DR LEONARD ACHOLONU & ORS v. KINGSLEY OHIRI
(2016)LCN/8583(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 10th day of May, 2016
CA/OW/79/2013
RATIO
EQUITABLE RELIEFS: WHAT CONSTITUTES A PRAYER FOR AN EQUITABLE RELIEF
It is trite that a prayer for an equitable relief is an appeal to the conscience of the judge and so the materials presented must not only be sufficient, they must also not be misrepresented. See Hart Vs JSK J. (Nig) Ltd (1998) 12 NWLR (pt.578) 372 at 390. PER ITA GEORGE MBABA, J.C.A.
FAIR HEARING: CAN A PARTY THAT FAILED TO UTILIZE THE OPPORTUNITY TO PRESENT HIS CASE SUBSEQUENTLY COMPLAIN OF BREACH OF RIGHT OF FAIR HEARING
A party who has failed to utilize the opportunity given to him to present his case cannot be heard to complain that he was denied fair hearing. See S & D Const. Co Ltd Vs Ayoku (2003) 5 NWLR (pt.813) 278 at 301. . . Since equity does not aid the indolent, the Claimant/Applicant (sic) who has not convinced the Court why their application should be granted are not entitled to the Orders prayed for. This application lacks merit and ought not to be granted. It is accordingly, dismissed.” PER ITA GEORGE MBABA, J.C.A.
ACTION: EFFECT OF A DISMISSED SUIT
When a Suit is dismissed, the same is, completely, dealt with and matters therein revert to the archives of the Court. The Court that handled it, becomes functus officio on the matter, except where application is brought for stay of the execution or for execution of decision, thereof. See the case of Cross Country Ltd Vs A.G. Moeller Itd (2014) LPELR -24091 (CA) and Nwaosu and Ors Vs HFP Engineering Nigeria Ltd (2014) LPELR – 23197 CA, where this Court held:
“Once an issue has been raised and determined by the Court between the litigating parties, the Court becomes functus officio to either direct or order parties to reopen the same issue before it for re-litigation. See Nnajiofor Vs Ukonu (1985) 2 NWLR (pt.9) 686 at 688; John Andy & Sons & Co Ltd Vs National Cereals Research Institute (1997) 3 NWLR (pt.491) 1.
In Sanusi Vs Ayoola (1992) 11 – 12 SCNJ 142 – the Supreme Court, held:
“There is the well settled elementary and fundamental principle of law that a Court, on dispossing of a case before it, renders itself functus officio. It ceases to have jurisdiction in respect of such case.”‘
See also the case of Kayode Vs Abdufatai (2013) 33 WRN 145 at 178 and Khalid Vs Ismail (2013) LPELR 22325 (CA), where it was stated:
“. . .I hold that the trial Court was right to refuse the application to set aside the judgment of 23/4/12, as it had become functus officio in that case. See Remawa Vs NACB LTD (2007) 2 NWLR (pt.1017) 155, where this Court said: “Generally speaking, when a trial Court has given judgment in a case on the merit, that Court is functus officio in relation to the judgment it pronounced. It cannot, ordinarily, reopen the case for a fresh hearing. A party dissatisfied with the judgment can only appeal against it.” PER ITA GEORGE MBABA, J.C.A.
PROCEDURE: RESTORATION OF SUIT; CONDITIONS FOR THE GRANT OF RESTORATION OF A SUIT
To set aside a judgment of Court and restore Suit, struck out, back to the Cause List, Applicant has a duty to adduce satisfactory reasons to convince the Court to exercise its discretionary powers in his favour. And Applicant, in that case, is invoking the equitable remedy of the Court, and must be honest in presentation of facts and show diligent in the prosecution of the case. The condition for grant, as per the Rules of Court, requires the bringing of the application within the time, prescribed by law, i.e. 7 days, from the date of dismissal or striking out of the Suit; disclosure of good cause or reasons as to why the Plaintiff or Counsel was absent in Court on the date of the Suit; and if the application was filed outside the prescribed time, sufficient reason why it was so. See Mohammed Vs Husseini (1998) 14 NWLR (pt.584) 108; Wobo Woke & Anor Vs Ishmael Ogoloma & Anor. (2010) LPELR – 5104 (CA). PER ITA GEORGE MBABA, J.C.A.
