CHARLES UMEZINNE v. ATTORNEY-GENERAL OF THE FEDERATION & ORS
(2019) LCN/4867(SC)
In The Supreme Court of Nigeria
On Friday, the 10th day of May, 2019
SC.428/2010
RATIO
INTERPRETATION OF THE PROVISIONS OF RULE 10 OF ORDER 17 OF THE COURT OF APPEAL RULES, 2007 AND SECTION 6 (6)(A) OF THE CONSTITUTION WITH RESPECT TO WHEN AN APPEAL MAY BE DISMISSED FOR WANT OF PROSECUTION WHERE AN APPELLANT FAILS TO FILE HIS BRIEFS OF ARGUMENT WITHIN THE PERIOD PRESCRIBED UNDER ORDER 17 RULE 2 OF THE COURT OF APPEAL RULES, 2007
Order 17 Rule 2 of the Court of Appeal Rules, 2007 enjoined the appellant to file the Appellant’s Brief “within forty-five days of the receipt of the Record of Appeal from the Court below”. Rule 10 of Order 17 of the said Rules provided in clear and unambiguous terms the consequences for failure to file Appellant’s Brief as prescribe in Rule 2. Order 17 Rule 10 (1) provided, inter alia: Where an Appellant fails to file his brief within the time provided in Rule 2 of this Order, or within the time as extended by the Court, the respondent may apply to the Court for the appeal to be dismissed for want of prosecution. … The general consequence the appellant suffers for abandoning his appeal, by his failure to file his brief of argument within the time prescribed, is an order dismissing his appeal. In addition to the express provisions of the Court of Appeal Rules, the Court has inherent powers, being inherent powers and sanctions of a Court of law vested by Section 6 (6)(a) of the Constitution, to dismiss an appeal for want of prosecution where an appellant fails to file his briefs of argument within the period prescribed:AJAYI v. OMOROGBE (1993) 6 NWLR (pt. 301) 512; THE STATE v. NNOLIM (1994) 5 NWLR (pt. 345) 394 at 408. The Court assumes that a party who filed a process has abandoned it if he, the party who filed the process in Court, has failed or refused to follow it up by taking further steps or doing certain things to move the Court to act on it in compliance with the Rules of Court: CAREW v. OGUNTOKUN & ORS (2011) 5 NWLR 376. The law is settled on the presumption, where no brief of argument has been filed in respect of an appeal by an appellant, that the said appeal has been abandoned: ADERIBIGBE v. TAIMIYU ABIDOYE (2009) 10 NWLR (pt. 1150) 592; CORNELIUS LTD v. EZENWA (1996) 4 SCNJ 123; NKADO v. OBIANO & ANOR (1997) 5 SCNJ 33. Based on the common law principle of sit finis litium, all Courts have inherent powers to strike out any proceedings that the plaintiff, the applicant or the appellant is not willing to prosecute diligently: REMINGTON v. SCOLES (1887) 2 1; KRAKUER v. KATZ (1954) 1 WLR 279. This Court in CHIME v. UDE (1996) 7 NWLR (pt. 461) 390 had applied the principle when it called up in Chambers, the appellant’s appeal that he failed to prosecute with diligence; which notwithstanding that he was served the Record of Appeal, he failed to file his brief within the period prescribed and there was no pending application for extension of time within which to file the brief. Satisfied that the appeal had been abandoned and or that there was no intention to diligently prosecute the appeal, this Court suo motu in Chambers dismissed it. It must be stressed, as this Court did in CHIME v. UDE (supra) citing with approval the Privy Council decision in RATNAM v. CUMARASAMY (1964) 3 ALL ER 933 at 935, that every litigant in every Court must realise that the Rules of Court (particularly the Rules which provide a time table for conduct of litigations) are not made for fun and therefore must be prima facie obeyed. PER EJEMBI EKO, J.S.C.
