MRS MODINAT YETUNDE LADIPO v. OYO STATE GOVERNMENT & ORS.
(2012)LCN/5779(CA)
(2012) LPELR-7991(CA)
In The Court of Appeal of Nigeria
On Monday, the 30th day of April, 2012
CA/I/208/2007
RATIO
COURT: HOW SHOULD THE JUDGES AND COURTS EXERCISE THEIR DISCRETION
The dismissal of the suit by the learned trial Judge for want of prosecution involves exercise of discretion. The question to be borne in mind at all times when reviewing the exercise of discretion therefore is whether the exercise accorded with dictates of Justice. See Unilag v. Aigoro (1985) 1 NWLR (Pt.1) 143 at 175. In M. V. Lupex v. N. O. C & Ors. Ltd. (2003) 15 NWLR (Pt.844) 469 at 488 the apex court per Mohammed JSC had this to say:
“Judges and courts exercise their discretion in accordance with rules of law and Justice and not according to private opinion. An exercise of discretion is a liberty or privilege to decide and act in accordance with what is fair and equitable under the peculiar case, guided by the spirit and principles of law.” PER ADZIRA GANA MSHELIA, J.C.A.
COURT: DESIRABILITY OF THE NEED TO TREAT WITH RESPECT THE EXERCISE OF DISCRETION
The desirability of the need to treat with respect the exercise of discretion by the court of first instance had been emphasised by the apex court per Bairamian J.S.C. in Enekebe vs. Enekebe (1964) All NLR 102 at 107. It is also apt to note the observation of Lord Simon in Charles Osenton vs. Johnston (1942) AC 130 at 138 quoted with approval in Enekebe v. Enekeba (supra), where he said:
“The appellate tribunal is not at liberty merely to substitute its own exercise of discretion for the discretion already exercised by the judge. In order words, appellate authorities ought not to reverse orders merely because they would themselves have exercised the original discretion had it attached to them, in a different way. But if the appellate Tribunal reaches the clear conclusion that there has been a wrongful exercise of discretion in that no weight or no sufficient weight has been given to the relevant considerations then the reversal of the order on appeal may be justified”.
See also Solanke vs. Ajibola (1968) All NLR 46 and Imonike vs. Attorney General (1992) 2 N.S.C.C 480 at 488. PER ADZIRA GANA MSHELIA, J.C.A.
JUSTICE
ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria
MODUPE FASANMI Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
Between
MRS MODINAT YETUNDE LADIPOAppellant(s)
AND
1. OYO STATE GOVERNMENT
2. CIVIL SERVICE COMMISSION, OYO STATE
3. MINISTRY OF WOMEN AFFAIRS, OYO STATE
4. ATTORNEY GENERAL, OYO STATERespondent(s)
ADZIRA GANA MSHELIA, J.C.A. (Delivering the Leading the Judgment): This is an appeal against the judgment of the High Court of Justice Oyo State, Ibadan Judicial Division delivered by Sanda J. on the 6th day of December, 2004.
By a writ of summons and statement of claim dated 5th day of June, 2002, the appellant (as plaintiff) in the court below claimed against the respondents the following reliefs:-
(a) A DECLARATION that the letter dated 31st day of January, 2004 purportedly dismissing the plaintiff from employment is ultra vires the defendant, illegal, null and void and of no effect whatsoever.
(b) AN ORDER directing the defendants to reinstate the plaintiff to his post as principal confidential secretary GL. 12.
(c) AN ORDER OF PERPETUAL INJUNCTION restraining the defendants, whether by themselves their agents, privies and or servants from acting on implementing the contents of the aforesaid letter in any manner whatsoever and however.
Issues were joined by parties. Respondents as Defendants before the lower court filed a 35 paragraph amended statement of defence. Trial commenced. There were several adjournments at the instance of the parties until 15th July, 2004 when appellant’s counsel informed the court that settlement out of court has failed. The case was adjourned in absence of the respondents and their counsel to 6th, 7th and 8th December, 2004 for definite hearing with further directive that all witnesses must appear in court. On the 6th December, 2004, neither the plaintiff/Appellant nor her counsel were in court but 1st defendant/respondent was represented in court and defendants/respondents’ counsel was also in court. Respondents’ counsel moved the court to dismiss the case under order 37 rule 8 of the High Court (Civil Procedure) Rules, Oyo State, 2000, The court found in favour of the counsel’s application for dismissal and the Plaintiff/Appellant’s case was dismissed by the trial court under order 37 Rule 8 of the High Court Civil Procedure Rules, Oyo State, 2000, for want of diligent prosecution. See pages 43-44 of the record.
