IMAM v. FCMB PLC (2020)

IMAM v. FCMB PLC

(2020)LCN/14189(CA)

In The Court Of Appeal

(KADUNA JUDICIAL DIVISION)

On Thursday, May 28, 2020

CA/K/516/2018

Before Our Lordships:

Hussein Mukhtar Justice of the Court of Appeal

Obietonbara O. Daniel-Kalio Justice of the Court of Appeal

Oludotun Adebola Adefope-Okojie Justice of the Court of Appeal

Between

ALHAJI YAHAYA MUHAMMAD IMAM APPELANT(S)

And

FIRST CITY MONUMENT BANK PLC RESPONDENT(S)

RATIO

THE PRINCIPLE THAT RULES OF COURT ARE MEANT TO BE OBEYED

The Rules of Court are not promulgated for mere cosmetic purpose but meant to be obeyed. See the case of Diokpa Francis Onochie & 2 Ors Vs. Ferguson Odogwu & 7 Ors (2006) 25 NSCQR page 387 at 409 paras D – H. The Supreme Court held inPaulina Asika & 3 Ors Vs. Charles Chukwumo Atuanya (2013) 56 NSCQR page 189 at 215, paras D-F thus:
It is elementary law that rules of Court are meant to be obeyed and complied with by the parties and the Court. It is not in the books for fun or window dressing… Rules of Court are made to be complied with and followed. They regulate matters in Court and help parties to present their case for quick trial. PER MUKHTAR, J.C.A.

APPLICATION FOR EXTENSION OF TIME TO HAVE A JUDGEMENT SET ASIDE

The Rules of the lower Court under Order 26, allow a party against whom judgment has been given to have that judgment set aside upon an application made within 7 days of the judgment or such other period as the pre-trial judge may allow. Where therefore an application is made outside the 7 day window prescribed, the applicant must seek an extension of time before the Court can exercise its power to set aside the judgment. The setting aside of the judgment will therefore be consequential to an order of extension of time having been granted. Without first granting an extension of time to set aside the judgment, there was no foundational platform upon which the lower Court could properly order the setting aside of the judgment. PER DANIEL-KALIO, J.C.A.

APPLICATION TO SET ASIDE A JUDGEMENT

The judgment entered by the lower Court was pursuant to Order 26 Rule 6 of the High Court of Kaduna State (Civil Procedure) Rules 2007, which provide as follows:
6. If a party or the party’s Legal Practitioner fails to attend the pre-trial 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 judgment.
The Rules further provide for reinstatement of a dismissed case, at pre-trial stage, upon an application brought within 7 days or such time-frame as the judge may extend, as follows:
Any Judgement given under this rule may be set aside upon an application made within 7 days of the judgment 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. PER ADEFOPE-OKOJIE, J.C.A.

HUSSEIN MUKHTAR, J.C.A. (Delivering the Leading Judgment): This appeal emanates from the Ruling of the High Court of Kaduna State delivered by Justice D. S. Wyom J in suit number KDH/KAD/898/2017, delivered on 2nd August 2018, wherein the Court below granted the Respondent’s application for restitution of his dismissed suit that was filed on 21st August 2017.
The originating processes were initially served on the Appellant as an unknown person until he entered an appearance.

After close of pleadings, the suit was fixed for pre-trial conference. However, the Plaintiff and its counsel failed to appear in Court without any explanation and without filing its answers to the pre-trial questions. The Court therefore dismissed the suit pursuant to Order 26 Rule 6 of the High Court of Kaduna State (Civil Procedure) Rules (hereinafter referred to as “the Rules”) 2007.

The Respondent and its counsel took no step until the period allowed by the rules for an application to set aside the order of dismissal had elapsed before bringing the application to set aside the decision and without seeking for extension of time as required under

Order 41 Rule 3 of the High Court of Kaduna State (Civil Procedure) Rules 2007.

The learned trial judge in his ruling delivered on 2nd August, 2018 granted the application and set aside the said judgment entered on 15th May, 2018 and adjourned the suit for pre-trial conference. The Appellant became disgruntled with that decision and therefore filed a Notice of Appeal on 30th August, 2018 premised on lone ground of appeal from which a lone issue was raised for determination, thus:
Whether having regards to the entire circumstances of this suit, the learned trial judge was correct to have granted the Respondent’s application to set aside the Court’s order of dismissal made on the 15th day of May, 2018.

