Chief Patrick I. A. Jideonwo V. Eunice Chukwuma (1999)

LawGlobal-Hub Lead Judgment Report

BA’ABA, J.C.A.

The present applicant was the plaintiff in suit No. A/73/88 in the Delta State High Court where Gbemudu, J. delivered judgment against the plaintiff on 28th May, 1992, dismissing all the reliefs claimed by the plaintiff.

Being dissatisfied with the said judgment, the plaintiff filed Notice of Appeal on 15th June, 1992. On 19th of June, 1999, the appeal was dismissed by this Court on the application of the defendant/respondent for want of prosecution.

The applicant has now brought this application, pursuant to Order 3 rule 20(4) of the Rules of this Court, praying for the relisting of this appeal which was struck out by this court on 9/6/99 for want of prosecution.

The application was supported by affidavit evidence of 14 paragraphs sworn by Chief Patrick A. Jideonwo, the applicant and a further affidavit evidence of 5 paragraphs sworn by Micheal Ikechukwu Gnachie, Legal Practitioner representing the applicant.

There is a Counter-Affidavit of 34 paragraphs sworn by Eunice Chukwuma, the respondent.

The salient facts deposed to in the affidavit were as follows:

2. That on the 9th day of June, 1999 this appeal was dismissed on the application of the defendant/respondent for want of prosecution.
3. That the judgment of the High Court was delivered on the 28th day of May, 1992.
4. That I filed a Notice of Appeal against the said judgment on 15/6/92 within time.
5. That the record of appeal in this case has now been compiled and transmitted to the Court of Appeal.
6. That I was not aware that there was any other thing left to be done by me after I filed my Notice of Appeal and fulfilled the conditions of appeal imposed by the Registrar of the High Court.
7. That I am very desirous to prosecute the appeal which I filed.
8. That my absence in Court on 9/6/99 when my appeal was dismissed was not deliberate.
9. That I was informed by my counsel and I verily believe him that he shall endeavour to file a brief on my behalf not later than 30 days from the date of the grant of this application.”

I consider it pertinent to reproduce paragraph 4 of the Further Affidavit which reads:-

4. That the appellant’s brief has now been prepared and will be filed not later than 48 hours from the date of the grant of the appellant’s application for the relistment of his appeal dismissed on 9/6/99 for want of prosecution. A copy of the appellant’s brief which the appellant intends to file should this application be granted is herein attached and marked as Exhibit ‘A’.”

The salient facts deposed in the lengthy Counter-Affidavit, opposing the application were as follows:-

2. The Applicant, herein was the plaintiff in the High Court, Asaba, where, of his own motion, he filed his Writ of Summons on 7th December, 1989 (that is to say: Suit No. N73/88, now said to be on appeal in these proceedings).
3. After a full hearing before Hon. Justice A.N.E. Gbemudu (now retired) His Lordship delivered judgment on Thursday, 28th May, 1992 and concluded as follows:-

‘All the reliefs claimed by the Plaintiff fall to the ground…

I hereby dismiss the suit in its entirely. The Defendant is entitled to the cost of this suit which I assess at N1,000.00.’

5. From this decision the Applicant purported to appeal to the Court of Appeal by Notice of Appeal filed at the Asaba High Court on 15th June, 1992.
6. When by April 1995 the Applicant did not take appropriate steps to have the record of appeal compiled, I applied to the Court of Appeal, Benin City, by notice of motion filed on 7th April, 1995, ‘for an Order directing the plaintiff/appellant/respondent and/or the Assistant Chief Registrar of the High Court Registry, Asaba, to compile and forward to this Court the Record of Appeal in this suit within 14 days of the determination of this motion …. ‘
7. My prayer was not granted by the Court of Appeal.
8. To date the Applicant has not paid one kobo to the Assistant Chief Registrar of the High Court as ordered and he continues to collect the rents.
9. On 19th June, 1999 when this matter was called, the Applicant was again absent and was not represented, just as was the case on previous occasions and my motion to dismiss the appeal was granted and the appeal was dismissed with N2,000.00 costs.

Moving his motion, dated 16/7/99, for an order re-listing the appeal dismissed on 9/6/99 for want of prosecution, Mr. M. I. Onochie, learned counsel for the applicant referred us to the 14 paragraphs affidavit in support and a further affidavit of 5 paragraphs to which the proposed appellant’s brief was attached. He stated that he is relying on both the supporting affidavit and the further affidavit. He informed us that the record of appeal has long been transmitted to this court. Learned Counsel for the applicant submitted that this court has power to relist this appeal, citing Akujinwa v. Nwaonuma (1998) 13 NWLR (Pt. 583) 632; and Olowu v. Abolore (1993) 5 NWLR (Pt. 293) 255, in support of his submission. He argued that this Court had no power to dismiss the appeal as at the time it dismissed the appeal because it has power to dismiss an appeal only in 3 instances viz;

(1) Where an appellant fails to file his brief within time, the court can dismiss the appeal under Order 6 rule 10 of the Court of Appeal Rules.

