MRS. FOLASHADE OMOLARA & ORS V. MR. AYINDE OLADELE & ORS
(2011)LCN/4346(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 1st day of March, 2011
CA/I/158/2008
RATIO
INTERPRETATION OF STATUTE: PROVISION OF ORDER 17 RULE 10 OF THE COURT APPEAL RULES AS IT RELATES TO CONSEQUENCE OF THE FAILURE OF THE APPELLANT TO FILE HIS BRIEF WITHIN THE TIME PROVIDED FOR IN RULE 2 OF THIS ORDER, OR WITHIN THE TIME AS EXTENDED BY THE COURT
It is clear from Exhibit “8” (supra) that the dismissal of the appeal was based on the failure of the appellants to file their brief of argument under order 17 rule 10 is a replica of the former order 6 rule 10 of the Court of Appeal Rules, 2002 to this effect: “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. If the respondent fails to file his brief, he will not be heard in oral argument. Where an appellant fails to file a reply brief within the time specified in Rule 5, he shall be deemed to have conceded all the new points or issues arising from the respondent’s brief.” (my emphasis). PER JOSEPH SHAGBAOR IKYEGH, J.C.A.
CONSEQUENCE OF THE DISMISSAL OF AN APPEAL FOR FAILURE OF THE APPELLANT TO FILE HIS BRIEF OF ARGUMENT
It was held by the Supreme Court in the fairly recent case of First Bank of Nigeria Plc. V. T.S.A. Industries Limited (2010) 38 WRN Page 1, that such 9 dismissal is a decision under the then Order 5 rule 3 of the Court of Appeal Rules, 2002, now order 18 rule 4 of the rules of this Court which provides: “Review of judgment 4 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.” The Supreme Court went ahead to hold in the thorough lead judgment of Adekeye, J.S.C; at pages 59 to 60 of the First Bank of Nigeria Plc case (supra) that: “In the case of Olowu v. Abolore (1993) 5 NWLR (Pt.293) 255 at 270; (1993) 6 SCNJ (Pt.1) 15, per Karibi-Whyte, JSC (as he then was) said: “After deciding a matter before it, the Court of Appeal becomes functus officio and lacks jurisdiction to deal with the matter. This is essentially because the court cannot sit on appeal on its own decisions, having not been vested with any power so to do. The constitutional and statutory jurisdiction of the Court of Appeal is not to hear appeals from the lower court. Thus having finally decided a case before it becomes functus officio as to that case.” In effect when a Court of Appeal dismisses an appeal before it under order 6 rule 10 of its rules 2002, that decision is a final decision, the Court of Appeal thereafter becomes functus officio and the Court of Appeal cannot re-list or re-enter such an appeal on its cause list. In the case of Kraus Thompson Organisation v. NIPSS (2005) 10 WRN 127; (2004) 17 NWLR (Pt. 901) 44 at 59 the Supreme Court expatiated further on this by saying that: “When an appeal is dismissed under order 6 rule 10 of the Court of Appeal Rules, its life it is therefore removed from the court has jurisdiction to revive or resuscitate it.” Asalu v. Dakan (2006) All FWLR (Pt. 325) 90, Babayagi v. Bida (1998) 2 NWLR (Pt. 538) 367. INEC & 438 Ors. v. Prince Chijioke B. Nnaji & Anor. (2004) 16 NWLR (Pt. 900) 473 at 482. The phrase functus officio means: “A task performed, fulfilling the discharging the office or accomplishing the purpose and thereby becoming of no further force or authority,” A court is said to be functus officio in respect of a matter if the court has fulfilled or accomplished its function in respect of that matter and it lacks potency to review, re-open or re-visit the matter. Once a court delivers its judgment on a matter, it cannot re-visit or review the said judgment except under certain conditions. More importantly, a court lacks jurisdiction to determine an issue when it is functus officio in respect of the issue or where the proceedings relating to the issue is an abuse of court process. Ukachukwu v. Uba (2005) 18 NWLR (Pt.956) 1, Anyaegbunam v. A-G. Anambra State (2001) 6 NWLR (Pt.710) 532, Mohammed v. Husseini (1998) 14 NWLR (Pt.584) 108. In the case of UBA Plc. v. Michael Ajileye (1999) 3 NWLR (Pt.633) 166 at 123, the Court of Appeal went a step further in respect of the effect order 6 rule 10 on an appeal struck out that: “Any order setting aside the dismissal can only be entertained by way of appeal to the Supreme Court as provided under section 233(1) of the 1999 Constitution.” In the case of Omoyinmi v. Oganiyi (2001) 10 NWLR (Pt.711) 149 held that: “The consequence is that the dismissal of an appeal for failure to file appellant’s brief under order 6 rule 10 is final decision and the only cause open to a party adversely affected thereby is that of appeal to the Supreme Court. Whether the dismissal of the appeal was wrongly made by this court, as the applicants endeavoured to ventilate in their affidavit evidence (supra) and the submissions of their learned counsel (supra), this court is, regrettably, handicapped or functus officio to review or revisit the said decision, only the Supreme court may intervene in such circumstances. See also the concurring judgment of Muntaka – Coomassie, J.S.C., at page 71 of