The learned counsel for the Appellant Qasim Muhammad, Esq appearing with Murtala Hassan, Esq argued that Order 26 Rule 6(a) of the Rules 2007 has limited the time frame within which an application for restitution of suit may be made at pre-trial conference stage to 7 days from the date of dismissal of the suit. It was further argued that the time lapse from 15th May, 2018 when the suit was dismissed to the date of filing the application

for restitution of the suit on 7th June 2018, was more than the time frame allowed for filing such application, The learned trial judge himself observed thus (See page 131 of the Record of Proceedings) :
The discretion of this Court to set aside the dismissal order made under Order 26 Rule 6(a) is limited to 7 days … or 45 days mandated for pre-trial conference after the close of pleadings. In this case the Applicant brought this application 24 days after the dismissal and 58 days after close of pleadings.

It was submitted for the Appellant that since the time within which the application for reinstatement of the suit would have been made had lapsed and no prayer was made by the Applicant for extension of time, the application was not grant-able and the lower Court was wrong to have granted same. The Court was urged to resolve the issue in favour of the Appellant and allow the appeal as meritorious.

The learned counsel for the Respondent Emmanuel Owoicho Esq, appearing with Patrick Boniface Esq, argued that the Respondent’s Motion on Notice dated and filed on 7th June, 2018 was moved and rightly granted by the learned trial judge in his

Ruling delivered on the 2nd August 2018 and that Order 41 Rules 3 of the Rules provided for the payment of default fees which the Respondent did when he filed his application out of time. He submitted that under the Rules, such issues are treated as mere irregularities, which did not extinguishing the suit prematurely at that stage and did not occasioned any miscarriage of justice.

It was submitted that the dismissal of the plaintiff/respondent’s suit by the lower Court pursuant to Order 26 Rules 6 of the Kaduna State High Court Rules was not a dismissal on the merit of the case. This was why the Rules provided window for application by the plaintiff or defendant whose matter is dismissed to approach the Court to re-list same. The same Rules of Court provided in Order 41 Rules 3 that where any party fails to do any act within the stipulated time provided the rules, he must pay default fees and that the Respondent had paid the default fees of N3000 as assessed in the registry. See the case of Patrick Afuru Ogar Vs. T. B. James (2001) FWLR Pt. 67 at 930.

It was submitted that the delay was inconsequential to the merit of the case and the Court

was urged to resolve the issue against the Appellant and dismiss the appeal.

The parties are on common ground on the fact that the Appellant’s application leading to the ruling that prompted this appeal was timed out. Order 26 Rule 6 of the Rules of the Court below clearly requires every such application to be filed within 7 days from the date of dismissal or such further period, not exceeding the time provided under the Rules for pre-trial conference, as the Court may allow. In the instant case, the Respondent had filed the application more than 7 days after the dismissal the application. That was clearly out of time and that lower Court’s discretion was not exercisable in the Respondent’s favour without an extension of time, which was neither sought for nor obtained by the Respondent. The said Order 26 Rule 6 of the Rules clearly provide thus:
6. If a party or the party’s Legal Practitioner fails to attend the pre-trial conference or obey the scheduling for 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 judgment
The Rules further provide for reinstatement of a dismissed case, at pre-trial stage, upon an application brought within 7 days or such time-frame as the judge may extend thus:
Any Judgment given under this rule may be set aside upon an application made within 7 days of the judgment 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 foregoing provision clearly requires the Respondent to seek for extension of time within 7 days after the dismissal of his case for failure to participate in the pre-trial proceedings. There must also be attached to the application an undertaking to participate effectively in the pre-trial conference. The word ‘shall’ used in the rule, signifies a mandatory requirement.
The Rules of Court are not promulgated for mere cosmetic purpose but meant to be obeyed. See the case of Diokpa Francis Onochie & 2 Ors Vs. Ferguson Odogwu & 7 Ors (2006) 25 NSCQR page 387

