UCHE OBI V. MADAM RAHOTO OGUNBIYI
(2012)LCN/5407(CA)
In The Court of Appeal of Nigeria
On Thursday, the 24th day of May, 2012
CA/L/853/2010
RATIO
APPEAL: DUTY OF THE APPELLATE COURT TO DO SUBSTANTIAL JUSTICE
It is trite that an Appellate Court will always be in favour of doing substantial justice in a case, rather than hanging on technicality. NDAYAKO V. DANTORO (2004) 13 NWLR Pt.889 @ 218.
Any application is subject to the justiciable discretion of the Court.
Apart from mere technicalities or incompetence, or otherwise, in the exercise of judicial discretion, the primary objective of the court must be to attain substantial justice, and acting judicially requires the consideration of the intent of both parties, and weighing them in order to arrive at a just and fair decision. DADA V. ITL. (2005) 11 NWLR Pt. 936 at 300 paragraph f.
In A-G OF THE FEDERATION v. A.I.C. LTD. (1995) 2 NWLR Pt. 378, Page 1 at 397 paragraphs e-f, it was held inter alia that where in a case, there are two adversely competing motions before a Court, one of the motions CONSTRUCTIVE and the other potentially DESTRUCTIVE, the Court will normally proceed to take the former motion first unless it will be inequitable to do so, so that if it succeeds, there would be no need for the latter motion which will be withdrawn and struck out accordingly. PER RITA NOSAKHARE PEMU, J.C.A.
PROCEDURE: PRINCIPLES GUIDING RELISTING A MATTER STRUCK OUT
Now, when a Court strikes out a matter, it is functus officio, until that matter comes back by way of a motion to relist. Anything which the Court does after the striking out would amount to a nullity.
But, where it is shown that a deserving party, seeks to relist a suit which has been struck out, without abusing the process of the Court, and where it has not been shown that the application is vexatious, or prejudicial to the adverse party, then the matter shall be relisted. PER RITA NOSAKHARE PEMU, J.C.A.
JUSTICES
KUMAI BAYANG AKAAHS Justice of The Court of Appeal of Nigeria
IBRAHIM MUSA MOHAMMED SAULAWA Justice of The Court of Appeal of Nigeria
R.N. PEMU Justice of The Court of Appeal of Nigeria
Between
UCHE OBI Appellant(s)
AND
MADAM RAHOTO OGUNBIYI Respondent(s)
RITA NOSAKHARE PEMU, J.C.A. (Delivering the Leading Judgment): This is an Interlocutory appeal against the decision of the High Court of Lagos State Coram L.A. Okunnu (Mrs) J, delivered on the 4th of September, 2009, relisting suit No. ID/1482/2003 which was struck out on 10th October 2006 upon a motion on notice dated 31st July, 2006, by the Claimant (Respondent) in this present appeal, without affording the Defendant (Appellant in this present appeal) an opportunity of being heard in opposition, and without first hearing and determining, an earlier preliminary objection by the Defendant dated 30th June, 2009.
Simply put, the facts culminating in this appeal are as follows:
The Respondent (Claimant at the lower court) had by Writ of Summons and Statement of Claim dated 29th of September, 2003 and filed on same date, sought the following reliefs against the Defendant (Appellant) at the lower court viz:
(a) A declaration that the Plaintiff is the bona fide and beneficial owner of the parcel of land covered by Lagos State Certificate of occupancy registered as No. 63 at page 63 in volume 1996 AB and a person entitled to absolute possession and which parcel of land is more described with abuttals and dimensions delineated on survey plan on LAT/38C/LA/91 drawn by Lat Survey Consultants dated 4th February, 1991 situate at Apakun Oshodi, Lagos State.
(b) An order of perpetual injunction restraining the Defendant whether by himself, his agents, workman, privies, servants and legal representatives from further committing any or further acts of trespass on the parcel of land now in dispute.
