Prof. Alfred C. Ikeme & Anor V. Dr. Benjamin Ugwu (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

RAPHAEL CHIKWE AGBO, J.C.A. (Delivering the Leading Judgment)

The appellants are defendants and cross-claimants in Suit No.PLD/J540/94 pending at the Jos Division of the High Court of Plateau State. This matter had suffered long years of delay and had been placed before four different Judges some of who died without concluding the case. It also seems from the processes before the court that the respondent as plaintiff was picking and choosing particular judges to entertain his suit. It finally landed on the desk of Justice M. I. Sirajo who on the application of the plaintiff fixed the case for hearing on 8th April, 2009. On the said date both parties were represented in court.

Mr. Zi of Counsel for the plaintiff applied for an adjournment on the ground that he was coming into the case for the first time and it was also coming before that court for the first time. The trial Judge refused. Mr. Zi then asked for a standing down for two hours. The application was granted. The court stood down the matter to 11.15 am. When the court resumed at 11.21 am one Mr. Onyekwefu now announced himself for the plaintiff instead of Mr. Zi. Mr. Onyekwelu instead of calling his witnesses now made an oral application that the plaintiff be allowed to adopt the case he made under late Justice Dusu as he could not reach most of those witnesses. The trial court ruled thus: –

“This matter is for hearing today. I have already ruled that hearing shall proceed. The new application made orally for adoption of previous testimonies is incompetent as it is not backed by any evidence. Such applications are always and I repeat always been made on notice with affidavit deposing to facts in support thereof together with the Certified True Copy of the previous testimonies annexed as exhibit. But since the plaintiff is not now ready to proceed and his current application having been incompetent, I have no option left than to dismiss the plaintiff’s suit under Order 37 Rule 8 of the Rules of this court since pleadings have since been filed and exchanged. The counter claim of the 1st defendant is adjourned to 26th May, 2009 for hearing while the plaintiff’s suit is dismissed.”

The plaintiff did not challenge this order. Rather on 12th May, 2009 he filed a motion at the trial court dated 8th May, 2009 wherein he prayed the court as follows:

(1) An order of extension of time within which the plaintiff/applicant will apply to set aside the order of this court made on 8th April, 2009 dismissing this suit.

(2) An order setting aside the said order.

(3) An order relisting the suit which was dismissed on 8th April, 2009.

The application was accompanied by a 12 paragraph affidavit in support.

The appellants filed a 19 paragraph counter-affidavit. In a considered ruling the trial judge adjudged the motion as follows:

“I have carefully considered the two opposing affidavits and the written address as for and against the application. Even though the applicant and his counsel have exhibited tardiness in having the matter set down for trial, on the date fixed for hearing the plaintiff/applicant was physically in court but the suit had to be dismissed when his counsel showed unwillingness to proceed. Before this court that was the first time the plaintiff failed to proceed with his case. Besides, the current application was filed only a month after the suit was dismissed.

Agreed that there is delay in filing the application within time, the delay is not excessive as to consider it undue. There is no undue delay in the filing of the application. Therefore in order to avail the plaintiff the opportunity of being heard, I hereby grant all the prayers on the motion paper. I further order that the plaintiff shall file a written undertaking that he will diligently prosecute his case or risk the case been thrown out again with serious consequences.”

Dissatisfied with this Ruling the appellants filed this appeal setting out four grounds of appeal in the notice of appeal which grounds are reproduced hereunder:-

(1) The learned trial Judge erred in law when he assumed jurisdiction to set aside his ruling dated 8th April, 2009 dismissing the plaintiffs’ claim when he had become functus officio.