VINCENT ONIYA ANOR. v. ADEBUSOYE AYO AUGUSTINE
(2013)LCN/5950(CA)
In The Court of Appeal of Nigeria
On Thursday, the 21st day of February, 2013
CA/B/199/2009
RATIO
JURISDICTION OF THE COURT TO SET ASIDE ANY IN DEFAULT OF APPEARANCE OF A PARTY OR BOTH PARTIES.
Now, Or.37 r 9 of the High Court (Civil Procedure) Rules, 1988 provides as follows:
Any judgment obtained where one party does not appear at the trial may be set aside by the court upon such time 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. Or.37 r 6(2) provides: If when the trial of an action is called on neither parties appear, the action may be struck out of the list without prejudice to the restoration thereof on the direction of a judge. Per. HELEN MORONKEJI OGUNWUMIJU, J.C.A.
PRACTICE AND PROCEDURE: WHETHER THE COURT HAS A DUTY TO GRANT AN APPLICATION BROUGHT UNDER A WRONG RULE OF COURT
It is now trite that the court is entitled to grant an application brought even under a wrong rule of court provided there is a legal basis for it. See Maja v. Samouris (2002) 9 NSCQR Pg.546 at Pg.567. In Uchendu v. Ogboni cited supra, the Supreme Court held as follows: “It is true that a particular rule of Court or law under which a motion is brought is generally stated on the motion paper but failure to do this will neither make the motion incompetent nor the order granted upon the motion invalid so long as there exist a rule or law which can back up the motion.” While Or.37 r 9 deals with how to set aside a judgment delivered in default of appearance of a party, Or.37 r 5(2) deals with striking out a case for want of diligent prosecution. It is clear that the requirements needed to grant any application under Or.37 r 9 are as follows:
1. Reason for the applicant’s failure to appear in court at the hearing of the case.
2. Whether there has been undue delay in making the application for relisting and or setting aside the order striking out the suit.
3. Whether the party in whose favour the order subsist would be prejudiced or embarrassed upon an order for relisting of the suit being made so as to render such a cause inequitable.
4. Whether the applicants’ case is manifestly unsupportable.
5. The conduct of the applicant throughout the proceedings.
See Credit Alliance Services Ltd. v. MULTA (1998) 10 NWLR Pt.569 pg.341 at 349. The trial court did not set aside a judgment in default contrary to the rules set down in Williams v. Hope Rising supra. Per. HELEN MORONKEJI OGUNWUMIJU, J.C.A.
THE ATTITUDE OF THE COURT TO WAIVE STRICT COMPLIANCE WITH RULES WHERE THE JUSTICE OF THE CASE PERMITS.
In Ushae v. C.O.P Cross River supra, the court held as follows:
“… Judgment has been shown to mean a decision or determination in relation to a Court just as “ruling”. However, in contradistinction to ruling, judgment represents a final decision of the Court resolving the dispute and determining the rights and obligations of parties.” What was set aside was neither a judgment nor a ruling but an order striking out the case in default of appearance of parties. I do not think the conditions precedent to activate a prayer under Or.37 r 9 are applicable under Or.37 r 6(2) which is the applicable order in the circumstances of this case. Most important of all to me is the fact that in my humble view, there has been no miscarriage of justice and I do not see how the Appellants have been prejudiced by the re-listing of the suit. The attitude of the courts has changed after Williams v. Hope Rising and under most rules of court a judge can exercise discretion in deserving cases to waive strict compliance with the rules where the justice of the case permits. Per. HELEN MORONKEJI OGUNWUMIJU, J.C.A.
JUSTICES
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria
TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria
Between
1. VINCENT ONIYA
2. CHISCO TRANSPORT SERVICE (NIG.) LTD. Appellant(s)
AND
ADEBUSOYE AYO AUGUSTINE Respondent(s)
HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the leading Judgment): This is an appeal against the ruling of Honourable Justice R. P. I Bozimo of the Delta State High Court of Justice sitting at Asaba delivered on 5th March 2009 wherein the Suit No.A/81/2007 hitherto struck out was relisted. The facts giving rise to this appeal are as follows:
The case of the Plaintiff now Respondent at the lower court was struck out by the learned trial judge by an order dated 7th November 2008 at the request of Defendants now Appellants’ Counsel for want of diligent prosecution. On the day the order was made, both parties were absent and the Plaintiff was unrepresented by counsel. Subsequently on 16th January 2009, the Plaintiffs filed a motion brought pursuant to Order 37 Rule 9 of the Delta State High Court (Civil Procedure Rules) 2009, praying the court for an order setting aside the order of 7th November 2008 and an order relisting the suit. The Respondent moved his motion and the orders sought were granted by a ruling dated 5th day of March, 2009.
