WOBO WOKE & ANOR v. ISHMAEL OGOLOMA & ANOR
(2010)LCN/4054(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 24th day of November, 2010
CA/PH/249/2005
RATIO
INTERPRETATION OF STATUTE: INTERPRETATION OF ORDER 37 RULES 8 AND 9 OF THE HIGH COURT OF RIVERS STATE RULES AS IT RELATES TO DISMISSAL OF A SUIT WHERE ONE PARTY DOES NOT APPEAR AT THE TRIAL AND CIRCUMSTANCES WHEN SUCH JUDGMENT
It is necessary to look at the provisions of Order 37 Rules 8 and 9 of the Rivers state High court Rules, 1987, which the learned trial court used in dismissing the appellants suit. The rules read as follows: “8 If, when a trial is called on the defendant appears, and the plaintiff does not appear, the defendant, he has no counter claim, shall be entitled to judgment dismissing the action; but if he has a counter-clam, then he may prove the counter-claim, so far as the burden of proof lies upon him: Provided that if the defendant admits the cause of action to the full amount claimed, the Court may, if it thinks fit, give judgment as if the plaintiff had appeared. 9. Any judgment obtained where one party does not appear at the trial may be set aside by the Court upon such terms as may seem just, upon an application made within six days after the trial or within such longer period as the Court may allow for good cause shown” PER ISTIFANUS THOMAS, J.C.A
DEFAULT JUDGMENT: INTERPRETATION OF THE PROVISIONS OF ORDER 37, RULE 9, OF THE HIGH COURT OF JUSTICE OF RIVERS STATE AS IT RELATES TO THE CONDITIONS UNDER WHICH A DEFAULT JUDGMENT WOULD BE SET ASIDE
It is settled principle of law that court rules must be obeyed. By the provisions of Order 37, Rule 9, of the High Court of justice of Rivers State, any judgment or ruling obtained, where the plaintiff at the trial failed to appear, may apply within six days that the decision be set aside. For the plaintiff to enjoy the request to set aside the decision by relisting their suit in the instant appeal matter, he had to satisfy the three conditions set out in Rule 9 of the Rules of High Court of Rivers State 1987. The conditions are (a) The application to relist must be filed within six days. (b) The application must state good cause or reasons as to why the plaintiff or counsel were absent in court. (c) If the application was filed after six days, there ought to be good because why same could not be filed within the specified period of six days. It is only when the three conditions are satisfied that the trial judge will use his judicial discretion to grant by relisting the suit, see the Supreme Court decision in Mohammed Vs. Hussein (1998) 14 NWLR (Pt. 584) 108. PER ISTIFANUS THOMAS, J.C.A
JUSTICES
ISTIFANUS THOMAS Justice of The Court of Appeal of Nigeria
EJEMBI EKO Justice of The Court of Appeal of Nigeria
TUNDE O. AWOTOYE Justice of The Court of Appeal of Nigeria
Between
1. WOBO WOKE
2. EMENIKE WOKE – Appellant(s)
AND
1. ISHMAEL OGOLOMA
2. CHIKE WOKE – Respondent(s)
ISTIFANUS THOMAS, J.C.A (Delivering the Leading Judgment): This is an appeal against the ruling of T.K. Osu (J) delivered on 21st February 2004 in suit No. PHC/97/83 dated at High Court of Justice, Port Harcourt. The ruling appealed against was the refusal of the trial judge to grant the appellants application for leave to relist and to hear the suit on its merit. The present appellants were the plaintiffs at the lower court while the respondents were the defendants. On 17th February, 2002, appellant’s suit was dismissed for want of diligent prosecution because the appellants and their counsel were found of failing to appear on several adjourned dates. The suit was initiated by writ of summons which was filed on 2nd June, 1983. But as at 17th December, 2003, two previous judges, namely Hebron George (J) and V.M. Okor (J) could not make any progress before it was transferred to the trial judges. As at 17th December 2003, only the first witness for the appellants was being cross-examined. By the record of appeal, the suit had stayed for over 20 years, without good progress. By page 241 of the record, on 14th April, 2002, the case was adjourned, because the appellants’ counsel was in court, but not with his case file, and they could not get an interpreter to assist their witness who was to be cross-examined. As shown on page 24(i), the appellants counsel asked for an adjournment again on the ground that they could not get an interpreter. Again on 16th December, 2002, appellants counsel asked for an adjournment on the ground that he was not in court with his case file and the matter was adjourned to 17th December, 2002 as the appellants’ counsel had informed the court that he would not fail to appear with his case file. But on the adjourned date, the appellants’ counsel was absent and there was no letter explaining his reasons for his absence, and the respondents, counsel applied that the suit be dismissed as it was very clear that the appellant were not willing to prosecute the case or to prove their suit. Counsel applied under the Rivers state High court Rules, Order 37 Rule 8 to under the inherent powers of the court to dismiss the suit. On pages 14 and 15 of the record, the trial judge ruled and dismissed the appellant’s case.
