MR. B. A. DANGOFAA & ANOR v. COLONEL M. K. YUNUSA
(2018)LCN/12493(CA)
In The Court of Appeal of Nigeria
On Monday, the 2nd day of July, 2018
CA/A/472/2017
RATIO
APPEAL: WHERE AN APPEAL IS DISMISSED
“An appeal dismissed in that circumstance brings the appeal to an end. See Reg. Trustees T.T.O.U. Vs Nigerian Union of Mines Workers (2014) 2 NWLR (part 1391) 287 at 290; Asalu Vs Dakan (2015) 13 NWLR (part 1475) 47 at 50; Asalu Vs Dakan (2006) 5 SC (part 3) 120; Kraus Thomson Organization Vs N.I.P.S.S. (2004) 17 NWLR (part 901) 44 and Evemili Vs State (2014) 17 NWLR (part 1437) 421 at 424.” PER TANI YUSUF HASSAN, J.C.A.
COURT AND PROCEDURE: FAILURE TO FILE THE BRIEF WITHIN THE PRESCRIBED TIME
“Failure to file the brief within the time prescribed, in the absence of an application for enlargement of time within which to do so would mean that the brief of argument is incompetent. The defect in competence in such circumstance goes to the root of the competence of the entire appeal as the jurisdiction of the Court to entertain the appeal is ousted. See Afribank (Nig.) Plc Vs Akwara (2006) 5 NWLR (part 974) 619; Auto import Export Vs Adebayo (2002) 18 NWLR (part 799) 554 and Petgas Resource Ltd Vs Mbanefo (2018) 1 NWLR (Pt.1601) 442 at 448.” PER TANI YUSUF HASSAN, J.C.A.
JUSTICES
ABDU ABOKI Justice of The Court of Appeal of Nigeria
TANI YUSUF HASSAN Justice of The Court of Appeal of Nigeria
MOHAMMED MUSTAPHA Justice of The Court of Appeal of Nigeria
Between
1. MR. B. A. DANGOFAA
2. MR. CHUKWUKA ONYEKWU Appellant(s)
AND
COLONEL M. K. YUNUSA Respondent(s)
TANI YUSUF HASSAN, J.C.A. (Delivering the Leading Judgment):
This appeal is against the Judgment of the High Court of Federal Capital Territory, Abuja delivered on the 31st day of March, 2017 in Suit No. FCT/HC/1609/15 by Hon. Justice A. O. Ebong.
The appellants as plaintiffs at the Lower Court by a writ of Summons and Statement of claim dated and filed on the 17th of April, 2015 claim against the respondent as defendant therein as follows:
1. A declaration that the 2nd plaintiff?s Customary Right of Occupancy and the title over Plot No. 270 Gbazango Layout Kubwa Abuja FCT is still valid, and subsisting and he is entiiled to same.
2. A declaration that the defendant’s invasion of the 2nd plaintiff’s plot of land, pulling down and destroying of his perimeter block wall and other work materials and erecting of military sign board thereon is unlawful, mischievous and calculated to annoy and embarrass the 2nd plaintiff and therefore amounts to trespass.
3. The sum of N147,500.00k being special damages for the cost of the affected destroyed work materials namely 10 bags of cement, two heaps of share sand, twenty tons of chippings as well as the destroyed perimeter block walls.
4. The sum of N5,000,000.00k as general and exemplary damages for trespass and unlawful invasion of the 2nd plaintiff’s land.
5. An order of perpetual injunction restraining the Defendant by himself, his servants, agents, privies, assigns and persons acting for through and under his instruction from interfering with, trespassing further or doing any act which is inconsistent with the right of the 2nd plaintiff or his authorized agents or Attorney in respect of the plot of land.
The Defendant/Respondent also filed a statement of defence in response to the plaintiffs/appellants claim and counter claims as follows:
a) Declaration that the plaintiffs’ invasion of the premises in the possession of the Defendant by attempting to partition the plots therein was unlawful, mischievous and calculated attempt to annoy and embarrass the Defendant and therefore amounted to an act of trespass.
b) The sum of N3,720,000.00k (three million, seven hundred and twenty thousand) naira being special damages for the cost of retaining legal services resulting from their act of trespass since 2010 till date.
c) The sum of N15,900,000.00k (fifteen million, nine hundred thousand) naira as general and exemplary damages for trespass and unlawful invasion of the Defendant’s premises and the embarrassment caused to him by false and uncharitable words used against the Defendant by the plaintiffs in their statement of claim which portrayed the defendant as unruly military officer who abused his office and the dignity of his uniform by harassing citizens of the Federal Republic of Nigeria.
d) An order of perpetual injunction restraining the plaintiffs by themselves, their heirs, servants, agents, privies, assigns and any other person(s) acting for, through and under their instruction from interfering with, trespassing further or doing any act which is inconsistent with the rights of the Defendant or his authorized agents or attorney in respect of the said plot of land situate within the premises of the Defendant.
e) The sum of N5,000,000.00k (five million) naira being the cost of this Suit.
