BEFORE HIS LORDSHIP HON JUSTICE CHIZOBA N. OJI PRESIDING JUDGE IBRAHIM DOMA WOKILI PLAINTIFF

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1 IN THE HIGH COURT OF JUSTICE OF THE FEDERAL CAPITAL TERRITORY ABUJA. IN THE ABUJA JUDICIAL DIVISION HOLDEN AT WUSE ABUJA ON THE 5 TH DAY OF FEBRUARY, 2013 BEFORE HIS LORDSHIP HON JUSTICE CHIZOBA N. OJI PRESIDING JUDGE SUIT NO. FCT\HC\CV\263\07 BETWEEN: IBRAHIM DOMA WOKILI PLAINTIFF AND 1. FEDERAL GOVERNMENT OF NIGERIA 2. FEDEAL CAPITAL DEVELOPMENT AUTHORITY DEFENDANT APPLICANT IS ABSENT CHINEDU OKOLI FOR THE APPLICANT. URSULA M. OCHE HOLDING THE BRIEF OF BETTY A. UMEGBULEM FOR THE 2 ND DEFENDANT RULING On 30 th November 2012, Mr. Uchegbulem for the Plaintiff moved his motion No. 2224/10, which was dated 8 th December 2010 but filed 16 th December Therein he sought the following orders. 1

2 a. An order relisting his motion dated 12 th November 2010, which came up for hearing on 8 th December 2010, or in the alternative b. An order relisting suit No: FCT/HC/CV/263/07 which was struck out on 25 th May 2009 c. Further orders of the court. The motion was brought pursuant to Order 35 Rule 2 Order 46 Rule 1 of the Rules of this honourable court and under the inherent jurisdiction of the honourable court. It was supported by a 6 paragraph affidavit of Tina Kaineh, litigation secretary in Mr. Uchegbulem s law firm. Also filed was counsel s written address wherein a sole issue for determination was identified thus: whether the court has the power to grant this application. Relying on the orders cited above and their affidavit and placing further reliance on the Court of Appeal s decision in ODELEYE V ADEGBANKE (2008) 4 WRN 44, he urged that the Plaintiff had made a good case for relisting of his suit. He prayed their application be granted. In opposing the application, Miss. Umegbulem counsel to the 2 nd Defendant filed a 6 paragraph counter affidavit deposed to by Saidu Wodi Legal Assistant in the Legal Services Dept of 2 nd Defendant. Also filed was counsel s written address wherein a sole issue for determination was raised thus: Whether the Applicant s affidavit disclosed any reasonable ground to warrant the discretion of the court on (sic) his favour Learned counsel submitted that it is trite law that a party seeking to relist a matter that was struck out must do so within a reasonable time; that this matter was struck out on 25tth May 2009 and the Plaintiff waited till 2 years later to bring this application therefore the Plaintiff was not serious in the prosecution of his case as delay defeats equity. The case of S.O. IGBINOPOGIE & 1 OR V GEORGE 2

3 OGEDEGBE (2001) 18 NWLR PART 745 PAGE 412 AT 425 paragraph 11 per Katsina Alu was relied upon. It was further argued that the Plaintiff had not met the condition to have his suit relisted. NIGERIA NATIONAL SUPPLY CO LTD V ESTABLISHMENT SIMA OF VADUZ (1990) 7 NWLR PART 164 PG 576 AT 543 PARAGRAPHS C-E (WRONG CITATION). SEE NSCC 526 AT 531 LINES 25 TO 30 PER BELGORE JSC (AS HE THEN WAS), S&D CONSTRUCTION COMPANY LTD V CHIEF BAYO AYOKU & 1 OR (2011) VOL 46 PART 11 NSQLR PAGE 967 AT , PARAGRAPHS D-B, MADAM FAUTA JAURO ATIKU & 1 OR V YOLA LOCAL GOVT. (2003) 1 NWLR PART 802 PAGE 487 AT 498 PARAGRAPHS D-H were relied upon. I have considered the submissions of learned counsel. It is not in dispute that the court can grant this application at its discretion if circumstances warrant the grant. The issue before this court therefore is whether the Plaintiff has satisfied the conditions for the grant of his application. The Plaintiff says that he has, whereas the 2 nd Defendant insists that he has not. So I ask, what are the conditions Plaintiff must satisfy in order to have his motion or suit relisted? In S&D CONSTRUCTION COMPANY LTD V AYOKU (supra) cited by Miss Umegbulem learned counsel for the 2 nd defendant, at Adekeye JSC (as she then was) in paragraphs D-C, stated them clearly thus: It is now settled law that a party applying that his matter struck out or dismissed for want of diligent prosecution be relisted must fulfill the following conditions. a. there must be good reasons for being absent at the hearing b. that there has not been undue delay in bringing the application as to prejudice the respondent c. that the respondent will not be prejudiced or embarrassed if the order for relisting is made. That the applicant s case is not manifestly unsupportable. 3

