NIGERIA POSTAL SERVICE V. ALFRED EZEKIEL IDIOHO
(2013)LCN/6139(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 30th day of April, 2013
CA/C/48/2013
RATIO
In this case the Supreme Court considered the provisions of Order 3 rule 20(1), (3) and (4) of the Court of Appeal Rules, 1981 in pari materia with Order 8 rules 18 and 20 of the Court of Appeal Rules, 2011. But if the dismissal is for failure to file the appellant’s brief upon the compilation and service of the records on the appellant the Court of Appeal will lack the jurisdiction to relist same for hearing and determination on the merit as no provision is made in the Rules of Court for restoration of a dismissal appeal in such a circumstance. See Olowu vs. Abolore (supra) at page 273 paragraphs “F” to page 278 paragraphs “A”-“E” Yonwuren vs. Modern Signs (Nig.) Ltd. (1985)1 NWLR (Pt.2) 244 and Chief Iro Ogbu & Ors. vs. Chief Ogburu Orum & Anor (1984) 4 SC 1.
In my view since the dismissal of the appeal was for failure to fulfill the conditions for compilation and transmission of the record but not for failure to file appellant’s brief, and considering that the record of appeal was compiled and transmitted to this Court on 4th March, 2013 this Court cannot shut out the appellants from being heard on the merit. The presumption is that the conditions set down for the Registrar to compile and transmit the records have been complied with. All that the applicant needs is to seek a deeming order to regularize the records. Even if there is no such relief this Court has the inherent powers to suo motu deem the records as properly compiled and transmitted to this Court so that hearing of the appeal shall be on the merit. See United Bank for Africa Ltd. vs. Nwora (1978) 2 LRN 149 where the Supreme Court held at page 155 that:
“Looking at this particular case where each defendant has filed a statement of defence which, having regard to his observation, the Chief Judge must have found to disclose a substantial ground of defence, it seems to us that if is a wrong exercise of his discretion to have ordered the defendants to file an application for enlargement of time within which to file a defence within ten days from the date of his order, thus indicating, albeit by implication, that no statements of defence had been filed before. With respect, we think it was erroneous of him to have ordered them, in those circumstances, to apply for extension of time to file what amounted to new statements of defence within ten days. Surely, this discretion, which the Chief Judge undoubtedly has in the matter, must be exercised judiciously bearing in mind that it is the duty of the Court whenever possible, not only to minimize the cost of litigation, but also to see to it that justice is not delayed unnecessarily.
In our view, the Chief Judge, in the exercise of his power under Order 18, rule 6, should have extended the time suo motu up to 18th April, 1976, the day when he delivered his ruling. By ordering the defendants, as he did, to apply within ten days to file another statement of defence, the Chief Judge, if we may say so, again with respect, was merely taking refuge in an unnecessary legal technicality which would obviously delay the hearing of the action further. We think he should have extended the time to file the statements of defence to the date of his ruling, order that the statements of defence already filed had been duly filed, and then fix a date for the hearing of the case.”
The decided cases show that where the default, negligence, inadvertence, mistake, etc, that resulted into the failure to comply with the rules of the Court is laid at the doorstep of Counsel, there should be exhibited an affidavit from that Counsel. If it is ill-health medical certificate should be provided to support such a claim or assertion. See Adekola Alagbe vs. His Highness Samuel Abimbola & Ors. (1978) 1-3 SC 28; Chief E.A. Lamai vs. Chief M.C.K. Orbih (supra) at pages 27; Ojora v. Bakare (1976) 1-7 SC 26 at 29 and JIC Ltd. vs. R. L. Import-Export Ltd. (1988) 7 SCNJ 93 at 108. None was filed nor medical certificate by Counsel assigned the case exhibited. But the application is supported by the affidavit of A. S. Aduku the Chief Investigation Officer in the Security and Investigation Department of the Nigerian Postal Service Territorial Headquarters, Calabar, Cross River State not by any learned Counsel. Furthermore, having already held that rather than serving the motion and hearing notices on the address indicated in the Notice and Ground of Appeal, it was done on Counsel to the appellant, I am of the view that to refuse this application will prejudice the appeal of the appellant from a hearing on the merit. Blunders shall never end. But every effort should be exerted to ensure that where possible, appeals are heard on the merit. The defaulting party may be penalized upon payment of some monetary compensation.
Accordingly, this application is not only granted but the records transmitted by the registry of the Court below shall be deemed properly compiled, transmitted and served on the parties from today to enable them file their respective briefs of argument. Applicant to pay N20,000.00 cost to the respondent.
