Securities And Exchange Commission & Ors V. Christopher Okeke (2018)
LAWGLOBAL HUB Lead Judgment Report
EJEMBI EKO, J.S.C.
On 29th March, 2013 the Appellants herein, who have brought the present application, filed their Notice of Appeal against the judgment of the Court of Appeal, Lagos Division, delivered on 29th January, 2013. The Record of Appeal was subsequently compiled and transmitted to the Court and the appeal duly entered on 31st December, 2013 – after Nine Months. Order 7 Rule 4(1) of the Supreme Court Rules, 1985, as amended, enjoins the Registrar of the Court below to compile and transmit record “within a period of not more than six months from the date of filing the notice of appeal.”
Order 6 Rule 5(1) (a) of the said Supreme Court Rules (hereinafter called “the Rules of this Court”) provides
The Appellant shall within ten weeks of the receipt of the Record of Appeal – file in the Court and serve on the Respondent a written brief being a succinct statement of his argument in the appeal.
The Appellants/Applicants had up to 15th March, 2014 10 weeks after 31st December, 2013, to file their brief of argument. They never did so. They also did not apply for
1
extension of time within which to file their brief of argument.
On 18th February, 2015 (a period of 13 months and 2 weeks i.e. after 54 weeks), this Court sitting in Chambers, suo motu dismissed the appeal No. SC.763/2013 for want of prosecution under Order 6 Rule 3(2) of the Rules of this Court, that provides
Where the Appellant has failed to file a brief within the period prescribed by this Order and there is no application for extension of time within while to file the brief, the Court may, subject to the proviso to Rule 9 of this Order, proceed to dismiss the appeal in Chambers without hearing argument.
The legislative intent for Order 6 Rule 3(2) of the Rules of this Court is the empowerment of the Court to take the initiative to clear its own docket of dormant or abandoned appeals in which the parties have lost interest. It is to decongest the cause list of such dead woods or moribund appeals. Order 6 Rule 3(2) empowers this Court to act suo motu to clear out abandoned appeals in order to decongest the Court.
On 10th May, 2017, about 27 months after their appeal was dismissed on 18th February, 2015 the Appellants brought
2
the instant application through their counsel Fidelis Oditah, QC, SAN, seeking the following reliefs –
- AN ORDER setting aside the decision of this Court given in Chambers on 18 February, 2015 in default of the Appellants’ Brief.
- AN ORDER restoring this appeal to the Court’s list for determination on the merits.
- AN ORDER enlarging time within which the Appellants/Applicants may file and serve the Appellants’ Brief of Argument for hearing on the merits.
- AN ORDER deeming the already filed and served Brief of Argument as properly filed and served.
- AN ORDER permitting the departure from compliance with the Rules of this Court and accelerating the hearing of the appeal.
ALTERNATIVELY,
- AN ORDER extending the time within which the Appellants/Applicants may seek leave of this Honourable Court to appeal against the Judgment of the Court of Appeal, Lagos Division in Appeal No. CA/I/13/2009 delivered on 29th January, 2013 by Amina Augie, JCA, lbrahim Musa Saulawa, JCA and S.D. Bage, JCA.
- AN ORDER granting leave to the Appellants/Applicants to appeal against the judgment of the Court of Appeal, Lagos Division in Appeal No.
3
CA/I/13/2009 delivered on 29th January, 2013 by Amina Augie, JCA, lbrahim Musa Saulawa, JCA and S. D. Bage, JCA.
- AN ORDER for the extension of the time within which the Appellants/Applicants may appeal the Judgment of the Court of Appeal, Lagos Division in Appeal No. CA/L/I3/2009 delivered on 29th January, 2013 by Amina Augie, JCA, lbrahim Musa Saulawa, JCA and S. D. Bage, JCA.
The application was upon the following grounds:
a. On 18 February, 2015, this Court struck out this appeal on the grounds that the Appellants had failed to file their Brief of Argument as required by this Court Rules.
b. As the apex Court, this Court has inherent powers to set aside its own default judgment given in default of Appellants’ Brief and hear the Appeal on the merits.
c. Courts are reluctant to visit the mistake of Counsel on the client especially in matters which concern the protection of the public interests such as are raised in this appeal.
