(1973) 2 S.C. (REPRINT) 11
EZEIGBOKENYI OBIAMALU & ORS. v. ENWELUNAM NWOSU & ORS.
In The Supreme Court of Nigeria
On Friday, the 9th day of February, 1973
Before Their Lordships
GEORGE BAPTIST AYODOLA COKERJustice of The Supreme Court of Nigeria
ATANDA FATAYI-WILLIAMSJustice of The Supreme Court of Nigeria
AYO GABRIEL IRIKEFEJustice of The Supreme Court of Nigeria
1. EZEIGBOKENYI OBIAMALU
2. NWOKONKWO IKWUNMUO
3. ANTHONY UFONDUAppellants
1. ENWELUNAM NWOSU
2. DENIS OKOYE
3. F. U. ANANWA(For themselves and on behalf of the members of Umuezeaninta Oraifitte)Respondents
G. B. A. COKER, J.S.C (Delivering the Lead Ruling): The application is by the respondents to an appeal purportedly filed by the defendants who had lost before the High Court, Onitsha, to the plaintiffs in an action in which the plaintiffs claimed a declaration of title to land, damages for trespass and perpetual injunction. The affidavit in support of the Motion discloses that judgment was entered in favour of the plaintiffs on the 11th March, 1967 in respect of all their claims; that the defendants thereafter appealed to this court by filing a Notice of Appeal and that the defendants failed to satisfy the conditions of appeal within the time limited by law. The affidavit also states that on the 5th February, 1968, the High Court, Onitsha, manifestly acting without jurisdiction, granted the defendants an extension of time within which to perfect the conditions of appeal and that in any case the defendants have not since then, and indeed until now, perfected those conditions. The defendants filed a counter-affidavit in which they stated that they had complied with the conditions of appeal since the 12th February, 1968, apparently in pursuance of the order of the High Court of the 5th February, 1968, granting them extension of time. We were also told at the hearing that on the 25th November, 1968, an order for a stay of execution was made by the High Court, Onitsha, in favour of the defendants to prosecute the appeal since most of the records which should be copied for the Supreme Court were destroyed during the recent Civil War.
The facts are not unfamiliar and as we observed earlier on, the order granting an extension of time was clearly made without jurisdiction. The position therefore is that the defendants having failed to perfect the conditions of appeal within the time allowed by the Rules and not having obtained an order for extension of time from this court, are deemed to have lost their right of appeal unless and until an order is made in their favour. We also observe that an order for stay of execution was made and as the order enures until the appeal is determined a situation is hereby created whereby in the absence of the records of appeal it is not possible to hear and determine the appeal of the defendants. The result is the paradoxical situation where the defendants who had lost in the High Court are now being better placed in the whole encounter than the plaintiffs who had indeed won the action. Manifestly, this is an unsatisfactory situation and we are not surprised that the plaintiffs have brought the present Motion asking that the appeal be struck out or otherwise disposed of.
We are satisfied that the defendants have no appeal pending in this court since they failed to comply with the conditions and have not sought or obtained an order from this court extending the time within which they should comply with the Rules. Furthermore, it is the duty of an appellant to produce before the court of Appeal the records which he seeks to challenge in that court. (See our observations in Dr. Uwechie v. Augustine Obi & Ors. SC.301/71 of the 9th February, 1973). For these reasons, the prayer of the Motion succeeds and it is ordered as prayed that the appeal filed by the defendants in this case be struck out. The respondents to this application will pay the applicants’ costs in this court at assessed at N21.
Mr. N. N AnahFor Appellant
Mr. Chike OfodileFor Respondent.