SUNDAY OLORUNFEMI & ANOR v. CHIEF ISAAC TAYE ADEROGBA (2014)

SUNDAY OLORUNFEMI & ANOR v. CHIEF ISAAC TAYE ADEROGBA

(2014)LCN/7096(CA)

In The Court of Appeal of Nigeria

On Friday, the 4th day of April, 2014

CA/B/276M/2008 (R)

JUSTICES

SOTONYE DENTON WEST Justice of The Court of Appeal of Nigeria

MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria

CORDELIA IFEOMA JOMBO-OFO Justice of The Court of Appeal of Nigeria

Between

1. SUNDAY OLORUNFEMI
2. OTUBUNMI CYRIL OLORUNFEMI
(For themselves and on behalf of Johnson Olorunfemi family) Appellant(s)

AND

CHIEF ISAAC TAYE ADEROGBA
(For himself and on behalf of the Loduti and Ajaka family) Respondent(s)

RATIO

THE OPTIONS AVAILABLE TO AN APPLICANT UNDER ORDER 11 RULES 1,2,3, AND 4 OF THE COURT OF APPEAL RULES 2011

Order 11 Rules 1, 2, 3, and 4 of the Court of Appeal Rules 2011 read as follows:
RULE 1
An Appellant may at any time before the appeal is called on for hearing serve on the parties to the appeal and file with the Registrar, a notice to the effect that he does not intend to prosecute the appeal any further.
RULE 2
If all parties to the Appeal consent to the withdrawal of the Appeal without an order of the court, the Appellant may file in the Registry the document or documents signifying such consent and signed by the parties or by their Legal Representatives and the appeal shall thereupon be deemed to have been withdrawn and shall be struck-out of the list of appeals by the Registrar and in such event any sum deposited against costs shall be paid out to the Appellant.
RULE 3
The withdrawal of an appeal with the consent of the parties under Rule 2 of this order shall be a bar to further proceedings on application made by the respondent under order 9.
RULE 4
An Appeal which has been withdrawn under this order, whether with or without an order of the Court shall be deemed to have been dismissed.

After the order of this Honorable Court per Ngwuta JCA of 01/02/2011, there are only two options opened to the Applicants. The first is to pray for the setting aside of the order and the second is to appeal against the order.
This Honorable Court cannot now ignore its order and order a relisting of an appeal that had been dismissed in law. See, Majekodunmi v. Wapco Ltd. (1992) NWLR (Pt.219) 564 at 577. Ezeomo V. A.G Bendel State (1985) 4 NWLR (Pt.36) 448 at 471, Adewunmi V. Plastex LTD. (1986) 3 NWLR (Pt.32) 767. PER OWOADE, J.C.A.

MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Lead Ruling): By a motion on notice dated 20/3/2013 and filed on 22/3/2013, the Applicants prayed this Honourable Court for:
1. An extension of time within which to apply for an order restoring this suit on the cause list.
2. An order restoring this suit on the cause list which was struck out on 29/4/2010.
The grounds on which the application was brought are:
1. That the appeal was struck out on 29/4/2010
2. The Counsel formerly handling the matter did not attend to the matter diligently despite being paid his professional fee.
3. The Counsel did not inform the applicants that the matter had been struck out since 2010 yet collected fee from the applicants up till 2012.
4. The applicants were unaware of the position of their case until a notice of preliminary objection to which was attached the order of 29/4/2010 was served on them by the respondent.
The Application was supported by a 16 paragraph affidavit with two (2) Annexures Exhibits A and B. Also, a further and Better affidavit of seven (7) paragraphs with two other annexures sworn to by one Aransiola Samuel Adebayo on 6/11/13 and filed on the same day was relied upon by the Applicants.
The Respondent on the other hand filed a counter – Affidavit sworn to by one Damilola Titilola on 21/10/13.
Written addresses were ordered, filed and adopted by the respective Counsel to the parties. In his written address filed on 6/11/13, Learned Counsel for the Appellants submitted two issues for determination. They are:
a. Whether or not the application of the appellants/applicants can be entertained and granted by this Honourable Court.
b. Whether the sin of Counsel can be visited on the appellants/applicants.

