ABNORM INDUSTRIAL ENTERPRISES LIMITED & ANOR v. NIGERIA AGRICULTURAL CO-OPERATIVE AND RURAL DEVELOPMENT BANK LIMITED (2014)

ABNORM INDUSTRIAL ENTERPRISES LIMITED & ANOR v. NIGERIA AGRICULTURAL CO-OPERATIVE AND RURAL DEVELOPMENT BANK LIMITED

(2014)LCN/7287(CA)

In The Court of Appeal of Nigeria

On Friday, the 20th day of June, 2014

CA/K/272/11

RATIO

APPEAL: ISSUES FOR DETERMINATION; WHETHER AN APPELLATE COURT HAS DISCRETION TO ADOPT ISSUES FOR DETERMINATION FORMULATED BY PARTIES

JUSTICES:

THERESA NGOLIKA ORJI ABADUA Justice of The Court of Appeal of Nigeria

JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria

TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria

Between

1. ABNORM INDUSTRIAL ENTERPRISES LIMITED
2. ALHAJI AMINU BABA NABEGU – Appellant(s)

AND

NIGERIA AGRICULTURAL CO-OPERATIVE AND RURAL DEVELOPMENT BANK LIMITED – Respondent(s)

TIJJANI ABUBAKAR, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Ruling of the Kano State High Court, delivered by N. S. Umar J, on the 27th day November, 2008, refusing to grant Plaintiffs/Appellants application to relist suit No.K/274/07 which the court below dismissed on 4th June, 2008.

The Appellants as Plaintiffs at the Lower Court commenced action by writ of summons against the Defendant/Respondent on 1st June, 2007. On the 20th day of April, 2008, the Respondent brought application for extension of time within which to file Statement of Defence and counter-claim. Respondents application was accordingly granted. Respondent as Defendant therefore filed Statement of Defence and Counter-claim, the matter was then set down for trial by the learned trial judge on 4th June, 2008; on this date the lead counsel for the Plaintiff said he was unavoidably absent, but he sent Haruna Musa a Youth Corp. member to court, Haruna Musa informed the lower court of his incapacity and prayed the court to grant him adjournment to enable his principal Mr. Oshomegie appear in court.
This application for adjournment became a subject of objection as learned counsel for the Respondent vehemently opposed the application, and urged the court to strike out the suit, even though he later changed his mind and applied that the suit be dismissed, the learned trial judge dismissed Plaintiffs/Appellants suit.
Learned counsel Oshomegie for the Plaintiffs/Appellants filed application to relist, the Defendants/Respondents filed counter affidavit opposing the application.
The application to relist was heard on 28th October, 2008 and refused on 27th November, 2008; in other words, Plaintiffs/Appellants application to relist was dismissed on 27th November, 2008.
Plaintiffs/Appellants became aggrieved and filed notice of appeal; The Appellants through learned counsel Oshomegie distilled from Appellants grounds of appeal two issues for determination:
a.”Whether the decision by the court below to dismiss the Appellants claim, when no evidence or hearing on merit has taken place is not in law a striking out. (Distilled from ground 1).
b. Whether a suit strucked (sic) out cannot be relisted except in accordance with order 37 Rule 4 of the Kano State High Court (Civil Procedure) Rules 1988. (Distilled from ground 2).
Chief Offiong SAN settled Respondents brief of argument and submitted one issue for determination. Respondents issue is:
“Whether the lower court was right in all the circumstances of this case, in refusing to relist this suit which it had by a judgment dated 4th June, 2008 dismissed”.
I will adopt Appellants’ issues for determination for the purpose of resolving this appeal, Appellants argument on the two issues will be taken together.

