DOMINIC OKORO V. MARGARETE OKORO & ANOR
(1998)LCN/0373(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 11th day of February, 1998
CA/E/86/96
RATIO
It is only when the motion for extension of time is refused that the motion for judgment or to dismiss/strike out the suit should be taken. This practice has acquired the force of law by the Supreme Court decision in Abiegbe v. Ugbodima (Supra). The Supreme Court stated that: “Where a plaintiff is out of time but files an application for extension of time, and there is another application to dismiss his action for want or deligent prosecution, the court should grant application for extension of time (provided there is no inordinate delay by the applicant) on the condition that he should pay cost and such cost is sufficient punishment for the plaintiff. PER UBAEZONU J.C.A.
It is the duty of the court to find out the nature or the processes in its file and to determine which of them should take priority over the other. The failure of the court to do so in this case has done injustice to the appellant. It is the duty of this court to remedy the injustice. PER UBAEZONU J.C.A.
JUSTICES:
JUSTIN THOMPSON AKPABIO Justice of The Court of Appeal of Nigeria
NIKI TOBI Justice of The Court of Appeal of Nigeria
EUGENE CHUKWUEMEKA UBAEZONU Justice of The Court of Appeal of Nigeria
Between
DOMINIC OKORO Appellant(s)
AND
- MARGARETE OKORO
2. CHARLES NWOSU Respondent(s)
UBAEZONU J.C.A. (Delivering the Leading Judgment): The Appellant, in the lower court claimed as follows;
“(a) Return of the wife – the 1st defendant and the child whose pregnancy she was carrying when she was enticed away from her matrimonial home.
(b) Special damages- N280,000.00 being cost of his property removed by the defendants.
(c) General damages – N1,000.000.00 for depriving him of the use of the property and for enticement of his wife – the 1st defendant.”
The appellant however failed to file his statement of claim within time. In consequence, the respondent by a motion dated 30th January, 1996 prayed the court for an order dismissing or striking out the suit. By a motion dated 5th February, 1996, the appellant prayed the court for an Order for extension of time within which to file his Statement of claim. Both motions came up for hearing at the lower court on 7th February, 1996. The learned trial Judge, M.U. Edozie J., heard the motion for dismissing or striking out the suit. She dismissed the suit.
Dissatisfied with the judgment/ruling, the appellant has appealed to this court on two grounds of appeal. He also filed three issues for determination as follows:-
“1. Was the Learned Trial Judge correct in hearing and determining a motion to dismiss/strike-out the suit first when there was in court a motion for extension of time within which to file the statement of claim?
2. Was there fair-hearing when the learned trial Judge after hearing the applicant in a motion to dismiss/strike-out the suit for want of deligent prosecution proceeds (sic) to judgment/ruling without calling on the respondent to speak inspite of the fact that counsel for the respondent was there.
3. Would it be proper interpretation of section 236 or the Constitution of the Federal Republic of Nigeria 1979 as amended to construe that the High Court has no jurisdiction over customary Law marriages in the absence of any ouster provision 25 of the said Constitution.”
The appellant argued issues 1 and 2 together in his brief. Learned counsel contended that since there were two motions before the court – one for dismissal or striking out the suit for want of deligent prosecution, the other for extension of time within which to file the appellant’s statement of Claims, the court ought to have heard the motion for extension of time first. On the contrary, the court heard the motion for dismissal or striking out of the suit and dismissed the same while the motion for extension of time to file the statement of claim was still pending. He refers to and relies on Abiegbe v. Ugbodime (1973) 1 S.C. 133.
Learned counsel also complains that the appellant was not given a hearing even though his counsel was present in court. He contends that the failure to give him a hearing was a breach of the principle of fair hearing enshrined in S.33 (1) of Nigerian Constitution.
On issue No.3, learned counsel argues that the learned trial Judge suo motu raised and determined the issue of jurisdiction. The court held that it had no jurisdiction over customary law marriage. Counsel contends that the suit before the court was one of the tort of enticement. The issue before the court, counsel argues, was not a petition for dissolution of a customary law marriage.
