CHIEF O. MOSES & ORS v. CHIEF D.O. OJIKIRI & ORS
(2019)LCN/12590(CA)
In The Court of Appeal of Nigeria
On Monday, the 28th day of January, 2019
CA/PH/31M/2017(R)
RATIO
APPEAL: FAILURE TO FILE A BRIEF
“In KRAUS THOMPSON ORGANISATION V NATIONAL INSTITUTE FOR POLICY AND STRATEGIC STUDIES (2004) LPELR 1714 (SC) KALGO JSC held thus: – ‘The provisions of Order 6 Rules 10 of the Court of Appeal Rules 1981, as amended, are very clear and needs no further interpretation. It says very clearly that if the appellant fail to file his brief within the time provided by the Rules or the time extended by the Court for doing so, the respondent may apply to the Court for the appeal to be dismissed for want of prosecution. This did not seem to give the Court any discretion. Once the respondent applies under the said Rule, the Appeal must be dismissed and such dismissal is final. See Olowu V. Abolore (1993) 5 NWLR {Pt. 293} 255; Akujinwa V. Nwaonuma (1998) 2 NWLR {Pt. 583} 632.'” PER BITRUS GYARAZAMA SANGA, J.C.A.
JUSTICES
ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria
CORDELIA IFEOMA JOMBO-OFO Justice of The Court of Appeal of Nigeria
BITRUS GYARAZAMA SANGA Justice of The Court of Appeal of Nigeria
Between
1. CHIEF O. MOSES
2. CHIEF SUNDAY OLOKO
3. CHIEF FRIDAY OKOSHI
4. MR. OKECHUKWU ATAPIA
5. MR. KINGSLEY EZEKIEL
6. EDWARD IYEKILIYE
7. MR. NELSON OKOSHI Appellant(s)
AND
1. CHIEF D. O. OJIKIRI
2. MR. D.E. ABADHI
3. CHIEF GILBERT OBILI
4. CHIEF ELEMCHI EWOH
5. CHIEF PROMISE ORLU
6. CHIEF GARRICK ALLISON
7. ELDER PHILIP UWAME
8. ELDER MARK BRIGGS
9. ELDER SAMUEL OSO
10. ELDER G.W.E. ACHA
11. CHIEF SOLOMON DAVID Respondent(s)
BITRUS GYARAZAMA SANGA, J.C.A. (Delivering the Lead Ruling):
Learned Counsel to the Applicant A.A. Abo Esquire filed a Motion on Notice on 20th January, 2017 seeking for the following reliefs.
1. AN ORDER of this Honourable Court enlarging the time within which the Applicants may apply to set aside the order of this Honourable Court made on 21st day of May, 2014 dismissing the Appeal NO. CA/PH/226/2012 between Chief Justice O. Moses & 6 Ors. V. Chief D. O. Ojikiri & 10 Ors.
2. AN ORDER of this Honourable Court setting aside the order of this Honourable Court made on 21st day of May, 2014 dismissing the Appeal NO. CA/PH/226/2012 between Chief Justice O. Moses & 6 Ors. V. Chief D. O. Ojikiri & 10 Ors.
3. AN ORDER of this Honourable Court Re-Listing Appeal NO. CA/PH/226/2012 between Chief Justice O. Moses & 6 Ors. V. Chief D. O. Ojikiri & 10 Ors in the Courts cause list for hearing and determination on the merit.
4. AN ORDER of this Honourable Court granting leave to the Appellants to amend their Notice of Appeal in appeal No: CA/PH/226/2017 by deleting some grounds and filing additional or substituted grounds as shown in the memorandum of Amendment herein attached as Exhibit M5.
5. AN ORDER deeming the Amended Notice of Appeal herewith attached as Exhibit M6 as properly filed and served, appropriate fees having been paid.
6. AN ORDER extending time within which the Appellants are to file and serve their Appellants Brief of Argument.
7. AN ORDER deeming the Applicants’/Appellants Brief of Argument herewith attached as Exhibit M7 as properly filed and served appropriate fees having been paid
8. AND for such Order(s) as this Honourable Court may deem fit to make in the circumstances of this appeal.
The grounds upon which the Application is brought are listed as follows:
(a) This Honourable Court on 21/5/2014 suo motu dismissed Appeal No. CA/PH/226/ 2012 for want of diligent prosecution on grounds of failure of the Applicants to file their Appellants? Brief of Argument.