JUSTICES:
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
PETER OLABISI IGE Justice of The Court of Appeal of Nigeria
FREDERICK OZIAKPONO OHO Justice of The Court of Appeal of Nigeria
Between
1. DR LEONARD ACHOLONU
2. EDMUND ACHOLONU IGWE
3. JUDE IGWE
(for themselves and as representing the IGWE IGBE family of Umuokoro Amawom Owerri, Imo State) – Appellant(s)
AND
KINGSLEY OHIRI – Respondent(s)
ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment): This appeal is against the Ruling of Imo State High Court in Suit No. HOW/317/1996, delivered on 1/12/2011 by Hon. Justice N.B. Ukoha, wherein the trial Court dismissed the Application filed by Applicant to relist the Suit earlier struck out.
Appellants, as Claimants, had filed the Suit against the Defendant (now Respondent) on 5/10/96, seeking the following reliefs:
(1) Declaration that the Plaintiffs are entitled to statutory certificate of occupancy in respect of the piece and parcel of land and appurtenances, known as and called No. 36 Douglas Road, Owerri, in Owerri Local Government Area of Imo State of Nigeria, within jurisdiction.
(2) Perpetual injunction restraining the defendants, their agents, privies, workers and servants from entering, claiming ownership, making use of and collecting rents from the occupiers of the property. (page 2 of the Records of Appeal).
They filed statement of Claim on 4/11/99, wherein they repeated the above reliefs and added another for “An Order of Court that the purported sale of
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the said No. 36 Douglas Road, Owerri, by the 2nd and 3rd Defendants to the 1st Defendant, is null, void and of no effect.”
Pleadings were exchanged and hearing commenced before Justice Dureke (now retired). On 2/10/2009, the Suit was transferred to Hon. Justice N.B. Ukoha, to commence, de novo. With the introduction of the new High Court Civil Procedure Rules, parties filed their pre-trial forms and the matter was fixed for pre-trial on 4/10/10, 2/11/10 and later 17/11/10. But, according to Appellants, the Court did not sit on 2//11/10 and 17/11/10, and on the subsequent date – 15/12/10 – when the matter was adjourned. And on 12/1/2011, when the case was further adjourned for pre-trial the Suit was dismissed for non appearance of the Plaintiff or their Counsel.
On 12/4/11, Appellant’s Counsel, F.O. Emereuwaonu Esq, filed a motion seeking the following orders:
(i) Extension of time to set aside the Order dismissing Suit No. HOW/317/1996 (Dr. Leonared Archolonu & 2 Ors Vs B.S. Ohiri), for ten (10) working days;
(ii) Setting aside the Order dismissing Suit No. HOW/317/96. . .
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(iii) Order permitting the Plaintiffs/Applicants to re-tender documents tendered before the former Court
And for such other Order or Orders. . .”
The motion was taken out, still, as Suit No. HOW/317/96, which Applicant wanted to be restored to the Cause list! (See pages 24 -25 of the Records of Appeal). The motion was opposed by the Respondent and in a considered Ruling, dismissing the Application, the trial Court said:
“From the foregoing, one could see that the period given by the Rules for the pre-trial conference to commence and end is 3 months. This Suit was dismissed on 12/4/11, i.e. 3 days after the period granted by the Rules for the filing of such application. Like I had earlier stated, the Claimants/Applicants all through their averments in their affidavit, did not state any cogent reasons while (sic) they failed to appear in Court on the date fixed for the pre-trial conference. They also did not aver to any special reasons or circumstance why they did not file this application within the period allowed by the Rules. The antecedent of this case showed a lot of laxity and lack of
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seriousness on the part of the Claimant. The application of the Claimant is bordered on equitable relief. It is trite that a prayer for an equitable relief is an appeal to the conscience of the judge and so the materials presented must not only be sufficient, they must also not be misrepresented. See Hart Vs JSK J. (Nig) Ltd (1998) 12 NWLR (pt.578) 372 at 390. The applicants’ affidavit in support of this motion misrepresented the facts as to adjournment dates. They also did not present enough persuasive materials that will make the Court bend the law in pursuit of acting under discretionary powers of the Court. A party who has failed to utilize the opportunity given to him to present his case cannot be heard to complain that he was denied fair hearing. See S & D Const. Co Ltd Vs Ayoku (2003) 5 NWLR (pt.813) 278 at 301. . . Since equity does not aid the indolent, the Claimant/Applicant (sic) who has not convinced the Court why their application should be granted are not entitled to the Orders prayed for. This application lacks merit and ought not to be granted. It is accordingly, dismissed.”
