MADAM FANTA JAURO ATIKU & ANOR v. YOLA LOCAL GOVERNMENT(2002)

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MADAM FANTA JAURO ATIKU & ANOR v. YOLA LOCAL GOVERNMENT

 2002)LCN/1238(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 18th day of June, 2002

CA/J/138/98

 

JUSTICES

IBRAHIM TANKO MUHAMMAD   Justice of The Court of Appeal of Nigeria

OLUDADE OLADAPO OBADINA   Justice of The Court of Appeal of Nigeria

ISA ABUBAKAR MANGAJI   Justice of The Court of Appeal of Nigeria

Between

 

  1. MADAM FANTA JAURO ATIKU
    2. MALLAM ABDU KAYAHYA GONGOSHI Appellant(s)

AND

YOLA LOCAL GOVERNMENT Respondent(s)

 

OBADINA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of the Adamawa State High Court, sitting at Yola, presided by Honourable Justice Ishaya K. Bunu, in suit no. ADSY/84/92.
In their writ of summons, the appellants as plaintiffs claimed against the respondent as defendant, a declaration among other reliefs, that the 1st plaintiff is still the lawful holder of the title of the land, situate and being in Ngurore…”
The parties filed and exchanged their pleadings. The case was then set down for hearing. At the trial, the plaintiffs called one witness and took a date for continuation of hearing. On the next adjourned date, the plaintiffs/appellants through their counsel, informed the court that the case was being settled out of court, and asked for adjournment. The defendant/respondent did not object to the application for adjournment and the case was adjourned for report of settlement. That was on the 15th September, 1994. The case came up on the 3rd of November, 1994, and the learned Counsel for the plaintiffs/appellants, asked for a date for the parties to file their terms of settlement. The case was adjourned as requested. The parties did not file any terms of settlement. The case came up again, on 1st of February, 1995; the parties and their counsel were absent and the terms of settlement had not been filed. The court then struck out the suit. That was on the 1st day of February, 1995.
Since the case was struck out on the 1st of February, 1995, the plaintiffs/appellants did not file any application to re-list the suit, until the 5th of February, 1997, i.e. 2 years and few days after the suit had been struck out. The application was moved by the learned Counsel for the plaintiffs/appellants and the application was refused by the court. It is against the ruling, refusing the application to re-list that the appellants appealed to this court.
The appellants filed eight(8) grounds of appeal. From the eight (8) grounds of appeal, the appellants formulated six(6) issues for determination. The issues are as follows:-
“(1) Whether in the whole circumstances of this case as disclosed in the affidavit in support of the application to re-list the suit, the learned trial Judge in refusing the application can be said to have exercised his discretion judicially and judiciously;
(2) Whether the ruling of the learned trial Judge is supportable as having been based on sound principles, approach, reasoning, finding and conclusion or whether it is otherwise and perverse and a miscarriage of justice.
(3) Whether the facts in the affidavit evidence were evaluated or properly evaluated by the learned trial Judge
and whether the court arrived at the right decision.
(4) Whether the reference to the time of application for the certified true copy of the ruling striking out the suit sought to be re-listed is relevant.
(5) Whether the delay in bringing the application to re-list the suit is unreasonable in the whole circumstances of  this case and whether the reason for the delay is explained in the affidavit of the applicants.
(6) Whether the application of the appellants to re-list the suit was an attempt at passing the buck to the court”.
From the same eight(8) grounds of appeal filed by the appellants, the respondent distilled only one issue for determination, namely:-
“Whether the learned trial Judge did not exercise his discretion judicially and judiciously and therefore occasioned a miscarriage of justice when he refused the application to re-list”.
A careful look at the issues formulated by the appellants and the appellants brief of argument seems to show that the issues are mere proliferation of issues, asking the same question in so many different ways. The simple issue that arises from the totality of the facts of the case is:-
“Whether or not, the learned trial Judge in refusing the application to re-list the suit properly, judicially and judiciously exercised his discretion. Which is consistent with the issue raised by the respondent.”
I will therefore, approach the appeal on the basis of the issue formulated by the respondent, which I think will adequately dispose of the appeal. The issue raised by the respondent reads as follows:-
“Whether the learned trial Judge did not exercise his discretion judicially and judiciously and therefore occasioned a miscarriage of justice when he refused the application to re-list.”
In arguing the appeal on behalf of the appellants, the learned Counsel for the appellants submitted that in the exercise of the judicial discretion, the court is always guided by the facts and circumstances of the particular case. He argued that the determinant factor has always been to do justice to the parties concerned. He relied on the case of Long-John v. Blakk (1998) 6 NWLR (Pt.555) 524, (1998) 5 SCNJ 68 at 82; Odey v. Akam (1940) 6 WACA 63. He referred to the affidavit of the 2th appellant in support of the application at pages 2-4 of the record of appeal, and argued that there was no lapse on the part of the appellants and the Judge ought to have granted the application to re-list the suit. He argued that it could be (though not conceded) that the appellants’ counsel made a mistake or blunder, in the whole circumstances of the case leading to striking out of the case, such mistakes should not be visited on the appellants. He cited the case of Okafor  v. Bendel Newspapers Corporation (1991) 7 NWLR (Pt.206) 651, (1991) 9-10 SCNJ 107 at 119.
