IN THE HIGH COURT OF JUSTICE OF PLATEAU STATE OF NIGERIA
HOLDEN AT JOS
BEFORE HIS LORDSHIP: JUSTICE M. I. SIRAJO………JUDGE
ON TUESDAY THE 16TH DAY OF FEBRUARY, 2016
SUIT No. PLD/J401/07
BETWEEN:
ALHAJI ISA ALIYU GAYA……………………PLAINTIFF/APPLICANT
AND
MR. NANSEL BINKAT
MINISTRY OF LANDS, SURVEY AND TOWN …...............DEFENDANTS/PLANNING, JOS RESPONDENTS
ATTORNEY GENEAL, PLATEAU STTE
On 30th April, 2014, I entered judgment for the defendants under Order 37 Rule 8, dismissing this suit in the absence of the plaintiff and his counsel. On 22nd May, 2014, the plaintiff filed a motion on notice seeking for an order relisting the suit. The three defendants filed counter affidavits in opposition to the application. Due to my involvement in National assignment in Ekiti, Lagos and Gombe States between June, 2014 and October, 2015 coupled with the six months industrial action embarked upon by the staff of Plateau State Judiciary under the auspices of JUSUN, this motion could not be taken until last week when it was dismissed upon an application by the plaintiff’s counsel to withdraw same. The reason for the dismissal is contained in the Bench ruling of 11th February, 2016.
While the motion of 22nd May, 2014 was pending and upon being served with the defendant’s counter affidavits, learned counsel for the plaintiff filed another motion dated 1st July, 2014 seeking for extension of time within which the plaintiff may apply to set aside the judgment of this Court in this suit dated 30th April, 2014 and an order setting aside the said judgment. Like with the first application the two set of defendants/respondents also filed counter affidavits in opposition to the grant of this application.
Reasons for the absence of the plaintiff and his counsel in Court on 30th April, 2014 when the suit was dismissed are contained in the affidavit of Sunday Fraden, a Litigation Secretary in Godiya Chambers, solicitors handling the suit for the applicant. The reason advanced is that on the strength of a notice circulated by the Nigeria Bar Association, Jos Branch that there would be a valedictory session in honour of retiring Justice Buge on the 30th April, 2014, counsel for the plaintiff advised his client and witness not to come to Court on that date as the Court will not sit. Counsel also did not come to Court on the strength of the notice. That counsel only got to know that the suit was dismissed on 24th June, 2014 as the earlier information giving to him by the clerk of Court was that the suit was struck out. It is deposed further that it was on 30th June, 2014 that the applicant obtained the record of proceedings of this Court dated 30th April, 2014, hence this application.
In the counter-affidavit deposed to by Ojogbane Faith, a litigation secretary in the law firm of Messrs Solace Chambers, on behalf of the 1st defendant/respondent, the application is challenged on many fronts-
The counter-affidavit of Hauwa Samuel sworn to on behalf of the second and third respondents deposed to similar facts as contained in the counter affidavit of Ojogbane Faith.
I have calmly read through the written addresses filed by counsel in support and in opposition to the application.
The first issue formulated by Ralph A. Monye Esq in his written address, being in the form of a preliminary objection, shall be considered first. The issue is:
“Whether this application is competent.”
He submitted that the application is incompetent in that the prayers sought are incompetent in the absence of a relief seeking for the relist of the suit.
N. J. Miner Esq learned Senior State counsel for the 2nd and 3rd respondents also couched his issue one in the same language. Learned counsel for the plaintiff/applicant did not reply on this issue.
Resolution of Issue one
Order 37 Rule 9 under which this application is predicated provides:
“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.”
The provision quoted above did not contemplate a prayer to relist a suit that was dismissed under Order 37 Rule 8. A prayer to relist is necessary only where a matter is struck out. Where, as in the instant case, the matter is dismissed, all that is required to breath life into the matter is an order setting aside the order of dismissal. A prayer to relist the suit is not necessary because once an order is made setting aside the judgment dismissing the suit, the suit is automatically revived. I hold that there is no merit in the first issue formulated by the two sets of respondents and same is hereby resolved against them. The prayers on the motion paper are competent and the motion itself is competent to that extent.7.
