RESIDENT OFIOGUMA & ANOR v. FREDRICK ERHIRE IBUJE & ANOR
(2012)LCN/5310(CA)
(2012) LPELR-7920(CA)
In The Court of Appeal of Nigeria
On Monday, the 23rd day of April, 2012
CA/B/120/2010
RATIO
COURT: WHETHER COURTS ARE MANDATED TO FOLLOW ADJECTIVAL LAWS
All courts in the exercise of their jurisdiction are constrained to proceed as provided for in the different provisions contained in statutes and Rules of procedure. These are now generally referred to as adjectival laws. Where therefore any law or rule of court provides specifically for any proceeding, the court is bound to follow that procedure. PER RAPHEL CHIKWE AGBO J.C.A.
COURT: INHERENT POWERS OF THE COURTS
These inherent powers exercisable by the courts include the power to strike out a case that is vexations or frivolous: see Enwezor vs. Onyejakwe (1964) 1 All NLR 14; power to grant leave to amend grounds of appeal – see Okoronkwo vs. IGP (1957) FSC 9, power to prevent abuse of its process – see Onalaja vs. Osinubi 12 WACA 503 – power to strike out or dismiss proceedings for want of diligent prosecution – see Chinwe vs. Ude (1996) 7 NWLR (Pt. 461) 379; Akujinwa vs. Nwaonuma (1998) 13 NWLR (Pt. 583) 632; Peak Merchant Bank Ltd. vs. Venture Trust Company Ltd. (unreported) CA/L/70/2003 determined on 29/6/2006.
This is especially so where there is default in complying with an order of court or where the plaintiff is guilty of inexcusable and inordinate delay in the prosecution of the action – see Echaka Cattle Ranch vs. NACB (1998) 3 SCNJ 54. PER RAPHEL CHIKWE AGBO J.C.A.
ORDER: NATURE OF A DISMISSAL MADE UNDER THE INHERENT JURISDICTION OF THE COURT
However, a dismissal made under the inherent jurisdiction of the court is not a dismissal on the merits and can be set aside by the court upon application by the party affected – see Akujinwa v. Nwaonuma supra; and Peak Merchant Bank Ltd. vs. Venture Trust Company Ltd. supra. PER RAPHEL CHIKWE AGBO J.C.A.
JUSTICE
RAPHAEL CHIKWE AGBO justice of The Court of Appeal of Nigeria
OYEBISI FOLAYEMI OMOLEYE justice of The Court of Appeal of Nigeria
CHIOMA EGONDU NWOSU-IHEME justice of The Court of Appeal of Nigeria
Between
1. RESIDENT OFIOGUMA
2. DOMINIC JEFIA
(for themselves and on behalf of Akporemo family of Ekakpamre)Appellant(s)
AND
1. FREDRICK ERHIRE IBUJE
2. GBOMIEMIE KPOLOGRI
(for themselves and on behalf of Imonioghare family of Ekakpamre)Respondent(s
RAPHEL CHIKWE AGBO J.C.A. (Delivering the leading judgment): The appellants were plaintiffs in Suit No. HCC/128/2000 pending at the High Court of Delta State sitting at Otu-Jeremi. The Suit has had a protracted history having earlier been heard by the High Court of Bendel State sitting at Ughelli with Suit No. UHU/52/75 before being assigned by the Chief Judge of Delta State to Hon. justice P.I.O. Anigboro sitting Ototu Jeremi. On 26/6/2001, the appellants as plaintiffs filed a motion in the High Court praying the court for an order “admitting in this Suit a Certified True Copy of the Evidence of plaintiffs witnesses (i.e. P.W.1, P.W.2, P.W.3 and P.W.4) each of whom testified in this Suit before Hon. justice W.A.O. Onoriobe”. The case had earlier been fixed as a special fixture for hearing on 27/6/2001. This motion filed on 26/6/2001 was fixed for hearing on 27/6/2001. The case had to be adjourned to 24/7/2001 to enable respondent’s counsel study the application and react thereto. On 20/7/2001 the plaintiff’s counsel was absent in court. 1st plaintiff was in court. He brought a letter from his counsel seeking an adjournment of the case to either 27/7/2001, 30/7/2001 or 6/8/2001, all dates within the vacation period of the court. The reason given by counsel in his letter was that all counsel in chambers had proceeded to Benin for the special court session in honour of late Chief Ihiensekhien (SAN). The trial Judge asked the 1st plaintiff to proceed with the matter as he would not grant the mischievous application.
