EXECUTIVE GOVERNOR, OGUN STATE & ORS v. ADEAGBO & ORS
(2022)LCN/16501(CA)
In The Court Of Appeal
(IBADAN JUDICIAL DIVISION)
On Friday, June 10, 2022
CA/IB/469/2019(R)
Before Our Lordships:
Moore Aseimo Abraham Adumein Justice of the Court of Appeal
Yargata Byenchit Nimpar Justice of the Court of Appeal
Abba Bello Mohammed Justice of the Court of Appeal
Between
1. THE EXECUTIVE GOVERNOR, OGUN STATE 2. THE PERMANENT SECRETARY/SOLICITOR GENERAL, OGUN 3. MINISTRY OF LOCAL GOVERNMENT AND CHIEFTAINCY AFFAIRS 4. LOCAL GOVERNMENT SERVICE COMMISSION, OGUN STATE APPELANT(S)
And
1. HON. RASAQ ADEAGBO 2. HON. ADEBAYO OSIKOMAIYA 3. HON. KUNLE FALARIN 4. HON. KOLAWOLE SUNDAY ONAFUYE 5. ALHAJI BALOGUN 6. HON. PRINCE TOSIN ADELUYI 7. ENGR. SAEED ALAGBE 8. ALHAJI GAFAR BALOGUN 9. HON. LUKMAN SONAKAN 10. HON. ADEJUMO ALANI 11. HON. ABIOLA ASALULOLA 12. ALHAJI FATAI LAWAL 13. HON. KAFARU FEMI FELIX 14.HON. ADEBAYO ADEKOYA 15. AGBA-AKIN OLABODE TAOFEEK 16. HON. ABAJO MUSA OLABODE 17. HON. JOSU AMOS 18. HON. SEGUN IDOWU 19. HON. SIMISOLA ONAJI 20. HON. ADEGOKE ADEKANMBI 21. HON. YAKUBU JAMIU 22. HON. ALEBIOSU RAMONI 23. HON. BAYO JIMOH 24. HON. MONSURU SORUNKE 25. HON. ADEPEGBA KEHINDE 26. HON. BABAJIDE OLUSHOLA 27. HON. SHITTU OLAWALE 28. HON. SALAMI TAOREED 29. HON. ADEFISAN KAZEEM 30. ARCH. OLA ODUWOLE 31. ALHAJI KUDI BALOGUN 32. HON. (MRS) OLABISI COLLINS 33. HON. ADEBAYO YUSUF 34. HON. OLOLADE ONOKAYA 35. HON. ADEGBITE MOSES 36. HON. SPEAKER, OGUN STATE HOUSE OF ASSEMBLY RESPONDENT(S)
RATIO:
THE COURT LOOKS AT AN AFFIDAVIT TO SEE IF THERE WAS A JUSTIFIED DELAY TO SEE WHETHER TO RELIST A MATTER STRUCK OUT
It is trite that applications such asthis are not granted as a matter of course and being one that calls for the exercise of the Court’s discretion, adequate materials must be placed before the CourtNThe facts contained in such affidavits will sway the Judge one way or the other in deciding where the justiceof the case demands his discretion should go. Thus, in deciding whether to relist a matter struck out, the Court looks at the affidavit to see if there was justified delay, whether it is in the interest of justice to hear the substantive case and do justice by hearing both sides”. YARGATA BYENCHIT NIMPAR, J.C.A
FAILURE TO FILE A BRIEF IS A SERIOUS LAPSE AND DOES NOT ATTRACT SYMPATHY
It is trite that applications such asthis are not granted as a matter of course and being one that calls for the exercise of the Court’s discretion, adequate materials must be placed before the CourtNThe facts contained in such affidavits will sway the Judge one way or the other in deciding where the justiceof the case demands his discretion should go. Thus, in deciding whether to relist a matter struck out, the Court looks at the affidavit to see if there was justified delay, whether it is in the interest of justice to hear the substantive case and do justice by hearing both sides”.
Failure to file Brief is a serious lapse and does not attract sympathy, its like a strict Liability offence.
