Oba Jacob Oyeyipo & Anor. V. Chief .J. O. Oyinloye (1987)
LawGlobal-Hub Lead Judgment Report
KARIBI-WHYTE, J.S.C.
This is a ruling on the motion by applicants, who were the Appellants in the substantive action, now dismissed, seeking an order of this Court that
“(i) the decision given herein by this Honourable Court sitting in Chambers on Wednesday the 12th day of November, 1986 be set aside;
(ii) the motion on Notice filed by the Respondent herein and dated the 24th day of October, 1986 be listed for hearing in open court or in such other lawful manner as the court may direct;
(iii) such further or other orders as this Honourable Court may deem fit to make.”
The grounds relied upon by the applicant were as set out in the schedule to the Motion stated as follows:-
“(i) The Appellant was not given any opportunity of being heard before the decision made by this court on 12th November, 1986 was made.
(ii) The making of the said decision otherwise than in open court (i.e. the court sitting in public) is a contravention of subsection 13 of Section 33 of the Constitution of the Federal Republic of Nigeria.
(iii) Even if (which is not conceded) it was permissible for the court to sit in Chambers to consider the matter or matters which led them to make the decision aforesaid, the Appellant ought to have been given the opportunity of making oral or alternatively written representation on questions of law and fact for the consideration of the Court.”
This application therefore seeks to reopen and set aside the judgment of this court dated 12th November, 1986, dismissing the appeal of the appellant against the judgment of the Court of Appeal. on a motion dated 24/10/86 filed by the Respondent relying on Order 6 rule 9(1) of Rules of Supreme Court 1985 for the dismissal of the appeal on the ground of want of prosecution by the appellant. The application was heard by this court sitting in Chambers, and without the attendance of parties or their counsel.
Although the facts in support of this application as averred in the supporting affidavit are very short and undisputed. they are significant in one important respect which I shall refer to later in this judgment.
On the 27th October, 1986, Respondents filed in this Court a motion on C notice dated 24th October, 1986 and brought under Order 6 rule 9 of the Rules of this Court, 1985, seeking an Order for the dismissal of the appeal against the decision of the Court of Appeal sitting in Kaduna delivered on 11/6/85 and filed on 11th day of June, 1985 for want of prosecution. The averments in support of the application was that the appellants who gave a notice of appeal on the 11th June, 1985, against the judgment of the Court of Appeal, Kaduna had not up to the time of the application to dismiss the action for want of prosecution on the 27th October, 1985, filed their brief of argument. It was averred that the record of proceedings of the matter appealed against was received by the appellant/applicants sometime in April, 1986. These averments have not been controverted in the affidavit of applicants in support of the motion before us to set aside the judgment dismissing the appeal.
Applicants admit that the notice of motion seeking an order to dismiss the appeal was served on them on the 27th October, 1986. In their supporting affidavit applicants have averred that no hearing notice was served on them in respect of the hearing of the application. The application to dismiss the appeal for want of prosecution was heard on the 12th November, 1986 and was granted.
Chief F.R.A. Williams S.A.N., filed a brief of argument in support of applicant’s application. Chief Afe Babalola also has filed a brief of argument on behalf of the Respondents. Both counsel relied on their briefs of argument, elaborating on issues where necessary. The only significant factor in the facts leading to the judgment was that although applicants were served with notice of motion to dismiss the action for want of prosecution, there was no hearing date on the motion, and there was nothing to indicate that it was to be heard in Chambers, and not in open court. It seems later that applicant relied on these factors in formulating the questions for determination which were based on the constitutional issue of whether applicant had a fair hearing.
The questions for determination in this appeal formulated by counsel for the Applicant, and adopted by Counsel for the Respondent are as follows:-
“(i) Given the fact that neither the Appellants nor their counsel were aware of the hearing date for the Respondent’s motion dated the day of October, 1986, was it regular and proper for the Supreme Court to have made decision complained of
(ii) Was it competent for the Supreme Court to sit in chambers or otherwise than in public for the hearing and determination of the Respondent’s motion aforesaid”
There is no doubt that the formulation of the questions was predicated on the failure to notify the parties of the hearing date and raises the fundamental issue of the jurisdiction of the Supreme Court to hear and determine in chambers the particular application before the Court. Alternatively, the jurisdiction of the Supreme Court even if sitting in chambers to hear and determine an appeal without hearing the parties, raised issue of fair hearing.
