MINISTER, FEDERAL MINISTRY OF HOUSING AND URBAN DEVELOPMENT, FRN & ORS v. MAKOLO & ORS (2022)

MINISTER, FEDERAL MINISTRY OF HOUSING AND URBAN DEVELOPMENT, FRN & ORS v. MAKOLO & ORS

(2022)LCN/17098(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Friday, February 25, 2022

CA/L/237/14

Before Our Lordships:

Obietonbara Owupele Daniel-Kalio Justice of the Court of Appeal

Muhammad Ibrahim Sirajo Justice of the Court of Appeal

Adebukunola Adeoti Ibironke Banjoko Justice of the Court of Appeal

Between

1. THE MINISTER, FEDERAL MINISTRY OF HOUSING AND URBAN DEVELOPMENT FEDERAL REPUBLIC OF NIGERIA 2. THE CHAIRMAN OF THE IMPLEMENTATION COMMITTEE FOR SALE, FEDERAL GOVERNMENT LANDED PROPERTY FEDERAL REPUBLIC OF NIGERIA 3. THE SECRETARY OF THE IMPLEMENTATION COMMITTEE FOR SALE, FEDERAL GOVERNMENT LANDED PROPERTY FEDERAL REPUBLIC OF NIGERIA APPELANT(S)

And

1. MR. D. MAKOLO 2. MR. M.B. IBRAHIM 3. MRS. M.O. OGUNTOBI 4. MR. DEINDE GBENGA 5. MR. ATIKU ABUBAKAR 6. MR. MIKE ANYANWU (Suing For Themselves And On Behalf Of The 144 Evicted Tenants Of Eric Moore Towers, Surulere, Lagos) 7. THE ATTORNEY-GENERAL OF THE FEDERATION AND HON. MINISTER OF JUSTICE, FED. REP. OF NIGERIA RESPONDENT(S)

RATIO

THE POSITION OF LAW ON THE PURPOSE OF A PRELIMINARY OBJECTION

Now, it is important to understand and appreciate the purpose of a preliminary objection. Its purpose is not to attack every and any error perceived by a Respondent. In some instances, a preliminary objection is not the proper means to attack an error in limine. The proper use of a preliminary objection in an appeal has been properly explained. I find the following explanation by the Supreme Court of its purpose in the case of KLM ROYAL DUTCH AIRLINES V. ALOMA (2017) LPELR-42588 (SC) 6-7 to be quite apt. Said the Supreme Court, per Kekere-Ekun, JSC, in that case:
“The purpose of a preliminary objection is to truncate the hearing of an appeal in limine. It is raised when the Respondent is satisfied that there is a fundamental defect in the appeal that would affect the Court’s jurisdiction to entertain it. Where there are other grounds that could sustain the appeal, a preliminary objection should not be filed. Where the purpose of the objection is merely to challenge the competence of some grounds of appeal, the best approach is by way of a motion on notice. The reason is that the success of the objection would not terminate the hearing of the appeal.” PER DANIEL-KALIO, J.C.A.

THE LEGAL EFFECT OF FILING A RESPONDENT BRIEF OUT OF TIME AND WITHOUT AN ORDER OF THE COURT

This Court in the case of ADEFEMI v. ABEGUNDE (2004) ALL FWLR (Pt. 303) 2009 at 2125 per Onnoghen, JCA, (as he then was), stated thus:
“The legal effect of filing the brief of the 3rd-6th Respondents out of time and without an order of this Court extending time to do so is that there is no legally recognizable brief of argument in respect of the 3rd – 6th Respondents in this appeal. This Court cannot look at the purported brief of argument filed on 4/8/03 since it is not properly before the Court, having been filed in the circumstances earlier stated. The said Brief is hereby discountenanced by this Court.”
Applying the above dictum of Onnoghen, (as he then was), this Court in the case of OJIGHO v. MUKORO (2013) LPELR-20871 (CA) discountenanced the Appellants’ Brief in that case and upheld the preliminary objection that there was no Appellants’ Brief in respect of the Appeal. I have no alternative but to come to the same conclusion here, having found in considering the preliminary objection that the Appellants’ Brief is incompetent having been filed out of time and having not been regularized. The effect is that the appeal is ought to be dismissed pursuant to Order 19 Rule 10 (2) of the Court of Appeal Rules, 2016. The further result is that the purpose of the preliminary objection which is to foreclose the further hearing of the appeal, has been achieved. Appeal is dismissed. No order as to costs. PER DANIEL-KALIO, J.C.A.

