Shehu Babayagi V. Alhaji Ndatsadu Bida (1998)
LAWGLOBAL HUB Lead Judgment Report
ONU, J.S.C.
This appeal emanates from the Ruling delivered by the Court of Appeal. Jos Division on April 27, 1988 (Coram: Maidama and Mukhtar, J.C.A. as well as Adio, J.C.A. as he then was) when it dismissed the appellant’s appeal acting pursuant to Order 6 Rule 10 Court of Appeal Rules, 1981 as amended in the words following:-
“The appellant was served with the motion papers. He is not in court this morning. No reason was given for his absence. Application is therefore granted. Appeal is hereby dismissed with one Hundred Naira cost.”
A resume of the facts of the case may be briefly stated as follows:-
The appellant as plaintiff had in the Benue State High Court sitting at Makurdi sued the respondent, then defendant, for, inter alia, the following reliefs:-
“1. Specific performance by the defendant of the written agreement made on the 28th day of December, 1984, conveying part of building and premises at No.16 Bank Road, Makurdi, to the plaintiff, with effect from the 1st day of January, 1985.
OR IN THE ALTERNATIVE.
- Special and General Damages limited to N100,000.00 for breach as aforesaid of the contractual duty imposed on the defendant by the said written agreement dated the 28th day of December, 1984, to convey part of the building and premises at No.16, Bank Road, Makurdi to the plaintiff with effect from the 1st day of January, 1985.”
The above action was sequel to an agreement entered into on 28th December, 1984 between the appellant and the respondent wherein the respondent agreed to sell part of the building at No.16 Bank Road. Makurdi to the appellant and to transfer same to the appellant with effect from the 1st of January, 1985 in consideration of the appellant paying to the respondent the sum of N7,000.00. Consequent upon the agreement, the appellant paid the said sum of N7,000.00 to the respondent the receipt of which the respondent acknowledged in writing vide Exhibit 1.
The respondent refused and/or neglected to specifically perform his own side of the agreement, Exhibit I, said to have been written by one Ndako Abdulrahman Ndabashin, who allegedly escorted the appellant to Bida from Makurdi to meet the respondent and at respondent’s request, that he (Ndabasin) wrote in English and explained its content to the respondent in the Nupe language following which he signed it in Arabic. The appellant’s case was given support in the testimonies of P.W.1, Ndako Abdulrahman Ndabashin aforesaid as well as P.W.2, one Sule-Garba. The respondent on the other hand testified and called no witness.
The trial court in a considered judgment dated 31st October, 1986, ordered the respondent to refund to the appellant the sum of N7,000.00 while awarding against the respondent N3,000.00 as general damages for breach of the contract as well as for tying down his (appellant’s) N7,000.00 since December 1984 to date.
What led to the appeal herein was sequel to the above judgment wherein the appellant although he had enough time to file his brief to get his appeal ready for hearing did not do so until by a motion on notice by the respondent’s counsel on the 28th of March, 1988 moved the Court of Appeal (hereinafter referred to as the court below) to dismiss the appeal for want of diligent prosecution. At the hearing of the motion on 27th April, 1988 where an instant Ruling was given by the court below, the following transpired:
“F.M. Ebofuame. E. Neza (Mrs.) for the respondent. Appellant absent.
Respondent – We have an application before the court seeking an order of this (sic) to dismiss the appeal for want of diligent prosecution. The application is brought under Order 6 rule 10 of Court of Appeal Rules 1984. The application is supported by an affidavit sworn to by James Kollo. I rely on all the paragraphs of the affidavit. I urge the court to dismiss the appeal.
RULING
The appellant was served with the motion papers he is not in court this morning. No reason was given for his absence. Application is therefore granted. Appeal is hereby dismissed with one Hundred Naira cost”
Sequel to the above Ruling the appellant moved the court below under Section 16 of the Court of Appeal Act and its inherent powers thereof to re-list the suit. At the hearing of the motion on the 23rd June, 1988 the court after listening to counsel on both sides ruled inter alia as follows:-
“RULING
This is an application to re-list appeal No. CA/J/l04/87 which was dismissed by this court for want of prosecution on 27/4/88. The affidavit in support of the motion sworn to by Amadamen Oriakhi deposed to the effect that applicant’s counsel could not attend court on 27/4/88 to seek an extension of time to file appellant’s brief. Learned counsel however conceeds (sic) that the record of proceedings was served on him on the 23rd of April, 1987. He prays this court to relist the appeal under Section 16 of the Court of Appeal Rules and under our inherent powers…………………………..
…………………………………..
