STIRLING CIVIL ENGINEERING NIGERIA LIMITED v. FIDELITY BANK PLC
(2013)LCN/6409(CA)
In The Court of Appeal of Nigeria
On Friday, the 12th day of July, 2013
CA/K/343/M/2011
JUSTICES
DALHATU ADAMU Justice of The Court of Appeal of Nigeria
CFR Justice of The Court of Appeal of Nigeria
ABDU ABOKI Justice of The Court of Appeal of Nigeria
HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria
Between
STIRLING CIVIL ENGINEERING NIGERIA LTD Appellant(s)
AND
FIDELITY BANK PLC Respondent(s)
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (Delivering the Lead Ruling): The Appellant, as the Applicant, filed before this Court on the 19th of December, 2011, a motion on notice dated the 14th of December, 2011 praying for an order setting aside the order of this Court made on the 9th of February, 2011 dismissing its appeal for failure to file a brief of argument within time. The application was predicated on nine grounds and these were stated on the face of the motion paper.
The application was supported by an affidavit of five paragraphs with several sub-paragraphs deposed to on the 19th of December, 2011 and it had exhibits attached.
The Appellant also filed a further affidavit in support of the application and it consisted of five paragraphs with several sub-paragraphs and it was deposed to on the 16th of January, 2013 and had one exhibit attached. The Respondent reacted to the application by a counter affidavit of six paragraphs with several sub-paragraphs and it was deposed to on the 27th of March, 2012 and it had exhibits attached. The Respondent also filed a further counter affidavit of thirteen paragraphs deposed to on the 31st of January, 2013.
In arguing the application, Counsel to the Appellant filed a written address of arguments consisting of eleven pages and dated the 14th of January, 2013. The written address was filed on the 16th of January, 2013 and it was deemed properly filed on the 17th of January, 2013. Counsel to the Respondent filed a written address dated the 31th of January, 2013 in response and it consisted of twelve pages. Counsel to the Appellant filed a reply on points of law and it consisted of nine pages and was dated the 9th of May, 2013. At the hearing of the application on the 15th of May, 2013, Counsel to the parties relied on and adopted their respective written addresses in arguing the application.
The case of the Appellant on the application was that the Respondent instituted an action against the Appellant before the High Court of Kaduna State under the Undefended List Procedure on the 13th of December, 2006 and that judgment was entered in favour of the Respondent on the 18th of January, 2007. It was its case that it caused an application to be filed in the High Court of Kaduna State seeking to set aside the judgment on the ground that it was a nullity and that on the 10th of May, 2007, the application was dismissed in a considered ruling delivered by the Kaduna State High Court. It was its case that it caused an appeal to be lodged against the ruling on the same 10th of May, 2007 and that it filed in this Court an application for stay of execution of the judgment of the lower Court and the motion was listed as Appeal No CA/K/222/09 and was fixed for the 9th of February, 2011. It was its case that the records of appeal was compiled by the Registrar of the Kaduna State High Court and was forwarded to the Court sometime in July 2009, out of time and this prompted it to file a motion on notice dated 18th of November, 2010 for an extension of time and to regularize the records of appeal and the hearing of the motion was fixed for the 2nd of March, 2011. It was its case that it filed another application in this Court dated the 20th of January, 2011, seeking for leave to amend the notice of appeal and this application was also fixed for the 2nd of March, 2011. It was its case that all these applications were served on the Counsel to the Respondent and copies of all the processes were attached.
