DAVID JOHN CHIA & ANOR. V. PHILIP BEM GBE & ORS.
(2010)LCN/3929(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 6th day of July, 2010
CA/J/EP/HA/61/08
RATIO
INTERPRETATION OF STATUTE: INTERPRETATION OF ORDER 17 RULE 10 OF THE COURT OF APPEAL RULES AS TO THE EFFECT OF THE FAILURE OF AN APPELLANT TO FILE HIS BRIEF WITHIN THE PRESCRIBED TIME
Order 17 Rule 10 of the Court of Appeal Rules which provides as follows: “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. Where an appellant fails to file a reply brief within the time specified in Rule 5. He shall be deemed to have conceded all the new points or issues arising from the respondent’s brief. Also the Practice Direction No 2 of 2007 provides that an Appellant must file his Appellant’s brief within 10 days after service on him of the Record of Proceedings. The Record of Proceedings was served on the Appellant on 31st January, 2008 and had up till 10th February, 2008 to file his brief which he filed on 10th April, 2008 without the leave of Court. An appeal is incompetent if the Appellant’s brief is filed out of time and therefore ought to be struck out. Olusesi Vs. Oyelusi (1986) 3 NWLR Pt. 31 Pg 634. PER UZO NDUKWE-ANYANWU, J.C.A.
LEAVE OF COURT: EFFECT OF A BRIEF BASED ON GROUNDS OF WHICH LEAVE OF COURT HAS NOT BEEN OBTAINED
A brief or part thereof based on grounds of which leave has not been obtained is incompetent and completely valueless. Idika Vs. Erisi (1988) 2 NWLR Pt. 78 Pg 563. Ogbechie Vs. Onochie (1988) NWLR Pt. 70 Pg 370. Western Steel Works Ltd Vs. Iron and Steel Workers Union of Nig. (1987) 1 NWLR Pt. 49 Pg 284, Government of Gongola State Vs. Tukur (No. 2) 1987 2 NWLR Pt. 56 Pg 308, Emeghara Vs. Health Management Board (Imo State) (1987) 2 NWLR Pt. 56 Pg 330. PER UZO NDUKWE-ANYANWU, J.C.A.
JUSTICES:
BODE RHODES-VIVOUR Justice of The Court of Appeal of Nigeria
UZO NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria
ABUBAKAR DATTI YAHAYA Justice of The Court of Appeal of Nigeria
Between
1. DAVID JOHN CHIA
2. PEOPLES DEMOCRATIC PARTY – Appellant(s)
AND
1. PHILIP BEM GBE
2. ALL NIGERIA PEOPLES PARTY & 93 ORS. – Respondent(s)
UZO NDUKWE-ANYANWU, J.C.A.(Delivering the Leading Judgment): This is a motion on notice brought pursuant to Order 17 Rule 10 of the Court of Appeal Rules, 2007 and under the inherent jurisdiction of this Court praying for the following orders:
(1) AN ORDER striking out the Amended Notice of Appeal filed by the Appellants on 10th April, 2008.
(2) AN ORDER striking out the Appellants’ Brief of Argument filed on 10th April, 2008.
(3) AN ORDER dismissing Appeal No. CA/J/EP/HA/61/08 for want of diligent prosecution.
(4) Such further orders the Honourable Court may deem fit to make in the circumstances of the case.
The grounds upon which this application is brought are as follows:
(1) The Appellants were served with the Record of Proceedings in respect of this appeal on the 31st day of January, 2008.
(2) By the provision of the Court of Appeal (Practice Direction No. 2 of 2007) Rules, the Appellants are expected to file their Brief of Argument within ten days of being served with the Record of Proceedings.
(3) The ten days period within which the Appellants are expected to file their Brief of Argument has lapsed and the Appellants are yet to file their brief.
(4) The Appellants without leave of Court filed an Amended Notice of Appeal on 10th April, 2008.
(5) The Appellants also filed a Brief of Argument on 10th April, 2008 without leave of court.
(6) Leave was granted the appellants on the 8th day of July, 2009 to file Additional Grounds of Appeal within fourteen days.