The case went into trial. At the conclusion of trial, the Plaintiffs/Appellants’ case was dismissed and the Defendant/Respondent’s counter claim was struck out.
Dissatisfied with the judgment of the Lower Court, the appellants appealed to this Court.
The Notice of Appeal dated 16th day of May, 2017 was filed on the 18th of May, 2017 containing twenty two grounds of appeal with their particulars and reliefs sought.
The appellants’ brief settled by Uchenna Uwazuruonye Esq was dated the 9th day of October 2017 and filed on the 10th October, 2017. The following issues were distilled for determination as follows:
1) “Whether the trial Court was right in considering the competence of AMAC to allocate the land in issue and the validity of Exhibits “D” and “E” when such issues were not part of the contentious/disputed issues between the parties before the Court” (Ground 1, 2 and 3).
2) “Whether the trial Court properly invoked and applied Section 124(1)(a) of the Evidence Act and the Les Situs Rule based on the facts and circumstances of the case” (Ground 4, 5 and 8).
3) “Whether the trial Court did not err in law and in fact when he equated the physical location of the property in issue to the lack of authority of AMAC to allocate the said land” (Grounds 6 and 7).
4) “Whether the trial Court properly applied to this case, the law as enunciated in Dabo Vs Abdullahi which the trial Court cited and relied on in the course of its judgment” (Ground 11).
5) “Whether the trial Court properly applied to this case, the law as enunciated in Ashiru Vs Olukoya which the trial Court cited and relied on in its judgment” (Ground 12).
6) “Whether the plaintiff/appellant has a duty to prove the authority of AMAC to allocate the plot of land in issue when it was not raised before the Court and when both parties relied on the same root of title” (Grounds 9, 10, 13, 14, 15 and 16).
7) “Whether the trial Court did not err in law when he held that the Equitable interest of the 2nd plaintiff was not established because he was not in possession, in the face of the fact that the defendant has no competing interest with the interest of the plaintiffs” (Ground 17).
8) “Whether the trial Court did not erroneously invoke Sections 21 and 23 of the Evidence Act against the plaintiffs/appellants and whether the evidence of the plaintiffs’ witness was not consistent to the effect that the plaintiffs were not in possession of the land in question” (Ground 18).
9) “Whether the trial Court did not err in law when it held that the evidence of PW1 conflicts with that of PW2, who asserted that he was in possession of the land” (Ground 19).
10) “Whether the judgment is not perverse for failure of the trial Court to resolve the real issues in controversy raised by the parties, and the failure to consider the oral and documentary evidence presented by the parties” (Grounds 20 and 21).
The Respondent’s brief dated 10th day of November, 2017, was filed on 23rd November, 2017. It was settled by Silas Joseph Onu and he adopted the appellants’ issues for determination of the appeal,
The appellants’ reply brief was dated and filed on the 14th day of December, 2017.
At the hearing of the appeal the respondent’s counsel Silas Joseph Onu drew the attention of the Court that the record of appeal was transmitted on the 7th of July, 2017 and the appellants’ brief was filed out of time on the 10th of October, 2017 without an application to regularize same.
The appellant’s counsel in response said they did not take the time of vacation to count. He urged the Court to take it as an irregularly and extend time to file same.
Order 19 Rule 2 of the Court of Appeal Rules, 2016 provides:
“The appellant shall within forty – five days of the receipt of the Record of Appeal from the Court below file in the Court a written brief, being a succinct statement of his argument in the appeal”.
Order 19 Rule 10(2) reads:
“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.”
The record of appeal in the instant appeal clearly shows that it was transmitted on the 7th of July, 2017 and the appellants’ brief of argument was filed on the 10th of October, 2017.
By Order 19 Rule 2 of the Court of Appeal Rules, 2016, the appellants had forty five days to file their brief. From the 7th of July, 2017 when the record was transmitted to the 10th of October, 2017 when the appellants’ brief was filed, forty five days had elapsed and the appellants did not deem it appropriate to bring an application for extension of time to file the brief.
Rules of Court are meant to regulate and provide guidelines for the conduct of proceedings before the Court. They are meant to assist the Court in its primary function of dispensing justice to the parties – KLM Royal Dutch Airlines Vs Aloma (2018) 1 NWLR (part 1601) 473 at 480.
It follows therefore, that Rules of Court are not made for fun but meant to be obeyed.
By Order 19 Rule 10(1) of the Court of Appeal Rules, 2016 where an Appellant fails to file his brief within time provided for in Rules 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. In the instant case there was no application by the respondent but he only drew the attention of the Court to this fact. However by Order 19 Rule 10(2), the Court may suo motu dismiss the appeal for want of prosecution.
The law provides for forty-five days from the day an appellant received the record of appeal from the lower Court as sufficient for him or his counsel to file a brief, being a succinct statement of his argument in the appeal. The result of failure to comply with the rules is dismissal of the appeal for want of prosecution. From the 7th of Jury, 2017 to 10th of October 2017 when the record was transmitted and the brief filed respectively it, is over 90 days. Clearly the appellants are out of time and there was no application to regularize their position. Therefore the brief of the appellants filed on 10th of October, 2017 is incompetent and liable to be dismissed for want of prosecution. As the appellants failed to file their brief within the prescribed period, the appeal is dismissed pursuant to Order 19 Rule 10(2) of the Court of Appeal Rules, 2016.
