Attorney-general Of The Federation & Ors V. The Punch Nigeria Limited & Anor (2019)

LAWGLOBAL HUB Lead Judgment Report

OLUKAYODE ARIWOOLA, J.S.C.

This is an appeal against the ruling of the Court of Appeal, Lagos Division delivered on Wednesday the 18th Day of October, 2006, Coram: I. A. Salami PJ (as he then was); C. B. Ogunbiyi, JCA (as he then was); A. G. Mshelia, JCA, wherein the Court below dismissed the appellants’ application for an Order setting aside the Court’s earlier order dismissing the appellants’ appeal on 18th March, 2004.

Sometime on 14th June, 1994 the respondents had been granted leave by the Federal High Court, Holden at Lagos to enforce their fundamental rights, pursuant to Section 42 (1) and (2) of the 1979 Constitution as amended by Decree No.107 of 1993; Order 1 Rule 2(1), (3) and (6) and Order 4 of the Fundamental Rights (Enforcement Procedure) Rules, 1979 and under the inherent jurisdiction of the Court as preserved bySection 6 (6) of the 1979 Constitution, as amended. Leave was also granted for all the processes meant for service on the Inspector-General of Police, Commissioner of Police (Lagos State Command), State Security Service and Chief of Army Staff, who are now 2nd, 3rd, 4th and 5th

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appellants respectively though as respondents then, to be served on the office of the Honourable Attorney General of the Federation, the then 1st respondent. In addition to the Leave granted, the respondents, their officers, agents, servants, privies or otherwise howsoever were directed to produce the 2nd appellant before the trial Court on 20th June, 1994 and to show cause why he should not be released.

By their Motion on Notice, which was filed in the registry of the Federal High Court, Lagos on 16th June, 1994, the applicants had sought the following reliefs:

1. A DECLARATION that the invasion, search, without warrant, sealing-up, seizure and/or occupation of the 1st applicant’s business premises located at No.1 Kudeti Street, Onipetesi, Ikeja, Lagos State and the consequent stoppage of the applicants’ lawful business by the respondents, their officers, agents, servants and/or privies or otherwise howsoever constitute a gross violation of the applicants’ fundamental Rights guaranteed by Sections 36 and 40 of the 1979 Constitution and Articles 9 and 14 of the African Charter on Human & Peoples Rights (Ratification and Enforcement) Act Cap. 10 Laws of Federation of Nigeria 1990.

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A DECLARATION that the continued sealing-up, seizure and/or occupation of the 1st applicant’s business premises located at No.1 Kudeti Street, Onipetesi, lkeja, Lagos State and the consequent stoppage of the applicants’ lawful business by the respondents, their officers, agents, servants and/or privies or otherwise howsoever constitute a violation of the applicants rights guaranteed by Sections 35 and 40 of the 1979 Constitution and Articles 9 and 14 of the African Charter on Human & Peoples Rights (Ratification and Enforcement) Act Cap. 10 Laws of Federation of Nigeria 1990.

3. A DECLARATION that the forceful detention and/or confinement of the 2nd applicant within the premises of the 1st applicant at No. 1 Kudeti Street, Onipetesi, Ikeja, Lagos State or any other place he may be subsequently taken to by the respondents, their officers, servants, agents, privies or otherwise howsoever constitute a gross violation of the 2nd applicant’s rights guaranteed under Sections 31, 32 and 38 of the 1979 Constitution and Articles 5,6,9 and 12 of the Enforcement Act Cap, 10, Laws of the Federation of Nigeria 1990.

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A MANDATORY ORDER compelling the respondents, whether themselves or their officers, agents, servants, privies or otherwise howsoever to forthwith vacate the business premises of the 1st applicant.

