ALHAJI KEWULERE OLAIYA v. OKEHO COMMUNITY BANK LTD.
(2012)LCN/5768(CA)
In The Court of Appeal of Nigeria
On Friday, the 21st day of December, 2012
CA/I/M.33/2008
RATIO
APPEAL: CIRCUMSTANCES WHERE A DISMISSED APPEAL MAY BE RESTORED
A dismissed appeal may be restored where the reason is the non compilation of records of appeal pursuant to order 8 Rule 18 of the Court of Appeal Rules, 2007 (which is in pari materia with Order 8 Rule 18, of the Court of Appeal Rules, 2011) the above rule provides as follows:
Order 8 Rule 18:
“If the Registrar has failed to compile and transmit the Records under Rule 1 and the Appellant has also failed to compile and transmit the Records in accordance with Rule 4, the Respondent may by notice of motion move the court to dismiss the Appeal.” PER CHIDI NWAOMA UWA, J.C.A.
APPEAL: WHETHER AN APPEAL MAY BE RESTORED FOR FAILURE TO TRANSMIT RECORDS
An appeal could be restored for failure to transmit records, absence of appellant and dismissal for non-compliance but not for failure to file brief of argument on behalf of the appellant; see OGBU Vs. ORUM (1981) 1 ALL NLR 324; OLOWU VS. ABOLORE (1993) 5 NWLR (PT.293) 255; YONWUREN VS. MODERN SIGNS (NIG.) LTD. (1985) 1 NWLR (PT.2) 244. PER CHIDI NWAOMA UWA, J.C.A.
JUSTICES
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
OBIETONBARA DANIEL KALIO Justice of The Court of Appeal of Nigeria
Between
ALHAJI KEWULERE OLAIYA Appellant(s)
AND
OKEHO COMMUNITY BANK LTD. Respondent(s)
CHIDI NWAOMA UWA, J.C.A. (Delivering the Lead Ruling): The applicant by an application dated 9th September, 2009, filed on 29th September, 2009 sought the following prayers before this court:
“AN ORDER of court setting aside the dismissal of the Appellant’s Appeal No. CA/I/33/08 and restoring the hearing of same to the cause list of this Honourable Court.
And such further or other order as this Honourable court may deem fit to make in the circumstances.”
The sole ground for the application was:
“The order dismissing the Appellant’s Appeal for failure to file a Brief of Argument within time was made without jurisdiction and in error.”
In support of the application, was a fourteen (14) paragraph affidavit deposed to by Abdulfatai Mohammed, a Legal Practitioner in the Law firm of Akanbi and Wigwe. There is also a further and better affidavit in support of the application dated and filed on 22nd September, 2010 deposed to by Kewulere Olaiya, a business man which was also relied upon in moving the application.
The application was brought under the inherent jurisdiction of the court.
In arguing the application, the learned counsel to the applicant A.A. Mohammed Esq. applied to come under Order 8 Rule 20 of the Court of Appeal Rules, 2011 (The Rules). Reference was made to Exhibits AA1 and AA2 (the record of proceedings of this court dismissing the appeal and the certificate of service of the Notice of Appeal on the applicant, respectively) as well as all the paragraphs of the affidavit and further and better affidavit, especially paragraphs 4 and 5 of the affidavit. It was submitted that this court has a discretionary power to restore the appeal to the cause list and relied on Order 8 Rule 20 of the 2011 Rules. It was argued that the applicant had placed enough facts before the court for the exercise of discretion in his favour, reliance was placed on the case of GUFFANTI (NIG.) PLC. Vs. VADUZ (2012) 3 NWLR (Pt. 1288) at 458. We were urged to exercise our discretion in favour of the applicant.
The learned counsel to the Respondent was served with the hearing Notice on 8th November, 2012 but failed to attend court and did not fire any counter affidavit; therefore the application was not opposed. Even though the application was not opposed it does not mean automatic grant of same. The sole relief sought by the applicant are two faced:
(1) Setting aside the dismissal of the Appeal No. CA/I/33/2008 of 15th June, 2009 by this court.
(2) Restoring the hearing of the appeal to the cause list.
No doubt, the appeal was dismissed on the basis of the appellant not filing any brief of argument in absence of any motion for leave to file his brief out of time following which the notice of appeal filed on 1st April, 2005 was dismissed for want of diligent prosecution, see Exhibit AA1, the ruling of this court of 15th June, 2009; attached to the affidavit in support of the application.
The appeal was dismissed pursuant to Order 17 Rule 10 of the Court of Appear Rules, 2007 part of which provides as follows:
Order 17 Rule 10:
“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 respondent may apply to the court for the appeal to be dismissed for want of prosecution.”
