AUGUSTINE I. ODIGWE v. JUDICIAL SERVICE COMMISSION, DELTA STATE
(2010)LCN/4106(CA)
In The Court of Appeal of Nigeria
On Thursday, the 9th day of December, 2010
CA/B/228/2006
RATIO
CIRCUMSTANCES WHERE A COURT HAS THE DISCRETIONARY POWER TO REFUSE GRANTING AN APPLICATION FOR ADJOURNMENT
I think it is apt to stress here, that a court has the discretionary power to refuse granting an application for adjournment only where it is apparent that the party making such application for adjournment either engages on dilatory tactics or is making efforts to frustrate the trial proceedings of the court and thereby making it impossible for the trial to come to an end. In such case, such party can be said to be involving due process to defeat justice being done to the other party. The court in such circumstance can be justified in refusing an adjournment. See Ajisefini vs. DPP (2002) FWLR (PL 122) 88; Ndaba Nig. Ltd. vs. UBN Plc (2009) 13 NWLR (Pt.1158) 256. Admittedly, it is not every application for adjournment that should be granted. Each case must be treated according to its special peculiarity. See Maxwell vs. Kembi (1928) 1 KB 645 @) 653; Abeke vs. Amboro (1961) 1 All NLR 368; Odusote vs. Odusote (1971) 1 NMLR 228 @ 232. PER AMIRU SANUSI. J.C.A
WHETHER A SUIT STRUCK OUT BY A COURT MAY BE RELISTED
Generally speaking a suit struck out by a court may be relisted by it, if the circumstances warrant doing so. Such application to restore the suit will be by motion on notice. The court therefore has the discretion whether or not to relist the suit depending on the ground upon which the suit was struck out and other circumstances of the case. See Eastern Breweries Plc vs. Imen (2000) 3 NWLR (Pt.650) 662. PER AMIRU SANUSI. J.C.A
INTERFERENCE WITH THE EXERCISE OF DISCRETION : CIRCUMSTANCES WHERE AN APPELLATE COURT WILL NOT INTERFERE WITH THE EXERCISE OF DISCRETION BY A TRIAL COURT
Ordinarily, an appellate court will not interfere with the exercise of discretion by a lower trial court simply because faced with a similar application, it would have exercised the discretion differently. However, it (appellate court) may do so in special circumstances such as where the discretion was exercised on wrong or inadequate material, or where no weight or insufficient weight was given to relevant considerations or where the court/tribunal acted under misapprehension of fact, or that the exercise was tainted with some irregularities or substantial irregularity and in all other cases where it is in the interest of justice to so interfere. In the instant suit, and considering the entire circumstance of the case as succinctly given supra and the non display of delay tactics on the part by the plaintiff or intent to frustrate the suit in court overreach the defendant, I feel the trial court did not exercise its discretion judiciously and judicially in the first place when it declined to grant the adjournment application of the 2/2/2006 and secondly refused to relist the suit. See Mobil Oil vs. Federal Board of Internal Revenue (1977) 3 SC. 97; Anya vs. ANN LTD. (1992) 6 NWLR (Pt.247) 319; Atiku v. Yola Local Government (2003) 1 NWLR (PT.802) 487. To my mind, a discretion is said to be exercised judicially and judiciously where it is so excised on sound principle of law based on sufficient material and also given sufficient prevailing circumstance of a given case. Surely, discretion must be exercised strictly on the facts and circumstances of the particular case and certainly NOT based on the whims and caprices of the court. see Enekebe v. Enekebe (1964) 1 All NLR 102; Lang-John v. Blakk (1998) 6 NWLR (Pt.555) 524. My noble Lords, please permit me to say, that the modern day adjudication lay emphasis on seeing that courts dispose of matters on the merit and not to scuffle them on alter of technicality, as the latter approach tends to smack of highhandedness. Where a court strikes out a suit for want of diligent prosecution, then a prompt and timeous application to relist same should be liberally considered and granted so as to give the party a second chance to ventilate its grievances especially where such party shows considerable remorse. It is from these backdrops, that l consider the lower court’s refusal to relist the suit as an exercise of discretion not made judiciously and judicially in view of the prevailing surrounding circumstances of the case. To my view, the trial court ought to have granted the application for relist to afford the parties an opportunity to ventilate their cases before it so as to ultimately enable it give a balanced judgment. It is rather unfortunate that that is not the case here and this therefore warrants this court to interfere with or disturb the exercise of discretion by the trial court. PER AMIRU SANUSI. J.C.A
FAIR HEARING: PRE-CONDITIONS OF FAIR HEARING THAT MUST BE INHERENT IN THE CONDUCT OF THE CASE
In order to determine whether the principle of fair hearing has been breached the crucial point to consider is not any injustice was done to any of the parties due to want of hearing but whether the party or parties was afforded opportunity to be heard. Also in determining whether such opportunity to be heard, the following conditions must be inherent in the conduct of the being heard, the following conditions must be inherent in the conduct of the case i.e.:- “(a) both parties must be heard on all material issues before the courts determines or pronounce on them; (b) the court must give equal treatment opportunity and consideration to both parties. (c) the proceedings/trial shall be held in public and all concerned shall have access to and be informed of the place of public hearing; (d) that having regards to all the circumstances in every material decision in the case, justice must not only be done but be manifestly seen to have been done for instance, parties should be given chance to cross examining witnesses called by the adverse pantic or to call witnesses of their choice and make submissions to court before the case is determined. See Awuse vs. Odili (2005) 16 NWLR (Pt.952) 46; Durode v. State (2000) 15 NWLR (pt.691) 467; JCC Inter Ltd. v. NGI Ltd. (2002) 4 WRN 91. See also Kotoye v. CBN (1989) 1 NWLR (Pt.98) 419; Adegun v. A.G., Oyo State (1987) 1 NWLR (Pt.53) 678; Deduwa v. Okorodudu (1976) 9 – 10 SC 329; Udo-Akagha v. Paico Ltd. (1993) 4 NWLR (Pt.288) 434; Saleh v. Mouguno (2003) 1 NWLR (Pt.801) 221. Ordinarily, where a trial court fails or neglects to observe any of the above mentioned pre-conditions of fair hearing, enumerated above, it can be aid to be in serious breach of the concept or principles of fair hearing under section 36 of the 1999 Constitution. PER AMIRU SANUSI. J.C.A