OBIETONBARA OWUPELE DANIEL-KALIO, J.C.A. (Delivering the Leading Judgment): The appeal here is against the judgment of the Federal High Court (the lower Court) delivered on the 21st day of November, 2013 by I.N. Buba, J. The matter began de novo before the said judge, the Court of Appeal having ordered that it be commenced de novo following the setting aside of the judgment of the earlier trial Judge, Abutu, CJ. The said earlier trial judge had held that the action was statute barred.

The case was commenced by way of an Originating Summons. The 1st-6th Respondents (the Plaintiffs at lower Court), sued for themselves and on behalf of 144 evicted tenants of Eric Moore Towers, Surulere, Lagos. By the said Originating Summons, the said Respondents claimed to be entitled to be offered by, and to pay the Appellants (the 1st, 3rd and 4th defendants at the lower Court), the reserved bidder’s price to purchase the said Eric Moore Towers, under the Federal Government’s Monetization Policy of 2003. The 1st-6th Respondents by their originating summons, sought from the lower Court, a determination of the following questions:
1. Whether the Federal Government’s Monetization Policy of fringe benefits in the Federal Public Service, 2003, was meant to apply to the plaintiffs in the same way it was meant to apply to other public servants.
2. Whether the decision of the defendants not to apply the residential accommodation aspect of the said policy to the plaintiffs is not arbitrary, unreasonable, unfair, inequitable, wrong and unconstitutional.
3. Whether the defendants, in deed, have up until now failed to apply the residential aspect of the said policy with respect to the plaintiffs.
4. What is the correct procedure under the monetization policy aforesaid for the monetization of Federal Government buildings occupied by public servants?
5. Whether if the defendants have not correctly applied the said policy to the plaintiffs, the defendants should not be compelled to correctly apply the said policy to the plaintiffs.
6. Were the defendants right, in view of the Federal Government’s monetization policy of 2003 and other relevant laws, in forcefully evicting the plaintiffs and without statutory notices and procedure?

The Respondents in the hope of positive answers to the above questions, then prayed the lower Court for a slew of reliefs including a declaration that any purported sale, alienation, transfer or lease of the Eric Moore Towers without giving the Respondents the right of first refusal, is in violation of the monetization policy of the Federal Government of Nigeria, 2003 and is invalid; an order compelling the Appellants to accept the application of the 1st-6th Respondents to pay N570,000,000.00 for the Eric Moore Towers and to accept the said money within one year from the date of judgment, or an order granting leave to the Respondents to pay to the Federal Government of Nigeria account within one year from the date of judgment, directly or through the Court, the sum of N570,000,000.00 for the Eric Moore Towers in accordance with the monetization policy of the Federal Government of Nigeria, 2003. Included in the reliefs sought, were also claims for general damages as well as exemplary damages.

