Dr. Lawrence O. Uwechia V. Augustine Obi & Ors. (1973)

LawGlobal-Hub Lead Judgment Report

B. A. COKER, J.S.C

The present applicant was the plaintiff in an action instituted by him against the respondents, who are the defendants in the court below, and against whom the plaintiff claimed a declaration of title to land “situate near Oguta Road” recovery of possession, damages for trespass and a perpetual injunction.

The action was tried by Kaine, J., in the High Court, Onitsha (East-Central State) and on the 4th November, 1966, the learned trial Judge gave judgment therein in favour of the plaintiff against the defendants on all the items of claims but with a reduced amount of damages. The defendants, apparently aggrieved at the decision, filed a Notice of Appeal to this court and thereafter applied to the court below for an order for a stay of execution of the judgment against them.

The learned trial Judge who heard the application for a stay of execution, ordered on the application as follows:-“Order as prayed. I also order that the defendants/appellants do not alienate the property pending the determination of the appeal. I order that the defendants do pay cost of this application which I assess at eight guineas.”

We were not told at the hearing the actual date of the order for a stay but it is easy to see from the events that followed that the order was made some time during the recent Civil War in Nigeria.

In the meantime, the Civil War ended and of course the war brought in its wake a number of problems which are unusual.
One of such problems is the destruction of important records kept in buildings which, in the course of fighting, were destroyed or severely damaged. With respect to the case in hand, the problem on which the whole proceedings hinges is the loss or destructions of the High Court records to be copied to this court in compliance with the provisions of the Rules of the Supreme Court. It appears that some time before now the plaintiff brought an application to this court asking for the order for a stay of execution to be discharged by this court on the ground that the defendants could not and did not get the Records of Appeal prepared whilst the continuance of the order for stay prolonged their deprivation of him from enjoying the fruits of his judgment. We were told that this application was dismissed by this court.
And so, by Motion dated 31st October, 1972, the plaintiff again moved this court for an order: –

“(1) directing a departure from the Rules of this Honourable Court in such manner as it may deem expedient so as to enable the Registrar of the court below to prepare the Record of Appeal in the above matter from such material as are available;

(2) in the alternative, dismissing the appeal of the appellants for want of prosecution; and

(3) for such further or other orders as this Honourable court may deem fit to make.”

Before us, learned counsel in support of the application, submitted that it was the duty of the present appellants to ensure that the records against which they were appealing were before the Supreme Court and that if for any reasons whatsoever they failed to do this, the Supreme Court must as it thinks fit dispose of their appeal. In support of this contention, learned counsel referred us to Ex parte Firth. In re Cowbum (1881) 19 Ch. D. 419 where, at p.426, Jessel, M.R.(as he then was) was credited with the following observation:-

“The appellant was bound, if he appealed, to present to the Chief Judge a sufficient note of the cross-examination. If he intended to appeal he might have got a shorthand note taken of the cross-examination, or he might have had his counsel’s note, or his solicitor’s note properly verified by affidavit. If he had not intended to appeal, or if by some accident (for accidents will occur) the notes were lost, if the Judge’s notes and the counsel’s notes were lost, then, of course, he might apply by way of indulgence to the Court of Appeal to have the evidence taken over again, and the court might or might not accede to that application. But, in my opinion, the court cannot decide an appeal in the absence of the evidence on which the order appealed from was founded.”

Learned counsel for the plaintiff also referred us to some alternative steps that had been taken in the absence of the judge’s notes as described in the following cases:-

Bradford v. Borders (1939) 161 LT130;
Parkinson v. Parkinson (1947) TLR 439; and
Thompson v. Andrews (1968) 1 WLR 777.

In short, learned counsel submitted that this court should help to find a just way of ending the continuance of the order for stay which, as long as it subsists, puts the plaintiff in the position of a loser whereas he had won in the court below.

There was not much argument from the defendants but on their behalf learned counsel implored the court to study the various steps he himself had taken in an attempt to find a solution to the impasse. Learned counsel for the defendants, however, informed us that all the exhibits as well as a substantial portion of the record of evidence had been recovered. Learned counsel for the defendants conceded that he had not sought any assistance from this court earlier to ensure the speedy hearing and disposal of this appeal.

It is easy to see that the decision called for by this application is a small one. After judgment was entered at the High Court, Onitsha, in the case, the plaintiff became the owner of the land until the judgment is reversed by a competent court. That so far has not happened but the plaintiff is being kept away and continues so to be kept away by virtue of an interim order for a stay of execution which the defendants obtained. This situation is of course completely unsatisfactory, at any rate to the plaintiff, and so he has brought the present application.

The case was disposed of by the High Court, Onitsha, as far back as the 4th November, 1966 and the appeal of the defendants was apparently lodged within the period of three months thereafter.

Although the plaintiff was served with the Notice of Appeal, the position as far as he is concerned is that nothing more has been done about the appeal since then. We think it proper at this juncture to point out that it is the duty of the appellant to ensure that the records or the notes which he proposes to challenge in the Supreme Court are made available to that court. If those records are not made available, the respondent is ex debito justiciae entitled to have the appeal proceedings terminated.

In the present case, those records are not made available to us and in their absence it is impossible to decide the appeal of the defendants. It has been urged before us that the non-availability of the records was not due to any lapses on the part of the defendants. That may be so and indeed we were told by the defendants that this was due to the incidence of the Civil War. But the plaintiff is as much affected by the Civil War as the defendants themselves and clearly the delay in dealing with the appeal far from being due to a fault of the plaintiff has been due to the tardiness of the defendants to demonstrate that they were always willing to prosecute the appeal in compliance with the bond which they executed at the inception of the appeal proceedings. As they failed to do this, their appeal should be disposed of by this court as best as possible. The defendants have made no application of any type to this court or indeed any other court for directions on alternative methods of ensuring the prosecution of their appeal.
This is a clear breach of the bond which they executed.

We were rather worried concerning the nature of the order to make in this case having regard to the interests of both parties and the paramount desire to do equal justice to both. We have decided however to accede( to the prayer of this Motion and though not exactly in the terms of the Motion as placed before us but certainly with some modifications of the alternative prayer sought in the Motion.

We therefore make the following orders on the application:-

(i) The appeal of the defendants to this court against the judgment of the Onitsha High Court in Suit No. 0/70/62 is hereby struck out.

(ii) The defendants would be at liberty to apply for the appeal to be relisted if and whenever they are ready and willing to prosecute the said appeal.

(iii) The effect of the foregoing orders is to restore the parties to the status quo immediately after the judgment of the High Court, Onitsha and before the order for stay of execution.

(iv) The plaintiff will have the costs of this application fixed at N31.

SC.301/71