FUNCTUS OFFICIO : MEANING OF THE PHRASE “FUNCTUS OFFICIO”
The phrase “functus officio” is a latin expression simply meaning “task performed”. In legal or judicial parlance it means a Judge cannot give a decision or make an order on a matter twice. In other words it connotes that a court after finally adjudicating on a matter after consideration of the issues canvassed by parties before it on the merit, it cannot rehear or redecide the matter again or twice. For example a judgment in default of consideration of an application to relist a motion which was struck out and NOT dismissed which was not heard on the merit e.g. due to want of appearance by party or parties or struck out after being partly heard for whatever reason, does not render the court “functus officio” since it has not been finally determined or decided by the court. It is only where a court delivers judgment/ruling on a matter it heard in the merit that it becomes functus officio. It then ceases to be seised of the matter and can thus not redecide, reopen or rehear it for whatever reason. This is moreso because a court cannot sit on appeal on its own decision or review its decision. See the cases Ogbora v. Ibori (2005) 13 NWLR (pt. 942) 319; Sun Insurance (Nig) Plc vs. LMBS Ltd. (2005) 12 NWLR (Pt.940) 608; Ukachukwu v. Uba (2005) 18 NWLR (Pt.956) 1; Ubang v. Usua (2006) 12 NWLR (Pt.994) 244; Mohammd v. Hussein (supra). The case in question is clearly not shown to have been decided on the merit, hence the learned trial Judge is wrong to hold that he is functus officio to entertain and determine the motion to relist the suit. PER AMIRU SANUSI. J.C.A
JUSTICES
AMIRU SANUSI Justice of The Court of Appeal of Nigeria
GEORGE OLADEINDE SHOREMI Justice of The Court of Appeal of Nigeria
OYEBISI FOLAYEMI OMOLEYE Justice of The Court of Appeal of Nigeria
Between
AUGUSTINE I. ODIGWE Appellant(s)
AND
JUDICIAL SERVICE COMMISSION, DELTA STATE Respondent(s)
AMIRU SANUSI. J.C.A (Delivering the Leading Judgment): This is an appeal against the decision of the Delta State High Court of Justice, sitting in Warri Judicial Division (hereinafter referred to as the lower Court”) delivered on the 2nd day February, 2006. At the lower Court, the plaintiff took a Writ of Summons seeking the under listed declaratory and directory reliefs:-
“(a) A declaration that the Defendant purported dismissal of the Plaintiff from its employment as President of Area Customary Court, Delta State by letter dated 6th August, 2004 and signed by the Defendant Secretary is wrongful, null and void and of no effect as same is unlawful and unconstitutional.
(b) A declaration that the plaintiff employment with the Defendant subsists.
(c) An order directing the Defendant to reinstate the plaintiff to his status as President Area Customary, Delta State with all his benefits, entitlements, salaries, allowances, increments and promotion from 6th August, 2004 until the final determination of this matter and reinstatement.
(d) An order restraining the Defendant whether by himself (sic) servants against or whatsoever name called from preventing the plaintiff continuing his job or interfering with the plaintiff performance of his duties as President of Area Customary Court, Delta State or interfering with his employment of rights privileges and benefits attached thereto.
The writ of summons was filed at the lower court by the plaintiff (appellant) on 19th of October 2004 and he later on 3rd June 2005 filed his statement of claim and both were served on the Defendant (now Respondent) on 13th July 2005. Then when the defendant failed or neglected to file its statement of Defence within the period ordered by the lower Court, the plaintiff filed an application to set the case down for 25th November 2005. Sequel to that the defendant on 14/12/2005 filed a motion for extension of time to file its statement of defence out of time and also sought an order for same to be deemed as properly filed and served and to plaintiff (appellant) then filed a motion on notice for amendment of this Statement of Claim on 6/1/2006.
On 18/1/2006, the lower Court commenced hearing of the motion for amendment of statement of claim earlier filed by the plaintiff. In the process of arguing the said motion, the learned counsel for the plaintiff realized a misstate in one of the prayers he sought in the motion and he thereby applied to withdraw the motion which the court obliged and struck it out as there was no opposition on the withdrawal by the learned counsel for the defendant. The lower court then adjourned the case to 2/2/2006 for hearing in the case. Then on 20/1/2006 the plaintiff filed another motion for amendment of his statement of claim. Also while in the process of moving that motion on 2/2/2006 the plaintiff’s applied to withdraw the motion when he noticed that he had problem in moving it also. He applied for adjournment it and the defence counsel did not oppose the application for adjournment. The trial Court refused to grant adjournment and instead it invited the plaintiff’s counsel to proceed with the hearing of the substantive suit after striking out the motion. At the hearing and while in the process of examining the plaintiff (1st pw in-chief, the learned counsel for the plaintiff’sought to tender a certain document in evidence. The defendants (respondent’s) counsel objected to the admissibility of the document tendered by the plaintiff/appellant and the plaintiffs counsel withdrew his application to tender such document. At this juncture, the plaintiff’s counsel applied for adjournment to enable him, handle the matter properly”. The defendant’s/respondent’s counsel also did not however oppose the application for adjournment. In a short ruling on the application for adjournment by the plaintiff s counsel, the lower Court refused to adjourn the case because according to it, it saw no reason good worthy of consideration and it again ordered the plaintiff to proceed with his case. At this stage, the learned plaintiff’s (appellant’s) counsel, Mr. A.E. Okotie informed the lower Court that he was not ready to proceed with the case any longer.