The Court in the case of EKPETO V. WANOGHO (2001) NWLR part 716 665 held thusly:
“Until the appellant wakes up from the deep slumber, as held by this Court while striking out this appeal, it does not by any stretch of imagination mean that the Court anticipated relisting the same case, but rather expected the non-diligent applicant to find out on waking up from his slumber, that the appeal is beyond redemption; any other interpretation to this holdingwill amount to turning law on its head; striking out and dismissing mean one and same thing, the same thing in circumstances where the basis is failure to file brief of argument. The applicant needed no waking up from his slumber, the same way the dead do not wake up; “…Suffices to say that this Court has no jurisdiction to revive and/or relist an appeal dismissed under Order 6 Rule 10 Court of Appeal Rules, 1981 as amended in 1984… YARGATA BYENCHIT NIMPAR, J.C.A ”
THE POSITION OF THE LAW ON THE REASON FOR FAILURE TO BE IN COURT
The position is settled that in such situations the reason for failure to be in Court may be germane and compelling, however, it cannot have any effect as such a dismissal is final and cannot be revisited by the Court. The Court becomes functus officio, see FAMU & ORS V. KASSIM & ORS (2012) LPELR-15528(SC) where the apex Court held thusly:
“Furthermore if I may recap the other implication is that the instant Court having rendered itself functus officio it lacks the jurisdiction to re-enter or rehear the appeal or deal with the matter in the manner as is being urged by the applicants in the instant application. It has performed its task in the matter that it has no further power or authority over the matter. See Olowu v. Abolore (supra), as that will lead to this Court sitting on appeal over its decision.” Per CHUKWUMA-ENEH, J.S.C. YARGATA BYENCHIT NIMPAR, J.C.A
YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgement): This ruling is sequel to the Motion on Notice filed on the 15th March, 2022 and dated same day by the Appellants/Applicants. The motion prays for the following:
1. AN ORDER setting aside the Order of this Honourable Court delivered on the 2nd day of March, 2022 striking out Appeal No.: CA/IB/469/2019 Executive Governor of Ogun State & 3 Ors V. Hon. RasaqAdeagbo& 35 Ors.
2. AN ORDER restoring Appeal No.: CA/IB/469/2019 Executive Governor of Ogun State & 3 Ors V. Hon. RasaqAdeagbo& 35 Ors.
AND for such further or other orders as this Honourable Court may deem it fit to make in the circumstance.
The application is founded on the following grounds:
a. The Federal High Court of Nigeria, Abeokuta Judicial Division on the 4th day of December, 2019, delivered a Ruling in Suit No.: FHC/AB/CS/76/2019 Between Hon. Rasaq Adeagbo& 35 Ors V. Executive Governor of Ogun State & 3 Ors wherein it held that the Court had jurisdiction to hear and determine the suit.
b. The Appellants, dissatisfied with the said decision lodged an appeal vide Notice of Appeal dated the 10th day December, 2019 following which it complied and transmitted the Record of Appeal.
c. That the time by the Rules of Court for the Appellant to file their Appellants Brief of Argument ran out on about the 14th day of February, 2020. Consequently, the Appellants filed the Appellant’s Brief of Argument alongside an application for enlargement of time to regularize the said Appellants’ Brief both dated the 11th day of June, 2020.
d. A hearing date for the 2nd of March, 2022 was communicated to Counsel via phone call by one of the Registrars of the Court but the ongoing nation-wide fuel scarcity occasioned the absence of the State Counsel in Court on the morning of Wednesday 2nd March, 2022.
e. Ogun State Ministry of Justice was unable to get fuel into her vehicles on the 2nd day of March, 2022 and Counsel from the Ministry placed a phone call to the Registrars of the Honourable Court to intimate them of the development. However, in view of Counsel’s absence, this Honourable Court struck out the appeal.
f. The Rules of this Honourable Court and judicial authorities permit the Court to set aside orders granted by the Court, under certain circumstances and within a stipulated timeline.
