Facts:

The appellant’s Boeing 737 Aircraft with serial No. 19549 and registered as 5N-D10 which was parked at the Port Harcourt International Airport was damaged by the 1st respondent’s mobile fuel browser with registration No. PHA/1 thereby rendering it unusable. In January, 1992 in a bid to resolve the issue of liability arising from the damage, all the parties involved met and agreed that the damaged aircraft would be replaced at the cost of $5,550,000 (Five Million, Five Hundred and Fifty Thousand United States Dollars) by February 1992 under certain conditions: evidence of last mechanical check and verification of the documents relating to the cost of the aircraft. It was also agreed that loss of revenue as a result of the damage will cease by the last day of January, 1992 provided a lump sum of N5,489,624.00 (Five Million, Four Hundred and Eighty Nine Thousand, Six Hundred and Twenty Four Naira) was paid to the appellant on or before the 15th day of February, 1992.
The respondents defaulted in payment and the appellant filed a suit against the respondents at the Federal High Court, Port Harcourt Division. The appellant claimed the reliefs stated in the agreement or in the alternative, $5,580,400 (Five Million, Five Hundred and Eighty Thousand, Four Hundred United States Dollars) being the estimated cost for the repair of the aircraft; N26,986,000 (Twenty – Six Million, Nine Hundred and Eighty Six Thousand Naira) for loss of use of aircraft for the period between 2nd January 1992 to 12th May 1992; N10,000,000.00 (Ten Million Naira) being loss of business reputation and any other reliefs the court deems fit to grant. The respondents filed their defence and preliminary applications. The suit was transferred to Lagos Division of the Federal High Court for hearing de novo. After several adjournments, the matter eventually came up for mention in Lagos on the 2nd day of March, 1994 but counsel for the appellant was absent in court as he was said to have died before the date and his chambers locked up by his family.
The matter was adjourned for mention and on the due date, there was no representation for the appellant. The court struck out the suit on the application of counsel for the respondents. In 2004, about ten years later, the appellant filed a motion on notice to relist the suit. The application was challenged by the respondents. On the 27th of July, 2004 the date on which the ruling was to be delivered, the appellant filed another application wherein it sought an order to arrest and suspend any ruling on its earlier application to be delivered by the court. The application was challenged by the respondents. The court heard the parties on the new application and on the 19th day of October, 2004 delivered its ruling wherein it dismissed all the appellant’s applications. The appellant was dissatisfied with the ruling and consequently filed a notice of appeal at the Court of Appeal, Lagos Division. One of the issues for determination is whether the learned trial judge was right to have refused to grant the appellant’s application to relist the suit in light of the provisions of the Federal High Court Civil Procedure Rules.