(b) The order of dismissal of the appeal was not made on the application of the Respondents.
(c) This Honourable Court only acted under its inherent jurisdiction to dismiss the appeal, not under the rules of this Court and thus have powers to revisit and set same aside.
(d) The failure to file the Appellants’ Appellant’s Brief of Argument was not the fault of the Applicants but a mistake or in advertence of their Counsel.
(e) The Applicants’ Counsel had already prepared the Appellant’s Brief of Argument but was waiting for this Honourable Court to hear and possibly grant the Motion for Amendment of the Notice of Appeal (Exhibit M2) pending before this Court to enable counsel file the said Brief based on the Amended Notice of Appeal.
(f) The Applicants on 28th May 2014 filed an application to relist Appeal No: CA/PH/226/ 2012 and the application before the said appeal number.
(g) The said application filed on 28/5/2014 was struck out on 17/01/2017 on the ground that same ought not to have been filed with the old Appeal No: CA/PH/226/2012 as same is no longer in existence.
(h) This Honourable Court has powers to allow the Applicants to amend their Notice of Appeal and also extend the time for the Applicants to file and serve their Appellants? Brief of Argument.
(i) The interest of justice demands that Appeal No: CA/PH/226/2012 be restored and heard on the merit to give fair hearing to all the parties, particularly the Applicants.
In support of the application is an affidavit containing 9 paragraphs and many sub paragraphs. Attached to the said affidavit are documents marked as Exhibits M1, M2, M3, M4, M5, M6, & M7 respectively.
Upon receipt of the motion paper learned counsel to the Respondents E. A. Ichoku Esq. filed an 8 paragraphs counter affidavit deposed to by the 2nd Respondent. The Applicants filed a further Affidavit containing 8 paragraphs. In view of the conflict in the facts deposed to in affidavits, this Court ordered parties to file there respective written addresses on 15th September 2018.
C.E. Nwokorie Esq., filed the Applicants written address on 26th September, 2018. Learned counsel raised one issue for the determination of this Court as follows:
Whether the Appellants/Applicants have shown good and sufficient cause to warrant the setting aside of the order dismissing APPEAL NO. CA/PH/226/2012 and in its place restore the appeal for hearing on the merits.
Learned Counsel submitted that this Court has the powers to set aside the order of dismissal of the appeal made on 21/5/2014 under the following conditions:
a. If the order is a nullity such as when the Court itself is not competent; or
b. If the order was given in the absence of jurisdiction; or
c. If the procedure adopted was such as to deprive the decision of the character of a legitimate adjudication.
Cited in support the following authorities:
(1) BESSOY LTD V H.L. (NIG.) LTD. (2010) 4 NWLR (PT. 1184) 300 AT 304
(2) WITT & BUSCH LTD. V DALE POWER SYSTEMS (2007) 17 NWLR (PT. 1062)1.
Learned counsel argued that the order issued on 21/5/2014 is a nullity because it was made without jurisdiction as the procedure adopted by this Court before issuing the order for dismissal amounted to a fundamental defect which touches on the jurisdiction or competence of this Court. This is because what was fixed for hearing on 21/5/14 was the Applicants’ unopposed application for amendment of their Notice of Appeal. That the Rules of this Court provides under Order 7 Rule 1 of the Court of Appeal Rules, 2011 that every application to be made to this Court must be by motion supported by an affidavit and must state the rule under which it is brought and the grounds for seeking the reliefs.
That this Court was therefore without jurisdiction when it made an order of dismissal when there was no application filed by the Respondents to that effect. That under that circumstances this Court has the right to set aside the order of dismissal of Appeal NO. CA/PH/226/2012 it issued on 21/5/2014 and relist same for hearing and determination on the merits as the dismissal was not done in accordance with Order 18 Rule 10 of the Court of Appeal Rules, 2011. That an appeal can be dismissed pursuant to Order 18 Rule 10 only when the Respondent applies to do so. That before this Court can invoke Order 18 Rule 10 (supra) to dismiss an appeal, there must be an application by the respondent asking for the said dismissal. CitedOMOYINMI V OGUNSIJI (2001) 7NWLR (PT. 711) 149 at 155.