See pages 54 – 55 of the
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Records.
That is the Ruling Appellants appealed against, as per the Notice of Appeal on pages 56 – 57 of the Records of Appeal disclosing 3 grounds of appeal. Appellants filed their Brief of argument on 5/11/2015 and a Reply Brief on 21/12/15. Appellant distilled two Issues for the determination of the appeal.
The Respondent, on Record, was allowed by this Court to come as substitute for his late father (B.S. Ohiri), who was the original 1st Defendant at the time of Ruling of the trial Court. (The 2nd and 3rd Defendants whose names were struck out of the Suit, before the motion, were relations of the Appellants). He filed his brief on 26/11/15 and raised objection, in the Brief, to the appeal, on grounds of jurisdiction, saying that the Suit was statute barred. On the main appeal, the Respondent also distilled two Issues for the determination of the appeal.
Appellants’ Issues for determination were:
(1) Whether the learned Trial Judge was right in visiting the mistakes of Counsel on the litigants. (Grounds 1 and 2) and
(2) Whether the Trial Judge was judicious in the exercise of his discretion not to relist Suit No.
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HOW/317/96 – Ground 3.
The Respondent’s two Issues were:
(1) Whether there was sufficient material before the Lower Court with which the Court could have exercised its discretion in the Claimants’ favour, necessitating this Suit to exercise its discretion in favour of the Appellants. (Grounds 1 and 2).
(2) Whether there was a case of mistake of Counsel established? Ground 3.
The Respondent’s Preliminary objection is a threshold issue that has to be considered, first, being on jurisdiction -“challenging the jurisdiction of the Court to entertain this Suit on the grounds that the Suit is statute barred.”
He submitted that whether or not a Court of law has jurisdiction to adjudicate on a matter is very fundamental, because the proceedings thereto stand the risk of being declared a nullity, where the question of jurisdiction is answered in the negative, after the trial. He relied on Dapianlong & Ors Vs Dariye & Anor. (2007) 4 SC (pt.111) 118 at 162 -163; Kabor Air Ltd Vs Oladipo (1999) 10 NWLR (pt.623) 517 at 531. He added
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that, where a Court lacks jurisdiction to entertain a Suit, it automatically lacks the necessary competence to try the case. He relied on Inegbedion Vs Selo – Ojemen (2004) 12 NWLR (pt. ) at 428, and argued that issue of jurisdiction can be raised at anytime – NDIC Vs CBN (2002) 7 NWLR (pt.766) 272 at 296. He argued that the Suit was statute barred; that the Suit was filed on 15/10/96 in the High Court, and in their amended statement of claim, dated 31/1/2005, the Plaintiffs made further claims, including an order to nullify purported sale of the property, No. 36 Douglas Road, Owerri, and to nullify the Certificate of occupancy, obtained thereon and for 1st Defendant to give account of the rents collected on the house, from 1973, to date of judgment.
Counsel argued that all that Appellants were seeking in the said amended statement of claim was recovery of the said land (No. 36 Douglas Road, Owerri), which has been in possession of 1st Respondent, since 1973, to which he held the statutory right of occupancy. He referred us to Amended Statement of Claim on page 7 of the Records of Appeal. He argued that Appellants had admitted that the
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property was sold to 1st Respondent in 1973 and that since then 1st Respondent had been in possession and had obtained certificate of occupancy, thereon, seeking recovery of the property, brings the case within the purview of the provisions of Section 3 of the Limitation Law of Imo State, 1994. He relied on the case Okorokwo Vs Okechukwu (Supra), on the distinction between an action for declaration of title and a claim for recovery of land; he said that, where the Plaintiff’s Claim conceded a previous loss of title and seeks to impeach the title of another to the land, the Claim, thus, qualifies as an action for recovery of land. He relied on Elabanjo & Anor Vs Dawodu (2006) 15 NWLR (pt.1001) 76; Abiola Vs Olawoye (2006) 13 NWLR (pt.996) 1.
Counsel argued that the property was purchased by 1st Respondent in 1973 and that the Appellants, by their averments in the Amended Statement of Claim, were aware of this fact; that the claim is therefore statute barred, by Section 3 of the Statute of Limitation. He relied on the case of Ajayi Vs Adebiyi (2012) NWLR (pt.1310) 169.
