DEKIT CONSTRUCTION LIMITED & ORS v. ASSET MANAGEMENT CORPORATION OF NIGERIA
(2018)LCN/12377(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 21st day of February, 2018
CA/IB/M393/2017(R)
RATIO
APPEAL: FAILURE OF THE APPELLATE TO FILE HIS BRIEF OF ARGUMENT
“The law remains the same that an appeal dismissed by this Court as a result of the failure of the Appellant to file his brief of Argument within time or from the 2016 Rules to compile records is a final judgment and cannot be revisited by the same Court. In ASALU & 2 ORS V. FATAI SULE DAKAN (2006) ALL FWLR (PT 325) 90 @ 101 B-H the Apex Court held that:
“An appeal which is dismissed on the grounds that the Appellant failed to file his brief of argument within the time limited for so doing is final and the appeal so dismissed cannot be revived. The Court which dismissed it becomes functus officio on that matter. In such a case, the Court of Appeal, has no inherent jurisdiction to set aside an order of dismissal made pursuant to Order 6 Rule 10 of the Court of Appeal Rules…”
@ 102 D-E. Sympathy cannot override the clear provisions of the Rules of Court and it is in the interest of parties and their counsel to endeavour always to comply with the prescribed times set out in the rules for the doing of any act or taking any step. PER CHINWE EUGENIA IYIZOBA, J.C.A.
JURISDICTION: WHERE AN APPEAL IS DISMISSED
“There is no provision under the Court of Appeal (Fast Track) Practice Directions which gives power to this Court to relist an appeal dismissed for failure to file Brief. In the case of Governor of Zamfara State & Ors v. Gyalange & Ors (2012) LPELR 9715 (SC) the Supreme Court cited and relied on the case of Barraclough v. Brown (1897) AC 622 to hold that in the absence of any provision, the Court (Court of Appeal) had neither statutory, nor inherent jurisdiction to relist any appeal dismissed pursuant to the Rules of the Court. That a dismissal under the circumstance is final and thus, the Court has no statutory or inherent power to relist or re-enter the appeal dismissed. See also Dakan & Ors v. Asalu & 2 Ors (2015) 13 NWLR (Pt.1475) 47 at 66 and Olowu & 3 Ors v. Abolore & Anor (1993) 5 NWLR (pt. 293) 255 at 270-272. For that reason, the authorities cited and relied on by Learned Senior Advocate for the Applicant are not helpful to his cause.” HARUNA SIMON TSAMMANI, J.C.A.
JUSTICES
CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria
HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria
NONYEREM OKORONKWO Justice of The Court of Appeal of Nigeria
Between
1. DEKIT CONSTRUCTION LIMITED
2. MRS. DEBORAH BOSEDE OLAGUNJU
3. MR. TOLU OLAGUNJU Appellant(s)
AND
ASSET MANAGEMENT CORPORATION OF NIGERIA Respondent(s)
CHINWE EUGENIA IYIZOBA, J.C.A. (Delivering the Lead Ruling):
This is an application by motion on notice brought by the Appellants/Applicants praying for the following orders:
“1. Setting aside the Ruling of this Honourable Court delivered on 29th September, 2017 dismissing Appeal No. CA/IB/255/17 between Dekit Constructions Limited & 2 Ors vs. Asset Management Corporation of Nigeria.
2. Restoring to the Cause List the Notice of Appeal filed on 5th June, 2017 against the Judgment of the Federal High Court Coram Honourable Justice N. Ayo-Emmanuel in Suit No. FHC/IB/CS/58/2016 between Asset Management Corporation of Nigeria Vs. Dekit Constructions Limited & 2 Ors.
3. Extending the time within which to properly file the Appellants’ Brief of Argument.
The Grounds for the application as set out on the motion paper are as follows:
“1. The Lower Court had delivered Judgment against the Appellants on 9th May 2017.
2. In a bid to diligently prosecute the Appeal against the Judgment, the Appellants promptly filed a Notice of Appeal on 5th June, 2017 and transmitted the Record of Appeal to this Honourable Court on 6th July, 2017.
3. This Honourable Court on 29th September, 2017 dismissed the Appellants’ Appeal for lack of diligent prosecution because of default in filing Appellants’ brief within time.