the First Bank of Nigeria plc case (supra): “Where an appeal is dismissed under the provision of order 6 rule 10 of the Court of Appeal Rules, 2002, herein call rules, the general consensus of judicial pronouncement is that such an appeal cannot be revisited nor relisted. The only remedy open to such an appellant is to appeal to this court being the court having the appellate jurisdiction over the decisions of the court of Appeal, See Krauns Thompson Organisation v. NIPSS (2005) 10 WRN 127; (2004) 17 NWLR (Pt.601) 44 at 59, Asalu v. Dakan (2006) All NWLR (Pt. 325) 90. In Omoyinmi v. Ogunsiji (2001) 10 NWLR (Pt.711) 149. It was held as follows: “….The consequence is that the dismissal of an appeal for failure to file appellant’s brief under order 6 rule 10 is a final decision and the only cause open to a party adversely affected thereby is that of appeal to the Supreme Court …..” Per Tabai, JCA as he then was. PER JOSEPH SHAGBAOR IKYEGH, 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
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
Between
1. MRS. FOLASHADE OMOLARA
2. MR. ADE OLUSEGUN AKANNI
3. MR. OLAKUNLE OLUSEGUN AKANNI Appellant(s)
AND
1. MR. AYINDE OLADELE
2. MRS. AJIMOH OLADELE
3. MR. RAMONI LAWAL Respondent(s)
JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the Lead Ruling): By a motion on notice dated 11.3.2010, and filed on the same date, the applicants prayed for:
“An order setting aside the order dismissing this appeal and restoring on the Appeal List, Appeal No: CA/I/158/2008, Mrs. Folashade Omolara and Ors. v. Mr. Ayinde Oladele and Ors which was dismissed on the 4th day of June, 2009 for want of diligent prosecution.
And for such further or other orders as Honourable court may deem fit to make in circumstances of this case.”
Mr. Emehin of learned counsel for the applicants relied on an affidavit of 21 paragraphs deposed to by one Gbemisola Agbaje, a litigation clerk in his law office, to submit in support of the application that his ill-health disclosed in Exhibit ‘A’, the medical certificate, attached to the motion paper caused his absence in court which resulted to the dismissal of the appeal for want of diligent prosecution by this court on 4.6.2009. He placed particular emphasis on paragraphs 8, 9, 13 to 19 of the affidavit to contend that the failure of the applicants to file their brief of argument was occasioned by the demise of their father which put the polygamous family into disarray; that the applicants have overcome the family disunity and are now prepared to prosecute the appeal, if relisted.
Learned counsel for the applicants also submitted that the appellants had a pending motion to file additional grounds of appeal at the time the appeal was dismissed without formal application from the respondents; and that the respondents would lose nothing if the appeal is relisted. He urged for the application to be granted.
The respondents resisted the application with a counter affidavit of 14 paragraphs deposed to by the 3rd respondent on 25.5.2010. Their learned counsel, Mrs. Aiyedun, relied on the contents of the counter affidavit with stress on paragraphs 4 to 11 thereof to contend that the applicants have not shown interest in the prosecution of the appeal since its dismissal on 4.6.2009, as they did not compile and serve the record of appeal on the respondents, nor did the applicants file their brief of argument alongside the present motion to demonstrate their seriousness towards the prosecution of the appeal.
The respondents’ learned counsel also contended that this court lacks the powers to relist an appeal dismissed for want of diligent prosecution placing reliance on the case of Ali v. Ayinde (2010) All FWLR (Pt.540) 136.
Respondents’ learned counsel contended further that there is no proper application before the court as the case number of the dismissed appeal was retained on the present motion, therefore the motion should be dismissed.
It is pertinent to reproduce the salient paragraphs of the affidavit relied upon by the applicants in this application:
“8. That on that day he was hospitalized and the medical report of his state of health is herein as Exhibit ‘A’
9. That the appeal was struck out for want of diligent prosecution. The enrolment of order is attached herein as Exhibit ‘B’
13. That the Folashade estate which is now the land in dispute in this case/Appeal belong to their father who had built up the estate and took in tenants.
14. That the late husband/father of the Appellants had developed the estate with infrastructures and obtained a certificate of occupancy over the land since 1987.
15. That the Respondents herein want to take over the estate which the father of the Appellants had labored and toiled all his life to build.
16. That the delay in filing the appellants brief of argument is due to the death of the Appellants’ father i.e. the original first defendant in this case which threw the entire family into disarray under a polygamous family arrangement leaving the family with no discernible leader.
