Dr. Lawrence O. Uwechia V. Augustine Obi & Ors. (1973)

LawGlobal-Hub Lead Judgment Report

B. A. COKER, J.S.C

The present applicant was the plaintiff in an action instituted by him against the respondents, who are the defendants in the court below, and against whom the plaintiff claimed a declaration of title to land “situate near Oguta Road” recovery of possession, damages for trespass and a perpetual injunction.

The action was tried by Kaine, J., in the High Court, Onitsha (East-Central State) and on the 4th November, 1966, the learned trial Judge gave judgment therein in favour of the plaintiff against the defendants on all the items of claims but with a reduced amount of damages. The defendants, apparently aggrieved at the decision, filed a Notice of Appeal to this court and thereafter applied to the court below for an order for a stay of execution of the judgment against them.

The learned trial Judge who heard the application for a stay of execution, ordered on the application as follows:-“Order as prayed. I also order that the defendants/appellants do not alienate the property pending the determination of the appeal. I order that the defendants do pay cost of this application which I assess at eight guineas.”

We were not told at the hearing the actual date of the order for a stay but it is easy to see from the events that followed that the order was made some time during the recent Civil War in Nigeria.

In the meantime, the Civil War ended and of course the war brought in its wake a number of problems which are unusual.
One of such problems is the destruction of important records kept in buildings which, in the course of fighting, were destroyed or severely damaged. With respect to the case in hand, the problem on which the whole proceedings hinges is the loss or destructions of the High Court records to be copied to this court in compliance with the provisions of the Rules of the Supreme Court. It appears that some time before now the plaintiff brought an application to this court asking for the order for a stay of execution to be discharged by this court on the ground that the defendants could not and did not get the Records of Appeal prepared whilst the continuance of the order for stay prolonged their deprivation of him from enjoying the fruits of his judgment. We were told that this application was dismissed by this court.
And so, by Motion dated 31st October, 1972, the plaintiff again moved this court for an order: –

“(1) directing a departure from the Rules of this Honourable Court in such manner as it may deem expedient so as to enable the Registrar of the court below to prepare the Record of Appeal in the above matter from such material as are available;

(2) in the alternative, dismissing the appeal of the appellants for want of prosecution; and

(3) for such further or other orders as this Honourable court may deem fit to make.”

Before us, learned counsel in support of the application, submitted that it was the duty of the present appellants to ensure that the records against which they were appealing were before the Supreme Court and that if for any reasons whatsoever they failed to do this, the Supreme Court must as it thinks fit dispose of their appeal. In support of this contention, learned counsel referred us to Ex parte Firth. In re Cowbum (1881) 19 Ch. D. 419 where, at p.426, Jessel, M.R.(as he then was) was credited with the following observation:-

“The appellant was bound, if he appealed, to present to the Chief Judge a sufficient note of the cross-examination. If he intended to appeal he might have got a shorthand note taken of the cross-examination, or he might have had his counsel’s note, or his solicitor’s note properly verified by affidavit. If he had not intended to appeal, or if by some accident (for accidents will occur) the notes were lost, if the Judge’s notes and the counsel’s notes were lost, then, of course, he might apply by way of indulgence to the Court of Appeal to have the evidence taken over again, and the court might or might not accede to that application. But, in my opinion, the court cannot decide an appeal in the absence of the evidence on which the order appealed from was founded.”

Learned counsel for the plaintiff also referred us to some alternative steps that had been taken in the absence of the judge’s notes as described in the following cases:-

Bradford v. Borders (1939) 161 LT130;
Parkinson v. Parkinson (1947) TLR 439; and
Thompson v. Andrews (1968) 1 WLR 777.

In short, learned counsel submitted that this court should help to find a just way of ending the continuance of the order for stay which, as long as it subsists, puts the plaintiff in the position of a loser whereas he had won in the court below.