LawCare Nigeria

Nigeria Legal Information & Law Reports

PHILIP OBIORA v. PAUL OSELE(1989)

PHILIP OBIORA v. PAUL OSELE

In The Supreme Court of Nigeria

On Friday, the 27th day of January, 1989

SC.70/1987

 

JUSTICES

ANDREWS OTUTU OBASEKI    Justice of The Supreme Court of Nigeria

MUHAMMADU LAWAL UWAIS    Justice of The Supreme Court of Nigeria

CHUKWUDIFU AKUNNE OPUTA    Justice of The Supreme Court of Nigeria

ABDUL GANIYU OLATUNJI AGBAJE    Justice of The Supreme Court of Nigeria

ABUBAKAR BASHIR WALI    Justice of The Supreme Court of Nigeria

Between

 

PHILIP OBIORA  Appellant(s)

AND

PAUL OSELE  Respondent(s)

RATIO

THE PRINCIPLE OF DISMISSAL FOR WANT OF PROSECUTION

The principle of dismissal for want of prosecution is not new. In the trial courts, the powers to dismiss an action for want of prosecution are often invoked if the plaintiff defaults in filing his statement of claim and there is prolonged or inordinate and inexcusable delay in the prosecution of the action or if the plaintiff does not issue his summons for direction within the specified time. (See page 431 – The Supreme Court Practice 1979 White Book. Note 25/1/3A under Order 25 Rule 1). The principle is that it is the duty of the plaintiff’s or appellant’s counsel in the instant appeal to get on with the case since public policy demands that the business of the courts should be conducted with expedition. It is a notorious fact that there is congestion of cases in most of the courts in Nigeria and this principle of pursuing claims and appeals expeditiously is designed to bring relief to and decongest the courts.
The principle can only be applied in appropriate cases, and I must say that this instant appeal is not one of the appropriate cases for the application. In the case of Olajide Olaore & ors. v. Titus Adigun Oke (1987) 12 S.C.1, this Court was called upon to deal with a similar mailer as is now before this court. The appeal was one of those excepted from the operation of the Court of Appeal (Amendment) Rules 1984 but the Court of Appeal having ordered briefs to be filed proceeded to dismiss the appeal under Order 6 Rule 10 for want of prosecution on failure of the appellants or their counsel to appear and their failure to file brief. The appeal to this court was allowed, the order of dismissal for want of prosecution set aside and in its stead, an order striking out the appeal for non-appearance of the appellants substituted. This was because the appellants were absent when the Court of Appeal made its order. PER OBASEKI, J.S.C.

