CHIEF TIMOTHEW IKUEMELO & ANOR v. CHIEF ENOCK ENIAYEJU ADENIKINJU & ORS
(2018)LCN/12201(CA)
In The Court of Appeal of Nigeria
On Thursday, the 29th day of November, 2018
CA/B/85/2009(R)
RATIO
COURT AND PROCEDURE: WHERE AN ORDER OF DISMISSAL IS FILED
“That a dismissal under the Rule of Order 6 Rule 10 of the Court of Appeal Rules 1981 which is impari materia with Order 19 Rule 10(1) of the Court of Appeal Rules 2016 (instant), it cannot ordinarily be set aside and appeal restored to the cause list. That the order of this Court striking out the appeal for want of prosecution should be reckoned as a ‘dismissal’. That what is more, an appeal dismissed under Order 19 Rule 10(1) Court of Appeal Rules 2016, robs and divests the Court of jurisdiction to relist or restore. That the word ‘Shall’ used by the Supreme Court in Ekpeto V. Wanogho (supra) is a word of compulsion denoting obligation or command and as such gives no room for discretion. He relies on Salik V. Idris (2015) 1 All FWLR (Pt. 790) 1307 at 1340.” PER MOHAMMED AMBI-USI DANJUMA, J.C.A.
COURT AND PROCEDURE: THE CONCEPT OF ‘JUSTICE’
“Justice is not a one way traffic, it is for both the Aggrieved, Complainant, Defendant and for the society that must not have its energy, time and resources unnecessarily dissipated by an indolent litigant at whims and caprices.” PER MOHAMMED AMBI-USI DANJUMA, J.C.A.
JUSTICES
MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria
RIDWAN MAIWADA ABDULLAHI Justice of The Court of Appeal of Nigeria
PATRICIA AJUMA MAHMOUD Justice of The Court of Appeal of Nigeria
Between
1. CHIEF TIMOTHEW IKUEMELO
2. CHIEF DENNIS AKINNUBI
(for themselves and on behalf of Ojagbemi & Liyansan Ajaka
family, Okitipupa) Appellant(s)
AND
1. CHIEF ENOCK ENIAYEJU ADENIKINJU
2. MR. AKINYELE ENIMADE
3. MR. AKINLOSE ADENIRAN
(For themselves and on behalf of Odunwo Apata family of Okitipupa) Respondent(s)
MOHAMMED AMBI-USI DANJUMA, J.C.A. (Delivering the Lead Ruling):
The Applicants herein, as Appellants had filed a Notice of Appeal No. CA/B/85/09 on the 14th October, 2008. The said Notice of Appeal was, however struck out on the 18th January, 2016 for want of diligent prosecution. Still desirous of prosecuting the said Appeal and upon the Notice of Appeal initially struck out, the Applicant by the instant motion on Notice dated and filed on 3/6/16 now prays for the following orders;
1. AN ORDER RELISTING the Appellants/applicants’ Appeal No. CA/B/85/09 filed on the 14th day of October, 2008 but struck out on the 18th January, 2016, for want of diligent prosecution.
The Grounds upon which the Appellant/Applicants’ application is brought are that: –
1. The Appellant/Applicants’ appeal was instituted at the Benin Judicial Division of the Court of Appeal immediately the judgment of the Ondo State High Court of Justice, Okitipupa Judicial Division, Coram: Akintoroye, J., was delivered on the 26th day of September, 2008.
2. The Appellant/Applicants filed their processes at the Court of Appeal, Benin, which was then the Court in which jurisdiction enured for appeals emanating from the High Courts of Ondo State – including the High Court at Okitipupa Judicial Division.
3. Thereafter, the Akure Judicial Division of the Court of Appeal was established, consequent upon which the Appellant/Applicants suit was transferred hereto.
4. Consequently, the parties before the Court were issued an hearing notice in relation to this suit as same was slated for hearing, first, on the 11th of January, 2016, and then, 18th of January, 2016.
5. That the Appellant/Applicants and their counsel were present on both dates; but for no clear cut transmission of this suit JUSTICES, it was thence struck out for want of diligent prosecution on the 18th of January, 2016.
6. That an Application to relist same was immediately filed on the 21st of January, 2016 and same was stated to come up on 21st April, 2016.
7. That the Applicants and counsel now got to Court on the said 21st April 2016, only to learn that it has again been struck out on the 14th of April, 2016, as it had been, suo motu, moved forward to that date by the Honourable Court.
8. The Appellant/Applicants are most desirous and very much ready to diligently prosecute this appeal, as the issues appertaining to the cause remain extant, hence this application.
The Applicants also prayed for such further order or orders as the honourable Court may deem fit to make in the circumstance.
The Application which is supported by an affidavit of 8 paragraphs sworn to by one Taiwo Comfort, a litigation manager in the law firm of Aderibigbe & Aderibigbe and a further affidavit annexed; to it the proposed Amended Notice of Appeal intended to be filed and also prayed for a deeming order in respect of the Amended Notice of Appeal filed on 3/6/16 and also the Appellants? Brief of Argument filed on 3/6/16.
