A. M. DIKKO ESQ v. ABUBAKAR M. MACHIKA
(2018)LCN/12470(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 10th day of July, 2018
CA/K/209/2014
RATIO
ACTION: ACTION FOR THE DETERMINATION OF AN ISSUE
“The law however is that where a statute provides a line of action for the determination of an issue, the aggrieved party must exhaust all the remedies provided before going to Court. SeeA/G Kwara v Adeyemo (2017) 1 NWLR Part 1546 Page 210 at 251-252 Para C-A per Peter Odili JSC; Kayili v Yilbuk (2015) 7 NWLR Part 1457 Page 26 at 82 Para E-F; (2015) All FWLR Part 775 Page 347 at 394 Para H per Kekere-Ekun JSC.” PER OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.
APPEAL: LEAVE OF COURT
“Rule 3 of the Rules of this Court, but the applicant in this case did not do so.
‘…It is trite law that whenever leave of Court is a condition precedent for a right, the discretion of the Court is implied. See Abdul Rauf Olumegbon vs Aminda Adedeji Kareem (2002) 5 SCNJ 94 at 99 – 100.'” PER OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.
Before Their Lordships
UWANI MUSA ABBA AJIJustice of The Court of Appeal of Nigeria
IBRAHIM SHATA BDLIYAJustice of The Court of Appeal of Nigeria
OLUDOTUN ADEBOLA ADEFOPE-OKOJIEJustice of The Court of Appeal of Nigeria
Between
A. M. DIKKO ESQAppellant(s)
AND
ABUBAKAR M. MACHIKA
(Carrying out Business in the Name and style of Garba Lado General Enterprises)Respondent(s)
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.(Delivering the Leading Judgment):
This is an appeal against the decision of the High Court of Kaduna State delivered on the 4th day of July 2013 by Hon. Justice Dahirus Khobo entering judgment against the Appellant, as Defendant, in terms of the reliefs sought in the Respondent’s Statement of Claim, pursuant to Order 26 Rule 6 (b) of the High Court of Kaduna State (Civil Procedure) Rules.
Aggrieved by this decision, the Appellant appealed, with leave of this Court granted on 11/2/14, by Notice of Appeal dated 14/2/14 but filed on 17/2/14.
In prosecution of his appeal, the Appellant filed an Appellant’s Brief of Arguments on 9/9/16 but which was deemed properly filed on 24/11/16, pursuant to an application by the Appellant. The Brief was settled by A.M. Imam Esq of A.M. Dikko & Co, in which four issues for the Court’s determination, were distilled.
In response, the Respondent filed a Notice of Preliminary Objection on 19/12/16, dated 28/11/16, seeking the striking out of the appeal.
Filed along with the Preliminary Objection is a Respondent’s Brief of Arguments, settled by Ibrahim Dantsoho, P.Y. Garuba and Sulayman Umar Esqs of Ibrahim Dantsoho & Co, in which a sole issue was distilled for determination.
Before proceeding to the substantive appeal, the Preliminary Objection shall be deliberated upon, as in the event of its success, may summarily truncate the appeal.
Preliminary Objection
The Grounds for the Preliminary Objection are the following:
i) Both the Notice of Appeal dated 14/02/2014 and the Notice of Appeal dated 5/11/2013 were simultaneously commenced with respect to the same subject matter and the same parties thereof.
ii) The Appellant having been refused on the 24/10/2013 the setting aside of the trial Court’s decision of 04/07/2013 appealed against the same on the 5/11/2013. See page 1 – 3 of the supplementary record.
iii) Without pursuing the filed Notice of Appeal dated 5/11/2013 to its logical conclusion the appellant herein commenced the instant appeal to the irritation and annoyance of the respondent against the same subject matter and the same parties thereof.
iv) Multiplicity of proceedings between the same party and subject matter has always been frowned by the law Courts. See Okorodudu & Anor vs Okoromadu & Anor (1977) 3 S.C 21 at 30 – 32 and Ashley Agwasim & Anor vs David Ojichie & Anor (2004) 4 SCNJ 199 at 205.
It is indeed true, as stated in the grounds above, that the Appellant filed, prior to the instant appeal, a Notice of Appeal against the Ruling of the lower Court delivered on 24/10/13 refusing to set aside its judgment delivered on 4/7/13. This Notice is contained in the Supplementary Record of Proceedings filed in this Court on 20/5/15.
The Appellant has, however, in Paragraph 1.05 of its Brief of Arguments, indicated that it is not proceeding with this former appeal against the post judgment ruling of the lower Court, but proceeding with the instant appeal against the final judgment of the said Court.