An appeal dismissed in that circumstance brings the appeal to an end. See Reg. Trustees T.T.O.U. Vs Nigerian Union of Mines Workers (2014) 2 NWLR (part 1391) 287 at 290; Asalu Vs Dakan (2015) 13 NWLR (part 1475) 47 at 50; Asalu Vs Dakan (2006) 5 SC (part 3) 120; Kraus Thomson Organization Vs N.I.P.S.S. (2004) 17 NWLR (part 901) 44 and Evemili Vs State (2014) 17 NWLR (part 1437) 421 at 424.
Failure to file the brief within the time prescribed, in the absence of an application for enlargement of time within which to do so would mean that the brief of argument is incompetent. The defect in competence in such circumstance goes to the root of the competence of the entire appeal as the jurisdiction of the Court to entertain the appeal is ousted. See Afribank (Nig.) Plc Vs Akwara (2006) 5 NWLR (part 974) 619; Auto import Export Vs Adebayo (2002) 18 NWLR (part 799) 554 and Petgas Resource Ltd Vs Mbanefo (2018) 1 NWLR (Pt.1601) 442 at 448.
The appellant’s response that period of vacation was taken into account on failure to file the brief out of time and that the failure to do so should be regarded as irregularity is of no moment. This is because such irregularity constitutes a defect that deprived the appellate Court of jurisdiction. Order 19 Rule 10(2) of the Court of Appeal Rules 2016 is very clear and unambiguous. We cannot put in words that are not contained therein.
Section 1 of the Public Holidays Act Cap P40, Laws of the Federation, 2004 defined public holidays as the days mentioned in the schedule to this Act, Court vacation is not included therein.
The Supreme Court in Onyekwuluje Vs Benue State Govt. (2015) 16 NWLR (part 1484) 40 held that Section 1 of the Act recognizes only the days listed in the schedule to the Act as “Public Holidays”.
Under Section 122(g) of the Evidence Act, 2011, Courts are bound or guided to take judicial notice of the public festivals, feasts and holidays notified in the Federal Gazette or fixed by the Act. See Import – Export Vs J. J. Adebayo & 2 Ors (2002) 8 NWLR (part 799) 554.
In construing the provisions of rules of Court, there is no need to resort to external sources. The words used in the provisions ought to be given their grammatical and ordinary meanings, unless that would lead to some absurdity; or some repugnance or inconsistency with the rest of the rules in which case, the grammatical or ordinary sense of the words may be modified so as to avoid that absurdity and inconsistency, but no further – Britannia (Nig.) Ltd Vs Seplat Pet. Dev. Co. Ltd (2016) 4 NWLR (Part 1503) 541 at 556.
In the Levy, ex-parte, Wulton (1881) 7 Ch.D. 746 at 75 Jessel M. R. opined:
“The grammatical and ordinary sense of the words is to be adhered to unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical or ordinary sense of the words may be modified so as to avoid that absurdity and inconsistency, but no further”.
In the instant case any modification of the words in the provisions of Order 19 Rule 10(2) of the Court of Appeal Rules, 2016 as suggested by the appellant may lead to absurdity and inconsistency with the intention of the provisions.
The appeal is accordingly dismissed, for want of diligent prosecution, pursuant to Order 19 Rule 10(2) of the Court of Appeal Rules, 2016.
Parties to bear their costs.
ABDU ABOKI, J.C.A.: I have had the opportunity of reading before now the lead judgment just delivered by my learned brother TANI YUSUF HASSAN, JCA.
I agree with the reasoning and conclusion contained therein. As rightly observed in the lead judgment from the 7th of July, 2017 when the record of appeal was transmitted, to the 10th of October, 2017 when the appellants’ brief of argument was filed, the forty five days (45) provided under Order 19 Rule 2 of the Rules of this Court, 2016 for the appellants to file in the Court a written brief of their argument in the appeal had elapsed. There is no application before this Court from the appellants’ seeking for extension of time to file their written brief of argument. Therefore, by Order 19 Rule 10 (2) of the Rules of this Court, 2016, the Court can suo motu dismiss the appeal for want of prosecution.
This appeal is accordingly dismissed by me for want of prosecution.
I also abide by the consequential order(s) as contained in the lead judgment.
MOHAMMED MUSTAPHA, J.C.A.: I had read the draft judgment just delivered by my learned brother, Tani Yusuf Hassan, JCA.
I agree with the reasons adduced for dismissing the appeal, same is accordingly dismissed by me for lack of diligent prosecution.
I make no order for costs.
Appearances:
Uche Uwazuru Onye with him, Chika Igiri For Appellant(s)
Silas Joseph Onu with him, Abu Hurairah MusaFor Respondent(s)