OBASEKI, J.S.C. (Delivering the Leading Judgment): On the 1st day of November, 1988, I allowed this appeal after hearing counsel to the parties both on the written briefs and in oral argument, set aside the decision of the Court of Appeal and remitted the case to the Court of Appeal to hear and determine the appeal on its merits. I then reserved the Reasons for my judgment till today and I now proceed to give them.
The short point in this appeal is whether the judgment of the Court of Appeal wherein the appeal to the Court of Appeal was dismissed for want of prosecution can be sustained having regard to the fact that the Court of Appeal had heard in part oral argument from the appellant’s counsel and had before it briefs of the appellant, the quality of the brief notwithstanding.
The appellant was plaintiff in suit No.PHC 350/81, he instituted against the respondent as defendant at the High Court of Rivers State in the Port Harcourt Judicial Division claiming:
(1) N20,160.00 as money had and received by the defendant on behalf of the plaintiff for 7 years at N2,880.00 per annum;
Particulars
(a) Amount of N5,000.00 rent received from the Abandoned Property Implementation Committee as agent of plaintiff;
(2) Mesne profit at the rate of N240.00 per month starting from January, 1982 until the defendant gives up possession of the said plot to the plaintiff;
(3) Order that the defendant effect formal assignment of plot No.100 Egede Street, Mile 2 Diobu, Port Harcourt to the plaintiff;
(4) Perpetual injunction restraining the defendant from further collecting rents from the said building.
Pleadings were, on the order of the court, filed and served and the issues joined came up for hearing before Pepple, J. Five witnesses testified for the plaintiff/appellant and 2 witnesses testified for the defence. Counsel then addressed the learned trial Judge before the learned trial Judge adjourned to consider the judgment. On the adjourned date, ten days later, i.e. on the 12th day of November, 1982, the learned trial Judge delivered a considered judgment in which he dismissed the suit.
Being dissatisfied with the decision, the plaintiff appealed to the Court of Appeal. The notice of appeal was filed on the 10th day of December, 1982. The notice of appeal filed is prolix that it ought not to have escaped adverse comments. Thirteen grounds were filed. Each ground was followed by copious comments in the notice of appeal. With the leave of the Court of Appeal, grounds 14 to 19 were added. The record book shows that the case was listed for hearing on the 5th of December, 1983. On that date, counsel appeared for both parties. But the court adjourned the hearing to the 26th April, 1984. On the 26/4/84, learned Counsel for the appellant, Chief Anyaegbunam began argument on the appeal on behalf of the appellant. Objections were taken to grounds 3, 4, 5, 6, 7, 8, 9, 10, 11, 12 and 13 on the ground of lack of particulars. He conceded grounds 8, 9, 10, 11 and 12. The court struck out grounds 5, 8, 9, 10, 11 and 12.
Counsel argued grounds 2 and 7 together. He made submissions on them. At this stage, the appeal was adjourned to 17/5/1984 for further hearing. On 17/5/84, the court sat and heard another motion for additional grounds of appeal. After hearing counsel on his application for additional grounds which he later withdrew, the court struck out the additional grounds filed on 9/5/84 and adjourned further hearing of the appeal to 24/10/84. On the 24/10/84, in the presence of counsel to the parties, the court adjourned the appeal to 7/11/84. On 7/11/84, a motion to file additional grounds of appeal was taken and granted by the court. Respondent’s counsel did not oppose the motion. The appellant was given 14 days to file his grounds and it was recorded “parties agree that it is desirable at this stage to file briefs. Appeal adjourned 3/4/85”. It should be observed that NO ORDER for briefs to be filed was made.
On 3/4/85, the court sat and on the application of counsel to the appellant, adjourned to 8/7/85 for hearing in the cause. Before then, counsel to the respondent drew the court’s attention to the pending motion strike out the brief. On 8/7/85, the court sat and heard the appellant’s motion. The proceedings for that day read:
“B.D. Anyaegbunam for Applicant
G.N.A. Okafor (Chimoba with him) for Respondent
(i) Motion to enlarge time to file brief Mr. Okafor does not oppose;
Court: Order as prayed. Brief of appellant is deemed to have been properly filed;
(ii) By Mr. Okafor: Motion to strike out the appeal adjourned to 18/9/85.”
On the 18th day of September, 1985, the court sat although differently constituted. Instead of Phil-Ebosie (Presiding Justice), Aseme and Katsina-Alu, JJ.C.A., the coram consisted of Olatawura, Aikawa and Katsina-Alu, JJ .C.A. The court adjourned Mr. Okafor’s application. The record reads:
‘B.D.O. Anyaegbunam (I.N. Okeke with him) for Appellant
G.N.A. Okafor for the Respondent.
Court: This application of Mr. Okafor will be adjourned to 3/10/85 in view of the conflicting views expressed by the panel that granted Mr. Anyaegbunam’s application for a new brief.”
The record does not show any sitting on the 3/10/85. Instead, it showed record of proceedings on 15/1/86 when the court consisted of Aseme, Olatawura and Katsina-Alu, JJ.C.A. On that day, the motion filed by Mr. Okafor was heard. The prayers in the motion paper were for an order:
“(a) striking out the brief of argument filed on the appellant’s behalf by his counsel as not being in conformity with the Rules, and
(b) dismissing the appeal for want of prosecution and for such further or other orders as the court may deem fit to make in the circumstances.”
Paragraphs 2 and 3 of the supporting affidavit evidence read
“2. That on 21/1/85, I received by registered post the Brief of Argument filed by plaintiffs/appellant’s counsel.
3. That on perusing the brief, I find that it does not conform with Order 6 of the Court of Appeal Rules 1981 as amended by the Court of Appeal (Amendment) Rules 1984 in that-
(a) The appellant’s brief is not a succinct statement of his argument in the appeal contrary to Order 6 Rule 2 but only a serial discussion of the grounds of appeal filed;
(b) the brief does not conclude with a numbered summary of the points to be raised on appeal, contrary to Order 6 Rule 3(d);
(c) the brief does not contain the Reasons upon which the argument is founded contrary to Order 6 Rule 3(d);
(d) the brief does not set out the issue or issues for determination in the appeal contrary to Order 6 Rule 3(a).”
In the Court of Appeal, respondent’s counsel, Mr. Okafor’s argument was recorded as follows:
“The appellant’s brief is a reproduction of the grounds of appeal and does not give the particulars (sic) regard [to read “required”] Order 6 Rules 2 and 3 of the Court of Appeal Rules 1981. It does not contain the issues arising in the appeal. I ask that the brief be struck out. Since there is no brief, the court has no jurisdiction and that the appeal be dismissed for want of prosecution.”
Appellant’s counsel in reply argued that:
“the amended brief is in substantial compliance with Rules and asked for adjournment to supply authorities in support of his contention.”
The motion was accordingly adjourned for further argument to 29/1/86.
On the adjourned date, appellant’s counsel maintained his argument that issues for determination were raised in each ground and that in any case, no brief can be struck out or dismissed on account of non-compliance with the Rules. He prayed the court to allow the appeal to go on even if it agreed with the objection. The court then reserved its ruling. On the 18th day of March, 1986, Olatawura, J .C.A. read the reserved Ruling dismissing the appeal for want of prosecution. This Ruling was concurred in by Aseme and Katsina-Alu, JJ.CA.
The learned Justices of the Court of Appeal adverted their minds to the fact that the Court of Appeal (Amendment) Rules 1984 did not provide any sanction for filing a brief whose format was not in strict compliance with the Rules. They however did not advert their minds to the fact that this appeal was listed for hearing long before the rules for filing briefs came into force and that the Court of Appeal (Amendment) Rules 1984 excluded all cases listed for hearing before December, 1984 from the operation of the Rules. Thus, Olatawura, JCA. in his lead judgment observed:
“What is in issue here is the provision of our rules dealing with briefs. The forms and contents of a brief are contained in Order 6 Rule 3 of the Rules of this Court: The mandatory provisions are 3(a), (b), (c) and (d), for the purpose of this ruling, I will set out Rule 3(a), (c) and (d). They are as follows:
3(a) The brief, which may be settled by court, shall contain an address or addresses for service and shall contain what are, in the appellant’s view, the issues arising in the appeal as well as any points taken in the court below which the (sic) appeal (read appellant) wishes to abandon and any point not taken in the court which he intends to seek leave of the court to argue at the hearing of the appeal;
(b) Omitted.
(c) The parties shall assume that the briefs will be read and considered in conjunction with the documents admitted in evidence as exhibits during the proceedings in the court below, and, wherever necessary, reference shall also be made to all relevant documents or exhibits on which they propose to rely in argument;
(d) All briefs shall be concluded with a numbered summary of the points to be raised and the reasons upon which the argument is founded.
In so far as the record of this court is concerned, there is still on record.
(i) the brief filed on 28-11-84;
(ii) the additional brief filed along with the motion dated 12th March, 1985; and
(iii) yet another additional brief filed on 29/4/85…
Now to the kernel of this application. In the affidavit of the plaintiff/appellant in support of the motion, the appellant deposed in paragraph 3 of the affidavit as follows:
“3. That I am advised by my counsel, B.D.O. Anyaegbunam Esq. that it is necessary to file fresh brief in order to comply fully with requirements of the rules of practice and I verily believe him.
If learned Counsel is aware of this requirement, he cannot now be heard to say he has complied substantially with the said rule.