That a dismissal by this Court under its inherent jurisdiction is not a dismissal on the merits and can therefore be set aside on proper application by the party affected. Such a dismissal amounted to an order striking out and thus such an appeal can be restored or relisted on good cause.
Cited OMOYINMI V OGUNSIJI (Supra) at 155. That in the instant application, the Applicants have shown good and sufficient cause warranting the restoration of this appeal to be heard on the merit because the applicants are diligent in prosecuting their appeal based on the following:
1. The Notice of Appeal was filed within time.
2. Record of Appeal was transmitted within time.
3. Motion for amendment of the Notice of Appeal was also duly filed and pending before this Court.
4. Based on this Court’s directive issued on 9/1/2013, the Appellants on 10/1/13 complied with the said directive by paying the shortfall on the Notice of Appeal which was under assessed by the Registrar of the lower Court.
That on 21/5/14 when this appeal was dismissed, the applicants came ready to move their unopposed application to amend their notice of appeal by incorporating new grounds. That they were expecting a grant of the motion for amendment before they proceed to file their brief of argument incorporating arguments on the new grounds raised. Learned Counsel referred to paragraphs 3(d) and 4 (b) and (c) of their affidavit in support of the motion filed on 20/1/2017 and the already prepared Appellants’ brief of argument marked as Exhibit M9. That the failure to file the Appellants’ Brief within time is the fault of the counsel and cannot be attributed to the Appellants.
Learned counsel submitted further that breach of the provisions of the Rules of this Court is an irregularity which in deserving cases, can be remedied. That the aim of Courts is to do substantial justice between the parties and by so doing rules of Court must be interpreted in such a manner as to prevent undue adherence to technicalities. Cited PANACHE COMMUNICATIONS LTD V AIKHOMU (1994) 2 NWLR (PT. 237) 420 at 431. That in exercising their powers Courts are to ensure that an appellant is given the opportunity of obtaining substantial justice. Cited the holding of the apex Court in NNEJI V CHUKWU (1988) NWLR (PT. 81) 184 and OGUNDOYIN V ADEYEMI (2001) 13 NWLR (PT. 730) 403 at 419 – 420.
Learned counsel finally submitted that the Respondent have nothing to lose if this application is granted and the appeal heard on the merit especially as they can be adequately compensated with cost. He urged the Court to grant this application.
In their written address filed on 05/10/2018, learned counsel to the Respondent formulated one issue for determination as follows:
Whether this Honourable Court has the Jurisdiction as sought by the Applicants to revive Appeal NO. CA/PH/226/2012, which it dismissed.
Learned Counsel answered this question in the negative and submitted that the law is settled that wherever this Court is exercising its original jurisdiction and make an order pursuant to Order 18 Rules 2 and 10 of the Rules of this Honourable Court dismissing an appeal for failure to file Appellants brief within time, such an order is seen as a final judgment of this Court thus this Court becomes functus officio in respect to that appeal. Cited OLOWU V ABOLORE (1993) 5 NWLR (PT. 293) 260.
That the submission by learned counsel to the Applicants is an invitation to this Court to sit on appeal over its own decision. Learned counsel urged this Court to discountenance the entire submission by learned counsel to the Applicants. That on 21/05/14 this Court did not suo motu dismiss this appeal. That counsel representing parties were heard before this Court struck out the appeal as clearly shown on Exhibit M5 to the application. That learned counsel to the respondents applied orally for the appeal to be dismissed, the Court agreed with them and dismissed the appeal. That the Order issued by this Court on 21/5/14 was not made under the inherent jurisdiction of this Court but rather under Order 18 Rule 2 and 10 (Supra) as stated on Exhibit M5.
Learned counsel urged the Court to refuse this application and to dismiss same as the Court is functus Officio.
FINDING
I have carefully considered the reliefs sought on the motion paper the facts deposed to by COURAGE IJOGI in the affidavit in support and the documents annexed thereto and marked as Exhibits. I also considered the facts deposed to in counter Affidavit by the 2nd Respondent and further affidavit deposed to by one INNOCENT NWALA a litigation secretary in the law firm of learned senior counsel to the Appellants. Then I considered the written addresses as argued by learned counsel. In determining this application, I will adopt the sole issue canvassed by the respondent which reads thus: –
Whether this Court has the jurisdiction to grant this application to revive Appeal No: CA/PH/226/2012 which it dismissed on 21st May, 2014?