(c) The sum of N200,000.00 (Two Hundred Thousand Naira) being damages for acts of trespass committed by the Defendant on the Plaintiff’s parcel of land.
As reflected at page 22 of the Record of Appeal, the suit was struck out on the 10th of October, 2006, for absence of counsel for the respective parties, and non diligent prosecution, by Hon. Justice Z.A. Ashiyanbi of Ikeja Judicial Division of the High Court. There was no letter from learned counsel explaining their absence.
The case was subsequently, on the 4th of December, 2007, re-assigned to another Judge, O.A. Ipaye (Mrs) by Justice L.G.A. Marsh – Administrative Judge – (Page 26 of the Record of Appeal) upon application for its reassignment – (page 25 of the Record of Appeal) who on the 10th of November, 2008, made an order for its accelerated hearing, and the claimant was directed by the Judge to comply with Order 25 Rule 1 forthwith and serve Forms 17 and 18 0n the Defendant. The matter was adjourned to the 1/12/2008 for pre-trial conference (page 27 of the Record of Appeal).
This is because, from records, the Defendant (Appellant in this appeal) did not respond to motion on notice for injunctive relief dated 29/09/03, filed by the Claimant (Respondent in this appeal) although they were served with processes by substituted service – Page 27 of the Record of Appeal.
From records, on the 28th of February, 2009, learned counsel for the Claimant, V.I.P. Nwana Esq., informed court that the Defendant had still not complied with the order of court under order 17 Rule 1 of the Court Rules.
As gleaned from page 30 of the Record of Appeal, the matter was reassigned to Okunnu J. on the 4th of March, 2009 by Honourable Justice L.G.A. Marsh – the Administrative Judge.
On the 27th day of May, 2009, the proceedings of court in suit No.ID/1482/2003, subject matter of this present appeal went thus:
“Parties: Claimant present, Defendant present.
Representative: V.I.P Nwana Esquire for the Claimant.
Miss Adetayo Ali for the Defendant.
Mr. Nwana: We did comply with the order of court. We are ready to proceed.
Miss Ali: We have just been briefed in this matter.
Court: The Court is satisfied of due notice to the Defendant of the proceedings before it at each turn of event. The court is equally satisfied of due service on this of all relevant processes for that reason trial will begin. As of in this 2003 case, if the Defendant was serious, trial today would have taken the necessary steps even today, in that manner as she deserved it.”
On the 30th of June, 2009, the Defendant filed a Notice of Preliminary Objection objecting to any further proceedings in the suit and urged the Court to hold in the following term(s):
(1) That the suit herein was struck out on 10/10/2006.
(2) That the Court lacks jurisdiction to continue with further proceedings in the suit herein.
The Grounds for the application being
(a) that the suit was struck out on 10/10/2006 and has not been re-listed.
(b) The court cannot hear or continue with the hearing of a matter that has been struck out.
Consequently the Defendant/Objector prayed the Court for the following orders:-
i. An order staying further proceedings in the suit herein.
ii. An order setting aside the proceedings of 13/11/2006, 25/01/2007, 10/11/2008, 01/12/2008, 28/01/2009, 21/04/2009 and 27/05/2009.
iii. An order setting aside all other administrative steps/action taken in this suit herein subsequent to the order striking out the suit as though the said suit had not been struck out.
iv. And for such further other order(s) as the Honourable Court may deem fit to make in the circumstances. Pages 34-35 of the Record of Appeal.
On the 31st of July, 2009 vide Motion on Notice brought pursuant to Order 30 Rules 4(1) and (3) and Order 44 of the High Court of Lagos State (Civil Procedure) Rules 2004, the Claimant (Respondent in this appeal) sought the following orders from the lower court viz:
1. An order extending the time within which the Claimant/Applicant will file application to relist this suit which was struck out on the 10th of October, 2006 back to the general cause list upon the grounds specified hereunder.
2. An order of this Honourable Court re-listing this suit struck out on 10th October, 2006 by the Late Hon. Justice Ashiyanbi back to the general cause list upon this grounds specified hereunder.