It was the case of the Appellant that the Respondent filed a motion on notice dated the 11th of October, 2010 in this Court praying for a dismissal of its appeal filed on the 10th of May, 2007 for failure to file the Appellant’s brief of arguments and that it responded to the application by a counter affidavit deposed to on the 11th of January, 2011 and to which it attached a copy of its application to this Court seeking for an extension of time to compile the records of appeal was as an exhibit and this application of the Respondent was fixed for the 28th of February, 2011. It was its case that the hearing notice for its application for stay of execution fixed for the 9th of February, 2011 was not served at the office of its Counsel on record at No 1, Kingsway Road, Ikoyi, Lagos but rather on the law firm of Abdullahi Ibrahim & Co at Ali Akilu Road Kaduna, who were not its Counsel on record, and that the law firm of Abdullahi Ibrahim & Co did not bring the hearing notice to the attention of its Counsel on record and hence the absence of its Counsel from Court on the 9th of February, 2011. It was its case that the name and address of the law firm of Abdullahi Ibrahim & Co was not listed on the notice of appeal as its address for service in this appeal and that at no time was its address for service in this appeal changed to reflect the address of the law firm. It was its case that on the 9th of February, 2011, the Counsel to the Respondent misled this Court into hearing the Respondent’s motion seeking to dismiss the appeal for failure of the Appellant to file brief of argument which was fixed for the 28th of February, 2011, and this Court dismissed the appeal. It was its case that its Counsel called the Registrar of this Court on the 27th of February, 2011 to confirm if the Court would sit on the 28th of February, 2011 for the Respondent’s motion to dismiss the appeal and was informed that the Court would not sit and that fresh hearing notices would be issued and that after waiting in vain for the fresh hearing notice, its Counsel sent a clerk to the Registry of this Court on the 16th of December, 2011 to confirm the status of the matter and it was then they were informed that the appeal was struck out on the 9th of February, 2011.
The case of the Respondent in response was that the Appellant had no desire in prosecuting this appeal and that though the Appellant applied and paid for the records of appeal, it was its efforts that quickened the process of compiling and transmitting the records and that it was on being served with its application to dismiss the appeal that the Appellant filed its flurry of applications. It was its case that it is incorrect that the applications of the Appellant and its application to dismiss the appeal were fixed for different days and that all the applications were billed to come up and did come up on the 9th of February, 2011, and that it was after going through the records, seeing all the pending applications and noticing the tardiness of the Appellant in prosecuting the appeal, that this Court allowed its motion to be moved and granted. It was its case that the hearing notice was duly served on O. A. Orewale in care of the law firm of Abdullahi Ibrahim & Co and this was the address for service that O. A. Orewale gave and it was at the same address that the motion to dismiss the appeal was served and the Appellant acknowledged receipt of the motion and responded thereto and that it is the same address being used by O. A. Orewale in a sister suit he filed in the High Court of Kaduna State in Suit No KDH/KAD/545/2009; copies of processes were attached. It was its case that this present application was filed eight months after the order dismissing the appeal was granted and that since the filing the appeal five years ago, the Appellant has only been stockpiling applications and had not moved even one application or done anything to progress the appeal.
In arguing the application, Counsel to the Appellant conceded in his written address that this Court possessed power under Order 18 Rule 10 of the Court of Appeal Rules to dismiss the appeal, as it did, for failure of the Appellant to file a brief of argument and that there is no provision in the Rules of Court for setting aside such order of dismissal. Counsel submitted that apart from the powers of the Court under the Rules of Court to set aside its order, this Court like any other court of record possesses an inherent jurisdiction to set aside its judgment, order or ruling (i) where the judgment was obtained by fraud; (ii) where the judgment is a nullity such as when the court itself was not competent; (iii) where the court was misled into giving the judgment under a mistaken belief that the parties have consented to it; (iv) where the judgment was entered without jurisdiction; and (v) where the procedure adopted was such as to deprive the decision or judgment of the character of legitimate adjudication. Counsel referred to the cases of Alao V. ACB (2000) 9 NWLR (pt 672) 264, Ede V. Mba (2011) 18 NWLR (Pt 1278) 236, Dingyadi V. INEC (No 1) (2010) 18 NWLR (Pt 1224) 1, amongst others. Counsel stated that from the facts deposed in the affidavits of the parties, it was obvious that there was no proper service of the hearing notice for the court date of 9th of February, 2011, on the Appellant and also that the motion of the Respondent for dismissal of the appeal was not listed for hearing on that date but for the 28th of February, 2011. Counsel stated that these show that the proceedings of the 9th of February, 2011 were conducted in breach of the right of the Appellant to fair hearing and that as such the order of this Court dismissing the appeal was a nullity; he referred to the cases of Salu V. Egeidon (1994) 6 NWLR (Pt 348) 23 and Dingyadi V. INEC (No 1) supra. Counsel submitted that the order dismissing the appeal of the Appellant was one of such orders that this Court can set aside under its inherent jurisdiction. Counsel urged this Court to grant the application.