Chief Williams approached his submission on two fronts. His first attack was on the violation of the principle of audi alteram partem, which he argued applied whether the court was sitting in chambers or in Open Court. Learned Senior Counsel cited the established authorities of Cooper v. Wands worth Board of Works (1863) 14 C.B.N.S. 180, 190, or 143 E.R. 414 at p.420 to the dictum of Byles J, General Medical Council v Spackman (1943) A.C. 627 at p.644, the dictum of Lord Wright, Denning L.J. in Annamuthodo v. Oilfields Workers Trade Union (1961) A.C. 945 at 954, and Lord Hodson in Ridge v. Baldwin (1964) AC. 40 at p. 128 to emphasise the importance of the rule to the administration of justice. Counsel submitted that the rule applied even in those cases coming within section 213(4) of the Constitution 1979, that is, in respect of notice of or leave to appeal where oral hearing is dispensed with.
On the issue of fair hearing, learned senior counsel referred to and relied on section 33(1) of the Constitution 1979 and submitted that any purported hearing of the appeal otherwise than in open court was unconstitutional and void. Counsel relied on the requirement of fair hearing in section 33(1), and of public hearing in section 33(13). Chief Afe Babalola in answer to the contentions of Chief Williams has urged this Court to dismiss the application. Counsel submitted that this court has no inherent jurisdiction to set aside an order dismissing an appeal made pursuant to Order 6 rule 9 stated to be on the merit. He referred to Ogbu v. Urum (1981)4 S.C.1, 12-13;
Yonwuren v. Modern Signs Ltd. (1985) 1 NWLR (Pt. 2) 244.
There is no doubt as Chief Afe Babalola conceded. the decisions of Ogbu v. Urum (supra) applied only where this court validly exercised jurisdiction. Accordingly where the contention that this court had violated the rules of natural justice in coming to its decision. the decision will be a nullity if the contention succeeded, and this court can ex debito justitiae set it aside. Counsel submitted that this court exercised its jurisdiction validly and acted on Order 6 r. 3 a constitutionally sanctioned rule of this court. He contended that Order 6 r.3 empowered the Court to dismiss an appeal in chambers without hearing argument on the respondent’s application pursuant to Order 6 r. 9, where there was a failure to file a brief of argument, and without an application for extension of time to do so. It was submitted that the court was obliged to consider only the materials before it. For this purpose the record of appeal, grounds of appeal, motion to dismiss the action for want of prosecution and written briefs if any filed by the parties will be considered in accordance with Order 6 r. 3. Counsel submitted that applicant is not saying that the Court did not consider the materials before it. The contention is that he was not given an opportunity to be heard because he was not served with a hearing notice of the date of the hearing of the application to dismiss the appeal for want of prosecution. It was submitted citing Yonwuren v. Modern Signs Nig. Ltd. (supra), that a person who failed or neglected to submit his case for consideration cannot complain of a denial of hearing, he having evinced an intention to abandon the appeal. Counsel submitted that service of motion pursuant to Order 6 r. 9 to dismiss the appeal is sufficient notice to the appellant that the application was to be considered in chambers. It was submitted that Order 6 r. 3 did not provide for service of hearing notice when motions are heard in chambers.
The second question concerns the constitutionality of the provisions of Order 6 r. 9. Counsel submitted that Order 6 r. 9 was made under powers vested in the Chief Justice of Nigeria by section 216 of the Constitution 1979, it has constitutional force. It was argued that the exercise of a right of appeal under s.213 of the Constitution is subject to the rules of practice made under section 216. It was accordingly submitted that section 33(2) of the Constitution must be read in the light of the provisions of sections 213(6) and 216 of the Constitution 1979.
Chief Afe Babalola submitted that by analogy, if section 213(4) which allowed disposal of application for leave to appeal without oral hearing by merely considering the record of proceedings is valid, it is not easy to comprehend why Order 6 r. 3 made pursuant to section 216 of the Constitution which enabled the dismissal of an appeal for want of prosecution without hearing the appellant is unconstitutional. Counsel then argued that the requirement of public sitting in view of section 216 is not mandatory in all cases.
He submitted that the question of public sitting arises only where the parties had complied with the rules provided under section 216. It was finally submitted that section 33(3) of the Constitution 1979 applied in mandatory terms in relation to the Court of first instance. In his argument, counsel referred us to Obayuwana v. Governor of Bendel Slate (1982) 12S.C.147, Bronik Motors Ltd. v. Wema Bank Ltd. (1983) 1 SCNLR.296, 342: Adesanya v President (1981) 5 S.C. 112, 134, Shitta-Bey v. F.P.S.C. (1981) 1 S.C. 40, 56; Yerima v. Bornu N.A. (1968) 1 All NLR 410, 413-414; Ayoola v. Odofin (1984) 11 SC.120. Chief Williams in a short reply emphasized the differences in wording and effect of section 22 of the Constitution 1963 and section 33 of the Constitution 1979 and submitted that the case of Yerima v. Bornu N.A. (supra) which was based on the 1963 Constitution was not applicable to this case.
