PROF. ALFRED C. IKEME & ANOR V. DR. BENJAMIN UGWU
(2013)LCN/6076(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 27th day of March, 2013
CA/J/15/2010
RATIO
APPEAL: GROUNDS OF APPEAL: MIXED LAW AND FACTS OR FACTS: WHETHER LEAVE MUST BE SOUGHT TO APPEAL ON GROUNDS OF MIXED LAW AND FACTS
“It is thus clear that where the ground of appeal borders on mixed law and facts or facts leave of Court of Appeal must be sought and obtained. It is constitutionally and statutorily mandatory as failure to obtain the prerequisite leave will render the appeal on those grounds or ground incompetent and liable to be struck out for incompetence. More importantly failure to obtain leave to appeal when one is needed will rob the Supreme Court of jurisdiction to entertain the appeal. See B. A. S. F. NIGERIA LIMITED VS FAITH ENTERPRISES LTD (2010) 1 SCM 41 at 53 G-I TO 54 A-C where MUHAMMAD S. M. COOMASSIE, JSC who delivered the leading Judgment had this to say:- “For this Court to have jurisdiction to hear and determine and appeal before it, no leave is required where the grounds of appeal involves question of law alone and simplicitar. Where the questions involve facts or mixed law and fact, the leave of court must be first sought and obtained. In the latter circumstance where the required leave is not obtained, the grounds of appeal would be incompetent and liable to be struck out. This court in Alhaji Tahir Maihoro Vs Alhaji Jibrin Garba (1999) 7 SCNJ 270 at 279 had clearly stated the Law. The statement of Ejiwunmi JSC, of blessed memory says: “It is therefore clear that the court has no jurisdiction to entertain an appeal on a ground of act or of mixed law and fact unless of course, leave has been obtained. This point has been emphasized in a number of rent decisions; it is enough refer to only the following:- Ohiwele Vs Lagos State Development Property Corporation (1983) 5 SC1; Olojuon Vs Ozima (1985) 2 NWLR (pt. 6) 167 AT PAGES 176 – 188: and J. B. Ogbechie & Ors. Vs Gabriel Onochie (1986) 2 NWLR 484. One of the obvious result of the state of the law is that where an appellant’s grounds of appeal are only of facts or mixed law and fact, the grounds, and hence the appeal must be struck out and unless leave had been Obtained.” On the other hand, where no leave had been obtained and some of the grounds are of law and others are either facts or mixed law and a facts, only those – which are grounds of law are competent. All grounds of fact or mixed law and facts must be struck out.” Per IGE, J.C.A. (Pp. 24-26, paras. F-B) (…read in context)
APPEAL: GROUNDS OF APPEAL: GROUNDS OF APPEAL SHOULD BE PROPERLY EXAMINED AND INVESTIGATED
“Examination of the grounds of appeal is absolutely and constitutionally necessary in order to decipher if any or all the grounds raise or have to do with questions of law, mixed law and facts. This court will not thereby be taken as sitting as appellate court over its judgment or Ruling. It is the mandate given to this court by the constitution of the Federal Republic of Nigeria 1999 as amended so as to enable the court properly, judicially and judiciously exercise its discretion whether to grant or refuse the Applicant’s Motion on Notice seeking leave to appeal on ground of mixed law and facts. See ALHAJI ARANSI LADOKE & ORS V. ALHAJI M. OLABAYO & ORS (1992) 8 NWLR (PART 261) 605 at 625b – C.” Per IGE, J.C.A.
