TEMA v. DAM & ANOR (2022)

TEMA v. DAM & ANOR

(2022)LCN/16435(CA)

In The Court of Appeal

(MAKURDI JUDICIAL DIVISION)

On Friday, May 20, 2022

CA/MK/89/2019(R)

Before Our Lordships:

Ignatius Igwe Agube Justice of the Court of Appeal

Cordelia Ifeoma Jombo-Ofo Justice of the Court of Appeal

Muslim Sule Hassan Justice of the Court of Appeal

Between

UKPOUGHUL TEMA (Suing For And On Behalf Of The Dura Family) APPELANT(S)

And

1. SAMUEL DAM (Suing For Himself And On Behalf Of The Gbila Family) 2. IORNEM EPHRAIM RESPONDENT(S)

RATIO

WHETHER OR NOT SYMPATHY CAN OVERRIDE THE CLEAR PROVISIONS OF THE RULES OF COURT

The law remains the same and the noose has further been tightened around necks of defaulters. The provisions are clear and unambiguous. The Courts must interpret the law as is. The law remains the same that an appeal dismissed by this Court as a result of failure of the Appellant to file his brief of Argument within time and from the 2016 Rules to compile records is a final judgment and cannot be revisited by the same Court. In ASALU & 2 ORS V. FATAI SULE DAKAN (2006) ALL FWLR (PT. 325) 90 at 101 B-H, the Apex Court held that: “An appeal which is dismissed on the grounds that the Appellant failed to file his brief of argument within the time limited for so doing is final and the appeal so dismissed cannot be revived. The Court which dismissed it becomes functus officio on that matter. In such a case, the Court of Appeal, has no inherent jurisdiction to set aside an order of dismissal made pursuant to Order 6 Rule 10 of the Court of Appeal Rules….’’ At 102 D-E “Sympathy cannot override the clear provisions of the Rules of Court and it is in the interest of parties and their counsel to endeavor always to comply with the prescribed times set out in the rules for doing of any act or taking any step.’’ PER HASSAN, J.C.A.

WHETHER OR NOT AN AFFIDAVIT OF SERVICE DEPOSED TO BY A PLANTIFF OF A COURT IS PRIMA FACIE EVIDENCE OF SERVICE

The Applicant also raise the issue of non-service of the hearing notice, the law is trite that an affidavit of service deposed to by a bailiff of the Court as in the instant case is prima facie evidence of service of the hearing notice and it raises a rebuttable presumption that proper service has been carried out, the only way the Applicant can challenge non-service of the hearing notice is by filling a counter-affidavit, the applicant did not file a counter-affidavit which raises a rebuttable presumption that proper service has been carried out by the bailiff of this Court. See NIC OIL NETWORK SERVICES NIGERIA LIMITED & ORS V. BAMOD OIL NIGERIA LIMITED (2014) LPELR-24629 (CA) Page 23. PER HASSAN, J.C.A.

MUSLIM SULE HASSAN, J.C.A. (Delivering the Leading Judgement): The Applicant by this Motion dated the 14th of February, 2022, and filed on the 15th of February, 2022 is praying this Honorable Court for the following reliefs:
1. An Order setting aside the Order(s) and proceedings of the Honorable Court conducted on the 9th of February, 2022, in respect of application number CA/MK/24/M/20021, between UKPOUGHUL TEMA (as Appellant/Respondent) and 1. SAMUEL DAM (Suing for and on behalf of the Gbila family) 2. IORNEM EPHRAIM.
2. An order relisting Appeal No. CA/MK/89/2019 between UKPOUGHUL TEMA (Suing for and on behalf of the Dura family) And 1. SAMUEL DAM (suing for himself and on behalf of Gbila family) 2. IORNEM EPHRAIM. Together with all the processes and application(s) which was struck out on the 9th of February, 2022.
3. An order for enlargement of time within which to compile and transmit Records of Appeal in suit No. MHC/336/2012 between SAMUEL DAM (suing for himself and on behalf of the Gbila family) 1. GWER WEST LOCAL GOVERNMENT 2. UKPOUGHUL TEMA 3. CELESTINE TYOSUE AKUTSA 4. IORNEM EPHRAIM presided over by Honorable Justice M.A. IKpambese of the Benue State High Court of Justice in Makurdi, to this Court.
4. An order deeming the Records of Appeal and supplementary Record of Appeal in Suit No. MHC/336/2012 between SAMUEL DAM (suing for Himself and on behalf of the Gbila family) And 1. GWER WEST LOCAL GOVERNMENT 2. UKPOUGHUL TEMA 3. CELESTINE TYOSUE AKUTSA 4. IORNEM EPHRAIM compiled and transmitted to this Court, out of time, on the 30th day of May, 2019 respectively.
5. An order of stay of further execution and enforcement of the judgment in Suit No. MHC/336/2012 delivered on the 8th day of October, 2018, pending the hearing and determination of Appeal No. CA/MK/89/2019 between UKPOUGHUL TEMA (as Appellant/Respondent) and 1. SAMUEL DAM (suing for and on behalf of the Gbila family) 2. IORNEM EPHRAIM.
6. And any further order(s) as this Honorable Court may deem fit to make in the circumstances.

