Augustine I. Odigwe V. Judicial Service Commission, Delta State (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

AMIRU SANUSI. J.C.A (Delivering the Leading Judgment)

This is an appeal against the decision of the Delta State High Court of Justice, sitting in Warri Judicial Division (hereinafter referred to as the lower Court”) delivered on the 2nd day February, 2006. At the lower Court, the plaintiff took a Writ of Summons seeking the under listed declaratory and directory reliefs:-

“(a) A declaration that the Defendant purported dismissal of the Plaintiff from its employment as President of Area Customary Court, Delta State by letter dated 6th August, 2004 and signed by the Defendant Secretary is wrongful, null and void and of no effect as same is unlawful and unconstitutional.

(b) A declaration that the plaintiff employment with the Defendant subsists.

(c) An order directing the Defendant to reinstate the plaintiff to his status as President Area Customary, Delta State with all his benefits, entitlements, salaries, allowances, increments and promotion from 6th August, 2004 until the final determination of this matter and reinstatement.

(d) An order restraining the Defendant whether by himself (sic) servants against or whatsoever name called from preventing the plaintiff continuing his job or interfering with the plaintiff performance of his duties as President of Area Customary Court, Delta State or interfering with his employment of rights privileges and benefits attached thereto.

The writ of summons was filed at the lower court by the plaintiff (appellant) on 19th of October 2004 and he later on 3rd June 2005 filed his statement of claim and both were served on the Defendant (now Respondent) on 13th July 2005. Then when the defendant failed or neglected to file its statement of Defence within the period ordered by the lower Court, the plaintiff filed an application to set the case down for 25th November 2005. Sequel to that the defendant on 14/12/2005 filed a motion for extension of time to file its statement of defence out of time and also sought an order for same to be deemed as properly filed and served and to plaintiff (appellant) then filed a motion on notice for amendment of this Statement of Claim on 6/1/2006.

On 18/1/2006, the lower Court commenced hearing of the motion for amendment of statement of claim earlier filed by the plaintiff. In the process of arguing the said motion, the learned counsel for the plaintiff realized a misstate in one of the prayers he sought in the motion and he thereby applied to withdraw the motion which the court obliged and struck it out as there was no opposition on the withdrawal by the learned counsel for the defendant. The lower court then adjourned the case to 2/2/2006 for hearing in the case. Then on 20/1/2006 the plaintiff filed another motion for amendment of his statement of claim. Also while in the process of moving that motion on 2/2/2006 the plaintiff’s applied to withdraw the motion when he noticed that he had problem in moving it also. He applied for adjournment it and the defence counsel did not oppose the application for adjournment. The trial Court refused to grant adjournment and instead it invited the plaintiff’s counsel to proceed with the hearing of the substantive suit after striking out the motion. At the hearing and while in the process of examining the plaintiff (1st pw in-chief, the learned counsel for the plaintiff’sought to tender a certain document in evidence. The defendants (respondent’s) counsel objected to the admissibility of the document tendered by the plaintiff/appellant and the plaintiffs counsel withdrew his application to tender such document. At this juncture, the plaintiff’s counsel applied for adjournment to enable him, handle the matter properly”. The defendant’s/respondent’s counsel also did not however oppose the application for adjournment. In a short ruling on the application for adjournment by the plaintiff s counsel, the lower Court refused to adjourn the case because according to it, it saw no reason good worthy of consideration and it again ordered the plaintiff to proceed with his case. At this stage, the learned plaintiff’s (appellant’s) counsel, Mr. A.E. Okotie informed the lower Court that he was not ready to proceed with the case any longer.

The learned trial judge in the light of what transpired supra, handed down a short ruling as below:-

“Court – The Court takes it that the plaintiff is not interested in proceeding with the case and the court is not ready to keep the case in the cause list in the circumstance as no useful purpose will be served. The Court will strike out the case even though plaintiff has started testifying in view of the fact that the plaintiff is still at the preliminary introductory stage of his case. The case is hereby struck out for want of diligent prosecution. Plaintiff is hereby ordered to pay cost of N1,000.00 to the Defendants.”

Now, subsequent upon the above ruling of the lower Court striking out the suit on 2/2/2006, the plaintiff/appellant filed a motion on 6/2/2006 praying the lower court, to relist the suit it had earlier struck out and also for the amendment of his statement of claim. The application was argued by the two learned counsel and consequently, the lower Court on 28/2/2006 delivered its considered ruling striking out the motion primarily because it is “functus officio”.

The plaintiff now appellant became aggrieved by the two rulings of the lower Court delivered on 2/2/2006 and 28/2/2006 and thereby appealed to this Court. The plaintiff filed Notice of Appeal on 14/3/2006 dated same day containing three grounds of appeal which are reproduced below with their particulars for ease of reference. The grounds of appeal are as follows:

GROUNDS OF APPEAL

Ground 1