Vincent Oniya Anor. V. Adebusoye Ayo Augustine (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

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.