JUSTICES
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria
JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria
Between
NIGERIA POSTAL SERVICE Appellant(s)
AND
ALFRED EZEKIEL IDIOHO Respondent(s)
JOSEPH TINE TUR, J.C.A. (Delivering the Lead Ruling): The applicant’s contention is that the respondent was not her employee; the respondent contended otherwise and filed an action in the Federal High Court, Calabar, Cross River State on 1st day of March, 2007 claiming the following reliefs in paragraph 19 of the Statement of Claim:
“19. The plaintiff has been damaged by defendant’s wrongful acts.
Wherefore the plaintiff claims from the defendants jointly and severally as follows:
(1) A declaration that the stoppage of the payment in June, 1987 of plaintiff’s salaries by the defendants without any justifiable reason or formal termination of plaintiff’s appointment is wrongful, null and void and of no effect whatsoever.
(2) A declaration that the plaintiff is still a staff in the employment of the defendants and entitled to his salaries and other entitlements as his employment has a statutory flavour.
(3) AN ORDER for the plaintiff to resume work with the 2nd defendant and for payment of plaintiff’s salaries in line with the salary increments of plaintiff’s colleagues and the arrears of salary paid to him with effect from when it was stopped.
ALTERNATIVELY:
(4) An order for the retirement of the plaintiff and his salaries and other entitlements paid up to the year 2014 when plaintiff was due for retirement.
(5) N1 million general damages. ”
The applicant filed a Joint Statement of Defence denying liability praying that the claim should be dismissed. Hearing proceeded. A.F.A. Ademola, FJ., delivered judgment in favour of the respondent on 19th day of January, 2012 holding at page 174 of the printed record as follows:
“From the foregoing paragraphs of this judgment the plaintiff’s case succeeds in its entirely jointly and severally against the defendants with the following reliefs granted by this Court:
(1) A declaration that the stoppage of the payment in June, 1987 of plaintiff’s salaries by the defendants without any justifiable reason or formal termination of plaintiff’s appointment is wrongful, null and void and of no effect whatsoever.
(2) A declaration that the plaintiff to still a staff in the employment of the defendants and entitled to his salaries and other entitlements as his employment has a statutory flavour.
(3) AN ORDER for the plaintiff to resume work with the 2nd defendant and payment of plaintiff’s salaries in line with the salary increments of plaintiff’s colleagues and the arrears of his salaries with effect from July, 1987.
(4) N1 million general damages with Court interest of 10% per annum from 1987 till judgment sums due is paid to the plaintiff.
(5) N50,000.00 costs. ”
Being aggrieved the applicant filed Notice of Appeal against the decision on 4th day of April, 2012. The applicant neglected to fulfill the conditions of appeal imposed by the Registrar of the Court below. On that basis, the respondent brought an application to dismiss the appeal pursuant to Order 8 rule 18 of the Court of Appeal Rules, 2011. The application came up for hearing on 4th day of March , 2013. The Court of Appeal dismissed the appeal. The applicant brought this application on 6th day of March, 2013 seeking that the appeal be relisted on the cause list so it may be heard on the merit. The application is supported by a 21 paragraph affidavit deposed to by A. S. Aduku the Chief Investigation officer in the office of the applicant’s Territorial Headquarters, Calabar, Cross River State. The application is accompanied with a written address by learned Counsel to the applicant. The lone issue for determination in the written brief reads as follows:
“Whether this Honourable Court is empowered under the Rules of this Honourable Court to set aside an order dismissing an appeal pursuant to Order 8 rule 18 of the Court of Appeal Rules, 2011 and restore the same to the cause list.”
The reliefs set out in the application are couched as follows:
“1. An order setting aside the order of this Honourable Court made on the 4th day of March, 2013 dismissing the Appellant/Applicant’s appeal for failure of the Appellant/Applicant to fulfill the conditions of appeal.
2. An order of this Honourable court on the 4th day of March, 2013 for failure to fulfill the conditions of appeal in this appeal.
3. An order of this Honourable Court granting leave to the Appellant/Applicant to apply for extension of time within which to seek leave to compile and transmit the record of proceedings in this appeal from the lower Court to this Honourable Court.
4. An order of this Honourable Court granting leave to the Appellant/Applicant to compile and transmit the records of the proceeding in suit No.FHC/CA/CS/12/2007 outside the period allowed by the Rules of this Honourable Court.
5. An order of this Honourable Court deeming the already compiled and transmitted copies of the records of proceedings in this appeal No.CA/48/2013 transmitted on the 4th day of March, 2013 as properly compiled and transmitted by the Registrar of the lower Court.
