AMADU M. ADOGO & ANOR v. ASABO TUKURA & ANOR (2019)

AMADU M. ADOGO & ANOR v. ASABO TUKURA & ANOR

(2019)LCN/12570(CA)

In The Court of Appeal of Nigeria

On Friday, the 25th day of January, 2019

CA/MK/192/2016(R)

RATIO

APPEAL: DISCRETION OF THE COURT

“In my humble view, therefore the point in this application is not as to the time within which the appellants/applicants brought the application; the point is whether this is an appropriate case for the grant of the reliefs sought. In the case of Wellington vs. Registered Trustees of the Ijebu-Ode Goodwill Society (2000) 3 NWLR (Pt.647) 139, it was held that all applications before a Court of law are necessarily an invocation of equitable principles. Thus every applicant who seeks the exercise of the discretion of the Court must approach the Court with clean hands. See Goji vs. Ewete (2007) 6 NWLR (Pt.1029) 72, 81 and Ifekandu vs. Uzoegwu (2008) 15 NWLR (Pt.1111) 508, 519.” PER JOSEPH EYO EKANEM J.C.A

JUSTICES:

JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria

ONYEKACHI AJA OTISI Justice of The Court of Appeal of Nigeria

JOSEPH EYO EKANEM Justice of The Court of Appeal of Nigeria

Between

1. AMADU M. ADOGO
2. UMAR MADAKI – Appellant(s)

AND

1. ASABO TUKURA
2. PETER CHRISTOPHER UMOH – Respondent(s)

JOSEPH TINE TUR, J.C.A. (Delivering the Lead Ruling):

The Registrar of the Court of Appeal acting on the directives of the presiding Justice of the Court of Appeal Division, Makurdi, Benue State has listed some appeals and interlocutory applications or decisions as Moribund. This panel is specially constituted to dispose of what is known as moribund appeals or applications within two weeks. A moribund appeal or an application requires a special panel to hear and determine the appeals and the application within a given period time frame to put an end to the dispute or controversy and to decongest the cause list of pending appeals and applications that the appellant(s) seems to have abandoned. The word moribund means: no longer active or effective and may be coming to an end. 2. Slowly dying. See Longman Dictionary of Contemporary English, 2007 edition, page 1068. (Especially of an organization or business) not active or successful. See Cambridge Advanced Learners Dictionary, 2003 edition, page 807. If you described something as moribund, you mean that it is in a very bad condition. See Collins Co-Build Advanced Learners English Dictionary, 2006 edition, page 930. Oxford Advanced Learners Dictionary, 9th edition, page 1007 defines moribund as no longer effective and about to come to an end completely. 2. In a very bad condition, dying.

An appeal is a 1. A proceeding undertaken to have a decision reconsidered by a higher authority; especially the submission of a lower Courts or agencys decision to a higher Court for review and possible reversal. For instance, it is Any proceeding taken to rectify an erroneous decision of a Court or tribunal by bringing it before a higher Court. The only rights of appeal are those expressly provided for by statute. An appellate Court may substitute its own decision against which the appeal is brought. Compare and contrast the procedure for judicial review. In many instances, leave is required to bring an appeal, granted by either the Court of trial, or the appellate Court itself. Appeals may lie to the High Court on a point of law only, against the decisions of tribunals and decisions taken following public inquiries. In these cases it is necessary to refer to the machinery provided by the statute creating the tribunal or providing for the holding of a public inquiry, in order to determine the extent of the right to an appeal Osborns Concise Law Dictionary, 9th edition, pages 32-33.

The appellants filed an application in the Registry of the Court of Appeal on 21st January, 2019 praying for the following reliefs:-
1. An order of the Honourable Court extending the time within which the appellants will file additional grounds of appeal in Appeal No.CA/MK/192/2016: Between Amadu M. Adogo & Anor. And Asabo Tukura & Anor.
2. An order of the Honourable Court granting leave to the appellants to file additional grounds of appeal in the Appeal No.CA/MK/192/2016: Between Amadu M. Adogo & Anor. and Asabo Tukura & Anor.
3. An order of the Honourable Court deeming the additional grounds of appeal as properly filed and served the necessary fees having been paid.
4. And such orders as this Court may deem fit to make in the circumstances.

The application is brought pursuant to the provisions of Order 4 Rule 6 of the Court of Appeal Rules, 2016 which reads as follows:-
6. The Court shall have power to make orders by way of injunctions or the appointment of a Receiver or Manager, and such other necessary orders for the protection of property or person, pending the determination of an appeal to it even though no application for such an order was made in the Court below.

I do not see the relevance of the provisions of Order 4 Rule 6 of the Court of Appeal Rules, 2016 in determining whether to grant or refuse this application. The application should have been anchored on Order 6 Rule 9(1); and Order 19 Rule 3(1) of the Court of Appeal Rules, 2016 to wit:-

9(1)The Court may enlarge the time provided by these Rules for the doing of anything to which these Rules apply except as it relates to the taking of any step or action under Order 16.

3(1)The brief, which may be settled by Counsel, shall contain an address or addresses for service and shall contain what are, in the appellans view, the issues arising in the appeal as well as amended or additional grounds of appeal.

In Solanke vs. Somefun & Ors. (1974) 9 NSCC 14, Sowemimo, JSC (as he then was) set out the facts at pages 15-16 to be as follows:

The case which had been fixed for hearing for 2 days, that is, for 26th and 27th November, 1968, did not proceed as the plaintiffs attorney did not appear and new hearing dates were fixed for 20th and 21st May, 1969. The case, however, did not appear, according to the records, on the cause list until 2nd June, 1969, and in the meantime the Counsel for both parties had changed. Chief F.R.A. Williams whose brief was by Mr. Solesi appeared for the plaintiff, and Mr. Alaka whose brief was held by Mr. Allen, appeared for the defence. After two further adjournments the case was fixed for hearing by Beckley, J. for 11th and 12th of February, 1970. On the 9th of February, 1970, an application was filed on behalf of the plaintiff by Chief F.R.N. Williams for an order for leave to amend the statement of claim by substituting for the one filed another statement of claim a copy of which is attached to the affidavit in support.

The only relevant paragraph in the affidavit filed in support is paragraph 8 thereof and reads thus:
That Chief Williams has advised and I verily believe that in order to enable all matters in controversy between the parties to be properly determined and also in order to enable him to bring before the Court all the relevant facts concerning the plaintiffs claim it is necessary to amend the statement of claim in the manner set forth in the document attached herewith and marked Exhibit A.

The deponent to this affidavit was one Mr. I.A. Adejare, a junior Counsel in the Chambers of Chief F.R.N. Williams. There is nothing in the affidavit specifically setting out which paragraphs of the original statement of claim were to be amended and the nature of the amendment being sought, except as indicated in the underlined portions of the affidavit above.

On 10th February, 1970 the case was again listed and Mr. Akesode was recorded as appearing for plaintiff and Mr. E.O. Alaka for defendants; but the case was then adjourned for 2nd March, 1970 for mention. On the latter date the motion to amend the statement of claim was moved by Mr. Akesode. The relevant record of the proceedings for that date reads:-
Mr. Akesode moves motion under Order XXXIII of the Supreme Court Rules Affidavit in support. Refers to paragraph 8 of the affidavit. Refers to Exhibit A. The plaintiff claims as per writ of summons.

(b)The grant of the application will cause undue delay to a fair trial of the case.
Mr. Akesode was then called upon to reply to whether the substitution of a fresh statement of claim for one previously filed constitutes an amendment under the rule

His Lordship held at page 17 to 18 as follows:

Rules of Court are meant to be complied with and therefore any party or Counsel seeking the discretionary power of a Judge to be exercised in his favour must bring his case within the provisions of the Rules on which he purported to make his application. If Counsel fail to discharge their duties in that respect, it is but fair and right that a Court should refuse to exercise its discretionary power. Rules of Court are made to be followed. They regulate matters in Court and help parties to present their case within a procedure made for the purpose of a fair and quick trial. It is the strict compliance with these rules of Court that makes for quicker administration of justice. Some exceptions, for example, amendments of proceedings are provided for, but exceptions should be resorted to where absolutely necessary. See: (a) Malmo vs. Olushola 15 WACA 12; (b) Dako II vs. District Commissioner, Birim 3 WACA 68 (c) Somade vs. Ogunbiyi 3 WACA 48 and (d) England vs. Palmer 14 WACA 659.

The applicants have in addition invoked the inherent jurisdiction of this Court without setting out the provisions of the Constitution, the Court of Appeal Act (2010 Amendment), nor the Rules of Practice and Procedure this Court has to invoke its inherent jurisdiction to hear, determine and grant the remedies being sought by the appellants in this application. The inherent powers doctrine of a Court of law is defined by the learned authors of Blacks Law Dictionary, 9th edition, page 853 as follows:-

Inherent-powers doctrine:- The principle that allows Courts to deal with diverse matters over which they are thought to have intrinsic authority, such as (1) procedural rulemaking, (2) internal budgeting of the Courts, (3) regulating the practice of law; and (4) general judicial housekeeping. The power is based on interpretations of Article 1, paragraph 8, clause 18 of the Constitution
Section 6(6) of the Constitution of the Federal Republic of Nigeria, 1999 as altered provides as follows:-
(6)The judicial powers vested in accordance with the foregoing provisions of this section:-
(a) shall extend, notwithstanding anything to the contrary in this constitution, to all inherent powers and sanctions of a Court of law;
(b)shall extend, to all matters between persons, or between government or authority and to any persons in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person;
(c)shall not except as otherwise provided by this Constitution, extend to any issue or question as to whether any act of omission by any authority or person or as to whether any law or any judicial decision is in conformity with the Fundamental Objectives and Directive Principles of State Policy set out in Chapter II of this Constitution;
(d) shall not, as from the date when this section comes into force, extend to any action or proceedings relating to any existing law made on or after 15th January, 1966 for determining any issue or question as to the competence of any authority or person to make any such law.

The inherent jurisdiction of the Courts of Justice enshrined under the Constitution may be equated to what may called equitable jurisdiction in jurisprudence. But one of the maxims of the legal maxims is that equity follows the law. Where there is law, equity will follow the law; but where there is no law an applicant or the Court may, depending on the circumstances of each case, invoke equity to ensure that justice is done to the parties. I shall determine this application on the grounds that Order 19 Rules 2-3(1) of the Court of Appeal Rules, 2016 provides the conditions precedent which an applicant to apply to amend the Notice of Appeal or incorporate new or additional grounds of appeal within the time stipulated by the Rules Maker before the expiry of the 45 days or with leave of this Court thereafter. I shall consider the application by having regard to judicial precedents or the pronouncement of the learned Justices of the Supreme Court of Nigeria. The Court of Appeal, on the principles of stare decisis is bound by these decisions. Some decisions may be persuasive but common sense may lead me to follow a decision that accord with the dictate of justice to the appellant, the respondent, the legal practitioner and the general public at ensuring the doing of justice.

I have headed the determination of this application as a decision not a ruling so as to comply with the provisions of Section 294(2)-(3) and 318(1) of the Constitution to wit:-

294 (2) Each Justice of the Supreme Court or of the Court of Appeal shall express and deliver his opinion in writing, or may state in writing that he adopts the opinion of any other Justice who delivers a written opinion:

Provided that it shall not be necessary for the Justices who heard a cause or matter to be present when judgment is to be delivered and the opinion of a Justice may be pronounced or read by any other Justice whether or not he was present at the hearing.
(3)A decision of a Court consisting of more than one Judge shall be determined by the opinion of the majority of its members.

318(1) In this Constitution, unless it is otherwise expressly provided or the context otherwise requires:-
Decision means, in relation to a Court, any determination of that Court and includes judgment, decree, order, conviction, sentence or recommendation.

The intention of the legislature is that from the coming into force of the Constitution of the Federal Republic of Nigeria, 1999 as altered on 29th May, 1999, any determination in relation to the Court of Appeal, or I may add, the Supreme Court is an opinion or a decision. A Ruling or an interlocutory decision, etc, are omitted in Section 294(2)-(3) and Section 318(1) of the Constitution of the Federal Republic of Nigeria, 1999 as altered. That which has been omitted by the legislature in the Constitution, an Act, Law, or Rules of Practice and Procedure, etc, is not within the province of the Courts to adjudicate upon in exercise of its appellate or supervisory jurisdiction except the Law, Rules of Practice and Procedure, Act of the National Assembly, are amended to incorporate the unforeseen situation or circumstance.

I shall draw attention to some conditions precedent to show that what is of paramount importance is for the Court of Appeal to ensure that the respondent(s) enjoy the fruit of their victory in the Courts below without delay, and that the exorbitant cost at which justice is obtained in Nigeria from the Court of Appeal should be drastically curtailed. Justice is not just a two-way traffic for the appellant and the respondent alone but there should be an end to unnecessary or avoidable controversies or disputes after the rights of the parties have been painstakingly investigated, the parties have been heard and the dispute determined on the merit by a Court or other tribunal of competent jurisdiction. A determination was defined by the Supreme Court in Deduwa vs. Okorodudu (1976) 1 NMLR 236 at 243-244 per Alexander, C.J.N. to wit:-

More light is thrown on the meaning of the words decision and determination in the case of the Automatic Telephone and Electric Co. Ltd. vs. The Federal Military Government of the Republic of Nigeria (1968) 1 All NLR 429 where Ademola, CJN in giving the ruling of the Court said at page 432: We have been referred to the Shorter Oxford Dictionary for the meaning of determination. It means a bringing or coming to an end or (the mental action of coming to a decision, or the resolving of a question).

In Oaten vs. Auty (1919) 2 K.B. 278, Bray, J., at page 284 interprets the word determine as meaning make an end of the matter. In our own experience in this (Supreme Court), we send a matter back to the High Court for a rehearing and determination; the word determination therein meaning ending of the matter.

Section 36(1)-(2) of the Constitution of the Federal Republic of Nigeria, 1999 as altered reads as follows:-
36(1) In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.
(2) Without prejudice to the foregoing provisions of this section, a law shall not be invalidated by reason only that it confers on any government or authority power to determine questions arising in the administration of a law that affects or may affect the civil rights and obligations of any person if such law
(a)provides for an opportunity for the persons whose rights and obligations may be affected to make representations to the administering authority before that authority makes the decision affecting that person; and
(b)contains no provision making the determination of the administering authority final and conclusive.

Courts or other tribunals determine the civil rights and obligations of parties under Section 36(1)-(2) and 294(1) of the Constitution. But if there is no determination of a dispute or controversy by way of putting an end to it, the Court of Appeal ought to decline jurisdiction. In Baba vs. Civil Aviation (1991) 6 SCNJ 1, Karibi-Whyte, JSC held at page 25 that:-

The term determination in this context means reaching a decision. Where, as in this case, the body is merely exploring or investigating the facts with no intention or power to decide, there is, in my view, no determination. So, contrary to the submission of learned Counsel for the appellant, the question of fair hearing in terms of Section 33(1) of the Constitution, 1979 did not arise under the Affini Panel.

But a ruling may not put a final end to the dispute or controversy between the parties as to constitute a determination within the contemplation of Section 318(1) of the Constitution so as to confer jurisdiction on the Court of Appeal under Section 294(2)-(4) and 318(1) of the Constitution of the Federal Republic of Nigeria, 1999 as altered. Neither is a ruling mentioned or recognized by the legislature under Section 24(1), (2)(a) or (b) of the Act (supra). A party or person seeking to appeal against an interlocutory decision to invoke the provisions of Sections 13-14 and 24(1), (2)(a)-(b) of the Court of Appeal (2010 Amendment Act) as the legislature has omitted to define a ruling or an interlocutory decision in Section 294(2)-(4) and 318(1) of the Constitution of the Federal Republic of Nigeria, 1999 as altered. Where the legislature has omitted to mention or list certain words or phrases in the provisions of the Constitution, an Act or Rules of the Court, it is not within the province of Courts of Justice to assume jurisdiction and interfere with the express intention of the legislature to adjudicate in causes or matters that do not determine or put a final end to the dispute or controversy in favour of a party or person in litigation.

In Maxwell On the Interpretation of Statutes by P. St. J. Langan, 12th edition, pages 1-2 the learned author postulates that:-
A statute has been defined in previous editions of this work simply as the will of the legislature, and this definition, it is submitted, remains sufficient provided that it is understood that the will of the legislature must be expressed either by the agreement of the Queen and Commons in accordance with the Parliament Acts, 1911 and 1949. Granted that a document which is presented to it as a statute is an authentic expression of the legislative will, the function of a Court is to interpret that document according to the intent of them that made it. From that function the Court may not resile: however ambiguous or difficult of application the words of an Act of Parliament may be, the Court is bound to endeavour to place some meaning upon them. In so doing it gives effect, as the judges have repeatedly declared, to the intention of Parliament, but it may only elicit that intention from the actual words of the statute. If, said Lord Greene M.R., there is one rule of construction for statutes and other documents, it is that you must not imply anything in them which is inconsistent with the words expressly used. If language is clear and explicit, the Court must give effect to it., for in that case the words of the statute speak the intention of the Legislature. And in so doing it must bear in mind that its function is jus dicere, not jus dare: the words of a statute must not be overruled by the Judges, but reform of the law must be left in the hands of Parliament.
This work attempts to set out the main principles which the judges apply in carrying out their task of construing statutes.

At page 33 appears the following passage:-
It is a corollary to the general rule of literal construction that nothing is to be added to or taken from a statute unless there are adequate grounds to justify the inference that the legislature intended something which it omitted to express. Lord Mersey said: It is a strong thing to read into an Act of Parliament words which are not there, and in the absence of clear necessity it is a wrong thing to do. We are not entitled, said Lord Lorebun, L.C., to read words into an Act of Parliament unless clear reason for it is to be found within the four corners of the Act itself. A case not provided for in a statute is not to be dealt with merely because there seems no good reason why it should have been omitted, and the omission appears in consequence to have been unintentional.

In Udoh vs. Orthopaedic Hospitals Management(1993) 7 SCNJ (Pt.2) 436, Karibi-Whyte, JSC held at page 443 that:
It is a well settled principle of construction of statutes that where a section names specific things among many other possible alternatives, the intention is that those not named are not intended to be included. Expressio unius est exclusion alterius. See A-G. of Bendel State vs. Aideyan (1989) 4 NWLR 646. This is that the express mention of one thing in a statutory provision automatically excludes any other which otherwise would have applied by implication, with regard to the same issue – See Ogbunyiya vs. Okuda (1979) 6-9 SC 32; Military Governor of Ondo State vs. Adewunmi (1988) 3 NWLR (Pt.82) 280.

