MR. JAMIU ALAWODE v. PRINCE GANIYU ABOLAJI & ANOR
(2014)LCN/7589(CA)
In The Court of Appeal of Nigeria
On Thursday, the 4th day of December, 2014
CA/IL/M.97/2014
RATIO
COURT: JURISDICTION; THE JURISDICTION OF THE COURT OF APPEAL AND WHETHER AN APPELLATE COURT HAS THE JURISDICTION TO RE-LIST THE APPEAL
The applicant in this case is by his application praying for setting aside the order dismissing the appeal for failure to file Appellant’s Brief as well as re-listing the appeal dismissed by this Court. In effect the applicant is asking us to vary the decision of this Court.
I am afraid, going by the decision of the case of OBIO VS. OSELE (1989) 1 NWLR (PT.97) 279, where is said:
“It is well settled that the exercise of appellate jurisdiction is statutory. A Court cannot exercise jurisdiction to hear an appeal unless such Jurisdiction is conferred by the Constitution or some enabling statute. Hence in the instant case the jurisdiction to relist an appeal dismissed under Order 6, Rule 10 should be found in the Rules of the Court. I have not been lucky to discover any in the rules…” per. MOHAMMED LADAN TSAMIYA, J.C.A.
JUSTICES
MOHAMMED LADAN TSAMIYA Justice of The Court of Appeal of Nigeria
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
MUSA HASSAN ALKALI Justice of The Court of Appeal of Nigeria
Between
MR. JAMIU ALAWODE
(For himself and on behalf of Agbeola community) Appellant(s)
AND
1. PRINCE GANIYU ABOLAJI
2. MR. LASISI OMO IRAWO Respondent(s)
MOHAMMED LADAN TSAMIYA, J.C.A. (Delivering the Lead Ruling): The present applicant was the defendant in Suit No.KWS/OM/11/2005 in the Kwara State High Court of Justice, Ilorin, where the learned trial Judge delivered judgment against the applicant on 12/12/2011.
Being dissatisfied with the said judgment, the applicant filed Notice of Appeal on 18/4/2013 against the said decision. On 26/2/2014 the appeal was dismissed by this Court on the application of the respondents, for want of prosecution under Order 18, Rule 10 of the Court of Appeal Rules 2011.
The applicant has now brought this application praying for the following:-
1. For an order setting aside the order of 26/2/2014 dismissing Appeal No.CA/IL/57/2013 for want of diligent prosecution.
2. For an order restoring and/or re-listing the said appeal dismissed on 26/2/2014.
The 10 paragraphs grounds of the application are:-
i. The Applicant’s counsel in person of Chief S. R. Ashaolu has been very sick for some time.
ii. While still recuperating, he managed to settle the Applicant’s Brief of Argument.
iii. That on the 26th day of February, 2014, on getting to the Court Registry of this Honourable Court to file application for extension of time within which to file the Appellant’s Brief of Argument it was discovered that the appeal has been dismissed for want of diligent prosecution.
iv. That he went to the Registry of the Court of this Honourable Court to find out what happened, and he discovered that he was alleged to have been served with hearing notice to the effect.
v. That on the 27th day of February, 2014, he formally applied for the certified True copy of the hearing notice, only to discover that wrong chambers was served.
vi. That Ashaolu & Co. is located at Offa Road, G.R.A. Ilorin, Kwara State and that has been where previous hearing notices in respect of this appeal were served.
vii. That the hearing notice in respect of which the appeal was dismissed was served on the office of Olugbenga OgidiOlu & Co., No. 38, Taiwo Road, Ilorin.
viii. The error in service is that of Registry and the registry itself admitted this.
ix. The Applicant is desirous of prosecuting this Appeal.
x. There was no formal application filed by the respondent for dismissal of Appeal No. CA/IL/57/2013 before the Appeal was dismissed.
xi. The rule of Court allows restoration or relisting of appeal regard being had to good reasons and sufficient course being shown.
xii. The court can set aside her order if found to be irregular or want of jurisdiction.
xiii. That the application is subject to your lordships discretion.
xiv. The Respondents will not be prejudiced if this application is granted.
xv. There was no service of hearing notice on counsel to the applicant against the date the appeal No.CA/IL/57/2013 was dismissed.
