REGISTERED TRUSTEES OF TIPPING TRAILERS OWNERS UNION & ANOR v. NIGERIAN UNION OF MINE WORKERS (2016)
(2016)LCN/8473(CA)
In The Court of Appeal of Nigeria
On Thursday, the 14th day of April, 2016
CA/OW/436/2014
RATIO
APPEAL: TIME LIMIT FOR FILING BRIEF OF ARGUMENT AND EFFECT OF NON-COMPLIANCE WITH THE TIME LIMIT
By virtue of Order 18 Rule 2, on Appellant shall within forty-five days of receipt of the Record of Appeal from the court below file his Brief of Argument. By the provisions of Order 18 Rule 10(1), the Respondent may apply to the Court for the appeal to be dismissed for want of Prosecution where an Appellant fails to file his brief within the time provided for in Order 18 Rule 2, or within the time as may upon application, be extended by the Court. Order 18 Rule 10(2) also provides as follows:
“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 Court may suo motu dismiss the appeal for want of prosecution.” PER ONYEKACHI A. OTISI, J.C.A.
APPEAL: CAN AN APPEAL DISMISSED UNDER ORDER 6 RULE 10 BE RE-LISTED
IN KRAUS VS NATIONAL INSTITUTE OF POLICY AND STRATEGIC STUDIES (2004) 5 S.C. (Pt.1) 16, the Supreme Court considered a similar provision, Order 6 Rule 10 of the court of Appeal Rules 1981, and held:
“An appeal which is dismissed under Order 6 Rule 10 of the Court of Appeal Rules cannot be re-listed. This court held in Babayagi v. Bida (supra) that once an appeal is dismissed under Order 6 Rule 10, the Court of Appeal has no jurisdiction to revive the appeal by re-entering or re-listing same. See also Chukwuka v. Ezulike (1998) 2 NWLR (Pt.539) 355.
When an appeal is dismissed under Order 6 rule 10 of the Court of Appeal Rules, its life terminates and it is therefore removed from the cause list. No Court has jurisdiction to revive or resuscitate it. “
See also BABAYAGI V. ALHAJI BIDA (1998) 2 NWLR (PT.538) 367; ASALU VS DAKAN (supra).
In the case of OLUWU V. ABOLORE (1993) 5 NWLR (Pt.293) 255 at 277, Karibi Whyte JSC stated the law as follows:-
‘An appeal dismissed on the ground of failure to file appellant’s brief of argument is final. The appeal so dismissed cannot, be revived”.
In his concurring judgment in that case of pages 278-279 of the report, Belgore, JSC (as he then was), plainly stated as follows:
“Once the Court of Appeal has dismissed the appeal for want of prosecution due to appellant’s failure to file brief of argument, that court is functus officio on that matter” PER ONYEKACHI A. OTISI, J.C.A.
PROCEDURE: MISTAKE OF COUNSEL; ATTITUDE OF COURT TOWARDS MISTAKE OF COUNSEL
It is a well-worn legal position that the fault or sin of Counsel cannot be visited on his client. However, I will respectfully, refer to the observations of Iguh JSC, in his concurring judgment in BABAYAGI VS. ALHAJI BIDA (supra) where he said at page 379:
“Learned counsel for the Appellant tried in his brief of argument to enlist the sympathy of this Court by arguing that the Court below was wrong in dismissing the appeal instead of striking it out as the Appellant might not have been aware that his counsel would not be attending Court to oppose the application. I need only restate that sympathy cannot override the clear provisions of the Rules of Court and that it would be in the interest of the parties and their counsel to endeavour always to comply with the prescribed times set out in the Rules for the doing of any act or taking any step”. PER ONYEKACHI A. OTISI, J.C.A.
JUSTICES
MOHAMMED LAWAL GARBA justice of The Court of Appeal of Nigeria
UZO I. NDUKWE-ANYANWU justice of The Court of Appeal of Nigeria
ONYEKACHI A. OTISI justice of The Court of Appeal of Nigeria
Between
1. REGISTERED TRUSTEES OF TIPPING TRAILERS OWNERS UNION
2. MR. COSMAS (MANAGER TIPPING TRAILERS OWNERS UNION)Appellant(s)
AND
NIGERIAN UNION OF MINE WORKERS (Respondent(s)
ONYEKACHI A. OTISI, J.C.A. (Delivering the Lead Ruling): The Applicants seek an Order:
Restoring Appeal No.CA/C/40/2009 REGISTERED TRUSTEES OF TIPPING TRAILERS OWNERS UNION 4 ANOR VS NIGERIAN UNION OF MINE WORKERS, struck out on the 7th day of February, 2012.
In support is an affidavit of 35 paragraphs deposed to by Chidi Agor Esq., Legal Practitioner of No.114 St Michael’s Road, Aba, of the Chambers of Chief S. U. Akuma with the consent of the appellants/applicants, and of Principal Solicitors in the Chambers of Chief S. U. Akuma, and, Chambers of C.A.N. Nwokeukwu Esq., both Law Firms representing the appellants/applicants, and of Principal Solicitors in the Chambers of S. U. Akuma, and, Chambers of C.A.N. Nwokeukwu Esq., both Law Firms representing the appellants/applicants.
