H.R.H. KINGSLEY OMOKARO OMOROSE v. H.R.H. M. U. OGBONWAN & ANOR (2019)

H.R.H. KINGSLEY OMOKARO OMOROSE v. H.R.H. M. U. OGBONWAN & ANOR

(2019)LCN/13047(CA)

In The Court of Appeal of Nigeria

On Monday, the 8th day of April, 2019

CA/B/25/2019(R)

RATIO

PARTIES CANNOT HOLD OTHER PARTIES OR THE COURT TO RANSOME: FAILURE TO APPEAR IN COURT WILL BE AT THE PERIL OF A PARTY

It is trite that no party can hold the adverse party or the Court to ransom. If a party is aware that he ought to be present to prosecute or defend a Suit on a certain day and he fails to do so, his failure or tardiness is at his own peril. See the case of NWANKUDU VS. IBETO (2011) NWLR (PT. 26) P. 209.PER CHIOMA EGONDU NWOSU-IHEME, J.C.A.

JUSTICES

CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria

SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria

MOORE ASEIMO ABRAHAM ADUMEIN Justice of The Court of Appeal of Nigeria

Between

H.R.H. KINGSLEY OMOKARO OMOROSE APPELLANT/APPLICANT
(The Enogie of Oghoghobi) Appellant(s)

AND

1. H.R.H. M.U. OGBONWAN
(The Onogie of Ogheghe Osemwende)
2. ARC. PATRICK OBASUYI Respondent(s)

CHIOMA EGONDU NWOSU-IHEME, J.C.A.(Delivering the Lead Ruling): The Applicant in this motion is praying for the following orders:
1. ?An order granting him an extension of time within which the Appellant/Applicant can seek leave to appeal against the Ruling of Hon. Justice O.S. Uwuigbe of the Edo State High Court delivered on the 21st day of December, 2018, the time provided by the Rules of Court having elapsed which Ruling is attached and marked as Exhibit ?A?.
2. An order seeking leave to appeal against the Ruling of Hon. Justice O.S. Uwuigbe of the Edo State High Court delivered on the 21st of December, 2018.
3. An order extending the time within which the Appellant/Applicant can appeal against the Ruling of Hon. Justice O.S. Uwuigbe of the Edo State High Court delivered on the 21st day of December, 2018.?

In the affidavit in support of the Application, deposed to on the 18th of January, 2019, the Applicant stated that his absence from the trial Court was due to his arrest, detention and subsequent remand in prison custody over an allegation he said he knew nothing about. That he was

eventually granted bail on the 23rd day of November, 2017.

He later discovered that his Claim had been struck out and that his former counsel Chief C.O. Ihensekhien never filed a defence to the Counter-Claim of the Defendants.

The trial Court however refused to relist the Suit that was struck out but allowed the Applicant to defend the Counter Claim of the Respondents. The Ruling of the trial Court refusing to relist the suit that was struck out is Exhibit ?A?.

In opposing the application, learned counsel for the Respondents relied on the Counter affidavit deposed to on the 21st of February, 2019. He argued that on the 22nd on May, 2017, Claimant?s Counsel (Applicant herein) asked for an adjournment on the ground that he was yet to file his Litigation Survey Plan an excuse previously used in obtaining an adjournment on the 22nd of September, 2016 and same was reluctantly granted with N10,000.00 costs awarded to the Applicant.

Counsel further stated that on the 8th of June, 2017, Applicant?s Counsel again sent his junior to Court to request for another adjournment which was granted and case was

slated again for hearing to the 5th of July, 2017.

That on the 5th of July, 2017, counsel to the Applicant again asked for an adjournment on the grounds that the Applicant, who, according to counsel had never appeared in Court was sick. An adjournment was granted yet again with N5,000.00 costs awarded against the Applicant.

Counsel also stated that on the 10th of October, 2017, the Applicant again failed to appear in Court to open his case and Applicants counsel, Chief C.O. Ihensekhien appeared in Court and applied for another adjournment which was refused and his Claim struck out.

Counsel stated that the 1st Respondent has since the 28th of March, 2018 opened the case on his Counter-Claim and the case was adjourned for Cross Examination. He stated that granting this application will over reach the Respondents considering the fact that the last witness of the 1st Respondent has testified awaiting Cross Examination.