WHETHER THE COURT OF APPEAL IN THE ABSENCE OF A MOTION ON NOTICE FOR THE DISMISSAL OF AN ABANDONED APPEAL BROUGHT UNDER ORDER 17 RULE 10 OF THE COURT OF APPEAL RULES, 2007 BY THE RESPONDENT LACKS THE JURISDICTION TO DISMISS AN APPEAL FOR WANT OF PROSECUTION
I had earlier re-stated the trite principle of law that the Lower Court has inherent powers, in addition to whatever powers it had under its Rules of practice or the enabling statute, to deal with dilatory proceedings or abandoned appeals. When an appeal from the High Court or any other Court below the Court of Appeal is entered in the Court of Appeal, it has, by dint of Section 15 (formerly Section 16) of the Court of Appeal Act, “full jurisdiction over the whole proceedings as if the proceedings had been instituted in that Court as a Court of first instance.” On this “full jurisdiction” vested in the Lower Court by its enabling statute, Muhammad, JSC (as he then was) stated, in ADO IBRAHIM & CO. LTD v. BENDEL CEMENT COMPANY LTD (2007) 4 SC (Pt. 1) 33; (2007) 15 NWLR (pt1058) 538: The practice whereby an appeal Court assumes the complete jurisdiction of a trial Court is never an innovation nor in doubt. It is a Practice legally backed by law and by judicial precedence. It is resorted to by the Appeal Courts in order to avoid unnecessary delays in the final settlement of disputes. I consider it to be a potent and very progressive means of quick dispensation of justice especially where the Courts are always inundated with long list of cases. The apparent unpreparedness of this appellant to prosecute his appeal and/or his unwillingness to prosecute appeal diligently are evident from his Counsel’s uncompromising, albeit unremorseful, submission, justifying their delay tactics. The appellant’s counsel had submitted that “the record of appeal from the Federal High Court was transmitted out of time and same was yet to be regularised”, and “that until same is regularised, the time limited for the Appellant to file his brief does not start running”. It behoved him or his client, the appellant, to regularise that process. They cannot therefore benefit from their own deliberate dereliction. In other words, a party is not allowed to rely on his own wrongdoing as an assault weapon: ADEDEJI v. NBN (1989) 1 NWLR (pt. 96) 212 at 226 227. Clearly the indiligence is deliberate and intentional. The delay in filing the brief of argument is quite inordinate. Every Court has inherent power to dismiss an action where the delay or default had been intentional and contumelious; that is a wilful disobedience of the Rules of Court prescribing the time-table for filing processes. It is clear that the Appellant herein and his Counsel had set out deliberately not to comply with the Rules of Court, particularly Order 17 Rule 2 of the Court of Appeal Rules, 2007 requiring them to file their brief of argument within 45 days after being served the record of appeal. As Karibi-Whyte, JSC put it in FAWOLE AJAYI & ANOR. v. IGIEROBO OMOROGBE (supra) society through the ages has never applauded delayed justice and it is regarded as a grievous wrong hard to bear. It exhausts finances, patience, courage and hope; hence the scathing criticisms of the Courts in the recent times for this malady in the administration of justice. The inherent power of the Court to dismiss actions for want of prosecution has never been in doubt: NIGERIAN NAVY & ORS. v. NAVY CAPT. D. O. LABINJO (2012) 17 NWLR (pt. 1328) 56 at 84. Incidentally, this Court in the NIGERIAN NAVY v. LABINJO (supra) was interpreting Order 8 Rule 18 of the Court of Appeal Rules 2007 that provided: If the registrar has failed to compile and transmit the records under Rule 1 and the appellant has also failed to compile and transmit the records in accordance with Rule 4, the respondent may by notice of motion move the Court to dismiss the appeal. This same power the respondent is invested with, under Order 8 Rule 18, to move the Court of Appeal to dismiss an appeal for indiligent prosecution was also vested in the respondent under Order 17 Rule 10 (1) of the same 2007 Rules of the Court of Appeal. Notwithstanding the power enabling the respondent to move the Court to dismiss an appeal for indiligent prosecution this Court, per Onnoghen, JSC (as he then was) in the LABINJO’S case (supra) at page 79, stated emphatically: – that an appellate Court, in a situation like the one under consideration in this appeal, has inherent jurisdiction to suo mote list the appeal and summarily dismiss same for want of prosecution without waiting for the respondent to make the application either orally or by way of a motion on notice as the Court has inherent power to do away with frivolous and vexatious appeals so as to decongest its cause list. – In ABAH v. MONDAY (2015) 14 NWLR (pt. 1480) 569 at page 591 (SC), Okoro JSC, on the principle of stare decis and judicial precedent whole heartedly endorsed the foregoing view. The appellant and his counsel seem to relish on their own iniquitous conduct of always being tardy or wanting in prosecuting their matter diligently. Equity acts in personom and it insists that whoever comes to justice must come with clean hands and heart. The Court of Justice, therefore, does not allow a party to benefit from his own iniquity, or indiligence particularly when he rides only on the back of technicality. On this note, I will not hesitate to dismiss appellant’s submission that, because the respondents did not formally move the application for the dismissal of the appeal upon a motion on notice in accordance with Order 7 Rule 1 and Order 17 Rule 10 of the 2007 Court of Appeal Rules, he was prejudiced by the oral application for the dismissal of the appeal by the respondents Counsel. The appellant’s resort to crass technicality does not avail him. Let me further stress the point; the Court can suo motu list an abandoned action or appeal on its cause list either for striking out or dismissal, and thereafter summarily deal with it. When such action or appeal is so listed for summary dismissal and the notice of the Court’s proposed action or intent is served on all the parties concerned, the respondent can orally or by way of motion on notice move the Court to dismiss such an abandoned appeal summarily: NIGERIAN NAVY & ORS v. LABINJO (supra). PER EJEMBI EKO, J.S.C.
JUSTICES
IBRAHIM TANKO MUHAMMAD Justice of The Supreme Court of Nigeria
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Supreme Court of Nigeria
AMIRU SANUSI Justice of The Supreme Court of Nigeria
EJEMBI EKO Justice of The Supreme Court of Nigeria
PAUL ADAMU GALUMJE Justice of The Supreme Court of Nigeria
Between
CHARLES UMEZINNE Appellant(s)
AND
- ATTORNEY-GENERAL OF THE FEDERATION
2. DIRECTOR GENERAL (NAFDAC)
3. INSPECTOR GENERAL OF POLICE
4. MR. DIOKA EJIONUEME
5. INSPECTOR OLA OWAGBEMI Respondent(s)
EJEMBI EKO, J.S.C. (Delivering the Leading Judgment): At the Federal High Court, holden at Lagos, the Appellant was the applicant seeking, against the respondents herein, the enforcement of his fundamental right to personal liberty. He had alleged that he was arrested, detained and continually detained at Force CID Alagbon, lkoyi Lagos without any charge and/or being informed of the offence he allegedly committed. He was arrested by officers of National Agency for Food and Drug Administration (NAFDAC) on 11th August, 2005 at about 6.45pm on the Third Mainland Bridge, Lagos while driving in the same car with his lawyer, Babatunde Kehinde. As at the date he commenced the proceedings at the Federal High Court he was still being held in the Police Custody. It was alleged, in the affidavit supporting his application for enforcement of his fundamental right, that the officers of NAFDAC demanded that he paid them N500,000.00 “for laboratory analysis of some samples of cosmetic products which were neither found” in his custody nor possession and which he did not admit the ownership of. The deponent of the supporting affidavit further averred that
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the applicant’s counsel, Babatunde Kehinde, demanded formally to know if the payment of the N500,000.00 was the pre-condition for the bail of the applicant. The 4th respondent did not reply the letter.
The Respondents filed Counter-Affidavit. The counter-affidavit was deposed to by the 5th respondent. The averments in the affidavit supporting the application were frontally and vehemently denied by the officers of NAFDAC. It was averred, inter alia, in the Counter-Affidavit that one Obi Onyeama and his wife “reported that the applicant herein was the owner of the goods stocked” in the warehouse managed by Mr. and Mrs. Obi Onyeama. And that the appellant, made statement on 18th August, 2005 wherein “he admitted importing the cosmetic products inside a container of tiles and that the import documents falsely indicated that the container was full of tiles while it actually contained both tiles and cosmetics.”
The Federal High Court, upon hearing the application brought under the Fundamental Rights (Enforcement Procedure) Rules, declared that the detention of the appellant from 11th August to 26th August, 2005 “without being arraigned before a
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competent Court of law constitutes a violation of the (appellant’s) fundamental right guaranteed under Section 35 (1) of the Constitution of the Federal Republic of Nigeria, 1999”. Consequently, it made an order “directing the respondents to tender a written apology to the (Appellant) for the unlawful detention from 11/8/05 to 26/8/05”. The trial Federal High Court, however, dismissed reliefs 2, 3, 4 & 5 on the Originating Motion. The appellant’s appeal to the Lower Court against the decision of the Federal High Court was directed, specifically, against that part of the decision of the dismissing the appellant’s prayers –
I. that the seizure and/or the continued retention of both the appellant’s expired and valid International Passport were illegal and/or unconstitutional; and
II. award of N500,000.00 or general damages for wrongful detention.
The Notice of Appeal at the Lower Court was filed on 12th June, 2007 – apparently out of time. Section 24 (2) (b) of the Court of Appeal Act, 2004, prescribed 90 days for appealing the final decision of the High Court of Appeal, at pages 215 – 221 of the record, the 91st day after the
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decision delivered on 12th June 2007.
The Record of Appeal was transmitted by the Registrar of the Federal High Court on 14th April, 2008, outside the 60 days prescribed by the Court of Appeal Rules, 2007. The Record transmitted on 14th April, 2008 was in fact transmitted after 10 months, from the filing of the Notice of Appeal. Two months after 14th April, 2008 (about 12 months after the filing of the Notice of Appeal) the supplementary Record was transmitted on 30th June, 2008. The appellant relishing in tardiness, took no steps to regularise the Records which, of course, enjoyed the presumption of regularity under Section 150 (1) of the Evidence Act, 2004 (now Section 168 (1) Evidence Act 2011). By that provision, any judicial or official act shown to have been done in a manner substantially regular is presumed to have been done in compliance with the formal requisites for its validity. Accordingly, the substantive and the supplementary records remain valid until set aside by the Court of Appeal.
Notwithstanding that his appeal was entered at the Lower Court, with the transmission of the Record of Appeal to that Court on 14th April, 2008 (the
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Record was in fact served on the appellant on 8th April, 2008), the appellant, up till 11th March, 2010 had not filed the Appellant’s Brief and there was no pending application to file same out of time.
Order 17 Rule 2 of the Court of Appeal Rules, 2007 enjoined the appellant to file the Appellant’s Brief “within forty-five days of the receipt of the Record of Appeal from the Court below”. Rule 10 of Order 17 of the said Rules provided in clear and unambiguous terms the consequences for failure to file Appellant’s Brief as prescribe in Rule 2. Order 17 Rule 10 (1) provided, inter alia:
Where an Appellant fails to file his brief within the time provided in Rule 2 of this Order, or within the time as extended by the Court, the respondent may apply to the Court for the appeal to be dismissed for want of prosecution. …
The general consequence the appellant suffers for abandoning his appeal, by his failure to file his brief of argument within the time prescribed, is an order dismissing his appeal. In addition to the express provisions of the Court of Appeal Rules, the Court has inherent powers, being inherent powers and sanctions of a
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Court of law vested by Section 6 (6)(a) of the Constitution, to dismiss an appeal for want of prosecution where an appellant fails to file his briefs of argument within the period prescribed:AJAYI v. OMOROGBE (1993) 6 NWLR (pt. 301) 512; THE STATE v. NNOLIM (1994) 5 NWLR (pt. 345) 394 at 408.
The Court assumes that a party who filed a process has abandoned it if he, the party who filed the process in Court, has failed or refused to follow it up by taking further steps or doing certain things to move the Court to act on it in compliance with the Rules of Court: CAREW v. OGUNTOKUN & ORS (2011) 5 NWLR 376. The law is settled on the presumption, where no brief of argument has been filed in respect of an appeal by an appellant, that the said appeal has been abandoned: ADERIBIGBE v. TAIMIYU ABIDOYE (2009) 10 NWLR (pt. 1150) 592; CORNELIUS LTD v. EZENWA (1996) 4 SCNJ 123; NKADO v. OBIANO & ANOR (1997) 5 SCNJ 33.
Based on the common law principle of sit finis litium, all Courts have inherent powers to strike out any proceedings that the plaintiff, the applicant or the appellant is not willing to prosecute diligently: REMINGTON v. SCOLES (1887) 2
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- 1; KRAKUER v. KATZ (1954) 1 WLR 279. This Court in CHIME v. UDE (1996) 7 NWLR (pt. 461) 390 had applied the principle when it called up in Chambers, the appellant’s appeal that he failed to prosecute with diligence; which notwithstanding that he was served the Record of Appeal, he failed to file his brief within the period prescribed and there was no pending application for extension of time within which to file the brief. Satisfied that the appeal had been abandoned and or that there was no intention to diligently prosecute the appeal, this Court suo motu in Chambers dismissed it. It must be stressed, as this Court did in CHIME v. UDE (supra) citing with approval the Privy Council decision in RATNAM v. CUMARASAMY (1964) 3 ALL ER 933 at 935, that every litigant in every Court must realise that the Rules of Court (particularly the Rules which provide a time table for conduct of litigations) are not made for fun and therefore must be prima facie obeyed.