We have considered the affidavit and argument of counsels, and the short answer is that a dismissal for want of prosecution following the failure of the appellant to file a brief is final and the appeal dismissed cannot be revived. By our order of dismissal this court had become functus officio. Order 6 Rule 10 of the Court of Appeal Rules 1984 clearly permits this court to dismiss an appeal where an appellant fails to file his brief. The Section is in pari materia with Order 8 Rule 16 of the Supreme Court Rules, 1985. We rely on Chukwuka v. Ezulike (1986) 5 NWLR (Pt. 45) 892 SC 12 SC 246 at 256. See also Sodeinde Ltd v. African Continental Bank (1982) 6SC 137.
In our view, the application is misconceived and it is hereby dismissed with seventy five Naira (75.00) costs to the respondent.”
Being dissatisfied with the said decision the appellant has appealed to this court on three grounds. The three issues formulated by the appellant in accordance with the Rules of this court for our resolution and at which hearing neither of the parties appeared on 17th November, 1997, are:-
“(a) Whether the learned Justices of the Court of Appeal were right by dismissing the appellant’s appeal when it was never heard on its merit instead of striking out, and whether their so doing has not occasioned a miscarriage of justice.
(b) Whether the learned Justices of the Court of Appeal are right in dismissing the appellant’s appeal in the absence of the appellant’s counsel, without hearing the appellant and thus visiting the sin of the appellant’s counsel on the appellant, and whether their doing so has not occasioned
a miscarriage of justice.
(c) Whether the failure of the justices of the Court of Appeal in not considering in its (sic) Ruling that the appellant was not aware that his counsel will not be attending the court on that day so as to brief another counsel has not occasioned a miscarriage of justice.”
It is my intention in my consideration of this appeal to deal with all three issues proffered by the appellant (the respondent having filed’ no brief and submitted none) by stressing that the Ruling of the court below, in my view, is well grounded, based as it were, on Order 6 rule l0 of the Court of Appeal Rules (ibid) which states as follows:-
“Where an appellant fails to file his brief within the time provided for in rule 2 above, or within the time 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 court. Where an appellant fails to file a reply brief within the time specified in rule 5, he shall be deemed to have conceded all the new points or issues arising from the respondent’s brief.”
As can be seen, the above rule which is in pari materia with the old Order 6 rule 9(1) of the Supreme Court Rules, 1985 then in force, provided inter alia that:
“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…………..”
In the Supreme Court there has been no dearth of authorities in relation to the interpretation of this and other related Rules, For instance, it has been decided by this court in John Chukwuka and Ors v. Ndugueze Gregory Ezulike (1986) 5 NWLR (Pt. 45) 892 – a case in which the appellants had appealed to the Supreme Court against the judgment of the Court of Appeal and failed to file their brief within the prescribed period, this court on the 12th November, 1985 proceeded to dismiss the
appeal for want of prosecution pursuant to Order 6 Rule 9(1) of the old Rules.
On 25th August, 1996 the appellant brought an application for, inter alia, extension of time within which to apply for leave to appeal to this court, and an order for leave to appeal on questions other than questions of law alone.
The grounds upon which the application was based were that through oversight the appellants’ counsel did not take necessary steps in respect of the appeal in that although the grounds of appeal raised questions other than questions of law alone, no leave had been sought for or obtained when the Notice of Appeal was filed, and that the appellants were anxious to prosecute their appeal.
The respondents’ counsel raised a preliminary objection that the Supreme Court having dismissed the appeal of the appellants on 12th November, 1985, the court was not competent to hear the appeal a second time again.
The main argument of counsel to the appellants in support of the application was that since the original grounds of appeal filed by the appellants which contained grounds on questions other than questions of law alone were filed without the leave of the Court of Appeal or the Supreme Court as required by Section 213(3) of the 1979 Constitution, they were invalid.
In arguing the appellants’ appeal, counsel contended that the Supreme Court lacked jurisdiction since there was no valid appeal before it. Where a determination is made by a court without jurisdiction, he further argued, it is not necessary to have to do anything about it since it was an act done without jurisdiction. He therefore maintained that he was entitled to bring the motion for extension of time as he did not ignore the determination by the Supreme Court on 12th November, 1985 and also that the proper order which ought to have been made was one striking out the appeal.
This court unanimously held inter alia (per Aniagolu, J.S.C.) that the jurisdiction of any appellate court is statutory and that –
“Under the Rules the appeal could be dismissed for failure to file brief; or for non-compliance with the conditions of appeal; or for want of prosecution. (See Order 6 Rule 9(1); Order 8 Rule 8(1); and Order 8 Rule8(3) respectively. Birkett v. James (1978) AC 297 has given detailed analysis of principles for a dismissal of an action for want of prosecution. It is clear from the foregoing that upon the transgressions of the applicant, this court was rightly entitled to dismiss the appeal.