4. The Appellants’ Brief of Argument was actually settled within time by Mr. J. A. Badejo, S.A.N., lead Counsel to the Appellants.
5. Mr. Ezekiel Atat, a Litigation Clerk, to whom the process was handed to file on 18th July, 2017 merely initialled and assessed same but failed to pay and complete the process.
6. The said Mr. Ezekiel Atat later fell ill and eventually forgot to complete the filing of the process before the Appeal was dismissed for lack of diligent prosecution.
7. The fact that Mr. Ezekiel Atat had not filed the Appellants Brief was not known to the Appellants? Counsel.
8. Parties had in the interim engaged in settlement process from July until early in August, 2017 before Mr. J. A. Badejo, S.A.N., Lead Counsel and Mr. F. D. Oloruntoba, Junior Counsel for the Appellants proceeded on Annual Vacation.
9. Failure to file the Appellants’ Brief is not the fault of the Appellants but is due to a mix up in the firm of the Counsel engaged in the matter.
10. The Appellants’ Counsel hitherto prosecuted the Appeal diligently after they were briefed by promptly filing a Notice of Appeal and ensuring that the record of Appeal is remitted without delay.
11. The delay is not a ploy to deny the Respondent the fruit of its Judgment.
12. The Respondent will not be prejudiced if this application is granted as it will accord the parties fair hearing to have the dispute between them determined on the merits with all the materials submitted before this Honourable Court.
13. The Judgment appealed against is final and there is good and sufficient cause to warrant the exercise of discretion to grant this application and restore the Appeal.
14. None of the parties will be prejudiced if this Appeal is granted.
15. In the circumstances, the interest of justice will be better served to grant the application.
The application is supported by (1) the 1st Affidavit of 26 Paragraphs sworn to by FRANCIS DARE OLORUNTOBA (2) the 2nd Affidavit of 11 Paragraphs sworn to by EZEKIEL ATAT, with one Exhibit, a copy of the Appellants’ Brief of Argument prepared for filing. (3) a 13 Paragraph Further and Better Affidavit deposed to by FRANCIS DARE OLORUNTOBA on 20th October, 2017 with copies of several documents attached as Exhibits 2, 3, 4, 5 and 6. (4) a 9 Paragraph 2nd Further and Better Affidavit with the Certified True Copy of the Ruling of this Honourable Court attached as Exhibit 7.
Learned Counsel for the Respondent filed a Notice of Preliminary objection dated 17th October, 2017. The objection challenged the Jurisdiction of this Court to restore the Appeal dismissed for want of diligent prosecution. The contention of the Respondent is that the Ruling dismissing the appeal is a final judgment; that the Court is functus officio; and that the only option open to the Applicants is an appeal to the Supreme Court.
The parties were ordered to file written addresses.
The Applicants’ written address is dated 22/11/17 and filed same day. The Respondent’s written address in support of his notice of preliminary objection is dated 4/12/17 and filed 5/12/17. The Applicants’ response to it is dated 12/12/17.
The Applicant in his written address distilled two issues as arising for determination from their application and the Respondent’s Preliminary Objection:
(1) Whether this Honourable Court lacks jurisdiction to set aside its decision to dismiss an appeal for failure to file the Appellants’ brief of argument within time as stipulated by the Court of Appeal (Fast Track) Practice Directions, 2014.
(2) Whether the applicants have disclosed sufficient reasons and shown good cause entitling them to an order setting aside the Ruling dated 29th September, 2017 and granting the prayers sought in the motion paper.
The Respondent in its written address also distilled two issues identical to those of the Applicant.
APPLICANTS’ ARGUMENTS:
J. A. Badejo S.A.N. Learned senior counsel for the Applicants in arguing the motion referred to Rule 8 (4) of the FAST TRACK RULES and submitted that the use of the word “may” suggests that the Court has discretion as to whether or not to dismiss the appeal for failure to file the brief of argument within time. He argued that if there are good reasons given, the Court may not dismiss the Appeal. Learned silk submitted that where the appeal is dismissed, there appears to be no specific provision allowing the Court to reverse the order of dismissal.
