Nigeria National Supply Co. Ltd V. Establishment Sima Of Vaduz (1990)

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BELGORE, J.S.C. 

In the 2nd October, 1990, I dismissed this appeal and reserved the reasons for doing so to 14th December, 1990. I now give my reasons.

A suit filed by respondent Establishment Sima of Vaduz was on the 2nd day of March, 1988 struck out by the Federal High Court. An application under order 9 rule 6 Federal High Court (Civil Procedure) Rules was argued before that court on 17th day of October, 1988 for relisting the suit.

Even though the present appellant as respondent to that motion opposed, the prayer was granted. In granting the motion for relisting the suit the learned Judge, inter alia, held as follows:

“The only issue for deeper consideration is the length of time between when the action was struck out and the motion to relist it was taken. There is no time limit as when such a motion should be taken but the guilding principle is fairness to all the parties concerned. The applicant will not be claiming his right but will be praying on the court’s discretion and hence he must not do anything to prejudice his position or that of the other party. I am fully aware of the Supreme Court case in the Williams’s case which lays down that application of this nature must be brought within reasonable time. What is reasonable time has to be decided on the facts of each case and a blanket definition of it cannot be given. The defendant in their own counter affidavit deposed that they would be prejudiced as some of the staff who were likely to be of use to them in the case had their services dispensed with few months after the case was struck out. I am not impressed by this reason, since there is a reasonable possibility that the action be relisted or a fresh one can be instituted the liquidator cannot be heard that he has disposed of evidence to help him in contesting or defending any action within his duty.

I do not consider the delay of the plaintiff inordinately long and I found that they have a good excuse to be absent in court the day they were, the application is therefore granted. The case is listed.”

Against this ruling the appellant lodged an appeal before Court of Appeal on two grounds as follows:

“GROUNDS OF APPEAL

A. The learned trial Judge erred in law in failing to exercise his discretion properly on the materials before him in granting the plaintiffs application for re-listing the suit.

PARTICULARS

(i) The motion for re-listing of the suit was filed about seven months after it was struck out.

(ii) No reason was given by the plaintiff for the delay in its affidavit.

The learned trial Judge erred in law in not giving adequate consideration to the contention of the defendant that it will be prejudiced if the suit is relisted when that is one of conditions precedent to the granting of an application to relist a suit struck out.

PARTICULARS