JOHN C. ONUORA V. CHINEDUM OFOMATA (2012)

JOHN C. ONUORA V. CHINEDUM OFOMATA

(2012)LCN/5764(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 19th day of December, 2012

CA/E/80/2007

RATIO

ORDER: DISTINCTION BETWEEN AN ORDER DISMISSING A MATTER AND AN ORDER STRIKING THE SAME OUT

The law is settled as to the distinction between an order dismissing a cause or matter and an order striking the same out, as well as the consequences of the two modes of termination of a cause or matter. The striking out of a case by a court invariably leaves the plaintiff with the option of reviving the case and having it placed back on the cause list at anytime subject to showing good cause. Indeed, if the plaintiffs cause of action is not already caught by any relevant or applicable statute of limitation, he can simply proceed to file a new action, On the other hand, an order dismissing a case, does not allow for the resuscitation of the case in question. Related to this is the application of the principles of estoppel per rem judicatam. While the plea of estoppel per rem judicatam does not apply in respect of a suit that is struck out, it applies in respect of a suit that has been dismissed. It would therefore appear that the Appellant is challenging the decision of the lower court striking out the instant suit for lack of diligent prosecution as he wants the Respondent barred from reviving his action for all times. PER AYOBODE OLUJIMI LOKULO-SODIPE J.C.A.

COURT: POWER OF DISMISSAL FOR WANT OF DILIGENT PROSECUTION

PROCEDURE: WHETHER GRANT OF AN ADJOURNMENT IS AT THE TOTAL DISCRETION OF THE COURT

It is settled law that the decision whether or not to grant an adjournment when sought by any of the parties in an action is at the total discretion of the court to which the application for adjournment has been made. Though the decision whether or not to grant an adjournment is at the discretion of the court, it is also settled law that the court must show on the face of its proceedings that it acted judicially and judiciously in granting or refusing the adjournment. See in this regard the case of ATTORNEY-GENERAL OF RIVERS STATE V. UDE & ORS (2007) All FWLR (Pt. 347) 598 wherein the Supreme Court per Katsina-Alu, JSC; (as he then was) stated thus at pages 617 – 618:-
“It is now settled that it is a matter within the discretion of the court whether or not to grant an adjournment. But that discretion must at all times be exercised not only judicially but also judiciously. It is the duty of a Judge to state clearly whether he grants or refuses an adjournment and his reason for doing so and it should be apparent from the record that he gave careful consideration for his decision: Udo v. State (1988) 3 NWLR (Pt. 82) 316. PER AYOBODE OLUJIMI LOKULO-SODIPE J.C.A.

COURT: WHETHER COURT CAN BE BOUND BY A PREVIOUS DECISION IN MATTERS OF DISCRETION

JUSTICES

ABUBAKAR JEGA ABDULKADIR Justice of The Court of Appeal of Nigeria

AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria

ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria

Between

JOHN C. ONUORA Appellant(s)

AND

CHINEDUM OFOMATA Respondent(s)