He submitted that the dismissal of the appeal comes within section 33(1) as a determination of the rights of parties. Counsel cited Automatic Telephone & Electric Co. Ltd. v. Federal Military Government (1968) 1 All N.L.R. 429, 432. He submitted that where the court was sitting in chambers, to hear applications of this nature sufficient notice ought to be given to the parties to be present or make representation where necessary. In this case, applicant had no notice of the date for the hearing of the application of motion to dismiss the appeal for want of prosecution.
The application before us does not raise any new principle of law or practice for our determination. As the issues for determination clearly demonstrate, the application seeks an exercise of the general power of this
court to set aside its judgment dismissing an appeal for want of prosecution and to re- enter the appeal for hearing.
The powers of this Court to review its judgment is contained in Order 8 r. 16 Rules of the Supreme Court 1985, in pari materia with Order 9 r. 7, Rules of the Supreme Court, 1977 considered in Ogbu v. Urum (1981) 4 S.C. 1 as follows –
“The court shall not review any judgment once given and delivered by it save to correct any clerical mistake or same error arising 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 and substantive part of it be varied and a different form substituted.”
The word “shall” in this rule is mandatory. See Chukwuka v. Ezulike (1986) 5 NWLR.982. It follows therefore from this rule that generally this court having decided an issue, and its decision embodied in its judgment or order that has been made effective, is functus officio and cannot reopen the matter and substitute a different decision to the one already recorded. See Minister of Lagos Affairs, Mines & Power & Anor. v. Akin-Olugbade & ors. (1974) 1 All NLR (Pt. 2) 226, 235.
This Court however, has an inherent power to correct or modify its own order on the ground that the order or judgment did not represent what it had intended to record – See Ashiyanbi & Ors. v. Adeniji (1967) 1 All NLR.82. Thus it may correct clerical errors to make the meaning if obscure, clear. It seems however that this court which is a final court, has no power to correct its own mistake of law in a judgment even though apparent on the face of the judgment or order. – Bright v. Seller (1904) 1 K.B.6 Mac Carthy v. Agard (1933) 2 K.B. 417.
It is pertinent to point out that the exercise of the power to review a judgment is the exercise of appellate jurisdiction which can only be conferred by statute. This court cannot ordinarily review its own judgments – See Ogbu v. Urum (1981) 4 S.C. 1 Sodeinde Bros. Ltd. v. A.C.B. Ltd. (1982) 6 S.C. In John Chukwuka & ors. v. Ezulike (1986) 5 NWLR.893 this court on 5th December, 1986, emphasised its position that having dismissed an appeal for want of prosecution had no jurisdiction to re-enter such an appeal for hearing. Thus having properly made an order for dismissal it is functus officio. The reasons relied upon in this case are those based on errors of law.
The first of the issues for determination which was not raised in any of the earlier cases complains about the propriety and consequent validity vel non of the judgment dismissing the appeal of the applicants without a hearing. The main ground of the applicant was that they were not notified of the hearing date of the application to dismiss the appeal for want of prosecution. Counsel for the Applicant admitted that the notice of the application was served on the applicant but that they were not served with the hearing date of the application I think it will be more convenient to consider the two constitutional issues of fair hearing and validity of the enabling rules together. The main plank of the application is the invalidity of the disposal of the appeal founded on the constitutionality of the rule under which this court exercised its jurisdiction.
The application before this court which was heard in chambers was made under Order 6 r. 9 of the rules of this court. Order 6 r. 9 (1) Rules of this court 1985 empowers a respondent to apply to this court for the dismissal for want of prosecution of the appeal of an appellant who had failed to file his brief of argument within the time prescribed in rule 5 of Order 6 or within such time as extended by the Court. Order 6 of the Rules of this Court regulates the filing of briefs of argument generally. By rule 5(1) of Order 6. an appellant is required to file in court and serve his brief of argument within ten weeks of the reeeipt of the record of appeal.