The application is supported by an affidavit of 6 paragraphs accompanied by one annexure marked as Exhibit A thus:
A copy of a hearing Notice dated 20th January, 2022- Exhibit A;
And a Further and Better affidavit filed on the 21/3/22 accompanied by one annexure marked as Exhibit B – the proceedings of the 2nd March, 2022.
As required by the Rules of the Court, the Application was also accompanied by a written address. The Appellants/Applicants’ Written Address settled by T.M. SODIPO., is dated 15th day of March, 2022. The Applicant at the hearing relied on the affidavits in support, the Exhibits attached and adopted the written address as arguments in urging the Court to grant the application. The Appellants/Applicants distilled a sole issue for determination as follows:
Whether the Appellants/Applicants are entitled to the grant of the reliefs sought
The Respondents filed a Counter Affidavit in opposition dated 6th April, 2022 and it was accompanied by a Written Address settled by M.O. UBANI, ESQ., it is dated 29th day of March, 2022 and filed on the 6th April, 2022. The Respondents also formulated a sole issue for determination as follows:
Whether the Court can set aside its ruling delivered on the 2nd day of March, 2022 dismissing the Appellant’s Appeal pursuant to Order 19 Rule 10(1) of the Court of Appeal Rule, 2021
APPELLANTS/APPLICANTS’ SUBMISSION
The Applicants relied on Order 6 Rule 10 of the Court of Appeal Rules, 2021 to pray the Court to set aside the order of the Court made on 2nd March, 2022 and to restore the appeal to be properly adjudicated upon. The Applicants also relied on AKUJINWA & ORS V. NWAONUMA & ORS (1998) LPELR-391(SC). The Applicants reproduced facts from their affidavit in support of the motion to submit that those facts are weighty enough to have swayed the Court to adjourn the application or to deem the application as argued and grant same. Continuing, the Applicants relied on Order 19 Rule 9(4) and Order 6 Rule 8(2) of the Rules of the Court of Appeal 2021 to submit that the Rules permits the Court to deem a party’s brief as argued if on the day of the hearing, the said party is absent provided that party has filed a brief.
It is the argument of the Applicants that the above two provision of the Rules of Court shows that the Court places a strong emphasis on doing substantial justice and granting parties full opportunities to exercise their rights to be heard. The Applicants referred the Court to MOTECH INVESTMENT LTD & ANOR V. ODEMADIGHI (2020) LPELR-50394 (CA), OMOJU V. FRN (2008) LPELR-2647(SC), LAGGA V. SARHUNA (2008) LPELR-1740(SC), VITACHEM (NIG) LTD V. DSM SINOCHEN PHARMACEUTICALS INDI PRIVATE LTD (2017) LPELR-43200, BARDE V. JAGABA & ANOR (2021) LPELR-55803 (CA), METROPOLITAN PROPERTIES LIMITED V. LANNON (1963) 3 ALL ER (304), SALEH V. MONGUNO (2003) 1 NWLR (PT. 801) 221, THE ADMIN & EXEC OF THE ESTATE OF ABACHA V. EKE-SPIFF & ORS (2009) LPELR-3152(SC), ALAO V. ACB LTD (2000) LPELR-408 (SC) and DAVIES & ORS V. ODOFIN & ORS (2017) LPELR-41871(CA).
On the same point, the Applicants contends that considering the procedural history in the appeal, the pendency of unopposed processes, the Court could have used its power to deem the application as argued and the circumstances of Counsel’s absence from the Court was despite best efforts. That the order striking out the appeal is such as this Court can revisit and set aside. Furthermore, the Applicants submitted that the Court’s registry did in fact omit to inform the Court that Counsel was stranded out of town and it is trite that a Counsel or litigants ought not to be punished for the errors and inadvertence of the Court’s Registry over which they have no control as held in BANVO & ORS V. BISSA (2021) LPELR-56304 (CA), OGBONNA & ORS V. OGBONNA & ORS (2021) LPELR-55902 (CA) and OGWE & ANOR V. IGP & ORS (2015) LPELR-24322(SC). The Applicants urged the Court to exercise its discretion in favour of the Appellants/Applicants by granting this application.
