MRS. FOLAKE OLALEYE v. THE GOVERNOR OF OYO STATE & ANOR.
(2010)LCN/3723(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 21st day of April, 2010
CA/I/M.43/2007
RATIO
APPEAL: TIMEFRAME FOR FILING APPEAL
Order 17 Rule 2 of the Court of Appeal Rules, 2007 provides:-
”The Appellant shall within forty-five days of the 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 appeal.” PER SIDI DAUDA BAGE, J.C.A.
COURT: HOW SHOULD THE GRANT OF EXTENSION OF TIME BE EXERCISED
Also, the grant of extension of time is an exercise of discretion on the part of the Court, depending on the reasons advanced for the failure of the Applicant to file within the time allowed by the law. PER SIDI DAUDA BAGE, J.C.A.
INTERPRETATION: HOW SHOULD AN ENACTMENT BE CONSTRUED
I only need to add that, in construction of statute or instrument, the law is that, every word or clause in an enactment, must be read and construed together not in isolation, but with reference to the con and other clauses in the statute in order, as much as possible, not only to read a proper legislative intention, but also to make a consistent meaning of the whole statute. See:- Oyeyemi Vs. Commissioner for Local Government (Kwara State) (1992) 2 SCNJ 266 At 280; Astra Industry Nig. Ltd. Vs. N.B.C.I. (1988) 3 SCNJ 97 At 115; Peoples Industry Nig. Ltd. Vs. N.B.C.I. (1988) 3SCNJ 97 At 115; Peoples Democratic Party Vs. Independent National Electoral Commission (1999) 11 NWLR (Pt.626) 200; E.T. & E.C. Nig. Ltd Vs. Nevico International Ltd. (2004) 3 NWLR (Pt.860) 327; Monier Construction Co. Ltd. Vs. Tobias. I. Azubuike (1990) 3 NWLR (Pt.136) 74. PER SIDI DAUDA BAGE, J.C.A.
JUSTICES
STANLEY SHENKO ALAGOA Justice of The Court of Appeal of Nigeria
SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria
MODUPE FASANMI Justice of The Court of Appeal of Nigeria
Between
MRS. FOLAKE OLALEYE Appellant(s)
AND
(1) THE GOVERNOR OF OYO STATE
(2) ATTORNEY GENERAL OYO STATE Respondent(s)
SIDI DAUDA BAGE, J.C.A. (Delivering The Leading Ruling): On the 16th of March, 2010, when this matter was called up for the hearing of the Motion on Notice, learned Counsel to the Appellant/Applicant, Babatunde A. Aiku, Esquire, moved the Court on his motion dated 25th June, 2009, but filed on the 5th of August, 2009. The motion which was brought under Order 7 Rules 1 and 10; Order 8 Rule 20; Order 17 Rules 10 and 11; Order 19 Rule 3 of the Court of Appeal Rules 2007, and under the inherent jurisdiction of this Court.
The learned Counsel on behalf of the Appellant/Applicant had sought for the following orders:-
(i) An Order to restore appeal No.CA/1/43/2001 dismissed on 23rd June, 2009;
(ii) An Order extending the time within which to file and serve Appellant’s Brief of Argument; and
(iii) An Order to deem as properly filed and served the Appellant’s Brief of Argument already filed and served therein.
Learned Counsel to the Appellant/Applicant had sought reliance on the facts deposed to in Paragraphs 4, 5, 6, 7 and 8 of the Affidavit in support of the Motion on Notice. The said paragraphs relied upon are reproduced as follows:
Paragraph 4:-
On 23rd June, 2009 when this appeal came up before this Honourable Court for dismissal, pursuant to a notice of dismissal issued by the registry of this Honourable Court, my senior colleague in chambers, Babatunde A. Aiku Esquire, who appeared for the Appellant, informed me and I verily believe him that:-
(i) this appeal was dismissed on 23rd June, 2009, inspite of the fact that the Appellant’s Brief of Argument dated 18th May, 2009 but filed on 25th May, 2009 out of time was in the Court’s File;
(ii) the Respondent’s Counsel was served with a copy of the said Brief of Argument without protest;
(iii) the Respondents did not file an application praying for an order to dismiss this appeal for want of prosecution;
(iv) this Honourable Court dismissed the appeal for failure of the Appellant’s Counsel to file an application for extension of time within which to file the Appellant’s Brief of Argument inspite of the undertaking to file an application for extension of time to regularize the Appellant’s position by my senior in chambers;
(v) the appeal was not yet ripe for hearing; and
(vi) the rules of this Honourable Court do not make provision for dismissal of an appeal by this Honourable Court suo motu.
Paragraph 5:
Babatunde A. Aiku Esq., of Counsel, had at all material times prepared and settled the Appellant’s Brief of Argument but same could not be filed when there was difficulty in locating the case file to confirm the appeal number assigned to the appeal.