AND for such further order or other orders as this Honourable Court may deem fit to make in the circumstances. ”
The grounds for seeking reliefs are as follows:
“FURTHER TAKE NOTICE that the grounds for this application are as follows:
“(a) That the Appellant/Applicant filed its appeal against the judgment of the lower Court in suit No.FHC/CA/CS/12/2007 delivered on the 19th day of January, 2012 on the 4th day of April, 2012.
(b) That shortly after the filing of the notice and ground of appeal in the lower Court, the Secretary/Legal Adviser to the Appellant/Applicant re-assigned the handling of this appeal to a new Counsel in the Legal Services Department of the Appellant/Applicant’s office.
(c) That the case file was handed over to the new Counsel to ensure that the appeal was diligently prosecuted.
(d) That shortly after the handing over of the case file to the new Counsel, the said Counsel took ill and was unable to follow up the fulfillment of the conditions of appeal.
(e) That all this while the file was in the custody of the new Counsel and the Appellant/Applicant did not know that the conditions of appeal had not been perfected.
(f) That the Appellant/Applicant became aware of the failure of the new Counsel to perfect the conditions of appeal when it was served with the respondent’s application seeking the order to dismiss this appeal for failure to fulfill the conditions of appeal.
(g) That the case file was immediately retrieved from the Counsel and re-assigned to S. O. Sangotayo, Esg. to handle.
(h) That the Appellant/Applicant immediately deposited the sum of N150,000.00 with the Registrar of the lower Court in fulfillment of the conditions of appeal.
(i) That the records of proceedings has been compiled and transmitted by the Registrar of the Lower Court to this Honourable Court on the 4th day of March, 2013 and the appeal No. CA/C/48/2013.
(j) That the time within which the records of proceedings was to be compiled and transmitted under the Rules of this Court had since expired.
(k) That this application now becomes necessary to regularize the compilation and transmission of the records of proceeding already compiled and transmitted out of time by the Registrar of the lower Court.
(l) That due to heavy down pour and hectic hold-up on the 4th day of March, 2013, the learned counsel to the Appellant/Applicant got to the Court late on the said 4th March, 2013 and as at his arrival the appeal dismissed.
(m) That the delay/failure of Counsel to appear in Court in the 4th of March, 2013 was not intentional.
(n) That the Appellant/Applicant desires and is willing to diligently prosecute this appeal.”
The application is opposed by the respondent who deposed to a counter-affidavit on 5th day April, 2013.
Learned Counsel accompanied the counter-affidavit with a written address without setting forth any issue for determination. When the application came up for hearing on 8th day of April, 2013 both Counsel adopted their written addresses. In arguing the application learned Counsel cited the authority of Olowu vs. Abolore (1993) 5 NWLR (Pt.293) 255 at 260 which shows the circumstances when an appeal may be dismissed by the Court of Appeal, and when same may be relisted upon good and sufficient cause shown by the applicant. Learned Counsel referred to Ogbu vs. Urum (1981) 4 SC 1; Yonwuren vs. Modern Signs (Nig.) Ltd. (1985) 1 NWLR (Pt.2) 244 and Kraus vs. Thompson Ltd. without citation. It was argued that since the appeal was dismissed under Order 8 rule 18 of the Court of Appeal Rules, 2011 same could be relisted upon good cause shown. Counsel referred to the 32 paragraph affidavit as showing good and sufficient cause why the appeal should be relisted, laying blame on Counsel who had been assigned the case file but was for a long time sick and could not prosecute the appeal citing Saraki vs. Kotoye without citation; Doherty vs. Doherty (1964) 1 All NLR 299 and Ojora vs. Odunsi (1964) NMLR 12. Learned Counsel drew this Court’s attention to the fact that the records have now been compiled and transmitted to this Court. That the conditions for appealing had been fulfilled. The appeal had been entered as No. CA/C/48/2013 to enable its determination on the merit else the applicant will suffer for the sins of Counsel. The application was entered on the same day the appeal was dismissed. Counsel further referred to the following authorities which shows that the appeal dismissed not on the merit could be relisted, namely, Olowokere vs. African Newspapers (1993) 5 NWLR (Pt.295) 583 at 586; Alagbe vs. Abimbola (1978) 2 SC 39 and Bowaje vs. Adediwura (1976) 6 SC 143. Counsel urged this Court to relist the appeal as good and sufficient reasons have been shown by the appellant.