The application is being supported by an affidavit of 14 paragraphs.
There is no counter affidavit but a preliminary objection was filed on 23/10/2014 against the motion of the 1st respondent and the objection is being supported by a 9 paragraph affidavit as well as 2 Exhibits which are the certified true copies (C.T.C.) of the enrolled orders of this court dismissing the appeal which is marked Exhibit A’ and the other order is Exhibit ‘B’ which is the one dated 24/8/2014 striking out an earlier motion filed by the applicant for re-listing the said appeal dismissed.
Moving his motion, learned Counsel for the applicant, adopted and relied heavenly on the affidavit in support particularly paragraphs 3 – 11 thereof. He informed us that he was sick and that is why he could not file his brief of argument within the time. That, he was at this Court premises to file application for extension of time to file appellant’s brief just to be told that the appeal was dismissed. That after hearing the dismissal of the appeal he protested on the ground that hearing notice was not served on him and dismissal of the appeal under that circumstance violates the right of fair hearing. He further stated that set the time his appeal was dismissed there was no formal application filed by the Respondents. He urged this court to grant the application. In support of his argument, he cited a number of legal authorities. Responding, learned Counsel for the respondents submitted that this Court is funtus-officio to re-list the said notice of appeal dismissed for failure to file appellant’s brief. He urged this court to dismiss the appeal.
I have carefully studied the submissions of both Counsel to the parties as well as their respective affidavit evidence and the provisions of the relevant rules of this Court. In the instance case, from Exhibit ‘A’ (the enrolled Order) it is evident that the appeal was not dismissed by this Court Suo-Motu but on the application of the respondents for want of prosecution under Order 18, Rule 10 of the Court of Appeal Rules 2011.
It is important to note that the Court of Appeal Rules provide for dismissing an appeal in the following circumstances:-
1. Where there is non-compliance with conditions of appeal – SEE ORDER 8, RULE 18 OF THE COURT OF APPEAL RULES 2011.
2. When the appeal is withdrawn whether with or without an order of the court. SEE ORDER 11, RULE 5 OF THE COURT OF APPEAL RULES (Supra).
3. Where an Appellant fails to file his brief within time provided for or within the time as extended by the Court, either on the application of the respondent, or the Court may Suo-Motu, dismiss the appeal. SEE ORDER 18, RULE 10 (1) & (2) OF THE COURT OF APPEAL RULES (Supra).
In the first situation, the rules have made provision enabling re-listing the appeal so dismissed. Order 8 Rule 20 of the Court of Appeal Rules (Supra) reads:-
An Appellant whose appeal has been dismissed under this Rule may apply by notice of motion that his or the appeal be restored and any such application may be made to the Court, who may in its discretion for good and sufficient cause order that such appeal be restored upon such terms as it may think fit. (Underline mine for emphasis).
Are the provisions of Order 8, Rule 20 of the Rules of this Court, the same with that of Order 18, Rule 10(1) and (2) of the same Rules?
It appears that the question could be answered negative. Reason is that under Order 18, Rule 10(1) and (2) of the said Rules an appeal may be dismissed for want of prosecution where the appellant fails to file his brief within time. SEE GOVT OF GONGOLA STATE VS. TUKUR (NO.2) (1987) 2 NWLR (PT.56) 308. The power to dismiss the appeal in such circumstance is discretionary. But this is an exercise of judicial discretion. The Court in the instant case had before it all the essential pre-requisite enabling it to dismiss the appeal. There were no circumstances requiring the Court to do otherwise and to consider whether it should not dismiss the appeal.
