ALHAJI BALA MOHAMMED v. ALHAJI ISAH LAWAL & ORS
(2019)LCN/12505(CA)
In The Court of Appeal of Nigeria
On Friday, the 4th day of January, 2019
CA/K/306/2013
RATIO
COURT AND PROCEDURE: POWER OF THE COURT TO DISMISS AN ACTION
“Also, the law is well settled and indeed there is no dispute as to the fact, that a Court has the inherent power in appropriate circumstances to dismiss an action for want of diligent prosecution, if the plaintiff defaults in filing his statement of claim and where there is prolonged or inordinate and inexcusable delay in the prosecution of the action or if the plaintiff does not apply for the issuance of summons for direction within the time specified by the rules of the Court or ordered by the Court. See the cases of S & D CONSTRUCTION CO. LTD. VS. AYOKU & ANOR. (2011) LPELR 2965 (SC); OBIORA VS. OSELE (1989) LPELR 2182 (SC) and IKEME & ANOR. VS. UGWU (2013) LPELR 20777 (CA). However, the exercise of this power is sparingly used by the Court in favour of availing the parties the opportunity of hearing their case on its merit. The Supreme Court has in the case of S & D CONSTRUCTION CO. LTD. VS. AYOKU & ANOR. (SUPRA), enumerated the conditions that must be considered and fulfilled before a case could be dismissed without being heard on the merit. The conditions are whether:
i. There had been an inordinate delay by the plaintiff and what is inordinate delay depends on the facts of each case.
ii. That such inordinate delay is inexcusable, that is, until credible evidence is given; the natural inference is that the delay is inexcusable.
iii. The defendant is likely to be seriously prejudiced by such delay and the longer the delay, the more likelihood that the defendant would be prejudiced.” MASSOUD ABDULRAHMAN OREDOLA, J.C.A.
JUSTICES
MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria
IBRAHIM SHATA BDLIYA Justice of The Court of Appeal of Nigeria
OBIETONBARA O. DANIEL-KALIO Justice of The Court of Appeal of Nigeria
Between
ALHAJI BALA MOHAMMED Appellant(s)
AND
1. ALHAJI ISAH LAWAL
2. ALHAJI UMARU MABAI
3. UNITY BANK PLC Respondent(s)
MASSOUD ABDULRAHMAN OREDOLA, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the ruling of the High Court of Katsina State, sitting at Funtua (hereinafter referred to as the lower Court) delivered by Hon Justice Ibrahim M. Bako, J., on the 22nd day of April, 2013, wherein the lower Court dismissed the plaintiff/appellant?s (hereinafter referred to as the appellant) action for want of prosecution.
The action which gave rise to this appeal was commenced by the appellant in a strenuous bid to prevent the defendants/ respondents (hereinafter referred to as the respondents) from selling his properties which were mortgaged to the Unity Bank Plc (3rd respondent) to secure the credit facilities advanced to the appellant by the 3rd respondent. To achieve his aim, the appellant filed a motion ex-parte on the 31st day of August, 2009 wherein he sought for the grant of the following reliefs:
1. An order of interim injunction on the Defendants/Respondents, their agents, assignees, workers, constructors etc, from doing anything with the properties, subject matter of this suit, until after the determination of the motion on notice herein filed.
2. Any further order this Court may deem fit to make in the circumstances?.
The application referred to above was granted by the lower Court and in accordance with the rules of the said Court, the appellant brought a similar application vide a motion on notice also filed on the 31st day of August, 2009. This second application was duly argued and also granted by the lower Court on the 16th day of July, 2012. (See pages 15 – 18 of the record of appeal). Also, the appellant filed his writ of summons on the 31st day of August, 2009 wherein by his endorsement therein he sought for the grant of the following reliefs:
1. A declaration that the Plaintiff is not indebted to the 3rd Defendant in the sum of N136,218,875.85 as at 31st December, 2005 or indeed any sum at any time whatsoever.
2. A declaration that the failure and/or negligence of the 3rd Defendant to render to the Plaintiff monthly Statements of Accounts, containing detailed transaction history, interest and other bank charges, in respect of the 4 Accounts maintained with the 3rd Defendant is illegal, null and void.
3. A declaration that the Defendants, cannot unanimously meet and resolve amongst themselves to dispose off, by way of auction sale, sale by private treaty or by whatever methods, the Plaintiff’s landed properties covered by Certificates of Occupancy Nos.: KT 5485, KT 8986 and KT 9852, as well as rights of occupancy Nos: FUN/A/0428 and FLG/LAN/10/382/F, without giving the requisite statutory notice.