He submitted that Rule 2 (i) and (ii) of the FAST TRACK Directions permit the Court to resort to the extant Court of Appeal Rules where there is a lacuna. Learned silk then quoted Order 6 Rule 12 of the Court of Appeal Rules 2016 which provides that “an application to set aside any Judgment or ruling, shall not be brought unless it is filed within fourteen days from the date of delivery of such Judgment or ruling or such longer period as the Court may allow for good cause” and submitted that under that provision it is now possible to set aside the decision of the Court dismissing an appeal for lack of diligent prosecution. Senior counsel submitted that Order 6 Rule 12 has put to rest all previous judicial authorities which held that an appeal dismissed for lack of diligent prosecution cannot be relisted. He submitted that the Court now has power and discretion to set aside any Judgment or Ruling whatsoever in deserving cases.
Learned silk relying on several authorities submitted that the Fast Track Practice Directions are not superior to, neither can they operate independently of the Court of Appeal Rules 2016; or be interpreted in such a way as to contradict any Constitutional provision. He urged us to overrule the preliminary objection of the Respondents which appear to have overlooked the Provisions of the Court of Appeal Rules, 2016 and the Constitutional and inherent powers of this Court to entertain all applications before it on the merit and in the interest of Justice.
Learned senior counsel submitted that in the event this Court rejects his interpretation of the relevant Rules of Court, that this Court is vested with powers and has discretion to grant the Prayers sought provided the Court is satisfied that sufficient reasons have been adduced which will enable the Court to exercise its discretion judicially and judiciously in favour of the Applicant. Learned counsel re-examined the reasons for failure to file the brief within time as set out in the various affidavits and submitted that the liberal spirit of our Courts and the need to do substantial Justice and to avoid punishing litigants for mistakes of counsel justify the exercise of the Court’s discretion to grant the Prayers sought.
Learned senior counsel argued that even under the old regime of Rules which do not contain a similar provision like Order 6 Rules 12 of the Court of Appeal Rules, 2016, there appeared to be two schools of thought in Judicial pronouncements. He argued that the first school of thought appeared to have held that once an Appeal is dismissed for failure to file Appellants’ Brief, then the situation becomes irredeemable as the Appellants will be precluded from filing any application to restore the Appeal to the list while the second school of thought which he claimed now appear to have been incorporated under Order 6 Rule 12 is that the Court will set aside an order dismissing an Appeal upon failure to file Brief of Argument if there are sufficient reasons to do so. Learned counsel cited the cases of GODWIN CHIME & ANOR VS. NELSON UDE & 2 ORS. (1996) 7 NWLR (PT 461) 379; FIRST BANK OF NIGERIA PLC VS. T.S.A. INDUSTRIES LTD (2010) 15 NWLR (PT 1216) 247; THE HONDA PLACE LTD VS. GLOBE MOTORS HOLDINGS NIGERIA LIMITED SC 161/2001 and submitted that the general principles discernible from the cases even before the Court of Appeal Rules, 2016 are as follows:
(a) Generally the Court of Appeal will not set aside the dismissal of an Appeal based on prolonged failure to file the Appellant’s Brief of Argument within time.
(b) Where however, sufficient reasons are given for the failure to file the Appellant?s Brief of Argument, the Court of Appeal is empowered to set aside the dismissal and grant the Appellant extension of time to file the Brief.
Learned silk urged us in view of the above and Order 6 Rule 12 of the Court of Appeal Rules 2016 and having given good and sufficient reasons for failure to file the Appellants’ brief within time, to exercise our discretion in favour of the Applicants; resolve issues 1 and 2 in their favour and to grant the application sought.
RESPONDENT’S ARGUMENTS ON PRELIMINARY OBJECTION:
Adeniyi Uthman Esq learned counsel for the Respondent in his written address relying on the cases of ERONINI V. IHEUKO (1989) 2 NWLR (PT.101) 46 @ 50;and FADARE V. ODUYALE (1995) 5 NWLR (PT. 395) 375 submitted that by the provision of Order 8 (4) of the Fast track Rules 2014 and Order 19 Rule 10 of the Court of Appeal Rules 2016, the consequence of failure to file brief within time is dismissal of the appeal. He argued that the dismissal under Rule 8 (4) and Order 19 Rule 10 of the Court of Appeal Rules, 2016 has finally determined this Appeal and that the Court became functus officio. The implication is that this Court cannot reverse the decision and cannot entertain any application in respect of same. Counsel submitted that Order 6 Rule 12 of the Court of Appeal Rules, 2016 is not applicable in the circumstance of this case as the ruling delivered on the 29th September, 2017 was a final Judgment of the Court.
