Dismissal for want of diligence

A suit dismissed for want of diligence may never be relisted. Beware!

Banna v. Telepower (Nig.) Ltd. [2006] 15 NWLR (Pt. 1001) 198 at 220, paras. F-G, per Tobi, JSC (of blessed memory):

“A plaintiff has not only a right to file an action in court to redress a wrong done him by a defendant; he also has a duty to prosecute the matter to conclusion within the rules of court. Of course, the duty is not mandatory, compulsory or sacrosanct, as he can decide not to prosecute. A plaintiff who files an action in court and exhibits some indolence and nonchalance has himself to blame. After all, he brought the defendant to court and if he decides not to pursue the case diligently, the court has no option than to either strike out or dismiss the matter, depending on the enabling rules of court.”

Mukhtar, JSC (retired) at p. 225, para. G:

“…Indeed, justice is supposed to be for both sides, and not only the convenience of one side. I am in full agreement with the above reasoning of the learned trial Judge. The learned trial Judge dismissed the action under the correct and proper rule, and was right in refusing to relist it…”

Blogger’s Note:

In the above cited case, the Respondent (as Plaintiff) before the trial Judge filed an action in 1993 against the Appellant. The matter was severally adjourned for hearing but on each occasion, the Respondent and its Counsel were absent in Court. On the fifth occasion in 1995, the trial Judge dismissed the suit for want of diligent prosecution. The Respondent thereafter filed an application seeking to relist the suit. The learned trial Judge dismissed the application on the ground that the excuse offered for the absence of the Respondent and its Counsel was unsatisfactory. The Respondent appealed to the Court of Appeal which allowed the appeal, holding that although the conduct of the Respondent was condemnable, the trial Judge ought to have merely struck out the suit instead of dismissing it; and also, the trial Court ought to have relisted the suit. The Appellant’s appeal to the Supreme Court was unanimously allowed. The apex Court disagreed with the Court of Appeal who, according to the Court, preferred to tow the line of sympathy. The Supreme Court held that, having failed to find the reasoning and exercise of discretion by the learned trial Judge as unjustified, the Court of Appeal ought not to overrule the trial Judge.  The Court re-emphasised the need to treat with respect the exercise of discretion by the trial court. According to Tobi, JSC (of blessed memory), “as long as the discretionary power is exercised judicially and judiciously, an appellate court cannot interfere by show of appellate power.” See page 221, paras. F-G of the report.

The Supreme Court further took time to criticize the use of tricks in litigation. According to Mukhtar, JSC (retired), “just as much as there is a saying that there must be an end to litigation, I will add here that there must also be an end to playing pranks, wasting the courts’ time.” See pp 224-225, paras. H-A. “Tricks have no place in the judicial process and so why play them?” asked Tobi, JSC at page 218, para. D.

Interestingly, the Federal High Court, Lagos Division, per Buba J., in a recent Ruling delivered on 15th of March, 2017 in Suit No. FHC/L/CS/314/13 – Arkville Chemical Co. Ltd. v. Deputy Sheriff, Federal High Court & Ors (Unreported) dismissed an application to relist a suit which suit he had earlier dismissed on ground of want of diligence, relying heavily on the case of Banna v. Telepower (supra). Learned Senior Counsel for the Plaintiff tried to persuade the learned trial Judge but the Judge was resolute and unmoved. He held that the Plaintiff was playing games but that the game was up.

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