On 15th January, 2003, the appellants filed a motion on notice for (a) leave of court to allow them to bring an application after 6 days of ruling; (b) leave of court to set aside the ruling delivered on 17th December, 2002, (c) an order of court re-listing this suit to be heard and determined on merit. The motion was supported by a 17 paragraphs affidavit deposed to by the 1st appellant. Paragraphs 6,7,8,9 and 14 are relevant and are reproduced as follows:
“6. That at the time the case was about to be called, I went out to look for the counsel representing my counsel for the day.
7. That the counsel C.S. Otuoye is a junior in J.O. Nwachukwus Chambers.
8. That Chief J.O. Nwachukwu of counsel informed me and I verily believe him that the case file was handed over to his said junior counsel on 16-12-2002 for court on 17-12-2002.
9. That the counsel himself said that he came to court but
14. That we could not file the motion to re-list within 6 days as required due to the illness of my counsel within the period.”
When served with the motion, the respondent filed a counter affidavit containing 10 paragraphs. The learned trial judge heard the parties applications for and against and ruled on 21st January, 2004, as contained from pages 34-44 of the record and struck out the appellants application to re-list the suit. At page 44 of the record, the trial judge in his conclusive ruling said as follows:
“The court is not satisfied that they are cogent enough to persuade the court to granting the application. Consequently the application is hereby refused and in the premises struck out.”
Based on the above ruling the appellants filed on 4th February 2004, their notice of appeal containing 4 grounds of appear.
By leave of this court, the appellant’s motion for enlargement of time to file appellants brief was granted on 1st March 2007. Appellants brief contains 3 issues distilled from the four grounds of appeal. They read:
ISSUE I:
Was the learned trial judge right in refusing the plaintiffs/appellants application for leave to set aside the dismissal of their suit brought after six days of the judgment on 17/12/2002. (ground 1)
ISSUE II:
Was the lerarned trial judge right in failing to reach a decision as to whether there was so material upon which he could have extended the time within which the plaintiffs/appellants could apply to set aside the order dismissing their suit. (ground 2),
ISSUE III:
Was the learrned trial judge right in refusing to set aside his ruling of 17/12/2002 dismissing the suit of the plaintiffs/appellants in default of appearance and relisting the same for hearing on the merits. (grounds 3 and 4).
The respondents brief was deemed filed on 5th July, 2002 when they filed on 14-5-07, an application for extension of time to file and serve respondents briefs. It has raised a sole issue that reads as follows:
“Whether from the circumstances of the matter the learned trial judge was right in refusing the application for relistment of the suit.”
I have critically considered the parties issues for determination, and I am fully satisfied that, the respondents’ sole issue, is more reasonable and can effectively determine the appellant’s three issues and that is how I will determine the appeal.
It is necessary to look at the provisions of Order 37 Rules 8 and 9 of the Rivers state High court Rules, 1987, which the learned trial court used in dismissing the appellants suit. The rules read as follows:
“8 If, when a trial is called on the defendant appears, and the plaintiff does not appear, the defendant, who has no counter claim, shall be entitled to judgment dismissing the action; but if he has a counter-clam, then he may prove the counter-claim, so far as the burden of proof lies upon him:
Provided that if the defendant admits the cause of action to the full amount claimed, the Court may, if it thinks fit, give judgment as if the plaintiff had appeared.
9. Any judgment obtained where one party does not appear at the trial may be set aside by the Court upon such terms as may seem just, upon an application made within six days after the trial or within such longer period as the Court may allow for good cause shown”.
It is settled principle of law that court rules must be obeyed.
By the provisions of Order 37, Rule 9, of the High Court of justice of Rivers State, any judgment or ruling obtained, where the plaintiff at the trial failed to appear, may apply within six days that the decision be set aside. For the plaintiff to enjoy the request to set aside the decision by relisting their suit in the instant appeal matter, he had to satisfy the three conditions set out in Rule 9 of the Rules of High Court of Rivers State 1987.
The conditions are
(a) The application to relist must be filed within six days.
(b) The application must state good cause or reasons as to why the plaintiff or counsel were absent in court.
(c) If the application was filed after six days, there ought to be good because why same could not be filed within the specified period of six days.