4 That the applicant s conduct throughout the case is deserving of sympathetic consideration. It was emphasized in the case of WILLIAMS V HOPE RISING VOLUNTARY FUNDS SOCIETY (1982) 13 NSCC PG 36 per by Idigbe JSC (of blessed memory) that All of these matters ought to be resolved in favour of the application of the Applicant before the judgment should be set aside. It is not enough that some of them are so resolved. ATIKU V YOLA LOCAL GOVERNMENT (2003) FWLR Pt 177 page 837. See also MR. JOHN E. AGBOR V THE POLYTECHNIC OF CALABAR (2009) LPELR (CA) Now, the reasons adduced in the affidavit in support of this application for the absence of the Plaintiff and his counsel on 25 th May 2009 when this matter was struck out is stated thus: 4a: that on the 25 th of May 2009, the matter was fixed for hearing before my lady, Hon. Justice Orji of High court 29 Wuse Zone 2, Abuja b. that on the said date, the learned counsel Emeka Uchegbulam Esq. who has been handling the suit was unavoidably absent because he had an urgent call to travel outside the jurisdiction of this honourable court. c. that the substantive suit was however struck out by this Honourable Court for want of diligent prosecution when neither the Plaintiff nor his counsel appeared before the court. The reason given why Plaintiff and his counsel were absent on the 8 th December 2010 when their motion dated 12 th November 2010 was fixed for hearing is as stated in paragraph 4 (j) to (l) thus J: that however the motion for relisting came up for hearing on the 8 th of December

5 K. that due to his very tight schedule of activity that day and a life threatening situation involving one of our clients, he had to quickly seek to (sic) immediate resolution of the other matter and on that ground sent a junior Mrs. Ifedu-Fred Uzoamaka to rush to the court to inform the lawyer on the other side and plead for a stand down. L. that he was just at the door of the court when he was informed that the motion has been struck out for want of diligent prosecution. Having considered the above reasons stated by the Plaintiff s counsel for the absence of himself and his client on 25 th May 2009 and 8 th December 2010, I do not find them to be good reasons. (1) There is no explanation stated as to the urgent call necessitating the absence of plaintiff s counsel on 25 th May No correspondence was sent to the court, No reason whatsoever was advanced for the absence of Plaintiff himself, on a date his matter was adjourned for definite report of settlement /hearing. It must be noted that the Plaintiff filed this suit since 7 th November 2007 and until when the matter was struck out on 25 th May 2009, no witness had been heard. At a point, the parties informed the court they were exploring out of court settlement. However not even when the Plaintiff s counsel indicated he would open his case in the absence of settlement did he make any serious effort to open his case. The reason advanced for counsel s absence on 8 th December 2010 is not any better. He did not bother to write to the court. Instead he sent his junior, who never appeared in court at all on the said date, to inform the counsel on the other side, and not the court, of the undisclosed life threatening situation of another client, which he preferred to attend to rather than appear before this court, and to plead for a stand down, with counsel on the other side, I suppose. 5

6 The fact that it was deposed in paragraphs 4 (m) that he did not brief his junior to move the motion since it was she who deposed to the affidavit was the more reason why he should have ensured that he wrote to the court, or informed counsel on the other side by telephone or even the court registrar by telephone, at least, that he would be late to the court. He did not do any of these. This court recorded on that 8 th December 2010 that the Plaintiff was not serious with his case, it took him over a year to apply for his matter to be relisted and then neither he nor his counsel appeared in court. Thus plaintiff s motion was struck out. Before I conclude this point let me state that the contradictions in paragraph 4 (k) (l) of the counter affidavit of the 2 nd Defendant and the typographical errors in paragraphs 4 (e)(f) and (g) of the said counter affidavit do not change the facts of this application being that the plaintiff s suit and motion to relist same were struck out and that it took the plaintiff I year and 6 months to file a motion to relist his suit, which this court struck out on 8 th December 2010 and that the present motion took nearly 2 years to be heard. It was filed on 16 th December 2010 and 2 nd defendant was served on 11 th January On 15 th February 2011 when the motion was to be heard, the court did not sit. Nothing was heard of this motion till 23 rd May 2012 when the court had to adjourn to 24 th July 2012 as the Respondents were not served notice of the hearing date. The registrar informed the court that the Applicant did not come back for a date hence the long delay. On 24 th July 2012 the 1 st Defendant had not been served the motion and the matter was adjourned to 27 th November Still the 1 st Defendant had not been served and the court further adjourned to 30 th November 2012 when the motion was eventually heard. 6