4. A declaration that any purported exercise of the power of the Defendants to alienate the aforementioned landed properties of the Plaintiff without compliance with mandatory requirements of the law in that regard is null, void and of no effect.
5. An order of perpetual injunction restraining the Defendants by themselves, their servants, agents or otherwise howsoever known from auctioning, selling, disposing or otherwise dealing with any rights, title or interest of the Plaintiff in the properties in a purported deed of legal mortgage.
It is pertinent to observe, that the appellant failed and or neglected to file his statement of claim along with the writ of summons or thereafter; rather he filed a summons on notice on the 7th day of April, 2010 wherein he sought for the grant of the following prayers:
1. An order of this Honourable Court on the Defendant/Respondent to render to the plaintiff/applicant the up to date monthly statements of accounts of the accounts the plaintiff/applicants maintained with the 3rd Defendant/Respondent’s bank at its Funtua Branch
2. An order of this Honourable Court on the defendant/respondent to make available to counsel for the Plaintiffs/Applicants all relevant books of accounts, debit notes, bank charges, interests and other rates charged on the accounts for their inspection.
3. And any such further orders as this Honourable Court may deem fit to make in the circumstances?.
The main purport of the application in question was for the applicant to have access to details of his accounts and other necessary documents to enable him ascertain his indebtedness to the 3rd respondent and to prepare his statement of claim. None of the respondents opposed this motion/application and it was accordingly granted on the 23rd day of January, 2012. (See page 150 of the record of appeal). However, on the 22nd day of February 2013 when the case came up for hearing, the appellant was not ready due to the fact that he is yet to file his statement of claim and other accompanying processes. Thus, he sought for adjournment but the same was vehemently opposed by the respondents who also applied ‘that the matter be dismissed’. The learned trial judge after hearing the application and the legal arguments of the parties in support and opposition of/to the applications for adjournment and dismissal; upheld the respondents’ objection and thereby dismissed the action pursuant to Order 26 Rule 1 of the Katsina State High Court (Civil Procedure) Rules, 1991. (See page 151 of the record of appeal).
Thoroughly dissatisfied with the above decision, the appellant has now appealed against the same to this Court vide his Notice of Appeal dated the 4th day of May, 2013 and filed on the 9th day of May, 2013. The appellant’s quarrels with the decision of the lower Court were contained and or captured in his two grounds of appeal. The said grounds of appeal without their particulars are reproduced below as follows:
3.1 GROUND ONE: ERROR OF LAW
The lower Court erred in law when it dismissed appellant’s suit No. KTH/93/2010 without hearing parties on the merit.
3.2 GROUND TWO
The lower Court erred in law when it refused to accept the appellant’s motion for relisting of suit No. KTH/FT/29/2010 which suit it dismissed on 22nd April, 2013 without hearing parties.
In accordance and compliance with the rules of this Court, the record of appeal was compiled and transmitted to this Court on the 16th day of July, 2013 and was deemed as properly transmitted by the order of this Court granted on the 1st day of June, 2015. Thereafter, the parties duly filed and exchanged their respective briefs of argument. The appellant’s brief of argument and reply brief were filed on the 1st day of June, 2015 upon the grant of leave by this Court to do so and on the 16th day of October, 2018 respectively. The said briefs were settled by A. U. Ajodo Esq. On the other side of the divide, the respondents’ brief of argument was prepared by Abdulmalik Makama Esq. It was filed on the 3rd day of June, 2015.
Towards the determination of this appeal, the learned counsel for the parties distilled a single issue apiece for resolution. The issue distilled by the learned counsel for the appellant is reproduced below as follows:
‘WHETHER HAVING REGARDS TO THE CIRCUMSTANCES OF THE SUIT AS CONSTITUTED BEFORE THE LOWER COURT THE COURT WAS JUST IN DISMISSING SAME’.
The issue identified by the learned counsel for the respondents is reproduced below:
“WHETHER THE LEARNED TRIAL JUDGE WAS RIGHT WHEN HE DISMISSED THE PLAINTIFF’S SUIT FOR WANT OF DILIGENT PROSECUTION”.
Having considered the sole issue separately put forward by the learned counsel for the respective parties vis-a-vis the decision appealed against and grounds of appeal, I am of the viewpoint that the issues distilled by the parties are materially the same. However, the issue crafted by the learned counsel for the respondent is more apt and the same is hereby adopted for resolution in the determination of this appeal.
ARGUMENT ON ISSUE.