In Attorney-General, Abia State vs. Attorney-General, Federation (2005) All FWLR (Pt.275) 414 the Supreme Court held per Ejiwunmi, JSC from page 450 as follows:

It is clear and as rightly conceded by the learned Attorney-General of Imo State, that nowhere in Decree 41 of 1991 was the word liability mentioned. It is also good law that as a general rule of construction of statute that a Court is not entitled to read into a statute words which are excluded expressly, or impliedly from it. See Attorney-General, Ondo State vs. Attorney-General, Ekiti State (2001) FWLR (Pt.79) 1431, where at pp. 1472-1473, Karibi-Whyte, JSC observed that:

It is well established and cardinal principle of interpretation that where the ordinary meaning of the words used in a provision are clear and unambiguous, effect must be given to the words without resorting to any extrinsic aid. See Awolowo vs. Shagari (1979) 6-7 SC 51, (2001) FWLR (Pt.73) 53; Lawal vs. G.B. Ollivant (Nig.) Ltd. (1972) 3 SC 124. The solemn and sacred duty of the Court is to interpret the words used in the section by the legislature and give to them their intended meaning and effect. See Adeyemo vs. Governor of Lagos State (1972) 2 SC 45. See also Attorney-General, Ogun State vs. Attorney-General, Federation (1982) 1-2 SC 13; Bronik Motors vs. Wema Bank (1983) 1 SCNLR 296 for the principle that in interpreting the Constitution or a Decree amending it, the Court should take into serious consideration the preamble of the Decree and objects and purposes of the provisions sought to be interpreted.

His Lordship continued at page 451 as follows:
In Attorney-General, Ondo State vs. Attorney-General, Ekiti State (supra), I will gratefully quote the dictum of Kutigi, JSC at pages 1463-1464, which reads thus:
It is certainly a cardinal principle of interpretation that where in their ordinary meaning, the provisions are clear and unambiguous, effect must be given to them without resorting to any aid, internal or external. It is the duty of the Court to interpret the words of the lawmaker as used. Those words may be ambiguous, but even if they are, the power and duty of the Court to travel outside them on a voyage of discovery are strictly limited (see for example: Magor and St. Mellow R.D.C. vs. Newport Corporation (1951) 2 All E.R. 839; London Transport Executive vs. BETTS (1959) A.C. 231, Attorney-General of Bendel State vs. Attorney-General of the Federation & Ors. (1981) 10 SC 1, (1981) 102 NSCC 314, Attorney-General, Bendel State vs. Attorney-General, Federation (2001) FWLR (Pt.65) 448.

At page 452 as follows:
And also the dictum of Karibi-Whyte, JSC, at page 1473, which reads:
A careful perusal of Section 7(1) demonstrates the consistency in words used of the transfers to and vesting in property to the State created out of the existing States. Nowhere in the section was any transfer and vesting of property and/or chattel made in the existing State. This unequivocally demonstrates the intention of the legislation that transfers of property from the existing State was to be the State created out of it. This shows that the context of the provision demands interpretation in the narrower sense. This is in accord with the accepted principle of interpretation expressed in the Latin maxim expressio unius est exclusio alterius or expressum facit cessare tacitum. The two related principles mean firstly that to state a thing expressly ends the possibility that something inconsistent with it is implied. Secondly, to express one thing is impliedly to exclude another, which, is an aspect of the latter. This principle of construction is applied where a statutory proposition might have covered a number of matters but in fact mentions only some of them. Unless those mentioned are examples, or ex abundanti cautela or for some other sufficient reason, the rest are taken to be excluded from the proposition. Oguntade, JSC held at pages 470-471 to wit:

The words used in the above Decree No.41 are clear and explicit. They do not therefore call for any interpretation. In Ifezue vs. Mbadugha (1984) 1 SCNLR 427, this Court said:

If there is nothing to modify, alter, or qualify the language of a statute, it must be construed in the ordinary and natural meaning of the words and sentences used. The Courts have adhered to this literal rule of interpretation since the 19th century as seen from the judgments of Jessel M.R., in Attorney-General vs. Mutual Tontine Westminster Chambers Association Ltd. (1876) 1 Ex.D. 469 and Lord Fitzegerald in Bradlaugh vs. Clarke (1883) 8 App. Cases 354. The object of all interpretation is to discover the intention of the lawmakers which is deducible from the language used. Since the meaning is clear the Courts are to give effect to it.
See also Lawal vs. G.B. Ollivant (Nig.) Ltd. (1972) 3 SC 124.

In Maxwell On the Interpretation of Statutes (supra) page 228 appears the following statement of the law:

1. MODIFICATION OF THE LANGUAGE TO MEET THE INTENTION:
Where the language of a statute, in its ordinarily meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity which can hardly have been intended, a construction may be put upon it which modifies the meaning of the words and even the structure of the sentence. This may be done by departing from the rules of grammar, by giving an unusual meaning to particular words or by rejecting them altogether, on the ground that the legislature could not possibly have intended what its words signify, and that the modifications made are mere corrections of careless language and really give the true meaning. Where the main object and intention of a statute are clear, it must not be reduced to a nullity by the draftsmans unskillfulness or ignorance of the law, except in a case of necessity, or the absolute intractability of the language used.

Lord Reid has said that he prefers to see a mistake on the part of the draftsman in doing his revision rather than a deliberate attempt to introduce an irrational rule: the canons of construction are not so rigid as to prevent a realistic solution. In Baba vs. Civil Aviation (1991) SCNJ (Pt.1) 1, Nnaemeka-Agu, JSC held at page 25 when construing Section 33(1) of the 1979 Constitution that:

I have to determine this application within the parameters of the Rules of Practice and Procedure of the Court of Appeal Rules, 2016 which governs proceedings of this nature by virtue of Order 1 Rules 1-3 and Order 19 Rules 2 and 3(1) of the Court of Appeal Rules, 2016 which provides as follows:-

1.These Rules may be cited as the Court of Appeal Rules, 2016 and shall come into force on the 1st day of December, 2016.
2.The Court of Appeal Rules, 2011 is hereby repealed.
3.The practice and procedure of the Court shall be as prescribed by these Rules notwithstanding any written law or rule of practice to the contrary obtaining in any of the States.

19(2)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.

3(1)The brief, which may be settled by Counsel, shall contain an address or addresses for service and shall contain what are, in the appellants view, the issues arising in the appeal as well as amended or additional grounds of appeal.

The power to make Rules of Practice and Procedure of the Court of Appeal is derived from Section 248 of the Constitution of the Federal Republic of Nigeria, 1999 as altered to wit:-
248. Subject to the provisions of any Act of the National Assembly, the President of the Court of Appeal may make rules for regulating the practice and procedure of the Court of Appeal.

In Kalu vs. Odili (1992) 6 SCNJ (Pt.1) 76, Karibi-Whyte, JSC held at page 119 that:
It is a well-established principle of construction of statutes, and indeed the Constitution, that where the definition section, therein has defined a particular word or expression, the meaning so given to the word, unless the context otherwise requires, shall be used throughout the statute. See Ejoh vs. I.G.P. (1963) 1 All NLR 250.

See Oyeyemi vs. Commissioner for Local Government, Kwara State (1992) 1 SCNJ (Pt.2) 266.

Order 1 Rule 3 of the Court of Appeal Rules, 2016 is couched in mandatory terms. The Rules have provided that The Practice and Procedure of the Court from 1st December, 2016 when the Rules came into force shall be as prescribed by these Rules notwithstanding any written law or rule of practice and procedure to the contrary in any of the states. The word shall means must or mandatory when employed by the legislature, in the Constitution, a statute or the Rules of Practice and Procedure. The word shall and may have been judicially interpreted in Chief Mokelu vs. Federal Commissioner For Works and Housing (1976) NMLR 329 at 332 to 333 by Madarikan, JSC as follows:

It only remains for us to consider the alternative argument urged upon the Court by Mr. Balogun. It relates to the construction of Section 22(2) of the Federal Revenue Court Act, 1973. It reads:

(2)No cause or matter shall be struck out by the Federal Revenue Court merely on the ground that such cause or matter was taken in the Federal Revenue Court instead of the High Court of a State in which it ought to have been brought, and the Judge of the Federal Revenue Court before whom such cause or matter is brought may cause such cause or matter to be transferred to the appropriate High Court of a State in accordance with rules of Court to be made under Section 43 of this Decree.

We think that Mr. Balogun was on firm ground when he submitted that where an action is instituted in the Federal Revenue Court instead of the High Court in which it ought to have been brought, Section 22(2) enjoins the Federal Revenue Court not to strike out the action merely on that ground. In the expression no cause or matter shall be struck out by the Federal Revenue Court we are of the view that the word shall must be given its natural and proper meaning which is that a mandate is enjoined
See Edewor vs. Uwegba (1987) 2 SCNJ 18 and Amaefule vs. State (1988) 2 NWLR (Pt.75) 155 at 166-167.

The granting or refusal of the remedies the appellant is seeking will depend on whether the determination appealed against is a decision, final, or interlocutory. There is a wall of difference between a decision, a final decision and an interlocutory decision even in legal parlance. These words and phrases are defined in Blacks Law Dictionary, 9th edition, page 467 in the following manner:-

Decision 1. A judicial or agency determination after consideration of the facts and the law; especially a ruling, order, or judgment pronounced by a Court when considering or disposing or a case. See JUDGMENT (1) OPINION

Final decision. See final judgment under JUDGMENT A Courts last action that settles the rights of the parties and disposes of all issues in controversy, except for the award of costs (and, sometimes, attorneys fee) and enforcement of the judgment. Also termed final appealable judgment; final decision; final decree; definitive judgment; determinative judgment; final appealable order. See FINAL JUDGMENT RULE

Interlocutory decision. See Interlocutory order under ORDER An order that relates to some intermediate matter in the case; any order other than a final order. Most interlocutory orders are not appealable until the case is fully resolved. But by rule or statute, most jurisdictions allow some types of interlocutory orders (such as preliminary injunctions and class-certification orders) to be immediately appealed. Also termed interlocutory decision; interim order; intermediate order. See appealable decision under DECISION; COLLATERAL-ORDER DOCTRINE

See Section 241(1)(a)-(2), 242(1)-(2) and 243 of the Constitution of the Federal Republic of Nigeria, 1999 as altered and Sections 13-14, 24(1)-(4) of the Court of Appeal (2010 Amendment) Act:-

241(1) An appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases:-
(a)final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance;

(b)where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings;

(c)decisions in any civil or criminal proceedings on questions as to the interpretation or application of this Constitution;

(d)decisions in any civil or criminal proceedings on questions as to whether any of the provisions of Chapter IV of this Constitution has been, is being or is likely to be, contravened in relation to any person;

(e)decisions in any criminal proceedings in which the Federal High Court or a High Court has imposed a sentence of death;

(f)decisions made or given by the Federal High Court or a High Court:-
(i)where the liberty of a person or the custody of an infant is concerned,
(ii)where an injunction or the appointment of a receiver is granted or refused,
(iii)in the case of a decision determining the case of a creditor or the liability of a contributory or other officer under any enactment relating to companies in respect of misfeasance or otherwise,
(iv)in the case of a decree nisi in a matrimonial cause or a decision in an admiralty action determining liability, and
(v)in such other cases as may be prescribed by any law in force in Nigeria.

(2)Nothing in this section shall confer any right of appeal:-
(a)from a decision of the Federal High Court or any High Court granting unconditional leave to defend an action;

(b)from an order absolute for the dissolution or nullity of marriage in favour of any party who, having had time and opportunity to appeal from the decree nisi on which the order was founded, has not appealed from that decree nisi; and

(c)without the leave of the Federal High Court or a High Court or of Appeal, from a decision of the Federal High Court High Court made with the consent of the parties or as to costs only.

242(1) Subject to the provisions of Section 241 of this Constitution, an appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal with the leave of the Federal High Court or that High Court or the Court of Appeal.

(2)The Court of Appeal may dispose of any application for leave to appeal from any decision of the Federal High Court or a High Court in respect of any civil or criminal proceedings in which an appeal has been brought to the Federal High Court or a High Court from any other Court after consideration of the record of the proceedings, if the Court of Appeal is of opinion that the interests of justice do not require an oral hearing of the application.

243(1) Any right of appeal to the Court of Appeal from the decision of Federal High Court or a High Court conferred by this Constitution shall be:-
(a)Exercisable in the case of civil proceedings at the instance of a party thereto, or with the leave of the Federal High Court or the High Court or the Court of Appeal at the instance of any other person having an interest in the matter, and in the case of criminal proceedings at the instance of an accused person or, subject to the provisions of this Constitution and any powers conferred upon the Attorney-General of the Federation or the Attorney-General of a State to take over and continue or to discontinue such proceedings, at the instance of such other authorities or person as may be prescribed; and
(b)Exercised in accordance with any Act of the National Assembly and rules of Court for the time being in force regulating the powers, practice and procedure of the Court of Appeal.

(2)An appeal shall lie from the decision of the National Industrial Court as of right to the Court of Appeal on questions of fundamental rights as contained in Chapter IV of this Constitution as it relates to matters upon which the National Industrial Court has jurisdiction.

(3)An appeal shall only lie from the decisions of the National Industrial Court to the Court of Appeal as may be prescribed by an Act of the National Assembly;
Provided that where an Act or Law prescribes that an appeal shall lie from the decisions of the National Industrial Court to the Court of Appeal, such appeal shall be with the leave of the Court of Appeal.

(4)Without prejudice to the provisions of Section 254C(5) of this Constitution, the decision of the Court of Appeal in respect of any appeal arising from any civil jurisdiction of the National Industrial Court shall be final.

13.This Part of this Act shall apply to the exercise of the jurisdiction of the Court of Appeal to hear appeals in civil causes or matters.

14(1)Where, in the exercise by the High Court of a State or, as the case may be, the Federal High Court of its original jurisdiction, an interlocutory order or decision is made in the course of any suit or matter, an appeal shall, by leave of that Court or of the Court of Appeal, lie to the Court of Appeal; but no appeal shall lie from any order made exparte, or by consent of the parties ore relating only to costs.
(2)Nothing in subsection (1) of this section, shall be construed so as to authorize an application to the Court of Appeal in the first instance for leave to appeal from an interlocutory order or decision made in the course of any suit or matter brought in the High Court of a State or the Federal High Court.

24(1)Where a person desires to appeal to the Court of Appeal, he shall give notice of appeal or notice of his application for leave to appeal in such manner as may be directed by rules of Court within the period; prescribed by the provision of Sub-section (2) of this section that is applicable to the case.
(2)The periods for the giving of notice of appeal or notice of application for leave to appeal are:-
(a)in an appeal in a civil cause or matter, fourteen days where the appeal is against an interlocutory decision and three months where the appeal is against a final decision;
(b)in an appeal in a criminal cause or matter, ninety days from the date of the decision appealed against.

(3)Where an application for leave to appeal is made in the first instance to the Court below, a person making such application shall, in addition to the period prescribed by Subsection (2) of this section, be allowed a further period of fifteen days, from the date of the determination of the application by the Court below, to make another application to the Court of Appeal.

(4)The Court of Appeal may extend the periods prescribed in subsections (2) and (3) of this section.

An Interlocutory decision or order is not mentioned in Section 294(2) which confers appellate jurisdiction on the Court of Appeal nor is the phrase defined in Section 318(1) of the Constitution. An interlocutory decision or order is mentioned in Sections 13-14, 17-18 and 24(1)-(2)(a)-(b) and 3-4 of the Court of Appeal (2010 Amendment) Act provides that:-
13. This Part of this Act shall apply to the exercise of the jurisdiction of the Court of Appeal to hear appeals in civil causes or matters.
14(1)Where, in the exercise by the High Court of a State or, as the case may be, the Federal High Court of its original jurisdiction, an interlocutory order or decision is made in the course of any suit or matter, an appeal shall, by leave of that Court or of the Court of Appeal, lie to the Court of Appeal; but no appeal shall lie from any order made exparte, or by consent of the parties are relating only to costs.
(2)Nothing in subsection (1) of this section, shall be construed so as to authorize an application to the Court of Appeal in the first instance for leave to appeal from an interlocutory order or decision made in the course of any suit or matter brought in the High Court of a State or the Federal High Court.

17.An appeal under this Part of this Act shall not operate as a stay of execution, but the Court of Appeal may order a stay of execution either unconditionally or upon the performance of such conditions as may be imposed in accordance with rules of Court.

Time for lodging appeal against an interlocutory decision or order or a final decision in civil causes and matters or a decision in criminal appeal proceedings is provided under Section 24(1)-(4) of the Act to wit:-
24(1) Where a person desires to appeal to the Court of Appeal, he shall give notice of appeal or notice of his application for leave to appeal in such manner as may be directed by rules of Court within the period; prescribed by the provision of Sub-section (2) of this section that is applicable to the case.

(2)The periods for the giving of notice of appeal or notice of application for leave to appeal are:-
(a)in an appeal in a civil cause or matter, fourteen days where the appeal is against an interlocutory decision and three months where the appeal is against a final decision;
(b)in an appeal in a criminal cause or matter, ninety days from the date of the decision appealed against.
(3)Where an application for leave to appeal is made in the first instance to the Court below, a person making such application shall, in addition to the period prescribed by Subsection (2) of this section, be allowed a further period of fifteen days, from the date of the determination of the application by the Court below, to make another application to the Court of Appeal.
(4)The Court of Appeal may extend the periods prescribed in Subsections (2) and (3) of this section.

Different legal consequences follows an appeal lodged against an interlocutory decision or order in the sense that the would-be appellant has to seek leave of the Court below to appeal. If leave is refused, the application will be renewed in the Court of Appeal.