Learned Counsel to the respondent drew this Court’s attention to the fact that the applicant had filed the Notice of Appeal on 4th day of April, 2012 but went to sleep until the appeal was dismissed on 4th day of March, 2013 by virtue of Order 8 Rule 18 of the Court of Appeal Rules, 2011 for failure to fulfill the conditions of appeal fixed by the Registrar of the lower Court for the settlement of records on 19th day of April, 2012. That the sixty days allowed for the expiration of the records expired on 4th day of June, 2012. The 30 days allowed for the applicant to compile and transmit the records to this Court also expired on 4th day of July, 2012. The applicant lost interest in prosecuting appeal. The bringing of this application was to further frustrate the respondent from reaping the fruits of his judgment delivered on 19th day of January, 2012. No cogent, sufficient and good reasons had been given by the applicant why they failed to pursue the appeal upon its being filed argued learned Counsel. For example the name of the Counsel assigned the case file was not stated; neither did the Counsel exhibit any medical certificate to show his ill-health, citing Owajeh vs. Owajeh (2009) All FWLR (Pt.458) 287 at 290-291. Moreover, the applicant was relying in this application on the record of appeal compiled and transmitted to this Court on 4th day March, 2013 hence there is no competent record of appeal. Counsel urged this Court to strike out this application.
From the facts presented before this Court it is evident that the respondent obtained judgment in the lower Court on 19th day of January, 2012. The Notice of Appeal was filed on 4th day of April, 2012. The Principal Assistant Registrar of the Court below served notices to the parties/Counsel to appear at the registry on Thursday, 19th day of April, 2012 at the hour of 12 O’clock to proceed with the settlement of the records. The notice was dated 11th day of April, 2012. See page 200 of the printed record. At page 201 of the same record appears the following entry:
“Settlement of Records:
Parties were invited by the Registrar to settle record of appeal on 19th April, 2012.
Counsel for the Appellant was not present nor represented but called that the Respondent/plaintiff Counsel A.U. Akpan, Esq. that was present should indicate what should be used in the records while he has already suggested that all Court processes filed in this matter by both parties be made part of the record. Also to be incorporated are Court proceedings and Court forms.
Counsel for the Respondent jointly supported the suggestion of the Appellants’ Counsel.
Conditions of Appeal:
1. The Appellant to provide all materials needed for the compilations of the appeal records and subsequent submission/transmission of same to Court of Appeal.
2. The conditions to be perfected within 7 days from the date of receipt of this settlement.”
The applicant’s Counsel did not honour the invitation; the respondent’s Counsel did. The applicant would not provide the necessary materials for the compilation of the records within seven days from the date of receipt of this settlement until the time for doing so had expired. Even when the respondent filed an application for the dismissal of the appeal which was served on the applicant’s Counsel on 21st day of January, 2013 and the hearing notice on 19th day of February, 2013 there was no response from the Counsel; neither was Counsel or the appellant represented when the application came up for hearing on 4th day of March, 2013. The Respondent’s Counsel moved the application and the Court ruled as follows:
“F.E. Ekanem – for the applicant/respondent
Respondents/Appellants-absent and not represented. Counsel served with motion on the 21st day of January, 2013 and the hearing notice on the 19th day of February, 2013.
Ekenem: I have a motion filed on the 21st January, 2013 for an order to dismiss the appeal notice of which was filed on the 4th April, 2012 for failure to comply with conditions of the appeal and compilation of the record of the appeal within the time prescribed by the Rules of Court. The motion is supported by 5 grounds and 10 paragraphs affidavit to which were attached, a copy of the notice of appeal and a certificate of non-compliance with the conditions of the appeal from the Registrar of the High Court. We rely on all to urge the Court to grant the motion as prayed as it is unchallenged.
Court: After a reading of the grounds and the affidavit in support of the motion, particularly paragraphs 3-9 thereof and the certificate of non-compliance with the conditions of the appeal by the Registrar of the High Court attached as Exhibit “E” and since there is no counter-affidavit to challenge the averments of the applicant and the fact that the respondent/appellant is not represented today after it was duly served the hearing notice of the motion, we find it expedient to grant the motion as prayed. The time for the compilation and transmission of the record of the appeal as prescribed by the Rules of the Court has since expired and there is no record of any step whatsoever taken by the appellant to do so. The motion is granted as prayed and the appeal dismissed for non-compliance.
SGD.
M. L. GARBA, JCA
04/03/2013.”
