DAEWOO (NIG) LTD v. ALAMINA & ANOR
(2022)LCN/5126(SC)
In The Supreme Court
On Friday, January 07, 2022
SC.48/2014
Before Our Lordships:
Mary Ukaego Peter-Odili Justice of the Supreme Court of Nigeria
Kudirat Motonmori Olatokunbo Kekere-Ekun Justice of the Supreme Court of Nigeria
Mohammed Lawal Garba Justice of the Supreme Court of Nigeria
Ibrahim Mohammed Musa Saulawa Justice of the Supreme Court of Nigeria
Emmanuel Akomaye Agim Justice of the Supreme Court of Nigeria
Between
DAEWOO NIGERIA LIMITED APPELANT(S)
And
1. MITSHEL ALAMINA 2. THE ESTATE OF S. ALAMINA RESPONDENT(S)
RATIO:
THE ENTITLEMENT TO FAIR HEARING WITHIN A REASONABLE TIME
Instructively, it’s a trite constitutional doctrine that in the determination of the civil rights and obligations thereof, a person shall be entitled to a fair hearing within a reasonable time by a Court of law or tribunal established by law in such a manner as to secure its independence and impartiality. See Section 36(1) of the Constitution of Federal Republic of Nigeria, 1999 as amended.
THE INHERENT POWER OF THE COURT TO DISMISS AN ACTION FOR WANT OF DILIGENT PROSECUTION
The law is quite well settled that all superior Courts of record have inherent powers to dismiss an action, in appropriate circumstances, for want of diligent prosecution.
In Echaka Cattle Ranch Ltd Vs Nigerian Agricultural & Cooperative Bank Ltd. (1998) 3 SC 1, (1998) LPELR-998 (SC) @ 27-28, it was held per Iguh, JSC, inter alia:
“… it cannot be doubted that there is inherent jurisdiction in all superior Courts of record to dismiss an action in appropriate cases for want of diligent prosecution. This jurisdiction is exercisable where, inter alia, there exists evidence of inordinate and inexcusable delay on the part of the plaintiff or his counsel in the prosecution of the action, and such delay is most likely to be prejudicial to the defendant or to the fair hearing of the action… However, because of the severity of the penalty of dismissing a plaintiff’s suit for want of diligent prosecution, in that the life of such an action is finally terminated, Courts exercising such inherent jurisdiction must always ensure that they are cautious and judicious in the exercise of this power. But there is definite jurisdiction in the superior Courts of record to dismiss a suit for want of diligent prosecution. KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.
It was held in State Vs Nnolim & Anor. (1994) 5 NWLR (Pt. 345) 394; (1994) LPELR-3222 (SC) @ 20 A- C, per Adio, JSC:
“The position is that the Court below is empowered to dismiss an appeal for want of prosecution where an appellant fails to file his brief within the prescribed time. Apart from the provisions made in the Court of Appeal (Amendment) Rules, 1984, the Court of Appeal has inherent powers to dismiss an appeal for want of prosecution where a party has failed to comply with certain procedural rules such as filing of brief of argument. See Ajayi Vs Omorogbe (1993) 6 NWLR (Pt.301) 502.”
(Underlining mine)
See also: S & D Construction Co. Ltd Vs Ayoku & Anor. (2011) LPELR-2965 (SC) @ 26; Nigerian Navy vs Labinjo (2012) LPELR-7868 (SC) @ 26-27. KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.
THE PRINCIPLE OF FAIR HEARING AND ITS APPLICABILITY
See Oseni v State (2012) 5 NWLR (Pt. 1293) 351 at 383-384. In the case of Inakoju v. Adeleke (2007) 4 NWLR (PT 1025) 423 at 621-622 the Supreme Court per Niki Tobi, JSC reiterated the said trite position of the law when the apex Court held as follows:
“Fair hearing is not a cut and dry principle which parties in the abstract always apply to their comfort and convenience. It is a principle which is based on the facts before the Court. Only the facts of the case can influence and determine the application or applicability of the principle. The principle of fair hearing is helpless or completely dead outside the facts of the case… The duty of the Court, trial and appellate, is to create the atmosphere or environment for fair hearing of a case but it is not the duty of the Court to make sure that a party takes advantage of the atmosphere or environment by involving himself in the fair hearing of the case. A party who refuses or fails to take advantage of the fair hearing process created by the Court cannot turn around to accuse the Court of denying him fair hearing. After all, there is the adage that the best the owner of the horse can do is to take it to the water; he cannot force it to drink the water. The horse has to do that itself and by the act of sipping. If the horse is unwilling to sip, that ends the matter. The horse will not blame anybody for death arising from the lack of water or hydrate” IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C.
THE UTILIZATION OF THE PRINCIPLE OF FAIR HEARING
Also, in the case of Odunlami v. Nigerian Navy (2013) 12 NWLR (Pt. 136) 20 at 70 F- G the apex Court Peter-Odili JSC, held as follows:
“The right to be heard is not a position that can be questioned however, it must be understood for what it is and that is really an opportunity to be heard. Therefore, where a party with the right to be heard or a legal representation on his behalf and he fails to utilize it, then the condition has been adequately met, that he had the open channel but chose not to utilize it. He cannot complain of an infringement on that basic fundamental natural law concept”. IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C.
IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C. (Delivering the Leading Judgment): The instant appeal is a natural fall-out of the decision of the Court of Appeal, Port-Harcourt, Judicial Division, coram Ejembi Eko, JCA (as he then was), Modupe Fasanmi and Stephen J. Ada, JJCA, delivered on January 27th, 2014 in appeal No. CA/PH/295/2013. By the decision in question, the Court below dismissed the Appellant’s appeal challenging the decision of the Rivers State High Court in suit No. NHC/91/2000 delivered on March 8th, 2013.
BACKGROUND FACTS
The facts and circumstances surrounding the appeal are not at all far-fetched. They are deducible from the record of appeal, evidently transmitted from the Court below to this Court on October 6th, 2021.
Indeed, the genesis of the appeal is traceable to September 23rd, 1991. That was the fateful day one Siyeofori A lamina was killed while fishing in Ogu Creek, in Ogu lobolo Local Government Area of Rivers State, in an accident allegedly caused by the Appellant’s speed boat, SLUDGE 1.
Series of efforts were made by the respective parties with a view to amicably diffusing tension arising from the circumstances leading to the untimely death of the deceased person. Most particularly, on September 23rd, 1999, one Mr. HT Minakiri wrote letters to the Appellant and various other organizations (including the Ijaw Freedom Fighters, Ijaw National Congress, et al), thereby demanding for the payment of damages in the sum of N147,000,000.00 (One Hundred and Forty Seven Million Naira) only to the family of the victim of the accident, the late Mr. Siyeofori Alamina.
On December 20th, 1999, the Appellant, by its letter addressed to the Ijaw National Congress, forwarded to the family of the deceased person (Mr. S. Alamina) an Equity Bank Ltd cheque bearing the sum of one Million Naira. The cheque in question was received and duly acknowledged by one High Chief F.J. Williams on December 21st, 1999.
However, on September 28th, 2000, 9 years after the fateful accident that resulted in the death of the said Mr. S. A lamina, Mr. H T Minakiri (now deceased) deemed it expedient the institute the suit (NHC/91/2000) at the trial High Court vide a writ of summons. Filed along with the writ was a motion Ex parte, thereby praying the trial Court to hear and determine the action under the undefended List procedure. The trial Court granted the motion Ex parte, and accordingly entered the action under the undefended List.
On October 17th, 2000, barely two weeks after entering the suit under the undefended List, the trial Court proceeded to deliver judgment and grant all the reliefs sought by the Respondents (claimants).
Consequent upon the demise of the original claimant (Mr. Minakiri), the 1st Respondent herein filed an application to substitute same, which said application was duly granted by the trial Court on February 29th, 2012.
On March 1st, 2012, the Appellant filed an application (dated 29/02/2012) seeking the trial High Court for the following reliefs:
1. AN ORDER for extension of time within which to apply to set aside and/or vacate the judgment/decision delivered in this matter on the 17th day of October, 2000 for want of jurisdiction and non-service of the originating processes in the matter on the Defendant/Applicant.
2. An ORDER setting aside and/or vacating the judgment/decision delivered in this matter on the 17th day of October, 2000 for want of jurisdiction and non-service of the originating processes in the matter on the Defendant/Applicant.
