NDUBUISI WOMANDA & ORS v. ELDER OWHONDA CHINWO & ORS (2011)

NDUBUISI WOMANDA & ORS v. ELDER OWHONDA CHINWO & ORS

(2011)LCN/4548(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 17th day of May, 2011

CA/PH/81M/2011

RATIO

DISMISSED APPEAL: WHETHER AN APPEAL DISMISSED UNDER ORDER 17 RULE 10 OF THE COURT OF APPEAL RULES 2007 FOR WANT OF PROSECUTION CAN BE REVIVED AND RESTORED TO THE CAUSE LIST FOR DETERMINATION ON THE MERIT

In Babayagi v. Alhaji Bida (1998) 2 NWLR (Pt.538) 367, on the application of the respondent, following appellant’s failure to file his brief, the appeal was dismissed by this court for want of prosecution under order 6 rule 10 of the 1981 rules which are re-enacted ipsissima verba in order 17 rule 10 of the 2007 rules. On appeal, the Supreme Court upheld the Court of Appeal’s decision that it had no power under the rules to set-aside the dismissal order and relist the appeal. The law then is, once an appeal is dismissed following an application by the respondent under order 17 rule 10 sequel to the failure of the appellant to file his brief within the time allowed by rule 2 of the very order, or as extended by the court, such appeal, unless where the court at the time of making the dismissal order lacked the necessary competence, cannot be revived and restored to the cause list for determination on the merit. See Chukwuka v. Ezulike (1986) 2 NWLR (Pt.45) 892 Kraus Thompson Org. v. NIPSS (2004) 17 NWLR (pt. 901) 44 at 59, Odogwu v. Odogwu (1992) 7 NWLR (Pt. 253) 344 and Alli v. Ayinde.Lastly, learned senior counsel for the applicants is simply not right that on the facts of this case the applicants have been denied fair hearing. The 1999 Constitution in Section 36 only requires that the applicants be given opportunity of being heard before a decision is taken for or against them. Where it is established that the opportunity had been extended to them and they chose to stay away, a court’s decision affecting them will prevail inspite of the fact of their keeping away from the court when that decision was being taken. See Tunbi v. Opawole (2000) 2 NWLR (PT.644) 275, Agbahomovo v. Eduyegbe (1999) 3 NWLR (Pt. 594) 170. PER M. DATTIJO MUHAMMAD, J.C.A

INTERPRETATION OF STATUTE: INTERPRETATION OF THE PROVISION OF ORDER 17 RULE 2 OF THE COURT OF APPEAL RULES, 2007 AS TO THE OBLIGATION IT IMPOSES ON THE APPELLANT

Order 17 Rule 2 of the court of Appeal Rules, 2007 is very clear on the obligation it imposes on the appellant. Within 45 days of his receipt of the records of appeal; the appellant is obligated to file his brief of argument. The consequence for not filing the appellants brief within 45 days or within the time extended by the court of Appeal is that the appeal will be dismissed for want of prosecution. See Order 17 Rule 10. PER EJEMBI EKO, J.C.A.

DISMISSED APPEAL: EFFECT OF AN APPEAL DISMISSED UNDER ORDER 17 RULE 10 ON THE COURT OF APPEAL

No provision of the Rules permits us to restore an appeal dismissed under order 17 Rule 10. What that means is that this court, upon discharging or performing its office under order 17, Rule 10, is functus officio and the dismissal order it rendered is final, subject to overriding order of the Supreme Court. This court, relying on KRAUS THOMPSON ORGANTSATION V. NIPSS (2004) 17 NWLR (pt.900) 44 has held that an appeal dismissed for want of diligent prosecution under order 17 Rule 10 of the 2007 Rules of this court can not be re-listed and that the dismissal is final. And further only the Supreme Court has the necessary jurisdiction to reverse the order see ALLI V. AYINDE (2010) ALL FWLR (pt. 540) 1315 at 1338. PER EJEMBI EKO, J.C.A.

DISMISSED APPEAL: WHAT IS THE BASIS FOR DISMISSING AN APPEAL FOR WANT OF DILIGENT PROSECUTION

AFFIDAVIT OF EVIDENCE: EFFECT OF AN AFFIDAVIT OF SERVICE

Affidavit of service is prima facie proof of the matters therein. See MARTIN SCHRODER & CO. V. MAJOR & CO. (1989) 2 NWLR (pt. 101) 1 at 11; OKOYE V. CPMB LTD (2008) 14 NWLR (Pt.1110) 335 at 352. PER EJEMBI EKO, J.C.A.