Where the decision of the Court of first instance is final leave is not needed to appeal to the Court of Appeal. The appellant shall appeal as of right to the Court of Appeal if the decision is from the High Court of a State or the Federal High Court or if the appeal is against the decisions of these Courts in exercise of their appellate or supervisory jurisdiction as set out in Section 242(1)-(2) of the Constitution of the Federal Republic of Nigeria, 1999 as altered:-
242(1) Subject to the provisions of Section 241 of this Constitution, an appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal with the leave of the Federal High Court or that High Court or the Court of Appeal.

The legislature envisaged that a party who is aggrieved with the decision of a Court below may want to challenge that decision. The word decision is employed by the legislature in Section 36(1)-(2) and 294(1) of the Constitution of the Federal Republic of Nigeria, 1999 as altered. The person or party will file a Notice of Appeal having obtained leave from the Court below or the Court of Appeal within the time stipulated in Sections 13-14, 18 or 24(1)-(4) of the Court of Appeal Act as the case may be. The Notice of Appeal will be accompanied with the original grounds of appeal. That is the purport of Sections 13-14, 18 and 24(1)-(4) of the Court of Appeal Act (2010 Amendment). I have noticed that the appellant did not mention on the motion paper the Court that rendered the decision the subject of this application nor the day the decision was rendered. An applicant is bound by the prayers on the sworn motion paper. The affidavit is merely evidence to verify the reliefs on the motion. Section 115 of the Evidence Act, 2011 is couched as follows:-

115(1) Every affidavit used in the Court shall contain only a statement of fact and circumstances to which the witness deposes, either of his own personal knowledge or from information which he believes to be true.

(2)An affidavit shall not contain extraneous matter, by way of objection, prayer or legal argument or conclusion.

(3)When a person deposes to his belief in any matter of fact, and his belief is derived from any source other than his own personal knowledge, he shall set forth explicitly the facts and circumstances forming the grounds of his belief.

(4)When such belief is derived from information received from another person, the name of his informant shall be stated and reasonable particulars shall be given respecting the informant and the time, place and circumstance of the information.

The sworn affidavit is evidence. In Bamaiyi vs. The State (2001) FWLR (Pt.46) 956, Uwaifo, JSC held at page 978 paragraph G to page 979 paragraphs A-B and page 981 paragraphs C-F that:-
I think the two affidavits must now be read as one since the one later in time was sworn in furtherance of the earlier. It must not be forgotten that the deponent, Olakunle Ligali, deposed that by virtue of his schedule of duties, he became conversant with the facts of this case. To be conversant with, is to have knowledge of a matter. Even so, the law requires a deponent of his type to confine himself to facts and circumstances. An affidavit meant for use in Court stands as evidence and must, as near as possible, conform to oral evidence admissible in Court. Sections 86 and 87 of the Evidence Act provides as follows:

86. Every affidavit used in the Court shall contain only a statement of facts and circumstances to which the witness deposes, either of his own personal knowledge or from information which he believes to be true.

87.An affidavit shall contain extraneous matter, by way of objection, or prayer, or legal argument or conclusion.

These provisions have received the consideration of this Court in Governor of Lagos State Vs. Ojukwu (1986) 1 NWLR (pt. 18) 621; Orji Vs. Zaria Industries Ltd. (1992) 1 NWLR (pt. 216) 124; and more recently Josien Holdings Ltd. Vs. Lornamead Ltd. (1995) 1 NWLR (pt. 371) 254
I think the legal position is clear that in any affidavit used in the Court, the law requires, as provided in Sections 86 and 87 of the Evidence Act, that it shall contain only a statement of facts and circumstances derived from the personal knowledge of the deponent or from information which he believes to be true, and shall not contain extraneous matter by way of objection, or prayer, or legal argument or conclusion. The problem is sometimes how to discern any particular extraneous matter.

The test for doing this, in my view, is to examine each of the paragraphs deposed to in the affidavit to ascertain whether it is fit only as a submission which Counsel ought to urge upon the Court. if it is, then it is likely to be either an objection or legal argument which ought to be pressed in oral argument; or it may be conclusion upon an issue which ought to be left to the discretion of the Court either to make a finding or to reach a decision upon through its processes of reasoning. But if it is in the form of evidence which a witness may be entitled to place before the Court in his testimony on oath and is legally receivable to prove or disprove some fact in dispute, then it qualifies as a statement of facts and circumstances which may be deposed to in an affidavit. It therefore means that the prayers, objections and legal arguments are matters that may be pressed by Counsel in Court and are not fit for a witness either in oral testimony or in affidavit evidence; while conclusions should not be drawn by witnesses but left for the Court to reach.
See also Habib vs. Principal Immigration Officer (1958) 3 FSC 75 at page 77.

Provision is made in Order 19 Rules 2 and 3(1) of the Rules to enable an appellant to file within forty-five days of the receipt of the record of appeal from the Court below a written brief, being a succinct statement of his argument in the appeal. Order 19 Rule 3(1) reads The brief, which may be settled by Counsel, shall contain an address or addresses for service and shall contain what are, in the appellants view, the issues arising in the appeal as well as amended or additional grounds of appeal as stipulated under Order 19 Rules 2-3(1) of the Court of Appeal Rules, 2016. Granting the prayers on the motion will extend the time the applicants will file a brief of argument and serve the respondents who will file brief under Order 19 Rule 4(1) and (2) of the Rules, 2016 to wit:-

4(1) The respondent shall also within thirty days of the service of the brief for the appellant on him file the respondents brief which shall be duly endorsed with an address or addresses for service.

(2)The respondents brief shall answer all material points of substance contained in the appellants brief and contain all points raised therein which the respondent wishes to concede as well as reasons why the appeal ought to be dismissed. It shall mutatis mutandis, also conform to Rule

3(1), (2), (3), (4), (5) and (6) of this Order.

Upon service the appellants may file a reply brief under Order 19 Rule 5 of the Court of Appeal Rules, 2016 before the appeal is heard.

Section 240 of the Constitution list the Courts that the Court of Appeal may exercise appellate jurisdiction to hear and determine appeals from their decisions not rulings or interlocutory decisions or orders. Section 240 reads as follows:-
240. Subject to the provisions of this Constitution, the Court of Appeal shall have jurisdiction to the exclusion of any other Court of law in Nigeria, to hear and determine appeals from the Federal High Court, the National Industrial Court, the High Court of the Federation Capital Territory, Abuja, High Court of a State, Sharia Court of Appeal of the Federal Capital Territory, Abuja, Sharia Court of Appeal of a State, Customary Court of Appeal of a State and from decisions of a Court martial or other tribunals as may be prescribed by an Act of the National Assembly.

The appellant(s) shall file their brief of argument setting forth (a) the address or addresses of all the parties that ought to be served with the processes in connection with the hearing and determination of the appeal. Order 8 Rule 10(3) of the Rules (supra) provides that:-
(3)The Registrar of the Court below or the appellant as the case may be, shall within seven days of the transmission of the record to the Court, cause to be served on all parties mentioned in the Notice of Appeal, a notice that the record has been transmitted to the Registrar of the Court who shall in due course enter the appeal in the cause list.

The date of transmission and receipt of the records by an appellant is very crucial. This ought to be set out in the motion or in the supporting affidavit else it will amount to suppression of facts or truth as to the date the appellant or the respondent as the case may be, was served the record of appeal for the purpose of determining when the forty five days commenced and expired or lapsed. A party seeking discretionary remedies from a Court of law and equity has to come with clean hands. The applicant has to disclose all the essential facts to convince the Court of Appeal why he or she deserves a sympathetic hearing.

What the applicant deposed in the supporting affidavit may be true or lies. What is true is described in Collins CoBuild Advanced Learners Dictionary, 2006 edition, page 1555 as follows:
1. If something is true, it is based on facts rather than being invented or imagined, and is accurate and reliable. Everything I had heard about him was true The film tells the true story of a group who survived in the Andes in sub-zero temperatures. 2. You use true to emphasize that a person or thing is sincere or genuine, often in contrast to something that is pretended or hidden. I allowed myself to acknowledge my true feelings The true cost often differs from that which had first been projected. 3. If you use true to describe something or someone, you approve of them because they have all the characteristics or qualities that such a person or thing typically has. Maybe one day youll find true love The ability to work collaboratively is a true test of leadership I think hes a true genius. 4. If you say that a fact is true of a particular person or situation, you mean that it is valid or relevant for them. I accept that the romance may have gone out of the marriage, but surely this is true of many couples Expenditure on health in most of these countries has gone down, and the same is true for education. 5. If you are true to someone, you remain committed and loyal to them. If you are true to an idea or promise, you remain committed to it and continue to act according to it. David was true to his wife India has remained true to democracy Shes been true to her word from day one.
Truth and truthful are in the same dictionary at page 1557 as follows:

1. The truth about something is all the facts about it, rather than things that are imagined or invented. I must tell you the truth about this business The truth of the matter is that we have no other choice In the town very few know the whole truth.

2. If you say that there is some truth in a statement or story, you mean that it is true, or at least partly true. There is no truth in this story… Is there any truth to the rumors?

3. A truth is something that is believed to be true. It is an almost universal truth that the more we are promoted in a job, the less we actually exercise the skills we initially used to perform it.

4. See also home truth, moment of truth.

5. You say in truth in order to indicate that you are giving your honest opinion about something. In truth, we were both unhappy.

6. You say to tell you the truth or truth to tell in order to indicate that you are telling someone something in an open and honest way, without trying to hide anything. To tell you the truth, I was afraid to see him.

Truthful: If a person or their comments are truthful, they are honest and do not tell any lies. We have all learnt to be fairly truthful about out personal lives She could not give him a truthful answer. Truthfully I answered all their questions truthfully. Truthfulness I can say, with absolute truthfulness, that I did not injure her.

How about lies or falsehood? Lies are usually told by liars. If you say that someone is a liar you mean that they tell lies. See Collins CoBuild Advanced English Dictionary (ante) page 826. What if a person is lying? Hear the authors of Collins CoBuild Advanced English Dictionary (ante) page 826: Liar If you say that someone is a liar, you mean that they tell lies. He was a liar and a cheat She seems at times an accomplished liar, he said. Writes the editors of Osborns Concise Law Dictionary, 9th edition by Sheila Bone, page 233:

(2) Under the rules of evidence, the jury may be entitled to draw an inference of the guilt of the accused from lies told by him either out of Court or in Court, provided they are satisfied beyond a reasonable doubt that the accused did lie and that he did so because he was guilty, and not for some other reason (R. vs. Burge (1996) 1 Cr. App. R.163).

But truth is defined in Blacks Law Dictionary, 9th edition, page 1657 as follows:

Truth – A fully accurate account of events; factuality. An affirmative defense by which the Defendant asserts that the alleged defamatory statement is substantially accurate and slanderous.
Truth-seeker One who strives to reveal the truth. .

Truth, the whole truth, and nothing but the truth the words used in the common oath administered to a witness who is about to testify, < do you swear or affirm that you shall tell the truth, the whole truth and nothing but the truth>. The purpose of the second part of the oath is to preclude the possibility of supressio veri, the purpose of the third part is to preclude the possibility of suggestion falsi. See Suppressio Veri, Suggestion falsi.

In Blake vs. Mowatt 1856, 21 Beau 603 at 613 (35 Digest 639) Romily, M.R. stated thus:
It is the leading principle of the equity administration in this Court, that truth shall govern all transactions, and that one who deludes another in a contract, or permits him to be deluded, and takes advantage of that delusion, cannot afterwards complain, that, if the contract be set aside, he will be in a worse situation than if the contract had never been entered into.

The applicants are not truthful with their motion or the supporting affidavit for failure to disclose the Court against they lodged an appeal; why they did not amend the Notice of Appeal within the forty-five days of the receipt of the record of appeal and why the brief has not been filed till date, yet there is no prayers to file appellants brief on the motion.

In Langton vs. Hughes (1813) 12 Digest 270, 2214, Lord Ellenborough, C.J., held that: What is done in contravention of the provisions of an Act of Parliament, cannot be made the subject-matter of an action cited with approval in Bostel Bros. Ltd. vs. Hurlock (1948) 2 All E.R. 312 at 313. See also Brightman vs. Tate (1919) 1 K.B. 463 and Re Mahmoud and Ispahani (1921) 2 K.B. 716 or 12 Digest 271, 2220.

In Packer vs. Packer (1953) 2 All E.R. 127, Denning, L.J., held at page 129 as follows:
I am not inclined however, to stand out for a strict construction of an Act of Parliament if reason and good sense point to a different construction. But in this case reason and good sense go hand in hand with the strict construction.

Time has come for learned Counsel that represents their clients in the Court of justice and equity to learn that processes are to be filed within the time stipulated in the Constitution, the Court of Appeal (2010 Amendment) Act and the Rules of Practice and Procedure which will ensure the speedy disposal of appeals and applications for the successful party either in the Court of Appeal or the lower Court to enjoy the fruits of his or her labour. A situation where one party obtains a decision in his or her favour in respect of that or personal property but cannot take possession for many years on the pretext of a pending appeal or frivolous applications that are often filed a few days of hearing the substantive appeal is neither fair to the respondent, the Court, the society or community where the parties reside. There should be an end to litigation. See Eke vs. Ogbonda (2006) 12 SCNJ 29, Niki-Tobi, JSC at page 48 that fair hearing is not only for the appellant but the respondent. Niki Tobi, JCA (as he then was) described justice as that very expensive commodity in UBA Plc vs. Mode Nig. Ltd. (2001) FWLR (Pt.40) 1664 at 1681 paragraph B. Justice is not a fencing game so held Aniagolu, JSC in Afolabi vs. Adekunle (1983) 2 SCNLR 141 at 150 to wit:-

While recognizing that the Rules of Court should be followed by parties to a suit, it is perhaps necessary to emphasize that justice is not a fencing game in which parties engage themselves in an exercise of out-smarting each other in a whirligig of technicalities to the detriment of the determination of the substantial issues between them.

This panel was empaneled by the Presiding Justice of the Court of Appeal, Makurdi Division, Benue State to examine the reasons why there are moribund appeals and application either in the Registry of the Court or on the cause list and to determine their outcome for the benefit of all the parties. Each case is being treated as its circumstances warrant. I have drawn attention to the provisions of Order 2 Rules 10-16 of the Court of Appeal Rules, 2016 to show that one of the causes of the moribund appeals and applications is the issue of service of processes on either the appellant(s) or the respondent(s) personally or by substituted means. I shall draw in particular the attention of the respondents to the provisions of Order 2 Rule 4(1)-(3), 5-9 of the Rules to wit:-

4(1) Every person who by virtue of service on him of a notice of appeal becomes a Respondent to any appeal or intended appeal shall within thirty days after service on him of the notice of appeal file twenty copies with the registrar of the Court below notice of a full and sufficient address for service in such number of copies as the said registrar shall require. The registrar of the Court below shall forthwith send a copy of the notice of address to the Registrar and shall cause a copy thereof to be served on the Appellant.
(2) Such notice may be signed by the Respondent or his legal representative.
(3) If any Respondent fails or omits to file such notice of address for service it shall not be necessary to serve on him any other proceeding in the appeal or any notice of hearing thereof.

5. Any reference in these Rules to an address for service means a physical or postal address within the Federal Republic of Nigeria or an electronic mail address or a facsimile number or telephone number or any other mode of communication as may become available to where notices and other processes, which are not required to be served personally, may be left or sent or posted or transmitted.

6. Where under these Rules, any notice or other process is required to have an address for service endorsed on it; it shall not be deemed to have been properly filed unless such address has been endorsed on it.

7. The Court may in any case direct that the notice of appeal be served on any party to the proceedings in the Court below on whom it has not been served, or on any person not party to those proceedings.

8. In any case in which the Court directs that the notice of appeal shall be served on any party or person, the Court may also direct that any Respondent’s notice shall be served on him.

9. The Court may in any appeal where it gives a direction under Rules 12 and 13 of this Order:-
(a) postpone or adjourn hearing of the appeal for such period and or; such terms as may be just; and
(b) give such judgment and make such order on the appeal as might have been given or made if the persons served in pursuance of the direction had originally been parties.

The parties or their legal representatives should not close their eyes to the provisions of Order 3 Rules 8-14 of the Rules which provides as follows:-
8(1)The Registry of each Judicial Division of the Court shall be situate in a town within the Judicial Division of the Court to be established.

(2)Except when otherwise expressly provided, all documents and proceedings shall be filed in the appropriate Registry; Provided that whilst the Court is sitting in any Judicial Division or other place of session any documents or proceedings in connection with a matter to be dealt with at such Division or other place of session may be filed with the Registrar of the Court at such a place.

(3)A document may be filed in the appropriate Registry of the Court or such other place of session either by being delivered there by the party or his legal representative or agent in person or by registered post or by electronic means.

9.The Registries of the Court shall, subject to the directions of the President, be open to the public everyday in the year from eight O clock in the forenoon to two o’ clock in the afternoon, except on Saturdays and Sundays or on any day declared a public holiday under any written law.

10. Sessions of the Court may be convened and constituted, and the time, venue and forum for all sessions and for hearing interlocutory applications shall be settled in accordance with general or specific directions to be given by the President.

11. The Registrar may post up every Friday a weekly cause list, which shall set out the arrangement of fixture of causes for hearing on each day during the following week; Provided that not more than 25 causes may be fixed for hearing each day.

12. The Presiding Justice of a Division of the Court may direct that a certain day of the week be reserved in the weekly cause list for rulings and judgments.

13. The sittings of the Court and the matters to be disposed of at such sitting shall be advertised and notified in such manner as the President may direct;
Provided that the Court may in its discretion hear any appeal and deal with any other matter whether or not the same has been advertised.

14. The Court may, at any time on application or of its own motion, adjourned any proceedings pending before it from time to time and from place to place.

Where the respondent upon service of process failed, refused or neglected to comply with the provisions of Order 2 Rule 4(1)-(3) of the Rules would have himself or herself to blame if the Registry of the Court of Appeal do not serve him or her or the legal representatives process and the Court proceeds to hear and determine the appeal or the application in their absence. This can be seen from the provisions of Order 19 Rule 2 of the Court of Appeal Rules, 2016 to wit:-

2.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.