The grounds upon which the application is brought is contained on the face of the Motion paper to the effect that Respondents’ application No. CA/MK/24/M/2021 praying this Court to dismiss the Appellant’s appeal was heard and granted in his absence on the 9th of February, 2022, and the Respondents are threatening to enforce the order of the trial Court, hence, the need to relist the appeal and all accompanying applications in the appeal by this application.

The application is supported by 23 paragraphed affidavit deposed to by one Anongo Doofan, the litigation Secretary in the Law firm of Imbwaseh, Kenen, Atonko and Associated. Annexed to the Application is the Ruling of this Court of 20th January, 2022, in Motion No. CA/MK/24M/2021 marked as EXHIBIT A.

The 1st Respondent upon receipt of the Applicant’s motion filed a 14 paragraphed counter-affidavit deposed to by Grace Agwu, one of the Litigation Secretaries in the law firm of Emmanuel Ominyi & Associates. Annexed to the counter affidavit is SAM 1 which comprises of the Notice of Preliminary Objection, the judgment of the Trial Court and the Notice of Appeal filed by the Applicant, and EXHIBIT SAM 2, the prove of service of 1st Respondent’s Notice of preliminary objection on the Applicant.

The 2nd Respondent did not file any response to this application and the Applicant upon receipt of the 1st Respondent’s counter-affidavit, did not file any further affidavit or reply address on point of law. When the application came up for hearing, Counsel to the both Applicant and 1st Respondent adopted their processes before this Court and moved and urged this Court to grant and refuse the application respectively. There was no representation for the 2nd Respondent and neither did they file any response against this application.

BRIEF SUMMARY OF FACTS
The Applicant by this application is praying this Court to set aside her proceedings of the 9th of February, 2022, wherein the instant appeal was struck out for want of fair hearing, relist the instant appeal and grant the Applicant extension of time within which to transmit Record of Appeal to this Court.

The facts deposed to by the applicant in his affidavit as supporting this application being the fulcrum of this application is that the Applicant being dissatisfied with the findings of the trial Court appealed same to which he filed a motion for stay of Execution. That Applicant transmitted Records of proceedings and Additional Records of proceeding out of time and has filed a motion pending before this Court to regularize same and all processes so mentioned had been served on the Respondent. However, all efforts to get the registry of this Court to list the instant appeal for hearing proved abortive.

That the 1st Respondent however filed Motion No. CA/MK/24/M/2021, seeking to dismiss the instant appeal on the basis that the Notice of Appeal is incompetent and for lack of diligent prosecution. That the instant Motion No. CA/MK/24/M/2021, was moved before this Court and granted without serving Applicant hearing notice because the 1st Respondent’s Motion No. CA/MK/24/M/2021 provided Phone No. 08072630432 as Applicant’s Counsel mobile number instead of 08074630432 on the 9th February, 2022. That the said 1st Respondent’s Application No. CA/MK/24/M/2021 equally provided the suit no of the case at the trial Court from which the instant appeal emanated from as Suit No. MHC/178/2014 instead of Suit No. MHC/336/2012, thereby misleading the registry to open a separate file for his application No. CA/MK/24/M/2021.

That the entire family of the Applicant reside on the land which is the subject matter of the Appeal before this Court in CA/MK/89/2019, and despite being served with the Record of Appeal, the 1st Respondent is bent executing the judgment of the trial Court and evicting and rendering the entire family of the Applicant homeless, subjecting them to a loss that no amount of money can adequately compensate for.

The 1st Respondent on his counter-affidavit contended that the facts deposed to in paragraphs 3, 7 – 12, 14 & 15, 17, 18, 19, 21 – 23 of the Applicant’s affidavit are false, as the Applicant upon losing at the trial Court filed application for stay of execution and same was refused, and thereafter he filed a Notice of Appeal to this Court and serve same on the 1st Respondent. That aside the Notice of Appeal served on the 1st Respondent, no further processes were filed in the Appeal and or served on the 1st Respondent as the Applicant after filing the Notice of Appeal went into deep slumber.

That upon this events, 1st Respondent briefed the office of Emmanuel Ominyi and Associates to handle the Appeal and that was when Counsel filed a Notice of Preliminary Objection in EXHIBIT SAM 1 which is accompanied by the Judgment of the trial Court and Notice of Appeal filed by Applicant’s counsel. That the Notice of Appeal filed by Applicant’s Counsel provided Phone No. 08072630432 as one of the phone numbers of M. Atonko Esq. That 1st Respondent’s Notice of Preliminary Objection was served on the Applicant since 10/02/2021, but the Applicant has not filed any objection to same. That the Applicant was served hearing Notice for the proceedings of 9th February, 2022, via SMS service as per the Phone number provided by him on his Notice of Appeal.

