IFESINACHI MASS TRANSIT LIMITED v. OGAGA OVRAWAH & ANOR (2016)

IFESINACHI MASS TRANSIT LIMITED v. OGAGA OVRAWAH & ANOR

(2016)LCN/8427(CA)

In The Court of Appeal of Nigeria

On Thursday, the 24th day of March, 2016

CA/B/64/2013

RATIO

APPEAL: BRIEF OF ARGUMENT; THE EFFECT THE BRIEF OF ARGUMENT FILED OUT OF TIME WITHOUT AN APPLICATION FOR EXTENSION HAS IN LAW

Before going into the merit of this appeal, it would be necessary at this juncture, to determine whether the Appellants brief of argument was filed within the time allowed by the Rules.
Order 18 Rule 2 of the Court of Appeal Rules 2011 states thus: –
“The Appellant shall within forty-five days of 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.”
Also, Order 18 Rule 10 (1) & (2) states 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. Where an Appellant fails to file his brief within the time provided for in Rule 2 of this Order, or within the time extended by the Court, the Court may suo motu dismiss the appeal for want of prosecution.” In this appeal under consideration, the Record of Appeal was transmitted on 15/2/2013 and the Appellant?s brief of argument was filed on 24/6/2013. The period between 15/2/2013 and 24/6/2013 is definitely more than 45 days and the counsel for the Appellant failed to bring an application for extension of time within which to regularize its position. The inevitable conclusion to be deduced from above scenario is that the Appellant?s brief of argument was filed out of time and it was not regularized. I am therefore of the view that a brief of argument of the Appellant filed out of time without an application for extension of time to regularize it, is of no effect in law and such a brief is incompetent. PER. JIMI OLUKAYODE BADA, J.C.A.

PRACTICE AND PROCEDURE: RULES OF COURT; WHY RULES OF COURT ARE MEANT TO BE COMPLIED WITH

Rules of Court are meant to be complied with. They regulate matters in Court and help the parties to present their case within the procedure made for the purpose of a fair and quick trial.See – JOHN v. BLACK (No. 1) 1988 1 NWLR Part 72 Page 648. – JIMOH O. OJUGBELE v. MUSEFIN O. LAMIDI & ORS (1999) 10 NWLR Part 621 Page 167 at 171. PER. JIMI OLUKAYODE BADA, J.C.A.

APPEAL: BRIEF OF ARGUMENT; TIME LIMITATION OF FILING A BRIEF OF ARGUMENT AND THE CONSEQUENC OF FAILURE TO FILE IT WITHIN THE STIPULATED TIME

It is important to emphasize that where a Statute provides a period within which a step must be taken, anything done outside the prescribed period is of no effect in law unless the step is regularized.See – OKE v. OKE (2006) 4 NWLR Part 1008 Page 224 at 242. PER. JIMI OLUKAYODE BADA, J.C.A.

JUSTICES

JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria

PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria

HAMMA AKAWU BARKA Justice of The Court of Appeal of Nigeria

Between

IFESINACHI MASS TRANSIT LIMITED Appellant(s)

AND

OGAGA OVRAWAH
MRS OTI ANUKPE OVRAWAH
(Suing through her attorney Ogaga Ovrawah) Respondent(s)

JIMI OLUKAYODE BADA, J.C.A. (Delivering the Leading Judgment): This appeal emanated from the Judgment of the High Court of Justice sitting at Auchi in Edo State of Nigeria in Suit No: HAU/24/2011 – OGAGA OVRAWAH AND ANOR v.?IFESINACHI MASS TRANSIT COMPANY LIMITED delivered on 30/10/2012 wherein the Court gave Judgment in favour of the Respondents i.e. the Plaintiffs of the Lower Court.

Briefly, the facts of this case are that this suit was commenced at the Lower Court vide a writ of summons which was issued with the leave of the Court.

Pleading were duly exchanged by the parties and also amended.

By paragraph 10 of the amended statement of claim, the Plaintiffs (now Respondents) claimed jointly and severally against the Defendant (now Appellant) as follows:-
”(a) The sum of (N4,069,250.00) four million, sixty-nine thousand, two hundred and fifty Naira as special and general damages suffered by them as a result of the accident.
(b) The sum of (N5,000,000.00) five million Naira general damages for pains and emotional distress suffered by the 1st Plaintiff as a result of the said accident.”?

Hearing at the Lower Court commenced

on 25/1/2012 and it was concluded on behalf of the Respondents on 22/5/2012 after calling two witnesses. The defence by the Appellant was adjourned till 18/7/2012 with the consent of counsel for both parties.

On 18/7/2012, the Appellant was represented by counsel who informed the Court that he had been instructed that the 2nd Defendant would be in Court that day and he requested for a stand down which was granted by the Court.