3. And for such order or other orders as this Honourable Court may deem fit to make in the circumstances of the case.
The Grounds of the application were stated as follows:-
a) This matter has gone through a chequered history of Assignment to Hon. Justices Philips, Late Ashiyanbi, William Dawodu, Ipaye and presently before this court for trial.
b) Claimant/Applicant’s counsel has been diligent in prosecuting this mater but was not aware of the proceedings of 10th October, 2006 when this suit was struck out.
c) This suit was assigned to Honourable Justice Ipaye for pre-trial conference and to this court for trial without any knowledge of the assigning Judge and Claimant counsel that the matter has been struck out.
d) That Honourable Justice Ipaye having concluded pre-trial Conference forwarded the case file back to the Chief Judge for assignment to a trial Judge.
e) After the assignment of this case to this court for trial, the evidence in chief of the Claimant/Applicant was taken and case adjourned for cross-examination.
f) The search conducted and application filed by Defendant s counsel dated 30th June, 2009 was what revealed to this court and claimant/Applicant’s counsel that this suit was struck out on 10th October, 2005.
g) Interest of justice will best be served by re-listing this suit.
On the 4th of September, 2009, one Miss Ali, learned counsel for the Defendant, informed court that there is a pending application viz – Notice of Preliminary Objection. She further informed court that they received the Claimant’s application, but that they intend to oppose same.
The Court asked learned counsel for the Claimant when he served the motion paper on the Defendant. He said on the 31st of July, 2009 at 3.25pm.
The Court then observed thus:-
“The Defendant had seven days to respond to the Claimant’s application. He failed to do so, and he has also failed to take any steps to obtain the leave of court to file any such papers in opposition outside of the prescribed time.
In the event, the Defendant is deemed not to oppose the application. The Claimant’s counsel may proceed, as I am guided by the position of the law that where there is an application aimed at terminating proceedings and another application to cure the defect in the proceedings’ the latter of the two competing applications should be entertained by the court first. See on this
MIBIL PRODUCTION NIGERIA UNLIMITED V. CHIEF SIMEON MONOKPO & ORS. (2003) 18 NWLR (Pt.852) 346 and ATTORNEY GENERAL OF THE FEDERATION V. AIC LIMITED & ORS. (1995) 2 NWLR (Pt.378) 388, 397.
The Claimant’s counsel is therefore called upon to move his application.
Mr. Nwana – moves Motion on Notice dated 31st of July, 2009 for an extension of time to relist the suit, etc. adopts written address.
RULING
In view of the failure of the Defendant to take steps in reaction to the motion papers, he is deemed to admit as true he averments of the supporting affidavit. In the event, I hereby exercise my discretion in favour of the Claimant/Applicant on the basis of the material she has placed before me. The application is granted, and the suit is hereby restored on the General Cause List.
However, and in view of the fact that the substantive proceedings of the period after the suit had been struck out by Justice Ashiyanbi, and today (that is, the period of the 10th of October, 2006 till today) were null and void ab initio, it follows that the Pre-Trial Conference in this cause will have to commence de novo.
The case file will therefore be remitted to the Registry for appropriate action by the Administrative Judge.”
The above Ruling is what gave birth to the present appeal.
Dissatisfied, the Defendant/Appellant filed Notice of Appeal in the 17th of September, 2009 encapsulating four Grounds of Appeal.
The Ground of Appeal, shorn of its particulars are as follows:-
Ground No. 1
“The learned trial Judge erred in law when she heard and determined the Respondent’s (Claimant) motion on notice dated 31/07/09 for extension of time within which to bring an application to relist the suit in the lower court (which was struck out on 10/10/06) and to relist same on 04/09/09.”
Ground No. 2
“The learned trial Judge misdirected herself in law in deciding to first hear and determine the Respondent’s motion dated 31/07/09 for extension of time within which to bring an application to relist the suit in the lower court (which was struck out on 10/10/06) and to relist same, before the Appellant’s Notice of Preliminary Objection dated 30/06/09.”
