AFRO CONTINENTAL INSURANCE CORPORATION LIMITED & ORS v. NIGERIA DEPOSIT INSURANCE CORPORATION (2015)

AFRO CONTINENTAL INSURANCE CORPORATION LIMITED & ORS v. NIGERIA DEPOSIT INSURANCE CORPORATION

(2015)LCN/7901(CA)

In The Court of Appeal of Nigeria

On Monday, the 15th day of June, 2015

CA/L/42/2003(R)

RATIO

APPEAL: APPLICATION FOR RESTORATION OF AN APPEAL: WHETHER IT FALLS UNDER THE DISCRETION OF THE COURT WHETHER TO GRANT THE APPLICATION TO RESTORE THE APPEAL AND WHAT THE COURT MUST CONSIDER IN GRANTING THE APPLICATION

In resolving the issue at stake, I bear in mind that in application for restoration of an appeal dismissed pursuant to Order 8 of the Court of Appeal Rules 2007 (which is im pari material with the 2011 Rules) this court is guided by the provision of Rule 20 thereof. Order 8 Rule 20 states:
“An appellant whose appeal has been dismissed under this rule may apply by the notice of motion that this appeal be restored and by any such application may be made to the court, which may in its discretion for good and sufficient cause order that such appeal be restored upon as it may think fit”
Clearly, what is required under above Rule where an appeal has been dismissed under Order 8 is that upon application by notice of motion by the Appellant, it falls within the discretion of this court whether to grant the application of the Applicant to restore the appeal. The only consideration contained therein is “good and sufficient cause”. See A.I.B LTD v. NWORAH & SONS CO. LTD [2001] 18 NWLR (Pt. 744) 1.
In IKENTA BEST NIG. LTD v. A-G RIVERS STATE (2008) 2 SCNJ 152; (2008) 2-3 (Pt. 1) 28; [2008] 6 NWLR (Pt. 1084) 612 at 648, TOBI JSC, explained quite eruditely what “good and substantial causes” are thus:
“The reasons must be good. In other words, the reasons must possess the quality that is satisfactory, favourable, useful or suitable to the application. The reasons must not be bad in the sense that they are unacceptable. Substantial reasons are essential, material and important reasons. Reasons which are peripheral or dance around the periphery strangely cannot suffice. The pendulum should weigh in favour of granting and not just enough to balance the weight or on an even kneel”.
See also ANPP v. ALBISHIR (2010) 8 NWLR (Pt. 1198) 118; PRUDENT BANK PLC & ORS v. ABDULMALIK OBADAKI (2010) LPELR-9200 (CA). Therefore the good and substantial reasons offered by the Applicant must be credible, convincing cogent which explains why the appeal should be restored. To this extent, self induced, flimsy or tenuous reasons cannot amount to the good and substantial cause prescribed in Order 8 Rule 20 of the Court of Appeal Rules 2011. per. ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.

PRACTICE AND PROCEDURE: THE EXCEPTION THAT IT IS NOT RIGHT TO VISIT THE PARTIES WITH THE PUNISHMENT ARISING OUT OF THE INADVERTENCE, MISTAKE OR TARDINESS OF COUNSEL

While I am in agreement with the Learned Counsel to the Appellants that it is not right to visit the parties with the punishment arising out of inadvertence, mistakes or tardiness of counsel, I am however inclined to say there are exceptions to this general position of the law. See N.W.A. v. S.P.D.C. [2008] 13 NWLR (Pt. 1103) 48 at 67.
In PRUDENT BANK PLC & ORS v. ABDULMALIK OBADAKI (2010) LPELR-9200, this court, PER NWODO JCA, held:
“… Therefore the excuse of counsel cannot be always indulged, it depends on the facts and circumstance of each case. I must state however that there is need for caution, otherwise the courts will be encouraging tardiness on the part of the counsel which ultimately affects the administration of justice. The recent practice of learned counsels attributing every procedural non-compliance to mistake of counsel must not be allowed to escalate in our jurisprudence. A litigant should equally be vigilant and diligent in respect of his cases in court. Where a counsel has exhibited tardiness and incompetence the court should not indulge him and hold an excuse as good.” per. ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.

JUSTICES:

SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria

JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria

Between

1. AFRO CONTINENTAL INSURANCE CORPORATION LTD
2. N. D. GAON
3. D. COEN – Appellant(s)

AND

NIGERIA DEPOSIT INSURANCE CORPORATION
(Receiver/Liquidator of Alpha Merchant Bank Plc) – Respondent(s)

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A. (Delivering the Lead Ruling): This is a ruling in respect of Appellants/Applicants’ motion for the restoration of appeal and the Respondent’s preliminary objection challenging the competence of the motion.