(7) The fourteen days granted the Appellants on the 8th day of July, 2009 lapsed on 22nd July, 2009 and the Appellants are, yet to file their additional grounds of appeal.
(8) The Appellants are not desirous of diligently prosecuting this appeal”
Also filed are 3 Exhibits A- C.
Exhibit A is the Amended Notice of Appeal filed on 10th April, 2008.
Exhibit B – Appellants Brief of Argument filed on 10th April, 2008.
Exhibit C – Ruling of this Court delivered on 8th July, 2009.
In support is a 22 paragraphs affidavit sworn to by Philip Bern Gbe the 1st Respondent/Applicant. Also filed is a 5 paragraphs further affidavit on 2nd December, 2009 and is a written address by the Applicant in support of its motion on notice.
The Applicants counsel in his address formulated one issue for determination as follows: “…having regard to the facts and circumstances of this appeal (Appeal No. CA/J/EP/HA/61/08) this appeal ought to be dismissed for want of diligent prosecution.”
The Applicants’ learned counsel S.T. Ahile submitted that the Appellants/Respondents have not complied with the orders of this court in Exhibit C attached to the motion paper. The Appellants/Respondents filed on 10th April, 2008 an Amended Notice of Appeal Exhibit A. There was no deeming order granted the Appellants/Respondents to make the Amended Notice and Grounds of Appeal competent. Counsel submitted further that the Amended Notice of Appeal filed on 10th April, 2008 without leave of Court is an incompetent process. Counsel urged the Court to strike out this Amended Notice of Appeal.
Counsel submitted that the Appeal No. CA/J/EP/HA/61/08 ought to be dismissed for want of diligent prosecution pursuant to Order 17 Rule 10 of the Court of Appeal Rules which provides as follows:
“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. Where an appellant fails to file a reply brief within the time specified in Rule 5. He shall be deemed to have conceded all the new points or issues arising from the respondent’s brief.
Also the Practice Direction No 2 of 2007 provides that an Appellant must file his Appellant’s brief within 10 days after service on him of the Record of Proceedings. The Record of Proceedings was served on the Appellant on 31st January, 2008 and had up till 10th February, 2008 to file his brief which he filed on 10th April, 2008 without the leave of Court. An appeal is incompetent if the Appellant’s brief is filed out of time and therefore ought to be struck out. Olusesi Vs. Oyelusi (1986) 3 NWLR Pt. 31 Pg 634.
The Appellant’s brief filed on 10th April, 2008 Exhibit B includes argument based on the incompetent-Amended Notice of Appeal Exhibit A filed without leave on 10th April, 2008. Counsel submitted further that it is wrong to file a brief of argument based on grounds of appeal of which leave to file and argue has not been obtained. A brief or part thereof based on grounds of which leave has not been obtained is incompetent and completely valueless. Idika Vs. Erisi (1988) 2 NWLR Pt. 78 Pg 563. Ogbechie Vs. Onochie (1988) NWLR Pt. 70 Pg 370. Western Steel Works Ltd Vs. Iron and Steel Workers Union of Nig. (1987) 1 NWLR Pt. 49 Pg 284, Government of Gongola State Vs. Tukur (No. 2) 1987 2 NWLR Pt. 56 Pg 308, Emeghara Vs. Health Management Board (Imo State) (1987) 2 NWLR Pt. 56 Pg 330.
Counsel urged the Court to grant his prayers.
In reply, the 1st and 2nd Appellants/Respondents filed a counter affidavit of 16 paragraphs deposed to by Hon. David John Chia on the 30th November, 2009. Also filed is the 1st and 2nd Appellants/Respondents … address in opposition to motion filed on 24th November, 2009. R. B. Ayilla counsel for the 1st and 2nd Appellants/Respondents adopted the Applicant’s sole issue for determination and submitted thus:
“that the amended notice of appeal Exhibit ‘A’ and the brief of argument attached to their motion were filed as separate processes on the 10th April, 2009 with their motion filed on 10th April, 2009.”
Counsel submitted that these two processes were regularized by the grant of orders of this Court Exhibit C to wit which it held inter alia.
