PROPHET MATHEW DARAMOLA v. NIGERIAN POLICE (CID) IDIMU POLICE DIVISION AREA M & ORS
(2016)LCN/8994(CA)
In The Court of Appeal of Nigeria
On Friday, the 11th day of November, 2016
CA/L/614/2013(R)
JUSTICES
SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria
BIOBELE ABRAHAM GEORGEWILL Justice of The Court of Appeal of Nigeria
UGOCHUKWU ANTHONY OGAKWU Justice of The Court of Appeal of Nigeria
Between
PROPHET MATHEW DARAMOLA Appellant(s)
AND
1. NIGERIAN POLICE (CID) IDIMU POLICE DIVISION AREA M
2. O/C LEGAL DEPT., STATE (CID) PANTI, YABA, LAGOS
3. COMMISSIONER OF POLICE, LAGOS STATE
4. MINISTRY OF JUSTICE, ALAUSA, IKEJA, LAGOS Respondent(s)
RATIO
THE CONSEQUENCE OF WHERE AN APPELLANT FAILS TO FILE HIS BRIEF WITHIN THE TIME STIPULATED BY LAW
Order 18 Rule 10 (1) of the Court of Appeal Rules provides as follows:
?10 ? (1) where an Appellant fails to file his brief within the time provided for in Rule 2 of this Order, or within the time as extended by the Court, the Respondent may apply to the Court for the appeal to be dismissed for want of prosecution. If the Respondent fails to file his brief, he will not be heard in oral argument. Where the Appellant fails to file a reply brief within the time specified in Rule 5, he shall be deemed to have conceded all the new points or issues arising from the Respondent?s brief.
It would appear that by the provisions of the Rules in circumstances such as presented in this matter where a Respondent fails to file a Respondent?s brief, the paregoric for the Appellant is not the entry of final judgment or committal of the Respondent for contempt of Court which are some of the reliefs sought in the application. The salve provided by the Rules is that such a Respondent will not be heard in oral argument.
In the light of the provisions of the Court of Appeal Rules which is the adjectival law governing the proceedings in this Court, the Appellant is not entitled to grant of this application. A discretion exercised by a Court to grant this application would not be a judicial and judicious exercise of discretion. PER OGAKWU, J.C.A.
UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Lead Ruling): By an application dated and filed on 7th March 2016, the Appellant/Applicant seeking for the following orders:
1. AN ORDER for COSTS: N300, 000 (three hundred thousand Naira only) as accrued costs.
2. CONTEMPT OF COURT.
3. PLUS THE EXHIBIT SUBMITTED ? INSPECTION BY JUSTICES: VISIT TO LOCUS IN QUO.
4. AN ORDER ENTERTAINING FINAL JUDGMENT IN FAVOUR OF THE APPELLANT/APPLICANT AGAINST THE 1st RESPONDENT IN DEFAULT OF APPEARANCE AND FAILURE TO FILE BRIEF. And for N1, 199, 200, 000 (one billion, one hundred and ninety nine million two hundred thousand naira only)the claims and reliefs sought now at the Court of Appeal. Now 16 years day and nights without recourse as amended.
The grounds upon which the application is predicted are as follows:
GROUNDS FOR THE APPLICATION
TAKE FURTHER NOTICE that the ground of this application is that the 1st Respondents having been served with all relevant originating processes in this suit has failed to enter appearance or file a statement of defence within the time stipulated by the rules of the Court.
?
The application is
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supported by a nine paragraph affidavit deposed to by the Appellant/Applicant. The Appellant/Applicant also filed a written address in support of the application. The Respondents did not file any processes in respect of the application and also did not appear at the hearing.
At the hearing of the application, the Appellant/Applicant who appeared in person relied on the paragraphs of the supporting affidavit. He adopted the submissions in the written address he filed in support of the application and he urged the Court to grant the application.
?
I have given an insightful consideration to the processes filed in this matter. The prayers sought on the application is a potpourri of sorts such that the prayers can be likened to the theatre of the absurd, if not vaudeville.Howbeit, it would appear that the grounds for the application offer a beacon of light that provides an inkling into the basis for the application. The reliefs sought on the application seems to be premised on the failure by the Respondents to file the necessary processes in respect of the appeal, consequent upon which the Appellant/Applicant wants judgment in default for the reliefs he
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now seeks on the application and appeal.
I have gone through the records of Court and there is a Respondent?s Brief filed by the 4th Respondent. The 1st ? 3rd Respondents have however not filed any Respondent?s Brief and the time within which to file the same has expired. Order 18 Rule 10 (1) of the Court of Appeal Rules provides as follows:
?10 ? (1) where an Appellant fails to file his brief within the time provided for in Rule 2 of this Order, or within the time as extended by the Court, the Respondent may apply to the Court for the appeal to be dismissed for want of prosecution. If the Respondent fails to file his brief, he will not be heard in oral argument. Where the Appellant fails to file a reply brief within the time specified in Rule 5, he shall be deemed to have conceded all the new points or issues arising from the Respondent?s brief.
It would appear that by the provisions of the Rules in circumstances such as presented in this matter where a Respondent fails to file a Respondent?s brief, the paregoric for the Appellant is not the entry of final judgment or committal of the
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Respondent for contempt of Court which are some of the reliefs sought in the application. The salve provided by the Rules is that such a Respondent will not be heard in oral argument.
In the light of the provisions of the Court of Appeal Rules which is the adjectival law governing the proceedings in this Court, the Appellant is not entitled to grant of this application. A discretion exercised by a Court to grant this application would not be a judicial and judicious exercise of discretion. Accordingly, this application has no merit and the same is dismissed accordingly. There shall be no order as to costs.
SIDI DAUDA BAGE, J.C.A. : Having read, before now,the Ruling prepared and just delivered by my learned brother, UGOCHUKWU ANTHONY OGAKWU JCA, I have nothing extra to add but to adopt same as mine.
On the whole, i too join my learned brother in holding that the application has no merit and same is dismissed by me. I abide by the consequential order made in the Ruling.
BIOBELE ABRAHAM GEORGEWILL, J.C.A.: I agree. I have nothing useful to add.
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Appearances
Appellant/Applicant in personFor Appellant
AND
UnrepresentedFor Respondent
