First Bank Of Nigeria Plc. V. T.S.A. Industries Limited (2010)

LAWGLOBAL HUB Lead Judgment Report

OLUFUNLOLA OYELOLA ADEKEYE, J.S.C.

The appellant in this appeal, the First Bank of Nigeria Plc, was the defendant in Suit No. ID/9/98 while the respondent, T.S.A. Industries Limited, was the plaintiff. On the 23rd day of January, 2001, the High Court of Lagos State, Ikeja Division delivered judgment in favour of the plaintiff/respondent as follows: –

(1) Relief No. 1 which is a declaration for fraud is disallowed.

(2) The refund of N422, 372,367 00 to the plaintiff by the defendant is given.

(3) On proper checking of the facts and plaintiff’s counsel admission during his address, the sum equivalent to 1% interest rate from 31/12/92 – December 1996 and 21% interest rate on the amount to be refunded is granted from January 1997 – 5/1/98 and 6% interest rate from 23/1/2001 till the amount is liquidated.

(4) The sum of N3,320 Million is given to the plaintiff being claims for special damages for loss of profit.

(5) Claiming for exemplary damages for torture, stress and so on is refused

(6) Loss claiming for loss of goodwill is refused

(7) Order that judgment be paid within two weeks is refused.

(8) Order that Defence Account with Central Bank be attached is refused.

Vide page 94 of the Vol. 1 Record of appeal.

Dissatisfied with the foregoing judgment, the defendant/appellant filed a Notice of Appeal against the judgment. The appellant, by way of Departure from the Rules, applied to compile the Records of Appeal, while the respondent filed the supplementary record.

On the 11th of April,2001, the appellant having been refused an unconditional stay of the judgment of the High Court of Lagos State brought an application to the Court of Appeal by way of motion on Notice, praying the Court of Appeal for an unconditional stay of execution. The Court of Appeal refused the application on 25th June, 2001. The plaintiff/respondent being dissatisfied with the Ruling of the Court of Appeal for unconditional stay of execution of the judgment of the trial court, appealed to this court on an interlocutory appeal. The court on the 3rd of May, 2004, further varied the conditional stay in the interlocutory appeal, SC/289/2001 to the effect that the judgment sum and the deemed interests be placed in an interest-yielding Account with the Union Bank of Nigeria Plc as against United Bank for Africa Plc as ordered by the Court of Appeal. The interlocutory appeal was dismissed by this court on the 28th of March, 2006. The defendant/appellant however filed an application for extension of time to file brief on the 5th of June 2003; the Court of Appeal struck out the application on the 14th of June, 2005. The Court of Appeal however on the 26th of September, 2005, acting on the application of the respondent, struck out the appeal for failure of the appellant to file its brief of argument under Order 6 Rule 10 of the Court of Appeal Rules 2002. The appellant filed an application on the 1st of June, 2006 urging the Court of Appeal to set aside the order of dismissal made pursuant to Order 6 Rule 10 of the Court of Appeal Rules 2002. Vide pages 54-70 Vol.1 of the Record of Appeal. It is the stand of the appellant that the Record compiled was for the purpose of the interlocutory appeal – the stay of execution with suit No. CA/L/250/2006. The argument of the appellant is that appeal No.CA/L/200/2001 is not the substantive appeal and the Record of proceedings filed by the appellant cannot be relied upon by the Court of Appeal to dismiss the appeal on 26/9/2005. The appellant filed an application against the Ruling of the 26/9/05. In the considered Ruling delivered by the Court on the 11th of December, 2006, the application of the appellant urging the court to set aside its Ruling of the 26/9/05 was refused. The court held that it had no appeal before it as between the parties numbered as CA/L/250/2006. It has become functus officio to re-list, re-enter or revive the appeal. The instant appeal is against the decision of the Court of Appeal delivered on the 11th of December, 2006.

When the appeal was heard on 22nd of April,2010, the appellant relied on the appellant’s brief filed 23/7/07 and the appellant’s Response to preliminary objection and Reply to Respondent’s Brief filed on 11/12/07. The learned counsel for the appellant submitted that this court granted some prayers in its application before it on the 10th of April, 2007. The appellant raised fresh issues and proposed new grounds of appeal – these issues cover grounds 4, 5 and 6 of the grounds of appeal while other grounds raised in the appeal are grounds of law. I intend to come back to this when considering the preliminary objection raised by the respondent in its brief.

Meanwhile, the appellant has abandoned ground 2 of the ground of appeal. This ground is automatically struck out. The appellant also referred to the application of the respondent filed on the 21st of December, 2006 at the Supreme Court Registry seeking departure from the Rules of the Supreme Court to permit the respondent to personally undertake the compilation of the Record of Appeal for use at the hearing of this appeal. This application was taken in Chambers and granted on the 20th of June, 2007. Meanwhile, the Registry of the lower court had on the 20th day of May, 2007, transmitted to this Court and served on the parties the official compiled record of appeal in two volumes. The appellant presumes that the time for the filing of briefs will start to run as from the 20th of May, 2007. All reference to record in the appeal shall be to these two Records.

The appellant settled four issues for determination as follows –

(i) Considering Order 7 Rule 5 of the Court of Appeal Rules 2002, whether or not the Court of Appeal is inexorably lacking in jurisdiction to revisit an order dismissing an appeal under Order 6 Rule 10 of the Court of Appeal Rules 2002.

(ii) Whether or not the learned justices of the Court of Appeal were right when in declining jurisdiction to revisit and set aside their previous order dismissing appellant’s substantive appeal under Order 6 Rule 10 of the Court of Appeal Rules 2002, they held that as of the time of making the said dismissal on the 26th day of September, 2005, they had the jurisdiction to do so.

(iii) Whether or not a party to a court case, in this case, the appellant can be deprived of it’s constitutionally guaranteed right to a hearing on the merit of its case by a combination of the procedural nonfeasance, or misfeasance of its own counsel and the professional malfeasance of the opposing counsel.

(iv) If the answers to issues 1,2 and 3 are in the negative, then whether or not the court of appeal was right when it declined jurisdiction to revisit and set aside its order dismissing the appellant’s substantive appeal.

The respondent filed its brief on the 15/11/07 and on the same day, filed Notice of preliminary objection praying that this court to hear the learned Senior Counsel, Chief Ladi Rotimi-Williams on behalf of the respondent/applicant, as follows –

(1) An order striking out the appeal, herein as this honourable court lacks jurisdiction to entertain same

(2) An order dismissing or striking out the appeal herein as it is a gross-abuse of the process of the court.

(3) An order that the purported Record of Appeal No. CA/L/250/2006 is an abuse of the process of court.

The objection was predicated on the under mentioned grounds –

(i) Where an appeal has been dismissed by the Court of Appeal under Order 6 rule 10 of its Rules 2002, it cannot be relisted, or re-entered as that court has become functus officio since the dismissal is a final decision. Once an appeal is so dismissed, the court of appeal or any court has no jurisdiction to revive such an appeal by re-entering or relisting same and this honourable court has no jurisdiction to order the court of appeal to relist or re-enter the appeal which the court of appeal itself has no jurisdiction to do so as provided for in section 232 (1) and (2) of the Constitution of the Federal Republic of Nigeria 1999.

(ii) Where there is no appeal against a decision of a court, the Supreme Court has no jurisdiction to entertain any ground of appeal not appealed against by the appellant.

(iii) That this honourable court has no jurisdiction to entertain the following-

(a) Notice of Appeal dated 11th December, 2006, as same was filed before the Ruling in Appeal No. CA/L/200/2007 was delivered in the open court.

(b) Notice of Appeal dated 25th January, 2007, filed by way of letter to the Deputy Chief Registrar of the Court of Appeal without leave of this honourable court as provided under Order 8 Rule 4 of the Rules of this Honourable Court 1999.

(c)That the grounds of appeal contained in the said 2(two) Notices of Appeal mentioned in (a) and (b) above,are not questions of law alone but also contain questions of fact and of mixed law and facts, and since LEAVE of the court below or of this honourable court was not FIRST SOUGHT AND OBTAINED before filing same. The said (two) Notices of Appeal herein are incompetent as they are unconstitutional.

(d) Motion on Notice dated 10th April, 2007 as same cannot cure a defective Notice of Appeal.

(e) That the appellant’s Motion on Notice dated the 14th day of June 2007 is incompetent and should be discountenanced as it is unconstitutional and a gross abuse of court process.

(iv) That this Honourable Court lacks jurisdiction to grant the reliefs sought in the appellant’s 2 (two) Notices of Appeal herein.

(v) There is no Notice of Appeal in the court below giving birth to appeal No. CA/L/250/2006 and

(vi) There is no appeal known as appeal No. CA/L/250/2006 between the parties herein in the court below.

(vii) The said Record of Appeal No. CA/L/250/2006 is an abuse of the process of the court.

The respondent raised two issues for determination as follows –

(i) Whether the dismissal of an appeal in the Court of Appeal under Order 6 Rule 10 of the Court of Appeal Rules 2002 can be set aside by any court or whether such an appeal can be revived or relisted under Order 7 Rule 5 of the Court of Appeal Rules 2002

(ii) Whether the appellant is not estopped from raising the defence of mistake of counsel in the circumstances of this case.