5. A MANDATORY ORDER compelling the respondents, whether themselves or their officers, agents, servants, privies or otherwise howsoever to forthwith release the 2nd applicant.
6. AN INJUNCTION restraining the respondents their officers, agents, servants, privies or otherwise howsoever from continuing to seal-up and occupy the business premises of the applicants or in any other manner preventing the applicants from carrying out their lawful business.
7. N500,000,000.00 (Five Hundred Million Naira) being damages against the respondents for the illegal and unconstitutional sealing-up, invasion and subsequent stoppage and/or disruption of lawful activities of the 1st applicant.
8. N5,000,000 (Five million Naira) being damages for unlawful detention of the 2nd applicant.
9. Such further order or other orders as this Honourable Court may deem fit to make in the circumstances of this.”

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It is on record, that when the trial Court reconvened for trial of the action on 20th June, 1994, the respondents to the application were absent but the trial Court noted that they were all served with all necessary processes already filed in the matter. A State counsel had however written from the Attorney General’s chambers praying for an adjournment, which application was opposed by the applicants counsel-Chief Gani Fawehinmi. Notwithstanding the opposition to an adjournment, the Court bent backwards and granted an adjournment to 28th June, 1994 and directed the Registrar of the Court to write to the office of the Attorney General, informing them of the next date of adjournment of the case. By a letter of June 21, 1994 the Registrar of the trial Court wrote to the respondents to the application as directed by the trial Judge, to inform them of the next date of hearing of the application.

When the trial Court reconvened again on the next adjourned date of 28th June, 1994 neither the respondents nor their counsel was in Court. The applicants’ counsel then moved the Court to hear the application.

At the end of the day, after hearing the application and

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considering the submissions of learned counsel for the applicants, the Court in the judgment ordered as follows:

“1. The applicants are hereby granted Declarations 1, 2 and 3 as contained in the Motion papers filed.

2. The respondents, whether themselves or their officers, agents servants, privies or otherwise, howsoever, shall forthwith vacate the business premises of the 1st applicant.
3. The respondents, their officers, agents, servants, privies or otherwise howsoever are hereby restrained from continuing to seal up and occupy the business premises of the 1st applicant or in any other manner preventing the applicants from carrying out their lawful business.
4. The 1st applicant shall be awarded N25million (twenty five million Naira) being damages against the respondents for the illegal and unconstitutional sealing up, invasion and subsequent stoppage and/or disruption of lawful activities of the 1st applicant.
5. As the 2nd applicant has already been released, prayer 5 on the Motion paper is hereby struck out.
6. The 2nd applicant shall be awarded N100,000 (one hundred thousand Naira) being damages for unlawful

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detention of the 2nd applicant.”

The above were contained in the judgment of the trial Court handed down on 29th July, 1994.

On 10/8/1994, the appellants filed a Notice of Appeal to the Court of Appeal on four grounds of appeal and sought the following relief from the Court of Appeal.

“To allow the appeal and set aside the judgment or order of the Federal High Court, Lagos dated 29th July, 1994.”

On 04/6/1999 the respondents filed an application before the Court of Appeal praying for an order dismissing the appeal of the appellants for want of diligent prosecution, as no further step had been taken after the appeal was filed by the appellants.

Subsequently, on 21/10/1999, the appellants filed an application before the Court of Appeal for leave to amend their Notice of Appeal, by adding an additional 5th Ground of Appeal in the manner formulated in the proposed Amended Notice of Appeal which was annexed to the application as Exhibit A.

On the 18th day of March, 2004 the Court of Appeal considered the respondents’ application and dismissed the appeal for want of prosecution.

Being aggrieved by the Order of the Court below which

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dismissed the appeal for want of prosecution, the appellants brought an application before the Court below praying for an Order setting aside the Order of dismissal of their appeal made on 18/03/2004. The application was considered by the Court below and was dismissed with costs to the respondents against the appellants, leading to the instant further appeal with the Notice of Appeal filed on 26/10/2006, on two Grounds of Appeal.

In the appellants brief of argument settled by Chiesonu Igbojamuike Okpoko filed on 24/4/2007 the appellants formulated one issue for determination as follows:

“Whether the Court below was right in dismissing the appellants’ application to set aside its ruling dismissing the appellants’ appeal.”

