THOMAS ORJI v. THE STATE
(2019) LCN/4883(SC)
In The Supreme Court of Nigeria
On Friday, the 10th day of May, 2019
SC.710/2014
RATIO
DISMISSAL OF APPEAL: EFFECT OF A DISMISSED APPEAL
Generally, the law is trite that when an action is dismissed, unless the Rule of Court permits, such action cannot be re- opened. The dismissal is ordinarily conclusive of the matter or issues decided therein and remain so until the Judgment is set aside on appeal. See; NIGERIA AIRWAYS LTD. VS F. A. LAPITE (1990) NWLR (pt. 163) 392; (1990) 11-12 SC.60; (1990) LPELR – 1998. However, when an appeal is dismissed by a Court of Appeal, pursuant to its Rules, that decision is a final decision and the Court becomes functus officio and cannot relist or re-enter the appeal on its cause list. See; FIRST BANK OF NIGERIA PLC VS T.S.A. INDUSTRIES LTD. (2010) 15 NWLR (pt.1216) 247; (2010) 187 LRCN 1. In the same vein, by the same Rules of the Court of Appeal, an appeal may be dismissed for want of prosecution where the Appellant fails to file his Brief of Argument within time and extension of time was not granted so to do. See:AKANKE OLOWU & ORS. VS AMUDATU ABOLORE & ANOR. (1993) 5 NWLR (pt.293) 255-384; (1993) 6 SCNJ 1; (1998) LPELR 2603; SHEHU BABAYAGI VS ALHAJI NDASADU BIDA (1998) LPELR – 699; (1998) 55 LRCN 2959. PER SIDI DAUDA BAGE, J.S.C.
WHETHER A COURT CAN DEEM A BRIEF FILED IN NON-COMPLIANCE WITH THE ORDER 6 OF THE COURT OF APPEAL RULES AS NO BRIEF
In PHILIP OBIORA VS PAUL OSELE (1989) 1 NWLR (pt.97) 276; (1989) 1 SCNJ 213, this Court, per Oputa, JSC stated as follows: “…The aim of the whole exercise is to do justice between the parties by hearing their appeals on the merit in spite of any mistake made by Counsel in the preparation and prosecution of the appeals… The mere fact that a Brief filed by an Appellant did not comply with the rules made under Order 6 of the Court of Appeal Rules does not mean that the Appellant has filed no Brief. The Court cannot in these circumstances deem a Brief filed as no Brief.” PER SIDI DAUDA BAGE, J.S.C.
WHETHER THE COURT CAN DISMISS AN APPEAL ON GROUND OF INELEGANT BRIEF
In Chief THOMAS EKPEMUPOLO & ORS VS GODWIN EDREMODA & ORS. (2009) 4 SCM 63; (2009) 8 NWLR (pt. 1142) 166: (2009) LPELR 1089; (2009) 176 LRCN 235, on whether an appeal can be dismissed on ground of inelegant Brief, this Court, per Ogbuagu, JSC opined as follows: “It has been stated and restated by the two appellate Courts and held by them in a line of decided authorities that an inelegant or bad or defective Brief need not be struck out (how much more dismissing an appeal on that ground). That the Court should make the best that it can out of it.” See also CHINWEZE & 2 ORS. VS MRS. VERONICA MASI & ANOR. (1989) 1 NWLR (pt.97) 245; (1989) SCNJ 148; GBAFE VS PRINCE GBAFE & 3 ORS. (1996) 6 NWLR (pt. 455) 417; (1996) 6 SCNJ at 178; (1996) 39 LRCN 1109. Ordinarily, when an application or an appeal, as the case may be, is found to be incompetent for any reasons, it cannot be dismissed, not having proceeded to hearing on merits. At best, it will be struck out. Otherwise, the order of dismissal will be taken as a striking out order liable to be set aside, to allow for relisting or fresh application on same subject. This is the justice of the matter and fairness to the parties concerned. In the instant matter, the Court below, for whatever reason, adjudged the appeal incompetent, yet dismissed same. This order, with respect, is most inappropriate and erroneous, to say the least. There is no doubt that on the above authority, the Court below, with respect was wrong and not justified to have dismissed the appeal on the grounds stated by it. I therefore have no hesitation in stating that by dismissing the appeal for the reasons stated by the Court below, without considering the appeal on merits, the Appellant can be said to have suffered substantial injustice or a miscarriage of justice. The Appellant was not given fair hearing, as constitutionally guaranteed and he is entitled to redress. In the final analysis, this appeal deserves to be allowed in part. Not having been heard on merits, the order dismissing the appeal by the Court below is set aside. Accordingly, this appeal succeeds, in part, and it is so allowed. PER SIDI DAUDA BAGE, J.S.C.