Ground No. 3
“The learned trial Judge wrongly exercised her discretion to hear and determine the Respondent’s motion on notice dated 31/07/09 for extension of time within which to bring on application to relist the suit in the lower court (which was struck out on 10/10/06, and to relist same on 04/09/09”
Ground No.4
“The learned trial Judge denied the Appellant the constitutional right to fair hearing when she heard and determined the Respondent’s motion on notice dated 31/07/09 extension of time within which to bring an application to relist the suit in the lower court (which was struck out on 10/10/06) and to relist same, on 04/09/09.”
In line with the Practice Direction of this Honourable Court, learned counsel for the respective parties filed their briefs of argument. This was after the Appellant/Applicant was granted extension of time to compile the Record of Appeal on the 6th of December, 2010. Same was accordingly deemed filed on that date.
By motion filed on the 17th of March, 2011, wherein the Respondent/Applicant sought leave to raise and argue a point of Preliminary Objection, as contained in the Notice of Preliminary objection dated 28th September, 2010, in her brief of argument, same was granted on the 12th of March, 2012, and accordingly deemed filed on the 12th of March, 2012.
The Appellant filed its brief of argument, on the 1st of March, 2011, but same was deemed filed on the 7th of March, 2011. It is settled by Babatunde Kehinde Esq. He also filed a reply brief on the 1st of April, 2011, in reply to the Respondent’s Brief of Argument filed on the 17th of March, 2011, which was settled by Vincent Ikwunne Nwana Esq
Learned counsel for the respective parties adopted their briefs of argument on the 12th of March, 2012.
The Appellant had proffered and articulated just one issue for determination which is-
“whether or not the Court below was right in hearing the Claimant’s (Respondent) motion on notice dated 31st of July, 2009 (to relist the suit which was struck out on 10th October, 2006) when it did on 4th September, 2009, and whether or not, in so doing, the Defendant (Appellant) was not denied the right to fair hearing. (Arising from grounds 1, 2, 3 and 4 of the Notice of Appeal).
On his part, the Respondent had proffered and articulated two (2) issues for determination in this appeal and they are:
i) Whether the 4 grounds of the interlocutory appeal which bothers purely on facts and or mixed law and facts filed without the leave of the court below or this court is competent (this issue is distilled from the Respondent’s Notice of Preliminary Objection dated 28th September, 2010).
ii) Whether the learned trial Judge of the court below was right in taking the application to relist the suit before the taking of the Appellant’s application to nullity all proceedings conducted while the suit was struck out and in re-listing the said suit first, can it be said that the Appellant was not given fair hearing as alleged. (This sole issue covers grounds 1, 2, 3 and 4 of the Notice of Appeal).
At the forefront of learned Appellant’s counsel’s argument is that the hearing and determination of the Respondent’s motion on notice, dated 31st of July, 2009 (for extension of time within which to bring an application to relist the suit in the lower court, which was struck out on the 10th of October, 2006, and to relist the said suit) was not part of the Court’s business for 4th September, 2009, in that the suit was slated for mention on the said date. He buttresses his submission with the case of PAM & ANR v. MOHAMMED & ANOR (2008) 5-6. S.C. Pt. 183 @ 156 where the Court of Appeal held that a court is bound by its cause list and cannot go outside the business of the day.
Hearing of the motion amounted to miscarriage of justice, he submits.
He submits that the said motion was heard before the Appellant could have sufficient time to file a counter-affidavit in opposition to it.
He submits that although counsel to the Appellant indicated her willingness to oppose the said motion, the court took the non filing of a counter-affidavit to mean that the Appellant was not opposing the said motion. Citing AFRO-CONTINENTAL NIG. LTD. V. CO-OP ASS. OF PROP. INC. (2003) 1 S.C. (Pt. 3) page 1 @ 8 he argues that the court is bound to hear and determine every application before it and the counsel ought not to have ignored the Appellant’s Notice of Preliminary Objection.