In the instant case, unlike in CHIME v. UDE (supra) where the abandoned appeal was called up in Chambers suo motu and was dismissed for want of prosecution, the Lower Court listed the appeal for
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dismissal on its cause list for 11th March, 2008. Hearing Notice in this respect was served on the appellant on 23rd February, 2010. Between the said 23rd February, 2010 and 11th March, 2008 the appellant and/or his counsel took no remedial steps, as they were wont, to save the appeal by filing an application for extension of time which to file the appellant’s brief. Both the appellant and his counsel, in obedience to the hearing notice earlier served on them, were in Court on 11th March, 2010, when the respondent’s counsel, Mr. Olowu, moved the Court “to dismiss the notice of appeal filed since 12th day of June, 2007 for want of diligent prosecution under Order 17 Rule for failure to file brief.” Mr. Kehinde of counsel to the appellant, who had earlier in the proceeding admitted that:-
The notice of appeal was filed on 12th June, 2007 and the record was served on us on 8th April 2008,
merely responded that he “would crave the indulgence” of the court. On the basis of these indubitable facts the Lower Court ruled inter alia –
The hearing notice for dismissal was served on the appellant on the 23rd of February, 2010. The appellant
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cannot now be heard to the contrary. This is not a Court of sympathy but of law. The said notice of appeal, in the absence of any brief filed or application to file the same out of time, is dismissed vide Order 17 Rule 10 of the rules of this Court.
The appellant, in this appeal, complains that “in the absence of a motion on notice by the Respondent,” under Order 17 Rule 10, “applying for the dismissal of the appeal for failure to file Appellant’s Brief,” the Lower Court was wrong to have dismissed his appeal, as it did; and that he was denied fair hearing before the Lower Court dismissed his appeal. On the second issue, the appellant, from the records of appeal, was served the hearing notice for the dismissal of his appeal for want of diligent prosecution on 23rd February, 2010. Since there is no affidavit challenging this fact in the record the appellant and his counsel, who in obedience to the said hearing notice were in Court on 11th March, 2008, cannot be heard to say that they were denied fair hearing. The appellant and the respondents were given equal opportunities for the hearing on their appeal listed for dismissal on 11th March,
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2008, which proceedings culminated in the dismissal of the appeal. A party given an opportunity to save his process or an appeal listed for dismissal for want or diligent prosecution who failed to utilise the opportunity cannot be heard to say that he was denied fair hearing: INEC v. MUSA (2003) 3 NWLR (pt. 806) 72. In the circumstance, the appellant had not been prejudiced nor did he suffer any miscarriage of justice by the proceeding of 11th March, 2010 culminating in the dismissal of his appeal, the fact of the imminent and impending consequence that he had adequate notice of.
Now, to the first issue: that in the absence of a motion on notice for the dismissal of his abandoned appeal brought under Order 17 Rule 10 of the Court of Appeal Rules, 2007 by the respondent the Lower Court lacked the vires to dismiss his appeal. I had earlier re-stated the trite principle of law that the Lower Court has inherent powers, in addition to whatever powers it had under its Rules of practice or the enabling statute, to deal with dilatory proceedings or abandoned appeals. When an appeal from the High Court or any other Court below the Court of Appeal is entered in the
10
Court of Appeal, it has, by dint of Section 15 (formerly Section 16) of the Court of Appeal Act, “full jurisdiction over the whole proceedings as if the proceedings had been instituted in that Court as a Court of first instance.” On this “full jurisdiction” vested in the Lower Court by its enabling statute, Muhammad, JSC (as he then was) stated, in ADO IBRAHIM & CO. LTD v. BENDEL CEMENT COMPANY LTD (2007) 4 SC (Pt. 1) 33; (2007) 15 NWLR (pt1058) 538:
The practice whereby an appeal Court assumes the complete jurisdiction of a trial Court is never an innovation nor in doubt. It is a Practice legally backed by law and by judicial precedence. It is resorted to by the Appeal Courts in order to avoid unnecessary delays in the final settlement of disputes. I consider it to be a potent and very progressive means of quick dispensation of justice especially where the Courts are always inundated with long list of cases.