d. This appeal raises very important question of Constitutional and regulatory law, including the following: first, the extent to which the First Appellant can exercise its
4
statutory powers under the Investments and Securities Act 2007 (“lSA”) to protect the investing public and other users of Nigerian Capital Markets in view of Section 251(1)(e) of the 1999 Constitution; and, second, the extent to which the First Appellant can apply the administrative sanctions stipulated in the ISA and in the ISA and in its own Rules and Regulations against defaulters, in the light of this Court’s decision in the line of cases exemplified by Garba v. University of Maiduguri (1986) 1 N.W.L.R. (Pt. 18) 550 that an administrative tribunal cannot sanction in respect of conduct which constitutes a crime, given that almost all violations of the ISA and the rules and regulations made thereunder constitute crimes under the general law. These and other important issues of constitutional and regulatory law deserve to be heard on the merits.
e. The decision anticipated in this appeal will develop and impact heavily on Nigerian constitutional and regulatory law and Nigerian Capital Market in which trillions of pension and other resources are now invested.
f. This appeal also presents this Court with a unique opportunity to clarify and develop the law on administrative
5
discipline and constitutional right to fair hearing given the growing role and significance of administrative institutions in service delivery in Nigeria.
g. It would be tragic for the users of Nigerian Capital Markets if this Court were to pass up the opportunity to decide this appeal on the merits.
h. The Respondent will not be prejudiced if this application were granted and this appeal heard on the merits. The Respondent does not appear to have been prejudiced by the unfortunate delay in filing this Brief. He did not apply to have this appeal struck out pursuant to Order 6 Rule 9 of the Supreme Court Rules, which is clear evidence that he was not prejudiced by the Appellants’ default in filing their Brief of Argument.
i. The Appellants are out of time to file and serve the Appellants’ Brief of Argument and this application is to enable the Appellants to properly file and serve their Brief.
j. The delay in filing and serving the Brief of Argument is due to mistake Appellants’ Counsel’s junior and the busy schedule of the Appellants’ Counsel.
k. The grant of this application will enable the Appellants/Applicants to effectively
6
prosecute the Appeal and further the public interest.
l. Alternatively, as a result of the grounds stated above, it has become necessary to seek leave of this Court to follow the correct procedure so as to give the Appellant opportunity for this Appeal to be determined on the merits.
The indubitable fact is that as at 18th February, 2015, when the appeal was dismissed for want of diligent prosecution, there was no application pending for extension of time within which the Appellants may file their brief of argument. It is admitted in paragraph 15 of the supporting affidavit inter alia that the appeal was dismissed “in chambers on 18th February, 2015, which was just over 10 months after the Applicants fell into default of filing the Brief.” It is further averred for the Applicants, as the Appellants, that “there was no application to this Court to exercise its powers to dismiss the appeal for want of diligent prosecution” and that there was no finding, in apparent misconception that the original proviso to Rule 9(1) of Order 6 is still extant, by this Court that this appeal on its face lacked merit such as to warrant
7
summary dismissal in Chambers for want of filing of the Appellant’s brief. I think I should point out, here and now, that by Government Notice No. 111 of 1991 the proviso to the Original Rule 9(1) of Order 6 of the Rules of this Court was deleted. What is now left of the said Rule 9 reads thus –
- If an Appellant fails to file and serve his brief within the time provided for in Rule 5 of these Rules, or within the time as extended by the Court, the Respondent may apply to the Court for the appeal to be struck out for want of prosecution. lf the Respondent fails to file his brief, he will not be heard in oral argument except by leave of Court.
With the 1991 amendment, therefore, the words: “subject to the proviso to Rule 9 of this order,” appearing in Order 6 Rule 3(2) of the Rules have clearly become otiose: the proviso to Rule 9 having been deleted.
Applicants counsel submitted three issues for the determination of this application. That is –
a. Whether this Court has jurisdiction to set aside its own judgment given on grounds of lack of diligent prosecution of appeal.
b. Assuming it has jurisdiction, whether this is an appropriate case in which the discretion
8
should be exercised in favour of the Appellants.
c. In the alternative, whether this Court has power to grant the trinity prayers sought by the Applicants as alternative reliefs.
The importance of issue 1 lies in the fact of its centrality in the application. The resolution of the issue, one way or the other, will materially impact on the remaining issues. The Applicants, through their Counsel, think that the order made on 18th February, 2015 dismissing their appeal for abandonment or want of diligent prosecution, upon invocation of Order 6 Rule 3(2) of the Rules of this Court, was a “default judgment.” They opine, on authority of U.T.C. v. PAMOTEI. (1989) L.P.E.L.R. – 3276(SC), that a judgment given against a party for failure to take a procedural step in the litigation is a mere default judgment, being not a judgment on the merits based on the determination of the legal rights of the parties either on law or facts. On the effect of an order of dismissal not on the merits: the order Applicants’ Counsel submits, is considered in law to be “a mere striking out.” The authorities cited for this submission include
9
PANALPINA WORLD TRANSPORT NIG. LTD v. J. B. OLANDEEN & ORS. (“PW1 case”) (2010) 4 C.L.R.N. 150 (SC); OBASI BROTHERS MERCHANT Co. LTD. vs. MERCHANT BANK OF AFRICA SECURITIES LTD (2005) ALL F.W.L.R. (Pt. 261) 216 at 231G; IHEAKWU v. NWANKPA (1966) N.S.C.C 83. An order, regarded not to be on the merits, but a mere default judgment, is liable to be set aside, Applicants’ Counsel submits relying on MOHAMMED v. HUSSEINI (1998) 14 N.W.L.R. (Pt. 584) 108(SC); EDE v. MBA (2011) 18 N.W.L.R. (Pt. 1278) 236 at 277E.
