MRS. JEAN LAWRENCE & ANOR v. PHARM ODIDIKA FELIX & ORS
(2019)LCN/12580(CA)
(2019) LPELR-46530(CA)
In The Court of Appeal of Nigeria
On Friday, the 25th day of January, 2019
CA/S/65M/2018(R)
RATIO
APPEAL: WHERE THE APPEAL IS DISMISSED
“…the principle is trite that the dismissal of an Appeal for the Appellants failure to file Brief of argument is a decision on the merit, and once pronounced the Court is functus officio devoid of any jurisdiction to revisit the Order let alone vary same. See ALI ALABA INTERNATIONAL LTD. V. STERLING BANK (2018) LPELR 44903 SC andOGBU V. URUM (1981) 4 SC Page 1 at Pages 7-9. The Applicants are therefore not entitled to the grant of the Application. It is accordingly dismissed.” PER ABDULLAHI MAHMUD BAYERO, J.C.A.
JUSTICE
AMINA AUDI WAMBAI Justice of The Court of Appeal of Nigeria
FREDERICK OZIAKPONO OHO Justice of The Court of Appeal of Nigeria
ABDULLAHI MAHMUD BAYERO Justice of The Court of Appeal of Nigeria
Between
1. MRS. JEAN LAWRENCE
2. KELECHUKWU LAWRENCEAppellant(s)
AND
1. PHARM. ODIDIKA FELIX
2. MR. GABRIEL IDAH
3. MR. COLUMBUS EZICHINA
4. MR. JOSEPH ANIKWUE
5. MR. ELEOCHUKWU OBELE
6. MR. PATRICK OBUMNEME
7. MR. JEROME ATELI
8. MR. JOSEPH EBEMMEDEBELU
9. MR. ANDREW MADU
10. MR. OBI LAWRENCE ABUISI
11. MRS. DORIS IDI
12. MR. ELOCHUKWU OBELE
13. MR. SIMON OZIOKO
14. MR. ABUCHI IPEDIGBO
15. MRS. CLEMENTINA UDEASI
16. MRS. CHRISTY OMEH
17. MRS. CHRISTY ERIAYE
18. MR. CHIJIOKE NNUKA
19. MR. NEBEUWA ALI
20. MRS. CHIKA NWOKO
21. MRS. MERCY SUNDAY
22. MRS. JUSTINA AZICHINA
23. MRS. BEATRICE OFFORDUM
24. MRS. ANTHONIO OKWUOKENYE
25. MRS. VICTORIA ROBERT
26. MRS. ELIZABETH UGOCHUKWU
27. MRS. BENEDETH OKAFOR
28. MRS. ADAOBI OLISAELO
29. MRS. STELLA ANIKWUE
30. MRS. AUGUSTINE AZEBUOGU
31. MRS. CALISTA DIM
32. MRS. AUGUSTINA ODILI
33. MRS. EBELE EBEMMEDEBELU
34. MR. SYLVESTER DILIYELU
35. MRS CHINYERE OZIOKO
36. MRS. TOYIN TAIWO
37. MR. GREGORY UDEASI
38. MRS. NKECHI ODIDKA
39. MR. ANDREW OMEH
40. MR. ISIAH ULONU
41. MR. PETER CHUKWUANU
42. MR. JUDE IFEDIGBO
43. MR. IFEANYI ONI
44. MRS. NGOZI ANIKWEREOBI
45. MRS. MAGRET IBENEME
46. MR. NNAMDI OGUINYE
47. MR. TUNDE BABALOLA
48. MR. DANIEL OKWUOKENYE
49. MRS. TOPE TAIWO
50. MRS. DABERECHI MADUGBA
51. MR. GABRIEL OKAFOR
52. MR. PATRICK OBASI
53. MR. ALBERT NNAHIKE
54. MRS. GRACE ACHONWA
55. MR. TUNDE TAIWO
56. MR. THADDEUS MBAH
57. MRS FLORENCE ADISA
58. HAJIYA AMINA IBRAHIM
59. MRS. JUSTINA JULIUS
60. MR. PAUL EJIE
61. MR. EMMANUEL NNAJI
62. MRS. CHIAMAKA ALI
63. MR. NDUBUISI UMEH
64. MRS. ZAINABU SALIHU
65. MRS. CHINYERE MUOKA
66. MRS. NEKCHI DILINYELU
67. MRS. ESTHER CHIKE
68. MR. BASIL IKEMEH
69. LATE MR. LEONARD EMEASABA
70. MR. JONATHAN IBENEME
71. MR. SUNDAY OKAFOR
72. MRS. CORDELIA EMEASABA
73. MR. KINGSLEY OKONKWORespondent(s)
ABDULLAHI MAHMUD BAYERO, J.C.A. (Delivering the Lead Ruling):
This is a Ruling on an application filed by the Applicants on 20/04/2018 praying this Court for an Order relisting this Appeal in Suit number KB/CA/S/8/2015 which was struck out on 7th June, 2017. The grounds of the application are that the 1st and 2nd applicants counsel Mr. A. F. Attah died on the 5th of December, 2016 in a ghastly motor accident which led to the striking out this Appeal. That it was not a deliberate act of the applicants to abandon the Appeal. That the 1st and 2nd Applicants have substantial grounds of Appeal that is arguable. Moving the Application Counsel submitted that it is supported with an affidavit of eight paragraphs duly sworn to by one Ahmadu Bello, a litigation Secretary in the law firm of A. F. Attah & Co. He said the application is argued on the written addresses as Ordered by this Honourable Court. That their written address was filed on 5/10/2018.