By a motion on notice dated and filed on 8/03/2012 is seeking for an order restoring this appeal which was struck out on 11th March, 2010 for failure of Appellant to properly compile records on the following grounds:

1. “The records of appeal compiled on behalf of the Appellant were incomplete which caused this honourable court to dismiss the appeal.

2. The Appellant/Applicant has been exposed to serious damage as a result of the error of counsel.

3. The Appellant desires to vigorously and seriously prosecute the appeal.

4. It is in the interest of justice to allow a restoration of the appeal.”

The said application was supported by four affidavits viz; an 11 paragraphs Affidavit sworn to by one Dilibe Chinedu Ifezue, junior counsel in the law firm of Adekunle Ojo & Associates, learned counsel for the applicant on 8/03/2012 with 5 exhibits; a 10-paragraph further and better affidavit sworn to by one Chairman Okoloise, a Legal Practitioner in the Law Firm of Adekunle Ojo & Associates on 28/02/2013 with 1 exhibit; a 15-paragraph second further and better affidavit sworn to by the same Chairman Okoloise as described above on 26/03/2013 with 5 exhibits; a 17-paragraph third further and better affidavit sworn to by one Paul Ofomola, a Legal Practitioner in the Law Firm of Adekunle Ojo & Associates with 2 exhibits. There is also a written address in support dated and filed on 10/6/2013. The Appellant further filed a reply address in response to the Respondent’s written address and a counter-affidavit in opposition to the preliminary objection. They were filed on 20/03/2013 and 27/06/2013 respectively.

Opposing the application, the Respondent filed an 11-paragraph counter affidavit dated 27/03/2012, sworn to by one Albert Nnamuka, a Litigation Secretary in the law firm of G. N. Uwechue & Co., the learned counsel for the Respondent with 4 exhibits; a 5-paragraph further counter affidavit dated 5/04/2012 sworn to by the same Albert Nnamuka with 1 exhibit and a written address in response dated 8/03/2014 and filed 17/12/2013. The Respondent further filed a Notice of Preliminary Objection dated 11/06/2013 and filed 14/06/2013 challenging the jurisdiction of this court to hear the motion and the appeal on the following grounds:

1. The court has become functus officio upon the appellants’ appeal to the Supreme Court filed on the 9th of April, 2012 and subsequent dismissal of the appeal by the Supreme Court on 20th March, 2012.

2. The appeal is incompetent in that the Notice of Appeal dated and filed on 20th May, 1999 against the judgment of the Failed Banks Tribunal in Suit No. FBFMT/L/Z.II/03/06 that initiated the appeal was not signed by a named legal practitioner and is thereby incompetent.

3. No appeal lies to this Honourable Court from the decision of Failed Banks Tribunals.

The notice is accompanied by an 18-paragraph affidavit sworn to by one Emeka Nwosu, a legal practitioner in the law firm of Messrs G. N. Uwechue & Co on 14/06/2013 with 9 exhibits as well as a written address dated 14/06/2013.

Due to the fact that there is a preliminary objection by the Respondent challenging the competency of the motion, the objection shall first be considered and resolved before deciding whether to proceed on to determining the application filed by the Appellant/Applicant.

I have already outlined the processes filed in relation to the notice of preliminary objection filed by the Respondent Counsel. In his written address in support, Respondent’s counsel formulated three (3) issues for determination thus:

1. Whether the court has jurisdiction to grant this application to restore the appeal in the circumstances.

2. Whether this appeal initiated with a notice of appeal not signed by a named legal practitioner is competent.

3. Whether this honourable court has any jurisdiction over this appeal from the decision of a Failed Bank Tribunal in suit No FBFMT/L/Z.II/03/96.

The Appellant/Applicant on its own formulated the following issues for determination of the preliminary objection:

1. Whether or not, this honourable court is functus officio in respect of the application of the Applicants brought pursuant to Order 8 Rule 20 of the Court of Appeal Rules 2011 for restoration of this appeal which was struck out pursuant to Order 8 Rules 18 of the Court of Appeal Rules 2011?

2. Whether or not the jurisdiction of this honourable court to hear an appeal can be challenged before the Appeal is entered?
IN THE ALTERNATIVE to Issue ‘B’

3. Whether or not the Notice of Appeal signed by Professor S. A. Adesanya SAN, is competent in law.

4. Whether this court does not have jurisdiction to hear and determine the appeal pending at the Special Appeal Tribunal from final decision of the Failed Bank Tribunal.