The learned trial judge in the light of what transpired supra, handed down a short ruling as below:-
“Court – The Court takes it that the plaintiff is not interested in proceeding with the case and the court is not ready to keep the case in the cause list in the circumstance as no useful purpose will be served. The Court will strike out the case even though plaintiff has started testifying in view of the fact that the plaintiff is still at the preliminary introductory stage of his case. The case is hereby struck out for want of diligent prosecution. Plaintiff is hereby ordered to pay cost of N1,000.00 to the Defendants.”
Now, subsequent upon the above ruling of the lower Court striking out the suit on 2/2/2006, the plaintiff/appellant filed a motion on 6/2/2006 praying the lower court, to relist the suit it had earlier struck out and also for the amendment of his statement of claim. The application was argued by the two learned counsel and consequently, the lower Court on 28/2/2006 delivered its considered ruling striking out the motion primarily because it is “functus officio”.
The plaintiff now appellant became aggrieved by the two rulings of the lower Court delivered on 2/2/2006 and 28/2/2006 and thereby appealed to this Court. The plaintiff filed Notice of Appeal on 14/3/2006 dated same day containing three grounds of appeal which are reproduced below with their particulars for ease of reference. The grounds of appeal are as follows:
GROUNDS OF APPEAL
Ground 1
The learned trial judge erred in law when he refused to grant appellant’s motion filed on 6/2/2006 praying the relistment of Suit No. W/185/2004, by ruling delivered on the 28/2/2006.
Particulars of Error
(a) It is trite and settled that suit struck out can be relisted by the trial Court.
(b) That a suit that has not been determined on the merit but struck out can be relisted by same court.
(c) That this suit was merely struck out by the trial Court and was never determined on the merit of the case.
(d) That the learned trial Court holding that S.4, Bendel State High Court (Civil Procedure) Law does not support appellant is perverse and wrong in law.
(e) That it is the statutory and inherent power of a Court to relist a matter struck out so far it has not on the merit determined the right of the parties and moreso when the respondent will suffer no prejudice and can be compensated with cost.
Ground 2
The learned trial judge erred in law and breached the right to fair hearing of the appellant by his order of 2/2/06 striking out suit No.W/185/2004
Particulars of Error
(a) The it is the constitutional right of the appellant to be heard upon his claim on the merit.
(b) That the refusal of the learned trial Judge to relist the case foreclosed the appellant and breached his right to fair hearing, moreso when the respondent did not oppose his application for adjournment.
(c) That the appellant who was in witness box when the suit struck out was at the preliminary introductory evidence “stage nor had be been cross-examined by respondent.
(d) That the appellant suffered substantial miscarriage of justice, hardship and put in more financial difficulties as a result of this breach.
Ground 3
The learned trial judge erred in law when he suo motu raised and commented on the issue of the court being functus officio by virtue of the order striking out suit No.W/185/2004, without affording parties opportunity to address the court on it.
Particulars of Error
(a) It is trite law that once a Court raises an issue suo motu, it must call on parties to address it on the issue before proceeding to determine the same.
(b) That the issue of the trial court being functus officio because of the order of 2/2/06 striking out the suit was never raised while appellant was moving the motion to relist the suit nor parties called upon to address the court on it.
(c) That the appellant has suffered gross mammoth miscarriage of justice by raising :he issue of functus officio suo motu without affording the appellant.
The appellant in his brief of argument distilled three issues for determination of the appeal from the above three grounds of appeal which said issues read thus:-
“1. Whether the refusal of the learned trial judge to relist Suit No.W/185/2004 was right in law (Ground 1)
2. Whether the striking out of suit No.W/185/2004 is not an error of law and consequently breached the right to fair hearing of the appellant (Ground 2) and
3. Whether the learned trial judge was right when he held that it (sic) is functus officio by raising the issue suo moto without affording parties opportunities to address court on it”
On its part the respondent also proposed three issues for the determination of the appeal out of the three grounds of appeal and the issues are set out hereunder:-
“(a) Whether the learned trial judge was bound to relist Suit No. W/185/2004 as a matter of course because it was not determined on its merit before it was struck out after the appellant refused to proceed with same in the presence of the Respondent (Ground 1)
(b) Whether the learned trial judge suo moto raised and decided the motion to relist on the issue of functus officio in this case without affording parties the opportunity to address court on it.
(c) Whether the learned trial judge was wrong in striking out the Appellant’s case as he did after refusing the application for adjournment and the appellant refused to continue with his evidence (Ground 2).
A close look at the issues of determination formulated by learned counsel for the parties shows that they are very much similar even though they differ in wording. For instance, Issue 1 proposed by the appellant and its corresponding issue in the Respondents brief of argument are similar. Issue 2 in the Appellants brief is similar to Issue 3 in the Respondent’s brief while Issue 3 in the appellant’s brief tallies with the 2nd issue formulated by the Respondent. Bearing in mind the similarities in the issue raised by the parties, I find it convenient to treat this appeal based on the issues formulated in the appellants brief of argument in view of their elegance in the way they were couched. Also in doing so, shall consider the said issues seriatim.