AYOBODE OLUJIMI LOKULO-SODIPE J.C.A. (Delivering the Leading Judgment): This appeal is against the ruling delivered on 1/3/2005 by the Federal High Court, Enugu Judicial Division (hereafter simply referred to as “the lower court”), presided over by Hon. Justice A.A.B. Gumel (as he then was, and hereafter simply referred to as “the learned trial Judge”). The learned trial Judge in the ruling appealed against struck out the case before him for want of diligent prosecution.
The facts of the case as gathered from the record of appeal briefly stated are that the Respondent/Cross-Appellant (hereafter simply referred to as “the Respondent”) as the Plaintiff before the lower court by a Claim dated 15/9/1997 and filed on 18/9/1997 claimed against the Appellant/Cross-Respondent (hereafter simply referred to as “the Appellant”) and one other person, jointly and severally for the following reliefs:-
“(a) The sum of N5, 000,000.00 (five million naira) being damages for copying, plagiarizing or publishing the plaintiff’s said works.
(b) An order of perpetual injunction restraining the defendants their agents, servants or workmen from further copying, publishing or plagiaring (sic) the plaintiff’s works.”
On 9/4/1998, the Appellant and the other party sued with him filed a joint Statement of Defence dated 9/4/1998, to the claim of the Respondent. In the said Statement of Defence, the Appellant as 1st Defendant in the action before the lower court, counter-claimed against the Respondent as follows: –
“(a) The sum of N8, 000,000.00 (Eight Million Naira) being damages for copying, plagiarizing and publishing the 1st Defendant’s works mentioned in his pleadings.
(b) An order of perpetual injunction restraining the Plaintiff, his agents, servants, workmen and otherwise from further copying, publishing or plagiarizing the 1st Defendant’s works mentioned in his pleadings.”
On 13/5/1998 the Respondent duly filed a Reply dated 11/5/1998, to the Counter-Claim of the Appellant. The instant case which was initially instituted in the Awka Judicial Division of the High Court of Anambra State was by the order of the said court made on 17/7/1998, transferred to the lower court for adjudication. This was sequel to the application brought by the Respondent; and as the parties in the case were agreed that the case be so transferred.
Hearing commenced in the case before the lower court presided over by the learned trial Judge on 17/2/2004, with the Respondent testifying as PW1. PW1 continued with his evidence on 25/5/2004 but never completed doing this before the case was struck out for lack of diligent prosecution by the learned trial Judge on 1/3/2005. This was sequel to the application for an adjournment made at the instance of the Respondent and which application was duly placed before the lower court.
The Appellant being dissatisfied with the decision of the lower court in its ruling striking out the Respondent’s case, appealed against the same vide a Notice of Appeal dated 7/3/2005 and filed on the same date. The Notice of Appeal contains one ground of appeal. The said ground of appeal as well as its particulars read thus: –
“GROUND OF APPEAL
1. ERROR IN LAW
The learned trial Judge erred in Law by delivering ruling in favour of the defendant/appellant by striking out a part heard matter instead of dismissal.
PARTICULARS OF ERROR
a. In a suit, once evidence had been given the suit is considered a (sic) part-heard.
b. Since the suit was heard (sic) the appropriate order should be that of dismissal instead of striking-out.
The reliefs which the Appellant seeks from this Court as set out in the Notice of Appeal are:
a. An order dismissing this suit FHC/AN/35/98 in it’s entirely (sic).
b. To set aside the order striking out the suit made by Hon. Justice Gummel (sic) of the Federal High Court Enugu and substituting same with an order of dismissal of Suit No. FHC/AN/35/98”
The Respondent being equally dissatisfied with the decision made by the lower court in its ruling in question, lodged a cross-appeal against the same vide a Notice of Appeal dated 26/9/2007 and filed on 27/9/2007 but deemed to have been properly filed and served on 24/1/2008. This was sequel to application dated 26/9/2007 and filed on 27/9/2007 brought in that regard, by the Respondent and which was granted on 24/1/2008. The Notice of Appeal contains five grounds of appeal. The said grounds of appeal and their respective particulars are hereby re-produced: –
“GROUNDS OF APPEAL
(a) GROUND ONE ERROR OF LAW
The Learned Trial Judge erred in law when he failed to rule on the application for adjournment contained in the letter before him and struck out the Suit contrary to the law.
PARTICULARS
i. The law is that a Court of law must rule on an application for adjournment before it can take a decision one way or the other.
ii. There was an application before the Honourable Trial Judge for adjournment on the ground that Amaechi Onyekwuluje. Esq. who was scheduled to handle the Suit became suddenly ill.
iii. Rather than consider the application on the merits the Court said that it was Chief O. Ugolo who had been personally and consistently appearing for the Plaintiff and that there was no cogent explanation why Chief Ugolo was absent.