He pointed out that as at the time the appeal was dismissed the record of appeal had not been compiled.

(2) Where the appellant fails to appear on the date the appeal is fixed for hearing under Order 3 rule 25(1) of the Rules of this Court. He explained that the appeal was not ripe for hearing when it was dismissed consequently, the provisions of Order 3 rule 25(1) of the Rules was inapplicable.

(3) An appeal can be dismissed under Order 3 rule 20(1) if the appellant fails to fulfil the conditions of Appeal imposed by the Lower Court. Learned Counsel said the certificate of the Registrar of the Lower Court to this effect is on page 208 of the record of appeal.

He finally urged us to grant his prayers.

Responding, Chief Olisa Chukwura, learned Senior Advocate of Nigeria, for the respondent referred us to the reasons given by this Court in dismissing the appeal. He pointed our that the judgment sought to be appealed against was given in 1992, and that the applicant had been using the Court processes to delay and frustrate the order of the Court. He submitted that there is no statutory or inherent power in this court to restore an appeal dismissed unless the dismissal is a nullity, citing Ogbu v. Umar (1981) 4 S.C. 1 at 2; Sodeinde Brothers Ltd. v. A.C.B. (1982) 6 S.C. 137; Ojora v. Bakare (1976) 1 S.C.47 at 52; Union Bank v. Odusote (1994) 3 NWLR (Pt. 331) 129 and Akpunonu v. Bekaert Overseas (1995) 5 NWLR (Pt. 393) 42, in support of his submission. Learned Senior Counsel, further submitted that an application of this nature would not be granted as long as the applicant has failed to comply with Court orders. He cited a number of authorities in support of his submission.

It is common ground among the parties and their Counsel that the Appeal No. CA/B/172/99, was dismissed on the application of the respondent by this Court for want of prosecution.

It appears however that there is a discrepancy between the parties as to the date of the dismissal. While the applicant by his motion, affidavit and Further Affidavit, stated that the appeal was dismissed on 9/6/99, the respondent on the other hand stated in paragraph 27 of her Counter-Affidavit that the appeal was dismissed on 19/6/99.

I have carefully studied the numerous authorities cited to us by both counsel in support of their respective submissions. I intend for the purpose of this application to only rely on the authorities that I find relevant to the issue for determination in this application.

Learned Counsel for the applicant, relied on Akujinwa (supra) in his submission that this Court has the power to restore an appeal dismissed. The Supreme Court of Nigeria in that case at page 657-658, per Ogundare, JSC, drew a distinction between a dismissal of appeal by this Court, suo motu and on application, as well as the consequences of the dismissal in respect of the two classes of dismissal, when the court said;

‘The Court below obviously exercised its inherent jurisdiction when on 28/4/96 it dismissed appellant’s appeal to it ‘for want of prosecution’. But such a dismissal is not a dismissal on the merits and can, unlike a dismissal under Order 6 rule 10, be set aside on a proper application made to it by the party affected thereby, it amounts only to a striking out”

In the instant case, unlike in Akujinwa’s case, the appeal was not dismissed by this Court suo motu but on the application of the respondent for want of prosecution.

The Court of Appeal Rules provide for dismissing an appeal in the following circumstances. Firstly, where there is non-compliance with conditions of appeal. – Order 3 rule 20 sub-rule (1). Secondly, if the appellant fails to appear when his appeal is called on for hearing – See Order 3 rule 25, sub-rule (1). Thirdly, where an appellant fails to file his brief of argument within the time as extended by the Court – Order 6 rule 10.

In the first two situations, the rules have made provision enabling relisting the appeal so dismissed. Order 3 rule 20(4) of the Rules of this Court reads:”

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 circumstance under which an appellant can invoke the provisions of Order 3 rule 20 (4), is clearly stated under rule 20 sub-rule 3 of the same Order and it reads:-

“If the respondent alleges that the appellant has failed to comply with a part of the requirements of rules 2, 10 or 11 of this Order, the Court, if satisfied that the appellant has so failed, may dismiss the appeal for want of due prosecution or make such other Order as the justice of the case may require.”

Are the provisions of Order 3 rule 20(3) of the Rules of this Court the same with that of Order 6 rule 10 of the same Rules?

It appears that the question has been answered by Karibi-Whyte, JSC, in his judgment, in Olowu (supra) at pages 275, 276 and 278. At pages 275 – 276, the learned Justice of the Supreme Court of Nigeria, had this to say: it seems to me that under Order 6 rule 10 of the Court of Appeal Rules, an appeal may be dismissed for want of prosecution where the appellant fails to file his brief within time – See, Government of Gongola State v. Tukur (No.2) (1987) 2 NWLR (Pt. 56) 308. The power to dismiss the appeal in such circumstance is discretionary. But this is an exercise of judicial discretion. The court in the instant case had before it all the essential prerequisites enabling it to dismiss the appeal. There were no circumstances requiring the court to do otherwise and to consider whether it should not dismiss the appeal. If appellant had shown that indeed he had complied with the rules as in Nneji v. Chukwu (1988) 3 (Pt. 81) NWLR 184, the order made would be justifiably set aside as having been made without jurisdiction.

Thus where respondent in his application to dismiss an appeal on the grounds of the failure of the appellant to file his brief of argument, has satisfied the court that appellant failed to do so within 60 days of the time indicated by the court and has also not applied for extension of time to do so and there is no explanation for his failure to comply with the rules, the court will have no alternative, but to dismiss the appeal. This was the position in this case. The ipsissima verba of Order 6 rule 10 does not lend support to a construction enabling exercise of discretion: See Odogwu v. Odogwu (1992) 7 NWLR (Pt. 253) 344.

The principle which governs the court in the exercise of its discretion was lucidly stated in the dictum of Obaseki JSC in Obiora v. Osele (1989) 1 NWLR (Pt. 97) 279 where he said:

“The principle is that it is the duty of the plaintiff’s or appellant’s counsel in the instant appeal to get on with the case since public policy demands that the business of the courts should be conducted with expedition …. .”

He further went on at pages 277 – 278 and said:

“It is well settled that the exercise of appellate jurisdiction is statutory. A court cannot exercise jurisdiction to hear an appeal unless such jurisdiction is conferred by the Constitution or some enabling statue. Hence in the instant case the jurisdiction to relist an appeal dismissed under Order 6 rule 10 should be found in the Rules of the Court. I have not been lucky to discover any in the rules …..

I have already in this judgment referred to Order 6 rule 10 of the Court of Appeal Rules (1981) and pointed out the differences. It seems to me that there was no intention to give powers to the court to relist an appeal dismissed under Order 6 rule 10, hence no provision was made for it. Since Order 3 rule 20(3) (4) and Order 3 rule 25(2) provided for an appeal dismissed or struck out respectively, the omission to make a similar provision with respect to failure to file appellant’s brief inevitably suggests that there was a deliberate omission to make the provision. It is not the function of the court when construing statutes to supply omissions therein: See Customs Exercise v. Barau (1982) 10 S.C. 48.”

It is clear from the applicant’s application that the appeal was dismissed for want of prosecution based on the respondent’s application but the applicant is relying on Order 3 rule 20(4), which deals with non-compliance with condition of appeal which does not appear to be the case in respect of this application.

If the applicant had exhibited the ruling of this Court, dismissing the appeal, he would have afforded us the opportunity of seeing the reasons for the dismissal.

In any event, the applicant is by his application praying for the re-listing of an appeal dismissed by this Court. In other words, the applicant, in effect, is asking us to vary the decision of this court. I am afraid, going by the decision or the Supreme Court of Nigeria, above, which is binding on this Court, I hold that this Court lacks the inherent on statutory jurisdiction to relist this appeal. It appears to me from the submission of the Learned Counsel for the applicant that he is in fact challenging the jurisdiction of this Court in dismissing the appeal at the time it did hence the applicant ought to have applied for the dismissal to be set aside for having been made without jurisdiction.

Even under Order 3 rule 20(4) of the Rules of this Court, relied upon by the applicant, the restoration of the appeal is not as a matter of course, the court will only exercise its discretion in favour of the applicant for good and sufficient cause.

Assuming this court has jurisdiction, (I am not conceding that this court has jurisdiction), dealing with application on its merits under Order 3 Rule 20(4) of the Rules of this court, I would not grant this application. This is because 7 years is a long period and the applicant has not shown good and sufficient cause to warrant the grant of this application.

The applicant, as appellant showed complete apathy to the prosecution of his appeal as to amount to abandonment of it.

From the affidavit evidence, judgment in Suit No. A/73/89 was delivered on 28/5/92. According to the affidavit evidence, the Notice of Appeal was filed on 15/6/92, but it appears the applicant thereafter went to sleep. It is interesting to observe that despite several attempts by the respondent to wake up the applicant from his deep slumber, the applicant did not respond, until after the dismissal of the appeal.

Although the applicant claimed that the record of appeal has long been transmitted to this court, the applicant was unable to reply to paragraph 11 of the respondent’s Counter-Affidavit that to date no record of appeal has been served on the respondent and that there is no indication of the date the record was transmitted to the Court of Appeal. I must also state that no record was made available to me at the time of the hearing of this application.

With the greatest respect to the learned counsel for the applicant, it does not appear to me that he has given the appeal dismissed the attention it deserved.

The Court has a duty to do away with the congestion of cases filed before it, particularly where those cases are intended to merely over-reach or deny the respondent the enjoyment of the fruits of the judgment given in his favour by the trial court.

In the result, the application to re-list the appeal is hereby refused for lack of jurisdiction. The applicant shall pay costs assessed at N2,000.00 to the respondent.

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Other Citations: (1999)LCN/0580(CA)