The respondent argued the preliminary objection and the main issues in the appeal in the respondent’s brief filed on the 15/11/07.

The respondent added the cases of Asalu v. Dakan (2006) All FWLR pt. 325 pg. 90 at pg. 107 and Federal Mortgage Bank v. Nig. Ins. Deposit Corporation (1999) 2 NWLR pt. 591 pg. 333 at pg. 343 to its list of authorities to urge this court to dismiss the appeal.

It is noteworthy that the issues raised in the preliminary objection filed by the respondent and the issues for determination relatively overlap. In such cases – I shall dispose of the preliminary objection and the main appeal on the same reasoning and conclusion at a go for the avoidance of repetition and prudent management of judicial time. The respondent brought the preliminary objection; pursuant to Order 2 Rule 9 of the Supreme Court Rules 1985 to ask this court to strike out the appeal as this honourable court has no jurisdiction to entertain same. The grounds relied upon briefly are –

(1) That the Court of Appeal had dismissed an appeal under Order 6 Rule 10 of the Court of Appeal Rules, the court has become functus officio and lacks the vires to re-list or reenter the appeal.

(2) That this court lacks the jurisdiction to grant the reliefs sought in the appellant’s two notices of appeal.

(3) No notice of appeal gave birth to Appeal No. CA/L/250/2006, hence there is no such appeal between the parties.

(4) The grounds of appeal in the two notices of appeal mentioned, that filed on 11/12/06 and the other filed on 25/1/07 are not questions of law alone but also contain questions of fact and mixed law and facts.

The leave of the lower court or this court was not first sought and obtained before filing them, they ate incompetent and unconstitutional. It is a constitutional requirement that where grounds of appeal raise question of mixed law and fact, leave of court is required by virtue of section 233 (3) of the 1999 Constitution to appeal from the decision of the Court of Appeal to the Supreme Court.

A court is only competent to adjudicate in a matter when among other conditions, the subject matter of the suit is competently before the court, and when the action is initiated by due process of law which in the foregoing is permission to obtain leave to file grounds of appeal. When it is settled that the question raised in the grounds of appeal is of mixed law and fact, leave of the trial court and appellate court is required before the appeal can be competently filed. An incompetent action cannot be heard by any court of law. Failure of an appellant to seek and obtain the mandatory statutorily or constitutionally required leave to appeal rendered the notice of appeal incompetent and nugatory.

Madukolu v. Nkemdilim (1962)2 SCNLR pg.341.

Atologbe v. Anoumi (1997) 9 NWLR pt. 522 pg. 536.

First Fuels Ltd. v. N.N.P.C. (2003) pt. 1018 pg.276.

N.E.P.A. v. Eze (2001) 3 NWLR pt. 701 p. 606.

Abbey v. Alex (1991) 6 NWLR pt. 198 pg. 459.

Usually where a court’s jurisdiction is challenged by the defence, it is better to settle the issue one way or the other before proceeding to hearing of the case on the merits. Any failure by the court to determine any preliminary objection or any form of challenge to its jurisdiction is a fundamental breach which renders any further step taken in the proceedings a nullity.

A-G Lagos State v. Dosunmu (1989) 3 NWLR pt. 111 pg.552.

Madukolu v. Nkemdilim (1981) 1 NCLR 135.

Sofekun v. Akinyemi (1981) 1 NCLR 135.

An appellate court should first consider a preliminary objection raised during an appeal and express its opinion on whether it agrees or not because a successful preliminary objection may have the effect of disposing of the appeal. It does not matter if the objection is frivolous or not, it should not be ignored. This is because it is a cardinal principle of administration of justice to let a party know the fate of his application whether properly or improperly brought.

Nwanta v, Esumei (1993) 8 NWLR pt.563 pg.650.

Tambio Leather Works Ltd. v. Abbey (1998) 12 NWLR pt.579 pg.548.

I shall proceed to consider the grounds of the preliminary objection. The court is urged to strike out this appeal for the dual reasons that this court lacks the jurisdiction to entertain same and that it is an abuse of court process.

(a) The respondent argued that the appellant filed its notice of appeal against the Ruling of the Court of Appeal on 11/12/06 the same day as the Ruling and before the ruling was read.

This appeal is not against the decision of the court dismissing its substantive appeal on 26/9/06, but against the ruling of the Court of Appeal declining to set aside its decision dismissing the appeal on lack of jurisdiction to do so. The Notice of Appeal filed on 11/12/06 because of its mode of filing is incompetent and amounts to an abuse of process of court for anticipating that a decision yet to be delivered was going to be against it.

Furthermore, the respondent submitted since the notice of appeal was filed at 1.26pm on 11/12/06 when the ruling of the Court of Appeal was yet to be delivered is not only an abuse of court process but also a nullity. The reason being that at the time the notice of appeal was filed; there was no/ decision or order of court to be appealed against. The respondent cited cases:

Patrick D. Magit v. University of Agric. Makurdi & 3 ors (2005) 19 NWLR pt. 959 pg. 211. at page 252.

Chief Kaunsu Ajayi Ambo v. Fatai Ayinla Ayelum & 5 ors (1993) 3 NWLR pt. 280 pg. 126 and pg. 146.

The notice of appeal filed on 25th of January 2007 is also a nullity as it was filed without obtaining leave, contrary to Order 8 Rule 4 of the Rules of Court 1985. Where the appellant is filing a new process and abandoning the one already filed – it has to be done through the proper application and putting the parties on notice. The appellant cannot file a new notice of appeal and abandon a former notice through a letter to the Deputy Chief Registrar of the Court of Appeal. The Notice of Appeal filed on 25/1/07 ought to be dismissed as it was not properly filed. The respondent further argued that even where it is deemed to be a valid notice of appeal, the grounds contained therein are not grounds of law alone, but also contain grounds of fact, mixed law and fact and leave of the Court of Appeal and this Court has to be obtained before filing same. The respondent made reference to grounds one to eleven of the grounds of appeal. Since the appellant failed to comply with the provisions of section 233 (3) of the 1999 Constitution, it cannot exercise its right of appeal to the Supreme Court in respect of questions of mixed law and facts.

The Supreme Court is consequently precluded from exercising its appellate jurisdiction in respect of the grounds of appeal. The Motion on Notice dated 14/6/07 predicated upon the validating of the Notice of Appeal dated 25/1/07 is equally incompetent and ought not to be entertained. The appellant has not challenged the decision of the Court of Appeal dismissing appeal No. CA/L/200/2007 – rather all it had been doing was to raise fresh issues. The appellant filed two motions on notice on the 10th of April 2007 and 14th of June 2007.

The respondent contended that the appellant is still supposed to ask for leave from the Court of Appeal or the Supreme Court to file the two motions. The application for amendment made by the appellant cannot be granted – as such an amendment is to a notice of appeal where the grounds of appeal contains questions of fact, mixed law and facts and leave to appeal must comply with the provisions of section 233 (3) of the 1999 Constitution, such leave must first be sought and obtained. Such an amendment cannot be made here as there is no valid appeal before the court. The 2nd Motion on Notice dated the 14th, of June 2006 in which the appellant is seeking leave of

this court to file additional grounds of appeal on questions of mixed law and fact is also incompetent as there is no competent appeal before the court.

The respondent submitted also that the appellant must not be allowed to benefit from the order of this honourable court made in chambers on the 20th day of June 2007 as it had abandoned the said Motion on Notice dated 10tn of April 2007 upon which the said order was made.

Finally, that the purported Record of Appeal No. CA/L/250/2007 on which the appellant predicated this appeal was rejected by the Court of Appeal; and this court is urged to accept it as an abuse of court process. This court must hold that it lacks the jurisdiction to entertain this appeal based on all the arguments canvassed in this objection, which include abuse of court process.

The appellant replied to the issue filing of the Notice of appeal on 11/12/07 before the Ruling was completed. On the issue of filing two notices of appeal and the irregular withdrawal/abandonment of the first in favour of the second Notice of Appeal filed, the appellant submitted that this ground of objection is belated by virtue of Order 2 Rule 29 (1) of the Supreme Court Rules 1985 as amended. An application such as this preliminary objection seeking to strike out or set aside any process or proceedings for procedural non-compliance can only be entertained by this court if it is made within a reasonable time. The respondent failed to address this procedural defect promptly. The respondent is supposed to react, immediately it becomes aware of it and not from the time the amendment was sought. The ground of objection is lacking in merit in view of the decision of the Supreme Court in cases like –

Akeredolu v. Akinremi & ors. (1986) 2 NWLR pt.25 pg. 710, Harriman v. Harriman (1987) 3 NWLR pt. 60 pg.244.