iv. The Law is that a Judge is not entitled to insist on a particular Counsel in a Legal Practitioner’s Chambers to conduct a case.
(b) GROUND TWO – ERROR OF LAW
The Learned Trial Judge erred in law when he suo motu struck out the Suit without calling upon Learned Counsel for the Defendant to address him on the issue.
PARTICULARS
i. The Learned Trial Judge directed that the Suit should be called up in his Chambers.
ii. After calling up the Suit Learned Counsel for the Defendant announced his appearance. The Clerk informed the Court that Plaintiff’s Counsel wrote a letter for adjournment and gave it to his Lordship.
iii. The Learned Trial Judge after reading the letter struck out the Suit without calling upon the Learned Counsel for the Defendant for his views on the said application for adjournment.
(c) GROUND THREE – ERROR OF LAW
The Learned Trial Judge erred in law when he struck out the Suit in his Chambers.
PARTICULARS
i. The Clerk informed Counsel that the Learned Trial Judge would see them in his Chambers.
ii. In Chambers Suits were called up and dates given to Counsel.
iii. When this Suit was called up rather than adjourn the case like the others the Learned Trial judge suo motu struck out the Suit.
(d) GROUND FOUR – ERROR OF LAW
The Learned Trial Judge erred in law when he struck out the case solely on the application for adjournment written by Counsel when Counsel’s inadvertence should not be visited on the litigant.
PARTICULARS
i. The Learned Trial Judge read the letter praying for adjournment of the Suit.
ii. The Judge suo motu struck out the Suit as Chief O. Ugolo’s absence was not explained,
iii. The sins of Counsel in being sick and writing the application for adjournment were therefore visited on the litigant.
(e) GROUND FIVE – ERROR OF LAW
The Learned Trial Judge erred in law when he wrongfully exercised his discretion by striking out the case without considering the antecedents of the case.
PARTICULARS
i. The records showed that several times the Defendant’s Counsel had applied for adjournment and Plaintiff’s Counsel had never objected to same.
ii. On 1/3/2005 the Court decided to sit in Chambers and suo motu struck out the Suit without considering the previous history of adjournments in the Suit.”
The relief which the Respondent seeks as set out in the Notice of Appeal is for the Court “To set aside the Ruling of the Honourable Court delivered on 1/3/2005 and order that the hearing of the Suit should be continued.”
In accordance with the Rules of the Court parties filed and exchanged Briefs of Argument. Appellant’s Brief of Argument dated 17/4/2007 and filed on the same date as well as Cross-Respondent’s Brief of Argument dated 29/4/2008 and filed on the same date but deemed as having being properly filed and served on 7/7/2008, were settled by Afam Obi, Esq. Respondent’s Brief of Argument dated 12/12/2007 and filed on 13/12/2007 but deemed to have been properly filed and served on 7/7/2008, as well as Cross-Appellant’s Brief of Argument dated 29/2/2008 and filed on 3/3/2008 were settled by Chief Okwuchukwu Ugolo SAN. The main appeal and cross-appeal were entertained on 31/10/2012 and both learned counsel namely, Obinna Obetta and Chief I.M. Anah for the Appellant/Cross-Respondent and Respondent/Cross-Appellant respectively, adopted and relied on the Briefs of Arguments of their clients as hereinbefore identified in support of their positions in the appeals.
In line with the position of the law, the Appellant who predicated his appeal on one ground of appeal formulated an issue for the determination of the main appeal in his Brief of Argument. The issue reads thus: –
“Is a Part-Heard matter ought to be struck out or be dismissed?”
In the Cross-Respondent’s Brief of Argument, two issues are formulated for the determination of the cross-appeal. They read thus: –
“(a) Whether the learned trial judge was right in law when he struck out the suit without ruling on the application for adjournment?
(b) Whether the learned trial judge was right in law when he suo motu struck out the suit in chambers without considering the history and antecedents of the case.”
Like the Appellant did, the Respondent too formulated an issue for the determination of the main appeal and the issue reads thus: –
“Whether the Learned Trial Judge was right in law when he struck out the Suit.”
In the Cross-Appellant’s Brief of Argument two issues were formulated for the determination of the cross-appeal and they read thus: –
“(a) Whether the learned trial judge was right in law when he struck out the suit without ruling on the application for adjournment?
(b) Whether the learned trial judge was right in law when he suo motu struck out the suit in chambers without considering the history and antecedents of the case.”
The main appeal will be determined upon the issue as formulated by the Appellant. This is particularly so as the issue formulated by the Respondent in my considered view is the same in purport with the issue formulated by the Appellant.