In his response arguments, Counsel to the Respondent conceded that a court possesses the inherent power to set aside its judgment in appropriate circumstances such as the five instances cited by Counsel to the Appellant and that the decisions in Alao V. ACB supra and Ede V. Mba supra were on that point. Counsel submitted that what transpired before the Supreme Court in Ede V. Mba supra was distinguishable from the facts of this case because there was no corresponding provision in the Court of Appeal Rules similar to the provisions of Order 6 Rule 3 (2) of the Supreme Court Rules that was interpreted in that case and that as such the case was not authority for what transpired in the present case. Counsel submitted that on the facts of the present case, it does not fall within any of the five instances in which a court can set aside its judgment or order under its inherent powers. Counsel stated that the only other instance where a court can set aside its judgment or order is where the statute or common law permits it and he submitted that under the Court of Appeal Rules 2011, apart from correction of minor clerical errors, this Court has no power to revisit or review its orders and judgments once delivered; he referred to the cases of Olowu V. Abolore (1993) 5 NWLR (pt 293) 255 and Alli V. Ayinde (2010) All FWLR (Pt 540) 1315.
On the issue of improper service of the hearing notice for the court date of 9th of February, 2011 on the Appellant through the Law firm of Abdullahi Ibrahim & Co, Counsel to the Respondent referred to the contents of the affidavits of the parties and stated that it was obvious therefrom that Counsel to the Appellant, A. O. Orewale, was being economical with the truth. Counsel stated that it was Mr. A. O. Orewale that gave himself and the Registry of this Court the address of the law firm of Abdullahi Ibrahim & Co as an alternative address for service and that lawyers from the law firm had appeared severally on his behalf in the present appeal and that the address of the law firm was the address for service being used by the same Counsel in a sister case he instituted in the High Court of Kaduna State. Counsel stated that the admission in the further affidavit of the Appellant that Counsel from the law firm of Abdullahi Ibrahim & Co only appeared in Court on some occasions to hold the brief of Mr. A. O. Orewale was sufficient because the law recognizes counsel who hold briefs of another Counsel as being in shoes of the Counsel for all purposes and he referred to the cases of PDP V. INEC (2004) All FWLR (pt 209) 1071, and Mobolaji V. Fabson Co Ltd (2004) All FWLR (pt 239) 954. Counsel submitted that the issue of breach of fair hearing raised by the Appellant was not done bona fides and that this Court should resist the attempt by the Appellant to arm twist it by referring to the doctrine and he referred to several case law authorities on the point. Counsel urged the Court to refuse the application.
There are really no disputes between the parties on the facts relevant for the determination of this application. It was not in dispute that on the 10th of May, 2007, the Appellant filed a notice of appeal against the Ruling delivered by the lower Court in Suit No KDH/KAD/886/2006 and that it also filed in this Court an application for stay of execution of the judgment of the lower Court and the motion was listed as Appeal No CA/K/222/09 and was fixed for the 9th of February, 2011. It was not in dispute that when the Appellant did nothing to progress the appeal, the Respondent filed a motion on notice dated the 11th of October, 2010 in this Court praying for a dismissal of the appeal for failure of the Appellant to file a brief of arguments and this application of the Respondent was fixed for the 28th of February, 2011. It was not in dispute that this application of the Respondent gingered the Appellant into action and on the 11th of January, 2011, it filed in this Court a motion on notice dated 18th of November, 2010 praying for an extension of time within which to compile and transmit the records of appeal and to deem the bundle of documents compiled and transmitted as the records of appeal and the hearing of the motion was fixed for the 2nd of Match, 2011. It was not in dispute that on the 21st of January, 2011 the Appellant filed another application in this Court dated the 20th of January, 2011 seeking for leave to amend the notice of appeal and this application was also fixed for the 2nd of March, 2011.