The failure of an appellant to file brief to contain the address or addresses of service of all the persons or parties mentioned in the Notice of Appeal or their legal representatives has dire and unsavoury consequences. Order 2 Rule 1-9 of the Court of Appeal Rules, 2016 as follows:-

1(a)Every Notice of Appeal shall, subject to the provisions of Order 2 Rules 7, 8 and 9, be served personally; Provided that if the Court is satisfied that the notice of appeal has in fact been communicated to the Respondent, no objection to the hearing of the appeal shall lie on the ground that the notice of appeal was not served personally.
(b)Except as may be otherwise provided in these Rules or in any other written law, it shall not be mandatory for notices, orders, summonses, warrants or other processes of the Court to be served personally.

2.The registry of the Court below shall, after the notice of appeal has been filed, cause to be served a true copy thereof upon each of the parties mentioned in the notice of appeal but it shall not be necessary to serve any party not directly affected; Provided that the Court may, of its own motion, or on the application of any person claiming to be affected, direct notice to be served on all or any parties to the action or other proceeding or upon any person not a party and in the meantime may postpone or adjourn the hearing of the appeal upon such terms as may be just and make such order(s) as might have been made if the persons served without notice had been originally parties to the appeal.

3. Where in any proceeding in the court below a party has given an address for service, notice of appeal from any decision made under such proceeding may be served on such party at such address for service, and notice of any application preparatory or incidental to any such appeal, may be served in like manner at any time before the date on which the Respondent gives notice of his address for service in accordance with the immediately following Rule.

4(1) Every person who by virtue of service on him of a notice of appeal becomes a Respondent to any appeal or intended appeal shall with in thirty days after service on him of the notice of appeal file twenty copies with the registrar of the Court below notice of a full and sufficient address for service in such number of copies as the said registrar shall require. The registrar of the Court below shall forthwith send a copy of the notice of address to the Registrar and shall cause a copy thereof to be served on the Appellant.
(2)Such notice may be signed by the Respondent or his legal representative.
(3) If any Respondent fails or omits to file such notice of address or service it shall not be necessary to serve on him any other proceeding in the appeal or any notice of hearing thereof.

5. Any reference in these Rules to an address for service means a physical or postal address within the Federal Republic of Nigeria or an electronic mail address or a facsimile number or telephone number or any other mode of communication as may become available to where notices and other processes, which are not required to be served personally, may be left or sent or posted or transmitted.

7. The Court may in any case direct that the notice of appeal be served on any party to the proceedings in the Court below on whom it has not bee served, or on any person not party to those proceedings.

8. In any case in which the Court directs that the notice of appeal shall be served on any party or person, the Court may also direct that any Respondent’s notice shall be served on him.

9.The Court may in any appeal where it gives a direction under Rules 12 and 13 of this Order:-
(a) postpone or adjourn hearing of the appeal for such period and or; such terms as may be just; and
(b)give such judgment and make such order on the appeal as might have been given or made if the persons served in pursuance of the direction had originally been parties.

The Rules makes a distinction in regard to the processes that must be served personally on the parties or their legal representatives and what can be served by substituted means as provided under Order 2 Rules 10-16 of the Rules to wit:-

10.Where under these Rules any person has given an address for service, any notice or other process, which is not required to be served personally, shall be sufficiently served upon him if:
(a) left at that address, or
(b) sent by registered post to that address and in which case if the date of service by post is material, Section 26 of the Interpretation Act shall apply, or
(c) transmitted by electronic means to the electronic mail address or facsimile number or, telephone number or any other mode of electronic communication.

11. Any party to an appeal or intended appeal may change his address for service at any time, by filing and serving on all other parties to the appeal or intended appeal, notice of such change.

12.Any person desiring to change his address for service shall notify the Registrar and shall also communicate the new address to all other parties to the appeal.

13. Where any person has given the address of a Legal Practitioner as his address for service and the Legal Practitioner is not, or has ceased to be instructed by him for the purpose of the proceedings concerned, it shall be the duty of the Legal Practitioner to inform the Registrar as soon as may be practicable that he is not or no longer authorized to accept service on behalf of such person, and if he omits to do so he may be ordered to personally pay any costs occasioned thereby.

14.Where a Minister or Commissioner, or the Attorney-General, or the Director of Public Prosecutions, or any other public officer of the Federal Republic of Nigeria or of a State thereof is a party ex-officio or as representing the Federal or a State Government, as the case may be, in any proceedings in the Court, whether civil or criminal, any notice or other document may be served on him by leaving it at or by sending it by registered post to his chambers or office and service in this manner shall be as effective as if it were personal service.

15. Where any document is required by these Rules to be served personally, it shall be sufficiently served if it is served in the manner prescribed by law for the personal service of a writ of summons issued by the High Court having jurisdiction in the State in which service is to be effected and if it appears to the Court that for any reason personal service cannot be conveniently effected, the Court shall have the same power as that High Court to direct that service be effected in some other way.

16(1) Where any person out of the jurisdiction of the Court is a necessary or proper party to an appeal before the Court and it is necessary to serve him with the notice of appeal or other document relating to the appeal, the Court may allow service of the notice of appeal or such other document out of the jurisdiction.
(2) Every application for an order for leave to serve a notice of appeal or other document on a person out of the jurisdiction shall be supported by affidavit or otherwise showing in what place or country such a person is or probably may be found, and the grounds upon which the application is made.
(3)Any order granting leave to effect service out of the jurisdiction shall prescribe the mode of service, and shall limit a time within which such party may acknowledge such a service, such a time to depend on the place or country where or within which the notice or document is to be served, and, the Court may receive an affidavit or statutory declaration of such service having been effected as prima facie evidence thereof.

Personal service on the party mentioned in the Notice of Appeal of certain processes does not require leave of Court but where the Rules authorize substituted service, leave of Court is required to validate the service and the process, particularly if the persons or parties to be served are out of the jurisdiction of the Court. Order 19 Rule 9(1) of the Rules provides as follows:-
9(1) Oral argument will be allowed at the hearing of appeal to emphasize and clarify the written argument appearing in the briefs already filed in Court.

It seems to me that oral argument shall be allowed at the hearing of appeal to emphasize and clarify the written argument appearing in the briefs already filed in the Court hence, where the appellant has filed no brief up to the moment the appeal was being heard, the Court of Appeal is not obliged to hear oral argument from the appellant or the appellant as there will be nothing to emphasize or clarify in oral argument in a non-existent brief of argument. The remedy will be for the respondent to move the hand of the Court of Appeal to invoke the provisions of Order 19 Rules 10(1) of the Rules .for the appeal to be dismissed for want of prosecution Generally speaking, a dismissal of an appeal for want of prosecution is not on merit so held the Supreme Court in Obasi Bros. Co. Ltd. vs. Merchant Bank of West Africa Securities Ltd. (2005) 2 SCNJ 272, Pat-Acholonu, JSC held at pages 278-279 as follows:

A final judgment is one which decides the rights of parties. In other words it is a decision on the merits of the case where the matter is assiduously canvassed and the rendition of a judgment is based on what is canvassed and agitated before the Courts by the legal combatants. The question to resolve here is whether such is the position in the earlier Suit No.LD/3356/1992 hitherto filed in the High Court by the respondent. Therefore for the doctrine of estoppel per rem judicatam to operate as estoppel, in all its ramifications, it is important that the case between the parties presently in Court had been adjudicated between them before on its merit and the Court had reached and delivered a final judgment. The doctrine does not operate in an inchoate matter, id est, it rests on a priori conception that the rights agitated and assiduously canvassed by the parties on the issue in controversy had earlier been determined.

It is erroneous to construe a mere striking out of a case on the basis that because the proponent of the action had become lethargic or nonchalant to prosecute a case and the Court relying on its inherent powers to strike out the case, it amount to dismissal on the merit. See Rakin Udo & Ors vs. Mbiam Obot and Ors. (1989) 1 NWLR (Pt.95) at p.59 at 72.

The learned Counsel for the appellant has tended to make a heavy weather in the case of Eronini vs. Iheuko (1989) 2 NWLR (Pt.101) 46. An analytical and forensic comparison with that case shows distinctive characteristics easily distinguishable. In the present case the respondent in this matter in its Suit No.LD/3359/1992 did nothing whatsoever to proceed with the action it initiated. In such a situation the Court using its inherent powers struck out the case after the initiator of the action seriously manifested or evinced an intention not to continue or follow up, pursue or persevere with the case. The respondent would be presumed to have developed cold feet. The Court seised with such proceedings would not ordinarily allow the case for which no further interest appeared to have been shown by the initiator of the action to stay in the Court list. It therefore used its untrammeled judicial powers which inhere in it to strike out the case.

In the case of Leonard Eronini & Ors. vs. Francis Iheuko (supra), the plaintiff who later was the respondent had initiated an action against the appellant. When he started to give evidence, his testimony markedly contradicted the facts averred in his pleading. There was such a confusion in the presentation of the case that the plaintiffs Counsel decided to discontinue with the case and asked that the case be struck out. The defence Counsel in that case wanted outright dismissal. Of course in the Supreme Court, this Court held that the right decision the Court below should have made was to dismiss the case. It was obvious that the case of the plaintiffs (respondent) in that matter was in tatters as it had no remedying factor.

In other words he fired his last salvo. His case was found to be completely bereft of any substance being completely empty of any remedying feature. In the present case, nothing had been done at all. When a party who filed an action in the Court commences giving evidence which is in conflict with the facts pleaded and raises such confusion that it becomes difficult to determine whether the plaintiff knows the facts of his case, and at a stage he asks the Court to strike out the case, the Court should dismiss it because there is nothing more to urge on the Court as the case sought to be put forward is visionless and worthless. This is not the case here where the original plaintiff abandoned its case. It is not even in all cases where a matter is dismissed that it completely terminates the case. Indeed where a case is said to have been dismissed in the High Court but the circumstances show that such dismissal could not possibly connote or denote the determination as to put a finality to the case the Court views such dismissal as a mere striking out. See, for example, Order 30 Rules 3 and 4 of the Lagos 2004 High Court Rules. It is my view that the determination of the suit hitherto instituted by the respondent was definitely not on merit.

But in Ogbechie vs. Onochie (1988) 2 SCNJ (Pt.1) 170 the Supreme Court held at pages 194-195 per Oputa, JSC that:
An order for dismissal made by the Court of first instance was based on the credibility of the witness the trial Court saw, heard and either believed or disbelieved. From what he saw and heard, the learned trial Judge was not satisfied that the claim for a declaration of title had been proved. Can an appellate Court in a case like this, a case turning on the credibility of witnesses, substitute its own satisfaction for that of the trial Court? Of course the answer is a positive unhesitating No. No, it cannot.

Secondly, an order of dismissal puts an end to the claim, while an order for a non-suit or an order striking out, keeps the claim alive. Interest rei publicae ut sit finis litium (Co. Litt. 303). (It is in the interest of all that there should be an end to litigation). The power to order a non-suit should be very carefully and very sparingly used otherwise the Courts will create a situation where there no longer can be any finality to litigations. The West African Court of Appeal sounded a similar warning in Dawodu vs. Gomez (1947) 13 WACA 151 at page 152. It is only if, and where the interest of justice so dictates and/or demands that an order for a non-suit may be considered. This Court considered non-suit the appropriate order to make in Ekpere & Ors. vs. Aforije & Ors. (1972) 1 All NLR (Pt.1) 220 and in Oloriode vs. Oyebi (1984) 1 SC NLR 390. In both cases the central issue was the locus standi of the plaintiffs whose individual interests were different from the interest of the clan or family that holds the radical title. There were not made parties. So in the interest of justice a non-suit was ordered in each state.

Thirdly, for a non-suit or striking out to be ordered the appellants complaint against the judgment of the lower Court must have first been upheld. In Ekperes case (supra) as well as in Oloriodes case the appeal was allowed before the order of non-suit was made. In this case, now on appeal, it was Ground 1 that attacked the judgment of the trial Court that that Court erred in law in refusing to grant a declaration of title in favour of the plaintiffs in respect of the land in dispute. In his lead judgment Omo-Eboh, JCA readily agreed that the trial Judge in refusing to grant the plaintiffs/appellants the declaration they sought acted rightly and well within the discretion allowed him by law. He went further to say that Ground 1 failed. Where, and when a judgment of the lower Court (or part of it) has been unsuccessfully assailed on appeal, the judgment appealed against remains intact. With the failure of Ground 1, the judgment of Unurhoro, J., appealed against on that ground remains intact. The Court of Appeal with the greatest respect, had no right to uphold the decision of the trial Court dismissing a claim and then turn round to make a consequential order which was anything but consequential. An order of dismissal is consequential to the failure to establish the title pleaded. An order for a non-suit or striking out is inconsistent rather than consequential.

Fourthly, an order of striking out, or of a non-suit, is usually made in the interest of justice. Now justice in civil proceedings is not a one way traffic. It is not justice for the plaintiffs/appellants alone. No. It is also justice for the defendants/respondents. Striking out the claim for a declaration will be of immense advantage to the losing plaintiffs (who can thereafter proceed afresh) without any corresponding advantage to the winning defendants/respondents in the Court of Appeal. Justice that is not even handed is not justice. It may be injustice. The Court of Appeal showed some sympathy for the plaintiffs but as I observed in Willoughby vs. International Merchant Bank (1987) 1 NWLR 105 at page 132, justice should do far better without the bandage of prejudice or sympathy around her eyes.

Fifthly, when a case is heard on its merits with all necessary parties before the Court, in such a situation if the plaintiff fails to prove his case, the verdict should be one of dismissal and not striking out or a non-suit. See Olayioye vs. Oso (1969) 1 All NLR 281. This was also what happened in Chief Abusi David Green vs. Chief Dr. E.T. Dublin Green (1987) 3 NWLR 481 where this Court held that where a plaintiff has completely failed to prove his case, the proper order to make it that of dismissal of the suit and not that of striking out the suit in order to give the unsuccessful plaintiff a second chance to prove what he had failed to prove in the fist trial. Giving the plaintiffs/appellants here a second chance by striking out their claim for a declaration of title will certainly be to the prejudice of the defendants whose version of traditional history was found by the trial Court to be more probable
See also Okonkwo vs. Chukwueke (1992) 1 NWLR (Pt.216) 175 at pages 190-191.

I am of the humble opinion however that the intention of Rules Maker is that the failure of the appellant to file a brief of argument up to the time the appeal is to be heard means the appeal has been abandoned; it is moribund. Without the appellants brief the respondent cannot file a brief to enable the appeal to be heard on the merit. This is a special but not a general legislation. InGovernment of Kaduna State vs. Kagoma (1982) 6 SC 87 the Supreme Court held per Fatayi-Williams, JSC at page 107-108 thus:-

It is now trite that where there are two enactments one making specific provisions, the specific provisions are by implication excluded from the general provisions. In Osadebay vs. Attorney-General, Bendel State(1991) SCNJ 102 Nnaemeka-Agu, JSC held at page 218 that:-

One of the basic principles of interpretation of our construction and statutes is of course that the law maker will not be presumed to have given by the right in one Section and taken it in another.

Again in Attorney-General of the Federation vs. Abubakar (2007) All FWLR (Pt.375) 405 the Supreme Court held at page 472 as follows:

It is not the function of the Court to make law but to interpret the words used by the legislature whose primary function is to make the law while that of the Court is to declare it. Assuming the Court has the power of making a legislation, without so deciding, it is doubtful if the law given as a result of the interpretation of Section 146(3)(c) would affect the plaintiffs right or interest which it had vested.

The enactment purportedly made in the course of this judgment would clearly not be applicable to the circumstances of this case. See Samuel Ekeocha vs. Civil Service Commission, Imo State & Another (1981) 1 NCLR 154, 165 per Oputa, C.J. (as he then was). See also Re Cuno (1889) 43 Ch.D. 12, 19 where Bower, L.J. remarked thus:
In the construction of statutes you must not construe the words so as to take away right which already existed before the statute was passed unless you have plain words which indicate that such was the intention of the legislature.

Another factor militating against the contention of the counter-claimant is that where there are two enactments one making specific provisions and the other general provisions, the specific provisions are impliedly excluded from the general provisions. See Government of Kaduna State vs. Kagoma (1982) 6 SC 87 at 107-108 per Fatayi-Williams, CJN:

It is now trite that where there are two enactments one making specific provisions, the specific provisions are by implication excluded from the general provisions.

Similarly, in Osadebay vs. Attorney-General, Bendel State (1991) SCNJ 102 at 218, Nnaemeka-Agu, JSC stated inter alia thus:
One of the basic principles of interpretation of our construction and statutes is of course that the law maker will not be presumed to have given by the right in one Section and taken it in another.
The sum total of these authorities is that the general provision contained in Section 146(3)(c) will by implication be excluded from the previous specific provisions enacted in Section 146(3)(a) and (b) because it cannot be presumed that the intention of the makers of the construction is to give a right with one hand and take same away by another. See pages 277-279 of the records. It is submitted that the above findings and pronouncements are correct and unassailable in law.
See Ugwu vs. Ararume (2007) All FWLR (Pt.377) 80 at 853-855.

Where Order 19 Rule 10(1) of the Rules provides that If the respondent fails to file his brief, he will not be heard in oral argument is the condition in Order 19 Rule 9(1) of the Rules to wit:-

9(1) Oral argument will be allowed at the hearing of appeal to emphasize and clarify the written argument appearing in the briefs already filed in Court.

Furthermore, it is provided that where an appellant fails to file a reply brief within the time specified in Rule 5, he shall be deemed to have conceded all the new points or issues arising from the respondents brief. It seems to me that the failure of an appellant(s) to file a brief of argument and cause it to be served on the respondent raises the presumption that the appellant is not contesting the verdict or findings of the Court(s) below from which the appellant(s) appeals or seeking leave to appeal.

The Court of Appeal is to determine the appeal under Order 4 Rules 9(1)-(3) of the Court of Appeal Rules, 2016 which provides as follows:-

9(1)On the hearing of any appeal, the Court may, if it thinks fit, make any such Order(s) as could be made in pursuance of an application for a new trial or to set aside a verdict, finding or judgment of the Court below.

(2)The Court shall not be bound to order a new trial on the ground of misdirection, or of the improper admission or rejection of evidence, unless in the opinion of the Court some substantial wrong or miscarriage of justice has been thereby occasioned.
(3)A new trial may be ordered on any question without interfering with the finding or decision on any other question, and it if appears to the Court that any such wrong or miscarriage of justice as is mentioned in sub-rule (2) of this Rule affects part only of the matter in controversy or one or some only of the parties, the Court may order a new trial as to the party only, or as to that party or those parties only, and give final judgment as to the remainder.