Dissatisfied with this ruling,the Appellants brought this appeal by a Notice of Appeal dated 18th March 2009. The Appellants’ Counsel filed the Appellants’ Brief of Argument on 31st June 2009 while the Respondent’s Brief of Argument was filed on 2nd December 2009. A Reply to the Respondent’s Brief was also filed by the Appellant on 6th April 2011.
In the Appellants’ Brief settled by Chief I. M. Anah (Esq.), the following issues were raised for determination in this appeal:
1. Whether the motion of the respondent as the applicant at the court below for setting aside dated and filed 16th January 2009 was competent and the court seized with jurisdiction to entertain it having in mind that it was filed out of time without a separate prayer or relief for extension of time (Ground 1)
2. Assuming without conceding that the motion had a separate prayer or relief for extension of time, whether the respondent as applicant in the court below in the motion for setting aside satisfied the principles of law laid down by the Supreme Court in the case of Williams and Ors. v. Hope Rise Voluntary Society (1982) 1 All NLR (Reprint) 1 in the circumstances of similar application to warrant the lower court granting the motion particularly its prayer for setting aside (Ground 2).
The Respondent in his brief of argument settled by O. R. Ituru Esq. also extracted 2 issues for determination as follows:
1. Whether Order 37 Rule 9 of the High Court (Civil Procedure) Rules, 1988 of Defunct Bendel State as applicable to Delta State and the authority of Williams & ors v. Hope Rise Voluntary Society (1982) 1 All NLR p.1 are applicable to proceedings setting aside an order of Court striking out a suit in default of appearance of parties?
2. Whether the motion of the Respondent as Applicants at the Court below dated and filed on the 16th January, 2009 was competent?
I have read the arguments and submission of both counsel and the sole issue, I find necessary for the determination of this appeal which touches on all the issues formulated by the Appellants and Respondent is as distilled by me bellow:
ISSUE ONE
Whether the motion dated and filed 1/6/1/2009 to relist the Plaintiff/Respondent’s case was competent in the circumstances of this case.
It is the contention of the Appellants’ Counsel on this issue, that the Respondent’s motion for setting aside and relisting was incompetent and that the lower court had no jurisdiction to entertain same. This, he contended, is due to the fact that the motion was filed out of the time stipulated by the rules of court without the inclusion of a separate prayer for extension of time in the said motion. Counsel submitted that a case or motion is only competent when it is initiated according to due process of law and there is nothing in the case preventing the court from exercising jurisdiction over it. Counsel cited the case of Madukolu v. Nkemdilim (1962) 2 SCNLR 341.
Appellants’ Counsel contended that in the instant case,the time allowed by law for the filling of Respondent’s motion was six days and that since it was not brought within such time, it was incompetent ab initio. Counsel submitted that it was only a successful prayer for extension of time that would have prima facie made it competent and that where a prayer for extension of time is not granted, that would be the end of such application as the court would not bother to consider the application to set aside. Counsel relied on the case of Williams & Ors.v. Hope Rising Voluntary Society (1982) 1 All NLR p.1 at 9.
Counsel submitted that it is clear from Williams & v. Hope Rising supra at pages 6 -7 that in an application for setting aside brought out of time, the trial court ought to consider two separate reliefs, one for extension of time and the other for setting aside and if the first fails, the second one should not be considered. Counsel submitted that on the authority of the above case, an application for extension of time, where included, could even fail if sufficient reason for the delay is not given by the applicant. Counsel stated that in this case, no extension of time was asked let alone a sufficient reason placed before the court to justify the delay. Counsel contended that by this failure and the trial court’s grant of the application despite the non-inclusion of a prayer for extension of time, the principle established in Williams v. Hope Rising supra was not satisfied by the Respondent to warrant a grant of his application by the trial court.
Counsel stated that Respondent’s clear violation of the principle in Williams v. Hope Rising is also evident in the fact that he did not indicate in his affidavit the time he became aware of the order sought to be set aside vis-a-vis the time he filed his application to enable the court determine whether or not he was guilty of deliberate or undue delay. Counsel further stated that as contained in his counter affidavit before the lower court, the Respondent and his counsel were guilty of undue delay and lack of diligence in the prosecution of their case judging by their repeated absence in court on hearing dates notwithstanding their residence within the court’s jurisdiction unlike the Appellants and their counsel who reside out of jurisdiction and were coming to court. He argued that Respondent ought to have come to court to make necessary enquiries timeously about his case. Counsel submitted that it is trite that hearing notice is not granted as of right to a lazy or indolent litigant who had every opportunity to know the position of his case.
Counsel urged this court to therefore set aside the trial court’s decision on the basis of the Supreme Court authority as the decision was given upon a wrong principle of law.