In dwelling on the issue, the Appellant narrated the facts of the case and the circumstances thereof, in order to show the checkered history of the case and that it was after the lower court had commenced taking evidence in the case that the learned trial Judge terminated it by the order of striking out that he made on 1/3/2005. The Appellant submitted to the effect that it has been decided that once evidence has been taken in a suit, that suit is considered to be part-heard, and that as this was the position in the instant case, the proper order which the lower court ought to have made was one dismissing the suit and not an order striking it out. It is the stance of the Appellant that the Respondent knew that he has no good case, and was using delay tactic to frustrate and embarrass him (Appellant). That in the circumstances the lower court ought to have dismissed the suit instead of striking it out as striking out the suit would enable the Respondent to re-list it, and continue in his mischievous way to frustrate and embarrass him (Appellant). That for these reasons, an order of dismissal was more appropriate and the case of Oforgu V. Allanah (2000) 2 NWLR (Pt. 644) 243 at 255 was cited in aid. The Appellant urged the Court to hold that the proper order the lower court ought to have made was one dismissing the instant part-heard suit which the learned trial Judge had seen and observed that the Respondent was not serious in prosecuting but wanted the court to be waiting for him.
In dwelling on the issue he formulated for the determination of the appeal, (and which I have already stated, is the same in purport as the issue formulated by the Appellant), the Respondent too referred extensively to the facts and circumstances of the case that resulted in the order of striking out made by the lower court. The Respondent having particularly strongly disagreed with submission of the Appellant that he (Respondent) knows that he has no good case, and was using delay tactic to frustrate and embarrass him (Appellant), referred to circumstances in record that went to show that he (Appellant) had always been very desirous of pursuing his case. It is the stance of the Respondent that it is most difficult to decipher from the circumstances in the record how the Appellant came to the conclusion he (Respondent) had no good case and was using delay tactic to frustrate and embarrass the Appellant when he (Respondent) was still giving his evidence-in-chief when the case was terminated. The Respondent submitted that the case Oforgu v. Allanah (supra) cited by the Appellant is no authority for the position being canvassed by the Appellant to wit that the instant suit must be dismissed as hearing has commenced therein. The Respondent referred to Order 38 Rules 9 and 10 of the Federal High Court (Civil Procedure) Rules 2000 as vesting the lower court with absolute discretion as to the line of action to take when one of the parties in a matter before it failed to appear. And that even if judgment was delivered in a matter because of the absence of one of the parties, the lower court could still set it aside on the application of the party in default of appearance. Having also canvassed arguments that went to show that the lower court did not give due consideration to the adjournment he sought, the Respondent submitted that it was wrong of the lower court to have struck out the instant suit in the first place and that having struck it out, it was most unreasonable to argue as the Appellant has done, that the suit should have been dismissed.
The issue formulated by the Appellant for the determination of the appeal, in my considered view clearly admits of the correctness of the decision of the learned trial Judge to terminate the Respondent’s action at the point in time that the learned trial Judge did so. It is the mode of termination of the Respondent’s suit by the lower court that the Appellant questions. This is because the Appellant is of the view that the case being part-heard ought to have been dismissed and not struck out. The Appellant has not referred to any provision of the Rules of the lower court that supports his stance that whenever a part-heard matter is to be terminated, this must be done by an order dismissing the same and not by a striking out order.
The law is settled as to the distinction between an order dismissing a cause or matter and an order striking the same out, as well as the consequences of the two modes of termination of a cause or matter. The striking out of a case by a court invariably leaves the plaintiff with the option of reviving the case and having it placed back on the cause list at anytime subject to showing good cause. Indeed, if the plaintiffs cause of action is not already caught by any relevant or applicable statute of limitation, he can simply proceed to file a new action, On the other hand, an order dismissing a case, does not allow for the resuscitation of the case in question. Related to this is the application of the principles of estoppel per rem judicatam. While the plea of estoppel per rem judicatam does not apply in respect of a suit that is struck out, it applies in respect of a suit that has been dismissed. It would therefore appear that the Appellant is challenging the decision of the lower court striking out the instant suit for lack of diligent prosecution as he wants the Respondent barred from reviving his action for all times.