Appellant said when Lower Court dismissed their suit on 4th June 2008, no trial took place, no evidence was led, that it was the first time both parties appeared before the court to commence trial; counsel for the Appellants said even though the learned trial judge used the word “DISMISSED”, the order of dismissal meant striking out both in law and in fact, the lower court Appellants said was therefore wrong when it treated its decision of 4th June 2008 as actual and real order of dismissal and not striking out; Appellants relied an ABORISHADE V. ABOLARIN (2000) 10 NWLR PART 674 41; CARDOSO V. DANIEL (1986) 2 NWLR PART 20, AND OGAR V. JAMES (2001) FWLR (PART 67) 930 AT 945.
Submitting further on behalf of the Appellants, counsel said where a case is dismissed in the High Court but the circumstances show that such dismissal could not be read to mean final determination, the court views such dismissal as striking out, he relied on OBASI BROTHERS MERCHANT CO. LTD V. MERCHANT BANK OF AFRICA SECURITIES LTD (2005) ALL FWLR PART 267; UKACHUKWU V. NATIONAL YOUTH SERVICE CORPS (2005) ALL FWLR (PART 308) 1272 AT 1282; IDOKO V. OGBEIKWU (2003) FWLR (PART 149) 1530 AT 1543.
The Appellants referred to page 18 of the record of Appeal and said the learned trial judge in his ruling clearly stated that the appropriate order he intended to make was one of striking out, that even the Respondents counsel started by praying the court to strike out, but ended up applying for dismissal of the suit. Counsel for the Appellants said the court was clearly in error and a court of law must not succumb to the temptation of determining a case without hearing the complain.
Appellants urged this court to resolve this issue in their favour.
On whether a suit struck out cannot be relisted except in accordance with Order 37 Rule 4 of the Kano State High Court Rules, Appellants referred to page 25 – 36 of the record of Appeal, where the learned trial judge said the order of dismissal made by the court amounted to judgment relying on WILLIAM V. HOPE RISING VOLUNTARY FUNDS SOCIETY 1982 1 – 2 SCR 145.

Appellants said the conclusion reached by the learned trial judge does not represent the correct position of the law, that where a suit is struck out, the Plaintiff in most cases is at liberty to re-commence the action after curing the deficiency which brought about the striking out.
Addressing the court on Order 37 Rule 4 of the Kano State High Court Civil Procedure Rules 1988, learned counsel for the Appellants said the rule of Court relied on by the Court does not apply at all, that before Order 37 (4) is applied, there must be a Judgment obtained by one of the parties and the Judgment must have been obtained in the absence of one of the parties, counsel said the above conditions do not apply in the instant appeal. Counsel said at the time Appellants suit was dismissed, Counsel Haruna Musa representing the Appellants was in court.
Counsel relied on HUPNAGI & ANOR v. AIYELESO & ANOR (2002) FWLR (PART 131) 1840, AT 1849 and said where a case is struck out with liberty to relist, such case is on vacation, that it is a sleeping cause which may be revived by relisting it on application.
Counsel said the refusal to relist is wrong, unlawful and without foundation, that the refusal by the court to relist the suit occasioned injustice to the Appellants. He urged this court to resolve the two issues in favour of the Appellants and order that Appellants suit be relisted.
In his response, learned senior counsel Offiong SAN for the Respondent said the refusal to relist Appellants suit by the Lower Court was proper.
The Respondent relied heavily on ALHAJA ABIBAT ARIKE & ANOR V. ARIBIYI OLOWOPAPA & ANOR (2002) LPELR – 12272 CA and said the ruling of the Lower Court on 4th June 2006 refusing an adjournment and asking learned counsel for the Appellants to proceed,his failure to proceed to trial and the eventual order of dismissal made by the lower court amounted to final judgment, and the lower court cannot set it aside, Appellants remedy lies in an appeal against the order refusing postponement of trial, that the lower court had become functus officio upon dismissing Appellants suit for want of diligent prosecution. Counsel said dismissal on account of refusal to proceed to trial amounts to final judgment.
The Respondent relied on EDWIN IGBONEKWU (UMUDRURUEGWU AWOMBEIRI CHIEF LEONARD ERONIMI & OTHERS V. PAULINA OPARA (MRS) & ORS (2008) ALL FWLR PART 409, PAGE 521 AT 434 – 535 to submit that where an order of dismissal has been made, the adverse party cannot commence a fresh action without setting aside the order of dismissal as the order of dismissal is regarded as dismissal with prejudice. Chief Offiong also relied on CEEKAY TRADERS LTD V. GEN BEIRUT CO. LTD (1992) 2 NWLR PART 222 PAGE 132 AT 147.
Counsel for the Respondent said even if the learned trial judge erred, this court cannot grant leave to the Appellant because there is no appeal against the decision of the lower court refusing to grant adjournment, Appellants appeal is against the decision of the lower court refusing to relist Appellants’ suit.
On the exercise by this court of its powers under Section 16 of the Court of Appeal Act 2004, Counsel said since the lower court had no jurisdiction to set aside the judgment in this case, it therefore follows that this court cannot exercise jurisdiction under Section 16 of the Court of Appeal Act as the law does nothing in vain.
Respondent also contended that since Appellants failed to bring their application within six days of the judgment, this court must take it that they failed to satisfy the necessary pre-condition for the grant of the application. Learned counsel for the respondents urged this court to dismiss the appeal.

