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  • 2004-11-08
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F.B.N. Plc. v. Asubop & Co. (Nig.) Ltd

FIRST BANK OF (NIG.) PLC.

V

ASUBOP & COMPANY NIGERIA LTD.

MR. O. J. ASUBOP

COURT OF APPEAL

(CALABAR DIVISION)

R. O. ROWLAND, JCA (Presided and Read the Lead Judgment)

SIMEON OSUJI EKPE, JCA

ISTFANUS THOMAS, JCA

CA/C/53/2001

THURSDAY, 20TH MARCH, 2003

ACTION - Dismissal of action for want of diligent prosecution under Akwa Ibom State High Court (Civil Procedure) Rules -

Application for reinstatement of - How and time limit within which can be brought

JUDGMENT AND ORDERS - Judgment of court - Application to set aside - Factors guiding consideration of

JUDGMENT AND ORDERS - Recorded decision of court -  Party seeking to alter - Option open to

PRACTICE AND PROCEDURE - Dismissal of action for want of diligent prosecution under Akwa Ibom State High Court (Civil Procedure) Rules - Application for reinstatement of - How and time limit within which can be brought

PRACTICE AND PROCEDURE - Judgment of court - Application to set aside - Factors guiding consideration of

PRACTICE AND PROCEDURE - Party who seeks to alter recorded decision of court - Duty on

PRACTICE AND PROCEDURE - Recorded decision of court - Party seeking to alter - Option open to

Issues:

1.              Whether the learned trial judge was right when he held that he had no jurisdiction to set aside the dismissal judgment/order of his learned brother, Honourable Justice Ntem Isua delivered on 28-10-98.

2.              Whether the failure of the learned trial judge to consider the affidavit evidence in support of the plaintiff/appellant’s motion was not a breach of fair hearing, which has led to a miscarriage of justice since he did not exercise his discretion to grant or refuse the application of the plaintiff/appellants.

Facts:

The appellant herein instituted an action at the High Court of Justice Uyo, Akwa Ibom State, claiming against the respondents the sum of N309,650.58k as the respondents’ indebtedness to it, with interest at the rate of 28% from 21-10-92 until the whole debt is liquidated.

The suit proceeded to trial, at a stage of the trial, the parties agreed to settle the matter out of court. The settlement out of court failed and thereafter, the case suffered series of adjournments at the instance of the appellant.

On 28-10-98 when the suit came up again in court, the appellant and its counsel were not in court. The respondents through their counsel applied to the court that the suit be dismissed for want of diligent prosecution by the appellant under the provisions of Order 37, rule 8 of the High Court ( Civil Procedure) Rules of Akwa Ibom State, 1989. The court then dismissed the suit for want of diligent prosecution under the said rule.

The appellant thereupon applied to the trial court on 27-7-1999, praying for an order extending the time for it to apply to set aside the default judgment of the court delivered on 28th October, 1998, an order setting aside the judgment and an order relisting the suit.

The trial court took arguments of counsel on the application and dismissed the application.

Dissatisfied, the appellant appealed to the Court of Appeal.