I have listened to both counsel and have gone through the affidavit in support of the Application, the Affidavit in opposition and the Ruling of the trial Court refusing the application to relist the Suit that was struck out.

It is clear from Exhibit ?A?, the Ruling of the learned trial Judge that the Applicant was given ample opportunity to present his case, but he chose to make a mockery of the entire process particularly after the trial Court granted the Applicant an order of interim injunction.
The learned trial Judge in his Ruling refusing the application to relist the Suit painstakingly chronicled the series of adjournments granted the Applicant and his former counsel which opportunity they deliberately failed to utilize.
It should be noted that the Ruling of the trial Court striking out the Suit of the Applicant was delivered on the 10/10/17, while the application to relist the suit was filed on the 30/10/18, exactly one year after.
The Applicant in his affidavit in support of his motion stated that he was released on bail on the 23rd of November, 2017. One then wonders why it took the Applicant another one year to file his application to have the Suit relisted.
?The Applicant also did not show any reason whatsoever why he did not prosecute his case diligently at the trial Court before his arrest, more so, there was no cogent or compelling reason why

the Applicant did not file the application to relist the Suit at the trial Court until one year after.
It is trite that no party can hold the adverse party or the Court to ransom. If a party is aware that he ought to be present to prosecute or defend a Suit on a certain day and he fails to do so, his failure or tardiness is at his own peril. See the case of NWANKUDU VS. IBETO (2011) NWLR (PT. 26) P. 209.
It is obvious that from the history of this case as stated by both counsel for the Respondents in the Counter affidavit in opposition to the motion filed on the 18/1/19, the aim of this interlocutory Appeal is to further hold the trial Court and the Respondents to ransom. It is my view that granting of this application will cause grave injustice to the Respondents and make a mockery of the proceedings at the trial Court in respect of the Counter-Claim which is an independent action, quite distinct and separate from the original Suit.
In refusing the application to relist the Suit that was struck out which application to relist was brought one year after it was struck out, the learned trial Judge had this to say:

?This Suit was instituted on the 11/11/15. An order for interim injunction against the 1st Defendant was granted on the 23/11/15. This case was adjourned on several occasions at the instance of the Claimant.
On the 22/5/17, the Claimant?s counsel requested for an adjournment on the ground that he was yet to file his litigation Survey Plan, an excuse that was used in obtaining an adjournment on the 22/9/16. On the 8/6/17, the case was adjourned to the 5/7/17. On the said date, O. Onokpachere Esq. appeared for the Claimant and informed Court that the Claimant was sick and that he will not be able to proceed with the case. His application for an adjournment was granted but the Court awarded the cost of N5,000.00 against the Claimant as counsel failed to field other witnesses.
The request for an adjournment by counsel for the Claimant on the 10/10/17 was however refused and the Claim was struck out ?
?The above is a clear and succinct findings and catalogue of events leading to the refusal of the application to relist the Suit. This Court has no reason or justification to distort or reverse same.

Apart from the aforementioned catalogue of events, the reasons given in the affidavit of the Applicant in support of this Application do not impress.
In the final result, I am of the view that this application ought to fail and has failed accordingly. The Ruling of O.S. Uwuigbe, J of the Benin Division of the Edo State High Court in Suit No. B/271/2015, delivered on the 21st day of December, 2018 is hereby affirmed.
I make no order as to costs.

SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I had the privilege of reading before now a copy of the lead Ruling just delivered by my learned brother Chioma Egondu Nwosu-Iheme, (PhD), JCA.

I indeed agree with the reasoning and conclusion reached therein to the effect that this application for leave to appeal lacks merit.
I also dismiss the said application and I abide by the consequential orders in the lead Ruling inclusive of the order as to cost.

MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I read before now the ruling just rendered by my learned brother, CHIOMA EGONDU NWOSU-IHEME, JCA.

I agree that the application for leave and extension of time to

appeal lacks merit. For the well-considered reasons in the leading ruling, which I adopt as mine, I hereby dismiss the application.
I abide by all the orders made by my learned brother.