In The Court of Appeal of Nigeria

On Tuesday, the 17th day of December, 2002




GEORGE ADESOLA OGUNTADE   Justice of The Court of Appeal of Nigeria

PIUS OLAYIWOLA ADEREMI   Justice of The Court of Appeal of Nigeria

CHRISTOPHER MITCHELL CHUKWUMA-ENEH   Justice of The Court of Appeal of Nigeria



    (For themselves and other Children of Late SINOTU TOMORI) Appellant(s)


    2. FATAI AILERU Respondent(s)


C.M. CHUKWUMA-ENEH, J.C.A (Delivering the leading Judgment): This appeal is against the Ruling of Akande J. of the High Court of Lagos State given on 2nd of November, 1992 in respect of an application praying for an order to set aside the order of dismissal of the Plaintiffs’ (Appellants) action for want of prosecution.
In the substantive suit the Plaintiffs (Appellants) claimed for declaration of entitlement to a Statutory Right of Occupancy to a parcel of land otherwise known as No. 11 Kumuyi Street, Mushin, Lagos as per the survey Plan attached to a Deed of Conveyance dated 19/6/96 and registered as instrument No.46/46/415 Lagos; N1, 000.00 damages for trespass and an injunction.
Pleadings were filed and exchanged between the parties. The matter was set down for hearing which had to be adjourned on two previous occasions before it came up on 15/11/92 again for hearing.
The record of the Court of that date i.e. at page 163 shows that Mr. M. J. Agboola holding Chief Talabi’s brief appeared for the. Plaintiffs (Appellants) while Chief A. Oyefeso with him Mr. F. Kareem appeared for the Defendants (Respondents). Mr. Agboola informed the Court below he could not go on with the hearing as Chief Talabi was not in Court. Chief Oyefeso in reaction urged the Court to dismiss the suit as that was the third adjournment for hearing aborted at the instance of the Plaintiffs. He reminded the Court below of the extant order of interlocutory injunction restraining the Defendants from interfering with the land in dispute and asked for N5, 000 costs. The Court below proceeded to dismiss the suit with N4, 000.00 costs in favour of the Defendants. In the words of the Court below at page 164 of the Record Lines 21 to 34 it stated thus:
“A Court of Law could properly invoke its power and dismiss a suit against a Defendant for want of diligent prosecution if it is clearly shown that the case has taken pending for a long time.
(2) that the delay is inexcusable.
(3) that the delay must be such that injustice will result to one party or to both if not dismissed.
The above 3 conditions must co-exist. See the case of Usikaro v. Itshekri Land Trustees (1991) 2 NWL (Pt.172) 155. From available facts before the Court all the conditions set out in the case cited above apply to the instant case.
I do not therefore see any reason why this Court shall not dismiss same for want of diligent prosecution.”
The matter was accordingly dismissed for want of prosecution.
The Plaintiffs timorously filed a motion on notice dated 15/10/92 praying under Order 24 Rule 15 of the High Court of Lagos State Civil Procedure Rules 1972 and the inherent jurisdiction of the Court to set aside the order of dismissal of the Plaintiffs’ action and to relist the suit for determination on the merit.
The motion came up for argument on 2/11/92 and the Court in a Ruling delivered on the same date dismissed the application.
Dissatisfied with the decision the Plaintiffs appealed to Court by a Notice of Appeal containing two grounds.
In compliance with Rules of this Court the parties filed and exchanged their briefs of argument. The Appellants filed also a reply brief. The Appellants identified three issues for determination and they are as follows:
“1. Whether in the present circumstances the striking out of the suit by the Honourable Court on the 15th day of October 1992 is in consonant with the case of UMUKORO USIKARO & 2 OTHERS V. ITSEKHRI COMMUNUAL LAND TRUSTEES & 12 OTHERS 1991 2 NWLR PART 172 PAGE 50 Ratio 1 thereof.