“This application has merit as it has satisfied the requirements of the Rules and deserve that the Court invokes its discretionary powers to grant them as prayed.”
The above submitted by learned counsel pre-supposes that the deeming order for the Amended Notice of Appeal was also granted.
Further that when their prayers were granted on the merit that the Amended Notice of Appeal and Brief of Argument Exhibits A and B become regularized. Counsel urged the Court to hold that the amended notice of appeal and the brief of argument Exhibits A and B are valid and potent. The 1st and 2nd Respondents refused to file similar or same process in this Court because they were properly filed, clean copies filed and served remain valid after regularization on Exhibit C. Counsel urged the Court to hold that this application lacks merit and ought to be dismissed.
This appeal is against the judgment and Rulings of the Election Tribunal sitting in Benue. The 1st and 2nd Appellants/Respondents were out of time filing their brief of argument. To remedy this 1st and 2nd Appellants filed two incompetent applications.
(1) An application filed on 11th March, 2008 was struck out on 21st October, 2008.
(2) An application filed on 23rd October, 2008 was withdrawn and struck out on 3rd March, 2009.
Finally on the 10th March, 2009, the 1st and 2nd Appellants filed this application and moved same.
A considered Ruling was delivered with the following orders:
These are the orders granted the 1st and 2nd Appellants in that motion. However the 1st and 2nd Appellants submitted in the argument that the Court held:
“this application has merit as it has satisfied the requirements of the Rules and deserve that the court invokes its discretionary powers to grant them as prayed,”
The 1st and 2nd Appellants/Respondents’ counsel argued that his prayer (IV) were also granted. For clarity I will replicate their prayer (IV).
“An order granting the Appellants/Applicants leave to file additional grounds of appeal as in Exhibit ‘C” and deeming same as haven been properly filed appropriate fees paid and served.”
It should be clarified here that, the “Additional Grounds of Appeal” Exhibit C was only an exhibit in the motion filed on 10th March, 2009. This process was never filed separately and therefore remains as an exhibit and cannot be deemed as properly filed and served. Appropriate fees to be paid in this circumstance would have been for Exhibit ‘C as the Amended Notice of Appeal and the Appellants’ Brief of Argument filed on 10th April, 2008 which was filed as separate processes but there was no prayer to deem both processes as properly filed and served. Having not prayed for these orders, the Court did not grant them. However, the court granted the 1st and 2nd Appellants leave to file and extended time to 14 days for the 1st and 2nd Appellants/Respondents to appeal against the two Rulings of the Tribunal.
The 1st and 2nd Appellants never asked for a deeming order in respect of the supposed Amended Notice of Appeal nor the supposed Appellants’ brief of argument.
The Court is no Father Christmas and never grants orders not prayed for. For avoidance of doubt I will recap what the 1st and 2nd Appellants prayed for in the motion filed on 10th March, 2009:
(i) AN ORDER OF EXTENSION OF TIME; within which Applicants will apply for leave to appeal against the ruling of the National Assembly/Governorship and Legislative Houses Election Tribunal sitting in Makurdi dated 25th September, 2007 in consolidated Motion Nos. M148/07 and M161/07.
(ii) AN ORDER GRANTING LEAVE TO THE APPLICANTS TO APPEAL against the ruling of the National Assembly/Governorship and Legislative Houses Election Tribunal sitting in Makurdi dated 25th September, 2007 in consolidated Motion Nos. M148/07 and M161/07.
(iii) AN ORDER EXTENDING TIME within which the Appellants/Applicants may appeal against the ruling of the National Assembly/Governorship and Legislative Houses Election Tribunal sitting in Makurdi dated 25th September, 2007 in consolidated Motion Nos. M148/07 and M161/07 as contained in Exhibit ‘B’
(iv) AN ORDER GRANTING THE APPELLANTS/APPLICANTS LEAVE to file additional grounds of appeal as in Exhibit ‘C and deeming same as haven been properly filed, appropriate fees paid and served.
(v) ANY ORDER OR ORDERS as the court may deem expedient to make in the circumstance of the case.
