Chief Francis Owupele & Ors. V. Chief Edward Jim Ogbolo & Ors. (2002)
LawGlobal-Hub Lead Judgment Report
ABOYI JOHN IKONGBEH, J.C.A.
The appellants before us were the applicants before the Bayelsa State High Court. They had applied ex parte to the Court for-
“1. For an order to apply for leave for an order of certiorari out of time.
- To deem as properly filed the application for leave herein sought.
- For an order of certiorari to remove into this Honourable Court for the purpose of being quashed the decision, judgment and/or order(s) of the Chairman and Members of the Customary Court, Oloibiri given on Wednesday the 30th day of November, 1998 in Suit. No. CCO/8/99 (Chief Daniel Olotu & 10 Ors., Chief Edward Jim Ogbolo & 5 Ors. which relief is not put in paragraph 2(1) of the statement accompanying application for leave for an order of certiorari.”
They based their application on the grounds.
“1. The existence of a prohibitive order on the Customary Court from further trying, hearing, proceeding with or in any way determining or causing to be determined in suit No. CAO/8/98 which was then pending before the said Court at the application of the present applicants in Suit No. YHC/M.8/98.
- That the present applicants who were defendants in the Customary Court Oloibiri were not served hearing notices of the resumption of hearing of the said case in the Customary Court, Oloibiri and therefore were robbed of the opportunity of representing themselves in the said Court at the trial.”
They were the defendants before the Customary Court, Olobiri. The respondents had sued them in that Court in March, 1998 claiming land. Soon after the institution of the action in that Court the defendants therein, i.e., the respondent herein, moved the High Court in Oporoma ex parte on 22/04/98 and obtained an order staying proceedings in the Customary Court pending the hearing of the motion on notice for that purpose. That motion was eventually struck out on 07/10/98 for want of diligent prosecution. Thereafter the case in the Customary Court proceeded and judgment was delivered against the appellants/appellants. This was on 20/11/98. The appellants filed application the subject of his appeal on 01/12/98, over one year after the judgment of the Customary Court was given.
In a short on-the-bench ruling the learned trial Chief Judge, K.D. Ungbuku, C.J. refused the application. He disposed of the grounds on which the application was based thus at p.22 of the record:
“Court:
The plaintiffs/respondents filed their action Suit No. CCO/8/98 against the applicants in the Customary Court in March, 1998. It is a land matter for which the Customary Court has jurisdiction.
The applicants rushed to the High Court and filed a motion YHC/M.8/98 and had an interim injunction, restraining the Customary Court from proceeding with the said case until the determination of the substantive motion. That interim order was made or 22/4/98.
The substantive motion of the applicants was struck out by the High Court on 7/10/98 for non-active prosecution by the applicants.
In law the interim order of the Court was automatically discouraged on the striking out of the substantive motion. The Customary Court from thence has jurisdiction to continue with the case. The judgment complained of was delivered on 30/11/98. The applicants did nothing until after one year that they filed the instant proceedings on 1/12/99. Both parties are from same village Oloibiri and he Customary Court itself is at Oloibiri.
It is not enough to say only that they, the applicants became aware of the said judgment on 20/11/98. There is no enough explanation to convince this Court for the inordinate delay. It is too late for the applicants to wake up from their slumber to awake the process of Court. Justice is a two way sword. It is for the applicants as well as the respondents. Equity does not aid the indolent.”
Aggrieved, the appellants have come before us. O.C.J. Okocha, S.A.N., formulated only one issue for determination in the appellants’ brief. The issue is:
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