2. Whether the limited interpretation put on Order 24 Rule 15 of the High Court of Lagos State Civil Procedure Rules 1972 can be justify taking into account the decision of the Supreme Court in Alhaji Mohammed Tom and Anor. v. Alphonsus Sule Ameh, 1992, 1 NWLR Page 217, Page 306 wherein the Honourable Court stated as follows:
‘Unless and until the Court has pronounced a judgment on the merit of the case, that is to say on the Statement of Claim and the Statement of Defence or by consent it is to have and reserve to itself the power to revoke the expression of the cohesive power where that has only been obtained by failure to follow any of the Rules of procedure which in any events were mere handmaids of justice.
3. Whether there is anything on the record to show that these defendants would have suffered any injury OR in any way be prejudiced if the suit had been allowed to go on trial see the case of Ibrahim v. Oshomari 1991 6 NWLR Part 197 Page 286.”
The Respondents proceeded on firstly to set forth a few prefatory remarks on the facts and circumstances of the matter before raising a preliminary objection under Order 3 Rule 15 of the Rules of this Court. They then formulated six issues in apparent challenge of the competency of the appeal headed “issues arising from Respondent’s brief” and they are as follows:
“1. Whether there is any provision under the law or rules of Court to file brief of argument before the compilation of the Record of Appeal and the receipt by the Appellants of the Record of Appeal from the registry;
2. Whether the grounds of appeal would be argued in the brief of argument instead of issues formulated;
3. Whether it is not a misleading statement to say that the Plaintiffs were present on the 15th day of October, 1992 when in actual fact there was no record of their presence in the record of appeal;
4. Whether or not a suit which had been properly dismissed for want of prosecution and not struck out could be relisted;
5. Whether there was inordinate and or inexcusable delay n the part of the Plaintiffs/Appellants to prosecute the case;
6. Whether when a court makes order which are clear and unambiguous, parties are bound by them and have a duty to implement them.”
Six issues for determination from two grounds cannot be justified, but the Respondent has not complained.
The more fundamental question is the Respondents want of clear demarcation between their submissions on their preliminary objection and the substantive appeal. I have, therefore, to stand-down dealing with the preliminary objection until I have set forth the positions of the parties in this matter as gathered from their briefs so as to enable situate particularly the preliminary objection in its proper perspective.
Arguing together the three issues identified above, the appellants dwelt elaborately on the three conditions (identified by the Court below in its judgment) which must co-exist and upon which the Court below relied to throw out the appellants’ application to set aside its dismissal order of the suit. And these are firstly that the case had been pending for a long time and the delay was inexcusable and was likely to occasion injustice to one of the parties or both. See Umukoro Usikaro v. Itsekhri Land Trustees (1991) 2 NWLR (Pt.172) 155. Developing these conditions, the appellants submitted that given the background of the peculiar facts of the above cited matter vis-a-vis the instant matter (that is, where there was a delay of 10 years as against two years here) it could not be said the instant suit suffered inordinate delay in its prosecution. That would be so even as the appellants conceded that each case had to be examined on its peculiar facts. The appellant observed that an order of interlocutory injunction was ordered against both parties and not against the Respondent alone and therefore wrong to single out the Respondents as solely disadvantaged by the terms of the said order. The sensitive nature of land matter was highlighted by the appellants. See: Usikaro v. Itsekhri Land Trustees (supra). Chief James Utikideen & Ors. v. Chief Asuquo Oko & Ors. (1986) 5 NWLR (Pt.45) 909; Eronini v. Iheuko (1989) 2 NWLR (Pt.101) 46 and Okpara v. Ibeme (1989) 2 NWLR (Pt.102) 208.
That the delay was inexcusable was stoutly contested pointing out that it was the singular act of their counsel’s absence in Court that prompted the said dismissal of their suit. And so the Court below had more or less visted on them the sins of their counsel. They opined that the Court below failed to give the extenuating circumstances due consideration. See: G.B.A. Akinyede v The Appraiser (1971) 1 ANLR 162 at 165 Line 35 – 40 and Doherty v Doherty (1964) NMLR 144 at 146.