On the issue of the competence of the Respondent’s Application, Respondent’s Counsel argued that Or.37 r 6(2) of the High Court (Civil Procedure Rules) 1988 gives the trial court the jurisdiction to restore any matter struck out in default of appearance of both parties.
Counsel contended that in this case, both parties were not present in court when the case was struck out. Counsel submitted that the court below was therefore competent to set aside its order striking out the Respondent’s suit and order its restoration on the cause list. Counsel submitted that Or.37 r 6(2) does not prescribe a time limit for an applicant to apply to court to have his suit restored.
Respondent’s Counsel further submitted that the Respondent’s failure to bring his application under Or.37 r 6(2) of the High Court (Civil Procedure) Rules, 1988 or his bringing same under a wrong rule of court does not render the motion incompetent. Counsel cited Uchendu v. Ogboni (1999) 5 NWLR (Pt.603) 337 at 351.
Counsel submitted that Or.37 r 6(2) of the High Court (Civil Procedure) Rules, 1988 can back up the order of the lower court setting aside its own order to strike out the Respondent’s suit and that the mere fact that the motion was brought under a wrong rule cannot render the motion or the order granted thereunder incompetent. Counsel also cited the case of Maja v. Samouris (2002) 9 NSCQR 546 at 567.
Counsel contended that the Appellants in this case have not stated what miscarriage of justice, if any, they suffered as a result of the court order relisting the suit for same to be heard on merit. He stated that the suit was initiated in 2007 and the statement of claim filed on 9th May 2007 and that the Defendants/Respondents’ Counsel up till the filing of this brief was yet to file the statement of defence but had engaged in mere filibustering and raising baseless issues. Counsel urged the court to resolve the issues in favour of the Respondent and dismiss this appeal.
Counsel argued that the case of Williams v. Hope Rising supra is concerned with an application for setting aside a judgment of court and that in contrast to this, the Respondent’s application before the lower court was to set aside an order striking out his case in default of appearance of parties and that Or.37 r 9 does not apply to this case. Respondent’s Counsel submitted that in the same vein, Or.37 r 9 is only applicable to cases where an applicant seeks to set aside the judgment of a court.
Counsel argued that in the case under consideration in this appeal, there was neither trial nor judgment within the meaning of the definition of either trial or judgment and that the ruling of the court on of 5th March 2009 is clearly neither a final decision of court nor a final resolution of dispute between parties. Counsel submitted it is therefore not a judgment within the meaning of Or.37 r 9 of the High Court (Civil Procedure Rules) 1983 and the decision in Williams v. Hope Rising supra. He cited Ushae v. C.O.P Cross River (2006) All FWLR Pt. 313 pg.86 at 112.
In the Reply Brief filed by Appellant, Appellants’ Counsel, Chief I. M. Anah contended that it was Or.37 r 9 of the High Court (Civil Procedure Rules) 1988 under which the Respondent Counsel brought the application to relist the suit struck out. Counsel submitted that having activated the power of the court through the said Order and having thereby obtained a favourable decision, Respondent’s Counsel cannot now turn around to claim the Order was not applicable to the proceedings because in law, one cannot approbate and reprobate in one breath – qui approbate non reprobate. He contended that the Respondent having enjoyed the benefit of Or.37 r 9 they must suffer the detriment of not ensuring that they comply with its requirement.
Appellants’ Counsel argued that default judgment can be set aside by the judge who gave it. Counsel cited the cases of F. I. B Plc v. City Express Bank (2004) 6 NWLR (Pt.869) 236 and A.I.B Ltd. v. Packplast (Nig) Ltd (2004) 3 NWLR (Pt.859) 129.
In the Additional authorities filed by Appellants ‘Counsel, the following Supreme Court cases were cited Shelim v. Gobang (2009) 12 NWLR (pt.1156) SC 435 P.452 paras A – G, 45 paras B – E, pp 459 – 461 paras E and S.L.B consortium Ltd. v. N.N.P.C (2011) 9 NWLR (Pt.1252) S.C. 317.
We have been asked to review the discretion of the learned trial judge and the competence of the motion itself. At the trial, the learned trial judge after the motion was moved, ruled as follows:
“I am satisfied looking at the case file that Hearing Notices were issued on the parties. What is not certain is whether the parties were served as there is no Affidavit of Service in the case file. I will on this ground set aside the order of the court made on 6/11/08 striking out this suit. The Order is hereby set aside. Suit No.A/81/07 is hereby relisted and placed on the cause List for hearing. I make no Order as to costs.”