The learned applicant’s counsel had urged that the appeal be restored pursuant to Order 8 Rule 20 of the Court of Appeal Rules, 2011 (which is in pari materia with Order 8 Rule 20 of the Court of Appeal Rule, 2007) which provides as follows:
Order 8 Rule 20:
“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.”
The above order 8 Rule 20 does not apply to the present application. A dismissed appeal may be restored where the reason is the non compilation of records of appeal pursuant to order 8 Rule 18 of the Court of Appeal Rules, 2007 (which is in pari materia with Order 8 Rule 18, of the Court of Appeal Rules, 2011) the above rule provides as follows:
Order 8 Rule 18:
“If the Registrar has failed to compile and transmit the Records under Rule 1 and the Appellant has also failed to compile and transmit the Records in accordance with Rule 4, the Respondent may by notice of motion move the court to dismiss the Appeal.”
Order 8 Rule 20 of the Court of Appeal Rules, 2007, which was applicable as at the time the present application was filed, does not apply to the present case where the dismissal was for non filing of briefs.
In Paragraph 4 of the affidavit in support it was deposed thus:
4.That I know as a fact that the reason for the dismissal of the said appeal was premised on the fact that the learned counsel (Ahmed Akanbi) had informed the court that the Record of the said Appeal had been in his custody since the 21st of January, 2008.”
From the above paragraph, learned counsel Ahmed Akanbi Esq informed the court that there was a record that had been transmitted and served on him; See, Exhibit AA1, the record of proceedings. The learned counsel to the applicant has argued that the information was wrong and it was deposed in paragraphs 5, 6, 7 and 11 that had the court been given the correct information the appeal would not have been dismissed, reliance was also placed on Exhibit AA2.
The above paragraphs and Exhibit AA2 attached to the further and better affidavit would be relevant in an appeal against the dismissal order which was the option open to the applicant at the time of dismissal.
The applicant’s learned counsel relied on the case of GUFFANTI (NIG) PLC Vs. VADUZ (supra), this case does not apply to the present application. In the above case the appeal was dismissed for non compilation of records, pursuant to Order 8 Rule 18 of the Court of Appeal Rules, 2007, and was restored pursuant to Order 8 Rule 20, of the same Rule. The court also took into consideration the reasons for the non compilation of the records and restored the dismissed appeal based on its discretionary powers, which is not the case here. The above case does not apply in the present circumstances.
An appeal could be restored for failure to transmit records, absence of appellant and dismissal for non-compliance but not for failure to file brief of argument on behalf of the appellant; see OGBU Vs. ORUM (1981) 1 ALL NLR 324; OLOWU VS. ABOLORE (1993) 5 NWLR (PT.293) 255; YONWUREN VS. MODERN SIGNS (NIG.) LTD. (1985) 1 NWLR (PT.2) 244.
In my humble view, this court has no power to set aside the dismissal order of the Appellant’s appeal number CA/I/33/2008 and restoration of same.
In conclusion, the application is refused, same is dismissed. No order as to costs.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I am in agreement with the ruling delivered by my learned brother, Chidi Nwaoma Uwa, J.C.A., and wish to add that the Apex court held in the cases of Kraus Thompson Organisation v. National Institute of Policy and Strategic Studies (2004) 17 NWLR (Pt.901) 44 and First Bank of Nigeria Plc. v. T.S.A. Industries Ltd. (2010) 15 NWLR (Pt. 1216) 247, that an appeal dismissed for failure to file the appellant’s brief of argument at the 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.For the reason given above and the more elaborate reasons given in the ruling of my learned brother, Chidi Nwaoma Uwa, J.C.A., I too find no merit in the application and hereby dismiss it. Parties to bear their costs.
OBIETONBARA DANIEL-KALIO, J.C.A: I have read in draft the ruling just delivered by my lord Chidi Nwaoma Uwa JCA and I agree with the ruling. The application is one to restore an appeal that was dismissed for want of diligent prosecution. Order 8 rule 20 under which the application was brought is inapplicable. It 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 is supplied by me).
“This Rule” referred to above is the Rule that deals with Compilation and Transmission of Records, The Rule certainly does not deal with dismissal for failure to file a brief of argument within time. That one is treated by order 18 rule 10(2) of the Court of Appeal Rules 2011.
Somnolence on the part of a party is not to be encouraged. A party who files an appeal must show diligence in its prosecution. If he does not, he has only himself to blame. For this and the fuller reasons given by my lord Chidi Nwaoma Uwa JCA in the lead ruling, I dismiss the application. I also make no order as to costs.
Appearances
A.A Mohammed Esq.For Appellant
AND
Respondent’s counsel served but absent.For Respondent
