Uyaemenam Nwora & Ors V. Nweke Nwabueze & Ors (2013)

LAWGLOBAL HUB Lead Judgment Report

MAHMUD MOHAMMED, J.S.C

On 3rd March, 2009, the Appellants appeal No.CA/E/30/2009 pending at the Enugu Division of the Court of Appeal came up before that Court for striking out for non-compliance with the rules of Court. The record of appeal at page 333 shows that the parties were absent and not represented. The record of appeal at page 332 also shows that a certificate of non-compliance with conditions imposed upon a would be Appellant issued and signed by the Registrar of the trial High Court on 27th January, 2009 and filed the following day in the Registry of the Court of Appeal, was before the Court of Appeal on the 3rd day of March, 2009. The non-compliance Notice said to have been issued under order 8 Rule 1 of the Court of Appeal Rules 2007 reads –

“Pursuant to Order 8 Rule 1 of the Court of Appeal Rules 2007, I hereby certify that the Appellants in the above named case have not complied with the requirements of Order 8 Rule 1.

Dated at Awka the 27th day of January, 2009

V. O. Osieme (Mrs.)

Asst. Chief Litigation,

Awka Judicial Division”

The Court of Appeal therefore in the absence of the parties considered the Notice of Non-Compliance filed by the Registrar of the trial High Court and struck out the Appellants appeal. The short but very clear Ruling of that Court at page 333 of the record of appeal reads –

“The Registrar has issued a notice of non-compliance with the Rules and there is no Pending application for departure from the Rules. The appeal is therefore struck out.”

The Appellants who were not happy with this order of the Court of Appeal Enugu striking out their appeal, have appealed to this Court by their Notice of appeal containing 3 grounds of appeal from which the learned Counsel to the Appellants identified only one issue for the determination of the appeal. That lone issue is –

“Considering the antecedent of this appeal, and the clear provisions of Order 8 and other relevant Provisions of the Court of Appeal Rules, as well as the Appellants right to fair hearing whether the lower Court was not in grave error and acted without jurisdiction when it struck out the Appellants appeal on 3rd March, 2009.”

The 1st set of Respondents however after referring to the Notice of Appeal of the Appellants, decided to frame one issue each from the 3 grounds of appeal through their learned senior Counsel as follows –

“(a) Whether the decision of Court was perverse (Ground 1)

(b) Whether the Court misdirected itself in law by striking out non-Pending appeal (Ground 2)