APPEAL: DIFFERENCE BETWEEN GROUNDS OF APPEAL AND MIXED LAW AND FACTS
“This court, for quite long, has set out some of the criteria for distinguishing a ground of law from that of mixed law and fact. Some of these principles can be summarized in the following manner. (i) First is the thorough examination of the grounds of appeal in the case to see whether they reveal a misunderstanding by the lower court of the law, or a misapplication of the law to the facts already proved or admitted. (ii) Where a ground complains of a misunderstanding by the lower court of the law or misapplication of the law to the facts already proved or admitted, it is a ground of law. (iii) Where a ground of appeal questions the evaluation of facts before the application of the law, it is ground of mixed law and fact. (iv) A ground which raises a question of pure fact, is a ground of fact. (v) Where the lower court finds that the particular events occurred although there is no admissible evidence before the court that the event did in fact occur, the ground is that of law. (vi) Where admissible evidence has been led, the assessment of that evidence is entirely for the court. If there is a complaint about the assessment of the admissible evidence, the grounds is that of fact. (vii) Where the lower court approached the constitution of a legal term of art in a statute on the erroneous basis that the statutory wording bears its ordinary meaning, the ground is that of law. (viii) Where the lower court or tribunal applying the law to the facts in a process which required the skill of a trained lawyer, this is a question of law. (ix) Where the lower court reaches a conclusion which cannot reasonably be drawn from the facts as found, the appeal court will assume that there has been a misconception of the law. This is a ground of law. (x) Where the conclusion of the lower court is one of possible resolutions but one which the appeal court would not have reached if seized of the issues, that conclusion is not an error in law. (xi) Where the Court of Appeal finds such application to be wrong and decides to make its own findings such findings made by the court of Appeal are issues of fact and not of law. (xii) Where the Court of Appeal interferes in such a case and there is a further appeal to a higher court of appeal on the application of the facts, the grounds of appeal alleging such misdirection by the lower court of appeal is a ground of law not of fact. (xiii) A ground of appeal which complains that the decision of the trial court is against evidence or weight of evidence or contains unresolved contradictions in the evidence of witnesses, it is purely a ground of fact (which requires leave for an appeal to a court of Appeal or a Further Court of Appeal). See the case of Board of Customs and Excise V Barau (1982) 10 SC 48 and Ogbechie V. Onochie (1986) 3 SC 58 ? 64; (No.1) (1986) 2 NWLR (Pt.23) 484, where this court interpreted the provisions of section 213(3) and 214(3) of the Constitution of the Federal Republic of Nigeria, in pari materia with the instant provisions of section 233(3) and 233(2) (a) of the said Constitution… It has been further decided by this court that in determining whether a ground of appeal includes questions of law alone or of mixed law and fact, both the ground of appeal and the particulars of error or of misdirection shall be thoroughly examined to see whether it is ground of law alone or mixed law and of fact. See U.B.A. LTD V GMBH (1989) 3 NWLR (PT.110) 374 at 389-390.” Per IGE, J.C.A.
be granted just as a matter court.” Per IGE, J.C.A. (Pp. 26-27, paras. B-C) (…read in context)
JUSTICES
RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria
JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria
IBRAHIM SHATA BDLIYA Justice of The Court of Appeal of Nigeria
Between
1. PROF. ALFRED C. IKEME
2. FIRST BANK OF NIGERIA PLC Appellant(s)
AND
DR. BENJAMIN UGWU Respondent(s)
RAPHAEL CHIKWE AGBO, J.C.A. (Delivering the Leading Judgment):
The appellants are defendants and cross-claimants in Suit No.PLD/J540/94 pending at the Jos Division of the High Court of Plateau State. This matter had suffered long years of delay and had been placed before four different Judges some of who died without concluding the case. It also seems from the processes before the court that the respondent as plaintiff was picking and choosing particular judges to entertain his suit. It finally landed on the desk of Justice M. I. Sirajo who on the application of the plaintiff fixed the case for hearing on 8th April, 2009. On the said date both parties were represented in court. Mr. Zi of Counsel for the plaintiff applied for an adjournment on the ground that he was coming into the case for the first time and it was also coming before that court for the first time. The trial Judge refused. Mr. Zi then asked for a standing down for two hours. The application was granted. The court stood down the matter to 11.15 am. When the court resumed at 11.21 am one Mr. Onyekwefu now announced himself for the plaintiff instead of Mr. Zi. Mr. Onyekwelu instead of calling his witnesses now made an oral application that the plaintiff be allowed to adopt the case he made under late Justice Dusu as he could not reach most of those witnesses. The trial court ruled thus: –
“This matter is for hearing today. I have already ruled that hearing shall proceed. The new application made orally for adoption of previous testimonies is incompetent as it is not backed by any evidence. Such applications are always and I repeat always been made on notice with affidavit deposing to facts in support thereof together with the Certified True Copy of the previous testimonies annexed as exhibit. But since the plaintiff is not now ready to proceed and his current application having been incompetent, I have no option left than to dismiss the plaintiff’s suit under Order 37 Rule 8 of the Rules of this court since pleadings have since been filed and exchanged. The counter claim of the 1st defendant is adjourned to 26th May, 2009 for hearing while the plaintiff’s suit is dismissed.”