After hearing the parties, the learned trial judge I.N. Buba, J, concluded thus:
“Upon a calm assessment of the question for determination reproduced at the inception of this judgment, the affidavit evidence and the reliefs, the Plaintiffs succeed and all the questions are resolved in favour of the Plaintiffs…”

The lower Court proceeded to grant all the reliefs sought.
Upset by the judgment of the lower Court, the Appellants in their Notice of Appeal filed on 4/2/14, sought to have the appeal allowed and the judgment set aside on the following grounds:
i. The learned trial judge erred in law when he failed to make any pronouncement on the Plaintiffs issue 2, that is to say, “Whether if the suit is not statute- barred, the Appellants are entitled to judgment despite the Order of the Court of Appeal in CA/L/660/10 – Mr. D. MAKOLO & 6 OTHERS v. THE MINISTER, FEDERAL MINISTRY OF ENVIRONMENT, HOUSING AND URBAN DEVELOPMENT (UNREPORTED) of the Lagos Court of Appeal on 27th March, 2013 when the matter was remitted back to the Federal High Court to be tried de novo by another judge of that Court.
ii. The learned trial judge erred in law and came to a wrong conclusion when he held that the matter remitted back from the Court of Appeal to be held (sic) de novo by another judge of that Court, is not only part heard but fully heard and therefore shall leave sleeping dogs to lie.
iii. The learned trial judge erred in law and came to a wrong conclusion when he held that the Court was seized of jurisdiction to hear the case.
iv. The learned trial judge misdirected himself on the facts and came to a wrong conclusion when he held that the 1st, 3rd and 4th defendants’ issue 2, that is, whether the action is statute barred has become spent and lifeless and overtaken by events between the 1st, 3rd and 4th defendants and plaintiffs as the issue has already been determined by the Court of Appeal in Suit (sic) No. CA/L/660/10- Mr. D. MAKOLO & 6 ORS v. THE MINISTER, FEDERAL MINISTRY OF ENVIRONMENT, HOUSING AND URBAN DEVELOPMENT (UNREPORTED) of the Lagos Court of Appeal (sic) on 27th March, 2013 which decision is binding on the Federal High Court.
v. The learned trial judge misdirected himself on the facts and came to a wrong conclusion when he held that the Court cannot determine when the cause of action arose.
vi. The learned trial judge misdirected himself and came to a wrong conclusion in law when he held that the Federal Government monetization policy of 2003 was an enforceable contract between the 1st, 3rd and 4th defendants and the plaintiffs.

The above grounds of appeal were accompanied by particulars of the errors complained about in the grounds.
The Appellants’ Brief of Argument was settled by Temitope Atiba, Esq. In it, the following five issues were distilled from the six grounds of appeal, viz:
1. Whether the lower Court had jurisdiction to entertain the matter in view of the express provisions of Section 254 C(1) (a) & (k) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) by the Third Alteration Act, which vests exclusive jurisdiction over the subject matter of this proceedings in the National Industrial Court.
2. Is the Federal Government’s monetization policy on fringe benefits for public servants a justiciable matter that is capable of being enforced before a Court of law by the Respondents?
3. Without prejudice to the outcome of issues (i) & (ii) above, whether the Federal Government’s monetization policy on fringe benefits for public servants constitute a valid and enforceable contract?
4. Whether the public documents attached to the affidavit in support of the Originating Summons were admissible in evidence without compliance with Sections 102 and 104 of the Evidence Act.
5. Whether the 1st -6th Respondents made out a case for the whooping damages of N1,008,000,000.00 (One Billion and Eight Million Naira Only) awarded in their favour by the lower Court.

The above issues were adopted by the 1st-6th Respondents.

The 1st-6th Respondents however filed a Notice of Preliminary Objection which was later amended by an order of this Court of 2/10/15. It was refiled on 9/8/2021. I will now proceed to consider the Preliminary Objection. The usual practice always is to determine the preliminary objection first, so as to know what the next line of action should be. See: ONYEKWULUJE V. ANIMASHAUN & ANOR (1996) 3 SCNJ; GODWIN V. THE APOSTOLIC CHURCH (1998) 12 SCNJ 213; SPDC & ORS V. AGBARA & ORS (2015) LPELR-25987 (SC) 4-5.

The grounds of the Preliminary Objection are the following:
1. The Appellants filed three distinct Notices of Appeal in this appeal without leave of Court to consolidate them into one.
2. The transmission of the Record of Appeal was done contrary to and outside the 60 days granted to the Registrar of the lower Court to do so.
3. The grounds of the multiple notices of appeal filed, are incompetent.
4. The Appellants’ Brief of Argument was filed contrary to and outside the 45 days granted the Appellants to do so by Order 18 Rule 2 of the Court of Appeal Rules, 2011.
5. The formulated issue iv and issue v are outside the grounds of appeal.
6. The Appellants’ issues i-v formulated in the Appellants’ Brief of Argument, amounts to setting up new and fresh issues at the appellate Court without leave of the Court to do so. NJOKU v. STATE (2013) 2 NWLR (Pt. 1339) p. 548.

The 1st – 6th Respondents’ in their Amended Brief of Argument filed on 9/8/2021, formulated the following five issues as arising for determination in relation to the preliminary objection:
1. Whether this appeal is competent when the Appellants filed three notices of appeal without leave of Court to amend and consolidate them.
2. Whether this appeal is not incompetent for the fact that the Registrar of the lower Court compiled and transmitted the Record of Appeal contrary to law; Order 8 Rules 1, 4 & 18 of the Court of Appeal Rules, 2011.
3. Whether the grounds in the Notices of Appeal formulated outside the judgment of the lower Court, are competent.
4. Whether the Appellants’ Brief of Argument filed contrary to, and in total disregard of Order 18 Rule 2 and Order 7 of the Court of Appeal Rules, 2011, is competent for the Court’s consideration.
5. Whether this appeal is competent by setting up new issues re-litigating same issues canvassed at the lower Court.

Arguing issue 1 in the Preliminary Objection which is as to whether the three Notices of Appeal filed are competent, Dr. Daniel Daudu Makolo, Esq. for the 1st-6th Respondents, submitted that the law is that the proper thing to do where there are two or more Notices of Appeal, is to consolidate them. The Appellants having not done so, it was submitted, the multiple notices of appeal are incompetent. The case of OGBORU V. UDUAGHAN (2012) 11 NWLR (Pt. 1311) p. 357 SC was cited in support. Learned Counsel also referred to Order 7 Rule 8 of the Court of Appeal Rules, 2016 and Order 6 Rule 15 of the Court of Appeal Rules, 2011. Learned Counsel submitted that it was held in the case of TUKUR V. UBA (2013) 4 NWLR (Pt. 1343) at p.90 that whenever there are more than one Notice of Appeal filed, more than one Notice of Appeal cannot be used in arguing the appeal. It was contended that the 1st-6th Respondents are at a loss as to which one of the Notices of Appeal is being relied upon by the Appellants and that it makes the Appellants Brief of Argument, incompetent.

On the second issue in the preliminary objection which is whether the appeal is incompetent on account of the Record of Appeal having been compiled and transmitted by the Registrar of the lower Court not in accordance with the rules of this Court, it was contended that by Order 8 Rule 1 of the Court of Appeal Rules, 2011, the Registrar of the lower Court is meant to have compiled and transmitted the Record of Appeal within 60 days of the filing of the Notice of Appeal. The case of A-G OF THE FEDERATION V. BI-COURTNEY LTD (2012) 14 NWLR (Pt.1321) 467 was cited in support. Submitting further, and referring to Order 8 Rule 4 of the said Rules which requires the Appellant to compile and transmit the Record of Appeal where the Registrar of the lower Court fails to do so, it was contended that where the provisions are not complied with, the sanction is one of dismissal of the Appeal. It was contended that from the period of the filing of the Notice of Appeal on 29/11/2013, to when the Record of Appeal was transmitted to this Court on 7/3/2014, is 98 days; a period outside the timelines stipulated in the Court of Appeal Rules. It was therefore submitted that the compilation and transmission of the Record of Appeal done by the Registrar of the lower Court, is incompetent.