Paragraph 6:
The failure of Counsel to prepare and file an application for extension of time within which to file the Appellant’s Brief of Argument was not out of disrespect for this Honourable Court, but due to inadvertence on the part of Counsel and inability to locate the case file in the registry of this Honourable Court and confirmation of appeal number before the appeal was listed for dismissal.
Paragraph 7:
The Appellant/Applicant is serious and desirous of prosecuting this appeal which involves payment of salary, allowances, other entitlements and unlawful removal from office to its reasonable conclusion.
Paragraph 8:
I verily believe that:-
(i) failure to file this application timeously is as a result of the impecuniousity of the Appellant/Applicant who was removed from office at the end of May, 2003 and has since been jobless;
(ii) the grounds of appeal contained in the Notice of Appeal are substantial and arguable;
(iii) the interest of justice will be better and more expeditiously seemed if this application is granted and the appeal herein is restored with a view to determining same on its merit;
(iv) it is necessary in the circumstances to regularise the Appellant’s position; and
(v) the Respondents will not be prejudiced if this application is granted.
From the facts deposed to by the Appellant/Applicant in the paragraphs of his affidavit which accompanied his Motion on Notice, he admitted having filed his Notice of Appeal earlier on, but did not file the Appellant’s Brief of Argument dated 18th May, 2009 until the 25th May, 2009. The record of this Court showed that, the Notice of Appeal was filed in this Court on the 28th December, 2006. The only reason given by the learned Counsel to Appellant as being responsible for the late filing of the Appellant’s Brief of Argument was the impecuniousity of Appellant been out of job since the end of May of 2003. As a Court of law, this Court is strictly guided by its Rules.
Order 17 Rule 2 of the Court of Appeal Rules, 2007 provides:-
”The Appellant shall within forty-five days of the 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 appeal.”
From the date of the receipt of the Record of Appeal in this Court on the 28th December, 2006, to the time the Appellant filed his Brief of Argument on the 25th of May, 2009, allowing the 45 days given to the Appellant by the Rules of this Court, the Appellant was out of time for 2 years, 4 months and 13 days. The Appellant, despite the clear provision of the Rules, went ahead to file the Brief of Argument at the time he did without regularizing his position properly. The learned Counsel to the Appellant at paragraph 6 of the accompanying affidavit admitted that the failure of the Counsel to prepare and file an application for extension of time within which to file the Appellant’s Brief of Argument was not out of disrespect for this Court, but due to inadvertence on the part of Counsel and inability to locate the case file in the registry of this Court and confirmation of the appeal number before the appeal was listed for dismissal. The Appeal was dismissed by Court under Order 17 Rule 10, Court of Appeal Rules, 2007 on the 23rd of June, 2009 for lack of diligent prosecution of the appeal. The learned Counsel to the Appellant was not satisfied with this Court’s order, dismissing the appeal and depose to certain facts in paragraph 4 of the accompanying affidavit to show his dissatisfaction.
By paragraph 4, (i) when the appeal was dismissed on the 23rd June, 2009, the Appellant’s Brief of Argument dated 18th May, 2009 but filed on 26th May, 2009 out of time was in the Court’s file, (ii) the Respondent’s Counsel was served with a copy of the said Brief of Argument without protest, (iii) the Respondents did not file an application praying for an Order to dismiss this appeal for want of prosecution, (iv) this Court dismissed the appeal for failure of the Appellant’s Counsel to file an application for extension of time within which to file the Appellant’s Brief of Argument inspite of the undertaking to file an application for extension of time to regularize the Appellant’s position by senior in chambers, (v) the appeal was not yet ripe for hearing and (vi) the rules of this Court do not make provision for dismissal of an appeal by this Court suo motu.
Learned Counsel to the Appellant had stated that this Court dismissed the appeal despite the undertaking by the senior counsel who was in to file an application for extension of time to regularize the Appellant’s position. Tayo Awoniran, Legal Practitioner who deposed to this affidavit was not in Court on the 23rd June, 2009, when this appeal came up before this Court for dismissal. She has not stated whether the undertaking made by the senior counsel was written or oral. From the record of the Court, no such undertaking was made before the Court on the 23rd June, 2009. The fact of such undertaking can at best be regarded as a mere hearsay which has no effect in law.
Also, whether it is a pre-condition for the Respondent to make an application before the Court moving it to exercise its power under Order 17 Rule 10 of the Court of Appeal Rules 2007, and that the Court cannot exercise such power suo motu, unless it is so moved. This Court suo motu dismissed the appeal under Order 17 Rule 10, Court of Appeal Rules 2007.
For the purposes of clarity, it is necessary to set out the provisions of that Order.