ISSUE 1
This issues queries whether the learned trial judge was correct in law in refusing to relist W/185/2004. The appellant’s learned counsel submitted that a court has inherent power to re-list a case it struck out for want of diligent prosecution only where the matter had not been heard on the merit. He said in the instant appeal, the trial court’s order striking out the suit made on 2/2/2006 was a default judgment which cannot be regarded or equated as judgment on the merit. He relied on the case of Mohammed v. Hussein (1998) 14 NWLR (Pt.584) 108 Ratio 19. He further submitted that the circumstance that ensued on 2/2/2006 did not warrant the striking out of the suit as done by the trial court in the first place, It was also submitted by the appellant’s counsel that when on 6/2/2006 another motion for re-listment of the Suit earlier struck out was filed by him and arguments were taken, the trial court struck out the latter motion on the ground that it was “functus officio”. He argued that the trial court is also wrong in refusing or failing to relist the Suit and that amounts to wrong exercise of discretion by the court and that such discretion was not exercised judicially and judiciously too and also not in consonance with the provisions of Order 37 of Rule 6 (2) of High Court (Civil Procedure) Rule, Bendel State applicable in Delta State. He also referred to Section 4 of High Court (Civil Procedure) Law of 1988, which enjoins court to only make an order which it considers to be necessary for doing substantial justice to the parties, adding that in the case in hand, no counter affidavit against the relisting motion was filed by the respondent or stated that it would suffer any miscarriage of justice, hardship. The learned appellant’s counsel also submitted that where an applicant failed, neglected, or omitted to do something or failed to comply with the requirement of the rules of court regarding time, place, manner, form or conduct or in any respect, such failure may be treated as a mere irregularity which will not nullify the proceedings of any document, judgment or order. On this submission, he referred to Order 2 Rule 1 (1) of the Rules. He said in view of the antecedents of this case where the latter motion of 6/2/2006 was filed within the period specified by the Rules of court, the trial court ought to have granted the motion in which facts supporting the application were not controverted by the respondent. The trial court ought to have granted the motion rather than striking same out.
Appellant further submitted that the purport of re-listing a suit struck out is simply to bring that suit back to the cause list which has the same effect with an order setting aside the ruling or striking out the suit. He added further, that by the provisions of Order 47 Rule I of Bendel State (Civil Procedure) Rules and Section 4 of High Court (Civil Procedure) Law 1988, courts are enjoined to make such order which it considers necessary for doing substantial justice. He cited and relied on the case of Telepower Nig. Ltd. vs. Banne (2002) NWLR (Pt.95) 255 at 260/261 Ratio 1 and 3.
Concluding his submissions in this issue, the learned appellant’s counsel argued that in view of the circumstance of this instant case in which all the antecedents took place merely within a span of only three months, the trial court in order to do substantial justice to the parties, should have grated the motion re-listing the suit instead of striking it out.
In his response to the appellant’s counsel’s submissions, supra, the learned counsel for the respondents in his Brief of Argument argued that the provisions of Order 37 Rule 6(2), Order 47 Rule 1 of High Court (Civil Procedure) Rules of Bendel State 1988 relied on by the appellant were not applicable to the situation in the present case and also the conditions to set aside a judgment were inexistent. Moreso, the trial court was functus officio. Expatiating on his submissions on the inapplicability of the above provisions relied on by the appellant, the respondent’s counsel submitted that Order 37 Rule 6(2) simply applies to a situation where neither parties appeared in the case, whereas in this instant case, both parties were present in court. And with regard to Order 47 Rule I the learned respondent’s counsel also submitted that such provision is also not relevant as it simply applies to a situation where the court makes consequential order and NOT a substantive order. See Ezeonwu vs. Onyechi (1996) 2 SCNJ 250 at 269.
The respondent’s counsel similarly submitted that Section 4 of the High Court (Civil Procedure) Law is not relevant to the instant case because such provision simply enjoins court to do substantial justice between parties without giving dues which the courts should follow. He said the learned trial Judge was right in stating that the above mentioned provisions are irrelevant and inapplicable to the instant case. While referring to the decided authorities of Mohammed vs, Hussein (supra) and Telepower Nigeria Ltd vs. Banne (Supra) relied on the appellant’s counsel, the respondent’s counsel also opined that those cases also not relevant. He said that both cases concerned orders or judgments delivered in the absence of party seeking to set aside the order/judgment of the court and other in those cases were set aside because the applicants therein, had no notice of the trial therein. It was further submitted on behalf of the respondent, that when the learned trial Judge struck out the appellant’s case on 2/2/2006, he then became functus officio since the account became functus office with regard to a decision it reached in the presence of parties. See the case of Orewere vs. Abregbe (1974) UILR (Pt. II) 168. He opined also that the trial Judge was correct in holding that he was functus officio and was thus not bound to relist the appellant’s case merely on the ground that it had not been determined on the merit as at the time he struck it out. He again submitted that the order striking out the suit made by the trial Judge on 2/2/2006, was not obtained through fraud, deceit misrepresentation and there being no appeal against the court order, the order was therefore was not a nullity as such the court lacked inherent power to set it aside. See Igwe vs. Kalu (2002) FWLR (Pt.122) 1 at 13/14 Para G-C; Intercontinental Bank Ltd vs. Banoplys Enterprises Ltd (2003) FWLR (Pt.179) 1339.
I have in the fore paragraphs of this judgment highlighted in detail, all that had transpired at the hearing of the suit at the lower Court as could be gleaned from the record of proceedings in this appeal which led to the filing of the motion for relisting before the lower Court by the appellant which said motion was struck out by the lower Court in its ruling against which the instant appeal was lodged by him. It is pertinent to recollect that on 2/2/2006 while the plaintiffs counsel was in the process of moving his motion filed on 23/1/2006 for leave to amend his statement of claim he ran in to a hitch and thereby applied to withdraw the said motion which said application for withdrawal was granted by the court and the motion was thereupon struck out with cost of N700 awarded against the plaintiff. The trial court then ordered the plaintiff to proceed with the prosecution of the suit. Then in the process of leading his first witness, the plaintiff/appellant and while trying to tender a document in evidence the defendant objected, hence the plaintiff/appellant withdrew the document he sought to tender which the court obliged and also withdrew the documents.