The apparent unpreparedness of this appellant to prosecute his appeal and/or his unwillingness to prosecute appeal diligently are evident from his Counsel’s uncompromising, albeit unremorseful, submission, justifying their delay tactics. The appellant’s counsel had submitted that “the
11
record of appeal from the Federal High Court was transmitted out of time and same was yet to be regularised”, and “that until same is regularised, the time limited for the Appellant to file his brief does not start running”. It behoved him or his client, the appellant, to regularise that process. They cannot therefore benefit from their own deliberate dereliction. In other words, a party is not allowed to rely on his own wrongdoing as an assault weapon: ADEDEJI v. NBN (1989) 1 NWLR (pt. 96) 212 at 226 227. Clearly the indiligence is deliberate and intentional. The delay in filing the brief of argument is quite inordinate. Every Court has inherent power to dismiss an action where the delay or default had been intentional and contumelious; that is a wilful disobedience of the Rules of Court prescribing the time-table for filing processes. It is clear that the Appellant herein and his Counsel had set out deliberately not to comply with the Rules of Court, particularly Order 17 Rule 2 of the Court of Appeal Rules, 2007 requiring them to file their brief of argument within 45 days after being served the record of appeal.
12
As Karibi-Whyte, JSC put it in FAWOLE AJAYI & ANOR. v. IGIEROBO OMOROGBE (supra) society through the ages has never applauded delayed justice and it is regarded as a grievous wrong hard to bear. It exhausts finances, patience, courage and hope; hence the scathing criticisms of the Courts in the recent times for this malady in the administration of justice. The inherent power of the Court to dismiss actions for want of prosecution has never been in doubt: NIGERIAN NAVY & ORS. v. NAVY CAPT. D. O. LABINJO (2012) 17 NWLR (pt. 1328) 56 at 84.
Incidentally, this Court in the NIGERIAN NAVY v. LABINJO (supra) was interpreting Order 8 Rule 18 of the Court of Appeal Rules 2007 that provided:
If the registrar has failed to compile and transmit the records under Rule 1 and the appellant has also failed to compile and transmit the records in accordance with Rule 4, the respondent may by notice of motion move the Court to dismiss the appeal.
This same power the respondent is invested with, under Order 8 Rule 18, to move the Court of Appeal to dismiss an appeal for indiligent prosecution was also vested in the respondent under Order 17 Rule 10 (1) of the same 2007 Rules of the Court
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of Appeal. Notwithstanding the power enabling the respondent to move the Court to dismiss an appeal for indiligent prosecution this Court, per Onnoghen, JSC (as he then was) in the LABINJO’S case (supra) at page 79, stated emphatically:
– that an appellate Court, in a situation like the one under consideration in this appeal, has inherent jurisdiction to suo mote list the appeal and summarily dismiss same for want of prosecution without waiting for the respondent to make the application either orally or by way of a motion on notice as the Court has inherent power to do away with frivolous and vexatious appeals so as to decongest its cause list. –
In ABAH v. MONDAY (2015) 14 NWLR (pt. 1480) 569 at page 591 (SC), Okoro JSC, on the principle of stare decis and judicial precedent whole heartedly endorsed the foregoing view.
The appellant and his counsel seem to relish on their own iniquitous conduct of always being tardy or wanting in prosecuting their matter diligently. Equity acts in personom and it insists that whoever comes to justice must come with clean hands and heart. The Court of Justice, therefore, does not allow a party to benefit
14
from his own iniquity, or indiligence particularly when he rides only on the back of technicality. On this note, I will not hesitate to dismiss appellant’s submission that, because the respondents did not formally move the application for the dismissal of the appeal upon a motion on notice in accordance with Order 7 Rule 1 and Order 17 Rule 10 of the 2007 Court of Appeal Rules, he was prejudiced by the oral application for the dismissal of the appeal by the respondents Counsel. The appellant’s resort to crass technicality does not avail him.