JUSTICES

MUSA DATTIJO MUHAMMAD Justice of The Court of Appeal of Nigeria

EJEMBI EKO Justice of The Court of Appeal of Nigeria

TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria

Between

1. NDUBUISI WOMANDA

2. CHIEF GIBSON WOMANDA

3. MR. GIDEON AMADI

(For themselves and as representing Members of Rumuorosi town) – Appellant(s)

AND

1. ELDER OWHONDA CHINWO

2. ELDER NNANTA AMADI

3. CHIEF C.N. OKABIE

(For themselves and on behalf of the Eria family of Rumuomoi) – Respondent(s)

M. DATTIJO MUHAMMAD, J.C.A (Delivering the Leading Judgment): On the 17th day of February 2011, the respondents in the instant application, pursuant to their application dated 12th but filed on the 25th January 2011, prayed this court for an order dismissing the applicants, appeal for want of prosecution. The grounds on which the application was brought were:

“(i) That the time limited by the rules of this Honourable court for the filing of the appellants briefs of argument had since elapsed.

(ii) The Judgment/Debtor/Appellants have failed and refused to file the Appellants Brief of Argument in breach of order 17 rule 2 of the rules of this court 2007.

(iii) The Judgment Debtor/Appellants are not willing to prosecute this appeal.”

In paragraphs 3 to 6 0f the affidavit in support of that application Elder owhonda chinwo the first applicant therein, who is the 1st respondent in the application to which this ruling relates, avers that applicants who are dissatisfied with the lower court’s judgment dated 30th April 2010 have appeared by a notice filed on 17/6/2010. The appeal, with the compilation of the record which was served on the applicants on 18th October 2010 has, therefore, since been entered.

Instead of prosecuting the appeal, applicants filed a motion for interlocutory injunction on 6/10/2010 intent on continuing with their trespass on the rand in dispute. The application for interlocutory injunction was, on 8/12/10, struck out following its withdrawal by the applicant. Another motion on Notice filed by the applicants on 9/12/2010 for the relief again hangs in the court’s record.

Applicants who have forty-five days to file their brief are yet to. The applicants are therefore not interested in prosecuting their appeal, it is asserted.

On 17/2/2011 when the motion on notice was moved, the respondents thereto were neither in attendance nor represented. The court’s registry confirmed the suggestion of senior applicants’ counsel E.C. Ukala that the applicants herein, the respondents to the motion being moved, had been put on notice on 10/2/2011. Having been moved in terms of the reliefs in the motion on Notice, the court dismissed the appeal under order 17 rule 10 of the Court of Appeal rules 2007 for want of prosecution.

This ruling is in respect of the motion on notice filed by the applicants on 23/2/2011 following the dismissal of their appeal. The application which is further supported by a twenty-three paragraph affidavit and four annextures, seeks that the entire 17th February 2011 proceedings of this court, including the order for the dismissal of the applicants’ appeal be set-aside. The appeal, the applicants also urge, should be restored to the court’s cause list for it to be determined on its merit.

The applicants rely on the affidavit and the further affidavit in support of their application. Apart from Exhibit A that is annexed to the affidavit in support, exhibits B, C, D and E, the applicants further rely on, are annexed to their further affidavit. Exhibit B is the respondents’ application for the dismissal of the applicants’ appeal. Exhibit C is the copy of the affidavit of service of exhibit B on the applicants, dated 10th February 2011. Exhibit D is the certified true copy of the first two pages and the last two pages of the record of proceedings dated 21st December 2010 allegedly received by the applicants during Christmas vacation.

The applicants in paragraphs 4-11, 13-14 of the twenty-six paragraph affidavit in support of their motion on notice aver to facts that made it impossible for the record of their appeal to be wholly transmitted to this court and for the time within which the rules provide for the filing of their brief to start counting. It was when the Appellants/Applicants went to file their brief on 21/2/2011, within time, that they discovered to their shock that respondents had moved the court behind their back and secured an order for the dismissal of their appeal for their failure to file the brief.

In paragraphs 12, 16, 17, 18, 19 20, 21, 22 and 23 of applicants’ same affidavit in support, it is asserted that applicants have been denied fair hearing.

They were not served with any process before the dismissal of their appeal and the 17/2/2011 proceedings culminating in the order contained in exhibit A were conducted behind them. It is further averred that in moving their motion for the dismissal of applicants appeal, the respondents had deceived the court by suppressing the fact that applicants were still within time for the filing of their brief since the record of appeal had only been made available to them during the, December, 2010 Christmas vacation. The earlier record sent to the applicants’ were incomplete.

