Wobo Woke & Anor V. Ishmael Ogoloma & Anor (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ISTIFANUS THOMAS, J.C.A (Delivering the Leading Judgment)

This is an appeal against the ruling of T.K. Osu (J) delivered on 21st February 2004 in suit No. PHC/97/83 dated at High Court of Justice, Port Harcourt. The ruling appealed against was the refusal of the trial judge to grant the appellants application for leave to relist and to hear the suit on its merit. The present appellants were the plaintiffs at the lower court while the respondents were the defendants. On 17th February, 2002, appellant’s suit was dismissed for want of diligent prosecution because the appellants and their counsel were found of failing to appear on several adjourned dates.

The suit was initiated by writ of summons which was filed on 2nd June, 1983. But as at 17th December, 2003, two previous judges, namely Hebron George (J) and V.M. Okor (J) could not make any progress before it was transferred to the trial judges. As at 17th December 2003, only the first witness for the appellants was being cross-examined. By the record of appeal, the suit had stayed for over 20 years, without good progress. By page 241 of the record, on 14th April, 2002, the case was adjourned, because the appellants’ counsel was in court, but not with his case file, and they could not get an interpreter to assist their witness who was to be cross-examined. As shown on page 24(i), the appellants counsel asked for an adjournment again on the ground that they could not get an interpreter. Again on 16th December, 2002, appellants counsel asked for an adjournment on the ground that he was not in court with his case file and the matter was adjourned to 17th December, 2002 as the appellants’ counsel had informed the court that he would not fail to appear with his case file.

But on the adjourned date, the appellants’ counsel was absent and there was no letter explaining his reasons for his absence, and the respondents, counsel applied that the suit be dismissed as it was very clear that the appellant were not willing to prosecute the case or to prove their suit. Counsel applied under the Rivers state High court Rules, Order 37 Rule 8 to under the inherent powers of the court to dismiss the suit. On pages 14 and 15 of the record, the trial judge ruled and dismissed the appellant’s case.

On 15th January, 2003, the appellants filed a motion on notice for (a) leave of court to allow them to bring an application after 6 days of ruling; (b) leave of court to set aside the ruling delivered on 17th December, 2002, (c) an order of court re-listing this suit to be heard and determined on merit. The motion was supported by a 17 paragraphs affidavit deposed to by the 1st appellant. Paragraphs 6,7,8,9 and 14 are relevant and are reproduced as follows:

“6. That at the time the case was about to be called, I went out to look for the counsel representing my counsel for the day.

7. That the counsel C.S. Otuoye is a junior in J.O. Nwachukwus Chambers.
8. That Chief J.O. Nwachukwu of counsel informed me and I verily believe him that the case file was handed over to his said junior counsel on 16-12-2002 for court on 17-12-2002.
9. That the counsel himself said that he came to court but
10. That we could not file the motion to re-list within 6 days as required due to the illness of my counsel within the period.”

When served with the motion, the respondent filed a counter affidavit containing 10 paragraphs. The learned trial judge heard the parties applications for and against and ruled on 21st January, 2004, as contained from pages 34-44 of the record and struck out the appellants application to re-list the suit. At page 44 of the record, the trial judge in his conclusive ruling said as follows:

“The court is not satisfied that they are cogent enough to persuade the court to granting the application. Consequently the application is hereby refused and in the premises struck out.”

Based on the above ruling the appellants filed on 4th February 2004, their notice of appeal containing 4 grounds of appear.

By leave of this court, the appellant’s motion for enlargement of time to file appellants brief was granted on 1st March 2007. Appellants brief contains 3 issues distilled from the four grounds of appeal. They read:

ISSUE I:

Was the learned trial judge right in refusing the plaintiffs/appellants application for leave to set aside the dismissal of their suit brought after six days of the judgment on 17/12/2002. (ground 1)

ISSUE II:

Was the lerarned trial judge right in failing to reach a decision as to whether there was so material upon which he could have extended the time within which the plaintiffs/appellants could apply to set aside the order dismissing their suit. (ground 2),