Learned counsel submitted that although the issue was raised by the Court suo motu, the Court gave the parties opportunity to address it before ruling was delivered and that learned Counsel to the Appellants did not even deem it necessary to apply for enlargement of time as provided under Order 6 Rule 9 (1) of the Court of Appeal Rules, 2016. Counsel submitted that it has been held in a plethora of cases that an Appeal dismissed under Order 19 Rule 10 of the Court of Appeal Rules (2016) for want of diligent prosecution cannot be relisted by the Court. He cited ZAMFARA STATE VS. GYALANG AND ORS (2012) 9 SCM PG 219.
Counsel submitted that there is no provision in our law, which allows this Court to relist or restore an appeal dismissed for failure to file appellants brief of argument. He opined that once an appeal is dismissed under Section 8 (4) of Court of Appeal (Fast Track) Practice Directions 2014 and Order 19 Rule 10 of the Court of Appeal Rules 2016, it will amount to sitting on appeal against its decision for the Court to make an order relisting the dismissed appeal. Counsel submitted that the Court is functus officio and lacks the jurisdiction to entertain the Application. The only remedy available to an aggrieved appellant is to appeal to the Supreme Court. He opined that Order 6 Rule 12 of the Court of Appeal Rules, 2016 is a general rule that is inapplicable in the circumstances of this case.
On issue 2, whether the reasons disclosed by the Appellants/Applicants are sufficient for the grant of an order setting aside the ruling delivered by the Court, learned counsel submitted that even assuming that this Court is inclined to entertain the application of the Appellants, that the Appellants failed woefully to disclose any tangible reason to justify the exercise of the Court’s discretion in their favour. He submitted that the Appellants were really not interested in prosecuting the appeal but were interested in using all possible means to prevent the Respondents/Judgment Creditors from enjoying the fruit of the Judgment delivered in their favour. Counsel urged us to dismiss the application of the Appellants\Applicants.
RESOLUTION:
Paragraphs 8 (3) and (4) of the Court of Appeal (FAST TRACK) Directions 2014 provide as follows:
“(3) The appellant must file and serve its brief within 14 days from the transmission of the record of appeal.
(4) On default of the filing of the Appellants brief within time, the Court may dismiss the appeal for want of diligent prosecution.”
There are similar provisions in the Court of Appeal Rules 2016. Order 19 Rules 10 (1) and (2) provide:
“(1) Where an Appellant fails to file his brief within the time provided for in Rule 2 of this Order, or within the time as extended by the Court, the Respondent may apply to the Court for the appeal to be dismissed for want of prosecution…
(2) Where the 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 Court may suo motu dismiss the appeal for want of prosecution.”
Provisions similar to the above have received statutory interpretations in many judgments of this Court and the apex Court especially as it concerns the power of this Court to restore to the cause list or relist an appeal dismissed for failure to file brief of argument.
The locus classicus on this issue is the case of OLOWU V ABOLORE (1993) 5 NWLR 225 or (1993) LPELR-2603-(SC) where Karibi Whyte dealt with the matter exhaustively thus:
“It is well settled that the exercise of appellate jurisdiction is statutory. A Court cannot exercise jurisdiction to hear an appeal unless such jurisdiction is conferred by the Constitution or enabling Statute. Hence in the instant case, the jurisdiction to relist an appeal dismissed under Order 6 Rule 10 should be found in the Rules of the Court. I have not been lucky to discover any in the rules…This Court has decided several principles in Chukwuka v. Ezulike (1986) 9 NWLR (pt. 45) 892. It was held there that it has no jurisdiction under the 1979 Constitution, the Supreme Court Act, 1960 and the Rules of the Supreme Court 1985, or under its inherent jurisdiction or powers to entertain an application for re-entering an appeal dismissed under Order 8 Rule 16 of the Supreme Court Rules for want of prosecution.Ogbu v. Urum (1981) 4 SC 1; Yonwuren v. Modern Signs (Nig) Ltd (1985) 2 SC. 86; (1985) 1 NWLR (Pt.110) 483. It was also held that it has no inherent jurisdiction to set aside an order of dismissal properly made in the valid exercise of its jurisdiction and to re-enter the appeal. An appeal dismissed on the ground of the failure to file appellant’s brief of argument is final. The appeal so dismissed cannot be revived.”