At that stage, the learned counsel for the plaintiff sought for adjournment to enable him handle the matter properly. The application for adjournment was not opposed by the defence at all. In a short ruling on the application for adjournment which was not opposed by the defence the court refused to grant the adjournment because, according to it the reason given for seeking the adjournment was not worthy of consideration. The trial court thereafter called upon and insisted that the plaintiff should proceed with the case. Learned plaintiff s counsel then informed the court that he was not ready to proceed with the hearing of the suit. The trial Court then again wrote its short ruling and opined that the plaintiff was not interested in proceeding with the case and that it was not ready to keep it in its cause list as according to it, it would not serve any useful purpose and it then proceeded to strike same out 1br want of diligent prosecution. To my mind, application for adjournment by parties should always be given liberal consideration except where the application for adjournment was made without any justifiable reason or was made on flimsy reason or ground or where it is aimed at delaying the court’s proceeding which such delay could jeopardise the interest of the adverse party or aimed at over reaching him or where previous applications for adjournment were repeatedly made by the applicant without, just course. The court should not rigidly refuse same. It is noted by me that in this instant case that the entire proceedings did not exceed three months at the time the court struck out the case following the refusal of the of the plaintiff to proceed with it. Moreso, the defence counsel categorically stated that he was not opposing the application for adjournment made by the plaintiffs/appellant’s counsel. Considering the circumstance of this case, I do not think the trial Judge was correct to say that the plaintiff was not interested proceeding with the case especially if one bears in mind that he had started calling his witnesses to testify. The learned trial Judge in the circumstance of the case should not, in the first place, have refused the application for adjournment but rather should have granted adjournment on terms. Before a court refuses application for adjournment, it is proper for it to look into some circumstances. See Owuoke Uwaje and Anor vs. Philip Ijeh (1980) 11 CA 12 FCA/B/3/80 (unreported). I think it is apt to stress here, that a court has the discretionary power to refuse granting an application for adjournment only where it is apparent that the party making such application for adjournment either engages on dilatory tactics or is making efforts to frustrate the trial proceedings of the court and thereby making it impossible for the trial to come to an end. In such case, such party can be said to be involving due process to defeat justice being done to the other party. The court in such circumstance can be justified in refusing an adjournment. See Ajisefini vs. DPP (2002) FWLR (PL 122) 88; Ndaba Nig. Ltd. vs. UBN Plc (2009) 13 NWLR (Pt.1158) 256. Admittedly, it is not every application for adjournment that should be granted. Each case must be treated according to its special peculiarity. See Maxwell vs. Kembi (1928) 1 KB 645 @) 653; Abeke vs. Amboro (1961) 1 All NLR 368; Odusote vs. Odusote (1971) 1 NMLR 228 @ 232. I note that the circumstance of this instant case is not such that to plaintiff’s/appellant’s counsel by asking for adjournment mid u ay in the proceeding, did not reveal any reason to frustrate the trial or that he wanted to delay same.
Now, I will proceed to consider the point of the court refusal to relist the suit which is the pith of this issue for determination. The learned counsel for the appellant in his submissions relied on the provisions of Order 37 Rule 6(2) and Order 47 Rule 1 of the High Court (Civil Procedure) Rules 1988 of Bendel state applicable to Delta State (hereinafter referred as the Rules). Order 37 Rule 6(2) of Rules reads thus –
“If when the trial of an action is called on, neither party appears, the action may be struck out of the list, without prejudice however to the restoration thereof, on the direction of a Judge.”
And Order 47 Rule 1 of the same rules provides thus:-
“Where a matter arises in respect of which no provisions or no adequate provisions are made in the Rules, the court shall adopt such procedure as will in its view do substantial justice between the parties concerned.”
A close and careful lock at Order 37 Rule 6(2) of the Rules clearly shows that it envisages a situation where the parties did not appear at the trial at all. This is unlike the position in this instant case where both parties appeared in court and the case or suit was struck out midway during the hearing of same. I am therefore inclined to agree with the respondent’s counsel’s submission that the Order 37 Rule 6(2) is not applicable for the present situation and reliance on the provisions is therefore misplaced. But, I do not agree with his submission that Order 47 Rule 1 is totally irrelevant to the instant situation. The said latter will enjoins courts to make order which they consider necessary in order to do substantial justice even though the law failed to make express provisions for the performance of an act. It therefore has some relevance to the instant situation.
As I observed above, the suit filed by the plaintiff at the trial court was struck out by the trial court on 2/2/2006 for want of diligent prosecution when the plaintiff’s counsel applied for adjournment during the proceedings which said application for adjournment was not opposed by the defendant as indicated in the record of proceedings and when the court insisted that the plaintiff’s counsel had to proceed with his examining his witness in-chief but he declined to do so. Following, the striking out of the suit by the court on 2/2/2006, the learned counsel for the plaintiff (now appellant) subsequently filed a motion of relisting of the suit dated 6/2/2006.