The learned counsel for the appellant set out by stating, that there is a subsisting order of the lower Court where the Court ‘granted orders on the respondents to make available to the appellant documents relevant for the preparation of his (the appellant) pleadings’. (bracket mine for clarification). He stated further, that the aforesaid order of the lower Court had not been complied with by the 3rd respondent, thus ‘the respondents who have not shown that they have complied with the order of the lower Court of 23/01/2012 at page 150 of the record were not in the position to make an application for the dismissal of the appellant’s suit to warrant the order of dismissal of the Court as contained at page 151 of the record of appeal’.
Also, the learned appellant argued, that the learned trial judge made heavy weather of the word ‘dismiss’ used in Order 26 Rule 1 of the High Court (Civil Procedure) Rules Cap. 60 Laws of Katsina State (hereinafter referred to as the Rules), in dismissing the appellant’s suit. He submitted, that ?Order of dismissal can only justly be made if shown that a matter had been heard or at least commenced hearing on the merit?. He called in aid and quoted extensively from the case of IVBIYARO VS. FRANCIS (2002) 1 NWLR (PT. 747) 33 AT 45. The learned appellant’s counsel further submitted, that ‘… that the appellant’s matter in which pleadings had not been filed nor heard on the merit ought only to have been struck out instead of dismissed as done by the trial Court, the provision of Order 26 Rule 1 which carries the word dismissal notwithstanding as Courts are not known to be slaves to their own rules?. He referred us to the decision in the case of EBE VS. COMMISSIONER OF POLICE (2008) 4 NWLR (PT. 1076) 189 AT 217 and quoted therefrom.
Finally, the learned counsel for the appellant submitted, that the ‘Appellant’s constitutional right to be heard on his suit before the trial lower Court is fundamental and cannot be limited by any implications… Consequently, order of dismissal in the prevailing circumstances of the suit before the trial lower Court with all due respect is a limitation or implication on the appellant?s Constitutional Right to be heard’. He supported his submission with the case of NIGERIA BAR ASSOCIATION VS. ODIRI (2007) 8 NWLR (PT. 1035) 203 AT 207.
In response, the learned counsel for the respondent submitted, ?that the basis of dismissing the above suit for want of diligent prosecution is the non-compliance with the provision of Order 26 Rule 1 of the High Court of Justice Katsina State (Civil Procedure) Rules, 1991 by failure of the plaintiff to file his statement of claim which is a condition precedent that must be fulfilled or satisfied in all cases before proceeding to trials in our Court. The learned counsel further submitted, that ‘any party seeking the power of the Court must bring his case within the provisions of the rules on which he purported to make his case or present his application’. He referred us to the case of OYEGUN VS. NZERIBE (2010) ALL FWLR (PT. 516) 425 AT 440. The learned respondents’ counsel argued, that the appellant did not file his statement of claim within the time provided by the rules, thus, the respondents were right to have applied for the dismissal of the appellant’s case and the learned trial judge justified in dismissing the case as he was empowered to do so by the provision of Order 26 Rule 1 of the Rules.
In addition, the learned counsel for the respondent’s submitted, that the filing of the statement of claim was a ‘condition precedent to enable the Court below to exercise its jurisdiction conferred by law to hear the matter’. Furthermore, he argued, ‘that the appellant’s counsel misconceived the provision of Order 26 Rule 1 by jumping to conclusion that the suit was not heard on the merit. The grouse of the appellant that the trial Court deviated from the tenets of fair hearing before the matter was dismissed is unfounded. The doctrine of fair hearing can only be invoked by the Court after it has assumed jurisdiction that is the subject matter, issues, and parties before the Court are competent’.
Again, the learned counsel for the respondents argued, that the appellant’s contention that he was denied fair hearing at the lower Court because he was not given the opportunity to file his statement of claim is misplaced, because the appellant was given sufficient opportunity to file his statement of claim but he failed to file the same for over four years. Thus, the learned counsel submitted, that where a party to a suit delay in putting all the necessary pleadings before the Court, such delay or indolence of the party is ‘either fatal to his case’ as amounting to a waiver of his right under the maxim that Equity help only the vigilant?. He referred us to the cases of OGUNYEMI VS. EJIDE (2008) ALL FWLR (PT. 403) 1406 – 1407 and ATTORNEY GENERAL OF RIVERS STATE VS GREGORY OBI UDE (2007) ALL FWLR (PT. 347) 613 – 614. The learned counsel further submitted, that throughout the entire duration of the case at the lower Court, the appellant was given fair hearing and ?the refusal to grant appellant counsel an adjournment to another date cannot be said to amount to breach of fair hearing. By refusing to grant the adjournment … the trial Court simply exercised its discretion and the exercise of discretion by a Court rightly or wrongly cannot always be regarded to amount to denial of fair hearing?. He thereby urged this Court to resolve this issue in favour of the respondent.
