MRS. CAROLINE AGBODIKE v. MR. EMEKA AGBODIKE
(2016)LCN/8280(CA)
In The Court of Appeal of Nigeria
On Thursday, the 10th day of March, 2016
CA/E/319/2008
RATIO
COURT: THE EXERCISE OF JUDICIAL DISCRETION; HOW THE COURT CAN EXERCISE A JUST AND PROPER DISCRETION
Indeed Judicial Discretion must be exercised on fixed principles of equity and reason to both sides. Exercise of discretion must be justifiable. – UBA v. STAHLBAU GMBH & CO. K.G. 1989 3 NWLR (Pt. 110) pg. 374/379.Let me quickly observe that there is no hard and fast rule as to the exercise of a judicial discretion by a Court, because if such happens, the discretion becomes fettered. Facts must exist before discretion is exercised. In order to exercise a just and proper discretion; the facts of the case must be available and be reasonably appreciated. See EZEIGWE & 2 ORS v. NWAWULU & 2 ORS (2010) 2-3 S.C, (Pt. 1) 35 @ 36.In this present case, the lower Court, having been seized of the motion to relist, with an accompanying affidavit, he should have considered it instead of just saying “application to relist the suit is refused”. More so, as earlier observed, the Court failed to state what the so called new rules of Court are.In FOLORUNSHO v. FOLORUNSHO (1996) 5 NWLR (Pt. 450) @ 612 it was held inter alia that a Court in exercising its discretion is not bound by precedence, because no two cases are exactly alike. Where a Court is bound by precedence in discretion; it will in effect put an end to discretion of the Court. per. RITA NOSAKHARE PEMU, J.C.A.
JUSTICES:
RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria
EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria
MISITURA OMODERE BOLAJI-YUSUFF Justice of The Court of Appeal of Nigeria
Between
MRS. CAROLINE AGBODIKE – Appellant(s)
AND
MR. EMEKA AGBODIKE – Respondent(s)
RITA NOSAKHARE PEMU, J.C.A. (Delivering the Leading Judgment): This Appeal is against the Ruling of Honourable Justice P. A. C. Obidigwe sitting at the Nnewi Judicial Division of the High Court of Anambra State, delivered on the 3rd of March 2008.
In the Ruling, the lower Court refused the application to relist Suit No. HN/69/2002 struck out on the 16th day of May 2007.
SYNOPSIS OF FACTS
The Suit, the subject matter of this Appeal was instituted by Ordinary writ of summons filed on the 18th of April 2002. – Page 5 of the Record of Appeal.
In Paragraph 26 (1) and (11) of the Statement of Claim filed on the 18th of April 2002, the Appellant (Plaintiff in the Court below,) claims from the Defendant (Respondent in the present case) the following:
i) N10,000,000.00 (Ten million naira) being special, general and exemplary damages from the Defendant for his unlawful act.
ii) An order of perpetual injunction restraining the defendant by himself, agents, servants and privies, from engaging the Plaintiff in any discussion or issue concerning the above land.
Hearing of the suit commenced on the 18th of April 2002. The
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Defendant/Respondent could not be served and on the 11th of June, 2002, he was served by substituted means following an order of the Court.
The Respondent did not attend Court until the 22nd of November 2004, and this was after the Appellant filed and served on him, a motion for Judgment on the 25th of June 2003. – Page 9 of the Record of Appeal.
The hearing of the Suit commenced, and the Appellant testified after amendments were made to the pleadings.
On the 16th of May 2007, when the matter came up for hearing, the Appellant and her counsel were absent from Court. There was no letter to Court explaining their absence.
The Defendant’s counsel sought that the motion be struck out and the Court obliged him.
Vide motion on notice filed on the 20th day of August 2007, the Appellant applied to Court to relist the case as his absence from Court on the 16th of May 2007 was due to ill health.
The motion to relist could not be served on the appellant readily and another motion for substituted service was served on the Respondent.
He filed no Counter Affidavit to the application.
The lower Court refused
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the application to relist, and the Appellant, pursuant to the Practice Direction of this Honourable Court, filed a Notice of Appeal on the 14th of March 2008. – Pages 51-52 of the Record of Appeal. He is appealing the decision of the lower Court.