The main argument of the Appellant is that Respondent’s motion dated and filed on 16/1/2009 is incompetent because it did not meet the condition precedent for initiating the process. Much was made of the Supreme Court authority of Williams v. Hope Rising supra. I may add that the Appellants’ Counsel persistently and erroneously referred to the case as Williams v. Hope Rise (sic) Voluntary Funds Society. There is no doubt that in Williams v. Hope Rising, the Supreme Court set out what the applicant must show in an application for extension of time to apply for a court to set aside its own judgment in the absence of one party and the effect of non-compliance with the rules of court in that regard.
I am in complete agreement with the distinction made by learned Respondent’s counsel between the facts and the rules to be administered in the instant case and the case of Williams v. Hope Rising.
Let us look at the two pertinent rules of court. The applicant brought the motion under Or.37 r 9.
Now, Or.37 r 9 provides as follows:
Any judgment obtained where one party does not appear at the trial may be set aside by the court upon such time 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.
Or.37 r 6(2) provides:
If when the trial of an action is called on neither parties appear, the action may be struck out of the list without prejudice to the restoration thereof on the direction of a judge.
Respondent’s Counsel conceded that the latter rule is the relevant rule and that the motion should not have been brought under the former rule.
It is now trite that the court is entitled to grant an application brought even under a wrong rule of court provided there is a legal basis for it. See Maja v. Samouris (2002) 9 NSCQR Pg.546 at Pg.567. In Uchendu v. Ogboni cited supra, the Supreme Court held as follows:
“It is true that a particular rule of Court or law under which a motion is brought is generally stated on the motion paper but failure to do this will neither make the motion incompetent nor the order granted upon the motion invalid so long as there exist a rule or law which can back up the motion.”
While Or.37 r 9 deals with how to set aside a judgment delivered in default of appearance of a party, Or.37 r 5(2) deals with striking out a case for want of diligent prosecution. It is clear that the requirements needed to grant any application under Or.37 r 9 are as follows:
1. Reason for the applicant’s failure to appear in court at the hearing of the case.
2. Whether there has been undue delay in making the application for relisting and or setting aside the order striking out the suit.
3. Whether the party in whose favour the order subsist would be prejudiced or embarrassed upon an order for relisting of the suit being made so as to render such a cause inequitable.
4. Whether the applicants’ case is manifestly unsupportable.
5. The conduct of the applicant throughout the proceedings.
See Credit Alliance Services Ltd. v. MULTA (1998) 10 NWLR Pt.569 pg.341 at 349.
The trial court did not set aside a judgment in default contrary to the rules set down in Williams v. Hope Rising supra. In Ushae v. C.O.P Cross River supra, the court held as follows:
“… Judgment has been shown to mean a decision or determination in relation to a Court just as “ruling”. However, in contradistinction to ruling, judgment represents a final decision of the Court resolving the dispute and determining the rights and obligations of parties.”
What was set aside was neither a judgment nor a ruling but an order striking out the case in default of appearance of parties.
I do not think the conditions precedent to activate a prayer under Or.37 r 9 are applicable under Or.37 r 6(2) which is the applicable order in the circumstances of this case.
Most important of all to me is the fact that in my humble view, there has been no miscarriage of justice and I do not see how the Appellants have been prejudiced by the re-listing of the suit. The attitude of the courts has changed after Williams v. Hope Rising and under most rules of court a judge can exercise discretion in deserving cases to waive strict compliance with the rules where the justice of the case permits. Apart from the fact that the technical point being canvassed by the Appellants is of no avail, the affidavit of the Respondent as applicant at the trial court on Pg.16 – 17 of the record shows reasons for the absence of the party on that day. This was conceded to by the trial judge who observed in the ruling relisting that there was no proof of service of hearing notices on the plaintiff now Respondent.
In the circumstances, this appeal is completely without merit. The ruling of the trial court made on 5th March 2009 is hereby affirmed. The case is remitted back to the Chief Judge of Delta State to be put on the general cause list and assigned to a judge. Appeal Dismissed. I award N50,000 costs to the Respondent against the Appellants.
SIDI DAUDA BAGE, J.C.A.: I have read in draft the Judgment of my brother, H. M. OGUNWUMIJU JCA, I am in complete agreement with all the reasonings, and the conclusion reached, that the appeal is without merit. The ruling of the trial court made on 5th March 2009 is also affirmed by me.
I abide by the consequential order contained in the lead Judgment, and the order as to costs.
TOM SHAIBU YAKUBU, J.C.A.: I was privileged to have read the draft of the judgment of this Court, delivered by my Lord, HELEN MORONKEJI OGUNWUMIJU, JCA who dealt exhaustively with all the issues therein, to my satisfaction. I am in total agreement with the reasoning and conclusion therein, such that I have nothing more useful to add to it.
I, too dismiss the appeal. I abide by the consequential orders contained therein, including the order as to costs.
Appearances
Chief I. M. Anah Esq.For Appellant
AND
O. R. Ituru Esq.For Respondent
