(2017) LCN/4530(SC)

In the Supreme Court of Nigeria

Friday, April 7, 2017

Case Number: SC. 826/2016













“Waiver is the intentional or voluntary relinquishment of a known right or such conduct that warrants an inference of the abandonment of such right.”

(Delivered by Olabode Rhodes-Vivour, JSC)
I read in advance the leading judgment just delivered by my learned brother Sanusi, JSC. I agree with his lordship that this interlocutory appeal is unmeritorious. It is accordingly dismissed. The Court of Appeal is hereby ordered to proceed with the hearing of the appeal.

(Delivered By Paul Adamu Galinje, JSC)
I have had the privilege of reading in draft, the judgment just delivered by my learned brother AMIRU SANUSI JSC and entirely I agree with the reasoning contained therein and the conclusion arrived thereat.
From the proceedings of the lower court at pages 626 — 628 of the Record of Appeal, it is the amended cross appellants brief of argument that was not filed within the seven days extension granted by the lower court.
To that extent the amended brief of argument was incompetent, and same could not be made competent by reason of the fresh steps taken to file the cross respondents brief of argument by the cross respondents, as provided by Order 20 Rule 5 of the Court of Appeal Rules 2011.
The striking out of an amended brief of argument on the ground that it was filed within the time extended by the court and therefore incompetent, does not render the original brief of argument incompetent as same is still a brief in the appeal. Even where the appellant fails to file a brief of argument within the prescribed period or within the time extended, it is not mandatory for the court to dismiss the appeal.
Order 18 Rule 10 provides:-
“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….”

A dismissal of appeal under this order is at the discretion of the court seized with the case, and the lower court in this case elected not to dismiss the appeal before it.

Learned counsel cannot fault the ruling in appeal no. CA/EK/51 /2015 and at the same time argue that the lower court was wrong in not following that decision in appeal no. CA/EK/56/2015. He cannot approbate and reprobate at the same time. The court has absolute discretion to dismiss or not to dismiss an appeal where an appellant fails to file a brief within the prescribed period.
For these few words and the more detailed reasoning in the lead judgment, I find no merit in this appeal. Accordingly same shall be and it is accordingly dismissed. I endorse all the consequential orders made in the lead judgment including order as to costs.

(Delivered by Chima Centus Nweze, JSC)
My Lord, Sanusi JSC, obliged me with the draft of the leading judgement just delivered now. I agree with His Lordship that this appeal, being unmeritorious, ought to be dismissed. Appeal dismissed. The Lower court to continue with the appeal before it.

I have had the privilege of reading in draft the lead judgment of my learned brother, Amiru Sanusi, JSC. I agree without any hesitation that the appeal should be allowed as it is apt and in a proper perspective.
Central to this appeal is the proceedings of the lower court of 04/10/2016, at page 540 of the Record of Appeal, whereby the 1st Respondent made an oral application before that court and praying that the appellants’ brief of argument filed on 14/03/2016 be struck out on the ground that the said appellants’ Brief of Argument was under assessed and also that the fees paid did not include penalty for late filing.
It is pertinent to restate that the 1st Respondent did file his Respondent’s Brief of Argument in the said appeal even after becoming aware of the alleged irregularity complained of. By the said very act, same has amounted to taking a fresh step in the appeal by the 1st Respondent. Therefore he was deemed to have waived his right to object to the irregularity.
As rightly submitted by the learned appellants’ counsel, Order 20 Rule 5 of the Court of Appeal Rules 2011 is designed to cure the irregularity complained about by the 1st Respondent. The reproduction of the Rules states as follows:-

“An application to strike out or set aside for non-compliance with these Rules, or any other irregularity arising from the Rules of Practice and Procedure in this court, any proceedings or any document, judgment or order therein shall only be entertained by the court if it is made within a reasonable time and before the party applying has taken any fresh step after becoming aware of the irregularity.” (Underline is mine).

It is obvious on the record that as at 4th day of October, 2016, when the 1st Respondent applied to the court below that the appellants’ brief of argument filed on the 14th day of March, 2016 be struck out for incompetence, by reason of under assessment, the 1st Respondent had taken fresh steps in the appeal by filing his brief of argument. This, was well after becoming aware of the irregularity complained about.
In my view therefore, it is too late in the day for the respondent to lodge a complaint at this stage. Rightly, I hold that he cannot now be heard. See the cases of Amanchukwu V. F. R. N (2007) 6 NWLR (Pt. 1029) PI at pp 21-22 wherein the court defined waiver thus:-

“Waiver is the intentional or voluntary relinquishment of a known right or such conduct that warrants an inference of the abandonment of such right.”

The same principle was applied also in the earlier case of Ariori V. Elemo (1983) 1 (SCN) 1. This court, did re-emphasize the consistency of this principle in the case of Abubakar V. Nasamu (No 2) (2012) 17 NWLR (Pt. 1330) p.523 at 582.
On the totality of this appeal therefore, I agree with the appellants that by striking out their appeal in its entirety, the lower court chose technicality over the interest of justice and thereby shut the appellants out of the appeal pending before it. In other words, the resultant effect had occasioned a grave miscarriage of justice to the appellants.
With the few words of mine and also relying more particularly on the comprehensive reasoning and conclusion arrived at by my brother Sanusi, JSC in his lead judgment, I also concur that there is merit in this appeal. Same is hereby allowed by me in terms of the lead judgment.


AHMED RAJI, SAN FCIArb (U.K.) with him: Peter Nwatu Esq, Henry Nwakpa Esq, Titilayo Ajao (Miss), Mukhtar Aliyu Esq, David Ogundipe Esq, Olamide Agbaje (Miss), Emmanuella Senlong (Miss), Omojeme Urueshone Esq, Abdulkadir Aminu Esq, Doyinsoia Alege (Miss), Adedolapo Alege Esq, and Ayewale Folarin Esq. for the Appellants.

M. J. ONIBANJO, SAN with him: C. N. Okakpu (Miss), Chris Iloka Esq, and Chioma Ezeobika (Miss) for the 1st Respondent.

MUSIBAU ADETUNBI ESQ. with him: A. A. Muhammad, Esq, Barbara T. Onwubiko (Miss), Abdul Wasiu Lawal Esq, and A. A. Adul Raheem Esq. for the 2nd Respondent.

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