John C. Onuora V. Chinedum Ofomata (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

AYOBODE OLUJIMI LOKULO-SODIPE J.C.A. (Delivering the Leading Judgment)

This appeal is against the ruling delivered on 1/3/2005 by the Federal High Court, Enugu Judicial Division (hereafter simply referred to as “the lower court”), presided over by Hon. Justice A.A.B. Gumel (as he then was, and hereafter simply referred to as “the learned trial Judge”). The learned trial Judge in the ruling appealed against struck out the case before him for want of diligent prosecution.

The facts of the case as gathered from the record of appeal briefly stated are that the Respondent/Cross-Appellant (hereafter simply referred to as “the Respondent”) as the Plaintiff before the lower court by a Claim dated 15/9/1997 and filed on 18/9/1997 claimed against the Appellant/Cross-Respondent (hereafter simply referred to as “the Appellant”) and one other person, jointly and severally for the following reliefs:-

“(a) The sum of N5, 000,000.00 (five million naira) being damages for copying, plagiarizing or publishing the plaintiff’s said works.

(b) An order of perpetual injunction restraining the defendants their agents, servants or workmen from further copying, publishing or plagiaring (sic) the plaintiff’s works.”

On 9/4/1998, the Appellant and the other party sued with him filed a joint Statement of Defence dated 9/4/1998, to the claim of the Respondent. In the said Statement of Defence, the Appellant as 1st Defendant in the action before the lower court, counter-claimed against the Respondent as follows: –

“(a) The sum of N8, 000,000.00 (Eight Million Naira) being damages for copying, plagiarizing and publishing the 1st Defendant’s works mentioned in his pleadings.

(b) An order of perpetual injunction restraining the Plaintiff, his agents, servants, workmen and otherwise from further copying, publishing or plagiarizing the 1st Defendant’s works mentioned in his pleadings.”

On 13/5/1998 the Respondent duly filed a Reply dated 11/5/1998, to the Counter-Claim of the Appellant. The instant case which was initially instituted in the Awka Judicial Division of the High Court of Anambra State was by the order of the said court made on 17/7/1998, transferred to the lower court for adjudication. This was sequel to the application brought by the Respondent; and as the parties in the case were agreed that the case be so transferred.

Hearing commenced in the case before the lower court presided over by the learned trial Judge on 17/2/2004, with the Respondent testifying as PW1. PW1 continued with his evidence on 25/5/2004 but never completed doing this before the case was struck out for lack of diligent prosecution by the learned trial Judge on 1/3/2005. This was sequel to the application for an adjournment made at the instance of the Respondent and which application was duly placed before the lower court.

The Appellant being dissatisfied with the decision of the lower court in its ruling striking out the Respondent’s case, appealed against the same vide a Notice of Appeal dated 7/3/2005 and filed on the same date. The Notice of Appeal contains one ground of appeal. The said ground of appeal as well as its particulars read thus: –

“GROUND OF APPEAL

1. ERROR IN LAW

The learned trial Judge erred in Law by delivering ruling in favour of the defendant/appellant by striking out a part heard matter instead of dismissal.

PARTICULARS OF ERROR