It is submitted that under S.236 of the Nigerian Constitution the High Court has unlimited jurisdiction save as limited by S.230 of the said Constitution – See Bronik Motors Ltd. v. Wema Bank Ltd. (1983) 1SCNLR 296; Sale v. Nigeria Cotton Board (1985) 2 NWLR (Pt.5) 17; Agbaje v. Adelekan (1990) 7 NWLR (Pt. 164) 595. Learned counsel argues that the jurisdiction of the High Court can only he ousted by express legislation. He contends that the case before the court was one of enticement. It is submitted that under SS 17 and 18 or the Magistrates Court Law and S.13 of the High Court Law Edict No. 16 of 1987, Laws of Anambra State applicable in Enugu State, the High Court has concurrent jurisdiction with the Magistrate’s Court in matters relating to Customary Law Marriages.
The respondents in this appeal failed to file a respondent’s brief. On the 23rd September, 1997 the appellant obtained leave of the court to argue the appeal on the appellant’s brief only. When the appeal came up for hearing on 17th November, 1997 learned counsel for the appellant adopted his brief and urged the court to allow the appeal.
Issues 1 and 2 argued together are sufficient to dispose of this appeal.
Firstly, let me dispose or issue No.2. This issue complains of a denial of fair hearing in that the learned trial Judge after hearing the respondent’s counsel in a motion to dismiss or strike out the suit proceeded to give her judgment/ruling without calling on counsel for appellant to reply even though counsel was present in court. This contention is not correct and not bourne out by the record or appeal.
At page 18 of the recond of appeal there is the following record of the proceedings in court at lines 16 – 24
“Motion dated 30/1/96 for leave or court to dismiss the suit under order 9 Rule 42 of High Court Rules. Motion is supported by a 13 paragraph affidavit and counsel relies on accompanying exhibit A, B, C, & D. Urges the court to grant the applicant (Sic) counsel for the plaintiff/Respondent opposes the application and relies on a counter affidavit which is not before the court. Mohammed v. Musawah (1985) 3 NWLR Part 11 page 9”. (Italics mine) Thus, the record shows that learned counsel for the plaintiff/respondent who is the appellant in this court opposed the application to dismiss or strike out the suit and relied on a counter-affidavit which was not before the court. He went further to cite the case of Mohammed v. Musawah (Supra). In the face of the record, how can learned counsel complain of denial of fair hearing? There was no such denial.
The appellant however seems to be on a strong wicket in his issue No.1.
The practice in all the courts is that where there is a default in filing a pleading within time, and there are two motions pending before the court one of which is for extension of time to file the pleading and the other is for striking out the suit for want of deligent prosecution or for judgment in default of pleading, the motion for extension of time is taken first. This practice is in accord with common sense as well as for meeting the justice of the case. It is only when the motion for extension of time is refused that the motion for judgment or to dismiss/strike out the suit should be taken. This practice has acquired the force of law by the Supreme Court decision in Abiegbe v. Ugbodima (Supra). The Supreme Court stated that:
“Where a plaintiff is out of time but files an application for extension of time, and there is another application to dismiss his action for want or deligent prosecution, the court should grant application for extension of time (provided there is no inordinate delay by the applicant) on the condition that he should pay cost and such cost is sufficient punishment for the plaintiff”.This settles the question in this appeal. It is wrong for the learned trial Judge to ignore a pending application for extension of time and proceed to dismiss the suit. The application for extension of time was filed in the court on 5/2/96 see page 15 of the record lines 31 – 35. The motion to dismiss the suit was heard on 7/2/96 i.e. 2 days after the motion for extension of time had been filed – see page 18 line 10 to page 19 line 5. Mr. C.V.C. Ezeugwu was recorded as appearing for Plaintiff/applicant. Why he did not proceed to move his motion after announcing himself as counsel for the plaintiff/applicant is not clear. But having announced himself as such it is for the court to find out the nature of the applications before it since both counsel announced themselves as appearing for the applicant. It is the duty of the court to find out the nature or the processes in its file and to determine which of them should take priority over the other. The failure of the court to do so in this case has done injustice to the appellant. It is the duty of this court to remedy the injustice. In the circumstance this appeal succeeds and it is allowed. The judgment/ruling of the lower court delivered on 7/2/96 is hereby set aside. The case is remitted to the High Court of Nsukka Judicial Division or Enugu State for an order granting the appellant extension or time within which to file his statement of claim.