Respondents, have in opposition to the application, filed a twenty-three paragraph counter-affidavit deposed to by Elder Owhonda Chinwo the 1st respondent herein. Annexed to the counter-affidavit are exhibits A and A1 the affidavit of service of the motion to dismiss applicants’ appeal and affidavit of service of respondents’ counter-affidavit in opposition to the applicants’ motion for interlocutory injunction respectively; Exhibit B is affidavit of service of respondents’ counter-affidavit to applicants’ second motion for interlocutory injunction dated 17th but filed 1-8th June 2010; exhibit C a copy of the letter forwarding the record of appeal to the appellants. The Respondents frontally joined issues with the applicants particularly in paragraphs 7, 8,9, 10, 11, 17 and 18 of their counter-affidavit.

Relying on the averments in their two supporting affidavits, learned senior counsel S. A. Awomolo for the applicants contends that respondents’ motion on notice dated 12th January 2011 for the dismissal of applicants appeal was served at an abandoned address rather than their new address. The applicants, it follows, were never aware of the processes when the court was moved leading to the unlawful dismissal of the appeal. The dismissal order, learned senior counsel submits, was made without the necessary jurisdiction.

It is further argued that the respondents in moving their application had suppressed material facts and misled the court. At the time the respondents obtained the order of dismissal of the appeal, the time for the filing of the applicants brief had not lapsed. Learned senior counsel refers to paragraphs 8 to 16 of applicants’ further affidavit and submits that complete record of appeal was served on the applicants on 2B/L2/20I0. Respondents were aware of these facts yet they chose to conceal the facts and mislead the court. Learned counsel relies on Nwana v. F.C.D.A (2007) l NWLR (PT. 1044) 59 at 79 Ezerebo v. IGP (2009) 11 NWLR (PT. 1151) 117 at 133 and Ogbu v. Urum (1981) 5 SC 1 and submits that this court has the jurisdiction to set-aside its order that was so fraudulently induced.

Responding, Mr. Agwu refers to exhibit E annexed to the further affidavit in support of applicants’ motion and submits that applicants are by it served but were not interested in prosecuting their appeal. All the three notices of appeal filed by the applicants and signed by their leading senior counsel, have Ziche Chambers, 10 Ikwerre Road Port Harcourt as the address for service within jurisdiction. All processes in the appeal were served at the very address and except in relation to the application for the dismissal of applicants, appeal, Applicants or their counsel never complained of non receipt of any of the processes. E. Obunezi, learned counsel to the applicants, on 8/12/2010 while withdrawing their application for interlocutory injunction, admitted in open court the service of respondents’ counter-affidavit to applicants’ motion at the same address Respondents’ motion for the dismissal of applicants’ appeal was served. Learned respondents’ counsel submits that on that date, Mr. obunezi never made any issue out of the service of processes on Ziche Chambers, the address for service supplied by the applicants. Applicants did not file or serve any document on the respondents indicating a change of their address for service from the Ziche Chambers address.

Concluding, learned counsel relies on paragraphs 10 and 11 of respondents, counter-affidavit and submits that applicants who failed to specifically state when their appeal was entered are least entitled to accuse others of deceit. Facts from the record of the court speak for themselves and show clearly the extent of applicants default. From 6/10/2010 applicants, submits learned respondent counsel, were in default for 135 days and they never even bothered to ask for extension of time to file their brief. In the light of all these facts, learned respondents counsel contends, applicants are not entitled to the reliefs they seek.

The submissions learned senior counsel made in reply centered on facts. They are accordingly hereby discountenanced.

The narrow question this application raises and which has been asked and answered in very many cases is whether this court has the jurisdiction of reversing its earlier decision dated 17th February 2011 pursuant to order 17 rule 10 of the rules of this court and restoring applicants’ appeal it dismissed for same to be determined on its merit.

Order 17 rules 2 and 1.0 of the rules of this court under which applicants appeal was dismissed provide:

“2. The appellant shall within forty-five days of the receipt of the ‘record below file in the court a written brief being succinct statement of his argument in the appeal.

10. 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.”

In the instant case, the respondents had moved this court and by their affidavit in support of their motion on notice established applicants, failure to file their brief of argument more than one hundred and thirty five days after the receipt of the record of appeal. Exhibit c annexed to respondents, counter affidavit indicates that the records were received on 18/10/2010. As at 17 /2/2011 when the appeal was dismissed the applicants herein were yet to file their brief.

Learned senior counsel Awomolo for the applicants contends with all his strength that since applicants were not on notice and aware of respondents application, beyond the provision of order 17 rule 10, this court being a court of record has the inherent powers of reversing its own decision that was taken without jurisdiction. This submission cannot be faulted for in ogbu v. urum (1981) 4 SC 1 a decision of the Supreme Court cited and relied upon by applicants, counsel it was stated Per Bello JSC of the blessed memory thus:

“It seems to me on the authority of obimonure v. Erinoshe (1966) 1 ALL NLR 250 that the inherent jurisdiction of court to set aside its judgment or order is limited to judgments or orders which are nullities but as Nnamani JSC (of the blessed memory) would put it though differently at page 17 – if there was a fundamental defect which goes to the issue of jurisdiction and competence of this court on the day it made its orders it would set aside its judgment. see the decision of this court in sc 50/1980 sken consult Nig. Ltd. & ors. v. Godwin Sekondy Ukey delivered on 16/1/81”

Now, there is no doubt that an appeal dismissed under order 17 rule 10 of the court of appeal rules, from the very clear words of the rule, cannot be relisted subsequently. our law reports are replete with cases stating this much.

In Akanke olowu & ors v. Amudatu Aborore & Anor. (1993) 5 NWIR (pt. 293) 255, this court on the application of the respondent dismissed appellant’s appeal for want of prosecution on the grounds of the appellants’ failure to file his brief. The dismissal was ordered under order 5 rule 10 of the court’s 1981 rules.

The appellant by motion, such as the instant one, prayed the court that it sets aside its earlier order of the dismissal of the appeal. Appellant also prayed for the restoration of the appear on the list just as is urged presently. It was argued for the appellant that since he was not served with the motion to dismiss the appeal, the court’s order was accordingly a nullity. The court obliged the appellant/applicant. On appeal to the supreme court the appeal was allowed when it was established contrary to the findings of the court of Appear that the appellant had infact been served and when the motion for the dismissal of the appeal came up for hearing the appellant/respondent absented himself. The applicant then moved his motion. On these facts the Apex court herd at page 272 of the report as follows:

“It seems to me that under order 6 rule 10 of the court of Appeal Rules on appeal may be dismissed for want of prosecution where the appellant fail to file his brief within time see Government of Gongola state v. Tukur (No. 2) (1987) 2 NWLR (pt.56) 308. The power to dismiss in such circumstance is discretionary. But this is an exercise of judicial discretion- The court in the instant case had before it all the essential prerequisites enabling it to dismiss the appeal. There were no circumstances requiring the court to do otherwise and to consider whether it should not dismiss the appeal. If the appellant had shown that indeed he had complied with the rules as in Nnneji v. chukwu (1988) (pt.81) 3 NWLR 784, the order made would be justifiably set aside as having been made without jurisdiction.”

The facts of the instant case seem to be on all fours with Abolere’s case supra and must be ruled by the principle enunciated by the Supreme Court in that case’ Exhibits A, A1, B and C annexed to respondents counter-affidavit in opposition to applicants’ motion are affidavits and certificate of service of processes on the applicants including respondents motion for the dismissal of applicants appeal. Applicants were represented in court by counsel following the services effected on them through the same address. Applicants’ allegation of their not being served has accordingly not been made out. Nor have they also established fraud on the part of the respondents in the course of acquiring this court’s order of dismissal of their appeal they now seek the court to set-aside. At the time this court made its order of 17/2/2011 the applicants now urge should be set-aside, the court had the jurisdiction of making the order. Applicants having failed to establish any defect in the court’s competence vis-a-vis the order it made pursuant to order 17 rule 10 of the rules of court, they are not entitled even by virtue of the court’s inherent powers to the reliefs they seek.

The law then is, once an appeal is dismissed following an application by the respondent under order 17 rule 10 sequel to the failure of the appellant to file his brief within the time allowed by rule 2 of the very order, or as extended by the court, such appeal, unless where the court at the time of making the dismissal order lacked the necessary competence, cannot be revived and restored to the cause list for determination on the merit. See Chukwuka v. Ezulike (1986) 2 NWLR (Pt.45) 892 Kraus Thompson Org. v. NIPSS (2004) 17 NWLR (pt. 901) 44 at 59, Odogwu v. Odogwu (1992) 7 NWLR (Pt. 253) 344 and Alli v. Ayinde.Lastly, learned senior counsel for the applicants is simply not right that on the facts of this case the applicants have been denied fair hearing. The 1999 Constitution in Section 36 only requires that the applicants be given opportunity of being heard before a decision is taken for or against them. Where it is established that the opportunity had been extended to them and they chose to stay away, a court’s decision affecting them will prevail inspite of the fact of their keeping away from the court when that decision was being taken. See Tunbi v. Opawole (2000) 2 NWLR (PT.644) 275, Agbahomovo v. Eduyegbe (1999) 3 NWLR (Pt. 594) 170.