JUSTICES
IBRAHIM TANKO MUHAMMAD Justice of The Supreme Court of Nigeria
MARY UKAEGO PETER-ODILI Justice of The Supreme Court of Nigeria
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Supreme Court of Nigeria
AMIRU SANUSI Justice of The Supreme Court of Nigeria
SIDI DAUDA BAGE Justice of The Supreme Court of Nigeria
Between
THOMAS ORJI Appellant(s)
AND
THE STATE Respondent(s)
SIDI DAUDA BAGE, J.S.C. (Delivering the Leading Judgment): This matter originated from the Chief Magistrate Court of Rivers State holden at Port-Harcourt, coram: Chief Magistrate, Igoniko Emman. The Appellant herein had been charged along with nine (9) others with offences of conduct likely to cause breach of the peace and willful damage. In his Judgment delivered on 23/02/1994, seven (7) out of the ten persons that stood trial were acquitted of the charge and they were accordingly discharged. The Appellant and two others were however each found guilty as charged and were convicted and sentenced to six (6) months imprisonment with hard labour (IMHL) with an option of fine of N250,00 for counts 2,3,4 and 5 of the charge. The three were cautioned and discharged for counts 6th, 7th, 8th and 9th of the charge.
Dissatisfied with the decision of the Chief Magistrate Court, led the Appellant and the other two convicts to appeal to the appellate jurisdiction of the High Court of Rivers State with their Notice of Appeal filed on 8/3/1994.
In its Judgment delivered on 17/7/1996, the High Court sitting as a special appeal cases Court below,
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coram: K.D. Ungbuku, the Chief Judge (of blessed memory) and C.I. Uriri, J. (as he then was) found the appeal incompetent and same was dismissed.
Further aggrieved with the High Court, led to the appeal by the Appellant and two others to the Port-Harcourt division of the Court of Appeal. In its unanimous decision handed down on 25/02/2010, the Court below found the appeal incompetent and unmeritorious. It dismissed same without costs. That dismissal has led to the instant appeal filed on 2nd June, 2014, pursuant to the order of this Court earlier obtained for extension of time to appeal against the division of the Court below.
The Appellant was one of the three Appellants at the Court below. Parties filed and exchanged Briefs of Argument, and the appeal was heard on the following processes: Amended Appellant Brief of Argument filed on 2/12/2014 but deemed properly filed and served on 21/02/2019, Respondent’s Brief of Argument filed on 19/04/2016 but deemed duly filed and served on 21/02/2019.
From the Appellant’s said amended Brief of Argument, the following two issues are distilled for the determination of this appeal.
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Issue 1
Was the lower Court right when it comes to the conclusion that the Appellant did not file a Brief of Argument, the basis on which it refused to hear the appeal on the merit and thereby visiting the sin of the Registry, who misfiled the Appellant’s Brief on the Appellant The sin of Registry issue (Ground 1).
Issue 2
Was the Lower Court not wrong to have dismissed the Appellant’s appeal without a hearing on the merits and on the ground that the Appellant from the other Appellants in the appeal before the Lower Court The dismissal without hearing on the merit issue (ground 2).
On issue one, distilled from Ground 1 of the Notice of Appeal challenging the decision of the Court below in dismissing the Appellant’s appeal based on what the Appellant considered as the manifest error of the Court below Registry, misfiling the Appellant’s Brief of Argument, the Appellant referred to page 129- 130 of the Record for the Judgment of the Court below, inter alia, Learned Counsel contended that the question that begs for answer is whether the Court below was right to have dismissed the Appellant’s appeal as it did without hearing on the merits on
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the basis that the Appellant did not file any Briefs of Argument. He answered in the negative. He submitted that the Court was patently wrong in dismissing the Appellant’s appeal on the ground that the Appellant did not file a Briefs of Argument. Learned Counsel submitted that contrary to the findings of the Court below, the Appellant filed Brief of Argument on 8th June, 1998 and on 18th October, 2010. He referred to the findings in the Judgment of the Court below for the references made by the Court to the process filed by the Appellant as a Briefs of Argument. He contended that from the said references in the Judgment of the Court below to the pages and paragraphs of the Appellant’s Briefs of Argument, the Lower Court was then in error to have held that there was no Appellant’s Brief of Argument upon which the appeal was dismissed. He contended that the said dismissal of the appeal becomes a nullity, in that there was a subsisting appeal which deserved to be heard on merit at the time the dismissal order was made by the Court below. He urged the Court to upturn and set aside the dismissal order of the Court below relying on EDE VS MBA (2011) 18 NWLR (pt. 1278) 236.
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Learned Counsel contended that, assuming without conceding that there was no Appellant’s Brief of Argument filed in the Court’s Record, he submitted that it was an omission, not caused by the Appellant but by the Registry of the Court, which either misfiled the Appellant’s Brief of Argument or did not put same in the Record of the Court.
Learned Counsel referred to the Record on pages 75-87 and 117-122 and contended that the Appellant filed a Brief of Argument on 8/6/1998 and a reply Brief of Argument on 8/10/2000, which Briefs of Argument were duly paid for by the Appellant and acknowledged by the Lower Court’s Registry. He contended that the mix-up and or confusion as regards the processes filed by the Appellant was due to the incompetence and errors of the Registry of the Court below which muddled up the processes filed by the Appellant by misfiling the Appellant’s said Briefs of Arguments. Given the above premises, Learned Counsel submitted that the situation and or circumstances which led to the dismissal of the Appellant’s appeal by the Court below passes for the sin of the Lower Court’s Registry which should not have visited on the
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Appellant. He submitted that the law is settled, that a party to proceedings should not be made to suffer for the errors of the Court Registry of officials, that is, the sin of the Court Registry or officials should not be visited on the Appellant. He relied on COOPERATIVE & COMMERCE BANK (NIG) PLC VS A.G. ANAMBRA STATE (1992) 8 NWLR (pt. 261) 528 at 561 WHICH WAS REFERRED TO IN EDE VS MBA (supra) by this Court. ANYANWOKO VS OKOYE (2010) 5 NWLR (pt. 1188) 497 AT 520; (2010) 182 LRCN 105; FIDELITY BANK PLC VS MONYE (2012) 10 NWLR (pt. 397) 1; (2012)209 LRCN 157; GENERAL ELECTRIC CO. VS AKANDE (2012) 15 NWLR (pt.1327) 593; (2012) LRCN 1.