Let me hasten to state here that, at this stage, no appeal has been entered before this court in respect of the matter in dispute between the parties. Hence, no appeal in respect of this matter is yet before the court. It is trite that the jurisdiction of an appellate court can be determined only when an appeal is entered.
Therefore, the jurisdiction of this court can only be challenged when there is a valid appeal before this court. The implication of this is that though the Respondent’s objection is predicated upon three grounds, the first ground which touches on the competence of the Appellant’s motion to restore the appeal is the only one that can be validly raised at this stage, the other two grounds relates to the competence of the appeal cannot be raised until and/or unless there is a proper appeal before this court. Until the appeal is restored, any objection as to the competence of the appeal will be deemed premature as there is presently no appeal before the court upon which the Respondent can validly challenge its competence. I agree with the Learned counsel for the Applicants that the ground of objection challenging the competence of the appeal is in itself premature and is hereby struck out.

To this extent, I am of the firm view that the only issue that arises for determination in respect of this preliminary objection is:

“Whether this court has jurisdiction to grant this application to restore the appeal in the circumstances.”

Respondent’s counsel submitted upon the facts and the law, the appeal having gone up to the Supreme Court and therein discontinued and dismissed, this honourable court has no more powers to consider the application as it has become functus officio over the matter. The Respondent submitted that by virtue of the notice of discontinuance (Exhibit AN2) filed by the Appellants and duly served on the Respondent, the appeal No. SC/49/12 is deemed duly terminated and dismissed at the Supreme Court and that the only issue left was the assessment of costs or any other matters. Citing Order 8 Rule 6 (1) to (6) of the Court of Appeal Rules 2011; DINGYADI v. INEC [2011] 18 NWLR (Pt. 1224) 154 at 193 E-H; EDOZIEN v. EDOZIEN [1993] 1 NWLR (Pt. 272) 678; EZOMO v. A-G OF BENDEL STATE [1986] 4 NWLR (Pt. 36) 448, Respondent submitted that the appeal having been dismissed by the Supreme Court, this court has no jurisdiction over a matter, no longer before it. While referring to the definition of ‘functus officio’ as PER NIKI TOBI JSC in BUHARI v. INEC [2008] 19 NWLR (Pt. 1120) 246 at 375 G-H, Respondent urged this court to decline jurisdiction over this matter.

Responding, Appellant’s counsel submitted that this court is not functus officio in respect of the Applicants’ application for restoration of appeal. While referring to what he deemed to be clear facts from the record of appeal, Counsel submitted that from the copy of a Notice of Appeal dated 9/4/2010 attached to the affidavit of Emeka Nwosu of 11/6/2013, the applicants had intended to challenge the order of court dismissing the appeal on the ground that the Appeal was wrongly dismissed when there was no Notice of Motion praying the court to do so under Order 18 Rule 18 and that the applicants subsequently abandoned their formal objection to the order of 11/3/2010 by withdrawing the Notice of Appeal filed against the order.

Learned counsel conceded that the Applicants are barred from challenging the regularity of the order of dismissal and they are, therefore bound to comply with the order of the court which is an anticipatory order. It is also the submission of counsel that the absence of a successful appeal against an order of this court has one main implication and that is that the order of the court remains valid and must be obeyed thereby resulting in this application by the applicants to comply with the subsisting anticipatory order of this court. While referring to Order 8 Rule 18 & 20 of the Rules, Counsel submitted that the Rules allows a party whose appeal was dismissed under the Order to apply to the same court for the dismissed appeal to be restored and that the dismissal of appeal for non-compliance is not on merit hence it does not create an issue of estoppel. He cited D.Y.S TROCCA VALSESSIA & Co. V. OSAGHAE [2008] ALL FWLR (Pt. 413) 1313; OJO & ANOR v. RASAKI & ORS [2007] 7 WRN 117; ALOR v. NGENE (2007) 2 S.C 1. It is also the submission of learned counsel that the issue of restoration was never determined by this court so that it could never have been an issue on appeal to the Supreme Court and that since the issue of restoration has neither been pronounced upon by this court, there could not have been a competent appeal against what was never decided upon. He cited GEORGE v. DOMINION FLOUR MILLS LTD (1963) 1 ALL NLR 71; SARAKI v. KOTOYE [1992] 9 NWLR (Pt. 264) 156 at 184.

