In the Supreme Court of Nigeria

Friday, July 23, 1993

Case Number: SC. 20/1988



















The principle is now well established that where a relief or remedy claimed under a wrong law is supported by facts establishing the remedy, the claim will not be denied merely because of the wrong law relied upon. Per Karibi-Whyte, JSC.


It is an important principle for the construction of the provisions of a statute, that where the words are clear and unambiguous, they must be given their ordinary meaning. Per Karibi-Whyte, JSC

KARIBI-WHYTE, JSC.: (Delivering the Judgment by the Court): On the 9th of November, 1987, the Court of Appeal Division, Benin City, on the application of the respondent, pursuant to Order 3 rule 25, Court of Appeal Rules 1981 dismissed the Appeal of the appellants for want of diligent prosecution. Appellant has, with leave of this court, appealed to this court against the decision. The Court of Appeal had earlier refused appellant leave to appeal. The facts of this case are not in dispute. Appellant was the plaintiff in the High Court. On the 3rd April, 1980, appellant brought an action against the respondent, as defendant seeking (i) Declaration of title to land, (ii) perpetual injunction (iii) N750 damages for trespass and (iv)  possession. On the 3rd of May, 1982, J.A.P. Oki J of the High Court of Bendel State, in a considered judgment dismissed plaintiff’s claims in its entirety. Plaintiff filed notice of appeal against the judgment of the High Court, on the 31st day of May, 1982. The High Court wrote to the parties in April, 1987 informing them that the record of proceedings was ready for collection. The Defendant/Respondent promptly collected the record of proceedings. Appellant did not collect his copy of the proceedings until 21/10/87. In a motion dated 28th October, 1987, and heard on the 9th November, 1987 respondent sought for an order dismissing appellant’s Appeal for lack of diligent prosecution. He relied for this application on Order 3 rule 25 Court of Appeal Rules 1981. The motion was supported with an affidavit which after stating the facts as above averred in paragraphs 5 and 6 as follows –

“5.  That from all indications it does not appear that the plaintiff/ appellant/respondent is willing or any longer interested in prosecuting this appeal.

6. That I am advised by my Counsel K.O. Longer, Esq. and I verily believe that in the circumstance it is necessary for me to apply to this Honourable court to dismiss this appeal in view of the apathy displayed by the plaintiff/appellant/respondent.” On the 5th November, appellant brought a motion for the following Orders – “(i) An Order granting leave to amend the Notice of Appeal filed in this matter by including therein additional grounds of appeal, the addi­tional grounds of appeal having been set out in the proposed amended Notice of Appeal attached to this motion paper and marked as Exhibit ‘A‘, the additional grounds of appeal having also been ruled marginally in red ink; (ii) An order deeming the proposed Amended Notice of Appeal duly filed and served, the appropriate filling fees having been paid; (iii) Such other order or orders as this Honourable Court may deem fit to make in the circumstances.” In this affidavit in support of this motion, he averred in paragraphs 2, 3, 4, 5, 6, 7, 8, 9 as follows –

“2. That judgment was delivered by the Honourable Mr. Justice J.A.P. Oki, sitting at High Court 3, Benin City, on the 3rd day of May, 1982, and that my claims were dismissed.

3.That I filed a notice of appeal in the above-mentioned matter on the 31st day of May, 1982.

4. That following the notice of appeal filed as aforesaid, my solicitor Mr. Felix Azeta informed me, and I verily believed him, that he followed up repeatedly the compilation of the record of proceedings in this trial Court.

5. That the record of proceedings at the trial court was recently made available to me by the High Court Registry, Benin City.

6. That the said record of proceedings was in turn available to my Solicitor, Felix Azeta Esq., by me.

7. That my said Solicitor, Felix Azeta, Esq., after having studied the said record of proceedings informs me, and I verily believe him, that it is necessary in the interest of justice to file an amended Notice of Appeal and argue additional grounds of appeal.

8. That the said amended Notice of Appeal including the additional ground of appeal are incorporated in the brief of argument filed on behalf of the appellant in this matter.