Learned counsel submitted that the Court below lacked the required competence to dismiss the appeal for want of prosecution when indeed the Appellant had filed his Brief of Argument.
Learned Counsel further submitted that assuming without conceding that the Appellant did not file a Brief of Argument, closer examination of the Grounds of Appeal of the Appellant before the Court below discloses that the appeal has merit. He contended that the Court below ought to have satisfied itself that there was prima facie
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evidence that the appeal lacked merit before proceeding to dismiss same on the ground that the Appellant did not file a Brief of Argument. He submitted that the Court below was in error having failed to satisfy itself prima facie that the appeal lacked merit. He relied on OLOWU VS ABOLORE (1993) 5 NWLR (pt.293) 255; NNEJI VS CHUKWU (1988) 3 NWLR (pt.81) 184.
He urged the Court to resolve the issue in favour of the Appellant by allowing the appeal and set aside the dismissal of the Appellant’s appeal at the Court below,
Issue 2 The dismissal without hearing on merit.
The issue was said to have arisen from Ground 2 of the Notice of Appeal and the issue addresses a procedure adopted by the Court below, in dismissing an appeal on the ground of failure to file a Brief of Argument when the appeal was not heard on the merits. Learned Counsel submitted that, assuming without conceding that there was any blunder by the Appellant in not filing his Brief of Argument at the Court below, it was still not a sufficient reason for the Lower Court to have dismissed the appeal without hearing on the merit, as opposed to an order striking out the appeal.
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He relied on ADERIBIGBE VS ABIDOYE (2009) 10 NWLR (pt.1150) 592; (2009) 173 LRCN 60; AGBAKOBA VS INEC (2008) 18 NWLR (pt.1119) 489; NTUKIDEM VS OKO (1986) 5 NWLR (pt. 45) 909 at 931-932; DANTATA & SAWOE CONST. CO. NIG. LTD VS EGBE (1993) 4 NWLR (pt. 287) 335.
Learned Counsel contended that the issue as to whether the Appellant filed a Brief of Argument in the appeal before the Court below, the basis upon which the Appellant’s appeal was dismissed was raised, suo motu by the Court below without giving the Appellant the opportunity of addressing the Court on whether or not he had, indeed, filed a Brief of Argument. He contended that, had the Court heard from the Appellant on the issue, its attention would have been drawn to the fact that the Appellant filed his Brief of Arguments. He cited AULT & WIBORG (NIG) LTD VS NIBEL IND. LTD. (2010) 11 NWLR (pt. 1220) 486; LONGE vs FBN PLC (2010) 5 NWLR (pt. 1189) 1; (2010) 185 LRCN 33.
Learned Counsel contended that by dismissing the Appellant’s appeal without hearing on the merit as it did especially where the Appellant filed his Brief of Argument, the Court below breached the Appellant’s right to have
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his appeal fully and fairly determined. He submitted that the failure by the Court below to hear the Appellant’s appeal on the merit occasioned a great miscarriage of Justice; hence the dismissal order should be declared a nullity. He urged the Court to resolve this issue in favour of the Appellant and allow the appeal. He further urged the Court to acquit and discharge the Appellant.
From the Brief of Argument filed for the Respondent, the two issues distilled by the Appellant appeared argued together by the Respondent.
Learned Counsel referred to the contention of the Appellant that he was visited with the sin of the staff of the Registry of the Court below in dismissing the appeal, when it was the registry’s staff that misfiled the Appellant’s Brief of Argument. He submitted that the contention was misplaced as the Appellant was accorded the opportunity to present and argue his case which he did not seize. He contended that it is the duty of a party to present his case before the Court and if he fails in this regard, he cannot be heard to argue that he was denied fair hearing. He relied on CHAMI VS UBA PLC (2010) 6 NWLR (pt.1191) 474 at 497.<br< p=””
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He referred to pages 129-130 of the Records for the findings of the Court below on the way the processes were handled by the Appellant. He contended that the confusion came about because the Appellant failed to properly guide the Registry as to which of the three separate appeals was being argued, instead he proceeded as if there was just one appeal that was coming up for hearing. He contended further that the proper procedure would have been for the Appellant’s Counsel to properly make an application to Court to consolidate the hearing of the three separate appeals etc. He referred to page 123 of the Record to show that the Appellant failed to do the needful by not informing the Court below that the hearing was for the three separate appeals but proceeded as if it was only one appeal that was being argued. He relied on AKPAN VS BOB (2010) 17 NWLR (pt. 1223) 421 at 467; (2011) 193 LRCN 78. He submitted that the two issues distilled and argued are incompetent having been distilled from incompetent Grounds of Appeal hence he urged the Court to strike out the said issues.