On the whole, I find no merit in this application. It is refused and dismissed.

Respondents shall be paid its cost by the applicants assessed at N30,000.

EJEMBI EKO, J.C.A.: Order 17 Rule 2 of the court of Appeal Rules, 2007 is very clear on the obligation it imposes on the appellant. Within 45 days of his receipt of the records of appeal; the appellant is obligated to file his brief of argument. The consequence for not filing the appellants brief within 45 days or within the time extended by the court of Appeal is that the appeal will be dismissed for want of prosecution. See Order 17 Rule 10.

In this application the applicants, as the appellants, failed to discharge or perform their obligation under order 17 rule 2in order for their appeal to be heard. Upon the application of the respondent

praying that the applicants’ appeal be dismissed for want of diligent prosecution this court, satisfied that the appellants were served the motion and that the appellant was infact indiligent in prosecuting their appeal, dismissed the appeal under Order L7, Rules 2 and 10.

My learned brother, M.D. MUHAMMAD (OFR) JCA, in the lead ruling just delivered, has rightly observed that the narrow issue in this application is whether this court has jurisdiction in this application.

This application to restore or re-list the appeal dismissed for want of prosecution under order 17 Rule 10 is co-terminus with an invitation to us to reverse our earlier order. On the principle of our being functus officio we can neither review our earlier order nor reverse ourselves.

That is where order 8 Rule 18 to of the Rules of this court is different from order 17, Rule 10. While there is order 8 Rule 20 which permits that an appeal dismissed for non transmission of the record may be restored upon the appellant showing good and sufficient cause, there is no such thing as regards an appeal dismissed under order 17 Rule 10.

This court, relying on KRAUS THOMPSON ORGANTSATION V. NIPSS (2004) 17 NWLR (pt.900) 44 has held that an appeal dismissed for want of diligent prosecution under order 17 Rule 10 of the 2007 Rules of this court can not be re-listed and that the dismissal is final.

And further only the Supreme Court has the necessary jurisdiction to reverse the order see ALLI V. AYINDE (2010) ALL FWLR (pt. 540) 1315 at 1338.

The basis for dismissing an appeal for want of diligent prosecution is that there is a duty, which is mandatory, for the appellant to perform in order to bring his appeal to the stage of its being heard such as filing the brief of argument or payment of fees etc, which the appellant has failed to perform. See GOVERNMENT OF ANAMBRA STATE V. DR. SAM J. OJI (1990) 5 NWLR (pt. 150) 349 AT 350. These applicants failed or were reckless about performing that duty of filing their brief of argument within the time stipulated by order 17 rule 2. Consequently, their appeal, on the application of the respondent, was dismissed under order 17 rule 10.

This court in dismissing the appeal acted on the bailiff’s affidavit of service certifying that the motion for dismissal of the appeal for want of diligent prosecution had infact been served on the appellant at his last known address. Affidavit of service is prima facie proof of the matters therein. See MARTIN SCHRODER & CO. V. MAJOR & CO. (1989) 2 NWLR (pt. 101) 1 at 11; OKOYE V. CPMB LTD (2008) 14 NWLR (Pt.1110) 335 at 352. This court has satisfied itself that infact there had been service of the motion. The applicants cannot therefore complain that they were denied an opportunity to be heard in the matter of the dismissal of their appeal for want of diligent prosecution. I agree with my learned brother that we do not have the necessary or requisite competence to restore or revive the appeal of the applicants dismissed for want of diligent prosecution. We, therefore, cannot help them in the circumstance.

Having said all these thereby adopt the lead ruling including all the consequential orders therein.

T. O. AWOTOYE J.C.A.: I read the draft of the Ruling just delivered by my learned brother M. D. MUHAMMAD (OFR) JCA. I am in total agreement with the reasonings and conclusion,

I have nothing to add. I also hold that the application lacks merit. It is accordingly dismissed. Costs shall be as assessed in the lead judgment.

Appearances

M.S. AGWUFor Appellant

AND

CHIEF S.A. AWOMOLO SAN B.J. AKOMOCHEFor Respondent