17. That an earlier application dated 20th October, 2009 but filed on the 21st day of October, 2009 was struck out because the order striking out the appeal was not exhibited.
18. That the Appellants/Applicants intend to prosecute the appeal to its logical conclusion.”
The respondents, on the other hand, stressed paragraphs 4 – 11 of their counter affidavit in their bid to oppose the application. For ease of reference, the said paragraphs of the counter affidavit deposed:
“4. That the appeal sought to be re-listed was dismissed on the 4th of June, 2009.
5 That the Appellants/Applicants are not ready to prosecute this appeal if relisted.
6. That the appeal to be restored was dismissed for want of diligent Prosecution.
7. That the Appellants/Applicant has not shown or taken step to show their readiness in prosecuting this appeal.
8. That the Appellants/Applicants have did not file any propose Brief of Argument along with their application to restore.
9. That the Appellants/Applicants have also not serve the Respondent the record of Appeal for the Respondent to act upon if the appeal is restored.
10. That the Appellant/Applicant has been using various means to frustrate and prevent the Respondents from reaping the fruit of their labour.
11. That it is not true that the delay in filing this appeal was due to the death of the father of the Appellants/Applicants because the father died in 2003 before the determination of the suit at lower court in year 2007.”
The order of this court dismissing the appeal is contained in Exhibit “8”, the certified true copy of the proceedings of this court on 4.6.2009, which was attached to the applicants’ motion paper, For ease of reference, the body of Exhibit “B” is copied below:
IN THE COURT OF APPEAL
HOLDEN AT IBADAN
ON MONDAY THE 4TH OF JUNE, 2009
JUSTICES
HON. JUSTICE C. N. UWA. JUSTICE COURT OF APPEAL
HON. JUSTICE DAUDA BAGE JUSTICE COURT OF APPEAL
HON. JUSTICE MODUPE FASANMI JUSTICE COURT OF APPEAL
APPEAL NO. CA/I/158/2008
PARTIES FARONA O. AKANNI & ORS.
vs.
AYINDE OLADELE & ORS.
1st Respondent present.
A.K. AIYEDUN (MRS.) for the Respondents.
Appellant was served a hearing notice on 28/5/2009.
There is an application filed by the Appellant/Applicants dated 26/5/2009 filed on 28/5/2O09 for leave to amend Notice of Appeal by filling additional grounds of appeal as per his Exhibit ‘A’- the motion paper.
MRS. AIYEDUN applies that we dismiss the application for lack of deligent prosecution and this is yet to be served with the record of Appeal.
COURT: The appellant/Applicant is not here to move his application dated 26/5/2009 filed on 28/5/2009 serve is struck out for want of deligent prosecution.
The notice of appeal was filed on 13/12/2007 till date no brief has been filed, same is dismissed pursuant to Order 17 Rules 10 of the Rules of Court with N30, 000.00 cost to the Respondent.
SGD.
HON. JUSTICE CHIDI N. UWA
JUSTICE, COURT OF APPEAL
4/6/2009.”
(my emphasis)
It is clear from Exhibit “8” (supra) that the dismissal of the appeal was based on the failure of the appellants to file their brief of argument under order 17 rule 10(4) of the Court of Appeal Rules, 2007. The said order 17 rule 10 is a replica of the former order 6 rule 10 of the Court of Appeal Rules, 2002 to this effect:
“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. If the respondent fails to file his brief, he will not be heard in oral argument. Where an appellant fails to file a reply brief within the time specified in Rule 5, he shall be deemed to have conceded all the new points or issues arising from the respondent’s brief.” (my emphasis).
The consequence of the dismissal of an appeal under order 17 rule 10(a) of the Rules of this Court (supra) shall be gauged before any consideration of the merits or otherwise of the affidavit evidence may be delved into. It was held by the Supreme Court in the fairly recent case of First Bank of Nigeria Plc. V. T.S.A. Industries Limited (2010) 38 WRN Page 1, that such 9 dismissal is a decision under the then Order 5 rule 3 of the Court of Appeal Rules, 2002, now order 18 rule 4 of the rules of this Court which provides:
“Review of judgment
4 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.”
The Supreme Court went ahead to hold in the thorough lead judgment of Adekeye, J.S.C; at pages 59 to 60 of the First Bank of Nigeria Plc case (supra) that:
“In the case of Olowu v. Abolore (1993) 5 NWLR (Pt.293) 255 at 270; (1993) 6 SCNJ (Pt.1) 15, per Karibi-Whyte, JSC (as he then was) said:
“After deciding a matter before it, the Court of Appeal becomes functus officio and lacks jurisdiction to deal with the matter. This is essentially because the court cannot sit on appeal on its own decisions, having not been vested with any power so to do. The constitutional and statutory jurisdiction of the Court of Appeal is not to hear appeals from the lower court. Thus having finally decided a case before it becomes functus officio as to that case.”