Learned Counsel conceded that generally, the Court will not visit the sins,
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inadvertence, fault or mistake of Counsel on a litigant, but contended that there are exceptions to the rule. He relied on ERINFOLABI VS OKE (1995) 5 NWLR (pt. 395) 296 at 303; MOSHESHE GENERAL MERCHANT LTD. VS NIGERIA STEEL PRODUCTS LTD (1987) 2 NWLR (pt.55) 110.
He submitted that the appeal lacks merit and should be dismissed. He urged the Court to dismiss the appeal and affirm the Judgment of the Court below.
Having gone through the Record of this appeal, including the Notice and Grounds of Appeal, I am convinced that the main issue for the determination of this appeal, as arisen from the Grounds of Appeal could be framed as follows:
“Whether the Court below was right to have dismissed the Appellant’s appeal for want of diligent prosecution when the said appeal was not heard on the merits.”
From the Notice of Appeal filed by the Appellant in this Court, the decision complained of reads thus:
“The whole Judgment of the Court of Appeal dated 25th February, 2010 dismissing Appellant’s appeal for being incompetent.”
In the Judgment of the Court below the following findings, inter alia, were made:
“Before being called upon to attend to the Notice of Preliminary Objection of the Respondent, I shall comment briefly on the Brief of
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Argument of the Appellants settled by their Learned Counsel for the determination of the appeal. It has been observed that the Record of this appeal and indisputably, the Appellants, namely Clement Nwaoha. Thomas Orji and Kemka Chukwu, filed separate Notice of Appeal all dated 20/9/1996. Under normal circumstance the processes for the purpose of this appeal should clearly reflect the name of the Appellants. In Appellants’ Brief of Argument dated 3/6/1998 and filed on 8/6/1998, it is only the name of “Thomas Orji” that appears. In the reply Brief Learned Counsel reacting and replying the Respondent’s Brief filed on 18/10/2000, singled out “Clement Nwaha” as the Appellant and yet in another reply Brief filed on 18/10/2000 it was “Thomas Orji” who appears as the Appellant.
Further confusion ensued. In his Notice of Preliminary Objection, set out above already, the Appellant/Respondent therein is “Kemka Chukwu” for whom no Brief was filed, although he filed a Notice of Appeal.
The quagmire the parties have found themselves is
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due to the inelegant handling of this matter…
In the light of all these observations, I have made above and the lack of clear, precise, plain and unambiguous Brief of Argument by a particular Appellant in this appeal. I adjudge this appeal as most incompetent and unmeritorious and it is accordingly dismissed without costs, in the circumstance, in favour of the Respondent.”
See pages 129-131 of the Record.
As clearly shown from the above findings of the Court below and its conclusion, there is no doubt that the appeal was not considered on its merit.
Contrary to the contention of the Learned Appellant’s Counsel, the Court below did not base its decision to dismiss the appeal on failure of the Appellant to file his Brief of Argument. Indeed, it was mainly based on the inelegant way the appeal was handled by the parties. References were made to the Brief of Argument filed by the Appellant before the Court below. Therefore, the reason given for dismissing the appeal by the Court below was not for failure to file Brief of Argument. The Appellant’s Brief of Argument is on pages 75 to 88 of the Record, which was settled by the Appellant’s Counsel
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Obulor Collins N. Esq, filed 8/6/1998. While the purported Respondent’s Brief of Argument was filed on 6/10/2000 and Appellant’s Reply Brief of Argument to the Respondent’s Brief of Argument was filed on 10/11/2000. (See pages 90-122 of the Record)/ on 11/01/2010, the Court below took the appeal and Judgment was reserved to 25/2/2010 with an order for the issuance of hearing notice on the Respondent who was neither present in Court nor represented by Counsel.
Generally, the law is trite that when an action is dismissed, unless the Rule of Court permits, such action cannot be re- opened. The dismissal is ordinarily conclusive of the matter or issues decided therein and remain so until the Judgment is set aside on appeal. See; NIGERIA AIRWAYS LTD. VS F. A. LAPITE (1990) NWLR (pt. 163) 392; (1990) 11-12 SC.60; (1990) LPELR 1998.
However, when an appeal is dismissed by a Court of Appeal, pursuant to its Rules, that decision is a final decision and the Court becomes functus officio and cannot relist or re-enter the appeal on its cause list. See; FIRST BANK OF NIGERIA PLC VS T.S.A. INDUSTRIES LTD. (2010) 15 NWLR (pt.1216) 247; (2010) 187
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LRCN 1. In the same vein, by the same Rules of the Court of Appeal, an appeal may be dismissed for want of prosecution where the Appellant fails to file his Brief of Argument within time and extension of time was not granted so to do. See:AKANKE OLOWU & ORS. VS AMUDATU ABOLORE & ANOR. (1993) 5 NWLR (pt.293) 255-384; (1993) 6 SCNJ 1; (1998) LPELR 2603; SHEHU BABAYAGI VS ALHAJI NDASADU BIDA (1998) LPELR 699; (1998) 55 LRCN 2959.
As I earlier stated, there is no doubt that the Court below did not dismiss the appeal before it for failure to file Appellant’s Brief of Argument. There is also no indication that the appeal was dismissed pursuant to Order 6 Rule 10 of the Court of Appeal Rules, but due to the inelegant handling of the matter.