Pages 1-3 are a reproduction of the grounds of appeal which are 10 in number. On pages 4-10 learned Counsel raises issues or questions for determination under each ground of appeal, then pages 10-22 deal with arguments and under the heading ‘Conclusion’ the learned Counsel said:
‘In view of the foregoing submissions, I urge the Honourable Court of Appeal to allow the appeal, set aside the judgment of trial Judge Honourable Mr. Justice Barclay B. Pepple at Port Harcourt High Court and dated 12th day of November, 1982 and to enter judgment for the plaintiff/appellant as claimed.’
I cannot see the difference between what counsel regarded as his conclusion and the relief claimed on page 80 under the notice and grounds of appeal… I cannot but share the view of Mr. Okafor as to the embarrassment caused by what learned counsel for the appellant called a brief. What Mr. Anyaegbunam called a brief, quite apart from the fact that the rule makes no provision for “appellant additional brief’ falls far short of what Order 6 Rule 2 requires and is a mutilation of Rule 3(a) and (b) of the same Order. The Order for filing briefs came into effect on 1st September, 1984.”
It appears the learned Justice did not advert fully to the provisions of sub-paragraph 2 of paragraph 1 referred to by counsel as section 1(2) of the Court of Appeal (Amendment) Rules 1984 which reads: “These Rules shall come into force on the 1st day of September, 1984 and shall apply to all appeals except those which have been listed for hearing on or before the 31st day of December, 1984.”
Since the matter in the instant appeal was listed before the Court of Appeal as has been shown above, before 31st December, 1984, the matter on appeal is excepted from the operation of the provision of Order 6 of the Court of Appeal Rules 1981 as amended. Even if the provisions of Order 6 applied, the provisions of Rule 9(a) ought to have been invoked by the court. It reads:
“Oral argument will be allowed at the hearing of appeal to emphasize and clarify the written argument appearing in the briefs filed in court.”
It ought, in my respectful view, to have been obvious to the learned Justices of the Court of Appeal that even if the appellant and his counsel had been absent, the appellant having filed his brief, this case should have been treated as having been argued under the provisions of Rule 9 (a) of Order 6 and not under Rule 10 of Order 6, the provisions of which are very clear. The Rule, Rule 10 of Order 6, provides sanction only for failure of the appellant to file his brief. It reads:
“Where an appellant fails to file his brief within the time provided for in Rule 2 above, 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 except by leave of the court. 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 respondent’s brief.” (Italics mine)
Olatawura, J.C.A. was, with respect, fully aware of the prayers in the motion moved by Mr. G.N.A. Okafor and this is borne out by his observation and conclusion in his lead judgment which reads:
“The order sought by Mr. Okafor is a dismissal of the appeal for want of prosecution. The issues arising from an appeal are the major complaints which the appellant thinks have been improperly or insufficiently treated by the trial Judge. These issues must flow from the grounds of appeal. Consequently, an issue which has no bearing with the ground of appeal cannot be resolved in an appeal as the grounds of appeal form the basis of the complaints.
Ademola, J.C.A. has dealt with the requirements of Order 6 in Archbode Engineering Limited v. Water Resources Hydro Technique Wassertechnick, AG & Anor.(1985)3 N.W.L.R. (Pt.12) 300. I will uphold the objection of Mr. Okafor and grant the prayer that the appeal be dismissed for want of prosecution. The appeal is hereby dismissed for want of prosecution.”
Although Aseme, J.C.A. concurred in the Order of Dismissal for want of prosecution, he was fully aware that the Rules of Court did not provide an order of dismissal for want of prosecution as sanction for filing a brief which the court considers not strictly in the form ordered by the Rules. This is borne out by his observation in his Ruling which reads:
“It would seem that although there is sanction imposed for non-filing of briefs, no of briefs, no sanction is imposed for briefs which do not conform with Order 6 Rule 3. We therefore took the view that as rules of court must be obeyed, a brief that does not comply with the provisions of Order 6 Rule 3 is in law no brief at all as it defeats the very purpose for which the rules were made, that is, to enhance quick disposal of the appeal. Bearing in mind that blunders in the application of the Rules of procedure could be expected, distinction must be drawn between defiance to file a brief and filing a brief which does not conform with Order 6 Rule 3.” (Italics mine)
The three Justices of the Court of Appeal expressed disapproval of the conduct of appellant’s counsel in failing to take a hint from the Bench. Dissatisfied with the order of dismissal of the appeal for want of prosecution, the appellant brought the instant appeal to this Court on 4 grounds. These 4 grounds of appeal with some of their particulars read:
“(1) The learned Justices of the Court of Appeal acted without jurisdiction by ordering the filing of brief as a condition for the hearing of the appeal when it is mandatory that Order 6 of the Court of Appeal (Amendment) Rules does not apply to appeals listed for hearing on or before 31st day of December, 1984.
Particulars
(a) The appeal was listed for hearing on 5th day of December, 1983; after this date, several other steps were taken towards the hearing of the appeal on 26th April, 1984and 17th May, 1984;
(b) The Court of Appeal (Amendment) Rules, 1984 came into force on 31st September, 1984 after the appeal had been listed for hearing and had been part heard (as the records of the Court will reveal);
(c) The Order 6 Rule 3 of the Court of Appeal Rules 1984 under which the Court of Appeal dismissed the appellant’s appeal does not apply to the appellant’s appeal since the appellant’s appeal is expressly excluded from complying with Order 6 Rule 3 as stipulated under section 2 (Paragraph 2) Court of Appeal (Amendment) Rules 1984;
(2) The Honourable trial Justices of the Court of Appeal erred and misdirected themselves in holding that respondent’s counsel could raise preliminary objection against the brief approved by the order of the court on 8th July, 1985 as having been duly filed and served by relying on the application dated 28th January, 1985 when the brief he was to attack was never in existence. The brief was dated 15th April, 1985 and filed on 8th July, 1985.
Particulars
(a) The learned trial Justices failed to realise that the application of the respondent’s counsel dated 28th January 1985 as brought against the previous appellant’s brief dated 4th December, 1984;
(b) The respondent’s counsel consented to the order of the court made on 8th July, 1985 approving the appellant’s brief dated 16th April, 1985 as having been duly filed and served;
(c) Omitted.
(3) The Honourable Justices of the Court of Appeal erred and misdirected themselves in dismissing the appeal on the ground of want of prosecution when in fact, the appellant had been prosecuting his appeal as far back as 5th day of December, 1983.
Particulars
(a) The appellant’s brief approved on 8th July, 1985 as having been duly filed and served was before the court and no valid objection has been raised against it.
(b) Omitted
(c) There is no provision under the Court of Appeal Rules stipulating that whenever the appellant failed to comply with any arm of the provision for filing of the briefs that the appeal shall be dismissed (The appellant’s brief dated 16th April, 1985 is still before the court)
(d) Omitted.
(4) The learned Justices of the Court of Appeal have not exercised their discretionary power judicially by refusing to allow the appeal to go on in the interest of Justice.
Particular
(a) The Honourable Justices of the Appeal ought to have exercised their discretion in favour of the appellant and waive the compliance with any part of the Rule as provided in Order 6 Rule 11 of the Court of Appeal (Amendment). Rules, 1984 and/or Court of Appeal Rules 1981 Order 7 Rule 3 since the brief dated 16th April, 1985 and filed on 8th July, 1985 had substantially complied with the Rules of the Court;
(b) The appeal ought not to be dismissed under Order 6 Rule 10 for want of prosecution since the appellant complied with Order 6 Rule 2. The former applies where no brief was filed.
In his brief of argument, the appellant formulated 4 issues or questions for determination in this appeal. They are:
(1) whether the Court of Appeal has the jurisdiction to dispense with the compliance with the mandatory section 1(2) of the Court of Appeal (Amendment) Rules 1984 in the instant appeal by ordering the filing of brief on 7th November, 1984 in an appeal listed for hearing on 5th day of December, 1983 and had been part-heard before the order for filing briefs was made by the Court of Appeal
(2) whether the entertainment of preliminary objection to the hearing of the appeal without compliance with the provisions of Order 3 Rule 15(1) Court of Appeal Rules 1981 is proper exercise of judicial power and whether the application filed on 28th January, 1985 will validly be used in attacking the brief filed on 8th July, 1985 and thereby consider the application as having complied with Order 3 Rule 15(1) of the Court of Appeal Rules 1981
(3) whether the Court of Appeal was right in dismissing the appeal for want of prosecution since Order 6 of the Court of Appeal (Amendment) Rules 1984 never made any provision (for such dismissal) and whereas a brief had been properly filed
(4) whether the dismissal of the appellant’s appeal by the Court of Appeal does not amount to wrong exercise of judicial discretion therefore resulting in miscarriage of justice And also whether it is correct to say that the brief of 16/4/85 did not contain issues arising from the appeal
The respondent appears to have adopted the appellant’s formulation of issues for determination in this appeal.
