Chief James Ntukidem & Ors. V. Chief Asuquo Oko & Ors. (1986)

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KAZEEM, J.S.C. 

On the 13th of October, 1986, I allowed this appeal, set aside the decision of the Court of Appeal, Enugu and remitted the appeal to that Court for hearing on the merit. I then reserved my reasons for doing so, which is now given today.

The appeal itself is not against the decision of the said Court of Appeal Enugu on the main issue decided by the High Court on 21st September, 1977. That has not yet been heard on the merit. Rather, this is an interlocutory appeal against the decision of the Court of Appeal Enugu on its refusal to grant an adjournment to hear the main appeal which was then dismissed. The whole proceedings of the Court on 19th January, 1984 leading to that decision read as follows:-

“Appellant in Court and says that his Counsel are Fani-Kayode & Sowemimo who promised to he in court today.

AND Ezeogu for the Respondents.

COURT: Appellant is called upon to argue his appeals as it will he unfair to adjourn the hearing of this appeal again. Appellant has been given ample opportunity to bring his Counsel to Court.

Appellant says he cannot argue the appeal.

COURT: Appeal is dismissed with N100.00 costs to the Respondent.

Signed J, A, Phil Ebosie

Presiding Justice

19/1/84”

On the appellant’s Counsel being informed of the Court’s decision and thinking that the appeal was struck out. he immediately filed an application a week later on 26th January 1984 for the appeal to be relisted. In paragraphs 4 to 7 of the Affidavit in support of that application the reasons responsible for counsel’s absence at the hearing of the appeal were given thus: That after obtaining boarding pass and he was about to fly to Enugu on 18th January. 1984 (a day prior to the hearing of the appeal), all flights to Enugu were cancelled by the Nigeria Airways for bad weather: -that the cancellation was not announced until about 7 p.m when it was already too late to attempt to go by road; that subsequently early the following morning all efforts to contact the Registrar of the Appeal Court at Enugu by telephone to explain the circumstances, failed; and that later that day a telegram was dispatched to the Court at Enugu to explain the situation necessitating counsel’s non-appearance. It was at the hearing of the application for relisting that appellant’s counsel became aware that the appeal was dismissed and not struck out. As a result, the application itself was withdrawn by counsel and it was dismissed.

Consequently, this appeal was filed against the dismissal of the appeal on the following two grounds:-

“(1)