He said it was the appellants’ counsel that advised the appellants that the appellants could stay away from the court, since there was a move to settle. He further stated that after the striking out of the suit, the appellants insisted that the matter should be re-listed, but he, the counsel felt otherwise. He submitted that the ruling of the trial Judge refusing the application to re-list was not supportable in that the learned trial Judge failed to avert his mind to the peculiar facts stated in the affidavit in support of the application. He said that in view of the fact that the affidavit in support of the application was not challenged, the reasoning and approach of the learned Judge was unfair. He referred to the case of Oduba v. Hautmangracht (1997) 6 NWLR (Pt.508) 185, (1997) 5 SCNJ 216. He argued that the learned trial Judge was carried away by the delay in filing the terms of settlement and the delay in filing the application to re-list the suit. He submitted that the two reasons could not justify the refusal of the application. The learned counsel conceded that the appellants urged their counsel to file the motion for re-listing of the suit but the counsel did not. He said that the learned trial Judge did not evaluate the affidavit evidence in support of the application. The learned Counsel further argued that it was not the length of delay that mattered, but the facts and circumstances of the delay. He submitted that the delay of only 2 years could not be said to be unreasonable. He cited the case of Ukwu v.Bunge (1997) 8 NWLR (Pt.518) 527, (1997) 7 SCNJ 262, where a delay of nine (9) years was allowed. He urged the court to set aside the ruling of the trial Judge.
The learned Counsel for the respondent in his own brief, submitted that the trial Judge exercised his discretion judicially and judiciously in refusing the application of the appellants to re-list the suit. He referred to page 13 of the record of appeal, where the learned trial Judge stated that he considered the affidavit of the 2th appellant and he was not satisfied with the facts therein and that the delay was unreasonable. He further argued that the learned trial Judge decided the application according to the peculiar facts and circumstances of the case. He said the decision of the trial Judge in the case is discretionary, which depended on the facts of the case. He relied on the case of Long-John v. Black (supra) at page 83. He argued that the question was not how the Court of appeal would have exercised its discretion, were the application before the Court of Appeal; the question is whether the trial Judge exercised his discretion judicially, and judiciously. He submitted that the trial Judge did exercise his discretion judicially and judiciously and the appeal should be dismissed.
The appellants’ main complaint in this appeal is that the learned trial Judge did not exercise his discretion judicially and judiciously. The law is well settled that an appellate court will not interfere with the exercise of discretion by a lower court simply because faced with a similar application, it would have exercised the discretion differently. See – University of Lagos v. Olaniyan (No.1) (1985) 1 NWLR (Pt. l) 156 at 163; and Worbi & Others v. Asamanyuah & Others (1955) 14 WACA 669 at 671. But it may do so in special circumstances such as where the discretion was exercised on wrong or insufficient material or where no weight or insufficient weight was given to relevant consideration or where the tribunal acted under misconception of law or under misapprehension of fact and in all other cases, where it is in the interest of justice to so interfere. See Enekebe v. Enekebe & Other (1964) 1 All NLR 102; Demuren v. Asuni & Other (1967) 1 All NLR 94; Mobil Oil v. Federal Board of Internal Revenue (1977) 3 Supreme Court  97 at 141.
The learned Counsel for the appellants conceded that the suit was struck out by the trial court for non-appearance of the parties and their counsel on the 1st of February, 1995. He also conceded that the application for re-listing of the suit was not brought until over two years after it was struck out.
In that regard, in the application to re-list the suit after two years that the suit has been struck out, the plaintiffs/ appellants must show –
(1) Good and substantial reasons for their failure to come to court on the date the suit was struck out.
(2) Good and substantial reasons for their delay in bringing the application to re-list the suit. See Williams v. Hope Rising Voluntary Society (1982) 1 All NLR (Pt. 1)  l or (1982) 1-2 Supreme Court 145.
In the affidavit in support of the application for re-listing of the suit, sworn to by the 2nd appellant, the main reasons given by the plaintiffs/appellants are as follows:-
(i) That the counsel told the appellants not to come to court, because the appellants experienced difficulty in coming from the village.
(ii) That when the appellants became aware that the suit had been struck out, the appellants insisted that their counsel should file an application to re-list the suit but he, the counsel felt otherwise, because the process of settlement was still on.
From the two affidavits in support of the application, there is no averment giving any good and substantial reasons why the counsel who had earlier advised the appellants not to come to court, failed to come to court. On the contrary, the learned Counsel stated in his brief that he was unavoidably absent and he instructed his clerk to write to court.
In his ruling dated I7/6/97, now the subject of this appeal, the learned trial Judge after reviewing what had happened in the case from the commencement of the suit, inter-alia stated as follows:
