Mike Omhenke Obomhense Vs Richard Erhahon (1993)

LawGlobal-Hub Lead Judgment Report

KARIBI-WHYTE, J.S.C.

On the 9th of November, 1987, the Court of Appeal Division, Benin City, on the application of the respondent, pursuant to Order 3 rule 25, Court of Appeal Rules 1981 dismissed the Appeal of the appellants for want of diligent prosecution. Appellant has, with leave of this court, appealed to this court against the decision. The Court of Appeal had earlier refused appellant leave to appeal.

The facts of this case are not in dispute. Appellant was the plaintiff in the High Court. On the 3rd April, 1980, appellant brought an action against the respondent, as defendant seeking (i) Declaration of title to land, (ii) perpetual injunction (iii) N750 damages for trespass and (iv) possession. On the 3rd of May, 1982, J.A.P. Oki J of the High Court of Bendel State, in a considered judgment dismissed plaintiff’s claims in its entirety. Plaintiff filed notice of appeal against the judgment of the High Court, on the 31st day of May, 1982.

The High Court wrote to the parties in April, 1987 informing them that the record of proceedings was ready for collection. The Defendant/Respondent promptly collected the record of proceedings. Appellant did not collect his copy of the proceedings until 21/10/87. In a motion dated 28th October, 1987, and heard on the 9th November, 1987 respondent sought for an order dismissing appellant’s Appeal for lack of diligent prosecution. He relied for this application on Order 3 rule 25 Court of Appeal Rules 1981. The motion was supported with an affidavit which after stating the facts as above averred in paragraphs 5 and 6 as follows –

“5. That from all indications it does not appear that the plaintiff/appellant/respondent is willing or any longer interested in prosecuting this appeal.

6. That I am advised by my Counsel K.O. Longe, Esq. and I verily believe that in the circumstance it is necessary for me to apply to this Honourable court to dismiss this appeal in view of the apathy displayed by the plaintiff/appellant/respondent.”

On the 5th November, appellant brought a motion for the following Orders –

“(i) An order granting leave to amend the Notice of Appeal filed in this matter by including therein additional grounds of appeal, the additional grounds of appeal having been set out in the proposed amended Notice of Appeal attached to this motion paper and marked as Exhibit ‘A’, the additional grounds of appeal having also been ruled marginally in red ink;

(ii) An order deeming the proposed Amended Notice of Appeal duly filed and served, the appropriate filling fees having been paid;

(iii) Such other order or orders as this Honourable Court may deem fit to make in the circumstances.”

In this affidavit in support of this motion, he averred in paragraphs 2, 3, 4, 5, 6, 7, 8, 9 as follows-

“2. That judgment was delivered by the Honourable Mr. Justice J.A.P. Oki, sitting at High Court 3, Benin City, on the 3rd day of May, 1982, and that my claims were dismissed.

3. That I filed a notice of appeal in the above-mentioned matter on the 31st day of May, 1982.
4. That following the notice of appeal filed as aforesaid, my solicitor Mr. Felix Azeta informed me, and I verily believed him, that he followed up repeatedly the compilation of the record of proceedings in this trial Court
5. That the record of proceedings at the trial court was recently made available to me by the High Court Registry, Benin City.
6. That the said record of proceedings was in turn available to my Solicitor, Felix Azeta Esq., by me.
7. That my said Solicitor, Felix Azeta, Esq., after having studied the said record of proceedings informs me, and I verily believe him, that it is necessary in the interest of justice to file an amended Notice of Appeal and argue additional grounds of appeal.
8. That the said amended Notice of Appeal including the additional ground of appeal are incorporated in the brief of argument filed on behalf of the appellant in this matter.
9. That the said amended Notice of Appeal and the additional grounds of appeal are annexed to the motion papers herein and therein marked exhibit “A”.

Both the respondent’s application to dismiss the Appeal and the motion of leave to amend appellant’s notice and grounds of appeal come up for hearing on the 9th November, 1987. K.O. Longe, Esqr. for the respondent moving the motion to dismiss the appeal pointed out that appellant has not filed a counter affidavit in opposition to the facts relied upon by the respondent in support of the motion to dismiss the Appeal. Counsel relied on his affidavit and prayed that the appeal be dismissed.

In his reply, Mr. Azeta for the appellant admitted that he received the notice to collect the record of proceedings in April 1987, but that he collected the record of proceedings on the 21/10/87. He sought for an adjournment to the Motion to dismiss the application.

The Court of Appeal rejected his application for adjournment and granted the motion to dismiss the appeal, in a short ruling which I herein below reproduce.