The 1st plaintiff declined saying he needed counsel to lead him and sought an adjournment. The trial Judge refused and struck out the suit.
On 6/8/2001 the plaintiffs filed a motion at the High Court praying the trial court for (1) an order extending time within which the plaintiffs are to apply to the High Court for an order relisting the suit struck out on 20/7/2001 and (2) an order relisting the suit struck out on 20/7/2001. On 27/9/2001 the trial court took argument from the plaintiff’s counsel who relied on Order 37 Rule 6(2) of the High Court (Civil Procedure) Rules 1988 of Bendel State applicable to Delta State and Order 47 of the said Rules.
The trial court adjudged the motion thus:
“Court: I find no merit in this application. Counsel in moving the motion relied on order 37 rule 6(2) of the High court Rules of 1988 and also Order 47 Rule of the same Rule. The court consider the two Rules not applicable to the facts of this case as 1st plaintiff was present in court when the suit was struck out but refused to proceed with the case because his counsel were absent.
In moving the motion, O. Egbon moved the motion in terms of the two prayers set out in the motion papers that is to say:
1. Extension of time within which plaintiffs/applicants are to apply to this Honourable court for an order relisting this suit which was struck out on the 20/7/2001.
2. Relisting this suit which was struck out on the 20/7/2001.
As stated above the orders relied on to move the motion do not provide for the situation that led to the case being struck out. Counsel in his argument did not show to the court the rules of court which provides for the relisting of the case struck out in the circumstance under which the case was struck out on the 20/7/2001 within a particular period of time which had expired or at all. I could not find one myself. I do not know of any authority which empowers the court to reverse its order made in the circumstance which the case was struck out. I am bound by the rule of court. It is my view that a court should not make its order for the fun of making it. It has to be based on justice of the case; which means justice to all parties in the case. I consider reversing my order duly made without any law to that effect will not be justice according to law.
In the case of Willougby v. International Merchant Bank Ltd. (1987) 1 SC 137, 160-161, Eso JSC said inter alia ” justice is done once it is according to law; a law must necessarily include procedure laid down for its attainment. A Judge must be bound by rules, accepted rules made under the law of the land.
In view of the above I consider that it is in the interest of justice that the court should act as guided by law otherwise in justice will be done to the other party who also stand to benefit from the order of the court. The motion is in the circumstances dismissed.”
Dissatisfied with this ruling, the appellants sought the leave of this court to appeal. Leave was granted on 4/2/2010 with an extension of 14 days within which to appeal. On 17/2/2010 the appellants filed this notice of appeal. The notice of appeal contains three grounds to wit:-
“Ground 1
The learned trial Judge erred in law and on the facts when he held as follows:
I do not know of any authority which empowers the court to reverse its order made in the circumstance which the case was struck out. I am bound by the rule of court. It is my view that a court should not make its order for the fun of making it. It has to be based on justice of the case; which means justice to all parties in the case. I consider reversing my order duly made without any law to that effect will not be justice according to law.
Ground 2
The learned trial Judge erred in law in dismissing the applicants’ motion on the ground that there is no law which empowers him to grant same.
Ground 3
The ruling is against the weight of the affidavit evidence in support of the motion.”
The parties filed and exchanged briefs of argument. The appellants distilled only one issue for determination and that is-
“Whether the learned trial Judge was right in dismissing the appellant’s motion for lack of law enabling him to grant same.”
The respondents adopted the same issue.