The learned counsel for the appellant in the appellant’s reply brief, contended that ‘the entire legal arguments canvassed by the respondents in their brief are misplaced; this is because in their brief, the respondents had made heavy weather on fair hearing in the suit in which pleadings were yet to be exchanged but yet dismissed by the lower Court on grounds of indiligent prosecution’. It was further argued, that Courts are not to be slavish to their rules, and once pleadings has not been exchanged, not to talk of hearing of the case on the merit, it is improper to dismiss the case and in the process prevent the case from being heard on its merit. He supported his position with the case of AUDU VS. FEDERAL REPUBLIC OF NIGERIA (2013) 2 SCM 50 AT 53 – 54 and MBANEFO VS. MOLUKWU & ORS. (2014) 4 SCM, 59 AT 163 – 165.
The law is trite as the learned counsel for the respondents has stated, that the adjournment of cases or power to grant an adjournment is within the discretion of the Presiding Judge or Justices as the case may be. However, like every other discretionary power it must be exercised judicially and judiciously. Also, such exercise of discretion is usually respected by an appellate Court and rarely interfered with, unless the appellant can satisfactorily prove to the appellate Court, that the lower Court acted on an entirely wrong principle and/or failed to take all the circumstances of the case into consideration and that the exercise of such discretion has manifestly occasioned injustice to the appellant. See the cases of ALSTHOM S.A. & ANOR. VS. SARAKI (2005) LPELR 435 (SC); OKEKE & ORS. VS. ORUH (1999) LPELR 2435 (SC) and SALU VS. EGEIBON (1994) LPELR 2997 (SC).
In the instant case, the parties are ad idem that the instant action was instituted in 2009 and as at 22nd day of February, 2013 when the lower Court dismissed the action, the appellant has not filed his statement of claim. However, the learned counsel for the appellant argued, that failure to file the said statement of claim to enable hearing to commence in the case was due to the 3rd respondent’s refusal or failure to comply with the lower Court’s order granted on the 23rd day of January, 2010, wherein the Court directed/ordered the 3rd respondent to make available to the appellant, all his statement of accounts and other documents containing all the transactions concerning all the four accounts which the appellant maintained with the 3rd respondent. These documents were stated by the appellant to be needed to enable him prepare his pleadings and properly chart his course. The record of appeal placed before us and indeed, it has not been denied by the respondents, that the 3rd respondent had failed to comply with this order and the appellant has also stated, that it was because of the refusal and or noncompliance of the 3rd respondent in this regard that contributed to his inability to file his statement of claim. In the light of this I am of the firm viewpoint that the learned trial judge failed to take into consideration the peculiar facts and given circumstances of this case, when he declined to grant the appellant the adjournment, especially when it is on record that the 3rd respondents has not obliged the appellant with the necessary documents as previously granted and ordered by the learned trial judge.
Also, the law is well settled and indeed there is no dispute as to the fact, that a Court has the inherent power in appropriate circumstances to dismiss an action for want of diligent prosecution, if the plaintiff defaults in filing his statement of claim and where there is prolonged or inordinate and inexcusable delay in the prosecution of the action or if the plaintiff does not apply for the issuance of summons for direction within the time specified by the rules of the Court or ordered by the Court. See the cases of S & D CONSTRUCTION CO. LTD. VS. AYOKU & ANOR. (2011) LPELR 2965 (SC); OBIORA VS. OSELE (1989) LPELR 2182 (SC) and IKEME & ANOR. VS. UGWU (2013) LPELR 20777 (CA). However, the exercise of this power is sparingly used by the Court in favour of availing the parties the opportunity of hearing their case on its merit. The Supreme Court has in the case of S & D CONSTRUCTION CO. LTD. VS. AYOKU & ANOR. (SUPRA), enumerated the conditions that must be considered and fulfilled before a case could be dismissed without being heard on the merit. The conditions are whether:
i. There had been an inordinate delay by the plaintiff and what is inordinate delay depends on the facts of each case.
ii. That such inordinate delay is inexcusable, that is, until credible evidence is given; the natural inference is that the delay is inexcusable.
iii. The defendant is likely to be seriously prejudiced by such delay and the longer the delay, the more likelihood that the defendant would be prejudiced.
iv. Whether the inordinate and/or inexcusable delay is attributable to the plaintiff’s counsel or the plaintiff himself.