The dismissal of the appeal was for failure of the Registrar to compile and transmit the records to this Court within the 60 days stipulated by Order 8 rules 1-5 of the Court of Appeal Rules, 2011. In my judgment since the applicant did not supply all materials needed for the compilation and transmission of the records to the Court of Appeal within seven days, and the time had expired, the onus of doing so fell on the applicant under Order 8 rule 4 and 5 of the Rules (supra) which provides as follows:
“4. Where at the expiration of 60 days after the filing of the notice of appeal the registrar has failed and or neglected to compile and transmit the Records of Appeal in accordance with the preceding provisions of this Rules, it shall become mandatory for the Appellant to compile the records of all documents and exhibits necessary for his appeal and transmit to the Court within 30 days after the registrar’s failure or neglected.
5. Such Record compiled by the Appellant, shall be served on the Respondent or Respondents within the time stipulated for transmitting such records to the Court, which is 30 days.”
The two provisions are mandatorily couched with the use of the word “shall” and should have been obeyed by the applicant. Order 8 rules 18-20 of the Rules (supra) provides what shall happen upon expiration of the time for the compilation of records by the Registrar or the Appellant as the case may be by providing that:
“18. If the registrar has failed to compile and transmit the Records under Rule 1 and the Appellant has also failed to compile and transmit the Records in accordance with Rule 4, the Respondent may by notice of motion move the Court to dismiss the appeal.
19. Where an appeal has been dismissed under Rule 18 of this Order, a Respondent who has given notice under Order 9 may give notice of appeal and the provisions of Order 11 Rule 6 shall apply as if the appeal were brought under that Rule.
20. An Appellant whose appeal has been dismissed under this Rule may apply by notice of motion that his or the appeal be restored and any such application may be made to the Court, who may in its discretion for good and sufficient cause order that such appeal be restored upon such terms as if may think fit.”
The Court of Appeal has the discretion to restore an appeal that was dismissed for failure of the Registrar or the appellant to compile and transmit the records within the stipulated time. The discretion has to be founded on good and sufficient cause and upon such terms as the Court thinks fit. The duty of the applicant is to provide the materials that this Court shall determine to be good and sufficient cause for restoring the dismissed appeal on the cause list. An entry of the ruling of this Court on 4th day of March, 2013 will show that the motion to dismiss the appeal and the hearing notice were respectively served not on the appellant but her learned Counsel on 21st day of January, 2013 and 19th day of February, 2013. But the Notice of Appeal indicated that address for service of processes should be at:
“2. The Applicant,
c/o The Area Postal Manager,
Nipost Territorial Quarters,
Federal Secretariat,
Calabar, Cross River State.”
An address for service of processes is very important and this must be strictly adhered to. To do otherwise may be held to constitute substituted service which always requires the leave of the Court issuing the process. Order 2rules 1-8 of the Court of Appeal Rules, 2011 provides thus:
“1(a) Every Notice of Appeal shall, subject to the provisions of Order 2 Rules 7, 8 and 9, be served personally; provided that if the Court is satisfied that the notice of appeal has in fact been communicated to the Respondent, no objection to the hearing of the appeal shall lie on the ground that the notice of appeal was not served personally.
(b) Except as may be otherwise provided in these Rules or in any other written law, it shall not be mandatory for notices, orders, summonses, warrants or other processes of the Court to be served personally.
2. Any reference in these Rules to an address for service means a physical or postal address within the Federal Republic of Nigeria or an electronic-mail address or a facsimile number or telephone number or any other mode of communication as may become available to where notices and other processes, which are not required to be served personally, may be left or sent or posted or transmitted.
3. Where under these Rules, any notice or other process is required to have an address for service endorsed on it, it shall not be deemed to have been properly filed unless such address has been endorsed on it.
4. Where under these Rules any person has given an address for service, any notice or other process, which is not required to be served personally, shall be sufficiently served upon him if:
(a) Left at that address or
(b) Sent by registered post to that address and in which case if the date of service by post is material, Section 26 of the Interpretation Act, 2004 shall apply, or
(c) Transmitted by electronic means to the electronic mail address or facsimile number or telephone number or any other mode of electronic communication.
5. Any person desiring to change his address for service shall notify the Registrar and shall also communicate the new address to all other parties to the appeal.
6. Where any person has given the address of a Legal Practitioner as his address for service and the Legal Practitioner is not, or has ceased to be instructed by him for the purpose of the proceedings concerned, it shall be the duty of the Legal Practitioner to inform the Registrar as soon as may be practicable that he is not or no longer authorized to accept service on behalf of such person, and if he omits to do so he may be ordered to personally pay any costs occasioned thereby.
