HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the leading Judgment): This is an appeal against the ruling of Honourable Justice R. P. I Bozimo of the Delta State High Court of Justice sitting at Asaba delivered on 5th March 2009 wherein the Suit No.A/81/2007 hitherto struck out was relisted. The facts giving rise to this appeal are as follows:
The case of the Plaintiff now Respondent at the lower court was struck out by the learned trial judge by an order dated 7th November 2008 at the request of Defendants now Appellants' Counsel for want of diligent prosecution. On the day the order was made, both parties were absent and the Plaintiff was unrepresented by counsel. Subsequently on 16th January 2009, the Plaintiffs filed a motion brought pursuant to Order 37 Rule 9 of the Delta State High Court (Civil Procedure Rules) 2009, praying the court for an order setting aside the order of 7th November 2008 and an order relisting the suit. The Respondent moved his motion and the orders sought…