Egevafo Ekpeto & Ors. V. Ikono Wanogho & Ors (2004)

LAWGLOBAL HUB Lead Judgment Report

KALGO, J.S.C.

This appeal arose out of a protracted land case between the parties in the Delta State High Court. The appellants were the plaintiffs at the trial. At the end of the trial, the learned trial Judge dismissed the case of the appellants in its entirety on the 7th of June, 1994. They appealed to the Court of Appeal, Benin City, vide a notice of appeal which was filed on 4th of July, 1994. By a letter dated 18th of March, 1999, signed by A.O. Olisa, Senior Registrar of the Delta State High Court, the certified true record of proceedings and the exhibits in the case were forwarded to the Court of Appeal, Benin City and both the appellants and the respondents received copies of their record of appeal through their respective counsel. This fact was not in dispute between the parties.

On the 30th of June, 1999, the respondents filed a motion in the Court of Appeal praying the court to dismiss the appellants’ appeal “for want of diligent prosecution in that the appellants have been in default of filing their appellants’ brief within the time stipulated by the rules of this Honourable Court”. The motion was supported by an affidavit of 9 paragraphs. The appellants though served with this motion; did not react to it but instead filed a motion of 17th August, 1999, to amend their notice of appeal by filing additional grounds of appeal and for extension of time to file appellants’ brief. The two motions were fixed for hearing on the 25th of November, 1999, and on that day, the respondents’ motion for filing additional grounds of appeal and enlargement of time to file brief was granted as prayed. The Court of Appeal also ordered that –

“The respondents’ motion dated 29/6/99 is adjourned to 10/2/2000 for hearing. The respondents are awarded N750 costs. The applicants are granted 30 days from today within which they are to file their brief.”

In this order, the “applicants” are the appellants here and the “respondents” are the respondents in this appeal.

On the 10th of February, 2000, when the respondents’ motion dated 29th June, 1999 was called for hearing, the appellants and their counsel were absent. The learned counsel for the respondents moved his motion in terms of the motion papers and it was granted as prayed. The Court of Appeal made the following order:-

“Order as prayed. This appeal is dismissed under the provisions of Order 6 rule 10 of the rules of this court as the appellants refused or neglected to file the appellant’s brief within the time stipulated by the rules of this court N500.00 costs awarded the applicants.”

On the same day i.e. the 10th of February, 2000, at about 10.00am, the appellants’ counsel filed a motion in the Court of Appeal for “extension of time to file the appellant’s brief in this appeal”. The motion was supported by a 5-paragraph affidavit. This motion was not listed for healing or even heard by the Court of Appeal. And on the 24th of February, 2000, the appellants’ counsel filed another motion supported by 27-paragraphs affidavit praying the Court for:-

“1. Leave of court to argue this motion before the expiration of 1 month from 10/2/2000.

2. An order setting aside the judgment/order of this Honourable Court delivered/made on 10/2/2000 in this suit.
3. An order listing the motion dated 9/2/2000 and filed on 10/2/2000 in this suit for hearing and determination.”

This motion was heard on the 7th March, 2000 and on the application of the appellants’ counsels himself, it was withdrawn and struck out with no order as to costs.

On the 10th March, 2000, the appellants’ counsel filed another motion supported by a 21-paragraph affidavit praying the court for:

“An order restoring/relisting this appeal No. CA/B/109/99 struck out/dismissed on 1012/2000 for lack of diligent prosecution. Appeal dismissed under Order 6 rule 10. Court is fiunctus officio UBA v. Ajileye (1999) 13 NWLR (Pt. 633) 116.”

The grounds upon which this application was brought are:-

“1. The order was made in the absence of the appellants/and their counsel.