On the 14th of February 2011, the Appellant filed an amended Notice of Appeal encapsulating three (3) Grounds of Appeal.
They are –
GROUND 1
“The learned trial Court erred in law when it refused to grant the Application of the Plaintiff Applicant for an Order re-listing Suit No. HN/69/02, MRS. CAROLINE AGBODIKE v. MR. EMEKA AGBODIKE which was struck out on the 16th day of May, 2007”.
GROUND 2
“The Learned trial Court erred in law when it held that “The reason why both the Plaintiff and her counsel were absent on 16/05/07 when the Suit was struck out were not cogent”.
GROUND 3
“The Learned trial Court erred in law when it held that “No reason was given for the absence of the Plaintiff, Her alleged ill health was faked”.
The Appellant filed her brief of Argument on the 14th of February 2011. It is settled by J. R. Nduka, Esq.
The Respondent’s brief which was
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initially filed on the 5th of November 2008 was deemed filed on the 25h of January 2015. It is settled by Chief G. Oseloka Osuigwe.
The Appellant distilled two (2) issues for determination from the Grounds of Appeal. They are WHETHER –
“1) The reasons adduced by the Plaintiff and Counsel for failure to attend Court on the 16th day of May 2007 could be said not to be cogent.
2) The learned trial High court exercised his discretion judiciously and judicially when he refused the Plaintiff’s application for relistment”.
The Respondent on his part proffered a sole issue for determination in his brief of argument and that is
“Having due regard to the ground of appeal filed in this appeal, it is submitted that the issues for determination is whether the appellant made out a case for the re-listing of the suit struck out in the cause list of the Court as envisaged under the High Court of Anambra State (Civil Procedure) Rules 2006”.
The parties adopted their respective briefs of argument on the 25th of January 2016.
I shall consider this Appeal based on the Appellant’s issues for determination as the sole issue
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for determination of the Respondent can be subsumed in the Appellants issue for determination.
ISSUE NO. 1
“WHETHER THE REASON ADDUCED BY THE PLAINTIFF AND COUNSEL FOR FAILURE TO ATTEND COURT ON THE 16TH DAY OF MAY 2007 COULD BE SAID NOT TO BE COGENT”.
The Appellant submits that the lower court’s reasoning was confusing, as in one breath it said that the reason adduced is not cogent, and in another breath, it said that the Counsel failed to exhibit the Hearing Notice. That yet in one breath the Court said that the Plaintiff advanced no reason for her absence from Court, while in another breath it said that the Plaintiff alleged ill health was faked.
The Appellant submits that this is erroneous on the part of the lower Court, because in the supporting affidavit to the motion of the 20th of August, 2007, the reason for the absence from Court on the 16th of May 2007 by the Plaintiff, and her counsel, were set out therein. That the Defendant filed no counter affidavit challenging the fact in the supporting affidavit to the motion. That the Defendant’s Counsel did not even challenge the facts orally in Court.
The Appellant argues
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that facts deposed to in an affidavit when unchallenged, amounts to admission of those facts and such facts will be taken as undisputed facts, citing ENWERE v. C.O.P. (1993) 6 NWLR (Pt. 299) page 333 @ 341; ECO CONSULT LT v. PANCHO VILLA LTD (2000) 3 NWLR (Pt. 647) pg. 141 @ 142-143; EJIDE v. OGUNYEMI (1990) 3 NWLR (Pt. 141) at 758.
Submits that ill health is a cogent reason for not attending court. She also submits that Counsel who receives a Hearing Notice from the Court of Appeal, and went to attend the Court in preference to a High Court has a cogent reason to be absent from the High court.
The Appellant submits that for the lower Court to have said that the Appellant faked her illness is a grave error. This is because the grievance which is being ventilated before the Court throughout is the ill health of the Plaintiff, caused by what she suffered in the hands of the Defendant.
ISSUE NO. 2
WHETHER THE LEARNED TRIAL HIGH COURT EXERCISED HIS DISCRETION JUDICIOUSLY AND JUDICIALLY WHEN HE REFUSED THE PLAINTIFF’S APPLICATION FOR RELISTMENT.