A right of appeal is not lost, I hold, by the filing of more than one notice of appeal. What is important is that the Appellant either seeks to consolidate the notices or withdraws one of them. See Ani v Effiok (2017) 8 NWLR Part 1567 Page 281 at 307 Para B-c per Augie JSC; FRN v. Dairo (2015) 6 NWLR Part 1454 Page 141 at 167 Para G-H, 168 Para C-F; (2015) All FWLR Part 776 Page 486 at 509 Para F-G per Nweze JSC; Yaki v. Bagudu (2015) 18 NWLR Part 1491 Page 288 at 340 Para A-C; (2015) All FWLR Part 810 Page 1026 at 1075 Para D-E, per Peter-Odili JSC.
The Appellant, having withdrawn its Notice of Appeal dated 5/11/13 and filed on 6/11/13 against the post judgment ruling of the Court delivered on 24/10/13, cannot be said to be constituting an abuse of the Court?s process, neither can he be said to have lost his right to appeal. I accordingly find no merit in the Preliminary Objection and dismiss it.
I now proceed to the substantive appeal.
Main Appeal
The facts leading to the institution of this appeal, in summary, are that the Respondent, as Plaintiff before the lower Court, claimed against the Appellant, as Defendant, the following reliefs, as per its Writ of Summons and Statement of Claim, filed on 27/7/11, contained at Pages 1-11 of the Records:
a) A declaration that M/S Garba Lado Enterprise is one of the Business outlets of A. M. Machika Nigeria Ltd through which it maintained a legal Retainership relationship with the defendant who carries out his Law practice as A. M. DIKKO & CO.
b) A declaration that both the Plaintiff and the Defendant are bound by the provisions and/or content of the legal Retainership agreement entered into by A. M. Machika Nig. Ltd and A. M. Dikko Esq. Whereof the Plaintiff?s claim against the Defendant is as follows:
c) A declaration that the Plaintiff is not indebted to the defendant in the sum of N5,000,000.00 and or in any sum for that matter regarding the contract for the drilling of 10 boreholes in Jaba Local Government awarded to M/S Garba Lado in the sum of N950,000.00 each by Government of Kaduna State Ministry of Water Resources in the year 2004 and or for any other services purportedly rendered by the Defendant to the Plaintiff.
d) A declaration that the unfounded/unnecessary insult/accusations levied (sic) against the Plaintiff by the Defendant by calling him a cheat, irresponsible, unworthy of trust etc amount to attacking his personality and dignity and to which the Plaintiff is entitled to general damages in the sum of N2,000,000.00 only.
e) A perpetual injunction restraining the Defendant, his agents, privies and howsoever from claiming that the Plaintiff is indebted to him to the sum of N5,000,000.00 regarding the contract for the drilling of 10 boreholes in Jaba Local Government awarded to M/S Garba Lado in the total sum of N9,500,000.00 only by the Government of Kaduna State Ministry of Water Resources in the year 2004 and or for any other services purportedly rendered to the Plaintiff by the Defendant.
f) Cost of the action.
The Appellant sought and was granted leave by the lower Court to file a Memorandum of Appearance, Statement of Defence, with all accompanying processes. Both parties consented to an adjournment for pre-trial conference (PTC). The Pre Trial Conference was however adjourned on three consecutive occasions at the instance of the Appellant?s Counsel. A further request for adjournment on 4/7/13 by the Appellant was refused by the lower Court, following objection by the Respondent?s Counsel, who then sought for the grant of his reliefs, as contained in its pleadings, which prayer was granted.
The Appellant, dissatisfied with the award of judgment against him, filed an application, dated 2/8/13 seeking to set aside the Court’s decision. The lower Court, in a considered ruling, refused the application, in consequence of which the Appellant filed an appeal against the ruling refusing to set aside its decision.
Months later, with leave of this Court, it filed a Notice of Appeal on 17/2/14 to set aside the judgment of 4/7/13.
The issues for determination distilled by the Appellant’s Counsel in Appellant’s Brief of Arguments, are the following:
1. Whether the learned trial Judge did not erred in law by proceeding to judgment under Order 26 Rule 6(b) of the Kaduna State Civil Procedure Rules on the day the matter was slated for an application to regularize process regarding pre-trial.
2. Whether failure to serve hearing notice on the appellant after striking out his application to regularize process in respect of pre-trial conference did not occasion a miscarriage of justice.
The Respondent’s Counsel, in the Respondent’s Brief of Arguments, formulated a single issue for the Court’s determination, namely:
Whether having regard to the notices conduct of the appellant before the trial Court, it can be said that the trial Court was right in its decision as delivered on the 04/07/2013. This issue it is submitted with respect covers grounds one and two of the Notice of Appeal dated the 14th day of February, 2014.