Counsel then submitted that the right of the appellant to seek restoration of this appeal under Order 8 Rule 20 was not determined by the Supreme Court and that the order of the Supreme Court can only be restricted to the basis of the appeal and the grounds of the appeal based on the issues decided by the Court of Appeal and not on issues yet to be decided. He cited MOHAMMED v. OLAWUNMI [1993] 4 NWLR (Pt. 287) 254 SC.

Now, having regard to the circumstances of this case, the question is whether this court is functus officio with respect to entertaining the Applicants’ application to restore the appeal that was dismissed by this court under Order 8 of the Court of Appeal Rules 2011?. It is the Respondents’ contention that upon the appeal filed by the Applicants to the Supreme Court with respect and dismissal of same by the Apex Court consequent upon a notice of discontinuance filed by the Applicants, this court is not competent to entertain any issue in relation thereon.
By its ruling of 20/03/2012, the Supreme Court, PER MOHAMMED JSC, held:
“On the Notice of withdrawal of this appeal filed by the Appellants on 18/02/2011 which is not opposed by the Respondents, this appeal No. SC.49/2011 having been withdrawn is hereby dismissed under Order 8 Rule 6(5) of the Rules of this Court with N50,000.00 cost to the Respondents”
I find from the above that the dismissal of the appeal by the Apex Court was pursuant to the Appellants/Applicants’ Notice of discontinuance and not on the Respondent’s motion on notice of 21/3/2011. The implication of the above ruling is that the appeal having been dismissed by the Supreme Court pursuant to Order 8 Rule 6(5) of the Supreme Court Rules, Appellants/Applicants cannot competently re-open the appeal in relation to the issue being appealed against. Order 8 Rule 6(5) of the Supreme Court Rules provides:
“An application under this rule, shall be deemed to have been dismissed”
While I agree with the Respondent that this court becomes functus officio upon the entry and dismissal of the appeal in relation to issues before the Supreme Court, I am however inclined to state, in line with the Applicants’ argument that the dismissal of the Appeal by the Supreme Court does not create a bar to proceedings in relation to the issues that were not appealed against and questions upon which the Supreme Court had not been called upon to determine. As the Applicants’ counsel rightly noted, the issue that is at stake in this appeal before us relates to the restoration of the appeal that was dismissed by this court on 11/03/2010 for failure of the Applicants’ counsel to complete the incomplete record while in the appeal that was discontinued, the appeal sought to ‘challenge the validity of the order due to what he alleged to be non-compliance with the provision of the Rules of this court’.
To this extent, I think it is necessary to reproduce the grounds and particulars of error contained in the notice of appeal in respect of the appeal at the Supreme Court. It is dated 9/04/2010 and states thus:
“GROUNDS OF APPEAL
GROUND 1
Learned Justices of the Court of Appeal erred in dismissing the Appellant’s appeal under Order 8 Rule 18 of the Court of Appeal Rules without complying with or following its own laws on the dismissal of an appeal.
Particulars of Error
a) Before the trial court can lawfully dismiss an appeal under Order 18 Rule 18, there must be a Notice of Motion moving the Court to do so.
b) In the instant case, there was no such Notice of Motion. The application was merely oral and an oral application is different from a Notice of Motion.
c) A court of law is bound to administer and follow the law. Adekanye v. FRN [2005] 15 NWLR (Pt. 949) 445.
d) Whereby the rules state that a party is obliged to issue and serve a Notice of Motion on the other party and this has not been done, the Court has no competence or jurisdiction to dismiss the appeal.
GROUND 2
Learned Justices of the Court of Appeal further erred in law in dismissing the Appellants’ appeal under Order 8 Rule 18 of the Court of Appeal 2007.
Particulars of Error
a) Order 8 Rule 18 has no application in the instant case where the records of appeal had been complied, even though incomplete, where the appeal has been entered and given the number CA/L/42/2003 and the parties have filed their respective Briefs of Argument…”
Meanwhile, in its application dated and filed 8/03/2012, the Appellants/Applicants are praying for the following reliefs:
“1. AN order restoring this appeal which was struck out on 11th March, 2010 for failure of the Appellant to properly compile records.
2. And for such further order(s) which this Honourable Court may make in the circumstances”
Clearly, nowhere was the issue of restoration of the appeal before the Supreme Court. The previous order of this Court that the Applicants appealed against and was dismissed by the Apex Court did not cover restoration of the appeal. It will be far reaching for us to declare that the Applicants are barred from bringing this application to restore due to the appeal to the Supreme Court when the issue of restoration has neither been pronounced upon by this court so that there would have been a competent appeal to the Apex Court.
The implication of the withdrawal by the Appellants/Applicants and dismissal of the appeal by the Supreme Court is that the order of this court dismissing the appeal under Order 8 of the Court of Appeal Rules remains extant so that the Applicants can rely on provision of Order 8 Rule 20 to apply for the restoration of the appeal. Therefore, the contention of the Respondent that this court is functus officio is clearly misconceived.
In ALOR & ANOR v. NGENE & ORS [2007] 17 NWLR (Pt. 1062) 163; (2007) LPELR-431 (SC) 12-13 paras. D-A, the Apex Court, PER KALGO JSC held:
“A final order envisages that it is a permanent order made by the court and the parties in respect of whom or against whom the order is made, cannot go back to the same court to challenge or change that order. That court, by virtue of the order, is functus officio and the only option open to the parties is by way of appeal against the order. This means that the rights of the parties have been determined to finality, and they cannot go back to the same court on those rights.
But where the rights or claims of the parties in any action have looked in to and determined by the court, they are still pending and the parties can still go back to any court or indeed the same court to examine and decide on those rights. That, in my respectful view, is the correct situation in this case. Furthermore, the rules of the court quoted above, empowers the appellant whose case was struck out to re-apply to the same court to have their case relisted, heard and determined.”
No doubt, the order of this court of 11/03/2010 dismissing the Appellants/Applicants’ under Order 8 rule 18 is evidently not a dismissal on the merit so as to render this court functus officio.
In OJO & ANOR v RASAKI & ORS (2009) LPELR-4704 (CA) 31-32, paras. C-G, this Court, PER DENTON-WEST JCA held:
“Judicial approach had been explicit in its definition of the words because it is jargon or terminology that occurs all the time after judicial decision or pronouncement. Therefore a court cannot be functus officio if it gives an anticipatory order, which is conditional to the possible implementation of the order or otherwise as in this case. This is because at the point of fulfilment, the party involved in the anticipatory order which is conditional to the possible implementation of the order or otherwise as in the case. This is because at the point of fulfilment, the party involved in the anticipatory order will return for a permanent relief. An order of a court made subject to the happening of an event in total or whole and therefore cannot make the court functus officio…”
I adopt the above view as mine. See also BUHARI v. INEC & 4 ORS (2008) 12 SC 1 at 101-102; KABO AIR v. INCO LTD [2003] 6 NWLR (Pt. 816) 323.

