Onyebuchi Iroegbu & Anor V. Richard Okwordu & Anor (1990)

LawGlobal-Hub Lead Judgment Report

AGBAJE, J.S.C. 

This ruling is concerned with two applications now filed by their counsel on behalf of the defendants in suit no.HU/4/73 in an Umuahia High Court between Richard Okwordu & Anor for themselves and as representing the Chiefs and people of Eruete Ibeku as plaintiffs and Onyebuchi Iroegbu & Anor, for themselves and as representing the Chiefs and people of Avonkwu Ibeku as defendants. The claims of the plaintiffs against the defendants jointly and severally in the suit were as follows:-

“1. Declaration of title to all that piece or parcel of land known as and called OKATA ERUETE LAND situate at Eruete Ibeku in Umuahia Judicial Division with annual rent of N10.00.

2. N1,000.00 being general damages for trespass.
3. Perpetual Injunction to restrain the defendants, their servants, workmen and/or agents from further entry upon the said IKATA ERUETE LAND or in any way interfering with the plaintiffs’ ownership or possession of same.”

The case proceeded to trial before Ononuju, J., who in his judgment dated 27th February, 1979 found for the plaintiffs on all their claims against the defendants. The defendants being dissatisfied with the judgment appealed against it to the Court of Appeal Enugu Judicial Division. That court coram Phil-Ebosie. O.F.R., J.C.A. presiding, Belgore, Olatawura, JJ.C.A.. as they then were in its judgment dated 12th February, 1985 dismissed the defendants appeal in its entirety. By a notice of appeal dated 2nd May, 1985 the defendants apparently within the time prescribed for appealing against that decision, purported to appeal against the decision. I say the defendants purported to appeal against the decision of the Court of Appeal because when that appeal having been duly entered in this court as suit no.S.C.228/1989 came on for hearing on 2nd May, 1989 it transpired that the purported appeal was incompetent in that no leave of the Court of Appeal or this court was sought or obtained before the appeal was lodged. In the circumstances the appeal was struck out.

By a motion on notice dated 2nd May, 1989 counsel on behalf of the defendants applied in this court inter alia for an extension of time within which the defendants may seek leave to appeal against the judgment of the Court of Appeal to which I have referred above and also for leave to appeal against it. When this application came on for hearing on 23rd October, 1989, it transpired that the application was defective and so it was struck out.

Consequent upon the failure of the application to which I have just referred above, the defendants have now brought the two applications which are now the subject matter of the ruling I am about to deliver.

In the first application dated 8th November, 1989, the defendants are seeking the following reliefs from this court:-

(i) directing a departure from the rules of this court for the purpose of entertaining the appeal herein notwithstanding non-compliance with the requirements of order 6 rule 2(i)(c);

(ii) extending the time within which the appellants may seek leave to appeal from the judgment of the Court of Appeal delivered herein on the 12th February, 1985;

(iii) leave to appeal from the judgment of the Court of Appeal aforesaid;

(iv) extending the time within which the appellants may file such appeal; and

(v) such further and/or other orders as this Honourable Court may deem fit to make in the circumstances.”

In support of the application the defendants are relying on the affidavit sworn by Rafiu Babatunde Azeez, a litigation officer in the chambers of Chief Rotimi Williams, S.A.N., leading counsel for the defendant although Mr. Azeez in his affidavit mistakenly referred to Chief Williams. S.A.N. as leading counsel for the plaintiffs. The material portions of the affidavit of Mr. Azeez in support of the defendants application now under consideration are as follows:-

“2. The above named appellants purported to commence the appeal herein by notice of appeal dated the 3rd day of May, 1985 which were settled by their counsel Chief J.N. Ohonna. dated 3/5/85 and copied at pages 108-128 of volume 2 of the record of appeal.