MULTICHOICE NIGERIA LIMITED v. MR. VITUS OGBONNA
(2019)LCN/12550(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 22nd day of January, 2019
CA/L/730/2016
RATIO
COURT AND PROCEDURE: LACK OF DILIGENT PROSECUTION
“It is elementary law that a Court is seised with the inherent jurisdiction to strike out a matter for want of diligent prosecution and is empowered by its rules to dismiss a suit in circumstances that may be termed as lack of diligent prosecution or prosecution at all.
See: DR. (MRS) BOMO IVBIYARO (NEE FRANCIS) & ORS. V. MRS OMOKARO MONI FRANCIS (NEE OBIRE) (2001) LPELR-6999 (CA).” PER JAMILU YAMMAMA TUKUR, J.C.A.
COURT AND PROCEDURE: EXERCISE OF JUDICIAL DISCRETION
“The law with regards to proper exercise of discretion by a Court of law is settled, clear and to the effect that such a Court must exercise its discretion judicially and judiciously. The Supreme Court gave an exposition on the foregoing principle in the case of HON. COMMISSIONER FOR EDUCATION & ORS V. AMADI (2013) LPELR-19907(SC), where per Ogunbiyi JSC, it held thus: ‘The exercise of discretion as rightly submitted by the learned respondent’s counsel is not generally appealable but must be judicious and judicial and not whimsical or irrational. It will therefore be subject of appeal where it is shown that the Court in exercising the discretion had done so on a wrong principle or consideration. The case in point is U.B.A Vs. Stahlbau GMBH (1989) 3 NWLR (Pt 110) 374 at 388 wherein Obaseki JSC expounded the concept thus: “If a judge consider matters which are not before him and makes them the basis of the exercise of his discretion, he is exercising his discretion on wrong considerations. If there are facts by affidavit evidence before the judge and he fails to evaluate and assess the facts before exercising his discretion, he has failed to exercise is discretion judicially.'” PER JAMILU YAMMAMA TUKUR, J.C.A.
JUSTICES
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria
Between
MULTICHOICE NIG. LTD Appellant(s)
AND
MR. VITUS OGBONNA
(carrying on business in the name and style of Vitus Communications) Respondent(s)
JAMILU YAMMAMA TUKUR, J.C.A. (Delivering the Leading Judgment):
This is an Appeal against the Ruling of the High Court of Lagos State in Suit No: LD/1393/2016 delivered by Honourable Justice A.A. Oyebanji on the 15th day of March, 2016 wherein the Court ruled in favour of the Respondent.
The material facts leading to this appeal, are that the Appellants instituted an action before the lower Court via an Amended Writ of Summons dated 21st February, 2013, seeking certain orders thereat. Upon filing of the requisite processes and compliance with preliminary matters, the matter became ripe for hearing, but trial could not commence on 9th October, 2014, as scheduled, as it was adjourned at the behest of the Appellant, on the grounds that the Appellant’s Witness was absent because of medical issues. On the next adjourned date being 20th November, 2014, the matter was further adjourned at the instance of the Appellant for similar reasons. The next time the matter came up for hearing was on 15th March, 2016, wherein the Appellant again sought an adjournment, on the grounds that its witness was on an official assignment. The trial Court refused to grant adjournment, dismissed the Appellant?s claim, granted the Respondent leave to prove his Counter claim, and adjourned the matter to 1st June 2016 for the defendant/Counter Claimant to prove his Counter Claim.
Dissatisfied with the above, the Appellant appealed to this Court vide a Notice of Appeal dated 29th March, 2016. (Pages 385-387 of the Record)
The Appellant’s Amended Brief of Argument settled by Ogbonna Peter Uwalaka Esq., of Efere Ozako & Associates, is dated 19th October, 2016, and filed on 20th October, 2016, but deemed properly filed on 5th December, 2017.
Appellant’s counsel formulated a sole issue for determination to wit:
Whether the learned trial Judge was right in law to dismiss the suit of the Claimant/Appellant pursuant to Order 30 Rule 3 of the Lagos State High Court (Civil Procedure) Rules 2012, without considering the absence of the Defendant/Respondent and the Claimant/Appellant’s right to re-list the suit provided for in Order 30 Rule 4(1)-(3) of the Lagos State High Court (Civil Procedure) Rules 2012. (Ground 1)
On the other hand, the Respondent’s Brief of Argument settled by Mayor Asiegbu Esq., of Mayor Asiegbu & Co., is dated 10th August, 2016, and filed on 16th August, 2016. Respondent’s counsel also formulated a sole issue to wit:
Whether the learned trial Judge in dismissing the suit of the Appellant has exercised his discretion judicially and judiciously as to repel the interference of the appellate Court.
