FIRST BANK OF NIGERIA PLC VS MAY MEDICAL CLINICS AND DIAGNOSTIC CENTRE LIMITED
June 25, 2025AWOWAJIRI EDWARD V. THE STATE
June 25, 2025Legalpedia Citation: (2001) Legalpedia (CA) 61613
In the Court of Appeal
HOLDEN AT PORTHARCOURT
Mon Apr 2, 2001
Suit Number: CA/PH/52M/97
CORAM
MICHAEL EYARUOMA AKPIROROH
ABOYI JOHN IKONGBEH
PARTIES
DR. (MRS) BOMO IVBIYARO (NEE FRANCIS)MR. EKIMIEBI OLAWALE FRANCIS APPELLANTS
MRS OMOKARO MONI FRANCIS (NEE OBIRE) RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
The Plaintiffs/Appellants’ suit had started before D.W. Abbey-Kalio, J., with the evidence-in-chief of P.W.1. The witness had not been cross-examined, when the learned trial Judge dismissed the suit for want of diligent prosecution, because the Appellants and their counsel were absent from court and had been consistently, so absent a number of times before. Counsel on behalf of the Appellants applied to the same High Court for an order re-listing the suit. When the application came up for hearing, the Appellants’ counsel, relying on the copious facts deposed to in the supporting affidavit, tried to explain why neither the Applicants nor their counsel were present in court. The Respondent’s counsel, relying on equally copious facts deposed to in a counter-affidavit filed in opposition, argued strenuously to convince the court, that the Appellants had not satisfactorily explained their absence to entitle them to the exercise of the court’s discretion. In addition, counsel raised the issue that the court lacked the competence to restore the suit to its hearing list, same having been dismissed as opposed to being merely struck out. Subsequently, the trial court ruled that it cannot and does not, have jurisdiction to re-list a matter that has been dismissed by it, and consequently dismissed the suit. Aggrieved by the ruling, the Applicants have appealed to this court.
HELD
Appeal Allowed
ISSUES
Whether or not because Abbey-Kalio, J., had expressed his order to be one of dismissal, the suit so dismissed, could no longer be restored to the hearing list by the same High Court.
RATIONES DECIDENDI
ACTION, PRACTICE AND PROCEDURE
DISMISSAL FOR WANT OF PROSECUTION- ACTS OR OMISSIONS THAT COULD GIVE RISE TO A DISMISSAL FOR WANT OF PROSECUTION
“I must observe at once that learned Counsel did not cite any authorities for these rather sweeping assertions, My own research (limited, I must confess) reveals that contrary to learned Counsel’s view, that dismissal for want of prosecution and dismissal for default of appearance are different things is the truth, I gather from my reading of the authorities that the term “want of prosecution” is not an independent item, in a list of items for which an action may be dismissed. It is rather an umbrella term, that covers a wide range of circumstances, including default of appearance by the plaintiff, in which the expeditious disposal of a case, is hampered by the activity or inactivity of the plaintiff. In other words, the default of appearance by the plaintiff is an instance of want of prosecution. It is one of the items in the list of circumstances, that are collectively described as want of diligent prosecution, Jowitt’s Dictionary of English Law, 2nd Edition, P. 626, explains what constitutes dismissal for want of prosecution thus:-
“If the plaintiff in an action does not deliver his statement of claim within the time during which he is bound to do so … or does not take out a summons for directions … within the prescribed time … or does not set down the action for trial within the proper time … or does not appear at the trial … or does not give particulars … the defendant may apply to the court to dismiss the action for want of prosecution. The defendant may also take this step if the plaintiff fails to comply with an order to answer interrogatories or produce documents …”
ACTION, COURT, PRACTICE AND PROCEDURE
DISMISSAL OF AN ACTION – IMPLICATION OF THE DISMISSAL OF AN ACTION BY A COURT
“I agree with learned Counsel for the respondent that the dismissal of an action “has serious consequences which distinguish it from one that was struck out.” I agree with him also that, ordinarily “when a matter is so dismissed … the parties can no longer come back to court on the same matter” as they can do when the matter was merely struck out. It is, however, not immutably the case that, once a case is expressed by the Judge to have been dismissed, the parties cannot bring it back before the same court for hearing.”
ACTION, COURT, PRACTICE AND PROCEDURE
DISMISSAL OF AN ACTION – INSTANCES WHERE A COURT MAY TREAT A DISMISSAL AS A MERE STRIKING OUT
“In some instances, the rules of court can, and do, authorize the court to treat the dismissal as a mere striking out. This is especially so, where the dismissal has been done not on the merits of the case, but because the plaintiff has been guilty of any of the actions or inactions that could be described as want of diligent prosecution.”
ACTION, COURT, PRACTICE AND PROCEDURE
DEFAULT OF APPEARANCE – DUTY OF COURT ON THE DEFAULT OF APPEARANCE BY EITHER PARTIES TO A PROCEEDING
“Far from supporting the argument on behalf of the respondent that the court cannot reopen a case dismissed for want of prosecution by non-appearance, this case clearly shows that it can, especially where there is authority to do so in the rules. Order 37, Rule 7 of the Rivers State High Court Rules provides for what is to be done with the case in the event of the plaintiff appearing, but the defendant not appearing. The plaintiff may go ahead and prove his case. Rule 8, on the other hand, provides what is to happen if the defendant appears but not the plaintiff. The defendant in such circumstance “shall be entitled to judgment dismissing the action.”
JUDGMENT AND ORDER, ACTION, COURT, PRACTICE AND PROCEDURE
SETTING ASIDE OF JUDGMENT- WHETHER A JUDGMENT OBTAINED ON DEFAULT OF APPEARANCE MAY BE SET ASIDE BY THE COURT
“The rule 9 provides unequivocally:
“Any judgment obtained where one party does not appear at the trial may be set aside by the court upon such terms as may seem just, upon an application made within six days after the trial or within such longer period as the court may allow for good cause shown.”
CASES CITED
Not Available
STATUTES REFERRED TO
Rivers State High Court (Civil Procedure) Rules, 1987.|