It is observed that on 14/4/16 a similar motion filed on 21/1/16 for the relisting of the said Notice of Appeal was struck out; in the same manner, a motion granting leave to change Counsel was struck out on the said date.
There is also in the subject of the appeal struck out and sought to be relisted by the instant motion, yet another motion on Notice filed on 28/4/16 for the same relief of relisting the application for Relisting the Appeal.
Upon the heated opposition to the motion to relist the appeal struck out, this Court on 13/2/18 had ordered for written addresses to be filed by the parties.
The Applicants filed their Written Address on 26/2/18 whilst the Respondents filed their own address out of time by leave of this Court granted extending time to so do, on Monday the 26/11/18.
The Address was filed on 16/3/18. Both addresses were adopted on 26/11/18.
Arguing the motion, the Applicant denotes a sole Issue for determination to wit; Whether the application ought to be granted.
The Learned Counsel argues that this Court has the power to relist an appeal struck out. He relies on Lafferi (Nig.) Ltd V. NMB. Plc (2015) All FWLR (Pt. 802) page 1602 – 1603 par. H – B for the view.
It is contended that the Applicants have chosen between the legal options of applying for relisting the appeal not heard on its merit and filing a fresh appeal and should be granted the order for relisting.
It is further submitted that the appeal was struck out not after a hearing on its merit and therefore the option chosen to relist should be endorsed by this Court. That the appeal was struck out not for reason of any malfeasance or fault of the Applicant who had done all diligently possible, but rather that his former Counsel had failed to timeously prosecute. That the sin of Counsel should not be visited on an innocent client litigant.Obasanjo Bello V. FRN (2010) All FWLR Pt. 535 pg. 408 Par. B relied upon.
That the Court should look at the Respondents’ application for the substitution of some dead Respondents filed on 18th May, 2017 pursuant its powers to look at its Record for the purpose of doing Justice as decided in Agbo V. State (2006) All FWLR Pt. 309 at 1300.
The Respondent in his address in opposition filed on 16/3/18 and adopted on 26/11/18 at the hearing argued that the motion, particularly prayer number one for relisting the appeal cannot be granted. That the Appeal was struck out for want of diligent prosecution on account of the none filing of the Appellant’s Brief of Argument.
That the Applicants’ Appeal had been struck out on 18/1/16 and a further application of 21/1/16 to (i) relist the Appeal, (ii) change Counsel and (iii) extension of time to file Brief of Argument was again struck out on 14/4/16. That failure to file the Brief within the time frame of Order 19 Rule 10(1) of the Court of Appeal Rules merited the dismissal of the Appeal. He relies on the case of Ekpeto V. Wanogho (2005) All FWLR (Pt. 245) 1191 at 1203 – 1204.
That a dismissal under the Rule of Order 6 Rule 10 of the Court of Appeal Rules 1981 which is impari materia with Order 19 Rule 10(1) of the Court of Appeal Rules 2016 (instant), it cannot ordinarily be set aside and appeal restored to the cause list. That the order of this Court striking out the appeal for want of prosecution should be reckoned as a ‘dismissal’.
That what is more, an appeal dismissed under Order 19 Rule 10(1) Court of Appeal Rules 2016, robs and divests the Court of jurisdiction to relist or restore.
That the word ‘Shall’ used by the Supreme Court in Ekpeto V. Wanogho (supra) is a word of compulsion denoting obligation or command and as such gives no room for discretion. He relies on Salik V. Idris (2015) 1 All FWLR (Pt. 790) 1307 at 1340.
That the application to relist was after all not brought timeously and only 2 years after showing lack of motivation. That no facts showing seriousness other than complacency has been shown.
The Application to relist was filed on 3/6/16, a period of over 5 months since the Appeal was struck out on 18/1/16.
The untidy and prolonged delay notwithstanding, a motion to relist the appeal was struck out for want of prosecution when it was abandoned. Tauntingly, the Applicants herein want the appeal relisted or restored and under the guise that the previous malfeasances were (is) at the door step of his Counsel. We view that as an oppressive act of abuse of Court process which also appears taunting.
Justice is not a one way traffic, it is for both the Aggrieved, Complainant, Defendant and for the society that must not have its energy, time and resources unnecessarily dissipated by an indolent litigant at whims and caprices.
In the circumstance, I agree that the imperative command language of Ekpeto V. Wanogho compels me in the circumstance to hold that Order 19 Rule 10(1) of the Court of Appeal Rules under which this Appeal No. was dismissed or even struck out has obliterated our exercise of any discretion in favour of the Applicant.
This motion has no merit and is dismissed, therefore.
RIDWAN MAIWADA ABDULLAHI, J.C.A.: I agree.
PATRICIA AJUMA MAHMOUD, J.C.A.: I agree.
Appearances:
S. O. Kayode Okimoba, Esq., with him, Bode Famakin, Esq., and Adebambo Mabadeje, Esq.For Appellant(s)
Omoba Kunle Adetowubo, Esq., with him, O. A. Akindiose, Esq.For Respondent(s)