In the respondents’ brief of argument settled by Clement Onwuenwunor Esq., of Gani Fawehinmi Chambers filed on 7/05/2008, the sole issue distilled by the appellants was said to be adopted by the respondents but with slight modification as follows:

“Whether the Court of Appeal was right in dismissing the appellants’ application to set aside its ruling of 18/3/2004 dismissing the appellants’ appeal pursuant to Order 6 Rule 10 of the Court of Appeal Rules, 2002.”

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In arguing the issue, learned appellants’ counsel submitted that it is settled and established rule of our legal system that courts will dispose of all applications pending in a suit before the final determination of the case. And that the law is in line with the constitutional right of fair hearing and there is no authority to the contrary, relying on the Court of Appeal decision in Harrods Ltd Vs. Anifalaje (1986) 5 NWLR (Pt.43) 603.

He referred to the appellants’ application herein for leave to amend their Notice of Appeal on pages 113-119 of the record of Appeal and the respondents’ application for an order dismissing the appeal for wanting of prosecution on pages 122-122A of the Records. Learned counsel submitted that where there are two competing applications pending before the court, one constructive and the other destructive, the court will hear the constructive application first. He relied on AG, Federation Vs. AIC Ltd (1995) 2 NWLR (Pt.378) 388 at 397.

He contended that on the 3rd day of December, 2003 when the matter came up for hearing in the Court, the appellants’ counsel was in Court but the

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respondents were not represented by counsel. The two pending applications were then adjourned to 18/3/2004 for hearing.

However, on 18/3/2004 the respondents’ counsel was in Court but appellants were neither in Court nor represented by counsel. The respondents’ counsel then moved their application for dismissal and it was granted by the Court. Learned counsel contended that the appellants’ application for leave to amend was still pending before the Court and was yet to be moved when the appeal was dismissed, hence the application brought by the appellants for an order to set aside the Order dismissing the appeal to enable the appellants move their pending application for leave to amend their Notice of Appeal.

Learned counsel submitted that a Court lacks the jurisdiction to set aside its own decision except as permitted by the law, such as when the decision is a nullity by reason of a breach of procedure and has occasioned a miscarriage of justice, or as provided for by the rules, such as when judgment is given in default or the Court is given the power to discharge an order it has made. He relied on Onwuka Vs. Maduka (2002) 10 NWLR (Pt. 789) 856;

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Auto Import Export Vs. Adebayo (2002) 18 NWLR (Pt.799) 554 at 582.

He submitted that the dismissal of the appellants’ appeal whilst their application for leave to amend their Notice and Grounds of Appeal was pending before the Court below amounts to miscarriage of justice and breach of their right to fair hearing.

Learned counsel referred to the finding of the Court below on page 135 of the record and submitted that the holding of the Court below is unknown to our legal system and the common law. And that the conclusion, that the court below had become functus officio from the date the appeal was dismissed is not correct, relying on Okafor Vs. A. G. Anambra State (1991) 6 NWLR (Pt. 200) 659 at 679-680.

He urged the Court to resolve the sole issue against the respondents but in favour of the appellants and allow the appeal. He further urged the Court to set aside the order of the Court below, by which it refused to set aside its order dismissing the appellants’ appeal.

In responding and arguing the sole issue distilled in this appeal, learned counsel for the respondents referred to the findings of the Court below on pages 134 and 135 of the

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record of appeal, and contended that the Court’s conclusion on its ruling of 18/3/2004, was made pursuant to the respondents’ application dated 3/6/1999 which had prayed for the dismissal of the appellants’ appeal under Order 6 Rule 10 of the Court of Appeal Rules, 2002 for failure to file appellants’ brief of argument.

Learned counsel contended that the appeal was entered on 8th July, 1996. But the application of the respondents which sought an order for dismissal of the appeal was filed almost four (4) years thereafter, in June 1999 after the appeal had been entered. Yet the said application could not be heard until 8/3/2004, again five (5) years after it was filed. He submitted that the Court below had given undue indulgence to the appellants for five years with the hope that they would file their brief of argument but they never did. Learned counsel contended that between the 8th of July, 1996 when the appeal was entered and the 18th of March 2004 when the appeal was dismissed was exactly ten (10) years when the appellants refused to file their brief of argument to the appeal. He submitted that the Court below was correct and right in

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the entire circumstances of the appeal to refuse to set aside their Order made on 18/3/2004 dismissing the appeal under Order 6 Rule 10 of the Court of Appeal Rules, 2002.

Learned counsel referred to the said rule of the Court below as considered inKraus Thompson Organisation Vs. N.I.P.S.S. (2004) 17 NWLR (Pt.901) 44 at 58-59; Olowu Vs Abolore (1993) 5 NWLR (Pt.293) 255 at 277, 278 and 279.

He referred to the contention of the appellant that they had a pending application for leave to amend their Notice and Grounds of Appeal but contented that the said application which had been in the Court’s file for six years without being moved had ceased to exist with the dismissal of the appeal upon which it was predicated. He submitted that the said Motion on Notice for amendment of Notice of Appeal when moved could not have cured the defect in the appeal under Order 6 Rule 10 of the Court of Appeal Rules, 2002, because an amendment relates to the date of the original process and takes effect from the date. He relied on Adewumi Vs. A-G Ekiti State (2002) 2 NWLR (Pt.751) 474 at 506.

Learned counsel referred to the

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findings and holding of the Court below on page 135 of the record of appeal and submitted that the Court of Appeal was right when it held that it had become functus officio to set aside or review its decision of 18th March, 2004 dismissing the appeal pursuant to Order 6 Rule 10 of the Court of Appeal Rules, 2002.

Learned counsel contended that the consideration of the Court below might have been different if there had been a Motion on Notice for extension of time to file a brief of argument and a deeming order sought for an already filed brief of argument. He submitted that the appellants had abandoned their appeal and the Court below was right in dismissing same and urged the Court to resolve the issue against the appellants and dismiss the appeal by affirming the order of the Court below made on 18th October, 2006.

There is no doubt and it is very clear on record that the appellants had filed an appeal to the Court below on 10th August, 1994 against the judgment of the trial Court delivered on 29th July, 1994 which judgment was in favour of the respondents but against the appellants.

The Court of Appeal Rules that was then applicable to the

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matter was the 2002 Rules. Order 6 Rule 2 of the said Rules provides as follows:

“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, being a succinct statement of his argument in appeal.”

It is equally clear on the record that the appeal was entered on the 8th of July, 1996, but the appellants did not file their brief of argument as required by the rules, within sixty days from the date the appeal was entered on 8/7/1996. And there was no application by them for enlargement of time to file the said brief out of time.

Order 6 Rule 10 of the Rules of the Court of Appeal extant provides thus:

“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.”

When the respondents observed that the time within which the appellants had to file their brief of argument had lapsed and no application was pending before the Court for extension of time to file their brief of argument out of time,

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they filed an application on 4th June, 1999 praying for an Order of the court dismissing the appeal for want of diligent prosecution. As earlier noted, the appellants were duly notified of the said respondents’ application but the Court was unable to deal with the application until 18th March, 2004, indeed five years after it was filed in Court.

It is note worthy that earlier, on 3rd day of December, 2003 when the matter came up and the two pending applications were listed for hearing, the appellants were adequately represented in Court by their counsel — Mr. Okpoko who sought an adjournment, according to him, to consider their position in the matter. The two applications were accordingly adjourned to 18/3/2004 and hearing notice was ordered to issue on the respondents.

However, when the matter again came up on 18/3/2004, the appellants whose counsel had sought an adjournment was absent and not represented. There is nothing on record to show why the appellants were not in Court and not represented by any counsel. The respondents’ counsel then proceeded with their application for an Order dismissing the appeal pursuant to Order 6 Rule 10 of the Court of Appeal Rules, 2002.