Let me further stress the point; the Court can suo motu list an abandoned action or appeal on its cause list either for striking out or dismissal, and thereafter summarily deal with it. When such action or appeal is so listed for summary dismissal and the notice of the Court’s proposed action or intent is served on all the parties concerned, the respondent can orally or by way of motion on notice move the Court to dismiss such an abandoned appeal summarily: NIGERIAN NAVY & ORS v. LABINJO (supra).
The totality of all I have been labouring to say is simply that this appeal, devoid of any substance, is frivolous
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and vexatious. I resolve all the two issues formulated and argued by the Appellant against the Appellant. The appeal is accordingly dismissed. The decision of the lower Court delivered on 11th March, 2010 in the appeal No. CA/L/295/2008 is hereby affirmed.
Appeal dismissed.
IBRAHIM TANKO MUHAMMAD, AG. C.J.N.: I have had the advantage of reading before now, the judgment just delivered by my learned brother, Eko, JSC in which the appeal was dismissed. I have nothing to add to the reasoning and conclusion arrived at in the lead judgment. I too dismiss the appeal for lack of merit.
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.: I have had a preview of the judgment of my learned brother, Ejembi Eko, JSC just delivered.
The facts giving rise to this appeal have been adequately summarised in the lead judgment. The main issue for determination in this appeal is whether the Court below was right in dismissing the appellant’s appeal for failure to file his brief of argument pursuant to Order 17 Rule 10 of the Court of Appeal Rules, 2007.
It is the appellant’s contention that the record of appeal and
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supplementary record of appeal were filed out of time and yet to be regularised and therefore the time for filing his brief in accordance with Order 17 Rule 2 of the Court of Appeal Rules had not fallen due. It was also contended that although the appellant was served with a hearing notice indicating that the appeal would come up on 11th March 2010, there was no indication that it was for the dismissal of the appeal. Learned counsel further contended that when the oral application for the dismissal of the appeal was made, the appellant did not have sufficient time to react.
Learned counsel for the respondent, in response, submitted that the Court has inherent power to dismiss any appeal for lack of diligent prosecution and may even do so suo motu without an application by the respondent. Reliance was placed on The Nigerian Navy & Ors. Vs Navy Captain D.O. Labinjo (2012) 17 NWLR (Pt. 1328) 56. He argued further that the appellant cannot rely on his own default in failing to compile the record of appeal within time as a defence to the striking out of the appeal and that there was no denial of fair hearing.
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I agree entirely with my learned brother, Ejembi Eko, JSC that there is no merit in the submissions made on behalf of the appellant. Order 17 Rule 10 of the Court of Appeal Rules, 2007 provides:
“Whether an appellant fails to file his brief within the time provided for in Rule 2 of this Order, or within the time extended by the Court, the respondent may apply to the Court for the appeal to be dismissed for want of prosecution.”
Throughout the submission in the appellant’s brief, it is not suggested that he had filed his brief or that he had a pending application for enlargement of time within which to do so. The consequence of the failure to file his brief within time or within the time extended by the Court if any, is that the appeal is liable to be dismissed. See: Kraus Thompson Organisation Vs N.I.P.S.S. (2004) 17 NWLR (Pt. 901) 44; (2004) LPELR 1714 (SC); Ogbu Vs Urum (1981) LPELR 2290 (SC) @ 11 E F; Dakan Vs Asalu (2015) LPELR 2468 (SC). In Kraus Thompson Organization Vs NIPSS (Supra) it was held that once the conditions for the application of Order 17 Rule 10 have been met, the Court has no discretion in the matter. Once the respondent applies under the rule,
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the appeal must be dismissed and such dismissal is final. See also: Olowu Vs Abolore (1993) 5 NWLR (Pt. 293) 255; Akujinwa Vs Nwaonuma (1998) 2 NWLR (Pt. 583) 632.
As observed by my learned brother, Nweze, JSC in Dakan Vs Asalu (Supra) at page 21 A – E of the Electronic Law Report, the essence of Order 17 Rule 10 (Supra) is to enhance case management. He noted that it has always been the demand of public policy that the business of the Court should be conducted with expedition and dispatch.
It is therefore quite preposterous that learned counsel for the appellant would seek to rely on the appellant’s indolence in regularising the record of appeal as a basis for challenging the decision of the lower Court. It has always been the position of the law that no litigant can be allowed to profit from his own wrongdoing or, in this case, his failure to comply with the rules of Court.