In the case of Tukur v. Government of Gongola State (1988) NSCC Vol. 19 pt. 1 pg. 30, the court gave an answer to whether an appellant can file two notices of appeal; the answer was in the positive in the case of Iteshi v. The State (1975) 9-1 1 SC pg.41, the court pronounced that three notices of appeal can be filed by an appellant, and it was open for the appellant to choose which of them he intends to adopts. In effect, the appellant replied that the filling of more than one notice of appeal does not affect the validity of an appeal if all the notices are filed within the statutory period for appealing. An appeal is not incompetent because it is brought by more than one notice of appeal. The appellant contended that all the grounds of appeal in the notice of appeal dated 25th January 2007 before the amendment effected thereto in the amended notice of appeal dated 17th of July 2007 – pursuant to the court order of 20th of June 2007 are of mixed law and fact – for which leave has not been sought. All the grounds in the appellant’s notice of appeal are of law and not of mixed law and fact.

The appellant went further to identify the criteria for grouping or classification into grounds of law or mixed law and fact by saying that-

(1) It is only where the question raised in a ground of appeal is one of law as applied to disputed facts that the ground is said to be of mixed law and fact.

(2) Where the ground of appeal deals merely with a matter of inference from undisputed fact, then it is one of law.

(3) A ground of appeal complaining of its judicial duty of considering and pronouncing on the issues raised before it, is a question of law.

The appellant relied on the case of Nwadike & ors. V. Ibekwe & ors. (1987) NSCC Vol.18 pt.11 at pg.1220.

The appellant came to the conclusion that in the Notice of appeal dated the 25th of January 2007, that grounds 1,4,5,6,7,8,10 and 11 challenged the inferences drawn by the Court of Appeal from the facts before the court, while grounds 2,3 and 9 challenged the failure of the court to discharge its judicial duty of considering and pronouncing on the issues raised before it. In the last three grounds v-vii, the appellant held that there is no appeal no. CA/L/250/2007 between the parties at the Court of Appeal and therefore the record is an abuse of the process of the court. The Registrar of the Court of Appeal has compiled and transmitted a Record dated 10/5/07 to this Court. The Record indicates that it is in respect of the case with the Court of Appeal numbers CA/L/200/01 and CA/L/250/06. The respondent declared that it would be using its self compiled record of appeal as against the record compiled at the registry. The respondent is also preventing this court from using this Record.

Section 233 (1) of the 1999 Constitution confers on the Supreme Court jurisdiction to hear and determine appeals from the Court of Appeal. There is no dispute about the contents of a Record – Order 7 Rule 2 as laid down. What should constitute the Record of appeal to be compiled and transmitted by the Registrar of the Court of Appeal to this Court. Order 3 Rule 3 permits some of these documents to be excluded from the Record but this can only be at the mutual consent of both the appellant and the respondent. The Record of Appeal CA/L/250/06 featured prominently in this appeal. The respondent’s objection on this record of proceedings therefore lacks substance and same should be dismissed.

In the grounds upon which the application for preliminary objection are based – the respondent raised as its ground (1) as follows –

“Where an appeal has been dismissed by the Court of Appeal under Order 6 Rule 10 of the Rules 2002, it cannot be relisted, or registered as that court has become functus officio since the dismissal is a final decision and once an appeal is so dismissed, the Court of Appeal or any court has no jurisdiction to revive such an appeal by re-entering or re-listing same and this honourable court has no jurisdiction to do so as provided for in section 232(1) of the Constitution of the Federal Republic of Nigeria 1999.

The respondent supported the foregoing with copious argument and submissions, as can be seen on pages 9 -13 of the respondent’s brief under the caption – Notice of Preliminary Objection.

Under the issues raised for determination in this appeal at page 40 of the respondent’s brief – the respondent’s issue one reads as follows:-

‘Whether the dismissal of an appeal in the court of appeal under Order 6 Rule 10 of the Court of Appeal Rules 2002, can be set aside by any court or whether such an appeal can be revived or relisted under Order 7 Rule 5 of the Court of Appeal Rules.

Both the preliminary objection and this issue for determination raise the same question which to my mind is the core issue for determination in this appeal. In other words, where an appeal has been dismissed under the provisions of Order 6 Rule 10 of the Court of Appeal Rules 2002, can such an appeal be revived or re-listed under Order 7 Rule 5 of the Court of Appeal rules 2002.

The respondent argued and submitted that where the Court of Appeal dismisses an appeal before it under Order 6 Rule 10 of its rules 2002, that decision is a final decision that the Court of Appeal becomes functus officio and the Court of Appeal cannot re-list or re-enter such an appeal on its list, and that any appeal dismissed under Order 6 Rule 10 of the Court of Appeal rules cannot be revived and no court including the Supreme Court has jurisdiction to revive such an appeal by re-entering or re-listing same. The respondent cited cases to buttress the foregoing submission like Olowu v. Abolore (1993) 5 NWLR pt.293 pg 255 at pg.270.

Basayagi v. Bide (1998) 2 NWLR pt.538 pg.367 at pg.376.

Kraus Thompson Organisation v. NIPSS (2004) 17 NWLR pt. 901 pg.44 at pg.59.

Asalu v. Dakan (2006) All FWLR pt.325 pg.90.

The respondent emphasised that section 232 (1) and (2) of the Constitution does not clothe the Supreme Court with jurisdiction to order the Court of Appeal to re-list or re-enter an appeal it dismissed under Order 6 Rule 10 of the Rules 2002. The only recognised step against any order setting aside the dismissal can only be entertained by way of appeal to the Supreme Court as provided under Section 233 (1) of the 1999 Constitution. The respondent cited these cases – United Bank for Africa Plc v. Michael Ajileye (1999) 2 NWLR pt.663 pg. 116 at pg. 123.

Omoyinmi v. Ogunsiji (2001)7 NWLR pt.711 at pg.155.

The respondent drew attention to the fact that the appellant have failed to appeal against the decision of the Court of Appeal dismissing the appeal on 26th September 2005. The respondent explained that Order 6 Rules 2 and 10 of the Court of Appeal Rules 2002 have the force of law as the Constitution itself, while Order 6 Rule 10 is a specific provision on failure of an appellant to file its brief of argument. The respondent made it clear that at the time the court invoked Order 6 rule 10 to dismiss the appellant’s appeal –

(1) The appellant failed to file its written brief in disobedience of the Rules of the lower court and time had not been extended for it to file same.

(2) The court invoked the provision of Order 6 Rule 10 in the circumstance.

The respondent concluded that the understanding of the appellant that when a case has been dismissed under Order 6 Rule 10 of the Court of Appeal Rules 2002, such an appellant can by virtue of Order 7 Rule 5 of the same Rules re-invoke the jurisdiction of the lower court and the court to set aside the dismissal and re-list the appeal in the Courts Cause List, is a misconception. As Order 7 Rule 5 which is a general provision cannot override Order 6 rule 10 which is a specific provision the respondent concluded that it will be wrong to apply the provisions of Order 7 Rule 5 to this appeal and set aside the Ruling of the Court of Appeal on 11/12/06 to re-list or re-enter the appeal in the Cause List. The Supreme Court lacks the jurisdiction to order the court below to do what is inconsistent with the Constitution, Furthermore: the term “within a reasonable” provided in Order 7 Rule 5 has since lapsed.

Issue Two

Whether the appellant is not estopped from raising the defence of mistake of counsel in the circumstance of this case.

Four counsel appeared for the appellant at different times and they all filed different processes in the appeal, Chief Akinjide, SAN was under a mistaken impression as to the existence of any prior record of appeal.

The respondent submitted that as on the 26th of September 2005 – there was a record of appeal duly filed by the appellant following the Motion on Notice for departure from the Rules and granted by the court below. On the 26th of September 2005, the only application before the court was that of the respondent filed on the 23rd of June praying for an order dismissing the appeal for want of diligent prosecution. The respondent observed that the court had jurisdiction to make the dismissal order. It was observed that appeal does not operate as a stay of execution or proceedings.

Nine months after the appeal was dismissed, the appellant’s counsel, by a letter dated 27/4/06 informed the respondent’s counsel that a new Record of appeal has been complied as appeal no. CA/L/250/06 and forwarded by the Registrar of the lower court to the Court of Appeal. This court is urged to hold that the respondent’s Motion dated 23rd June 2005 for the dismissal of the appeal at the court below was rightly and properly moved under Order 6 Rule 10 of the Court of Appeal Rules.

The respondent finally contended that the issue of professional malfeasance, is not applicable to the learned senior counsel in this case. It was the appellant who initiated this appeal and filed a Record of appeal and motion for extension of time to file his brief. The appellant never followed up its motion for extension of time and the same was struck out. The appellant left the motion for extension of time to file brief unattended to from 10th June 2005 to 14th of June 2005 when it was struck out. One of the counsel engaged by the appellant did not file the appellant’s brief and neglected to comply with rules as to filing notification of change of address for service. The court is urged to dismiss the appeal for lacking in merit.

The appellant in the first issue raised the question that considering Order 7 Rule 5 of the Court of Appeal Rules 2002, whether or not the Court of Appeal is inexorably lacking in jurisdiction to revisit an order dismissing an appeal under Order 6 Rule 10 of the Court of Appeal Rules 2002. The issue is similar to issue one raised by the respondent. The appellant argued and submitted on this issue that the impression of the learned Justices of the court of Appeal that are functus officio after the appeal was dismissed under Order 6 Rule 10 of the Court of Appeal Rules 2002, no court can revisit or have jurisdiction over it, and the only remedy open to an affected party was to appeal to the Supreme Court. Hence the court dismissed the application to re-visit or revive the application for hearing on its merit, and set aside the dismissal order.

The learned Justices of the Court of Appeal supported their reasoning and conclusion with many decided cases particularly quoting from the case Kraus Thompson Organisation v. National Institute of Policy and Strategic Studies (NIPSS) (2004) 17 NWLR pt.901 pg. 44 which said that once an appeal which has been dismissed by the Court of Appeal under Order 6 Rule 10 of the Court of Appeal Rules, it cannot be re-listed. The appellant however drew attention to the fact that in arriving at that decision, the justices of appeal relied on the pre-2002 Court of Appeal Rules. Most of the cases cited by the lower court relied on by the court were decided before the year 2002 except the case Kraus Thompson Organisation cited and Asalu v. Dakan (2006) All FWLR pt. 325 pg. 90 which were decided in the year 2004 and 2006. Both cases restate the position of the law as stipulated in the Court of Appeal rules 1981. That law was however revoked by Order 1 Rule 1 (2) of the Court of Appeal Rules 2002. The provision of Order 6 Rule 10 of the Court of Appeal Rules 2002 is no longer subject to automatic applicability and can now be interpreted liberally as against the strict prism of the 1981 Rules. The only exception to the rule that an appeal that has been dismissed without a hearing on the merit cannot be revisited or reinstated by the Court of Appeal is in Order 3 Rule 20 (4) which specifically conferred jurisdiction on the Court of Appeal to vacate such a dismissal order and power to restore the appeal on the cause list where the dismissal order was made pursuant to Order 3 Rule 20 (1) of the 1981 Rules in relation to a dismissal under Order 6 rule 10. The courts have repeatedly declined jurisdiction to reinstate to re-list any appeal dismissed under Order 6 Rule 10 in the absence of constitutional provision or in the Rules of the Court. The appellant pointed at the 1981 and 2002 version of the Court of Appeal Rules – as a new Order 7 Rule 5 is newly introduced into the 2002 version of the Court of Appeal Rules. Order 7 Rule 5 (2) grants the appellant the option to make its application by way of motion on Notice to the Court of Appeal to set aside the order. Ordinarily the appellant was entitled to challenge the dismissal order of the Court of Appeal at the Supreme Court. Order 7 Rule 5 requires that the appellant in exercising that option, to make its application within a reasonable time and before the party applying has taken any fresh step after becoming aware of the irregularity and to state the grounds of the objection. It is pertinent to note that this issue was not canvassed for the appellant at the Court of Appeal, but now the appellant with the indulgence of this court pursuant to the leave granted on the 20th of June 2007 permitting the appellant to argue same as a fresh issue. The court is to hold that Order 6 Rule 10 of the Court of Appeal Rules 2002 can be challenged by the affected party for good cause and revisited and/or set aside by the Court of Appeal under the newly introduced Order 7 Rule 5.

Issue Two

Whether or not the learned justices of the Court of Appeal were right when in declining jurisdiction to revisit and set aside their previous order dismissing appellant’s substantive appeal under Order 6 Rule 10 of the Court of Appeal Rule 2002, they held that as of the time of making the said dismissal order on the 26th day of September 2005 they had jurisdiction to do so.

Under this issue, the appellant examined the appellant’s ground of objection under Order 7 Rule 5 (2) to the order of the court of appeal dismissing the appellant’s substantive appeal under Order 6 Rule 10 are such as should entitle the appellant to the setting aside of the dismissal order. Those that are relevant to the second issue give grounds 3(k)(i)(m),5,6,7,8,9,10,11,12,13,14,15,16 and 17 as produced particularly at pages 260-262 of volume 1 of the Record of Appeal and grounds 20,21 ,22,23 and 26 contained in the additional grounds reproduced particularly at pages 410-413 of 1611 of the Record of Appeal. There were two fold complaints before the court when the order under Order 6 Rule 10 was made as follows-

(a) There was an interlocutory appeal arising from the one dismissed by the Court of Appeal.

(b) The second complaint emanated from the grounds disclosed in the appellant’s motion at the court below when the Court of Appeal made the dismissal order in issue, there was no Record of Appeal before that court to warrant the dismissal order under Order 6 Rule 10 of the Court of Appeal Rules. This raises the question whether the Court of Appeal has jurisdiction to dismiss an appeal – when there is an interlocutory appeal emanating from that appeal pending before the Supreme Court. Secondly, does the Court of Appeal have the jurisdiction to dismiss an appeal under Order 6 Rule 10 of the Court of Appeal Rules when there was no valid Record of Appeal before the court.

The appellant was permitted to come to the Court of Appeal with a complaint of such irregularities with a view to obtaining redress – by way of motion on notice.

The learned Justices of the Court of Appeal would not have made the order dismissing the appellant’s substantive appeal without insisting that the pending appeal at the Supreme Court be dealt with and resolved. The appellant stressed that the jurisdiction of the Court of Appeal to dismiss an appeal is derived from the combined reading of Order 6 Rule 10.

The salient features of Order 6 Rule 10 pertaining to the present situation presupposes that there must be –

(a) An existing record of appeal.

(b) Time for filing of the appellant’s brief i.e. 60 days as provided by rule 2 has expired.

(c) The appellant must have therefore defaulted in filing his brief.

(d) There ought to be an application by the respondent for the appeal to be dismissed.

The foregoing elements were present according to the Court of Appeal when they invoked Order 6 rule 10 on the 26th of September 2005. The application before the court on 26/9/10 was under Order 3 Rule 23 (1) of Court of Appeal Rules 2002 and Section 15 of the Court of Appeal Act. The appellant pointed out that on the 26th of September 2005, there was no record of appeal before the Court of Appeal. The record of appeal got to the Court of Appeal on or about the 20th day of April 2006 and it was this that was erroneously assigned the number CA/L/250/2006 rather the existing appeal no. CA/L/200/2001 was already assigned to the interlocutory proceedings that have taken place in the matter before the Court of Appeal. This error in numbering of the Record of Appeal was that of the Registry.

In the appeal before the lower court, the court held that there was indeed a record of appeal. The Record comprised of document titled “Record of Proceedings in CA/L/200/2001. Exh. TSA 3A is the bundle of document titled “supplementary Record of proceedings in CA/L/200/2001”. The court held that there was only one appeal before the court and that dismissed under Order 6 Rule 10. The only relevant Record of Appeal was transmitted from the Registry of the lower court on the 20th day of April 2006. Appeal could not have been dismissed under order 6 Rule 10 as there was no valid record of appeal before the court. The documents before the court were more appropriate to support an application under Order 3 rule 10 of the Court of Appeal Rules since only notice of appeal was filed. The court did not inquire into whether there was proper record before the court and whether the appellant’s stipulated 60 days had expired.

The application itself took away the appellant’s right of hearing of the appeal on merit. The respondent on the 26/9/05 moved an application under Order 6 Rule 10 which was quite different from what it brought to court under Order 3 Rule 23. The appellant concluded that if Order 6 Rule 10 of the Court of Appeal Rules stipulates that an appeal can only be dismissed under its provision if the appellant has defaulted in filing its brief of argument within the time permitted under Order 6 Rule 2, then there would be a deficiency in the competence of the court to dismiss the appeal under Order 6 rule 10 when the time stipulated under Order 6 Rule 2 had not commenced. Wrongful assumption and exercise of jurisdiction qualifies as non-compliance which should come within the purview of Order 7 Rule 5 of the Court of Appeal Rules 2002. This court must allow Order 7 Rule 5 to be argued as a fresh issue and at the same time resolve this issue in the appellant’s favour and set aside the order dismissing the appeal.

Issue Three

Whether or not a party to a court case in this case the appellant can be deprived of its constitutionally guaranteed right to a hearing on the merit of its case by a combination of the procedural nonfeasance or misfeasance of his own counsel and the professional malfeasance of the opposing counsel.

The appellant argued that one of the grounds for seeking to set aside the order dismissing its substantive appeal is that it had no notice of the ‘respondent’s application and of the proceedings of the Court of Appeal of the 26th day of September 2005. The appellant maintains the stand that it was entitled to be notified and heard on the application for dismissal and that failure to notify it of the said application and be heard on it was a breach of the constitutional right to fair hearing. The entire hearing of the 26th September 2005 by so doing becomes a nullity. The lower court considered the issue of service of process on the appellant but failed to consider Exhs. FBN2, FBN3, FBN4, FBN5, FBN6, FBN7 FBN8, FBN9, FBN18 and FBN19 which could have exposed that the information given to court during the proceedings of 26th September 2005 was incorrect.

Consequently, the information to the court by the Registrar turned out to be incorrect, as there was no proper service on the appellant. The service of hearing of the application seeking the dismissal of the appellant’s substantive suit was served on the firm of Afe Babalola, SAN. The court regarded same as good and effective notification to the appellant notwithstanding the fact that the appellant had long before then dispensed with the services of the said firm and engaged the services of Chief Richard Akinjide, SAN in his stead. The office of Afe Babalola, SAN failed to perform the obligation imposed on them under Order 1 Rule 3 (5) of the Court of Appeal Rules to notify the Registrar that they no longer had the authority to receive courts process on appellant’s behalf is in the nature of a mere error of counsel which ought not to be used against the appellant.

Secondly, Chief Akinjide SAN, who took over the conduct of the appellant’s case from Chief Babalola SAN, simply wrote to the respondent’s counsel and the Assistant Director of Litigation of the Court of Appeal that they were the new counsel representing the appellant in the matter through Exhibits FBN2,. Exh. FBN4, FBN18 and FBN19. Notices of change of counsel from the firm of Richard Akinjide SAN to the respondent and the Court’s Registry were not filed. The appellant submitted that this should not be more than a procedural misfeasance on the part of the firm of Chief Akinjide SAN.

The omission on the part of the firm of Afe Babalola, SAN and Chief Akinjide, SAN ought not to operate to deprive the appellant of its constitutional right. The respondent put the address of the appellant in the motion dated the 23rd June 2005 seeking to dismiss the appellant’s substantive appeal for want of diligent prosecution, put the Chambers of Afe Babalola, SAN as the appellant’s address for service almost a year after the respondent’s counsel had in FBN5 admitted that they were no longer counsel for the appellant in the matter. The appellant’s new counsel Chief Akinjide, SAN had accepted service processes meant for it to the knowledge of the respondent’s counsel. Bailiff of the Court of Appeal served process on the address endorsed to it. The proof of service of the motion purportedly served on the firm of Chief Afe Babalola SAN did not show the date, the exact time it was served, the name or designation and signature of the officer of that firm that received the service. Yet the Registrar of the court reported to the court that the appellant was served. The above information was not at the disposal of the court at the hearing of the 26th of September when the appellant’s appeal was dismissed. The appellant submitted that since a citizens right to an opportunity to be heard before a decision is made against him in a suit to which he is a party is of such fundamental and constitutional nature, it must not be taken away from him due to any procedural error made by his counsel. The court is to resolve this issue in favour of the appellant.

Issue No. 4

If the answers to 1,2,3 are In the negative, then whether or not the Court of Appeal was right when it declined jurisdiction to revisit and set aside its order dismissing the appellant’s substantive appeal.

The appellant contended that the application seeking the dismissal of the appellant’s appeal was not originated by due process. The conclusion of the appellant that there was no Record before the court on the 26th day of September 2005 meant that the 60 days allowed under Order 6 rule 2 of the Court of Appeal Rules 2002 had to begin to count. The court was not competent to sit and dismiss the appeal when it did. The proceedings leading to the dismissal of the appellant’s substantive appeal was taken without genuine notification to him and behind his back. The proceedings will therefore amount to a nullity in law. The appellant had the option of either appealing against the decision or to apply to the Court of Appeal to set it aside. The appellant concluded that apart from the inherent jurisdiction of the Court of Appeal to set aside its null order, if this court resolve issue one in favour of the appellant, then it becomes clear that the Court of Appeal has the express power under its own rules to revisit and set aside its null order of 26th September 2005. The court is urged to resolve the fourth issue in favour of the appellant and grant all the four reliefs sought by the appellant.

I have painstakingly considered the copious argument and submission of learned counsel for the appellant and leaned senior counsel for the respondent in support of the questions raised in the preliminary objection filed by the respondent, and in respect of the issues for determination in the substantive appeal. The bulk of the grounds of the objection relate to the Notices of appeal filed by the appellant. A notice of appeal in the process of appeal is a very important document, as it forms the foundation of the appeal. If it is defective, the appellate court must strike it out on the ground that it is incompetent. The question of whether or not a proper notice of appeal has been filed in the lower court is a question which touches on the jurisdiction of the appellate court. If no proper notice has been filed, then there is no appeal for the court to entertain.

Anadi v. Okoti (1972) 7SC pg. 57.

CBN v. Okojie (2004) 10 NWLR pt. 882 pg. 488.

Olanrewaju v. BON Ltd. (1994) 8 NWLR pt.364 pg.622.

I shall consider some of the grounds particularly from – ground II which reads that –

“Where there is no appeal against a decision of a court, the Supreme Court has no jurisdiction to entertain any ground of appeal not appealed against by the appellant.”

I agree with the observation of the appellant that this ground of the objection is awkward and not self explicit. The ground does not point at or highlight any ground of appeal not appealed against.

section 233 of the 1999 constitution confers the jurisdiction to hear and determine appeals on the Supreme Court. An appeal is not a new action, but a continuation of the matter which is subject of the appeal. It is a complaint against the decision of the lower court. An appellant enjoys the right of appeal and in so doing must file Notice embodying the grounds and particulars of his appeal. The complaint must be relevant to the decision appealed against and not to any matter which is not subject of the appeal. Issues raised by an appellant must be related to and confined to the decision complained against – the grounds of appeal filed. The grounds become incompetent and abandoned when the requirement is not met. The Supreme Court shall not consider an abandoned ground of appeal.

After all the exercise of a right to argue, a ground or grounds of appeal is subject to the rules of evidence -and the discretion of the appellate court.

Ground II (a). The court has no jurisdiction to take

(a) Notice of appeal dated 11th December, 2006, as same was filed before the Ruling in appeal no. CA/L/200/2001 was delivered in the open court, The ruling of the Court of Appeal delivered on the 11th of December, 2006 is based on the appellant’s motion on notice dated 21st June, 2006, at the Court of Appeal praying the court to set aside its decision dismissing the appellant’s substantive appeal No, CA/L/200/2001 on 26th September, 2005. The grouse of the respondent is that the Notice of appeal was filed the same day as the Ruling was delivered and by mathematical calculation of the date and time of filing in the Notice of appeal – it was filed even before the Ruling was read and delivered in the open court. The respondent considers this an abuse of court process and even contempt. I do not see any procedural lapse in the filing of this Notice of appeal as the respondent is making this court to believe.

The appellant clearly read the hand writing on the wall and decided, though one may be tempted to use the word hastily, decided to file the Notice of appeal. In such notices the ground is mostly predicated on the omnibus ground II will say that the appellate courts do not oppose such steps; what the courts frown at is delay in filing Notice of appeal.

This being the reason why the Rules of court place a burden on an appellant to explain the reasons for the delay to the satisfaction of the court.

Grounds III (b) (d) (e) filing Notice of appeal without compliance to the Rules of this court particularly Order 8 Rule 4 of the Court of Appeal Rules 1999.

It must be borne in mind that Rules of court are to regulate matters in court and help parties in the presentation of their case within a procedure made for the purpose of a fair and quick dispensation of justice in the trial. Strict compliance with the rules makes for quicker administration of justice. They are made to attain justice with case and certainty-and as such, they are made with that fundamental principle. The courts now lean heavily on the side of doing justice. The Rules of court are designed for ensuring that justice is obtained by parties in the citadel of justice. Rules of court must be complied with, observed and obeyed; non-compliance often attract the sanction of in competency – and ultimately striking out or dismissal as the case may be.

Solanke V. Somefun (1974) All NLR pt.1 pg.141.

University of Lagos v. Ayoro (19S5) 1 NWLR pt.1 pg.143

By virtue of Order 2 Rule 29 (1) of the Supreme Court rules 1985 as now amended – states that –

“An application to strike out or set aside for non-compliance with these Rules of practice and procedure in this court, any proceedings or any step taken in any proceedings or any document, judgment or order therein shall only be entertained by the court if it is made within a reasonable time and before the party applying has taken any fresh step after becoming aware of the irregularity.”

This is not a remedy to wake up one morning and invoke at leisure, steps under this rule must be taken timeously else the privilege is lost.

III (e) That the appellant’s motion on Notice dated the 14th day of June 2007 is incompetent and should be discountenanced as it is unconstitutional and a gross abuse of court Process.

The appellant explained that when the last application was filed, the relief meant to cover those in the application filed on the 14th of June 2007 – the respondent failed to raise the application within reasonable time.

Akeredolu & ors, v. Akinremi & ors. (1986) 2 NWLR pt. 25 pg.710.

Harriman v. Harriman (1987) 3 NWLR pt. 60 pg.244.

Tukur v. Government of Gongola State (1988) NSCG (Vol. 19) pt.1 pg.30.

III (iv) That the honourable court lacks jurisdiction to grant the reliefs sought in the appellant’s 2 (two) Notices of Appeal herein.

The answer to this objection has been aptly answered in the case of Tukur v. Government of Gongola State (1988) NSCC Vol.19 pt.1 pg.30 quoting from the judgment of the Supreme Court from page 36 lines 6-12 that “The answer to the question, can an appellant file two Notices of Appeal with emphasis on the word can is obviously yes he can”.

