IN THE HIGH COURT OF JUSTICE OF KWARA STATE OF NIGERIA
IN THE ILORIN JUDICIAL DIVISION
HOLDEN AT ILORIN
ON THURSDAY THE 3RD DAY OF JULY, 2009
BEFORE HIS LORSHIP: – HON. JUSTICE M. A. AKOJA
SUIT NO: KWS/142/2004
BETWEEN:
- ADEBAYO SULE …………………………………………. }
(Suing for himself and on behalf of ALHAJI SULE)….. }– PLAINTIFF
AYINDE FAMILY …………………………………………………}
AND
- SAKA OPOBIYI……………………………………………. }DEFENDANT
JUDGMENT
On the 26th day of June, 2009, learned counsel to the defendant/applicant, Akin Akintoye II, moved his motion on notice dated and filed on the 6th day of March, 2007.
According to counsel, the application was brought pursuant to Order 33 Rule 2 (3) of the High Court (Civil Procedure) Rules, 2005 and under the inherent jurisdiction of the court.
The application is praying for:
- An Order of the Honourable Court dismissing the Claimant’s/Respondent’s suit for lack of diligent prosecution f this suit.
- And for such further order(s) as the Honourable Court may dean fit to make in the circumstance of the case.
The application has a 13-paragraph affidavit in support with a written address of counsel in accordance with the rules of court.
Counsel submitted that their prayer is that the court should dismiss the claimant’s suit for lack of diligent prosecution as provided for under Order 33 (2) (iii) of the Kwara State (High court Civil Procedure) Rules, 2005.
Counsel sought to adopt the written address and urged the court to dismiss the suit.
According to counsel they were served with a counter affidavit on the 25th of June, 2009. It was counsel submission that the counter affidavit was to attached written address are not competent and are improperly before the court because they were filed outside the 7 days statutory period provided for under Order 11 Rule 2 (3) of the High Court (Civil Procedure) Rules, 2005.
Accordingly, it was court submission that all deposition s in the courts affidavit, the attached exhibits and the written address, be discountenanced Counsel cited in support of his submissions the following cases.
- Tilburry Construction Coy Ltd. Vs Ogunniyi (1988) 2 NWLR (Pt. 74). P. 64.
- UME Vs. Nigeria Renowned Trade Company (1997) 8 NWLR (Pt. 516) 344 at 355 and the yet to be reported case of: –
Idrisu Sanni vs Mallam Amodu Saliu Bello Agara (Unreported) Appeal No. CA/Il/5/2007 delivered at the Ilorin Division of the Court of Appeal on 27th May, 2009.
According to counsel, the three authorities emphasise the position of the law that where an enabling rule of court provides for the filling of a court process within specific time, failure to file same within time and failure to seek and obtain leave for extension of time before filling, will automatically render the process incompetent.
Counsel urged the court to be guided by the above cited authorities.
In the written address adopted by learned counsel, it was the submission that on the 29th day of June, 2006, the court adjourned this suit for pre-trial conference in accordance with order 33 Rule 2 (3) of the rules of the court. According to counsel, it is expected that before the next adjourned date, 14th July, 2006, the mandatory fourteen days after close of pleadings would have lapsed and so such, the claimant is expected to apply for the issuance of pre-trial conference notice in Form 23.
According to counsel, the claimant did not apply for the said notice at the expiration of fourteen (14) days despite the provision of Order 33 Rule 2 (3) of the Rules of court which made the application mandatory after fourteen (14) days after the close of pleading in the case. As at the 6th day of March, 2007, when the applicant filed this motion, counsel observed, that it was already 3½ months after the close of pleadings and the claimant was yet to file the necessary papers as enjoined by law.
According to counsel, form the antecedent of this case, it is clear that the claimant is no longer desirous to prosecute this case with diligence as he has woefully failed to take advantage of many opportunities given him by the court.
Counsel submitted that the defendant cannot continue to wait for the claimant to allow him conduct his case at his convenience.
Counsel urged the court to exercise its discretion under Order 33 Rule 2 (3) of the Rules of this court by dismissing the claimant’s suit with appropriate cost.
It is on record that learned counsel to the claimants only responded to the motion on notice of 6th March, 2007 on the 25th day of June, 2009 by filing a counter-affidavit titled: Buhari vs. INEC & ORS (2008) 4 NWLR (Pt. 1078) 546 at 601.
It is trite law that where the rules provide for a particular mode of performing a duty, the method and no other shall be followed strictly as they are made to be obeyed and not circumvented.
See: Ibrahim vs. Yusuf (2003) 14 NWLR (Pt. 8411) 446 at 498 – 499.
According to Order 33 Rule 2 (3) of the High Court (Civil Procedure) Rules 2005.
“If the claimant does not make the application in accordance with sub-rule (10), the defendant or defendants may do so or apply for an order to dismiss the action.”
The court is off the view that the above provision is very simple, clear and is devoid of any ambiguity and should be given its ordinary meaning.
The rule makes it mandatory for the claimant to apply within 14 days after the close of pleadings but makes it obligatory for the defendants or defendant to do so. It however gives the defendant a choice, either to apply for the issuance of the notice or apply that the suit be dismissed.
In this case, the defendant has opted for the alternative; i.e. for the order of court dismissing the suit for the failure of the Claimant/Respondent to comply with Order 33 Rule 2 (3) of the High Court (Civil Procedure) Rules, 2005.
It is trite that by law, the court is enjoined on the failure of both parties to ready for the pursuant of the pre-trial… notice to dismiss the suit…
HON. JUSTICE M. A. AKOJA
JUDGE
03/07/2009