He argues that the Notice of Preliminary Objection should have been taken first and determined before taking the motion dated 31st July, 2009 being a motion earlier in time.
Learned counsel contends that the learned trial Judge, not being a pre-trial Judge, but a trial Judge, should not have taken further steps in the matter (by hearing and determining the claimant’s motion dated 31st July, 2009), having observed as at 1st July, 2009, that the suit had indeed been struck out since 10th October, 2006, and had not been relisted.
Submits that the cases of MOBIL PRODUCING NIG. UNLIMITED V. CHIEF SIMEON MONOKPO & ORS. (2003) 18 NWLR (Pt.852) 34 and ATTORNEY-GENERAL OF THE FEDERATION V. AIC LIMITED & ORS. (1995) 2 NWLR (Pt.378) 388, 397 are not applicable to this matter. This is because those cases have to do with a cause or matter that is still pending, and not one in which the substantive suit had been struck out, as in the instant case.
He argues that there was no application by learned counsel to the Respondent to take his application first. The learned trial Judge, he argues raised the issue of priority of application suo motu, without inviting learned counsel to address her on the issue. She ought to have invited counsel to address her, he submits.
He concedes to the fact that the learned trial Judge had a discretion in the matter, but that the discretion must be exercised both judicially and judiciously, citing ILORIN SOUTH L.G.A. VS. AFOLABI (2004) 4 FWLR (Pt.205) 261 @ 274. The learned trial Judge, he submits, had in this present case not exercised her discretion judicially and judiciously.
Learned Counsel for the Respondent had argued, and in Issue No one that the resolution of Issue No. 1 bothers on the interpretation of sections 241 and 242 of 1999 Constitution, the Grounds of Notice of Preliminary Objection, dated 28th September, 2011, and case law, on the mandatory requirement for leave of Court to file interlocutory appeal when the grounds bother on facts and mixed law and facts.
That a critical examination of the grounds of appeal shows clearly that it is one of mixed law and facts. That the Notice of Appeal filed in the registry of the Court below was one for an interlocutory appeal. Therefore he submits, leave to counsel to appeal will not be required where the interlocutory appeal is purely on points of law. But where it is one of mixed law and facts, leave must be obtained to Appeal. This, he submits has not been sought and obtained. The application as it is, he submits, offends section 242(1) of the 1999 Constitution. Therefore this appeal is incompetent ab initio.
That the Ruling of the Court below of 4th September, 2009, relisting this suit, being an interlocutory decision, leave of either that Court or of the Court of Appeal must be obtained before appeal.
This is because Grounds 1, 2, 3 and 4 of the decision of the Court below raise either issues of fact, or at best, grounds of mixed law and facts, and failure to obtain the relevant leave makes the four grounds of appeal liable to be struck out; incompetent and incurably defective.
Learned counsel’s contention is that Grounds one and two of the Notice of Appeal, being complaint against the hearing of the Motion on Notice dated 31/07/2009 for extension of time, and relisting of this suit struck out on the 10th of October, 2006, shows that the finding of the court on this issue is purely on facts and has no coloration of pure grounds of law.
He submits that Grounds 3 and 4 of the Notice of Appeal is a complaint of exercise of discretion of the Court, to hear the application to relist first, and denial of fair hearing.
He argues that the Appellant should have shown the injustice and prejudice he has suffered for the re-listing of the suit on 4th of September, 2009, and that this must form the kernel upon which this appeal can be considered, and in the absence of which it must be dismissed.
He urges Court to reserve Issue No. 1 in favour of the Respondent.
