Alhaji Lasisi Asalu & Ors V. Fatai Sule Dakan & Ors (2000)

LawGlobal-Hub Lead Judgment Report

AKINTAN, J.C.A. 

 The applicants were the plaintiffs in an action filed at Abeokuta High Court in Ogun State as suit No. HCL/27/80, while the respondents were the defendants. Judgment was delivered in the suit on 6th November, 1985. The plaintiffs (now applicants) were dissatisfied with the judgment and they filed a notice of appeal against it at the said High Court registry. The appellants thereafter perfected all the conditions of appeal given to them. The respondents however filed a motion in this court dated 14th October, 1994, in which they prayed this court for the plaintiffs/applicants’ appeal be dismissed for want of prosecution.

The applicants opposed the motion and to that end, they filed a counter-affidavit. The application was given suit No. CA/I/108/90 and it was taken and granted by this court on 17th November, 1994. The applicants have now filed the present motion dated 1st February, 1996 and filed on 2nd February, 1996. They are praying the court for the following reliefs:
“(1) An order setting aside the ruling of this Honourable court dated 17th November, 1994, in these proceedings.
(11) An order restoring and/or validating the appeal in suit No.HCL/27/80 between the parties herein, that is, Alhaji Lasisi Asalu & Ors. v. Fatai Sule Dakan & 6 Ors.”

The motion was supported by an 18-paragraph affidavit to which a number of documents were attached as exhibits. It was opposed by the respondents and to that end a 14-paragraph counter-affidavit was filed. Two documents were also attached as exhibits.
The applicants’ case, as set out in the affidavit evidence and in their brief filed in this court, is that as at the time the motion to dismiss the appeal for want of prosecution was filed, argued and granted the record of appeal was yet not ready and as such it was premature to say that the applicants claimed that after perfecting the conditions of appeal given to them, they were yet to be notified by the registry of the lower court that the record of appeal was ready. In fact, it was deposed in paragraphs 14 and 15 of the affidavit in support that the record was yet to be compiled and transmitted to the court as at the time the motion for dismissal of the appeal was taken and granted. It was also averred that the suit No. CA/I/108/90 given to the motion was meant for another appeal, which had been determined by the Court of Appeal.

Among the documents attached to the affidavit in support of the motion, are copies of three letters written by Lateef O. Fagbemi, a legal practitioner, engaged by the applicants, and the replies he received in respect of them. The first two of the letters, dated 30th January, 1995, were written respectively to the Registrar (Litigation), Court of Appeal, Ibadan; and the Registrar, Ogun State High Court, Otta.
In the letter written to the Registrar of this court, the learned Counsel wanted to know if there was any appeal with suit No.CA/I/108/90 with the parties as in the instant case. There was a reply to the said letter. The reply was signed by Mrs. C. A. Macarthy, for Deputy Chief Registrar. It was confirmed in the letter that, “the appeal bearing CA/I/108/90 was a matter that had been previously disposed of since 9th April, 1992. Also, the parties in respect of the appeal No. CA/I/108/90 are different from the parties in suit No.HCL/27/80.” It was also confirmed in the same letter that Suit No. HCL/27/80 is yet to be remitted to this Registry.

The reply received in respect of the letter the learned Counsel wrote to the registrar of the court in Otta was that the trial of the suit took place in Abeokuta before the Otta Judicial Division was created. It was therefore advised that all enquiry about the matter should be directed to Abeokuta High Court.
This led the same Counsel to write a letter to the Registrar of the High Court at Abeokuta. There was a reply from the registrar and it was dated 17th February, 1995.
The letter was signed by an Assistant Chief Registrar, Mr. M.A Quadri. The writer could not confirm if in fact record of appeal in question had been compiled. But it is stated therein that the exhibits tendered at the trial of the case were still with them at Abeokuta and that it was the practice to forward all exhibits to the Court of Appeal along with the record of appeal.

Based on the above facts disclosed by the applicants, it is submitted in the applicants’ brief that there was sufficient evidence to show that as at the time this court entertained that motion to dismiss the appeal for want of prosecution, it was not correct that the applicants in that motion had established that the record of appeal had ever been transmitted to this court.
Reference is made to Order 6 rule 2 of the Court of Appeal Rules, which provides, inter alia, that:
“The appellant shall within sixty days of the receipt of the record of appeal from the court below, file in the court a written brief…”
Also reference is made to Order 6 rule 10 of the same Court of Appeal Rules which provides inter alia that where an appellant fails to file his brief of argument within the time provided for in Order 6 rule 2 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.