In the case of Iteshi v. The State 9 -11 SC at pg.41 – the Supreme Court considered a similar situation where the appellant filed three Notices of appeal. The Apex court held that – it was open to counsel for the appellant to choose which of them he intends to adopt. In the case of Harriman (supra), the court has decided that filing of more than one notice does not affect the validity of an appeal if all the notices are filed within the statutory period for appealing. An appeal is not incompetent because it is brought by more than one notice of appeal. I adopt this sound reasoning in respect of this objection.

III (c) That the grounds of appeal contained in the said two (2) notices of appeal mentioned in (a) and (b) above are not questions of law alone but also contain questions of fact and of mixed law and facts and since leave of the court below or of this honourable court was not first sought and obtained before filing same, the said (two) Notices of Appeal herein are incompetent as they are unconstitutional.

The appellant explained that a Notice of Appeal was filed on 25/1/07 – but another Notice meant to amend this former notice was filed on 17/7/07. It was made pursuant to the order of this court of the 20tn of June 2007. The appellant followed the case of Nwadike & ors v. Ibekwe & ors. (1987) NSCC Vol. 18 pt. 11 at pg.220 to determine whether the grounds in the Notice of Appeal filed on 25th January are of law, or of mixed law and fact. The appellant held that grounds 1, 4,5,6,7,8,10 and 11 challenged the inferences drawn by the Court of Appeal from facts before the court, while grounds 2,3 and 9 challenged the failure of the Court of Appeal to discharge its judicial duty of considering and pronouncing on the issues raised before it.

The respondent contend that all the grounds of appeal of the 25th of January before the amendment are of mixed law and fact for which no leave has been obtained.

When a party objects to a ground of appeal on the ground that it raises a question of fact or of mixed law and fact, and that the requisite leave has not been obtained, the court will determine the question on a reasonable understanding of the nature of the ground of appeal and not what the party raising the objection may have misconceived to be the question involved in the ground of appeal filed by the appellant.

The important yardstick for the classification of a ground of appeal is not in the form of the question it raises but for instance –

(a) Where the ground of appeal shows that the trial court or appellate court misunderstood the law or misapplied the law to the fact, it is certainly a ground of law. .

(b) Where the ground suggests an invitation to the court where an appeal is lodged to investigate the existence or otherwise of certain facts made by the trial court or where the evaluation of the evidence tendered is exclusively challenged, it is a ground of fact or at best a ground of mixed law and fact.

(c) Where the questions which the court is bound to answer in accordance with a rule of law arises out of statutory provisions and interpretation of documents, it is a ground of law,

(d) Where the question is one that will require questioning the evaluation of the facts by the trial court before application of the law, it is a ground of mixed law and fact.

(e) Where the ground of appeal questions the exercise of the discretion by a trial court, it is undoubtedly not a ground of law but at best a ground of mixed law and facts because the manner in which a court ought to exercise its discretion in a particular case is a question of fact depending on facts and circumstances of each case.

(f) Whether or not discretion is exercised judicially and judiciously or arbitrarily in any particular case is a question of mixed law and fact.

(g) A ground of appeal complaining of failure of the court to discharge its duty considering and pronouncing on the issues raised before it is a question of law.

(h) A ground of appeal which is a complaint of the misapplication of correctly stated principles of law to the facts of a case is a ground of law alone.

Nwadike & ors. v. Ibekwe & ors. (1987) NSCC Vol.18 pt.11 pg.1220

Abidoye v. Alawode (2001) 6 NWLR pt. 709 pg. 463.

Ezeobi v. Abang (2000) 9 NWLR pt.691 pg.516.

Asbamu v. Ofili (2004) 5 NWLR pt.863 pg.540.

Metal Construction (WA) Ltd. v. Migliore (1990) 13 NWLR pt.635 pg.472,

Comex Ltd. v. Nigeria Arab Bank Ltd. (1997) 3 NWLR pt.496 pg.643.

Coker v. U.B.A. Plc (1997) 2 NWLR pt.490 pg.641.

In the case of Thor Ltd. v. First City Merchant Bank Ltd. (2002) 4 NJSC pg. 1 pg.179 at pg. 188 – the Supreme Court held that –

“Where however the ground of grounds of appeal are not of law alone but of mixed law and fact or fact simpliciter, the right of appeal from the court of appeal to the supreme court can only be exercised where the aggrieved party has first sought and obtained the leave of either the court of appeal or the supreme court.”

Akwiwu Motors Ltd. & anor. V. Dr. Babatunde Sangonnuga (1984) All NLR 309 at 311.

Section 213 (3) of the Constitution 1979 in pari materia with Section 233 (3) of the 1999 Constitution gleaning through the grounds raised in the notice of appeal, the appellant must obtain leave of this court in order to rely on the grounds in the notice of appeal based on mixed law and facts. Such leave can be obtained to act on the side of caution where it is not apparent on record whether a ground of appeal can be classified as ground of law or ground of mixed law and fact.

The germane issue in the preliminary objection is the ground raising the question that where an appeal has been dismissed by the court of appeal under Order 6 Rule 10 of its rules 2002, it cannot be re-listed or re-entered as that court has become functus officio since the dismissal is a final decision. Once an appeal is so dismissed, the court of Appeal or any court has no jurisdiction to revive such an appeal by re-entering or re-listing same and this honourable court has no jurisdiction to order the court of appeal to re-list or re-enter the appeal which the court of appeal itself has no jurisdiction to do so as provided for in section 232 (1) and (2) of the Constitution of the Federal Republic of Nigeria.

In the respondent’s brief, issue No. 1 reads –

“Whether the dismissal of an appeal in the Court of Appeal under Order 6 Rule 10 of the Court of Appeal Rules 2002 – can be set aside by any court or whether such an appeal can be revived or re-listed under Order 7 rule 5 of the court of Appeal Rules 2002.”

In the appellant’s brief issue No. 1 reads –

“Considering Order 7 Rule 5 of the Court of Appeal Rules 2002, whether or not the Court of Appeal is inexorably lacking in jurisdiction to re-visit an order dismissing an appeal under Order 6 Rule 10 of the Court of Appeal Rules.”

I find it therefore convenient at this stage to consider the effect of Order 6 Rule 10 of the Court of Appeal Rules 2002 on any appeal dismissed pursuant to this Rule. The instant appeal challenges the decision of the Court of Appeal, Lagos delivered on the 11th of December 2006, declining to entertain and refusing the appellant’s application to set aside the earlier decision of the same court

dismissing the appellant’s substantive appeal in the appeal CA/L/200/2001 under Order 6 rule 10 of the court of Appeal Rules.

When the judgment of the court in the suit No. ID/9/98 was delivered on the 23rd of January 2007 in favour of the respondent as plaintiff. By Notice of Appeal dated 1st February 2001, the defendant/appellant filed an appeal to the Court of Appeal, Lagos. On the 11th of April 2001, the appellant brought an application to the Court of Appeal by way of motion praying the court for an unconditional stay of execution of the judgment of the trial court, which the Court of Appeal refused. The appellant brought an interlocutory appeal No. SC/389/2001 to this court. This court on the 3rd of May 2004 further varied the conditional stay in the appeal no. SC/389/2001. This interlocutory appeal was later dismissed by the Supreme Court on the 28th of March 2006.’ In order to quicken the hearing of the appeal to the Court of Appeal, the appellant filed the motion for departure – and compiled the Record while the respondent compiled the supplementary Record. On the 26rh of September 2005, the Court of Appeal on the application of the respondent and having been informed by the Registrar that the appellant had been served and there was no appellant’s brief of argument filed, assumed jurisdiction and dismiss the appeal under Order 6 rule 10 of the Court of Appeal Rules 2002. The appellant thereafter invoked the jurisdiction of the court of Appeal to set aside the order of dismissal made pursuant to Order 6 Rule 10 of the Court of Appeal Rules 2002. The Court of Appeal on the 11th of February, 2002 held that it lacked jurisdiction to entertain the application of the appellant to re-list, re-enter or revive the appeal already struck out being that the court has become functus officio. Was the lower court right to have claimed that it has become functus officio in the matter after the Ruling of the 26th of September, 2005. The hearing of the 26th of September, 2005 is at page 81 of the record of appeal Vol. 1, reads – appearance – Chief A.O. Williams SAN with R.D. Tang (Miss) for the Respondent/Applicant.

Registrar: – Appellant/Respondent served on 23/9/05.

Williams – I have a motion filed on 23/6/05 brought under Order 6 Rule 10 of the Court of Appeal Rules. We ask that the appeal be dismissed for Akanike-Olowu & ors v. Ahudatu and ors. (1993) 5 NWLR pt.255. Brief has not been filed and time has not been extended for the applicants.

Court – Application meritorious. Appeal dismissed under Order 6 Rule 10 of the Court of Appeal Rules.

Signed”

Vide page 81 vol.1 of the Record.

Order 6 Rule 2 of the Court of Appeal Rules 2002 stipulates that –

“The appellant shall within sixty days of the receipt of the Record of Appeal from the court below file in the court a written brief, being a succinct statement of his argument in the appeal.”

Order 6 Rule 10 of the Court of Appeal Rules 2002 stipulates that –

“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 fails to file his brief, he will not be heard in oral argument except by leave of the 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.”

