CHIEF EDET BROWN & 5 ORS VS CHIEF PAUL EDET BASSEY & 4 ORS
June 26, 2025HILARY FORMS LIMITED & ORS V. M.V. MAHTRA (SISTER VESSEL TO M.V. KADRINA & ORS
June 27, 2025Legalpedia Citation: (1999) Legalpedia (CA) 17139
In the Court of Appeal
Thu Dec 2, 1999
Suit Number: CA/C/189/97
CORAM
DENNIS ONYEJIFE EDOZIE
IDRIS LEGBO KUTIGI JUSTICE, SUPREME COURT (Read the Leading Judgment)
OKWUCHUKWU OPENE
PARTIES
EASTERN BREWRIES PLCEDIFON AKPAN UKPONG APPELLANTS
GEORGE MICHAEL INUEN RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
The Respondents/Plaintiff claimed that he had sustained injury by drinking poisoned and contaminated ’33’ Lager beer and claimed the sum of N1, 000,000 as damages. After several adjournments, the case was struck out for want of diligent prosecution by the trial judge. The Respondents/Plaintiff thereafter filed a motion on notice praying that the case should be relisted. The application was granted and the Appellants being aggrieved by the ruling lodged the instant appeal.
HELD
Appeal dismissed
ISSUES
Does the ruling of the lower court show an appreciation of the import of the reliefs sought in the application before that court?Was the court below justified in law to have relisted Suit No.C/129/93 having regard to the materials placed before that court?
RATIONES DECIDENDI
APPELLATE COURT- WHETHER CAN INTERFERE WITH THE EXERCISE OF DISCRETION BY A LOWER COURT/WHEN IT CAN.
“The role of an appellate court is not to interfere with an exercise of discretion by a lower court simply because faced with a similar application it would have exercised the discretion differently. see University of Lagos v. Olaniyan (No.1) (1985) 1 NWLR (Pt.l) 156 at 163; Worba & ors v. Samanyaobi & 20rs 14 WACA 665 at 671. But it may do so in special circumstances as where the discretion was exercised on wrong or insufficient material or where no weight or insufficient weight was given to relevant consideration or where the tribunal acted under misconception of law or misapprehension of facts and in all other cases where it is in the interest of justice to interfere.” PER EDOZIE JCA
DUTY OF A JUDGE- NOT TO TREAT A DATE FIXED FOR MENTION AS ONE FOR HEARING-EFFECT OF A JUDGMENT OBTAINED THEREBY.
“It is wrong for a judge to treat a date fixed for mention of a case as one for hearing. Any judgment subsequently entered contrary to this principle of law amounts to a nullity”. PER EDOZIE JCA
STRIKING OUT OF AN ACTION-DISCRETIONARY POWER OF THE COURT TO RELIST SAME
“A suit struck out may be relisted with the leave of the court if the circumstances warrant doing so. An application to restore the suit will be by motion on notice. It is in the discretion of the court whether or not to relist the suit depending on the ground upon which the suit is struck out and other circumstances of the case.” PER EDOZIE JCA
DISCRETIONARY POWER OF A COURT- HOW EXERCISED- WHETHER BOUND BY A PREVIOUS DECISION
“As the court it has a discretion in the matter, though it has to be exercised judicially. It is not generally bound by a previous decision for that in effect will put an end to the discretion. No authority can be a precedent.” PER EDOZIE JCA
EXERCISE OF JUDICIAL DISCRETION-OBJECTIVE OF THE COURT THERETO
“It is settled that in the determination of cases, a court aims always at achieving substantial justice for the parties, and therefore in the exercise of judicial discretion, the primary objective of the court must be the attainment of substantial justice. Each party has a right to have the dispute determined upon the merits and the courts should do everything to favour the fair trial of the dispute between the parties.” PER SIMEON OSUJI EKPE JCA
STRIKING OUT OF A SUIT-CONDITION PRECEDENT TO EXERCISE POWER OF A TRIAL COURT TO STRIKE OUT A SUIT FOR NON-APPEARANCE OF PARTIES
“A trial court has power to strike out a suit for non-appearance of parties but before it does so it must ensure that the parties had notice of hearing for the particular day and that the case was not on the cause list for the day for mention.” PER EDOZIE JCA
CASES CITED
Adegoke Motors Ltd v. Adesanya (1989) 3 MFLR (Pt.108) 250 at 265Alhaji Danjuma Haruna & Ors. v. Mrs. C. A. Ladeinde (1987) 4 NWLR (pt. 67) 941Demuren v. Asuni (1977) 3 SC 91Enekebe v. Enekebe (1964) 1 All NLR 102 Jenkins v. Bushby (1891) 1 Ch. 484 at485Kano v. Bauchi Meat Product Co. Ltd (1978) 9 -10 S.C. 51Mbadinuju v. Ezuka (1994) 8 NWLR (Pt.364) 535 at 566N.A. Williams v. Hope Rising Voluntary Funds SocietyNew Nigerian Newspapers Ltd v. Oteh (1992) 4 NWLR (Pt. 257)Ntukidem v. Oko (1986) 5 NWLR (pt. 45) 909 at page 92Olubusola Stores v. Standard Bank Nig. Ltd (1975) NSCC 137Ugbonna v. Olize (1971)1 All NLR 8University of Lagos Vs. Aigoro (1986) 5 NWLR (pt. 39) 143University of Lagos v. Olaniyan (No.1) (1985)1 NWLR (Pt.1) 156 at 163Worba & ors v. Asamanyaobi & 20 ors. 14 WACA 665 at 671?
STATUTES REFERRED TO
High Court Civil Procedure Rules, Cross River State