I have, in the opening paragraphs of these Reasons for Judgment, set out what I consider the main issue for determination. I will like to put the question in another way and ask:
“To entitle the Court of Appeal to dismiss the appellant’s appeal for want of prosecution, what default must the appellant commit”
A subsidiary question for determination is this:
“where a brief which has not been drawn up elegantly or in full compliance with the guidelines in the Rules of Court, particularly Order 6 Rule 2 of the Court of Appeal Rules has been filed and served, has the Court of Appeal any jurisdiction or power to strike out the brief either suo motu or on application of the respondent and dismiss the appeal for want of prosecution”
Thirdly,
“was the Court of Appeal entitled to apply the Court of Appeal (Amendment) Rules 1984 Order 6 Rule 3 and invoke the sanction in Order 6 Rule 10 to the instant appeal
Chief B. D. O. Anyaegbunam, learned Counsel to the appellant submitted that the instant appeal was one of the appeals excluded from the operation of the Court of Appeal (Amendment) Rules 1984 by section 1(2) thereof.
He further submitted that even if the Rules applied to the hearing of the appeal he has filed and served the appellant’s amended brief in the time extended by the court and that the brief dated 10th November, 1984 and filed on 28th November, 1984 (see page 92 of the record) to which the objection of the respondent by his motion dated 28th January, 1985 related had been superseded by the brief dated 16th April, 1985 and deemed to have been properly filed by order of the court made on 8th July, 1985.
He then submitted that more importantly was the failure of the Justices of the Court of Appeal to direct their minds to the fact that the appeal was part-heard orally on the 26th April, 1984 before the court consisting of Phil-Ebosie, Aseme and Aikawa, JJ.C.A. He therefore submitted that there is no want of prosecution to warrant dismissal either under the inherent powers of the court or under Order 6 Rule 10 of the Court of Appeal (Amendment) Rules. He then cited Olajide Olaore & ors. v. Titus Adigun Oke (1987) 12 S.C.1.
Mr. G.N. Okafor, learned Counsel for the respondent submitted, while conceding that the instant appeal was listed for hearing before the Court of Appeal (Amendment) Rules, 1984 came into operation and was therefore excepted from its operation that in a proper case such as this instant appeal where parties were consenting the court could make order for filing briefs. The Rules did not prohibit the making of an order for filing of briefs on the request and with the consent of parties, he submitted with emphasis.
In respect of issue No.2, learned Counsel for the respondent submitted that his motion to strike out the original brief was valid and subsisting for the purpose of striking out the subsequent briefs which he regarded as amendment to the original brief.
On issue No.3, learned Counsel for the respondent contended that the brief of 16/4/85 was not in conformity with the Rules and said, according to his brief:
“As stated in the affidavit in support of the motion to dismiss the appeal (page 106), the appellant’s brief was defective in many respect so-much so that the respondent did not know how to answer it hence the objection.
The greatest fault of the appellant’s brief in the respectful submission of the respondent is that it is not a succinct statement of his argument in the appeal.
In Blacks Law Dictionary “succinct” is defined as “brief, precise, exact.” The appellant’s brief was none of these, hence it was embarrassing to answer.”
The submissions of counsel to the appellant are no doubt formidable and the respondent’s counsel’s submissions though attractive and ably presented, are no answers to the points of law made by appellant’s counsel.
I have perused the record of proceedings in the court below and I cannot but agree with respondent’s counsel that the briefs filed by the appellant deserve to undergo very considerable improvement. They were drawn up by counsel and it appears from the opportunity given to counsel by the Court of Appeal to re-write the brief that what he presented on the 16th of April, 1985 was his best at the time.
What is a brief I must search for the definition first in the Court of Appeal (Amendment) Rules. 1984 and more especially in Order 6 Rule 2. That Rule provides as follows:
“The appellant shall within sixty days of the receipt of the record of appeal from the court below file in the court a written brief, being a succinct statement of his argument in the appeal.”
A brief is therefore a succinct statement of the appellant’s or the respondent’s argument in the appeal and by Rule 9(a) of Order 6.
“Oral argument will be allowed at the bearing of the appeal to emphasise and clarify the written argument appearing in the briefs already filed. ”
Once, therefore, a brief is filed, it constitutes the appellant’s or the respondent’s argument in the appeal and nowhere in the Court of Appeal Rules is any provision made for striking out appellant’s argument in the appeal no matter how inelegantly drafted and presented.
Once a brief is drawn up, filed and served by a party, the appeal is argued and the Court of Appeal Rules provide that parties filing briefs should presume that the briefs will be read. (See Order 6 Rule 3(c) of the Court of Appeal (Amendment) Rules 1984).
On issue No.1, whether the Court of Appeal had jurisdiction to order the filing of brief in the instant appeal, having regard to section or paragraph 1(2) of the Court of Appeal (Amendment) Rules 1984, the obvious answer is that the court cannot bring this appeal within the operation of the Court of Appeal (Amendment) Rules 1984. It should be observed that the filing of briefs under the Rules is ordered by the Rules (see Order 6 Rule 2) and not by the courts. The court only extend the time prescribed by the Rules in which to file the brief. The Rules do not in anyway curtail the power of the court to order the filing of briefs in exercise of the court’s inherent power or jurisdiction (see section 6(6)(a) of the Constitution of the Federal Republic of Nigeria 1979). In this matter, no order for the filing of briefs was made by the court. Parties however agreed to file briefs. In my view, the court, being vested with jurisdiction to hear and determine the appeal had inherent jurisdiction to order the parties to file briefs to expedite hearing if it desired. The Court of Appeal never, despite agreement of counsel to file briefs, made order.
The Court of Appeal therefore erred in law to have regarded the briefs filed as briefs filed pursuant to the provisions of the Court of Appeal (Amendment) Rules 1984. Arguments in the appeal having been heard on the 26th day of April, 1984, the appeal became part-heard and the invocation of Order 6 Rule 10 to dispose of the appeal was a serious and grievous error in law which pointed to inadvertence of the minds of the learned Justices of the Court of Appeal to section 1(2) of the Court of Appeal (Amendment) Rules, 1984.
On issue No.2, Order 3 Rule 15(1) of the Court of Appeal Rules 1981 prescribes that a respondent intending to rely upon a preliminary objection to the hearing of the appeal shall give the appellant three days notice thereof before the hearing, and the contention of the appellant-is that the respondent did not give any notice of preliminary objection. Although there was notice of objection dated 28th January, 1985 that objection was to the brief filed in November, 1984 which was later superseded by the brief filed and approved by the court on the 8th day of July, 1985. There is much force in this argument that notice of objection to the appeal was not given as required by the Rules. An objection to one specified document cannot be taken as an objection to another document bearing a totally different date.
The contention of learned counsel to the respondent that the brief filed on the 8th July, 1985 is an amended version of the original brief filed in November, 1984, in my view, rather than destroy lends weight to the strength of the appellant’s argument and shows a total absence of objection to the brief filed on the 8th day of July, 1985. I agree with counsel for the appellant that there is no objection validly made to the brief filed by the appellant on the 8th of July, 1985. It was not in the circumstances, a proper exercise of judicial power to use the motion (objection) filed on the 29th January, 1985 to invoke the powers of the Court of Appeal under Order 6 Rule 10 to dismiss the appeal for want of prosecution. It is observed that despite the oral disparagement of the brief filed on the 8th of July, 1985, no order was made by the court striking out the brief.
I now go on to deal with issues numbers 3 and 4. I agree with learned counsel for the appellant that the Court of Appeal (Amendment) Rules 1984 never made provision for striking out a brief filed by the appellant on the ground of want of form. Therefore, the purported exercise of the powers of dismissal for want of prosecution in this matter by the Court of Appeal under Harder 6 Rule 10 merely because the brief was not in the form set out by the rules was a wrongful exercise of power and occasioned a serious miscarriage of justice. There is no doubt that the brief of 16th April, 1985 filed on 8th of July, 1985 needed a lot of improvement to bring it up to standard. The appellant’s counsel appears to have a lot of material but the arrangement and presentation in the brief is unintelligible. Be that as it may, it is his oral argument in the appeal that he has put down in writing and the court has to make the best out of it in the interest of justice. There is no doubt that what may be described as the failure of appellant’s counsel to master the art of drawing up a brief in consonance with the guidelines set out in the Rules irritated the learned Justices of the Court of Appeal. Judges should not lose their temper with counselor litigants no matter how irritable they may be so that the composure required to administer justice may not depart from the temple of justice. If counsel lacks the necessary skill in the formulation of the appellant’s brief, the appellant’s case should be judged by the merit of the brief. The brief should not be thrown out to enable the appellant suffer the sanction of failing to file a brief.