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The Court below having found that indeed the appeal had been entered since 8/7/1996 when the appellants were granted departure from the rules as sought, they were yet to file their brief of argument, the appeal was dismissed pursuant to Order 6 Rule 10 of the Rules of the Court on 18/3/2004. Subsequently, the appellants brought an application in March 2005 for an Order of the Court below to set aside the order earlier made on 18/3/2004 dismissing the appeal.

In its ruling on the appellants’ application delivered on 18/10/2006, the Court below opined, inter alia, as follows:

“The crux of the matter is that the applicants brought an application for departure from the rules of this Court, so that the Registrar of Court would dispense with filing of the record and the appeal be heard on a bundle of documents exhibited to the affidavit in support. The order was granted on 8th July, 1996. By implication, the appeal was entered on that day and the Appellant(s) had 60 days within which to file his/their brief. This, he (sic they) failed to do until the Respondent(s) brought an application for the appeal to be dismissed dated 3rd

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June, 1999 which was not heard until 5 years later. The respondents’ application was brought pursuant to Order 6 Rule 10. Application to set aside the judgment of 18/3/2004 brought under Order 3 Rule 3 (1) and Order 7 Rule 5 (1) and (2) is misconceived because the appeal was not dismissed pursuance of Order 3 Rules 10 and 11 of the Court of Appeal Rules. The time to file brief having expired the only remedy open to the Appellant(s) was to apply for an extension of time to file brief, rather he sought leave to amend the notice of appeal by his application dated 20/10/99.”

There is no doubt, as I earlier noted, that the appellants’ appeal was dismissed pursuant to Order 6 Rule 10 of the Rules of the Court below. I must say that the Court was very correct in granting the prayer of the respondents for the dismissal of the appeal for failure to file brief of argument to show their diligence in pursuing their appeal.

In Kraus Thompson Organisation Vs. N.I.P.S.S (2004) 17 NWLR (Pt.901) 44 when the same Order 6 Rule 10 of the Rules of the Court below was considered by this Court, it opined, inter alia, as

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follows, per Tobi, JSC:

“It is clear from the above that failure on the part of an appellant to file brief within time will be visited with the sanction of dismissal of the appeal on the application of the respondent. In Ogbu Vs. Urum (1981) 4 SC.1, the Supreme Court held that the failure to file briefs by the appellants within the extended time can be likened to an abandonment of their appeal, particularly when such failure is coupled with non-appearance in Court without excuse at the time of hearing.

In Shehu Babayagi Vs. Aihaji Bida (1998) 2 NWLR (Pt.538) 367, the appellant did not file brief after one year of filing Notice of Appeal. Consequently, the respondent moved the Court of Appeal to dismiss the appeal for want of diligent prosecution. The Court of Appeal acting under Order 6 Rule 10 of the Court of Appeal Rules, acceded to the application and the dismissed appeal. Thereafter the appellant applied to the Court of Appeal under Section 16 of the Court of Appeal Act to relist the appeal. The Court dismissed the appeal on the ground that it had no power under the rules to relist the appeal. On appeal to the Supreme Court, it was held that under

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Order 6 Rule 10 of the Court of Appeal (Amendment) Rules, 1984 an appeal could be dismissed for failure of the appellant to file his brief within the time provided for in Rule 2 thereof or within the time as extended by the Court; or for non compliance with the conditions of appeal or for want of prosecution

An appeal which is dismissed under Order 6 Rule 10 of the Court of Appeal Rules cannot be relisted. This Court held inBabayagi Vs. Bida (Supra) that once an appeal is dismissed under Order 6 Rule 10, the Court of Appeal has no jurisdiction to revive the appeal by re-entering or relisting same. See also Chukwuka Vs. Ezulike (1986) 2 NWLR (Pt.45) 892.

When an appeal is dismissed under Order 6 Rule 10 of the Court of Appeal Rules, its life terminates and it is therefore removed from the cause list. No Court has jurisdiction to revive or resuscitate it.