The Appellant’??s reply to the above was that the Preliminary
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objection was not competent; that the point raised by the objection was not raised at the Lower Court and the Respondent did not seek the leave of Court to raise it in this Court, and the Respondent had not crossed appealed in this case, to qualify to raise that issue. He relied on Shoshai Gambo Vs Zindul Turdam (1993) 6 NWLR (pt.300) 500. Ratio 7; Fadare Vs A.G. Oyo State (1982) 4 SCLR at 16 -17.
RESOLUTION OF THE PRELIMINARY OBJECTION
I think the Respondent, completely, misconstrued the whole essence of this appeal, which is against the decision of the trial Court, made on 1/12/2011, refusing to relist Appellant’s Suit (NO. HOW/317/96) at the Lower Court, which had been dismissed. The whole gamut of the Respondent’s arguments, in the Preliminary objection, relate to the competence or otherwise of the substantive Suit, which had been dismissed and which the motion sought to restore. Those arguments, in my opinion, were wasted, as they do not belong to this appeal, but to the substantive Suit, if or when restored, and would be better taken at the trial Court, to challenge the competence of the Suit. Now that the said Suit is dead,
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or in the mortuary, having been dismissed on 12/1/11, and the application to relist it also dismissed on 1/12/11, the Respondents arguments that the substantive Suit is statute barred amounts to beating a dead horse and has no foundation. It is predicated on nothing! It is, accordingly, dismissed.
Arguing the issue one of the appeal, Appellants Counsel, A. Chiedu Mezu Esq, rehearsed the reasons the trial Court gave for refusing to relist the Suit that they (Appellants) had delayed in filing their pre-trial Forms, and after filing same, late, were absent from Court when the pre-trial conference held, and that between 2/8/10 (when they filed the pre-trial forms) and 12/1/11 (when the Suit was dismissed) the three months allowed for re-trial had elapsed. Added to the above, Appellants filed application to relist the suit, 3 months after, instead of 7 days allowed by law. Appellants admitted the above flaws, but said that they were mistake of Counsel, which should not be visited on them (Appellants). He relied on the case of Ajayi Vs Omorogbe (1993) 6 NWLR (pt.301) 512 at 528; Daniang Vs Teachers Service Commission (1996) 5 NWLR (pt.446)
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97.
On Issue 2, Counsel submitted that a close review of what transpired between 2/8/10 and 12/1/11, would reveal that it was not Appellants’ fault that the three months expired, without the Pre-trial being done or concluded. He recounted the days the case had to be adjourned, because the Court did not sit and that on those days, the matter was adjourned off -?? record; that it was only on 12/1/11 that the matter was called up on record and unfortunately, Appellant were absent, because they were working with a wrong date. He argued that they should have been given the benefit of doubt by the trial Court. He conceded to Order 25 Rule 6 of the High Court (Civil Procedure) Rules, 2008, which allows Appellants to apply for relisting of the Suit, within 7 days of its being struck out or dismissed. He argued that as at 2/2/11, when they became aware that their case had been dismissed, the 7 days, meant to make the application had already elapsed. He prayed that the appeal be allowed as the aim of the Court is usually to do substantial justice between the parties, as against adherence to undue technicalities. He relied on Ponache Communications Ltd Vs
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Aikhomu (1994) 2 NWLR (pt.327) 420 at 431; Ogumbi Vs Kosoko (1991) 8 NWLR (pt.210) 511; Ekanem Vs Akpan (1991) 8 NWLR (pt.211) at 616; British American Ins. Co. Vs Edema Sillo (1993) 2 NWLR (pt.227) 570 at 637; Osita Nwosu Vs Imo State Environmental Sanitation Authority (1990) 2 NWLR (pt.135) 688 at 717.
He urged us to resolve the issues for Appellants and allow the appeal.
The Respondent’??s Counsel, Samuel N. Agweh Esq, who settled the brief of the Respondent, argued that there was no basis in the application for relisting for grant of the motion; that the application was not brought by way of trinity prayers, Appellants having not filed the application within 7 days. He relied on the case of Eastern Breweries Plc Vs Inuen (2000) 3 NWLR (pt.650) 66; Ogbogoro Vs Omenuwoma (2005) 1 NWLR (pt.906) 1.