The brief so filed shall contain the arguments of the appellant in support of his grounds of appeal. The Respondent after service on him of the appellant’s brief of argument shall file in court and serve on the appellant his own brief within eight weeks Rule 5 (2). Although Order 6 r. 8(1) allows the parties to present oral arguments at the hearing of the appeal to emphasize and clarify the written arguments appearing in the Briefs already filed in court, the exercise of this power is subject to the provisions of Rule 3, which regulates the power of the Court to hear application in chambers. I set out below the provisions of Order 6 r. 3 and Order 6 r. 9 for ease of reference. Order 6 rule 3 provides as follows:
“(3)(1) Without prejudice to the powers of the Court to hear oral argument, an application under Rule 2 may be considered and determined by the Court in chambers, only on the written argument and documents, as required by the Rule, submitted by the applicant in support without hearing oral argument either in open court or in chambers. The Court may. under this Rule, refuse such application, only if in its opinion the application is completely devoid of merit.
(2) Where the appellant has failed to file Brief within the period prescribed by this Order and there is no application for extension of time within which to file Brief the Court may, subject to the proviso to Rule 9 of this Order, proceed to dismiss the appeal in chambers without hearing argument.”
“9(1) If an appellant fails to file his Brief within the time provided for in Rule 5 above, or within the time as extended by the Court, the respondent may apply to the Court for the appeal to be dismissed for want of prosecution. If the respondent fails to file his Brief, he will not be heard in oral argument except by leave of the Court. A dismissal of an appeal under this Rule whether on the application of the respondent or not, where the appellant fails to file his brief shall amount to a dismissal on the merit:
Provided that such dismissal on the merit shall be only where the Court is satisfied, prima facie, on the papers before it, that the appeal has no merit.”
I think Chief Afe Babalola was right in his contention that the provisions of Order 6 r. 9 was validly made having been made by virtue of powers vested in the Chief Justice of Nigeria by section 216 of the Constitution 1979. The power of the Chief Justice of Nigeria to make rules to regulate practice and procedure in the Supreme Court is undoubted.
The contention of Chief Williams S.A. N., is that the only power the Chief Justice can exercise is with respect to sitting in chambers in respect of matters contained in S. 213(4) of the Constitution 1979. This is in respect of applications for leave to appeal. This contention seems to me to have ignored other provisions of the Constitution. For instance section 213(4) provides that the Supreme Court may dispose of any application for leave to appeal from any decision of the Federal Court of Appeal in respect of any civil or criminal proceeding in which leave to appeal is necessary after consideration of the record of proceedings if the Supreme Court is of opinion that the interest of justice do not require an oral hearing of the application.
It is conceded that section 213(4) of the Constitution refers specifically to applications for leave to appeal. But the Applicant did not apply for extension of time within which to file his brief of arguments. It was obvious that applicant having failed to do the things required of him to come before the Court falls within the provisions of Order 6 R. 3(2) under which the Court was empowered by its rules to hear the application in Chambers.
I think the regulation of the exercise of the right of appeal and of the practice and procedure thereto, enables the Chief Justice to determine when there will be hearing and the form the hearing should take. Hence it has been provided that a party who has not filed his brief of argument is only entitled to oral hearing by leave of this Court.- See Order 6 r. 5(5). Oral argument is only allowed at the hearing where brief of argument has been filed to emphasize and clarify the written argument. Accordingly, as in this case, where no written brief had been filed and there was no leave of the Court to dispense with the requirement, appellant has not brought himself within the scope of being heard by the Court. Concisely, stated, applicant has not satisfied the conditions necessary for the hearing of his appeal in Court. He was in fact not entitled to a hearing, oral or written. The provisions of section 33(13) relied upon by the applicant is applicable to proceedings in Court for the determination of rights. Applicant has not submitted his case for consideration as he was required by the rules of this Court to do. There is clearly no inconsistency between the power here exercised and the provisions of s.33(1).
I agree that the rules of natural justice are applicable to hearings of the Court whether sitting in chambers or in Open Court. Where the rules of natural justice are properly applicable, a violation of the rules will result in the nullification of the proceedings. However, the rules are applicable to a party whose case is properly before the Court and not where a party has not satisfied the conditions of being heard. In my opinion where the party, as in this case the applicant, has not satisfied the conditions required for hearing his case, the Court will not be competent to hear him – see Madukolu & Ors. v. Nkemdilim & Ors. (1962) 1 All NLR R. 582. The right to be heard having not been earned, cannot be exercised. In my opinion, there is no question of the breach of a non-existent right. This Court has pointed out in Yonwuren v. Modern Signs Nig. Ltd. (supra), that a party who has failed or neglected to submit his case for consideration cannot complain of a denial of hearing. The failure or neglect per se tantamounts to an abandonment of the appeal.