3. AN ORDER setting aside the aforesaid judgment/decision in this suit delivered on the 17th, day of October, 2000 on the ground that the same was obtained by fraud and/or misrepresentation.
4. AN ORDER striking out the claimant’s writ of summons and other processes in this matter for lack of jurisdiction of the Honourable Court to hear and entertain this matter.
5. AN ORDER for stay of execution of the judgment/decision delivered in this action on the 17th day of October, 2000 by the Honourable Court pending the hearing and determination of this application.
6. AN INJUNCTIVE ORDER restraining the Claimants/Respondents, whether by themselves, their servants, agents and privies from howsoever employing any known means or method of executing or recovering the sums awarded to him in the judgment delivered on 17/10/2000 which is being challenged herein, including the commencement of garnishee proceedings before any superior Court of record in Nigeria in pursuance of the aforesaid judgment of 17/10/2000 pending the hearing and determination of this application.
7. AND for such further or other orders as this Honourable Court may deem it fit to make in the circumstance.
ALSO TAKE NOTICE that the Defendant/Applicant may seek the following alternative prayers:-
1. AN ALTERNATIVE ORDER that the writ of summons and other originating processes be served on the Defendant/Applicant so that she can enter appearance in the matter and deliver her notice of intention to defend the suit together with an affidavit disclosing defence on the merit
2. AN ALTERNATIVE ORDER removing the matter forth with from the undefended list and transferring it to the general cause list for it to be heard on the basis of pleadings and viva voce evidence of the parties and their witnesses.
3. A FURTHER ALTERNATIVE ORDER striking out the name of the 2nd claimant in this suit as it is a non-juristic legal persona that can neither sue nor be sued eo nomine.
That application was predicated upon a total of ten grounds and 23 affidavits sworn to by one Jude Umahi, the Assistant Administration manager of the Appellant.
The Appellant’s application seeking to set aside the default judgment in-question was argued by the respective parties and ruling delivered by the trial Court on March 18th, 2013, thereby resulting in dismissing the Appellant’s application.
Not unnaturally, the Appellant was utterly dissatisfied with the said ruling of the trial Court, thus appealed to the Court below. That appeal was dismissed for want of prosecution; thus leading to the instant appeal.
On 11/10/2021, when the appeal at long last came up for hearing before us, the learned counsel addressed the Court and adopted the submissions contained in their respective briefs of argument. Thus, warranting the Court to reserve judgment to today.
The Appellant’s brief of argument settled by Tayo Oyetibo SAN on 25/3/2014, spans a total of 40 pages. At pages 8- 10 of the said brief, 5 issues have been couched for determination:
1. WHETHER THE COURT OF APPEAL WAS RIGHT IN LAW IN DISMISSING THE APPELLANT’S APPEAL, SUO MOTU, FOR WANT OF PROSECUTION PURSUANT TO ORDER 18 RULE 10 OF THE COURT OF APPEAL RULES 2011 WHEN THE APPELLANT HAD BEFORE THE COURT AN APPLICATION FOR LEAVE TO AMEND ITS NOTICE OF APPEAL BY FILING ADDITIONAL GROUNDS OF APPEAL AND THERE WAS NO APPLICATION FROM THE RESPONDENTS SEEKING THAT RELIEF. (GROUNDS 1 AND 4)
2. WHETHER HAVING REGARD TO SECTION 36 (1) OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA 1999 (AS AMENDED), THE COURT OF APPEAL WAS RIGHT IN LAW IN DISMISSING THE APPELLANT’S APPEAL PURSUANT TO ORDER 18 RULE 10 OF THE COURT OF APPEAL RULES 2011, WITHOUT FIRST AFFORDING THE APPELLANT AN OPPORTUNITY OF BEING HEARD AND MAKING REPRESENTATION RESPECT THEREOF. (GROND 2)
3. WHETHER THE COURT OF APPEAL WAS RIGHT IN LAW IN REFUSING THE APPELLANT’S PRAYERS FOR AMENDMENT OF ITS NOTICE OF APPEAL ON THE GROUNDS THAT THE APPELLANT HAS NOT FILED ITS BRIEF NOR APPLIED FOR EXTENSION OF TIME TO FILE THE BRIEF, WITHOUT CONSIDERING THE PRAYERS IN QUESTION ON THEIR MERITS. (GROUNDS 3 AND 5)
4. WHETHER THE COURT OF APPEAL WAS RIGHT IN LAW IN SUO MOTU, DISMISSING THE APPELLANT’S APPEAL, PURSUANT TO ORDER 18 RULE 10 OF THE COURT OF APPEAL RULES 2011, ON A DAY FIXED FOR THE HEARING OF ALL PENDING MOTIONS, WHEN THERE WAS NO PENDING APPLICATION FROM THE RESPONDENTS FOR THE DISMISSAL OF THE APPEAL. (GROUNDS 6)
5. WHETHER THE DECISION OF THE COURT OF APPEAL DISMISSING THE APPELLANT’S MOTION DATED 4TH JULY, 2013 WAS NOT A NULLITY FOR FAILURE TO CONSIDER, AT ALL, PRAYERS 3 AND 4 OF THE APPLICATION (GROUND 7)
Issue No. 1 is argued at pages 10-18 of the brief. In the main, it’s submitted that the Court of Appeal had no jurisdiction to dismiss an appeal pursuant to Order 18 Rule 10 of the Court of Appeal Rules, 2011. Further submitted, that the Court below was wrong in dismissing the Appellant’s appeal pursuant to Order 18 Rule 10 (supra), when the Appellant had before that Court an application seeking an amendment of its notice of appeal. The cases of OBOMHENSE VS. ERHAHON (1993) 7 NWLR (pt. 303) 22; AJUWA VS. SPDC NIGERIA LTD (2011) 18 NWLR (pt. 1279) 797 @ 834-837; NNEJI VS. CHUKWU (1988) 3 NWLR (pt. 81) 184, have been cited and relied upon in support.
The Court is urged to so hold, and set aside the decision of the Court below, as it is allegedly unjustifiable in law.
Issue No. 2 is argued at pages 18-24 of the brief, to the conclusive effect that the decision of the Court below thereby dismissing the Appellant’s appeal was taken suo-motu in contravention of Section 36 (1) of the 1999 Constitution as amended. Thus, the said decision must be declared a nullity. See ADIGUN VS. AG OYO STATE (1987) NWLR (pt. 53) 678.
The Court is urged to nullify the said decision by which the Appellant’s appeal was dismissed.
Issue No. 3 is argued at pages 24—29 of the brief, to the conclusive effect that the amendment being sought by the Appellant relates to grounds 2, 3 and 5 of the notice of appeal, thereby raising jurisdictional issues relating to the judgment of the trial Court. That, if the Court below had not taken irrelevant matters, it would undoubtedly have granted the application based on settled principles.
The Court is urged to resolve the issue in favour of the Appellant.
Issue No. 4 was argued at pages 30—33 of the brief, to the conclusive effect that it’s clear from the supplementary record, that the business of the Court below on 27/01/2014 was the hearing of all pending applications. There was no pending application before the Court as at that date seeking dismissal of the appeal pursuant to Order 18 Rule 10 of the Court of Appeal Rules (supra).
The Court is urged to so hold.
Lastly, issue No. 5 is argued at pages 34-38 of the brief. In the main, it’s submitted that the Court below was wrong in failing or neglecting to consider prayers 3 and 4 of the Appellant’s motion without giving any reason whatsoever. See GENERAL ELECTRIC CO. VS. AKANDE (2012) 16 NWLR (pt. 1327) 593 paragraphs E-H; COOKEY VS. FOMBO (2005) 15 NWLR (pt. 947) 182 @ 200 paragraph D.
It was postulated, that the failure of the Court below to consider prayers 3 and 4 of the motion in-question was a grave violation of the Appellant’s right to fair hearing guaranteed under Section 36 (1) of the 1999 Constitution, as amended. The Court is urged to so hold.
Conclusively, the Court is urged upon to allow the appeal.
Contrariwise, the 1st and 2nd Respondent’s brief was filed on 24/05/2017 and settled by I.E Oguaju-Dike Esq. It spans a total of 26 pages. At pages 5-10 of that brief, a preliminary objection has been raised and duly argued, thereby urging upon the Court to hold that grounds 3, 4 and 5 of the notice of appeal are incompetent, and invalid, thus ought to be struck out as the Court lacks jurisdiction to determine same.
At page 10 of the brief, two issues have been raised.