What is dismissal for want of prosecution under Order 6 Rule 10 in an appeal before the Court of Appeal Simply, it is dismissal of the appeal for failure -to set out the appellant’s argument in the appeal in writing called brief within the time ordered by the Rules. In the circumstances of the instant appeal, is that a fair judgment to deliver I say no. The answer must be in the negative.
The principle of dismissal for want of prosecution is not new. In the trial courts, the powers to dismiss an action for want of prosecution are often invoked if the plaintiff defaults in filing his statement of claim and there is prolonged or inordinate and inexcusable delay in the prosecution of the action or if the plaintiff does not issue his summons for direction within the specified time. (See page 431 – The Supreme Court Practice 1979 White Book. Note 25/1/3A under Order 25 Rule 1). The principle is that it is the duty of the plaintiff’s or appellant’s counsel in the instant appeal to get on with the case since public policy demands that the business of the courts should be conducted with expedition. It is a notorious fact that there is congestion of cases in most of the courts in Nigeria and this principle of pursuing claims and appeals expeditiously is designed to bring relief to and decongest the courts.
The principle can only be applied in appropriate cases, and I must say that this instant appeal is not one of the appropriate cases for the application. In the case of Olajide Olaore & ors. v. Titus Adigun Oke (1987) 12 S.C.1, this Court was called upon to deal with a similar mailer as is now before this court. The appeal was one of those excepted from the operation of the Court of Appeal (Amendment) Rules 1984 but the Court of Appeal having ordered briefs to be filed proceeded to dismiss the appeal under Order 6 Rule 10 for want of prosecution on failure of the appellants or their counsel to appear and their failure to file brief. The appeal to this court was allowed, the order of dismissal for want of prosecution set aside and in its stead, an order striking out the appeal for non-appearance of the appellants substituted. This was because the appellants were absent when the Court of Appeal made its order.
In conclusion, it is clear from the Ruling of Olatawura, J.C.A. (concurred in by Aseme and Katsina-Alu, JJ.C.A.) that the brief of 8th July, 1985 set out issues or questions for determination in the appeal and the appellant’s argument under each ground. Although these were inelegantly set out, they are the most indispensable parts of a brief.
Looking at the matter from every angle whether from the exercise of the inherent powers of the court or from the application of the Court of Appeal (Amendment) Rules, the order of dismissal for want to prosecution cannot be justified
It was for the above reasons that I allowed the appeal, set aside the order of dismissal made by the Court of Appeal and remitted the case to the Court of Appeal for the appeal to be heard on its merits.