That the Applicant’s failure to counter 1st Respondent’s Notice of preliminary objection is deem that he has waived the right to contest any irregularity on same, and the suit No of the case at the trial Court is on the judgment of the trial Court and the Notice of Appeal filed by the Applicant and that the order of this Court is one of dismissal, therefore this present application cannot be entertained by this Court as same is vexatious and incompetent.

ISSUES FOR DETERMINATION
The Applicant has formulated a single issue for determination of this Application to wit:
Whether the Applicant has adduced cogent reasons to justify the grant of this Application?

The 1st Respondent on his part formulated two issues for determination of this Application as follows:
1. Whether the applicant who was served with the preliminary objection and hearing Notice and failed to challenge the process can complain afterwards now as done by the present application.
2. Whether the present Court is vested with jurisdiction to grant this application when it has become funtus officio after delivering an order of dismissal of the appeal on the 9th of February, 2022.

I have considered the issues formulated by both parties and I am of the firm view that the 2nd issue formulated by the 1st Respondent’s Counsel which is similar with the issue formulated by the Applicant will sufficiently deal with this Application. Therefore I shall adopt the second issue for the determination formulated by the 1st Respondent in determining this Application. Having said this, I shall proceed to determine this Application.

SOLE ISSUE FOR DETERMINATION
Whether the present Court is vested with jurisdiction to grant this application when it has become funtus officio after delivering an order of dismissal of the appeal on the 9th of February, 2022.

SUBMISSION OF APPLICANT COUNSEL
Counsel in his submission in support of the lone issue formulated on behalf of the Applicant urging this Court to grant this application stated that the reason for the failure of the Applicant to be in Court on the date the instant appeal was dismissed was because he was not served hearing notice, and the failure to serve counsel hearing notice is tantamount to denial of fair hearing as guaranteed under S. 36 of the 1999 Constitution.

According to counsel more fundamentally was that the fact that applicant has transmitted record of appeal in the instant appeal, therefore the reason for striking out Applicant’s appeal is of no moment. It is Applicant firm submission that the facts deposed to by the Applicant in his supporting affidavit when read with the lenses of substantial justice would warrant the grant of this applicant, and he urged this Court to so hold.

SUBMISSIONS OF 1ST RESPONDENT’S COUNSEL
Counsel on his first issue submitted that 1st Respondent’s preliminary objection in EXHIBIT SAM 1 was duly served on the Applicant as evidenced in EXHIBIT SAM 2. That the law is trite that when the content of an affidavit evidence is not contradicted, they deemed established, and Counsel relied on the authority of SKYMIT Motors Ltd v. UBA, PLC [2021] 5 NWLR PT. 1768 P. 123 PP 141-142, PARAS F-A.

Counsel submitted that assuming without conceding that there were any irregularities or slips in the fact of that application, the action of the applicant in not raising it timeously amounts to waiver which is abandonment of one’s rights. Counsel relied again on the authority of Belgore v. F.R.N [2021] 3 NWLR PT. 1764 P. 503 P. S33, PAPAS. D-E.

On the issue of service of hearing notice on Applicant for the hearing of 1st Respondent’s motion No. CA/MK/24/M/2021, counsel submitted that one way of effecting service under the Rules of this Court is by electronic means and same was done in this matter via the phone number provided in the notice of appeal filed by the applicant and reproduced in the preliminary objection by the respondent’s counsel and the phone numbers provided in EXHIBIT SAM 2. Counsel urged the Court to look at the document before her to see if the claim of the Applicant that his phone number was altered is substantiated.

On Counsel compliant of denial of fair hearing by this Court in the proceedings that led to the dismissal of the instant appeal, 1st Respondent submitted that the constitutionally guaranteed right to fair hearing is not absolute or hearing at all cost. That once a party is afforded hearing and he fails to utilize same, he cannot complain later on about that as done in the instant case. Counsel relied on the authorities of Ndukwe v. UBN PLC & 1OR [2021] 4 NWLR PT. 1765 P. 165 P. 196, Paras C-C and Baiophys Enterprises Ltd & 1 Or v. N.D. C. Corp [2019] 8 NWLR [PT. 1674] P. 232 [PP. 263-264, PARAS.F-E], and prayed the Court to resolved the issue against the Applicant who chose not to be heard when the opportunity was afforded him by this Court.

On 1st Respondent’s issue two, counsel submitted that the order of dismissal distinctly dished out by the Honorable Court in a unanimous decision is divergent from order of striking out where there is provision for relisting. The preliminary objection having been heard and granted uncontested, unopposed and un-countered, this Court has thereby become functus officio.
Counsel submitted that the ground of non-service raised by the applicant is unrealistic, immaterial, inapposite and inapplicable in the circumstance of this matter, as the present application in the light of all the facts and circumstances of this matter and the duo EXHIBITS attached constitute grave, gross and unpardonable abuse of Court process.