1. Whether the Court of Appeal in the exercise of its Constitutional, statutory and inherent powers, has the jurisdiction to dismiss an appeal that is not being diligently prosecuted by the Appellant.
2. Whether a party who was given an opportunity to be heard, but failed, refused and/or neglected to avail himself of that opportunity can be heard to complain of breach of fair hearing guaranteed under the Constitution of the Federal Republic of Nigeria, 1999 (As Amended).
Issue No. 1 is argued al pages 10-16, of the brief. In a nutshell, it is submitted that the Court below possesses power and jurisdiction under the Constitution and the enabling statute to dismiss the appeal that has been abandoned by the appellant for want of diligent prosecution, primarily to decongest its cause list.
Further submitted, that the Appellant filed the appeal on 19/03/2013 against the ruling dated 18/03/2013 refusing to set aside its judgment, delivered on 17/10/2000. The record of appeal was transmitted to the Court below on 09/05/2013.
It is argued, that the Appellant was not prudent enough to file brief thereof. That the application on (04/7/2013) was a deliberate and grand design to frustrate the Respondents from reaping and enjoying the fruits of their judgment of over 17 years.
Issue No. 2 was argued at pages 16-24 of the brief. In the main, it is argued that it’s apparent from the circumstances of the case, that the Appellant’s action and conduct at the Court below was in flagrant disregard and breach of the express mandatory provisions of Order 18 Rule 2 of the Court of Appeal Rules, 2011. That the Appellant was given an ample opportunity by the Court below to be heard on Order 18 Rule 10, but the Appellant declined to address the Court on such fundamental issue.
Conclusively, the Court is urged to dismiss the appeal for lacking in merits and affirm the judgment of the Court below.
DETERMINATION OF THE RESPONDENTS’
PRELIMINARY OBJECTION
As alluded heretofore, the Respondents have raised and argued a preliminary objection at pages 5-10 of the brief thereof.
The preliminary objection exclusively challenges the competence of Grounds 3, 4 and 5 of the Notice of Appeal vis-a-vis issues 3 and 5 of the Appellant (pages 24-29 and 34-38 of the Appellant’s Brief) respectively.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
Jurisprudentially, the fundamental objective of a notice of preliminary objection is to accord the adversary party an opportunity of reacting to the objection with a view avoiding any unwholesome surprise:CHIEF AGBAKA VS. CHIEF AMADI (1998) NWLR (pt. 572) 16 @ 25; OGIDI (DECEASED) & 7 ORS VS. EGBA & 5 ORS (1999) 6SCNJ 157; ABUBAKAR VS. JOSEPH (2008) 13 NWLR (pt. 1104) 307; (2008) 34 NSC QR (pt. 11) 11195.
Remarkably, the procedure for raising a preliminary objection to grounds of appeal has been reiterated in a plethora of formidable authorities. See NSIRIM VS. NSIRIM (1990) 3 NWLR (pt. 138) 285 @ 296, et al. Fundamentally, for a preliminary objection to be validly raised and considered, the Respondent must first and foremost file a motion on which the objection is based.
In the instant case, the Respondents’ objection exclusively challenges Grounds 3, 4 and 5 of the Notice of Appeal. Thus, presupposing the fact that the rest of the Appellant’s grounds are competent.
In the circumstance, the Respondents’ preliminary objection ought to be, and same is hereby discountenanced.
DETERMINATION OF THE APPEAL ON THE MERITS
Having accorded a critical, albeit dispassionate, consideration upon the nature and circumstances surrounding the appeal, the submissions contained in the briefs of argument vis-a-vis the record of appeal as a whole, I am inclined to adopt the five issues raised and argued by the Appellant for the determination of the appeal, anon.
ISSUE NO. 1
The first issue raises the question of whether the Court below was right in law in dismissing the Appellant’s appeal (CA/PH/295/2013) suo-motu for want of prosecution, pursuant to Order 18 Rule 10 of the Court of Appeal Rules 2011, when the Appellant had before the Court an application for leave to amend its notice of appeal by filing additional grounds. The first issue was distilled from ground 1 of the notice of appeal.
It is trite, on the face of the records of appeal that the motion filed by the Appellant on 04/07/2013 prayed for a total of 4 reliefs.
On 27/01/2014, when the motion came up for hearing, Oyetibo, SAN submitted thus:
Motion filed on 4/7/2013. It has 4 prayers. Prayers seek amendment of Notice of Appeal. Amended Notice of appeal is Exh. DNL7. We seek a deeming order. See ERISI V. IDIKA (1987) 4 NWLR (pt. 66) 503 at 514 517.
We made offer to deposit the judgment debt in interest yielding (sic) in the name of Deputy Chief Registrar of this Court within 30 days. Prayer for stay of execution was refused by Court below. Order Nisi; paragraphs 15-18 support affidavit. Order Nisi was obtained when this matter is pending in this Court.
Record was transmitted on 9/5/2013. This application was filed on 4/7/2013. There was an application filed on 21/3/2013 in this Court we were here on 11/4/2013. The Order Nisi was made on 15/4/2013.
Relief for stay of conditional stay(sic) was in this Court when the order Nisi was made. FIDELITY BANK PLC V. OKWUOWULU (2013) 6 NWLR (1349) 197 AT 213 —4
However, on the part thereof, Lamikanra, SAN of Respondents’ counsel, vehemently objected to the application. He accordingly submitted:
We urge dismissal. The Court lacks jurisdiction to entertain this application. The application is incompetent for prayer’s 3 & 4 aim at stay of execution of the judgment of 17/10/2000. There is no appeal against this judgment. Jurisdiction therefore cannot be invoked in respect of prayers 3 4,
2 Proceeding sought to be stayed is the garnishee proceeding at the Court below.
3. The judgment debtor is not a party in garnishee proceeding. The contest is between judgment debtor and the garnishee, the bank. The garnishee is not before this Court. There is no appeal against the Order Nisi UBA V. EKANEM (2010) 6 NWLR (pt. 1190) 207 AT 221-225; PURIFICATION TECH V. AG LAGOS (2004) 9 NWLR (pt. 879) 600 at 665 — the fact that there is motion for stay of execution does not preclude motion for garnishee proceedings, which is between judgment creditor and the garnishee. See also DENTON WEST V. MUOMA (2008) 6 NWLR (pt. 1083) 402 at 418.
Appellants are not desirous of perusing the appeal against the order refusing to set aside the judgment delivered 2000 on the undefended list procedure. There was prayer for extension of time within which to apply for order setting aside the judgment. The Court below refused the application. Hence this appeal.
The Court has a duty to enforce its own judgment. This Court does not have power to prevent Court below from exercising its own Constitutional powers. The appellate jurisdiction of this Court has not been invoked. NELSON’S LAW OF INJUNCTIONS 6th ed. vol. 2 pt. 163; PALANIANNAL VS. PALLIAPALA YAN (1981) M. L. J. 147 at 152.
Application be refused, especially prayers.
Contrariwise, Oyetibo, SAN replied on points of law:
Application to set aside judgment is a challenge to the judgment. The refusal gives right of appeal OKAFOR V. EZENWA (1992) 4 ALL NWLR (237) 611 at 6170
Judgment debtor is a party to garnishee proceedings by reason of service on him of the order Nisi pursuant to Section 83 (2) Sheriff & Civil Process Act. Payment of judgment debt supported order nisi – TOTAL NIG, LTD V. ELECTRICAL & MECH CO. LTD (1972) 8-9 SC44 at 52 (Reprint).
The power of this Court is vested by Order 4 Rule 11 Rules of this Court. The lower Court no longer has jurisdiction.
The Court below proceeded to deliver its ruling consequent upon the submissions of the respective learned senior counsel, to the conclusive effect:
RULING
This appeal from which this interlocutory application emanates was filed on 19/3/2013. The appeal is against the refusal of the Court below to set aside the judgment delivered on 17/10/2010 on the undefended list. The refusal to set aside the said judgment, as rightly submitted by Mr. Oyetibo, SAN for the applicant is an appealable decision by virtue of Section 315 of the 1999 Constitution, as amended.
The records of appeal, in the appeal against the refusal to set aside judgment on the undefended list, was transmitted to this Court on the 9/5/2013. Up till this moment, the Appellant has not filed his brief of argument, and there is no application for extension of time within which to file the Appellant’s brief Order 18 Rule 2 of the Rules of this Court enjoins every appellant to file his brief within 45 days after the receipt of the Record of appeal.