UWAIS, J.S.C: This appeal was allowed on the 1st day of November, 1988 and we reserved our reasons for the judgment till today. The following are my reasons.
Having read in draft the reasons for judgment read by my learned brother Obaseki, J.S.C. I entirely agree with them. As it was for the same reasons that I agreed on the 1st November, 1988 that the appeal should be allowed and the case be remitted to the Court of Appeal so that it might be determined by that court on its merits; I do not wish to add anything. I therefore, adopt the said reasons for judgment as mine.

OPUTA, J.S.C.: On the 1st of November, 1988 the court allowed this appeal and reserved its Reasons/or Judgment to be delivered on the 27th day of January, 1989. I have had a preview in draft of the Lead Reasons for Judgment just delivered by my learned brother Obaseki, J.S.C. and I express my entire agreement with his reasoning in his Reasons for Judgment.
This case was before the Court of Appeal Enugu Division as Appeal No. CNE/157/83. The original Appellant was Nicholas Osele. On the demise of the said Nicholas Osele, his son Paul Osele was on 8/6/87 substituted to continue the prosecution of the appeal. Learned Counsel for the Appellant began his arguments in the appeal on 26/4/84 but was held up for many reasons including incomplete or distorted record and/or errors 10 copying the said record. There were a number of adjournments to rectify all these errors.
On the 7/11/84 after the Appellant’s motion to file and argue additional grounds was granted, counsel on both sides agreed to file and exchange Briefs of Argument. The appeal was then adjourned to 3/4/85. The Appellant thereupon filed his Brief and served same on the Respondent. On the receipt of the Appellant’s Brief learned Counsel for the Respondent instead of filing the Respondent’s Brief rather filed a motion dated 28/1/85 seeking an Order of the Court of Appeal:-
“(i) Striking out the Brief by his counsel as not being in conformity with the Rules, and
(ii) Dismissing the appeal for want of prosecution, and for such further or other order as the court may deem fit in the circumstances”
In an affidavit in support of the motion Mr. George N. Amanke Okafor of counsel for the respondent complained in his paragraph 3:- “That on perusing the Brief, I find that it does not conform with Order 6 of the Court of Appeal, 1981 Rules, as amended by the Court of Appeal (Amendment) Rules, 1984.” The principal grounds for his objection were that:-
1. The Appellant’s Brief is not a succinct statement of his arguments in the appeal……but only a serial discussion of the grounds of appeal.
2. The Brief does not conclude with a numbered summary of the points to be raised on appeal, contrary to Order 6 Rule 3(d).
3. The Brief does not contain the Reasons upon which the argument is founded contrary to Order 6 Rule 3(d).
4. The Brief does not set out the issue or issues for determination in the appeal, contrary to Order 6 Rule 3(a).
The learned counsel for the Respondent also swore that “it is embarrassing to know how to answer the Appellants Brief.”
The above motion to strike out the Appellants Brief for not conforming with’ the requirements of Order 6 Rules 2 and 3 above was part heard on the 15/1/86 and completed on 29/1/86 and Ruling was reserved. In a considered Lead Ruling Olatawura J.C.A. noted at p.151 lines 27-30 of the record:-
“What is in issue here is the provision of our rules dealing with brief. The forms, contents of a brief are contained in Order 6 rule 3 of the rules of this court.”
After setting out the provisions of Order 6 rules 3(a),(b),(c) and (d) the learned Justice of the Court of Appeal stated the obvious: at p.152 lines 17-21:
“The purpose of filing brief is designed to enable the court and counsel to separate the chaff from the real stuff in the case thereby reducing the time spent where oral submissions are made in respect of grounds of appeal. The mandatory provisions of these rules are to be carried out to the letters………”
Apparently relying on the decision of Ademola J.C.A. in Archbode Engineering Ltd. v. Water Resources Hydro Technique Wassertchnik A.G. & anor. (1985) 3 N.W.L.R. (Pt.12) 300, Olatawura J.C.A. ruled:
“I will uphold the objection of Mr. Okafor and grant the prayer that the appeal be dismissed for want of prosecution – The appeal is hereby dismissed for want of prosecution.
Aseme J.C.A. also wrote a considered Ruling in which he too agreed with the lead Ruling of Olatawura J.C.A. Katsina Alu J.C.A. also concurred.
The plaintiff/appellant has now appealed to this court against the dismissal of his appeal for want of prosecution by the court below. The Appellant in his Brief of Argument formulated 4 issues for Determination. The Respondent compressed those 4 issues into 3. I will only deal with issues Nos.1 and 3 as formulated by and in the Respondent’s Brief and Issues Nos. 3 and 4 as formulated in the Appellant’s Brief and renumber them 1, 2, 3 and 4 respectively.
Issue No.1
“Whether the Court of Appeal had jurisdiction to order the filing of Briefs of Argument in this appeal which was already listed for hearing before the coming into force of the Court of Appeal (Amendment) Rules 1984 on 1/9/84” .
The above Issue as formulated completely ignored the essential facts of this, case.
1. The Court of Appeal did not order the Appellants to file any Briefs. No. In any event there is no record of such an order. Rather on the 7th day of November 1984 after arguing his motion for leave to file additional grounds 14 to 19 (Ex. A) there appears the following Notes at p.139 of the record of proceedings:
“Parties agree that it is desirable at this stage to file and exchange Briefs. Appeal adjourned 3/4/85.
Sgd. A. I Aseme, 7/11/84”
2. Pursuant to the agreement of 7/11/84 Mr. Anyaegbunam of counsel for the Appellant in fact filed his Brief on the 28/11/84. This Brief is copied at pp. 92 to 133 of the record, a total of 41 pages.
Mr. Anyaegbunam surely believes in prolixity not in economy of words. That Brief was heavily packed with a string of authorities.
3. On a motion filed on 19/4/85 (see p.107) Mr. Anyaegbunam applied for an extension of time within which to file “fresh brief for the Appellant.” The court did not order the filing of this fresh brief. Like the original brief it was all the doing of learned Counsel for the Appellant as is shown in paragraphs 3 and 6 of the affidavit in support of the motion:-
“3. That I am advised by my counsel B.D.O. Anyaegbunam Esq. that it is necessary to file fresh brief in order to comply fully with requirements of the rules of practice and I truly believe him.
6. That my said counsel has informed me that in order to file the proposed fresh brief, that the leave of the court must be obtained and 1 believe him.”
4. The Appellants Additional Brief marked Exhibit A is copied from pp. 109 to 132 a full 23 pages of “Additional Brief.”
5. On the 17/10/85 (see p.133) Mr. Anyaegbunam filed another motion “praying that the appellant be allowed to argue his appeal in the absence of the respondent’s brief.” In paragraph 6 of the affidavit in support, Philip Obiora, the Appellant deposed that:”
“6. That the appellant is anxious, ready and prepared to argue his appeal as contained in his brief.”
Now in view of the facts stated above just how can Mr. Anyaegbunam now be heard to complain that the Court of Appeal had no jurisdiction to order the filing of brief, in this case. Conscious of the state of the law regarding brief filing he still opted to file a brief in this appeal. He not only filed an original brief but he also filed another fresh brief “in order to comply fully with the requirements of the rules of practice.” Just how can Mr. Anyaegbunam now attack the same “rules of practice” which he freely and willingly endeavoured to comply with On the 17/10/85, Mr. Anyaegbunam was quite “ready and prepared to argue his appeal as contained in his brief.” Mr. Anyaegbunam cannot blow hot and cold, he cannot approbate and reprobate. He cannot in one breath accept the rules of practice regarding the filing of briefs and in another breath deny or even question the applicability of those rules. Even if the rules did not apply to this appeal (and I do not so decide) both parties by their agreement of 7/11/84 to file and exchange briefs have by their conduct and agreement opted for the filing of briefs. They have made that the proper procedure in this appeal. If therefore any hardship is to be suffered by filing of briefs here, then the Appellant having consented to file briefs, on the principle of valenti non fit injuria, must bear the resultant hardship arising from acts to which he freely assented. In my view therefore, Issue No.1, considering the facts of this appeal, is a non issue. It does not arise and therefore it does not require any answer.
Issue No.2.
“Whether the Brief of 16/4/85 was not in substantial conformity with the Rules, and whether the Court of Appeal can dismiss an appeal on a ground that the Appellant’s Brief of Argument is faulty”
Form And Substance
In his lead Ruling at p. 151 Olatawura J.C.A. rightly observed:
“What is in issue here is the provision of our Rules dealing with brief. The forms and contents of a brief are contained in Order 6 rule 3 of the rules of this court.”
The above Ruling at once focussed attention on the distinction between the formal validity and the essential validity of Briefs. The contents are the essential requirements. The format though prescribed by the Rules will never ever override the contents. When the prescribed format is not used the-Brief may be described as inelegant or faulty but it is still a Brief. There must therefore, of necessity, be a distinction between filing a bad, faulty or inelegant Brief and filing no Brief at all. In the case now on appeal the appellant filed his original Brief on 28/11/84, filed a “fresh Brief” on 19/4/85 and again filed an Additional Brief – Ex. A at pp.109 to 132. The question now is -Can any Appellant who has gone into the trouble of filing these three Briefs be described as one not wanting to prosecute his appeal It is my view that the filing of these Briefs (no matter how faulty each is, or all of them are) does indicate a willingness, an eagerness and a readiness on the part of the Appellant to prosecute his appeal. In fact on 17/10/85 Mr. Anyaegbunam of counsel for the Appellant brought a motion praying to be allowed to argue the appeal in the absence of the Respondent not filing his Brief; praying to argue the appeal on his own Brief. Does this not show clearly an intention to prosecute the appeal What then is all this talk of “dismissal for want of prosecution” There has in this case been no want of prosecution” at all. It was therefore, with utmost respect, wrong of the court below to have dismissed this appeal for want of prosecution.