The plaintiff did not challenge this order. Rather on 12th May, 2009 he filed a motion at the trial court dated 8th May, 2009 wherein he prayed the court as follows:
(1) An order of extension of time within which the plaintiff/applicant will apply to set aside the order of this court made on 8th April, 2009 dismissing this suit.
(2) An order setting aside the said order.
(3) An order relisting the suit which was dismissed on 8th April, 2009.
The application was accompanied by a 12 paragraph affidavit in support.
The appellants filed a 19 paragraph counter-affidavit. In a considered ruling the trial judge adjudged the motion as follows:
“I have carefully considered the two opposing affidavits and the written address as for and against the application. Even though the applicant and his counsel have exhibited tardiness in having the matter set down for trial, on the date fixed for hearing the plaintiff/applicant was physically in court but the suit had to be dismissed when his counsel showed unwillingness to proceed. Before this court that was the first time the plaintiff failed to proceed with his case. Besides, the current application was filed only a month after the suit was dismissed.
Agreed that there is delay in filing the application within time, the delay is not excessive as to consider it undue. There is no undue delay in the filing of the application. Therefore in order to avail the plaintiff the opportunity of being heard, I hereby grant all the prayers on the motion paper. I further order that the plaintiff shall file a written undertaking that he will diligently prosecute his case or risk the case been thrown out again with serious consequences.”
Dissatisfied with this Ruling the appellants filed this appeal setting out four grounds of appeal in the notice of appeal which grounds are reproduced hereunder:-
(1) The learned trial Judge erred in law when he assumed jurisdiction to set aside his ruling dated 8th April, 2009 dismissing the plaintiffs’ claim when he had become functus officio.
(2) The learned trial judge erred in law when he set aside his judgment of 8th April, 2009 when the five conditions recognized by the law for so doing does not exist and in the absence of statutory authority for so doing.
(3) The learned trial judge erred in law in failing to act judiciously but rather acted arbitrarily in setting aside the judgment delivered on 8th April, 2009 when the plaintiff refused to proceed with his case.
(4) The learned trial judge misdirected himself on the facts when he held that there was no undue or excessive delay in filing the application.
The record of appeal was deemed properly compiled and transmitted on 31st October, 2012. Appellant’s brief of argument was filed on 1st November, 2012 while the Respondent’s brief was filed on 9th November, 2012. The appellant filed a reply brief on 19th November, 2012. The appellants in their brief of argument distilled three issues for determination to wit:
(1) Whether the trial court has jurisdiction to set aside the order dismissing the suit when the court had become functus officio (ground 1).
(2) Whether there was good cause for enlargement of time within which to apply to set aside the ruling of 8th April, 2009 (ground 4).
(3) Whether the trial court acted judiciously in setting aside the ruling of 8th April, 2009 (grounds 2 and 3).
The Respondent on the other hand distilled two issues for determination to wit: –
(1) Does a court have the power to set aside its interlocutory orders.
(2) Did the court act judicially and judiciously when it set aside the order of dismissal and relisted the matter for hearing on the merits.
The appellants in their reply brief attacked the respondent’s issue 1 on the basis that it was not founded on any of the grounds of appeal. The appellants cited Okoli vs. Udeh [2006] 10 NWLR [Pt.1095] 213; Ademuyiwa vs. Okokunbola [2009] 11 NWLR (Pt.1153) 539; and SPDCN Ltd vs. Goodluck [2008] 14 NWLR (Pt. 1107] 294. An issue formulated in an appeal must be founded on a ground of appeal. Where it does not so relate, it is incompetent and ought to be struck out. Respondent’s issue number one not having been founded on any of the four grounds of appeal is incompetent and it is hereby struck out. Respondent’s issue two is the same as appellant’s issue 3 and does not suffer any disability.
