On Whom Lies the Discretion to Relist a Struck-Out Matter?

CASE TITLE: ABDURAHAMAN v. KEYSTONE BANK LTD & ANOR (2025) LPELR-81593(CA)

JUDGMENT DATE: 10TH JULY, 2025

PRACTICE AREA: PRACTICE AND PROCEDURE

LEAD JUDGMENT: UWABUNKEONYE ONWOSI, J.C.A.

SUMMARY OF JUDGMENT:

INTRODUCTION:

This is a ruling on an application for relisting appeal.

FACTS:

This ruling is premised on the application of the Applicant filed on the 8th March, 2024, praying the Court as per the reliefs on the face of the Motion paper thus:

1. An order of this Honourable Court extending the time within which the Applicant may apply to relist/restore this appeal.

2. Order of this Honourable Court re-listing/restoring this appeal which was struck out by order of this Court on 4th November 2013.

3. An order of this Honourable Court substituting the first Respondent Habib Nigerian Bank Limited with Keystone Bank Limited as successors and acquirer of all the assets and liabilities of Habib Nigerian Bank Limited”

The grounds upon which the application was brought are as follows:

1. The Applicant commenced this appeal vide a Notice of Appeal dated 23 May 2005 challenging the decision of the Lagos State High Court made on 17 May 2005 coram Hon. Justice O.O. Oke.

2. Counsel representing the Appellant at the time secured a political appointment away from the jurisdiction of the Court and abandoned the prosecution of the appeal without notice to the Appellant. Consequently, the appeal was struck out for want of diligent prosecution on 4 November 2013 without the Applicant knowing.

3. The Appellant has now instructed another counsel to diligently prosecute this appeal on her behalf.

4. The Court of Appeal Rules 2021 empowers the Court to extend time within which the Appellant may apply to relist the appeal and relist the appeal.

5. The assets and liabilities of the 1st Respondent have since been acquired by Keystone bank Limited and the 1st Respondent on record has since ceased to be an existing legal entity that can sue or be sued in law.

6. That the 1st Respondent counsel has failed to bring this change in the status of his client to the knowledge of this Honourable Court neither did he inform the Appellant’s counsel of this development.

7. That it is necessary to bring in the proper parties before this Honourable Court so that the legal dispute among the disputing parties can be effectively determined.

The application was supported by 11 paragraphs affidavit and annexures attached as exhibits and accompanying written address.

ISSUES FOR DETERMINATION:

The Court raised the competence of the application on grounds that the 1st Respondent on record have since ceased to be an existing legal entity.

The Court then determined the merits of the application based on the following issue:

“Whether this application is meritorious to enable the Court exercise its discretion in favour of the Applicant.”

DECISION/HELD:

In conclusion, the Court struck out the application for lack of jurisdiction. On the merits, the application was dismissed.

RATIOS:

• ACTION- DUTY OF PARTY(IES): Duty of a party to diligently prosecute his case; effect of failure
• ACTION- CLAIM(S)/RELIEF(S): Principles of law guiding the Court in the award of reliefs
• COURT- JURISDICTION: Conditions for the assumption of jurisdiction by the court and the effect of a proceeding conducted without jurisdiction
• EQUITY- PRINCIPLES OF EQUITY: Whether equity aids the vigilant and not the indolent
• LEGAL PRACTITIONER- DUTY OF COUNSEL: Duty of Counsel in the preparation of Court processes and Court documents
• PRACTICE AND PROCEDURE- APPLICATION FOR RELISTING: Whether the relisting of a struck out matter is at the discretion of the Court; what an applicant must show

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