A bad, faulty and/or inelegant Brief will surely attract some adverse comments from the courts but it will be stretching the matter too far to regard such defective Brief as no Brief. A faulty Brief is a Brief which is faulty. One cannot close ones eyes to the fact of its existence. May be that was the reason why Mr. Amamke Okafor of counsel for the Respondent wanted that Brief out of the way first. In his motion he therefore asked for two orders:-
(i) an order striking out the Brief filed on behalf of the Appellant.
When that Brief is thus comfortably out of the way then will come the second order:-
(ii) an order dismissing the appeal for want of prosecution.
The court below, again with respect, did not seem to have appreciated the subtle point being made by Mr. Okafor for it dismissed the appeal without first striking out the faulty and inelegant Brief filed. The result then was that the Appellants appeal was dismissed for his failure to file a Brief and therefore for want of prosecution, when in fact, he did file a Brief or Briefs which Brief or Briefs were before the court. Whether the court below could have been justified in dismissing the appeal if it first struck out the Brief does not arise, for the court below did not do that. It did not strike out the Brief before dismissing the appeal.
I will now deal with the effect of filing a Brief as defective in form and/or in contents as the ones filed in this appeal by and for the appellant. I will refer to some of the appeals that came to this court on very defective Briefs.
Times without number the Supreme Court has had to deal with bad, inelegant and faulty Briefs but I do not remember one instance where the Supreme Court dismissed a party’s appeal simply because the Brief filed was faulty or bad – adverse comments yes, but dismissal no. Thus in Atipioko Ekpan & Anor. v. Chief Agunu Uyo & Ors. (1986) 3 N.W.L.R (Pt.26) 63 at 76 Obaseki J.S.C. delivering the lead judgment was forced to observe at p. 76.
“The format for the briefs of arguments which the appellants and the respondents are enjoined to file should follow the guidelines laid down in the Supreme Court Rules 1985 particularly Order 6
Rule 5(1). The Roles of Court made to regulate the practice and procedure in the various courts in Nigeria have not been made for or to be only in the statute books. They are made for the benefit of the courts on the one hand, and the legal practitioners and litigants in our courts on the other hand; being guidelines for steps to be taken in any proceeding they must be followed. The briefs of argument filed by both the Appellants and the Respondents contain and show no evidence of any knowledge of the 1985 Supreme Court Rules, Order 6 Rule 5(1) relating to the filing of briefs of argument in this appeal. I hope that in future counsel will pay more attention to the requirements of Rules.”
After the above observation, stricture, reprimand and rebuke Obaseki J.S.C. went on to consider the appeal on its merits and in the end allowed same at pp.83/84. This is how it should be, because the dictates of justice weigh in the balance, much more than rules of practice and procedure.
In Engineering Enterprise of Niger Contractors Co of Nigeria Ltd. v. A.G. Kaduna State (1987) 2 N.W.L.R.(Pt.57) 381 the Brief of Argument filed by the Appellant was really no Brief. It was so deficient and faulty in every respect that Eso, J.S.C. at p.395 was forced to observe:-
“I find myself painfully constrained to refer to what he has termed “Appellant’s Brief of Argument” in this Court. Indeed it is so bewildering that such a Brief should be filed by any lawyer in this Court in such a matter of this nature that has invited a full lead judgment and fully well considered dissenting judgment….”
At p.396 Eso J.S.C. continued:
“It is to be noted that all the Brief has said is to reproduce just a little portion of the dissenting judgment…. The Rules require that the Brief….shall be a succinct statement of his argument in the appeal and shall contain the issues arising in the appeal….. Briefs are not written merely for the purpose of summarising the judgments of the lower courts. Pausing here for a moment, all Mr. Ijaodola has done, was with respect, to have summarised the dissenting judgment of the Court of Appeal. And nothing more!”
It is true that the Brief of the Appellants filed in the above case was far worse than the one filed by Mr. Anyaegbunam in the Court of Appeal.
In the self same case – Engineering Enterprise v. A. G. Kaduna supra like my learned brother Eso J.S.C.I too commented adversely on the Brief of the Appellant at p.413:-
“Briefs were filed and exchanged. It is an Appellant who is appealing to the court to allow his appeal. It therefore behoves him to do all he can to persuade the court. … In this case now on appeal the Brief of the Appellant left very much to be desired. It was too brief to be a good Brief As the name implies a Brief should be brief. It should however be short enough to be attractive and yet long enough to cover the substance. Brevity does not imply what Mr. Ijaodola did in this case. He filed a one page Brief…..The Brief of the Appellant in his appeal was so scanty, so empty and so casual (as are some of the Briefs coming before us) that one is compelled to wonder whether some learned counsel have not yet learnt the art of Brief writing.”
Again and as happened in Ekpan v. Uyo supra after this richly deserved censure of learned counsel Mr. Ijaodola, this court did not dismiss his appeal because his Brief was really no Brief – no – the court considered the merits of the appeal and in the end allowed same, the faulty and inconsequential Brief notwithstanding. The point is that the spirit of justice does not reside in Rules of Court, in forms and formalities, nor in technicalities. These should all aid not defeat justice. I therefore feel constrained to observe that the decision of the Court of Appeal in Archbode Engineering Ltd. v. W.R.H. T. W. Ag. (1985) 3 N.W.L. R. (Pt.12) 300 at p. 305 on which Olatawura J .C.A. relied has been implicity over ruled by the two Supreme Court decisions
(Ekpan v. Uyo and Engineering Enterprise v. A. G. Kaduna) one in 1986 the other in 1987 considered above.
The mere fact that a Brief filed by an Appellant did not comply with the rules made under Order 6 of the Court of Appeal Rules does not mean that the Appellant has filed no Brief. The court cannot in these circumstances deem a Brief filed as no Brief. That would be wrong. Even in 1984 before Ademola J.C.A. decided Archbode Engineering Ltd. supra this court in Ketu v. Onikoro (1984) 10 S.C.265 per Obaseki J.S.C. at p. 267 after observing:-
“Further, the Appellant’s brief is no brief. They have not in the brief given a succinct statement of their argument and totally failed to set out the issues for determination in this appeal as required by Order 9 rule 3(1) of the Supreme Court Rules 1977,”
still considered the appeal on its merits and found that “On the merit, there is no substance in the appeal.” The appeal was then dismissed not because the Brief filed “was deemed to be no Brief but rather because the appeal itself was unmeritorious.
Briefs And Court’s Power to Dismiss Appeals for Want of Prosecution Issue No.3.
“Whether the Court of Appeal was right in dismissing the appeal for want of prosecution since Order 6 of the Court of Appeal (Amendment) Rules 1984 never made any such provision and whereas a brief had properly been filed.”
This Issue is akin, to and also related, to Issue No.2 which I have discussed above at some length. I have held that a court cannot dismiss an appeal simply because an Appellant’s Brief is faulty. A faulty Brief will attract severe criticism and adverse comments from the court but no more. Under Order 6 Rules 2 and 3 of the Court of Appeal (Amendment) Rules there exists no power to dismiss an appeal because of a defect either in the form or content of the Appellant’s Brief. But there is power to dismiss an appeal for want of prosecution under Order 6 Rule 10 which stipulates:-
“when an Appellant fails to file his brief within the time provided for in rule 2 above, 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.” (the italics are mine)
It is correct that Mr. Okafor of counsel for the Respondent did apply under Order 6 Rule 10. But rule 10 talks of failure to file Appellant’s Brief and makes that failure the condition precedent to the application to dismiss for want of prosecution. Mr. Okafor himself expressly admitted that a Brief was in fact filed by the Appellant. His only complaint was that, that Brief did not comply with Order 6 rules 2 and 3. There was therefore in this appeal not that necessary factual situation (failure to file Appellant’s brief) required to bring an application under rule 10 of Order 6. Mr. Okafor’s application was therefore misconceived and wrong. The Court of Appeal, with respect, was in error in even entertaining that application let alone granting it.
This is more so when one considers the very wide powers to waive any non-compliance with the Rules given to the court (in the interest of justice) under Order 7 Rules 3. This will lead to a consideration of Issue No.4:-
“Whether the dismissal of the Appellant’s appeal by the Court of Appeal does not amount to a wrong exercise of judicial discretion therefore resulting in miscarriage of justice…”
In my view the dismissal of the Appellant’s appeal in all the surrounding circumstances of this case by the Court of Appeal is an instance of wrongful assumption of jurisdiction not a mere wrongful exercise of judicial discretion.
The Court of Appeal had no jurisdiction under Order 6 Rule 10 to dismiss an appeal for want of prosecution when the Appellant had in fact filed his Brief.
The court however had a discretion to allow the appeal to go on inspite of any fault in the Brief of the Appellant or to require him to file a new Brief. The aim of the whole exercise is to do justice between the parties by hearing their appeals on the merit inspite of any mistakes made by counsel in the preparation and prosecution of the appeal. The language of the court below shows clearly that the Honourable Justices were annoyed and irritated by the way Mr. Anyaegbunam conducted this appeal. Before us, I discovered also that Mr. Anyaegbunam was very slow to take any tips from the court a: and that he tends to be circuitous and long winded. But be that as it may, it is a very well established principle that the object of courts is to decide the rights of parties and not to punish them for the mistake they or their counsel may make in the conduct of their cases or appeals by deciding otherwise than in accordance with their rights.
In the final result, it was for all the reasons given above and also for the fuller reasons in the lead judgment of my learned brother Obaseki, J.S.C. which I now adopt as mine, that I, on the 1st of November 1988, allowed this appeal.