Generally speaking a suit struck out by a court may be relisted by it, if the circumstances warrant doing so. Such application to restore the suit will be by motion on notice. The court therefore has the discretion whether or not to relist the suit depending on the ground upon which the suit was struck out and other circumstances of the case. See Eastern Breweries Plc vs. Imen (2000) 3 NWLR (Pt.650) 662. In the instant case the trial had exercised its discretion in refusing to relist the suit even though the application for relist of same was filled before six days from the day the suit was struck out. Ordinarily, an appellate court will not interfere with the exercise of discretion by a lower trial court simply because faced with a similar application, it would have exercised the discretion differently. However, it (appellate court) may do so in special circumstances such as where the discretion was exercised on wrong or inadequate material, or where no weight or insufficient weight was given to relevant considerations or where the court/tribunal acted under misapprehension of fact, or that the exercise was tainted with some irregularities or substantial irregularity and in all other cases where it is in the interest of justice to so interfere. In the instant suit, and considering the entire circumstance of the case as succinctly given supra and the non display of delay tactics on the part by the plaintiff or intent to frustrate the suit in court overreach the defendant, I feel the trial court did not exercise its discretion judiciously and judicially in the first place when it declined to grant the adjournment application of the 2/2/2006 and secondly refused to relist the suit. See Mobil Oil vs. Federal Board of Internal Revenue (1977) 3 SC. 97; Anya vs. ANN LTD. (1992) 6 NWLR (Pt.247) 319; Atiku v. Yola Local Government (2003) 1 NWLR (PT.802) 487. To my mind, a discretion is said to be exercised judicially and judiciously where it is so excised on sound principle of law based on sufficient material and also given sufficient prevailing circumstance of a given case. Surely, discretion must be exercised strictly on the facts and circumstances of the particular case and certainly NOT based on the whims and caprices of the court. see Enekebe v. Enekebe (1964) 1 All NLR 102; Lang-John v. Blakk (1998) 6 NWLR (Pt.555) 524. My noble Lords, please permit me to say, that the modern day adjudication lay emphasis on seeing that courts dispose of matters on the merit and not to scuffle them on alter of technicality, as the latter approach tends to smack of highhandedness. Where a court strikes out a suit for want of diligent prosecution, then a prompt and timeous application to relist same should be liberally considered and granted so as to give the party a second chance to ventilate its grievances especially where such party shows considerable remorse. It is from these backdrops, that l consider the lower court’s refusal to relist the suit as an exercise of discretion not made judiciously and judicially in view of the prevailing surrounding circumstances of the case. To my view, the trial court ought to have granted the application for relist to afford the parties an opportunity to ventilate their cases before it so as to ultimately enable it give a balanced judgment. It is rather unfortunate that that is not the case here and this therefore warrants this court to interfere with or disturb the exercise of discretion by the trial court. The first issue is therefore resolved in favour of the appellant herein.
ISSUE NO. 2
The second issues raised the question whether by striking out Suit No.W/185/04 did not amount to error of law and consequently breached the plaintiff s/appellant’s right of fair hearing. The appellant’s counsel submitted that by its ruling of 28/2/2006 refusing to relist his suit, the plaintiff/appellant was foreclosed from having his suit determined on the merit and that it amounts to the violation of his right to fair hearing in accordance with the law. It was further submitted that by the provision of Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999, litigants should be given all necessary opportunities to present their case properly before the court and failure so to do amounts to breach of right of fair hearing. The appellant’s counsel further argued that the trial court resorted to applying technicalities rather than doing substantial justice adding that the Supreme Court now frowns at the approach, see Adewunmi vs. A.G., Ekiti State (2002) FWLR (Pt.92) 1853 at 1861ratio 3 and 4. He again submitted that the concept of fair hearing also envisages that parties to a case are given equal opportunities to present their respective cases without any let or hindrance throughout the duration of the trial or proceedings. He relied on the case of Newswatch vs. Atta (2006) 139 LRCN 1894 @ 1901.
It was also submitted on behalf of the appellant that the learned trial Judge by striking out the suit tied himself down to technicalities and rules of court and that led to occasioning substantial injustice and miscarriage of justice to the appellant.
Replying to the submissions of the learned appellant’s counsel on this issue, the learned respondent’s counsel submitted that the learned trial Judge had the discretion to refuse or grant application for adjournment made by the plaintiffs/appellant’s counsel on 2/2/06 and in so doing the trial Judge rightly exercised his discretion and refused to adjourn the case on flimsy reason “to enable plaintiff to handle the matter properly”. He argued that S.36(1) of the 1999 Constitution simply enjoins court to give appellant the opportunity to put his case before the court and that he was given such opportunity but he refused to use it. In that circumstance the trial Judge was entitled to strike out or dismiss the appellant’s case. See Echaka Cattle Ranch Ltd. vs NACB (1998) 56/57 RCN 3333 @ 3350/335 and 3354-3355.
I have partially dealt with the points raised in this issue while treating Issue No. 1, especially with regard to the issue of refusal by the trial court to grant adjournment sought by the learned counsel for the plaintiff on 2/2/06.
All my observations and opinion in that regard are apposite in answer to that point i.e. on adjournment.
On the issue of denial of fair hearing raised by the learned appellant’s counsel, with due deference to the learned appellant’s counsel, the time honoured principle of fair hearing as enshrined in S.36(1) of the 1999 Constitution enjoins courts or tribunals to give equal opportunity to parties to present their case in court. See Ndube (Nig) Ltd, vs. UBN Plc (2009) 13 NWLR (Pt.1158) 5256. In order to determine whether the principle of fair hearing has been breached the crucial point to consider is not any injustice was done to any of the parties due to want of hearing but whether the party or parties was afforded opportunity to be heard. Also in determining whether such opportunity to be heard, the following conditions must be inherent in the conduct of the being heard, the following conditions must be inherent in the conduct of the case i.e.:-
“(a) both parties must be heard on all material issues before the courts determines or pronounce on them;
(b) the court must give equal treatment opportunity and consideration to both parties.
(c) the proceedings/trial shall be held in public and all concerned shall have access to and be informed of the place of public hearing;
(d) that having regards to all the circumstances in every material decision in the case, justice must not only be done but be manifestly seen to have been done for instance, parties should be given chance to cross examining witnesses called by the adverse pantic or to call witnesses of their choice and make submissions to court before the case is determined.
See Awuse vs. Odili (2005) 16 NWLR (Pt.952) 46; Durode v. State (2000) 15 NWLR (pt.691) 467; JCC Inter Ltd. v. NGI Ltd. (2002) 4 WRN 91.
See also Kotoye v. CBN (1989) 1 NWLR (Pt.98) 419; Adegun v. A.G., Oyo State (1987) 1 NWLR (Pt.53) 678; Deduwa v. Okorodudu (1976) 9 – 10 SC 329; Udo-Akagha v. Paico Ltd. (1993) 4 NWLR (Pt.288) 434; Saleh v. Mouguno (2003) 1 NWLR (Pt.801) 221.