But the issues conceded must be supported by the facts arising in the appeal, the original, amended or additional grounds of appeal coupled with judicial precedent showing that the appellant deserves the decision of the Court of Appeal regarding the issues not contested or countered in the Reply brief by the respondent. The issues arising in the appeal which the appellant(s) has formulated or distilled must cover as well the amended or additional grounds of appeal in the appellants brief of argument which shall be filed in the Court upon the receipt of the record of appeal within forty-five days of the receipt of the record of appeal See Order 19 Rule 2 and 3(1) of the Rules. I am of the humble opinion that time for distilling or formulating issues for determination of the appeal is within forty-five days of the receipt of the record of appeal and these have to be contained in the appellants brief of argument. The issues formulated for determination shall not only arise from the appeal but shall cover as well the amended or additional grounds of appeal as provided in Order 19 Rules 2 and 3(1) of the Rules.

The power of the Court of Appeal to amend processes in civil appeals is provided in Order 7 Rule 1 and 8 of the Rules to wit:-

7(1) Part 2 of this Rule shall apply to appeals to the Court from any Court or tribunal acting either in its original or its appellate jurisdiction in civil cases , and to matters related thereto.

8.A notice of appeal may be amended by or with the leave of the Court at any time.”

Order 4 Rule 1 of the Rules (ante) provides that:-
1. In relation to an appeal, the Court shall have all the powers and duties as to amendment and otherwise of the Court below, including without prejudice to the generality of the foregoing words, in civil matters, the powers of the High Court in civil matters to refer any question or issue of fact arising on the appeal for trial before or inquiry and report by, an official or special referee.
In relation to a reference made to an official or special referee, anything, which can be required or authorized to be done by, to or before the Court below shall be done by, to, or before the Court.

The side note to Order 4 Rule 1 of the Court of Appeal Rules, 2016 is styled General, meaning the provisions allowing parties to amend processes is general. But specific provisions may exist in the Rules to be invoked to amend certain processes upon the fulfillment of conditions which may be stipulated in the Rules, for instance, when an appellant shall amend the grounds of appeal, or incorporate additional grounds of appeal.

That has to be within forty-five days of the receipt of the record of appeal from the Court below as stipulated under Order 19 Rules 2-3(1) of the Court of Appeal Rules, 2016. The specific provision for the amendment of the original, additional or new grounds of appeal will be invoked rather than the general provisions of the Rule to grant or refuse the prayers for amendment or additional grounds of appeal. In Abiola vs. Commissioner of Police (1961) All NLR (Pt.844) Quasi-Idun, C.J. of the defunct Western State High Court in exercise of the Courts appellate and supervisory jurisdiction refused to extend time for the appellant to amend the Notice of Appeal to incorporate new or additional grounds of appeal for the following reasons at pages 845 to 847:-

Quashie-Idun, C.J.:- The appellants were convicted by Gomes, Magistrate at Ife on a charge of having unlawful assaulted the complainant Victoria Obadiya and causing her harm.
The 1st and 2nd appellants were each sentenced to a term of imprisonment with hard labour for 6 months. The 3rd appellant (a woman) was fined ??45 or in the alternative, sentenced to 4 months I.H.L. and the 4th appellant (a school girl) was ordered to be placed under Probation and to be of good behaviour for one year.

The appellants have appealed against their convictions and have sought leave (a) to file further additional grounds of appeal and (b) to adduce fresh evidence. The affidavit sworn to in support of the applications contains the following allegations:-
1. That the Solicitor Mr. B. Olowofoyeku now acting for us never represented us in the Court below.
2. The Solicitor has told me and I verily believe that it is necessary to file additional grounds of appeal and to adduce further evidence by affidavit.

The grounds of appeal sought to be filed contained allegations of misdirection and non-direction against the learned trial Magistrates judgment and also a ground that the sentences passed on the 1st and 2nd appellants were excessive. Attached to the application is an affidavit sworn to by the 2nd appellant containing allegations that the complainant Victoria Obadiya is a woman who habitually drinks and quarrels with people; that before and after the trial of the appellants there have been many complaints against her at the Police Station and that on the 31st August, 1961 she pleaded guilty to a charge of affray and was sentenced to a fine of ??25 or 3 months I.H.L.
The applications were opposed by Mr. Awofolaju who appeared for the respondent.

In respect of the 1st application Counsel for respondent submitted that on the 17th April, 1961 this Court granted leave to file additional grounds of appeal which contained a ground that the sentences passed were excessive and that the present application should have been filed a long time ago. The reason given by Counsel for the appellants as to why the application was not made before was that he thought that the appeal would come before the next session at Ife. The Court took note of the fact that the present Counsel for the appellants was the one who obtained leave on the 17th April, 1961 to file the additional grounds of appeal. After hearing submissions of Counsel I refused to grant the leave as I am of the view that that application should have been filed at the earliest opportunity and that it would not be setting a good precedent by entertaining applications of this kind filed very late.
In respect of the application for leave to adduce fresh evidence learned Counsel for the appellant has referred to the following cases: (1) R. vs. Joseph Greenberg, 17, Crim. App. R. page 1197; (2) R. vs. James Robinson, 12, Crim. App. R. page 226 and (3) R. vs. Patel, 35, Crim. App. R. page 62.
As the point raised is of some interest I propose to deal with each of the authorities referred to. In the case of Joseph Greenberg the appellant was convicted of the offence of indecent assault on a woman who had been described by the learned trial Judge in his summing-up as a moral woman. The Court of Criminal Appeal allowed evidence which was not available at the trial, that the assumption that the prosecutrix was a moral woman was false.

In deciding to allow the fresh evidence to be given, the Court of Criminal Appeal stated that the evidence sought to be adduced was of such a nature that the jury would not have convicted if it had been available at the trial. In the case of Robinson the appellant who had appealed against his conviction for murder had alleged in his grounds of appeal that the verdict was against the weight of evidence. The Crown then sought leave to adduce fresh evidence in the form of a letter written by the appellant, after his conviction, to another person, admitting that he did the act. The Court allowed that evidence to be adduced. In the case of Patel the appellant was convicted of conspiracy and fraud and it was held that other evidence of fraud committed by him was relevant and admissible against him as it was relevant to the issue before the trial Court.

It is clear from the three cases referred to that the evidence sought to be adduced after the trial was in each case relevant to the issue before the Court and was not available at the trial. In the present case no suggestion was made to the complainant under cross-examination that she was a person of the character described in the affidavit sworn to by the 2nd appellant and referred to earlier in this judgment. I can find no authority to support the application that the affidavit sworn to can be used as additional evidence or the submission that the conviction of the complainant after the trial can be used as relevant evidence against the complainant. I would also refer to the case of Rex vs. Matthew Udo Otton, 12 WACA, page 212 in which the West African Court of Appeal relying on the authority of R. vs. Rowland, 32, Crim. App. R. page 29 stated that it would not hear fresh evidence where to do so would mean a re-hearing.

For the above reasons the application for leave to adduce fresh evidence is also refused.

The Supreme Court does not take into consideration the subject-matter in dispute between the parties in refusing to extend time to file appellants brief of argument. The Supreme Court looks at the reasons proffered by the appellant who, upon receipt of the record of appeal failed or neglected to file the brief of argument, amend the Notice or Grounds or incorporate additional grounds of appeal within the time prescribed by the Rules, the Act of the legislature or the Rules of Practice and Procedure.

I shall examine a number of decisions of the Supreme Court that have settled similar disputes or controversies to the extent that it is trite that the Court of Appeal ought not to ignore or depart from them except a particular situation is not covered by judicial precedent in a decision of the Supreme Court. In Helton I. Orobator vs. Mrs. Mercy Amata (1981) 5 SC 276 a five member panel of the Supreme Court refused to extend time for the appellant to file brief of argument on the following reasons at pages 169-170 as follows:-

G.S. SOWEMIMO, JSC:- There is no substance in this application. The appeal is hereby dismissed since no brief was filed. The record of appeal has been with the appellants solicitor since March, 1981 and nothing has been done till this morning. As stated earlier on, the appeal is dismissed with N300 costs.

C. IDIGBE, JSC:- There is no merit in this application; nor has the application shown sufficient reasons for failure to comply with Order 9 Rule 3, Supreme Court Rules, 1977, nor for this Court not applying the terms of rule 7 thereof. In my view it is time that Legal Practitioners realized that this Court should be treated with the respect it deserves. There is too much laxity these days on the part of a good number of legal practitioners in bringing appeals to this Court; and for my part, this must stop. I see no merit in this application. This appeal is dismissed. Costs to the respondents N300.00.

A.O. OBASEKI, JSC:- I agree with my learned brother, Sowemimo, JSC, to dismiss this application.
The reasons for the application are in my view, not sufficient to exercise the discretion of the Court in favour of the application and I would dismiss the application. It is dismissed.
The appeal is also dismissed under Order 9 Rule 7 of the Supreme Court Rules, 1977 with N300.00 (Three Hundred Naira) to the respondent.

K. ESO, JSC:- I am not disposed to grant an extension of time in this case. The appellants solicitor was seised of the record of appeal since March. No brief was filed until 8th April, 1981 when the time to file the brief expired. An application has now been filed in this Court on 21st May, 1981 seeking extension of time within which to file the appellants brief. Indeed by paragraph 8 of the affidavit the solicitor has been aware since early in May that this case is fixed for today, yet Counsel did not consider it right to attach the brief he intends to file were we to grant him leave.

It is time Counsel and litigants cease to treat this Court with levity. Counsels attitude in this case is that he could just walk to the Supreme Court on such flimsy excuse and obtain relief.
The appeal is dismissed with N300 costs to respondent.

A.N. ANIAGOLU, JSC:- I think this application should be refused. The applicant systematically absented himself from appearance in the High Court until the learned trial Judge who throughout the period bent over backwards to accommodate the applicant by almost interminable adjournments of the case, proceeded to hear the case. He was forced to hear the case for the plaintiff and even after the plaintiff had closed her case adjourned the case on several dates from 17th June, 1977 to 22nd May, 1978. Now before this Court the brief would not be filed. There is a limit to indulgence. This application is dismissed with N300.00 costs to the respondent.
A full panel of the Supreme Court presided by the Chief Justice of Nigeria, Fatayi-Williams, C.J.N. presided in the case of Balarabe Musa vs. Auta Hamza (1982) 7 SC 118 or (1982) 13 NSCC 219, refused to extend time for the appellant to file a brief of argument for the following reasons at pages 122-123:-

FATAYI-WILLIAMS, CJN: This is an application for an order dismissing this appeal for want of prosecution, the appellant having failed to file his brief of argument within the time specified in Rule 3(1) of Order 9 of the Rules of this Court. There is no doubt that the appellant has failed to comply with this particular rule.

Some time in 1981, the appellant lodged an appeal to this Court against the judgment of the Federal Court of Appeal but he failed to file his brief of argument within the specified time.
On 24th May, 1982, his application for extension of time within which to file his brief of argument was refused by this Court. There would, therefore, appear to be no brief of argument before us in respect of the appeal.

For these reasons, I am of the view that this application is well-founded. No argument of any substance has been put forward to counter the points made by learned Counsel for the respondents in support of the application. The application is, therefore, granted and pursuant to the provisions or Order 9 Rule 7 of the said Rules, the appeal in Appeal No.SC.2/1982 is hereby dismissed for want of prosecution. Costs in favour of the respondents are assessed at N300.00.

IRIKEFE, JSC: I agree with the ruling just read by the learned Chief Justice of Nigeria in this matter. I also agree with the order as to costs.

BELLO, JSC: The appellant having failed to file a brief within time, I agree the appeal should be dismissed by virtue of Order 9 Rule 7 of the Supreme Court Rules, 1977 with N300.00 costs to the respondents.

IDIGBE, JSC: I agree that this application be granted and that this appeal be dismissed for want of prosecution. This Court earlier refused an application to file a brief out of time prescribed by the Supreme Court Rules, 1977. In the circumstances, there is no brief in support of this appeal and following the provisions of the Rules, this appeal must be dismissed for want of prosecution. I endorse the order made by my learned brother the Chief Justice of Nigeria.

OBASEKI, JSC: I agree with the ruling of my learned brother, Fatayi-Williams, CJN. Nothing said so far by Counsel for the respondents has shown that he appreciates that the Supreme Court Rules form part of the law to be complied with strictly. They form an indispensable part of our law and the fact that discretion is reserved to the Court to relax its hardship where exceptional circumstances is shown, should not be interpreted as non-existence of the Rules.

I can see no escape route for the appellant/respondent in this application. In fact if this application had been before the Court when the application for extension of time filed by the respondent was heard, this matter would have been concluded long ago.

The appeal will properly in my view be dismissed for non prosecution under Order 9 Rule 7 Supreme Court Rules, 1977 and I hereby dismiss it with the same amount of costs as ordered by Fatayi-Williams, CJN.

ESO, JSC: I agree that the appeal be dismissed. The application for extension of time within which to file the appellants brief having been dismissed under Order 9 Rule 7 coupled with the Practice Direction of 26th April, 1982, this appeal should and it hereby dismissed with costs as ordered by the learned Chief Justice of Nigeria.

ANIAGOLU, JSC: Order 9 Rule 7 of the Supreme Court Rules and the Practice Directions dated 26th April, 1982 make it imperative that briefs of argument, on appeals, should be filed within time. The necessity of parties adhering to the Rules of the Supreme Court had been emphasized times without number, including the judgment of this Court in Ukpe Ibodo & Ors. vs. Iquasi Enarofia & Ors. (1980) 5-7 SC 42 at p.57-9. Appellant in this appeal applied for extension of time within which to file brief but the application was refused on 24th May, 1982. The result is that there is no brief filed in this appeal and with the refusal of the application for extension of time to file brief, none can be filed.
I cannot see that if no exceptional circumstances had been shown justifying extension of time to file brief resulting in the refusal of the application thereto, that ruling should now be circumvented by a grant of leave for the respondent to adduce oral argument, in lieu of brief, under Order 9 Rule 6(5) of the Supreme Court Rules.

Accordingly, this appeal must be, and is hereby dismissed, under Order 9 Rule 7 of the Supreme Court Rules with costs as contained in the order of the Chief Justice.

In Daniel O. Omoregie vs. Gabriel A. Emovon (1982) 6 S.C 6 a five member panel of the Justices of the Supreme Court unanimously held in refusing an application to extend time for filing brief as follows:

Irikefe, JSC: This application clearly lacks merit. Two grounds are listed for seeking the orders prayed for, namely, sudden illness which inhibited the taking of timely steps fro the prosecution of the appeal and inability to perfect Counsels instructions in time. In view of the practice directions recently promulgated by the Chief Justice of Nigeria, I am not persuaded that the reasons stated are sufficient to enable me grant the orders sought.

Accordingly, this application fails and it is dismissed. In the result, the appeal itself stands dismissed for want of prosecution with N300 costs in favour of the respondent.

Bello, JSC: The only reason given for the delay in filing the brief was that the appellant was ill and did not perfect instruction to Counsel. Since the issuance of Practice Directions, this Court will not extend the time within which to file brief simply for non-payment of Counsels fees.
The application is dismissed. The appeal is also dismissed for want of prosecution under Order 9 Rule 7. N300 costs to the respondent.

Eso, JSC: I agree. Application for extension of time dismissed. It is without merit. And as there is no brief filed in the appeal, the appeal itself is dismissed for want of prosecution with N300 costs to respondent.

Nnamani, JSC: This is an application for extension of time within which to file the brief of argument of the appellant. The affidavit attached to the application discloses that the appellant was ill and so could not perfect the instructions of his Counsel. Having regard to the Practice Directions recently issued by this Court, and following recent decisions of this Court on similar applications, I am not persuaded that there are exceptional circumstances to justify granting of the application. The application is refused. I would also dismiss the appeal for want of prosecution, pursuant to Order 9 Rule 7 of the Supreme Court Rules, 1977. I agree with the order as to costs made by the learned presiding Justice.

Uwais, JSC: I agree that there is no substance in the application to extend time to file the appellants brief. The reason given for the delay in filing the brief is not exceptional. Accordingly, the application is dismissed for want of prosecution. N300 costs are awarded to the respondent.

In the light of these authorities, I have to examine the reasons why the applicant could not do that which forms the basis of this application within forty-five days of the receipt of the record of appeal from the Court below until the time stipulated in Order 19 Rules 2-3(1) of the Court of Appeal Rules, 2016 had lapsed or expired. To answer these questions, I shall take into consideration the fact that the usual practice is for a party aggrieved with the decision of the Court of first instance or the Court below to lodge a Notice of Appeal within the time stipulated by the Court of Appeal (2010 Amendment) Act under Order 6 Rule 10 of the Rules to wit:-

10. An appeal shall be deemed to have been brought when the notice of appeal has been filed in the registry of the Court below.

In Ajayi vs. Omorogbe (1993) 6 NWLR (Pt.301) 512 the Supreme Court distinguished between mistakes, errors or blunders committed in the course of proceedings by Counsel as against the dereliction of responsibility or duty by the parties. The Supreme Court held at page 528 as follows:

There must be a line drawn between the fault of a partys solicitor (none was alleged in this appeal) and the fault of the party himself. In the former case the Court has consistently refused to visit the fault of the solicitor on the client. But where the conduct of the party is responsible for the non-prosecution of the case or appeal the party will have himself to blame. A litigant who deliberately, carelessly or wantonly disregards the rule of Court cannot expect the discretion of the Court to be exercised in his favour. Justice, after all said and done, is for both parties. Delay tactics can lead to a miscarriage of justice; witnesses may no longer be available; in the case of an appeal not filed or prosecuted within time, the rights of a third party may be affected.
Reliance placed on illness and poverty cannot avail the appellants: Daniel Omoregie vs. Gabriel Emovon (1982) NSCC Vol.13, page 145.

On the whole, I will dismiss this appeal. It is hereby dismissed. Costs of N1,000.00 in favour of the respondent.

See Nneji vs. Chukwu (1988) 6 SCNJ 132; Oke vs. Nwaogbuinye (2001) 1 SC (Pt.1) 22 at page 31 and Okobia vs. Ajanya (1998) 6 NWLR (Pt.554) 348 at page 360.