Counsel also submitted that the trial Court was properly guided, when it refused to relist the Suit, going by the reasons it gave on page 54 of the Records; that those reason were in tandem with the law on the issue. He added that a grant or refusal of application to relist a case, being an equitable remedy, is, exclusively, at the discretion of
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the trial Court; that, to exercise that discretion, the Applicant must, of necessity, place before the Court materials upon which the Court can base that discretion. He relied on the case of Fed. Poly Idah Vs Onoja (2012) 12 NWLR (pt.1313) 72; Lawal Vs FRN (2013) 3 NWLR (pt.1342) 451.
He argued that the trial Court had observed that, even at the Pre-trial, the Appellants were lackadaisical in the conduct of their case, and when the Suit was dismissed, they brought application for relisting, after 3 months (instead of 7 days) and relied on fabricated facts, to support the application, as to why they were not in Court on the date fixed for the Pre-trial.
He relied on the case of Oforgu Vs Allanah (2000) 2 NWLR (pt.644) 243, on the need for tangible excuse for failure to act on time, or explanation for not taking due steps on time. Counsel said, even when Appellants claimed to have become aware of the dismissal of the Suit on 2/2/2011, they did not bring the application for relisting, until 12/4/2011 and they gave no reason to justify the two months delay; that even the reason given by Appellant for not being in Court on 12/1/11 of the Pre-hearing
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trial, was found by the Court to be false, and aimed at misleading the Court. He referred us to page 54 of the Records of Appeal, Paragraphs 1 and 2.
He urged us to resolve the issues against Appellants and to dismiss the appeal, relying on the case of FRN Vs WABARA (2013) 5 NWLR (pt.1347) 331 at 356 and Oyekanmi Vs NEPA (2000) 15 NWLR (pt.690) 414, where the Supreme Court held:
“A discretion properly exercised by a trial Court will not be lightly interfered with by an appellate Court, even if the appellate Court was of the view that it might have exercised the discretion, differently. It is only when a trial Court or a Lower Court exercised a discretion upon a wrong principle or mistake of law or under a misapprehension of the facts or took into account irrelevant and extraneous matters or excluded relevant matters, thereby giving rise to injustice, that an appellate Court would not abdicate its duty to interfere with the exercise of that discretion. . .”
On the issue 2, alleging mistake of Counsel, Counsel for the Respondent said the Court found the Claim of Appellants, thereon, to be contradictory and false. He urged us to dismiss the
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Appeal.
RESOLUTION OF THE ISSUES
I shall take the two Issues by Appellants, together, in considering the appeal, but they are rephrased as follows:
“Did the trial Court exercise its discretion properly by refusing Applicants’ application for relisting of the Suit, earlier dismissed and did that discretion visit effect of the mistake of Counsel on the litigants?”
Appellants’ Counsel had conceded that the trial judge was correct, about the flaws of Appellants, which led to the refusal of the application to relist the Suit No. HOW/317/96, earlier dismissed. He had said:
“We conceded to the above flaws pointed out by the Learned Trial Judge. . .”
The flaws, as listed by Appellants’ Counsel, were:
(a) That the Claimants (Appellants) delayed before filing their Pre-trial Forms 17 and 18, which they eventually filed on 2nd day of August 2010.
(b) That the Claimants (Appellants) and their Counsel were absent from Court on the 12th day of January, 2011 when the matter came up for the Pre-trial and case was
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dismissed.
(c) That between the 2nd August 2010 and the 12th January, 2011, when the Claimant’?s (Appellant’s) Suit was dismissed, the three (3) months period allowed for Pre-trial had elapsed.
(d) That the Claimants (Appellants) filed their Application to relist, two months after their matter was struck out instead of within 7 days as provided by the Rules.”
After conceding to the above findings by the trial Court, Appellants’ Counsel, then said “on the totality of the facts before the Learned Trial Judge, the Appellants would have been given the benefit of the doubt and their Suit relisted in the interest of justice, were the facts judiciously examined.”
I, patiently, read through Appellants’ argument, to see or find out the area of ‘doubt’ and/or ‘facts’ which Appellants’ Counsel thought should have been judiciously examined by the trial Court, to inure benefit to Appellants. I found none, and so the whole arguments of Counsel, became eloquent admission and support of the decision of the Lower Court, refusing to relist the
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Suit.