I accorded consideration to the issues submitted for determination by parties in this appeal, it is settled that this court has discretion to adopt issues for determination formulated by parties in their briefs of argument or formulate such other issue the court finds consistent with the grounds of appeal, bearing in mind that issues for determination in briefs of argument are primarily designed to project clearly and concisely the substance of the grievance in the grounds of appeal which require resolution, See: EBO V. NTA (1996) 4 NWLR (PART 442) 314, INCAR NIG. PLC V. BOLEX ENTERPRISES (NIG) LTD (1996) 6 NWLR (PART 454) 318.
I therefore adopt the issues formulated by the Appellant as the issues to resolve in this appeal, moreover the issues formulated by parties bear substantial similarity and are predicated on Appellants grounds of appeal.
On the propriety or otherwise of the order of dismissal made by the learned trial judge, it is important to mention that the learned trial fudge fixed the 4th day of June 2008 to commence trial, in other words that was the first trial date, and the following took place in court, from page 17 of the record of appeal.
MR MUSA: The case is fixed for hearing, however, my boss Mr. Chris Oshomegie is not in court. He asked me to take another date for hearing of the case.
MR. OFFIONG: I am opposing the application for an adjournment. Counsel knows of today’s date, and he made a choice to travel. I submit that an application for an adjournment can only be granted when a reasonable excuse – reasonable enough to allow the court to exercise its discretion. The only reason given to this court is that the counsel has travel (sic) submit that it is unnecessary for counsel to take a date and then chose (sic) that date as a date for his travel. The only excuse is that counsel has travel (sic), And adjournment is not granted as a matter of course. Counsel cannot treat the court frivolities. It is not reasonable excuse. I therefore objected (sic) to an adjournment.
COURT: “… I am therefore in complete agreement with the counsel to the Defendant that an adjournment should not be given as a matter of course. The application for adjournment is refused.
Upon refusing Appellants application for adjournment, the learned trial judge went on to say as follows page 18 record of Appeal.
“Counsel to the Plaintiff is order (sic) to proceed and call his or this court will have no alternative but to strike out the Plaintiffs case”.
Let me state at this point that, the learned trial judge had already stated that in the event of failure to proceed, the suit filed by the Plaintiff would be struck out, this appears quite strange, curious and unusual because the learned trial judge raised the issue of striking out even before learned counsel for the Defendants applied for it; A judge must maintain the posture of impartiality by adopting a transparent stance of dispassion between litigating parties.
Musa: I don’t know anything about the case”.
At this stage, learned counsel Offiong now made his application, he said as follows at page 18 of the record of appeal.
“MR. OFFIONG: I am applying that the case be struck out. I refer to Aguda. I am applying that the case of the Plaintiff be dismissed”.
Counsel for the Respondent asked for an order striking out and finally said he also applied that the suit be dismissed, learned counsel Musa now said.
MR. MUSA: I am opposing the application to dismiss the suit. This is the practice in my office”.
Learned trial judge delivered his ruling immediately after Musa’s objection, the ruling is at page 17 – 18 of the record of appeal he said:
“Be that as it may since this Honourable court has already gave (sic) its ruling that counsel to the Plaintiff should proceed to trial and since counsel is not in a position to proceed to hearing by calling his witnesses. I have no alternative but to dismiss the Plaintiffs case as prayed.
The case of the Plaintiff is hereby dismissed as prayed”.
From the extracts above it appears the learned trial judge unduly withheld his discretion to grant adjournment. The Apex court has always admonished lower courts against adopting any posture that has the effect of shutting the doors of the court house against litigants; a Judge has discretion to grant adjournment or refuse same, but he must consider the application and give reasons for any decision, in this appeal the learned trial Judge said it was because counsel could not proceed, the learned trial judge had options, like compensating the Defendant by awarding cost, moreso the matter came for the first time for trial, to conclude lack of diligence at this stage is wrong in my view. The learned trial judge said he had no alternative than to strike out even before the Defendants asked for striking out, when eventually the Defendants now applied for dismissal of the action, the learned trial judge again said he had no alternative than to dismiss; while there is no doubt that a judge being the master of his court has the right to use his discretion, such use of discretion must pass the test of transparency, the exercise must meet the requirement of judicial and judicious exercise of discretion, discretion is not applied as a matter of whims, courts must always accord priority to doing substantial justice to parties.
The Apex Court held that, whenever it is possible to determine a case on its merit, the court must not cling to technicalities to refuse a complainant the opportunity of being heard, for fear that such attitude might cause a temporary delay in the disposal of the case See: NNEJI V. CHUKWU 1988 1 NWLR (PART 81) 184; I find the decision of the learned trial Judge hash, a litigant must not be sent into hopelessness by dismissing his action when there is no basis for so doing, when other options to save the suit are open and available to the court; and all, the instant case has not shown evidence of design to cause delay or lack of diligence to prosecute.
The learned trial judge said, he could not relist the matter on the cause list because it was dismissed, again my learned Brother Anyawu JCA relying on OKORO V. OKPO (1988) 3 NWLR PAGE 540, quoting Tobi JCA as he then was said:
“Dismissal of an action in limine is the greatest, punishment a Plaintiff can incur in the judicial process, by it the Plaintiff is denied the opportunity to return to the judicial process unless in situation where the plea of res judicata does not apply. The Plaintiff is shut out from the doors of the court on the particular matter, and he becomes hopeless no matter the merits of the case. Therefore before a Judge decides to dismiss an action in limine, he must be satisfied that there is no other way to leave the matter on the cause list”.
In my view the learned trial judge rushed in his decision to dismiss the case of the Plaintiff, the records have clearly shown the unsettled position of the learned trial judge, shuttling between “no alternative than to strike out” and “no alternative than to dismiss”. I think the learned trial judge arrived at the decision to dismiss Plaintiffs suit in error.