The Supreme Court had cause to dwell on the dismissal of a matter for want of diligent prosecution in the case of S&D CONSTRUCTION CO. LTD V. AYOKU (2011) 46 WRN 1. Therein Adekeye, JSC; in her concurring judgment stated thus: –
“… The power of dismiss for want of diligent prosecution, though allowed by the rules of court should be sparingly used. The rationale, following the decision of this court in the case of Unilag v. Aigoro (1985) All NLR (Pt 1) 58 at 69; (1985) 1 NWLR (Pt 1) 143, (1985) 15 NSCC 745; (1985) 1 SC 265 is that “unless and until the court has pronounced judgment upon the merits or by consent, it ought to use the power which it certainly has to punish any mistake or blunder committed by either parties or their counsel by an imposition of costs or terms and do everything possible to keep cases alive and hear them on their merits, rather than applying the guillotine of dismissal for want of prosecution.
In the circumstance of power of court to dismiss a case due to failure of plaintiff to appear at the hearing, the principles applicable are:
a. Although the rules talks of dismissal, the courts in practice merely strike out the suit in order to allow the plaintiff an opportunity to come back and re-litigate the matter, if he so desires since such has not been heard or decided on its merit,
b. The discretion given to the Judge to dismiss under this rule must be judicially and judiciously exercised devoid of arbitrariness,
c. For the defendant’s application to dismiss to succeed, he must show:
i. That there had been an inordinate delay by the plaintiff and what is inordinate depends on the facts of each case.
ii. That such inordinate delay is inexcusable meaning until credible evidence is given; the natural inference is that it is inexcusable.
iii. That the defendant is likely to be seriously prejudiced by such delay and the longer the delay, the more likelihood of seriously prejudiced by such delay and the longer the delay, the more likelihood of serious prejudice.
iv. If there has been inordinate delay due to negligence of counsel whilst the plaintiff is personally blameless, it will be unjust to deprive him of the chance of prosecuting his claim.
v. Unless the court not a bar to the plaintiff bringing another action based upon same facts as dismissal under this rule is always interpreted as mere striking out.
vi. Courts of law should always loathe to dismiss when there is no hearing on the merits.”
It is clear from the record of appeal that the lower court on 1/3/2005, was not faced with any application made to it by the Appellant seeking for the termination of the Respondent’s case for any reason whatsoever, talk less of the termination of the said action by an order dismissing it for want of diligent prosecution. The record of appeal undoubtedly shows that when the instant case was called on 1/3/2005, the lower court had actual notice of a letter by which an adjournment of the hearing of the case made at the instance of the Respondent. This clearly shows that the Respondent cannot be said to have been seeking for the withdrawal of his case from court for any reason whatsoever at the point in time that the lower court decided to terminate the said case for lack of diligent prosecution. In the circumstances, authorities that allow a court to dismiss a matter fixed for hearing when the plaintiff applies to withdraw the case after the case had been so fixed for hearing, do not apply to the instant case. In this regard, see the case of RODRIGUES & ORS. V. THE PUBLIC TRUSTEE & ORS (1997) 4 SC (Reprint) 17.
It is clear from the case of S&D CONSTRUCTION CO. LTD (supra) that when a court is confronted with an application to dismiss a case for lack of diligent prosecution, the court concerned is being called upon to exercise its discretionary power concerning the termination of the case and that even in such a situation, the court in the proper exercise of its discretionary power, must be slow to dismiss such a case. That it is a more proper exercise of discretion for the court to strike out such a case that is not being diligently prosecuted. It is my considered view that the need for a court to exercise its discretion by striking out a case that is not being prosecuted diligently is more compelling in a situation where it is the court that on its own sees the wisdom in terminating the plaintiff’s case as in the instant case. This is particularly so as it is also obvious from the record of appeal in respect of the instant case that the Respondent (i.e. Plaintiff before the lower court) who was testifying as PW1 was yet to complete his evidence in chief talk less of his having been cross-examined. In the peculiar situation of the instant case there was simply no evidence the lower court could rely upon to justify a dismissal of the Respondent’s case thereby bringing into play the attendant severe consequences of an order of dismissal. In this regard, see the case of OBASI BROTHERS MERCHANT CO. LTD V. MERCHANT BANK OF AFRICA SECURITIES LTD [2005] ALL FWLR (Pt.261) 216 wherein the Supreme Court dwelling on when the discontinuance of a suit will attract an order of dismissal stated at page 232 thus: –