In PHILIP OBIORA VS PAUL OSELE (1989) 1 NWLR (pt.97) 276; (1989) 1 SCNJ 213, this Court, per Oputa, JSC stated as follows:
The aim of the whole exercise is to do justice between the parties by hearing their appeals on the merit in spite of any mistake made by Counsel in the preparation and prosecution of the appeals… The mere fact that a Brief filed by an Appellant did not comply with
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the rules made under Order 6 of the Court of Appeal Rules does not mean that the Appellant has filed no Brief. The Court cannot in these circumstances deem a Brief filed as no Brief.”
In Chief THOMAS EKPEMUPOLO & ORS VS GODWIN EDREMODA & ORS. (2009) 4 SCM 63; (2009) 8 NWLR (pt. 1142) 166: (2009) LPELR 1089; (2009) 176 LRCN 235, on whether an appeal can be dismissed on ground of inelegant Brief, this Court, per Ogbuagu, JSC opined as follows:
“It has been stated and restated by the two appellate Courts and held by them in a line of decided authorities that an inelegant or bad or defective Brief need not be struck out (how much more dismissing an appeal on that ground). That the Court should make the best that it can out of it.”
See also CHINWEZE & 2 ORS. VS MRS. VERONICA MASI & ANOR. (1989) 1 NWLR (pt.97) 245; (1989) SCNJ 148; GBAFE VS PRINCE GBAFE & 3 ORS. (1996) 6 NWLR (pt. 455) 417; (1996) 6 SCNJ at 178; (1996) 39 LRCN 1109.
Ordinarily, when an application or an appeal, as the case may be, is found to be incompetent for any reasons, it cannot be dismissed, not having proceeded to hearing on merits. At best, it will be
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struck out. Otherwise, the order of dismissal will be taken as a striking out order liable to be set aside, to allow for relisting or fresh application on same subject. This is the justice of the matter and fairness to the parties concerned.
In the instant matter, the Court below, for whatever reason, adjudged the appeal incompetent, yet dismissed same. This order, with respect, is most inappropriate and erroneous, to say the least. There is no doubt that on the above authority, the Court below, with respect was wrong and not justified to have dismissed the appeal on the grounds stated by it. I therefore have no hesitation in stating that by dismissing the appeal for the reasons stated by the Court below, without considering the appeal on merits, the Appellant can be said to have suffered substantial injustice or a miscarriage of justice. The Appellant was not given fair hearing, as constitutionally guaranteed and he is entitled to redress.
In the final analysis, this appeal deserves to be allowed in part. Not having been heard on merits, the order dismissing the appeal by the Court below is set aside.
Accordingly, this appeal succeeds, in part,
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and it is so allowed.
Appeal allowed in part.
The appeal is hereby remitted to the Court below to be heard on merit on the Briefs filed by the parties.
IBRAHIM TANKO MUHAMMAD, Ag. C.J.N.: I had the privilege of reading before now, in draft copy the judgment just delivered by my learned brother, Bage, JSC. I agree with the reasoning and conclusion arrived at by His Lordship that the appeal is allowed in part. I, too, allow the appeal.
MARY UKAEGO PETER-ODILI, J.S.C.: I agree with the judgment just delivered by my learned brother, Sidi Dauda Bage JSC and to underscore the support I have in the reasonings from which the decision emanated, I shall make some remarks.
This appeal stems from the judgment of the Court of Appeal Port Harcourt Division, or Court below or Lower Court, Coram: Suleiman Galadima, Ejembi Eko JJCA (as they then were) and Tijjani Abdullahi JCA in which the Lower Court dismissed the appellant’s appeal for being incompetent and unmeritorious on the ground that there was a lack of clear precise, plain and unambiguous brief of argument by the appeal. In short the appeal was not heard on the merit.
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The facts leading to this appeal are well captured in the lead judgment and no useful purpose would be achieved repeating them unless circumstances warrant a reference thereof.
On the 21st February, 2019 date of hearing, learned counsel for the appellant, Godwin Omoaka Esq. of counsel adopted the brief of argument filed on 2/12/2014 and deemed filed on 21/2/19. In it were raised two issues for determination which are thus: –
i. Was the lower Court right when it came to the conclusion that the appellant did not file a Brief of Argument, the basis on which it refused to hear the appeal on the merit and thereby visiting the sin of the Registry who mis-filed the appellant’s brief on the appellant The sin of the Registry Issue: (Ground 1).
ii. Was the lower Court not wrong to have dismissed the appellant’s Appeal without a hearing on the merits and on the ground that the appellant did not file a separate Brief of Argument from the other appellants in the appeal before the lower Court The Dismissal Without hearing on the Merit Issue: (Ground 2).
Learned counsel for the respondent, Osayaba Giwa-Osagie adopted the brief of
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argument filed on 19/4/2016 and deemed filed on the 21/2/19 and in it was identified a sole issue, viz: –
Whether grounds 1 and 2 of the appellant’s Notice of Appeal together with the issues formulated therefrom are incompetent and liable to be struck out.
For ease of reference, I shall utilise the issues as crafted by the appellant.
ISSUES 1 AND 2:
1. Was the Lower Court right when it came to the conclusion that the appellant did not file a brief of argument, the basis on which it refused to hear the appeal on the merit and thereby visiting the sin of the Registry who miss-filed the appellant’s brief on the appellant The sin of the Registry Issue.
