First Bank Of Nigeria Plc V. Col. Richard V.i. Asom & Ors (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

UCHECHUKWU ONYEMENAM, J.C.A (Delivering the Leading Judgment)

The appellant has brought this appeal against the decision of the High Court of Justice Benue State sitting at Makurdi delivered on 24th day of October, 2003. The decision of the said high court dismissed Motion No. MHC/938M/2002 seeking to relist Suit No. MHC/288/95 struck out on 15/10/2001. The appellant filed notice and grounds of appeal dated 21/11/2003.

The brief facts are as follows:

The appellant a public limited company instituted legal action against the respondents on 12th day of December, 1995 on the undefended list –

Suit No. MHC/288/95. The respondents filed their memorandum of appearance on 9/1/96 followed by notice of intention to defend the suit on 10/1/96. On 22/11/96 the appellant filed a statement of claim but the record does not show that the respondents filed any defence.

Between the institution of Suit No. MHC/288/95 in December 1995 and 24/10/2003 when the trial court dismissed Motion No.MHC/938M/2002, the suit was struck out twice on 17/4/2000 and 15/10/2001 respectively for want of prosecution. Motions to relist the suit were filed three times, the last which was Motion No. MHC/938M/2002 dated and filed 21st November 2002 is the subject matter of this appeal. When the motion came up for hearing on 24th October, 2003 the counsel for the respondents, A.F. Nyinya wrote for an adjournment on ground of ill health. The learned trial judge did not rule on the application for adjournment rather he proceeded in his bench ruling to dismiss the motion on the ground that the appellant was not diligent or serious with the prosecution of the suit.

The bench ruling of the lower court which this appeal challenges is as reproduced hereunder;

“Court: It is on record that the suit was on 15.10.01 struck out for “want of seriousness”. There was an attempt to relist the suit. The motion to that effect was on 30.7.02 withdrawn by the counsel for the plaintiff. The motion was then struck out. This instant motion by another counsel seeks to have the suit re-listed because the plaintiff is now more serious since 15/10/2001. The former counsel is blamed for withdrawing the motion on 30/7/2002.

There should be an end to litigation. By counsel withdrawing the motion for relisting of the suit there is an impression that the matter is over. The plaintiff seems to be, through various counsels, approbating and re-probating.

I do not see how the Court can be used for that purpose more particularly that there is evidence of indiligence or unseriousness of the plaintiff.

This motion is accordingly dismissed.”

The appellant’s notice of appeal contains four grounds of appeal. In line with rules of this court, briefs were duly filed and exchanged. In the appellant’s brief prepared by Chief S.O. Agbo dated 31/8/04 and filed 3/9/04, the following two issues were formulated as arising for determination in this appeal:-

1. “Whether the trial judge was right in dismissing the motion for relistment no. MHC/938M/2002 without first ruling on the application for an adjournment before it or hearing the motion on its merit and thereby denying the appellant the right to fair hearing and or having its case decided on its merit.
2. Whether the trial judge was right when he stated that there is evidence of indiligence or unseriousness on the part of the plaintiff in the circumstances of this case and thereby dismissing the motion for relistment even when counsel to the appellant was present in court and did not apply for an adjournment.”

The respondent however submitted in their own brief prepared by T. Oscar Aorabee Esq, that only one issue arises for determination and it is as follows;

“Whether or not, the Trial court rightly exercised its unfettered discretion in dismissing the Appellant’s application to relist suit no. MHC/288/95, before it”.