at 409 paras D – H. The Supreme Court held inPaulina Asika & 3 Ors Vs. Charles Chukwumo Atuanya (2013) 56 NSCQR page 189 at 215, paras D-F thus:
It is elementary law that rules of Court are meant to be obeyed and complied with by the parties and the Court. It is not in the books for fun or window dressing… Rules of Court are made to be complied with and followed. They regulate matters in Court and help parties to present their case for quick trial.
The Respondent’s application, without prayer for extension of time, was therefore incompetent and the Court below was in error by granting the reliefs sought therein. See the case of Ports & Marine Services Ltd Vs. Umarco (Nigeria) Ltd & 3 Ors (2016) LPELR- 41487.

In the circumstances, the sole issue is resolved in favour of the Appellant. The appeal therefore succeeds per force and is hereby allowed. The Ruling of Court below delivered by Hon. Justice D. S. Wyom J 2nd August 2018 in suit number KDH/KAD/898/2017 is hereby set aside. In the stead thereof the application for restitution of the dismissed suit is struck out for incompetence.

The Appellant is entitled to costs against the Respondent assessed at Fifty Thousand Naira (N50,000.00).

OBIETONBARA O. DANIEL-KALIO, J.C.A.: I have read the judgment of my noble lord Hussein Mukhtar, JCA and I agree. The Rules of the lower Court under Order 26, allow a party against whom judgment has been given to have that judgment set aside upon an application made within 7 days of the judgment or such other period as the pre-trial judge may allow. Where therefore an application is made outside the 7 day window prescribed, the applicant must seek an extension of time before the Court can exercise its power to set aside the judgment. The setting aside of the judgment will therefore be consequential to an order of extension of time having been granted. Without first granting an extension of time to set aside the judgment, there was no foundational platform upon which the lower Court could properly order the setting aside of the judgment. For this reason and the fuller reasons in the lead judgment, I allow the appeal. I abide by the consequential orders made by my lord in the lead judgment.

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.: I have had a preview of the judgment of my learned brother,

HUSSEIN MUKHTAR, JCA, and am in agreement that this appeal is meritorious. The judgment entered by the lower Court was pursuant to Order 26 Rule 6 of the High Court of Kaduna State (Civil Procedure) Rules 2007, which provide as follows:
6. If a party or the party’s Legal Practitioner fails to attend the pre-trial 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 judgment.
The Rules further provide for reinstatement of a dismissed case, at pre-trial stage, upon an application brought within 7 days or such time-frame as the judge may extend, as follows:
Any Judgement given under this rule may be set aside upon an application made within 7 days of the judgment 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.
Clearly, the Court was perfectly entitled to

re-instate the dismissed case. This must however be within the time frame prescribed or within the time as extended by the Court. Unfortunately, this was not done. The Court therefore lacked the capacity to set aside its judgment outside the time limited by statute.
Where a statute or rules of Court prescribes a condition precedent to the assumption of jurisdiction, that condition precedent must first be fulfilled before there will be jurisdiction. A case, or application in this instance, must therefore come before the Court only when instituted by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction. See Yar’Adua v. Yandoma (2015) 4 NWLR Part 1448 Page 197 at 197 Para A-B per Mary Peter-Odili JSC.
Rules of Court are to be obeyed and complied with, I hold. In the event of non-compliance and with no explanation given, unless the non-compliance is of a minimal kind, the Court must grant no indulgence. See Ifeanyichukwu Trading Investment Ventures Ltd v. Onyesom Community Bank Ltd (2015) 17 NWLR Part 1487 Page 1 at 26 Para H per Ariwoola JSC.
The Respondent having failed to seek an extension of

time to bring the application as stipulated by the Rules, the setting aside of its judgment by the lower Court was thus in gross error.

I also allow this appeal and set aside the Ruling of Court below. I abide by the consequential orders made by my learned brother.

Appearances:

QASIM MUHAMMAD, ESQ., with him, MURTALA HASSAN, ESQ. For Appellant(s)

EMMANUEL OWOICHO, ESQ., with him, PATRICK BONIFACE, ESQ. For Respondent(s)