On the third condition, that is, whether any injustice had been occasioned to one party or both to warrant the suit being dismissed, the appellants submitted that the dismissal of their suit affected the balance of justice between the parties.
Furthermore, they argued that their application to “relist” the suit was filed within 48 hours of its dismissal under Order 24 Rules 15 of High Court Rules 1972. They claimed the Court below misconstrued the provisions of the said Rule hence it was misled into the error of dismissing the suit.
It has also been argued by the appellants that the Court below had ample powers to rescind the said order of dismissal of the suit unless and until the matter had been decided on the merit See: U.T.C. v. Pamotei (1989) 1 NWLR (Pt.103) 244 and Alhaji Mohammed Tome and Anor. V. Alphonsus Sule Ameh (1992) 1 NWLR (Pt. 217) 306. They relied on the cases of Shell Petroleum v. Ogoke (1990) 6 NWLR (Pt.159) and The State v. Ginonto (1983) 1 SC 160 to submit that such technicality as was relied upon in the matter by the Court below to dismiss the suit should not have been allowed to override doing substantial justice in the matter, that is to hear it on its merit.
Finally it was canvassed that the said judgment was a nullity as the appellants’ right to be heard on the principle of audi alteram partem was violated thus infringing on Section 33(1) of the 1979 Constitution on fair hearing.
The Court was urged to allow the appeal.
The Respondents took a preliminary objection. And the main ground was that the appeal did not comply with Order 6 Rule 2 of the Rules of this Court that is on the filing of appellant’s brief and it ranged thus:
The Respondent argued that the non-compliance with the aforesaid rule rendered the appeal incompetent and therefore liable to be dismissed. See Akanke Olowu v. Amudatu Aboloke (1993) 5 NWLR (Pt.293) 255 at 275-277; Governor of Gongola State v. Tukur (No.2) (1992) 7 NWLR (Pt. 56) 305. Also the appellants were said to have argued the appeal on the grounds of appeal instead of the issue identified for determination. Further that the suit was dismissed for want of diligent prosecution and so could not be set aside as the only course open to the appellants in the matter was to appeal. See: Ogbechue v. Onoche (1988) NWLR (Pt.22) 373; Adeyemi v. Elijah Fapamisi & Ors. (1985) 11 SC 55 at 65 para. 15; Olajide Olaore & Ors. v. Titus Adeyemi Oki (1987) 12 SC 1 at p.4 para.10; T.A. Yonwuren & Ors. v. Modern Designs (Nig.) Ltd. & Ors. (1985) 1 NSCC 243 and Chief Iroegbu & Ors. v. Chief Ogburu Usuni & Anor. SC (1980) 4 SC1.
The Respondents also observed that the appellants being in contempt of the order of interlocutory injunction should not be heard on this matter. See: Governor of Lagos State v. Ojukwu (1986) 2 SC 277 at 286 para. 25-30 p.287 para. 5-15. The Court was then urged to dismiss the appeal.
The appellants addressed on the fresh issues in the reply brief and completely repudiated the Respondents’ case.
The issues for determination identified by the appellants appear to me to be more relevant to the appeal and capable resolving the matter in controversy between the parties. I adopt then for purposes of this judgment.