“It is true as per the authorities cited by N.V. Okeke, learned Counsel for the plaintiffs that the court can exercise its discretion and grant such an explanation (sic).
I am however, of the opinion that the granting of such an application is not a matter of course; each application depends on the surrounding circumstances.
I have narrated the circumstances leading to the striking out of the case in the first instance. Added to that,
this application has not been brought until well after 2 years.
I consider this delay to be unreasonable as I am not satisfied with the facts deposed to in the 2nd plaintiff’s
affidavit in support of the application. They have not, to my mind, explained away the delay.”
From the above, I have no doubt that the learned trial Judge averted his mind to the affidavit in support, considered it and came to the conclusion that, he was not satisfied in that the affidavit had not explained away the delay in filing the application for over 2 years after the case was struck out. I think the conclusion of the learned trial Judge, is on sound principle of law that such a delay must be explained with good and substantial reasons, why the appellants and their counsel were absent on the date the suit was struck out. They also must explain to the satisfaction of the trial Judge their failure in filing the application for over 2 years after the striking out of the suit. – See Hope Rising Voluntary Society v. Williams (supra). The Judge clearly stated he was not satisfied with the explanation given by the appellants.
As I stated earlier, it is trite law that appellate court will not interfere with the exercise of discretion of a lower court simply because faced with a similar application, it would have exercised the discretion differently. – See University of Lagos v. Olaniyan (No.1) (supra). The appellate court may however, interfere only where the discretion was exercised on wrong or insufficient material or where no weight or insufficient weight was given to relevant consideration or where the tribunal acted under misconception of law or under misapprehension of facts and in all other cases where it is in the interest of justice to so interfere.
On the facts in this case, I am of the view that the learned trial Judge properly, judicially and judiciously exercised his discretion in this case. His decision was purely based on the facts of the case before him and on sound principle of law. If I may say, I too closely examined the two affidavits in support of the application to re-list the suit and I am not satisfied with the explanation contained therein.
The explanation clearly shows the degree of disregard which the learned Counsel had for the court. He indeed took the court for granted. He conceded he advised the appellants not to come to court when he himself would not come. He could not write to the court himself; on the contrary, he asked a clerk to write to the court. He also admitted that he was instructed by the appellants to file an application to re-list the suit, but in his wisdom, it was not necessary until after 2 years the suit had been struck out. His main argument is that, the sin of the counsel should not be visited on the litigant. I think care must be taken in the application of the principle of not visiting the sins of counsel on his client, otherwise some counsel would be taking liberty for licence. It may also encourage inefficiency.  However, to my mind, the issue of visiting the sins of counsel on the appellants does not arise at all in the instant case. The affidavits in support of the appellants application just did not show any good and substantial reasons neither for why the appellants and counsel were not in court on the day the suit was struck out or for their failure to file the application to re-list within reasonable time.
A discretion is said to be exercised judicially and judiciously, where the discretion is exercised on sound principle of law based on sufficient material and given sufficient weight to relevant consideration.
See – Enekebe v. Enekebe & Other (1964) All NLR 105. The discretion must be exercised strictly on the facts and the circumstances of the particular case.
As the Supreme Court puts it, per Iguh J.S.C., in Long-John v.  Blakk (1998) 6 NWLR (Pt.555) 524, (1998) 5 SCNJ 68 at 83:-
“The discretionary jurisdiction of the court must depend strictly on the facts or circumstances of a given
case. This must be so for as I have already observed, no one case can be authority for another in matters of discretion and the court cannot be bound by previous decisions to exercise its discretion in a particular way, because that would in effect be putting an end to the exercise of discretion.”
The facts in the case of Alhaji J.A. Odutola v. Inspector Kayode  (1994) 2 NWLR (Pt.324) 1, (1994) 2 SCNJ 21, are different from the facts in the instant case. In Odutola’s case, where the appeal on application to re-list an appeal which was struck out two years back, the application to re-list was granted because the Supreme Court found that the appellant/applicant was not served with the hearing notice for the appellant/applicant to come to court on the day the appeal was struck out.
In paragraph 17 of the affidavit in support of the application to re-list, the appellants deposed that in May, 1996, one Mallam Bapetael filed a suit at Namtari Area Court in respect of the same land, the subject matter of this action. I think if both the appellants and their counsel were diligent, they ought to have known that settlement of the case between the parties could not be reached. The issue of the appellants waiting for the settlement before filing application to re-list certainly did not arise. A prudent counsel would have known that settlement out of court is invariably hastened when the action is still in court.
In the final analysis, I see no merit in the appeal and it should be dismissed. I accordingly, dismiss the appeal with (N5.000.00) Five Thousand Naira costs to the respondent.

