Uyaemenam Nwora & Ors V. Nweke Nwabunze & Ors (2011)

LAWGLOBAL HUB Lead Judgment Report

CHRISTOPHER MITCHELL CHUKWUMA-ENEH, J.S.C.

The Anambra State High Court of Justice in the consolidated suit No.AA/53/75 and AA/11/77 entered judgment against the plaintiffs/appellants/applicants in this matter. In a two pronged reaction to the said decision the applicants herein have appealed the decision to the Court of Appeal Enugu by a Notice of Appeal filed on 18/11/99. They have also sought and obtained unconditionally a stay of execution of the said trial court’s decision. The order of stay of execution still subsists. No wonder the case more or less has stood practically still ever since the said order of stay even as the defendants/respondents’ effort have failed in the lower court to set it aside.

However, by the instant application dated 22/9/2005 brought pursuant to Order 20(1); Order 3 Rule 1 of the Court of Appeal Rules, Section 16 of the Court of Appeal Act and under the inherent jurisdiction of the court as preserved by Section 6(6) of the 1999 Constitution, the plaintiffs/appellants/applicants in this court have sought before the Court of Appeal to wit:

“(i) An order directing the Chief Judge of the Anambra State High Court to assign consolidated suit Nos.AA/53/75 and AA/11/77 to a Judge of the Anambra State High Court Awka Judicial Division for retrial or trial de novo, and

(ii) An order directing accelerated hearing of the Retrial/Trial de novo of consolidated suit Nos.AA/53/75 and AA/11/77.”

Subjoined to the foregoing prayers are the five grounds of the application to wit:

“(1) Judgment was given against the plaintiffs/appellants/applicants on 12th November, 1999 by the Anambra State High Court presided over by Nwazota C.J.

(2) Plaintiffs/appellants/applicants immediately thereafter appealed against the said judgment to the Court of Appeal, particularly as per their Notice and Grounds of Appeal dated 17th November, 1999.

(3) Plaintiffs/appellants/applicants fulfilled all conditions of appeal as stipulated by the Registry of the lower court and made sufficient funds available for the typing, compilation and transmission of the record of proceedings to the Court of Appeal.

(4) When the lower court Registry failed and neglected to compile and transmit the record, plaintiffs/appellants/applicants secured an order of this court on 10/04/05 compelling the Registrar/Registry of the lower court to compile and transmit the record of proceedings within 30 days.

(5) Despite the service of the enrolled order of this court on the Registrar/Registry of the lower court, the record of proceedings has not been compiled and transmitted on the ground that the entire record book containing the minutes/manuscripts of Nwazota C.J. is missing and cannot be traced.”

To further expatiate on and support the application in this court the applicants have filed among others the following processes to wit:

l. An affidavit of 31(thirty-one) paragraphs sworn to by one Honourable Peter Igbo, a businessman of Okpuloji Village Abba in Njikoka Local Government Area of Anambra State.

2. A brief of argument dated 30/12/2009 filed on 8/9/2009; and
3. A reply brief to the brief of the 1st and 2nd sets of respondents filed on 12/10/2010.

The appellants’ response to the respondents’ objections are contained in the appellant’s reply brief.