7. Where a Minister or Commissioner, or the Attorney-General, or the Director of Public Prosecutions, or any other public officer of the Federal Republic of Nigeria or of a State thereof is a party ex-officio or as representing the Federal or a State Government, as the case may be, in any proceedings in the Court, whether civil or criminal, any notice or other document may be served on him by leaving it at or by sending it by registered post to his chambers or office and service in this manner shall be as effective as if it were personal service.
8. Where any document is required by these Rules to be served personally, it shall be sufficiently served if it is served in the manner prescribed by law for the personal service of a writ of summons issued by the High Court having jurisdiction in the State in which service is to be effected and if it appears to the Court that for any reason personal service cannot be conveniently effected, the Court shall have the same power as that High Court to direct that service be effected in some other way.”
I have taken into consideration the fact that the Notice which initiated this appeal provided an address for service on the appellant and not her Legal Practitioner hence all applications or hearing notices, etc, should have been directed to that address except it was subsequently provided that service was to be on the Legal Practitioner. In Theophilus Adebayo Doherty & Anor. vs. Richard Ade Doherty (1964) All NLR 292 the appellant’s Solicitor was served with the notice to appear before the Registrar for the purpose of settlement of the records and for the fulfillment of the conditions of appeal under Order 7 rule 17(1) of the Supreme Court Rules, 1961. The Solicitor did not attend the summons. The appeal was subsequently dismissed. The appellants applied for the restoration of the appeal because of non-service of the summons on them. The respondent objected but did not show how he would be prejudiced if the appeal was restored to be determined on the merit. In restoring the appeal on the cause list for determination on the merit the Supreme Court held at page 294 of the judgment as follows.
“It is sufficient to point out that whilst we do no exclude the possibility of the principles contained in the cases relied upon by the learned Counsel for the respondent applying to a matter of this type, it is necessary to emphasize that cases of this nature must be considered on their own peculiar facts. It is obvious that in this case the appellants did give instructions to their solicitors to appeal against the decision of the High Court given in this matter on the 8th of November, 1963, and that Notice of Appeal was duly filed on the 3rd of December, 1963. No argument of any substance has been put forward on behalf of the respondent to show that he would he prejudiced or embarrassed by the hearing of this appeal on the merits so as to render it inequitable to re-open the case and it is not possible on the affidavits before us to conclude that the appellants’ case is manifestly insupportable. Furthermore, in the cases cited the parties applying for restoration were personally served with necessary processes whereas in the case before us as indicated above the appellants were at no time personally served. It occurs to us that the failure to comply with the conditions of appeal is entirely due in this case to the fault of the appellants’ solicitors and to shut them out from the hearing of the appeal on the merits is to hold them personally responsible for the negligence of their solicitors. In the course of his argument, learned Counsel for the respondent indicated that in view of the fate of this appeal he had withdrawn the respondent’s cross- appeal against the interlocutory order of the High Court of Lagos staying the execution or operation of the order against which the appellant had appealed. On this point we will observe that an order to relist the appeal of the appellants in this case will not Eo Ipso resuscitate the interim order for stay of operation of the order of 8th of November, 1963, and it would be left to both parties to seek legal advice as to what further steps they will take in the present circumstances.
On the facts of the application before us, we have come to the conclusion that we should exercise our discretion as provided in Order 7 Rule 17(4) and grant the application as prayed. We accordingly set aside the order of the 18th of May, 1964, dismissing this appeal and order that this appeal be restored on condition that within seven days hereof the appellants comply with the conditions of appeal imposed by the Registrar in this case. The appellants must pay to the respondent the costs of this application fixed at five guineas.”
See also Ibodo vs. Enarofia (1980) 5-7 SC 42 at 52; Ahmadu vs. Salawu (1974) 1 All NLR (pt.2) 318. But the above exception is limited to procedural irregularities, errors, blunders, mistakes, inadvertence or negligence of Counsel. See Bello Akanbi & 3 Ors. vs. Mamuda Alao & Anor.(1989) All NLR 424 at 440 per Craig, JSC and at page 443 per Esho, JSC and Bamaiyi vs. The State (2003) 17 NWLR (Pt.842) 47 at 64.
In Chief E.A. Lamai vs. Chief M.C.K. Orbih (1980) 5 SC 20 Obaseki, JSC stated as follows at page 27.
“This Court has held repeatedly that it will not bring to bear on the fortunes of the parties to an appeal the disastrous effect of the negligence or inadvertence of Counsel to take within time, the steps prescribed by law to bring any matter properly before the Court, when proper applications are made to extend the period prescribed by law for taking such steps.