With regard to the third issue in the preliminary objection which is whether the grounds in the multiple notices of appeal formulated outside the judgment of the lower Court are competent, learned Counsel referred to the three Notices of Appeal filed on 29/11/2013, 16/1/2014 and on 4/2/2014 respectively and contended that grounds 1 and 2 in the first Notice of Appeal are on questions of law and are lifeless; ditto for grounds 1, 2 and 3 in the second Notice of Appeal. Learned counsel submitted that the issues emanating from those grounds were conclusively decided by the lower Court and by the Court of Appeal in its judgment in Appeal No. CA/L/660/10 delivered on 27/3/2013.

Ground 4 in the second Notice of Appeal, it was contended, is on when the cause of action arose and is an issue being raised for the first time. It was submitted that no leave was sought and obtained before raising it.

With regard to the third Notice of Appeal, it was submitted that Ground 1 in that Notice of Appeal is on the matter before the lower Court being statute-barred, which is a matter that was already decided by the Court of Appeal in Appeal No. CA/L/660/10 earlier referred to.

It was submitted that ground 2 in the third Notice of Appeal is a question of law and is incompetent and lifeless.

Ground 3 in the said Notice of Appeal was not raised at the lower Court and no leave was sought to raise it, and same is therefore, incompetent, it was submitted.
It was contended that Ground 4 in the third Notice of Appeal, is also incompetent; ditto for grounds 5 and 6 in the third Notice of Appeal.

On issue 4 in the Notice of Preliminary Objection, which is on the filing of the Appellants’ Brief of Argument contrary to Order 18 Rule 2 and Order 7 of the Court of Appeal Rules, 2011, it was contended that the Appellants’ Brief of Argument was filed outside the 45 days prescribed by Order 18 Rule 2 of the Court of Appeal Rules, 2011 and no enlargement of time was sought by the Appellants to file the Brief of Argument out of time. It was argued that where the law has specified the mode of doing an act or take a step in proceedings before a Court of law, the mode prescribed must be strictly complied with. The cases of ABUBAKAR V. NASAMU (2012) 17 NWLR (Pt. 523; NWANKWO V. YAR’ ADUA (2010) 12 NWLR (Pt. 1209); BUHARI V. INEC (2008) 4 NWLR (Pt.1078) 546; and ABUBAKAR V. INEC (2004) 1 NWLR (Pt. 854) 207, were cited in support.

On issue five in the preliminary objection which is on the competence of arguing on appeal, a case different from the one at the lower Court, it was submitted that issues 1-5 in the Appellants’ Brief of Argument amount to setting up new and fresh issues on appeal without obtaining leave of Court before doing so. Learned Counsel referred to the issues for determination before the lower Court and the issues for determination in this appeal and submitted that the issues are different. It was submitted that it is recondite that an appeal is generally regarded as a continuation of the suit presented at the lower Court and that a party is not entitled to raise for the first time on appeal, fresh issues, without the leave of Court to do so.

It was submitted that the Appellants entire Brief of Argument do not constitute arguments against the judgment of the lower Court. It was further submitted that grounds of appeal against a decision of the lower Court should constitute a challenge to the ratio decidendi of the decision.

The Appellants responded to the Preliminary Objection in their Reply Brief of Argument filed on 17/10/19. The said Reply Brief was settled by Nwanneamaka Agbo, Esq. The arguments in the said Brief were adopted by M.O. Oso, Esq.
On the filing of three Notices of Appeal, the Appellants’ learned Counsel argued that there is no provision of the law that debars the filling of more than one Notice of Appeal. It was submitted that the Notice of Appeal filed on 11/2/14 is deemed to be the effective Notice of Appeal. It was submitted that the mere fact of filing multiple notices of appeal, does not make an appeal incompetent. The case of YAKI & ANOR V. BAGUDU & ORS (2015) LPELR-25721 (SC) and that of ABIODUN & ORS V. FRN (2013) LPELR-21466 were cited in support. At any rate, the 1st-6th Respondents, it was contended, were duly served with an application to amend the Notice of Appeal dated 4/9/2014. It was contended that the 1st – 6th Respondents by their preliminary objection, seek to shut out the Appellants from regularizing their processes. The Courts, it was argued, have moved away from the era of technicalities to one of dispensing substantial justice. The case of MRS. CELINA MONYE V. ALHAJI SULEIMAN ABDULLAHI (2012) LPELR-20103 (CA) was cited in support. The Appellants, it was contended, do not intend to rely on all the Notices of Appeal: rather, they intend to amend their Notice of Appeal, hence their application to do so.

