This appeal is against the judgment of the Court of Appeal, Jos Division in appeal No. CA/J/119/2016 delivered on the 26th day of July, 2016 in which the court allowed the appeal of the present 1st- 3rd respondents against the Ruling of the trial court delivered on the 8th day of April, 2016 in suit No. J/CS/77/2014.
In the course of the proceedings in the trial court, the court, on the 19th day of September, 2014 following an application granted all restraining order against the 1st and 2nd respondents and ordered in the following terms: ‘’…. an order restraining the 1st and 2nd respondents and all other members of the defunct executive Committee of NFF jointly and severally by themselves or through their agents or servants from convening and or holding a general assembly or extra ordinary general assembly of NFF and or conducting ,or holding any election into the executive committee of the NFF pending the hearing and determination of the Motion on Notice filed in this case. “
It is the case of appellants that following the intervention and request for out of court settlement by the former President of the Federal Republic of Nigeria,
His Excellency, Dr. Goodluck E. Jonathan, the appellants filed a motion on notice withdrawing the suit which the trial court granted and the discontinued suit was Struck out on the 30th day of October, 2014. However, the move to settle the matter amicably between the parties failed resulting in appellants filing a motion on the 3rd day of February, 2016 praying the court for an order relisting the suit which the court granted and restored the restraining interlocutory orders earlier made, along with the suit.
The present respondents were aggrieved by the ruling relisting the, suit etc ‘and consequently appealed against same, which appeal was allowed giving rise to the instant appeal; the issues for the determination of which are, as stated in the Amended Appellant brief deemed filed on 3/7/17, as follows:
“(a) Whether the exercise of the discretion to relist a suit previously struck out under order 50 Rule 3(1) of the Federal High Court(Civil Procedure)Rules 2009 is subject to review by the Court below on ground that the court below would have exercised the said discretion differently from the learned trial court.(Grounds 1, 2).
(b) Whether the court misapprehended the issues necessary for determination in the appeal before it (Ground 3, 4 and 5).
(c) In the light of the admitted circumstances of this case, did the court below correctly and rightly identify the status quo ante bellum in this suit with respect to the elected offices of the Executive Committee of the Nigerian Football Federation (NFF). (Ground 6).”
It is settle law that discretion is vested in the court which exercises it and not in a higher appellate court, and that an appellate court or tribunal is not at liberty merely to substitute its own exercise of discretion for the discretion already exercised by the court below in short a Court of Appeal ought not to reverse a discretionary decision of a lower court/tribunal merely because it would have exercised the discretion in a different way if it had been vested in that court.
However, a discretion vested in a court or tribunal is not a power to be exercised arbitrarily or capriciously it must be exercised judicially and judiciously otherwise an appellate court has the power to interfere with that exercise of discretion.
It follows, therefore, that in exercising its discretion the trial court goes by the materials presented to it, in this case the facts deposed in the supporting affidavit, while the appellate court goes by the material in the record to found their respective decisions -see Enekebe vs Enekebe (1964) 1 All NLR 102.
In the instant appeal it has to be pointed out that the findings of fact as earlier reproduced in this judgment by the trial court was not challenged before the lower court; that the said findings formed the basis on which the trial Judge exercised his discretion in the matter.
l have carefully gone through the judgment of the lower court and have not seen where the setting aside of the exercise of discretion by the trial court was said to be based on any of the known principles that enables an appellate court to interfere with the exercise of discretion by a trial court/tribunal.
In the circumstance, l hold the considered view that the setting aside of the exercise of the discretion of the trial court by the lower court was erroneous and liable to be set aside and resolve the issue(s) in favour of appellants.
