Ezekiel Nneji & Ors. V. Chief Nwankwo Chukwu & Ors. (1988)

B. WALI, J.S.C.

The Plaintiffs sued the Defendants in the Enugu High Court of Anambra State for trespass to a parcel of land they called ‘Ajamu’, damages and injunction against further trespass. The claims were denied by the Defendants who called the same parcel of land ‘Azu Agu’, and claimed ownership of the same through inheritance patrimonially.

At the end of the trial, judgment was given in Plaintiffs’ favour. The reliefs claimed by Plaintiffs with N300.00 as general damages were also awarded against the Defendants.

Against the judgment the Defendants appealed to the Court of Appeal, Enugu Division and filed the Notice of Appeal on 29th April 1985 at the High Court Registry, Enugu.

The simple facts involved in this appeal are as follows –

The Plaintiffs sued the Defendants in the Court of trial for a declaration of title to a piece of land, injunction and damages for trespass. The trial Court granted all the claims of the Plaintiffs. The Defendants then appealed to the Court of Appeal Enugu. The Notice of Appeal was filed on 29th April 1985.

The Plaintiffs, in their affidavit sworn to on 14th October 1987 gave conflicting dates as regards the actual date the Defendants received the record of appeal from the High Court Registry Enugu. In paragraph 5 of the affidavit, the date of receipt of the record was given as 5th May 1987 while paragraph 6 of the same affidavit sworn to by the same deponent gave the date as 15th July 1987.

The Ruling of the court of Appeal seemed to have accepted 15th July 1987 as the date the Defendants received the record. By the middle of July 1987 the Court of Appeal went on its annual vacation which ended on 31st August 1987.

The Defendants as Appellants, were to file written brief within sixty days of the receipt of the record of appeal, as stipulated in Order 6 Rule 2 of the Court of Appeal Rules, 1981 (as amended by S.L. 26 of 1984). This, according to the Plaintiffs was not done within the time provided for by the Rules (supra). They therefore filed a Motion on Notice dated 13th October 1987 pursuant to Order 6 Rule 10 of Court of Appeal Rules, 1981, praying the Court to dismiss the appeal for want of prosecution. In support of the Motion, the 1st Plaintiff, Ezekiel Nneji, swore to an affidavit, part of which I reproduce hereunder:-

”4. On the 29th day of April, 1985, the Appellants/Respondents filed their Notice and Grounds of Appeal at the High Court Registry Enugu.

5. The record of appeal in this matter is now ready and was received by the Plaintiffs/Respondents/ Applicants from the High Court Registry Enugu on the 5th day of May, 1987.
6. On the 15th day of July, 1987, the Appellants/Respondents also received the record of appeal in this matter from the High Court Registry Enugu.
7. I am informed by C. ATU ESQ. a Counsel in the Chambers of Chike Ofodile S.A.N. our leading Counsel in this case and I verily believe him that the Appellants/Respondents have sixty days within which to file their Brief of Argument after the receipt of the record of appeal from the court below.
8. Sixty days have since elapsed without the Appellants/Respondents filing their Brief of Argument.
9. I am informed by C. ATU ESQ. and I verily believe him that his enquiries at the Court of Appeal Registry Enugu reveal that no brief of argument has been filed by the Appellants/Respondents.
10. The Appellants/Respondents are not eager to prosecute this appeal.”

On the Defendants’ part, Nwankwo Chukwu, a Traditional Ruler and 1st Defendant, swore to a counter-affidavit in part of which he deposed to the following facts –

”3. I have read the affidavit of Ezekiel Nneji sworn to in this Court on the 14th of October 1987 in support of his motion filed on the same day praying the court to dismiss our appeal against the judgment of the High Court of Anambra State in their favour for want of prosecution.

4. Paragraphs 1-6 of the said affidavit of Ezekiel Nneji are correct.
5. As regards paragraphs 7,8 and 9, I am advised by my counsel that the period of sixty days for filing the appellants’ brief has not run out as the period of vacation does not count in the running of time for the doing of any act prescribed by the Rules of Court.
6. It is not correct that we are not eager to prosecute this appeal.
7. We briefed a Senior Advocate of Nigeria, A.N. Anyamene, Esquire, to prosecute the appeal on our behalf.
8. I know as a fact that the draft of our brief of argument has been completed and is now undergoing vetting and corrections by the said Senior Advocate of Nigeria, having met him two days ago working on the said document.
9. I verily believe that the application by the applicants is intended to embarrass me and my people and our said counsel.
10. I am advised by our said counsel that this court has expressed its desire first to clear the backlog of appeals of four years old or more before taking on appeals entered recently.”

The Motion was argued on 29th October 1987 and on 19th November 1987, it was unanimously dismissed with the following remarks by Ikwechegh, J.C.A. –

”I think that I am safe in saying that the argument that time does not run during the Annual Vacation is an importation by Mr. Anyamene, SAN, from the Supreme Court Rules 1985 into this Court, and one may say it humourously here that the learned Senior Advocate had received no ‘import licence’ from the President of this Court; and he deals therefore in contraband. We wont permit this.

Mr. Ofodile is right and he is on the war path; but would he utterly destroy the hopes of the appellants in this matter