It must also be emphasized, that the Court has inherent powers to dismiss an appeal that is not being diligently prosecuted. See: Nigerian Navy & Ors. Vs Navy Captain D.O. Labinjo (Supra). There was no denial of the appellant’s right to fair hearing. He was duly served
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with a hearing notice informing him that the appeal was to come up on 11th March, 2010. On that day, he was represented by counsel. When the oral application to dismiss the appeal was made, all that his counsel said was “I crave the Court’s indulgence.” This has no meaning. He did not state the nature of the indulgence he was seeking from the Court.
In any event, as stated earlier, the appellant had no brief of argument before the Court and no pending application for enlargement of time within which to file one. The Court below was therefore in order when it dismissed the appeal for lack of diligent prosecution.
It is for these and the fuller reasons articulately advanced in the lead judgment, that I dismiss this appeal for being frivolous and devoid of merit.
Appeal dismissed.
AMIRU SANUSI, J.S.C.: I had the advantage of reading in advance, the judgment prepared by my learned brother Ejembi Eko JSC just delivered. I am at one with the reasoning and the conclusion arrived at that this appeal is lacking in merit and deserves to be dismissed. The appeal is accordingly dismissed by me for being lacking in substance.
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PAUL ADAMU GALUMJE, J.S.C.: I have had the privilege of reading in draft, the judgment just delivered by my learned brother, Ejembi Eko, JSC and I agree with the reasoning contained therein and the conclusion arrived thereat.
The notice of appeal that was dismissed at the lower Court was filed on the 12th of June, 2007 and the record of appeal was compiled and transmitted to the lower Court on the 8th of April, 2008. By 11th of March, 2010, the day the said appeal was dismissed, the Appellant had not filed his brief of argument. By Order 17 Rule 2 of the Court of Appeal Rules 2007 he had forty-five (45) days within which to file his brief of argument from the day he was served with the record of appeal. He was therefore out of time and there was no pending motion in which he sought for extension of time. When the appeal was called, the Appellant admitted that they were served with the record of the appeal on the 8th day of April, 2008. Mr Olowu, learned counsel for the Respondent’s application to dismiss the appeal for want of prosecution under Order 17 Rule 10 of the Court of Appeal Rules was not opposed by Kehinde,
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Esq., learned counsel for the Appellant, whose reply was, “I would crave the Court’s indulgence” The Oxford English Dictionary defines the phrase “crave your indulgence” ‘ask for earnestly’. In law, it is a formal application to a Court to make a particular order. Since the only application before the Court at that time was for dismissal of the appeal, learned counsel for the Appellant had by his answer conceded to the grant of the application for dismissal of the appeal. The words used under Order 17 Rule 10 of the Court of Appeal Rules is that “the respondent may apply to the Court for the appeal to be dismissed.” It is not mandatory that a respondent should apply for the dismissal of an appeal for failure to file an appeal. The Court has an inherent power by dint of Section 6(6)(a) of the Constitution to act in the interest of justice to bring to an end a litigation that is not prosecuted in accordance with due process.
Learned counsel can also not complain that the appellant was not accorded fair hearing by the lower Court. Fair hearing means giving equal opportunity to the parties to be heard in the litigation before the Court. See INEC vs Musa (2003)
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LPELR 24927 (SC). At the lower Court, learned counsel for the Appellant was in Court when the application for dismissal was made. He was given an opportunity to reply, but he chose to concede to the application. Appellant can therefore not be heard to complain that he was not given fair hearing by the lower Court.
With these few words and the more detailed reasoning in the lead judgment of my learned brother Ejembi Eko, JSC, I find no merit in this appeal. Accordingly same is hereby dismissed.
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Appearances:
Babatunde Kehinde, Esq. with him, Michael Akinbowale, Esq. For Appellant(s)
Tunde Olowu, Esq. with him, Tracy Ekpe, Esq. for the 2nd, 4th & 5th Respondents.
1st & 3rd Respondents though served were absent and unrepresented. For Respondent(s)
Appearances
Babatunde Kehinde, Esq. with him, Michael Akinbowale, Esq. For Appellant
AND
Tunde Olowu, Esq. with him, Tracy Ekpe, Esq. for the 2nd, 4th & 5th Respondents.
1st & 3rd Respondents though served were absent and unrepresented. For Respondent