The preliminary objection of the Respondent fails. It is hereby struck out.

In its written address in support of the application for restoration of the appeal dated 8/03/2012, the Applicants formulated a sole issue for determination thus:

“Whether or not the application to restore this appeal which has been dismissed for non-compliance may be granted by this Honourable Court?”

On the other hand, the Respondent formulated three issues for determination thus:

1. Whether, upon the facts of this case, there is any appeal still pending before this honourable court to warrant the grant of the application sought by the appellants.

2. Whether the appeal and the Notice of Appeal dated 20th May, 1999 that initiated it, which was signed by a person who did not disclose his name, is competent to enable this honourable court assume jurisdiction to restore the appeal.

3. Whether this honourable court has any jurisdiction over this appeal from the decision of a Failed Bank Tribunal in Suit No. FBFMT/L/Z.II/03/96 to justify the restoration of the appeal.

From the issues formulated by the Respondent, it is apparent that they fall on all fours with the issues raised in their address in support of the preliminary objection. Therefore, I shall adopt the issue as formulated by the Applicants in determining the application before this court.

The relevant facts contained in the Affidavits of the Appellants/Applicants in support of the application to restore the appeal are:

a. That the Appellants/Applicants appealed against the judgment of the Failed Bank Tribunal.
b. Though parties have filed their briefs, the matter is yet to be heard on merit by this Court.
c. The appeal was dismissed because of irregularities in the records of appeal and only a compilation and transmission of proper records of appeal can restore the appeal.
d. The earlier Record of Appeal was defective especially because it did not contain proper Notice of Appeal filed by the Appellants/Applicants.
e. Applicants’ counsel has taken steps towards compilation and transmission of proper records of Appeal.
f. The discontinued Appeal in Suit SC/49/2011 filed by previous counsel on record to the Applicants is not a bar on the Appellants/Applicants to compile and transmit a proper record of appeal before this court and consequently exercise their right to seek the restoration of this Appeal.
g. The order of this court dismissing the Applicants’ appeal is not a final order.
h. The Notice of Appeal brought by previous Counsel for the Applicants at the Supreme Court was not against a final order of this court. That when suit SC/49/2011 was dismissed on 20/3/2012, no record of appeal was entered and parties were yet to file brief.
i. The Appellants are desirous of having this appeal heard and determined by this court
j. The right of the Appellants/Applicants to restore this appeal has not been determined by either this court or Supreme Court.