It should also be observed that the application to relist the Suit No. HOW/317/96, was filed on 12/4/2011, about 3 months after the dismissal of the Suit on 12/1/11, and the Application was taken out as:
IN THE HIGH COURT OF IMO STATE OF NIGERIA
IN THE HIGH COURT OF OWERRI JUDICIAL DIVISION
HOLDEN IN OWERRI
SUIT NO. HOW/317/96
BETWEEN:
4. DR. LEONARD ACHOLONU
5. EDMUND ACHOLONU IGWE – PLAINTIFFS
6. JUDE IGWE
(for themselves and as representing the IGWE IGBE family of Umuokoro Amawom Owerri, Imo State)
AND
KINGSLEY OHIRI – DEFENDANT
MOTION ON NOTICE
PURSUANT TO ORDER 25 RULE 6 (a) HIGH COURT (CIVIL PROCEDURE) RULES 2008
TAKE NOTICE that this Honourable Court will be moved on Monday 9th day of May 2011 as Counsel will be heard for the following Orders:
(1) Extending the time to set aside the
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Order dismissing Suit No. HOW/317/96 DR. LEONARD ACHOLONU & 2 ORS VS B.S. OHIRI, for (10) ten working days.
(2) Setting Aside the Order dismissing the Suit No. HOW/317/96. . .
(3) Order of Court permitting the Plaintiffs/Applicants to re-tender Documents tendered before the former Court.
And for such other order or Orders. . .
The above was reproduced, to show that the application was taken out in the same name and Suit No. HOW/317/96, which had been dismissed on 12/1/11, purporting to seek to relist the same Suit! That means, Applicants had, on their own, relisted the said Suit No. HOW/317/96 on the cause List, on the date they filed the application on 12/4/11 and so the applicants did not see the need again to even pray for the suit to relisted! A close look at the prayers reveals there is no prayer to relist the said Suit, earlier dismissed. It is true Order 25 Rule 6 (a) allows the trial Court to re-list a Suit dismissed.
I think that was even enough to strike out the application, as it did not make any sense to me, to ask the Court to extend time to set
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aside the Order dismissing the Suit and Setting aside the Order dismissing the Suit and without asking for relisting of the Suit, prays for order to permit the Plaintiffs/Applicants to tender documents tendered before the former Court!
Normally, an application to relist a Suit, earlier struck, is taken out in a miscellaneous Suit number, as the Suit Number of the Suit struck out can no longer be available for Applicant to file a process therewith.
When a Suit is dismissed, the same is, completely, dealt with and matters therein revert to the archives of the Court. The Court that handled it, becomes functus officio on the matter, except where application is brought for stay of the execution or for execution of decision, thereof. See the case of Cross Country Ltd Vs A.G. Moeller Itd (2014) LPELR -24091 (CA) and Nwaosu and Ors Vs HFP Engineering Nigeria Ltd (2014) LPELR – 23197 CA, where this Court held:
“Once an issue has been raised and determined by the Court between the litigating parties, the Court becomes functus officio to either direct or order parties to reopen the same issue before it for re-litigation. See Nnajiofor
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Vs Ukonu (1985) 2 NWLR (pt.9) 686 at 688; John Andy & Sons & Co Ltd Vs National Cereals Research Institute (1997) 3 NWLR (pt.491) 1.
In Sanusi Vs Ayoola (1992) 11 – 12 SCNJ 142 – the Supreme Court, held:
“There is the well settled elementary and fundamental principle of law that a Court, on dispossing of a case before it, renders itself functus officio. It ceases to have jurisdiction in respect of such case.”‘
See also the case of Kayode Vs Abdufatai (2013) 33 WRN 145 at 178 and Khalid Vs Ismail (2013) LPELR 22325 (CA), where it was stated:
“. . .I hold that the trial Court was right to refuse the application to set aside the judgment of 23/4/12, as it had become functus officio in that case. See Remawa Vs NACB LTD (2007) 2 NWLR (pt.1017) 155, where this Court said: “Generally speaking, when a trial Court has given judgment in a case on the merit, that Court is functus officio in relation to the judgment it pronounced. It cannot, ordinarily, reopen the case for a fresh hearing. A party dissatisfied with the judgment can only appeal against
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it.”