Appellants’ issue one is whether the trial court has jurisdiction to set aside the order dismissing the suit when the court had become functus officio. In his argument, appellants’ counsel posited that –
“it is a trite law that once a court delivers his Ruling such as in the instant case being a dismissal order for want of prosecution it is a judgment on merit and the court automatically ceased to have power to re-open the case for any purpose except to wit: to correct errors as mistakes, deal with order of instalmental payment or set aside a default judgment obtained by fraud or due to absence of a party or default of pleadings or when the judgment is a nullity.”
The appellants cannot accept that this suit was dismissed by the trial court for want of prosecution and yet contend that the dismissal was on the merit.
The trial court expressly founded his order of dismissal on Order 37 Rule 8 of the Plateau State High Court (Civil Procedure) Rules. Both Rules 8 and 9 are relevant to this appeal and are reproduced hereunder: –
Order 37 (8) 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 such counter-claim, so far as the burden of proof lies upon him:
Provided that if the defendant shall admit the cause of action to the full amount claimed, the Court may, if it thinks fit, give judgment as if the plaintiff had appeared.
(9) Any judgment obtained where one party does not appear at the trial may be set aside by the Court upon such terms as may seem just, upon an application made within six days after the trial or within such longer period as the court may allow for good cause shown.”
These Rules vest jurisdiction on the trial court to dismiss a suit where the plaintiff fails to appear to lead evidence in his case and further statutorily empowers the court to set aside any judgment so obtained provided the plaintiff applies for the order setting aside the judgment within 6 days.
Even though the appellants claim that Order 37 Rules 8 and 9 are inapplicable in the instant case, that is not constituted in any ground of appeal. Even if I am to accept the argument that the trial court was wrong in dismissing the suit pursuant to Order 37 Rule 8 of the Plateau State High Court (Civil Procedure) Rules 1987, the trial court in the exercise of its inherent powers can dismiss a suit for want of prosecution. Where the dismissal is founded on the inherent powers, the dismissal can be equated to a striking out as the suit can be relisted on proper application. See Olowu vs. Aboloye [1893] 5 NWLR (Pt. 293) 255, Echaka Cattle Ranch Ltd vs. NACB Ltd [1998] 4 NWLR (Pt. 547] 526 and Akujinwa vs. Nwaonuma [1998] 13 NWLR (Pt.583) 632.
Where a court is statutorily empowered to dismiss a suit on appeal for want of prosecution but is silent on the power to relist, the court acting within the provisions of the statute loses the competence to relist. But that still does not mean that the suit or appeal has been determined on the merit. In the instant case the trial court did not become functus officio by reason of its dismissal of the suit for want of prosecution. This issue is determined against the appellants.
Appellants issue two is whether there was good cause for enlargement of time within which to apply to set aside the ruling of 8th April, 2009.
In arguing this issue, the appellants posited that the provisions of Order 37 Rule 1 (it should be Rule 9) of the High Court (Civil Procedure) Rules of Plateau State should apply and that in any case that the delay of 34 days is undue. The Respondent on the other hand argued that the days of technicalities are over and that all should be done to allow the case to be determined on the merits. To appreciate this issue in full, it becomes necessary to set out in full the affidavit in support of the application for extension of time to seek leave to apply to relist and the order to relist. The twelve paragraph affidavit is set down hereunder:
(1) That I am the plaintiff/Applicant in this suit and by virtue of my position I am familiar with the facts of this case.
(2) That this suit was dismissed on the 8th April, 2009 on the following grounds:
(a) That it was slated for hearing and counsel was not ready to proceed.
(b) That an oral application was made to adopt the case of the Plaintiff/Applicant which had already been concluded before the previous judge Hon. Justice F. Dusu which would have been on notice.
(3) That my case against the defendant had been concluded and closed before the demise of Honourable Justice Dusu who was the honourable judge handling this matter.
(4) That the Defendants were at the verge of concluding their defence when we lost Honourable Justice F. Dusu.