AGBAJE, J.S.C.: On 1st November 1988 I allowed the appellants’ appeal set aside the decision of the court below and remitted the appeal to that court to hear and determine it on its merits. I indicated then that I would give the reasons for my decision today. I now proceed to do so.
I have had the opportunity of reading in draft the lead reasons for judgment of my learned brother Obaseki, J.S.C. I completely agree with his reasoning and I adopt it as mine.

WALI, J.S.C.: On November 1st, 1988 the appeal in this case was summarily allowed by me and remitted to the lower court for hearing on the merit, and the reasons for doing so was reserved to today. I now give my reasons.
I have read before now, the lead Reasons for judgment of my learned brother, Obaseki, J.S.C., with which I agree and adopt same as mine. It is no doubt that the brief of argument filed by the appellant in the Court of Appeal was inelegant but it nonetheless set out the issues for determination in the appeal. The Court of Appeal ought to have in my view, followed one of the following alternatives open to it-
1. to adjourn the appeal and direct the appellant to file a proper brief by extending the time for doing so, or
2. to waive compliance with the provision of Order 6 of the Court of Appeal Rules, 81 relating to the filing of brief and take oral arguments.
The appeal was originally listed for hearing long before the coming into force of Order 6 of the Court of Appeal (Amendment) Rules, 1984 and was even made part-heard. But due to subsequent applications and the changes in the panel taking the appeal, it was delayed up to the time the provisions of Order 6 became effective.
The Court of Appeal should have been more lenient to learned Counsel for the appellant and shown understanding to his predicament since at that time, the rules for filing briefs had just been introduced in that Court. Reasonable time was anticipated to be allowed to counsel to have a grasp of the new rules and also to learn the techniques of brief writing.

 

Appearances

Chief B. D. O. Anyaegbunam For Appellant

 

AND

G.N.A. Okafor For Respondent