It is submitted that a condition precedent to the exercise of the power of the Court of Appeal to entertain an application from the respondents herein to dismiss the appeal in suit No.HCL/27/80 had not been met and that this goes to the root of the competence of the court to entertain the application. It is further submitted that since it is clear from the evidence established in the instant case that the record of appeal had been compiled and transmitted to this court or served on the appellant before October, 1994, this court lacked jurisdiction to entertain the application because the condition precedent to the exercise of the court’s power to dismiss the appeal in the said suit No. HCL/27/80 did not exist. The decision of the Supreme Court in Adeigbe & Anor. v. Kusimo & Ors. (1965) 4 NSCC 188 at 19; (1965) 1 All NLR 248 was cited in support of this submission.

The Supreme Court had held, inter alia, in that case that a court is competent to entertain an action when the case comes before the court is initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of the court’s jurisdiction. It is therefore submitted that since the facts now show that the record of appeal in the case in question was transmitted to this court on 25th September, 1996 and the applicants, were served with their copy of the said record on 24th September, 1996, it was wrong of this court to have granted the application to dismiss the appeal made by the respondents.

The motion was opposed by the respondents and to that end; the respondents filed a 14-paragraph counter-affidavit. Two documents were attached to the motion. These are a copy of some pages of the record of proceedings of the case in question (Exh. A); and Ogun State Treasury receipt dated 27th September, 1990, for N304 issued in respect of the said record of appeal in suit No. HCL/27/80; Alhaji L. Asalu & Ors. v. F. S. Dakan & Ors. (Exh. B).

The respondents’ case as set out in the affidavit evidence as well as the respondents’ brief filed in this court, is that the respondents received and paid for their copy of the record of appeal on 27th September, 1990. They were issued with Ogun State Treasury receipt No. B849335 of same date for the N304 they paid for their copy of the record of appeal. They also claimed that from diligent enquiries made by the respondents, they found that the plaintiffs/applicants had collected their copy of the record of appeal sometime in 1990 and that the record had since been transmitted to this court. It was the Chambers of Chief Toye Coker, SAN, that settled the records on behalf of the appellant/applicants as that chambers also represented the applicants at the trial in the High Court.

The respondents brought their application for the dismissal of the appeal for want of prosecution on 14th October, 1994, which was about nine years after the settlement of record at the High Court Registry, Abeokuta; and four years after the respondents had obtained their copy of the record of appeal. The respondents’ motion for the dismissal of the appeal was opposed and a counter-affidavit deposed to by one Jimoh Lawal, a litigation clerk in the chambers of Chief Toye Coker & Co. The man deposed, inter alia, in paragraph 4,5 and 6 of the said counter affidavit as follows;
“4 That when this application dated 14th day of October, 1994 and the hearing notice were served on our chambers on 21st day of October, 1994, we proceeded immediately to make enquiries at the registry of the High Court in both Abeokuta and Otta Judicial Divisions.
5. That one Alhaji Arimi, the registrar in charge of appeal in Otta Judicial Division of the High Court, informed me and I verily believed him that he has not seen any indication to the effect that the appellants have collected the record of appeal.
6. That at the Abeokuta Judicial Division of the lower court, Mrs. Monsuratu Lawal, an officer in the appeal Division also could not see any record to show that the appellants have obtained the record of appeal.”

At the hearing of that motion in this court on 17th November, 1994, the appellants/applicants tried to secure an adjournment of the motion but the request was refused and the court took the motion and dismissed the appeal as prayed in the motion. A subsequent attempt was made by the applicants to get the case restored on the cause list when they brought a motion dated 1st February, 1996 and filed on 2nd February, 1996. They prayed this court in that motion for an order to set aside the ruling of this court. But learned Counsel for the applicant abandoned the attempt when he applied to withdraw the application. The motion was then struck out. The applicants thereafter changed Counsel and eventually brought the present application.

It is submitted on behalf of the respondents that there was only one appeal pending between the parties and it was in respect of the same suit No. HCL/27/80. The contention that there were two appeals with suit No. CA/I/108/90 has nothing to do with the case made out by the respondents. This is because the respondents was given that suit number when they filed their motion. If the registry of this court made an error in the number given to the respondents motion, that should not be made to have any effect on their application and the decision already taken to dismiss the appeal. Reference is made to the provisions of Order 5 rule 3 of Court of Appeal Rules, which prohibits this court from reviewing its judgment once given save to correct any clerical mistake or some error arising from any accidental slip or omission or to vary the judgment or order so as to give effect to its meaning and intention. It is then submitted that as there was no error or slip to be corrected in the said ruling of this court delivered in this case, the need to correct any aspect of it never arose. The decision in Olowu v. Abolore (1993) 5 NWLR (pt.293) 255 where the Supreme Court held that a ruling of dismissal by this court may not be set aside by this court, is cited in support of the contention that this court has no power to set aside its earlier order dismissing the appeal for want of prosecution. This court is therefore urged to dismiss the application.