2. Was the Lower Court not wrong to have dismissed the appellant’s appeal without a hearing on the merits and on the ground that the appellant did not file a separate brief of argument from the other appellants in the appeal before the lower Court The dismissal without hearing on the merit Issue.
Canvassing the position of appellant, learned counsel stated that the Court below was wrong in its approach of dismissing the appellant’s appeal on the ground that the appellant
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did not file a brief of argument, an error which was occasioned by the registry of the lower Court itself when it miss-filed the appellant’s brief of argument, That contrary to the findings of the Lower Court, the appellant had filed a brief of argument on 8th June, 1998 and on 18th October 2010 which can be seen in the judgment of the Court below. That the decision of the Court of Appeal should be upturned. He cited Ede v Mba (2011) 18 NWLR (Pt.1278) 236; Cooperative & Commerce Bank (Nig.) Plc v A. G. Anambra State (1992) 8 NWLR (Pt.261) 528 at 561; Anyanwoko v Okoye (2010) 5 NWLR (Pt.1188) 497 at 520; Fidelity Bank Plc v Monye (2012) 10 NWLR (Pt.1307) 1; General Electric Co. v Akande (2012) 16 NWLR (Pt.1327) 593 etc.
Learned counsel for the appellant contended that assuming but not conceding that there was any blunder on the part of the appellant in not filing his brief of argument, the lower Court was obligated to hearing the appeal on the merit and leaving the matter of whether or not the appeal was incompetent to the Apex Court and if not agreed upon then the merit would be considered. He referred to Aderibigbe v Abidoye (2009) 10 NWLR (Pt.1150)
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592; Agbakoba v INEC (2008) 18 NWLR (Pt.1119) 489; Ntukidem v Oko (1986) 5 NWLR (Pt.45) 911; Dantata & Sawoe Const. Co. Ltd. v Egbe (1993) 4 NWLR (Pt.287) 335; Longe v FBN (2010) 6 NWLR (Pt.1189) 1 etc.
Learned counsel for the respondent submitted that it is the duty of a party to present his case before the Court and if he fails in that regard cannot be heard to argue that he was denied fair hearing as was the case in the matter in hand. He cited Chami v UBA Plc (2010) 6 NWLR (Pt.1191) 474 at 497; Akpan v Bob (2010) 17 NWLR (Pt.1223) 42L at 467; Okeke v State (2003) 15 NWLR (Pt.842) 25 at 111; Erinfolabi v Oke (1995) 5 NWLR (pt.395) 296 at 303.
That the appellants Notice of Appeal to the Court of Appeal was incompetent as he filed a joint appeal with the two other convicted persons in clear violation of Order 55 Rule 6 (i) & (iii) of the High Court Rules on Criminal Appeals, Cap 61, Laws of Eastern Nigeria,
For a fact, what is at the base of this appeal is whether the lower Court was right to have dismissed the appellant’s appeal as it did, without hearing on the merits. On the basis that the appellant did not file a brief of
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argument. I shall recast relevant excerpts of the Ruling of the Court below shown at pages 129-130 of the Record thus: –
“It has been observed that the Record of this Appeal and indisputably, the appellant, namely, Clement Nwaoha, Thomas Orji and Kemka Chukwu, filed separate Notice of Appeal all dated 20/9/96. Under normal circumstance the processes, for the purpose of this appeal should clearly reflect the name of the appellants. In “Appellants’ Brief of argument” dated 3/6/98 and filed on 8/6/98, if it only the name of “Thomas Orji that appears. In his Reply Brief, learned counsel reacting and replying the respondent’s brief filed on 18/10/2000, singled out “Clement Nwaoha” as the appellant and yet in another Reply Brief filed on 18/10/2000 it was “Thomas Orji” who appears as the Appellant. Further confusion ensued. In his Notice of Preliminary Objection, set out above already, the appellant/respondent therein is ‘KEMKA CHUKWU” for whom no brief was filed, although he filed a Notice of Appeal”.
Coming to the conclusion, the Court below did contradicts the findings of the said Court as can be seen hereunder as reproduced: –
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- At page 3 of the lower Court’s Judgment (see page 127 of the Record), the lower Court found as a fact that the respondent “…neither formulated any issue for determination nor adopted the two issues formulated by the appellants…”
ii. In its summary point number 4 of the Preliminary Objection filed by the respondent, the lower Court made reference to “The Appellants’ first issue for determination contained in paragraphs 4.1 to 4.10 of part IV of the appellant’s brief of argument is wholly incompetent…” (See page 5 of the lower Courts Judgment – page 129 of the Records).
iii. Similarly, in its summary point number 5 of the Preliminary Objection filed by the respondent’ the lower Court made reference to “The appellants second issue for determination contained in paragraphs 6 to 5.9 of part IV of the appellant’s brief of argument is wholly incompetent…” (See page 5 of the lower Courts Judgment – page 129 of the Records).
iv. Furthermore, in its summary point number 6 of the primary objection filed by the respondent, the lower Court made reference to “Both the Notice of Appeal and the appellant’s brief of argument are incompetent,
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thus depriving this Court of the jurisdiction to entertain this appeal”.