At the end of that day, no 2nd Defendant turned up because actually there was no 2nd Defendant in this case. At the instance of Appellant?s counsel, the case was adjourned till 31/7/2012. And on 31/7/2012, the Appellant was not represented in Court and counsel for the Appellant was also absent. The Lower Court then ordered as follows: – ?From the antecedents of this case, it is obvious the defendant is not serious with the case. I think this is a proper case where the defendant should be foreclosed. Accordingly, I order the case of the defendant foreclosed. This order would only be reversed if the defendants officer deposes to an affidavit indicating a willingness to defend the case and pays N10,000.00 as costs to the

plaintiffs.?

The suit was then adjourned till 2/10/2012 for address. There is nothing on the record to show that the Appellant complied with the Order of the Court and he did not appeal against that order.

The counsel for the Respondents addressed the Court and Judgment was fixed for 30/10/2012.

On 30/10/2012, Judgment was delivered in favour of the Respondents against the Appellant. The Appellant who is dissatisfied with the Judgment now appealed to this Court.

The learned counsel for the Appellant formulated two issues for the determination of the appeal. The issues are set out as follows: –
?ISSUE NO.1
Whether the defendant/appellant has a right/choice of legal representation at the material time during trial.
ISSUE NO. 2
Whether the foreclosure of the defendant when counsel was ready to open defence amounted to denial of fair hearing or not.?

On the other hand, the learned counsel for the Respondents formulated a sole issue for determination of the appeal. The issue is set out as follows: –
?Whether considering the circumstances of the conduct of the appellant, the learned trial Court was correct when

it refused to hear the appellant on 2/10/2012 and if the appellant was denied a fair hearing

At the hearing of this appeal on 29/2/2016, the learned counsel for the Appellant stated that the Judgment appealed against was delivered on 30/10/2012. The notice of appeal was filed on 16/11/2012. The record of appeal was transmitted on 15/2/2013. The Appellants brief of argument was filed on 24/6/2013.

When the Appellant was asked whether or not the said Appellants brief was filed within time, counsel answered in the positive that it was filed within the time allowed by the rules.

He adopted and relied on the said Appellant?s brief as his argument in this appeal. He urged that the appeal be allowed.

The learned counsel for the Respondents on the other hand, contended that the Appellant?s brief of argument was filed out of time, and there was no application on behalf of the Appellant to regularize its position. He therefore submitted that there is no Appellant?s brief of argument before this Court.He prayed that the appeal be struck out with N100,000.00 costs.

Be that as it may, learned counsel for the Respondents referred to the

Respondents brief of argument filed on 17/3/2013.

He adopted and relied on the said brief as his argument in this appeal and he urged that the appeal be dismissed.

Where an Appellant fails to file his brief within the time provided for in Rule 2 of this Order, or within the time extended by the Court, the Court may suo motu dismiss the appeal for want of prosecution.”

In this appeal under consideration, the Record of Appeal was transmitted on 15/2/2013 and the Appellant?s brief of argument was filed on 24/6/2013. The period between 15/2/2013 and 24/6/2013 is definitely more than 45 days and the counsel for the Appellant failed to bring an application for extension of time within which to regularize its position.

The inevitable conclusion to be deduced from above scenario is that the Appellant?s brief of argument was filed out

of time and it was not regularized.

I am therefore of the view that a brief of argument of the Appellant filed out of time without an application for extension of time to regularize it, is of no effect in law and such a brief is incompetent.

Consequent upon the foregoing, I am of the view that the Appellant?s brief in this appeal is incompetent and it is hereby struck out.
In the result, this appeal is hereby struck out.

?The Respondents are entitled to costs which is fixed at (N50,000.00) fifty thousand Naira against the Appellant.

PHILOMENA MBUA EKPE,

J.C.A.: I had the privilege of reading in draft, the judgment just delivered by my learned brother J. O. Bada, JCA. I agree with the entire reasoning and conclusion reached in the lead judgment. It is important to emphasize that where a Statute provides a period within a step must be taken, anything done outside the prescribed period is of no effect in law unless the step is regularized. I am also of the view that the Appellant?s brief is incompetent and it is hereby struck out.

I abide by the order as to costs.

HAMMA AKAWU BARKA, J.C.A.: Having been privileged to read in draft the judgment just delivered by my Lord JIMI OLUKAYODE BADA, JCA, and having also perused the records of proceedings and the Rules of this Court, particularly Order 18 Rule 2 and Order 18 Rule 10(1) and (2), I totally agree with the lead judgment to the effect that the appellant?s brief of argument was filed out of time, and the appellant having failed to regularize same qualifies the appeal for a dismissal. The inevitable conclusion to this appeal is that the appellant having failed to file a proper brief as envisaged by law, the appeal

stands dismissed.

?I abide on order of costs made in the lead judgment.

Appearances

Mr. A. A. AnyaoraFor Appellant

AND

Mr. M. N. Aigbe with him Miss O. AdesinaFor Respondent