The next step is to solicit the services of the Registry of the Court below to compile the record of appeal as provided under Order 8 Rules 1-3 of the Court of Appeal Rules, 2016 in the following manner:-
1. The registrar of the Court below shall within sixty days after the filing of a notice of appeal compile and transmit the Record of Appeal to the Court.

2. In pursuit of Rule 1 above, the registrar shall within fourteen (14) days summon the parties before him to:-
(a)settle the documents to be included in the Record of Appeal ; and
(b) fix the amount to be deposited by the Appellant to cover the estimated cost of making up and forwarding the Record of Appeal.

3. The said registrar shall whether any of the parties attend or not, provided the notice has been duly served on the parties to the appeal, proceed to settle and determine those matters in accordance with the provisions of Rules 2 (a) and (b) of this Order.

Where the Registrar of the Court below has failed or neglected to compile and transmit the record of appeal to the Registry of the Court of Appeal within the sixty days the appellants remedy lies in Order 8 Rules 4-6 and 9 of the Rules to wit:-

4. Where at the expiration of 60 days after the filing of the notice of appeal the registrar has failed and or neglected to compile and transmit the Records of Appeal in accordance with the preceding provisions of this Rule, it shall become mandatory for the Appellant to compile the records of all documents and exhibits necessary for his appeal and transmit to the Court within 30 days after the registrar’s failure or neglect

5. Such Record compiled by the Appellant, shall be served on the Respondent or Respondents within the time stipulated for transmitting such records to the Court, which is 30 days.

6. Where any party to the appeal considers that there are additional records which may be necessary in disposing of the appeal, he shall be at liberty, within 15 days of the service on him of the records, to compile and transmit to the Court such records to be known as the additional records of appeal.

9. Every record or additional Record of Appeal compiled by a party to an appeal must be certified by the registrar of the lower Court. Provided that it shall not be necessary for copies of individual documents to be separately certified but the registrar of the Court below shall certify as correct each copy of the record transmitted in accordance with these Rules.

Order 19 Rule 10(1)-(2) of the Rules reads as follows:-
10(1) Where an appellant fails to file his brief within the 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. 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 Rule 5, he shall be deemed to have conceded all the new points or issues arising from the respondents brief.

(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.

Order 8 Rule 7(a)-(d) and 10(1)(a)-(c) of the Rules provides what shall be contained in the record of appeal. The failure of the Registry or the appellant(s) to compile and transmit the record of appeal with the items listed in Order 8 Rule 7(a)-(d) and 10(1)(a)-(c) of the Rules means the records of appeal are incomplete. The Court of Appeal does not hear an appeal on incomplete record of appeals, so held the Federal Supreme Court in Duke & Ors. vs. Archibong (1959) 4 FSC 121, Mbanefo, F.J., held at pages 122 to 123 as follows:

There is nothing in the record to indicate that the matter had been sent on reference at this stage or what the terms of the reference were. Although the Judge has said that the referees report was received in evidence, no report of any referee received in evidence at that stage was made part of the record. Both Counsel before us stated that the Judge did order a reference and that the record was incomplete in that respect. The copies of proceedings which the Judge said he had read and on which he based his findings as set out above are also not included in the record. As it happens, it has not been necessary to argue the appeal as both parties are agreed that the two cases should go back for retrial. If it had been necessary to argue the appeal it would have been impossible for this Court to go on such an incomplete record and it seems difficult to imagine how these very material exhibits, if they were received in evidence as stated, could have been omitted from the record especially as the learned Judges finding quoted above has been attacked in the grounds of appeal on the ground that the records of the cases relied upon by the Judge had not been exhibited in evidence

In view of these irregularities and the unsatisfactory manner in which the record of appeal has been prepared we agree with Counsel for the parties that the case should be sent back for rehearing
The appeal Court is bound by the record of appeal. See Omohodio vs. Commissioner of Police (1961) All NLR 594; Q. vs. Ogodo (1961) 4 All NLR 700 and Q. vs. Isa (1961) 4 All NLR 668. In Enekebe vs. Enekebe (1964) NMLR 42, Bairamian, F.J., held at page 46 that, In the cases on discretion which I have seen, the trial Court goes by the material presented to it, and the Court of Appeal in the record It is the duty of the appellant to ensure the accuracy of the record of appeal and ensure it reached the Court of Appeal Registry within the time stipulated by the Rules of Practice and Procedure. See Obiamalu & Ors. vs. Nwosu (1973) NSCC Vol.8 and Uwechia vs. Obi (1973) 8 NSCC page 56.

Order 8 Rule 10(2)-(3) of the Rules are very important. The provisions are couched as follows:-
(2)Where the record is compiled by the Appellant under Rule 4 of this Order, he shall transmit the record within the time stipulated for compilation and transmission by an Appellant under Rule 4. The record shall be transmitted in compliance with Rule 10(1).

(3)The registrar of the Court below or the Appellant as the case may be, shall within seven (days) of the transmission of the record to the Court, cause to be served on all parties mentioned in the notice of appeal, a notice that the record has been transmitted to the Registrar of the Court who shall in due course enter the appeal in the cause list.

Whether the record of appeal were compiled by the Registry of the Court below, the appellant or the respondent, example, additional grounds. Compilation or transmission of the record of appeal from the Court below to the Registry of the Court of Appeal has to be within the time stipulated for compilation and transmission as provided in Order 8 Rule 4 of the Rules. But the record of appeal shall be transmitted in compliance with Rule 10(1) of the Rules (supra). The intention of the Rules Maker is that the Registry or the appellant that compiled and transmitted the record of appeal to the Registry of the Court of Appeal shall cause to be served on all parties mentioned on the Notice of Appeal, a notice that the record has been transmitted to the Registrar of the Court of Appeal under Order 8 Rule 10(3) of the Rules. To this end Order 8 Rule 10(1)(a) of the Rules provides as follows:-

10(1) Where the record is compiled by the registrar under Rule 1 of this Order, he shall transmit the record within the time stipulated for compilation and transmission under Rule 1. The record shall be transmitted together with:-
(a)a certificate of service of the notice of appeal.

The certification of service of the Notice of Appeal and the record shall be transmitted together as stipulated under Order 8 Rule 10(1) of the Rules. Upon the transmission of the record of appeal, The Registrar of the Court below or the appellant as the case may be, shall within seven days of the transmission of the record to the Court notify Registrar of the Court of Appeal of the fact and the Registrar of the Court shall in due course enter the appeal in the cause list as provided in Order 8 Rule 10(3) of the Rules. A careful reading of these provisions of the Rules will show that the compilation and transmission of the record of appeal by the Registrar of the Court below to the Registry of the Court of Appeal has nothing to do with the Justices of the Court of Appeal. It is purely a matter between the Registry of the Court below and the Registry of the Court of Appeal. This is borne by the provisions of Order 4 Rules 10-11 of the Court of Appeal Rules, 2016 to wit:-

10. An appeal shall be deemed to have been entered in the Court when the Record of Proceedings in the Court below has been received in the Registry of the Court within the time prescribed by the Rules.

11.After an appeal has been entered and until it has been finally disposed of, the Court shall be seised of the whole of the proceedings as between the parties thereto. Except as may be otherwise provided in these Rules, every application therein shall be made to the Court and not to the Court below.

The Registrar of the Court below and the Registrar of the Court of Appeal exercise administrative or quasi-administrative functions and duties in the compilation and transmission of the record of appeal. However, if an appellant complains of anything done or not by the Registrar of the Court of Appeal regarding the compilation and transmission of the record of appeal the remedy lies in Order 3 Rule 7 of the Rules to bring this to the attention of the Court in the manner stipulated in Order 3 Rule 7 of the Rules by an application which shall be made by notice of motion supported by affidavit setting out the complaint, the ground for the complaint and the relief sought as prescribed in Order 3 Rule 7 of the Rules. The Registrar would then enter the appeal or the motion on notice on the cause list in accordance with the provisions of Order 3 Rule 8-10 of the Rules to wit:-

8(1) The Registry of each Judicial Division of the Court shall be situate in a town within the Judicial Division of the Court to be established.
(2) Except when otherwise expressly provided, all documents and proceedings shall be filed in the appropriate Registry; Provided that whilst the Court is sitting in any Judicial Division or other place of session any documents or proceedings in connection with a matter to be dealt with at such Division or other place of session may be filed with the Registrar of the Court at such a place.
(3) A document may be filed in the appropriate Registry of the Court or such other place of session either by being delivered there by the party or his legal representative or agent in person or by registered post or by electronic means.

9. The Registries of the Court shall, subject to the directions of the President, be open to the public everyday in the year from eight O clock in the forenoon to two o’ clock in the afternoon, except on Saturdays and Sundays or on any day declared a public holiday under any written law.

10. Sessions of the Court may be convened and constituted, and the time, venue and forum for all sessions and for hearing interlocutory applications shall be settled in accordance with general or specific directions to be given by the President.

An appellant or a respondent that wants the Court of Appeal to assume jurisdiction over what is going on or taking place between the Registrar in the Court below and the Registrar in the Court of Appeal for, example, in regard to the compilation and transmission of the record of appeal but wants the Justices to interfere with the process has to approach the temple of justice by an application on notice supported by affidavit coupled with documentary evidence, if any, and the Registrar of the Court of Appeal will in due course enter the appeal in the cause list. See Order 8 Rule 10(3) of the Rules, for hearing and determination. The facts that the records of appeal have been compiled and transmitted by the Registrar of the Court below, or the appellant and received by the Registrar or Registry of the Court of Appeal per se does not confer or vest jurisdiction on Justices of the Court of Appeal to interfere or meddle with the processes in the Registry of this Court without the Registrar entering the appeal or application exparte or an notice on the cause list and fixing a date for hearing and determination.

In Ogunremi & Ors. vs. Dada (1962) 1 All NLR (Pt.2) 657, the appellant filed a Notice of Appeal against the decision of the Court of first instance. The record of appeal were compiled and transmitted to the Registry of the Federal Supreme Court when the appellant filed a motion for stay of execution pending the determination of the appeal. Brett, F.J., held that the application for stay of execution had to be entered on the cause list to vest the Federal Supreme Court Justices with the jurisdiction to adjudicate over the application in the following language at pages 162-163:-

This is an application by the appellants for a stay of execution of the judgment of the High Court of Western Nigeria pending the determination of an appeal to this Court. No application for a stay has been made to the High Court itself, and the first question to be decided is whether the present application can be entertained, in view of Order VII, Rule 37, of the Federal Supreme Court Rules, 1961, which provides that-

Whenever an application may be made either to the Court below or to the Court, it shall be made in the first instance to the Court below, but if the Court below refuses the application, the applicant shall be entitled to have the application determined by the Court.

It has been suggested that such an application can only be made to this Court, by virtue of Rule 19 of the same Order, which provides that-

After an appeal has been entered and until it has been finally disposed of, the Court shall be seized of the whole of the proceedings as between the parties thereto, and except as may be otherwise provided in this Order, every application therein shall be made to the Court and not to the Court below for transmission to the Court.

This rule, however, does not come into operation until an appeal has been entered, and that takes place when the record of appeal is received in this Court and entered in the cause list in accordance with Order VII, Rule 12(2), not when notice of appeal is given. The only question, therefore, is whether the application is one which the High Court has power to grant.

But in The Shell Petroleum Development Co. of Nigeria Ltd. vs. Amadi (2011) 5 SCNJ 1, the appeal was heard by the Court of Appeal. The appellant challenged the decision of the Court of Appeal by appealing to the Supreme. The appeal was fixed for hearing at the time neither the Registry of the Court of Appeal nor any of the parties had transmitted the exhibits to the Supreme Court hence in declining to entertain the appeal, Rhodes-Vivour, JSC quoted the decision of Onnoghen, JSC (as he then was) at pages 18-20 to hold as follows:-

The Record of Appeal was transmitted without the exhibits. Onnoghen, JSC held that the record was incomplete. In a letter reference CA/PH/51/2008/T/1 written by the Deputy Chief Registrar of the Court of Appeal to the Chief Registrar, Supreme Court, in item 2 it states that no Exhibit was forwarded.

My Lords the Record of Appeal transmitted from the Court of Appeal on 13th May, 2010 was incomplete due to the fact that the exhibits were not transmitted along with the Record.
Accordingly, in the absence of documents admitted as Exhibits an appeal was not entered on 13th May, 2010. The appeal was entered on 24th August, 2010 when the supplementary Record of Appeal was received in the Supreme Court. That document contained all documents, processes that were left out in the Record of Appeal transmitted to the Supreme Court on 13th May, 2010.

Section 27(2)(a) and (b) and Subsections (3) and (4) of the Supreme Court Act states that:
(2) The period specified for the giving of notice of appeal or notice of application for leave to appeal are:
(a)In an appeal in a civil case, fourteen days in an appeal against an interlocutory decision and three months in an appeal against a final decision.
(b)In an appeal in a criminal case, thirty days from the date of the decision appealed against.

(3) Where an application for leave to appeal is made in the first instance to the Court below, a person making such application shall, in addition to the period specified in Subsection (2) of this section be allowed a further period of fifteen days from the date of the hearing of the application by the Court below, to make an application to the Supreme Court.

(4)The Supreme Court may extend the period prescribed in subsection (2) of this section.
My Lords, the clear interpretation of the above is that where the decision of the Court of Appeal is final the Supreme Court vests in the Court of Appeal jurisdiction to grant a litigant leave to appeal within 3 months of the decision. In this case the final decision of the Court of Appeal was delivered on 15th April, 2010. The Court of Appeal granted leave to appeal on 8th July, 2010. The 2nd Notice of Appeal was thus properly filed.

It would amount to an abuse of process if Counsel improperly uses the judicial process to the annoyance of the adverse party, and the administration of justice. See Okorodudu vs. Okoromadu (1977) 3 SC 21; Ekpuk vs. Okon (2002) 5 NWLR (Pt.760) 445; Agwasim vs. Ojichie (2004) 10 NWLR (Pt.882) 6131.

On 8th July, 2010 the Court of Appeal granted the appellant/applicant leave to appeal to this Court on grounds other than law. Rather than appeal, learned Counsel for the 1st, 2nd and 3rd sets of claimants/respondents filed this preliminary objection

In Okafor & Ors. vs. Attorney-General of Anambra State & Ors. (1991) 7 SCNJ 345, Uche Omo, JSC cited with approval the decision in Ogunremi & Ors. vs. Dada & Ors. to wit:-

Four issues for determination were framed by the appellants, but in view of the arguments canvassed in this Court, only one issue needs to be considered and I frame it as follows: Is the jurisdiction of the Court of Appeal to hear and determine the application of the 4th and 5th respondents before it ousted by the appeal filed by the 1st and 3rd respondents to the Supreme Court on the same subject matter? The appellants answer to this issue is set out in paragraph 4.3 of the brief and amplified in oral argument before us. It is to the effect that the jurisdiction of the Court of Appeal is ousted because the application is an abuse of process since the 1st to 3rd appellants had filed an appeal on the same issue to the Supreme Court. In Counsels submission the defendants/appellants in the Court of Appeal had divided themselves into 2 groups 1st to 3rd to appeal to the Supreme Court; 4th and 5th to apply to the Court of Appeal on the same matter. By this action they all stood to benefit from the gamble. On the principle and theory of hierarchy of Courts the Court of Appeal should give precedence to the Supreme Court by either adjourning the application or striking it out.

The appellants have not succeeded in showing that the Court of Appeal had no jurisdiction to entertain the application before it. The application was made under Order 3 Rule 27 of the Rules of the Court of Appeal, Sub-section (1) of which provides that:-

(1)Where an appeal has been heard exparte under Rule 26 and any judgment has been given adverse to the respondent, he may apply to the Court to set aside such judgment and to re-hear the appeal.
Sections 33 and 219 of the Constitution of Nigeria, 1979 were also relied upon. Issues have been properly raised in the application for the Court below to consider and determine. What is presently at issue is whether it can consider the application or it is precluded from doing so. The answer to the issue for determination must be in the negative because:-
(a)The motion was filed in the Court of Appeal which had jurisdiction to entertain it before the 1st to 3rd respondents filed their appeal to the Supreme Court.
(b)Even if the lodging of an appeal by the 1st to 3rd respondents in the Supreme Court could oust the jurisdiction of the Court of Appeal, no such ouster can arise here because the Supreme Court was not yet seised of the appeal as no appeal had been entered in this Court. vide Ogunremi vs. Dada (1962) 1 All NLR (Pt.4) 663 at 668; (1962) 2 SCNLR 417.
(c)The appeal to the Supreme Court filed by 1st to 3rd respondents had been withdrawn before the Court of Appeal heard the application. Even if the appellants had any basis for complaint that was eroded by this act. The Court of Appeal could no longer be said to be in conflict wit the Supreme Court.
(d)In any event, an appeal filed by the 1st to 3rd respondents to the Supreme Court cannot in any way fetter the exercise by the 4th and 5th respondents of their right to file a motion in the Court of Appeal.

The Registrar of the Court below or the appellant as the case may be, might have compiled and transmitted the record of appeal to the Registry of the Court of Appeal in compliance with the provisions of Order 4 Rule 10 of the Rules. However, to assume jurisdiction in respect of the appeal or an interlocutory decision such as a stay of execution, or interlocutory injunction, etc, this has to be pending the hearing and determination of a valid appeal. The Registrar of the Court of Appeal has to list the appeal or the application on the cause list and, with the directions of the Presiding Justice, or a Justice of the Court of Appeal having authority to do, fix a date for hearing.
When the appeal or the interlocutory application comes up for hearing on that day, the Justices of the Court of Appeal assumes jurisdiction to hear and determine the dispute or controversy.

What happens if between the filing of the appeal, compiling and transmission of the records of appeal to the hearing and determination of the controversy, the exhibits that were tendered and admitted or rejected in the lower Court are missing?

In determining this application I shall have regard to Langton vs. Hughes (1813) 1 M&S 593 or 12 Digest 270, 2214 where Ellenborough, C.J. said that, What is done in contravention of the provisions of an Act of Parliament, cannot be made the subject-matter of an action cited in Bostel Bros. Ltd. vs. Hurlock (1948) 2 All E.R. 312 at 313-314 per Somervell, L.J. See also Brightman vs. Tate (1919) 1 K.B. 463; Re Mahmoud and Ispahani (1921) 2 K.B. 716 and Ekpemupolo vs. Edremoda (2009) 3 SCNJ 77 at page 95.