Counsel contended that, the instant Notice of Appeal dismissed was incurably and grossly defective and incompetent and cannot be cured by any amendment. That it cannot activate the jurisdiction of any Court of law inclusive of the instant Court. As the parties in the notice of appeal are different from the ones at the trial Court from which the appeal purportedly stemmed. It is trite law that an appeal is a continuation of the suit determined by the lower Court and not a fresh matter.

That secondly, while the applicant was sued in a private capacity at the trial Court, the applicant in the Notice of Appeal dismissed was filed by the applicant in a representative capacity. Counsel submitted that this alteration has the legal consequence of rendering the instant Notice of Appeal incompetent and fundamentally defective as an appeal is a continuation of the suit at the trial Court. Counsel relied on the authority of Ani v. OUT [2017] ALL FWLR PT. 912 P. 618 [P. 640, PAPAS. E-1-1].

Counsel contended further that the alteration of the notice of appeal is tantamount to an amendment which was done without the orders of this Court. Therefore, from the foregoing, the dismissal of the Notice of Appeal was right as the Notice of Appeal being not proper cannot initiate and activate the jurisdiction of this Honorable Court.

RESOLUTION OF THE LONE ISSUE
In resolving the sole issue for determination, it is pertinent to determine first whether the order of this Court made on the 20th of January, 2022, granting 1st Respondent’s Motion No. CA/MK/24/M/2022 renders this Court functus officio to entertain the Applicant’s present application as is constituted.

I have perused the order of this Court of 20th day of January, 2022, attached to Applicant’s application as EXHIBIT A wherein this Court on the said 20th of January, 2022, upon hearing 1st Respondent’s Motion No. CA/MK/24/M/2021, dismissed the instant appeal pursuant to Order 19 Rule 10 (2) of the Rules of this Court, 2021, for want of diligent prosecution.
In order to do justice to this issue, it is apt to quote the provisions of Order 19 Rules 10 (2) of the Rules of this Court which provides as follows:
“(2) 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.”
Rule 2 referred to in the quotation above refers to Order 19 Rule 2, which provides that an Appellant has 45 days to file his brief of argument upon transmission of Records of Appeal to the Court of Appeal.
On the import of a dismissal as the one set out in EXHIBIT A pursuant to the provisions of Order 19 Rule 10 (2) of the Court of Appeal Rules, 2021, dismissing the Applicant’s appeal, and whether same can be relisted as the Applicant sought to do by this application, the authority on this is the case of Dekit Quarries Ltd & Ors v. AMCON & Anor (2018) LPELR 43736 (CA) at Pp 14 – 26 Paras D – A) Where Per IYIZOBA, JCA Stated: “Paragraphs 8 (3) and (4) of the of the Court of Appeal (FAST TRACK) Directions provides as follows: (3) The appellant must file and serve its brief within 14 days from the transmission of the record of appeal. (4) On default of the filling of the Appellants brief within time, the Court may dismiss the appeal for want of diligent prosecution.’’ There are similar provisions in the Court of Appeal Rules 2016. Order 19 Rules 10 (1) and (2) provide: (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… (2) Where the 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.’’ Provisions similar to the above have received statutory interpretations in many judgments of this Court and the Apex Court especially as it concerns the power of this Court to restore to the cause list or relist an appeal dismissed for failure to file brief of argument. The locus classicus on this issue is the case of OLOWU V ABOLORE (1993) 5 NWLR 225 or (1993) LPELR-2603- (SC) where Karibi Whyte dealt with the matter exhaustively thus: “It is well settled that the exercise of appellate jurisdiction is statutory. A Court cannot exercise jurisdiction to hear an appeal unless such jurisdiction is conferred by the Constitution or enabling Statute. Hence in the instant case, the jurisdiction to relist an appeal dismissed under Order 6 Rule 10 should be found in the Rules of the Court. I have not been lucky to discover any in the rules… This Court has decided several principles in Chukwuka v. Ezulike (1986) 9 NWLR (Pt. 45) 892. It was held there that it has no jurisdiction under the 1979 Constitution, the Supreme Court Act, 1960 and the Rules of the Supreme Court 1985, or under its inherent jurisdiction or powers to entertain an application for re-entering an appeal dismissed under Order 8 Rule 16 of the Supreme Court Rules for want of prosecution. Ogbu v. Urum (1981) 4 SC 1, Yonwuren v. Modern Signs (Nig) Ltd (1985) 2 SC. 86; (1985) 1 NWLR (Pt. 110) 483. It was also held that it has no inherent jurisdiction to set aside an order of dismissal properly made in the valid exercise of its jurisdiction and to re-enter the appeal. An appeal dismissed on the ground of the failure to file appellant’s brief of argument is final. The appeal so dismissed cannot be revived.’’ In GOVERNOR OF ZAMFARA STATE & ORS V. ALHAJI SULEIMAN MOD’D GYALANGE & ORS (2012) LPELR-9715 (SC), the SC held: “A dismissal of appeal pursuant to Ord. 17 Rule 10 of the Court of Appeal Rules disposes of the appeal to finality. It cannot be re-listed. See Kraus Thompson Org. v. NIPSS (2004) 17 NWLR (Pt. 901) 44 SC. Note that this Court decided the above case under Ord. 6 R. 10 of the Court of Appeal Rules 1981 which is in pari material with Ord.17 R.10 of the Court of Appeal Rules 2002 under which the appeal herein sought to be re-listed was dismissed. Having dismissed the appeal, the lower Court became functus officio and is not competent to review its order dismissing the appeal. See Onwuchekwa v CCB Nig. Ltd (1999) 5 NWLR (PT. 603) 409 wherein it was held that the Court of Appeal, having entered a final judgment became functus officio.

