Ukpe Ibodo & Ors. V. Iguasi Enarofia & Ors. (1980)

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ANIAGOLU, J.S.C.

The application which was brought, under Order 1 Rule 5 of the Supreme Court Rules, 1977, by the plaintiffs/applicants, Ukpe Ibodo and Others, and which was for extension of time within which to appeal, and for extension of time within which to apply for leave to appeal, to the Supreme Court, against the judgment of the Federal Court of Appeal, was dismissed by this court on 28th April, 1980, and the reasons for the dismissal were reserved for delivery to this date. We now give our said reasons for the said dismissal.

Since the delivery of the judgment of the Federal Court of Appeal in this land case on 1st February, 1979, the attempt of the plaintiffs/applicants to appeal to the Supreme Court has had, from what is to be gathered from the affidavit of Ukpe Ibodo sworn to on 2nd November 1979, a tortuous passage. It would appear that the first motion for leave to appeal was heard by the Federal Court of Appeal in Benin on 5th April 1979. But applicants’ counsel (T. A. Makanju, Esq., from Chief Williams’ Chambers), by reason of the then prevailing Nigerian Air-ways Pilots’ strike, was unable to arrive Benin in time to argue the motion which was heard in his absence and refused for want of merit. That the court refused the application as unmeritorious is clear from the enrolled order dated 5th April, 1979, which reads:

“THURSDAY THE 5TH DAY OF APRIL, 1979 ENROLMENT OF ORDER

UPON READING the application herein and the affidavit of Ukpe Ibodo of Ofori village in Ukpe clan sworn to and filed at the Federal Court of Appeal Registry, Benin City on the 16th day of February, 1979 and the Defendants/Applicants’ counsel being absent and J.Y. Odebala Esquire holding Chief Ororoho’s brief of counsel for the plaintiffs/Respondents/Respondents, it was ordered:-

“THE GROUND OF APPEAL DOES NOT SPECIFY THE JUDGMENT OF THE COURT THE APPELLANT IS ATTACKING. THE DEFECT IS FUNDAMENTAL. LEAVE TO APPEAL IS NOT GRANTED AS A MATTER OF COURSE. THE PROPOSED APPELLANT MUST AT LEAST HAVE AN ARGUABLE GROUND OF APPEAL. THE PROPOSED GROUND OF APPEAL PATENTLY DOES NOT REVEAL THIS. IN THE CIRCUMSTANCES, LEAVE TO APPEAL MUST BE REFUSED, AND IS HEREBY REFUSED.

COSTS ASSESSED AT N25.00 IS AWARDED TO THE RESPONDENTS”.

It would further appear that an application numbered SC.21/1979 for extension of time within which to appeal to the Supreme Court from the said decision of the Federal Court of Appeal was filed but withdrawn on 18th June 1979 and another application numbered as SC. 53/1979 seeking the same order was again filed and again withdrawn on 8th October, 1979. After this latter withdrawal, applicants’ counsel, Chief F.R.A. Williams, SAN, apparently, was no longer prepared to handle the brief and returned the same to the applicants. Thereafter, they briefed G.O.K. Ajayi, Esq., SAN, who handled this application before us. These facts were, as I have said, deposed to, in the affidavit of Ukpe Ibodo hereinbefore mentioned, particularly in paragraphs 3 to 13, set out hereunder as follows:

“(3) That we are aggrieved by the decision of the Federal Court of Appeal Benin City delivered in this Suit on 1st day of February 1979 and instructed our Solicitor Chief F.R.A. Williams to appeal against the judgment.

(4) That Motion for leave to appeal was accordingly filed and taken at Benin on 5th April, 1979.

(5) That our Solicitor, T.A. Makanju Esq., from Chief Williams’ Chamber was unable to arrive at Court on time on 5th day of April, 1979 when the Motion was taken, and leave was refused us to appeal.

(6) That our Lawyer T.A. Makanju Esq., came into court when the Ruling was being read and he informed me that because of the Industrial dispute in the Nigerian Airways by the pilots his flight for 4/2/79 was cancelled after waiting for the whole day at the Airport. At 5 p.m. when the flight was eventually cancelled he was promised to report the next day at 6.30 a.m. and I verily believe him.

(7) That the Solicitor for the Respondent did not oppose our Motion.

(8) That our Lawyer told me that we have good grounds of appeal and I verily believe him.