Aggrieved with the Judgment of 6/12/04, appellant lodged an appeal to this court vide her Notice of Appeal dated 6/12/07 containing sole ground of appeal, appearing at pages 51-52 of the record. The sole Ground of Appeal read thus:-
“GROUND OF APPEAL
The learned Justice, A. Sanda did not exercise his discretion judicially and judiciously by dismissing the Appellant’s suit on the 6th day of December, 2005.
PARTICULARS OF ERROR
(a) The honourable Judge should have taken into consideration the wildly publicized national strike called by the Judicial Staff Association of Nigeria, which commenced the 6th December, 2005.
(b) The honourable Judge should have also taken into consideration that for the 14 times the suit was adjourned that the Appellant and his counsel never failed for once to attend court proceedings.”
In compliance with the rules of court Appellant filed Appellant’s brief of Argument on 30/11/07, while the respondents’ brief of argument dated 27/10/08 was filed on 28/10/08 but deemed properly filed on 3/02/09. When the appeal came up for hearing on 5/3/12 Respondents who were duly served with hearing notice through Ministry of Justice, Oyo State on 2/3/12 did not appear in court. As there was evidence of service the appellant was allowed to proceed since the appeal was fixed for hearing. Appellant’s counsel Ijeh Esq. adopted Appellant’s brief of argument and urged the court to allow the appeal. The court invoked order 18 Rule 9(4) of the court of Appeal Rules, 2011 and deemed the Respondent’s brief of argument dated 27/10/08 and filed on 28/10/08 as duly argued.
Appellant formulated two issued for determination as follows:
1. Whether the learned Judge exercised his discretion judicially and judiciously by dismissing the appellant suit on the 6th day of December, 2004.
I wish to note that at the hearing of the appeal appellant’s counsel abandoned this issue. Issue No 1 is hereby struck out.
2. Whether his Lordship was right in the exercise of his discretion in dismissing the plaintiff’s suit for want of diligent prosecution.
Respondents similarly formulated sole issue for determination as follows:-
“Whether the dismissal of the plaintiff’s suit by the trial court was justifiable in law.”
In determining the appeal, I will be guided by the appellants issue No. 2 Respondent’s sole issue could be conveniently taken along with appellants issue No.2.
Learned counsel submitted under issue 2 that the several adjournments suffered by this suit were never at the instance of the appellant or his counsel. That for the 12 appearance in court the appellant and his counsel were always in court before the Attorney-General of Oyo State invited the appellant for a meeting in his office for a proposed settlement out of court by parties. That as a result of the meeting appellant’s counsel informed the court about the proposed settlement on the 6th of August, 2003 and the case was adjourned to the 20th of January, 2004. Learned counsel submitted that when the matter came up in court on the 31st of March, 2004 27th May, 2004 and 15th July, 2004 the court was informed that settlement was still in progress. That when the learned trial judge felt there was delay decided that the matter should go to trial and adjourned the case to 6th, 7th and 8th December, 2004 for hearing. That on 6th December, 2004, the suit was dismissed for want of diligent prosecution. Learned counsel placed reliance on the case of Usikaro vs. Itsekiri land Trustees (1991) 2 NWLR (Pt. 172) 150 and contended that the conditions that constitutes inordinate delay in the prosecution of an action are not present in this case. That the adjournment granted by the court was for possible settlement out of court. Learned counsel argued that had the learned trial judge exercised his discretion judicially and judiciously he would not have dismissed the suit on the 6th of December, 2004. Reliance was placed on Echaka cattle Ranch Ltd. v. N.A.C.B. Ltd. (1993) 8 NWLR (Pt. 30) 22 paras. 8. Learned counsel urged the court to look into the decision of the lower court to determine whether it exercised its discretion judiciously and judicially by dismissing the appellant’s suit on the 6th of December, 2004. Learned counsel relied on the case of Oyeyemi & Ors. v. Irewole Local Government, Ikire & Ors. (1993) 1 NWLR (Pt.270) 462 to stress the definition of judicial discretion and urged the court to revisit the exercise of discretion by the court below.
