W. H. Bockelmann V Thompson Nwaehi (1965) LLJR-SC

W. H. Bockelmann V Thompson Nwaehi (1965)

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When this appeal came up for hearing on the 25th January, 1965, the appellant and his counsel were absent and the appeal was dismissed with 25 guineas costs. On the 5th February, 1965 counsel for the appellant put in a notice of motion under Order 7 rule 21 sub-rule 2 of the Supreme Court Rules, that he would apply for an order to have the appeal re-entered, and Mr. M. A. Branco swore an affidavit that on the 25th January, 1965 he was held up in a traffic jam between the Western Avenue and Ijora Causeway, that his car became overheated and developed engine trouble, and that on reaching the Court about 10. 15 a.m, he learned that the appeal had been dismissed.

Rule 21 provides as follows:-

“21. (1) if the appellant fails to appear when his appeal is called on for hearing and has not taken action under Rule 20 of this Order, the appeal may be struck out or dismissed with or without costs.

(2) When an appeal has been struck out owing to the non-appearance of the appellant the Court may, if it thinks fit, and on such terms as to costs or otherwise as it may deem just, direct the appeal to be re-entered for hearing.

Action under Rule 20 means written arguments, which dispense with the presence of the appellant or his counsel at the hearing.

Learned counsel for the respondent to the appeal said he did not object to an order for the appeal to be re-entered if the Court thought that it could be done. He pointed out that the power of re-entering an appeal was confined to an appeal which had been struck out and that it would appear that there was no power to re-enter an appeal which had been dismissed.

We were ourselves anxious to see whether we could do anything, but things had reached a point before the notice of motion was filed on the 5th February which precludes the Court from helping the appellant. According to English practice, to which we go for guidance, it appears from In re Samuel [1945] Chancery 364, and James Lamont & Co. Ltd v. Hyland Ltd. [1950] 1 K.B. 585, that when all appeal is dismissed and the order of dismissal drawn up, that is the end of the appeal: but if no order has been drawn up and entered, the court remains master of the situation and in its discretion, may allow the appeal to proceed.

In the present case the order of dismissal was drawn up and dispatched to the Registrar of the High Court, Lagos on the 29th January, 1965 before ever the solicitor for the appellant filed his notice of motion for the appeal to be re-entered. It is a pity that he did not file his notice of motion on the 25th January or the 26th, early and in time to give the Registry warning not to draw up the order of dismissal.

We are sorry that we cannot help the appellant and must refuse the motion to relist.

The motion is refused with 6 guineas costs.

Other Citation: (1965) LCN/1266(SC)

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