Christopher Onyemeze & Anor V. Innocent Okoroafor (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JOHN INYANG OKORO, J.C.A (Delivering the Leading Judgment)

This is an appeal against the Ruling of the Imo State High Court sitting in Owerri in Suit No. HOW/170/77 delivered on 27th September, 2010 wherein the lower court struck out the application filed by the Appellants on 28/10/9 seeking the following reliefs:

“(a) Setting aside ex-debito justiciae the order of the Honourable court made on 30/6/09 relisting this Suit No. How/170/77 struck out on 20th day of June, 2005.

(b) Setting aside ex-debito justiciae all the proceedings that have taken place in this suit since 30/6/05.”

The grounds upon which the reliefs were sought are:

a) That the defendants/applicants were denied fair hearing as the hearing notice for the relistment of the action that was struck out five years ago, was not served on them.

b) That an extraneous name was introduced into the matter by the court suo motu in place of the defendants without prior notice to them as there was no application for substitution by either party.

The facts leading to this appeal are that sometime in December, 1977, the Respondent herein as claimant instituted this action against the Appellants. Twenty years after, the Respondent amended his statement of claim in 1997 and went to sleep. On 20/5/05 when the matter came up for hearing, the Respondent’s counsel was not in court and no letter explaining his absence was written. The learned trial judge then struck out the matter in the following words:

“Court: This is a 1977 matter. I do not know why the plaintiff and his counsel will not be diligent in its prosecution. It is a shame to have a 1977 matter on the cause list and to expect the defendant to continue coming to court. By 1977 this court was in the Law school as a student and little did I know that a suit filed that year will be waiting for me to hear as a judge. This is not commendable and there must be an end to litigation. My order on the lost adjourned date cannot be in vain. For this reason, this suit is hereby struck out I make no order as to costs.

Signed

F. I. Duru aha-Igwe

Judge 20/6/05”

After this Ruling in 2005, nothing was heard from the Respondent (claimant). In 2009, more than four years after the striking out of the suit, counsel for the Appellant herein was served with a hearing notice for the relistment of the case. Although the address for service on the face of the hearing notice was Umuodagu Umuafor, Ezeobodo (the appellants home), the Respondent decided to serve the notice on the defendant’s counsel who complained that he had lost contact with his client about five years earlier.

The Appellant’s counsel quickly returned the process to the Assistant Chief Registrar of the lower court with the reason in the letter that he had lost touch with the Appellants who presumed that the matter was over, five years after it was struck out. The letter also informed the court that both the Appellants and Respondent come from the same community which is the best place to serve the Appellants. The lower court did not make any attempt to serve the appellants. Rather the court proceeded to hear the Respondent’s motion for relistment without the Appellants who were Respondents to the motion.