This appellant/applicant are now in violation of Order 18 Rule 2 directive,
The Appellant/Applicant is playing games. The name of the game is delay. He has been at this since 2000. He waited till 2013 to apply for the judgment on the undefended list to be set aside.
On 18/3/2013 the application to dismiss the 2000 judgment was refused. The Record in the interlocutory appeal was transmitted since 9/5/2013. He filed this application for leave to amend notice of appeal on 4/7/2013 — 46 days after the Record was transmitted. He has no prayer for extension of time within which to file his brief. Equity follows the law and it assists or aids only the vigilant and not the indolent.
The conduct of the applicant does not warrant the grant of this application is hereby dismissed in its entirety.
By dint of Order 18 Rule 10, read with Order 18 Rule 2, of the Rules of this Court 2011 the appeal is hereby dismissed for want of prosecution.
The foregoing findings and conclusive order thereby dismissing the Appellant’s application in-question represent the unanimous decision of the Court below. It is obvious, the decision of the Court below is cogent, unassailable and duly supported by the circumstances surrounding the appeal on the Records.
By virtue of the provision of Order 18 Rule 10 of the defunct Court of Appeal Rules, 2011:
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. If the respondent fails to file his brief, he will not be heard in oral argument.
Undoubtedly, Rule 10 (supra) is predicated upon the provision of Rule 2 of Order 18 of the Court of Appeal Rules, 201 1 which provided:
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 foregoing provisions of Order 18 Rule 2 (supra) are unequivocal, and clearly provided for the time limit within which the Appellant in the present appeal ought to have filed the written brief of argument thereof. The duty to file written brief imposed upon the Appellant within 45 days after the record of appeal was served on him was rather imperative. That’s to say, time began to run for the Appellant to file his brief from the day the record of appeal was served thereupon. See CONSORTIUM M.C. VS. NEPA (1992) 6 NWLR (pt. 246) 132; et al.
As aptly found by the Court below at page 388 of the Record of Appeal:
The Record in the interlocutory appeal was transmitted since 9/5/2/13. He filed no brief. He filed this application for leave to amend the notice of appeal on 4/7/2013 — 46 days after the Record was transmitted. He has no prayer for extension of time within which to file his brief. Equity follows the law and it assists or aids the vigilant and not the indolent.
I cannot agree more with the foregoing finding of the Court, which said finding is unassailably cogent and duly supported by the record and the trite principles of law in regards thereto. And I so hold.
In the circumstance, the first issue ought to be, and it is hereby resolved against the Appellant.
ISSUE NO. 2
The second issue raises the question of whether having regard to Section 36 (1) of the 1999 Constitution as amended, the Court below was right in law in dismissing the Appellant’s appeal pursuant to Order 18 Rule 10 of the Court of Appeal Rules 2011, without first affording the Appellant an opportunity of being heard and making representation thereon. The second issue is distilled from ground 2 of the notice of appeal.
Instructively, it’s a trite constitutional doctrine that in the determination of the civil rights and obligations thereof, a person shall be entitled to a fair hearing within a reasonable time by a Court of law or tribunal established by law in such a manner as to secure its independence and impartiality. See Section 36(1) of the Constitution of Federal Republic of Nigeria, 1999 as amended.
Undoubtedly the provision of Section 36 (1) of the 1999 Constitution, supra, has been a subject of interpretation over the years by this apex Court in a plethora of formidable authorities. That provision has always been recognized and upheld by this Court to formidably protect all the parties to a case, whether as plaintiffs, defendants, appellants or respondents, as the case may be. Thus, it would be reprehensibly oppressive to interpret the provision as merely conferring a protection on just one of the parties to a case. This is absolutely so, because the fundamental and most onerous duty of a Court of law or Tribunal, is to administer justice between the respective parties to a dispute in any given case without fear or favour, affection or ill-will. Thus, one-sided justice would amount to an injustice. As aptly once pontificated over three decades ago by this Court:
The law is made to ensure justice. Rules of Court are hand maids of justice. It is only by orderly administration of law and obedience to the rules that legal justice can be attained. When a particular decision is against all known rules; against all known principles, then it is certainly not made in the interest of justice.
See WILLOUGHBY VS. INTERNATIONAL MERCHANT BANK (NIG) LTD (1987) 1 NWLR (pt. 48) 105 per Oputa, JSC @ 131 paragraph H.
In the case of ENEKEBE VS. ENEKEBE (1964) ALL NLR 102 @ 107, Bairamian, JSC quoted with approval the apt observation of Lord Simon in CHARLES OSENTON VS. JOHNSTON (1942) AC 130 @ 138:
The appellate tribunal is not at liberty merely to substitute its own exercise of discretion for the discretion already exercised by the Judge. In other words, appellate authorities ought not to reverse order merely because they would themselves have exercised the original discretion, had it attached to them in a different way. But if the appellate tribunal reaches the clear conclusion that there has been a wrongful exercise of discretion in that no weight or sufficient weight, has been given to relevant consideration such as those urged before us by the appellant, then reversal of the order on appeal may be justified.
See also SOLANKE VS. AJIBOLA (1968) ALL NLR 46.
In the instant case, I am unable to appreciate let alone uphold, the Appellant’s argument urging upon us to interfere with and set aside the unassailable findings of the Court below, to the conclusive effect that the Appellant’s appeal ought to be dismissed for having been deemed abandoned. And I so hold.
In the circumstance, the second issue ought to be, and it is hereby resolved against the Appellant.
ISSUES 3, 4, & 5
As copiously alluded to above, the third issue raises the question of whether the Court below was right in law in refusing the Appellant’s prayers for amendment of the notice of appeal on the grounds that the Appellant had neither filed its brief nor applied for extension of time to file a brief, without considering the prayers in-question on their merits. The third issue is distilled from grounds 3 and 5 of the notice of appeal.
The fourth issue raises the question of whether the Court below was right in law in, suo-motu, dismissing the appeal pursuant to Order 18 Rule 18 of the Court of Appeal Rules, 2011, on a day fixed for the hearing of all pending motions, when there was no pending application from the Respondents for dismissal of the appeal. The issue is distilled from ground 6 of the notice of appeal.
Lastly, the fifth issue raises the question of whether the decision of the Court below dismissing the Appellant’s motion, dated 04/07/2013, was not a nullity for failure to consider prayers 3 and 4 of the application. The issue is distilled from ground 7 of the notice of appeal.
It is submitted by the Appellant that in dismissing the Appellant’s appeal, the Court below basically gave two reasons in coming to that decision:
1. That time within which to file appellant’s brief had expired; and
2. There was no prayer for extension of time within which to file the brief.
Allegedly, the Court below had relied on wrong and unrecognizable reasons in law in dismissing the Appellant’s application. See Order 6 Rule 4 Court of Appeal Rules; AKERE VS. GOVERNMENT OF OYO STATE (2012) NWLR (pt.134) 240 @267 paragraph G. et al.
Indeed, it’s trite that a refusal by a Court of trial or appellate Court, to hear and determine an interlocutory application pending the hearing and determination of the case or appeal, may result in denial of fair hearing of the Appellant contrary to Section 36 (1) of the 1999 Constitution (supra). This trite general doctrine has been reiterated in a plethora of decisions by this Court. Most particularly, in the case of OBOMHENSE VS. ERHAHON (1993) 7 NWLR (pt. 303) 22, where the Court below declined to rule on an oral application for adjournment and proceeded to dismiss the appeal, it was held by this Court that such conduct had amounted to a breach of fair hearing of the Appellant. Thus, justifying the setting aside of the judgment upon the breach. Likewise, in the case of EKE VS. OGBONDA (2006) LPELR-1075 (SC), this Court cited with approval OBOMHENSE VS. ERHAHON (supra) and ONYEKWULUJE VS. ANIMASHAUN (1996) 3 NWLR (pt. 439) 637 @ 644, and accordingly aptly held:
It is indeed a cardinal principle of administration of justice to let a party know the fate of his application whether properly or improperly brought before the Court.
Per Mohammed, JSC (as he then was) @ 23—24 paragraphs G-A.
In the instant case, it’s obvious on the face of the record of appeal (pages 386-388), that the judgment appealed against by the Appellant was delivered on 17/10/2000 on the undefended list. For reasons best known to the Appellant, the record of appeal was not transmitted to the Court until twelve years and ten months after the delivery of the judgment in-question, By virtue of the provisions of Order 18 Rule 2 of the Court of Appeal Rules, 2011, the Appellant had only 45 days from that date (09/5/2013) to file the brief thereof. That he did not do. Instead, the Appellant filed the application on 04/07/2013, thereby seeking to amend the notice of appeal.
