CHIEF E.O.I. OJUMO & ORS. V. MOMODU ADALEMO & ORS.
(2010)LCN/4021(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 27th day of October, 2010
CA/I/263/2008
RATIO
EFFECT OF A DISMISSAL OF AN APPEAL UNDER ORDER 17 RULE 10 OF THE COURT OF APPEAR RULES, 2007 ON THE POWER OF THE COURT OF APPEAL TO REVIVE THE APPEAL BY RE-ENTERING OR RELISTING SAME
The law is, once an appeal is dismissed under order 17 Rule 10 of the court of Appear Rules, 2007 , this court does not have the power to revive the appeal by re-entering or relisting same. See:- Kraus Thompson Organization vs. NIPSS (supra) and Babayagi vs. Alhaji Bida (1998) 12 NWLR (Part 538) 367. PER SIDI DAUDA BAGE, J.C.A.
WHETHER A COURT CAN ONLY ACT ON WHAT IS PRESENTED BEFORE IT
It is trite that, the Court can only act on what is before it. The Court is not allowed to go into a voyage of discovery. A Court of law is a Court of cold fact and law; and not a Court of fiction. Fiction belongs to “Alice in Wonderland” as it is always said. PER SIDI DAUDA BAGE, J.C.A.
ABUSE OF COURT PROCESS : ATTITUDE OF THE COURT TOWARDS AN ABUSE OF COURT PROCESS
In the present circumstances, going into the merits or otherwise of this application would be tolerating a flagrant abuse of Court process. In the case of Arubo vs. Aiyeleri (1993) 3 NWLR (Part 280) 126, the abuse of Court process was defined thus:- “Abuse of Court process simply means that the process of the Court has not been used bonafide and properly. It also connotes the employment of judicial process by a party in improper use to the irritation and annoyance of his opponent and efficient and effective administration of justice”. It is certainly not proper and would irritate and annoy the Respondents if this Court goes ahead to determine the merit of this application when the Applicants’ Motion to file additional grounds bears a different appeal number from the appeal dismissed by this Court on the 21/05/2009. I am duty bound to discourage an abuse of the process of this Court. See:- the cases of Expo Ltd. vs. Pafab Enterprises Ltd. (19990 2 NWLR (Part 951) 449. Adesanoye vs. Adewole (2000) 11 WRN 138; 9 NWLR (Part 671); Saraki vs. Kotoye 91992) 9 NWLR (Part 264) 156; Okorodudu vs. Okoromadu (1977) 3 S.C. 21 and Mohammed vs. Husseini (1998) 14 NWLR (Part 583) 108. In the circumstance, I am of the view and satisfied that the present application to set aside the Ruling of the Court delivered on the 21/05/2009 in Appeal No. CA/1/263/2008 is an abuse of process of the court and this court has the power and is duty bound to dismiss the application. see:- Akpunonu vs. Bakaett This Court has the inherent power to prevent an abuse of its process and I so hold. PER SIDI DAUDA BAGE, J.C.A.
JUSTICES
STANLEY SHENKO ALAGOA Justice of The Court of Appeal of Nigeria
SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria
MODUPE FASANMI Justice of The Court of Appeal of Nigeria
Between
CHIEF E.O.I. OJUMO & ORS. Appellant(s)
AND
MOMODU ADALEMO & ORS. Respondent(s)
SIDI DAUDA BAGE, J.C.A.: (Delivering the Leading Judgment): In a Motion on Notice dated 18th September, 2010 and filed on the 21st September, 2010, the Applicants prayed for the following reliefs:-
(a) An order granting leave to the Appellants/Applicants herein to apply for re-listing of this appeal which was dismissed by this Honourable Court on the 21st May, 2009 for want of diligent prosecution.
(b) An Order re-listing this appeal which was dismissed by this Honourable Court on the 21st May, 2009 for want of diligent prosecution.
And for such further order(s) as this Honourable Court may deem fit to make in the circumstances.