Before the hearing and Ruling of the 11th of December 2006, the motion dated 5th June 2003 for extension of time to file brief by the appellant was struck out by the court below on 14th, June 2005 for want of prosecution. The appellant was not in court on 26/9/05, no brief was filed, no application for extension of time. On 11/12/06, the same Court of Appeal declined to revive the suit no. CA/L/200/2001 that it lacked jurisdiction – as it had become functus officio.

Order 5 Rule 3 of the Court of Appeal Rules 2002 states that –

“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.”

In the case of Olowu v. Abolere (1993) 5 NWLR pt.293 pg.2SS at 270 per Karibi-Whyte, JSC (as he then was) said –

“After deciding a matter before it, the court of appeal becomes functus officio and lacks jurisdiction to deal with the matter.

This is essentially because the court cannot sit on appeal on its own decisions, having not been vested with any power so to do.

The constitutional and statutory jurisdiction of the Court of Appeal is not to hear appeals from the lower court. Thus having finally decided a case before it becomes funtus officio as to that case.”

In effect when a court of appeal dismisses an appeal before it under Order 6 Rule 10 of its Rules 2002, that decision is a final decision, the Court of Appeal thereafter becomes functus officio and the court of appeal cannot re-list or re-enter such an appeal on its cause list.

In the case of Kraus Thompson Organisation v. NIPSS (2004) 17 NWLR pt. 901 pg.44 at pg. 59 the Supreme Court expatiated further on this by saying that-

‘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.”

Asalu v. Dakan (2006) All FWLR pt. 325 pg.90.

Babayagi v. Bida (1998) 2 NWLR pt.538 pg.367

National Electoral Commission & 438 ors. v. prince Chijioke B, Nnaji & anor. (2004) 16 NWLR pt.900 pg.473 at 482.

The phrase functus officio means “a task performed, fulfilling the function, discharging the office or accomplishing the purpose and thereby becoming of no further force or authority.”

A court is said to be functus officio in respect of a matter if the court has fulfilled or accomplished its function in respect of that matter and it lacks potency to review, re-open or re-visit the matter. Once a court delivers its judgment on a matter, it cannot re-visit or review the said judgment except under certain conditions. More importantly, a court lacks jurisdiction to determine an issue when it is functus officio in respect of the issue or where the proceedings relating to the issue is an abuse of court process.

Ukachukwu v. Uba (2005) 18 NWLR pt.956 pg.1.

Anyaegbunam v. A-G Anambra State (2001) 6 NWLR pt.710 pg.532.

Mohammed v. Husseini (1998) 14 NWLR pt.584 pg.108.

In the case of UBA Plc v. Michael Ajileye (1999) 3 NWLR pt.663 pg.116 at pg.123, the Court of Appeal went a step further in respect of the effect Order 6 Rule 10 on an appeal struck out that –

“Any order setting aside the dismissal can only be entertained by way of appeal to the supreme court as provided under section 233 (1) of the 1999 Constitution.”

In the case of Omoyinmi v. Oganiyi (2001) 10 NWLR pt.711 at 155 held that “The consequence is that the dismissal of an appeal for failure to file appellant’s brief under Order 6 Rule 10 is final decision and the only cause open to a party adversely affected thereby is that of appeal to the Supreme Court.”

The appellant has chosen this option of coming to the Supreme Court in order to examine the jurisdiction of the court below to dismiss an appeal under the said Order 6 rule 10 of its Rules 2002. The applicant must satisfy the court that –

(a) There is a record of appeal already entered. A record is entered after it has been transmitted to and delivered to the Registry of the appellant’s court from the lower court.

(b) Time for filing the appellant’s brief of argument 60 days as provided by Rule 2 has expired.

(c) There is no extension of time ordered by the court within which the appellant would file its brief of argument.

(d) There is an application by the respondent for the dismissal of the appeal.

The lower court found that all the foregoing were in existence when it made the order to dismiss the appeal under Order 6 Rule 10 on the 26th of September, 2005. The lower court found that there was a Record of Appeal before it. The appellant had not filed the appellant’s brief and there was no pending application for extension of time to do so. The only application before the court was the respondent’s motion dated the 23rd of June, 2005 for an order

dismissing the appeal for want of diligent prosecution. All the conditions for invoking the court’s jurisdiction were present when the respondent moved his motion for an order to dismiss the appeal for want of diligent prosecution under Order 6 Rule 10 of the Court of Appeal Rules 2002. The conclusion of the respondent is that the court below had rightly invoked Order 6 rule 10 of the Court of Appeal to dismiss the appeal of the appellant in the circumstance of this case.

The view of the respondent has the blessing of the Supreme Court in the case of Kraus Thompson Organisation v. NIPSS (supra) where the court said –

“The provisions of Order 6 Rule 10 of the Court of Appeal Rules 1981 as amended is in pari materia with the 2002 rules are very clear and needs no further interpretation. It says very clearly that if the appellant fails to file its brief within the time provided by the Rules or the time extended by the Court for doing so, the respondent may apply to the court for the appeal to be dismissed for want of prosecution. This did not seem to give the court any discretion. Once the respondent applies under the said rule, the appeal must be dismissed and such dismissal is final.”

The appellant has a contrary view which this court shall now unfold. The appellant is of the impression that there was no proper record of appeal already entered before the court. The record which the lower court relied on was compiled by the parties and not by the registry of the trial court. By so doing, the Record will only become the Record of court to be used for the purpose of the appeal through an application for departure from the Rules. The appellant submitted that though the application for departure was filed on 7/6/01, it was not heard by any court or granted contrary to the impression of the lower court at the time of delivering its judgment on 11/1/06. The view of the court expressed in the judgment delivered on the 11/12/06 that there was a Record in existence for which departure was granted on 6/6/01 was not correct. The record in existence as at that time are TSA3 and TSA3A – a main record compiled by the appellant and a supplementary record compiled by the respondent. The appellant now refers to an officially complied record emanating from the Registry of the lower court which has given birth to the appeal CA/L/250/2006. The appeal in existence is CA/L/200/2001. It was the mistake of the registry that gave two different numbers to the same appeal. The respondent filed a motion on notice dated 21st of December, 2006 praying this court to depart from the Rules by admitting the bundle of documents Exhibit AAA/01 as the Record for the purpose of this appeal. The respondent took the steps for the expeditious and accelerated hearing of this appeal so that it may not suffer any further delay in reaping the fruits of the interest on the judgment. The application for departure was heard and granted in Chambers of this court on the 20th of June 2007. This has also generated series of questions; does the application for departure granted on 20/6/07 in respect of the Record already compiled by the parties, used to dismiss the appeal CA/L/200/2001 under Order 6 Rule 10 for failure of the appellant to file brief.

(2) Has the respondent now taken it upon itself to compile a new set of record altogether

(3) What is the position of the official Record now transmitted from the trial court registry and entered at the Court of Appeal The official Records were transmitted on 20/4/2006.

(4) Is the appellant not right to hold that there was no Record before the court when the application for invoking Order 6 Rule 10 was heard

(5) If there was no proper record, is it right to blame the appellant for failure to file its brief on 26/9/05

(6) Exhibit TSA3 and TSA3A are records meant for the interlocutory appeal.

(7) Has the lower court not invoked Order 6 Rule 10 of the Court of Appeals 2002 prematurely

The appellant is of the impression that Order 6 Rule 10 of the Court of Appeal now wears a bit of human face. It is not as ruthless as it was under the 1981 rules now repealed. The reason being that the Court of Appeal Rules 2002 now has a new provision in the form of Order 7 rule 2 and Order 7 Rule 5.

Order 7 Rule 2 states that –

‘The court may direct a departure from these Rules in any way this is required in the interest of justice.”

Order 7 Rule 5 (1) states that

“An application to strike out or set aside for non-compliance with these Rules or for any other irregularity arising from the Rules of Practice and Procedure in this court any proceedings or any document, Judgment or order therein shall only be entertained by the court if it is made within a reasonable time and before the party applying has taken any fresh step after becoming aware of the irregularity.”

Order 7 Rule 5 (2) reads –

“An application under this Rule may be made by motion on notice and the grounds of objection must be stated.”

It is certainly obvious that this section of the Court of Appeal Rules which is a miscellaneous provision is meant to aid the vigilant and not a sluggard. The appeal in the instant case was struck out since the 26/9/05. I do not see from the records how the appellant has taken advantage of this section which according to Order 7 Rule 5 must be invoked within a reasonable time. The words used in the 2002 Court of Appeal Rules are simple, clear and unambiguous and this court has no option but to give effect to them as such as they clearly demonstrate the intention of the framers in employing the Rules of court not only to promote the interest of justice but also to obtain same with dispatch. The appellant’s only option here is to file an appeal to this court as this is clear from the provision of the Rules. The appellant made a fruitless journey to the lower court to set aside or re-visit its ruling in a situation where the lower court is functus officio. The appellant complained about breach of his right to be properly heard before his right of appeal was thrown overboard by the lower court. The appellant’s core grouse is that he was not put on notice about the motion for dismissal of his appeal for want of diligent prosecution filed by the respondent, which it prayed the court to move on the 26/9/05 following which his appeal was not struck out as he had not filed the appellant’s brief.