In response, as presented in the brief of argument, respondent’s counsel commenced his argument by stating briefly the background facts leading to the dismissal of the suit. Learned counsel submitted that it behove a party or through his or her counsel to be present in court on any date the case is to come up for hearing and failure of such party to be present by himself or herself or through his or her counsel in court, such party could not be heard to complain against the consequential effect of his or her conduct, Reliance was placed on Okparanta v. Ezechi (2007) All FWLR (Pt.358) 1185 at 1193. Learned counsel contended that in the case at hand the appellant and her counsel knew very well that the case was fixed for hearing on 6th December, 2004 but failed to appear in court and gave no reason for their non appearance. That respondents’ counsel was in court together with a witness. It was argued that there was nothing on ground that would have made the court to adjourn the case to any other date. See Onwudinjo v. Dimobi (2004) All FWLR (Pt.234) 1819 at 1837.
Furthermore, learned counsel submitted that the trial court rightly acted, in dismissing the case in line with Order 37 Rule 8 of the High Court (Civil Procedure) Rules of Oyo State. That since the respondents did not admit the appellants’ claim the trial court acted within the purview of the law in dismissing the case. It was also contended that Order 37 Rule 8 is mandatory by the expression “shall be entitled to judgment dismissing the case…” Reliance was placed on Eze v. Ogunwa (2007) All FWLR (Pt.390) 1618 at 1527 paras. G-H and Banna vs. Telepower (Nig.) Ltd. (2006) All FWLR (Pt.334) 1813 at 1826 paras. D-E.
Learned counsel concluded by submitting that the trial court exercised its discretion judiciously and judicially in line with the provisions of Order 37 Rule 8 and the authorities cited.
The dismissal of the suit by the learned trial Judge for want of prosecution involves exercise of discretion. The question to be borne in mind at all times when reviewing the exercise of discretion therefore is whether the exercise accorded with dictates of Justice. See Unilag v. Aigoro (1985) 1 NWLR (Pt.1) 143 at 175. In M. V. Lupex v. N. O. C & Ors. Ltd. (2003) 15 NWLR (Pt.844) 469 at 488 the apex court per Mohammed JSC had this to say:
“Judges and courts exercise their discretion in accordance with rules of law and Justice and not according to private opinion. An exercise of discretion is a liberty or privilege to decide and act in accordance with what is fair and equitable under the peculiar case, guided by the spirit and principles of law.”
I find it convenient at this stage to note the reasons given by the learned trial judge for dismissing the case. Now the relevant record of proceedings for 6.12.04 reads:
“Between
MRS. MODINAT YETUNDE LADIPO
v.
OYO STATE GOVERNMENT & 3 ORS.
(Plaintiff absent).
1st defendant present, represented by Mr. O.M Makinde Deputy Director Women Affairs 2nd-4th defendants absent.
Mr. A. Gbadegesin for the defendants.
No legal representation for the plaintiff.
Mr. A. Gbadegesin prays that the suit be dismissed under Order 37 rule B of the Oyo State High Court Procedure because the defendant has no counter-claim.
JUDGMENT
“…On the 6th of August, 2003 after almost 12 appearance in court for one business or the other Mr. Ibienagbor for plaintiff inform the court that there is settlement being proposed by parties. The court then adjourned the case for either report of settlement or definite trial to the 20th, 21th and 22nd of January 2004. On the 20th of January, 2004 Mr. Igbinebor inform the court that settlement was still going on. Case was then adjourned to 31/3/04 there were several of adjournments from 31/3/04 to 27/05/04 then to 15/7/04. On the 15/7/04 when the court realising that the parties were toying with the several of adjournments for the purpose of delaying the cause of Justice, the court then reserved the 6th, and 7th and 8th December, 2004 for trial in the preserve (sic) and with the consent of the plaintiff’s Counsel Mr. Ibinenagbor. Today the 6th day of December, 2004, neither the plaintiff nor I have conceal it (sic) in court to proceed with the trial whereas the defendant and defendant counsel are in court. At (sic) a court of law is not supposed to allow itself to be used as an instrument of delaying adjudication between parties the court will involve Order 37 Rule 8 and hereby dismiss the plaintiff action for want of diligent prosecution.”
It is clear from the proceedings of 6th December 2004 that plaintiff/Appellant and his counsel were absent in court despite the fact that they were in court on 15th July, 2004 when the case was adjourned to 6th, 7th and 8th December, 2004 for the definite hearing. For clarity and emphasis I will reproduce the proceedings of 15.7.04 as follows:
“BETWEEN
MR. M. Y. LADIPO
v.
OYO STATE GOVERNMENT & 3 OTHERS
Plaintiff present
Defendant absent
Mr. L. Ibienagbor for the plaintiff.
Court: – failure of parties to settle as previously proposed this suit is adjourned for definite trial 6th, 7th and 8th of December, 2004.