In my view, an order dismissing an appeal under Ord. 17 R. 10 (Supra) is no less final a judgment than one dismissing an appeal on the merit. An appellant aggrieved in the circumstances can appeal to the Supreme Court, rather than ask the lower Court to re-list the appeal.’’ Contrary to the contention of learned silk for the Applicants, there are no two schools of thought on this issue. The authorities are consistent that this Court has no jurisdiction to relist an appeal dismissed for failure of the appellant to file his brief of argument, the Supreme Court by a majority of 6 to 1 held that it has no jurisdiction to set aside the dismissal or to restore the appeal to the cause list. The Court held that the jurisdiction to do so is restricted to cases where the judgment or order is a nullity or where the Court acted under a mistake of fact such as where the brief had in fact been filed within time. Kutigi JSC’s dissenting judgment was based on his reservation that the Court raised the issue suo motu in chambers and without notice to the parties. He had no problem with the usual cases where the dismissal was in open Court after hearing notices had been issued. The point however is that Court do not make laws. They merely interpret law. It is not the function of Courts when construing statutes to supply omissions of fill gaps in the law. Paragraphs 8 (3) and (4) of the Court of Appeal (FAST TRACK) Directions 2014 are very precise, clear and unambiguous. The Appellant must file and serve its brief within 14 days from the transmission of the record of appeal; and on default of filling of the Appellants brief within time; the Court may dismiss the appeal for want of diligent prosecution.’’ Learned senior advocate had argued that the use of the word “may’’ suggest that the Court has discretion in the matter. That is absolutely correct but the discretion arises at the point when the Court is deciding whether or not to dismiss the appeal for failure to file the appellant’s brief of argument. Once the discretion is exercised against the Appellant and the appeal is dismissed, that is the end of the road for the Appellant as far as this Court is concerned. A communal reading of the Court of Appeal (FAST TRACK) Directions 2014 and indeed the Court of Appeal Rules 2016 will reveal that the draftsmen intentionally left these provisions of dismissal for failure to file briefs as is in order to encourage litigants to comply with these time frames. That is why there is no provision for relisting of the appeal. Learned Senior Advocate admitted as much. If they had wanted a different outcome, they would have used the word “strike out’’ instead of “dismiss’’ or specifically made provision for relisting after dismissal. In CHIME & ANOR V. UDE & ORS (Supra) ONU JSC observed: “It is a cardinal rule of construction that in seeking to interpret a particular Section of a statute or a subsidiary legislation, one does not take the Section in isolation, but one should approach the question of interpretation on the footing that the Section is part of a greater whole. See James Orubu v. National Electoral Commission (1988) 5 NWLR (Pt. 94) 323’’ Mr. Badejo SAN being fully aware of the law as stated above tried to fall back on the provision in Order 6 Rule 12 (or 11) of the Court of Appeal Rules 2016 which provides that “an application to set aside any judgment or ruling, shall not be brought unless it is filed within fourteen days from the date of delivery of such judgment or ruling or such longer period as the Court may allow for good cause.’’ Learned silk described the provision as a profound and far-reaching innovation which allows very clearly an application to set aside the ruling of this Court dated 29th September, 2017. With respect, I disagree with Mr. Badejo. The provision has always been there in other rules. All that happened was that it limited the time for filling the application to 14 days instead of “a reasonable time’’ as in earlier rules. The provision cannot be construed to cover powers to set aside any judgment or ruling whatsoever. The judgment or ruling referred to must be those in respect of which the Court has jurisdiction to set aside such as judgments that are nullities. I am completely at a loss to see how this general provision could have affected the specific provision in Paragraph 8 (4) of the Court of Appeal (FAST TRACK) Directions 2014 or Order 19 Rule 10 (1) and (2) of the Court of Appeal Rules 2016. Mr. Adeniyi Uthman of counsel to the 1st Respondent was right in his submission that when there is a general law and a specific law on an issue, the general law must give way to the specific law. As pointed out by Kalgo JSC in KRAUS THOMPSON ORG. VS N.I.P.S.S. (SUPRA) in law any specific provision excludes the general one. The provisions of Paragraph 8 (4) of the Court of Appeal (FAST TRACK) Directions 2014 or Order 19 Rule 10 (1) and (2) of the Court of Appeal Rules 2016 are clear, precise and unambiguous. TOBI JSC observed in KRAUS THOMPSON ORG. V. NIPSS that: “Where the provision of a Statute or Rule of Court is clear, the duty of the Court is to interpret the clear provision by giving the plain wordings their ordinary interpretation without more. It is not the function of a Court of law to sympathize with a party in the interpretation of a Statute merely because the language of the Statute is harsh or will cause hardship. That is not the function of the Court. That is rather the function of the legislature.’’ Mr. Badejo in his response to 2nd Respondent’s written address talked about the harshness of the provision and cited a number of cases where such sentiments were expressed by the Supreme Court and suggested that this sentiments laid the foundation for the introduction of Order 6 Rule 12 of the Court of Appeal Rules 2016. As I said earlier, Order 6 Rule 12 has no bearing whatever on the rules in question. The provisions for dismissal for failure to file briefs of argument were deliberately with full knowledge and understanding of the consequences inserted in all the previous Court of Appeal Rules and the 2016 Rules. In spite of the recommendation of Uwais CJN in KRAUS THOMPSON ORG. V. NIPSS to the Honourable President of the Court of Appeal that Order 6 (10) be amended to have the appeal struck out instead of dismissal, nothing has changed. The provisions still retain dismissal as the consequence of failure to file the Appellant’s brief. The 2016 Rules even went further to stamp their approval and confirm the stand that such dismissals are final and subject only to appeals to a higher Court. Under Order 8 Rule 20 of the Court of Appeal Rules 2011, an appellant whose appeal has been dismissed for failure to compile records may apply by notice of motion that the appeal be restored, and the Court may at its discretion for good and sufficient cause order that such appeal be restored upon such terms as it deems fit. Order 8 Rule 20 was completely omitted in the 2016 Rules. This has obliterated any doubt about any change in the law. The law remains the same and the noose has further been tightened around necks of defaulters. The provisions are clear and unambiguous. The Courts must interpret the law as is. The law remains the same that an appeal dismissed by this Court as a result of failure of the Appellant to file his brief of Argument within time and from the 2016 Rules to compile records is a final judgment and cannot be revisited by the same Court. In ASALU & 2 ORS V. FATAI SULE DAKAN (2006) ALL FWLR (PT. 325) 90 at 101 B-H, the Apex Court held that: “An appeal which is dismissed on the grounds that the Appellant failed to file his brief of argument within the time limited for so doing is final and the appeal so dismissed cannot be revived. The Court which dismissed it becomes functus officio on that matter. In such a case, the Court of Appeal, has no inherent jurisdiction to set aside an order of dismissal made pursuant to Order 6 Rule 10 of the Court of Appeal Rules….’’ At 102 D-E “Sympathy cannot override the clear provisions of the Rules of Court and it is in the interest of parties and their counsel to endeavor always to comply with the prescribed times set out in the rules for doing of any act or taking any step.’’ Having come to the conclusion that this Court has no jurisdiction to entertain this application, it is pointless considering the second issue i.e. whether the applicants have disclosed sufficient reasons and shown good cause entitling them to an order setting aside the Ruling dated 29th September, 2017. All the reasons given and the averments in the various affidavits are matters that should have been brought to the attention of this Court on 19th September, 2017 when the appeal came up for hearing and it was discovered that the Appellant’s brief had not been filed. That is when this Court could have exercised its discretion to extend time to enable the Applicants file their brief. But the Applicants were at that time more interested in moving their application for injunction; totally oblivious of the consequence of failure to file their brief within the time prescribed in the Court of Appeal (FAST TRACK) Directions 2014. Legal Practitioners must endeavor to study and familiarize themselves with these Fast Track Practice Directions and generally all Rules of Courts in order to avoid the unhappy situation in which the applicants find themselves.’’
See also the authority of Rini v. Koto & Ors (2021) LPELR 55651 (CA) at Pp 37 – 39 Paras C – A where this Court Per Yargata Byenchit Nimpar, JCA reaffirmed the provisions of the law as follows:
“…By the said Order 19 Rule 10 (1) of the Court of Appeal Rules, 2016, the Court is empowered to dismiss such application in order to de-congest its Cause List, see the case of STATE V NNOLIM AND ORS (1994) LPELR-3222 (SC) 20, A-C which stated the rationale for the above rule. Where an Appellant fails to prosecute within the time prescribed or as extended by the Court, the Court shall dismiss it and such a dismissal order terminates the life of the appeal, which is, in consequence, delisted from the cause list. No Court has the jurisdiction to resuscitate or revive it thus making it final. I therefore hold that a dismissal under Order 19 Rule 10 (1) of the Court of Appeal Rules, 2016 is final and this Court has no power to re-list the appeal so dismissed. See the case of A.G. OF THE FEDERATION & ORS V. PUNCH (NIG) LTD & ANOR (2019) LPELR-47868(SC) where the Supreme Court held thus: “…an appeal dismissed by the Court of Appeal on the ground of the failure to file an appellant’s brief of argument is final and such appeal cannot be revived by the Court of Appeal. See Olowu v. Abolore [1993] 5 NWLR (pt. 293) 255, Babayagi v. Alhafi Bida [1998] 1-2 SC 108; [1998] 7 NWLR (pt. 538) 367. Put simply, it amounts to a dismissal on the merits, UBA Plc v Ajileye [1999] 13 NWLR (pt 633) 116, 126, Olowu v. Abolore (supra), Kraus Thompson Org v N.I.P.S.S. (supra), Babayagi v Bida (supra). On its part, the Court, upon making such a dismissal order, becomes functus officio, Orobator v. Amata [1981] 5 SC 276, Nwaora v Nwaukobu [1985] 2 SC 86, 167, Yonwuren v Modern Sign Ltd [1985] NWLR (pt. 2) 244, 245, Chukwuka v Ezulike [1986] 5 NWLR (pt. 45) 892. Accordingly, it lacks the jurisdiction either under the Constitution, its constitutive Act [the Court of Appeal Act] or under its inherent jurisdiction to entertain such an appeal any longer, Chukwuka v Ezulike (supra), Ogbu v Urum [1981] 4 SC 1, Yonwuren v Modern Signs (Nig) Ltd [1985] 2 SC 86; [1985] 1 NWLR (pt. 110) 483.” Per NWEZE, J.S.C.”
The two decisions cited above dealt with the provisions of Order 19 Rule 10 (1) and (2) of the Court of Appeal Rules, 2016 which is in pari-material with the provisions of Order 19 Rule 10 (1) and (2) of the Court of Appeal Rules, 2021. A host of other judicial authorities from this Court and the Apex Court have reaffirmed the same position.