The simple issue which arises for consideration and under which all issues raised by Counsel can be subsumed, is the following:
Whether the lower Court erred in its decision given on 4/7/13.
The Appellant’s Counsel submits that the trial Judge erred in law by proceeding to enter judgment under Order 26 Rule 6(b) of the Kaduna State (Civil Procedure) Rules on the day the matter was slated for an application to regularize the Appellant’s process regarding pre-trial conference. The Appellant, he said, was not on notice against the 4th July 2013 to participate in a pre-trial conference but for the hearing of his application and for which he sent in a letter of adjournment. Since the business of the day was for the hearing of his motion, it was wrong for the lower Court to have entered judgment against the Appellant in reliance on Order 26 Rule 6 (b), thus amounting to shutting him out.
He cited Fidelity Bank PLC v Monye (2012) All FWLR Part 631 Page 1412 and Ogbeshe v Idam (2013) LPELR 20330 Page 28-29 Paragraph C-D.
Counsel argued further that failure to serve a hearing notice on the Appellant after striking out his application to regularize his process in respect of the pre-trial conference, occasioned a miscarriage of justice, as the business of the day was not a pre-trial conference or judgment, as wrongly assumed by the lower Court. While the trial Judge was within his right to have refused the application for adjournment and to strike out the motion, it was wrong for him to proceed to pre-trial conference and this, without notice to the Appellant. Non notification of the date that pre-trial was supposed to come up is fatal to the Respondent’s case, he submitted. Citing the case of Ndakauba v Kolomo (2005) 4 NWLR Part 915 Page 441 at 437-438 Para H-B, he submitted that his right to fair hearing had been breached.
The Respondent’s Counsel, in his submissions, countered that the lower Court was right in arriving at the decision it did, going by the conduct of the Appellant before and during the proceedings of 4/7/13. The attitude displayed on that day and prior, is a clear demonstration of his purpose in deliberately delaying the suit for no just cause, as observed by the lower Court in its ruling on the day in question. Relying on the cases of Magna Maritime Services Ltd v Oteju (2005) 5 SCNJ 100 and Nicholas Banna v Telepower Nigeria Ltd (2006) 7 SCNJ 182 at 195, he submitted that a litigant who exhibits indolence and nonchalance, worse still when he is a lawyer, has nobody but himself to blame.
Counsel submitted further that the trial Court complied rightly with Order 26 Rule 6(b) of the Rules of Court.
From the Records of the Court, at Page 108, the Motion of the Appellant, dated 12/12/11 for extension of time to file his Memorandum of Appearance, Statement of Defence, Witness Deposition etc was granted on 25/4/12 and the case adjourned by the Court, at the instance of the Respondent’s Counsel, unopposed by the Appellant’s Counsel for pre-trial conference. Further applications were brought by the parties and granted by the Court and the case further adjourned for pre-trial conference. A number of subsequent adjournments were granted for pre-trial conference, principally at the instance of the Appellant, spanning over one year, until the final adjournment to 4/7/13 by the Court, again at the instance of the Appellant.
On this date (4/7/13), the Appellant sent in yet another request for an adjournment, which was one request too many, as the lower Court, following a review of the antecedents of the Appellant and the number of adjournments granted at his instance, bluntly refused to further adjourn the case. The pending application of the Appellant for extension of time to file and serve proposed answers to the pre-trial information sheet was also struck out by the Court for lack of diligent prosecution. The Court, upon the application of the Respondent for judgment in terms of his Statement of Claim, pursuant to Order 26 Rule 6 (b) of the Rules, held as follows:
‘Pursuant to the application as made by the Plaintiff?s learned counsel above and due to the absence of the defendant and his counsel at the pre-trial conference, I hereby enter judgment in favour of the plaintiff and against the Defendant pursuant to Order 26 Rules 6(b) of the Kaduna State Civil Procedure Rules, 2007 as per paragraph 18 of the Plaintiff’s statement of claim as filed before this Court.’
The Appellant’s Counsel has made heavy weather that the fixture of 4/7/13 was for hearing of his motion and not pre-trial conference. Counsel, however appears to be operating under a misconception.
The clear provisions of Order 26 Rules 1-3 is as follows:
1 – PRE-TRIAL CONFERENCES NOTICE.
(1) Within 14 days after close of pleadings, the Plaintiff shall apply for the issuance of a pre-trial Conference Notice.