While the relevant facts in the counter-affidavit of the Respondent in opposition to the Applicants’ motion to restore are as follows:

a. The Applicants on 9th April, 2010 appealed against the order of this court dated 11th March, 2010 dismissing the appeal of the Appellants/Applicants.
b. By a Notice of Discontinuance dated 27th January, 2010 and filed 28th January, 2011, the Appellants/Applicants unilaterally discontinued the said appeal.
c. By a motion dated 21st February, 2011 and filed 23rd February, 2011, the Respondent sought a formal dismissal of the appeal at the Supreme Court based upon the unilateral withdrawal of the appeal by the Appellant.
d. On 20th March, 2012, the Supreme Court formally dismissed the Appellants/Applicants’ appeal with N50,000.00 costs.
e. The Appellants/Applicants’ application has been overtaken by events at the Supreme Court.

Arguing on the sole issue, Applicants’ counsel submitted that the Appellants/Applicants have always desired and still desire to pursue this appeal and that this fact can be deduced from the fact that the Applicants have as at the time of dismissal of the appeal for non-compliance filed their Appellants’ brief. Counsel submitted that the Applicants have gone ahead to compile fresh records of appeal for transmission to this court and have filed an application for extension of time in this regard. Counsel relied on the facts deposed to in the 11-paragraphs Affidavit dated 8/3/2012 deposed to by one Dilibe Chinedu Ifezue which to the effect that it was the mistake and/or inadvertence of counsel in failing to recompile the record of Appeal which led to the dismissal of the appeal under Order 8 Rule 18 of the Court of Appeal Rules 2007. Counsel however submitted that this court has unfettered jurisdiction to restore an appeal dismissed under Order 8 Rule 18. He cited D.Y.S. TROCCA v. OSAGHAE [2008] ALL FWLR (Pt. 413) 1313. He further submitted that the mistake or inadvertence of counsel has been accepted as sufficient reasons upon which a court would exercise its discretion to grant restoration of the appeal in an applicant’s favour. Citing, ADEBAYO OGUNDOYIN & ORS v. DAVID ADEYEMI [2001] 7 SC (Pt. 11) 98 @ 107; AHMADU v. SAULAWA (1974) 11 SC 43; ONYEBUCHI IROEGBU v. RICHARD OKWORDU [1990] 6 NWLR (Pt. 159) 643; DOHERTY v. DOHERTY (1964) 1 ALL NLR 299; FRANCIS SHANU & ANOR v. AFRIBANK NIGERIA PLC [2001] 13 NWLR (Pt. 684) 392, he submitted that the courts will generally not punish a litigant for the mistake or inadvertence of counsel. He also cited AFRIBANK INTERNATIONAL BANK LTD v. G.M.O. NWORAH & SONS COMPANY LTD [2001] 18 NWLR (Pt. 744) 1 before submitting that the circumstance which gave rise to the application pending till this date as outlined in the affidavit in support, come within the factual situations that would entitle an Applicant to the exercise of the court’s discretion in its favour. He further submitted that the long route embarked upon by previous counsel in this appeal no doubt contributed to the late filing of this application until the present counsel on record took over and prayed that this sin will not be visited on the Appellants. He cited EEPC LTD v. NDIC [2007] ALL FWLR (Pt. 367) 793.

As I earlier stated, Learned counsel to Respondent in his written address substantially reproduced the issues formulated and argument canvassed in the Respondent’s preliminary objection. I will only reproduce arguments of counsel therein that relates to the issue at stake. Respondent’s counsel contended that the appeal in the instant case was filed in 1999, the purpose of which was to delay the Federal Government of Nigeria’s realisation of the fruits of its judgment against foreign nationals, the 2nd and 3rd Appellants, who own the 1st Appellant. It is the submission of counsel that the record of appeal was compiled, briefs of arguments filed and that the appeal was ripe for hearing and the Appellants’ counsel delayed and was not ready to go on with the appeal. Counsel referred to the ruling of this court dismissing the appeal particularly where this court, PER GALINJE JCA held that the appeal was only filed to frustrate the realization of the fruit of the judgment of the lower court.

