Disable Preloader

CaseLaw

Ekpeto V. Wanogho (2004) CLR 12(g) (SC)

Judgement delivered on January 14th 2005

Brief

  • Fair hearing
  • Judgement of court
  • S.36(1) 1999 Constitution

Facts

This appeal arose out of a protracted land case between the parties in the Delta State High Court. The Appellants were the Plaintiffs at the trial. At the end of the trial, the learned trial Judge dismissed the case of the Appellants in its entirety on the 7th of June 1994. They appealed to the Court of Appeal, Benin City, vide a notice of appeal which was filed on 4th of July 1994. By a letter dated 18th of March 1999, signed by A.O. Olisa, Senior Registrar of the Delta State High Court the certified true record of proceedings and the exhibits in the case were forwarded to the Court of Appeal Benin City and both the Appellants and the Respondents received copies of their record of appeal through their respective counsel. This fact was not in dispute between the parties.

On the 30th of June 1999,. the Respondents filed a motion in the Court of Appeal praying the Court to dismiss the Appellant's appeal "for want of diligent prosecution in that the Appellants have been in default of filing their Appellants Brief within the time stipulated by the Rules of this honourable Court". The motion was supporter by an affidavit of 9 paragraphs. The Appellants though served with this motion; did not react to it but instead filed a motion of 17th August 1999, to amend their notice of appeal by filing additional grounds of appeal and for extension of time to file Appellants' brief. The two motions were fixed for hearing on the 25th of November 1999, and on that day, the Respondent's motion for filing additional grounds of appeal and enlargement of time to file brief was granted as prayed. The Court of Appeal also ordered that -

"The Respondents' motion dated 29/6/99 is adjourned to 10/2/2000 for hearing. The Respondents are awarded N750 costs. The applicants are granted 30 days from today within which they are to file their brief.

In this order, the "applicants" are the Appellants here and the "Respondents" are the Respondents in this appeal.

On the 10th of February 2000, when the Appellant's motion dated 29th June 1999 was called for hearing, the Appellants and their counsel were absent. The learned counsel for the Respondents moved his motion in terms of the motion papers and it was granted as prayed. The Court of Appeal made the following order:

  • "1.
    Leave of Court to argue this motion before the expiration of 1 month from 10/2/2000
  • 2.
    An order setting aside the Judgment/order of this honourable Court delivered/made on 10/2/2000 in this suit.
  • 3.
    An order listing the motion dated 9/2/2000 and filed on 10/2/2000 in this suit for hearing and determination".

This motion was heard on the 7th March 2000 and on the application of the Appellants' counsel himself, it was withdrawn and struck out with no order as to costs.

On the 10th March 2000, the Appellants' counsel filed another motion supported by a 21-paragraph affidavit praying the Court for:

  • "An order restoring/relisting this appeal No. CA/B/109/99 struck out/dismissed on 10/2/2000 for lack of diligent prosecution. Appeal dismissed under Order 6 Rule 10. Court is functus officio UBA v. Ajileye (1999) 13 NWLR (Pt.633) 116".

    • The grounds upon which this application was brought are:

    • "1.
      The order was made in the absence of the Appellants/and their counsel.
    • 2.
      As at the time the order was pronounced the Appellants' brief of argument and motion for extension of time has been filed".

      • The Respondents were served with this motion and on 24/10/2000, they filed a counter-affidavit of 17 paragraphs virtually stating that the Court of Appeal lacks the jurisdiction to relist the appeal struck out on 10/2/2000. Thereafter, the Appellants' filed a reply to the counter-affidavit sworn to by their counsel explaining what transpired in Court on the 10/2/2000. The motion was heard on 23rd January 2001 and adjourned to 12/2/2001 and subsequently to 22/2/2001 for ruling.

      In a considered ruling on the 22/2/2001, the Court of Appeal - Rowland, Ibiyeye and Akaahs JJCA found no merit in the application and unanimously dismissed it. Akaahs J.C.A. in his leading ruling ended up by saying-

    • "Suffice it to say that this Court lacks jurisdiction to restore or relist this appeal which was dismissed under Order 6 Rule 10 Court of Appeal Rules".

      • The Appellants were dissatisfied with this decision, and appealed to this Court.

    Issues

    • 1.
      Whether or not the conditions precedent to the exercise of jurisdiction...
      Read More