The Appellant submits that a Court would be said to have judicially and judiciously
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exercised its discretion, if it was so exercised in favour of an Applicant who has made out in his affidavit evidence before that court, some special or exceptional circumstances, as to sway the mind of the court to exercise the discretion in his favour. – CLEV JOSH LTD v. TOKIMI (2008) 13 NWLR (Pt. 1104) PAGE 422 @ 438 PARA G-H.
Submits that the reasons stated represent the private opinion of the trial Judge and any discretion based on such opinion cannot be judicial discretion. UGHELLI SOUTH LOCAL GOVERNMENT COUNCIL v. EDOJAKWA (2006) 7 WRN 54 @ 75 PARAGRAPHS 25-30.
She submits that the trial Court, in coming to its decision to refuse the application for relistment ignored the fact that the facts deposed to in the affidavit accompanying the motion, were unchallenged. That by refusing to re-list this case, the Court has shut out for ever the Plaintiff from ventilating her grievance because of the effect of the statute of limitation. That failure to write a letter to court is mistake of Counsel and not that of the Plaintiff, and such mistake should not be visited on the Plaintiff – AKANINWO v. NSIRIM (2008) 9 @ NWLR (Pt. 1093) 439,
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461.
ISSUE NO. 1
From the Record, parties had filed and exchanged pleadings, with amendments.
On the 25th of June 2003, the Plaintiff vide motion on notice, sought an order of Court granting leave to her to prove her case notwithstanding the Defendants’ default of Appearance, and failure to file his statement of Defence.
This is because the Statement of Claim had been filed as far back as the 8th of April 2002. – Pages 2-4 of the Record of Appeal.
From records, the Defendant filed its Statement of Defence on the 22nd of November 2004. – Pages 11-15 of the Record of Appeal.
There is on record evidence that the Respondent could not be served readily, as he refused service, and a motion had to be brought for substituted service on him. Pages 33-34 of the Record of Appeal, and – Page 9 of the Record of Appeal (where the Respondent had refused service of process on him.)
From Records, hearing had commenced in this case on the 5th of October 2005. Indeed on the 21st of June 2005, when the matter came up for hearing, the Plaintiff was reported seriously ill. Her Counsel sought adjournment, indeed long adjournment to
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enable her get well. The matter was then adjourned to the 5th October 2005 – page 41 of the Record of appeal.
The taking of the Appellant’s evidence had continued till 15th of February 2007 when the matter was adjourned to the 16th of May 2007, to enable the parties comply with the new rules and for continuation of hearing. The new rules are the High Court (Civil Procedure Rules) 2006. – Page 48 of the Record of Appeal.
On that 15th of February 2007, the plaintiff only was in Court. – Page 48 of the Record of Appeal.
On the 16th of May 2007 this is what happened in Court and I deem it necessary to reproduce the proceedings verbatim:-
“Parties are absent in Court. Chinyere Ossy-Okoye (Mrs.) for the defendant says the case came up last on 15/02/07 and plaintiff and her Counsel were in Court. No reason for their absence in Court today. They have lost interest in this case. Urges the Court to strike out the Suit for want of diligent prosecution.
COURT:- The record of the Court on 15/02/07 shows that the Plaintiff was present in Court and was represented by her Counsel, J. E. Enemuo, Esq., and both were present when the case
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was adjourned to 16/5/07. No reason is given for the absence of the plaintiff and her Counsel in Court today. They have not even complied with the new rules as ordered by the Court. This case is hereby struck out. I access and fix costs at N3,000.00 in favour of the defendant.
(SGD) P. A. O. OBIDIGWE
JUDGE
16/05/07″.
– Page 48 of the Record of Appeal.
On the 18th of December 2007, vide motion ex-parte, the Appellant sought to serve the Respondent by substituted means, a motion to relist. The matter was adjourned to the 3rd of March 2008 for the hearing of the motion to relist – page 48 of the Record of appeal.
On the 3rd of March 2008, this is what took place at the lower court and I shall reproduce same verbatim:-
“Plaintiff/applicant present. Defendant/respondent absent.
Sam Okorie, Esq. for the plaintiff/applicant.
N. N. Ewim, Esq. for the defendant/respondent.
Okorie: I ask for adjournment. Ewim: I oppose the application for adjourned. Counsel has options to either move the motion or withdraw the motion.