Learned Counsel for the Applicant have argued inter alia that the entire family of the Applicant reside on the land which is the subject matter of the Appeal before this Court, that the 1st Respondent is bent on executing the judgment of the trial Court and evicting and rendering the entire family of the Applicant homeless, subject them to a loss that no amount of money can adequately compensate for, with respect there is no room for sentiments, decisions of Court are based on law, facts and circumstances which the Court considers without being emotional, sensitive and sentimental. Legal Practitioners are admonish to endeavor to study and familiarize themselves with the Rules of Court and act timeously to avoid the unpalatable situation in which the Applicant find themselves.

The Applicant also raise the issue of non-service of the hearing notice, the law is trite that an affidavit of service deposed to by a bailiff of the Court as in the instant case is prima facie evidence of service of the hearing notice and it raises a rebuttable presumption that proper service has been carried out, the only way the Applicant can challenge non-service of the hearing notice is by filling a counter-affidavit, the applicant did not file a counter-affidavit which raises a rebuttable presumption that proper service has been carried out by the bailiff of this Court. See NIC OIL NETWORK SERVICES NIGERIA LIMITED & ORS V. BAMOD OIL NIGERIA LIMITED (2014) LPELR-24629 (CA) Page 23.

In the light of the above, it is my humble view that this Court lacks the jurisdiction to hear Applicant’s application as she is functus officio by her order of 20th January, 2022.

I have noted although that the 1st Respondent’s Preliminary Objection in EXHIBIT SAM 1 was brought pursuant to Order 8 Rules 1, 2, 3, 4, & 18 of the Court of Appeal Rules, 2016, which gives the Applicant the power to bring an application to relist if it was struck out by that provision as he rightfully did by this application pursuant to Order 8 Rules 18 (3) and (4) of the Court of Appeal Rules, 2021.

But the order of this Court dismissing this appeal as I have stated is under the provisions of Order 19 Rule 10 (2) which is final and does not provide for the relisting of the Appeal. Therefore I have no difficulty in agreeing with the 1st Respondent’s Counsel and holding that this Court is functus officio and I so hold.

Having found that this Court is functus officio, it is immaterial to delve into the merit or otherwise of the Applicant’s application, therefore same is incompetent and accordingly dismissed.

IGNATIUS IGWE AGUBE, J.C.A.: I was afforded a copy of the judgment just delivered by my learned brother, MUSLIM SULE HASSAN, JCA, and having perused the said judgment, I am at one with the reasoning and conclusions contained therein to the effect that the order of this Court dismissing the appeal as stated by my learned brother, is under the provisions for Order 10 Rule 10 (2) which is final and does not provide for the relisting of the appeal.