The issue of jurisdiction has not been argued by both parties before the lower court so I shall refrain from making any order to that effect. The respondents shall be at liberty to raise any such issue in the lower court if they so desire. The case shall be heard at the lower court by any Judge other than M.U. Edozie J. who dealt with case before it came on appeal. The appellant shall have N1, 000.00 costs for this appeal.
AKPABIO, J.C.A.: I have had the privilege of reading in advance the lead judgment of my learned brother. UBAEZONU, J.C.A., just delivered, and agree with him that this appeal should be allowed for the reasons so ably stated by him.
This was a case in which the appellant as plaintiff had sued the respondents at the Nsukka High Court claiming the return of his wife (the 1st defendant) and child whose pregnancy she was carrying when she was enticed away from her matrimonial home. Special and general damages were also claimed. However, after more than six months had elapsed, and the Plaintiff had not filed his statement of claim, the defendants filed a Motion on Notice at the Nsukka High Court, praying the Court for an – Order dismissing or striking out the suit. In their affidavit in support of the said application, the defendants disclosed that the marriage between the plaintiff and 2nd defendant had broken down irretrievably, and that in fact they had filed an action against the plaintiff at the Magistrates Court Adani on 19/7/95 for dissolution of their marriage under Native Law and Customs, and for him (plaintiffs) to come and receive the refund of his “Bride Price”, which he had consistently refused to accept. It was then averred that it was after the plaintiff had received the summons for dissolution of the Customary Law Marriage that he rushed to the High Court to institute the present suit on same subject matter, copy of the Divorce Petition No. Muz/5/95 was exhibited.
It appears that after the appellant received the Writ of Summons in the Customary Marriage Divorce case, in Suit No. MUZ/5/95 instituted against him at the Magistrate’s Court, Adani he filed a Motion therein for all Order striking out the said suit or alternatively adjourning same sine die for constituting an abuse or the Court’s process, as two actions were then pending before two different courts on substantially the same subject matter and between substantially the same parties, which tantamou nted to abuse of judicial process.
The above was the state of affairs between the parties when the 1st respondent applied for the appellants Suit No. N/74/95 at the High Court to be dismissed or struck out for want of diligent prosecution. In response to that application, the appellant herein (Dominic Okoro) filed a Counter-Affidavit explaining that he suspended action on his statement of claim as a result of a move for settlement initiated by one Peter Nwabueze, a relation of the 1st respondent. But when the said move for settlement was pending, the respondents surprised him by filing their application for dismissing or striking out his suit at the High Court. He therefore instructed his Solicitors to resume work all preparation and filing of his statement of claim, appellant did not stop there. He also filed a Motion for extension of time within which to file his statement of claim.
In due course both the 1st respondent’s application for dismissing or striking out the suit of appellant for want of diligent prosecution as well as appellant’s application for extension of time within which to file his statement of claim, came before the learned trail Judge, M.U. EDOZIE, J. for arguments and on the same day, 7th day of February, 1996. On that date the learned trial Judge, look first the respondent’s Motion for “Dismissing or striking out this suit” which was filed before the application for extension of time. At the end of the arguments, the learned trial Judge gave a brief ruling on the sport as follows:-
“This Suit was filed on 19/7/95 and up till now the plaintiff has not filed his statement of claim. The petition for the dissolution of the customary law marriage is still pending al the Magistrate’s Court Adani, when plaintiff abandoned it and came to this court. The High Court has no jurisdiction over customary law marriage. In the eyes of the Law in the High Court, the Court can not restore the conjugal rights of a customary Law Marriage. The delay by the Plaintiff in fiing a statement of claim shows that he cannot sustain a claim on the defendants. Therefore the suit is hereby dismissed.”
Against the above ruling, the appellant was dissatisfied, and so appealed to this court on two grounds, from which three issues for determination were formulated. The first issue which arose from ground one contended that the learned trail Judge was wrong in taking first a motion to dismiss/strike out the suit when there was in court a motion for extension of time within which to file the statement of claim. The second issue which complained of lack of fair hearing did not arise from any of the grounds filed. It is accordingly hereby struck out.
The third issue which arose from ground two contended that the learned trial Judge wrongly held that she had no jurisdiction to entertain Customary Law Marriages in view of S.236 of the Constitution of the Federal Republic, 1979.