On the submission that the Registrar of the lower Court compiled and transmitted the Record of Appeal outside the 60 days permitted by Order 8 Rule 1 of the Court of Appeal Rules, 2011, it was submitted that the facts do not bear out the contention of the 1st-6th Respondents. It was submitted that the Notice of Appeal was filed on 4/2/2014 while the Record of Appeal was entered on 7/3/2014, well within time. It was submitted that there is a Certificate by the Registrar of the lower Court which states that the conditions of appeal have been fulfilled in compliance with Order 3 Rule 13 of the Court of Appeal Rules, 2011, which rule is similar to Order 8 Rule 10 of the Court of Appeal Rules, 2016. The said Certificate, it was submitted, takes the wind out of the sails of the argument of the 1st-6th Respondents’. Arguing further, it was submitted that assuming that the Record of Appeal was transmitted out time, it would not affect the validity of the Appeal. The case of A.I. ASSOCIATES & ANOR V. FRN (2014) LPELR-24107 (CA) was cited in support.

On the argument of the 1st-6th Respondents’ learned Counsel that the Appellants’ Brief of Argument was filed out of time, it was submitted, relying on Order 6 Rule 9 of the Court of Appeal Rules 2011, that the filing of a process out of time does not nullify an appeal since the Court can enlarge time to do anything to which the Rules apply except as it relates to the taking of any step or action under Order 16 of the said Rules.

On the argument that the Appellants set up new issues or re-litigated issues, it was submitted that the argument of the 1st – 6th Respondents’ learned Counsel did not challenge the Notice of Appeal, or its competence but rather, challenged the consistency or otherwise of the case of the Appellants at the lower Court and at the Court of Appeal. Such challenge it was submitted, ought not to be taken under a preliminary objection. The case of MICHAEL ODUNZE & ORS V. NWOSU NWOSU & ORS (2007) LPELR-2252(SC) was cited in support. Learned Counsel submitted that the 1st-6th Respondents did not appreciate the distinction between a preliminary objection and a ground of appeal.

On the issue of jurisdiction, it was submitted that an issue of jurisdiction can be raised at anytime and even on appeal. We were urged that the preliminary objection is misconceived and should be struck out.

Now, it is important to understand and appreciate the purpose of a preliminary objection. Its purpose is not to attack every and any error perceived by a Respondent. In some instances, a preliminary objection is not the proper means to attack an error in limine. The proper use of a preliminary objection in an appeal has been properly explained. I find the following explanation by the Supreme Court of its purpose in the case of KLM ROYAL DUTCH AIRLINES V. ALOMA (2017) LPELR-42588 (SC) 6-7 to be quite apt. Said the Supreme Court, per Kekere-Ekun, JSC, in that case:
“The purpose of a preliminary objection is to truncate the hearing of an appeal in limine. It is raised when the Respondent is satisfied that there is a fundamental defect in the appeal that would affect the Court’s jurisdiction to entertain it. Where there are other grounds that could sustain the appeal, a preliminary objection should not be filed. Where the purpose of the objection is merely to challenge the competence of some grounds of appeal, the best approach is by way of a motion on notice. The reason is that the success of the objection would not terminate the hearing of the appeal.”