This appeal, I must emphasise is against the Ruling of 2nd November 1992 which refused to set aside the Ruling of 15/10/92 Clearly, therefore, it does not concern the Ruling of 15th October 1992 (which dismissed the instant suit for want of diligent prosecution). The point has to be highlighted as there appears to be in the appellants’ brief of argument a clear misapprehension to that effect under issue one as formulated. Even moreso, the appellants should not be allowed to use the instant appeal against the Ruling of 2/11/92 to question the correctness or otherwise of the Ruling of 15/10/92 not appealed against. I so hold as the appellants in formulating their issue one (as reproduced above) had attacked the Ruling of 15/10/92 for disregarding a binding authority on it as decided in the case of Umukoro Usikaro & Ors. v. Itsekhri Communal Land Trustees and Ors. (Supra). Surely, from the Notice of Appeal it cannot be claimed that Issue one for determination is one arising in the instant appeal. Worse still the said issue one cannot by any stretch of imagination be accommodated within the ambit of any of the two grounds of appeal raised in the Notice of Appeal. The appellants therefore ought not be allowed on appeal even by implication to build their case on the said issue one. It is settled that an issue for determination not covered by any ground of appeal is incompetent and should be struck out, (See: Oje v. Babalola (1991) 4 NWLR (Pt.185) 267 at 270). And since appeals are allowed on issues raised and successfully canvassed the instant issue one being incompetent as postulated above must therefore, be discountenanced in this appeal. See: Odutola v Kayode (1994) 2 N R (Pt.324) 1 and Josiah Cornelius Ltd. v. Ezenwa (1996) 4 NWLR (PT.443) 391 SC.
It is accordingly struck out.
The other important matters of the preliminary objection taken by the Respondents were predicated on Order 6 Rule 2 and 10 of the Rules of this Court. Rule 2 of Order 6 under which the first leg of the preliminary objection was taken reads as follows:
Order 6 Rules 2 –
“The appellant shall within sixty days of the receipt of the record of appeal from the Court below file in the Court a written brief being a succinct statement of his argument in appeal.”
The Respondents’ main point of objection in this respect was that the appellants’ brief of argument, was filed before the receipt of the Record of Appeal and so the brief was incompetent, that is to say, given the imperative provisions of Order 6 Rule 2. The Appellants had in reaction contended in their reply brief that the record was received about October 1998 and their brief filed on 22/1/99. These facts are easily verifiable from the record of appeal. To show how baseless and with respect unnecessary this leg of the objection has come to be, at the last page of the record has been set out the Civil Form 19 headed thus – “Certificate of the Registrar that a copy of the Record of Appeal has been served on the Appellants (Order 3 Rule 32(2).” It went on to show that the original copy of the Record of Appeal was served on the Appellants by one Mr. Y.A. Adaramewa on 5/11/98. In the face of the foregoing facts there can be no basis for the said objection.
I am satisfied that the brief was duly filed on 21/1/99 long after the receipt of the Record. The said date was clearly franked on the brief by means of this Court’s date stamp. Without deciding the point yet the whole essence of taking the instant preliminary objection in lumine in this appeal as in preliminary objections is to the effect that the Court has no competence to entertain the appeal after all, there being no competent appeal. And so that the instant appeal be struck out. The foregoing arguments by the Appellants have not taken the matter towards that direction.
The Respondents had also contended that the appellants argued the grounds of appeal instead of the issues raised for determination as identified in their brief in contravention of Order 6 Rule 10 of the Rules of this Court. I find it unnecessary to set out this Rule. Again, this leg of the objection is totally misconceived and not borne out by the facts on the ground in the appellants’ brief. It is trite that issues for determination supersede the grounds of appeal and a ground of appeal not covered by the issues for determination as identified is deemed abandoned. This proposition of the law also holds good in this matter.
The appellants as can be seen from their brief took two of the three issues identified together. The issues have been set out above. I am satisfied that the appellants did not argue the grounds of appeal as alleged by the Respondents but the issues. I must observe that a party who is to contest the nitty gritty of the fact situation in an appeal of this nature as per the foregoing points of objection has to get down to ascertaining the basic facts before launching out his attacks moreso as here where the correctness of these facts were easily verifiable from the record of appeal.
