University Of Lagos & Anor V. M. I. Aigoro (1985)

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BELLO, J.S.C 

We allowed this appeal on 5th November 1984, set aside the decision of the Court of Appeal and remitted the case to the Court of Appeal for hearing on the merits. We reserved our reasons for doing so to be delivered today. I now state my reasons.

In the High Court of Lagos State the respondent as plaintiff claimed jointly and severally against the University and its Vice-Chancellor, now the present appellants, for a declaration that he was the Deputy Chief Engineer of the University, that the purported anticipatory breach of contract between him and the University was null and void and injunction restraining the University from committing breach of contract. In the alternative, he claimed N50, 000 damages for breach of contract.

After hearing the evidence, the trial judge granted the declarations sought and awarded N12, 200 as damages for breach of contract with N1,000 costs against the University. He dismissed the claim against the 2nd Defendant, the Vice-Chancellor, with no order as to costs. Being dissatisfied with the judgment, the University appealed against it while the Vice-Chancellor only appealed against the non-order of costs in his favour to the Court of Appeal. The Court of Appeal dismissed their appeals for want of prosecution without a hearing on the merits.

The record of proceeding in the Court of Appeal on the day the appeal was fixed for hearing thereat is short and may be set out in full:

“Pekun Martins for I.A. Cole for appellants

Kehinde Sofola, SAN, with B.A. Aluko for respondent.

Martins-As of now we are not in a position to file additional grounds for appeal because we have not obtained the record of appeal. I am therefore asking for an adjournment. Moreover Mr. Cole who was in the Lower Court is indisposed.

Sofola – The grounds for asking for an adjournment are untenable. According to pages 205-209, five grounds of appeal have already been formulated. No need therefore arises for filing additional ground to necessitate asking for an adjournment. It appears that the appellants are not interested in the appeal, no steps were taken to get the Record. Submit that the principal actors at the material time in Unilag including the Vice-Chancellor and the Registrar have left the University. Submit that no one is interested in the appeal.

Urges the Court to dismiss the appeal for want of prosecution.”

The Court of Appeal there and then proceeded to enter the following judgment per Kazeem J.C.A., as he was then with which Ademola and Agu JJ.C.A. concurred:

“It seems quite clear from the reasons given for asking for an adjournment that the appellants are not interested in prosecuting this appeal. In the first place as the appellants (sic). It is their responsibility to find out where (sic) the Record of Appeal is ready in the Registry of the Lower Court so that it could be paid for and collected. To come to this Court to say that the record had not been obtained when both the respondent as well as this court had got their copies, shows that no one seems to be interested in having the appeal heard. Mr. Martins says that it is absence of the Record that has prevented him from filing additional ground. But he is quite aware that already five grounds have been filed which seem to cover everything that can usefully be argued in the appeal. I do not think he wants to argue those until he has been able to file additional grounds even though the court offers to lend him a copy of the Record. Moreover, he wants us to believe that Mr. Cole who conducted the case in the Lower Court is indisposed when there is no medical certificate of illness before this court to that effect. It seems to me that Mr. Martins feels that by (sic) merely asking for an adjournment on any ground will be enough to get the matter shifted to another day.

I cannot subscribe to that. As I said earlier it is quite clear that no interest whatsoever has been shown in prosecuting this appeal particularly when the Chief participants at the trial including the former Vice-Chancellor of the University of Lagos-Prof. J.F.A. Ajayi and the Registrar-Mr M. U. Eperokun are no longer with the University. In the circumstances, I am satisfied that the proper order to make in this case is to dismiss the appeal for want of prosecution with N700 costs.”

It was against this judgment that the appellants appealed to this court on the main ground that the learned justices of the Court of Appeal failed to exercise their discretion judicially in refusing the application for adjournment and in dismissing the appeal thereat for want of prosecution.