On Issue No. 2, learned counsel submits that if the Court rightly upholds their Preliminary Objection under Issue No. 1, there will be no need to consider Issue No. 2. That as at the time the Appellant filed an application dated 30th June, 2009, to set aside all proceedings of the lower court conducted while the suit was struck out, the suit was already dead, and the Court was functus officio. Therefore, until the suit is re-listed, the lower court cannot hear any application including the one brought by the Appellant, citing OKON V. EDET (2008) All FWLR. Pt. 437, Pg. 189.
He submits that the reason why the Court below re-listed the suit, nullified all proceedings, and ordered that the pre-trial conference commence de novo, was to accord the Appellant his constitutional right of fair hearing at the pre-trial conference, and the main trial. He contends that learned counsel for the Appellant, had misconstrued the concept of fair hearing. He urges Court to resolve Issue No.2 in favour of the Respondent.
So much for submission of learned counsel for the respective parties.
I would want to borrow a leaf from submission of learned counsel for the Respondent, as reflected at page 6 paragraph 4.1 of his brief of argument, that the gravamen of the Appellant’s appeal is anchored on these two premises. They are:
a) That the court below ought to take his notice of preliminary objection dated 30th June, 2009 to nullify all proceedings of the court conducted while the suit was struck out before taking the respondent’s application dated 31st July, 2009 to relist the suit said to have been struck out on 10th October, 2006 back to the general cause list.
b) That in re-listing the suit on 4th September, 2009, and mollifying all proceedings conducted while the suit was struck out vide Respondent’s application dated 31st July, 2009, the Appellant was not giving fair hearing of the Appeal and the Appellant’s brief of argument dated 1st March, 2011.
Before I consider this appeal, it is needful to consider the argument of learned counsel for the Respondent that the appeal, being based on an Interlocutory appeal, which grounds border on issues of mixed law and fact, the Appellant was mandated by the Constitution to have sought leave of the lower Court, or this Court before bringing this appeal. This is pursuant to section 242(1) of the Constitution of the Federal Republic of Nigeria 1999.
It is pertinent to take a look at the Grounds of Appeal, to consider whether the Grounds deal with issues of Law simpliciter, or of mixed law and facts. If they are of mixed law and facts, then leave is constitutionally required, and failure to seek and obtain the required leave is fatal to this appeal.
A cursory look at the Grounds of Appeal, show, without doubt that they bother on issues of facts, as it affects the exercise of the learned trial Judge’s discretion – Ground 1, 2 and 3, are issues of mixed law and facts, as it affects the issue of fair hearing – Ground 4.
Appellation given to Grounds of Appeal is not conclusive, as one has to look at the particulars whether it is one of law or mix law and fact. ABIGOYE V. ALAODE (2001) 6 NWLR Pt.709 at 463; TILBURY CONSTRUCTION CO. LTD. V. OGUNBIYI (1988) 2 NWLR Pt. 74 at 64.
The Supreme Court in a motley of decisions had laid down the general principles for determining whether a ground of appeal is that of law, fact, or mixed law and facts.
A question of law is given three distinct meanings as follows:-
(1) A question the Court is bound to answer in accordance with a rule of law. The question is already determined and answered by the laws.
(2) That which explains what the law is. An appeal on a question of law in this sense means an appeal in which the question for argument and determination is what the true law is on a certain matter for example, a question relating to the Constitution of a statutory provision.
(3) All question within the indicial powers of a judge to determine and not that of a Jury for instance the interpretation of documents.
Decidedly a ground involving a question of law alone is unique, but where it deals with evidence produced or adduced at the trial and challenges the findings of facts, it cannot be said to be of law alone. See OJEMEN & ORS. V. MOMODU & ORS. (1983) 3 S.C. 173.
Section 241 of the Constitution of the Federal Republic of Nigeria 1999 has in its Provision thus: inter alia
“An appeal shall lie from decision of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases.
(a) final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance.
(b) where the Ground of Appeal involves questions of law alone, decisions in any civil or criminal proceedings.
(c) ………………………………………….
(d) ………………………………………….
(e) ………………………………………….
(f) ………………………………………….