COURT: Application for adjournment is refused. Also application to relist the Suit
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is refused. The reasons why both the Plaintiff and her Counsel were absent on 16/05/07 when the Suit was struck out were not cogent. The learned Counsel failed to exhibit the alleged hearing notice from the Court of Appeal Lagos. No reason was given for the absence of the plaintiff. Her alleged ill health was faked. Neither the plaintiff nor her counsel wrote the Court nor sent somebody to tell the Court. The motion for relistment is hereby struck out”.
– Pages 49-50 of the Record of Appeal.
Above is the proceedings of the 3rd of March 2008.
Now what has the Plaintiff refused to comply with regarding the new rules as ordered by the Court?
I am at a loss as to what that is, and which necessitated the striking out of the Suit on the 16th of May 2007.
At Pages 28-31 of the Record of Appeal, is the motion to relist Suit No. HN/69/02, struck out on the 16th of May 2007, with an accompanying 12 (Twelve) paragraphs affidavit. It also is accompanied by a written address in support of the motion. The motion is dated 18th July 2007 but filed on the 20th of August 2007.
A Cursory look at the body of the affidavit in support
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of the motion shows that it was the Appellant’s Counsel’s fault for the non-appearance of the Appellant in court on the 16th of May 2007.
That is in fact the only reason put forth by the Appellant’s Counsel to necessitate the Court to exercise its discretion in his favour.
In as much as the reason smacks of lack of diligence on part of Counsel, the record shows that the Appellant and his Counsel were in court on the 3rd of March 2008, the date the motion to relist was to be heard. Again let me reproduce verbatim what transpired on that date –
“Plaintiff/applicant present, Defendant/respondent absent.
Sam Okorie, Esq. for the plaintiff/applicant. N. N. Ewim, Esq. for the defendant/respondent.
Okorie: I ask for adjournment.
Ewim: I oppose the application for adjournment. Counsel has option to either move the motion or withdraw the motion.
COURT: Application for adjournment is refused. Also application to relist the suit is refused. The reasons why both the plaintiff and her counsel were absent on 16/05/07, when this Suit was struck out, were not cogent. The learned counsel failed to exhibit the alleged
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hearing notice from the Court of Appeal Lagos. No reason was given for the absence of the plaintiff”.
Paragraphs 2, 3 of the affidavit in support of the motion to relist suit no. HN/69/02 are hereby reproduced verbatim –
Paragraph 2. “That this matter was fixed for hearing on the 16th day of May 2007.
3. That I was served with a hearing notice for a matter at The Court of Appeal Lagos in Suit No. CA/L/508/05 AUSTU CORPS & ORS v. J. C. ONYEKWELU & ORS for the same date”.
I am of the view that this excuse by learned Counsel that he was engaged by a Court of high Jurisdiction is cogent. Even if his client were present in Court, she would not be the one to move her motion.
In striking out an application, the Court should peruse the antecedents of the case, to see whether the parties have been zealous in pursuing their cause.
The Records show, as I earlier observed that the defendant did not file their statement of defence timeously and indeed the Plaintiff had applied to Court to prosecute their matter in the absence of a Statement of Defence.
There is on record, evidence that the Defendant had refused to
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accept service, as earlier observed in this judgment. The Appellant had indeed testified. On the 15th of February 2007 only the Plaintiff was in Court – Page 48 of the Record of Appeal.
In the face of all these, I am of the humble view that the lower court should have soft pedalled.
After all the sins of Counsel should not be visited on a litigant, except where same affects the Jurisdiction of the Court.
The result is that the reason given by a counsel that he had a matter in a higher Court is cogent enough, despite his failure to inform other counsel in his chambers to hold his brief at the High Court.
On the 16th of May 2007, the court proceedings went thus
“Parties are absent in Court. Chinyere Ossy-Okoye (Mrs.) for the defendant says the case came up last on 15/02/07 and Plaintiff and her counsel were in Court. No reason for their absence in Court today. They have lost interest in this case. Urges Court to strike out the Suit for want of diligent prosecution.
COURT:- The record of the Court on 15/02/07 shows that the Plaintiff was present in Court and was represented by her Counsel, J. E. Enemuo, Esq.;
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and both were present when the case was adjourned to 16/5/07. No reason is given for the absence of the plaintiff and her Counsel today. They have not even complied with the new rules ordered by the Court. This case is hereby struck out”
SGD P. A. P. OBIDIGWE
JUDGE
16/05/07.