The application was supported by a sixteen (16) paragraphs affidavit deposed by Raji Anis Idowu, the 3rd Appellant/Applicant. Attached to the supporting affidavit are:-
(1) Motion on Notice for Leave to the Appellants/Applicants to file more grounds of appeal dated 13/05/2009 and filed on the 14/05/2009, marked as Exhibit ‘A’.
(2) The treasury receipt for filing of Exhibit ‘A’ with receipt No. 2007751138, dated 14/05/2009, marked as Exhibit ‘B’. (3) Hearing Notice served on the 12/05/2009, marked as Exhibit ‘C’.
(4) Enrolled Order of this Court dismissing the Appellants/Applicants’ appeal, marked as Exhibit ‘D’.
(5) The proposed Appellants’ Brief of Argument, marked as Exhibit ‘E’.
While arguing the application, the learned Counsel to the Appellants/applicants, T. G. Adeosun Esquire, submitted that, the application was brought pursuant to Order 8 Rule 20 of the Court of Appeal Rules, 2007 and under the Inherent Jurisdiction of this Court. The learned Applicants’ Counsel blamed the dismissal of the appeal on the failure of the former Counsel to the Applicants, M .A. Zakariyau who failed to file a Notice informing the Registrar of this Court that, he was debriefed by the Applicants on this appeal under Order 2 Rule 5, Court of Appeal Rules, 2007; and consequently, Hearing Notice was served on him, which he kept away from the Appellants. The Appellants were therefore not aware that the appeal was slated for dismissal.
Learned Counsel to the Applicants further argued that, Exhibit ‘A’ which is a Motion on Notice dated 13/05/2009 was pending before this Court, a week preceeding when the appeal was dismissed. Exhibit ‘B’ is the receipt of filing fees of Exhibit ‘A’. Exhibit ‘C’ is the Hearing Notice on Zakariyau. Exhibit ‘D’ is the proceeding when the appeal was dismissed, while Exhibit ‘E’ is the proposed Brief of Argument of the Appellants/Applicants. Learned Counsel to the Applicants further submitted that, under Order 8 Rule 20 of the Rules of this Court, the Court is empowered to grant this application when the Applicants have not been informed of the date of the dismissal. See: Peak Merchant Bank Ltd. vs, Venture Trust Ltd, (2007) 3 NWLR (Part 7027) 339 At 352 C-D. Also, The Young Shall Grow Motors Ltd. vs. Okwonkwo (2010) All FWLR (Part 528) 803 At 877 Paragraphs C-E. Learned Counsel to the Applicants finally urged this Court to grant this application in the interest of justice.
Learned Cornel to the 1st and 2nd Respondents, Olumide Akinbinu, on points of law argued that, this Court lacks the jurisdiction to relist this appeal. By Exhibit ‘D’, this appeal was dismissed under Order 77 Rule 10 of the Court of Appeal Rules, 2007. No re-listing of appeal for failure to file Briefs. Also, see:- Order 6 Rule 10 of the Court of Appeal Rules, 2002. Several judicial interpretations have been given on this kind of application. See:- Kraus Thompson Organisation vs. NIPSS (2004) All FWLR (Part 218) 797 at 808 Paragraph D.
1st and 2nd Respondents’ Counsel further submitted that, the Applicants brought their application under Order 8 Rule 20 of the Court of Appeal Rules, 2007 which is failure to compile records, not the failure to file Briefs. This Court is urged to refuse the Applicants’ application.
Learned counsel to the 3rd and 4th Respondents, S.A. Popoola said, he aligned himself with the submissions of the learned Counsel to the 1st and 2nd Respondents. On the dismissal under order 17 Rule 10 Court of Appeal Rules, 2007, see- NEPA vs. Egboigbe (2004) FWLR (Part 789) 7120 at 7729. Even where the Court makes an error, the Court cannot entertain an application for relisting. See: – Okon vs. Ekanem (2003) All FWLR (Part 736) 987 at 7002. It is the party’s duty to inform the Court of its change of Counsel. The Appellants failed to do so; and this Court should dismiss the application.
