Fermab Chemicals Limited V. Marine Inspection Services (Nig) Ltd. (2008)

LawGlobal-Hub Lead Judgment Report

HON. JUSTICE R.C. AGBO, J.C.A.

This court, according to the appellant, on 18/1/07 struck out its appeal No. CA/L/359/05 for want of prosecution. The appellant/applicant thereafter filed this application seeking the following orders:-

(a) Relisting onto the cause list the above appeal struck out on 18th January 2007.

(b) Extending the time within which the appellant may file its brief of argument in this appeal.

The application which is by motion on notice is supported by a short 12 paragraph affidavit in support which bears reproduction and is reproduced hereunder:-

“I Jesse Johnson, male, Nigerian, Litigation Clerk, residing at No. 15, Seriki Aro Avenue, Ikeja, Lagos State, make Oath and state as follows:

1. I am a Litigation Clerk in the Chambers of M.A. Apampa & Co., Legal Practitioners to the Appellant herein.

2. On the 27th of February 2006, this Honourable Court granted the appellant a departure from the rules’ so that its appeal may be considered on the bundle of papers compiled by it and marked EXHIBIT XXY annexed to the motion on notice dated 1st July, 2005,

3. The time allowed the appellant for filing of its brief by Order 6 Rule 2 of the Court of Appeal Rules, 2002 is SIXTY (60) days, i.e. up to the end of April, 2006.

4. In mid-March 2006, the Chambers of M.A. Apampa & Co., Legal Practitioners to the appellant/applicant, relocated from its former address at No. 11, Seriki Aro Avenue, Ikeja, Lagos State, to its present location at No. 42, on the same Avenue, and in the process some files (including that involving the appeal herein) got into wrong jackets and shelves.

5. It was during the long vacation of 2006 while the chambers was over-viewing case files in the past year that the file relating to this appeal was recovered and the brief which had earlier been prepared by appellant’s counsel, MR. M.A. Apampa, was filed into court on the 14th of August, 2006.

6. On the 18th of January 2007, the appeal in this suit was listed before this Honourable Court which suo motu kindly drew the attention of counsel to the appellant to the brief dated 14th August 2006 being out of time for three (3) months. The afore-said brief was consequently struck out. And so too was the appeal on which it was founded.

7. The appellant and his counsel are willing desirous to prosecute this appeal but for the exigency of the relocation of the chambers which resulted in the misplacement of the brief earlier prepared for filing in March, 2006.

8. The default in the late filing of the former brief which has been struck out was that the chambers and not of the appellant who is willing and ready to prosecute this appeal.

9. Now shown to me and marked EXHIBIT JESS I annexed herewith is a copy of the appellant’s brief which will be filed into court as soon as this honourable court permits an extension of time for the filing of the same.

10. It will be in the interest of justice if the appeal herein is restored into the cause list so that this appeal may be determined on its merits.

11. It will be in the interest of justice if this honourable court grants this application as the respondent will suffer no injury thereby and may be compensated in costs.

12. And I make this Oath in good faith to the best of my information, knowledge and belief, and in accordance with the Oaths Act.”

The respondent filed no counter affidavit.

In arguing his motion, applicant’s counsel informed the court that his appeal was struck out pursuant to the provisions of Order 6 Rule 10 of the Court of Appeal Rules 2002. He accepts that under this rule, this court lacked the competence to relist the struck out appeal and the only option left the appellant in such a situation was to appeal. He however argued that the court struck out this appeal suo motu as there was no application from the respondent seeking the striking out pursuant to the clear provisions of Order 6 Rule 10. Therefore, he argued, the court acted without jurisdiction. Having acted without jurisdiction, that decision was a nullity and this court has the competence to revisit that order and relist the appeal.

The extant Rules of this court are the Court of Appeal Rules 2007.

Order 17 Rule 10 is in pari materia with Order 6 Rule 10 of the Court of Appeal Rules 2002 and is reproduced hereunder:

“Order 17 Rule 10. 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 may apply to the court for the appeal to be dismissed for want of prosecution. If the respondent fails to file his brief, he will not be heard in oral argument. Where an appellant fails to file a reply brief within the time specified in Rule 5, he shall be deemed to have conceded all the new points or issues arising from the respondent’s brief.”

As admitted by the applicant, where an appeal is dismissed pursuant to Order 6 Rule 10 now Order 17 Rule 10 for want of prosecution, this court lacks the competence to take an application to relist. The appellant can however exercise his right of appeal See Peak Merchant Bank Ltd v. Venture Trust Co. Ltd. Co. Ltd. (2007) 3 NWLR (pt.1021) 339, Kraus Thompson & Ors. v. N.I.P.S.S. (2004) 17 NWLR (pt 961) 44, Akujinwa v. Nwaonuma (1998) 13 NWLR (pt.583) 632 Babayaji v. Bida (1998) 2 NWLR (pt 538) 367 and Omoyinmi v. Ogunsiji (2001) 7 NWLR (pt.711) 149, He has admitted his appeal was dismissed for want of prosecution pursuant to Order 6 Rule 10 but argues that because there was no application by the respondent for the order of dismissal, the order is a nullity and can be revisited by this court. A nullity in law is a void act, an act which has no legal consequence. It is not only bad but incurably bad and can be set aside either by the court which gave it or by an appellate court. See Okafor V. A.G. Anambra State (1991) 6 NWLR (pt.200) 659 SC, UAC Ltd V. Macfoy (1961) 3 All E.R. 1169, Ogbu V. Urum (1981) 4 SCI, Nwosu V. Udeaja (1990) 1 NWLR (PT.125) 180; Where however a court has the competence to make an order but makes an erroneous order within jurisdiction, that order can only be reviewed by an appellate court. Sec Ibok V. Honesty II (2007) 6 NWLR (pt. 1029) 55. This court had the adjudicatory jurisdiction pursuant to Order 6 Rule 10 of the Court of Appeal Rules 2002 to make the order it made. The dismissal of the appeal for want of jurisdiction suo motu pursuant to Order 6 Rule 10 can at most constitute a procedural irregularity which the applicant can contest on appeal. The order is not a nullity and this court lacks the competence to review or ignore it. This application is struck out for want of competence.

There shall be no order as to costs.

Other Citations: (2008)LCN/2808(CA)