Inspector-general of Police & Anor V. Awuru Gloria & Anor (2009)
LawGlobal-Hub Lead Judgment Report
ABDU ABOKI, J.C.A.
The Appellants/Applicants brought an Application under the Rules of this Honourable Court seeking the following reliefs:
“(a) An order of Court re-listing the appeal which was struck out on the 21st November 2007for want of diligent prosecution.
(b) And for further order(s) as the Honourable Court may deem fit to make in the circumstances. ”
The fact of this case is that the lower Court on the 13th day of July, 2007 transmitted the Record of Appeal containing two Notices of Appeal to this Court.
About a period of more than 3 months after transmission, the Appellants/Applicants had not filed their Appellants’ Brief of Argument, the 1st Respondent applied to this Honourable Court praying for the striking out or dismissal of the appeal on the grounds that the Appeal did not arise from any decision of the lower Court, that the Record of Appeal contained two Appeals from different proceedings and that the Appellants have not filed Brief of Argument within the time stipulated by the Rules of this Court. Consequent upon the Application, the Appeal was struck out on the 21st day of November, 2007. Appellants/Applicants’ Counsel alleges that before he could study and appreciate the Record and prepare his Brief of Argument, he lost his Uncle and had to travel home to make arrangements for the burial and that on his return, he had serious eye problem and was by then out of time. Appellants/Applicants instructed their Counsel to seek leave of this Honourable Court to re-list the Appeal and also to file Brief of Argument out of time.
Six issues are distilled on behalf of the Appellants! Applicants for the determination of this Application and they are as follows:
“1. Whether there are sufficient materials before the Court to enable it consider this application in favour of the Appellants/Applicants.
- Whether the failure to file Brief of Argument within the time prescribed by the Rules is attributed to the Appellants/Applicants or to their Counsel based on the facts before the Court in this case.
- Does the ground of Appeal in this case show good cause why the Appeal should be heard?
- Can this Honourable Court grant this Application?
- Whether the Motion on Notice dated 24/10/2007 for the striking out/dismissal of the Appeal which was filed under the repealed Court of Appeal Rules 2002 was competent.
- Whether the transmission of the Notice of Appeal in respect of the Garnishee Proceeding along with the Record of Proceeding occasion a miscarriage of Justice.”
On behalf of the 1st Respondent, the following two issues are distilled for the determination of this Application as follows:
“1. Whether this Court has the Jurisdiction to grant the Application to re-list the Appeal.
- Whether if the Court has the powers to grant the Application, (not conceded) whether the Appellants/Applicants have adduced valid and good reasons to merit the discretion sought to be exercised in their favour. ”
I have carefully perused the Motion on Notice brought by the Appellants/Applicants, the Affidavit in Support of the Motion, the Counter Affidavit, the Further Affidavit, the Further Counter Affidavit, as well as the written addresses of Counsel and have come to the conclusion that the following issues are capable of determining this application. They are as follows:
“1. Whether this Honourable Court has the jurisdiction to grant this Application.
- Whether there are sufficient materials before the Court to enable it consider this Application in favour of the Appellants/Applicants. ”
Issue 1
“Whether this Honourable Court has the jurisdiction to grant this Application.”
Simon Lough, Counsel for the Appellants/Applicants submitted that this Honourable Court has been empowered by its Rules to re-list any Appeal struck out or dismissed for want of prosecution. He referred the Court to Order 8 Rules 20 Court of Appeal Rules.
Learned Counsel submitted further that the above provision of the Court of Appeal Rules gives the Court an unfettered power to restore or re-list any dismissed Appeal where good cause is shown and referred to the case of Akunjunwa v. Nwaonuma (1998) 13 NWLR Pt, 583 at 639.
He maintained that the implication of providing in the Rules for restoration of an Appeal dismissed or struck out is that the matter is regarded as having not been finally determined and can be re-adjudicated upon. Counsel referred again to the case of Akunjunwa v. Nwaonuma (supra) page 640 Ratio 10.
In his response, Edmund N. Anionwu Counsel for the 1st Respondent maintained that the Appeal was struck out for want of diligent prosecution under the consequential Order of Order 6 Rule 2 being Order 6 Rule 10 now Order 17 Rule 6 of the new Court of Appeal Rules 2007.
He submitted that the law is trite that where an Appeal is struck out under Order 6 Rule 10 of the Rules, it is a final decision and that the only remedy the Applicant has is to go on Appeal because this Court cannot revisit the issue. Counsel referred the Court to the cases of:
Lasisi Asalu v. Sule Dakan 26 NSCQR Pt. 2 Page 950 at Page 966;
Tsokwa v. UTC Nig. Ltd. (2002) 1 NWLR Pt. 666 Page 654 at Page 661.
