James Asiegbu V. Access Bank Plc & Ors (2016)

LawGlobal-Hub Lead Judgment Report

HELEN MORONKEJI OGUNWUMIJU, J.C.A. 

This is an appeal against the ruling of the Anambra State High Court sitting in Onitsha delivered on 30/5/2013 by Hon. Justice Chudi Nwankwor wherein His Lordship struck out the suit against the 2nd and 3rd respondents and awarded N50,000 costs to each defendant at trial. The appellant herein was the 3rd defendant at trial. The 1st respondent herein was the plaintiff at trial. The 2nd and 3rd respondents herein were 2nd and 3rd defendants at trial. I will hereinafter refer to the parties as they are named on appeal. The undisputed facts that led to this appeal are as follows:

This case first came before the trial Court on 26/02/2013 after which it was adjourned for pre-trial conference with order for Hearing Notice to be served on the 2nd and 3rd respondents who were absent from Court. On 9/4/2013, the learned trial judge gave 10 different dates for hearing of the substantive suit and one outstanding motion with No: O/479M/2012. On 14/05/2013, the 2nd of the ten days selected by the learned trial judge for hearing, the 1st respondent?s counsel applied for

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the matter to be stood down till 11am to enable his witness who was absent due to an illness on the 1st date of adjournment be in Court. The witness did not show up and the Court ruled that if by the next adjourned date the 1st respondent is unable to go on with the case, the case will be dismissed. The learned trial judge went on to awardcost of N20,000 to the appellant and 2nd and 3rd respondents before adjourning the matter. On 30/5/2013, the next date of adjournment, the N20,000 cost awarded in favour of the appellant and others had not been paid by the 1st respondent. 1st respondent?s counsel made an application before the Court for a stand down till 1pm.The learned trial judge refused to grant the application for a stand down, struck out the suit and the cost of N50,000 was awarded to the appellant and the 2nd and 3rd respondents against the 1st respondent.

Dissatisfied with the decision of the trial Court, the appellant initiated this appeal by a Notice of Appeal filed on 18/7/2013 containing one ground of appeal and transmitted records on 13/9/2013. The appellant?s brief of argument was filed on 14/10/2013. The 1st respondent?s

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brief was filed on 13/11/2013 while the 2nd and 3rd respondents? brief was filed on 26/11/2013.

In the appellant?s brief settled by Chief Ikenna Egbuna, one issue was identified for determination as follows:
1. Whether the learned trial judge was right to set aside his earlier decision which is in conformity with the High Court Rules of Anambra State.

In the 1st respondent?s brief settled by C.P Oguchienti, one issue was raised for determination as follows:
1. Whether the Court rightly made an order striking out the suit instead of a dismissal of same.

In the 2nd and 3rd respondents? brief settled by J.E.O Ogbuli, a lone issue was also identified for determination as follows:
1. Whether the learned trial judge was right to strike out the main suit instead of dismissing same in the total circumstance of the case.

After careful consideration of all briefs, I shall adopt the sole issue for determination as couched by the learned counsel for the 1st respondent.
Whether the Court rightly made an order striking out the suit instead of a dismissal of same.

?Learned appellant?s counsel cited Or.

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