In summary, the appellants/applicants filed a Notice of Appeal against the judgment not of the Lower Court on 3rd February, 2009. Chief S. U. Akuma, of about the same time, relocated to Abuja, C.A.N. Nwokeukwu Esq. was brought in as Principal Solicitor to assist in the prosecution of the appeal. Unfortunately, C.A.N. Nwokeukwu Esq. was between May, 2010 and January, 2012, hit by an avalanche of personal bereavements which threw him off balance, and the appeal was practically abandoned. The appellants/applicants aver that the respondents filed a motion on notice, but, that they had no notice of the said motion. The appeal was struck out by this Court on 7th February, 2012. The appellants/applicants further state that their Grounds of Appeal had raised important legal issues; and, that they are now ready to prosecute the appeal.
Chief S. U. Akuma, and C.A.N. Nwokeukwu Esq., jointly filed a written address in which they raised as a sole Issue for determination:
Whether the applicants have shown good and sufficient cause to warrant the said appeal now struck out, to be restored on the list.
They submit that this Court has the discretion to restore or re-list a matter dismissed or struck out for want of diligent Prosecution. That in exercising discretion to restore an appeal, the Court by Order 8 Rule 20 of the Court of Appeal Rules 2011 must consider whether good and sufficient cause’ has been shown by the applicants; and that the appeal would be restored if ‘good and sufficient cause’ is shown. They relied on KATOR INVESTMENT LTD VS. UACN PROPERTY DEV. COMPANY PLC (2011) 16 NWLR (PT.1273) 211 at 219 – 220.
That the appellants/applicants were not served with any application to strike out or dismiss the appeal, and, that they had no knowledge or notice of the date of hearing of the motion. That service of originating process or any process at all is central and fundamental to the exercise of the Court’s jurisdiction to hear and determine the matter in issue. They relied on ADEWUNMI Vs SGB LTD (1998) 6 NWLR (PT.552) 154 to submit that failure to serve a process where service is required robs the Court of jurisdiction to hear and determine the matter. That where the reason for non-attendance to Court by an applicant is lack of knowledge of the date of hearing of the motion, or the Appeal, that the Court would favourably consider relisting or restoring the Appeal. They relied on UNIPETROL NIG PLC v. BUKAR (1994) 5 NWLR (PT 344) 360.
The Court is urged not to visit the mistake or misfortune of the Counsel on the appellants/applicants who have done all they are required by law to do. And, that the respondents will not be prejudiced or embarrassed if the order re-listing or restoring this appeal is made. They further relied on ALHAJI DANGARDI VS. YUSUF JIBRIL (1997) 4 NWLR (PT.501) 590 at 600; EJIDE vs OGUNYEMI (1990) 3 NWLR (PT.141) 758 at 763.
A certified copy of the record of proceedings before this Court on 7th February, 2012, was annexed as Exhibit A. The said record of proceedings reads as follows:
“ON TUESDAY THE 7TH DAY OF FEBRUARY, 2012
UPON THIS APPEAL coming before this Honourable Court.
AND the Parties absent, though served hearing Notices on 2/2/2012
IT IS ORDERED:
That the Appeal is struck out for want of diligent prosecution.”
Order 8 of the Court of Appeal of Rules 2011 deals with the compilation and transmission of records. Rules 18 – 20 provide as follows:
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 on appeal has been dismissed under Rule 18 of this order Respondent who has given notice under order 9 may give notice or appeal and the provisions of Order II 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 this 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 it may think, fit.”
These provisions are relevant where both the registrar of the lower court, and the appellant, have failed to compile and transmit the Records of Appeal. The respondent may apply to have the appeal dismissed. However, under the provisions of Order 8 Rule 20, the appeal may be saved and restored upon application made to the Court by the appellant. The Court may in exercise of its discretion, where good and sufficient cause has been shown by the appellant, order that such appeal be restored upon such terms as it may think, fit.In the case of KATOR INVESTMENT LTD VS UACN PROPERTY DEV. COMPANY PLC (supra) relied upon by Learned Counsel for the appellant, this Court considered an application seeking the restoration of the notice of appeal earlier dismissed; enlargement of time within which to compile and transmit record of appeal; and an Order deeming the record attached to the application as properly compiled and transmitted. This Court therein, considered the affidavit evidence and held that the appellant had shown good and sufficient cause for the exercise of discretion in his favour. See also ASALU VS DAKAN (2006) 5 S.C. (PT.III) 210.
But, in the present application, the issue was not failure to compile and transmit the records of appeal within time. Again, from the Proceedings of 7th February, 2012, the appeal was not dismissed or struck out upon any motion filed by the respondent to dismiss the appeal, as was contended by the applicants herein.