It is only when the three conditions are satisfied that the trial judge will use his judicial discretion to grant by relisting the suit, see the Supreme Court decision in Mohammed Vs. Hussein (1998) 14 NWLR (Pt. 584) 108. In the instant appeal, the trial judge used his judicial discretion and refused to relist. At pages 43 to 44, his Lordship reasoned as follows:
“If the court is satisfied with those reasons, the court will set aside the judgment according to the rule and relist the case for a full trial. The applicant coming up with such an application must make sure that he does not ask for the order of setting aside the judgment for the mere sake of it. He must be sure that he has not created situation or situations that may prejudice or jeopardize or embarrass the other party, i.e. the Respondent in the case. What bothers the court mostly in the present case is Exhibit “A” which shows the interest of a 3rd party in the matter. Exhibit “A” was executed on the 3/1/2003 whereas the application was brought on the 15/1/2003. The judgment was obtained on the 17/12/2002. The Respondents waited for almost two weeks and two days before selling the land in dispute. As at the time of the sale, was there any case still pending before the court to make or put the buyer on the pedestals of caveat emptor?
Applicants’ counsel had contended that the sale or transaction took place when the case had not been decided on merit, referring to the maxim quod non habet so it is a matter between the assignee and the Respondents and did not concern the Applicants, The actual point to be considered is whether as at the time of the transaction, there was still a matter pending in the court. The dismissal of the action was done on the 17/12/2002. The dismissal was a judgment obtained in default of appearance of the Applicants in court. The judgment obtained on thar day was still subsisting when the sale was done and will the granting of the application not create prejudice or embarrassment to the Respondents when infact a sale had been executed. Considering all the circumstances especially exhibit “A”, the answer to the question should be positive. Simply put the Respondents would be embarrassed or prejudiced since their situation had changed. The delay caused by the Applicant in the opinion of the court had not been properly or adequately explained of as the only reason was that their counsel was sick which led to the delay and no medical report was attached nor any reason given that there was no other counsel in the chambers to do the application in time particularly the said Mr. Otuonye of counsel to whom the alleged case file was given was not available.”
“Having considered all the facts deposed to in the various affidavits of the Applicant the court is not satisfied that they are cogent enough to persuade the court to granting the application. Consequently the application is hereby refused and in the premises struck out.”
From the above quoted reasons of the trial judge, the conduct of the plaintiffs and their counsel, as argued by the respondent, was reprehensible and also, the respondents had already sold their land to a third party which was done at the time the suit was dismissed, and therefore, the relisting of the suit would have embarrassed the respondents because, it was far back, when the sale was made that the appellants filed the application for relisting. In other words, the application was made outside the statutory period of six days, and no cogent reasons were supplied for the long delay.
In the instant appeal, I am satisfied that the trial judge, had thoroughly considered the appellants applications supported by the affidavit evidence vis a vis the respondents counter affidavits and came to the sound decision of refusing to grant the prayer. The appellants were laxidical in prosecuting the case for a long period of over 20 years. They were not willing to prosecute the suit to its conclusion. Litigation must have its end.
In the final analysis, the appeal has no merit whatsoever. The appeal is dismissed by me.
Costs of N50.000.00 in favour of the respondents.
EJEMBI EKO, J.C.A: I had the advantage of reading in, draft the judgment just delivered by my learned brother, ISTIFANUS THOMAS, JCA. I completely concur.
The appeal of this derelict Plaintiff, who for over 20 years, until 17th December, 2002, had along with his counsel had been playing pranks with the court over a supposedly serious matter of litigation, is in my view frivolous and vexatious.
The Plaintiff/Appellant’s suit was dismissed on 17th December, 2002 under Order 37 of Rivers State High Court (Civil Procedure) Rules 1987. Under Rule 9 of the said Order the Plaintiff was enjoined to bring his application to set aside the judgment within 6 days. He did not bring the application until 15th January, 2003 – 29 days after, when he brought the application for extension of time within which to apply for an order setting aside the judgment, and an order setting aside the said judgment. Tardiness and indiligence had been his game plan previously. It earned his adversary a judgment dismissing his suit for want of diligent prosecution. He learnt nothing. He forgot everything like the French Bourbons. Even in this Court he was the same old self. He filed his processes out of time, but with leave of court.
The trial court heard him and generously struck out the application. It should have been an order of dismissal. The trial court exercised its discretion and correctly refused to set aside the judgment dismissing the suit, and re-list the suit. The supporting affidavit showed nothing concrete to warrant the indulgence.
I agree, the appeal lacks merits. I also dismiss it with costs assessed at N50,000.00 in favour of the Respondents.
T, O. AWOTOYE, J.C.A: The judgment delivered by my learned brother THOMAS JCA, I agree this appeal lacks merit. Litigation must have its end. I award N50,000.00 cost in favour of Respondents.
Appearances
MR. E. WORLU Esq.For Appellant
AND
MR. C. A. IJINDA Esq.For Respondent