Thus where respondent in his application to dismiss an appeal on the ground of the failure of the appellant to file his brief of argument, has satisfied the Court that appellant failed to do so within the stipulated time by the Rules and has also not applied for extension of time to do so and there is no explanation for his failure to comply with the Rules, the Court in that circumstance will have no alternative, but to dismiss the appeal. This is the position in this case. The Ipsissima verba of order 18, Rule (1) and (2) do not lend support to construction enabling exercise of discretion SEE ODOGWU VS. ODOGWU (1992) 7 NWLR (PT.253) p.344.
It is clear from the record of this case (Exhibit 5 attached to the original affidavit in support of the motion) that the appeal was dismissed for want of prosecution based on the respondents, application to dismiss the appeal for failure of the appellant to file Brief of Argument. The applicant in this case is by his application praying for setting aside the order dismissing the appeal for failure to file Appellant’s Brief as well as re-listing the appeal dismissed by this Court. In effect the applicant is asking us to vary the decision of this Court.
I am afraid, going by the decision of the case of OBIO VS. OSELE (1989) 1 NWLR (PT.97) 279, where is said:
“It is well settled that the exercise of appellate jurisdiction is statutory. A Court cannot exercise jurisdiction to hear an appeal unless such Jurisdiction is conferred by the Constitution or some enabling statute. Hence in the instant case the jurisdiction to relist an appeal dismissed under Order 6, Rule 10 should be found in the Rules of the Court. I have not been lucky to discover any in the rules…”
This Court, I can confidently say that it lacks jurisdiction to re-list this appeal. Reason is that there is a provision for an appeal dismissed under the first instance to be re-listed, but there is no provision in Order 18 Rule 10 enabling re-listing an appeal dismissed for failure to file the appellant’s brief of argument. Therefore an appeal dismissed on that ground is final.
In view of the foregoing, I have no hesitation in holding that a dismissal of an appeal for failure to file appellant’s brief on the authority of OLOWU VS. ABOLORE (1993) 5 NWLR (PT.293) 255 is irreversible. This application therefore lacks merit and it fails and is hereby dismissed.
CHIDI NWAOMA UWA, J.C.A.: I had the privilege of reading before now the Ruling delivered by my learned brother Mohammed Ladan Tsamiya, JCA. I agree with the decision that the application lacks merit and dismissal of same.
By way of emphasis, the applicant in the present application prayed for the following reliefs:
1. For an order setting aside the order of 26/2/2014 dismissing Appeal No.CA/IL/57/2013 for want of diligent prosecution.
2. For an order restoring and/or re-listing the said appeal dismissed on 26/2/2014.
The grounds for bringing the application were given, explaining what happened preceding the dismissal of the appeal by this court on 26/2/2014. The application has sought that we set aside the said order and relist the dismissed appeal.
The court of appeal has in its Rules provided for dismissal of an appeal in different situations.
1. Where there is non-compliance with conditions of appeal.
2. If the applicant fails to appear when his appeal is called up for hearing.
3. Where an appellant fails to file his brief of argument within time or as extended by the court.
In the first two situations the Rules made provisions for re-listing an appeal that has been dismissed, but there is no provision in order 8 enabling relisting an appeal dismissed for failure to file appellant’s brief of argument under sub rule 10. In the present case the dismissal is for failure to file the appellant’s brief after the compilation and service of the records of appeal on the appellant.
This court lacks the jurisdiction to relist same for hearing and determination as prayed in the present application. Unfortunately, there is no provision in the Court of Appeal Rules for the restoration of a dismissed appeal in such a circumstance. See, OLOWU VS. ABOLORE (1993) 5 NWLR (PT.293) 255 AT 271 PARAGRAPH A – B, PAGE 273 PARAGRAPHS F TO PAGE 278 PARAGRAPHS A – E, CHIEF IRO OGBU AND ORS VS. CHIEF OGBORU ORUM AND ANOR (1984) 4 SC 1 AND NIGERIA POSTAL AGENCY VS. ALFRED EZEKIEL IDIOHO (2013) LPELR – 20820 (CA).