Learned Counsel for the 1st Respondent further submitted that the Appellants/ Applicants appear to have confused or read the provisions of Order 8 Rule 20 out of con. He maintained that when read in con, Order 8 Rules 20 deals with failure to transmit the Records.
This first issue raised for determination challenges the jurisdiction of this Court to entertain this Appeal.
It must be pointed out that question of jurisdiction is so fundamental and critical to adjudication that any proceeding no matter how well conducted or brilliantly decided without jurisdiction remains a nullity. See Dapianlong v. Dariye (2007) 8 NWLR Pt. 1036 page 323; Umanah v. Attah (2006) 17 NWLR Pt. 1009 page 507; Nnonye v. Anyichie (2005) 2 NWLR Pt. 910 page 623.
The issue of jurisdiction can be likened to the heart in living creatures; where there is a total failure of the heart, the creature ceases to live as death occurs instantly.
In an Appeal, jurisdiction is the foundation upon which the entire Appeal stands. Thus, once the Respondent shows that the Court has no jurisdiction the foundation of the Appeal crumbles and that puts an end to the Appeal process.
The provision of Order 17 Rule 2 of the Court of Appeal Rules 2007 provides:
“2. The Appellant shall within forty-five 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 appeal.”
In the present case, the Appellants three months after the transmission of the Record of Appeal from the trial Court neglected to file their Brief of Argument in violation of the provisions of Order 17 Rule 2 of the Rules of this Court.
The 1st Respondent brought an Application on 21st November, 2007 for the Appeal to be dismissed.
Order 17 Rule 10 stipulates the consequences of failure to file Brief. It provides as follows:
“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… ”
A dismissal of an Appeal on the ground of non filing of Appellant’s Brief within the stipulated period amounts to dismissal on the merit. Such an Appeal cannot be revived or relisted by the Court as the Court is rendered functus-officio. See Olowo v. Abolare (1993) 5 NWLR Pt. 293 page 255; Babayo v. Bida (1998) 2 NWLR Pt. 538 page 367.
In Tsokwa v. U. T. C. (Nig.) Ltd. (2000) 7 NWLR Pt. 666 page 654 at 661, the Supreme Court in interpreting the provisions of Order 6 Rule 10 of the Court of Appeal Rules, 2002 which is in pari materia with the provisions of Order 17 Rule 10 of the Court of Appeal Rules, 2007, held inter alia:
“…there is no provision in Order 6 enabling relisting an appeal dismissed for failure to file an appellant’s brief of argument under Order 6 rule 10. Therefore, an appeal dismissed on the ground of the failure to file an appellant’s brief of argument is final. The appeal so dismissed cannot be revived.
In the instant case, the Court of Appeal was right in dismissing the applicant’s appeal on 23rd September, 1999, for want of diligent prosecution under Order 6 rule 10 of the Court of Appeal Rules and such dismissal is irreversible.
[Akunjunwa v. Nwaonuma (1998) 13 NWLR (Pt. 583) 632 at 643; Olowu v. Abolore (1993) 5 NWLR (Pt. 293) 255 referred to]”
The first issue for the determination of this Application is resolved in favour of the 1st Respondent.
Issue 2
“Whether there are sufficient materials before the Court to enable it consider this Application in favour of the Appellants/Applicants.”
Counsel for the Appellants, Simon Lough argued that to enable this Court considers their Application favourably, the Appellants/Applicants have placed before the Court the following materials:-
(i) Two Affidavit Evidence,
(ii) Record of Proceeding including the Judgment of the lower Court,
(iii) Brief of Argument,
(iv) Appellants/Applicants’ ground of Appeal as contained in the Notice of Appeal.
He referred the Court to the case of Iroegbu v. Okwordu (1990) 6 NWLR Pt. 159 Page 643 at 656 and submitted that the Notice and Grounds of Appeal aforesaid should be treated as the proposed Notice and Grounds of Appeal. Counsel further submitted that that being the case, the above materials are sufficient for the favourable consideration of this Application.
Simon Lough maintained that the two Affidavit Evidence deposed to by PC. Philip Tumba, Litigation Secretary, on behalf of and on the authority of the Appellants/Applicants’ Counsel was served with the Record of Proceeding, it became expedient for him to travel home to arrange for the burial of his uncle and even when he came back, he could not act immediately due to serious eye problems; And that the Appellants/Applicants’ Counsel did not file the Brief of Argument within the time prescribed due to inadvertence and unforeseen circumstances coupled with the health problem and pressure of work arising from his busy schedule.
Counsel submitted that the Appellants/Applicants acted timorously and with diligence in instructing their Counsel to file Notice of Appeal and transmit the Record of Appeal to this Court and are still very willing and anxious to prosecute this Appeal to finality.
