Alhaja Abibat Arike & Anor V. Ariyibi Olowopapa & Anor (2002)

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C.M. CHUKWUMA-ENEH, J.C.A.

This appeal is against the Ruling of Akande J. of the High Court of Lagos State given on 2nd of November, 1992 in respect of an application praying for an order to set aside the order of dismissal of the Plaintiffs’ (Appellants) action for want of prosecution.

In the substantive suit the Plaintiffs (Appellants) claimed for declaration of entitlement to a Statutory Right of Occupancy to a parcel of land otherwise known as No. 11 Kumuyi Street, Mushin, Lagos as per the survey Plan attached to a Deed of Conveyance dated 19/6/96 and registered as instrument No.46/46/415 Lagos; N1, 000.00 damages for trespass and an injunction.

Pleadings were filed and exchanged between the parties. The matter was set down for hearing which had to be adjourned on two previous occasions before it came up on 15/11/92 again for hearing.

The record of the Court of that date i.e. at page 163 shows that Mr. M. J. Agboola holding Chief Talabi’s brief appeared for the. Plaintiffs (Appellants) while Chief A. Oyefeso with him Mr. F. Kareem appeared for the Defendants (Respondents). Mr. Agboola informed the Court below he could not go on with the hearing as Chief Talabi was not in Court. Chief Oyefeso in reaction urged the Court to dismiss the suit as that was the third adjournment for hearing aborted at the instance of the Plaintiffs. He reminded the Court below of the extant order of interlocutory injunction restraining the Defendants from interfering with the land in dispute and asked for N5, 000 costs. The Court below proceeded to dismiss the suit with N4, 000.00 costs in favour of the Defendants. In the words of the Court below at page 164 of the Record Lines 21 to 34 it stated thus:

“A Court of Law could properly invoke its power and dismiss a suit against a Defendant for want of diligent prosecution if it is clearly shown that the case has taken pending for a long time.

(2) that the delay is inexcusable.

(3) that the delay must be such that injustice will result to one party or to both if not dismissed.

The above 3 conditions must co-exist. See the case of Usikaro v. Itshekri Land Trustees (1991) 2 NWL (Pt.172) 155. From available facts before the Court all the conditions set out in the case cited above apply to the instant case.

I do not therefore see any reason why this Court shall not dismiss same for want of diligent prosecution.”

The matter was accordingly dismissed for want of prosecution.

The Plaintiffs timorously filed a motion on notice dated 15/10/92 praying under Order 24 Rule 15 of the High Court of Lagos State Civil Procedure Rules 1972 and the inherent jurisdiction of the Court to set aside the order of dismissal of the Plaintiffs’ action and to relist the suit for determination on the merit.

The motion came up for argument on 2/11/92 and the Court in a Ruling delivered on the same date dismissed the application.

Dissatisfied with the decision the Plaintiffs appealed to Court by a Notice of Appeal containing two grounds.