The other point strongly canvassed by Chief Williams for the applicant was that the hearing of the application to dismiss the appeal in chambers was not a public hearing and was a violation of s.33(3) of the Constitution 1979.
The enabling rule of Court i.e. Order 6 r. 3(1) which has already been reproduced provides that where appellant has failed to file a brief in respect of his appeal and having failed had also not sought an extension of time within which to do so an application to dismiss the appeal on the grounds of failure to file brief of argument may be heard in chambers without hearing argument. – See Order 6 r. 3(2). The Court is also empowered to dismiss an appeal, in chambers without hearing argument.
Where an appellant has filed a notice of withdrawal, and in this case, even where briefs of argument had been filed by both parties – See Order 6 r. 3(3), it could be seen that this Court has the power to dismiss an appeal in chambers without hearing argument, in those cases where it is clearly unnecessary to hear argument, or where the appellant cannot insist on being heard.
The purpose of hearing in chambers is to enable the hearing of the application before the Court on the materials before it. Where it is required to hear arguments from the parties, the application would be adjourned into the open court. In the instant case, the application to dismiss the appeal was sufficient notice to the applicant who was aware of the fact that he had not filed his brief of argument, and had not even sought an extension of time to do so. Applicant’s only remedy was to seek leave of this Court for an extension of time to do so. Chief Williams has argued that if applicant has been aware of the hearing date of the application to dismiss the appeal, applicant would have opposed the application. That may well be the intention of counsel for the applicant. It is however not an answer to the exercise by the court of powers vested in it to hear in chambers applications to dismiss an appeal on the grounds that appellant had failed to file his brief of argument when in addition, applicant had not applied for extension of time to do so.
See Order 6, rules 3, 9. In this case applicant admitted having notice of the application to dismiss his appeal for want of prosecution. Service on him of the date of hearing of the application was not necessary, since no argument need he heard in consideration of the application. Applicant cannot exercise his right of appeal under s.213, since he had not complied with the procedure prescribed for the exercise of the right.
The court sitting in chambers was considering whether the applicants’ appeal ought to be dismissed for want of prosecution. All the materials for so deciding was before the Court. Applicant did not file any affidavit in answer to the averments in the affidavit in support of the application to dismiss the appeal. The situation in this case is completely different from that in Ridge v. F Baldwin (1964) A.C. at p. 128 relied upon by Chief Williams.
Applicant demonstrated his apathy to the prosecution of the appeal even to the extent of not filing an affidavit in opposition to the application to dismiss the appeal for want of prosecution. The principle ut sit finis litium is the rationale of the rule dismissing an appeal for want of prosecution.
I am of the opinion that since the ground relied upon for seeking to set aside the decision of this court is an alleged mistake of law, and not on a clerical error, this court has no jurisdiction to exercise any such power. Further, the power exercised by this court to sit in chambers is derived under the Rules of this court made under section 216 of the Constitution 1979. The power is therefore constitutional and valid.
This Court has decided in several applications coming before it that it has no power under its Rules of practice, the Supreme Court Act, 1960 or under its inherent jurisdiction to re-enter an appeal dismissed for want of prosecution – See John Chukwuka & Ors. v. Ezulike (1986) 5 N.W.L.R. 892; Yonwuren v. Modern Sign., Ltd. (1985) 1 NWLR (Part 2) 244; Iro Ogbum & Ors. v. Chief Ogburu Ururn & Anor. (1981) 4 SC.1; Sodeinde Bros. Ltd. v. A. C.B. Ltd. (1982) 6 SC.137, Alhaji Rairni Edun & Ors. v. Odan Community (1980) 8/11 S.C.103, Asiyanbi v. Adeniji (1967) 1 ALL NLR. 82, Bocklemann v. Nwachi (1965) 1 ALL NLR. 112.
For the reasons given above this application is refused. The Motion is accordingly dismissed with N25 as costs to the Respondents.
IRIKEFE, C.J.N. (Presiding): In this matter, I have had the advantage of reading before now, the lead ruling just delivered by my learned brother, Karibi-Whyte, J.S.C.
I agree with the views expressed in the ruling aforesaid, that the applicant therein having failed to put himself in the position of being heard, such as by filing an application for an extension of time within which to file a written brief after being admittedly served with the notice to dismiss for want of prosecution, cannot be heard to complain of being denied an opportunity of being heard.
I also would refuse this application by dismissing it and abide by the order as to costs contained in the lead ruling.
SC.99/1986
