Ndubuisi Womanda & Ors V. Elder Owhonda Chinwo & Ors (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

M. DATTIJO MUHAMMAD, J.C.A (Delivering the Leading Judgment)

On the 17th day of February 2011, the respondents in the instant application, pursuant to their application dated 12th but filed on the 25th January 2011, prayed this court for an order dismissing the applicants, appeal for want of prosecution. The grounds on which the application was brought were:

“(i) That the time limited by the rules of this Honourable court for the filing of the appellants briefs of argument had since elapsed.

(ii) The Judgment/Debtor/Appellants have failed and refused to file the Appellants Brief of Argument in breach of order 17 rule 2 of the rules of this court 2007.

(iii) The Judgment Debtor/Appellants are not willing to prosecute this appeal.”

In paragraphs 3 to 6 0f the affidavit in support of that application Elder owhonda chinwo the first applicant therein, who is the 1st respondent in the application to which this ruling relates, avers that applicants who are dissatisfied with the lower court’s judgment dated 30th April 2010 have appeared by a notice filed on 17/6/2010. The appeal, with the compilation of the record which was served on the applicants on 18th October 2010 has, therefore, since been entered.

Instead of prosecuting the appeal, applicants filed a motion for interlocutory injunction on 6/10/2010 intent on continuing with their trespass on the rand in dispute. The application for interlocutory injunction was, on 8/12/10, struck out following its withdrawal by the applicant. Another motion on Notice filed by the applicants on 9/12/2010 for the relief again hangs in the court’s record.

Applicants who have forty-five days to file their brief are yet to. The applicants are therefore not interested in prosecuting their appeal, it is asserted.

On 17/2/2011 when the motion on notice was moved, the respondents thereto were neither in attendance nor represented. The court’s registry confirmed the suggestion of senior applicants’ counsel E.C. Ukala that the applicants herein, the respondents to the motion being moved, had been put on notice on 10/2/2011. Having been moved in terms of the reliefs in the motion on Notice, the court dismissed the appeal under order 17 rule 10 of the Court of Appeal rules 2007 for want of prosecution.

This ruling is in respect of the motion on notice filed by the applicants on 23/2/2011 following the dismissal of their appeal. The application which is further supported by a twenty-three paragraph affidavit and four annextures, seeks that the entire 17th February 2011 proceedings of this court, including the order for the dismissal of the applicants’ appeal be set-aside. The appeal, the applicants also urge, should be restored to the court’s cause list for it to be determined on its merit.

The applicants rely on the affidavit and the further affidavit in support of their application. Apart from Exhibit A that is annexed to the affidavit in support, exhibits B, C, D and E, the applicants further rely on, are annexed to their further affidavit. Exhibit B is the respondents’ application for the dismissal of the applicants’ appeal. Exhibit C is the copy of the affidavit of service of exhibit B on the applicants, dated 10th February 2011. Exhibit D is the certified true copy of the first two pages and the last two pages of the record of proceedings dated 21st December 2010 allegedly received by the applicants during Christmas vacation.

The applicants in paragraphs 4-11, 13-14 of the twenty-six paragraph affidavit in support of their motion on notice aver to facts that made it impossible for the record of their appeal to be wholly transmitted to this court and for the time within which the rules provide for the filing of their brief to start counting. It was when the Appellants/Applicants went to file their brief on 21/2/2011, within time, that they discovered to their shock that respondents had moved the court behind their back and secured an order for the dismissal of their appeal for their failure to file the brief.

In paragraphs 12, 16, 17, 18, 19 20, 21, 22 and 23 of applicants’ same affidavit in support, it is asserted that applicants have been denied fair hearing.

They were not served with any process before the dismissal of their appeal and the 17/2/2011 proceedings culminating in the order contained in exhibit A were conducted behind them. It is further averred that in moving their motion for the dismissal of applicants appeal, the respondents had deceived the court by suppressing the fact that applicants were still within time for the filing of their brief since the record of appeal had only been made available to them during the, December, 2010 Christmas vacation. The earlier record sent to the applicants’ were incomplete.