(2) Upon application by the Plaintiff under sub-rule 1 above, the Judge shall cause to be issued to the parties and their Legal Practitioners (if any) a pre-trial conference notice as in Form 16 accompanied by a pre-trial information sheet as in Form 17 for the purposes set out hereunder:
(a) consideration of the legibility or otherwise of the processes filed by the parties in the action, and giving such directions as the Judge may deem fit.
(b) disposal of non-contentious matters which must or can be dealt with on interlocutory applications;
(c) giving such directions as to the future course of the action as appear best adapted to secure its just, expeditious and economical disposal;
(d) promoting amicable settlement of the case or adoption of alternative dispute resolution.
(3) If the Plaintiff does not make the application in accordance with Sub-rule 1 of this rule, the defendant may do so or apply for an order to dismiss the action.
2 – SCHEDULING AND PLANNING.
At the pre-trial conference, the Judge shall enter a scheduling Order for:
(e) joining other parties;
(f) amending pleadings or other processes;
(g) filing motions;
(h) further pre-trial conferences;
(i) any other matter appropriate in the circumstances of the case.
3 – AGENDA.
At the pre-trial conference, the Judge shall consider and take appropriate action with respect to such of the following (or aspects of them) as may be necessary or desirable:
(a) formulation and settlement of issues;
(b) amendments and further and better particulars;
(c) the admissions of facts, and other evidence by consent of the parties;
(d) control and scheduling of discovery, inspection and production of documents;
(e) narrowing the field of dispute between expert witnesses, by their participation at pre-trial conference or in any other manner;
(f) eliciting preliminary objections on point of law;
(g) hearing and determination of non-contentious motions;
(h) giving orders or directions for separate trial of a claim, counter-claim, set-off, cross-claim or third party claim or of any particular issue in the case;
(i) settlement of issues, inquiries and accounts under Order 28;
(j) securing statement of special case of law or facts under Order 29;
(k) determining the form and substance of the pre-trial order;
(l) such other matters as may facilitate the just and speedy disposal of the action.
Clearly, following the closure of pleadings, by the grant on 25/4/12 of the Appellant?s motion for extension of time to file its processes, and the grant by the Court on 5/6/12 of the Respondent?s Motion for leave to file his Pre-Trial Conference Notice (Page 65 of the Record), followed by the adjournment on 5/6/12 for pre-trial conference, pre-trial conference had effectively commenced, I hold.
By the Rules above, the next step, after closure of pleadings and the taking out of the pre-trial conference forms by the Plaintiff, is the pre-trial conference itself, whether properly so called or not. By these rules, all applications, scheduling orders etc. are taken at pre-trial conference.
It is also clear from the records of the Court that, in compliance with the said rules, a number of motions were so taken.
Appellant’s Counsel was thus in grave error in his submission that the subsequent adjournments granted at his instance took the matter out of the process of pre-trial conference and was for motions and mention.
Admittedly, the trial judge, in stating the various adjournments at the constant requests of the Appellant’s Counsel, to be ‘for pre-trial conference’, ought to have stated ‘for continuation of pre-trial conference’. Not so stating and merely stating the adjournment to be for ‘pre-trial conference’, however, did not disrobe the proceedings from the garb of pre-trial conference.
It was therefore not necessary for the lower Court to have given separate notification for Pre-Trial Conference, when the parties were already at pre-trial conference and the Appellant’s Counsel was present in Court on 5/6/12 and 7/2/13 when the proceedings were adjourned for the said Conference.
Where Counsel is in Court when a date is taken, it is not necessary to again serve hearing notice. See Jonason Triangles Ltd v. Charles Moh & Partners Ltd (2002) 15 NWLR Part 789 Page 176 at 192 Para D-F, per Ejiwunmi JSC.
This is not a case of denial of fair hearing or failure to serve a process when service of hearing notice is necessary but a case of a party, and in this case a legal practitioner who should know better, indulging in all manner of delay tactics to frustrate the hearing of a matter.
Courts have resolutely set their faces against being bogged down by the antics of a party who, by his action, has voluntarily opted out of trial, and merely seeks to frustrate the hearing of a case within a reasonable time.
The trial Court can thus not be faulted in its decision to refuse yet another application for adjournment and applying the penalty provided in Order 26 Rule 6 above, which provides:
‘6 – SANCTIONS
If a party or the party’s Legal Practitioner fails to attend the pretrial conference or obey a scheduling or pre-trial order or is substantially unprepared to participate in the conference or fails to participate in good faith, the Judge shall:
(a) in the case of the Plaintiff dismiss the claim;
(b) in the case of the defendant enter final judgement against the defendant.’