For instance, where there is failure to compile and transmit records and the appeal is dismissed pursuant to the provisions of Order B Rule 18 of the Rules of this court, the Appeal could on application be restored under Order 18 Rule 20. There is no similar provision in Order 18, where an appeal is dismissed pursuant to Order 18 Rule 10 for non-filing of brief.
In the same vein, the Apex court in KRAUS THOMPSON ORGANISATION VS. NATIONAL INSTITUTE OF POLICY AND STATEGIC STUDTES (2004) 17 NWLR (PT.901) 44 AND FIRST BANK OF NIGERIA PLC VS. T. S. A. INDUSTRIS LTD. (2010) 15 NWLR (PT.1216) 247, held that an appeal dismissed for failure to file the appellant’s brief of argument at court of Appeal, cannot be restored or relisted on the cause list of the Court of Appeal, save by order of the supreme Court on appeal. See OLAIYA VS. OKEHO COMMUNITY BANK LTD (2012) LPELR – 20425 (CA).
It is clear that the situation in Order 8 Rule 20 is different and distinguishable from the situation in the present case where the case was previously dismissed for failure to file the appellant’s brief within the time prescribed by the Rules (or as extended by the court, whatever the case may be) in Order 18 Rule 10 (2) of the 2011 Rules of this court. This court lacks the jurisdiction to entertain and make the order for restoration of the order in its cause list.
The only option available to the applicant would have been to exercise his constitutional right of appeal against the order of dismissal to the Apex court, see, KRAUS THOMPSON VS. N.I.P.P.S. (2004) (SUPRA), OROBATOR VS. AMATA (1981) 5 SC 276 NWAORA VS. NWANBOKU (1985) 2 SC 86 AT 167. For these reasons and the fuller reasons in the leading Ruling, I also dismiss the application.
MUSA HASSAN ALKALI, J.C.A.: I had the privilege in reading the advance ruling of my learned brother, Mohammed Ladan Tsamiya, JCA (PJ) with which I entirely agree.
It is properly highlighted by the Court of Appeal Rules for dismissing an appeal in the following circumstances as rightly noted by His lordship M. L. Tsamiya in page 6.
(i) Where there is non-compliance with conditions of appeal. See Order 8 Rule 18 of the Court of Appeal Rules 2011.
(ii) When an appeal is withdrawn whether with or without an order of the court. See Order 11, Rule 5 of the Court of Appeal Rules 2011.
“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.”
(iii) where an appellant fails to file his brief with time provided for or within the time as extended by the court, either on the application of the respondent, or the court suo motu, dismiss the appeal. See Order 18 Rules 10 (1) and (2) of Appeal Rules 2011.
Order 18 Rule 10(1)
“Where an Appellant fails to file brief within the time provided for in rule 2 of this Order, or within the time as extended by the Court, the Respondent may apply to the Court for the appeal to be dismissed for want of prosecution. If the Respondent fails to file his brief, he will not be heard in oral argument. Where an appellant fails to file a reply brief within the time specified in Rile 5, he shall be deemed to have conceded all the new points or issues arising from the Respondent’s brief.”
Order 18 Rule 10 (2)
“Where an Appellant fails to file his brief within the time provided for in Rule 2 of this Order, or within the time as extended by the Court, the Court may suo motu dismiss the appeal for want of prosecution.”
For the above and fuller reasons properly highlighted by my learned brother, Mohammed Ladan Tsamiya, JCA (PJ), I too hold that this application therefore lacks merit and it fails and is hereby dismissed accordingly.
Appearances
Dr. Ariyoosu Oludare Akanbi with him A. O. SakaFor Appellant
AND
I. A. Adeyi for the 1st Respondent.For Respondent