Ordinarily, where a trial court fails or neglects to observe any of the above mentioned pre-conditions of fair hearing, enumerated above, it can be aid to be in serious breach of the concept or principles of fair hearing under section 36 of the 1999 Constitution. In the present case, through out the duration of the trial up to the 2nd February, 2006., the parties took part at the proceedings. Similarly on 2/12/2006 when the motion for relist was to moved both parties were present likewise on 28/2/2006 when the ruling of the lower court refusing relisting of the suit was delivered. In my view both parties were afforded opportunity to argue the two motions without any hindrance. Although, I have made out stand on the trial court’s refusal to grant the application for adjournment, the denial or refusal to grant such adjournment cannot be said to amount to breach of fair hearing. By refusing to grant the adjournment the trial court simply exercised its discretion. Exercise of discretion by a court rightly or wrongly cannot always be regard to tantamount to denial of fair hearing once the conditions are as adumbrated above are duly observed. Similarly, the lower court’s refusal to grant the application for relist rightly or wrongly is also an exercise of discretion by the court and such court has inherent power to do so. The fact that a parties’ application or suit is refused or dismissed or struck out could not be termed as a denial or breach of fair hearing. The determination of a suit or an application by a court of law is within its precinct and the court in doing so must take a stand i.e. to grant or allow or refuse it. Any stand taken by such trial court in such regard cannot be regarded by the looser as a denial or breach of fair hearing provided the principles of fair hearing mentioned above have been duly observed. The resultant effect of all that I have said supra, is that the appellant was not denied his right to fair hearing either by refusal to grant adjournment or by refusing to relist this suit as none of them amounts to denial of fair hearing. They are two distinct issues. Even though the striking of Suit No.W/185/04 amounted to error in procedural law only which could not on the other hand, amount to denial or breach of fair hearing. The issue therefore succeeds in part.
ISSUE NO. 3
I shall now come to the third and last issue which queries whether the trial judge was right in holding that he was “Functus Officio” by raising the issue of functus officio suo moto without affording parties opportunity to address it on that. This issue can conveniently be sub-divided into two sub-issues namely –
(i) Whether the trial court was correct in its holding that it was “functus officio”, and
(ii) Whether the lower court was right in raising the issue of “functus officio” suo moto without affording the parties opportunities to address it on same.
On the first sub-issue supra, the appellant’s counsel submitted that the trial court was not functus officio in entertaining the application to relist his suit, since it had not taken evidence in the suit and the interest of the parties have not been determined on the merit. He said the plaintiff/appellant did not lead evidence and interest of the parties have not been determined on the merit. See Mohammed v. Hussein (supra). He said the trial judge was wrong when he held that he was “functus officio” to relist the suit that he had earlier struck out. Learned appellant’s counsel again submitted that while the instant case is not one determined on the merit, the court misdirected itself by relying on the decisions of Orewere & Ors. Vs. Rev. Moses Abiegbe (1973) 9-10 SC I and Intercontinental Bankers vs. Bauplys Enterprises Ltd. & Anor (2003) FWLR (pt. 173) 1339 @ 1346 as those two decisions relied on the court are inapplicable as the first case deals with issue of relisting of a dismissed suit and not a struck out suit like the instant case, while the second decision relates to situation whether a court can set aside a decision it had earlier determined on the merit unlike the situation in this instant case. In a further submission, the appellant argued that the principle of “functus officio” is akin to the doctrine of estoppel to the effect where there has not been judicial examination and or determination of the issues between the parties. Issue of estoppel and by extension of “functus officio” would never arise. He cited Hufuagi vs. Anyelso (2002) FWLR (pt.48) 1840 @ 1847 para G. He then urged this court to hold that the lower court was not functus officio as erroneously held.
With regard to the second question whether the trial Judge was correct to have suo moto raise the issue of being functus officio to relist the suit without allowing parties to address it on same the appellant counsel submitted that the trial judge was wrong in doing so and basing his reason for refusing to relist the suit on that. He said that the attitude of the trial court had occasioned miscarriage of justice to it. He cited and relied on the decision of Araka v. Ejeagwu (2001) 5 WRN 1 @ 5 ratio 5 and 6 and Ihiakim v. JSC (1988) 14 NWLR (pt.584) ratio 15 and 19.
In reply to the above submissions by the appellant’s counsel, the learned respondent’s counsel submitted that the trial court was functus officio after this decision on 2/2/06 striking out the appellant’s case in the presence of the parties even though it was not decided on the merit. He said
the court’s order made on 2/2/2006 having not been through fraud deceit misrepresentation by the respondent and/or was not got in the absence of the appellant and has not been shown to be a nullity hence it is a valid and subsisting order which can only be set aside on appeal and there is no such appeal on it. See Igwe v. Kalu (2002) FWLR (pt. 122) I @ 13/14 para G-C,
Then on the second points of whether the court was right in raising issue of functus officio suo moto, the learned respondent’s counsel denied that the trial court raised it suo moto because according to him the issue of whether the court had power to relist the suit pursuant to Order 37 rule 6(2) which was the focal point. With due respect to the learned respondent’s counsel, there is difference between the question whether a court can grant or refuse an application or an order and whether it is functus officio. When a court is “functus officio” it connotes that it can not entertain the matter ab initio which is different from whether it can grant or refuse the request, application or claim. The learned trial Judge in the instant case had this to say somewhere in his ruling:-
“In view of the above considerations the court holds that it is functus officio under the prevailing law to relist the case having made its order striking out the case on the 2/2/2006
The trial court in the case in hand, did say that it refused to grant the application to relist because it was functus officio since it had earlier struck out the suit on 2/2/2006. Certainly the issue of “functus officio” was raised suo moto by it without referring such issue to the learned counsel to the parties to address it on that issue before it concluded and ruled that it was functus officio. Parties’ counsel were not invited to address it on that point before it jumped to conclude that it was “functus officio”.