ISSUE NO. 2
A Painstaking look at the entire picture shows that the lower court acted in excess. What it did was ostensibly in exercise of its discretion. But was this discretion wielded according to law The motion to relist was not challenged by the Respondent, TATAMA v. JALIMI (2003) FWLR (Pt. 181) 1689 @ 1701 PARAS B-C.
Decidedly, to act judicially and judiciously, portends taking into consideration the interest of both sides, weighing them carefully, in order to come to a just and fair conclusion on the matter, while acting judiciously is –
(1) “Proceeding from or showing sound judgment; (2) having or exercising sound judgment and (3) Marked by discretion; wisdom and good sense”.
– BELLO v. EWEKA (1981) 1 SC, 101; AYOOLA v. ODOFIN (1984) 2 SC, 74; LEONARD ERONINI & 4 ORS v. FRANCIS IHEUKO 1989 2 NWLR (Pt. 101)
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46-60.Indeed Judicial Discretion must be exercised on fixed principles of equity and reason to both sides. Exercise of discretion must be justifiable. – UBA v. STAHLBAU GMBH & CO. K.G. 1989 3 NWLR (Pt. 110) pg. 374/379.Let me quickly observe that there is no hard and fast rule as to the exercise of a judicial discretion by a Court, because if such happens, the discretion becomes fettered. Facts must exist before discretion is exercised. In order to exercise a just and proper discretion; the facts of the case must be available and be reasonably appreciated. See EZEIGWE & 2 ORS v. NWAWULU & 2 ORS (2010) 2-3 S.C, (Pt. 1) 35 @ 36.In this present case, the lower Court, having been seized of the motion to relist, with an accompanying affidavit, he should have considered it instead of just saying “application to relist the suit is refused”. More so, as earlier observed, the Court failed to state what the so called new rules of Court are.In FOLORUNSHO v. FOLORUNSHO (1996) 5 NWLR (Pt. 450) @ 612 it was held inter alia that a Court in exercising its discretion is not bound by precedence, because no two cases are exactly
16
alike. Where a Court is bound by precedence in discretion; it will in effect put an end to discretion of the Court.
Rulings, Judgments all come within the ambit of the word “DECISION” And a “sound decision” within the meaning of the word, must provide REASONS for the decision, to give it legal effect. Therefore, any decision without reasons for it is liable to be set aside.
The motion to relist was not objected to, either orally or in writing, by way of a Counter affidavit. The facts deposed to by the Appellant/Applicant in her application to set aside the order of striking out, remain uncontroverted and unchallenged, and the court was obligated to have made a pronouncement on that. This is because, the Respondent is deemed to have admitted the facts in the supporting affidavit to the application. The Ruling of the lower Court of the 16th of May 2007 is bereft of reasons, because as earlier observed, we are not told what the new rules are which the Appellant/Applicant should have complied with.
In all, I am of the view that the lower Court had not exercised its discretion judicially and judiciously.
Issues No. 1 and 2
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are hereby resolved in favour of the Appellant and against the Respondent.
The Appeal succeeds and is hereby allowed.
The Ruling of Hon. Justice P. A. C. Obidigwe of the High Court of Justice Nnewi delivered on the 3rd of March 2008 in Suit No. HN/69/2002 is hereby set aside. The suit shall and is hereby remitted to the Chief Judge of the State for re-assignment to another Judge.
No order as to costs.
EMMANUEL AKOMAYE AGIM, J.C.A.: I had a preview of the judgment delivered by my learned brother, NOSAKHARE PEMU, J.C.A. I agree with reasoning, conclusions and orders therein.
MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.: I had the privilege of reading before now, the judgment delivered by my learned brother RITA NOSAKHARE PEMU, JCA.
I agree with the reasoning and conclusions therein.
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Appearances:
J. R. Nduka, Esq. with K. C. Okpala, Esq. For Appellant(s)
Chief G. O. Osuigwe, Esq. with C. S. G. Anozie, Esq. For Respondent(s)
Appearances
J. R. Nduka, Esq. with K. C. Okpala, Esq. For Appellant
AND
Chief G. O. Osuigwe, Esq. with C. S. G. Anozie, Esq. For Respondent