“…When a party who has filed an action in court commenced giving evidence which is in conflict with the facts pleaded and raised such confusion that it becomes difficult to determine whether the plaintiff knows the facts of his case, and at a stage he asks the court to strike out the case, the court should dismiss it because there is nothing more to urge on the court as the case sought to be put forward is visionless and worthless.”
The issue which the Appellant formulated for the determination of his appeal is to the effect as to whether a part-hear matter ought to be struck out or dismissed. I am of the considered view that it has hereinbefore been sufficiently demonstrated that this is not and cannot be the position of the law in all situations and that in the peculiar circumstances of the instant case which the learned trial Judge found as not being diligently prosecuted, he could not have rightly dismissed the said case. From all that has been said, the issue formulated by the Appellant for the determination of the main appeal must be and is hereby resolved against him.
CROSS-APPEAL.
The issues formulated by the parties for the determination of the cross-appeal have hereinbefore been set out in the main appeal. The issues formulated by the parties in any event are ipsissima verba.
Dwelling on his issue 1 the Respondent having made it clear that proceedings on 1/3/2005 when the lower court struck out his case for want of diligent prosecution took place in the Chambers of the learned trial Judge cited the case of Ikeazor v. Ikeazor (1994) 5 NWLR (Pt. 346) 609 at 623 in aid of his stance that the learned trial Judge was duty bound to have ruled on the application for adjournment placed before him and to have pronounced on the merit of the same. The Respondent not only submitted that it was obvious on the face of the ruling of the lower court that the learned trial Judge never ruled on his application for adjournment but that it was not for the learned trial Judge to insist that Chief Ugolo should have been available to continue with the case. That the position of the learned trial Judge in this regard runs counter to the position of the law and the case of Ceekay Traders Ltd. v. General Motors Co. Ltd (1992) 2 NWLR (Pt 222) 132 at 163 was cited in aid. The Respondent also submitted that as the application for adjournment was based on the sudden illness of counsel, the learned trial Judge clearly did not advert to the law that the sins of counsel should not be visited on the party in striking out the case. The cases of Okafor v. Bendel Newspapers Corporation (1991) 7 NWLR (Part 206) 651 at 666; and Onsachi v. Orji (1993) 3 NWLR (Pt.284) 734 at 745, were cited in aid.
Dwelling on his issue 2, the Respondent submitted that it was wrong of the learned trial Judge who sat in Chambers not to have adjourned the instant case like he did the other cases before him, on that date. That the learned trial Judge instead of dealing with the instant case in the same manner that he dealt with others, proceeded to strike out the same on an issue he raised suo motu without giving the parties the opportunity to be heard. The case of Okonkwo v. Kpajie (1992) 2 NWLR (Pt. 226) 633 at 656 was cited in aid. The Respondent also submitted that a court of law is enjoined under Section 36(3) of the 1999 Constitution to sit in the open for the determination of the civil rights and obligations of the parties. That where the court sits in Chambers for the determination of the civil rights and obligations of the parties, the proceedings suffer a fundamental vice which will vitiate the entire proceedings and render any judgment delivered in such a matter, null and void. The case of Menakaya v. Menakaya (2001) 16 NWLR (Pt.738) 203 at 249 was cited in aid.
In dwelling on his issue 1, the Appellant submitted that the lower court was absolutely right in law when it struck out the instant suit and that the learned trial Judge ruled on the application for adjournment. The Appellant stated to the effect that the lower court has the discretion as to whether or not to grant an adjournment and cited the cases of Ceekay Traders Ltd. v. Gen. Motors Co. Ltd (supra); and Ntukidem v. Oko (1986) 5 NWLR (Pt. 45) 909 in aid.
Dwelling on his issue 2, the Appellant submitted that the learned trial Judge was absolutely and partly right in law when he struck out the instant case on 1/3/2005. (Underlining provided by me as I do not comprehend what the Appellant means). This is against the backdrop that the court sat on 1/3/2005 and normal court proceedings took place and as the Respondent and his counsel were not in court. It is the stance of the Appellant that the learned trial Judge sat on 1/3/2005 which was a working day and that the Respondent and his counsel being fully aware that the case was fixed for that date, ought to have been in court and that their absence was an indirect way of discontinuing the case in the knowledge that the Respondent had no good case to prove. The Appellant having submitted again that the position of the law is that a part-heard case that is not being diligently prosecuted should attract an order of dismissal and not one of striking out, urged the court to dismiss the appeal and make a proper order dismissing the instant case.