(See page 5 of the lower Court’s Judgement -page 129 of the Record).
v. Also, the lower Court observed in its judgment under reference as follows: “…In “appellant’s Brief of Argument” dated 3/6/98 and filed on 8/6/98 it is only the name of “Thomas Orji” that appears. In his Reply Brief learned counsel reacting and replying the respondent’s brief filed on 18/10/2000, singled out “Clement Nwaoha” as the appellant and yet in another Reply Brief filed on 18/10/2000, it was “Thomas Orji” who appears as the appellant Leave was accordingly sought for extension of time, and was granted 5 months later. Purported respondent’s (sic) brief, as already observed was for “Kemka Chukwu” on whose behalf the appellant filed no brief of argument…” (See pages 6 and 7 of the lower court’s Judgment – pages 130 and 131 of the Records).
Clearly from the records the Lower Court went outside its own findings as shown in the recast parts of the judgment it delivered on the 25th February, 2010 that there was in existence a brief of argument properly filed by the appellant on 8/6/98 and a reply
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brief of argument on 18/10/2000 which briefs were duly paid for by the appellant and acknowledged by the lower Court’s Registry. Therefore the error or mix-up and the apparent none showing of the said brief that propelled that Court below to make the decision it came to was not the making of the appellant but of the Court and its Registry for which the appellant ought not to be visited by the repercussion.
The situation impels the recall to memory of what this Court said in Ede v Mba (2011) 18 NWLR (1278) 236 at 276 per Ngwuta JSC thus: –
“Appellants were in default but not only did they file a motion for extension of time to file their brief, they also filed the brief out of time and sought an order to regularize same. The dismissal of the appeal Under Order 6 Rule 3 (2) was predicated on the erroneous belief that the appellant failed to file their brief of argument within time and did not file a motion for extension of time to do so. The order was made in utter ignorance of existing facts upon which the Court could not have dismissed the appeal”.
Furthermore, the Court held as follows: –
“If an appeal is pending or there is an
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application for extension within which to file a brief of argument, if the Court makes an order of dismissal, that order is a nullity. The Court has inherent jurisdiction to set aside the judgment and declare that the appeal is still pending when a proper application is made before the Court”.
Emphasizing the point more strongly, this Court held: “If an appeal is pending or properly pending before the Supreme Court, and there exists an order of dismissal which is a nullity because it was erroneously made by the Supreme Court, the Court has inherent jurisdiction to set aside the judgment and declare that the appeal is still pending when a proper application is made before it…”
Indeed, it counters all known principles of justice and fair play to allow a litigant suffer for the mistake of the Court registry, an error the litigant and counsel were unaware of nor condoned. Once a party such as the appellant in this case has done what he is required by law to fulfil to jumpstart as action, he cannot be made to suffer or bear the punishment for the failure, blunders or omissions of the Court registry. It is reprehensible to visit that ‘sin’ of
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the registry of Court upon a hapless litigant who has nothing whatsoever to do with the internal administrative functions of the Court. See Ede v Mba (supra) 267; Cooperative & Commerce Bank (Nig.) Plc v A.G. Anambra State (1992) 8 NWLR (Pt.261) 528 at 561; Anyanwoko v Okoye (2012) 5 NWLR (Pt.1188) 497 at 520; Fidelity Bank Plc v Monye (2012) 10 NWLR (Pt.1307) 1; General Electric Co. v Akande (2012) 16 NWLR (Pt.1327) 593, Obiora v Osele (1989) 1 NWLR (Pt.97) 279.
It is to be noted that though the lower Court in the exercise of its discretion has the power to dismiss an appeal on the basis of non filing of a brief of argument of the appellant, the Court is duty bound before that order of dismissal to satisfy itself based on the documents before it firstly that the appeal lacked merit. This is sequel to the attitude currently of the Court when faced with a possible determining of an appeal in limine like a want of prosecution so as to endow that dismissal to be deemed one on the merit. SeeOlowu v Abolore (1993) 5 NWLR (Pt.293) 255; Nneji v Chukwu (1988) 3 NWLR (Pt.81) 184.
Again to be said on the order of the Court for the failure of appellant
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to file a brief of argument as stated by the lower Court. In that the Court below erred since assuming the brief of the appellant was not filed the order ought to be a striking out of the appeal. See Aderibigbe v Abidoye (2009) 10 NWLR (Pt.1150) 592; Agbakoba v INEC (2008) 18 NWLR (Pt.1119) 489.
The principle governing the approach of a striking out instead of a dismissal when an infraction occurs such as the non filing of a brief of argument in an appeal is to ensure that a complainant is not hastily shut out without giving him a platform to ventilate his grievance whereby the matter would be heard on the merit after the Court would have a later date to heard the complaint. This is in line with the fundamental and elementary principle of the administration of justice which stipulate that whenever it is possible to determine a case on its merits the Court should not be seduced into the temptation of determining the matter in a hurry in limine without a hearing of the complaint because of the delay which has arisen from a temporary inability of the appellant to prosecute his appeal.
The interest of justice demands the exercise of caution in
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the handling of such matters. See Ntukidem v Oko (1986) 5 NWLR (Pt.45) 911; Dantata & Sawoe Construction Co. (Nig.) Ltd v Egbe (1993) 4 NWLR (Pt.287) 335.