MUHAMMAD, J.C.A: I have read before now, the judgment of my learned brother, Obadina, J.C.A. I agree with him that the appeal lacks merit. On the matter of exercise of judicial discretion by a trial Judge, I think authorities are agreed that the appeal court will not interfere with the exercise by the lower court, unless such discretion is shown to have been exercised on wrong principles or that the exercise was strained by some illegality or substantial irregularity. See: Anya v. A.N.N. Ltd (1992) 6 NWLR (Pt.247) 319 at 323 – 334.
Further, it has been held that a trial Judge need not give reason, for exercising his discretion. See: Igboanugo v. State (1992) 3 NWLR (Pt.228) 176. For the fuller reasons advanced in the lead judgment, I too dismiss the appeal.
I abide by the consequential orders made in the lead judgment, including order as to costs.

MANGAJI, J.C.A.: I have had the advantage of reading in good time, the leading judgment just delivered by my learned brother, Obadina, J.CA. and I entirely agree with the reasoning and conclusions, contained therein for which the appeal was found to be without merit.
It seems the only issue taken and discussed pertains the question, whether the learned trial Judge in refusing the application seeking to have the suit relisted for hearing did exercise his discretion judicially and judiciously. Undoubtedly, the appellants had waited for so long before thinking of taking appropriate steps to apply to have their suit relisted in the cause list of the court below. It goes without saying that in applications seeking to have struck out suits, relisted the desideratum rests on the following factors:-
(1) Good and substantial reasons for the failure to come to court on the date the suit was struck out.
(2) Good and substantial reasons for the delay in bringing the application to re-list the suit.
See Williams v. Hope Rising Voluntary Society (1982) 1 All NLR (Pt.2) 1. Quite unjustifiably, the appellants failed to file any application seeking for the indulgence of the court to have their suit re-listed until two years after it had been so struck out. Appellants’ supporting affidavit in the court below as well as their further affidavit disclosed no substantial reason why the suit should be relisted.
Given the above background, the learned trial Judge was in my view, correct in refusing to relist the suit. I couldn’t agree more that the learned trial Judge quite rightly exercised his discretion judicially and judiciously. I have no reason to upturn the decision given the obvious fact that this court will not interfere with the exercise by the lower court of its discretion merely, because this court feels given the state of facts before the lower court it could have exercised the discretion differently. See University of Lagos v. Olaniyan (No.1) (1985) 1 NWLR (Pt. 1) 156 at 163.
For the very eluminating discussions in the leading judgment, I too, do hereby dismiss the appeal, it being without merit. I award same costs as is contained in the leading judgment.

Appeal dismissed.

 

Appearances

Nnodu Okeke, Esq.For Appellant

 

AND

  1. K. Jingi, Esq.For Respondent

 

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