The issues formulated by the 1st-6th Respondents pursuant to the preliminary objection can be categorized into two. The first has to do with non compliance with the Rules as to time. In this category, the said 1st-6th Respondents complain (1) that the Record of Appeal was not compiled and transmitted within the time prescribed in the Court of Appeal Rules, 2011 and (2) that the Appellants’ Brief was compiled outside the time prescribed in the Court of Appeal Rules, 2011.

The second category is the complaint of the said 1st-6th Respondents with respect to the propriety of some of the grounds of appeal.

With regard to the first category, and with particular reference to the argument that the Record of Appeal was not compiled and transmitted within time, I find that the argument is not made out. This is because the Notice of Appeal relied upon was filed on 4/2/14: see at page 513 of the Record of Appeal, and the Record of Appeal was transmitted to this Court on 7/3/14; a space of about 31 days or thereabouts. That is a period well within the period stated in the Rules of the Court for the compilation and transmission of the Record of Appeal by the Registrar of the lower Court under the Court of Appeal Rules, 2011. Assuming even that the Record was not compiled and transmitted within time, the Rules of Court permit the regularization of processes as the Court of Appeal Rules provide that the Court may enlarge the time provided by the Rules for the doing of anything to which the Rules apply except as it relates to the taking of any step or action under Order 16.
It has to be said that the Courts are not out to punish mere blunders. The dictum of Thesiger L.J in the case of COLLINS V. VESTRY OF PADDINGTON (1880) 5 QBD p. 380-381 is germane on this point. The dictum was adopted in the case of BENDEL CONSTRUCTION CO. (NIG) LTD (1972) 1 ALL NLR Part 1 p. 153 at 158. Said Thesiger L.J.
“….I agree that until a judgment has been arrived upon the merits, an extension of time may be allowed for rectifying a mistake or oversight. Up to that time, both parties may be considered as standing upon an equal footing: the questions between them are still open, and it is doubtful which of their opposing contentions is correct: each party has a right to have the dispute determined upon the merits, and Courts should do everything to favour the fair trial of the questions between them. Blunders must take place from time to time, and it is unjust to hold that because a blunder during interlocutory proceedings has been committed, the party blundering is to incur the penalty of not having the dispute between him and his adversary determined upon the merits. All such cases of blunder may be remedied by payment of costs or the imposition of terms and conditions.”
The above quote is the correct disposition of the Courts, particularly as to blunder requiring a thing to be done within prescribed times in Rules of Court. Learned Counsel need not be unnecessarily fastidious about blunder with regard to the time set out in Rules of Court for doing a thing except the Rules themselves insist that a particular timeline is sacrosanct. After all, the complaining party can be compensated with costs in deserving cases. ‘Even Homer nods’ is an English idiom which alludes to the Greek poet Homer. It indicates that even the most scrupulous person can fall victim to mistakes and errors. The Latin expression is quandoque bonus dormitat Homerus which translated is “Even good old Homer nods”. The law too recognizes this, hence the Court of Appeal Rules with regard to applications for extension of time.

With regards to the filing of the Appellants’ Brief of Argument out of time, it is surprising that the Appellants made no move to file a motion on notice for an extension of time to file their Brief of Argument out of time, seeing that their Appellants’ Brief was filed out of time, having been filed about a year after the Record of Appeal was transmitted. Order 18 Rule 2 of the Court of Appeal Rules 2011, requires that the Brief be filed within 45 days of the receipt of the Record of Appeal. Where no Brief is filed within the time provided in Rule 2 of Order 18, there are serious consequences as the Respondent may apply for the dismissal of the appeal for want of prosecution. Since the Appellants did not file their Brief of Argument within time and the Appellants’ Brief filed out of time has not been regularized, the Appellants Brief is incompetent. The said Appellants’ Brief is therefore discountenanced.