The next issue has to do with the holding of the lower court to the effect that having regard to the provisions of Order 50 Rules 3-5 of the Federal High Court (Civil Procedure) Rules 2009, earlier reproduced in this Judgment “the 1st and 2nd Respondents’ remedy is by filing a subsequent action” see page 749 of the record. It should be pointed out that an action withdrawn or discontinued by notice and subsequently struck out remains in abeyance, the matter not haven been determined on merit as to the rights of the parties thereto. In the instant case, the trial court found at pages 420, 424 425 of the record, inter alia as follows:
“Consequent upon which the matter was struck out with the Judge informing the parties that they are free to relist the matter if the proposed settlement fails …….. More so the court had ordered that the plaintiff is at liberty to re-list if the out of court settlement fails. “
The question is whether an action struck out as a result of a notice of withdrawal or discontinuance cannot be re-listed except by the filing of a subsequent action on the same cause of action. The lower court, in interpreting the provisions of the said order 50 Rule 3-5 of the Federal High Court (Civil Procedure) Rules, 2009 stated clearly that such an action cannot be re-listed. I am of the considered opinion that the lower Court is in error in so holding. To me, re-listing a matter struck out as a result of an application for withdrawal or discontinuance of same and filing a subsequent action on the same cause of action are two sides of the same coin. lt follows therefore that an action struck out on an application for withdrawal or discontinuance may be re-listed or by filing subsequent action upon good cause shown.
In any event, in the instant case and as can be seen from the record earlier reproduced in this judgment, there was a clear order that the matter can be re-listed if out of court settlement failed, which was, unfortunately the case.
I have to point out that by restoring the suit to the cause list, it means a restoration of all the orders in the proceedings in the suit irrespective of the fact that the matter may be heard denovo before another Judge.
On the issue of invocation of the powers of this Court under section 22 of the Supreme Court Act, .it is not in doubt that the Supreme Court can, under the said section exercise full jurisdiction over a case and deal with it in the same way a trial Judge would have done.
The principles that guide this court in exercising the powers conferred by section 22 have been laid down in a number of cases including ODEDE vs lNEC (2008) 7 SC 25 at 74 or (2008) 17 NWLR (pt. 1117) 554 at 636; UGBA vs. SUSWAM (2013) 4 NWLR (pt.1345) 427 at 477 etc, etc, as stated in ODEDO vs INEC at 636.
From the above grounds of appeal, it is very clear that appellants have failed to satisfy requirement No. (2) Supra to wit:
“(2) The real issue raised up by the claim of the appellant at the lower court or trial court must be seen to be capable of being distilled from the grounds appeal.” Emphasis supplied by me.
The above requirement is very fundamental to the exercise of the powers of this Court under the said Section 22 of the Supreme Court Act so as not to encourage parties/litigants and their counsel to turn the Supreme Court into a court of first instance sometimes by engaging in tactics that are designed to cause delay with the hope of getting the Supreme Court to do the job meant for the trial court. Of course there may be urgencies in certain cases but the requirements which are designed to ensure fair play to both parties and the Supreme Court, must be adhered to.
In the circumstances, I do not think it wise to go into other matters raised such as: whether proper parties are before the court, conflicting affidavits etc, which would of necessity be determined by the trial court.
It is therefore my considered view that the conditions necessary for this court to invoke its powers under Section 22 of the Supreme Court Act have not been satisfied in this case and the invitation is accordingly declined.
In conclusion I find merit in the appeal which is accordingly allowed, the invitation for the court to invoke its general powers under Section 22 of the Supreme Court Act to deal with the suit is hereby declined and the matter remitted to the trial High Court for expeditious hearing and determination on the merit. The judgment of the lower court is hereby set aside.
In view of the circumstances of this case, parties are hereby ordered to bear their respective costs. Appeal allowed
Walter Samuel Nkanu Onnoghen, Chief Justice of Nigeria
P. l. N. L. Ikwueto (SAN), with him are Messrs Chidinma Okoronkwo, C. D. Ezeh, O. D. Soyebo and C. C. Emekekwe —
Festus Keyamo (SAN), with him are Messrs Okey S. Obi; Festus Ukpe; Joshua Onoja and Queen Otarakpo– for 1st, 2nd & 3rd Respondents
Emmanuel Okibe Esq for 4th respondents.
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