The question to be addressd now is, is the trial court correct in concluding that it was functus officio to entertain and grant the application to relist the suit? I do not think so. The phrase “functus officio” is a latin expression simply meaning “task performed”. In legal or judicial parlance it means a Judge cannot give a decision or make an order on a matter twice. In other words it connotes that a court after finally adjudicating on a matter after consideration of the issues canvassed by parties before it on the merit, it cannot rehear or redecide the matter again or twice. For example a judgment in default of consideration of an application to relist a motion which was struck out and NOT dismissed which was not heard on the merit e.g. due to want of appearance by party or parties or struck out after being partly heard for whatever reason, does not render the court “functus officio” since it has not been finally determined or decided by the court. It is only where a court delivers judgment/ruling on a matter it heard in the merit that it becomes functus officio. It then ceases to be seised of the matter and can thus not redecide, reopen or rehear it for whatever reason. This is moreso because a court cannot sit on appeal on its own decision or review its decision. See the cases Ogbora v. Ibori (2005) 13 NWLR (pt. 942) 319; Sun Insurance (Nig) Plc vs. LMBS Ltd. (2005) 12 NWLR (Pt.940) 608; Ukachukwu v. Uba (2005) 18 NWLR (Pt.956) 1; Ubang v. Usua (2006) 12 NWLR (Pt.994) 244; Mohammd v. Hussein (supra). The case in question is clearly not shown to have been decided on the merit, hence the learned trial Judge is wrong to hold that he is functus officio to entertain and determine the motion to relist the suit.
As I remarked above, the learned trial judge raised the issue of “functus officio” suo moto in his ruling without inviting the parties’ counsel or giving them opportunity earlier to address it on same. The law is well settled on that. In the case of Ihiakim v. JSC (1998) 14 NWLR (Pt.584) 1, also reported in (1998) 12 SCNJ 255, the Supreme Court on page 290 of the former citation stated thus:-
“Decisions of a court of law ought not to be founded on any ground in respect of which it has neither received argument from or on behalf of the parties before it nor even raised by or such parties (sic) or either of them”
See Shitta-Bay vs. Federal Public Service Commission (1981) 1 SC 40; Sande v. Abdullahi (1989) 7 SCNJ 216 @ 229; Chief Ebba v. Chief Ogodo & Anor (1984) 4 SC 84 @ 11.
The Supreme Court went further to state thus at page 290.
“On no account should a court raise a point suo moto, as it did in the present case, no matter how clear it may appear to be and proceed to resolve it one way or the other without hearing the parties.”
See Okafor vs- Nnaije (1972) 3 ECSLR (Pt.99) 566 @ 581.
Similarly, in a more recent case of Araka v. Ejeagwu (supra) the same Supreme Court further amplified this point when it also held as below:-
“On no account should a court of law raise a point suo moto no matter how clear it may appear and proceed to resolve it one way or the other without hearing the parties particularly that party that may be adversely affected as a result of the point so raised…”
Now, in the instant case and as I have repeatedly remarked, the trial court not only raised suo moto the question of functus officio but it also proceeded to refused to relist the appellant’s suit on the ground that it was functus officio without affording opportunities to hearing any of the parties. The issue of functus officio was neither raised by the parties nor did it constitute an issue canvassed by the parties before it. This without any iota of doubt, amounts to error in law or at best a misdirection of law. I therefore also resolve this last issue in favour of the appellant.
I have while treating the issues for determination, held that the question of grant or refusal to grant adjournment amounted to an exercise of discretion by the learned trial Judge. Also the trial Judge as I indicated above, is not “functus officio” in entertaining the motion for relist of the plaintiffs suit. He however had the inherent power to exercise his discretion to relist or refuse to relist the suit. Let me further stress this point which is indeed a trite and well settled law that an appellate court has no business in interfering with exercise of discretion by a lower court. However, it is within the powers of an appellate court to interfere or disturb an exercise of discretion where such discretion was exercised on wrong or insufficient material or where no weight or inadequate weight was given to relevant considerations or where the court/tribunal acted under misapprehension of fact, or that the exercise was influenced by some illegality or substantial irregularity and in all other cases ‘here it is in the interest of justice to so interfere. Upon due considerations of all these highlighted facts, it is my conclusion that the trial court did not exercise its discretion judiciously and judicially. This, therefore justices this court to interfere with the lower courts exercise of discretion by disturbing the trial court’s decision.
In the result, I hold that the appeal is meritorious and is accordingly allowed by me. The decision of the lower court is hereby set aside. In its stead, I order the relisting of suit No.W/185/2004 in the cause list of the High Court of Justice, Delta State for it to be heard and determined on the merit. The case is therefore hereby remitted to the High Court of Justice, Delta State for the Learned Chief Judge to assign it to any Judge other than Anigboro J. I decline to make any order on costs, so parties should bear his/its respective costs.
HON. JUSTICE G. O. SHOREMI, J.C.A.: I have had the advantage of reading in draft the Judgment delivered by my learned brother, Sanusi JCA, I agree with it entirely. The learned trial Judge raised the issue of “Functus Officio” suo motu in his ruling without availing the counsel to the parties to address him on same. This attitude offends the rule of fair hearing.
It is always the duty of the court to create an atmosphere or environment for a fair hearing of a case but it is not its duty to make sure a party takes advantage of it, where it fails to create such an environment it is an abuse of fair hearing. See Newswatch Communication Ltd. vs. Dita (2006) (Pt.1) Vol. II All NLR 211 @ 215.
I agree with all consequential orders made including order as to cost.
OYEBISI FOLAYEMI OMOLEYE, J.C.A.: I agree entirely with the lead judgment just delivered by my learned brother, Amiru Sanusi JCA. I also allow the appeal and abide by the consequential orders in the said lead judgment.
Appearances
A. K. Osawota Esq.For Appellant
AND
J. A. Otite Esq.For Respondent
