Whether the refusal of the learned trial Judge to relist Suit No. W/185/2004 right in law.
Whether the striking out of Suit No. W/185/2004is not an error of law and consequently breached the right to fan- hearing of the appellant.
Whether the learned trial Judge was right when he held that he is functus officio raising the issue suo motu affording parties opportunities to address court on it.
The plaintiff sought declaratory reliefs in the High Court of Delta State that; his purported dismissal from the defendant as President of Area Customary Court, Delta State was wrongful, null and void and of no effect, his employment with the defendant subsists, order directing the defendant to reinstate the plaintiff with all his benefits; salaries and promotion since the day he was served with letter purporting to terminate his appointment and restraining the defendant from preventing him from continuing his job as president of Area Customary Court or interfering with his employment or rights, privileges and benefits attached thereto.
When hearing commenced, the plaintiff filed a motion for amendment of his claims and while plaintiff’s counsel was arguing the motion, he applied to withdraw the motion on grounds of a mistake therein. The trial court adjourned the matter and the plaintiff filed another motion for amendment which he also applied to withdraw.
The trial court struck out the motion, refused to grant an adjournment and invited the plaintiff to commence the hearing. Plaintiff’s counsel thereafter sought to tender a document which admissibility was objected to by defendant’s counsel.
Plaintiff’s counsel thereafter sought an adjournment which was once again to proceed with the hearing, which the counsel declined. The trial court struck out the application on grounds of functus officio. Aggrieved, the plaintiff appealed to the Court of Appeal.
In determination of the appeal, the Court of Appeal considered the following rules:
High Court (Civil Procedure) Rules, 1988 of Bendel State, applicable to Delta State, Order 37, rule 6(2) and Order 47, rule (l) Order 37, rule 6(2) provides:
“If when the trial of an action is called on, neither party appears, the action may be struck out of the list, without prejudice however to the restoration thereof, on the direction of a Judge.”
Order 47, rule 1, provides thus: “Where a matter arises in respect of which no provisions or ‘•( no adequate provisions are made in the Rules, the court shall adopt such procedure as will in its view do substantial justice between the parties concerned.”
Held: (Allowing the appeal)
When a discretion is exercised judicially and judiciously and attitude of appellate court to exercise of discretion by trial court-
A discretion is said to be exercised judicially and judiciously where it is so exercised on sound principle of law based on sufficient material and also given sufficient prevailing circumstance of a given case. It must be exercised strictly on the facts and circumstances of the particular case and not based on the whims and caprices of the court.