It was contended that the applicants were not served with any hearing notice regarding the proceedings of the 7th of February, 2011. However, the records of Court show otherwise. The bailiff of the Court had by telephone call, as permissible under Order 2 Rule 4(c), given notice of the hearing; and the Court was satisfied that the parties were properly notified.
The appeal was not struck simply because the applicants failed to appear in Court. The appeal was struck out for want of diligent prosecution.
It is not in controversy, as has been admitted by the applicants that as at 7/2/2012, for an appeal filed in 2009, the applicants as appellants had not filed their Brief of Argument. By virtue of Order 18 Rule 2, on Appellant shall within forty-five days of receipt of the Record of Appeal from the court below file his Brief of Argument. By the provisions of Order 18 Rule 10(1), the Respondent may apply to the Court for the appeal to be dismissed for want of Prosecution where an Appellant fails to file his brief within the time provided for in Order 18 Rule 2, or within the time as may upon application, be extended by the Court. Order 18 Rule 10(2) also provides as follows:
“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 Court may suo motu dismiss the appeal for want of prosecution.”
In this appeal, there was no application made by the respondent. Rather, the Court, suo motu struck out the appeal for want of prosecution. Previous provisions similar to Order 18 Rule 10(2) have been interpreted by the Courts.
IN KRAUS VS NATIONAL INSTITUTE OF POLICY AND STRATEGIC STUDIES (2004) 5 S.C. (Pt.1) 16, the Supreme Court considered a similar provision, Order 6 Rule 10 of the court of Appeal Rules 1981, and held:
“An appeal which is dismissed under Order 6 Rule 10 of the Court of Appeal Rules cannot be re-listed. This court held in Babayagi v. Bida (supra) that once an appeal is dismissed under Order 6 Rule 10, the Court of Appeal has no jurisdiction to revive the appeal by re-entering or re-listing same. See also Chukwuka v. Ezulike (1998) 2 NWLR (Pt.539) 355.
When an appeal is dismissed under Order 6 rule 10 of the Court of Appeal Rules, its life terminates and it is therefore removed from the cause list. No Court has jurisdiction to revive or resuscitate it. ”
See also BABAYAGI V. ALHAJI BIDA (1998) 2 NWLR (PT.538) 367; ASALU VS DAKAN (supra).
In the case of OLUWU V. ABOLORE (1993) 5 NWLR (Pt.293) 255 at 277, Karibi Whyte JSC stated the law as follows:-
‘An appeal dismissed on the ground of failure to file appellant’s brief of argument is final. The appeal so dismissed cannot, be revived”.
In his concurring judgment in that case of pages 278-279 of the report, Belgore, JSC (as he then was), plainly stated as follows:
“Once the Court of Appeal has dismissed the appeal for want of prosecution due to appellant’s failure to file brief of argument, that court is functus officio on that matter”
The applicants in the supporting affidavit seek to bring to the fore the fact that the failure to file the Appellants’ Brief within time was the fault of Counsel, resulting from series of person of bereavements of the Counsel. It is a well-worn legal position that the fault or sin of Counsel cannot be visited on his client. However, I will respectfully, refer to the observations of Iguh JSC, in his concurring judgment in BABAYAGI VS. ALHAJI BIDA (supra) where he said at page 379:
“Learned counsel for the Appellant tried in his brief of argument to enlist the sympathy of this Court by arguing that the Court below was wrong in dismissing the appeal instead of striking it out as the Appellant might not have been aware that his counsel would not be attending Court to oppose the application. I need only restate that sympathy cannot override the clear provisions of the Rules of Court and that it would be in the interest of the parties and their counsel to endeavour always to comply with the prescribed times set out in the Rules for the doing of any act or taking any step”.
It is not necessary to over flog the issue. The applicants herein failed to file their Brief of Argument within the prescribed time, from 2009 – 2012, when the matter was finally struck out or dismissed. An Order mode by the Court in that circumstance, brings the appeal to an end. It cannot be revived. This application is accordingly refused and hereby dismissed.
MOHAMMED LAWAL GARBA, J.C.A.: My learned brother O. A. Otisi, JCA, has comprehensively considered and proficiently resolved the issue of whether an appeal dismissed/struck out for want of diligent prosecution pursuant to Order 18, Rule 10(2) of the Court of Appeal Rules, 2011, can be relisted by the court, in the lead ruling on this motion, which I read before today. I do not wish to say more than that I agree entirely with the resolution of the issue and the reasons set out in the lead ruling which are hereby adopted by me. The motion is dismissed by me too.
UZO I. NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form, the ruling just delivered by my learned brother Onyekachi A. Otisi, JCA. I am in total agreement with the reasoning and final conclusions contained therein.
The court ceases to have jurisdiction over this matter after it had been struck out or dismissed for want of diligent prosecution. The Court is now functus officio. I abide with all the orders contained in the lead ruling.
Appearances
Chidi Agor, Esq.For Appellant
AND
For Respondent
Chief Okey Obikeze for 1st Respondent
E. O. Kalu, Esq. (Asst. Chief State Counsel) for 2nd and 3rd RespondentsFor Respondent