7 The Plaintiff s counsel has not advanced any good reason to excuse his absence on 25 th May 2009 and 8 th December He advanced no reason at all for the absence of the Plaintiff himself on both dates as well. Therefore the Plaintiff has not satisfied the 1 st condition to warrant the exercise of the courts discretion in his favour. Secondly on whether there has been undue delay in filing this application to prejudice the Defendant. The 1 st motion to relist this suit took 1 year 6 months to file. The reason advanced by Plaintiff s counsel for not relisting was that parties were exploring out of court settlement and was not instructed by his client to relist until when he filed the motion to relist. That, unfortunately, is no excuse why he did not seek to relist the suit in good time. They decided to put all their eggs in one basket and have to bear the bitter consequences. Before I conclude this ruling let me retrace the conduct of the Plaintiff throughout these proceedings in this court. On 31 st December 2007, when this matter was first heard in this court both parties were absent. The matter was adjourned to 10 th December On 10 th December 2007, Mrs. Eze Adaeze held the brief of Mr. Uchegbulam. She said they were under the impression the matter was for mention (whereas it was for hearing). The court adjourned to 21 st January 2008 for definite hearing. On 21 st January 2008, Miss. Umegbulem made her first appearance for the 2 nd Defendant. Eze Adaeze appeared for the Plainttiff. Plaintiff did not serve the 1 st Defendant and so the matter could not proceed to hearing. We adjourned to 4 th February 2008 for hearing. On 4 th February 2008 Mr. Uchegbulam with Eze Adaeze appeared for the Plaintiff and Betty Umegbulem for 2 nd Defendant. Plaintiff s counsel were not ready for hearing, we adjourned to 18 th February

8 On 18 th February 2008, Mr. Uchegbulam and Mrs. Umegbulem announced efforts at settlement. Mr. Uchegbulam said he would need to amend his claim. We adjourned to 3 rd April 2008 for Report of Settlement/definite hearing. On 3 rd April 2008, all parties were absent. Plaintiff s counsel wrote letter for adjournment signed by Eze Adaeze, on ground that Mr. Uchegbulam was unavoidably out of town. We adjourned to 21 st April 2008, a date chosen by him for definite report of settlement/definite hearing. On 21 st April 2008, Eze Adaeze appeared for the Plaintiff and Betty Umegbulem for 2 nd Defendant. It was reported that the loss of Mr. Uchegbulam s mother disrupted discussions as to settlement. Miss Eze informed this court that she believed that on the next adjourned date parties would have had a concrete settlement or they open their case. The court adjourned to 25 th May 2008 as agreed by parties for definite report of settlement or hearing. On 25 th May 2008, Mr. Uchegbulam appeared for Plaintiff. No appearance for Defendants. Mr. Uchegbulam announced that they were still talking on settlement and shall be producing their witness on the next adjourned date if parties did not settle. We adjourned for definite hearing to 16 th June 2008 On 16 th June 2008, all parties were absent. The matter was adjourned to 10 th July On 10 th July 2008, Miss. Umegbulem appeared for 2 nd Defendant with Odera Nwatu. Plaintiff s counsel was absent. She informed this court that the Plaintiff called her to say they had gone far with Adhoc committee on settlement and to convey same to the court. On her application for a fairly long date to enable them conclude the court adjourned to 29 th September 2008 for definite report of Settlement/Hearing. 8

9 On 29 th September 2008, this court did not sit due to the loss of my father. On 25 th May 2009 Parties were absent and the matter was struck out. Throughout these proceedings it is clear that the plaintiff s counsel was content with filing this suit, not proceeding with it with the hope that settlement would be reached, no matter how long the proposed settlement was going to take. In as much as the court will encourage parties to settle, the fact that settlement is being discussed will not stop a serious party from proceeding with his case. The Plaintiff has failed to demonstrate his seriousness in presenting this case. Truly, his conduct throughout this proceeding do not evoke any sympathy from this court. The application is refused in its entirety. Oche: We are grateful. We ask for costs of N20, 000. Okoli: We are asking the court to jettison the application for costs in as much as the court has ruled. Costs are not meant to punish a litigant. Court: The 2 nd Defendant asked the court to refuse the Plaintiff s application. The court ruled in their favour, therefore they are entitled to costs. I awards cost of N5, in favour of the 2 nd Defendant against the Plaintiff. Hon. Justice Chizoba N. Oji Hon. Judge 9

IN THE HIGH COURT OF JUSTICE FEDERAL CAPITAL TERRITORY IN THE ABUJA JUDICIAL DIVISION HOLDEN AT MAITAMA ABUJA

IN THE HIGH COURT OF JUSTICE FEDERAL CAPITAL TERRITORY IN THE ABUJA JUDICIAL DIVISION HOLDEN AT MAITAMA ABUJA BEFORE HIS LORDSHIP: HON. JUSTICE SALISU GARBA COURT CLERKS: BWALA NATHAN & OTHERS COURT NUMBER: