Kraus Thompson Organisation V. National Institute For Policy And Strategic Studies (2004)

LAWGLOBAL HUB Lead Judgment Report

TOBI, J.S.C.

The matter in the High Court had to do with transaction in foreign currency in respect of outstanding payments for the supply of books, journals and/or periodicals. On 13th May, 1996, judgment was given in favour of the appellant by the trial Judge. The respondent filed an application for an order inter alia, to set aside the judgment of 13th May, 1996 on the ground that the court lacked jurisdiction to entertain the claim. The application was dismissed.

Dissatisfied with the ruling of the trial Judge, the respondent went to the Court of Appeal. As the respondent failed to file its brief of argument within time, the appellant filed an application to dismiss or strike out the appeal for want of diligent prosecution. The appeal was struck out. The respondent filed an application to re-list the appeal struck out on the ground that at the time the appeal was struck out, its counsel was in the Court of Appeal registry filing its brief and an application for extension of time to file same. The Court of Appeal duly re-listed the appeal. That is the cause of this appeal.

Briefs were filed and duly exchanged. Appellant formulated two issues for determination:

“i. Whether the Court of Appeal has jurisdiction to re-list for hearing on its merit an appeal struck out on the appellant, as respondent’s application for want of diligent prosecution arising from failure to file its brief within the time allowed by the rules.

ii. Whether failure by the appellant to file a counter affidavit to the respondent’s application to re-list the appeal struck out was sufficient to accept as unchallenged the reason for failure to file the brief timeously and to ground the re-listing of the appeal struck out.”

The two issues formulated by the respondent are virtually the same as those formulated by the appellant. I expected the respondent to therefore adopt those formulated by the appellant. A little change in language towards the end of issue No.2 by the respondent cannot make any reasonable difference. I will therefore take it that the parties in this appeal are in agreement in respect of the two issues.

Taking issue No.1, learned counsel for the appellant, Mr. J. Odubela, called in aid the case of Attorney-General of Lagos State v. Dosunmu (1989) 3 NWLR (Pt. 111) 552, 557 – 558 and Government of Kwara State v. Gafar (1997) 7 NWLR (Pt. 511) 51 at 53 to 54 and submitted that the Court of Appeal lacked jurisdiction to re-list the appeal. Relying on Order 6 rule 10 of the Court of Appeal Rules, learned counsel submitted that the only remedy available as consequence for failure to file brief within time under the rule, is one of dismissal of the appeal. On the effect of dismissal of an appeal, learned counsel cited Eronini v. Iheuko (1989) 2 NWLR (Pt. 101) 46 at 50; Fadare v. Odeyale (1995) 5 NWLR (Pt. 395) 375; Babayagi v. Bida (1998) 2 NWLR (Pt.538) 367 at 369 and Akunjinwa v. Nwaonwna (1998) 13 NWLR (Pt. 583) 632.

On issue No.2, learned counsel submitted that failure on the part of the appellant to file a counter-affidavit to the respondent’s application to re-list the appeal struck out is not sufficient to accept as unchallenged the reason for failure to file the brief timeously and to ground the re-listing of the appeal struck out. He cited Ajomale v. Yadaut (No. 2) (1991) 5 NWLR (Pt. 191) 266 at 266 and 270; Badejo v. Federal Minister of Education (1996) 8 NWLR (Pt. 464) 15 at 20 and Folorunso v. Shaloub (1994) 3 NWLR (Pt. 333) 413 at 417. He urged the court to allow the appeal.

Learned counsel for the respondent, Mr. Jide Olasite, submitted that Order 7 rule 3 of the Court of Appeal Rules confers wide powers/jurisdiction on the court to ameliorate non-compliance with any of H its rules, such as Order 6 rule 2 or Order 6 rule 10. He cited Ojonye v. Ibrahim (2002) 1 NWLR (Pt. 747) 166 at 178; Nneji v. Chief Chuhwu (1988) 3 NWLR (Pt. 81) 184; Ayinla v. Adigun (1986) 3 NWLR (Pt. 30) 511 and Surakatu v. Nigeria Housing Development Society Ltd. (1981) 4 SC 26 (1981) NSCC 92 at 96. He also cited Halsbury’s Laws of England, Third Edition, Vol. 9, page 249 on the consequence of striking out a suit.

On issue No.2, learned counsel submitted that by the arguments at page 9, paragraphs 5.02 and 5.03, the appellant has conceded the issue of filing a counter-affidavit. Taking the merits of the argument, learned counsel submitted that since there was no misdirection by the Court of Appeal in making the finding that counsel for the respondent was in the registry at the material time. this court should hold that the Court of Appeal was right when it came to the conclusion that the appellant did not file a counter-affidavit to challenge the evidence of the whereabouts of counsel at the material time. He urged the court to dismiss the appeal.

Order 6 rule 10 of the Court Appeal Rules reads in part:

“Where an appellant fails to file his brief within the time provided for in rule 2 of this Order, or within the period as extended by the court the respondent may apply to the court for the appeal to be dismissed for want of prosecution … ”

It is clear from the above that failure on the part of an appellant to file brief within time will be visited with the sanction of dismissal of the appeal on the application of the respondent. In Ogbu v. Urum (1981) 4 SC 1, the Supreme Court held that the failure to file briefs by the appellants within the extended time can be likened to an abandonment of their appeal particularly when such failure is coupled with non-appearance in court without excuse at the time of hearing.

