AFRIBANK & ORS v. EMORI
(2021)LCN/15171(CA)
In The Court Of Appeal
(CALABAR JUDICIAL DIVISION)
On Thursday, May 06, 2021
CA/C/88/2011(R)
Before Our Lordships:
Mojeed Adekunle Owoade Justice of the Court of Appeal
James Shehu Abiriyi Justice of the Court of Appeal
Muhammed Lawal Shuaibu Justice of the Court of Appeal
Between
1. AFRIBANK NIGERIA PLC 2. MS. UYAI AKWAOWO 3. MR. EMMANUEL WALI APPELANT(S)
And
1. N. I. EMORI (ESQ) (Practicing Under The Name & Style Of M. N. I. EMORI & CO. NKANU EMORI CHAMBERS) RESPONDENT(S)
RATIO
WHETHER OR NOT THE RULES OF COURT MUST BE OBEYED
It is equally not an excuse for the Respondent to fail to file his brief of Argument within the prescribed time for the reason that one of the parties to the appeal may no longer be a competent juristic personality. Indeed, the Respondent would have been encouraged to raise any of such possible objections in his Respondent’s brief.
In the circumstance, it may perhaps be stated for the umpteenth time that Rules of Court must be obeyed. See EZECHUKWU VS. ONWUKA (2016) 5 NWLR (Pt. 1506) 529 S.C; IHEDIOHA VS. OKOROCHA (2016) 1 NWLR (Pt. 1492) 147 SC; ADEGBITE VS. AMOSU (2016) 15 NWLR (Pt. 1536) 405 SC; S.P.D.C.N. LTD. VS. AGBARA (2016) 2 NWLR (Pt. 1496) 353 SC. PER OWOADE, J.C.A.
MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This appeal was entered on 6th May, 2011, when the record of appeal compiled by the Appellants was transmitted to this honourable Court.
Learned counsel for the Appellants filed the Appellants’ brief of Argument on 18th April, 2012.
On 31st October, 2013, the Appellants as Applicants brought a motion on notice, “to hear an (sic) and determine this appeal on the Appellant’s brief of Argument filed on the 18th day of April, 2012, the Respondent having failed, refused and neglected to file a Respondent’s brief of Argument within the time prescribed by the rules of this hounourable Court, despite being served with the Appellant’s brief 18 months prior to this application.”
The grounds upon which the application is predicated are:
1. The failure, neglect and refusal of the Respondent in this appeal to file his Respondent’s brief of Argument within thirty days as provided for in Order 18 Rule 4 (1) of the Rules of this honuorable Court.
2. That the refusal to file Respondent’s brief of Argument in this appeal is calculated to stall the
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prompt hearing and determination of this appeal.
In support of the said application, learned counsel for the Appellants relied on an 11 paragraph affidavit and attached the Appellant’s brief of Argument filed on 18th February, 2012 as Exhibit EA.
Learned counsel for the Respondent opposed the application by filing a counter – Affidavit of 13 paragraphs. Written Addresses were ordered in respect of the Appellants/Applicants motion on notice of 31st October, 2013.
The relevant Written Addresses as filed by the parties are as follows:
1. Appellants’ Written Argument as ordered by this Honuorable Court on the 24th day of June, 2020, it was filed on 6th July, 2020. It is settled by Effiom Ayi, Esq.
2. The Respondent’s Written Address opposing the Appellants Motion on Notice of 31st October, 2013. It was filed on 16th July, 2020. It was settled by M. N. I. Emori, Esq.
3. Appellants/Applicants Reply Address to the Respondent’s Written Address of 16th July, 2020. It was filed on 16th September, 2020. It is settled by Effiom Ayi, Esq.
Learned counsel for the Appellants nominated two issues for determination. They
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are:
1. “Whether a lawyer conducting his own case as party to a legal proceeding in Court, (High Court, the Court of Appeal or the Supreme Court) can do so in robes.”
