Christopher Ede V. Ogenyi Nwidenyi & Ors. (1988)

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G. KARIBI-WHYTE, J.S.C. 

On the 5th of October, 1988 this court granted the application of the applicants for leave to appeal against the judgment of the Court of Appeal, Enugu dismissing their appeal from the decision of the judgment of the High Court of the East Central State, holding at Enugu on the 7th January, 1974

On 7th January, 1974, J.A. Phil-Ebosie, J. (as he then was) in Suit No.E/96173 dismissed the action of the Appellants, who had sued the defendants claiming as follows –

“(a) A declaration that the people of Amaofia village are absolute owners of the piece and parcel of land known as Ugwuegbe the boundaries of which are verged in pink on the plan No. E/GA.154/M filed with his statement of claim.

(b) 500 pounds damages for act of trespass committed by the defendants on the said land.

(c) An order for an injunction restraining the defendants their agents, servants and privies from further interference with the plaintiffs’ possession of the said land.”

Appellants were represented by Christopher Ede, who instituted the action in his own name and on behalf of Amaofia Village. The present applicants are members of Amaofia Village. The appeal against the judgment was not heard until the 11th March, 1986, when it was dismissed by the Court of Appeal for failure to file briefs of argument. On the 20th April, 1987 more than one year after, Plaintiffs applied to substitute other members of Amaofia Village for Christopher Ede who was alleged to have died in August, 1983. This was necessary to enable Plaintiffs give notice of Appeal against the dismissal of the Appeal.

In November, 1987 the Court of Appeal dismissed the application on the ground that the appeal having been dismissed, there was no lis before it in respect of which applicants could be substituted. The applicants appealed to this Court against the judgment of the Court of Appeal. On the 18th April, 1988 counsel withdrew the appeal which was accordingly dismissed. On the 20th April, 1988 the applicants brought the present application seeking the following orders-

“(a) granting the applicants an enlargement of the time within which to apply for leave to appeal from the judgment of the Court of Appeal, Enugu Division, in Appeal No. FCA/E/148/81 as persons having an interest in the matter;

(b) leave to appeal from the said judgment as interested persons; and

(c) leave to appeal on mixed law and fact from the said decision of the Court of Appeal, Enugu Division.

And for such further and/or other order as to the court may seem fit.”

Thus this application is concerned ONLY with the above prayers, and not with the determination of the proposed substantive issue in the proposed appeal against the dismissal of the appeal to the Court of Appeal by the Plaintiffs of the judgment of the Enugu High Court in Suit No. E/97/73. In support of this application applicants have filed an affidavit, the judgments in the High Court, and the Court of Appeal which are annexed as Exhibits A and H. Also annexed are correspondence between their counsel and the Registry of the Court of Appeal Enugu as Exhibits C.E.F. The judgments of the Court of Appeal dated March 11, 1986 as Exhibit D and November, 12, 1987 as Exhibit H. Also annexed are Motion on Notice resulting in Exhibit H, as Exhibit G; and the Judgment of this Court dated April 18, 1988 as Exhibit I and the proposed notice and grounds of appeal Exh. “J”

Applicants have filed a further affidavit in support of the motion before us. Respondents have also filed an affidavit and a supplementary counter affidavit dated 17th August, 1988.