Zhao Jianan & Anor V. Ma’aji Mairiga (2016)

LawGlobal-Hub Lead Judgment Report

MOHAMMED MUSTAPHA, J.C.A. 

This application was brought pursuant to Orders 18 Rules 2 & 10(1) and 8 Rule 11(a) of the Court of Appeal Rules 2011 and the inherent jurisdiction of this Court.

It is for an order of this Court dismissing this appeal for lack of diligent prosecution and such orders as the Court may deem fit to make in the circumstances.
The grounds for the application are:
1. The Appellants are not diligent in the prosecution of the appeal as they have failed/neglected to file their Briefs of Argument within the time provided for under Order 18 Rule of the Court of Appeal Rules, 2011.
2. The Appellants are not diligent in the prosecution of this appeal as they have not deposited any sum as required by Order 8 Rule 11 for the due prosecution of the appeal.

The application is supported by an 11 paragraphs affidavit deposed to by Abdulkareem Taiye Ibrahim with a letter that accompanied the compiled records of appeal dated 31st December, 2015 attached as Exhibit A, along with written submissions of learned counsel for the applicant.
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In opposition the respondent filed a 19 paragraphs

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counter affidavit with a letter from P. Atayi Esq., of counsel to the respondent dated 27th June 2016 attached as exhibit.

The said letter complains of failure of the trial Court to make the record available to the respondent/appellant.

I have carefully gone through the application along with the grounds, and the affidavit in support of the application as well as the counter affidavit, including the respective exhibits accompanying the affidavit and the counter affidavit, and submissions of learned counsel.

It is clear from the record that this appeal was filed on the 2nd of November, 2015, vide a notice and grounds of appeal and dated 16th of October, 2015 on the following grounds shorn of their particulars:

GROUND ONE:
The learned trial judge erred in law by denying the Defendants fair hearing and thereby occasioned a miscarriage of justice.

GROUND TWO:
The learned trial judge misdirected himself by descending into the arena, made a case for the Claimant and on the strength of that case, made a generous award of exemplary or punitive damages and thereby occasioned a miscarriage of justice.
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