By way of a reply on points of law, learned Counsel to the Appellants, Adeosun stated that, all authorities cited by both Counsel are distinguishable from the present situation. The present situation is that, the circumstances are similar to Order 2 Rule 5 Court of Appeal Rules 2007, for a debriefed Counsel is to inform the Registrar and not the party.
In consideration of the submissions made by the parties, and from the facts deposed to by the Appellants/Applicants’ Counsel in paragraph 7 of their affidavit which accompanied their Motion on Notice, they admitted that, the Appellants’ Brief of Argument was not filed within the time allowed by the rules of this Court.
Paragraph 7 of the Applicants’ affidavit states:-
“That during the pendency of the aforesaid Motion and while awaiting date/ our former Counsel in person of Mr. M. A. Zakariyau, was served with the Hearing Notice in this appeal by this Honourable Court indicating the position of this Honourable Court to strike out the appeal on the 21st May, 2009.”
From the record of this Court, there was a proof of service on the Appellants. They were served on the 12/05.2009 against the hearing of the 21/05/2009. On the 21/05/2009 when this case was called up for hearing, the Appellants were absent and not represented by Counsel. Apart from the record of Appeal, there is nothing else in the file of the Appellants. Mr. Akinbinu, learned Counsel to 1st and 2nd Respondents urged the Court to diligent prosecution under Order 17 Rule 10 Court of Appeal Rules, 2007. The only reason given by the learned Counsel to the Appellants was the Hearing Notice caused on the former Counsel Zakariyau of the Court’s intention to dismiss the appeal on the 21/05/29 for failure on the part of Appellants to file their Brief of Argument. As a Court of law, this Court is strictly guided by its Rules.
Order 17 Rule 2 of the court of Appeal Rules, 2007 provides:-
“The Appellant should within forty-five days of the receipt of the Record of Appear from the court below file in the Court, a written Brief being a, succinct statement of his argument in appeal”.
No doubt at the time the court had caused the Hearing Notice on the former counsel to the Appellants intending to dismiss the appear, on the 21/05/2009, the Appellants were clearly out of time allowed by the Rules to file their Brief. The Rules of court imposes a duty on the Appellant, the word, “shall” is used which connotes mandate. The appeal was dismissed under order 77 Rule 10 of this court, 2007 for failure to fife Appellants/Applicants’ Brief of Argument. This court cannot reverse the order of dismissal by setting aside the order this court made on the 21/05/2009. No doubt, the order/decision of the 21/05/2009 was a definite and final decision. What the Applicants now seek is for this court to sit on appeal over its decision of 21/5/2009 dismissing the appeal for want of diligent prosecution, this we cannot do. The law is, once an appeal is dismissed under order 17 Rule 10 of the court of Appear Rules, 2007 , this court does not have the power to revive the appeal by re-entering or relisting same. See:- Kraus Thompson Organization vs. NIPSS (supra) and Babayagi vs. Alhaji Bida (1998) 12 NWLR (Part 538) 367. In the present case, the situation is even worse in that this Court had become functus officio to entertain the present application.
Let me state here that, this Court can only review or set aside a valid Order given by it only in accordance with the provisions of order 18 Rule 4 of the Court of Appeal Rules, 2007, which provides:-
“The Court shall not review any judgment once given and delivered by it, save to correct any clerical mistake or some error arising from any accidental slip or omission or to vary the judgment or order so as to give effect to its meaning or intention. A judgment or order shall not be varied when it correctly represents what the Court decided nor shall the operative substantive part of it be varied and a different form substituted.
This Court consistently maintained the fact that, the decision of the 21/05/2009 cannot be revisited in its earlier decisions. See:- Our earlier Rulings in Professor Emmanuel O. Akinboade & Another vs. Otunba Christopher Adebayo Alao Akala & Another – CA/EPT/GOV/55/08 (unreported) delivered on the 14th December, 2009. Also see: Omoleke Ogunsanya vs. Alhaji Akande – CA/1/217/2008 (unreported) delivered on the 24th February, 2010, Mrs. Folake Olaleye vs. The Governor of Oyo State & Another – CA/I/M.43/2007 (unreported) delivered on the 21st of April, 2010.