There is one other point. Obviously mindful of the old doctrine: interest reipublicae ut sit finis litium, the Supreme Court Rules have provided in Order 8 Rule 16 that:
“16 The court shall not review any judgment once given and delivered by it save to correct any clerical mistake or some 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 above Order 8 Rule 16 has identical wordings with Order 7 Rule 30 of the 1977 Rules of the Supreme Court under which Chief Iro Ogbu and Ors v. Chief Oghuru Urwn and Anor (198I)4 Sc. 1, was decided. In Iro Ogbu (supra) this court (per Obaseki, J. S.C.)
at page 9 stated as follows:-
“I am aware that since the order of dismissal was delivered by the court, the judgment has been drawn up, signed and sealed.
Even if it were not drawn up, signed and sealed, the provision of Order 7 Rule 30 deprives this court of any jurisdiction to review the judgment of dismissal for want of prosecution. The inherent jurisdiction of this court under Section 6(6) (a) of the Constitution cannot be invoked to save the situation. This court is therefore unable and incompetent to entertain this application to direct that the appeal be re-entered. Sympathy cannot override the clear provisions of our Rules and it would be in the interest of all if parties and their counsel endeavour to keep to the times setout in the Rules for the doing of any act or taking of any step.”
Iro Oghu (supra) was approved and followed in Sodeinde Brothers (Nig.)Ltd v. ACB Ltd (1982) 6 SC 137. But Iro Ogbu (supra) was still being pursued angrily by some counsel with drawn dagger of an assassin. This court in a final bid to settle the issue in T.A. Yonwuren v. Modern Signs (Nig) Ltd. John Ememoh & anor v. Chief Daniei Onokpite and Ors.: and Udealo Nwaopa v. Nwaora Nwakonobi (1985) 2 SC 86 (Consolidated) empanelled a full court which returned the same verdict that this court has no jurisdiction, inherent or pursuant to the 1977 Supreme Court Rules, to re-enter an appeal dismissed under Order 9 Rule 7 of the 1977 Rules – a fortiori, 10 re-enter an appeal dismissed under Order 8 Rule 16 of the 1985 Rules.
Chief Williams’ ingenious argument in the present matter was another way – subtle and penetrating – of resurrecting the old tirade against lro Oghu (supra) and Yonwuren (Supra). But I should think that the time has come when the tired bones of lro Oghu (supra) which underwent ceremonial interment on 3rd April, 1981, should be allowed to rest in perfect peace, within their congenial surroundings.
I would therefore hold and hereby hold, that this court was functus officio after its order of 12th November, 1985 dismissing the appeal. The preliminary objection raised by Mr. Ezekwe, of Counsel, was well founded, and consequently the motion of the applicants dated 25th August, 1986 is hereby dismissed with N25.00 costs to the respondent.”
The consequence in the instant case is that it is clear that the relevant appeal was filed in the court below on the 27th November, 1986 and that the appellant counsel was duly served on the 23rd April, 1987. Since neither the appellant nor his counsel alleged that the application leading to the dismissal of the appeal for want of prosecution was not served on him and no attempt or effort was made by him or his counsel to file his brief within the time stipulated, that is to say, within 60 days of the service of the same on him, the express provision of Order 6 Rule 10 of the Court of Appeal Rules, 1981 (ibid), in my respectful opinion, would have full sway. In other words, the appellant being in default and not having filed an application for extension of lime within which to file his brier, his default or the express provision of the Rules cannot in any way be remedied. The court below when moved by the respondent was therefore, in my judgment, perfectly entitled and indeed right to have dismissed appeal No. CA/J/64M/88 for want of prosecution on the 23rd June, 1988. See Chukwura v. Ezulike (supra). But contrast this with the provisions of Order 6 Rule 9 of the Supreme Court Rules, 1985 as amended, which in this court now provides:
“If an appellant fails to file and serve his Brief within the time provided for in Rule 5 of these Rules, or within the time as extended by the court, the respondent may apply to the court for the appeal to be struck out 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. (Italic is mine).
Be in noted that under Order 6 Rule 10 Court of Appeal Rules (ibid) the appeal dismissed cannot be revived.
In the result, this appeal lacks merit and I accordingly dismiss it with no order as to costs to the respondent who did not appear at the hearing on 17th November, 1997.
SC.65/1989
