Tonye Da-tubonimi V. The Military Government Of Rivers State & Ors (2009)

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SULEIMAN GALADIMA, J.C.A.

This is an appeal by the plaintiff against the decision of Hon. Justice W.D. Dappa of the Rivers State High Court sitting at Port Harcourt in Suit No. PHC/249/79. In the judgment which was delivered on 8th October, 1986, the learned trial judge dismissed the plaintiff’s case and awarded costs of N100.00 (One Hundred Naira only) to first to fourth defendants.

Dissatisfied with the judgment of the court below, the plaintiff hereinafter referred to as “the Appellant” filed his Notice of Appeal originally containing FIVE GROUNDS but later amended to FOUR GROUNDS.

I must confess, the case has a chequered history. It is old. It has suffered long existence in the Enugu Division of this court before it was finally transferred to this Division when it was established in 1989. Hence, it carried the Appeal No. “CA/E/278/99”. The original Appellant “Mansseh Addey Williams” suffered a devastating stroke and he died on 21/2/2000. Thereafter “Tonye Da-Tubonimi” brought an application to substitute the deceased, his uncle, on 5/12/2001 which this court granted’ on 20/2/2001. The action was instituted during the Military era; hence it was the “Military Governor” the Chief Executive” of Rivers State then that appeared readily as the 1st Defendant hereinafter “the 1st Respondents”. Other parties and their offices remain intact, structurally and in their status and responsibilities. Records of appeal were settled and transmitted to this court on 4/10/88. Again due to what I will describe as lackadaisical attitude of the Appellant or his counsel to this appeal, the brief of argument of the appellant filed in 1994 was amended thrice between 1994 and 2003. The 5th Respondent followed suit.

They equally amended their brief on 28/9/95. Although the 1st – 4th Respondents also filed a motion on 29th May 1990 to file their Brief of argument out of time and to deem the attached Brief as properly filed and served, there is nothing in the record showing that the motion has been heard and granted. The above situation gave rise to the adjournment of the Appeal on 5th and 8th of March, 2004, coupled with the fact that there was no legal representation of the 1st – 4th Respondents despite Hearing Notice was ordered by this court.

On 15th and 18th March, 2004 the Appeal was fixed for hearing. Both counsel for Appellant and 5th Respondent were in court. It was in view of the circumstance of this that the Appellant made in application for the appeal to be heard on the Appellants and 5th Respondent’s briefs of argument. This was granted on 19/3/2007.

On 20/5/2009, this appeal was heard. Learned counsel for the Appellant FAYE DIKIO, Esq. identified Appellants. Further Amended Brief of argument dated 31/3/2003, filed on 9/4/2003. Four issues raised from the amended Notice of Appeal containing four grounds without their particulars read as follows:

ISSUE NO. 1

“Was it right for the learned trial Judge to hold that the acceptance of the offer by the plaintiff Appellant constituted a counter-offer without considering when the letter of offer was received and without properly construing the whole of the letter of offer?

ISSUE NO. 2

Was the learned trial Judge right to base his decision on factual contention in the 5th Defendant’s pleadings not proved in evidence?

ISSUE NO. 3

Whether it was a right decision for the learned trial Judge to hold that the plaintiff failed to establish the case against the Defendants, who did not offer contrary evidence.

ISSUE NO. 4