The Nigeria Navy & Ors Vs Navy Captain D. O Labinjo (2012)

LAWGLOBAL HUB Lead Judgment Report

WALTER SAMUEL NKANU ONNOGHEN, J.S.C.

This appeal is against the decision of the Court of Appeal, Holden at Lagos in appeal No. CA/L/364/2004 delivered on the 13th day of May, 2008 in which the court dismissed the appeal of the appellants for want of diligent prosecution.

The respondent was a serving officer in the Nigerian Navy of the rank of Captain. Sometime in 2001 he was indicted and charged before a general court martial and tried and convicted for the offence of disobedience of orders contrary to Section 57 of the Armed Forces Decree NO 105 of 1993; conduct prejudicial to good order and service discipline contrary to Section 103 (1) of the Armed Forces Decree NO 105 of 1993; scandalous conduct contrary to Section 91 of the Armed Forces Decree 105 of 1999 all as amended. He was sentenced accordingly which sentence was duly confirmed by the appropriate authority as a result of which respondent applied to the Federal High Court for judicial review by way of a declaration that the trial was null and void for gross irregularities and breach of fundamental rights of the respondent. He also requested that he be restored to his pre-trial position in the Navy with payment of arrears of salaries and allowances which reliefs were granted in a judgment delivered on the 3rd day of May, 2004.

Appellants were not satisfied with the decision and consequently appealed to the lower court vide a notice of appeal filed on 31st May, 2004 and followed same up with an application filed on 19th August, 2004 praying for departure from the rules of court which was subsequently fixed for hearing on the 29th day of May, 2005 but adjourned to 8th December, 2005 for appellants to produce clearer copies of the record as those exhibited were found by the court to be illegible. Following the failure of appellants to file more legible copies, the motion was again adjourned to 22nd March, 2006 and many other subsequent adjournments until the 12th day of May, 2008 when it was struck out for want of diligent prosecution. On that day, neither the appellants nor their counsel were in court nor was any letter written to excuse their absence despite service of a hearing notice on them. The appeal itself was subsequently dismissed also for want of diligent prosecution resulting in the instant appeal, the issue for the determination of which has been formulated by learned counsel for the appellants, C. I OKPOKO ESQ in the appellants brief filed on 19th January, 2010 as follows:

“Whether the learned Justices of the Court of Appeal were right in dismissing the appellants’ appeal’.

In arguing the issue, learned counsel submitted that the lower court haven struck out the motion for departure from the rules lacked the jurisdiction to dismiss the appeal without giving appellants the opportunity to put forward their case, thereby violating their right to fair hearing as contained in Section 36 of the 1999 Constitution.

It is the further submission of counsel that by the provisions of Order 8 Rules 10(1) (2) and (3) of the Court of Appeal Rules, 2007, the appeal had not been entered at the time the lower court purported to dismiss it, relying on Ezomo vs A-G of Bendel State (1986) 4 NWLR (Pt. 36) 448 at 469; that a grant of the application for departure would have resulted in the appeal being entered before the lower court and since it was not so granted, there was no appeal strictly so called to be dismissed by the lower court; that by the operation of Order 8 Rule 13 and the decision in Ugo vs Obiekwe (1989) 1 NWLR (Pt. 99) 566 at 582, the respondent ought to have filed a formal application before the lower court praying for dismissal of the appeal which would have put appellants on notice of same; that the decision of the lower court in the circumstance in which it was rendered is a nullity as same was reached in excess of jurisdiction, relying on A-G of Anambra State vs Okafor (1992) NWLR (Pt. 224) 396 at 429.

Finally, learned counsel urged the court to allow the appeal.

On his part, learned counsel for the respondent AKIN KEJAWA ESQ in the respondents brief filed on 9th March, 2010 submitted that Order 8 Rules 10(1) (2) and (3) of the Court of Appeal Rules, 2007 are not relevant to the case as they relate to the duties of the registrar of the court below after compilation of the record of appeal; that the issue before the court is on failure of appellants to compile record in accordance with Order 8 Rule 10 (4) of the Court of Appeal Rules, 2007.

It is the further submission of counsel that the lower court was right in dismissing the appeal under Order 8 Rules 10 (4) and (18) of the Court of Appeal Rules, 2007; that by the provisions of Order 8 Rules 10 (1), (4) and (18) of the Court of Appeal Rules 2007, the lower court is clothed with the jurisdiction to dismiss an appeal for want of prosecution following failure to compile and transmit record of appeal, relying on Uwechia vs Obi & ORS, (1973) ALL NLR (Reprint) 78; Obiamalu vs Nwosu (1973) ALL NLR (Reprint) 83; Ajayi vs Omoroqbe (1993)6 NWLR (Pt.301) 512.

