Bank of the North Limited & Anor V. C. T. Akpaja (2002)

LawGlobal-Hub Lead Judgment Report

SUNDAY AKINOLA AKINTAN, J.C.A.

The appellants were the defendants, while the respondent was the plaintiff in this action, which was instituted at lbadan High Court as Suit No. I/1029/90. The plaintiff’s claim in the suit was for a number of declarations, and injunction in respect of a building on Plot 4, Block ‘F’, Eruomu Layout, Ife Road, Ibadan, otherwise referred to as No. 18, Rabiu Adeyemo Street, Oko-Ibadan, Ibadan. Pleadings were filed and exchanged and the trial commenced before Adekola, C.J. The plaintiff opened his case and called some witnesses. Thereafter, further hearing in the case had to be adjourned a number of times. This was the position on 20th January, 1998, when the case again came up before the learned Chief Judge for continuation of the trial.

The plaintiff and his counsel were, however, absent on that day. Mr. Olugbenga Aluko, learned Counsel for the defendants urged the court to dismiss the case for want of prosecution. The request was granted and the court accordingly dismissed the case with N1,000 costs against the plaintiff. The enrolment order was later prepared and signed by the learned presiding Chief Judge in which the order of the court dismissing the suit was reflected.

The plaintiff reacted to the court’s decision to dismiss the case by filing a motion dated 21st February, 1998. He prayed the court in the motion for the following reliefs:

“(a) An order for extension of time within which to apply to set aside the judgment in this suit delivered on 20th January, 1998;

(b) An order setting aside the said judgment obtained by the plaintiff in the absence of the plaintiff/applicant;

(c) An order relisting the said matter for trial on the merit.”

The motion was supported by a 19-paragraph affidavit deposed to by one Usman Adebayo, an uncle of the plaintiff. The deponent disclosed the main reason for the absence of the plaintiff at the hearings of his case, as being due to his prolonged illness. A medical report issued by a doctor that attended to the man was among the documents attached to the affidavit.
The defendants reacted to the application by filing a notice of preliminary objection to the court entertaining the application. The notice reads inter alia, as follows:

“Take notice that the defendants/respondents will by way of preliminary objection contend at the hearing of this application on 4th April, 1998, or any other subsequent date of adjournment that the application is incompetent and should be dismissed.

Grounds of Application
1. The affidavit in support of the application is procedurally defective.

2. Any judgment that may be delivered subsequently in the suit, if the suit is relisted may be impeached on the ground of a considerable lapse of time between the hearing of the witnesses and the delivery of judgment.

3. The hearing of the suit had been frustrated on numerous occasions because of the frequent application for adjournment by the plaintiff.”

The motion came up for hearing before the same Adekola, C.J. and after taking submissions from learned Counsel for each of the parties on the preliminary objection he delivered his ruling on 23/7/98. The learned Chief Judge held, inter alia, as follows in the concluding portion of his said ruling:

“Having considered paragraphs 7 – 13 and 16 – 18 of the affidavit in support of the application, it seems to me expedient that the court’s discretion should be exercised in favour of the plaintiff/applicant by granting him extension of time, within which to bring the application and also to hear the motion for relistment on its merit. In the circumstance, the preliminary objection has no valid basis. It is hereby over-ruled.”