Alhaji Idrisu Ichado V. Musa Apeh (1992)
LawGlobal-Hub Lead Judgment Report
OKEZIE, J.C.A.
This appeal comes before the court in circumstances which call for consideration in this judgment.
The appellant who was plaintiff in the Upper Area Court Benue State filed an action against the defendant now respondent in this court and claimed as follows:
- A declaration of title to a piece of land known and called ‘Ofabo Ogebe Ankpa’ situate at Angwa Ogebe Ankpa Benue State.”
At the hearing the contention was that the appellant sued the defendants in several courts and Exhibits A – 1 had clearly shown that the parties, issues and the subject-matter of the present suit were the same as those in the earlier cases in Exhibits A-1.
The trial Judge accepting these contentions held on the 8th January, 1988 that the appellant’s claim was caught by the plea of res Judicata and dismissed it.
Being dissatisfied the appellant appealed to the High Court sitting in its appellate jurisdiction which upheld the trial court’s judgment and dismissed the appeal on the 23rd, November, 1988. On the 23rd, December 1988, Notice and three Grounds of appeal were filed. The records of appeal were received in the Court of Appeal on the 4th, April 1989. The appe1lant was served with Notice of Appeal and proceedings on the 24th, April, 1989. On the 16th January, 1990, the appellant’s counsel was duly served with Hearing Notice of the appeal listing the case, the date fixed being the 19th, March 1990. The appellant failed to appear at the hearing. No reason was adduced or given for his absence. Consequently the Court of Appeal dismissed the appeal for want of prosecution as the appellant was served with the Hearing Notice.
The appellant decided to apply for leave to have the appeal relisted for hearing and to enlarge the time to file his brief. On the 17th April 1990 he filed a notice of motion praying the court for an order:
(i) To relist Appeal No. CA/J/70/89
(ii) To enlarge the time for the applicant to file his brief of argument in Appeal No. CA/J/70/89
(iii) To deem the proposed brief of argument herein annexed properly and duly filed and
(vi) Such further order or other orders as this Honourable Court may deem fit to make.
The application is supported by a 24-paragraph affidavit sworn by the appellant and a further affidavit evidence of 9 paragraphs sworn by one Friday Daniel Itodo, a clerk to the appellant’s counsel.
The respondents did not file any counter-affidavit.
The appeal No. CA/70/89 was listed and filed for hearing before the Court of Appeal on the 19th, March 1990; that the appellant defaulted in appearance as required by Order 3 Rule 25(i) of the Court of Appeal Rules 1984 as amended, and that in the absence of the appellant and his counsel, the appeal was dismissed for want of prosecution.
It is quite clear from the facts deposed in the affidavits that the appellant defaulted in appearance within the day fixed for the hearing of the appeal. He was served with the Notice of Appeal and proceedings in the case. He accepted responsibility for the failure to instruct his counsel about it as he was an illiterate.
The only document he was eager to be served with was the Hearing Notice which was not served on him personally but on his counsel. It was after the appeal was dismissed and a copy of the ruling brought to his Notice that he knew the Hearing Notice had been served on his counsel.
At the hearing the appeal was dismissed for want of prosecution. This so far is the background that led to the present application before us.
In his oral submission Mr. P.A. Akubo counsel to the appellant referred to the prayer sought (already reproduced above) and in support of his argument he relied on Order 3 Rule 20(4) and 25(2) of the Court of Appeal Rules 1984 and section 6 (6) of the 1979 Constitution of the Federal Republic of Nigeria. It was argued by learned counsel that the motion was supported by the applicant’s brief of argument and the Order of the Court. He cited Alhaji Kubri v. Mariam Tar & 3 Ors. (1989) 1 EPLR p.11 at p.12(which could not be verified because such authority was not made available to the court).
In his own reply Mr. James learned counsel to the respondent argued that the Order which the appellant relied upon is not proper before the Court as the appeal was dismissed under Order 3 Rule 25(1) of the Court of Appeal Rules. Learned counsel referred to Exhibit B and submitted that notice was duly served on the appellant and he failed to appear. He submitted that the Order 3 Rule 25(2) is inapplicable and that being so the Court has no jurisdiction to hear it.
It is necessary to set out the provisions of the rules under which the application is brought:
Order: 1 Rule 25
“25(1) If the appellant fails to appear when his appeal is called on for hearing and has not taken action under Rule 24 of this Order, the appeal may be struck out or dismissed with or without costs.”
Order 3 Rule 25
“25(2) When an appeal has been struck out owing to the non-appearance of the appellant the Court may, if it thinks fit, and on such terms as to costs or otherwise as it may deem just, direct the appeal to
be re-entered for hearing.”
Order 3 Rule 20
“20(4) An applicant whose appeal has been dismissed under this rule may apply by notice of motion that his appeal be restored. Any such application may be made to the court and the court may in its discretion for good and sufficient cause order that such appeal be restored upon such terms as it may think fit.”
