appeal No. SC 18/1980 was listed for hearing before this Court on 24th day of November, 1980, that the appellants defaulted in filing their brief as required by Order 9 rule 3 of the Supreme Court Rules 1977 within the extended time, and that on the application of respondents counsel. Chief Bayo Kehinde, S.A.N. in court at the hearing the appeal was dismissed for want of prosecution.

It is clear from the facts deposed in the affidavit that the default in filing the brief within the time prescribed by the Rules was as a result of Mr. Chike Ofodile, S.A.N. appellants counsel’s ill health. Mr. Lardner, S.A.N. holding his brief, obtained an extension of time to file appellants brief. Mr. Chike Ofodile S.A.N. has also accepted responsibility for failure to instruct counsel to file the appellants brief of argument within the extended time. When it became apparent that he would be unable on the ground of ill health to carry out the instructions of his client, what did the appellants do? He was away in London for treatment (i.e. 4000 miles away) at the material time. It was after Mr. Lardner successfully argued the motion for extension of time to file appellants brief that Mr. Chike Ofodile returned from London but too ill to undertake the preparation and filing of the brief within the extended time.

The appellants must be presumed to know that he would be unable to appear in court when the appeal came up for hearing.

Counsel for the appellants/applicants has invited us to exercise our powers either under Order 7 rule 23(2) or Order 7 rule 19(1) and (4) and as a last resort under Order 10 Supreme Court Rules 1977.