Let me reiterate one fact: at the time the appeal of the Applicant was dismissed on 18th February, 2015 there was no pending application for enlargement of time within which the Applicants, as the Appellants, may file their brief of argument. This much has been admitted by the Applicants in paragraph 15 of the supporting affidavit. This what distinguishes EDE v. MBA (supra) from the instant application, where prior to the date of the order dismissing the appeal, the Appellants had on 6th June, 1993 filed an application for enlargement of time within which to file their brief, and an order to regurlarise their brief already filed. The registry staff had not brought the fact
10
of the existence of this pending application to the attention of the Court. The party adversely affected having been denied fair hearing; the ensuing decision and order were set aside ex debito justitiae.
MOHAMMED v. HUSSEINI (supra) is also distinguishable. The trial Court, after entertaining and granting an oral application by the Plaintiff’s counsel to set the matter down for hearing in the absence of the Defendant, it proceeded to hearing of the matter the same day and entered judgment. The substantive suit was not on the cause list for hearing that day. What necessitated the setting aside of the default judgment was the failure to notify the other side that their matter had been set down for hearing. The case reported as (2005) 2 ALL F.W.L.R. (Pt. 261).
The issue in PANALPINA WORLD TRANSPORT NIGERIA LIMITED v. OLANDEEN & ORS. {supra) is that the trial Court having struck out PANALPINA WORLD TRANSPORT NIGERIA LIMITED as a defendant could subsequently be joined as a party to the appeal at the Court of Appeal which would have had the effect of taking away its accrued statutory right of defence in the matter.
11
The issue in OBASI MERCHANT Co. LTD. v. MERCHANT BANK OF AFRICA SECURITIES (supra) seems to be whether the earlier suit No. LD/3359/92 did operate as estoppel per rem judicatam. The said suit was struck out. That is the basis for the statement that it is erroneous to construe a mere striking out of a case on the basis that because the proponent of the action had become lethargic or non-chalant to prosecute the case and the Court relying on its inherent powers to strike out the case, it amounts to dismissal on the merit.
Lack of the foregoing cases was decided on its peculiar facts or circumstances and the Rules of those Courts regulating the practice and procedure of the various Courts. None of those Rules, my lords, is akin to or ipssissima verba with Order 6 Rule 3(2) Rules of this Court under which this Court proceeded on 18th February, 2015 to dismiss the Applicants’ appeal for want of diligent prosecution.
The deponent of the supporting affidavit avers in paragraph 15(c) thereat that “there was no application to this Court to exercise its powers to dismiss the appeal for want of prosecution on grounds of failure to file the Appellants’ Brief
12
within the time allowed by the Rules.” It is thus suggested, correctly, that this Court proceeded suo motu to dismiss the appeal. Implicit in this suggestion is invendo that the Court denied the Applicants the opportunity to be heard before it proceeded to dismiss the appeal. Order 6 Rule 5(1) of the Rules of this Court, I earlier reproduced, enjoins the Applicants, as Appellants, to file their brief of argument “within ten weeks of the receipt of the Record of Appeal.” The Record of Appeal was transmitted and the appeal was entered on 31st December, 2013. The Applicants admit that they had 10 weeks (i.e. up to 15th March, 2014) from the said 31st December, 2013 to file their brief of argument. The Applicants therefore had an opportunity, or were by Order 6 R 5(1) of the Rules given an opportunity, to file their brief of argument in their appeal. Appeals in this Court are heard on briefs of argument by which each party presents his
13
“succinct statement of his argument in the appeal”. A party who has been afforded an opportunity to present a succinct statement of his argument in the appeal and who, nonetheless, failed to utilise the opportunity to be heard in the appeal cannot complain that he was denied his right to fair hearing: OBA JACOB OYEYIPO & ANOR v. CHIEF J.O. OYINLOYE (1987) 1 N.W.L.R. (Pt. 50) 36 (SC); (1987) 2 S.C.N.J. 53.