Hearing notice must be issued and served on the defendant before the next adjourned date and affidavit of service duly sworn to and be filed in the case file before the next adjourned dated. Parties must assemble their witness on next trial date.”
It is evident from the proceeding reproduced above that the proposed settlement failed and the suit was fixed for hearing by the court with the consent of the appellant and his counsel who were in court. It is therefore not correct as argued by appellant’s counsel that the settlement was still in progress but the court decided to fix the case for hearing to avoid further delay.
I have also noted that appellant and his counsel did not advance any reason for their absence. There was no material placed before the court to entitle the court exercise its discretion in favour of the appellant by granting another adjournment. In other words, there was no application for adjournment of the case filed by the appellant. Counsel to the respondents rightly in my view urged the trial court to invoke Order 37 Rule 8 provides of the Oyo State High Court (Civil Procedure) Rules, 2000 and dismiss the suit for want of diligent prosecution. For clarity Order 37 Rule 8 provides thus:
“If, when a trial is called on, the defendant appears and the plaintiff does not appear, the defendant, if he has no counter-claim, shall be entitled to judgment dismissing the action, but if he has a counter-claim, then he may prove the counter-claim so far as the burden of proof lies upon him.
“Provided that if the defendant admits the cause of action to the full amount claimed, the court may, if it thinks fit, give judgment as if the plaintiff had appeared”.
By the Provisions of Order 37 Rule 8 reproduced supra the trial court is authorised to dismiss the plaintiff’s suit when on the date of hearing the plaintiff is absent and the defendant is present. Since the defendants/respondents in the instant case did not admit the Plaintiff/Appellant’s claim and no counter claim was filed, the trial court acted within the purview of the law in dismissing the case. In other words, the trial court properly exercised its power to dismiss as the plaintiff and his counsel were absent from court on the date fixed for hearing. The Supreme Court in Banna v. Telepower (Nig.) Ltd. (2006) All FWLR 1813 at 1826 paras. D-E while considering a similar provision had this to say:-
“Under Order 37 Rule 8 above, the trial court is authorised to dismiss the plaintiff’s suit when on the date of hearing the plaintiff is absent and the defendant is present. The trial court so exercised its power to dismiss”.
See also Eze v. Ogunwa (2007) All FWLR (Pt. 390) 1618 at 1627 paras. G-H. It is worthy of note that the provisions of Order 37 rule 8 of the Rivers State High Court (Civil Procedure) Rules 1987 is similar to the provisions of Order 37 Rule 8 of the Oyo State High Court (Civil Procedure) Rules, 2000, under consideration. Having regard to the provisions of Order 37 rule 8 of the High Court (Civil Procedure) Rules, reproduced (supra), there is no doubt that the Learned trial Judge exercised his discretion judicially and judiciously in the circumstances. It is my firm view that the learned trial judge was justified in dismissing the case under Order 37 Rule 8 for want of diligent prosecution, as such this court cannot interfere.
The desirability of the need to treat with respect the exercise of discretion by the court of first instance had been emphasised by the apex court per Bairamian J.S.C. in Enekebe vs. Enekebe (1964) All NLR 102 at 107. It is also apt to note the observation of Lord Simon in Charles Osenton vs. Johnston (1942) AC 130 at 138 quoted with approval in Enekebe v. Enekeba (supra), where he said:
“The appellate tribunal is not at liberty merely to substitute its own exercise of discretion for the discretion already exercised by the judge. In order words, appellate authorities ought not to reverse orders merely because they would themselves have exercised the original discretion had it attached to them, in a different way. But if the appellate Tribunal reaches the clear conclusion that there has been a wrongful exercise of discretion in that no weight or no sufficient weight has been given to the relevant considerations then the reversal of the order on appeal may be justified”.
See also Solanke vs. Ajibola (1968) All NLR 46 and Imonike vs. Attorney General (1992) 2 N.S.C.C 480 at 488.
In the final analysis, I hold that this appeal is devoid of merit. It is hereby dismissed. The judgment of Sanda J. of the High Court of Justice Oyo State Ibadan Judicial Division delivered on the 6th day of December, 2004 is affirmed. Parties to bear their own costs.
MODUPE FASANMI J.C.A.: I have read in draft, the lead judgment just delivered by my learned brother A. G. MSHELIA J.C.A and I am in agreement with the reasoning and conclusion arrived thereat.
I agree that the appeal is devoid of merit and same should be dismissed. It is accordingly dismissed. I abide with the consequential orders contained therein including order as to costs.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree.
>
Appearances
E. S. N. IJEHFor Appellant
AND
Respondents (absent) though served.For Respondent