As regarding the second category of argument in the Preliminary Objection, to wit, complaints against some grounds in the Notice of Appeal, as stated by the Supreme Court in KLM ROYAL DUTCH AIRLINES V ALOMA (supra), where there are other grounds in a Notice of Appeal apart from the grounds of appeal complained about in the preliminary objection, the preliminary objection cannot succeed since those other grounds can be considered in the determination of the appeal. Since the grouse of the 1st-6th Respondents is not predicated on alleged incompetence of all the grounds of the appeal the proper thing should have been to approach the Court by way of a motion on notice.

From my consideration of the preliminary objection, it succeeds in part. This is because the Appellants’ Brief was filed out of time, and same was not regularized. The effect on the competence of the Appellants’ Brief is grievous.
This Court in the case of ADEFEMI v. ABEGUNDE (2004) ALL FWLR (Pt. 303) 2009 at 2125 per Onnoghen, JCA, (as he then was), stated thus:
“The legal effect of filing the brief of the 3rd-6th Respondents out of time and without an order of this Court extending time to do so is that there is no legally recognizable brief of argument in respect of the 3rd – 6th Respondents in this appeal. This Court cannot look at the purported brief of argument filed on 4/8/03 since it is not properly before the Court, having been filed in the circumstances earlier stated. The said Brief is hereby discountenanced by this Court.”
Applying the above dictum of Onnoghen, (as he then was), this Court in the case of OJIGHO v. MUKORO (2013) LPELR-20871 (CA) discountenanced the Appellants’ Brief in that case and upheld the preliminary objection that there was no Appellants’ Brief in respect of the Appeal. I have no alternative but to come to the same conclusion here, having found in considering the preliminary objection that the Appellants’ Brief is incompetent having been filed out of time and having not been regularized. The effect is that the appeal is ought to be dismissed pursuant to Order 19 Rule 10 (2) of the Court of Appeal Rules, 2016. The further result is that the purpose of the preliminary objection which is to foreclose the further hearing of the appeal, has been achieved. Appeal is dismissed. No order as to costs.

MUHAMMAD IBRAHIM SIRAJO, J.C.A.: I have read in draft the lead judgment just delivered by my learned brother, Obietonbara O. Daniel-Kalio, JCA. I agree with his reasoning and conclusion that the appeal be dismissed for want of Appellant’s Brief of Argument.

Order 19 Rule 2 of the Court of Appeal Rules, 2021, which is in pari materia with the provision of Order 18 Rule 2 of the Court of Appeal Rules, 2011, mandates an Appellant to file his Brief of Argument within 45 days of the transmission of Record of Appeal by the lower Court. Where an Appellant files his Brief of Argument outside the time prescribed by the Rules, without enlargement of time first sought and obtained, the said Brief will be incompetent for non-compliance with the Rules. The Appellant’s Brief in the instant appeal filed outside 45 days after the receipt of the Record of Appeal from the lower Court without an order extending time for the Appellant to do so, is clearly in contravention of the Rules of this Court, rendering the appeal bereft of a competent Brief. On this score alone, the preliminary objection succeeds. For this reason and the fuller reasons in the lead judgment, I also dismiss the appeal.

ADEBUKUNOLA ADEOTI IBIRNOKE BANJOKO, J.C.A.: I had read through the draft copy of the judgment just delivered by my learned brother, OBIETONBARA O. DANIEL-KALIO, JCA, and found that he resolved all the issues involved in this Appeal properly.

Where an Appellant failed to file his Brief of Argument within the time allowed by the Rules of Court, or fails to apply for extension of time to file his Brief, the Court has no discretion but to dismiss the Appeal. Such a dismissal is a dismissal on the merit. See SPDC (NIG) LTD & ORS VS AGBARA & ORS (2020) LPELR-52233(SC): MMUODILI & ORS v. ONWUBA & ORS (2020) LPELR-55917(SC).
Premised on the foregoing and the careful analysis done by learned brother, it is clear that the Appellant filed the Appellant’s Brief outside the stipulated period, this Appeal therefore has no other fate than to be dismissed. I hereby also dismiss this Appeal for being abandoned.