It is in my considered view clear as crystal that the Respondent having regard to his issue 2 which is stated to be distilled from grounds 2, 3 and 5 of his grounds of appeal, has based his arguments predominantly on what is said to have transpired in the Chambers of the learned trial Judge. The arguments clearly have or find no basis in the record of appeal before the Court. The record of appeal on its face does not portray the learned trial Judge to have sat in Chambers at anytime to entertain any aspect of the instant case. The position in the instant appeal concerning Respondent’s issue 2, is not dissimilar from what obtained in the case of AMEDU V. FEDERAL REPUBLIC OF NIGERIA (2009) 22 WRN 163. In the case under reference, one of the grounds of appeal and the issue distilled therefrom questioned the propriety of the learned trial Judge in delivering his ruling in Chambers against the backdrop of the provisions of the Constitution of the Federal Republic of Nigeria, 1999. In dealing with the said issue 1, in the case under reference, this is what I stated at pages 172 – 175: –
“It is no doubt the position of the law, that the record of proceedings of a court is recognized as being the only indication of what took place in court. This is however not to say that the record of proceedings of a court is always sacrosanct. This is definitely not the case. This is because the law allows any party to the proceedings to contest or impugn the validity of the record of proceedings of a court. To do this, the party contending that the record of proceedings before an appellate court is not a far record of what happened at the court of first instance must formally impeach the same and if it is successfully impeached then the appellate court will act on the record of proceedings as shown that it ought to have been. See CYRIACUS OGIDI & ORS V. THE STATE (2005) All FWLR (Pt.251) 202 at 216. The procedure laid down by law for impugning the record of proceedings of a court is for the party challenging the same to swear to an affidavit setting out the fact that was omitted or wrongly stated in the record. Such affidavit is to be served on the Judge and/or the Registry of the court concerned as well as counsel on the other side, See GONZEE NIGERIA LTD V. NIGERIAN EDUCATIONAL RESEARCH AND DEVELOPMENT COUNCIL & ORS [2005] All FWLR (Pt. 274) 235 at 245; and UNITED BANK FOR AFRICA PLC V. SAMUEL IGELLE UJOR (2001) 10 NWLR (Pt.722) 89 at 600-601.
Given all that I have said, I therefore do not find the Appellant to have successfully impeached the record of proceedings of the lower court that was transmitted to this Court. As the correctness of the record of appeal before this Court has not been successfully impugned, the issue formulated by the Appellant concerning the delivery of the Ruling of 28/4/2005 by the learned trial Judge in chambers is rendered baseless and thereby liable to collapse as the ground of appeal from which it is derived finds no support in the record of proceeding…”
In the Amedu case (supra) there was even an attempt to impugn the record of appeal therein but this was not successfully done. In the instant appeal no such attempt was made, and yet the Respondent having not first successfully impugned the record of appeal, has distilled and argued his Issue 2, relying on what happened in the Chambers of the learned trial Judge. I am in no doubt at all, that the grounds of appeal based on what happened in the Chambers of the learned trial Judge and issue 2 distilled therefrom, must be discountenanced and is hereby discountenanced, as they find no support in the record of appeal before the Court.
The Respondent has strongly contended that the learned trial Judge did not give due consideration to the application for the adjournment of the instant case placed before the lower court on 1/3/2005, before the learned trial Judge struck out the case for lack of diligent prosecution. As expected, the Appellant has strongly contended that the learned trial Judge did, and was not only correct in terminating the case but has also urged this Court to now enter an order dismissing the instant case.
It is settled law that the decision whether or not to grant an adjournment when sought by any of the parties in an action is at the total discretion of the court to which the application for adjournment has been made. Though the decision whether or not to grant an adjournment is at the discretion of the court, it is also settled law that the court must show on the face of its proceedings that it acted judicially and judiciously in granting or refusing the adjournment. See in this regard the case of ATTORNEY-GENERAL OF RIVERS STATE V. UDE & ORS (2007) All FWLR (Pt. 347) 598 wherein the Supreme Court per Katsina-Alu, JSC; (as he then was) stated thus at pages 617 – 618:-
“It is now settled that it is a matter within the discretion of the court whether or not to grant an adjournment. But that discretion must at all times be exercised not only judicially but also judiciously. It is the duty of a Judge to state clearly whether he grants or refuses an adjournment and his reason for doing so and it should be apparent from the record that he gave careful consideration for his decision: Udo v. State (1988) 3 NWLR (Pt. 82) 316.