In this regard, I refer to the case of Tunji Bowaje vs. Moses Adediwura (1976) 6 SC 143 where at page 147, Bello, JSC, (delivering the ruling of this Court) said:
“This Court would readily exercise its discretion to extend periods prescribed for doing an act if it is shown to the satisfaction of the Court that the failure by a party to do the act within the period prescribed was caused by negligence or inadvertence of Counsel (See T.A. Doherty & Anor vs. R.A. Doherty (1964) 1 All NLR 299 and G.B.A. Akinyede vs. The Appraiser (1971) 1 All NLR 162).”
Learned Counsel drew attention to the fact that the name of the Counsel that was handed the case file to prosecute the appeal was not stated; neither did the applicant exhibit his medical certificate showing the nature of the ill-health which precluded the Counsel from complying with the conditions for compilation of the record that resulted into the dismissal of the appeal. That may be true. But it was held by the Supreme Court in Akanke Olowu & Ors. vs. Amudatu Abolore (1993) 5 NWLR (Pt.293) 255 at 271 paragraph “A-B”:
“The Court of Appeal Rules provide for dismissing an appeal in the following circumstances. First, where there is non-compliance with conditions of appeal, See Order 3 rule 20 sub-rule (1). Secondly, if the appellant fails to appear when his appeal is called on for hearing – See Order 3 rule 25, sub-rule (1). Thirdly, where an appellant fails to file his brief of argument within the time as extended by the Court – Order 6 rule 10. In the first two situations the rules have made provision enabling relisting the appeal so dismissed…
Now, the three situations enabling application for the dismissal of an appeal are different. Non-compliance with conditions of appeal is different from non-appearance of the appellant. The two are different from failure to file appellant’s brief of argument. Whereas there are provisions for an appeal dismissed under the first two, to be relisted, there is no provision in Order 6 enabling relisting an appeal dismissed for failure to file appellant’s brief of argument under sub-rule 10.”
In this case the Supreme Court considered the provisions of Order 3 rule 20(1), (3) and (4) of the Court of Appeal Rules, 1981 in pari materia with Order 8 rules 18 and 20 of the Court of Appeal Rules, 2011. But if the dismissal is for failure to file the appellant’s brief upon the compilation and service of the records on the appellant the Court of Appeal will lack the jurisdiction to relist same for hearing and determination on the merit as no provision is made in the Rules of Court for restoration of a dismissal appeal in such a circumstance. See Olowu vs. Abolore (supra) at page 273 paragraphs “F” to page 278 paragraphs “A”-“E” Yonwuren vs. Modern Signs (Nig.) Ltd. (1985)1 NWLR (Pt.2) 244 and Chief Iro Ogbu & Ors. vs. Chief Ogburu Orum & Anor (1984) 4 SC 1.
In my view since the dismissal of the appeal was for failure to fulfill the conditions for compilation and transmission of the record but not for failure to file appellant’s brief, and considering that the record of appeal was compiled and transmitted to this Court on 4th March, 2013 this Court cannot shut out the appellants from being heard on the merit. The presumption is that the conditions set down for the Registrar to compile and transmit the records have been complied with. All that the applicant needs is to seek a deeming order to regularize the records. Even if there is no such relief this Court has the inherent powers to suo motu deem the records as properly compiled and transmitted to this Court so that hearing of the appeal shall be on the merit. See United Bank for Africa Ltd. vs. Nwora (1978) 2 LRN 149 where the Supreme Court held at page 155 that:
“Looking at this particular case where each defendant has filed a statement of defence which, having regard to his observation, the Chief Judge must have found to disclose a substantial ground of defence, it seems to us that if is a wrong exercise of his discretion to have ordered the defendants to file an application for enlargement of time within which to file a defence within ten days from the date of his order, thus indicating, albeit by implication, that no statements of defence had been filed before. With respect, we think it was erroneous of him to have ordered them, in those circumstances, to apply for extension of time to file what amounted to new statements of defence within ten days. Surely, this discretion, which the Chief Judge undoubtedly has in the matter, must be exercised judiciously bearing in mind that it is the duty of the Court whenever possible, not only to minimize the cost of litigation, but also to see to it that justice is not delayed unnecessarily.
In our view, the Chief Judge, in the exercise of his power under Order 18, rule 6, should have extended the time suo motu up to 18th April, 1976, the day when he delivered his ruling. By ordering the defendants, as he did, to apply within ten days to file another statement of defence, the Chief Judge, if we may say so, again with respect, was merely taking refuge in an unnecessary legal technicality which would obviously delay the hearing of the action further. We think he should have extended the time to file the statements of defence to the date of his ruling, order that the statements of defence already filed had been duly filed, and then fix a date for the hearing of the case.”