The last leg of the preliminary objection in this matter relates to the refusal of the appellants to obey the order of interlocutory injunction and for that the Respondents contended that the appeal should not be entertained. In this respect the Respondents invoked the principle that the Court should not hear a party in contempt. See: Governor of Lagos State v. Ojukwu (supra). And that to have heard the appellants who disobeyed the order of injunction constituted an irregularity of a fundamental nature that nullified the proceedings. The Respondents were content merely to take the point without attempting to develop it. Of course, it is settled, that parties to a suit are bound by Court’s order be it interlocutory injunction as in the instant matter provided it was made by Court of competent jurisdiction. And equally so, it is settled that a party in contempt of an order of Court cannot take proceedings in the cause for his benefit. See Odogwu v. Odogwu (supra) and Governor of Lagos State v. Ojukwu (supra). All the same, from the facts and circumstances of this matter, it is settled that an objection cannot be taken where from the nature of the objection as here further findings of fact or evidence would have to be first elicited and made in order to sustain the objection. Thus, manifestly the irregularity complained of must be formal or at the very best manifest on the face of the record and that was not the case here. See: Banjo & Anor. v. Eternal Sacred of Cherubim and Seraphim (1975) Vol. 9 NSCC 65 and Nnama Lines Ltd. v. Elder Demspter Agencies Ltd. 10 ENLR 15. In other words, the alleged acts of infraction of the order of interlocutory injunction by the appellants by way of contempt were not manifest on the face of the record and therefore the instant objection raised on it cannot ground a preliminary objection. Once again, there is a clear misconception of the application or applicability of the principle in Ojukwu’s case to this matter; this is so as the appellants (i.e. being the alleged parties in contempt) were not trying in this matter to enforce the order of contempt as was the case in Ojukwu’s case. On the facts of this case the principle in that case is non sequitur.
In my conclusion, therefore, the preliminary objection is clearly baseless, frivolous and a sheer of waste of time. Without any hesitation I overrule it.
Reverting to the main appeal, the issue central to the appeal is whether a suit dismissed in the circumstances of this matter by the Court below for want of diligent prosecution that is to say, not struck out could be relisted. The application to set aside the Ruling of 15/10/92 that dismissed the substantive suit was brought under Order 24 Rule 15 of the High Court of Lagos State Civil Procedure Rules, 1972. It was the Appellants’ contention that the Court below was in error to have dismissed the suit where striking it out would have met the justice of the case moreso where the matter had not been determined on its merit. The point was made that unless and until a matter is resolved on the merit the Court would still have the power to revisit the same, particularly where it was founded on failure to follow the rules of procedure. This principle, I am afraid cannot the peculiar facts avail the appellants.
I think the appellants have wrongly premised their argument in this respect in the brief hence the apparent incongruity in the procedure followed by the appellants to meet the matter in challenge of the said order dismissing the suit. The appellants came by way of motion on notice as against appealing right away against the decision of 15/10/92 in order to set aside the dismissal order for want of diligent prosecution.
That seems to me the crux of the Respondents’ case. And apparently the mill stone neck of the round the appellants’ case in this appeal. The complication it generated would become manifest later when contemplating the order to make in this matter.
Firstly, I intend to examine the implications of the dismissal of this suit for want of diligent prosecution from the point view of the Respondents contention that an appeal was the only option open to the appellants if the decision of the Court below given on 15/10/92 had to be revisited for reversal. In other words the Ruling of 15/10/92 being appealable has to be initiated by proper procedure.
It is note-worthy that it was not just a mere technicality that warranted the dismissal of the suit for want of prosecution. This assertion appeared to have been projected by the appellants in their brief. And I am in agreement with the submission. It was the appellants who aborted the hearing of the suit on 15/10/92 when they asked for a postponement of the suit giving as their reason the absence of Mr. Alabi, leading counsel in the matter. That was the only material placed before the Court below to consider in the matter of postponement. Considering that the suit had been billed for hearing, the reason proffered for a postponement of the hearing was not substantial. Such refusal of postponement of proceedings, on the authorities, has been held as a judicial act which may only be reviewed on appeal not by an application simpliciter to set it aside. See: Albert Ilona and George Ugboma v. Ojugbeli and Mgbeku Olise (supra), Birkett v. James (1977) 2 AER 80 and George Akinwande Jones & Anor. v. H.S.A. Thomas & Ors. (1962) LLR 9. The appellants defaulted in this regard as they proceeded by way of motion on notice instead of appealing to set it aside the Ruling.