It was not in dispute that on the same 21st of January, 2011, the Appellant responded to the application of the Respondent for dismissal of the appeal by a counter affidavit and to which it attached a copy of its application to this Court seeking for an extension of time to compile the records of appeal as an exhibit. It was not in dispute that the hearing notice issued for the court date of 9th of February, 2011 was served on the Counsel to the Appellant via the office of the law firm of Abdullahi Ibrahim & Co at Investment House on Ali Akilu Road, Kaduna and it was duly received and signed for in that office. It was not in dispute that when the matter came up on the 9th of February, 2011, the Appellant was absent from court and was unrepresented by Counsel without any explanation and this Court entertained the application of the Respondent to dismiss the appeal and it ruled thus:
“Clearly the Appellant is not serious and after three years has failed to file their brief coupled with their absence despite service. Appeal is therefore dismissed. No order as to costs.”
This is the order that the Appellant desires this Court to set aside by this present application.
As rightly submitted by Counsel to both parties, a court of law can set aside its own judgment or order in two instances; namely: (i) where it is so empowered by statute to do; and (ii) under its inherent jurisdiction is specified and certain situations – Yakubu V. Governor, Kogi State (1997) 7 NWLR (pt 511) 66, Fada V. Naomi (2002) 4 NWLR (pt 757)318, Ene V. Asikpo (2010) 10 NWLR (pt 1203) 477.
It is obvious from the records of proceedings in this matter that the appeal of the Appellant was dismissed by this Court in the exercise of its powers under the provisions of Order 18 Rule 10 of the Court of Appeal Rules 2011 which reads:
“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 ….”
There is no specific provision in the Court of Appeal Rules that empowers the Court to set aside its judgment or orders. The only provision that allows the Court to tamper with its judgment or orders is Order 19 Rule 4 which reads:
“The Court shall not review any judgment once given and delivered by it, save to correct any clerical mistake or some error from any accidental slip or omission, or to vary the judgment or order so as to give effect to its meaning or intention. A judgment or order shall not be varied when it correctly represents what the Court decided nor shall the operative substantive part of it be varied and a different form substituted.”
This provision has been severally interpreted by the Courts, along with the provision of Order 18 Rule 10 (which was Order 6 Rule 10 in the Court of Appeal Rules 2002 and Order 17 Rule 10 in the Court of Appeal Rules 2007), and the position is that where an appeal, is dismissed under Order 18 Rule 10, its life terminates and it is therefore removed from the cause list and it cannot be resuscitated under the provisions of Order 19 Rule 4 or under any other provision of the Court of Appeal Rules and the Court becomes functus officio. In other words, whether the decision in the judgment or order was right or wrong or defective ex facie, this Court cannot competently re-entered or re-heat the appeal – Chukwuka V. Ezulike (1986) 5 NWLR (Pt 45) 892, Babayagi V. Bida (1998) 2 NWLR (Pt 538) 367, Omoyinmi Vs Ogunsuji (2001) 7 NWLR (pt 711) 149, Independent National Electoral Commission V. Nnaji (2004) 16 NWLR (pt 900) 473, Kraus Thompson Organization V. National Institute of Policy and Strategic Studies (2004) 17 NWLR (Pt 910) 44, Federal Radio Corporation of Nigeria V. Iwuoha (2013) 1 NWLR (Pt 1335) 207, Famu V. Kassim (2013) 7 NWLR (pt 1352) 166.