Order 7 Rule 10(1) of the Court of Appeal Rules, 2011 was interpreted by the Supreme Court in Okafor vs. Bendel Newspaper Corporation & Anor. (1991) 9-10 SC 103 at 115 per Uwais, JSC (as he was) as follows:

However, it is significant to note that the provisions of Order 3 Rule 4(1) and those of Order 3 Rule 4(2) of the Court of Appeal Rules are intended to serve different purposes. Order 3 Rule 4(1) is a general provision enabling the Court of Appeal to enlarge time in departure to the provisions of the Rules. But the provisions of Order 3 Rule 4(2) are specific and limited to applications for enlargement of time in which to appeal. Hence the two provisions are not the same and cannot, in my opinion, be given the same interpretation. Whereas Order 3 Rule 4(2) prescribes the conditions to be satisfied before an application for enlargement of time in which to appeal can be granted, Order 3 Rule 4(1) does not prescribe any condition on which an application for an extension of time simpliciter should be granted. It is left to the Court to use its discretion as it deem fit. This implies that in considering an application under Order 3 Rule 4(1) the Justices of the Court of Appeal are obliged to exercise their discretion judicially

What the learned Justices should have concerned themselves with, since the application was brought under Order 3 Rule 4(1) of the Court of Appeal Rules, was the content of the affidavit in support of the application to see whether the delay in filing the respondents notice had sufficiently been explained and that the delay had not been inordinate or without reasonable excuse. For in the exercise of discretion by Court to grant application for extension of time, the length of the delay as well as the sufficiency of the explanation proffered for the delay must be taken into consideration by the Court, before the discretion could be regarded as having been judicially exercised. See Agbeyegbe vs. Ikomi, 12 WACA 383 at pages 385-386. This is what the learned Justices of the Court of Appeal omitted to do in the present case.

I shall fortify my decision with the Supreme Court authorities. In Mobil Producing Nigeria Ltd. vs. Monokpo (2004) All FWLR 575 where Uwaifo, JSC held at page 626 that:
The second argument is that the Courts in Nigeria have generally, in the interest of justice, leaned counsel heavily in favour of such procedure as would ensure the trial of cases on their merits and also minimize the time and expenses of litigation. Reliance is placed on United Bank for Africa Ltd. vs. Nwora (1978) 11-12 SC 1; U.T.C. vs. Pamotei (2002) FWLR (Pt.129) 1557, (1989) 1 NWLR (Pt.103) 244; Nishizawa vs. Jethwani (1984) 12 SC 234. The first case deals with the normal circumstances where a defendant fails to file a statement of defence within time or regularly as in the present case; the others deal with cases under summary judgment procedure where instead of affidavit, a statement of defence is filed, the central point of convergence of what was decided in the two situations is that a Court faced with the difficulty as to the late filing of a statement of defence should not shut its eyes on such a process, even if filed irregularly or sought to be filed, but ought to have a look at it to see if it discloses a defence which might be considered in the interest of justice. I do not think that statement of principle can be disputed.

In Solanke vs. Somefun & Ors. (1974) 9 NSCC 14, Sowemimo, JSC (as he then was) set out the facts at pages 15-16 to be as follows:
The case which had been fixed for hearing for 2 days, that is, for 26th and 27th November, 1968, did not proceed as the plaintiffs attorney did not appear and new hearing dates were fixed for 20th and 21st May, 1969. The case, however, did not appear, according to the records, on the cause list until 2nd June, 1969, and in the meantime the Counsel for both parties had changed. Chief F.R.A. Williams whose brief was by Mr. Solesi appeared for the plaintiff, and Mr. Alaka whose brief was held by Mr. Allen, appeared for the defence. After two further adjournments the case was fixed for hearing by Beckley, J. for 11th and 12th of February, 1970. On the 9th of February, 1970, an application was filed on behalf of the plaintiff by Chief F.R.N. Williams for an order for leave to amend the statement of claim by substituting for the one filed another statement of claim a copy of which is attached to the affidavit in support.

Mr. Akesode moves motion under Order XXXIII of the Supreme Court Rules Affidavit in support. Refers to paragraph 8 of the affidavit. Refers to Exhibit A. The plaintiff claims as per writ of summons.

Learned Counsel for the defendants opposed the application for leave to amend on the grounds:
(a)That there was nothing in the affidavit and in the Statement of the Counsel who moved the application, indicating what paragraphs of the original Statement were to be amended and the nature of such amendments; and
(b)The grant of the application will cause undue delay to a fair trial of the case.
Mr. Akesode was then called upon to reply to whether the substitution of a fresh statement of claim for one previously filed constitutes an amendment under the rule

On failure of litigants to comply with the Rules of Practice and Procedure his Lordship held at pages 17 to 18 as follows:
Rules of Court are meant to be complied with and therefore any party or Counsel seeking the discretionary power of a Judge to be exercised in his favour must bring his case within the provisions of the Rules on which he purported to make his application. If Counsel fail to discharge their duties in that respect, it is but fair and right that a Court should refuse to exercise its discretionary power. Rules of Court are made to be followed. They regulate matters in Court and help parties to present their case within a procedure made for the purpose of a fair and quick trial. It is the strict compliance with these rules of Court that makes for quicker administration of justice. Some exceptions, for example, amendments of proceedings are provided for, but exceptions should be resorted to where absolutely necessary. See: (a) Malmo vs. Olushola 15 WACA 12; (b) Dako II vs. District Commissioner, Birim 3 WACA 68 (c) Somade vs. Ogunbiyi 3 WACA 48 and (d) England vs. Palmer 14 WACA 659.

A careful perusal of the provisions of Order 19 Rules 2-3(1) of the Court of Appeal Rules, 2016 will show that the day the appellant(s) received the record of appeal from the Registry of the Court below is very important in order to aid in determining when the forty-five days to have filed an appellants brief ought to have commence. An appellant ought to know he or she has forty-five days from the receipt of the record of appeal to have settled and filed the appellants brief. But where that is not revealed or known by the appellant or the legal representative, it can or may be presumed that the date appearing on the record of appeal as that which the Registrar of the Court of Appeal received, stamped, initialed and dated is the day the appellant was served the record of appeal hence the incorporation of the certificate of service of the record of appeal on all the parties mentioned in the Notice of Appeal ought to be in the record of appeal.

Order 4 Rule 1 of the Court of Appeal Rules, 2016 provides that 1. In relation to an appeal, the Court shall have all the powers and duties as to amendment and otherwise of the Courts below, including without prejudice to the generality of the foregoing words, in civil matters, the powers of the High Court in civil matters etc. I am not aware of any provisions of the High Court of Justice of Benue State Rules of Practice and Procedure or Law where power is conferred on the Court below to amend the original Notice and Grounds of Appeal or to incorporate additional grounds of appeal in a Notice of Appeal filed in the Registry of the Court below. Order 4 Rule 4 of the Rules provides that:

4. The powers of the Court under the foregoing provisions of this Rule may be exercised notwithstanding that no notice of appeal or Respondent’s notice has been given in respect of any particular part of the decision of the Court below, or by any particular party to the proceedings in that Court, or that any ground for allowing the appeal or for affirming or varying the decision of that Court is not specified in such a notice; and the Court may make any order, on such terms as the Court thinks just, to ensure the determination of the merits of the real question in controversy between the parties.

It is not in doubt that discretionary power repose in the Court of Appeal to extend time after the expiry of the forty-five days for an appellant to amend the original grounds or incorporate additional grounds of appeal as provided in Order 6 Rules 9(1) of the Rules to wit:-

9(1)The Court may enlarge the time provided by these Rules for the doing of anything to which these Rules apply except as it relates to the taking of any step or action under Order 16.

These provisions have to be read together with Order 19 Rules 2-3(1) of the Rules. The intention of the Rules Maker is that an appellant may amend the Notice or grounds of appeal before the expiry of the forty-five days stipulated for the filing of the appellants brief. The appellant may also add new grounds of appeal to the Notice of Appeal before the expiry of the forty-five days stipulated for filing the appellants brief of argument upon receipt of the record of appeal. These processes are to be done before the appellant files in the Court written brief, being a succinct statement of his argument in the appeal. See Order 19 Rules 2-3(1) of the Rules.

The appellant or the respondents briefs are in practice, not filed in the registries of the Court below but in the Registries of the Court of Appeal hence, once the forty-five days for filing the appellants brief in the Court of Appeal Registry has expired or lapsed, the appellant(s) require leave of the Court of Appeal to file (i) a written brief (ii) amend the Notice to (iii) incorporate additional grounds of appeal. The appellant(s) or respondent(s) will have to convince the Court of Appeal why (a) the brief was not filed within the forty-five days or thirty five days as the case may be upon receipt of the record of appeal or the appellant brief and (b) why the appellant(s) did not incorporate the amended Notice and grounds of appeal or (c) the additional grounds of appeal in the brief within the forty-five days of the receipt of the Record of Appeal from the Court below. This will be determined by the facts disclosed in the motion and verified by the sworn affidavit(s) of the appellant.

The intention of the Rules Giver is that the issues formulated for determination shall not only arise from the appeal but cover the amended or additional grounds of appeal. This application was filed on 21st January, 2019 whereas the record of appeal was received in the Registry of this Court, duly signed, stamped and dated on 8th November, 2016 against the decision of the Court below that was rendered in favour of the respondents by Hon. Justice A.L. Yusuf, J., of the High Court of Justice, Mararaba-Gurku on 15th January, 2016. The Notice of Appeal was filed on 20th January, 2016. The grounds for seeking relief are set out on the motion filed on 21st January, 2019 as follows:-

1.The plaintiffs/appellants are dissatisfied with the judgment of the Honourable Court and has lodged an appeal against it.

2.The full text of the judgment was not available at the disposal of the appellants at the time the initial Notice of Appeal was filed.

3.The appellants desire to file additional grounds of appeal.

The verifying affidavit of Ifeoma Okonkwo, Litigation Secretary in the Chambers of A.G. Wilfred, Esq., sworn on 21st January, 2019 is as follows:-
1. That by virtue of my position I am familiar with the facts of this case.
3. That I have the consent of the applicants and that of my employers to depose to this affidavit.
4. That I am also informed by A.G. Wilfred, Esq. one of the Counsel in Chambers on Monday the 20th day of January, 2019 at 4.300pm of the following facts which I also do verily believe to be true:-
(a) That the record has been transmitted in this appeal.

(b)That at the time the initial Notice of Appeal was filed, the full text of the judgment appealed against was not yet available to the appellants Counsel.
(c)That in the cause of preparing the brief of argument he saw the need to file additional grounds of appeal to articulate every issue.
(d)That the leave of the Honourable Court is required to extend the time and for the additional grounds to be filed. The additional grounds of appeal is herewith annexed and marked as Exhibit AD.
(e)That the clean copies are also filed separately and the necessary fees have been paid.
5. That I know that the respondents will not be prejudiced if this application is granted.
6.That it will be in the interest of justice to grant this application.
7. That I depose to this affidavit in good faith.

The application does not explain why the full text of the judgment appealed against was not available to the appellants Counsel. The applicants have not exhibited the original Notice and grounds of appeal in this application. What has been exhibited is a document titled Notice of Appeal (Additional Grounds of Appeal). The proposed additional grounds of appeal are couched as follows:-

GROUND 1: The judgment of the trial High Court is grossly against the weight of admissible evidence adduced at the trial which occasioned a gross miscarriage of justice.

GROUND 2: The learned trial Judge erred in law and misdirected herself when she held that the plaintiffs could not proved their case to entitle them to the declaration of title in their favour over the land in dispute.

PARTICULARS OF ERROR:
1.The plaintiffs pleaded their root of title and lead credible evidence in proof.
2.There are features which the Honourable Court saw of ruins, economic trees planted by the founder at the visit.
3.There where evidence of recent acts of possession without challenge.
4.The trial High Court was shrouded by a certificate of occupancy that is not traceable to the customary owners to find for the defendants.

GROUND 3: The learned trial Judge erred in law and misdirected herself when she held that granted the 2nd defendants Counter-claim on the ground a Certificate of Occupancy had been issued in his favour without subjecting him to the requirement of proof in an action for declaration of title.

PARTICULARS OF ERROR:
1.The 2nd defendant tendered the sale agreement which has no size of the land he claimed to have purchased from the 1st defendant.
2.The Certificate of Occupancy and the documents that gave rise to its issuance are manifestly irreconcilable.
3.The 2nd defendant/counter-claimant did not derive his title from the plaintiffs who are the customary owners.
4.The trial High Court was shrouded by a Certificate of Occupancy that is not traceable to the customary owners to find for the defendants.
AND FURTHER TAKE NOTICE that additional grounds of appeal shall be filed upon the receipt of the record of proceedings and or judgment of the trial Court.

Ground 2 is a complaint that the learned trial Judge erred in law and misdirected herself etc, Ground 3 attacks the decision of the learned trial Judge that she erred in law and misdirected herself etc, Order 7 Rules 2(2)-(4) and 3-6 of the Court of Appeal Rules, 2016 provides as follows:-

(2) Where a ground of appeal alleges misdirection or error in law, the particulars and the nature of the misdirection or error shall be clearly stated.

(3) The notice of appeal shall set forth concisely and under distinct heads the grounds upon which the Appellant intends to rely at the hearing of the appeal without any argument or narrative and shall be numbered consecutively.

3. Any ground which is vague or general in terms or which discloses no reasonable ground of appeal shall not be permitted, save the general ground that the judgment is against the weight of the evidence, and ground of appeal or any part thereof which is not permitted under this Rule may be struck out by the Court of its own motion or on application by the Respondent.

4.The Appellant shall not without the leave of the Court urge or be heard in support of any ground of appeal not mentioned in the notice of appeal, but the Court may in its discretion allow the Appellant to amend the grounds of appeal upon payment of fees prescribed for making such amendment and upon such terms as the Court may deem just.

5. Notwithstanding the foregoing provisions the Court in deciding the appeal shall not be confined to the grounds set forth by the Appellant; Provided that the Court shall not if it allows the appeal, rest its decision on any ground not set forth by the Appellant unless the Respondent has had sufficient opportunity of contesting the case on that ground.

6.The Court shall have the power to strike out a notice of appeal when an appeal is not competent or for any other sufficient reason.

A ground of appeal may allege a misdirection or error in law but the particulars shall be clearly stated as stipulated in Order 7 Rule 2(2) of the Rules (supra). That was not the case in grounds 2 and 3 of the additional grounds of appeal. Order 7 Rule (3) and Order 4 Rule 9(1)-(2) of the Court of Appeal Rules, 2016 are couched in the following manner:-

3.Any ground which is vague or general in terms or which discloses no reasonable ground of appeal shall not be permitted, save the general ground that the judgment is against the weight of the evidence, and ground of appeal or any part thereof which is not permitted under this Rule may be struck out by the Court of its own motion or on application by the Respondent.

9(1)On the hearing of any appeal, the Court may, if it thinks fit, make any such order(s) as could be made in pursuance of an application for a new trial or to set aside a verdict, finding or judgment of the Court below.
(2)The Court shall not be bound to order a new trial on the ground of misdirection, or of the improper admission or rejection of evidence, unless in the opinion of the Court some substantial wrong or miscarriage of justice has been thereby occasioned.

The grounds upon which the appellant intends to rely at the hearing of the appeal must not conflict with the provisions of Order 4 Rule 9(1)-(2) of the Court of Appeal Rules, 2016 to wit:-

9(1)On the hearing of any appeal, the Court may, if it thinks fit, make any such order(s) as could be made in pursuance of an application for a new trial or to set aside a verdict, finding or judgment of the Court below.
(2)The Court shall not be bound to order a new trial on the ground of misdirection, or of the improper admission or rejection of evidence, unless in the opinion of the Court some substantial wrong or miscarriage of justice has been thereby occasioned.

The appellant sought the following reliefs in the original Notice of Appeal filed on 8th August, 2016 contained at page 694 to wit:-
1.An order of the Honourable Court setting aside the Judgment of the trial Court declaring title to the defendants over the land in dispute.

2.An order of this Honourable Court entering judgment for the plaintiffs in terms of their claim before the trial Court.

3.And for such further orders as this Court may deem fit to make in the circumstances.

The appellant seeks the following reliefs in the document titled Notice of Appeal (Additional Grounds of Appeal) which was filed on 21st January, 2019:-
1. An order of the Honourable Court setting aside the judgment of the trial Court declaring title to the defendants over the land in dispute.

2. An order of this Honourable Court entering judgment for the plaintiffs in terms of their claim before the trial Court.

3. And for such further orders as this Court may deem fit to make in the circumstance.

In Osinupebi vs. Saibu & Ors. (1982) 7 SC 104 another five member panel of the Supreme Court refused to extend time for the appellant to substitute and argue the grounds of appeal contained in the brief of argument already filed. The third prayer was to amend the writ of summons contained in the record of appeal. Because of the importance of this decision which will again help to decongest the backlog of applications and substantive appeals pending in the Court of Appeal of a similar nature I shall reproduce the opinions of each of the Justices of the Supreme Court that determined the application, beginning with Sowemimo, JSC (as he then was) at page 104 to Wais, JSC (as he then was) at page 117 to wit:

SOWEMIMO, JSC: When the applicants motion was dismissed, I indicated that I would give my reasons. The applicant applied:
1.For leave to substitute and argue the grounds of appeal contained in the briefs of arguments already filed, for the grounds of appeal appearing on pp.208-209 of the Record of Appeal; and

2.For an order amending the writ of summons at p.1 of the Record of Appeal by adding after the word owner the following words subject to the equities, if any, of the respondent.
If the application is granted, it will amount to an extension of time for filing appeal from the Federal Court of Appeal. It has been held that when such an application is made special circumstances should be shown why it should be granted.

None of such special circumstances are shown in the affidavit sworn in support of the motion paper. As I earlier indicated, the application was refused. It logically follows that in view of the recent practice direction this appeal can not be entertained and will therefore stand dismissed with N300 costs to the respondent.