AND THEREAFTER
(vi) AN ORDER GRANTING THE APPELLANTS/APPLICANTS LEAVE to amend their original Notice of Appeal filed on 15th December, 2007 to:
(a) Withdraw ground 1 (one) of the Original Notice of Appeal and amend ground 3 thereof.
(b) Include the grounds of appeal contained in EXHIBIT ‘B’ and the additional grounds of appeal (Exhibit C)
(c) Renumber the grounds of appeal as in Exhibit ‘D’
TAKE NOTICE that the grounds upon which this application is brought are as follows: –
(a) The Applicants require the leave of this court to apply for extension of time to appeal against the interlocutory decision of the Lower Tribunal given on 25th September, 2007.
(b) The Applicants require the leave of this court to appeal against the interlocutory decision of the Lower Tribunal given on 25th September, 2007.
(c) The Applicants require an extension of time to appeal against the interlocutory decision of the Lower Tribunal given on 25th September, 2007 as the original Notice of Appeal did not completely reflect the complaints of the Appellants against the judgment of the tribunal.
(d) The Applicants require leave of the Court of Appeal to file additional grounds of appeal as only 3 grounds of appeal were filed at the time of judgment before the compilation and receipt of the records of the tribunal.
(e) The Applicants require leave of the Honourable Court to amend the Notice of Appeal.
FURTHER TAKE NOTICE that the following documents are exhibited to this application.
(a) Original Notice of Appeal filed on 15/12/2007 (Exhibit ‘A’).
(b) Proposed Notice of Appeal against the ruling of the Lower Tribunal given on 25/07/2007 (Exhibit ‘B’).
(c) Proposed Additional Grounds of Appeal (Exhibit ‘C’).
(d) Proposed Amended Notice of Appeal (Exhibit ‘D’).
(e) Ruling of the National Assembly/Governorship and Legislative Houses Election Tribunal sitting in Makurdi dated 25th September, 2007 in consolidated Motion Nos. M148/07 and M161/07 is attached as Exhibit ‘E’.
These are the prayers.
The 1st and 2nd Appellants never prayed for their supposed Amended Notice of Appeal to be deemed as properly filed. So also their Appellants’ Brief filed on 10th April, 2009 was not deemed properly filed as it was not prayed for.
The supposed Amended Notice of Appeal and the Appellants’ Brief are not properly before this court. The 1st and 2nd Appellants are out of time in all their processes. As it is there is no competent Amended Notice of Appeal nor Appellants Brief before the court.
The judgment appealed against was delivered on 1st December, 2007 and the original notice and grounds of appeal was filed on 18 December, 2007. The consolidated Rulings were delivered on 25th September, 2007 No. M148/07 and M161/07.
The 1st and 2nd Appellants brief filed on 10th April, 2008 is out of time having been served the Record of Proceedings on the 7th March, 2008 outside the 10 days envisaged by the rules of this Court.
The 1st and 2nd Appellants have not shown any cogent reason for not filling their processes within time or taken adequate measures to remedy their ills. There is no valid amended notice of appeal nor as it were on Appellants Brief of Argument.
In the circumstances I find it difficult to aid the 1st and 2nd Appellants. The Respondents/Applicants application filed on 24th November, 2009 is therefore meritorious and same is granted as prayed.
(1) The Court hereby strikes out the Amended Notice of Appeal filed out of time on the 10th April, 2008.
(2) The Court also strikes out the Appellants brief filed out of time on 10th April, 2008.
(3) Appeal No CA/J/EP/HA/61/08 is hereby dismissed for want of diligent prosecution.
I make no orders as to costs.
BODE RHODES-VIVOUR, J.C.A.: I agree with my learned brother Ndukwe-Anyanwu JCA. That the judgment of the Election Tribunal is affirmed in the absence of an Amended Notice of Appeal, and appellants brief.
ABUBAKAR DATTI YAHAYA, J.C.A.: I agree.
Appearances
R-B.Ayilla Esq., For Appellant
AND
S.T. Ahille Esq.,
Stephen Ibyem Esq., For Respondent