The learned counsel to the Applicants, Mr. Adeosun, argued that, the decision of this court dismissing this appeal on the 21/05/2009 was made during the pendency of a Motion on Notice he had earlier filed, dated 13/05/2009 and filed on the 14/05/2009 which was in the court’s file when the appeal was dismissed. The said Motion is attached to his application and marked as Exhibit ‘A’ while the receipt for the filing of Exhibit ‘A’ is also attached and marked as Exhibit ‘B’. From Exhibit ‘B’, the receipt for filing Exhibit ‘A’ with receipt No. Z007751138, it was filed by the Applicants in respect of Appeal No. CA/I/203/2008. While the appeal that was dismissed on 21/05/2009 was in respect of suit No. CA/I/263/2008, the Motion dated the 13/05/2009, filed on 14/05/2009 was never brought before the Court on the 21/05/2009 or an earlier date. The Motion did not even by error, found its way into the file of the Court in Suit No. CA/I/263/2008 which was dismissed by the court on that date. It is trite that, the Court can only act on what is before it. The Court is not allowed to go into a voyage of discovery. A Court of law is a Court of cold fact and law; and not a Court of fiction. Fiction belongs to “Alice in Wonderland” as it is always said.
In the present circumstances, going into the merits or otherwise of this application would be tolerating a flagrant abuse of Court process. In the case of Arubo vs. Aiyeleri (1993) 3 NWLR (Part 280) 126, the abuse of Court process was defined thus:-
“Abuse of Court process simply means that the process of the Court has not been used bonafide and properly. It also connotes the employment of judicial process by a party in improper use to the irritation and annoyance of his opponent and efficient and effective administration of justice”.
It is certainly not proper and would irritate and annoy the Respondents if this Court goes ahead to determine the merit of this application when the Applicants’ Motion to file additional grounds bears a different appeal number from the appeal dismissed by this Court on the 21/05/2009. I am duty bound to discourage an abuse of the process of this Court. See:- the cases of Expo Ltd. vs. Pafab Enterprises Ltd. (19990 2 NWLR (Part 951) 449. Adesanoye vs. Adewole (2000) 11 WRN 138; 9 NWLR (Part 671); Saraki vs. Kotoye 91992) 9 NWLR (Part 264) 156; Okorodudu vs. Okoromadu (1977) 3 S.C. 21 and Mohammed vs. Husseini (1998) 14 NWLR (Part 583) 108.
In the circumstance, I am of the view and satisfied that the present application to set aside the Ruling of the Court delivered on the 21/05/2009 in Appeal No. CA/1/263/2008 is an abuse of process of the court and this court has the power and is duty bound to dismiss the application. see:- Akpunonu vs. Bakaett This Court has the inherent power to prevent an abuse of its process and I so hold.
In the final analysis, I hold that the application is an abuse of Court process, same is hereby dismissed. I award cost of N10,000.00 to the Respondents.
STANLEY SHENKO ALAGOA, J.C.A.: I have had the privilege of reading now the Ruling just delivered by my learned brother S. D. Bage, J.C.A. I agree that the application is an abuse of Court process and should be dismissed. Same is dismissed by me. I abide by the order of costs awarded in the lead Ruling.
MODUPE FASANMI, J.C.A.: I have had the opportunity of reading before now the lead ruling of my learned brother S.D. Bage J.C.A. I agree with the reasonings and conclusions reached therein. The application is an abuse of court process and has been rightly dismissed. Same is accordingly dismissed by me. I abide by the order of costs awarded.
Appearances
T. G. Adeosun;
O. A. PiusFor Appellant
AND
Olumide Akinbinu
S. A. PopoolaFor Respondent