However, where it is shown that the decision reached in the judgment or order dismissing the appeal was made without jurisdiction or is a nullity due to absence of fair hearing, or was reached as a result of fraud, the decision can be set aside by this Court under its inherent jurisdiction – Okafor V. Attorney General, Anambra State (1991) 6 NWLR (Pt 200) 659, Onwuka V. Maduka (2002) 18 NWLR (Pt 799) 586, Witt & Busch Ltd V. Dale Power Systems Plc (2007) 17 NWLR (Pt 1062) 1, Osakue V. Federal College of Education, Asaba (2010) 10 NWLR (pt 1201) 1, Ene V. Asikpo (2010) 10 NWLR (Pt 1203) 477, First Bank of Nigeria Plc V. TSA Industries Ltd (2010) 15 NWLR (pt 1216) 247, Dingyadi V. INEC (No 1) (2010) 18 NWLR (pt 1224) 1, Ede V. Mba (2011) 18 NWLR (pt 1278) 236, Adeyemi-Bero V. Lagos State Property Development Corporation (2013) 8 NWLR (pt 1356) 238.
The Appellant, in the instant case, conceded that this Court lacked statutory power under its Rules of Court to set aside the order of dismissal of the appeal made on the 9th of February, 2011 and the Appellant predicated its request for setting aside on the inherent power of the Court. The issue it canvassed as the enabling circumstance was that the order was a nullity by reason of denial of fair hearing. It was its case that there was no appropriate service of the hearing notice for the court date of 9th of February, 2011 on it and also that the Respondent’s motion for dismissal was not listed for that day but for the 28th of February, 2011. The Respondent countered that the Appellant’s Counsel was duly served with the hearing notice and that it was all pending applications, including the motion for dismissal of the appeal, that were slated to come up on the 9th of February, 2011.
Now, it is elementary that the originating process of any appeal is the notice of appeal.
One of the requirements of a valid notice of appeal by Order 6 Rule 2 of the Court of Appeal Rules is that it must contain the names and addresses of all parties directly affected by the appeal, and this includes an appellant. Order 6 Rule 11 states that any party to an appeal may change his address for service at any time, by filing and serving on all other parties to the appeal a notice of such change. All service of court processes must be carried out at the addresses supplied by the parties, unless otherwise ordered by the Court.
In the notice of appeal filed by the Appellant, and dated the 10th of May, 2007, the Appellant gave two alternative addresses; namely (i) O. A. Orewale, AELEX, 4th Floor, Adamawa Plaza, Central Business District, First Avenue, Off Shehu Shagari Way, Abuja; or (ii) O. A. Orewale, AELEX, c/o George Taylor Ashiru & Co, Second Floor Gidan Bamaiyi, Ahmadu Bello Way, Kaduna. By a letter dated the 22nd of August, 2008, and attached to the further affidavit of the Appellant, Counsel to the Appellant notified the Registrar of this Court and Counsel to the Respondent as well as Process Section and the Bailiff Section of this Court that it was discontinuing the use of the office of George Taylor Ashiru & Co, Second Floor Gidan Bamaiyi, Ahmadu Bello Way, Kaduna as an alternative address for service and requested that henceforth service of processes should be effected on him through the office of AELEX at 7th Floor, Marble House, 1, Kingsway Road, Ikoyi, Lagos. The Respondent did not contest that its Counsel received the letter. Thus, the supplied addresses of the Appellant for service of all processes in the appeal was either O. A. Orewale, AELEX, 4th Floor, Adamawa Plaza, Central Business District, First Avenue, Off Shehu Shagari Way, Abuja or AELEX at 7th Floor, Marble House, 1, Kingsway Road, Ikoyi, Lagos.