To answer this question, I looked at the Order issued by this Court on 21/05/2014 which is attached to the affidavit in support of the motion paper. It reads, in part, as follows: –
AND AFTER HEARING, J.A. Umweni Esquire with I. G. Sominari (Miss) of Counsel for the Appellants/Applicants and F.A. Ichoku Esquire of Counsel for the Respondents.
IT IS ORDERED AS FOLLOWS:
1. The Appeal deserves to be and it is hereby dismissed under Order 18 Rules 2 and 10.
2. All pending motions are hereby struck out?.
Order 18 Rule 2 of the Court of Appeal Rules 2011 provides thus: –
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.”
Rule 10 (Supra) provides, inter alia as follows: –
10: (1) Where an Appellant fails to file his brief within the time provided for in Rule 2 of this Order, or within the time as extended by the Court, the Respondent may apply to the Court for the appeal to be dismissed for want of prosecution
Upon a careful perusal of the Order issued by this Court on 21/05/2014, it is obvious that learned counsel to the Respondents F. A. ICHOKU Esq., was heard, as shown on the said Order, before this appeal was dismissed. F. A. ICHOKU Esq., of counsel to the Respondent stated so in his written address when he stated thus:-
“On the 21/5/2014, this Court took oral argument from counsel to both parties wherein we submitted that the appeal be dismissed as there was nothing to amend being that Appellants’ Appeal was stale as they were out of time in filing their Brief of Argument. The Court agreed with us and dismissed the appeal.”
This submission buttressed the holding by this Court on 21/5/2014 that learned counsel to the Respondent was heard before the Order dismissing the appeal pursuant to Order 18 Rules 2 and 10 was made. Therefore the said Order issued on 21/5/2014 was not made suo motu under the inherent jurisdiction of this Court as submitted by learned counsel to the applicants.
In KRAUS THOMPSON ORGANISATION V NATIONAL INSTITUTE FOR POLICY AND STRATEGIC STUDIES (2004) LPELR 1714 (SC) KALGO JSC held thus: –
“The provisions of Order 6 Rules 10 of the Court of Appeal Rules 1981, as amended, are very clear and needs no further interpretation. It says very clearly that if the appellant fail to file his brief within the time provided by the Rules or the time extended by the Court for doing so, the respondent may apply to the Court for the appeal to be dismissed for want of prosecution. This did not seem to give the Court any discretion. Once the respondent applies under the said Rule, the Appeal must be dismissed and such dismissal is final. See Olowu V. Abolore (1993) 5 NWLR {Pt. 293} 255; Akujinwa V. Nwaonuma (1998) 2 NWLR {Pt. 583} 632.”
Upon considering the holding by the apex Court on this issue, it is obvious that the issue raised in determining this application should be and is answered in the negative. This Court lacks the jurisdiction to grant this application to revive appeal No: CA/PH/226/2012 which it dismissed on 21/5/2014 since such dismissal is final thereby rendering this Court to be functus officio. In the circumstances, this application lacks merit and it is hereby refused. There shall be no order as to cost.
ISAIAH OLUFEMI AKEJU, J.C.A.: I had the opportunity of reading the Ruling of my learned brother, BITRUS GYARAZAMA SANGA JCA before it was delivered. I agree that the application has no substance or merit and it is refused by me. I abide by the consequential Order.
CORDELIA IFEOMA JOMBO-OFO, J.C.A.: I had the opportunity to read the draft of the judgment delivered by my learned brother, Bitrus Gyarazama Sanga, JCA and I am fully in agreement with his reasoning and conclusion that this application for lacking merit should be refused and it is hereby refused by me.
I make no order as to costs.
Appearances:
G.I. Abibo,SAN with him, C. E. Nwokrie, Esq. and P.I. Wilcox, Esq.For Appellant(s)
D.E. Nwoko,Esq. with him, F.O. Ichoku, Esq.For Respondent(s)