The Court below rightly did not buy that course of reasoning instead proceeded to rationalise the scenario in this matter as against the principles in the case of Umukoro Usikaro & Ors. v Itsekhri Communal Land Trustees (supra) and came to the conclusion that the suit ought to be dismissed for want of diligent prosecution and whether rightly or wrongly decided is not a matter to be decided in this appeal as that is not before the Court.
There can be no doubt from the stand point of the parties in this matter that the phrase “want of prosecution” as used in civil matters need to be delimited as it is not in every case a matter is dismissed for want of prosecution that appeal has to lie. In sanctioning a default of appearance or entering a defence, the phrase “want of prosecution” has in the dismissal or striking out of a suit been applied advisedly. Meaning that where a party to a suit fails to file his pleadings within the prescribed time or appear in a matter the other party to the matter may apply to the Court to dismiss the suit for want of prosecution. The Court may in its discretion accede to the application by ordering a dismissal or striking out accordingly for want of prosecution. A party to a suit adversely affected by such order of dismissal or striking out may apply to set aside the order of dismissal of the suit as in a matter under Order 24 Rule 15 of the Rules while at the same time applying to regularise his position in the matter by, for example filing his pleading. A dismissal for want of prosecution in the foregoing circumstances is no bar to setting aside the dismissal order or to bringing the action. Clearly these situations are taken care of in the Rules of Court. But where a postponement of trial as here has been refused appeal lies against such order See Albert Ilona & George Ugboma’s case (supra). It would appear that it cannot simply be set aside. So also where a matter is dismissed for want of prosecution. See: Chief Iro Ogbu & Ors. v. Chief Ogburu Urum & Anor. (1981) 4 SC 1 and Sodeinde Brothers (Nig.) Ltd. v. A.C.B. Ltd. (1982) 6 C 137 case. T.A. Yonwuren v. Modern Signs (Nig.) Ltd. (1985) 2 SC 86. As the Ruling of 15/10/92 is not before me on appeal this Court is precluded from pronouncing on how the decision in Albert Ilona & George Ogboma v. Ojugbeli & Mgbeku Olise-a Supreme Court decision binding on this Court and the Court below might have impacted on it particularly as regards whether or not it was incumbent on the Court below to have firstly disposed of by Ruling the issue of adjournment by clearly putting the appellants to their election of either going on or not with the case before refusing the adjournment by dismissal of the entire suit, as a miscarriage of justice would otherwise be occasioned where that procedure was not followed a point raised and decided in Albert Ilona & George Ugboma v. Ojugbeli & Mgbeku Olise (supra).
In fact the Court below did not stage this mini trial, as it were,in the application for postponement of the instant trial. That being the case, the only proper procedure available to the appellants in the circumstances to upturn or otherwise deal with the said Ruling of 15/10/92 in this matter was by appealing. In this way one would not be losing focus of the immediate and indeed the main issue in the matter,which is whether a matter as the instant matter dismissed for want of prosecution can be set aside by the same Court. The appellants have so far not challenged the said Ruling of 15/10/92 on any grounds whatsoever. The instant appeal is challenging the Ruling of 2/11/92 for refusing to set aside the default decision of 15/10/92. That is the dilemma in this matter as this Court is therefore precluded from reaching any conclusion or otherwise deal with the propriety of the Ruling of 15/10/92. The order of 15/10/92 dismissing the suit is to all intents and purposes a final decision and it stands on equal footing with an order dismissing a suit on the merits after a trial. That being the case a number of implications flow from such conclusions vis-a-vis the instant matter including first and foremost that the Court below had become functus officio once the instant suit was dismissed for want of prosecution. Further,either party to the suit had automatic right of appeal, that is, without first seeking the leave of the Court below. That is to say either could appeal as of right.
By contending that the Court below became “functus officio” connotes it could no longer give a decision or make an order in the instant matter twice. Having already performed that task – it has become bereft of jurisdiction. See: Mohammed v. Husseni (1998) 14 NWLR (Pt.584) 108. On an application to set aside its order of 15/10/92 the Court below in dismissing the same, held at p.178 of the record LL.16 – 22 thus:
“…this Court is no longer competent to set aside its order made on 15th October, 1992.