In matters of discretion, no one can be authority for another and the court cannot be bound by a previous decision to exercise its discretion in a particular way, because that would be as it were, putting an end to the discretion: Ceekay Traders Ltd v. General Motors Co. Ltd. (1992) 2 NWLR (Pt. 222) 132 at 147. Clearly, adjournments and control of proceedings are matters within the discretion of the trial Judge which discretion must be exercised judicially and judiciously.”
See also the cases of BILL CONSTRUCTION CO. LTD V. IMANI & SONS LTD/SHELL TRUSTEES LTD [2007] All FWLR (Pt. 348) 806; OBOMHENSE V. ERHAHON (1993) 7 SCNJ (part II) 479; and SALU V. EGEIBON (1994) 6 SCNJ (part II) 223. Indeed in the Ceekay case (supra) the Supreme Court while stating to the effect that an appellate court should not interfere with the discretion of the trial court on the ground that it would have exercised it differently if it were in a position to do so, made it abundantly clear that an appellate court can always interfere with the exercise by a trial court of its discretion if the appellate court is satisfied that it is in the interest of justice to do so.
The instant case first came up before the lower court as presided over by the learned trial Judge that struck it out for lack of diligent prosecution on 1/3/2005, on 2/12/2003 and it was on the said 2/12/2003 adjourned till 17/2/2004 for trial. Hearing duly commenced in the case on 17/2/2004 with the Respondent giving evidence as PW1. The case was on the date adjourned till 25th and 26th May, 2004, for continued hearing at the instance of the court. On 25/5/2004, hearing continued in the case as scheduled but had to be brought to an end on the said date and the case subsequently adjourned till 14/7/2004, for continuation of hearing as a result of the indication earlier made in the day by learned counsel for the Appellant that he had a burial ceremony in which he was to participate the next day. Continued hearing on 14/7/2004 was aborted and the case subsequently adjourned till 25/11/2004, for continuation of hearing as a result of an application for adjournment made by learned counsel for the Appellant. On 25/11/2004, hearing in the case had to be adjourned till 1/3/2005 and 23/3/2005, upon the application of learned counsel who held the brief of Chief O. Ugolo for the Respondent on the ground that Chief O. Ugolo had a case in the Court of Appeal. On 1/3/2005, when the case came up for hearing, the Respondent was not in court; likewise his counsel. Respondent’s counsel however wrote a letter to the court applying for the adjournment of the case. The learned trial Judge having noted that “Learned counsel to the plaintiff wrote a letter seeking for an adjournment” proceeded to rule thus: –
“Court: The letter written to the court on behalf of learned counsel Chief Ugolo sought for an adjournment because one Amaechi Onyekwuluje is ill. It was learned counsel who started trial in this matter and has personally been consistently appearing for the plaintiff there is, therefore, no cogent explanation why Chief Ugolo is absent in court. This matter is hereby struck out for want of prosecution.”
It is in my considered view most glaring from the ruling of the lower court as re-produced above, that the learned trial Judge did not expressly grant or refuse the adjournment sought. The fact of the refusal of the adjournment is only inferable or implied from the statement of the learned trial Judge that there is no cogent explanation for the absence of Chief Ugolo. Be that as it may. It would however appear clear that while the learned trial Judge made a note that the Plaintiff’s (i.e. Respondent) counsel wrote a letter seeking for adjournment, in his consideration of the request for adjournment, he not only glaringly refused to accept the author of the letter placed before him as Plaintiff’s counsel on that date – 1/3/2005, but also failed totally to consider at all the adequacy of the reason given by the said Plaintiff’s counsel for seeking for the indulgence of an adjournment. The learned trial Judge on the face of his ruling decided to choose who he believed to be the Plaintiff’s counsel going by previous appearances in the case and found no cogent reason/explanation for the absence of the said counsel. I wonder how he could have expected any explanation in this regard at all, when the letter for adjournment was not stated to have been written for and on behalf of any such person even going by the note made by the learned trial Judge himself. Aside from this, the learned trial Judge never disclosed on the face of his ruling that he heard from any other party in the case concerning the application for adjournment that confronted him before he willy-nilly or arbitrarily struck out the Respondent’s case. True it is that the Appellant has not complained about his not having been invited by the lower court to express his view in relation to the adjournment sought by the Respondent. In my considered view, this however does not save the glaring blunder committed by the learned trial Judge in taking his stance, that implied a rejection of the adjournment sought. This is because, in order that it can be said that the lower court acted judicially and judiciously in relation to the adjournment sought by the Respondent, the record of proceedings in relation to the application for adjournment, in my considered view should on its face leave no one in doubt that the lower court acted in accordance with all necessary principles put in place by the law to give the court’s decision the attributes of a judicial and judicious exercise of discretion. The proceeding of the lower court whereat the learned trial Judge ruled and struck out the Respondent’s case for lack of diligent prosecution clearly does not depict the learned trial Judge of having acted judicially and judiciously concerning the adjournment sought by the Respondent on 1/3/2005.
Flowing from all that has been said is that issue 1 under consideration must be and is hereby resolved in favour of the Respondent as the ruling of the learned trial Judge has not disclosed him to have acted judicially and judiciously in respect of the application for adjournment which culminated in the striking out of the Respondent’s case for lack of diligent prosecution.
In the final analysis, the main appeal is found to be unmeritorious and is hereby dismissed as there was simply no basis upon which the lower court could have rightly dismissed the Respondent’s case for lack of diligent prosecution.
Having also resolved issue 1 formulated for the determination of the cross-appeal by the parties in favour of the Respondent, I find the cross-appeal to be meritorious. The cross-appeal therefore succeeds and is allowed. Accordingly, the ruling of the lower court delivered on 1/3/2005 striking out the instant case (i.e. Suit No. FHC/AN/35/98) on the ground of lack of diligent prosecution, is hereby set aside. It is ordered that the case should be remitted to the Chief Judge of the Federal High Court for its assignment to another trial Judge for it to be heard de novo.
Costs in the sum of N40, 000.00 is awarded in favour of the Respondent and against the Appellant in respect of the two appeals.

ABUBAKAR JEGA ABDUL-KADIR J.C.A.: I have read before now the Judgment of my learned brother Lokulo-Sodipe, JCA just delivered and I agree entirely that the appeal is devoid of any merit and ought to be dismissed and I am also in complete agreement with him that the cross-appeal is meritorious and should be allowed, accordingly I dismiss the appeal for lacking in merit and equally allow the cross-appeal.
I abide by all the consequential orders made in the lead Judgment including the order as to costs.

ISAIAH OLUFEMI AKEJU, J.C.A.: My learned brother, AYOBODE OLUJIMI LOKULO-SODIPE, JCA gave me the opportunity of reading before now the draft of the lead judgment just delivered. I am in full agreement with the conclusion reached in respect of the main appeal and cross appeal based on the sound reasons advanced therefore. I too dismiss the main appeal and allow the cross appeal while I abide by the consequential order in the lead judgment, including the award of costs.

Appearances

Obinna ObettaFor Appellant

AND

Chief I.M. AnahFor Respondent