Kafaru Arowolo & Ors. V. Navy Captain Abimbola Adesina (Rtd) (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CLARA BATA OGUNBIYI, J.C.A. (Delivering the Leading Judgment)

The Respondent herein instituted an action in Suit NO.ID/2348/2001 at the lower court on the 29th day of November, 2001 vide a writ of summons dated the 28th day of November, 2001. The Respondent later filed an Amended Statement of Claim dated February 24th, 2002 claiming inter alia, a declaration of title to a plot of land at NO.2, Dele Ojo Street, Oko Oba Agege, Lagos.

The appellants in response thereto filed a 23 paragraph statement of defence dated 7th day of March, 2002. On the 20th day of October, 2006 the lower court struck out the suit for want of diligent prosecution. Forty-two day after the suit was struck out the Respondent filed an application dated 8th day of December, 2006 in which he sought an order relisting same. The application and the affidavit in support are contained at pages 13-16 of the record of appeal. In its ruling contained at pages 18 and 19 of the record and delivered on the 25th April, 2007, the said lower court granted the Respondent’s application dated 8th day of December, 2006 and relisted the suit No.ID/2348/2001 which was said to have been struck out.

The reproduction of the reliefs sought by the application filed 8th December, 2006 is very simple and state as follows:-

‘(a) An order relisting this suit that was struck out on the 20th of October, 2006.

(b) And for such further or other orders as this Honourable Court may deem fit to make in the circumstance’.

In support of the application is an affidavit of three paragraphs. It will be pertinent to reproduce paragraph 2 sub(a-i) which was very relevant occasioning the reasoning giving rise to the exercise of the learned trial court’s discretion:- The sub paragraphs which are therefore as follows:-

‘(a) That when this matter came up for Pre-Trial conference on the 19th of September, 2006 at 10 a.m. parties were present and respective counsels were also present and the case was further adjourned to the 24th of October, 2006 which both counsels agreed to.

(b) That on the 24th of October, 2006 when this matter was supposed to come up, parties were present in court and their respective counsel were also present but court did not sit and the Court Registrar informed all parties and counsels to come back to know the date for next adjournment.

(c) That since the said 24th of October, 2006 the said Lawrence Adepoju Esq. has been visiting this Court’s Registrar’s Office to know the next adjourned date but on all occasions he was always asked to come back as the case file could not easily be located.

(d) That this situation continued without positive development until the 1st December, 2006 when he again visited the Registra’s Office and the Registrar informed him that this matter had come upon 20th of October, and when nobody appeared the Court struck it out for lack of diligent prosecution,

(e) That he protested to the Registrar and expressed his disappointment, on further enquiry, the Registrar was made to produce the cause lists for the 19th of September, and 20th of October, 2006 and it was discovered that on the face of the cause list the matter was adjourned to the 24th of October, 2006 and not the 20th of October, also on that 20th of October, 2006 that the case came up, this suit was not listed for that date but was later written on it with pen.

(f) That although we are bound by the court’s record which reads that the matter was adjourned to the 20th of October, 2006 but it is clear from the surrounding facts of this case that what really happened was a mutual mistake, because the parties and their respective counsel as well as the Court Registrar heard and recorded the 24th of October, 2006 and not 20th of October, 2006.

(g) That from inception of this case, claimant’s counsel has never been absent for once and has displayed the diligence and seriousness needed for the prosecution of this case.