A party in litigation who throws away or wastes an opportunity to be heard cannot be heard to complain that his right to fair hearing, guaranteed by Section 36(1) of the 1999 Constitution, as amended, has been breached: JAMES EKREBE v. EFEIZOMOR & ORS. (1993) 7 N.W.L.R. (Pt. 307) 588 at 601; KADUNA ILES LTD. v. UMAR (1994) 1 N.W.L.R. (Pt. 319) 143 at 159. Thus, as Mohammed, JCA (as he then was) put it in ODU’A INVESTMENT Co. LTD v. JOSEPH TAIWO TALABI (1997) 10 N.W.L.R. (Pt. 523) 1 at 51; such a party would be deemed to have waived his right to be heard in the matter and cannot be heard to complain afterwards of any denial of fair hearing which he, himself, had refused to take. See also MAGNA MARTIME LTD. v. OTEJU (2005) 22 N.S.C.Q.R. 395. In the circumstance the
14
rule should be volenti nou fit iniuria.
Ordinarily, the violation of the rule of fair hearing renders the proceedings null and void. The decision of Court in the circumstance, not being on the merits, is liable to be set aside: MOHAMMED v. HUSSEINI (supra); EDE v. MBA (supra). The situation, however, is different where a party who has an opportunity to present his case decides, neglects or refuses to present it or utilise the opportunity given to by law to present his case. A party, like the Applicants herein, who has failed to neglected to submit his case or appeal for consideration cannot complain of a denial of fair hearing, such a failure tantamounts to an abandonment of the appeal: OYEYIPO v. OYINLOYE (supra). The service of the record of proceedings or the Record of Appeal on the Appellant is notice to him, under Order 6 Rule 5(1) of the Rules of this Court, that he must set down his argument in the appeal in writing within 10 weeks from the moment the Record of Appeal was served on him: OYEYIPO v. OYINLOYE (supra) per Obaseki, JSC.
The Rules of this Court made by the Chief Justice of Nigeria pursuant to Section 236 of the 1999 Constitution.
15
When, therefore, the Rules, likeOrder 6 Rule 5 thereof, set the period for filing briefs as succinct statement of the party’s argument in the appeal. It serves dual purpose of a party in the appeal an opportunity to present his argument in the appeal, as well as setting a time table for the presentation of the argument in the appeal. Section 36(1) of the Constitution prescribes that a party in litigation be given a fair hearing, which includes an opportunity to present his case, within a reasonable time. The time element in fair hearing guarantee in the Constitution is what prompted lkyegh, JCA, in BRITISH AMERICAN TOBACCO (INVESTMENT) LTD v. A.G. OGUN STATE (2011) L.P.E.L.R 3891 (CA) to state and I agree with him “for Courts of Law time is very important because litigants go to Court expecting quick results from fair and expeditious determination of their disputes, so it is imperative for the Court to be in control of time and to manage it prudently,” for the purpose of the determination of matters before them within a reasonable time.
Order 6 Rule 3(2) of the Rules of this Court provides sanction against the Appellant who has failed, neglected or
16
to file his brief of argument within 10 weeks of the receipt of the Record of Appeal, as stipulated by Order 6 Rule 5(1). The sanction under Order 6 Rule 3(2) is quite distinct from the sanction under Order 6 Rule 9. The extant Rules of this Court, as amended in 1991 provides in Order 6 Rule 9 thus –
If the Appellant fails to file and serve his brief within the time provided for in Rule 5 of these Rules, or within the time as extended by the Court, the Respondent may apply to the Court for the appeal to be struck out for want of prosecution. If the Respondent fails to file his brief, he will not be heard in oral argument except by leave of Court.
I had earlier reproduced Order 6 Rule 3(2). The full panel of this Court in CHIME v. UDE (1996)7 N.W.L.R. (Pt. 461) 379, drawing the distinction between Order 6 Rule 3(2) and 9 states, per Ogundare, JSC, at page 419 –
Rule 9 provides for a situation where an application is made to the Court by a Respondent who alleged that the Appellant has failed to file serve his brief of argument in time. Rule 3(2) deals with a completely different situation where the initiative is taken by
17
the Court itself. And the Court will normally take the initiative where the appeal has become dormant and the Parties have lost interest in it and there is need to decongest the cause list of such deadwoods. The two rules are clear and unambigous – Where the Appellant is in default and has failed to apply for extension of time, the Respondent may apply that the appeal be struck out for want of prosecution (Rule 9). Where, however, the Appellant is in default and neither party makes any more, the Court may dismiss the appeal for want of prosecution (Rule 3(2). – The appeal having been dismissed under Rule 3(2) of Order 6, this Court has no jurisdiction to set aside that Order and restore the appeal to the cause list.
In this authoritative pronouncement this Court cited with the approval its earlier decisions in OYEYIPO v. OYINLOYE (supra); IRO OGBU v. URUM (1981) 4 SC 1, YONWUREN v. MODERN SIGNS (NIG). LTD (1985) 1 N.W.L.R. (Pt.2) 244.
The submission for the Applicants that the judgment of this Court on 18th February, 2015 was not on the merits, but based on failure to file Appellants’ Brief of Argument, itself a procedural stop which can be set
18
aside, does not address the effect of Order 6 Rule 3(2) read together with Order 8 Rule 16 of the Rules of this Court. Order 8 Rule 16 provides –
The Court shall not review any Judgment once given and delivered by it save to correct any clerical mistake or some error arising from accidental slip or omission, or to vary the judgment or Order so as to give effect to its meaning or intention. A judgment or Order shall not be varied when it correctly represents what the Court decided nor shall the operative and substantive Part of it be varied and a different form substituted.
The instant application has not been brought under the “slip-rule” or the exceptions under Order 8 Rule 16. It has also not been brought under the Court’s inherent power to set aside a judgment of its own that is a nullity. This Court, like any other Court of record, can ex debito justitiae set aside an order which is made ultra vires or without jurisdiction, the order being a nullity: MENAKAYA v. MENAKAYA (2001) 16 N.W.L.R. (Pt 738) 203; IGWE v. KALU (2002) 14 N.W.L.R. (Pt. 787) 435; OLORUNFEMI v. ASHO (2000) 2 N.W.L.R.(Pt. 643)143; OGUEZE v. OJIAKO (1962) 1 S.C.N.L.R. 112.
19
This application has not been brought on any of these grounds.
It needs only to be stressed that the Rules of Court are statutory instruments, deriving their legitimacy and efficacy directly from the Constitution. They are meant to be obeyed. When they are not obeyed, the Court cannot remain passive and helpless. It must sanction the non-compliant party, otherwise the purpose of its enactment will be defeated. The party who fails to obey the Rules of Court must bear the consequences of his failure: OWNERS OF “MV” ARABELLA v. N.A.I.C. (2008) 4 SC (Pt. 2) 189 at 205- 206; RATNAM v. CUMARASAMY (1965) 1W.L.R. 8.
The undisputed facts in this application remains that were over 54 weeks after receipt of the Record of Appeal the Applicants herein, as Appellants, failed or neglected to file their brief of argument as required by Order 6 Rule 5(1) of the Rules of this Court. When an Appellant fails to file his brief the presumption is that the appeal has been abandoned and it becomes liable to be dismissed: OYEYIPO v. OYINLOYE (supra); CHIME v. UDE (supra). See also ADERIGBIGBE v. TIAMIYU (2009) 10 N.W.L.R. (Pt. 1150) 592;
20
AKIBU & ORS. v. ODUNTAN (2000) 7 S.C.N.J. 189; SPARKLING BREWERIES v. U.B.N. (2001) 7 S.C.N.J. 321; CORNELIUS LTD v. EZENWA (1996) 4 S.C.N.J. 123; NKEDO v. OBIENO (1997) 5 S.C.N.J. 33.
From all I have said above, my conclusion from the decision of the full panels of this Court in OYEYIPO v. OYINLOYE (supra), CHIME v. UDE (supra) is that an appeal dismissed under Order 6 Rule 3(2) of the extant Rules of this Court, cannot be relisted or restored to the cause list. The order dismissing an appeal for failure to file brief of argument is an order on the merits and the Supreme Court by dint of Order 6 Rule 16, Supreme Court Rules, 1985, as amended, cannot review its own judgment or order except under the “slip-rule” or under its inherent powers to set its judgment or order that is manifestly a nullity.
Accordingly, an appeal dismissed under Order 6 Rule 3(2), as the instant appeal, cannot be relisted. The dismissal order is final: ALLI v. AYINDE (2010) ALL F.W.L.R (Pt. 540) 1315 at 1358; KRAUS THOMPSON ORGANISATION v. N.I.P.S.S. (2004) 17 N.W.L.R. (Pt.901) 44.
There is no cause shown for me to grant this application. I find no substance in it, and it is accordingly refused and
21
dismissed. The order made in Chambers on 18th February, 2015, dismissing the Applicants’ appeal remains inviolate.
Costs at N500,000.00 shall be paid to the Respondent by the Appellants, jointly and/or severally.
SC.763/2013(R)
