Abnorm Industrial Enterprises Limited & Anor V. Nigeria Agricultural Co-operative And Rural Development Bank Limited (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

TIJJANI ABUBAKAR, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the Ruling of the Kano State High Court, delivered by N. S. Umar J, on the 27th day November, 2008, refusing to grant Plaintiffs/Appellants application to relist suit No.K/274/07 which the court below dismissed on 4th June, 2008.

The Appellants as Plaintiffs at the Lower Court commenced action by writ of summons against the Defendant/Respondent on 1st June, 2007. On the 20th day of April, 2008, the Respondent brought application for extension of time within which to file Statement of Defence and counter-claim.

Respondents application was accordingly granted. Respondent as Defendant therefore filed Statement of Defence and Counter-claim, the matter was then set down for trial by the learned trial judge on 4th June, 2008; on this date the lead counsel for the Plaintiff said he was unavoidably absent, but he sent Haruna Musa a Youth Corp. member to court, Haruna Musa informed the lower court of his incapacity and prayed the court to grant him adjournment to enable his principal Mr. Oshomegie appear in court.

This application for adjournment became a subject of objection as learned counsel for the Respondent vehemently opposed the application, and urged the court to strike out the suit, even though he later changed his mind and applied that the suit be dismissed, the learned trial judge dismissed Plaintiffs/Appellants suit.

Learned counsel Oshomegie for the Plaintiffs/Appellants filed application to relist, the Defendants/Respondents filed counter affidavit opposing the application.

The application to relist was heard on 28th October, 2008 and refused on 27th November, 2008; in other words, Plaintiffs/Appellants application to relist was dismissed on 27th November, 2008.

Plaintiffs/Appellants became aggrieved and filed notice of appeal; The Appellants through learned counsel Oshomegie distilled from Appellants grounds of appeal two issues for determination:

a.”Whether the decision by the court below to dismiss the Appellants claim, when no evidence or hearing on merit has taken place is not in law a striking out. (Distilled from ground 1).

b. Whether a suit strucked (sic) out cannot be relisted except in accordance with order 37 Rule 4 of the Kano State High Court (Civil Procedure) Rules 1988. (Distilled from ground 2).

Chief Offiong SAN settled Respondents brief of argument and submitted one issue for determination. Respondents issue is:

“Whether the lower court was right in all the circumstances of this case, in refusing to relist this suit which it had by a judgment dated 4th June, 2008 dismissed”.

I will adopt Appellants’ issues for determination for the purpose of resolving this appeal, Appellants argument on the two issues will be taken together.

Appellant said when Lower Court dismissed their suit on 4th June 2008, no trial took place, no evidence was led, that it was the first time both parties appeared before the court to commence trial; counsel for the Appellants said even though the learned trial judge used the word “DISMISSED”, the order of dismissal meant striking out both in law and in fact, the lower court Appellants said was therefore wrong when it treated its decision of 4th June 2008 as actual and real order of dismissal and not striking out; Appellants relied an ABORISHADE V. ABOLARIN (2000) 10 NWLR PART 674 41; CARDOSO V. DANIEL (1986) 2 NWLR PART 20, AND OGAR V. JAMES (2001) FWLR (PART 67) 930 AT 945.