Mr. Dumbor Gbarabe V. The Registered Trustees Of The Methodist Church Of Nigeria (2009)

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KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.

This is an appeal against the ruling of the High Court of Rivers State; Port Harcourt Judicial Division (the lower court) delivered on 9th December 2003 dismissing the plaintiffs (appellant’s) suit for want of diligent prosecution.

The appellant herein, as plaintiff, instituted an action against the respondent before the lower court by a writ of summons filed on 25/9/01. He subsequently filed a statement of claim on 10/7/02. In paragraph 16 thereof, he sought the following reliefs:

1. An order of perpetual injunction restraining the defendant either acting by itself or through its servants, agents or privies from entering, constructing, planting or trespassing into the land in dispute lying and situate by the side of the defendant/respondent’s fence called “Open Space” directly between the two fence wall Banham Methodist Church and Central Police Station along Banham Street by Aggrey Road, Port Harcourt.
2. A declaration that the defendant caused damages to the plaintiff business (sic) actually by chasing the plaintiff and the plaintiffs worker away from where the plaintiff carried on his business.
3. The sum of N10, 000, 000.00 (Ten Million Naira Only) representing General Damages.

On 22nd October, 2003 the suit was adjourned to 8th, 9th, 10th, 11th and 12th December, 2003 and 12th, 13th, 14th and 15th January, 2004 for hearing. On 8/12/03 the appellant was present in court but his counsel was absent. The respondent was absent but represented by B.M. Wifa, SAN, of counsel. The suit was adjourned to the following day. On 9/12/03 both parties were absent. Learned counsel for the appellant was also absent. Mr. B.M. Wifa, SAN reminded the court that the previous day’s adjournment was due to the absence of the appellant’s counsel and noted that he was absent again. He therefore urged the court to dismiss the suit. The suit was accordingly dismissed with N10, 000.00 costs awarded in favour of the defendant.

The appellant was dissatisfied with this decision and filed a notice of appeal on 9/1/04 containing two grounds of appeal. The grounds of appeal are as follows:

GROUND 1(ONE)

The learned trial Judge erred in law in dismissing the plaintiff/appellant’s suit notwithstanding the letter for adjournment sent to the court.

PARTICULARS

i. A letter of adjournment was sent to the Honourable Court.

ii. The matter was among the pending matters reassigned to the learned trial Judge who was just sworn in not long ago.

iii. There are about 7 more days already fixed for trial by the court which have not been exhausted.

iv. The case was not struck out.

GROUND 2 (TWO)

The learned trial Judge erred in law in awarding the Sum of N10, 000.00 costs against the plaintiff/appellant.