In section 242 it has this to say-
“Subject to the provision of Section 241 of this Constitution, an appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal with the leave of the Federal High Court or that High Court or the Court of Appeal.” (Underlined for emphasis).
Now, this appeal is one in respect of an interlocutory appeal. This, ab initio brings this appeal within the ambit and definition of Section 242 of the Constitution, not being an appeal in respect of a final decision.
Again, as earlier observed, the Grounds of Appeal in form and substance dwell on issues of mix law and facts, and in essence grieves about the exercise of the learned trial Judge’s discretion at the lower court.
These elements, enables me to state categorically that this is a situation where the Appellant should have sought and obtained the relevant leave before bringing this appeal. Regrettably, they have not done this, and this lacuna is fatal to this appeal. It renders the notice of appeal grossly incompetent. GENERAL ELECTRIC CO. V. AKANDE & 4 ORS (2010) 12 NWLR Pt. 11, Pg. 490 at 506.
This alone, is enough basis to truncate this appeal.
But assuming I am wrong, a painstaking look at the Grounds of Appeal, show that essentially, the grouse of the Appellant, deals with the exercise of the learned trial Judge’s discretion in granting the application to re-list (this is inherent in all the Grounds of Appeal which has been re-produced earlier on in this Judgment).
It is trite that an Appellate Court will always be in favour of doing substantial justice in a case, rather than hanging on technicality. NDAYAKO V. DANTORO (2004) 13 NWLR Pt.889 @ 218.
Any application is subject to the justiciable discretion of the Court.
Apart from mere technicalities or incompetence, or otherwise, in the exercise of judicial discretion, the primary objective of the court must be to attain substantial justice, and acting judicially requires the consideration of the intent of both parties, and weighing them in order to arrive at a just and fair decision. DADA V. ITL. (2005) 11 NWLR Pt. 936 at 300 paragraph f.
In A-G OF THE FEDERATION v. A.I.C. LTD. (1995) 2 NWLR Pt. 378, Page 1 at 397 paragraphs e-f, it was held inter alia that where in a case, there are two adversely competing motions before a Court, one of the motions CONSTRUCTIVE and the other potentially DESTRUCTIVE, the Court will normally proceed to take the former motion first unless it will be inequitable to do so, so that if it succeeds, there would be no need for the latter motion which will be withdrawn and struck out accordingly.
In the present case and from records, the suit was struck out on the 10th of October, 2006, and not dismissed.
How could a notice of Preliminary Objection be taken in a non-existent suit? It is sheer common sense, which accords with prudence, that until the suit is relisted, no processes, no matter how important, can be entertained. You cannot put something on nothing.
The Notice of Preliminary Objection was filed on the 30th of June, 2009.
What was the Notice of Preliminary Objection predicated upon? It is to the effect that the Court cannot continue to hear the case. It is my humble view that whether a Notice of Preliminary Objection is pending or not, a party is at liberty to apply that a struck out suit be relisted.
When, by Motion on Notice dated the 31st of July, 2009 and filed on same date, the Claimant/Applicant, who is Respondent in this appeal sought to relist the suit, which application was in my view CONSTRUCTIVE, in that it sought to bring to bear the hearing of the merits of the case which was earlier struck out, the Appellant was obligated to have allowed her to so do.
To prioritize applications before it, is wisdom on the part of the Judge to know firsthand, what applications should be taken first. To take applications at will, faced with many applications, would portray lack of judicial skill on the part of the Judge. He should know, and give priority to applications which can bring back to life a matter, and those that would destroy it to the prejudice of a party. It purely is discretionary on his part, which discretion must be exercised not only judicially but judiciously.
Now, when a Court strikes out a matter, it is functus officio, until that matter comes back by way of a motion to relist. Anything which the Court does after the striking out would amount to a nullity.
But, where it is shown that a deserving party, seeks to relist a suit which has been struck out, without abusing the process of the Court, and where it has not been shown that the application is vexatious, or prejudicial to the adverse party, then the matter shall be relisted.
