Godwin Ekiyor & Anor V. Chief Frukama Bomor (1997)

LAWGLOBAL HUB Lead Judgment Report

E. OGUNDARE, J.S.C 

The plaintiff who is respondent in this appeal, had sued the defendants, now appellants, in the Warri Judicial Division of the former Bendel State, claiming N200,000 general damages for trespass, nuisance and injunction. Pleadings were ordered, filed and exchanged. Evidence was led at the trial by both sides. In the course of the evidence of the 3rd defence witness, objection was taken by learned counsel for the plaintiff to the line of evidence.

After learned counsel for the parties had addressed the court on the objection, the learned trial judge in a ruling upheld the objection and expunged the evidence of the witness from the record. Thereupon learned counsel for the defendants applied for an adjournment. The application on being opposed by counsel for the plaintiff, was refused by the learned trial judge who directed that “the defendants should go on with their case”. I quote below what followed next:

“Mr. Scott-Emuakpor: At this stage the defendants cannot go on with their case as directed by the Court.

Court: The case of the defendants is hereby closed. Counsel should address me. The case has lingered for too long.

Mr. Scott-Emuakpor: I have no address to offer. Mr. Okpoko addresses:”

Upon conclusion of Mr. Okpoko’ s address, the trial judge reserved judgment.

In the meantime, the defendants filed a notice of appeal to the Court of Appeal against the ruling of the learned trial Judge on the objection taken to the evidence of D.W.3 and refusal of adjournment. They at the same time applied by way of motion for a stay of proceedings in the suit pending appeal. The application for stay was refused on 26/9/85 and, on the same date, the learned trial Judge delivered his judgment in the case wherein he found for the plaintiff and awarded him N75,000, damages and an injunction. The defendants appealed against this judgment to the Court of Appeal on 30/9/85 incorporating in their grounds of appeal complaints against the conduct of the case as a whole in the trial court.

Defendants’ two appeals were entered in the Court of Appeal as Appeals Nos. CA/B/199/85 and CA/B/301/87. On the defendants not filing their written brief of argument the plaintiff on 29/6/88 applied to the Court of Appeal for an order dismissing the appeal for want of diligent prosecution. In the affidavit in support of the motion, plaintiff averred:

“1. On the 27th of September, 1985 the appellants/respondents appealed to this Honourable Court against the decision of Uwaifo, J. sitting at High Court 1 Warri in this case.

2. The Assistant Registrar of the Warri High Court informed me and I verily believe him that he compiled the records of this appeal and duly notified the parties of the availability of the Records by a Notice dated 22/12/87 with reference No. W/52/80-Tempo/E2.
3. Solicitors T.J. Onomigbo Okpoko & Co. informed me and I verily believe them that they received the aforementioned Notice on 5/1/88.

A copy of the registrar’s notice is attached hereto and marked Exh. A.

4. Pursuant to this notice, I collected the Records of Appeal on the 15/1/88.
5. The Registrar of the Warri High Court also informed me and I verily believe him that on the 18th of January, 1988 the appellants/respondents received through their solicitors the registrar’s notice informing the parties of the availability of the records of appeal for collection. A certified copy of the proof of service is attached hereto and marked Exhibit B.
6. That up till 20/6/88 when I made a search at the Registry of the Court of Appeal, Benin City, I discovered that the appellants had failed, refused and or neglected to file their Appellants’ Brief.
7. This Honourable Court on the 23/1/86 ordered a stay of execution of the judgment debt of N75,000.00 awarded in my favour by Uwaifo J of the Warri High Court on the 26/9/85.
8. The appellants/respondents have not shown interest in prosecuting this appeal and are contended with the stay of execution granted by this Honourable Court.”

A counter-affidavit was filed in the morning of 13/7/88, the day fixed for the hearing of the motion.

Because of the importance of what took place in court that day, to the determination of this appeal I quote hereunder the proceedings for the day:

“Applicant in person.