He maintained that the failure to obtain leave to file Brief out of time and the absence of Appellants/Applicants and their Counsel in Court the day the 1st Respondent moved his Application to strike/dismiss this Appeal was not deliberate and was not caused by the Appellants/Applicants but by their Counsel who due to the pressure of work coupled with eye problem could not meet up with the time prescribed.
Counsel for the Appellants further submitted that the Motion on Notice of Appeal filed by the 1st Respondent was not received or served on the Appellants/Applicants or their Counsel whose address for service was provided in the Notice of Appeal and Record of Proceeding.
He referred the Court to the case of Atiku v. Yola Local Government (2003) FWLR Pt. 177 Page 837 at 841 where the Court of Appeal (los Division) proffered the guiding principles in granting an Application for re-listing a struck out suit.
Learned Counsel maintained that from the Affidavit Evidence placed before the Court, the reason for failure of the Appellants/Applicants to be in Court on the day the Motion for striking/dismissing the Appeal was moved are germane and cogent as the Appellants/Applicants were not served with the Motion on Notice hence they were not aware of the tendency of the Motion.
Simon Lough submitted that this was a deliberate ploy by the 1st Respondent for this Court to hear the Motion without the Appellants/Applicants being present. He further submitted that the main Ground of Appeal in respect of this suit is non- service of the process of Court; thus, it is characteristic of the 1st Respondent not to serve process of Court on Appellants/Applicants.
Simon Lough also pointed out that there was no delay in applying to this Court for re-listing this Appeal when Appellants/Applicants became aware that the Appeal was struck out.
He submitted that the Appellants/Applicants are therefore not in breach of the two conditions precedent to relist a struck out suit as enunciated in the case of Atiku v. Yola Local Government (supra).
Learned Counsel for the Appellants maintained that the delay in filing the Brief of Argument was not a sign of disrespect to this Court and it was not deliberate. He stressed that it was due to the facts contained in the Affidavit Evidence before this Court.
Simon Lough submitted that the claim by the 1st Respondent’s Counsel that the Appellants/Applicants’ Counsel was seen by them during the period is unfounded, an attempt to mislead this Court and should be discountenanced.
Learned Counsel further submitted that in a long line of cases, the Supreme Court has declined to punish a party or litigant for the errors, negligence and/or inadvertence of his Counsel. He maintained that the apex Court normally leans backward in the interest of justice and referred to the cases of: Lawrence Import Ltd. v. Jozebon (l985) 3 NWLR Pt. 83 page 429; Akinyede v. Appraiser (l971) All NWLR; University of Lagos v. Aigoro (l985) NWLR Pt. 1 Page 123 at 154; Ogbu v. Drum (l982) 4 SC Nneji v. Chukwu (l990) 7 NWLR Pt. 81 Page 184; CBN v. Ahmed (2001) 11 NWLR Pt. 724 Page 269 at 394; Iroegbu v. Okwordu (1990) 2 NWLR Pt. 159 Page 643 at 661.
Simon Lough referred the Court to the Appellants/Applicants’ Grounds of Appeal and maintained that live issues are placed before the Court.
He submitted that the grave and substantial points of law disclosed in the Grounds of Appeal, arise for consideration by this Appeal and that having regard to the Affidavit Evidence of the Applicants, this is a case in which the Court will exercise its discretion in favour of the Appellants/Applicants.
Learned Counsel further submitted that the grounds of Appeal in this case are substantial and revealed arguable grounds.
Simon Lough maintained that in pursuant of its intention to do justice as the Court of last resort, the Supreme Court has consistently maintained that the primary function of the Court is to do substantial justice between the parties and in that regard to decide every issue/case on its merit devoid of technicalities. He referred to the cases of: Okonje v. Odje (1985)10 SC 267; Nneji v. Chukwu (1988) 3 NWLR Part 88 Page 184 at 208.
In his response, Counsel for the 1st Respondent Edmund N. Anionwu submitted that assuming but not conceding that this Court has the powers to reverse itself, the Appellants/Applicants have failed to satisfactorily adduce valid and substantial reasons to merit the discretion which they are seeking from your Lordships.
He maintained that the reasons given for failure to file Brief of Argument are manifestly unsupportable. Counsel submitted that the Appellants/Applicants’ claim in their paragraphs 12 and 13 of Affidavit in support “that Counsel had an eye problem and was bereaved” is not supported by any medical evidence of the eye problem, time and dates of the burial to account for the 5 months default.
He argued that the receipt which they have attached to the further Affidavit marked “exhibit A” is not verifiable, may as well be for ornamental reasons.
Counsel argued that the Motion to re-list was filed on the 13th day of December, 2007 whilst the so called receipt is dated 4th June, 2008 and that there is also no letter or document to the effect that Counsel went on annual leave.