My learned brother, Ubaezonu, J.C.A. has resolved these matters in favour of the appellant based on the Supreme Court’s decision in the case of Abiegbe v. Ugbodume (1973) 1 S.C. 133 at 149 – 150 and I agree with him. I only wish to add for emphasis that even in this court, whenever there is an application for dismissing an appeal for want of diligent prosecution, and then the appellant rushed in with an application for extension of time within which to file his briefs, we always take the application for extension of time first and grant it with heavy cost in favour of the respondent whose motion woke up the appellant from his slumber. To dismiss this appeal would inferentially mean our turning round to disapprove or a practice which we have been using in this court.
I should also observe that although the application of the 1st respondent was only for dismissing or striking out the case of the plaintiff/appellant “for want of diligent prosecution, the learned trial Judge went far beyond what was asked for and considered the issues of “abuse or process” and “want of jurisdiction” none of which was asked for by either party. It may be conceded that these two issues were touched upon by both parties in both their affidavit and counter-affidavit; nevertheless there was no clear application to dismiss or strike out the suit either:
(a) for being an abuse of court’s process, OR
(b) Because the court lacks jurisdiction to entertain it.
It is a fundamental principle or our law that a case must always be decided on the issues brought before the court by the parties and not on what was raised by the court “Suo motu”. If in the interest of justice, the court raised an issue “suo motu” Counsel to the parties must be given opportunity to address on it, which was not done in this case. (See the cases of Sadiku v. A-G Lagos State (1994) 7 NWLR (Pt.355) 235; Udogu v. Egwuatu (1994) 3 NWLR (pt.330) 120; Nnamani v. Nnamani (1996) 3 NWLR (Pt.438) 591. In this case the Court or Appeal (Lagos Division) held as follows:
“a court should not give a decision on a point which was not argued before it (Adeosun v. Babalola (1972) NSCC Vol. 7 401; (1972) 5 S.C. 292; Ogiamen v. Ogiamen (1967) NMLR 245 at 248-249)”. See also the case or Eighajale v. Oke (1996) 5 NWLR (pt.447) 120 in which the Supreme Court made similar pronouncements.”)In view of the foregoing, I too hereby allow this appeal, grant the appellant herein one month’s extension of lime from the date of this judgment within which to file his statement of claim at the court below. The order of dismissal of plaintiff’s claim by the court below is hereby set aside, and the parties are ordered to appear before the lower court for resumption of proceedings on 11th April, 1998. Costs of N1,000.00 in favour of Appellant.
TOBI, J.C.A.: A Judge, trial or appellate, has no right to refuse hearing a court process before him, including a motion. A motion may be down right stupid, irregular, unmeritorious or an abuse of the judicial process; the judge must hear it and rule one way or the other. He cannot prevent an applicant from moving his motion for whatever reason. Refusal of a judge to hear a motion is clearly a breach of the Constitutional right of an applicant to be heard and that is not only against section 33(1) of the Constitution (if) one may say so naively hut also against the natural justice rule of audi alteram partem. As a matter of law, it will be an understatement to contend that such an applicant was denied fair hearing, as there is in fact no hearing at all. The fairness of a hearing can only arise if, in the first place, there is hearing. In such a situation, the above principle of natural justice is more applicable.
Where there are two competing motion before a court of law, one urging the court to strike out or dismiss the action and the other asking for extension of time within which to regularise a procedural position, a court of law, which is a court of justice, is required to take the latter motion first. It is only when the latter motion fails that the first one should be taken. This is because of the need for the court to save the life of the action if it is in law save-able rather than burring it for forever.
I have said it before and I will say it again that dismissal or 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 situations where the plan of res judicata does not apply. The plaintiff is shut out from the doors or 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 in the cause list.
In this case, the motion for extension of time was filed on 5/2/96. The motion for dismissal was heard on 7/2/96, which the learned trial Judge granted. The learned trial Judge had all the opportunity to hear the motion for extension or time and in the light of the same law, the motion had so much potential of success.
Instead or doing that, he decided to hear the notice for dismissal or striking out of the matter, and granted it in favour of dismissal.
It is for the above reasons and the fuller reasons given by my learned brother, Ubaezonu, J.C.A. in his judgment that I also allow the appeal. I award N1,000 costs in favour or the appellant.
Appeal allowed
Appearances
Dr. M.E. Ajogwu For Appellant
AND
Respondents absent and unrepresented For Respondent