Underline Mine
However, there is a saving grace for an aggrieved Defendant, as Order 26 Rule 6 also provides:
‘Any Judgement given under this rule may be set aside upon an application made within 7 days of the judgement or such other period as the Pre-trial Judge may allow not exceeding the pre-trial conference period. The application shall be accompanied by an undertaking to participate effectively in the pre-trial conference.’
The Appellant, I note, utilized this provision, by its application dated 2/8/13, filed on 5/8/13 seeking to set aside the said judgment, which application was opposed by the Respondent. The lower Court, following a consideration of a number of authorities and the facts before it, coupled with the antecedents and antics of the Appellant, in its ruling of 24/10/13 held the conduct of the Appellant to be unworthy of sympathetic consideration.
The Court further held that by Order 26 Rule 6 (b) Supra, the application for the setting aside of the judgment must be brought within 7 days of the judgment, which clearly was not done in that case.
The Court held:
‘It is my considered view here, that the applicant is clearly out of time to file this application as provided for in the proviso to Order 26 Rule 6 of the Rules of this Court, and therefore ought to have sought for and obtain the leave of this Court extending the time to file the instant application and pay the prescribe default fees as provided in Order 41
Rule 3 of the Rules of this Court, but the applicant in this case did not do so.
‘…It is trite law that whenever leave of Court is a condition precedent for a right, the discretion of the Court is implied. See Abdul Rauf Olumegbon vs Aminda Adedeji Kareem (2002) 5 SCNJ 94 at 99 – 100.
‘…it is on the strength of the above analysis that I find and hold that there has been undue delay in making the application to set aside the judgment so as to prejudice the party in whose favour the judgment subsists, and the said party in whose favour the judgment subsist would be embarrassed upon an order for re-hearing of the suit being made.
‘…in fact the records of this Court revealed clearly that the conduct of the applicant throughout the proceeding is not deserving of any sympathetic considerations.
‘…it is in the light of the foregoing analysis, that I find no merit in the applicant’s application to set aside the judgment of this Court made on the 4/7/13 pursuant to Order 26 Rules 6 (b) of the Rules of this Court, and hereby refused same in the interest of justice.’
It is against this Ruling that the Appellant filed its initial appeal, which it has now withdrawn.
The Appellant has thus found himself in an impossible situation. Realising that he is out of time to set the judgment of the lower Court aside and his application rightfully refused by the lower Court, and seeing the futility of his appeal filed against this Ruling, smartly files another appeal against the prior judgment of the lower Court.
The law however is that where a statute provides a line of action for the determination of an issue, the aggrieved party must exhaust all the remedies provided before going to Court. SeeA/G Kwara v Adeyemo (2017) 1 NWLR Part 1546 Page 210 at 251-252 Para C-A per Peter Odili JSC; Kayili v Yilbuk (2015) 7 NWLR Part 1457 Page 26 at 82 Para E-F; (2015) All FWLR Part 775 Page 347 at 394 Para H per Kekere-Ekun JSC.
The remedy provided by the High Court of Kaduna State (Civil Procedure) Rules to a Defendant against whom judgment has been entered during pre-trial conference, is an application filed under Order 26 Rule 6 Supra, within the time provided or within the time as extended by that Court.
Without an effective application under the procedure provided, the litigant cannot, I hold, approach this Court to set aside the judgment entered by the lower Court on 4/7/13, which judgment, I hold, was rightly entered by the lower Court for the reasons given by it, under Order 26 Rule 6(b) of the High Court of Kaduna State (Civil Procedure) Rules 2007. I thus resolve the sole issue for determination, against the Appellant.
I hold this appeal to be entirely unmeritorious and it is hereby dismissed.
The judgment of the lower Court delivered on the 4th of July 2013 is accordingly affirmed. Costs of N50,000 are awarded against the Appellant.
UWANI MUSA ABBA AJI, J.C.A.: I had a preview of the judgment of my learned brother O. A. Adefope-Okojie, JCA, just delivered. I agree with the reasoning and conclusions arrived at by my learned brother that the appeal is unmeritorious. It is for the reasons therein contained in the lead judgment of my learned brother which I adopt as mine that I too dismiss this appeal as lacking in merit. Consequently, the judgment of the lower Court delivered on the 4th of July, 2013 is hereby affirmed. I endorse the order as to costs.
IBRAHIM SHATA BDLIYA, J.C.A.: I am in agreement with the judgment delivered by my lord, OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A. The appeal has no merit, hence its dismissal. I am in agreement with the order made on costs.
Appearances:
Appellant not representedFor Appellant(s)
P. Y. Garuba.For Respondent(s)