Edmund N. Anionwu stressed that they do not believe that it accord with reason that a man of the Appellants/Applicants’ Counsel standing, training and educational background as a lawyer would as first point of call to treat subject his eyes in a village (traditional treatment) for 5 months before resorting back to clinical treatment for his eyes.
Learned Counsel maintained that given the time lag, the Appellants/Applicants have not shown or justified why the matter was not assigned to another officer in the light of the fact that Mr. Simon Lough, Counsel handling the matter is not the only Counsel in the Federal Capital Territory Police legal Section.
Edmund N. Anionwu referred the Court to Paragraphs 13 and 14 of the Appellants/Applicants’ Further Affidavit and submitted that based on the averment contained therein, the failure to file Brief cannot be said to be mistake of Counsel but that of the Client (Appellants/Applicants). He maintained that from their averments, the Appellants/Applicants specifically briefed Mr. Simon Lough to handle this case and yet sent him on a cumulative annual leave without briefing another Counsel.
Counsel for the 1st Respondent argued that the Appellants/Applicants could have briefed even a Senior Advocate to conduct this case for them but they did not and neither did they write to inform them or this Honourable Court.
He further submitted that the Appellants/Applicants are government institutions and the practice in all government departments including the Nigeria Police is that where an officer has to take leave of absence from his duty for any reason, his schedule and duties are transferred to another officer. Counsel maintained that this is the standard and therefore the reasons given by the accused (sic) are not good enough.
Learned Counsel maintained that the argument that Appellants/Applicants’ Counsel was not personally served is strange and not required by the Law. He argued that the Appellants/Applicants are institutions and until now all correspondences, service of Court processes is usually at the Police Legal Section Department.
To further buttress the point that the Appellants/Applicants’ reasons for failure to file Brief is manifestly unsupportable, Counsel referred the Court to Appellants/Applicants’ deposition under oath in their paragraphs 12, 13 and 14 of their Affidavit in support that Counsel, Mr. Simon Lough was indisposed throughout the periods from July to November. He maintained that this is not true and in proof, he drew the Court’s attention to annexure Exhibit Simon Lough I, which is a public record of proceedings (CTC) covering the periods under review and which was obtained from High Court of the Federal Capital Territory presided over by Hon. Justice A.A.I. Banyoko.
Edmund N. Anionwu submitted that the Annexure Exhibit Simon Lough I show that the Counsel, Simon Lough was around throughout the said period appearing regularly in other Courts of this jurisdiction.
He further submitted that the Appellants/Applicants have in their Paragraph 14 of the Further Affidavit denied that Mr. Simon Lough was present in Court in the face of such staggering evidential material. Counsel maintained that in the light of this, the Court should hold that such a behavior, especially seeing that it is in the face of the Court, is totally unacceptable.
Counsel for the 1st Respondent submitted that this Court is required to weigh the consequences of granting this Application as granting it will prejudice and over reach the 1st Respondent.
Edmund N. Anionwu pointed out that the Appellants/Applicants’ Appeal was struck out on 21st November, 2007, the judgment sum which had been in Court custody was paid to the 1st Respondent on 3rd December, 2007, the Appellants/Applicants’ Motion to re-list was filed on 13th December 2007 and so the allegation that the Motion to re-list was pending is not true. He maintained that the implication is that the horse has already bolted and the stable door can no longer be shut.
Counsel for the 1st Respondent further pointed out that there are two Notices of Appeal contained in the Record of Appeal filed by the Appellants and which was transmitted to this Court without an Order for a departure from the Rules.
He maintained that he drew the attention of the Court of Appeal Registry to this issue vide a letter dated 9th July, 2007 and the Registry accordingly issued summons dated 10th July 2007 inviting Counsel to come and settle the records but the Appellants/Applicants’ Counsel did not turn up on the date and without further recourse to the Respondent went ahead to forward the Record to this Court. He stated that these facts are before this Court and are specifically Annexure A and B in their own Motion Application to dismiss dated 24/10/2007.
Learned Counsel submitted that this Application is an attempt to mislead the Court as it is hollow and lacks merit. He maintained that the Appellants/Applicants chose to treat this Court with levity, refusing/neglecting to diligently prosecute their Appeal and therefore should not be allowed to benefit from their own Laxity.
Having held that the dismissal of this Appeal is irreversible, discussion on this issue raised will amount to a mere academic exercise which this Court has no luxury of indulging in. See Governor of Kaduna State v. Dada (1986) 9 SC 11; Oyeneye v. Odugbesan (1972) 4 SC 244.
This Application lacks merit and is hereby dismissed. There shall be no order as to costs.
Other Citations: (2009)LCN/3356(CA)