2. “Whether the Respondents’ brief of Argument filed over seven (7) years out of time is competent in the absence of an application for leave to file same out of time and payment of appropriate penalty in default.”
Learned counsel for the Respondent on the other hand formulated six (6) issues for the determination of the Appellants motion on notice of 31st October, 2013. They are:
1. Whether the Respondent as a litigant and being a legal practitioner cannot do his civil case from the Bar fully robed.
2. Whether the Appellants/Applicants are competent to maintain the motion on notice when the 1st Appellant/Applicant has lost its corporate personality and the other Appellant/Appellants have since lost their connection with the 1st Appellant/Applicant.
3. Whether the Appellants/Applicants can have the appeal heard on their brief alone when the record of appeal is incomplete and the original case file at the Court below is missing and yet
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to be transmitted to this Honourable Court.
4. Whether not having transmitted a complete record of appeal to this Honourable Court as well as the docket or file of the case in the Court below and, having not served the Respondent a complete copy of the record thereof, the Appellants/Applicants can have the appeal heard on their brief alone.
5. Whether there being no complete record of appeal before this Hounourable Court, upon which a competent Appellant’s brief of Argument and a Respondent’s brief of Argument can be predicated, time can be said to start, running for the filing of any brief.
6. Whether, supposing but without admitting that the Respondent’s brief of Argument is irregular, by taking steps to respond to the preliminary objection, the Appellants/Applicants cannot be said to have regularized the brief.
As a preliminary point, neither Appellants’ issue No. 1 nor Respondent’s issue No. 1 arose for the determination of the Appellants’ motion on notice of 31st October, 2013. For this reason, Appellants’ issue 1 and Respondent’s issue 1 are accordingly struck out for the determination of the application
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of 31st October, 2013.
Secondly, I have carefully perused the records and the Written Addresses filed by the parties. I have come to the conclusion that the Appellants’ remaining sole issue would suffice for the determination of the Appellants motion on notice of 31st October, 2013.
On the said sole issue, learned counsel for the Appellants referred to the provision of Order 18 Rule 4 (1) of the Court of Appeal Rules, 2011 which states that:
“The Respondent SHALL, also within thirty days of the service of the brief of the Appellant on him, file the Respondent’s brief which shall be duly endorsed with an address or addresses for service.”
He submitted that the Appellants’ brief of Argument in this appeal was filed on the 18th day of April, 2012 and served to the Respondent on the same day. That by the rules reproduced above, the Respondent had thirty (30) days from the 19th of April, 2012 to file his Respondent’s brief which 30 days expired on the 20th day of May, 2012.
Learned counsel for the Applicants submitted further that by Order 10 Rule 1 of the 2011 Court of Appeal Rules, “The Court may enlarge the time
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provided by these Rules for the doing of anything to which these Rules apply…” in respect of filing of Briefs of Argument, Part II, Third Schedule of the Rules, he said, makes it mandatory for a party in default to pay the sum of N100.00 (One Hundred Naira) for every day of default.
He submitted that the Respondent herein belatedly filed his Respondent’s brief on the 20th day of March, 2019 (over seven years) after he was served with the Appellants’ brief of Argument dispensing of the need of filing an application for leave to file his brief out of time and paying the appropriate penalty in default.
He submitted that the law is that, where a party is required by law or rules of Court or by an order of the Court to file a process within a prescribed time or period and the party defaults, fails, refuses and neglects to file same within the said time, the defaulting party would be required to seek leave of the Court to file the process outside the time originally prescribed otherwise, the process so filed would be incompetent and worthless.
Appellants’ counsel referred to the cases of SANNI VS. AGARA (2010) NWLR (Pt. 1178) 371 @
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394; OGUNDIMU VS. KASUNMU (2006) Vol. 41 WRN 1 @ 8 and urged us to hold that the Respondent’s brief of Argument filed on the 20th day of March, 2019 (seven years out of time) in total and objectionable disregard of the Rules of this honourable Court is a worthless piece of paper.