The facts of this case are not much in dispute. The applicants lost at the lower trial court and they filed an appeal against the judgment. The parties settled record at the High Court Registry and thereafter the appellant did not do anything towards the prosecution of the appeal. The respondents moved the court to have the appeal dismissed for want of prosecution. The application was granted and the appeal was accordingly dismissed by this court for want of prosecution. The applicants first moved this court for that ruling of this court to be set aside. That application was, however, withdrawn and the motion was struck out. The same application has now been made.

The main contention of the applicants is that this court could reverse its earlier decision because the court was incompetent to make the order it made in the matter. The incompetency is said to have arisen from the fact that no record of appeal had been compiled by the lower trial court as at the time the application for dismissal of the appeal for want of prosecution was taken and granted. The decision in Adeigbe & Anor. v. Kusimo & Ors. (supra), was cited and relied upon. In that case, the Supreme Court drew a distinction between jurisdiction and irregularity; between the competence of the court to hear the case and the propriety of a bench who had not heard all the evidence adjudicating on the case. The principle to be followed in respect of any defect in competences as enumerated by the Supreme Court in Madukolu v. Nkemdilim (1962) 2 SCNLR 341; (1962) 1 All NLR (Pt.4) 587 which is that; any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided. The defect is extrinsic to the adjudication. If however, the court is competent, the proceedings are not a nullity; but they may be attacked on the ground of irregularity in the conduct of the trial. In the instant case, the complaint of the applicants is that the record of appeal had not been compiled and transmitted to this court and that the copy could not have been available to the applicants as at the time this court made its order dismissing the appeal for want of prosecution. That allegation can definitely not constitute a defect in jurisdiction which, according to the principle of law declare by the Supreme Court in the Madukolu v. Nkemdilim case (supra), could render that decision a nullity. In other words, while such an allegation, if in fact the facts were established which was not in the instant case, could only amount to the decision not been supported by the evidence led at the trial. At best such could constitute a good reason for an appellate court entertaining an appeal from the decision, allowing such appeal. But it could not render the trial a nullity.

The question which needs to be resolved in the present case therefore is whether this court has the power to review its previous judgment. Order 5 rule 3 of the Court of Appeal Rules, makes provision relating to review of judgment of this court. The rule provides as follows:
“The court shall not review any judgment once given and delivered by it save to correct any clerical mistake or some error arising from any 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.”
There is, however, an exception to the above provision of Order 5 Rule 3 barring this court from reviewing any of its judgment. The exception is provided in Order 3 rule 20 (4) of the Court of Appeal Rules. It is in relation to appeals dismissed under Order 3 rule 20(1) of the said Rules for non-compliance with condition of appeal. The said order 3 rules 20(1) and (4) provides as follows:
“20(1) If the appellant has not complied with any of the requirements of rules 10 and 11 of this Order, the Registrar for the court below shall thereupon order that the appeal be dismissed either with or without costs, and shall cause the appellant and the respondent to be notified or the terms of its order.
(4) An appellant whose appeal has been dismissed under this rule may apply by notice of motion that his appeal be restored and any such application may be made to the court which may in its discretion for good and sufficient cause order that such appeal be restored upon such terms as it may think fit.”
The position of the law therefore is that this court lacks the power to review any of its judgment, ruling or order: See Chukwuka & Ors. v. Ezulike (1986) 5 NWLR (Pt.45) 892; and exception to this rule, however, is in respect of appeals dismissed by this court for non-compliance with the condition of appeal under Order 3 rule 20(1). In such cases, this court is allowed under Order 3 rule 20(4), upon a motion by the appellant and for good cause, restore the dismissed case unto the cause list; See Olowo v. Abolore, (supra).

As the appeal in the instant case was not dismissed by this court for non-compliance with the conditions of appeal under Order 3 Rule 20(1) of the Court of Appeal Rules, but that it was dismissed for want of prosecution, the applicants are not entitled to the relief provided in Order 3 Rule 20(4) of the Court of Appeal Rules. In the result, there is totally no merit in the application and I accordingly dismiss it with N3,000.00 costs to the respondents.

Other Citations: (2000)LCN/0908(CA)