Resident Ofioguma & Anor V. Fredrick Erhire Ibuje & Anor (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

RAPHEL CHIKWE AGBO J.C.A. (Delivering the leading judgment)

The appellants were plaintiffs in Suit No. HCC/128/2000 pending at the High Court of Delta State sitting at Otu-Jeremi. The Suit has had a protracted history having earlier been heard by the High Court of Bendel State sitting at Ughelli with Suit No. UHU/52/75 before being assigned by the Chief Judge of Delta State to Hon. justice P.I.O. Anigboro sitting Ototu Jeremi.

On 26/6/2001, the appellants as plaintiffs filed a motion in the High Court praying the court for an order “admitting in this Suit a Certified True Copy of the Evidence of plaintiffs witnesses (i.e. P.W.1, P.W.2, P.W.3 and P.W.4) each of whom testified in this Suit before Hon. justice W.A.O. Onoriobe”. The case had earlier been fixed as a special fixture for hearing on 27/6/2001. This motion filed on 26/6/2001 was fixed for hearing on 27/6/2001. The case had to be adjourned to 24/7/2001 to enable respondent’s counsel study the application and react thereto.

On 20/7/2001 the plaintiff’s counsel was absent in court. 1st plaintiff was in court. He brought a letter from his counsel seeking an adjournment of the case to either 27/7/2001, 30/7/2001 or 6/8/2001, all dates within the vacation period of the court. The reason given by counsel in his letter was that all counsel in chambers had proceeded to Benin for the special court session in honour of late Chief Ihiensekhien (SAN). The trial Judge asked the 1st plaintiff to proceed with the matter as he would not grant the mischievous application.

The 1st plaintiff declined saying he needed counsel to lead him and sought an adjournment. The trial Judge refused and struck out the suit.

On 6/8/2001 the plaintiffs filed a motion at the High Court praying the trial court for (1) an order extending time within which the plaintiffs are to apply to the High Court for an order relisting the suit struck out on 20/7/2001 and (2) an order relisting the suit struck out on 20/7/2001. On 27/9/2001 the trial court took argument from the plaintiff’s counsel who relied on Order 37 Rule 6(2) of the High Court (Civil Procedure) Rules 1988 of Bendel State applicable to Delta State and Order 47 of the said Rules.

The trial court adjudged the motion thus:

“Court: I find no merit in this application. Counsel in moving the motion relied on order 37 rule 6(2) of the High court Rules of 1988 and also Order 47 Rule of the same Rule. The court consider the two Rules not applicable to the facts of this case as 1st plaintiff was present in court when the suit was struck out but refused to proceed with the case because his counsel were absent.

In moving the motion, O. Egbon moved the motion in terms of the two prayers set out in the motion papers that is to say:

1. Extension of time within which plaintiffs/applicants are to apply to this Honourable court for an order relisting this suit which was struck out on the 20/7/2001.
2. Relisting this suit which was struck out on the 20/7/2001.

As stated above the orders relied on to move the motion do not provide for the situation that led to the case being struck out. Counsel in his argument did not show to the court the rules of court which provides for the relisting of the case struck out in the circumstance under which the case was struck out on the 20/7/2001 within a particular period of time which had expired or at all. I could not find one myself. I do not know of any authority which empowers the court to reverse its order made in the circumstance which the case was struck out. I am bound by the rule of court. It is my view that a court should not make its order for the fun of making it. It has to be based on justice of the case; which means justice to all parties in the case. I consider reversing my order duly made without any law to that effect will not be justice according to law.

In the case of Willougby v. International Merchant Bank Ltd. (1987) 1 SC 137, 160-161, Eso JSC said inter alia ” justice is done once it is according to law; a law must necessarily include procedure laid down for its attainment. A Judge must be bound by rules, accepted rules made under the law of the land.

In view of the above I consider that it is in the interest of justice that the court should act as guided by law otherwise in justice will be done to the other party who also stand to benefit from the order of the court. The motion is in the circumstances dismissed.”

Dissatisfied with this ruling, the appellants sought the leave of this court to appeal. Leave was granted on 4/2/2010 with an extension of 14 days within which to appeal. On 17/2/2010 the appellants filed this notice of appeal. The notice of appeal contains three grounds to wit:-

“Ground 1