To set aside a judgment of Court and restore Suit, struck out, back to the Cause List, Applicant has a duty to adduce satisfactory reasons to convince the Court to exercise its discretionary powers in his favour. And Applicant, in that case, is invoking the equitable remedy of the Court, and must be honest in presentation of facts and show diligent in the prosecution of the case. The condition for grant, as per the Rules of Court, requires the bringing of the application within the time, prescribed by law, i.e. 7 days, from the date of dismissal or striking out of the Suit; disclosure of good cause or reasons as to why the Plaintiff or Counsel was absent in Court on the date of the Suit; and if the application was filed outside the prescribed time, sufficient reason why it was so. See Mohammed Vs Husseini (1998) 14 NWLR (pt.584) 108; Wobo Woke & Anor Vs Ishmael Ogoloma & Anor. (2010) LPELR – 5104 (CA).
In this case, the learned trial Court had listed the flaws of the Appellants, which made that Court to refuse the application sought. (See pages 53 -55 of the Records of Appeal). Appellants, in Paragraph 4.01 of
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their brief, reproduced the said reasons given by the trial Court for refusing the application and said “We concede to the above flaws, pointed out by the Learned Trial Judge, but submit that on the totality of facts before the Learned Trial Judge, the Appellants would have been given the benefit of doubt and their said Suit relisted in the interest of justice. . .”
I have earlier said that Appellants did not give us the privilege of knowing or seeing those facts, which he speculated, should have been considered by the trial Judge, other than the ones admitted by Appellants, to tilt the benefit of doubt in favour of Appellants. Rather, the facts, on the face of the application, revealed a grossly defective application, as Applicants did not even seek any order to relist the Suit, and had, erroneously, brought the application under the very Suit Number (HOW/317/96) which was no longer in existence on the Cause List, praying the Court to re-list the same! Absurdities!
Appellant had also sought to blame the Court for the delay in the Pre-trial hearing, but the trial Court, on page 54 of the Records, said “the allegation by the
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Appellants’ Counsel is unfounded and untrue.” The trial Court was not ready to take the blame.
Appellants had also alleged that they were not aware of the date of the Pre-trial on 12/1/11, and that they became aware of the decision of the Court, dismissing their case, on 2/2/11. Even if that were true, why did it take them another 2 months, to bring the application to set aside the earlier decision, after becoming aware of the default judgment? Appellants’ affidavit did not explain that obvious laxity. The trial Court had also observed that “The antecedent of this case showed a lot of laxity and lack of seriousness on the part of the Claimants.” It also observed that the application was an equitable relief, of which the materials for it must not only be sufficient, but also not mispresented.
Appellants tried to make undue capital of the stand of Courts, that a litigant should not be punished for the mistakes (or legal sins) of his Counsel. Of course, that can only apply and should be considered, where the litigant can be exculpated or separated from the error/mistake of his Counsel. Where the error or mistake is one too
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many, and is fatal to the case, he (litigant) has to bear the brunt of electing the said Counsel to handle his case, as the Counsel was his (litigant’s) choice, and one has to lie on the bed he makes!
In fact, Appellants’ arguments, in my opinion, have justified the decision and position of the trial Court to refuse the application. A prayer for equitable relief is an appeal to the exercise of discretion by the Court for the Applicant, tapping on the moral conscience of the law or mercy chambers of Court, and such applicant must exhibit avowed sense of honesty/integrity and diligence in the presentation of facts and the handling of the case, to qualify for the equitable remedy. HART Vs TSKJ Nig Ltd (1998) 12 NWLR (pt.578) 372; Lawal – Sula Vs UBA Plc (2003) 5 NWLR (pt.813) 376, I do not think Appellants’ application satisfied the above requirements. I cannot, therefore, fault the decision of the trial Court.
The appeal lacks merit and is hereby dismissed.
Appellants shall pay cast of N30,000.00 to the 1st Respondent.
PETER OLABISI IGE, J.C.A.: I had the opportunity of reading in draft
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the judgment just delivered by my learned Brother, ITA. G. MBABA JCA and I am in agreement with his reasoning and conclusions in dismissing the Appeal in its entirely.
I abide by the consequential orders made thereto.
FREDERICK OZIAKPONO OHO, J.C.A.: I have the opportunity of reading the draft of the judgment just delivered by my learned brother, ITA GEORGE MBABA, JCA and I am in agreement with his reasoning and conclusions in dismissing this Appeal as lacking in merit. I abide by the consequential orders made thereto.
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Appearances:
A. Chiedu Mezu, Esq. For Appellant(s)
Samuel N. Agweh, Esq. For Respondent(s)
Appearances
A. Chiedu Mezu, Esq. For Appellant
AND
Samuel N. Agweh, Esq. For Respondent