See also; Evafo Ekpeto & Ors Vs. Ikeno Wanogho & Ors (2004) 18 NWLR (Pt.905) 394; (2004)20 NSCQR 383; (2004) SCM Aihaji Lasisi Asalu & Ors Vs. Fatal Sale Dakan & Ors (2006) LPELR 573; (2006) 8-9 SCM 86; (2006) 8-9 SCM 86

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(2006) 5 SC (Pt.11) 120.

In Akanke Olowu & Ors vs Amudatu Abolore & Anor (1993) LPELR 2613 (SC)(1993) 5 NWLR (Pt.293) 255-384; (1993) 6 SCNJ 1, this Court per Karibi Whyte, JSC, opined as follows:

“It is well settled and it is unnecessary citing of decided cases that after finally deciding a matter before it, the Court of Appeal becomes functus officio, and lacks jurisdiction to deal with the matter. This is essentially because the Court cannot sit on appeal on its own decision, having not been vested with any power so to do. The constitutional and statutory jurisdiction of the Court of Appeal is to hear appeals from lower Court. It cannot hear appeals from its own decision. Thus having finally decided a case before it, it becomes functus officio as to that case”

In the same Olowu’s case (supra), Kawu, JSC had opined thus:

“The application to dismiss the appeal for failure on the part of the appellant to file his brief was brought under Order 6 Rule 10 of the Court of Appeal Rules (1981) as amended. Under that Order, there is no provision for relisting an appeal

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dismissed. It follows therefore, that the Court of Appeal had no jurisdiction to set aside its order dismissing the respondent’s appeal.”

As I stated earlier, it is clear that the appeal of the appellants was dismissed pursuant to Order 6 Rule 10 of the Court of Appeal Rules for failure to file the brief of argument within the prescribed time and there was no application for extension of time to file the said brief out of time. The appeal was therefore properly dismissed and the dismissal order is final and irreversible. The Court below no longer had competence or jurisdiction on the appeal, that had become spent by the order of dismissal. The Court below had become functus officio on the matter. It can neither set aside its order nor relist the already dismissed appeal. It is no longer on the cause list of the Court.

It is interesting to note that the learned appellants’ counsel had contended that as at the time the Court below heard the respondents’ application for dismissal, the appellants’ application for leave to amend their Notice and Grounds of Appeal was pending before the Court, hence the Court ought to have dealt with that application

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before the respondents’ application. I must say that the learned counsel misconceived the entire process. I agree entirely with the Court below that even where the Court had granted the appellants’ prayer for leave to amend, there being no application for enlargement of time to file the brief of argument after the prescribed time had lapsed with the respondents’ application to dismiss the appeal pursuant to Order 6 Rule 10 of the Rules of the Court, the appeal would have still been dismissed. In Olowu & Ors Vs Abolore & Anor (Supra) this Court, per Belgore, JSC (as he then was) opined, inter alia, as follows:

“If before the judgment of dismissal was entered and appellant prayed for extension of time to file his brief, that will be a different matter governed by Order 3 Rule 41 (1) Court of Appeal Rules. However, this issue has nothing to do with application of enlargement of time but with a matter dismissed for want of prosecution for which there is no remedy again in the Court of Appeal.”

Indeed, the Court below, on the appellants’ application for leave to amend their notice of appeal, had held as follows:

“In any case, even if the

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application for leave to amend that notice of appeal was granted, the application for dismissal of the appeal for want of prosecution would still have been considered and probably granted because the appellants’ brief had been out of time not for months but years.”

I am convinced without an iota of doubt that the Court below was right in dismissing the appellants’ application to set aside its ruling of 18/3/2004 dismissing the appellants’ appeal pursuant to Order 6 Rule 10 of the Court of Appeal Rules, 2002. In the circumstance, the sole issue distilled for determination shall be and is hereby resolved against the appellants.

In the final analysis, for being unmeritorious, this appeal is liable to dismissal and is accordingly dismissed.

Appeal dismissed.

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SC.53/2007