In effect when a Court of Appeal dismisses an appeal before it under order 6 rule 10 of its rules 2002, that decision is a final decision, the Court of Appeal thereafter becomes functus officio and the Court of Appeal cannot re-list or re-enter such an appeal on its cause list.
In the case of Kraus Thompson Organisation v. NIPSS (2005) 10 WRN 127; (2004) 17 NWLR (Pt. 901) 44 at 59 the Supreme Court expatiated further on this by saying that:
“When an appeal is dismissed under order 6 rule 10 of the Court of Appeal Rules, its life it is therefore removed from the court has jurisdiction to revive or resuscitate it.”
Asalu v. Dakan (2006) All FWLR (Pt. 325) 90, Babayagi v. Bida (1998) 2 NWLR (Pt. 538) 367. INEC & 438 Ors. v. Prince Chijioke B. Nnaji & Anor. (2004) 16 NWLR (Pt. 900) 473 at 482.
The phrase functus officio means:
“A task performed, fulfilling the discharging the office or accomplishing the purpose and thereby becoming of no further force or authority,”
A court is said to be functus officio in respect of a matter if the court has fulfilled or accomplished its function in respect of that matter and it lacks potency to review, re-open or re-visit the matter. Once a court delivers its judgment on a matter, it cannot re-visit or review the said judgment except under certain conditions. More importantly, a court lacks jurisdiction to determine an issue when it is functus officio in respect of the issue or where the proceedings relating to the issue is an abuse of court process. Ukachukwu v. Uba (2005) 18 NWLR (Pt.956) 1, Anyaegbunam v. A-G. Anambra State (2001) 6 NWLR (Pt.710) 532, Mohammed v. Husseini (1998) 14 NWLR (Pt.584) 108.
In the case of UBA Plc. v. Michael Ajileye (1999) 3
NWLR (Pt.633) 166 at 123, the Court of Appeal went a step further in respect of the effect order 6 rule 10 on an appeal struck out that:
“Any order setting aside the dismissal can only be entertained by way of appeal to the Supreme Court as provided under section 233(1) of the 1999 Constitution.”
In the case of Omoyinmi v. Oganiyi (2001) 10 NWLR (Pt.711) 149 held that:
“The consequence is that the dismissal of an appeal for failure to file appellant’s brief under order 6 rule 10 is final decision and the only cause open to a party adversely affected thereby is that of appeal to the Supreme Court.
Whether the dismissal of the appeal was wrongly made by this court, as the applicants endeavoured to ventilate in their affidavit evidence (supra) and the submissions of their learned counsel (supra), this court is, regrettably, handicapped or functus officio to review or revisit the said decision, only the Supreme court may intervene in such circumstances.
See also the concurring judgment of Muntaka – Coomassie, J.S.C., at page 71 of the First Bank of Nigeria plc case (supra):
“Where an appeal is dismissed under the provision of order 6 rule 10 of the Court of Appeal Rules, 2002, herein call rules, the general consensus of judicial pronouncement is that such an appeal cannot be revisited nor relisted. The only remedy open to such an appellant is to appeal to this court being the court having the appellate jurisdiction over the decisions of the court of Appeal, See Krauns Thompson Organisation v. NIPSS (2005) 10 WRN 127; (2004) 17 NWLR (Pt.601) 44 at 59, Asalu v. Dakan (2006) All NWLR (Pt. 325) 90. In Omoyinmi v. Ogunsiji (2001) 10 NWLR (Pt.711) 149. It was held as follows:
“….The consequence is that the dismissal of an appeal for failure to file appellant’s brief under order
6 rule 10 is a final decision and the only cause open to a party adversely affected thereby is that of appeal to the Supreme Court …..”
Per Tabai, JCA as he then was. I allow myself to be persuaded by the above decision.”
Accordingly, this court is incompetent or functus officio to entertain the present application which is hereby struck out. No order as to costs.
STANLEY SHENKO ALAGOA, J.C.A.: I have had the privilege of reading before now the lead Ruling just delivered by my learned brother, Ikyegh, J.C.A. I agree with his reasoning and conclusion that this Court is incompetent or functus officio to entertain the application and should be struck out. I also strike out the application and make no order as to costs.
SIDI DAUDA BAGE, J.C.A.: I had the privilege of reading in advance the Ruling delivered by my learned brother, Joseph Shagbaor lkyegh, J.C.A.
I entirely agree with the reasonings and conclusions reached in holding that, this appellate Court lacks jurisdiction to entertain the present application. I also abide by the order awarding no costs.
Appearances
Mr. S. EmehinFor Appellant
AND
Mrs. A. K. AiyedunFor Respondent