As aptly alluded to by the Court below at page 38 of the Record:
Order 18 Rule 2 of the Rules of this Court enjoins every appellant to file his brief within 45 days after the receipt of the Record of appeal. This appellant/application is now in violation of Order 18 Rule 2 directive.
The unapologetic attitudinal disposition of the Appellant did not in any way help matters. As aptly alluded to by the Court below (page 387 of the Record):
In this application, there is no prayer for extension of time within which the Appellant would file his brief Mr. Oyetibo SAN when asked if there is such prayer for extension of time within which to file Appellant’s Brief says that it would be presumptuous to do so in view of the prayers for amendment of the Notice of Appeal. These are two different scenarios.
The sanction for violating the directive in Order 18 Rule 2 is in Order 18 Rule 10 of the same Rules. It is an Order dismissing the appeal for want of prosecution.
I cannot agree more with the foregoing unassailable findings of the Court below.
As copiously alluded to above, in the course of the hearing of the said motion (04/7/2013) Lamikanra, SAN of Respondent’s learned counsel vehemently objected to the application:
We urge dismissal. This Court lacks jurisdiction to entertain this application. The application is incompetent …
Appellants are not desirous of pursuing the appeal against the order refusing to set aside the judgment delivered 2000 on the undefended list procedure…
Replying on points of law Oyetibo, SAN posited that as the application to set aside the vexed judgment was a challenge to the judgment, the refusal gives right of appeal. He cited and relied upon OKAFOR VS. EZENWA (supra).
The learned silk further posited, that a judgment debtor is a party to garnishee proceedings by reason of service on him of the order Nisi pursuant to Section 83 (2) of the Sheriffs and Civil Process Act: TOTAL NIG. LTD VS. ELECTRICAL & MECH CO. (supra) @ 52. And that the power of this Court is as vested by Order 4 Rule 11 Rules of the Court. Thus, the Court below no longer has jurisdiction.
In view of the circumstances surrounding the motion (04/7/2013) under discussion vis-a-vis the eloquent respective submissions of the learned silk, I am unable to appreciate let alone uphold the Appellant’s argument, that the right to fair hearing thereof has been breached by the refusal of the Court below to grant prayers 3 and 4 for stay of execution of the judgment of the trial Court.
Undoubtedly, it’s so obvious on the face of the record of appeal, that the Appellant was solely the architect of the travail thereof. For reasons best known thereto, the Appellant has failed to live up to expectation and dictates of the law. It has not disposed itself to a reasonable degree of vigilance in the prosecution of the case thereof both at the Courts below and this Court. Yet, the biblical truism is that the fundamental condition precedent upon which the Almighty God graciously accorded man liberty is eternal VIGILANCE. Thus, the well-cherished equitable doctrine VIGILANTIBU ET NON DORMIENTIBUS JURA SERVENIAM. That’s to say, the laws aid the vigilant, not the indolent. Thus, in my view the legendary William Shakespeare could not have been more correct when he lyrically philosophized:
The enemy increases every day, we, at the height are ready to decline.
There is a tide in the affairs of men, which taken at the flood, leads on to fortune;
Omitted, all the voyage of their life is bound in shallows, and in miseries.
See JULIUS CAESER (properly pronounced KAISAR) ACT IV, SCENE 3; AROMIRE VS. AJOMAGBERIN (2011) LPELR- 3809 (CA), per Saulawa, JCA (as he then was).
In the circumstances, issues 3, 4 and 5 ought to be, and are hereby resolved against the Appellant.
Hence, having resolved all the five issues against the Appellant, the appeal resultantly fails, and it is hereby dismissed by me,
The ruling delivered by the Court of Appeal Port-Harcourt Judicial Division on January 27th, 2014, thereby dismissing the Appellant’s appeal No. CA/PH/295/2013, is hereby affirmed.
The Respondents shall be entitled to N5,000,000.00 as costs against the Appellant.
MARY UKAEGO PETER-ODILI, J.S.C.: I agree with the judgment just delivered by my learned brother, Ibrahim Mohammed Musa Saulawa, JSC and to underscore the support in the reasonings from which the decision emanated, I shall make some remarks.
This appeal is against the decision of the Court of Appeal, Port Harcourt Division, or Court below or lower Court, Coram: Ejembi Eko, JCA (as he then was), Modupe Fasanmi and Stephen J. Adah JJCA, delivered on 27th January, 2014 in which the Court dismissed the appeal against the decision of the High Court of Rivers State delivered on 18/3/2013 per J.N Akpughunwun J.
(II)
FACTS IN BRIEF
The facts of this case are, that sometime in year 2000, one Mr. H. T. Minakiri (now deceased) with the leave of the trial Court granted on 28th September, 2000 commenced this suit under the undefended list procedure via a writ of summons and all other accompanying processes dated 20th day of September, 2000 at the High Court of River State Nchia Judicial Division claiming several reliefs, prominent among which is the claim for N146,000,000 (One hundred and forty-six million naira only) being compensation for the death of one late Siyeofori Alamina, elder brother to the deceased original plaintiff which said death was caused by an accident resulting from speedboat of the Appellant called SLUDGE I driven by its driver named Mr. Mitchel Mac Pepple on 23rd September, 1991 which compensation was agreed on by both the Appellant as Defendant and respondents as Claimants but the Appellant failed to keep to the agreement. The order granting the said leave is at page 18 of the record, with the writ of summons and other originating processes are at pages 1-3.
That the said originating processes were served on the Appellant as Defendants at the trial Court on 5/10/2000 by the Chief Bailiff of the Court named Mene Dilosi who also deposed to an Affidavit of service to that effect, but it refused, failed and/or neglected to enter appearance or to defend the said suit.
However, and consequent upon the letter of demand for compensation dated 23rd September 1999, the respondent in response thereof admitted the accident and liability in its letter dated 2nd October, 1991 and 20th December, 1999. The appellant by its letter of 20/12/1999 acknowledge the debt, paid part payment thereof which revived the cause of actions
The trial Court per E.AGBARA J settled the issue of service of the Originating processes on the defendant/Appellant on 10/10/2000 and on, 17/10/2000 in his judgment. The finding on 17/10/2000 by the trial Court that appellant as defendant was duly served with the Originating processes before it entered judgment has not been appealed against and subsists.
After hearing the Respondents, the trial Court in its judgment delivered on 17th day of October, 2000 granted the claim for N146,000,000 and the interest. The said judgment under the undefended list was a judgment on the merit. The said judgment is at page 19 of the record, The Appellant did not appeal against that judgment of 17/10/2000 and the interest awarded thereat to date.
That few years after the said judgment, and prior to its execution, the original plaintiff passed on. Consequently, the current Respondents were substituted as Plaintiffs via order of Court made on 29th February, 2012 and were in addition granted leave by the trial Court to enforce the said judgment. The said Order of Court is at pages 20-21 of the record. The Plaintiffs also commenced garnishee proceedings to recover the fruits of the judgment dated 17/10/2000 in the absence of appeal or any challenge thereto on the 29th February 2012.
Between 17th October, 2000 when the trial Court entered the said judgment and 20th January, 2006 (that is about six (6) years) when the original plaintiff died, the appellant did not take any step to either challenge the said judgment on appeal or apply for same to be set aside. The Appellant’s motion to set aside the judgment filed on 25/10/2000 was abandoned and same was struck out on 9/9/2006 with N5,000 cost yet unpaid whereupon execution was levied on the Appellant on 15/2/2007 at her Abam base in Okrika.
About seven (7) years thereafter, in February 2007, the Respondent executed the judgment of 17/10/2000 and upon the execution of the judgment the Appellant re-filed the application to set aside the said judgment. The Appellant also filed several applications which were struck out by the trial Court for want of diligent prosecution and contempt of the Court before the final application on 1st March, 2012 (that is about 12 years after the said judgment was entered).
The Respondents’ committal proceedings filed against the Appellant for rescuing Chattels attached on ground in her premises during execution on 15/2/2007 and for falsifying Court processes were equally struck out on the death of the Original 1st Claimant at the instance of the Appellant who applied to the Court to strike out all processes filed on behalf of the original 1st claimant who died in 2006. Consequently, the Appellants substituted the original 1st claimant and upon substitution of the 1st claimant on 29/2/2012, the Respondents with leave of the High Court on the same 29/2/2012 commenced garnishee proceedings to harness the judgment of 17/10/2000 on the merit against which there was no appeal or any challenge whatsoever.