In GOVERNOR OF ZAMFARA STATE & ORS V. ALHAJI SULEIMAN MOH?D GYALANGE & ORS (2012) LPELR-9715(SC), the SC held:
“A dismissal of appeal pursuant to Ord. 17 Rule 10 of the Court of Appeal Rules disposes of the appeal to finality. It cannot be re-listed. See Kraus Thompson Org. v. NIPSS (2004) 17 NWLR (pt. 901) 44 SC. Note that this Court decided the above case under Ord. 6 R. 10 of the Court of Appeal Rules 1981 which is in pari materia with Ord. 17 R. 10 of the Court of Appeal Rules 2002 under which the appeal herein sought to be re-listed was dismissed. Having dismissed the appeal, the lower Court became functus officio and is not competent to review its order dismissing the appeal. See Onwuchekwa v. CCB Nig. Ltd (1999) 5 NWLR (PT. 603) 409 wherein it was held that the Court of Appeal, having entered a final judgment became functus officio. In my view, an order dismissing an appeal under Ord. 17 R.10 (supra) is no less final a judgment than one dismissing an appeal on the merit. An appellant aggrieved in the circumstances can appeal to the Supreme Court, rather than ask the lower Court to re-list the appeal.”
Contrary to the contention of learned silk for the Applicants there are no two schools of thought on this issue. The authorities are consistent that this Court has no jurisdiction to relist an appeal dismissed for failure of the appellant to file his brief of argument. If there is no jurisdiction, then the question of looking at the facts to see if there are sufficient reasons for relisting the appeal cannot arise. The cases cited by the learned senior advocate do not support his line of reasoning. In GODWILL CHIME & ANOR VS. NELSON UDE & 2 ORS (SUPRA), notwithstanding that the dismissal of the appeal was in chambers suo motu for failure of the Appellant to file his brief of argument, the Supreme Court by a majority of 6 to 1 held that it had no jurisdiction to set aside the dismissal or to restore the appeal to the cause list. The Court held that the jurisdiction to do so is restricted to cases where the judgment or order is a nullity or where the Court acted under a mistake of fact such as where the brief had in fact been filed within time. Kutigi JSC?s dissenting judgment was based on his reservation that the Court raised the issue suo motu in chambers and without notice to the parties.
He had no problem with the usual cases where dismissal was in open Court after hearing notices had been issued. The point however is that Courts do not make laws. They merely interpret. It is not the function of Courts when construing statutes to supply omissions or fill gaps in the law. Paragraphs 8 (3) and (4) of the Court of Appeal (FAST TRACK) Directions 2014 are very precise, clear and unambiguous. The Appellant must file and serve its brief within 14 days from the transmission of the record of appeal; and on default of filing of the Appellants brief within time; the Court may dismiss the appeal for want of diligent prosecution.
Learned senior advocate had argued that the use of the word “may” suggests that the Court has discretion in the matter. That is absolutely correct but the discretion arises at the point when the Court is deciding whether or not to dismiss the appeal for failure to file the appellant’s brief of argument. Once the discretion is exercised against the Appellant and the appeal is dismissed, that is the end of the road for the Appellant as far as this Court is concerned. A communal reading of the Court of Appeal (FAST TRACK) Directions 2014 and indeed the Court of Appeal Rules 2016 will reveal that the draftsmen intentionally left these provisions of dismissal for failure to file briefs as is in order to encourage litigants to comply with these time frames.
That is why there is no provision for relisting of the appeal. Learned senior Advocate admitted as much. If they had wanted a different outcome, they would have used the word ‘strike out’ instead of ‘dismiss’ or specifically made provision for relisting after dismissal. In CHIME & ANOR V. UDE & ORS (Supra) ONU JSC observed:
“It is a cardinal rule of construction that in seeking to interpret a particular Section of a statute or a subsidiary legislation, one does not take the section in isolation, but one should approach the question of interpretation on the footing that the Section is part of a greater whole. See James Orubu v. National Electoral Commission (1988) 5 NWLR (Pt. 94) 323.”
