Chief Iro Ogbu & Ors V. Chief Ogburu Urum & Anor (1981)

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O. OBASEKI, J.S.C. 

My Lords, The applicants’ counsel has moved this Court in terms of his motion on notice for an order.

“(1)That this appeal be re-entered; and

(2) For the enlargement of time within which to file and serve the appellants’ brief as required by Order IX Rule 3 (1)”.

The application is supported by affidavit evidence of 21 paragraphs and a further affidavit evidence of 4 paragraphs sworn by Otuwe Ugwu one of the applicants.

There is a counter-affidavit sworn by one Agwu Kalu Obos a member of the people of Amaeke, Abriba represented by the respondents.

It is common ground among the parties and their counsel that the appeal No. S.C. 18/1980 was listed for hearing before this Court on 24th day of November, 1980; that the appellants defaulted in filing their briefs as required by Order 9 rule 3 of the Supreme Court Rules 1977 within the extended time; and that on the application of respondents’ counsel, Chief Bayo Kehinde, SAN., in court at the hearing, the appeal was dismissed for want of prosecution.

It is clear from the facts deposed in the affidavit that the default in filing the brief within the time prescribed by the Rules was as a result of Mr Chike Ofodile, SAN. appellants’ counsel’s ill-health. Mr. Lardner, SAN., holding his brief, obtained an extension of time to file appellants’ Brief. Mr. Chike Ofodile, SAN., has also accepted responsibility for failure to instruct counsel to file the appellants’ Brief of argument within the extended time. When it became apparent that he would be unable on the ground of ill health to carry out the instructions of his client, what did the appellants do He was away in London for treatment (i.e. 4000 miles away) at the material time. It was after Mr Lardner successfully argued the motion for extension of time to file appellants’ brief that Mr Chike Ofodile returned from London but too ill to undertake the preparation and filing of the brief within the extended time. The appellants must be presumed to know that he would be unable to appear in court when the appeal came up for hearing.

Counsel for the appellants/applicants has invited us to exercise our powers either under Order 7 Rule 23 (2) or Order 7 rule 19 (1) and (4) and as a last resort under Order 10 Supreme Court Rules 1977. The provisions of these rules read as follows:

Order 7 rule 23 (2):

“When an appeal has been dismissed owing to non-appearance of the appellant, the court may, if it thinks fit, and on such terms as to costs or otherwise as it may deem just, direct the appeal to be refor hearing” .

Order 7 rule 19 (1):

“If the appellant has complied with none of the requirements of rules 9 and 10 of this Order, the registrar of the court below shall certify such fact to the court, which shall thereupon order that the appeal to be dismissed either with or without costs and shall cause the appellant and the respondent to be notified of the terms of its order. ”

Rule 19 (4)