When Appellant became aware that the respondents commenced garnishee proceedings with leave of Court on 29/2/2012 to enforce the unchallenged judgment of 2000, it filed the motion on 1/3/2012 which dismissal gave rise to the appeal to the Court below and to this Honourable Court.
The said application filed on 1st March, 2012 was argued at the trial Court on 15th January, 2013. See pages 235-237 of the record. And in his well-considered ruling delivered on the 18th March, 2013, the Honourable Justice J.N. Akpughunum of the trial Court dismissed the said application for lacking in merit. The said ruling is at pages 238—247 of the record. The trial Court in its ruling on 18/3/2013 found as a fact that Appellant was guilty of inexplicable delay and did not satisfy the requirements of Order 30 Rule 7 High Court Rules 2010. Also that the judgment was a final one on the merit under the undefended list.
Dissatisfied with the said ruling, the appellant via its Notice of Appeal dated 19th March, 2013 lodged an appeal against same at the Court below. The record of appeal was compiled and transmitted on 9th May 2013, and thereafter, the appellant again went to sleep and abandoned the said appeal, prevented the Respondents from enforcing the said judgment and enjoy the fruit of their litigation of over 17 years. Meanwhile, on 15/4/2013 the trial Court granted the garnishee order nisi which was in the sum N7,558,204,000.00 and on 11/2/2014 made the same absolute against the 2nd and 3rd garnishees in the sum of N3,500,000.00 which had already been paid to the judgment creditors/Respondents.
The Appellant appealed against the said garnishee order absolute on the same 11/2/2014 to the Court of Appeal Port Harcourt Division which appeal is pending. The Appellant also filed another appeal against the same garnishee in the High Court to the Court below in Appeal No: CA/PH/284/2016 which is still pending in that Court. In addition to the aforesaid appeals, the appellant filed two pending motions for stay of execution of the garnishee order absolute made on 11/2/2014 and for stay of further proceedings of the garnishee proceedings in the High Court.
As at 27th January, 2014 when the appeal came up for hearing before the Court below, the Appellant has failed, refused and/or neglected without justifiable reasons to file its brief of argument. Consequently, after hearing the parties through their counsel on the consequences of not filing appellant’s brief of argument after the expiration of the time allowed by the rules of the Court below, and in the absence of any application for extension of time to do so, the Court below dismissed the said appeal for want of diligent prosecution. The records of proceedings and ruling of 27th January, 2014 are at 382—388 of the record.
Dissatisfied with the decision of the Court below, the Appellant via its notice of appeal dated 27th January, 2014 and filed on 28th January, 2014 appealed against the said decision. The said Notice of appeal is at pages 389—392 of the record.
On the 11/10/21 date of hearing, learned Senior Advocate, Tayo Oyetibo adopted the brief of argument filed on 25/3/2014 and in it donated five issues for determination, viz:-
1. WHETHER THE COURT OF APPEAL WAS RIGHT IN LAW IN DISMISSING THE APPELLANT’S APPEAL, SUO MOTU, FOR WANT OF PROSECUTION PURSUANT TO ORDER 18 RULE 10 OF THE COURT OF APPEAL RULES 2011 WHEN THE APPELLANT HAD BEFORE THE COURT AN APPLICATION FOR LEAVE TO AMEND NOTICE OF APPEAL BY FILING ADDITIONAL GROUNDS OF APPEAL AND THERE WAS NO APPLICATION FROM THE RESPONDENTS SEEKING THAT RELIEF. (GROUNDS 1 AND 4)
2. WHETHER HAVING REGARD TO SECTION 36 (1) OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA 1999 (AS AMENDED), THE COURT OF APPEAL WAS RIGHT IN LAW IN DISMISSING THE APPELLANT’S APPEAL PURSUANT TO ORDER 18 RULE 10 OF THE COURT OF APPEAL RUELS 2011, WITHOUT FIRST AFFORDING THE APPELLANT AN OPPORTUNITY OF BEING HEARD AND MAKING REPRESENTATIONS IN RESPECT THEREOF. (GROUND 2)
3. WHETHER THE COURT OF APPEAL WAS RIGHT IN LAW IN REFUSING THE APPELLANT’S PRAYERS FOR AMENDMENT OF ITS NOTICE OF APPEAL ON THE GROUNDS THAT THE APPELLANT HAS NOT FILED ITS BRIEF NOT APPLIED FOR EXTENSION OF TIME TO FILE THE BRIEF, WITHOUT CONSIDERING THE PRAYERS IN QUESTION ON THEIR MERITS. (GROUNDS 3 AND 5)
4. WHETHER THE COURT OF APPEAL WAS RIGHT IN LAW IN, SUO MOTU, DISMISSING THE APPELLANT’S APPEAL, PURSUANT TO ORDER 18 RULE 10 OF THE COURT OF APPEAL RULES 2011, ON A DAY FIXED FOR THE HEARING OF ALL PENDING MOTIONS, WHEN THERE WAS NO PENDING APPLICATION FROM THE RESPONDENTS FOR THE DISMISSAL OF THE APPEAL, (GROUND 6)
5. WHETHER THE DECISION OF THE COURT OF APPEAL DISMISSING THE APPELLANT’S MOTION DATED 4TH JULY, 2013 WAS NOT A NULLITY FOR FAILURE TO CONSIDER, AT ALL, PRAYERS 3 AND 4 OF THE APPLICATION, (GROUND 7).
For the Respondent, learned counsel, I.E. Oguaju-Dike Esq adopted the brief of argument filed on 24/5/17 and formulated two issues for determination, viz:-
1. Whether the Court of Appeal in the exercise of its constitutional, statutory and inherent powers, has the jurisdiction to dismiss an appeal that is not being diligently prosecuted by the Appellant.
2. Whether a party who was given an opportunity to be heard, but failed, refused and/or neglected to avail himself of that opportunity can be heard to complain of breach of fair hearing guarantee under the Constitution of the Federal Republic of Nigeria, 1999 (As Amended),
The learned counsel for the Appellant urges the Court to allow the appeal, set aside the decision of the Court of Appeal and make an order remitting the appeal to the Court below to be heard by a different panel of the Court for the following reasons:-
1. It was wrong for the Court of Appeal to have dismissed the Appellant’s appeal pursuant to Order 18 Rule 10 of the Court of Appeal Rules 2011 for failure to file Appellant’s Brief:
a. When there was no application for that purpose by the Respondents; and
b. There was pending before the Court an application for leave to amend the Notice of Appeal by filing additional grounds of appeal
c. On a day fixed for the hearing of all pending applications when there was no application by Respondents for the dismissal of the appeal; and
d. Without first affording the Appellant an opportunity of being heard on the point.
2. The Court of Appeal violated the Appellant’s right to a fair hearing in failing to consider and determine prayers 3 and 4 contained in the Appellant’s application.
3. Prayers 3 and 4 of the application are meritorious and ought to be granted.
He cited the following cases Ogbu v. Urum (1981) 4 SC 1 at 4; Madukolu v Nkemdilim (1962), ALL NLR 587; Ajuwa v. Shell Petroleum Development Company of Nigeria Ltd (2011) 18 NWLR (Pt. 1279) 797; General Electric Co V. Akande (2012) 16 NWLR (pt. 1327) 593; Obomhense v. Erhahon (1993) 7 NWLR (pt. 303) 221 Jolly Nyame V. FRN (2010) 7 NWLR (Pt. 1193) 344 at 420; Cookey v Fombo (2005) 15 NWLR (pt. 947) 182 at 200 etc.
Learned counsel for the Respondents submitted that the Court below has the inherent powers and jurisdiction to dismiss an appeal for want of diligent prosecution without waiting for an application from the Respondent to the appeal. He cited the cases Navy v. Labinjo (2012) 17 NWLR (pt. 1328) 56 at 78-79; Oseni v State (2012) 5 NWLR (pt. 1293) 351 at 383 -384; Inakoju v Adeleke (2007) 4 NWLR (pt. 1025) 423 at 621-622;
The first poser for answer is whether the Court of Appeal possesses the statutory and inherent powers and jurisdiction to dismiss an appeal that had been abandoned by the appellant for want of diligent prosecution. It needs no brainstorming to answer positively that the appellate Court has the powers being so endowed statutorily with the necessary stipulations of the relevant laws.