He submitted that the appellants/applicants application for re-listing their appeal back to the cause list is predicated on four grounds as contained on the motion paper dated 20/3/2013 and filed on 22/3/2013. Learned Counsel submitted that the right of appeal is a constitutional right as guaranteed by sections 242 to 243 of the 1999 constitution (as amended) and that the provision of that constitution supersedes any rules of court.
He submitted that it is the constitution that empowers the court to have rules of procedure of court in order to have smooth administration of justice and that it is not for rules of court to be a cloy in the wheel of justice.
He referred to the case of Famfa Oil Limited V. A.G. Federation (2003) 112 LRCN 2127 at 2137.

Learned Counsel argued that by virtue of order 8, rule 20 of the Court of Appeal Rules 2011, the court is empowered to re-list the appeal of the appellants/applicants back to the court cause list.

That the appeal of the appellants/applicants was struck out on the 29th day of April 2010 without the Counsel informing the appellants/applications of their position before the court. He submitted further that exhibit “B” and “B6” in support of the appellants/applicants application clearly shows that Mr. J. I. Adeyanju of Counsel collected professional fees up till 30th day of July 2012 without taking any legal step in respect of his professional duties owed to his client.

He submitted that the notice of preliminary objection dated 10th day of September, 2012 and filed on the 16th day of October, 2012 clearly shows that the respondent’s Counsel is fully aware that this appeal had been struck out from the cause list of this honourable Court on 29th day of April, 2010.

He argued that once a matter is struck out from the cause list it cannot be relisted again and back to the cause list without the leave of court. That, there was/is no order as to the leave of court relisting back the already struck out appellants/applicants appeal back to the cause list before it was purportedly withdrawn on the 1st day of February 2013. He relied on the further and better affidavit of the appellants/applicants. He submitted further that before an appeal can be withdrawn from this Honorable Court, a notice of discontinuance or withdrawal must be served on the other party in conformity with order 11 rule 10 of the Court of Appeal Rules 2011. Learned Counsel submitted that there is no application for withdrawal in the instant case. And, that the effect of order 11 rule 5 of the Court of Appeal Rules 2011 is not to close permanently the door of justice against the appellants/applicants. He submitted that dismissal in the instant case is striking out.

On his issue 2, Learned Counsel for the Applicants submitted that the sin of counsel cannot be visited on litigant in that Counsel is to act within the scope of authority and brief of his client. The further and better affidavit of the appellants/applicants shows that they did not instruct, mandate or authorize the counsel to withdraw the already struck out suit. He submitted in this regard that the sin of previous counsel cannot be used to defeat the cause of justice.

Learned Counsel for the Respondent on the other hand relied on their counter-Affidavit with the record of proceedings of this Honourable Court of 1st February 2011 attached as Annexure wherein the matter of the Appellants/Applicants was withdrawn and struck out.

He argued that under the provision of order 11 Rules 1, 2, 3, and 5 of the Court of Appeal Rules 2011, an appeal withdrawn with or without consent of the parties or by filing or not filing a notice of withdrawal shall be deemed struck-out of the list of appeals by the Registrar of this Honourable Court. That, an appeal which has been withdrawn whether with or without an order of this Honourable Court shall be deemed dismissed. Learned Counsel for the Respondent submitted that in the attached record of proceedings, Exhibit A, it is abundantly clear that the Appellants withdrew their appeal with the consent of the Respondent, in 2011. Learned Counsel referred to the cases of Majekodunmi V. WAPCO LTD. (1992) NWLR (Pt.219) 564 at 577. Ezeomo V. A.G. Bendel State (1986) 4 NWLR (Pt.36) 448 at 471. Adewunmi V. Plastex Ltd. (1986) 3 NWLR (Pt.32) 767 and submitted that in the instant case, upon the withdrawal of the appeal by the appellants and the order of this honourable Court striking out the appeal, there is no plank upon which any application can be founded by the parties. Any application filed and/or responded to by any of the parties after the withdrawal of the appeal by the Appellants and with the consent of the Respondent was misconceived and goes to no issue and cannot in any way revive the Appeal withdrawn and struck-out by this Honourable court. That, the striking out order of this Honourable court amounted to a dismissal of the appeal. He urged us to strike out the Appellants Motion on Notice dated 20th March, 2013 and filed on 22nd March, 2013 as there is no longer an appeal to be restored.