The circumstances of the case in hand is all the grave since the issue of the non filing of the appellant’s brief of argument was raised by the lower Court itself on its own and no opportunity given to the appellant to address the Court on the point. The Supreme Court and in fact other appellate or lower Courts have made a sing song if I may dare to use the phrase to deplore the utilisation of an issue raised suo motu by the Court to reach a decision without hearing from the parties or just the party that would be jeopardised by the use of that issue to determine the case. Such a decision can only stand if no miscarriage of justice has been occasioned but where a miscarriage of justice is the result then the decision must be jettisoned. I shall have recourse to some authorities in aid
“Where a point has not been raised by a respondent, an appellate Court will not feel comfortable to strike out and thus terminate an appeal upon a ground raised suo motu by the Court, and without affording the
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parties, especially the appellant, the opportunity to be heard on the point. (Emphasis supplied).
Similarly, in Longe v FBN Plc (2010) 6 NWLR (Pt.1189) 1, this Court reiterated this time-tested position of the law in the following words: “Courts of law must refrain from raising suo motu issues upon which their decisions or judgment would turn. The rationale for the approach is not difficult to understand. It is an inseparable adjunct of the concept of fair hearing”.
This Honourable Court speaking in condemnation of this approach in Longe v FBN Plc (supra) held as follows: –
“Under Section 36 of the 1999 Constitution of Nigeria, an appellant is entitled to have his appeal fully and fairly determined. The hearing of an appeal cannot be regarded as full and fair if the brief filed by one party to the appeal is not considered… Even if a brief contains no more than arguments on the applicable facts and the law, the failure to consider the brief filed by one of the parties is tantamount to refusal to hear the appeal fully”.
In a similar way, this Honourable Court while considering the fundamental nature of a party’s right to fair hearing
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in the case of FBN Plc v TSA Ind. Ltd. (2010) 15 NWLR (Pt.1216) 247, held thus:-
“A citizen’s right to an opportunity to be heard before a decision is made against him in a suit to which he is a party, is of fundamental and constitutional nature that ought not to be taken from him simply because of the procedural error of his counsel, his opponent or the Court’s registry; particularly when the error does not fundamentally affect the opposing side”.
The Supreme Court in Dingyadi v INEC (No.1) (2010) 18 NWLR (Pt.1224) 1, held as follows: –
“The denial of a fair hearing is a breach of one of the rules of natural justice, that is, the requirement that a party must be given a fair hearing. The consequence of a breach of the rule of natural justice of fair hearing is that the proceeding in the case is null and void. Thus, any decision of a Court arrived at in violation of the fundamental rights of fair hearing of a party against whom it is made cannot be a valid decision and should be declared a nullity”.
See also Okafor v A. G. Anambra State (1991) 6 NWLR (Pt.200) 659.
It is to be said that a miscarriage of justice was visited upon the
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appellant by the procedure adopted by the Court below, firstly having the appellant punished for the error or mistake of the Court registry, secondly dismissing the appeal on the merit when no hearing took place on the merit and thirdly raising the point of the none filing of the appellant’s brief of argument without affording him the opportunity of being heard. From all fronts the appellant was wrongly damned. This was the same presentation as in the sister case of the current matter under discourse which is the case of Clement Nwaoha v COP (2018) 10 NWLR (Pt.1628) 568, the appellant was co-accused of Clement Nwaoha at the trial High Court before the appeals that brought about Clement Nwaoha v COP (supra) and the present one. This Court had no difficulty in reaching the decision that the appellant, Nwaoha had a raw deal just as the present one by having his appeal dismissed at the Court below and so the Apex Court sent it back to the Court of Appeal for retrial on the merit. That is the way to go in the case at hand.
There is merit in this appeal as the issues are resolved in favour of the appellant.
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Appeal allowed.
I abide by the consequential order made in leading judgment.
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.: This appeal is on all fours with Appeal No. SC 709/2014: Kemka Chukwu Vs The State in which judgment was delivered this morning.
The two appeals and Nwaoha Vs C.O.P (2018) 10 NWLR (Pt. 1628) 568, delivered on 13/4/2018, arose from the same judgment of the Court of Appeal, Port Harcourt Division delivered on 25/2/2010. I adopt my reasoning in SC.709/2014: Kemka Chukwu Vs The State in allowing the appeal in part on the ground that the Court below erred in dismissing the appellant’s appeal without a hearing on the merits on the basis of purported lapses or inelegant handling of the appellant’s brief which was an issue raised suo motu by the Court, without inviting the parties to address it on same.
I agree with and adopt the more detailed reasoning of my learned brother, SIDI DAUDA BAGE, JSC in the lead judgment just delivered in allowing the appeal in part and remitting it to the lower Court to be heard and determined on the briefs filed by the parties.
Appeal allowed in part.
AMIRU SANUSI, J.S.C.: Having read before
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now the Judgment just delivered by my learned brother Sidi Dauda Bage JSC, I find myself in accord with the reasonings and conclusion reached by my lord that this appeal has substance. It is partially allowed by me. I abide by the consequential order made for the remittance of the appeal to the Court below to hear the appeal on the merit.
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Appearances:
Godwin Omeaka with him, A. Ushiadi Haliru Garuba, Esq. For Appellant(s)
Giwa Osegie with him, Micheal Dedon lkechukwu Odozo For Respondent(s)
Appearances
Godwin Omeaka with him, A. Ushiadi Haliru Garuba, Esq. For Appellant
AND
Giwa Osegie with him, Micheal Dedon lkechukwu Odozo For Respondent