Having found that this Court is functus officio, it is immaterial to delve into the merit or otherwise of the Applicant’s Application, therefore same is incompetent and accordingly dismissed.

CORDELIA IFEOMA JOMBO-OFO, J.C.A.: I had the privilege of reading in draft the ruling delivered by my learned brother, HON. JUSTICE MUSLIM SULE HASSAN JCA. The facts and the issues in contention have been set out and distinctly determined. Much as I agree with my learned brother’s determination of the issue, yet I pray to make few comments for the sake of emphasis.

Let me begin by stating that, when a Court is said to be functus officio, it means the duty or function that the judge was legally empowered and charged to perform has been accomplished and that the judge has no further authority or legal competence to revisit the matter. It therefore means a judge cannot give a decision or make an order on a matter twice. See ALOR & ANOR VS. NGENE & ANOR (2007) 2 S.C 1 AT 17, IKPONG VS. UDOBONG (2007) 2 N.W.L.R (PT. 1017) 184 AT 206.

The applicant in this appeal has urged on us to grant his application seeking to relist his appeal that was dismissed for want of diligent prosecution pursuant to Order 19 Rule 10(2) of the Court of Appeal Rules 2021. The rule provides thus:
Where an appellant fails to file his brief of argument 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 diligent prosecution.
Rules of the Court must prima facia be obeyed, and if there is non-compliance with them, it must be explained; failure of which no indulgence can be granted by the Court, save for where it is of minimal kind.
This Court has the inherent power to strike out matters before it for want of diligent prosecution. However, the power to dismiss for want of diligent prosecution though allowed by the rules of Court should be sparingly used.
In A-G FEDERATION & ORS VS. PUNCH (NIG) LTD & ANOR. (2019) LPELR-47868 (SC), the Supreme Court reiterated the position of the law, when it decided an appeal filed before it in respect of an order of dismissal made by the Court of appeal for failure to file brief of argument. The apex Court held that the appeal was properly dismissed and the dismissal order is final and irreversible. The Court no longer had competence or jurisdiction on the appeal that had become spent by the order of dismissal. The Court had become functus officio on the matter. It can neither set aside its order, nor relist the already dismissed appeal.
This notwithstanding, there are occasions and circumstances in which the Court may in exercising its jurisdiction and in applying the Rules of Court, lean towards doing and achieving substantial justice to the parties, considering together the reasons as may be proffered by the appellant’s affidavit. Some of the conditions include the: (i) there must be good reason for being absent at the hearing (ii) there has not been undue delay in bringing the application (iii) the respondent will not be prejudiced or embarrassed if the order for rehearing is made (iv) the applicant’s case is not manifestly unsupported, and (v) the applicant’s conduct throughout the case is deserving of sympathetic consideration. See S&D CONSTRUCTION CO. LTD. VS. AYOKU & ANOR (2011) LPELR-2965 (SC).
I have carefully considered the entire case file and all the processes filed in this appeal. Apart from the records and the supplementary records which are not even proper before this Court as they were transmitted out of time, the only process filed by the appellant is the motion for stay of execution. It was after the respondents’ motion for the dismissal of the appeal was duly filed and served on the 8th of February, 2021 and granted on the 9th of February, 2022, that the appellant woke up from his sleep and filed this application for relisting the appeal and surprisingly for enlargement of time to compile records and deeming the records as properly transmitted. This inordinate delay seems to be a well calculated one, aimed at denying the respondents to enjoy the fruits of their labour; and it cannot go without consequences.
The applicant in his affidavit particularly paragraphs 7 and 8 states that, his motion for stay of execution is pending and all efforts to get a date for hearing proved abortive. Assuming the said motion for stay was even granted, it would have not in any way cured the defect of not transmitting the records and failure to file brief of argument. It is not motion for stay that heals records transmitted out of time and makes it whole before this Court, but a motion for extension of time and a deeming order. It is obvious the applicant cared less in ensuring that his appeal be heard on the merit.
Again, the ground of non-service raised by the applicant appears unrealistic to me. The said wrong phone number alleged to have been stated by the respondent was produced by the applicant in the record of appeal that was transmitted out of time. The respondent reproduced the said phone number on his motion for dismissal. The bailiff also used the same phone number to effect hearing notice on the applicant. It is surprising that learned counsel for the applicant seems not to know his phone number. This Court cannot embark on a needless journey of establishing the genuineness of a phone number produced to served the applicant with hearing notice, especially where counsel produce more than one and inconsistent phone number.
I therefore have no difficulty in holding that, the appellant in this appeal is nowhere near meeting the conditions, to warrant the grant of the application to relist the dismissed appeal.
On the whole, the order of this Court made on the 20th of January, 2022 dismissing the appeal for want of diligent prosecution pursuant to Order 19 Rule 10(2) of the Court of Appeal Rules 2021, being a final order therefore robs this Court of the jurisdiction to relist the appeal. In effect, the applicant’s application is incompetent and I also dismissed same.