The hue and cry by learned counsel for the Appellant, about the issue of fair hearing is a total misconception.
At page 60 of the Record of Appeal, the learned trial Judge had observed (rightly in my view) thus:-
“The Defendant has seven days to respond to the Claimant’s application. He failed to do so, and he has also failed to take any steps to obtain the leave of court to file any such papers in opposition outside of the prescribed time. In the event, the Defendant is deemed not to oppose the application.”
He further went on
“….The Claimant’s counsel may proceed, as I am guided by the position of the law that where is an application aimed at terminating proceedings, and another application to cure the defect in the proceedings, the latter of the two competing applications should be entertained by the Court first. See on this MOBIL PRODUCING NIGERIA UNLIMITED V. CHIEF SIMEON MONOKPO & ORS. (2003) 18 NWLR (Pt.852) 346 and ATTORNEY-GENERAL OF THE FEDERATION V. A.I.C. LIMITED & ORS. (1995) 2 NWLR Pt.378 at 388, 397.
I simply cannot fault the exercise of this discretion, as it was exercised judicially and judiciously. This is my view.
The learned trial Judge was not obligated to call on counsel to address it, in deciding which application to take first.
The legal requirement to entertain Preliminary Objection first in any proceeding, admits of the fact that there has to be an existing suit.
It is my humble view, that assuming the Notice of Preliminary Objection was given a pride of place, the failure of the Appellant to apply for, and obtain the relevant leave before filing this appeal, makes the entire appeal incompetent, and I so hold. This is because the Grounds of Appeal in my view deal with issues of mixed law and facts.
In his sole issue for determination, the Appellant has also referred to the issue of fair hearing, to the end that the Appellant was denied fair hearing. The failure of the Appellant’s sole issue for determination knocks the bottom off the contention by learned counsel, of denial of fair hearing due to the exercise of the learned trial Judge’s discretion.
Section 36 of the Constitution of the Federal Republic of Nigeria 1999 amplifies the Rules of Natural Justice, which must be observed by any tribunal or body which is under authority to act judicially – GARUBA UNI MAID (1986) 1 NWLR Pt. 550 at 552.
The Appeal, as it is, is bereft of merit, as the Notice of Appeal is incompetent and same ought to be dismissed and same is hereby dismissed accordingly.
The Ruling of Honourable Justice L.A. Okunnu of 4th September 2009 is hereby affirmed, with N30,000 costs in favour of the Respondent.
K.B. AKAAHS, J.C.A.: I read before now the judgment of my learned brother, Pemu JCA with which I agree. The greater interest of justice was served by the learned trial judge taking the motion to re-list the Suit earlier struck out on 10/10/2006. It was within the learned trial Judge’s absolute discretion to allow the application for re-listing the suit to be moved first even though the Notice of Preliminary Objection seeking to terminate the suit was filed earlier in time. The action of the learned judge was based on sound principles of law and justice. See: Attorney-General of the Federation v. A.I.C. Limited & Ors. (1995) 2 NWLR (Pt. 378) 388 at 397 and Mobil Nigeria Unlimited v Chief Simeon Monokpo & Ors (2003) 18 NWLR (Pt. 852) 346. The arguments of learned counsel for the appellant are puerile and worthless.
I therefore agree with the lead judgment that the appeal is incompetent, completely devoid of merit and it is dismissed with N30,000.00 costs in favour of the respondent.
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.: My learned brother, the Hon. Justice R.N. Pemu, JCA has given me a copy of the judgment just delivered. Unhesitatingly, I hereby concur with the reasoning and conclusion reached in the said judgment, to the effect that the instant appeal is bereft of merits.
Hence, having adopted the reasoning of my learned brother as mine, I too hereby dismiss the appeal with N30,000.00 costs to the Respondent.
Appearances
Babatunde Kehinde Esq.For Appellant
AND
Anne Aimua Esq.For Respondent