Mr. Badejo SAN being fully aware of the law as stated above tried to fall back on the provision in Order 6 Rule 12 (or 11) of the Court of Appeal Rules 2016 which provides that “an application to set aside any Judgment or ruling, shall not be brought unless it is filed within fourteen days from the date of delivery of such Judgment or ruling or such longer period as the Court may allow for good cause”. Learned silk described the provision as a profound and far-reaching innovation which allows very clearly an application to set aside the Ruling of this Court dated 29th September, 2017. With respect I disagree with Mr. Badejo.
The provision has always been there in other Rules. All that happened was that it limited the time for filing the application to 14 days instead of ‘a reasonable time’ as in earlier Rules. The provision cannot be construed to confer power to set aside any judgment or ruling whatsoever. The Judgment or ruling referred to must be those in respect of which the Court has jurisdiction to set aside such as judgments that are nullities. I am completely at a loss to see how this general provision could have affected the specific provision in Paragraph 8 (4) of the Court of Appeal (FAST TRACK) Directions 2014 or Order 19 Rule 10 (1) and (2) of the Court of Appeal Rules 2016. Mr. Adeniyi Uthman of counsel to the Respondent was right in his submission that when there is a general law and a specific law on an issue, the general law must give way to the specific law. Also as pointed out by Kalgo JSC in KRAUS THOMPSON ORG. VS N.I.P.S.S (SUPRA) in law any specific provision excludes the general one.
The provisions of Paragraph 8 (4) of the Court of Appeal (FAST TRACK) Directions 2014 or Order 19 Rule 10 (1) and (2) of the Court of Appeal Rules 2016 are clear, precise and unambiguous. TOBI JSC observed in KRAUS THOMPSON ORG. V. NIPSS that:
“Where the provision of a Statute or Rule of Court is clear, the duty of the Court is to interpret the clear provision by giving the plain wordings their ordinary interpretation without more. It is not the function of a Court of law to sympathise with a party in the interpretation of a statute merely because the language of the statute is harsh or will cause hardship. That is not the function of the Court. That is rather the function of the legislature.”
Mr. Badejo in his response to Respondent’s written address talked about the harshness of the provision and cited a number of cases where such sentiments were expressed by the Supreme Court and suggested that these sentiments laid the foundation for the introduction of Order 6 Rule 12 of the Court of Appeal Rules 2016. As I said earlier Order 6 Rule 12 has no bearing whatever on the rules in question. The provisions for dismissal for failure to file briefs of argument were deliberately with full knowledge and understanding of the consequences inserted in all the previous Court of Appeal Rules and the 2016 Rules. Indeed in spite of the recommendation of Uwais CJN in KRAUS THOMPSON ORG. V NIPSS to the Honourable President of the Court of Appeal that Order 6 (10) be amended to have the appeal struck out instead of dismissed, nothing has changed. The provisions still retain dismissal as the consequence of failure to file the Appellant’s brief.
The 2016 Rules even went further to stamp their approval and confirm the stand that such dismissals are final and subject only to appeals to a higher Court. Under Order 8 Rule 20 of the Court of Appeal Rules 2011, an appellant whose appeal has been dismissed for failure to compile records may apply by notice of motion that the appeal be restored, and the Court may at its discretion for good and sufficient cause order that such appeal be restored upon such terms as it deems fit. Order 8 Rule 20 was completely omitted in the 2016 Rules. This has obliterated any doubt about any change in the law. The law remains the same and the noose has even been further tightened around the necks of defaulters. The provisions are clear and unambiguous. The Courts must interpret the law as it is.
The law remains the same that an appeal dismissed by this Court as a result of the failure of the Appellant to file his brief of Argument within time or from the 2016 Rules to compile records is a final judgment and cannot be revisited by the same Court. In ASALU & 2 ORS V. FATAI SULE DAKAN (2006) ALL FWLR (PT 325) 90 @ 101 B-H the Apex Court held that:
“An appeal which is dismissed on the grounds that the Appellant failed to file his brief of argument within the time limited for so doing is final and the appeal so dismissed cannot be revived. The Court which dismissed it becomes functus officio on that matter. In such a case, the Court of Appeal, has no inherent jurisdiction to set aside an order of dismissal made pursuant to Order 6 Rule 10 of the Court of Appeal Rules…”
@ 102 D-E
“Sympathy cannot override the clear provisions of the Rules of Court and it is in the interest of parties and their counsel to endeavour always to comply with the prescribed times set out in the rules for the doing of any act or taking any step.”