In this case at hand, the appellant at the Court of Appeal had filed an appeal on 19th day of March, 2013 against the ruling of the trial Court dated 18th March, 2013 refusing to set aside its judgment delivered on the 17th October, 2000. The appellant transmitted the record to the Court below on 9th May, 2013 and thereafter did nothing else. After a long period of time, the appellant filed a motion to amend its notice of appeal in spite of the fact that the time allowed by the Rules of Court below for it to file and serve its brief of argument had long expired. Of note is that it did not file an application for extension of time.
A recourse to the trajectory of what transpired up to this point would be helpful.
From the records, it is apparent that the Appellant at the Court below transmitted the record of appeal to the Court below on 9th May, 2013 and from the said date, the Appellant had 45 days by the provisions of Order 18 Rule 2 of the Rules of the Court below, which said 45 days expired on 24th June, 2013. Consequently, and by simple arithmetical calculations, as at the 27th January, 2014 when the Court below dismissed the appellant’s appeal for want of diligent prosecution due to its failure to file its Appellant’s brief and the Appellant was 216 days out of the statutory time allowed for it to file its brief of argument. There was no application before the lower Court for extension of time to file the said Appellant’s brief and this in the light of the Respondents being deprived of the fruit of the judgment in their favour by the trial Court on 17th October, 2000 a period of about 17 years to the salient point at the Court of Appeal, on 29th February 2016 especially with the garnishee proceedings then on-going at the trial Court.
The situation above showcased brings to mind the provisions of the Constitution in a presentation such as stated.
Finally, under this issue, by virtue of Section 6 (6) (b) of the Constitution of the Federal Republic of Nigeria, 1999 (As Amended), the Court below has inherent powers and jurisdiction to dismiss an appeal for want of diligent prosecution without necessarily waiting for an application from the Respondent to the appeal. The essence is to decongest the cause list, forestall and avoid the unjust denial of the Respondent’s right of enjoyment of the fruit of the judgment in his favour. In Nigerian Navy v. Labinjo (2012) 17 NWLR (pt. 1328) 56 at 78—79 the Supreme Court per Peter-Odili, JSC held as follows:-
“The situation on ground is one that has no room for beating about the bush or second-guessing the powers of the Court either the Court below, the trial Court or this one as to its inherent powers when it is clear to the Court that it is being taken for a ride or being used as a vehicle to frustrate the rights of the party under the guise of the seductive interest of justice Cliche as if the other side is not entitled to the same protection within that interest of justice. My humble view is that once the Court finds that such a ploy is in the offing, the Court is duty bound to resist and place its stamp of authority in place. In the case in hand clearly the appellants have shown a lack of care for sensibilities of the Court and thereby held in abeyance the interest of the respondent and so even if the through counsel did not urge the Court either by motion or orally, there is the option open to the Court to end the rigmarole and the Court of Appeal rightly did so.”
The appellant had contended that a breach of its constitutional right had occurred with the action of the Court below as there was a breach of Section 36 (1) CFRN.
But that is not correct as evidenced from the facts combed from the record of appeal. It is a fact before the Court below that in breach of Order 18 Rule 2 of the Court of Appeal Rules 2011, the Appellant failed to file its brief of argument within the statutory time allowed by the rules of Court, and also did not file an application for extension of the time to do so. The Court below found at page 388 of the record that the Appellant failed to file its brief 46 days after the transmission of record, which was well out of the time permitted by the rules of Court to file Appellant’s brief.
Again, the Court below also found that the Appellant did not file any application for extension of time to file brief of argument. Consequently, it is apparent from the above stated findings that the action and conduct of the Appellant at the Court below was in flagrant disregard and breach of the express mandatory provisions of Order 18 Rule 2 of the Court of Appeal Rules, 2011.
The pertinent question now is whether a party who is in breach of the Rules of Court as happened in this case under Order 18 Rule 2 of the Rules of the Court below can complain of breach of the right of fair hearing and the answer is certainly in the negative.
In the case of Nigeria Navy v Labinjo (Supra) at 84—85 paras F—A the Supreme Court per Adekeye, JSC while reiterating and reaffirming the aforesaid proposition of law held as follows:
“The rules of Court are meant to be obeyed. The purpose of the rules of Court is to regulate matters in Court and assist parties to any suit or appeal to present their cases for the purpose of a fair and quick trial or hearing. Where the rules are quickly complied with, there will be quick dispensation of justice. The appellants complained of lack of fair hearing to the way and manner the notice of appeal was dismissed. The right to fair hearing is a fundamental right guaranteed by the Constitution of the Federal Republic of Nigeria, 1999. A hearing cannot be said to be fair if any of the parties is refused or denied the opportunity to be heard, present his case or call witnesses. It does not however lie in the mouth of a party who disregarded the rules of Court or refused to attend Court having been served with hearing notice to talk of denial of justice and fair hearing.”
Also, in the case of Sosanya v Onadeko (2005) 8 NWLR (Pt. 926) 185 at 228 the Supreme Court per Niki Tobi JSC held further as follows:-
“Learned counsel for the appellant submitted that by striking out the grounds of appeal and related issues, the appellant was denied fair hearing. The principles of fair hearing can only apply in a case where a party has the right to be heard on a Court process. If a party has no right to be heard in respect of a Court process because the Court process does not comply with the rules of Court, the party cannot be heard to invoke the principles of fair hearing”
The Appellant had further alleged that the Court below raised the issue of Order 18 Rule 10 of the Rules suo motu and ruled on it without affording the Appellant the opportunity of being heard on the issues
The record contradicts that assertion and I shall show how right away,
From the record of appeal, and contrary to the insinuations and said submission of learned Senior Counsel to the Appellant, it is clear that the Appellant was given an ample opportunity to be heard on the issue of Order 18 Rule 10 of Rules of the Court below. At page 385 lines 9 of the record, the Court below asked the Appellant’s counsel thus: “Is there any prayer for extension within which to file the brief?” My Lords, the said question reproduced above offered the Appellant an ample opportunity to address the Court below on Order 18 Rule 10. But instead of availing itself of that great and golden opportunity, the Appellant elected on its own volition to ignore it and went ahead to answer the Court below thus: “No. it will be presumptions of us to do so in view of our prayer to amend notice of appeal.” Consequently, and immediately the Respondent’s Counsel urged the Court below to dismiss the said appeal for want of diligent prosecution. See line 12 of page 385 of the record.
In view of what transpired at the proceedings of the Court below on 27th January, 2014 as recounted above, clearly the Appellant was given an opportunity by the Court below to be heard but declined on its own volition to address the Court on such a fundamental issue only to make an about-turn to argue that it was not heard on the matter. That option to reopen an issue which he had allowed to die is not available to the Appellant. See Oseni v State (2012) 5 NWLR (Pt. 1293) 351 at 383-384. In the case of Inakoju v. Adeleke (2007) 4 NWLR (PT 1025) 423 at 621-622 the Supreme Court per Niki Tobi, JSC reiterated the said trite position of the law when the apex Court held as follows:
“Fair hearing is not a cut and dry principle which parties in the abstract always apply to their comfort and convenience. It is a principle which is based on the facts before the Court. Only the facts of the case can influence and determine the application or applicability of the principle. The principle of fair hearing is helpless or completely dead outside the facts of the case… The duty of the Court, trial and appellate, is to create the atmosphere or environment for fair hearing of a case but it is not the duty of the Court to make sure that a party takes advantage of the atmosphere or environment by involving himself in the fair hearing of the case. A party who refuses or fails to take advantage of the fair hearing process created by the Court cannot turn around to accuse the Court of denying him fair hearing. After all, there is the adage that the best the owner of the horse can do is to take it to the water; he cannot force it to drink the water. The horse has to do that itself and by the act of sipping. If the horse is unwilling to sip, that ends the matter. The horse will not blame anybody for death arising from the lack of water or hydrate”
Also, in the case of Odunlami v. Nigerian Navy (2013) 12 NWLR (Pt. 136) 20 at 70 F- G the apex Court Peter-Odili JSC, held as follows:
“The right to be heard is not a position that can be questioned however, it must be understood for what it is and that is really an opportunity to be heard. Therefore, where a party with the right to be heard or a legal representation on his behalf and he fails to utilize it, then the condition has been adequately met, that he had the open channel but chose not to utilize it. He cannot complain of an infringement on that basic fundamental natural law concept”.