Order 17 Rule 10, Court of Appeal Rules 2007 provides:-
“where an Appellant fails to file his Brief within the time provided 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…”
First of all, Rule 10 of Order 17 must be read in conjuncture with Rule 2 of the same Order to get to the real intention of the drafters of the Rule. Rule 10 is made subject to Rule 2. Under Rule 2, the Appellant shall within forty five (45) days of the receipt of Record of Appeal from the Court below, file in the Court, a written Brief. The word ‘shall’ is used which connotes mandate. Under Rule 10, where the 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 Respondent may apply to the Court for the appeal to be dismissed for want of prosecution. The word ‘may’ is used here which makes it optional. There is no way that the effect of Rule 10 can be appreciated unless it is read conjunctively with Rule 2. The word ‘shall’ used – no doubt, it is the Court that must ensure its compliance by the parties to an appeal. Also, the grant of extension of time is an exercise of discretion on the part of the Court, depending on the reasons advanced for the failure of the Applicant to file within the time allowed by the law. It is my own view that this Court acted correctly as it did by dismissing the appeal, despite the fact that Appellant had filed his Brief, 2 years 4 months and 13 days, after the receipt of the Record of Appeal and without any application accompanying the filing of Appellant’s Brief clearly outside the time allowed by the rules of this Court.
I only need to add that, in construction of statute or instrument, the law is that, every word or clause in an enactment, must be read and construed together not in isolation, but with reference to the con and other clauses in the statute in order, as much as possible, not only to read a proper legislative intention, but also to make a consistent meaning of the whole statute. See:- Oyeyemi Vs. Commissioner for Local Government (Kwara State) (1992) 2 SCNJ 266 At 280; Astra Industry Nig. Ltd. Vs. N.B.C.I. (1988) 3 SCNJ 97 At 115; Peoples Industry Nig. Ltd. Vs. N.B.C.I. (1988) 3SCNJ 97 At 115; Peoples Democratic Party Vs. Independent National Electoral Commission (1999) 11 NWLR (Pt.626) 200; E.T. & E.C. Nig. Ltd Vs. Nevico International Ltd. (2004) 3 NWLR (Pt.860) 327; Monier Construction Co. Ltd. Vs. Tobias. I. Azubuike (1990) 3 NWLR (Pt.136) 74.
Also to add that the Brief of Argument of the Appellant filed out of time and without an application for extension of time to regularize it had no effect in law. Where a statute provides a period within which an action must be commenced, legal proceedings cannot be commenced after the expiration of the prescribed period. An action instituted after the period stipulated in the statute is not maintainable. A claimant who might have a cause of action looses the right to enforce it by judicial process. See:- Eboigbe Vs. N.N.P.C. (1994) 5 NWLR (Pt.347) 649 At 658 and 659 D-E; Odubeko Vs. Fowler (1993) 7 NWLR (Pt.308) 637; Oke Vs. Oke (2006) 4 NWLR (Part 1008) 224 at 242.
Also, the Appellant/Applicant had prayed this Court in his Motion on Notice dated 5/08/2009 and filed same day that, in the interest of justice this application be granted and the appeal herein restored with a view to determining same on its merit. It is pertinent to state here that, at the time Court made that Order on the 23/06/2009, it was neither misled nor the Issues before it were misrepresented. The Order made by the Court in dismissing the appeal under Order 17 Rule 10 of the Court of Appeal Rules 2007, was a valid and subsisting order. This Court cannot set aside a valid and subsisting order made by it. The only option left for the Appellant/Applicant is to appeal to the Supreme Court against the Order made by this Court.
Lastly, let me state that, this Court can only review or set aside a valid order given by it only in accordance with the provisions of Order 18 Rule 4 of the Court of Appeal Rules, 2007 which provides:-
”The Court shall not review any judgment once given and delivered by it save to correct any clerical mistake or some error arising from any accidental slip or omission, or to vary the judgment or order so as to give effect to its meaning or intention. A judgment or order shall not be varied when it correctly represents what the Court decided nor shall the operative substantive part of it be varied and a different form substituted.”
On the whole therefore, the Motion on Notice of the Appellant/Applicant dated and filed the 25th of June, 2009, is hereby refused by this Court. It is dismissed.
STANLEY SHENKO ALAGOA, J.C.A. I read before now the ruling just delivered by my brother S. D. Bage, J.C.A. that the application dated the 25th June 2009 and filed same day lacks merit and should be refused. I am entirely in agreement with the reasons therein given and I refuse same.
MODUPE FASANMI, J.C.A I read before now the ruling just delivered by my learned brother S. D Bage, J.C.A.
I entirely agree with the decision arrived at in holding that the application lacks merit. The application is accordingly refused.
Appearances
Babatunde AikuFor Appellant
AND
Absent.For Respondent