Counsel further submitted that the deliberate act of the Appellants’ counsel intended to occasion injustice to the nation, Nigeria and that the Appellants have lost their right of protection against the mistake of their counsel. He cited POPOOLA v. BABATUNDE [2012] 7 NWLR (Pt. 1299) 302; OYEGUN v. NZERIBE [2010] 7 NWLR (Pt. 1194) 577 to submit that this court and the Supreme Court stressed the irrelevance of mistake of counsel where the issue of law is involved. Finally, counsel urged this court to decline jurisdiction over the matter and dismiss the application.

In his reply address, Counsel to the Appellants re-emphasized the argument contained in its written address in aid of the application and in response to the Respondent’s written address on its preliminary objection. He urged this court to grant this application.

I think it is necessary to consider the proceedings of this court on 11/03/2010 in order to effectively determine whether the Applicants deserve the exercise of the discretion of this court in their favour. It is as follows:

“Prof. S. A. Adesanya SAN for the Appellant with J. Okproma for the Appellant

Chief G. N. Uwechue SAN for the Respondent with him are Mr. Emeka Nwosu, Emeka Okpoko and Miss D. Mayange.

Prof: The appeal cannot go on because the records are incomplete. I intend to bring an application for the court to apply the consequence of incomplete record as set out in Okochi v. Aniekwo [2003] 18 NWLR (Pt. 851) 1, I know a long time ago that the record in this appeal is incomplete. Even in my application to file the brief out of time. I did mention this fact and I did mention that the brief was filed out of deference and to prevent the appeal from being struck out. It is in my affidavit in support of the motion to file the brief out of time. In this situation, I will be seeking a short adjournment to urge the court not to proceed with the appeal. I am the appellant. This is the case where the appellant compiled the record.

UWECHUE: This is a 2003 appeal and it is the appellant who filed the appeal and compiled the record. On 10/6/09 this court adjourned the appeal because there was problem with the record. Some pages were missing. The court then directed the appellant to recompile the record. I wrote to learned senior counsel for the appellant intimating him that there was problem with the record. The letter was written on the 1/7/09. On 10/11/2009, we wrote another letter to the Senior Counsel, reminding him about the recompilation of the letter and urging him to recompile the record. Both letters were acknowledged. We urged the court to dismiss the appeal for want of diligent prosecution.

ADESANYA: Nothing to reply on point of law.

COURT: This is a 2003 appeal. The Rules of this court are so clear. That where a registrar of the lower court fails to compile record of appeal, the Appellant has a duty to do so under Order 8 rules 4 of the Court of Appeal Rules 2007. Learned Senior Counsel has admitted that the record before the court is incomplete and that the Appellants’ brief was merely filed to stop the Appeal from being dismissed. Learned Counsel has also informed the court that he is seeking for adjournment to bring an application to urge the court not to hear the appeal. This is strange, when the appeal is brought before this court, it is incumbent in the court to have the appeal disposed of expeditiously. Any act whether deliberate or accidental that will stall the hearing of the appeal ought to be discouraged. The courts order of 10/6/09 for the appellant to recompile the record was duly communicated to the learned senior counsel for the appellant who refused to comply with the order aforesaid. From the conduct of the Appellant, it is my firm view that the appeal was only filed to frustrate the realisation of the fruit of the judgment of the lower court. This court cannot be a party to such act. Appellants’ failure to compile fresh record and clear intention of not doing so in near future leaves much to be desired and think there is no basis sustaining this appeal in the court record as there is no record upon of which this appeal will be prosecuted. For these reasons I have set out about this appeal ought to be and it is hereby dismissed under Order 8 Rule 18 of the Court of Appeal Rules 2007. The Respondent is entitled to cost which I assess at N30,000.00.”

