Fawole Ajayi & Anor V. Igierobo Omorogbe (1993)

LawGlobal-Hub Lead Judgment Report

OLATAWURA, J.S.C.

It will be necessary to refer briefly to the history of this case in order to appreciate the issue involved. The appeal is not on the merit of the issues decided by the High Court of Justice in the former Mid-Western State of Nigeria, (now Edo State) of the Benin Judicial Division.

The respondent issued a writ of summons against 3 defendants: (1) Chief Ajayi (2) Mr. D.M. Ajayi and (3) Madam Rali Kadiri on 6th April, 1974. The latter has since died. The reliefs claimed are as follows:

“(a) A declaration of title in accordance with Bini Customary Law to the land in dispute as shown coloured pink on Plan No.ER 2238 filed with this Amended Statement of Claim.

(b) N200.00 being damages for trespass.

(c) An injunction restraining the defendants, their servants and or agents from further acts of trespass upon the said land.

The matter proceeded to trial after several amendments to the pleadings. On 3rd May, 1980, Omosun, J. (as he then was) gave judgment in favour of the plaintiff as follows:

“In view of Section 40 of the Land Use Decree 1978, the proper order to make is that the plaintiff is entitled to the Statutory Right of Occupancy, Benin City having been designated an urban area. There will be damages of N 120.00 against the defendants jointly and severally and injunction to restrain the defendants from committing further acts of trespass on the land in dispute verged pink in Exhibit C.”

On the 3rd of June. 1980, the defendants filed Notice and Grounds of Appeal against the said judgment. Undated Civil Form 6, i.e. Summons to parties by the Registrar of the High Court to settle record of appeal in accordance with Order 3 rule 8 of the Court of Appeal Rules was issued, but curiously the parties were not expected to attend the settlement of the record of appeal before 7th day of January, 1985 i.e. more than 4 years after Notice and grounds of appeal were filed! On that day, i.e. 7th February, 1985, the appellants were neither present nor represented. The plaintiff/respondent was present. The conditions for appeal were given and were to be perfected within 30 days from that day. It was on 15th day of October, 1985 that the application for enlargement of time within which to perfect the conditions given by the Registrar of the trial court was granted by the Court of Appeal.

On 10th December 1987, the Assistant Chief Registrar of the High Court of Justice, Benin City issued a Certificate to the effect that the conditions of appeal had been complied with.

It was on 15th April, 1988 that the motion dated 13th April, 1988 asking for the dismissal of “the defendants/appellants’ appeal for want of prosecution” was filed. There was an affidavit in support of the application. The material paragraphs 4-21 of the said affidavit read as follows:

“4. That judgment was given in my favour on 30th May, 1980.

5. That the defendants/appellants/respondents filed Notice of Appeal against the judgment on 3/6/80. A copy of the said Notice of Appeal is hereby attached and marked Exhibit “A”.
6. That I received the said Notice of appeal on 6th June, 1980.
7. That on 7th February, 1985, the conditions of appeal were given in this matter by the Assistant Chief Registrar, High Court of Justice, Benin City.
8. That the appellants/respondents were given 30 days from 7th February, 1985 to comply with the said conditions.
9. That the defendants/appellants/respondents defaulted in complying with the said conditions of appeal within the specified time.
10. That thereupon, I instructed my Solicitors to file a Motion for the dismissal of this appeal for failure to comply with conditions of appeal.
11. That the said Motion for dismissal was filed on 11/10/85 and dated on the same day.
12. That the defendants/appellants/respondents filed on that same date 11/10/85 a Motion for extension of time to comply with the conditions of appeal.
13. That the defendants/appellants/respondents’ Motion for extension of time was moved and granted by this Honourable Court and in the interest of justice, the Motion filed on my behalf by my Solicitors Messrs J.O. Sadoh & Co. was withdrawn and N150.00 (One hundred and Fifty Naira) costs was awarded by this Honourable -Court against the appellants/respondents.
14. That the Assistant Chief Registrar of the High Court, Benin City served, a Notice on me on the 7th of December, 1987 that the record of appeals had been sent to this Honourable Court and invited all the parties i.e. myself and the appellants/respondents to collect copies of the record of appeal from the High Court Registry. A copy of the said Notice is attached herewith and marked Exhibit “B” 15. That I have since collected a copy of the said record of appeal.
15. That on enquiry at the High Court Registry, my Solicitor, Chief J. O. Sadoh informed me and I verily believe him that the despatch books of the Bailiff in the correspondence Section showed that the defendants/appellants/respondents were served with the Notice referred to in paragraph 14 of this affidavit (Exhibit “B”) since the 17th of December, 1987.
16. My Solicitor above referred also informed me and I verily believe him that on further enquiry, he found that up till today, the 31st day of March, 1988, the appellants have neither paid for nor collected their records of appeal from the High Court Registry.
17. That the defendants/appellants/respondents are not interested in prosecuting this appeal.
18. That the defendants/appellants/respondents have no arguable grounds of appeal.
19. That their notice of appeal was filed to prevent me from enjoying the fruits of my litigation.
20. That I swear to this affidavit in good faith believing its contents to be true and correct to the best of my knowledge, information and belief.”

The appellants now before us filed a counter-affidavit wherein Daniel Mese Ajayi, the second appellant deposed in paragraphs 1-19 as follows:

“1. That I am the second defendant/appellant in this suit.