Mr. John E. Agbor V. The Polytechnic, Calabar (2009)

LawGlobal-Hub Lead Judgment Report

JEAN OMOKRI, J.C.A.

This is an appeal against the ruling of E. E. Ita J., in Suit No.HC/177/2001 delivered on 4/6/06, wherein he refused the appellant’s application to relist the suit that was struck out.

The facts of the case, as can be gleaned from the record, are as follows: By a writ of summon taken out at the registry of the trial court on the 26/4/01, the appellant, who was the plaintiff, sued the respondent, who was the defendant, claiming in paragraph 23 of the statement of claim, at page 5 of the record, as follows:

“23. The plaintiff states he-has- suffered- tremendously due to the act of the defendant and he claim as follows:

(a) A declaration that the termination of the appointment of the plaintiff was invalid, null and void as same was in violation of the right of fair hearing of the plaintiff.

(b) Order of the court that the plaintiff be reinstated in the service of the defendant.

(c) The plaintiff is entitled to his salary during the pendency of this action and part of his half salary during interdiction and other benefits like accommodation during the pendency of this suit.

(d) The sum of N1,000,000.00 as general damages for the mental anguish suffered by the plaintiff due to the act of the defendant.”

The respondent filed his statement of defence of 18 paragraphs which is at page 8 of the record. Shortly before the commencement of hearing, the appellant informed the trial court at page 10 of the record that there was a move to settle the matter out of court. The matter suffered series of adjournment as a result of the said move to settle. The matter was eventually struck out for want of diligent prosecution on 14/11/05. Sequel to the striking out of the matter, the appellant filed an application to relist the matter but it was refused.

Dissatisfied with the ruling of the trial court, the appellant appealed to this court on one ground. The ground of appeal’ subscribed in the notice and grounds of appeal is as follows:

“The learned trial Judge erred in law to have struck out the application to relist the suit.

PARTICULARS OF ERROR

(a) The applicant gave sufficient reasons for allowing the application.

(b) The applicant satisfied the condition precedent as contained in the Practice Direction to relist the application.