RESPONDENTS’ SUBMISSION
The Respondents submits that on the 2nd day of March, 2022, the Court dismissed the Appellants/Applicants’ appeal pursuant to Order 19 Rule 10(1) of the Court of Appeal Rules, 2021, for failing to file their Appellants’ brief within the time provided by the Rules of the Court of Appeal, 2021. The Respondents narrated that the Appellants/Applicants failed to file their Applicants’ Brief within the45 days from the date the record of appeal was transmitted as prescribed in Order 19 Rule 2 of the Court of Appeal Rules and when they eventually filed on the 11th June, 2020, they also filed a motion on notice for extension of time, however, on the day fixed for hearing of their application, the Appellants/Applicants failed to come to Court to make their application to regularize their Appellants’ Brief on the excuse of fuel scarcity, hence, the Court on the application of the Respondents’ Counsel struck out the deemed abandoned motion for extension of time as well as the incompetent Appellants’ Brief.
According to the Respondents, the reason given by the Appellants for not being in Court shows their un-seriousness and lack of diligence in prosecuting the appeal because if the Ministry of Justice’s official vehicle had no fuel, the Appellants’ Counsel should have used alternative means but chose to call the Registrar of the Court to inform him of the fuel scarcity to get an adjournment. Continuing, the Respondents submits that having dismissed the Appellants’ appeal pursuant to Order 19 Rule 10(1) of the Court of Appeal Rule,2021, the Court cannot relist the appeal because the Court has become functus officio as held in ATTORNEY GENERAL OF THE FEDERATION & ORS V. THE PUNCH NIGERIA LIMITED & ANOR
(2019) LPELR-47868(SC), KRAUS THOMPSON ORGANIZATION V. N.I.P.SS (2004) 17 NWLR (PT. 901) 44, SHEHU BABAYAGI V. ALHAJI BIDA (1998) 2 NWLR (PT. 538) 367, BISHOP C.A. AJAYI V. MRS. DOLPO AKINBOBAMI & ORS (2012) 6 NWLR (PT. 1297) 481 and ONYENWAKU U. & ANOR V. NNADI & ORS (2016) LPELR-41030(CA). Furthermore, the Respondents submits that sympathy cannot override the clear provisions of our Rules and urged the Court to dismiss the Appellants/Applicants’ motion for relisting of this appeal with punitive cost of N500,000.00 which must be paid before any further step is taken by the Appellants in this case.
RESOLUTION
This application is simply seeking to set aside the order of Court striking out Applicants’ application to regularize the Appellants’ brief and to relist the appeal dismissed under Order 19 Rule 10(1) of the 2021 Rules of the Court. I shall adopt the sole issue donated by the Applicants as reproduced above.
It is trite that applications such as this are not granted as a matter of course and being one that calls for the exercise of the Court’s discretion, adequate materials must be placed before the Court. The facts contained in such affidavits will sway the Judge one way or the other in deciding where the justice of the case demands his discretion should go. Thus, in deciding whether to relist a matter struck out, the Court looks at the affidavit to see if there was justified delay, whether it is in the interest of justice to hear the substantive case and do justice by hearing both sides”.
It is trite that applications such as this are not granted as a matter of course and being one that calls for the exercise of the Court’s discretion, adequate materials must be placed before the Court. The facts contained in such affidavits will sway the Judge one way or the other in deciding where the justice of the case demands his discretion should go. Thus, in deciding whether to relist a matter struck out, the Court looks at the affidavit to see if there was justified delay, whether it is in the interest of justice to hear the substantive case and do justice by hearing both sides”.
Failure to file Brief is a serious lapse and does not attract sympathy, its like a strict Liability offence.