(5) That Oba Maduabuchi of counsel representing the Plaintiff was in Court of Appeal Enugu on that same day 8th April, 2009.
(6) That he (Oba Maduabuchi) instructed Gyang Zi Esq the counsel that appeared for the Plaintiff on the 8th April, 2009 to only take a date for him as he was coming to adopt the case of the Plaintiff before Honourable Justice F. Dusu.
(7) That the matter could not go on in 2008 because the Plaintiff was in Israel sabbatical.
(8) That the suit was dismissed for failure of Gyang Zi to make the proper application as instructed.
(9) That we took great pain to bringing most of the witnesses who testified in this suit some of whom are now late.
(10) That it will serve the interest of justice if this application is granted as the Plaintiff/Applicant will be given the opportunity to ventilate his case through the court process.
(11) That the plaintiff/applicant would be highly jeopardized if this application is not granted.
(12) That I make this oath in good faith believing same to be true according to oaths act:
In not one paragraph above did the applicant give any reason whatsoever for the delay in bringing the application to found his first prayer. As I had stated earlier in this judgment, the trial court made its order of dismissal pursuant to Order 37 Rule 8 of the High Court (Civil Procedure) Rules of the Plateau State. It follows that the application for extension of time to apply to vacate the said order and the order to relist should be founded on Order 37 Rule 9. Even when it is argued that the order of dismissal is more in consonance with the exercise by the court of its inherent jurisdiction as opposed to the statutory provisions in Order 37, the 6 days in Order 37 Rule 9 should have guided the trial court. To hold therefore that the 34 days delay in filing the motion was not undue is to say the least perverse.
The trial court having accepted that there was a delay and the applicant having provided no reason whatsoever for the delay, the trial court ought not to have granted the application. It is not a Father Christmas. See N.A. Williams vs. Hope Rising Voluntary Funds Society (1982) ANLR 1. In circumstance such as this, the applicant ought to have provided good and substantial reason in bringing the application to relist. Issue two is resolved in favour of the appellants. This also resolves issue three. The trial court having not acted judiciously in vacating its order of dismissal and relisting the suit, its said order relisting the suit for hearing is hereby vacated. The order dismissing the suit made by the trial court on 8th April, 2009 stands.
No order as to costs.
JUMMAI HANNATU SANKEY, J.C.A.: I have read the Judgment just delivered by my learned brother, Agbo, J.C.A., and I agree. I abide by the consequential orders made therein.
IBRAHIM SHATA BDLIYA, J.C.A.: I have had read in draft the judgment of my learned brother, AGBO, J.C.A., just delivered. I entirely agree with his Lordship’s reasoning and conclusions therein, however, I wish to elaborate on few points in support of the well-articulated judgment.
The learned trial judge of the lower court, after considering the averments in the affidavits before him, came to the conclusion that there was delay in filing the application to set aside the ruling wherein the substantive case was dismissed and relisting of same, yet, he went ahead to hold that the delay was not excessive to be regarded as undue. Order 37 Rules B and 9 of the Plateau State High Court (Civil Procedure) Rules 1988, provides:
“Order 37(8) 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 such counter-claim, so far as the burden of proof lies upon him:
Provided that if the defendant shall admit the cause of action to the full amount claimed, the Court may, if it thinks fit give judgment as if the plaintiff had appeared.
(9) Any judgment obtained where one party does not appear at the trial may be set aside by the Court upon such terms as may seem just, upon an application made within six days after the trial or within such longer period as the court may allow for good cause shown.” (Underlining mine for emphasis).
The law is trite, Rules of Court are made to govern or guide the Courts and litigants in the adjudication process of matters. Rules of Court are meant to be obeyed for the attainment of substantial justice in the Courts of law unless there exists good and substantial reasons for not complying with the rules. What is good and substantial reasons may vary from one case to the other, depending on the facts and the circumstances of each case. Though “good and substantial reasons,” has not been defined or described by the Rules of Court or any other law, it must be satisfactory; favourable; not bad in the sense that it is unacceptable; it must be essential material or important reason. Reasons which are peripheral or strange can not suffice. Tobi, J.S.C. put it more clearly in the case of Ikenta Best (Nig.) Ltd. V. A.G. Rivers State (2008) 6 NWLR Pt.1084 P.612 @ 642 thus:
“The reasons must be good. In other words the reasons must possess the quality that is satisfactory; favourable, useful or suitable to the application. The reasons must not be bad in the sense that they are unacceptable. Substantial reasons are essential materials and important reasons. Reasons which are peripheral or dance around the periphery strangely can not suffice. The pendulum should weigh in favour of granting the application, and not just enough to balance the weight or on an even keel.”