The hearing notice of the Appellant for the court date of the 9th of February, 2011 was served on O. A. Orewale c/o the office of the law firm of Abdullahi Ibrahim & Co at Investment House on Ali Akilu Road, Kaduna. This was not one of the supplied addresses of the Appellant for service in this appeal. It was the case of the Respondent that this was the address for service that O. A. Orewale gave to Registry of this Court and to its Counsel and that it was at the same address that the motion to dismiss the appeal was served and the Appellant acknowledged receipt of the motion and responded thereto and that it is the same address being used by O. A. Orewale in a sister suit he filed in the High Court of Kaduna State in Suit No KDH/KAD/545/2009; copies of processes were attached. The Respondent did not however say how the said Mr. O. A. Orewale informed the Registry and its Counsel of the change of address; was it orally or in writing and no document of change of address by the Appellant, as required by Order 6 Rule 11 of the Court of Appeal Rules, was produced by the Respondent. Counsel to the Respondent referred in his written address to a letter dated the 8th of September, 2011 alleged written by Counsel to the Appellant saying that “…my future processes and hearing notices relating to the above two matters must not be served on the law firms of Abdullahi Ibrahim & Co and George Taylor Ashiru & Co. Kindly disregard their offices as our address for service.” No such letter was however exhibited by the Respondent. Also, the Respondent did not exhibit any document in proof of service of the said motion to dismiss the appeal or of any other process in this appeal on the Appellant through the law firm of Abdullahi Ibrahim & Co at Investment House on Ali Akilu Road, Kaduna to show a pattern that processes had been served on, received for and brought to the notice of the Appellant at the address without complaints. The address for service used by Counsel to the Appellant in another suit in the High Court is completely irrelevant in this case as a party is free to choose and use whichever address it considers appropriate for different suits before the Court.
There is nothing to show that the Respondent obtained leave of this Court or an order of substituted service permitting service of the hearing notice at an address not supplied by the Appellant. The hearing notice of the Court date of the 9th of February, 2011 was not served at any of the supplied addresses of the Appellant and therefore such service cannot be good service. It is trite that proper service of a process is an essential aspect of Nigerian procedural law. It gives the party served the opportunity of being heard, and it is a condition precedent to the competence of the court assuming jurisdiction and adjudicating over the legal rights of litigants. Service of process is therefore a jurisdictional issue. Accordingly, any matter or proceedings affected by lapse in service of process suffers a fundamental flaw – Agip (Nig) Ltd V. Agip Petroli International (2010) 5 NWLR (pt 1187) 348, Multichem Industries Ltd V. Musa (2013) 8 NWLR (Pt 1356) 404. Failure to serve a process where the process is required to be served renders any order made against the party not served with the process null and void – First Bank of Nigeria Plc V. TSA Industries Ltd (2010) 15 NWLR (pt 1216) 247.
Additionally, an examination of the certified true copy of the Respondent’s motion to dismiss the appeal attached as an exhibit by the Appellant to this application reveals that the date of hearing inserted on the application was the 28th of February, 2011, and not the 9th of February, 2011. There is nothing in the records to show that this Court granted an abridgment of time to move forward the date of hearing of the application.
It cannot be contested that it is improper for a court to hear a motion on a day it was not billed to come up for hearing without notifying the parties that the hearing date of the motion has been shifted – Agbabiaka V. First Bank of Nigeria Plc (2007) 6 NWLR (pt 1029) 25. This is particular more so when the application is of a final nature as a motion to dismiss the suit and when one of the parties was absent from Court on the day.
There was a fundamental breach of the right of the Appellant to fair hearing in the conduct of the entire proceedings of this Court on the 9th of February, 2011.