All courts in the exercise of their jurisdiction are constrained to proceed as provided for in the different provisions contained in statutes and Rules of procedure. These are now generally referred to as adjectival laws. Where therefore any law or rule of court provides specifically for any proceeding, the court is bound to follow that procedure. In the instant case, it is clear from the record of proceedings that the trial court on 20th July 2001 struck out the appellant’s case for want of prosecution, the 1st plaintiff having declined to proceed with the matter. There are no provision of the extant Bendel State High Court (Civil Procedure) Rules Edict 1988 relating to that transaction and therefore no statutory authorization or circumscription. However, the Delta State High Court being a superior court of record, is inhered with inherent powers pursuant to S. 6(6)(a) of the Constitution of the Federal Republic of Nigeria 1999 which provides that –
“(6) The judicial powers vested in accordance with the foregoing provisions of this section –
(a) shall extend, notwithstanding anything to the contrary in this Constitution, to all inherent powers and sanctions of a court of law.”
These inherent powers exercisable by the courts include the power to strike out a case that is vexations or frivolous: see Enwezor vs. Onyejakwe (1964) 1 All NLR 14; power to grant leave to amend grounds of appeal – see Okoronkwo vs. IGP (1957) FSC 9, power to prevent abuse of its process – see Onalaja vs. Osinubi 12 WACA 503 – power to strike out or dismiss proceedings for want of diligent prosecution – see Chinwe vs. Ude (1996) 7 NWLR (Pt. 461) 379; Akujinwa vs. Nwaonuma (1998) 13 NWLR (Pt. 583) 632; Peak Merchant Bank Ltd. vs. Venture Trust Company Ltd. (unreported) CA/L/70/2003 determined on 29/6/2006.
This is especially so where there is default in complying with an order of court or where the plaintiff is guilty of inexcusable and inordinate delay in the prosecution of the action – see Echaka Cattle Ranch vs. NACB (1998) 3 SCNJ 54. However, a dismissal made under the inherent jurisdiction of the court is not a dismissal on the merits and can be set aside by the court upon application by the party affected – see Akujinwa v. Nwaonuma supra; and Peak Merchant Bank Ltd. vs. Venture Trust Company Ltd. supra.
The trial court was right when it held that Order 37 Rule 6(2) and Order 47(1) of the Bendel State High Court (Civil Procedure) Rules Edict 1988 were not applicable to the motion to set aside ruling and relist suit because they did not relate to the circumstance of the application. The said Rules are reproduced hereunder –
“37(6)(2) – 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.
47(1) – subject to particular rules, the court may in all causes or matters make any order which it considers necessary for doing justice, whether such order has been expressly asked for by the person entitled to the benefit of the order or not.”
It is clear from the above that while Order 37 Rule 6(2) relates to a situation where none of the parties appear when a case is called, Order 47(1) relate essentially to the consequential orders a court may make.
The ruling of the trial court on 27th September, 2001 was founded on the inability of the applicant in placing before it the rule or law on which the application was predicated. That was clearly wrong. Having founded the order striking out the suit on the court’s inherent power to dismiss for want of prosecution, the applicants were entitled to come back to the court seeking to set aside the said order. It is clear from the ruling of the court dismissing the application to set aside that the court did not consider the application on its merit. This appeal succeeds. The order of dismissal made by the trial Judge on 27/9/2001 is hereby vacated.
This matter is such as should have been re-heard by this court pursuant to S.15 of the Court of Appeal Act 2004. However, because this court is not fully seised with all the materials necessary for it to exercise it’s
discretion, the motion to relist the suit which motion dated 3rd August, 2001 was filed on 6th August, 2001 is hereby ordered to be returned to the trial court for hearing on the merits.
OYEBISI FOLAYEMI OMOLEYE, J.C.A.: I had the privilege of reading the draft of the leading judgment delivered by my learned brother R.C. AGBO, JCA. I am at one with him that, this appeal is meritorious. I equally allow the appeal and abide by the consequential orders made in the said leading judgment.
CHIOMA EGONDU NWOSU-IHEME, J.C.A.: I have had the opportunity of reading in advance the lead Judgment delivered by my learned brother AGBO JCA. I am in full agreement with the lucid reasoning and conclusion reached therein, to the effect that the matter be remitted to the trial court for hearing on the merits.
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Appearances
I. OvwighorientaFor Appellant
AND
Miss N. D. MalizuFor Respondent