Having come to the conclusion that this Court has no jurisdiction to entertain this application, it is pointless considering the second issue i.e. whether the applicants have disclosed sufficient reasons and shown good cause entitling them to an order setting aside the Ruling dated 29th September, 2017. All the reasons given and the averments in the various affidavits are matters that should have been brought to the attention of this Court on 19th September 2017 when the Appeal came up for hearing and it was discovered that Appellant’s brief had not been filed. That is when this Court could have exercised its discretion to extend time to enable the Applicants file their brief. But the Applicants were at the time more interested in moving their application for injunction; totally oblivious of the consequence of failure to file their brief within the time prescribed in the Court of Appeal (FAST TRACK) Directions 2014.
Legal Practitioners must study and familiarise themselves with these Fast Track Practice Directions and generally all Rules of Courts in order to avoid the unhappy situation in which the Applicants find themselves.
In the final result, the preliminary objection of the Respondent is upheld. The application is hereby dismissed. I make no order as to costs.
HARUNA SIMON TSAMMANI, J.C.A.: I had the privilege of reading in advance the judgment delivered by my learned brother C.E.Iyizoba, JCA.
This appeal was dismissed for failure to file Appellants’ Brief of Arguments pursuant to Order 8 (3) and (4) of the Court of Appeal (Fast Track) Practice Directions, 2004. There is a similar provision under Order 19 Rule 10 (1) and (2) of the Court OF Appeal Rules, 2016. Both provisions stipulate that when an Appellant defaults in filing the Appellant’s Brief of Arguments within the time stipulated therein, the Court may dismiss the appeal for want of deligent prosecution. There is no provision under the Court of Appeal (Fast Track) Practice Directions which gives power to this Court to relist an appeal dismissed for failure to file Brief. In the case of Governor of Zamfara State & Ors v. Gyalange & Ors (2012) LPELR 9715 (SC) the Supreme Court cited and relied on the case of Barraclough v. Brown (1897) AC 622 to hold that in the absence of any provision, the Court (Court of Appeal) had neither statutory, nor inherent jurisdiction to relist any appeal dismissed pursuant to the Rules of the Court.
That a dismissal under the circumstance is final and thus, the Court has no statutory or inherent power to relist or re-enter the appeal dismissed. See also Dakan & Ors v. Asalu & 2 Ors (2015) 13 NWLR (Pt.1475) 47 at 66 and Olowu & 3 Ors v. Abolore & Anor (1993) 5 NWLR (pt. 293) 255 at 270-272. For that reason, the authorities cited and relied on by Learned Senior Advocate for the Applicant are not helpful to his cause.
On that note, I agree entirely with my learned brother that the application has no merit and is hereby dismissed. I also uphold the Preliminary Objection and abide by the order on costs.
NONYEREM OKORONKWO, J.C.A.: I have had the opportunity to read before now the draft of the ruling of my lord Chinwe Eugenia Iyizoba, JCA in the appeal whereby an application to restore for hearing the appeal previously struck out for failure to file brief within the time stipulated by Paragraph 8 (3) of the Court of Appeal (Fast Track) Practice Direction 2014 was refused and dismissed.
In agreeing with the lead ruling, I will also say that rules of Court are hand maids in the administration of justice and valuable guides in the Labyrinths and complex webs of substantive justice.
The effect of failure to file appellant’s brief within the time stipulated by the rules and in the absence of extended time is the dismissal of the appeal.
Failure to file within, the stipulated time, in this case within 14 days as provided in the Court of Appeal (Fast Track Practice Direction) amounts to an abandonment of the appeal and entitles the respondent to an order dismissing the appeal and the dismissal has not the effect of merely striking out the appeal but affirming the decision of the Lower Court.
T.A. Yonwuren vs. Modern Signs Nig. Ltd., (John Eunemoh & Anor vs. Chief D.O. Onokpite & Ors.) 1985) 2 SC 86.
Delay is also a negation of justice.
Appearances:
J.A. Badejo, SAN with him, F.D. Oloruntoba, Esq. and Agba Eimunjeze, Esq.
For Appellant(s)
A. N. Uthman, Esq. with him, K. I. Tijani, Esq. and A. T. Salaudeen, Esq.For Respondent(s)