According to Counsel, they filed a reply to the further and better affidavit filed by the Respondents and also reply on point of law in support of the motion on notice; that both the reply to the further and better affidavit and the reply on point of law are dated 30/10/2018.
He adopted all the processes they filed and urged the Court to grant the application. In his response, learned Respondents Counsel submitted that in opposing the application they filed a counter affidavit on 26/09/2018 of four paragraphs duly sworn and also filed a written address on 19/10/2018 in compliance with the Order of this Court. According to Counsel, their further and better affidavit was filed on 19/10/2018. He adopted all the processes and urged the Court to refuse the application.
At paragraphs 3 i), ii), iii), iv, v) and vi) of the supporting affidavit it was deposed to thus:
3 i) “That A. F. Attah the former principal counsel in this Appeal who filed the notice of Appeal had died on 5th December, 2016 and was buried early 2017.
3 ii) That after the burial all effort to recover the case file for the purpose of diligent prosecution of the Appeal proved abortive, as no one knows where he kept the said file.
3 iii) That it was in the office on the 16th November, 2017 during working hours I heard when one Sunday A. F. Attah the first son of the deceased told my principal, P. O. Onucheyo that he had recovered the said case file and immediately transmitted same to the chambers from their living house at Pegi Kuje, FCT Abuja.
3 iv) That my principal and I traveled to Birnin Kebbi, Magistrate Court for a sister case on the 20th November, 2017 and later proceeded to Court of Appeal, Sokoto Division to enquire and take a date for hearing of the Appeal.
v) That my principal and I were reliably informed by the Registrar of the Court of Appeal Sokoto Division at working hours in his office at the Court of Appeal premises Sokoto that the Appeal was struck out on 7th June, 2017 due to lack of diligent prosecution.
vi) That my principal filed a motion on notice on the 12th day of December, 2017 but was struck out on the 18th April, 2018 thereby necessitating the filing of this motion for relisting the Appeal struck out on 7th June, 2017 for lack of diligent prosecution necessitating this motion.
3) That the delay in the prosecution of this Appeal was not deliberate but an act of God, as death is inevitable to all mortals.
From the foregoing paragraphs of the supporting affidavit, the Applicants are saying that it was the mental illness and the sudden death of the Applicants former counsel that led to the delay in filing their brief of argument. That the Applicants were not contributory to the Act of God that led to the death of their former counsel.
However at paragraphs 3 j), k) l) and m) of the counter affidavit it was deposed to as follows:
3 j) That the mandatory 45 days period within which the Applicants must file their briefs of argument lapsed on 15th January, 2016 whereas the late counsel died on 5th December, 2016 about 12 months thereafter without taking any step to prosecute the said Appeal.
3 k) That this Honourable Court dismissed same on 7th June, 2018 for want of diligent prosecution.
3 l) That the certified true copy of the Order is hereby annexed and marked as exhibit B
3 K) That it will not be in the interest of Justice to grant this application as there is no Appeal pending before this Honourable Court.
The issue for determination in this Appeal is whether this Appeal can be relisted having been dismissed by this Court on 7th June, 2018 Pursuant to Order 19 Rule 10 (1) of the Rules of this Court 2016; the Appellant having failed to take steps to prosecute this Appeal since the transmission of the Record of Appeal on 3/11/2015. The Respondents later approached this Court praying that the Appeal be dismissed the Appellant having failed to file their Appellant Brief of argument within the 45 days limit after compilation and transmission of the Record to the Registry of the Court which elapsed on 18th December, 2015. The Notice of Appeal filed before this Honourable Court on the 11th May, 2015 did not comply with the requirements of Order 6 Rule 2 of the Court of Appeal Rules 2011 then and Order 7 Rule 2 (1) of the Court of Appeal Rules, 2016. This is because the names of all the parties were not listed on the Notice of Appeal; the Notice of Appeal does not bear the Appeal number.
On the issue of the dismissal by this Court of this Appeal on 7th June, 2018, that dismissal is final. This is because the principle is trite that the dismissal of an Appeal for the Appellants failure to file Brief of argument is a decision on the merit, and once pronounced the Court is functus officio devoid of any jurisdiction to revisit the Order let alone vary same. See ALI ALABA INTERNATIONAL LTD. V. STERLING BANK (2018) LPELR 44903 SC andOGBU V. URUM (1981) 4 SC Page 1 at Pages 7-9. The Applicants are therefore not entitled to the grant of the Application. It is accordingly dismissed.
AMINA AUDI WAMBAI, J.C.A.: I have read the ruling delivered by my learned brother, Abdullahi M. Bayero, JCA. I agree.
FREDERICK OZIAKPONO OHO, J.C.A.: I had the opportunity of reading the draft of the Ruling of my learned Brother ABDULLAHI M. BAYERO, JCA just delivered and I am in agreement with his reasoning and conclusions in disallowing the application as completely lacking in merit and for dismissing it on account of that reason.
I abide by the consequential Orders made thereto.
Appearances:
P. O. Onucheyo, Esq.For Appellant(s)
P. C. Onyenobi, Esq.For Respondent(s)
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