Shehu Babayagi V. Alhaji Ndatsadu Bida (1998)

LAWGLOBAL HUB Lead Judgment Report

ONU, J.S.C.

This appeal emanates from the Ruling delivered by the Court of Appeal. Jos Division on April 27, 1988 (Coram: Maidama and Mukhtar, J.C.A. as well as Adio, J.C.A. as he then was) when it dismissed the appellant’s appeal acting pursuant to Order 6 Rule 10 Court of Appeal Rules, 1981 as amended in the words following:-

“The appellant was served with the motion papers. He is not in court this morning. No reason was given for his absence. Application is therefore granted. Appeal is hereby dismissed with one Hundred Naira cost.”

A resume of the facts of the case may be briefly stated as follows:-

The appellant as plaintiff had in the Benue State High Court sitting at Makurdi sued the respondent, then defendant, for, inter alia, the following reliefs:-

“1. Specific performance by the defendant of the written agreement made on the 28th day of December, 1984, conveying part of building and premises at No.16 Bank Road, Makurdi, to the plaintiff, with effect from the 1st day of January, 1985.

OR IN THE ALTERNATIVE.

2. Special and General Damages limited to N100,000.00 for breach as aforesaid of the contractual duty imposed on the defendant by the said written agreement dated the 28th day of December, 1984, to convey part of the building and premises at No.16, Bank Road, Makurdi to the plaintiff with effect from the 1st day of January, 1985.”

The above action was sequel to an agreement entered into on 28th December, 1984 between the appellant and the respondent wherein the respondent agreed to sell part of the building at No.16 Bank Road. Makurdi to the appellant and to transfer same to the appellant with effect from the 1st of January, 1985 in consideration of the appellant paying to the respondent the sum of N7,000.00. Consequent upon the agreement, the appellant paid the said sum of N7,000.00 to the respondent the receipt of which the respondent acknowledged in writing vide Exhibit 1.

The respondent refused and/or neglected to specifically perform his own side of the agreement, Exhibit I, said to have been written by one Ndako Abdulrahman Ndabashin, who allegedly escorted the appellant to Bida from Makurdi to meet the respondent and at respondent’s request, that he (Ndabasin) wrote in English and explained its content to the respondent in the Nupe language following which he signed it in Arabic. The appellant’s case was given support in the testimonies of P.W.1, Ndako Abdulrahman Ndabashin aforesaid as well as P.W.2, one Sule-Garba. The respondent on the other hand testified and called no witness.

The trial court in a considered judgment dated 31st October, 1986, ordered the respondent to refund to the appellant the sum of N7,000.00 while awarding against the respondent N3,000.00 as general damages for breach of the contract as well as for tying down his (appellant’s) N7,000.00 since December 1984 to date.

What led to the appeal herein was sequel to the above judgment wherein the appellant although he had enough time to file his brief to get his appeal ready for hearing did not do so until by a motion on notice by the respondent’s counsel on the 28th of March, 1988 moved the Court of Appeal (hereinafter referred to as the court below) to dismiss the appeal for want of diligent prosecution. At the hearing of the motion on 27th April, 1988 where an instant Ruling was given by the court below, the following transpired:

“F.M. Ebofuame. E. Neza (Mrs.) for the respondent. Appellant absent.

Respondent – We have an application before the court seeking an order of this (sic) to dismiss the appeal for want of diligent prosecution. The application is brought under Order 6 rule 10 of Court of Appeal Rules 1984. The application is supported by an affidavit sworn to by James Kollo. I rely on all the paragraphs of the affidavit. I urge the court to dismiss the appeal.

RULING