The right to be heard is so fundamental a principle of our adjudicatory process that it cannot be compromised on any ground – Nwokoro V. Onuma (1990) 3 NWLR (pt 136) 22 at 35, Iwuoha V. Okoroike (1996) 2 NWLR (pt 429) 231, Olufeagba V. Abdul-Raheem (2009) 18 NWLR (pt 1173) 384. Thus, the issue of the tardiness of the Appellant in prosecuting this appeal is not an exonerating reason for the failure to give the Appellant fair hearing. The Courts are unanimous that any breach of the right to fair hearing naturally vitiates such proceedings and renders the same and orders made therein null and void – Akoh V. Abuh (1988) 3 NWLR (pt 85) 696, Ceekay Traders Ltd V. General Motors Co Ltd (1992) 2 NWLR (pt 222) 132, Oyeyemi V. Commissioner for Local Government, Kwara State (1992) 2 NWLR (pt 226) 661, Military Governor of Imo State V. Nwauwa (1997) 2 NWLR (pt 490) 675, Olufeagba V. Abdul-Raheem supra, Agip (Nig) Ltd V. Agip Petroli International & Ors supra, Agbiti V. Nigerian Navy (2011) 4 NWLR (pt 1236) 175. The law is that this Court is empowered to set aside its proceedings and orders made in such circumstances – Ene Vs Asikpo supra, First Bank of Nigeria Plc Vs TSA Industries Ltd supra, Dingyadi Vs INEC (No 1) supra, Ede Vs Mba supra. In Barigha Vs Peoples Democratic Party (2013) 6 NWLR (pt 1349) 108, the Supreme Court at 154-155 stated that:
“… the proper way of challenging the decision of a superior court which is a nullity is by application before the very court which tried the case or by an appeal … The point should be made that while the practice in the High Court in nullifying a decision is to bring the application before the judge who made the order sought to be impungned unless he is no longer around, the same cannot be said of the appellate court which sits in a panel. Any panel of the Court of Appeal can sit and nullify the decision or order made.”
Before concluding this Ruling this Court considers it pertinent to comment on the attitude exhibited by the Appellant so far in the prosecution of this appeal. The notice of appeal in this matter was filed on the 10th of May, 2007 and up and until the 9th of February, 2011, around four years thereafter, when the appeal was dismissed, the Appellant had done nothing to progress the hearing and determination of the matter.
The records of appeal were not properly before this Court and neither had the briefs of arguments been filed. The Rules of this Court provide that records of appeal should be compiled and transmitted within sixty days of the filing of the notice of appeal or such longer as this Court may allow. Also, this present application was filed on the 19th of December, 2011, over eleven months after the appeal was dismissed, and the only reason furnished by the Appellant in the affidavit in support of this application for this delay was that it was only on the 16th of December, 2011 that they discovered that the appeal was dismissed on the 9th of February, 2011. What a pathetic excuse! What an open display of irresponsibility and un-seriousness by the Appellant and by its Counsel in the prosecution of this appeal! This appeal has been saved literarily by the “skin of its teeth”. It is expected that the Appellant and his Counsel will display the required diligence in progressing the hearing of this appeal henceforth.
In conclusion, the application of the Appellant succeeds and the order made by this Court on the 9th of February, 2011 dismissing this appeal for failure of the Appellant to file a brief of argument, being null and void as it was made without jurisdiction, is set aside. This appeal is hereby relisted and restore to the cause list. These shall be the orders of this Court.
DALHATU ADAMU, J.C.A.: I have gone through the draft of the leading ruling of my learned brother H.A.O. Abiru JCA, I agree with his reasoning and conclusion that the application succeeds. I hold that dismissing the appeal for failure of the appellant to file brief of argument was made without jurisdiction. I set it aside and hereby re-list and restore the appeal to the cause list.
ABDU ABOKI, J.C.A.: I have had the privilege of reading the draft Ruling of my learned brother HABEEB ADEWALE OLUMUYIWA ABIRU JCA, which he made available to me before now. Having gone through, I agree with his conclusion that there is merit in the appeal and should succeed. I therefore accordingly set aside same and also order that the appeal should be relisted and restore to the cause list.
Appearances
Tunde OlowuFor Appellant
AND
Ugochukwu Udoji with Kim MagajiFor Respondent