The respondent’s counsel in my judgment has rightly submitted that the rules relied upon by the appellant are inapplicable and that being so the Court has no jurisdiction to hear it. The appellant’s appeal was not dismissed for non-compliance with the conditions of appeal to enable the appellant invoke the Courts exercise of its power under Order 3 Rule 20(4). Similarly the appellant’s appeal was not struck out for non-appearance to enable the appellant invoke the Court’s exercise of its discretionary power under Order 3 Rule 25(2).
What then is the applicable rule under which the Court can act to order the appeal dismissed for non-appearance of the appellant to be re-listed for hearing.
The jurisdiction of the Court of Appeal to order that the appeal be relisted for hearing is precisely defined by statutes and statutory Rules. In the absence of any provisions in the Rules, the Court cannot alter a decision or Order made by the Court. Therefore it is unable to entertain the application.
Consequently when the question arises as it arises in this case, is whether the Court is competent to entertain the application.
The Court of Appeal in dismissing the appeal for non-appearance of the appellant acted under the provisions of Order 3 Rule 25(1) of Court of Appeal Rules 1981 which provides:
“If the appellant fails to appear when his appeal is called on for hearing and has not taken action under Rule 24 of this Order, the appeal may he struck out or dismissed with or without costs.”
The appearance of appellant is an important aspect in our rules of Court.
Where before hearing the appeal a declaration in writing is filed by a party that he does not wish to be present or by legal representative on the hearing of the appeal, he shall serve a copy of such declaration upon every other party and thereupon the appeal shall be dealt with as if the party had appeared. See Order 3 Rule 24. Before taking action under Order 3 Rule 25(1) the Court must have regard to the provisions of Order 24.
Under Order 3 Rule 25(1) the Court of Appeal Rules 1981, the Court is empowered to dismiss an appeal for non-appearance when it is called for hearing and the appellant fails to appear. In the event of such dismissal there is no provision made for it to be re-listed for hearing.
The effect is that there being a subsisting judgment against the appellant, the dismissal for non-appearance in such a case under the present rules in force gives the Court no discretion to interfere with its judgment.
It has been brought to my knowledge that since the order of dismissal was made by the Court, the judgment has been drawn up, signed and sealed. Since the judgment of the Court has been made effective then the Court cannot re-open the matter and cannot substitute a different decision in place of the one which has been recorded.
In the reserved judgment of the Court of Appeal in England which was delivered by Hudson L.J., in the case of Thynne v. Thynne (1955) 3 All E.R. p.129 at p. 146; he said:
“Where the Court has made an order it intended to make, the judgment must stand until set aside on appeal or by action brought for the purpose. The Court cannot otherwise eat its own words simply because the evidence on which it acted is shown to be wrong, whether the error is brought about deliberately or by accident. To amend the petition on which the decree was pronounced must make it appear as if the petitioner had presented a case different from that which she actually put forward at the hearing, Judgment having been given, I think it is too late for such an amendment. .
The application of the respondent for leave to appeal cannot be entertained. ”
The judgment of the Court after it had been entered in the record of the Court and drawn up, the inherent jurisdiction of this Court under section 6(6)(a) of the Constitution cannot be invoked to alter a decision or order made which it has pronounced. This Court is therefore incompetent to order that the appeal be relisted for hearing. R. v. Daniel (1977) 1 All E.R. 620.
It is on record that the appellant was served with Hearing Notice of the appeal fixed for the 19th March, 1990 through his counsel who accepted service on his behalf. The predicament now facing the appellant cannot be attributed to the fault of his counsel alone. The appellant equally shares a substantial part of it. He made no effort to instruct his counsel between the period he was served with the record of proceedings and the date the appeal was fixed for hearing. There is no reasonable explanation proffered and it therefore seems to me that if there was anyone to blame it is the appellant for not showing diligence in the prosecution of his appeal.
The non-appearance in Court of the appellant coupled with his failure to file his brief of argument is to say the least an abandonment of his appeal without excuse at the time of hearing.