The apex Court further stated that unless the trial Court specifically, orders otherwise, a dismissal for want of diligent prosecution under the above circumstances, would be taken to equate to an order striking out the case and the dismissal order should not and will not constitute a bar to the plaintiff from bringing a similar action, based on the same set of facts.
The apex Court added, that ‘Courts of law should always loath to dismiss when there is no hearing on the merits.’ Aligning or streamlining the above stated conditions and/or principles to the facts of this case, I am of the firm viewpoint that the respondents have not successfully established that this case should be dismissed outrightly and the appellant consequently/subsequently barred from either re-listing or re-instituting the suit. In the instant case, the appellant has satisfactorily and sufficiently explained the reason why he could not file his pleadings. The appellant stated and it wasn’t denied, that the failure was due to the refusal of the 3rd respondent to comply with the order of the lower Court which directed and or ordered the 3rd respondent to make available to the appellant?s statement of accounts and all other necessary financial records that would enable him in prosecuting his case available to him.
It is not in doubt that the appellant must have delayed in filing his statement of claim, however, the delay in this circumstance is readily and vividly excusable and explicable. Thus, I do agree with the learned counsel for the appellant that the proper order, that the learned trial judge ought to have made in the given circumstances of this case, was an order striking out the suit and not one of dismissal.
With regard to the argument of the learned counsel for the respondents that the appellant’s case was dismissed pursuant to Order 26 Rule 1 of the High Court (Civil Procedure) Rules, Katsina State, 1991, which specifically provided for dismissal of a case for want of diligent prosecution; it is pertinent to point out that the rules of Court were made to enhance smooth adjudication of cases brought before a Court and ensure that its proceedings are conducted in an orderly and predictable manner. That is, rules of Court are made to provide access to Courts and the due administration of justice; but where strict application of any provision of the rules will occasion injustice or result in technical justice, the Courts are enjoined to demonstrate and display some creativity and get around such provision of the rules in favour of substantial justice. See the cases of ADEGBITE & ANOR. VS. AMOSU (2016) LPELR 40655 (SC); PEOPLES DEMOCRATIC PARTY VS. INDEPENDENT NATIONAL ELECTORAL COMMISION & ORS. (2012) LPELR 9724 (SC); SOSANYA VS. ONADEKO & ORS. (2005) LPELR 3105 (SC).
Applying the position of the law as enunciated in the cases referred to above, to the facts and circumstances of this case, I am of the firm viewpoint that the order of dismissal of the appellant?s suit where pleadings has not been duly filed and exchanged to determine the root cause of whatever be the disputes that exist between the parties and hearing conducted with respect thereto, could occasion miscarriage of justice and has indeed occasioned injustice. The proper order which the lower Court would have made in the given circumstances of this case (if it must), should have been an order striking out the suit, to enable the appellant have a second bite at the cherry, if he chooses to do so. Thus, this issue is hereby resolved positively in favour of the appellant.
Having resolved the sole issue adopted for resolution in the determination of this appeal in the manner stated above, this appeal is hereby found by me to be meritorious. It succeeds and it is accordingly allowed. Thus, the ruling of the lower Court delivered on the 22nd day of April, 2013 in Suit No. KTH/FT/29/2010 is hereby set aside by me, and in its place, it is hereby ordered that the suit be remitted to the Chief Judge of Katsina State, for re-assignment to another Court for requisite and necessary action. As I do not intend to make an award with regard to costs in favour of either of the parties, both parties are to bear their respective costs.
IBRAHIM SHATA BDLIYA, J.C.A.: I agree.
OBIETONBARA O. DANIEL-KALIO, J.C.A.: I have read the draft Judgment of my learned brother MASSOUD ABDULRAHMAN OREDOLA JCA and I agree with my lord’s reasoning and conclusion. I am of the firm view that the lower Court did not act judiciously and judicially when it dismissed the appellant’s case in the circumstances in which the case was dismissed. I cannot see the prejudice that the respondent would have suffered on account of some delay in the filing of the appellant’s statement of claim at the lower Court. At best, the case should have been struck out and not outrightly dismissed. I will therefore set aside the Ruling. The suit is remitted to the Chief Judge of Katsina State for the purpose of re-assignment of the matter to a Judge of the Katsina State High Court other than Ibrahim M. Bako J.
Appearances:
A. U. Ajodo, Esq.For Appellant(s)
Abdulmalik Makama, Esq. with him, Yerima Yakubu Baba, Esq.For Respondent(s)