An examination of the issues formulated by counsels in this appeal reveals that they are substantially the same. I therefore adopt the issue distilled by Appellant’s counsel for the purpose of convenience in the determination of this appeal.
ISSUE:
WHETHER THE LEARNED TRIAL JUDGE WAS RIGHT IN LAW TO DISMISS THE SUIT OF THE CLAIMANT/APPELLANT PURSUANT TO ORDER 30 RULE 3 OF THE LAGOS STATE HIGH COURT (CIVIL PROCEDURE) RULES 2012, WITHOUT CONSIDERING THE ABSENCE OF THE DEFENDANT/RESPONDENT AND THE CLAIMANT/APPELLANT?S RIGHT TO RE-LIST THE SUIT PROVIDED FOR IN ORDER 30 RULE 4(1)-(3) OF THE LAGOS STATE HIGH COURT (CIVIL PROCEDURE) RULES 2012. (GROUND 1)
Learned counsel for the Appellant argued that the trial Court misapplied the law as established in Order 30 Rule 3 of the High Court of Lagos State (Civil Procedure) Rules, 2012, when he failed to consider the absence of the Respondent on the 15th day of March, 2016. He further argued that the trial Court took into consideration irrelevant matters, chiefly the previous adjournments granted, in reaching its decision, a fact which entitles this Court to interfere with the lower Court?s exercise of jurisdiction.
He relied on the cases of S & D Construction Company Ltd v. Chief Bayo Ayoku & Anor (2011) 13 NWLR Pt. 1265 P.487 @ 507-508, paras H-B; and ANPP v. Albishir (2011) 2 WRN p.1 at pgs 18-19, lines 40-10. Learned counsel further argued that the dismissal of the suit at trial, constitutes a breach of Appellant?s fundamental right to fair hearing, as it means the matter has been decided and foreclosed, without the Appellant, and the Appellant?s right to relist foreclosed. Counsel submitted that the trial Court ought to have preserved the matter and punished the Appellant vide costs in the interest of justice, as the power of dismissal ought to be used sparingly.
He relied on Section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria; INEC & Anor v. Balarabe Musa & Ors (2003) 3 NWLR (Pt.806) 72; Imasuen v. University of Benin (2010) 3 NWLR Pt.1182 p.616-617, paras h-b; Ejiofor v. Onyekwe (1972) 12 SC. 171 @ p.185; S & D Construction Company Ltd v. Chief Bayo Ayoku & Anor (supra) 348 paras D-E.
On the other hand, learned counsel for the Respondent argued that the trial Court rightly applied the principle of law in Order 30 Rule 3 of the High Court of Lagos State (Civil Procedure) Rules, 2012, as the said provision ought to be applied in light of the conduct of the parties before the Court; the Provision of the Rule requiring the presence of the Defendant is satisfied if the Defendant’s counsel is present; and it is not compulsory for the Counter claim to be proven on the date of dismissal. He submitted that the judicious exercise of the lower Court?s discretion precludes this Court from interfering with the decision reached.
He cited the cases of Odusote v. Odusote (1971) ALL NLR 219; and Ariori &Ors v. Elemo &Ors (1983) 1 SCNLR 1.
Learned counsel also argued that the inordinate and inexcusable delay on the part of the Appellant, as seen in two previous adjournments granted at the behest of the Appellant on health grounds, despite the absence of medical certificate, means that the trial Court could validly dismiss the matter for want of diligent prosecution and that the Court had given the Appellant an opportunity to be heard, which is the requirement of the law for fair hearing.
He relied on Ogar v. James (2001) FWLR (Pt.67) p.930; and INEC & Anor v. Balarabe Musa & Ors (2003) 3 NWLR (Pt.806) 72.
He submitted that the order of dismissal is proper, as continuous adjournments would be prejudicial to the Respondent and there must be an end to litigation.
RESOLUTION
It is elementary law that a Court is seised with the inherent jurisdiction to strike out a matter for want of diligent prosecution and is empowered by its rules to dismiss a suit in circumstances that may be termed as lack of diligent prosecution or prosecution at all.
See: DR. (MRS) BOMO IVBIYARO (NEE FRANCIS) & ORS. V. MRS OMOKARO MONI FRANCIS (NEE OBIRE) (2001) LPELR-6999 (CA).
