Alhaji Idrisu Ichado V. Musa Apeh (1992)

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OKEZIE, J.C.A.

This appeal comes before the court in circumstances which call for consideration in this judgment.

The appellant who was plaintiff in the Upper Area Court Benue State filed an action against the defendant now respondent in this court and claimed as follows:

1. A declaration of title to a piece of land known and called ‘Ofabo Ogebe Ankpa’ situate at Angwa Ogebe Ankpa Benue State.”

At the hearing the contention was that the appellant sued the defendants in several courts and Exhibits A – 1 had clearly shown that the parties, issues and the subject-matter of the present suit were the same as those in the earlier cases in Exhibits A-1.

The trial Judge accepting these contentions held on the 8th January, 1988 that the appellant’s claim was caught by the plea of res Judicata and dismissed it.

Being dissatisfied the appellant appealed to the High Court sitting in its appellate jurisdiction which upheld the trial court’s judgment and dismissed the appeal on the 23rd, November, 1988. On the 23rd, December 1988, Notice and three Grounds of appeal were filed. The records of appeal were received in the Court of Appeal on the 4th, April 1989. The appe1lant was served with Notice of Appeal and proceedings on the 24th, April, 1989. On the 16th January, 1990, the appellant’s counsel was duly served with Hearing Notice of the appeal listing the case, the date fixed being the 19th, March 1990. The appellant failed to appear at the hearing. No reason was adduced or given for his absence. Consequently the Court of Appeal dismissed the appeal for want of prosecution as the appellant was served with the Hearing Notice.

The appellant decided to apply for leave to have the appeal relisted for hearing and to enlarge the time to file his brief. On the 17th April 1990 he filed a notice of motion praying the court for an order:

(i) To relist Appeal No. CA/J/70/89

(ii) To enlarge the time for the applicant to file his brief of argument in Appeal No. CA/J/70/89

(iii) To deem the proposed brief of argument herein annexed properly and duly filed and

(vi) Such further order or other orders as this Honourable Court may deem fit to make.

The application is supported by a 24-paragraph affidavit sworn by the appellant and a further affidavit evidence of 9 paragraphs sworn by one Friday Daniel Itodo, a clerk to the appellant’s counsel.

The respondents did not file any counter-affidavit.

The appeal No. CA/70/89 was listed and filed for hearing before the Court of Appeal on the 19th, March 1990; that the appellant defaulted in appearance as required by Order 3 Rule 25(i) of the Court of Appeal Rules 1984 as amended, and that in the absence of the appellant and his counsel, the appeal was dismissed for want of prosecution.