I have touched upon the complaint of the appellant about the Record. The sum total of it all is that right now, there are two sets of Records before this court, one officially prepared and transmitted after parties have settled records. The other prepared by the parties themselves. Appellant’s brief and even the respondent’s brief can only be prepared from the Record. It is obvious from the argument and submission of the parties – that the appellant is biased towards the officially prepared Record of Appeal, while the respondent is in favour of the Record prepared by way of departure. The appeals based on the Records bore different numbers which is the mistake of the Registry. The appellant complained of improper service. The Records show that the appellant in the course of trial of this case had briefed four eminent members of the bar – namely Professor M. I. Jegede, SAN; Chief Afe Babalola, SAN; Chief Richard Akinjide SAN and this incumbent legal representative. While the appellant engaged the services of Professor M.I. Jegede he filed the Notice of Appeal Chief Afe Babalola, SAN filed the Record of Appeal on the 6th of June 2001 and the motion dated 5th of June 2003 for an extension of time to file brief based on the record. Chief Richard Akinjide, SAN filed record which he said was for argument in the interlocutory appeal. The change of baton of these counsel have brought about legal complication in the service of process’ Though notification of their briefing and when they were de-briefed generated some official lapse. There are provisions in the rules of court as to the notification of their engagement particularly to the Court Registry in view of the importance of service of various court processes by the court Registry. Clients must be served through their counsel. The counsel to the appellant at the time of the hearing of this appeal was Chief Richard Akinjide, SAN. Though he communicated his engagement to the Court Registry by writing letters to the Registry while he took the proper step to notify his colleagues. The provision of Order 1 rule 3 (1)and Order 3 Rule 7 (4) of the Court of Appeal Rules of the Court of Appeal Rules 2002 are not in doubt.

Order 1 Rule 3 (4) stipulates that –

“Any person desiring to change his address for service shall notify the Registrar and shall communicate the new address to all other persons to the suit.”

Order 3 Rule 7 (4) of the Court of Appeal Rules 2002 reads as follows-

“Any party to an appeal or intended appeal may change his address for service at any time by filing and serving on all parties to the appeal or intended appeal notice of such change.”

The learned senior counsel for the appellant wrote letters to the registry and the other counsel in the matter. It is argued that he was supposed to file Notice of change of address at the Court Registry and serve same on all the parties.

Exhs. FBN2, FBN3, FBN4, FBN5, FBN6, FBN7, FBN8, FBN9, FBN18 and FBN19 are correspondence between the appellant’s learned senior counsel, the respondent’s learned senior counsel and the Court Registry. When the motion on Notice was filed in the Registry pending the hearing on the 26/12/05 in court, the respondent’s counsel decided to put the name and address of a counsel already debriefed who to his knowledge was no longer appearing in the matter. The court bailiff relied on the address on that Motion to invite the supposed appellant’s counsel to court. As observed by the learned counsel for the appellant, there was no notice of who accepted service of the process at Chief Afe Babalola’s chamber.

There is all ‘likelihood that the chamber may not even accept such service of the motion since they have been debriefed by the appellant. The registrar believing service was rightly effected at the address on the motion indicated to court at the hearing of the motion on 26/9/06 that the counsel and by extension, his client have been served. The paramount outcome of such non-service is that the appellant was deprived of being heard in a matter of great interest to him.

The bottom line is that the appellant was not present where a major decision was taken against him based on wrong information contained in his address for service. The appellant was not heard

before his appeal was dismissed. I agree with the reasoning and view of the appellant that a citizen’s right to an opportunity to be heard before a decision is made against him in a suit to which he is a party is of fundamental and constitutional nature that ought not to be taken from him simply because of the procedural error of his counsel, his opponent or the Court registry; particularly when it does not fundamentally affect the opposing side.

The essence of service of process on parties in a case is to enable them to appear to prosecute and defend the case and also to ensure the appearance of the parties and those of their respective counsel in court. These are fundamental conditions to be seen to have been fulfilled before a court can have competence and exercise jurisdiction over a case. This also accords with the principle of

natural justice which postulates that both sides to a case must be heard. Consequently, failure to serve a process where service of process is required to be served renders any order made against the party not served with process null and void. In the instant appeal not properly serving the appellant with process, whereupon service was served on it through counsel already debriefed by him to the knowledge of the applicant in the motion renders any order made against it in the application null and void.

Madukolu v. Nkemdilim (1962) 2 SCNLR pg.341.

U.B.A. Plc v. Ajileye (1999) 13 NWLR pg.633 pg.116.

Oke v. Aiyedun (1986) 2 NWLR pt.23 pg.548.

Also non-service of process affects the jurisdiction of a court in respect of any matter. Where a case comes before it by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction, the court competently assumes jurisdiction.

Proceedings conducted in a trial without due process being served on the parties or one of the parties amount to a nullity. The outcome of the proceedings will surely be against the principle of natural justice – affecting the competence of the court which sat over the matter.

Skenconsult Nig. Ltd. v. Ukey (1981) 1 SC 6.

A person who is affected by an order of the court which can properly be described as a nullity is entitled as a matter of right, ex debito justititiae to have it set aside in order to meet the end of justice. In the absence of service of the initiating process on an appellant, the trial court lacked the jurisdiction to enter judgment in favour of the respondent. The appellant did not realise that his appeal had already been dismissed until the notice about the Record in respect of the same appeal was served on the counsel from the Registry of the trial court. The appellant claimed that his right to fair hearing has been breached. It is apparent that a hearing cannot be said to be fair if any of the parties is refused hearing or denied the opportunity to be heard, or to present his case.

The right to fair hearing is a right guaranteed by section 36 of the 1999 Constitution, the supreme law of the country to every citizen of Nigeria. It cannot be waived neither can its breach acquiesced in. The right to fair hearing is a fundamental and constitutional right of a party to a dispute to be afforded an opportunity to present his case to the adjudicating authority. The right lies in the procedure followed in the determination of a case and not in the correctness of the decision arrived at in the case. As reasoned in the case of Otapo & Ors. v. Sunmonu & ors. (1987) 2 NWLR pt.58 pg.587 at pg.605 – the Supreme Court held that –

“A hearing can only be fair when all parties to the dispute are given a hearing or an opportunity of a hearing. If one of the parties is refused hearing or not given an opportunity to be heard, the hearing cannot qualify as a fair hearing. Without fair hearing, the principle of natural justice are (sic) abandoned.”

Ogundoyin v. Adeyemi (2001) 13 NWLR pt.750 pg.430

U.B.A. Ltd. v. Achonu (1990) 6 NWLR pt, 156 pg.254.

Mohammed V. Kano Native Authority (1968) 1 ALL NLR pg.424.

Salu v. Egabor (1994) 6 NWLR pt.348 pg.23.

Mohammed v. Olawunmi (1990) 2 NWLR pt.133 pg.458.

Union Bank of Nigeria v. Nwokolo (1995) 6 NWLR pt.400 pg.127,

Bamigboye v. University of Ilorin (1999) 10 NWLR pt.622 pg.290.

Okafor v. A-G Anambra State (1991) 3 NWLR pt.200 pg.59.

There is no doubt about it that the appellant having been deprived of the opportunity to participate in the court proceedings of 26/9/05 where his appeal was dismissed under Order 6 Rule 10 of the Court of Appeal Rules 2002 due to lack of service, his right to fair hearing has been breached. Any judgment or ruling based on breach of the constitutional provisions of fair hearing as provided in section 36 of the 1999 Constitution will not be allowed to stand on appeal.

Furthermore, Order 6 rule 10 of the Rules of the Court of Appeal relied upon by the respondent to hold that the Court of Appeal and no other court can revive, or re-list or resuscitate an appeal dismissed “relying on the decision in Kraus Thompson Organisation v. NIPSS (2004) 17 NWLR pt.901 pg.44 at pg.59 is only a rule of court, while section 36 of the 1999 Constitution is a constitutional provision. By virtue of the provision of section 1 (3) of the 1999 Constitution, the doctrine of supremacy of the Constitution demands that if any law is inconsistent with the provision of the 1999 Constitution, the constitution shall prevail and the other law shall to the extent of the inconsistency be void.”

Order 6 Rule 10 of the Court of Appeal Rules 2002, shall in the circumstance give way to section 36 of the Constitution. All the germane issues raised in this appeal, which I have considered, are decided in favour of the appellant.

1. hereby make order as follows –

(a) The preliminary objection is over-ruled.

(b) The appeal succeeds and it is allowed.

(c) The appeal is to be remitted back to the Court of Appeal, Lagos to be re-listed and heard before another panel of justices of the Court of Appeal.

(d) The order of dismissal of the appeal made on the 26th of September 2005 is set aside.

(e) The order in the Ruling of 11/12/06 is set aside.

(f) It is important in the interest of justice that all parties shall approach the citadel of justice putting all their cards on the table. N50,000.00 costs of the appeal is awarded in this court and N20,000.00 at the lower court in favour of the appellant.

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SC.316/2006