The decided cases show that where the default, negligence, inadvertence, mistake, etc, that resulted into the failure to comply with the rules of the Court is laid at the doorstep of Counsel, there should be exhibited an affidavit from that Counsel. If it is ill-health medical certificate should be provided to support such a claim or assertion. See Adekola Alagbe vs. His Highness Samuel Abimbola & Ors. (1978) 1-3 SC 28; Chief E.A. Lamai vs. Chief M.C.K. Orbih (supra) at pages 27; Ojora v. Bakare (1976) 1-7 SC 26 at 29 and JIC Ltd. vs. R. L. Import-Export Ltd. (1988) 7 SCNJ 93 at 108. None was filed nor medical certificate by Counsel assigned the case exhibited. But the application is supported by the affidavit of A. S. Aduku the Chief Investigation Officer in the Security and Investigation Department of the Nigerian Postal Service Territorial Headquarters, Calabar, Cross River State not by any learned Counsel. Furthermore, having already held that rather than serving the motion and hearing notices on the address indicated in the Notice and Ground of Appeal, it was done on Counsel to the appellant, I am of the view that to refuse this application will prejudice the appeal of the appellant from a hearing on the merit. Blunders shall never end. But every effort should be exerted to ensure that where possible, appeals are heard on the merit. The defaulting party may be penalized upon payment of some monetary compensation.
Accordingly, this application is not only granted but the records transmitted by the registry of the Court below shall be deemed properly compiled, transmitted and served on the parties from today to enable them file their respective briefs of argument. Applicant to pay N20,000.00 cost to the respondent.
MOHAMMED LAWAL GARBA, J.C.A.: I have read a draft of the lead ruling delivered by my learned brother, Joseph Tine Tur, JCA, in this motion. I agree with the conclusion that in the peculiar facts deposed to in the Applicants’ affidavit, the motion deserves to succeed.
I would like to emphasize that the court, pursuant to the provisions of Order 8, Rule 20 of the Court of Appeal Rules, 2011, (set out in the lead ruling) is vested with the discretionary jurisdiction to, for good and sufficient cause shown by an Applicant whose appeal was dismissed for failure to compile and transmit the record of the appeal within the time prescribed by the Rules or extended by the court, order for the restoration of the said appeal on its cause list for determination upon such terms as it may think fit. The court therefore has the power by the express provisions of the Order to restore an appeal dismissed for failing to compile and transmit the record of appeal in time, in deserving cases or situations.
As clearly demonstrated in the lead ruling, the situation provided for by the provisions of Order 8, Rule 20, is different and distinguishable from a situation in which the court dismissed an appeal on the ground that the Appellant had failed to file the Appellant’s brief within the time prescribed by the Rules or as extended by the court, which is provided for in Order 18, Rule 10(2) of the Court of Appeal Rule, 2011. In the latter situation, there is provisions in the Rules that vest a right in the party whose appeal was dismissed for failure to file the Appellants’ brief, to bring an application to the court seeking for an order for the restoration of such an appeal on the cause list. Similarly, the Rules contain no provisions which vest the court with the requisite jurisdiction to, in the event that any such application was brought by the party, to entertain and make the order for the restoration of the appeal on its cause list. The only viable legal option available to a party in such a situation is to exercise the constitutional right to appeal against the order of dismissal, to the apex court. See Kraus Thompson Organisation v N.I.P.S.S. (2004) 17 NWLR (901) 44; Orobator v Amata (1981) 5 SC. 276; Nwaora v Nwanboku (1985) 2 SC. 86 at 167.
Since the Applicant’s appeal was dismissed for failure to compile and transmit the record of the appeal within the time prescribed by the Rules, the dismissal was not final because it was ordered when the appeal had not been entered in the court and so has the effect of a striking out because the court was not fully seized of the appeal for the order to be final.
For the above and fuller reasons given in the lead ruling, I too find merit in the motion and grant it in the terms thereof.
UZO I. NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form, the ruling just delivered by my learned brother Joseph Tine Tur, JCA. I am in total agreement with the reasoning and final conclusions contained therein. I also abide by all the consequential orders and adopt same as mine including that on cost.
Appearances
S. O. Sangotayo, Esq.- for the Appellant/ApplicantFor Appellant
AND
F. E. Ekanem, Esq.For Respondent