The questions which arise from this appeal do not border on the competence of the Court to make the decision reached, but revolves around whether the lower Court properly exercised its discretion in dismissing the appeal; whether the facts of the case at trial is one which falls within the ambit of Order 30 Rule 3 of the High Court of Lagos State (Civil Procedure) Rules, 2012, and whether the order of dismissal made precludes the Appellant from approaching the Court on the same matter by way of relisting.
The law with regards to proper exercise of discretion by a Court of law is settled, clear and to the effect that such a Court must exercise its discretion judicially and judiciously. The Supreme Court gave an exposition on the foregoing principle in the case of HON. COMMISSIONER FOR EDUCATION & ORS V. AMADI (2013) LPELR-19907(SC), where per Ogunbiyi JSC, it held thus:
“The exercise of discretion as rightly submitted by the learned respondent’s counsel is not generally appealable but must be judicious and judicial and not whimsical or irrational. It will therefore be subject of appeal where it is shown that the Court in exercising the discretion had done so on a wrong principle or consideration. The case in point is U.B.A Vs. Stahlbau GMBH (1989) 3 NWLR (Pt 110) 374 at 388 wherein Obaseki JSC expounded the concept thus: “If a judge consider matters which are not before him and makes them the basis of the exercise of his discretion, he is exercising his discretion on wrong considerations. If there are facts by affidavit evidence before the judge and he fails to evaluate and assess the facts before exercising his discretion, he has failed to exercise is discretion judicially.”
This Court put it succinctly in the case of ENEMUO & ANOR v. EZEONYEKA & ORS (2016) LPELR-40171(CA) (P. 18, Paras. B-C), per BOLAJI-YUSUFF, J.C.A., thus:
“An exercise of discretion judicially is one exercised according to the law and judiciously means one exercised on the peculiar facts and circumstances of a case.”
See: UBN PLC v. BEAR MARINE SERVICES LTD & ANOR (2018) LPELR-43692(CA); MADU & ANOR v. ANOZIA & ANOR (2018) LPELR-45484 (CA); and NWAENANG V. NDARAKE & ORS (2013) LPELR-20720 (CA).
From the facts, there is no doubt that the Appellant had sought two previous adjournments, without tangible proof of reasons for doing same, hence it is clear that the trial Court was justified in refusing to grant a further adjournment on the day of the ruling, especially in light of the fact that it was the Appellant who sent its witness on an official assignment, thereby making it impossible for the witness to be in Court.
Notwithstanding the above, the legal impediment to the correctness of the consequential order of dismissal is the fact that the trial Court failed to invite the Appellant to go on with its case, upon the refusal of the Application for adjournment. This Court in the case of Erinfolami & Anor V. S.G.B (Nig) Ltd 2007 LPELR 8763 (CA) per Agube JCA relying on the Supreme decision in the case of Ceekay Traders Ltd V. General Motors Company Ltd & 2Ors (1992) 2 NWLR (Pt 222) 132 held that where the Court refused to postpone or adjourn the case, in the exercise of its discretionary powers the party applying must be called upon by the trial Court to proceed with the case. It was further held that it was not enough to assume that in the circumstances of the case if counsel was called upon to proceed he would not be in a position so to do. That assumption was held to be speculative.
The paramount interest of Justice between the parties was not met since upon refusal of the Plaintiffs application for adjournment he was denied the option of either proceeding with his case or withdrawing the case as counsel in charge of the case. The same scenario occurred in the instant case with respect to the proceedings of 15th March 2016.
In the proceedings of the said 15th March 2016 captured at pages 382-384 of the Record of Appeal no indication was given that the Appellant who was represented in Court by its counsel was invited to proceed with the case after the ruling refusing the application for adjournment. Where as in this case the Plaintiff?s counsel was not called to proceed with the case after the ruling on the application for adjournment there was in my view a clear breach of the right to fair hearing, and the exercise of the discretion by the learned trial Judge was therefore wrongful and injudicious. This Court under the circumstances can and should interfere in the interest of fair hearing by setting the judgment aside.
In summation the Appeal is allowed and the order dismissing the Plaintiffs case for want of diligent prosecution is hereby set aside.
The case is remitted to the High Court of Lagos State, Lagos Judicial Division for reassignment by the Hon. Chief Judge to another Judge for hearing.
Parties to bear their costs.
MOHAMMED LAWAL GARBA, J.C.A.: I agree.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree with the succinct judgment prepared by my learned brother, Jamilu Yammama Tukur, J.C.A., which I had the honour of reading in print.
Appearances:
O. P UwalakaFor Appellant(s)
M.C. Asiegbo with him, S.O. Madu and A. AnunanduFor Respondent(s)