This Court, in the case of Prudent Bank Plc. Vs. Obadaki (2012) 2 NWLR Pt. 1285 P. 504 @ 522, per Nwodo, J.C.A., expressed similar view and held that where Rules of Court provide that there must be good and substantial reasons shown by an applicant before a court of law can exercise its discretion in granting or not granting extension of time to do that which was not done within a prescribed period. Good and substantial reasons must possess the quality that is satisfactory, favourable, useful or suitable to the application. It must not be bad in the sense that they are unacceptable. Substantial reasons are essential materials and important reasons.
In this instant case, what were the reasons proffered by the respondent for his failure to apply within the six (6) days period prescribed in Order 37 Rule 9 of the Plateau State High Court (Civil Procedure) Rules; to set aside the ruling of 8th April, 2009 and relisting of the case. The respondent relied on the averments in the affidavit in support of the application. Paragraphs 1-12 of the said affidavit are germane. The averments therein are reproduced hereunder:
(1) That I am the Plaintiff/Applicant in this suit and by virtue of my position I am familiar with the facts of this case.
(2) That this suit was dismissed on the 8th April, 2009 on the following grounds:
(a) That it was slated for hearing and counsel was not ready to proceed.
(b) That an oral application was made to adopt the case of the Plaintiff/Applicant which had already been concluded before the previous judge Hon. Justice F. Dusu which would have been on notice.
(3) That my case against the defendant had been concluded and closed before the demise of Honourable Justice Dusu who was the honourable judge handling this matter.
(4) That the Defendants were at the verge of concluding their defence when we lost Honourable Justice F. Dusu.
(5) That Oba Maduabuchi of counsel representing the Plaintiff was in Court of Appeal Enugu on the same day 8th April, 2009.
(6) That he (Oba Maduabuchi) instructed Gyang Zi Esq the counsel that appeared for the Plaintiff on the 8th April, 2009 to only take a date for him as he was coming to adopt the case of the Plaintiff before Honourable Justice F. Dusu,
(7) That the matter could not go in 2008 because the Plaintiff was in Isreal sabbatical.
(8) That the suit was dismissed for failure of Gyang Zi to make the proper application as instructed.
(9) That we took great pain in bringing most of the witnesses who testified in this suit some of whom are now late.
(10) That it will serve the interest of justice if this application is granted as the Plaintiff/Applicant will be given the opportunity to ventilate his case through the court process.
(11) That the plaintiff/applicant would be highly jeopardized if this application is not granted.
(12) That I make this oath in good faith believing same to be true according to oaths act.
The affidavit of the respondent in support of his application does not contain any reason, good or substantial, to satisfy the provisions of Order 37 Rule 9 of the Rules of Court. Therefore, to hold that the 34 days delay in filing the application by the respondent to set aside the ruling of 8th April, 2009 dismissing the suit and the order for relisting of same, was not undue, is to say the least, unwarranted, and is therefore perverse. The learned trial judge had found and accepted that there was delay for 34 days before applying for an order to set aside the ruling of 8th April, 2009. The period of 34 days, in my view, is too long, and in my view it constitutes undue delay. Since no good and substantial reason was proffered to explain the undue delay, the lower court ought not to have granted the order sought. It is for this reason, and the fuller reasons contained in the lead judgment, that, I, too, allow the appeal, and hereby restore the order of 8th April, 2009. I abide by the order made as to cost in the lead judgment.
Appearances
Sir G. Ofodile Okafor SAN with him P. S. Tunyang.For Appellant
AND
Joseph Onyekwelu, Esq.For Respondent