The first reason advanced by the Respondent in opposition to the Appellants’ application of 31st October, 2013 and perhaps, also in justification for his failure to regularize or even to seek leave to regularize his purported Respondent’s brief of Argument is that the Record of Appeal transmitted by the Appellant is incomplete. On this, the Respondent categorically asserted that time cannot begin to run for the filing of Respondent’s brief where there is no complete record on which a competent Appellant’s brief of Argument can be predicated.
The Respondent’s second reason in opposition to the Appellants/Applicants motion of 31st October, 2013 is that the banking licence of the 1st Appellant/Applicant – Afribank Nigeria Plc having been revoked on or about 8th August, 2011, the Appellants/Applicants are not competent to maintain the motion on notice.
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In resolving the sole issue for determination in this application and in-spite of the sundry processes that have been filed in the case from the records of Appeal, it is not in contention that the Appellants transmitted record of appeal in this case on 6th May, 2011, and that the said record of appeal was regularised by this honourable Court on 17th April, 2012.
It is also not in contention that the Appellants filed a brief of Argument for the hearing of this appeal on 18th February, 2012. By this, and as pointed out by the learned counsel for the Appellants, the Respondent was at liberty to file additional records under the provision of Order 8 Rule 6 of the Court of Appeal Rules, 2011 as follows:
“Where the Respondent considers that there are additional records which may be necessary in disposing of the appeal, he SHALL be at liberty, within 15 days of the service on him of the Records, to compile and transmit to the Court such records to be known as the additional records of appeal.”
It is equally not an excuse for the Respondent to fail to file his brief of Argument within the prescribed time for the reason that one of the parties
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to the appeal may no longer be a competent juristic personality. Indeed, the Respondent would have been encouraged to raise any of such possible objections in his Respondent’s brief.
In the circumstance, it may perhaps be stated for the umpteenth time that Rules of Court must be obeyed. See EZECHUKWU VS. ONWUKA (2016) 5 NWLR (Pt. 1506) 529 S.C; IHEDIOHA VS. OKOROCHA (2016) 1 NWLR (Pt. 1492) 147 SC; ADEGBITE VS. AMOSU (2016) 15 NWLR (Pt. 1536) 405 SC; S.P.D.C.N. LTD. VS. AGBARA (2016) 2 NWLR (Pt. 1496) 353 SC.
In the instant case, the failure of the Respondent as it were to file a Respondent’s brief of Argument since 18th April, 2012 when the Appellant’s brief of Argument was filed makes the grant of the Appellants’ application to hear the appeal on the Appellants brief alone inevitable.
It is hereby ordered as prayed on the Appellant/Applicants’ motion on notice of 31st October, 2013. This appeal shall be heard on the Appellant’s brief of Argument alone, the Respondent having failed, refused and neglected to file brief of Argument within the prescribed period.
N50,000.00 costs is awarded against the Respondent.
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JAMES SHEHU ABIRIYI, J.C.A.: I read in advance, the draft of the ruling just delivered by my learned brother, Mojeed Adekunle Owoade, JCA. I agree that the application should be granted. I too grant the application.
I abide by all the orders in the ruling including the order as to costs.
MUHAMMED LAWAL SHUAIBU, J.C.A.: I have had the advantage of reading in draft the judgment delivered by my learned brother, Mojeed A. Owoade, JCA. I am in complete agreement with his reasoning and the conclusion that the failure of the respondent to file a respondent’s brief of argument since 18/4/2012 makes the grant of the appellant’s application to hear the appeal solely on the appellant’s brief inevitable. I therefore join my learned brother in granting the application to hear the appeal on the appellant’s brief alone. The respondent having failed, refused and neglected to file brief within the prescribed period.
I also abide by the consequential as costs.
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Appearances:
Effiom Ayi, Esq. For Appellant(s)
N. I. Emori, Esq. For Respondent(s)
