Need for Wholesome Consideration of Facts in Court’s Exercise of Discretion

In the Supreme Court of Nigeria

Holden at Abuja
On Friday, the 10th day of January, 2025

Before Their Lordships
Emmanuel Akomaye Agim
Haruna Simon Tsamman

Stephen Jonah Adah
Jamilu Yammama Tukur
Mohammed Baba Idris
Justices, Supreme Court
SC/330/2017

Between
ALHAJI BASHIR ABUBAKAR KOKO APPELLANT
And
ALHAJI DAN IGE HORO RESPONDENT

“…whenever there is an opportunity to determine a case on its merit, the court should not succumb to the temptation of hastily determining it because of delay in prosecuting the case.”

(Lead Judgement delivered by Honourable Mohammed Baba Idris, JSC)

Facts
The Appellant filed an action at the High Court of Sokoto State in Suit No. 22/48/2007, seeking a declaration of title to a parcel of land, amongst other reliefs against the Respondent. After the suit was filed, the counsel for the Appellant did nothing to further the prosecution of the suit, and this led to the striking out of the suit for want of diligent prosecution on 31st April 2008. Counsel for the Appellant applied for the relisting of the suit, and the suit was relisted by the order of the trial court in the same 2008. Again, the Appellant did not take any further steps towards the prosecution of the relisted suit and on 5th May 2011, the suit was dismissed for lack of diligent prosecution.

About 15 months after the suit was dismissed, the Appellant filed an appeal at the Court of Appeal with leave of the Court of Appeal. The record of the trial court was transmitted to the Court of Appeal on 7th December 2012. Following the entry of the appeal and the failure of the Appellant to file his brief thereafter, the Respondent filed an application on 31st October 2013 for the dismissal of the appeal for want of prosecution. The Appellant reacted by filing an application for enlargement of time within which to file the Appellant’s brief of argument and to deem the brief already filed as properly filed and served. The Court of Appeal refused the Appellant’s application and proceeded to hear and grant the Respondent’s application for dismissal of the appeal for want of prosecution. Consequently, the Court of Appeal dismissed the appeal. Dissatisfied, the Appellant appealed to the Supreme Court.

Issue for Determination
The Supreme Court reformulated the issue for determination as follows: Whether the lower court was right in dismissing the Appellant’s appeal.

Arguments
Counsel for the Appellant argued that the Court of Appeal did not exercise its discretion in the interest of justice in the face of the prevailing circumstances of the case, particularly since the cause of the delay was not from the Appellant. Counsel also argued that it is settled law that where there are two motions, one for the dismissal or striking out of proceedings for want of prosecution and the other for the extension of time within which to regularise the proceedings, a court of law and equity ought to grant the latter in the
interest of justice. Counsel submitted that instead of dismissing the appeal, the Court of Appeal could have remedied the situation by compensating the Respondent with an award of costs, and this would have served the ends of justice.

Counsel for the Appellant also submitted that there was no doubt that the very reason for the Appellant’s failure to file his Brief of Argument at the Court of Appeal on time was purely a mistake of counsel which should not be visited on the Appellant.

In response, counsel for the Respondent submitted that the exercise of the court’s discretion is not controlled by judgment or conscience of others but by the way the court rationally perceives the particular circumstance of each case. Counsel argued that the principle that a mistake of counsel should not be visited on litigants must be balanced with the need to obey rules of court and for the court not to condone inordinate delay or lack of diligent prosecution from counsel. Reliance was placed on the case of IYAWE & ORS v MENE (2014) LPELR -22611.

Court’s Judgement and Rationale

The Supreme Court held that one overriding principle in the exercise of discretion by a court is to maintain a balance of justice, bearing in mind the parties rights and a court’s exercise of its discretion without averting its mind to a material consideration is just as bad as its exercising it on a wrong principle.

The Apex Court held that courts are always advised to tilt towards substantial justice and avoid technical justice, and whenever there is an opportunity to determine a case on its merit, the court should not succumb to the temptation of hastily determining it because of delay in prosecuting the case. The Court referred to its decision in OLATUBOSUN v TEXACO (NIG) PLC & ANOR (2012) LPELR – 7805 (SC).

The Court noted that the Appellant had filed an application for enlargement of time within which to file his Brief of Argument and by Order 7 Rule 10(1) of the Court of Appeal Rules, 2011, under which the Appellant brought the said application, there was a clear discretionary power of the Court of Appeal to exercise its inherent powers to the doing of anything to which the rules apply, of course by considering the good and substantial reasons set before it.

The Court referred to paragraphs 4(d) and (e) in support of the Appellant’s motion for enlargement of time to file the Appellant’s brief of argument, in which the Appellant attributed the failure to file the Appellant’s brief to the omission of his Counsel. The Apex Court held that clearly, the Appellant had no part in the delay to file the Appellant’s brief, as this was solely the fault of his Counsel; hence, the mistake of the Counsel should not be visited on the Appellant, and neither should the Appellant be made to bear the consequences of the action of his Counsel.

The Apex Court held that it was clear from the Record of Appeal that if the Court of Appeal had given wholesome consideration to all the facts before it in the exercise of its discretion, it would have known that the justice that would have been best served would be by allowing the parties to present their case to be determined on the merit, and it would have tilted more to grant the application for enlargement of time sought by the Appellant to file his Brief of Argument and proceeded to determine the appeal on the merit. The Apex Court held that where facts and circumstances are presented to the court from which the court can consider and then go ahead to exercise its discretion, it should be guided by law, justice and common sense.

The Court held that indeed each posited mistake or inadvertence of counsel on the face of it would not without more guarantee a favourable consideration of the application, but when viewed within circumstances exculpating in content, then the judicial and judicious tackling by the court is to bend favourably for the applicant. The Apex Court found that since the Appellant’s brief was already filed in the court at the time the Respondent was clamouring for the dismissal of the appeal, the Court of Appeal would have, in the interest of doing substantial justice, given the Appellant a favourable consideration for his brief to be regularised and the matter determined on the merit once and for all. The Supreme Court held that the Court of Appeal was thus wrong in dismissing the Appellant’s appeal.

Appeal Allowed. An order was made for the hearing of the Appellant’s appeal on its merits at the Court of Appeal.

Representation
J. Agim, SAN with A. A. Owurong, O. C. Atuegbu, U. U. Ufoinde and D. M. Adi, for the Appellant.

N. Nuhu for the Respondent.

Reported by Optimum Publishers Limited, Publishers of the Nigerian Monthly Law Reports (NMLR) (An affiliate of Babalakin & Co.)

Source: Thenigerialawyer