Philip Obiora V. Paul Osele (1989)

LawGlobal-Hub Lead Judgment Report

OBASEKI, J.S.C. 

On the 1st day of November, 1988, I allowed this appeal after hearing counsel to the parties both on the written briefs and in oral argument, set aside the decision of the Court of Appeal and remitted the case to the Court of Appeal to hear and determine the appeal on its merits. I then reserved the Reasons for my judgment till today and I now proceed to give them.

The short point in this appeal is whether the judgment of the Court of Appeal wherein the appeal to the Court of Appeal was dismissed for want of prosecution can be sustained having regard to the fact that the Court of Appeal had heard in part oral argument from the appellant’s counsel and had before it briefs of the appellant, the quality of the brief notwithstanding.

The appellant was plaintiff in suit No.PHC 350/81, he instituted against the respondent as defendant at the High Court of Rivers State in the Port Harcourt Judicial Division claiming:

(1) N20,160.00 as money had and received by the defendant on behalf of the plaintiff for 7 years at N2,880.00 per annum;

Particulars

(a) Amount of N5,000.00 rent received from the Abandoned Property Implementation Committee as agent of plaintiff;

(2) Mesne profit at the rate of N240.00 per month starting from January, 1982 until the defendant gives up possession of the said plot to the plaintiff;

(3) Order that the defendant effect formal assignment of plot No.100 Egede Street, Mile 2 Diobu, Port Harcourt to the plaintiff;

(4) Perpetual injunction restraining the defendant from further collecting rents from the said building.

Pleadings were, on the order of the court, filed and served and the issues joined came up for hearing before Pepple, J. Five witnesses testified for the plaintiff/appellant and 2 witnesses testified for the defence. Counsel then addressed the learned trial Judge before the learned trial Judge adjourned to consider the judgment. On the adjourned date, ten days later, i.e. on the 12th day of November, 1982, the learned trial Judge delivered a considered judgment in which he dismissed the suit.

Being dissatisfied with the decision, the plaintiff appealed to the Court of Appeal. The notice of appeal was filed on the 10th day of December, 1982. The notice of appeal filed is prolix that it ought not to have escaped adverse comments. Thirteen grounds were filed. Each ground was followed by copious comments in the notice of appeal. With the leave of the Court of Appeal, grounds 14 to 19 were added. The record book shows that the case was listed for hearing on the 5th of December, 1983. On that date, counsel appeared for both parties. But the court adjourned the hearing to the 26th April, 1984. On the 26/4/84, learned Counsel for the appellant, Chief Anyaegbunam began argument on the appeal on behalf of the appellant. Objections were taken to grounds 3, 4, 5, 6, 7, 8, 9, 10, 11, 12 and 13 on the ground of lack of particulars. He conceded grounds 8, 9, 10, 11 and 12. The court struck out grounds 5, 8, 9, 10, 11 and 12.

Counsel argued grounds 2 and 7 together. He made submissions on them. At this stage, the appeal was adjourned to 17/5/1984 for further hearing. On 17/5/84, the court sat and heard another motion for additional grounds of appeal. After hearing counsel on his application for additional grounds which he later withdrew, the court struck out the additional grounds filed on 9/5/84 and adjourned further hearing of the appeal to 24/10/84. On the 24/10/84, in the presence of counsel to the parties, the court adjourned the appeal to 7/11/84. On 7/11/84, a motion to file additional grounds of appeal was taken and granted by the court. Respondent’s counsel did not oppose the motion. The appellant was given 14 days to file his grounds and it was recorded “parties agree that it is desirable at this stage to file briefs. Appeal adjourned 3/4/85”. It should be observed that NO ORDER for briefs to be filed was made.

On 3/4/85, the court sat and on the application of counsel to the appellant, adjourned to 8/7/85 for hearing in the cause. Before then, counsel to the respondent drew the court’s attention to the pending motion strike out the brief. On 8/7/85, the court sat and heard the appellant’s motion. The proceedings for that day read: