justice.
Above all, in all proceedings affecting the civil rights and obligations of the citizen, the Court must observe and protect the right of the citizen to fair hearing without any exception and must therefore, never act in breach of the right of a litigant to fair hearing before the Courts. Indeed the consequences of a breach of the right to fair hearing by a Court or any adjudicatory body is dire and would render any such proceedings and or decision a nullity, which in law is liable to be set aside by an Appellate Court if

so moved by the person affected by the breach of the right to fair hearing!
I consider the action taken by the Court below in dismissing the Appellant’s Suit in the circumstances of the facts on 12/11/1999 as being not only high handed but also fundamentally flawed as amounting to a flagrant breach of the Appellant’s right to fair hearing. See the succinct provisions of Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), which provides as follows:-
“In the determination of his civil rights and obligations, including any question determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.”
I therefore, find from the facts and circumstances as apparent from the printed Record of Appeal that the Court below did not act judicially and judiciously as required of a Court of law whenever called upon to exercise its discretion when it summarily dismissed the Appellant’s Suit on 12/11/1999. The Court below failed

woefully to consider the overriding interest of doing substantial justice to the parties before taking the hard and punitive decision to dismiss the Appellant’s Suit.
In law, an Appellate Court will readily interfere with the exercise of discretion by a trial Court where (a) such exercise of discretion is deemed not to be in accordance with the dictates of justice and commonsense, or (b) there is any miscarriage of justice in the exercise of such discretion. This is clearly the circumstances in the instant appeal warranting out prompt interference with the wrongful exercise of discretion by the Court below. See University of Lagos V. Aigoro (1985) 1 NWLR (Pt. 1) 143 @ p. 148. See also Igwe V. Kalu (1993) 4 NWLR (Pt. 285) 1 @ p. 11; Oluwa Glass Company Ltd. V. Chief Oladapo Ehinlanwo (1990) 7 NWLR (Pt. 160) 14 @ pp. 31-32.
Honestly, I find it rather harsh that the Court below in the circumstances of this appeal as apparent in the printed record would, at worst rather than striking out the Appellant’s suit, proceed to dismiss the same and thereby foreclosing any revival of same by the Appellant and thus driving the Appellant, so unjustifiably

and unwarrantedly, from the judgment seat of the hallowed halls of justice. I think dismissal should be the last resort by a Court of law, particularly in the circumstances that presented itself before the Court below on 12/11/1999.
The above is more so, when the Appellant was personally present before the Court below and no attempt or effort was made, as none can be seen from the face of the printed record, by the Court below to call upon the Appellant to proceed with the continuation of the hearing of his case, a right which no Court of law can legitimately and or legally deny a litigant – the right to conduct his case in person should he so decide and abide by whatever the result or consequences thereof! It is only and only if or should the Appellant had failed if called upon by the Court below to proceed with the hearing of his case that perhaps the decision of the Court below to dismiss his case may find some level of legal justification but not otherwise! See Victoria Anisiubu V. Anthony Emodi (1975) 2 SC 9. See also Doherty V. Doherty (1964)1 All NLR 299; Rev. Obiora Okezie Agbogu V. Geoffrey Adiche (2003) 2 NWLR (Pt. 805) 509 @ p. 528; Akinyede V. The Appraiser

(1971) 1 All NLR 162 @ p. 65; Ahmadu V. Salawu (1974) 1 All NLR (Pt. 11) 318 @ p. 324; Bowaje V. Adediwura (1976) 6 SC 143 @ p. 147; Ibodo V. Enarofia (1980) 5 -7 SC 42 @ p. 57; Bello V. Attorney General of Oyo State (1986) 17 NSCC (Pt. 11) 1257 @ pp. 1284 – 1285.
It must be remembered, and most pertinently too, that in law there are well laid down principles guiding the decision whether or not to summarily dismiss a Suit before the proper consideration and determination of the rights, obligations and liability of parties on the merit by a Court of law. These succinct principles include, but are not limited to the following, namely: (a) That the default of the Claimant was intentional and contumelious, e.g. disobedience to a peremptory order of Court or conduct amounting to an abuse of process of the Court; or (b) That there was inordinate and inexcusable delay on the part of the Claimant or his lawyers; and (c) That the delay will give rise to a substantial risk that it will not be possible to have a fair trial of the issues in the action, or the delay is such that have caused serious prejudice to the Defendants either as between

themselves and the Claimant or between each other or between them and a third party. See Birkett v. James (1978) AC 297. See also Mrs. Janet Onsachi V. Abel Orji & Anor (1993) 3 NWLR (Pt. 284) 734 @ p. 744.
My lords, on the facts and circumstances of this appeal as apparent in the printed record, I cannot see or find the presence of any of the factors highlighted in the principles above, as rightly contended by learned counsel for the Appellant, to warrant and legally justify the summary dismissal of the Appellant’s Suit by the Court below on 12/11/1999. In the circumstances therefore, the sole issue is hereby resolved in favor of the Appellant against the Respondent.
My lords, regrettably, it has taken all of 21 years for the Appellant to finally get justice in this case at least at the level of this Court, but yet he is now returning to the Court below to commence afresh, de novo as it were, the journey he had commenced way back in 1996 and since 1999 when his Suit was unjustifiably and summarily dismissed in grave error by the Court below. What a colossal waste of the precious time of the Appellant for all of 21 years. How so sad! What a

travesty and miscarriage of justice!
On the whole therefore, having resolved the sole issue for determination in this appeal in favour of the Appellant against the Respondent, I hold that the appeal has merit and ought to be allowed. Consequently, it is hereby so allowed.
In the result, the ruling of the High Court of Edo State, Coram: J. O. Sadoh J., in Suit No. B/622/1996: Benedict Anegbe Aburime V. Julius Anegbemu Abumere & Anor., delivered on 12/11/1999, wherein the Appellant’s Suit was summarily dismissed for want of diligent prosecution is hereby set aside.
In its stead, the Appellant’s Suit No. B/622/1996: Benedict Anegbe Aburime V. Julius Anegbemu Abumere is hereby remitted to the Honorable Chief Judge of Edo State for same to be reassigned to another judge of the Court below, save J. O. Sadoh J., for same to be heard de – novo and determined expeditiously according to law.

There shall be no order as to cost.

TUNDE OYEBANJI AWOTOYE, J.C.A.: I entirely agree

MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I read before now the judgment of my learned

brother, Biobele Abraham Georgewill, JCA just delivered. I agree that, having regard to the peculiar circumstances of this case, the trial Court was wrong to have summarily dismissed the appeal for want of diligent prosecution.

It is for the above reason and the more advanced reasons given by my learned brother that I allow this appeal. I abide by all the orders in the leading judgment, including the order as to costs.

Appearances:

O. Obamogie Esq., with him O. M. Momodu Esq., and E. A. Sampson Esq., For Appellant(s)

Not Present For Respondent(s)