IDIGBE, JSC: On the 15th day of June, 1982, we refused the application by the applicants for (i) Leave to substitute and argue (new) grounds of appeal contained in the brief of argument already filed for the grounds of appeal appearing at pages 208-209 of the record of appeal; and (ii) for an order amending the writ of summons at page (1) of the record of appeal by adding after the word owner the following words subject to the equities, if any, of the respondents and for such further and or other orders as this Honourable Court may deem fit to make in the circumstances; and we state that we will give our reasons for doing so today. Having had the advantage of a preview of the reasons stated by my learned brother, Sowemimo, JSC for refusing the applications, and with which

I am in respectful agreement I, however, would like to add some comments of my own.
When the matter was mentioned, we drew attention of learned Counsel for the applicant to the fact that according to the notes from the Registrar of this Court, the brief of argument already filed had been filed outside the period allowed by the Supreme Court Rules. Learned Counsel for the appellant challenged the statement of the Registrar contained in the said note and it became necessary for us to take evidence from the bailiff. In the end, we were satisfied that the brief of argument had not been filed out of time. We then decided to hear learned Counsel on the applications before us; and on conclusion of his argument in support of the application, we refused the same.

Now, the affidavit in support of the application is, indeed, astonishingly short and bereft of any explanations for the need to file these additional grounds of appeal now or as to his failure in doing so earlier; nor has any explanation been given in the affidavit for the amendment of the claim for declaration of title. In N.A. Williams & Others vs. Hope Rising Voluntary Society (1982) 1-2 SC 145 at 152, this Court observed:

When a Court is called upon to make an order for extension of time within which to do certain things (i.e. extension of time prescribed by the Rules of Court for taking certain procedural steps), the Court ought always to bear in mind that Rules of Court must prima facie be observed and that it, therefore, follows that in order to justify the exercise of the Courts discretion in extending time within which a procedural step has to be taken there must be some material upon which to base the exercise of that discretion; any exercise of the Courts discretion where no material for such exercise has been placed before the Court would certainly give a party in breach of the Rules of Court uninhibited right to extension of time and the provisions as to time within which to take procedural steps set out in the Rules of Court would, indeed, in such circumstances, have no legal content.

The Court then went on to endorse the observations of Edmund-Davies, L.J. (as he then was) in Revici vs. Prentice Hall Incorporated & others (1969) 1 All E.R. 772 at 774, that prima facie if no excuse is offered, no indulgence should be granted.

Now, the applicants claims in the trial Court for, (1) declaration of title to land according to Yoruba Native Law & Custom or in the alternative in fee simple and, (2) damages for trespass and (3) for injunction, were dismissed by the trial Court and the appeal to the Federal Court of Appeal from the said judgment was also, in a unanimous judgment of that Court, dismissed. One of the principles upon which this Court allows any application for extension of time to file grounds of appeal or substitute new grounds for those already filed is that the Court must satisfy itself that there is an arguable appeal i.e. after studying the grounds of appeal against the judgment which the appeal seeks to challenge. We have here two concurrent judgments of Courts of competent jurisdiction on facts adduced before the trial Court and I have personally made a study of the brief of argument, in order to satisfy myself whether or not there is an arguable appeal, and I am satisfy that there is none. I, therefore, concurred with my learned brothers that the applications be refused.

In the event, the brief of argument duly filed which relate to the proposed grounds of appeal which have not been filed, by virtue of our refusal of the present application, (and which, in any event, although labelled grounds of law are, in substance, grounds of appeal which seek to attack findings of fact) do not in any way relate to the grounds of appeal originally filed in these proceedings.
In effect, there is no brief in support of this appeal. Accordingly, following the recent Practice Directions issued by the Chief Justice of Nigeria and this Court, it is my view that this appeal must be dismissed, under Order 9 Rule 7 Supreme Court Rules, 1977 for want of prosecution. The appellant should pay N300 Naira costs to the respondents.

OBASEKI, JSC: I have had a preview of the reasons for the ruling delivered on 15th June, 1982 and the judgment read by my learned brothers, Sowemimo, JSC and Idigbe, JSC. I agree with them and I think this appeal must be dismissed.

The appellant having failed to file a brief of argument on the grounds of appeal contained in his notice of appeal, in my view, filed no brief in compliance with the Supreme Court Rules, 1977 Order 9 Rule 3.

Grounds of appeal are normally contained in and filed along with the notice of appeal and not in briefs of argument and until there is amendment of the notice of appeal to substitute new grounds of appeal with the leave of the Court, the question of arguing new grounds of appeal in briefs of argument does not arise. See Order 7, Rule 2(5).

With regard to the application for amendment of the writ of summons, the amendment sought is, in my view, one which if comprehensible, should have been made in the High Court before final adjudication on the issue of declaration to enable parties to amend their pleadings if granted.
As there was no brief of argument properly before this Court and no application for extension of time to file briefs of argument and or additional or substitute grounds of appeal, I dismissed the application filed by the appellants on the 15th day of June, 1982.
Since the appellant has failed to file his briefs as required by Order 9, Rule 3 of the Supreme Court Rules, 1977, the appellant has failed to prosecute his appeal and I would dismiss and hereby dismiss the appeal for non-prosecution under Order 9, Rule 7 of the Supreme Court Rules, 1977 with N300.00 costs to the respondent.

ANIAGOLU, JSC: I had read before now the reasons for judgment just delivered by my learned brothers, Idigbe, JSC, not only for refusing the application by motion brought by the plaintiff/appellant/applicant but also for dismissing the appeal as a logical follow up to the refusal of the application.

For those reasons which he has given, and with which I am in complete agreement, the motion stands refused and the appeal consequently hereby dismissed with N300.00 costs to the respondents.

In dismissing the application Uwais, JSC (as he then was) held at pages 113 to 117 as follows:
On 15th June, 1982 we heard the application of the appellant for:
(i) For leave to substitute and argue the grounds of appeal contained in the briefs of arguments already filed, for the grounds of appeal appearing on pages 208-209 of the Record of Appeal; and
(ii)For an order amending the writ of summons at p.1 of the Record of Appeal by adding after the word owner the following words subject to the equities, if any, of the respondents. (sic).

I agreed with my learned brother Sowemimo, JSC that the application should be refused and be summarily dismissed while reserving till today our reasons for doing so. I now give my reasons.
The appellant was the plaintiff in an action he brought against the respondents as defendants before the High Court, Lagos. Judgment was given against him. Being dissatisfied he appealed from the judgment to the Federal Court of Appeal. His appeal in that Court was dismissed. He appealed further to this Court on five grounds of appeal. A brief of argument as it were was filed within time by him and the respondents filed their brief as well in reply to the appellants. A date was fixed for the hearing of the appeal and the parties thereto were notified. It was thereafter that the appellant filed the application in question.

The brief of argument filed anticipated that the appellants application would be granted. The new grounds of appeal stated in the brief are substantially different from the original grounds of appeal contained in the notice of appeal. These new grounds of appeal, which are six in number, though couched in such a way as to show that they pertain to points of law, are on close examination found to be on questions of fact. By Section 213 Subsection (2)(a) of the Constitution of the Federal Republic of Nigeria, 1979, an appeal from the decision of the Federal Court of Appeal to this Court lies as of right only where the grounds of appeal involve questions of law alone. Where the grounds involve question of fact, as in the present case, leave to appeal must be obtained from the Federal Court of Appeal in the first instance and thereafter if necessary from this Court; see Section 213 subsection (3) of the Constitution and Order 7 Rule 4 of the Supreme Court Rules, 1977. No leave has been obtained in this case from the Federal Court of Appeal. Hence my refusal to grant the leave sought in the first leg of the application.

With regard to the second leg, the writ of summons provides as follows:

The plaintiff seeks as against the defendants jointly and severally an order declaring him the absolute owner according to Yoruba Native Law and Custom or alternatively in fee simple of all that piece or parcel of land situate lying and being at near Debari Village, near Lagos Ikorodu Road, in the Lagos State. (Underlining mine).

By the application the word underlined are sought to read absolute owner subject to the equities, if any, of the respondents (sic) according to Yoruba Native Law and Custom. It is obvious that the amendment if granted would not make sense. Equity is a rule of English Law and has not become part of Yoruba Native Law and Custom, or indeed any native law and custom in the context of Nigeria. There is therefore nothing in our law as equities according to Yoruba Native Law ad Custom. Secondly, the issues between the parties were joined and tried in the High Court and the judgment of the learned trial Judge was given on that basis. The Federal Court of Appeal considered the appeal before it also in that light. To grant the amendment sought would alter the character of the case as considered by the Courts below. I do not think that the provisions of Order 7 Rule 26(1) of the Supreme Court Rules, 1977 under which the application was purportedly brought is intended for that purpose.

I am therefore of the opinion that the application in that respect should be refused.

Having refused both legs of the application the appellant is left with the original grounds of appeal and the brief of argument which he filed within time. However, it should be noted that the brief has no bearing upon the original grounds of appeal by reason of the fact that it was meant to present the argument in support of the new grounds sought to be filed and argued. This being so I do not see how the appeal can succeed in its present form and it should be dismissed with N300.00 costs to the respondents.

This Court will not at the hearing of the appeal interfere with the verdict, finding or judgment of the Court below or order a new trial on the ground of misdirection, or of the improper admission or rejection of evidence, unless in the opinion of the Court some substantial wrong or miscarriage of justice has been thereby occasioned as provided in Order 4 Rule 9(1)-(2) of the Rules (supra). But even where that onus has been discharged by the appellant the Court of Appeal has the right to excise the part or aspect of the decision that some substantial wrong or miscarriage of justice has been thereby occasioned (See Order 4 Rule 9(2) of the Rules), apply the Blue Pencil Rule and may give final judgment as to the remainder of the parties based on legally admissible evidence coupled with the exhibits, etc, contained in the record of appeal supported in the brief of argument, to the party that deserves the decision of this Court based on merit. The other proposed ground of appeal seeks to appeal on findings of fact if this application is granted. This will contravene a plethora of the decisions of the Superior Courts of record. Wherein they refrain to allow appellants to appeal on facts. See Austin Coleman vs. Emma Shong (1961) 2 All E.R. 406 and Kisiedu & Anor. vs. Dompreh & Anor. (1935) 2 WACA 281 at 284-286.

In an application of this nature the Court examines the record of appeal, the exhibits and in particular, the proposed grounds of appeal; the issues arising from the appeal, and judicial precedent taking into consideration the conduct of the parties from the day when the suit was instituted to the day the application was filed and is being argued in the Court. In Williams vs. Hope Rising Voluntary Funds Society (1982) 1-2 SC 145 the Supreme Court held per Karibi-Whyte, JSC at pages 145-152 as follows:-

When a Court is called upon to make an order for extension of time within which to do certain things (i.e. extension of time prescribed by the Rules of Court for taking certain procedural steps), the Court ought always to bear in mind that Rules of Court must prima facie be observed and that it, therefore, follows that in order to justify the exercise of the Courts discretion in extending time within which a procedural step has to be taken there must be some material upon which to base the exercise of that discretion; any exercise of the Courts discretion where no material for such exercise has been placed before the Court would certainly give a party in breach of the Rules of Court uninhibited right to extension of time and the provisions as to time within which to take procedural steps set out in the Rules of Court would, indeed, in such circumstances, have no legal content.
See Nalsa & Team Associates vs. NNPC (1991) 8 NWLR (Pt.212) 652 at page 676.

My decision is to dismiss this application and the appeal as moribund under Order 19 Rule 10(2) of the Court of Appeal Rules, 2016 which reads as follows:-
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.

I hereby dismiss the appeal with N100,000.00 (One Hundred Thousand Naira) cost to the respondents.

ONYEKACHI AJA OTISI, J.C.A.: I have read the Ruling delivered by my learned Brother, Joseph Tine Tur, JCA, and I agree with the conclusion dismissing both the application of the Appellants/Applicants, as well as their appeal.

By Motion on Notice filed on 21st January, 2019, the Appellants/Applicants sought extension of time to file additional grounds of appeal. Respective Counsel for the 1st Respondent and the 2nd Respondent were both served at the hearing of the application on the same day of filing, 21st January, 2019, and they have opposed the application.

It is not in doubt that the Court is empowered pursuant to Order 6 Rule 9(1) of the Court of Appeal Rules, 2016 to enlarge time provided in the Rules for the taking of any procedure step. However, applications of this nature are not granted as a matter of course. The applicant must demonstrate that there are good reasons for any delay in bringing the application. There must be concrete and cogent material placed before the Court on which it may exercise its discretion; Williams vs. Hope Rising Voluntary Funds Society (1982) LPELR-3484 (SC); Chime vs. Ude (1996) LPELR-848 (SC); Long-John vs. Blakk (1988) 5 SC 83. The grounds for bringing the instant application are completely bereft of any explanation for the delay. There is therefore no reason to justify the grant of the indulgence sought by the Appellants/Applicants. I also refuse the application.

This appeal had been listed as moribund. The Appellants/Applicants must show good reason to justify a resuscitation. Although the record of appeal was transmitted on 8th November, 2016, the appellants have not yet filed their brief of argument. No cogent reason has been given for the failure to comply with the Order 19 Rule 2, which gave the appellants forty-five days to file their brief of argument. In this circumstance, I agree that the provisions of Order 19 Rule 10(2) ought to be applied in dismissing this appeal for want of prosecution.

For these reasons and for the fuller reasons given in the lead Ruling, I also dismiss the appeal pursuant to Order 19 Rule 10(2).

JOSEPH EYO EKANEM, J.C.A.: I read in advance the ruling of my learned brother, Tur, JCA.
The appellants/applicants apply for:-
1. An order of the Honourable Court extending the time within which the appellants will file additional grounds of appeal
2. An order of the Honourable Court granting leave to the appellants to file additional grounds of appeal
3. An order of the Honourable Court deeming the additional grounds of appeal as properly filed and served the necessary fees having been paid.
4. And such orders as this Court may deem fit to make in the circumstances.

It is noteworthy that this appeal was filed on 20th January, 2016 and the record of appeal was transmitted to this Court on 8th November, 2016. Though there is no certificate of service of the record on the appellants but the normal practice is to serve the parties with the record before it is transmitted to this Court. Since 2016 till date the appellants have not filed their brief of argument.

Order 19 Rule 3(2) of the Court of Appeal Rules, 2016 provides that:
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.

The appellants have failed to comply with the provision and by Order 19 Rule 10(2) of the Rules of this Court, the Court ought suo motu to dismiss the appeal for want of prosecution.

However on 21st January, 2019 the appellants/applicants filed the motion for the prayer set out above.

Order 19 Rule 3(1) of the Court of Appeal Rules, 2016 provides that:-
The brief, which may be settled by Counsel, shall contain an address or addresses for service and shall contain what are, in the appellants view, the issues arising in the appeal as well as amended or additional grounds of appeal.

Thus an appellant is required to file his brief of argument within forty-five days of the receipt of the record of appeal. The brief of argument shall contain, inter alia, the issues arising in the appeal as well as amended or additional grounds of appeal. The provision contemplates, in part that where amended or additional grounds of appeal have been filed, issues arising therefrom are to be contained in the brief of argument.

Appellants/applicants seek for leave to file additional grounds of appeal. In the case of Dick vs. Our and Oil Company Limited (2018) 14 NWLR (Pt.1638) 1, 22 the Supreme Court (per Rhodes-Vivour, JSC) held that the grant of prayer for leave to file additional grounds of appeal is in effect an amendment to the notice of appeal and that it is an amendment without asking for it. It was further held that the order to amend the notice of appeal is in fact an incidental and consequential order which this Court has power to make as such an order is within its discretion and for the quick disposition of appeals. It needs be mentioned in passing that the appellant/applicant in that case did not ask for an order to amend the notice of appeal to incorporate the additional grounds of appeal.

It flows from the above that the prayer of the appellants/applicants for leave to file additional grounds of appeal is essentially an application for leave to amend the notice of appeal though not expressly prayed for.

Order 7 Rule 8 of the Court of Appeal Rules, 2016 provides:-
A notice of appeal may be amended by or with the leave of the Court at anytime.

In the case of South Atlantic Petroleum Ltd. vs. The Minister of Petroleum Resources (2014) 4 NWLR (Pt.1396) 24, 40, in interpreting Order 8 Rule 4 of the Supreme Court Rules (which is in pari materia with Order 7 Rule 8 of this Courts Rules supra) M.D. Muhammed, JSC, stated that:-
Order 8 Rule 4 which provides for amendment of notices of appeal does not set any time limit within which leave for amendments are to be sought and/or granted. This Court always allows amendment of processes in appropriate cases. Once the facts on which the application are predicated justify the grant of the relief, this Court will be forthcoming.

In my humble view, therefore the point in this application is not as to the time within which the appellants/applicants brought the application; the point is whether this is an appropriate case for the grant of the reliefs sought. In the case of Wellington vs. Registered Trustees of the Ijebu-Ode Goodwill Society (2000) 3 NWLR (Pt.647) 139, it was held that all applications before a Court of law are necessarily an invocation of equitable principles. Thus every applicant who seeks the exercise of the discretion of the Court must approach the Court with clean hands. See Goji vs. Ewete (2007) 6 NWLR (Pt.1029) 72, 81 and Ifekandu vs. Uzoegwu (2008) 15 NWLR (Pt.1111) 508, 519.

I have already stated that since 2016, the appellants/applicants have not filed their brief of argument. The affidavit in support of the motion is to the effect that in the course of preparing the brief of argument, Counsel for the appellants/applicants saw the need to file additional grounds of appeal. It is not stated when the Counsel started to prepare the said brief and when he saw the need to file additional grounds of appeal. It is my view that the appeal was filed for the purpose of keeping the respondents from enjoying the fruit of their victory at the lower Court. The application under consideration is nothing but an attempt to continue in that ploy. It does not deserve the sympathetic consideration of this Court as the appellants/applicants have not approached this Court with clean hands. Consequently, the application is dismissed. Pursuant to Order 19 Rule 10(2) of the Court of Appeal Rules, 2016, I hereby dismiss the appeal for want of prosecution on account of failure to appellants/applicants to file their brief of argument.

I abide by the order as to cost in the ruling of my learned brother, Tur, JCA.

Appearances:

Saidu Idris, Esq. For Appellant(s)

Yohanna Z.P. Agyere, Esq. for the 1st Respondent.

Dr. Udo Udofia, Esq. for the 2nd Respondent. For Respondent(s)