The refusal to relist the suit also attracted some substantial discourse, the learned trial judge predicated his refusal on Order 37 Rule 4 of the Kano State High Court Civil procedure Rules 1988 and the decision in WILLIAMS V. HOPE RISING VOLUNTARY FUNDS SOCIETY 1982 1-2 SCR 148.
I do not think the decision in WILLIAMS cited and relied on by the learned trial judge will save the decision of the court, the decision deals with setting aside of judgment entered in default of appearance, even then, the Supreme Court clearly admonished the courts to look out for the five conditions enumerated in the judgment of the Supreme Court, I think the case of the Plaintiff deserves sympathetic consideration in the instant appeal.

Learned counsel for the respondent relied on ARIKE V. OLOWOPAPA (supra) on the effect of dismissal, here again I am not sure if the decision will be of help to the respondent as this court held that “where a court is considering to dismiss a matter for want of prosecution in exercise of its inherent jurisdiction, it must be satisfied that, by reason of prolonged and inordinate delay which is in-excusable, the Defendant has suffered or is likely to suffer prejudice, or that it is no longer possible to have a fair trial between the parties. Even though WILLIAMS VS. HOPE RISING (supra) has no relevance in this case, the primary consideration is to do substantial justice, moreso Appellants made efforts to appear in court, and indeed appeared in court.

I think the Lower Court had no valid reason to refuse adjournment since the matter came for the first time for trial, the order of dismissal was harsh, punitive and unnecessary and the refusal to relist Plaintiffs/Appellants suit also sent the case of the Plaintiffs into unnecessary delay.
By all means access to justice should be the primary concern of our courts, adherence to undue technicalities has now become old fashioned, and we must distance ourselves from technicalities and follow the path of substantial justice, as the ultimate objective of every court is to ensure that justice is done to parties in litigation.

The two issues submitted by the Appellants are hereby resolved in their favour, and in consequence of so resolving, the appeal succeeds, and the ruling delivered by N. S. UMAR of the Kano State High Court on 4th June, 2008 is hereby set aside.
I order that Appellants suit No.K/274/07 be relisted on the cause list of the Kano State High Court there to be head and determined by a judge other than N. S. Umar J.

I award N50,000 cost to the Appellants.

THERESA NGOLIKA ORJI-ABADUA, J.C.A.: I agree.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I entirely subscribe to the judgment prepared by my learned brother, Tijjani Abubakar, J.C.A., which I had the privilege of reading in advance and adopt as my judgment in the appeal.

Appearances

C.O. Oshemogie Esq. For Appellant

AND

Chief O.E.B. Offiong, SAN, with A.T. Falola Esq., G.O. Uzu Esq., and Mrs. L.O. Oyewo Esq. For Respondent