Egevafo Ekpeto & Ors V. Ikono Wanogho & Ors (2001)

LawGlobal-Hub Lead Judgment Report

AKAAHS, J.C.A. 

The applicants brought this motion pursuant to section 16 Court of Appeal Act; section 33 of the Constitution of the Federal Republic of Nigeria 1999 and the inherent jurisdiction of this Honourable Court praying for the following relief namely:-

“An order restoring/relisting this appeal No. CA/B/109/99 struck out/dismissed on 10/2/2000 for lack of diligent prosecution.”

The grounds upon which the application has been brought are:

1. The order was made in the absence of the appellants.
2. As at the time the order was pronounced the appellants’ brief of argument and motion for extension of time had been filed.

The motion is supported by a 21-paragraph affidavit and 5 annexures marked Exhibits A, B, C, D and E. The application was opposed. To this end, Mr. Peter Oniovwiona Wanogho, the principal partner in the Law firm of P. O. Wanogho and Associates deposed to a 16-paragraph counter-affidavit. This prompted Mr. A. O. Giwa learned counsel for the applicants to depose to another 7 paragraphs reply to the Counter-affidavit. Paragraphs 4, 5a, 5b, 6a, 6b, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18 and 19 of the affidavit in support contain the following averments:-

“4 That on 10/2/2000, I got to the Court of Appeal Benin, before the Court sat.

5(a) That I wrote my name on the attendance register for members of the bar.

5(b) Indeed, I wrote it twice because I was appearing in two matters that day i.e. this appeal listed as No.4 and CA/B/247/98 which was listed as No. 13. A copy of the register of the court on which Counsel were requested to put down their names is annexed herewith and marked Exhibit “A”.

6. That thereafter, I went to the Registry of the court within the precincts of the Court and delivered two processes to the Assistant Chief Registrar of the court in charge of filing processes for filling i.e.

(a) Motion in this case for extension of time within which to file the appellants brief and to deem the brief attached as duly filed (15 copies).

(b) Twenty-one copies of the brief of argument itself.

7. The Assistant Chief Registrar, Mr. A. K. Lawal, took the processes from me and initiated them well before the Court started to sit.
8. That thereafter I carried the processes to the cashier and paid for them. The front pages of the motion is annexed herewith as Exhibit “B” and the brief as Exhibit “C” while the receipt is Exhibit “D”.
9. That while the cashier was endorsing the processes. I came back to the open court. The court had still not sat. I looked out for Counsel for the respondent Mr. P. O. Wanogho but he was outside the court room and standing by the car park.
10. That I went to the car park and inform Mr. Wanogho who is also a member of the respondent family, that I was filing a motion for extension of time and the brief and I asked him what to do in the circumstance with his motion to dismiss the appeal for want of diligent prosecution. He informed me that he would ask for an adjournment to enable him study whatever I had filed. At this point, court was announced to our hearing and it convened.
11. I then left for the cashier’s cubicle/office and collected the endorsed copies to Mr. Lawal who signed same and gave five copies to the messenger to take to the open court.
12. He gave me two copies after I signed that I was going to serve. The messenger took the five copies to the court in the company of one of the appellants, Chief Joshua E. Ozero though not a named appellant but one of those represented.
13. That I endorsed the original which was with the Registrar to the effect that I would serve the respondents, thereafter, I noticed that the cashier omitted to endorse one of the two I had. Thinking that my case being No.4 on the cause list, it would not have reached my turn so soon, I stopped by the cashier’s desk for her to endorse the omitted ones.
14. Meanwhile, the messenger had long sent the five copies to the court room and handed them over to Alhaji Bako and the Judges support staff/clerks.
15. That I then rushed into the court myself. At the stage I got into the court, I met that the court was already writing the ruling dismissing the appeal for failing to file the brief.
16. That I immediately enquired from Mr. Wanogho (Counsel for the respondent), what transpired in my absence and he told me the case was called and that he informed the court that I was filing papers in the Registry. He did not tell me then that he had moved his motion to dismiss the appeal. It was later at Oleh High Court he told me that when he told the court that I was filling papers in the registry, the court asked him if he was also appearing for my clients, the appellants. He was left with no option according to him but to move his motion briefly in terms of the motion paper.
17. That I apologised to the court profusely for coming late into court and sought to explain that I had already filed a motion for extension of time and the appellants’ brief.
18. That thereafter, I waited till the court rose and applied for a record of proceedings and the order which are annexed herewith and marked as Exhibit E.
19. That I filed the motion and the brief before the court sat and before the case was called and before the order was written and/or read out and pronounced, but the brief and motion were not in their Lordship’ files”.

In opposing the application the respondents’ Counsel averred in paragraphs 5, 6(a), 6(b), 7, 8, 9, 10, 11, 12 and 13 of the 16 paragraph counter-affidavit as follows:-

“5. That in further answer to paragraph 10 of the supporting affidavit that is vehemently denied, I hereby state that on 10/2/2000, it was the motion to dismiss the appeal dated 29/6/99 but filed on 30/6/99 that was listed for hearing in the cause list of this honourable court. It is true that the deponent to the affidavit met me and informed me that he intended to file a motion for extension of time within which to file the brief in this appeal, within the precinct of this Honourable Court before the court sat on 10/2/2000 and he, deponent informed me that he would ask for adjournment. There was no time, I informed the deponent that I will apply for adjournment when my motion was listed for hearing without a counter-affidavit or motion for extension of time.

6(a) That in further reply to paragraph 16 of the affidavit in support of the motion which is vehemently denied, I hereby state that as at 10.47 a.m. on 10/2/2000 when neither the deponent nor his clients were present in court, this honourable court allowed me to move the motion filed on 30/6/2000. As at the time the deponent entered the court hall, this honourable court had already completed writing the ruling and was only considering the issue of cost. The deponent neither showed the motion he purportedly filed on 10/2/2000 that was not in the court file to the court nor to myself. I did not at any time discuss with the deponent when the proceedings were on in court on 10/2/2000 and/or thereafter.

(b) That after on 10/2/2000, at the premises of the Oleh High Court, the deponent who is senior to me at the bar met me and was bullying me that why should I move my motion on 10/2/2000 without telling the Court that he was around but I told the deponent that the court allowed me to move the motion since I cannot represent my clients and the deponent’s clients in one suit.