Learned Counsel for the Respondent was right as a matter of law to have said that an appeal withdrawn with or without consent under the provision of order 11 Rules 1, 2, 3, and 4 of the court of Appeal Rules 2011 shall be deemed to have been dismissed. Therefore, this court cannot take any further action on its
decision of striking out of 01/02/2011 which in fact amounted to a dismissal of the appeal. Order 11 Rules 1, 2, 3, and 4 of the Court of Appeal Rules 2011 read as follows:
RULE 1
An Appellant may at any time before the appeal is called on for hearing serve on the parties to the appeal and file with the Registrar, a notice to the effect that he does not intend to prosecute the appeal any further.
RULE 2
If all parties to the Appeal consent to the withdrawal of the Appeal without an order of the court, the Appellant may file in the Registry the document or documents signifying such consent and signed by the parties or by their Legal Representatives and the appeal shall thereupon be deemed to have been withdrawn and shall be struck-out of the list of appeals by the Registrar and in such event any sum deposited against costs shall be paid out to the Appellant.
RULE 3
The withdrawal of an appeal with the consent of the parties under Rule 2 of this order shall be a bar to further proceedings on application made by the respondent under order 9.
RULE 4
An Appeal which has been withdrawn under this order, whether with or without an order of the Court shall be deemed to have been dismissed.

Clearly, therefore the application to relist is not the proper one for an appeal that had been struck out after it was withdrawn by consent of the parties. This court is functus officio by the order of 01/02/2011 and does not have any further jurisdiction on appeal No. CA/B/276M/2008. In the circumstances, the prayers in the Applicant’s motion on notice dated 20/3/13 and filed on 22/3/13 are refused and the said application is accordingly dismissed.
I make no order as to costs.

SOTONYE DENTON WEST, J.C.A.: I have had the advantage of reading in draft the judgment of my learned brother, MOJEED ADEKUNLE OWOADE, JCA. I agree with his reasoning and conclusions.
The focal point of the rules of court is to provide orderly as well as expeditious means of enforcing claims in court and settlement of disputes. Overtime the rules of court have undergone several modifications geared towards improving access to justice, reduce time and cost of litigation.
The appellants having voluntarily withdrawn their appeal with the consent of the respondent in 2011 and with the striking out of the appeal by this honourable court lacks the foundation upon which this application can be granted.
Order 11 Rules 3 of the Court of Appeal Rules, 2011 bars the respondent, also Order 11 Rule 5 views such an order as a dismissal, it says:
5 “An appeal which have been withdrawn under this rule, whether with or without an order of the court shall be deemed to have been dismissed.”
From the foregoing proviso, it is safe to say the rules of court are handmaiden of the court and should be treated as such rather than mistresses who may be courted and abandoned at will.
I abide by the lead judgment by refusing the prayers in the applicant’s motion on notice dated 20/3/13 and filed on 22/3/13 and is accordingly dismissed.

CORDELIA IFEOMA JOMBO-OFO, J.C.A.: I read before now in draft the ruling just delivered by my learned brother, OWOADE, JCA. I agree with his reasoning and conclusion reached therein.
The motion on notice dated 20th March, 2013 and filed 22nd March, 2013 seeking a relisting of appeal nos. CA/B/276M/2008 is refused and is accordingly dismissed.
I too make no order as to costs.

Appearances

Oladiran Olajide for the Appellants/Applicants.For Appellant

AND

Yinka MuyiwaFor Respondent