Resolution of Issue two
The issue here is whether the plaintiff/applicant is entitled to the reliefs sought on the motion paper. It is submitted for the respondents that the applicant has failed to explain why he could not bring his application within the six days allowable by Rule 9 of Order 37.
Judgment dismissing the suit was entered on 30th April, 2014. This application was filed on 1st July, 2014, about 61 days after the dismissal of the suit. The suit was dismissed on 30th April, 2014 and the plaintiff and his counsel, according to the affidavit in support of the motion, were not aware of the appropriate order made by the Court until the 24th day of June, 2014. This is a clear sign of no-diligence on their part when we take into consideration the fact that the plaintiff/applicant and his counsel were fully aware of the hearing date of 30th April, 2014.
A diligent party who did not attend Court on a date his matter was fixed for hearing ought to take immediate step to find out what transpired in Court in his absence. In addition to this, it is deposed in the affidavit in support of the motion that the certified true copy of the record of proceedings of this Court dismissing the suit was only made available to the applicant on 30th June, 2014. A quick glance at that record of proceedings annexed to the affidavit in support of the motion as exhibit “A” reveals that the record was certified on 25th June, 2014. Two scenarios played out here –
Whichever way one looks at it, the plaintiff has by his action exhibited non-challance in the prosecution of this case and should have himself to blame if this application is refused. I agree with the learned counsel for the respondents that the reasons advanced in the supporting affidavit is not sufficient to convince me to exercise my discretion in favour of the plaintiff/applicant.
On whether this application constitute an abuse of Court process learned counsel for the first respondent submitted on the authority of Kolawole vs. A. G. Oyo State (2006) 3 NWLR (Pt. 966) 50 at 73 – 74 that filing a process in Court in anticipation of an unfavorable ruling is another specie of abuse of Court process. He submitted that it is in anticipation of an unfavorable ruling in the plaintiff’s application of 22nd May, 2014 that he filed the motion, subject of this ruling. Even though the motion of 22nd May, 2014 is between the same parties as in the instant application, the prayers in the two motions, though not the same, have the same purport. I am not unmindful of the fact that the categories of what constitute an abuse of Court process is not closed but I want to point out that the Court of Appeal, per Tabai, JCA, in the case of Kolawole vs. A. G. Oyo State (supra) was only quoting the opinion of a learned Author, Afe Babalola, SAN in his Book “Injunctions and Enforcement of Orders.” Ordinarily, a party who files a wrong application may, upon realizing his error, file another application with the aim of withdrawing the earlier application before arguing the latter one. This is a common practice everyday in our Courts. In my view however, where a party allows his antagonist to join issues with him on his application before re-filing a fresh one with a view to avoiding an unfavorable ruling, the second application will constitute an abuse of Court process. Just like the Court of Appeal in Kolawole’s case (supra), I am also persuaded by the opinion expressed by the learned Author, Afe Babalola, SAN at pages 77 – 81 of his Book “ Injunctions and Enforcement of Orders.” I hold that this application constitute an abuse of Court process. It is a process meant to Irritate and annoy the respondents.
I only need to add that I am in agreement with Miss Adeoye of learned counsel for the plaintiff/applicant that the case of The Young Shall Grow Motors vs. Okonkwo cited by Mr. Monye is not applicable in the instant application.
In the circumstances of my finding and holding supra, I hereby dismiss this application for being an abuse of Court process and for want of sufficient materials/reasons explaining why the application was not filed timeously.
Mr. Monye – I am motivated not to ask for cost.
Court – No cost is awarded.
Justice M. I. Sirajo
Judge
16/02/2016
Appearances:-
Miss C. A. Adeoye with P. Z. Enoch holding the brief of A. A. Damun Esq for the applicant/plaintiff.
Raph A. Monye with Esther Olaolu, A. A. Otuagba (Mrs.) Alima Eigege, Martin Oko, Peace Kum, Henry Ugwu, Cynthia Chukwuka and Veronica Aliyu for the 1st Respondent.
N. J. Miner Senior State Counsel with D. D. Dashak Senior State Counsel, Ministry of Justice, Plateau State for the 2nd and 3rd defendants/respondents.