On the sub-issue of non filing of motion for an order dismissing the appeal for want of prosecution, learned counsel referred the court to page 1229 Vol. III of the record and submitted that as far back as 19th October, 2006 the respondent had filed such a motion and same was served on appellants. It is the further submission of counsel that filing of a motion for dismissal is not a mandatory provision but permissive as the word ‘may’ is used in Order 8 Rule 18 of the Court of Appeal Rules, 2007 and that the purpose of Order 8 Rule 18 is to enable the court decongest the cause list. Finally counsel urged the court to dismiss the appeal.

It is not disputed that between the filing of the notice of appeal and the time the appeal was dismissed for want of prosecution is four good years and that within that time, appellants failed and/or neglected to file legible copies of record of appeal to enable the appeal be heard and determined.

It should also be noted that appellants failed and or neglected to attend court on the date their motion was fixed for hearing despite being served with a hearing notice neither did their counsel deem it courteous to write to the court to excuse their absence. However, appellants are not complaining about the striking out of their motion for departure from the rules. Their complaint is that they were denied fair hearing in that they were not given notice of any intention by the respondent to apply to the court for the appeal to be dismissed for want of prosecution after their motion for departure was struck out.

The question is whether the submission is supported by the facts. The answer is clearly in the negative. It is clear at page 1229 of the record that as far back as the 19th of October, 2006 the respondent had filed a motion on notice praying the court for an order striking out the appeal for want of prosecution. Appellants have not denied being served with the said notice of motion as contended by learned counsel for the respondent.

The above being the case, it follows that the submission of counsel on the issue has no factual basis.

Apart from there being a motion on notice calling for the striking out of the appeal for want of prosecution which was duly served on the appellants, Order 8 Rule 18 of the Court of Appeal Rules, 2007 on which learned counsel relied in submitting that the filing of a notice of motion for the striking out of an appeal for want of prosecution is mandatory does not support that contention. The rule provides as follows:

“If the registrar has failed to compile and transmit the records under Rule 1 and the appellant has also failed to compile and transmit the records in accordance with Rule 4, the respondent may by notice of motion move the court to dismiss the appeal”.

From the above, it is clear and I hereby hold that the filing of a motion on notice as provided supra is permissive not mandatory as the word ‘may’ is used. It is a general principle of interpretation of statute that the use of the word ‘may’ generally connotes permissive action though in exceptional circumstances it may mean mandatory or compulsory action.

However, in the contest in which it is used in the rule under reference, it can mean but one thing, that is, permissive action. Generally, it is the duty of an appellant to produce before the Court of Appeal the record he seeks to challenge in that court. The Rules are made to prevent the appellant from being tardy in the prosecution of his appeal, that is why a respondent is empowered to ex debito justiciae have the appeal proceedings terminated by praying the court either by motion on notice or oral application under Order 8 Rule 18 supra for same.

The provisions of Order 8 Rule 18 supra is a clear answer to the submission of learned counsel for appellants that the lower court was without jurisdiction in dismissing the appeal after striking out the motion for departure from the rules since no appeal was in effect entered before the court to be so dealt with.

There are two situations relevant to an application for striking out/dismissal of an appeal for want of prosecution or otherwise summarily dealing with the appeal in any manner the court may deem fit. These are situations where:

(a) an appeal is deemed brought or filed – See Order 6 Rule 11 of Court of Appeal Rules, 2007, and,

(b) when it is said to be entered before the appellate court -See Order 8 Rule 10 (3) of same.

An appeal is deemed brought before the appellate court when the notice of appeal is filed and before the record of appeal is compiled and transmitted to the appellate court, while an appeal is said to be entered when the record of appeal is transmitted to the appellate court and received by it and entered in the cause list of the court, to be dealt with according to the rules of the court.

Whereas the argument of counsel for appellants is that since no record of appeal had been received by the lower court as at the time the court dismissed the appeal the court had no jurisdiction to do so, as the appeal had not been entered before it, Order 8 Rule 18 supra clearly deals with a situation where an appeal is deemed brought, in that a notice of appeal had been filed but there is failure on the part of either the registrar of the lower court or the appellant, to compile and transmit the record of appeal to the appellate court. That is the situation relevant to the facts of this case.

In that case, the appeal needs not be entered before the lower court to cloth that court with the jurisdiction to summarily deal with it.

In fact I hold the considered view that an appellate court, in a situation like the one under consideration in this appeal, has the inherent jurisdiction to suo motu list the appeal and summarily dismiss same for want of prosecution without waiting for the respondent to make the application either orally or by way of a motion on notice as the court has the inherent power to do away with frivolous, or vexations appeals so as to decongest its cause list particularly where the appeal is intended to overreach or deny the respondent the enjoyment of the fruits of the judgment in his favour by the lower court.

In short, I find no merit in the issue raised by counsel for appellants and consequently resolve same against the appellants.

In conclusion, the sole issue haven been resolved against appellants, it is clear and I hereby hold that the appeal is grossly without merit and is consequently dismissed by me. It is further ordered that the judgment of the lower court entered on the 12th day of May, 2008 be and is hereby affirmed with N50,000.00 (Fifty Thousand Naira) costs against the appellants.

S.C 329/2009