Universal Oil Limited & Anor V. Nigeria Deposit Insurance Corporation (2008)

LawGlobal-Hub Lead Judgment Report

HUSSEIN MUKHTAR, J.C.A.

This appeal is against the ruling of the Federal High Court, Lagos delivered by C. Nnamani, J on the 18th July, 2001. The facts of the case may be summarized thus:

Sometime in May 1999 the respondent as receiver/liquidator of Great Merchant Bank Ltd filed an application with suit No. FBFMT/L/Z11/CV/80/99 for the recovery of debt before the Lagos Zone (VII) of the Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Tribunal.

Upon the dissolution of the Failed Banks Tribunal, the application which was still pending before the said tribunal when it was transferred to the Federal High Court (Lagos Division) and assigned for hearing before the Honourable Justice C. Nnamani, with suit number FHC/L/FBC/80/2000.

The respondents claim in the said application was for thirteen million one hundred and eighty three thousand, eight hundred and sixteen naira, twenty eight kobo (N=13, 183,816.28) being the balance remaining unpaid in respect of two million, five hundred and eight one US dollars ($2, 508, 001) ADB/ESL facility granted to the appellant by the defunct bank which balance the appellants have failed to pay and interest on the said sum at 21% per annum from 1st February, 1999 until the entire sum is liquidated.

The appellants entered appearance on 31th May 1999 and the suit was set down for hearing but was not heard on seven previous adjournments until 27th April 2001.

On 27th April 2001 when the suit was called up for hearing the plaintiff/respondent counsel informed the court that he was not able to procure his witness and urged the court to grant him an adjournment to enable him properly present his case. The suit was consequently adjourned to 8th May 2001 for definite hearing or striking out having regard to the protracted history of the case.

On 8th May 2001 when the suit was again called up for hearing, the plaintiff/respondent’s counsel upon being requested to proceed informed the court that though he had his witness in court, he could not proceed to trial but rather requested for a short adjournment to enable him file a formal application as defendant had not filed a state of defence.

The court observed that the suit was slated for definite hearing or striking out as at the last adjourned date having unnecessarily suffered several adjournments. They refused to grant an adjournment and ordered the plaintiffs/respondent’s counsel to proceed with the case, the failure of which led to striking out of the suit.

On 24th May 2001 the respondent’s counsel filed an application praying the court for an order relisting the suit. The appellant opposed the application but His Lordship granted the application and proceeded to relist the suit. Being dissatisfied with the ruling of the court relisting the suit the appellant filed this appeal.

The lone ground of appeal and its particulars are that:

“The trial Judge erred in law in ordering the relisting of suit No. FHC/L/FBC/30/2000: NDIC VS UNIVERSAL OIL LTD which was struck out on the 8th day of May 2001 for the failure of the plaintiff to proceed with the trial of the suit when called upon to do so.

PARTICULARS OF ERROR

a. The Federal High Court has no power under the Federal High Court (Civil Procedure) Rules 2000 to order the relisting of a suit that was struck out for failure of the plaintiff to proceed with the trial of his suit when called upon to do so.