Chief Patrick I. A. Jideonwo V. Eunice Chukwuma (1999)

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BA’ABA, J.C.A.

The present applicant was the plaintiff in suit No. A/73/88 in the Delta State High Court where Gbemudu, J. delivered judgment against the plaintiff on 28th May, 1992, dismissing all the reliefs claimed by the plaintiff.

Being dissatisfied with the said judgment, the plaintiff filed Notice of Appeal on 15th June, 1992. On 19th of June, 1999, the appeal was dismissed by this Court on the application of the defendant/respondent for want of prosecution.

The applicant has now brought this application, pursuant to Order 3 rule 20(4) of the Rules of this Court, praying for the relisting of this appeal which was struck out by this court on 9/6/99 for want of prosecution.

The application was supported by affidavit evidence of 14 paragraphs sworn by Chief Patrick A. Jideonwo, the applicant and a further affidavit evidence of 5 paragraphs sworn by Micheal Ikechukwu Gnachie, Legal Practitioner representing the applicant.

There is a Counter-Affidavit of 34 paragraphs sworn by Eunice Chukwuma, the respondent.

The salient facts deposed to in the affidavit were as follows:

2. That on the 9th day of June, 1999 this appeal was dismissed on the application of the defendant/respondent for want of prosecution.
3. That the judgment of the High Court was delivered on the 28th day of May, 1992.
4. That I filed a Notice of Appeal against the said judgment on 15/6/92 within time.
5. That the record of appeal in this case has now been compiled and transmitted to the Court of Appeal.
6. That I was not aware that there was any other thing left to be done by me after I filed my Notice of Appeal and fulfilled the conditions of appeal imposed by the Registrar of the High Court.
7. That I am very desirous to prosecute the appeal which I filed.
8. That my absence in Court on 9/6/99 when my appeal was dismissed was not deliberate.
9. That I was informed by my counsel and I verily believe him that he shall endeavour to file a brief on my behalf not later than 30 days from the date of the grant of this application.”

I consider it pertinent to reproduce paragraph 4 of the Further Affidavit which reads:-

4. That the appellant’s brief has now been prepared and will be filed not later than 48 hours from the date of the grant of the appellant’s application for the relistment of his appeal dismissed on 9/6/99 for want of prosecution. A copy of the appellant’s brief which the appellant intends to file should this application be granted is herein attached and marked as Exhibit ‘A’.”

The salient facts deposed in the lengthy Counter-Affidavit, opposing the application were as follows:-

2. The Applicant, herein was the plaintiff in the High Court, Asaba, where, of his own motion, he filed his Writ of Summons on 7th December, 1989 (that is to say: Suit No. N73/88, now said to be on appeal in these proceedings).
3. After a full hearing before Hon. Justice A.N.E. Gbemudu (now retired) His Lordship delivered judgment on Thursday, 28th May, 1992 and concluded as follows:-

‘All the reliefs claimed by the Plaintiff fall to the ground…

I hereby dismiss the suit in its entirely. The Defendant is entitled to the cost of this suit which I assess at N1,000.00.’

5. From this decision the Applicant purported to appeal to the Court of Appeal by Notice of Appeal filed at the Asaba High Court on 15th June, 1992.
6. When by April 1995 the Applicant did not take appropriate steps to have the record of appeal compiled, I applied to the Court of Appeal, Benin City, by notice of motion filed on 7th April, 1995, ‘for an Order directing the plaintiff/appellant/respondent and/or the Assistant Chief Registrar of the High Court Registry, Asaba, to compile and forward to this Court the Record of Appeal in this suit within 14 days of the determination of this motion …. ‘
7. My prayer was not granted by the Court of Appeal.
8. To date the Applicant has not paid one kobo to the Assistant Chief Registrar of the High Court as ordered and he continues to collect the rents.
9. On 19th June, 1999 when this matter was called, the Applicant was again absent and was not represented, just as was the case on previous occasions and my motion to dismiss the appeal was granted and the appeal was dismissed with N2,000.00 costs.

Moving his motion, dated 16/7/99, for an order re-listing the appeal dismissed on 9/6/99 for want of prosecution, Mr. M. I. Onochie, learned counsel for the applicant referred us to the 14 paragraphs affidavit in support and a further affidavit of 5 paragraphs to which the proposed appellant’s brief was attached. He stated that he is relying on both the supporting affidavit and the further affidavit. He informed us that the record of appeal has long been transmitted to this court. Learned Counsel for the applicant submitted that this court has power to relist this appeal, citing Akujinwa v. Nwaonuma (1998) 13 NWLR (Pt. 583) 632; and Olowu v. Abolore (1993) 5 NWLR (Pt. 293) 255, in support of his submission. He argued that this Court had no power to dismiss the appeal as at the time it dismissed the appeal because it has power to dismiss an appeal only in 3 instances viz;

(1) Where an appellant fails to file his brief within time, the court can dismiss the appeal under Order 6 rule 10 of the Court of Appeal Rules.

He pointed out that as at the time the appeal was dismissed the record of appeal had not been compiled.