The Court in the case of EKPETO V. WANOGHO (2001) NWLR part 716 665 held thusly:
“Until the appellant wakes up from the deep slumber, as held by this Court while striking out this appeal, it does not by any stretch of imagination mean that the Court anticipated relisting the same case, but rather expected the non-diligent applicant to find out on waking up from his slumber, that the appeal is beyond redemption; any other interpretation to this holding will amount to turning law on its head; striking out and dismissing mean one and same thing, the same thing in circumstances where the basis is failure to file brief of argument. The applicant needed no waking up from his slumber, the same way the dead do not wake up; “…Suffices to say that this Court has no jurisdiction to revive and/or relist an appeal dismissed under Order 6 Rule 10 Court of Appeal Rules, 1981 as amended in 1984…”
It is obvious that the Applicant misunderstood the import of when an appeal is dismissed under Order 19 Rule 10(1) for Appellants’ failure to file Appellants’ brief. It is different from when the Appellant has failed to compile records of appeal or other reasons that are considered lack of diligent prosecution, such as absence from Court without any reason advanced. It has been settled that failure to file Appellant’s briefs within time allowed by the rules or within time extended by the Court seals the appeal as deemed and the appeal cannot be relisted. The argument that the application to file Appellant’s Briefs was accompanied by a written address and it should have been deemed argued and granted pursuant to Order 19 R 9 (4) particularly because the motion was not opposed is misconceived. The said provision says thusly:
(4) When an appeal is called and the parties have been duly served with the notice of hearing, but a party or any Legal Practitioner appearing for him does not appear to present oral argument even though briefs have been filed by all parties concerned in the appeal will be treated as having duly argued.”
The clear provision talks of a situation where briefs have been duly filed and not where briefs are yet to be filed. It is my humble opinion that it cannot apply to a situation where Briefs are yet to be regularized as in this case. An irregular process cannot be in the same position as a regular process. The fact that an application has to be made to regularize such a brief means that it is yet to be proper before the Court. And therefore the fact that there was no counter affidavit filed by the Respondent makes no difference.
The position is settled that in such situations the reason for failure to be in Court may be germane and compelling, however, it cannot have any effect as such a dismissal is final and cannot be revisited by the Court. The Court becomes functus officio, see FAMU & ORS V. KASSIM & ORS (2012) LPELR-15528(SC) where the apex Court held thusly:
“Furthermore if I may recap the other implication is that the instant Court having rendered itself functus officio it lacks the jurisdiction to re-enter or rehear the appeal or deal with the matter in the manner as is being urged by the applicants in the instant application. It has performed its task in the matter that it has no further power or authority over the matter. See Olowu v. Abolore (supra), as that will lead to this Court sitting on appeal over its decision.” Per CHUKWUMA-ENEH, J.S.C.
Furthermore, the argument that sin of counsel should not be visited on the litigant has no place in this situation, that much is trite and true; this Court has always bent backwards to accommodate parties all in an effort not to shut them out in the interest of justice; but the same interest of justice demands that an unwilling or unserious litigant should not be allowed to hold the Court and the opposing party to ransom, that is what informs the need or necessity to strike out or dismiss the appeal for non-diligent prosecution. It is clear from the foregoing that a case struck out or dismissed, as in this case, for lack of diligent prosecution by reason of failure to file brief of argument cannot be relisted.
The Applicant should have sent a mail to the Registrar of the Court to excuse her presence. I can understand her putting up a call to the Registrar, but the affidavit alleging her call to the Registrar was not served on the Registrar to admit receiving the call or deny same. If the Court uses sms/call to give notice of hearing, the parties can also call the Registrars. However, the call to the Registrar was not established and that notwithstanding, the type of dismissal is one that cannot be revisited. So all those considerations would not hold sway.