In the recent case of Ukachukwu v PDP (2014) 17 NWLR (Pt. 1435) 134 at 197-198 the Supreme Court per Ogunbiyi JSC, while reiterating the said settled principle of law held as follows:
“Chapter 4 of the Constitution of the Federal Republic of Nigeria 1999 has provided for the various fundamental rights accruing to every person with Section 36 providing for the right to fair hearing, which is not without restraint but within bounds. It is not in other words at large but must be constrained within the scope of reason to the extent of availing a party the liberty to conduct his case, subject however to the consideration of all the situational circumstance that may or is likely to be an intervening factor. Therefore, a party, who is given an ample and unhindered opportunity to conduct his case but refuses or fails to take advantage therewith for any reason, not being a just cause, cannot be heard to complain of a denial to his right to fair hearing, parties to the litigation and also the Court are stakeholders, who must ensure and adhere to the rules governing the cardinal principles as enshrined in the constitution. The Rules are either statutorily provided for or had their origin from the case laws”.
Glaringly, there is no substance in the complaint of the Appellant on the denial of fair hearing and I place reliance on the cases of Inakoju v. Adeleke (supra); Odunlami v Nigeria Navy (supra); Ukachukwu v PDP (supra) and Mfa v Inongha (2014) 4 NWLR (Pt. 1397) 343 at 366.
Indeed, the dictum of Niki Tobi JSC certainly bears my position as proper.
In Adebayo v. A.G. Ogun State (2008) 7 NWLR (Pt. 1085) 201 at 221-222 paras G-C per Niki Tobi JSC, the Supreme Court while restating the said trite position of the law held as follows:
“Learned Counsel for the appellant roped in the fair hearing principle. I have seen in recent times that parties who have bad cases embrace and make use of the Constitutional provision of fair hearing to bamboozle the adverse party and the Court, with a view moving the Court away from the live issues in the litigation. They make so much weather and sing the familiar song that the constitutional provision is violated or contravened They do not stop there. They rake the defence in most inappropriate cases because they have nothing to canvass in their favour in the case. The fair hearing provision in the constitution is the machinery or locomotive of justice, not spare part to propel or invigorate the case of the user. It is not a casual principle of law available to a party to be picked up at will in a case and force the Court to apply it to his advantage. On the contrary, it is a formidable and fundamental constitutional provision available to a party who is really denied fair hearing because he was not heard or that he was not properly heard in the case. Let litigants who have nothing useful to advocate in favour of their cases, leave the fair hearing constitutional provision alone because it is not available to them just for the asking”.
On a final note, I posit that from the facts of this case as can be found from the record, it is apparent that the Appellant has not shown due diligence in the conduct of its case at the Court below. Equity they say, aids the vigilant and not the indolent, and that he who comes to equity, must come with clean hands as rightly observed and stated by the learned justices of the Court below at page 388 of the record. In the case of Nigerian Laboratory Corp V P. M B. Ltd (2012) 15 NWLR (Pt 1324) 505 at 525 the Supreme Court per Mohammed, JSC reiterated the aforesaid settled principle of law, when the apex Court held as follows:
“On issue two of the appellants’ issues, I have myself, carefully considered the depositions in the affidavit in support of the application before the Court below. There is nothing in the averments contained specifically in paragraphs 7—12 thereof, which would require the judicious exercise of discretion to grant the application as supported by these porous and unsubstantiated averments. I go along with the Court below that the tardiness in filing the appeal has not been explained away. He who comes to equity, must come with clean hands. And, delay, they say, defeats equity. There is nothing one can do to salvage a bad situation which seems to be compounded by the deliberate inaction of the appellants. The law helps the vigilant and not the one who sleeps on his right”.
It has not been difficult to see that the Appellant has no basis in this appeal which I too dismiss for lacking on merit.
Appeal is dismissed and I abide by the consequential orders made.
Appeal Dismissed.
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.: I have had a preview of the judgment of my learned brother, IBRAHIM MOHAMMED MUSA SAULAWA, JSC, just delivered. I agree with the reasoning and conclusion that the appeal is devoid of merit and deserves to be dismissed.
The law is quite well settled that all superior Courts of record have inherent powers to dismiss an action, in appropriate circumstances, for want of diligent prosecution.
In Echaka Cattle Ranch Ltd Vs Nigerian Agricultural & Cooperative Bank Ltd. (1998) 3 SC 1, (1998) LPELR-998 (SC) @ 27-28, it was held per Iguh, JSC, inter alia:
“… it cannot be doubted that there is inherent jurisdiction in all superior Courts of record to dismiss an action in appropriate cases for want of diligent prosecution. This jurisdiction is exercisable where, inter alia, there exists evidence of inordinate and inexcusable delay on the part of the plaintiff or his counsel in the prosecution of the action, and such delay is most likely to be prejudicial to the defendant or to the fair hearing of the action… However, because of the severity of the penalty of dismissing a plaintiff’s suit for want of diligent prosecution, in that the life of such an action is finally terminated, Courts exercising such inherent jurisdiction must always ensure that they are cautious and judicious in the exercise of this power. But there is definite jurisdiction in the superior Courts of record to dismiss a suit for want of diligent prosecution.”
(Emphasis mine)
It was held in State Vs Nnolim & Anor. (1994) 5 NWLR (Pt. 345) 394; (1994) LPELR-3222 (SC) @ 20 A- C, per Adio, JSC:
“The position is that the Court below is empowered to dismiss an appeal for want of prosecution where an appellant fails to file his brief within the prescribed time. Apart from the provisions made in the Court of Appeal (Amendment) Rules, 1984, the Court of Appeal has inherent powers to dismiss an appeal for want of prosecution where a party has failed to comply with certain procedural rules such as filing of brief of argument. See Ajayi Vs Omorogbe (1993) 6 NWLR (Pt.301) 502.”
(Underlining mine)
See also: S & D Construction Co. Ltd Vs Ayoku & Anor. (2011) LPELR-2965 (SC) @ 26; Nigerian Navy vs Labinjo (2012) LPELR-7868 (SC) @ 26-27.
In the instant case, judgment was entered against the Appellant on the Undefended List on 17th October 2000. The record of appeal was not transmitted to the lower Court until 9th May 2013. By virtue of Order 18 Rule 2 of the Court of Appeal Rules, the Appellant had 45 days from 9/5/2013 to file its brief of argument. One would have expected that given the inordinate delay in transmitting the record to the lower Court, the Appellant would have been exceptionally diligent in ensuring that its brief of argument was filed within the prescribed time. The time lapsed with no application by the Appellant to seek an extension of time to file its brief. Rather, on 4/7/2013 it sought leave to amend its notice of appeal. The fact is that so long as there existed a competent appeal before the Court, there was no reason for the Appellant not to have filed its brief within time. After all, it would have had the opportunity to amend its brief at a later stage, if circumstances warranted it.
Taking the peculiar facts and circumstances of the instant case into consideration, the lower Court was right to have seen through the subterfuge of the Appellant and to have held that the Appellant showed no seriousness in the prosecution of the appeal, but merely sought to frustrate the Respondents from reaping the fruit of their judgment obtained since 17th October 2000.
I am at one with my learned brother in the lead judgment that the dismissal of the appeal for want of diligent prosecution, was a proper exercise of the Court’s inherent powers having regard to the circumstances of the case.
For these and the more elaborate reasoning in the lead judgment, I hereby dismiss this appeal for being devoid of merit. I affirm the judgment of the lower Court and abide by the award of N5 Million costs against the Appellant and in favour of the Respondents.
Appeal dismissed.
MOHAMMED LAWAL GARBA, J.S.C.: I have read a draft of the lead judgment delivered by my Learned Brother, I. M. M. Saulawa, JSC, and agree, for all the reasons set out therein, that the appeal is devoid of merit.
It is dismissed by me too in terms of the lead judgment.
EMMANUEL AKOMAYE AGIM, J.S.C.: I had a preview of the judgment of my learned brother, Lord Justice, IBRAHIM MOHAMMED MUSA SAULAWA, JSC. I agree with the reasoning, conclusions, decisions, including the orders therein.
Appearances:
TAYO OYETIBO, SAN WITH HIM, V.N. IHUA AND P.C. MGBEOMA, ESQ. For Appellant(s)
I.E. OGUAJU-DIKE, ESQ. For Respondent(s)