From the above, it is apparent that before the appeal was dismissed on 11/03/2010, the Appellants and their counsel were aware of the fact that record is incomplete and despite the adjournment by this court on 10/6/09 for the appellant to recompile the record as well as the several letters written to the Appellants’ counsel on the need for the Appellant to comply with the order of the court, the Appellants failed to comply not only with the Rules of the court as to compilation of record but also with the pending order of court. Appellants’ counsel admitted the fact that he has been aware of the fact of incomplete record ‘a long time ago’ before the proceedings of the day and on the record, it was clear that the court had earlier adjourned for about 9 months to enable the court comply. This he failed to do. But the argument of the Appellant now is that the Appellants should not be punished for the mistake or inadvertence of counsel. While I am in agreement with the Learned Counsel to the Appellants that it is not right to visit the parties with the punishment arising out of inadvertence, mistakes or tardiness of counsel, I am however inclined to say there are exceptions to this general position of the law. See N.W.A. v. S.P.D.C. [2008] 13 NWLR (Pt. 1103) 48 at 67.
In PRUDENT BANK PLC & ORS v. ABDULMALIK OBADAKI (2010) LPELR-9200, this court, PER NWODO JCA, held:
“… Therefore the excuse of counsel cannot be always indulged, it depends on the facts and circumstance of each case. I must state however that there is need for caution, otherwise the courts will be encouraging tardiness on the part of the counsel which ultimately affects the administration of justice. The recent practice of learned counsels attributing every procedural non-compliance to mistake of counsel must not be allowed to escalate in our jurisprudence. A litigant should equally be vigilant and diligent in respect of his cases in court. Where a counsel has exhibited tardiness and incompetence the court should not indulge him and hold an excuse as good.”
I adopt the above view as mine. In the instant case, from the conduct of the Appellant, it is my firm view that the Appellants does not deserve the exercise of the discretion of this court in their favour. While the Appellants are alluding to the mistake of counsel as their “good and sufficient cause”, I am of the firm view that either the Appellants colluded with their previous counsel to adopt any tactics to frustrate the realisation of the fruit of the judgment of the lower court by the Respondent or the Appellants were non-committal and not diligent in monitoring the proceedings of the court in relation to their appeal.
This is an appeal that was filed in 2003, about 12 years ago, either way, this court will not lend its hand to the tardiness of the Appellants. Equity aids the vigilant and not the indolent.

In the final analysis, the application of the Applicants seeking for the restoration of the Appeal dismissed by the Court on 11/03/2010 is hereby dismissed. No order as to costs.

SIDI DAUDA BAGE, J.C.A.: My learned brother, the Hon. Justice Abimbola Osarugue Obaseki-Adejumo, JCA, has graciously obliged me with the draft of the Ruling prepared and just delivered by her. Having read, before now, the briefs of argument of the respective learned counsel vis-‘a-vis the records of appeal, as a whole, I cannot but concur with the reasoning and conclusion reached in the said Ruling to the effect that the application of the Appellants seeking for the restoration of the Appeal as dismissed by the Court on 11/3/2010 is also hereby dismissed by me.

Without any more ado, I would want to believe that the above findings of the court below are unassailable, they are duly supported by the evidence on record where the Court held thus:

This is a 2003 appeal. The Rules of this court are so clear. That where a registrar of the lower court fails to compile record of appeal the Appellant has a duty to do so under Order 8 rules 4 of the Court of Appeal Rules 2007. Leaned Senior Counsel has admitted that the record before the court is incomplete and that the Appellants’ brief was merely filed to stop the Appeal from being dismissed. Learned Counsel has also informed the court that he is seeking for adjournment to bring an application to urge the court not to hear the appeal. This is strange, when the appeal is brought before this Court, it is incumbent in the court to have the appeal disposed of expeditiously. Any act whether deliberate or accidental that will stall the hearing of the appeal ought to be discouraged. The court’s order of 10/6/09 for the Appellant to recompile the record was duly communicated to the learned senior counsel for the Appellant who refused to comply with the order aforesaid. From the conduct of the Appellant, it is my firm view that the appeal was only filed to frustrate the realization of the fruit of the judgment of the lower court. This court cannot be a party to such act Appellants’ failure to compile fresh record and clear intention of not doing so in near future leaves much to be desired and think there is no basis sustaining this appeal in the court record as there is no record upon of which this appeal will be prosecuted. For these reasons I have set out about this appeal ought to be and it is hereby dismissed under Order 8 Rule 18 of the Court of Appeal Rules 2007. The Respondent is entitled to cost which I also assess N30,000.00.

On the whole, this court will not lend its hand on the tardiness of the Appellants. I whole heartedly adopt the reasoning and conclusion reached in the Ruling as mine. The appeal is dismissed.

No order as to costs.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I had the honour of perusing in advance the exhaustive Ruling prepared by my learned brother, Abimbola Osarugue Obaseki-Adejumo, J.C.A., with which I agree with nothing extra to add.

Appearances

Prof. S. A. Adesanya SAN, with J. Okproma For Appellant

AND

Chief G. N. Uwechue SAN, with him are Mr. Emeka Nwosu, Emeka Okpoko and Miss D. Mayange. For Respondent