In any case, the appeal is an interlocutory appeal which the Applicants’ counsel contends that it challenges the jurisdiction of the lower Court, this can be conveniently raised at the end of the substantive trial before the lower Court because a challenge to jurisdiction can be raised at any time and at any level of Court in all the hierarchical ladder of Courts. Therefore, the question of resor the issue of jurisdiction cannot be lost if trial is concluded, the issue can still be raised at any other time. The law is that this appeal cannot be relisted because the dismissal order is final and irreversible. See KRAUS THOMPSON ORGANISATION V NIPSS (2004) 17 NWLR (Pt. 901) 44 or LPELR-1714(SC) where the apex Court while considering a similar provision held thus:
“An appeal which is dismissed under Order 6 Rule 10 of the Court of Appeal Rules cannot be re-listed. This Court held in Babayagi v. Bida (supra) that once an appeal is dismissed under Order 6 Rule 10, the Court of Appeal has no jurisdiction to revive the appeal by re-entering or re-listing same. See also Chukwuka v. Ezulike (1986) 2 NWLR (Pt. 45) 892. When an appeal is dismissed under Order 6 Rule 10 of the Court of Appeal Rules, its life terminates and it is therefore removed from the cause list. No Court has jurisdiction to revive or resuscitate it.” Per TOBI, J.S.C.
It is instructive to note that Order 6 Rule 10 is the same in context as the current Order 19 Rule 10(1) under which the Court dismissed the appeal brought by the Applicant.
I agree with the Respondents that the dismissal is final and it cannot be revisited. This Court lacks jurisdiction to revisit the issue. Consequently, the application lacks merit and is hereby dismissed.
Parties to bear their respective cost.
MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I read before now, the ruling of my learned brother, Yargata Byenchit Nimpar, JCA, just delivered.
Appeal No: CA/IB/469/2019 was dismissed on the 2nd day of March, 2022 pursuant to the provisions of Order 19 Rule 10 (1) of the Court of Appeal Rules, 2021 which provides inter alia, 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”.
The above provisions and those in parimateria therewith have been interpreted by this Court and the Supreme Court. The judicial opinion flows in one and the same direction and it is that an appeal dismissed (or even ‘struck out’), for the failure by an Appellant to file his brief within the time provided, cannot be relisted or revived by a motion in the Court of Appeal for the appeal to be restored to the Court’s Cause List. See John Chukwuka v. Ndubueze Ezulike (1986) 2 NWLR (Pt. 45) 892; Evevato Ekpeto v. Ikono Wanogho (2005) All FWLR (Pt.24S) 1191; Shehu Babayagi v. Alhaji Ndatsadu Bida and Kraus Thompson Organization v. National Institute for Policy and Strategic Studies (2004) 17 NWLR (Pt. 901) 44.
Having dismissed the Appellants’/Applicants’ appeal on the 2nd day of March, 2022 this Court had since become functus officio and the Court has no jurisdiction to entertain the present motion on notice to relist the appeal.
Accordingly, the Applicants’ motion on notice filed on the 2nd day of March, 2022 is hereby struck out for want of jurisdiction.
ABBA BELLO MOHAMMED, J.C.A.: I had the privilege of reading the draft of the lead ruling just delivered by my learned brother YARGATA BYENCHIT NIMPAR, JCA. My Noble Lord has succinctly considered this application and I am in agreement with the reasoning and the conclusion that this application is devoid of merit.
To add a word on the effect of a dismissal of an appeal for failure to file a brief, the authorities of the appellate Courts are replete that once an appeal is dismissed by the Court for want of diligent prosecution as a result of failure to file brief of argument, the order of dismissal is final and the Court is functus officio. It is lacking in competence to relist and hear same. See: ALI ALABA INT’L LTD & ANOR v STERLING BANK (2018) LPELR-44903(SC), per Kekere-Ekun, JSC at pages 13-14. Paras. B–E; A-G OF THE FEDERATION & ORS v PUNCH (NIG) LTD & ANOR (2019) LPELR-47868(SC), per Ariwoola, JSC at pages 14-24. paras E-G: GOVERNOR OF ZAMFARA STATE & ORS v GYALANGE & ORS (2012) LPELR-9715(SC). per Muhktar, JSC (as he then was) at pages 5-13. paras. D-D: and TAIWO v DOSUNMU & ANOR (2017) LPELR-42690(CA), per Nimpar. JCA at page 14 paras. C-E.
In concurrence with the lead ruling therefore, I also dismiss the application for lack of merit.
Appearances:
T. M. Sodipo For Appellant(s)
J.O. Igwe with him Adebayo Oshikomaye For Respondent(s)