In Regina v. Medway (1976) 2 WLR 528, where the Court of Appeal in England consisting of five Judges (Lord Widgery, C.J; Stephenson L.J; O’ Conner, Lawson and Jupp J.J.) dealt with an application for leave to withdraw notice of abandonment of leave to appeal, the application was dismissed for lack of jurisdiction to grant leave, Lawson, J. reading the judgment of the Court in which he reviewed all the previous authorities, said at page 545:
“The answer to the first question which we have to decide depends upon whether alongside the jurisdiction which undoubtedly as all authorities show, exists to give leave to withdraw an abandonment where it is shown that circumstances are present which enable the Court to say that the abandonment should be treated as a nullity, there co-exists an inherent jurisdiction, in other special circumstances, enabling the Court to give such leave. We are satisfied and hold that there is no such jurisdiction. In our judgment the kernel of what has been described as the “nullity test” is that the Court is satisfied that the abandonment was not the result of a deliberate and informed decision; in other words, that the mind of the applicant did not go with his act of abandonment. In the nature of things, it is impossible to foresee when and how such a state of affairs may come about, therefore it would be quite wrong to make a list under such headings as mistake, fraud, wrong advice, misrepresentation and such like, which purports to be exhaustive of types of case where this jurisdiction is exercised. Such headings can only be regarded as guidelines, the presence which may justify its exercise. As we have said at the outset, the jurisdiction of this Court and of its predecessor is based upon statute and we have been referred to and found no authority to support the existence of a parallel inherent jurisdiction. Indeed the authorities to which we have been referred with the possible exception of Lord Reading C.J.’s observation in Rex v. Pitman (1916) 12 CR App.R 14 support only the proposition that the inherent jurisdiction to regulate proceedings before the Court can come into operation where in cases of statutory jurisdiction there is a lis extant before the Court upon which that inherent jurisdiction can operate. It follows that we hold that Reg v. Wilkinson (unreported) May 20, 1975 and all such other cases as may be cited in support of the existence of such parallel inherent jurisdiction were wrongly decided.”
See also the case of Chief Iro Ogbu & 3 Ors. v. Chief Ogbaru Urum (1981) 4 S.C.1.
As already stated in this judgment, the jurisdiction of the Court is based, upon statute, the 1979 Constitution, the Court of Appeal Act 1976 and the Court of Appeal Rules 1981, the inherent jurisdiction regulate proceedings before this Court arises only where there is a lis extant before this Court upon which the inherent jurisdiction can operate.
See Chief Iro Ogba & 3 Ors. v. Chief Ogbaru Umm (supra)
In this application resort cannot be had to section 6(6)(a) of the Constitution which reads as follows:-
“The judicial powers vested in accordance with the foregoing provisions of this section.
(a) Shall extend, notwithstanding anything to the contrary in this Constitution, to all inherent powers and sanctions of a Court of Law.”
as an authority for the exercise of jurisdiction to set aside an order of dismissal of an appeal for non-appearance at hearing.
Finally, I would adopt with approval what the Supreme Court held in the case of the Ministry of Lagos Affairs, Mines and Power and Another v. Chief O.B. Akin-Olugbade and Another (1974) 11 S.C. at page 19.
“Since the 1963 Constitution abolished (Sec. S. 120) any further appeal from the Supreme Court which is now the final Court of Appeal, there is no reason why we should continue to regard it as the equivalent of the English Court of Appeal. Its relative equivalent is either the House of Lords as the final Court of Appeal for British Courts or Her Majesty’s Committee of the Privy Council as the final Court of Appeal for colonial Courts. It is, therefore, necessary to construe our Order 0.7, r.29 in the light of this changed constitutional situation, so as to achieve a result which is in consonance with the law and with commonsense. For, were we to accept the submission of counsel for the applicants that we can exercise jurisdiction to entertain these motions to look into complaints about the law or the fact in the judgment being attacked, there would be no finality about any judgment of this Court and every disaffected litigant could bring further appeals, as it were ad infinitum. That is a situation that must not be permitted.
In this connection, we would draw attention to the unreported case of Patrick J. Osoba v. The Queen FSC 141/1951 decided by this Court on May 19, 1961(1961)1 SCNLR 320, which though a criminal case, was probably the first of its kind to be brought asking the Federal Supreme Court to review an earlier decision. In refusing to entertain the motion, the Federal Supreme Court, said inter alia:
‘Mr. Khamiatta has suggested that as a result of section 110 of the Constitution of the Federation the Court has an inherent power to prevent a miscarriage of justice by making whatever order justice may require even at this stage, but the Court is not entrusted by the Constitution with any general supervisory functions, and in the exercise of its appellate jurisdiction it is bound by the ordinary restrictions on the setting aside of a judgment once pronounced and perfected.
We will decide what powers the Court possesses in relation to a judgment obtained by fraud, such as was said to have occurred in Flower v. Lloyd, when the case arises. This is not such a case, and no circumstances are alleged which would justify the Court either in treating its previous decision as a nullity or in assuming power to set it aside.’
See also the Ampthill Peerage (1977) A.C.547 at p. 594. Owanugbemi Okorodudu & 2 Ors. v. John Anewe Omagbemi & 2 Ors. S.C. 33/1976 of 14th December, 1977.
In my opinion this Court has no inherent jurisdiction to alter a decision or Order made by the Court. I would dismiss the application.
The application of the appellant for leave to re-list the appeal for hearing cannot be entertained. I make no order as to costs.
Other Citations: (1992)LCN/0122(CA)