In Babayagi v. Alhaji Bida (1998) 2 NWLR (Pt. 538) 367, the appellant did not file brief after one year of filing notice of appeal. Consequently the respondent moved the Court of Appeal to dismiss the appeal for want of diligent prosecution. The Court of Appeal acting under Order 6 rule 10 of the Court of Appeal Rules, acceded to the application and dismissed the appeal. Thereafter the appellant applied to the Court of Appeal under section 16 of the Court of Appeal Act to re-list the appeal. The court dismissed the appeal on the ground that it had no power under the rules to re-Iist the appeal.

On appeal to the Supreme Court, it was held that under Order 6 rule 10 of the Court of Appeal (Amendment) Rules 1984 an appeal could be dismissed for failure of the appellant to file his brief within the time provided for in rule 2 thereof or within the time as extended by the court; or for non-compliance with the conditions of appeal; or for want of prosecution. Dealing with whether the court should have sympathy for the appellant, Iguh, JSC, in his concurring judgment said at page 379:

“Learned counsel for the appellant tried in his brief of argument to enlist the sympathy of this court by arguing that the court below was wrong in dismissing the appeal instead of striking it out as the appellant might not have been aware that his counsel would not be attending court to oppose the application. I need only restate that sympathy cannot override the clear provisions of the rules of court and that it would be in the interest of the parties and their counsel to endeavour always to comply with the prescribed times set out in the rules for the doing of any act or taking any step.”

See also Nwugha v. Nwala (1992) 2 NWLR (Pt. 225) 610; Olowu v. Abolore (1993) 5 NWLR (Pt. 293) 255; Onumajuru v. Akanihu (1994) 3 NWLR (Pt. 334) 620; The State v. Nnolim (1994) 5 NWLR (Pt. 345) 394; Olumesan v. Ogundepo (1996) 2 NWLR (Pt. 433) 628; Chime v. Ude (1996) 7 NWLR (Pt. 461) 379.

An appeal which is dismissed under Order 6 rule 10 of the Court of Appeal Rules cannot be re-Iisted. This court held in Babayagi v. Bida (supra) that once an appeal is dismissed under Order 6 rule 10, the Court of Appeal has no jurisdiction to revive the appeal by re-entering or re-listing same. See also Chukwuka v. Ezulike (1986) 2 NWLR (Pt. 45) 892.

When an appeal is dismissed under Order 6 rule 10 of the Court of Appeal Rules, its life terminates and it is therefore removed from the cause list. No court has jurisdiction to revive or resuscitate it.

Learned counsel for the respondent invoked Order 7 rule 3 which generally provides for effect of non-compliance with the rules. It is clear to me that Order 7 rule 3 is a general provision dealing with non-compliance with the rules generally, as opposed to the specific provision of Order 6 rule 10, on failure of an appellant to file brief. It is a well established canon of statutory interpretation that where an issue in a statute is governed by a general provision and a specific provision, the latter will be invoked in the interpretation of the issue before the court. This is because the specific provision will be deemed to have anticipated the issue as against the general provision. In the circumstances, the applicable rule is Order 6 rule 10 and not Order 7 rule 3, and I so hold.

In the light of the above, I do not intend to take issue No.2 because it is otiose. I may however add that as a matter of strict law, affidavit evidence cannot change the legal position as the process of affidavit is evidence and not law.

I must pause here to say that Order 6 rule 10, as it stands, causes grave injustice to an appellant who has a good and arguable appeal on the merit. When brief writing was introduced in 1977 in the Supreme Court, the rule was as in Order 6 rule 9 of the Supreme Court Rules, 1985 as amended and extant, now reads:

“9. 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 could 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.”

In the circumstances, I recommend the above to the President of the Court of Appeal in the interest of justice for consideration in amending the Rule.

In Nneji v. Chukwu (1988) 3 NWLR (Pt. 81) 184, Oputa, JSC, said at page 206 on Order 6 rule 10 of the Court of Appeal Rules:

“It is thus clear that the prior responsibility of the Court of Appeal (as well as all other courts) is to hear the parties out, not to shut out any party, to hear the merits of the case or appeal and decide according to those merits. That being so, Order 6 rule 10 (of the Court of Appeal Rules) which allows a respondent to apply for the appeal to be dismissed for want of prosecution consequent on the failure of the appellant to file his brief will have to be cautiously considered and the surrounding circumstances anxiously reviewed before a decision to dismiss can be taken. In this case, it was a mistake to counsel who thought (quite naturally, but as it turned out mistakenly) that since time did not run both in the High Court Enugu and the Supreme Court during those courts annual vacations, time will not run in the Court of Appeal.”

I should add here that the situation in this appeal is not that of mistake on the part of counsel. It was clearly a matter of the respondent failing to file brief within time and there is no evidence of mistake on the part of counsel.

Where 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 sympathise 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. Much as I realise that so much hardship is caused to the respondent, I am bound to interpret the clear wording of Order 6 rule 10 and this is what I have done. In sum, the appeal is allowed and I award N10,000.00 costs in favour of the appellant.

SC.38/2000