9. That the said amended Notice of Appeal and the additional grounds of appeal are annexed to the motion papers herein and therein marked exhibit “A.” Both the respondent’s application to dismiss the Appeal and the motion of leave to amend appellant’s notice and grounds of appeal come up for hearing on the 9th November, 1987. K.O. Longe, Esqr. for the respondent moving the motion to dismiss the appeal pointed out that appellant has not filed a counter affidavit in opposition to the facts relied upon by the respondent in support of the motion to dismiss the Appeal. Counsel relied on his affidavit and prayed that the appeal be dismissed. In his reply, Mr. Azeta for the appellant admitted that he received the notice to collect the record of proceedings in April 1987, but that he collected the record of proceedings on the 21/10/87. He sought for an adjournment to the Motion to dismiss the application. The Court of Appeal rejected his application for adjournment and granted the motion to dismiss the appeal, in a short ruling which I herein below reproduce.

RULING “There is no doubt that the appellant is not interested in this appeal. He filed the appeal in 1982 and did nothing to get it ready for hearing until records were finally available for collecting in April, 1987. Despite an invitation by the Registrar of Court to collect same he did not do so until six Months later in October, 1987. After collecting the records he did not file an application for extension of time to file his brief and did not even do so after the present motion was served on him. All he did was to file this morning a Motion which is said to be for leave to file and argue additional grounds. I agree with applicant’s Counsel that there is a clear failure in the circumstance to prosecute the appeal. Time within which the appellant’s brief is to be filed must in the circumstances (sic) that to me from April, May, 1987 and it has expired, Accordingly, this appeal is hereby dismissed for want of prosecution. Costs to applicant assed at  N100.00 only” Appellant has appealed against this ruling. He has relied on the following grounds of appeal. The grounds of appeal without particulars are as follows –

“GROUND OF APPEAL 1. It was wrong in law for the Court of Appeal to have dismissed the appellant’s appeal without giving him an opportunity to be heard, when the respondent’s affidavit purportedly supporting his motion seeking the order the Court of Appeal for dismissal of the appel­lant’s appeal under Order 3 Rule 25 of the Court Appeal Rules 1981 (as amended) was at variance with and not in support of the order sought under the said Order 3 rule 25.

2. The ruling and or order of dismissal of the Court of Appeal was erroneous in law in that the ruling and or order overlooked appel­lant’s Counsel oral information to the Court of Appeal that the appellant’s brief of argument has been prepared following the receipt of the record of appeal on 21/10/87 and that a motion has been filed praying for an order of the Court of Appeal to file and argue additional grounds of appeal, so as to regularise the said additional grounds of appeal which had been incorporated in the brief of the Apellant’s argument dated 5th November, 1987.

3. The Court of Appeal was in error in dismissing the appellant’s appeal without giving any consideration to appellant’s counsel’s oral representation in Court that the record of proceedings having been collected on 21st October, 1987 the appellant’s time for filing brief in accordance with the provisions of order 6 rule 2 of Court of Appeal (Amendment) Rules 1984 has not expired. The receipt for the payment of additional N224 on 21st October, 1987 before the record of appeal was collected on the said 21/10/87 is attached to the affidavit in support of the motion for an enlargement of time to file this appeal.

4. The ruling and or Order of Court of Appeal offends the rule of Audi Alteram Partem especially so that the appellant’s Counsel’s application for adjournment to enable him file a Counter Affidavit was not considered, still less entertained by the learned Justices of the Court of Appeal.

5. The judgment, ruling and or order of the Court of Appeal is against the weight of evidence on record.” Appellant’s application to the Court below for leave to appeal to this Court was rejected. In the affidavit in support of that application appellant deposed to the following facts in paragraphs, 5, 6, 7, 8, 15, 16, 18, 19, 20, 21, 22, 23, 24, “5.  Immediately after the appeal was filed on 31st May, 1982, I diligently pursued it at the High court registry, Benin city until late 1985. The Registry always complained that there was no stationery for the compilation of the record of proceedings.

6. When the record of proceedings were eventually compiled, my counsel in this case was sick hence he did not collect the record of proceedings until 12/10/87.

7. After collecting the record of proceedings on 21/10/87, my said Counsel promptly prepared my brief of argument.

8.  In the mean time and unknown to him that my Counsel and I have taken steps, the respondent herein filed a motion praying the Court of Appeal to dismiss my appeal for an alleged lack of diligent prosecution.

15. I am informed by my Counsel in this case Felix U Azeta, Esq. and I verily believe him, that the said motion papers referred to in the preceding paragraph were served on his clerk on the 2nd day of November, 1987 when he was away to the High Court Ubiaja, Bendel.


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