In the circumstances I find this application to lack merit. Same is hereby dismissed. He plaintiffs/applicants have as a remedy right to appeal against that Order in the present circumstances and thus they should do.”
As much as I agree with the trial court’s conclusion that the appellants’ only remedy was to appeal against the order of 15/10/92 dismissing their suit for want of prosecution, I do not see how the Court below could turn round in the same Ruling of 2/11/92 to dismiss instead of striking out the motion to set aside the said order of 15/10/92 particularly as the Court below had become functus officio; in that regards no sooner it pronounced the said order of 15/10/92. It follows that the Court below had no competence to deal with the motion on notice of 15/10/92 to set aside its order of 15/10/02 and so could not dismiss it; the highest it could do was to strike it out for want of competence.
For what is worth I have gone on to examine the other issues canvassed in this matter by the appellants if only to show their irrelevancy to sustaining their case in this matter. The appellants raised their appeal on the refusal to set aside the said Ruling on the supposition of the trial Court’s misconception of Order 24 Rule 15 (supra) which I set out thus:
“…Any judgment by default, whether under this order or under any other Rule, may be set aside by the Court or a Judge in Chambers, upon such terms as to cost or otherwise as such Court or Judge in Chambers may think fit, and…”
The provisions of the foregoing Rule 15 do not pose any ambiguity. They are clear and plain. And discussed above are certain circumstances under which the Rule could be invoked although not exhaustive. The position now is whether the circumstances here conduce to the application of the aforesaid Rule. This would be so where the Ruling of 15/10/92 was a default decision. I have found otherwise. As I said above the Ruling of 15/10/92 was not occasioned either by default of appearance or entering a defence or circumstances where a default judgment could be contemplated. Ordinarily, to set aside a judgment by default of appearance or entering of a defence, an applicant has to come by way of motion on notice and invariably under Order 24 Rule 15 of the Rules. Such an application was contemplated in the Case of Umukoro Usikaro (supra). It should be observed that the appellants in their brief entreated to the effect that as the subject matter concerned land dispute, the Court below ought not to have short-circuited the form of trial by opting for an outright dismissal for want of prosecution as doing substantial justice by hearing the matter on the merit should have been upper-most in the mind of the Court.
I do not think that the procedural distinction between a matter dismissed or struck out is called to question here. Although a matter that is dismissed on the merit cannot be resurrected as it is done and finished with and the same holds good where an action is dismissed for want of prosecution while as against a matter struck out it could be resuscitated.
Secondly, the appellants’ line of reasoning appears to me on the whole quite oblivious of the disarming effect on the Court below of the order of 15/10/92. Once the Court below had so pronounced by the Ruling of 15/10/92 in this matter it became functus officio. A default judgment arises where a Court in sanctioning a default of appearance or entering a defence dismissed or struck out a suit for want of prosecution. I have said that under the Rules such order could be set aside and it is founded on the principle that until a Court pronounces a judgment on the merit or by consent it retains the power to set aside its own default judgment. To set aside such decisions the considerations to guide a Court to do so are discretionary and have been set out on Williams v. Hope Rising Voluntary Funds Society (1982) 1/2 SC 1., as per Idigbe JSC and they must co-exist. They are;
“Whether (1) the applicant has good reasons for being absent at the hearing, (2) he has shown that there was good reason for his delay in bringing the application i.e. in other words whether there was undue delay in bringing the application so as to prejudice the party in whose favour the judgment subsists, (3) the respondent will not be prejudiced or embarrassed if the order for re-hearing was made, (4) the applicants’ case was manifestly unsupportable and, (5) the applicants’ conduct throughout the proceedings is deserving of sympathentic consideration.”
But where a Court is considering to dismiss a matter for want of prosecution in exercise of its inherent jurisdiction it must be satisfied as to that by reason of prolonged or inordinate delay which is in-excusable as 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. See: Allen v. Sir Alfred Mc Alpine & Sons Ltd. (1968) 2 QB 229 Iro Ugbo & Ors. V. Chief Ogburu Urum (1981) 4 SC1., and Umukoro Usikaro Base (supra).
In circumstances as in this suit, arising by a refusal to postpone the hearing the only option open to a party as the appellant is to appeal the order dismissing his suit for want of prosecution. And the weights of the authorities in favour of the view which I have listed above in this regard are overwhelming.
I, therefore, agree with the Respondent that here a suit as the instant one has in similar circumstances been dismissed for want of prosecution and not merely struck out the suit cannot properly be relisted by way of an application under Order 24 Rule 15 of the aforesaid Rule. The proper means to reverse the decision if I may repeat, it to appeal against the said order.
I need not get involved in the other aspects of the appellants’ stance concerning the exercise of the trial Court’s discretionary powers and the appellate Court’s attitude to the exercise of such discretionary powers as that would be jumping the stiles before they are reached.
Therefore, in so far as the appeal before this Court relates to the Ruling dismissing the motion to set aside the Ruling of 15/10/92, the effective decision is still the said Ruling of 15/10/92 and the dilemma here is that it is not appealed against. And so, any decision on the said Ruling is hamstrung by that fact.
It is beyond contention that this appeal is not properly before the Court. In considering the order to make in this matter a land dispute (a sensitive matter in this part of the country). I reason that the matter is still capable of being reopened by appealing against the effective decision of 15/10/92 if proper procedure is followed and the issue of time limit taken care of by taking necessary steps. This process will culminate in a fresh notice of appeal with extension of time to regularise the matter. Having gone through the pleadings it does seem to me that the justice of this matter demands that it be decided on its merits. The situation here is, completely encompassed by the situation their Lordships had in mind in the case of Osisa Ikeakwu & Ors. v. Chinwuba Nwankpa (1967) NMLR 224 where the Supreme Court said:
“All appellate jurisdictions is statutory, and the power to adjudicate on an appeal, by allowing or dismissing it includes the power to decline to adjudicate on the merits where an appeal is not properly before the Court. This Court frequently exercises such power. In such a case the usual course is to strike out the appeal, and although an order striking out an appeal has for some purposes much the same effect as an order dismissing it, it does not thereby become a decision on the merits and does not necessarily preclude a subsequent decision on the merits if the matter can be reopened by an appropriate procedure.”per Brett JSC.
In sum, I find solace in the above dicta and adopt in toto the reasoning and conclusions there-from in resolving the appeal in this matter which I hereby strike out the Respondents.

G. A. OGUNTADE J.C.A: I read before now a copy of the lead judgment by my learned brother Chukwuma-Eneh J.C.A. I agree with his reasoning and conclusion. I would also strike out this appeal with N5, 000.00 costs to the respondent.

HON. JUSTICE P. O. ADEREMI, J.C.A.: I have had the privilege of a preview of the judgment delivered by my learned brother, Chukwumah-Eneh J.C.A. I agree with his reasoning and conclusion that the appeal is not on a firma terra. Having dismissed the suit on the day on which it was set down for hearing, for want of deligent prosecution, the only course open to an aggrieved party is to appeal against the order of dismissal and not to seek for an order setting aside that judgment which for all purposes can be described as final and consequently rendering the trial court functus officio see RODRIGUES V. THE PUBLIC TRUSTEES (1977)4 S.C. 29. Since the order appealed against is that of 2nd November, 1992 in which the application to set-aside the order of dismissal made on 15th October, 1992 was considered and refused it is my view that the order of 2nd November 1992 is a final one. The only course open to an aggrieved party is to appeal against it and not to seek to up turn it by an application to seeking to set it aside. I also adjudge the appeal as unmeritorious; I abide by the order as to cost.



Chief G.K. TalabiFor Appellant



Ajibade OdewaleFor Respondent


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