Owunari Long-john & Ors V. Chief Crawford N. Blakk & Ors (1998)

LAWGLOBAL HUB Lead Judgment Report

IGUH, J.S.C.

This is an appeal against the decision of the Court of Appeal, Enugu Division, delivered on the 23rd day of February, 1988. By this decision, the defendants/appellants’ application for extension of time within which to file their brief of argument was refused but the plaintiffs/respondents’ application for the dismissal of the defendants/appellants’ appeal for want of prosecution was granted and the defendants/appellants’ appeal was accordingly dismissed with costs.

It seems to me desirable at this stage to set out briefly the back-ground facts to the present dispute between the parties which have culminated in this appeal.

By consolidated suits numbers PHC/36/73 and PHC/37/73, the respondents, as plaintiffs, claimed against the appellants, as defendants, as follows:-

“1. A declaration that the plaintiffs are entitled to the customary right of occupancy according to Kalabari Native Law and Custom to all the piece or parcel of land known as and called Fubara Polo, Akpana Polo and Dokubo-Ekine Polo land situate at Fouchee Bakana – DELGA.

2. N400.00 damages for trespass.
3. An injunction restraining the defendants by themselves, their agents and or servants from committing further acts of trespass thereon.”

Pleadings were ordered in the suit and were duly settled, filed and exchanged. At the conclusion of the subsequent trial, the learned trial Judge, Opene, J., as he then was, after a review of the evidence and the applicable law on the 14th day of July, 1986, entered judgment in favour of the plaintiffs against the defendants for title to the land in dispute, N200.00 damages for trespass and perpetual injunction.

Dissatisfied with this decision of the trial court, the defendants, well within time, lodged an appeal against the same to the Court of Appeal, Enugu Division, on the 11th day of August, 1986. Thereafter, they brought an application for a stay of execution of the judgment before the trial court which application was dismissed on the 12th February, 1987. They further applied for a similar relief before the Court of Appeal on the 12th day of March, 1987 but the same was also dismissed on the 23rd of September, 1987. I shall hereinafter refer to the defendants and the plaintiffs in this judgment as the appellants and the respondents respectively.

Shortly after this dismissal, the respondents, on the 17th November, 1987, filed an application pursuant to the provisions of Order 6, rule 10 of the Court of Appeal (Amendment) Rules, 1984 praying for the dismissal of the appeal for want of prosecution. On the 12th January, 1988, C.O. Akpamgbo, Esq. SAN, learned counsel for the appellants, filed an application on their behalf, praying the Court of Appeal for an extension of time within which to file the appellants’ brief of argument pursuant to the provisions of Order 3, Rules 3(1) and 4(1) of the Court of Appeal Rules, 1981.

Both motions came up for hearing before the Court of Appeal on the 19th January, 1988. In accordance with the usual practice of the courts, the appellants’ application for extension of time was taken first as its success or failure would determine the fate of the application to have the appeal dismissed.

The application for extension of time was accompanied by an affidavit sworn to by one Blessing Eyitenne, a legal practitioner in the Chambers of C.O. Akpamgbo, Esq., SAN. In it, Miss Eyitenne deposed that she was authorised by the appellants to swear to the affidavit. She deposed that the appellants brought the record of appeal to their chambers on the 12th January, 1987; judgment having been delivered therein on the 14th July, 1986 in favour of the plaintiffs/respondents. Paragraphs 7, 8, 9, 10,11, 12, 13and 14 of the affidavit in support of the application appear to me relevant and deposed as follows:-

“7. That on 12/1/87, the clients sent into this chambers the Record of proceedings. Further that the said C.O. Akpamgbo, Esq. SAN tells me and I verily believe him that he started working on the appellants’ brief of argument, but later shelved this for some pressing family problem.

8. That a week after, the said head of chambers tells me and I verily believe him that when he sat to conclude the appellants’ brief of argument, he noticed that the lady housekeeper, Miss Eugenia Mba, had unwittingly made away with the records and the draft appellants’ brief among the disposed off files.
9. That the intensive search for this record and the documents enclosed therein continued until the month of November, 1987 when the plaintiffs/respondents served me with a motion to dismiss the appeal.
10. That weary of the search, the said solicitor tells me and I verily believe him that by the first of January, 1988 he succeeded in getting a copy of the record from Chief R.R. Briggs of Port Harcourt, the solicitor who did the case in the trial court.
11. That the time limited to me to file the appellants’ brief of argument in this court expired on 13/3/87.
12. That the appellants/applicants are still ready, able and willing to prosecute this appeal.
13. That C.O. Akpamgbo, Esq. SAN of No. 39, Bedewright Street, Uwani, Enugu tells me and I verily believe him that he has recommenced writing up the appellants’ brief.
14. That the said solicitor tells me and I verily believe him that the appellants brief will be ready within 14 days of the grant of my application.”

I should, perhaps, add that there was no counter-affidavit controverting any of the above averments.

Arguments on the application were duly taken on the I9th January, 1988 and on the 23rd February, 1988, the Court of Appeal in a reserved ruling, refused the application for extension of time within which to file the appellants’ brief of argument but granted the application to dismiss the appeal for want of prosecution. The appeal was accordingly dismissed pursuant to Order 6, rule 10 of the Court of Appeal (Amendment) Rules, 1984.

Aggrieved by this decision of the Court of Appeal, the appellants have now appealed to this court.