Consortium M.c. 3632 Lot 4, Nigeria V. National Electric Power Authority (1992)

LawGlobal-Hub Lead Judgment Report

NNAEMEKA-AGU, J.S.C. 

On 17th December, 1984, the plaintiff obtained a final award from a panel of three arbitrators against the defendant in arbitral proceedings arising out of a contract. An application by the defendant in suit No.M/44/85 to set aside the final award or remit it to the arbitrators for consideration was dismissed by Famakinwa, J., on the 29th of January, 1987.

Dissatisfied with the decision of the High Court on the matter the defendant appealed to the Court of Appeal. Because the defendant/appellant failed to file its brief within time, the plaintiff/respondent filed a motion to dismiss the appeal for want of prosecution. That application is one of the two applications which have led to this appeal.

This interlocutory appeal is against two rulings made by the Court of Appeal, Lagos Division on the 13th day of March, 1990 in the suit. The first ruling related to the application, dated the 29th day of November, 1989,by the present appellant to dismiss the appeal of the defendant/respondent for want of prosecution of its appeal before the court. The motion was fixed for hearing on the 1st of February, 1990. On the day of hearing the respondent (appellant) filed a motion dated 30th January, 1990, for extension of time to file its brief. Both motions had to be adjourned to the 13th of March, 1990, for hearing.

On the date fixed for hearing, the court heard the appellant’s motion for extension of time to file its brief of argument first and granted it. Learned counsel for the respondent (appellant in this court) says that he asked for the motion to dismiss the appeal for want of prosecution to be taken first, but that the court refused. This is not borne out by the record of proceedings for that day: however that would have made no difference to the conclusion I shall reach below. What is material is that in its first ruling, the Court granted the defendant’s application for extension of rime to the date of hearing for the appellant to file, its brief. The brief had, in fact, been filed the previous day. Then the court heard the application to dismiss the appeal for want of prosecution, then dismissed it with N50.00 costs to the defendant. These two rulings form the bases of this appeal by the plaintiff (hereinafter to be referred to as the appellant). The defendant shall hereinafter be referred to as the respondent

The appellant filed its brief. The respondent filed no brief, but applied orally and was granted leave to argue the appeal without a brief. From appellant’s six grounds of appeal, learned counsel on its behalf formulated the following issues for determination, namely:

“Question 1

What is the proper procedure for taking and considering the two separate applications – the first, to dismiss an appeal for want of prosecution by reason of failure to file an Appellant’s Brief and the second for extension of time to file his brief

Question 2

When does the time for filing an appellant’s brief underOrder6 rule 1 of the Court of Appeal Rules 1981 (as amended in 1984) begin to run – and end

Question 3

Did the learned Justices of the Court of Appeal judicially exercise their discretion in granting the application of the applicant/appellant therein for an extension of time to file its brief and dismissing the prior application of the Respondent therein to dismiss the appeal for want of prosecution

Question 4

Was the Hon. Justice F.G. Awogu, Justice of the Court of Appeal right or justified to castigate the conduct or leading counsel fort the respondent in the Court of Appeal for-

(a) Opposing the application of the appellant therein, the learned justice’s reason being that a legal practitioner’s sad plight was the reason for the application;

(b) Moving the motion of the respondent therein to dismiss the appeal for want of prosecution, the learned Justice’s reason being that the Court had just granted the appellant’s motion for an extension of time to file its brief.”‘

Learned counsel for the appellant adopted his brief and addressed us orally. Learned Senior Advocate for the respondent addressed us orally.

The first point that was canvassed strenuously by counsel was the order of precedence of the two motions, one seeking to have the appeal dismissed for want of prosecution for failure to file the brief of the appellant and other seeking an extension of time to file the appellant’s brief which had in fact been filed before the hearing of the application.

Learned counsel for the appellant submitted that the Court of Appeal should have dealt with the appellant’s motion to have the appeal dismissed for want of prosecution together with the motion for extension of time to file the brief. He submitted that that practice would have been in consonance with what this court did in the case of Western Steel Works Ltd. & anor. v. Iron & Steel Workers Union of Nigeria & anor. (1986) 3 N.W.L.R. (Pt.30) 617 where such applications were heard and disposed of together. He conceded that if taken separately common sense dictates that the one for extension of time to file the brief would be taken first; but submitted that such a course would result in injustice to the respondent in that its application to dismiss the appeal for want of prosecution would not be given due consideration. This would be a denial of fair hearing. In his submission, learned Senior Advocate for the respondent stated that the Court of Appeal exercised its discretion in the matter correctly. He pointed out that the practice is that where there are two such applications by both sides to the appeal that which will prevent the court from taking the appeal on its merits will be taken first. He cited the case of The Vice Chancellor A.B.U. Zaria & Ors v. Yan Alhaji Ado (1986) 3 N.W.L.R. (Pt.31) 684. He submitted that the correct thing is to take them together for the sake of fair hearing.

I am of the clear view, with respect, that if learned counsel for the appellants had adverted fully to decided cases on the issue, he would not have argued as he did on this particular issue. It is enough to refer to a few of them here. In the case of Moses Abiegbe & Ors v. Ugbodume & Ors (1973) 1 S.C. 133, where the same question of precedence in such applications was raised, this court held at pages 149 – 150:

“As earlier on stated, the learned trial Judge decided on dealing with the application for the dismissal of the action dated 18th August, 1969 before dealing with that for enlargement of time. With respect, we think that the learned trial Judge, howbeit within his competence, was putting the cart before the horse. If it was intended, as we were persuaded to believe, by the learned trial Judge, to exercise his discretion to deal with both applications together, we would have thought that it would have been fair and just that the application for enlargement of lime should have been considered and determined, before dealing with the other one; and this is mainly because the fate of the application for the dismissal depends largely on the result of the application for enlargement of time,”

Also in The Vice Chancellor A.B.U. Zaria & Ors v. Yau Alhaji Ado & Anor. (1986) 3 N.W.L.R. (Part 31) 685, the Court of Appeal stated at p. 694:

“Generally where there are two motions before the court, prudence and justice demand that the application which may prevent the court from hearing the substantive case before it on the merit if it succeeds be taken last.”

In the case of Western Steel Works Ltd. & Anor v. Iron and Steel Workers Union & Anor (1986) 3 N.W.L.R. (Pt. 30) 617 which was cited by learned counsel for the appellant. the real issue was not the precedence of two applications such as were before the court in this case. Rather it is as to (he duty of court to put an end to its proceedings when it is manifest that it was al any stage beset by incompetence or want of jurisdiction. Such is not the issue in this case.

In the recent case of Nalsa & Team Associates v. N.N.P.C. (1991) 8 N. W.L.R, (Pt. 212) 652, this Court had occasion to review the principles and consider some decided cases on such a situation as has arisen in this case. At page 667 of the report, this court expressed a view similar to that of the Court of Appeal in the case of The Vice Chancellor A.B.U. (supra). It stated’:

“It appears to me that for a proper resolution of the real issue raised by this aspect of the appeal. it is necessary to bear in mind the fact that where the complaint is as to failure to take a step as provided by the rules or in accordance with an order of court made under the rules, there is already in existence a valid proceeding before the court. In such a case, if there are two motions, one seeking to regularize a point of non-compliance with a rule or an order of court and the other seeking to strike out or dismiss the proceedings on the ground of the non-compliance, a court of justice and equity ought to take the motion which seeks to regularize the proceedings and preserve them from being struck out or summarily dismissed first before considering the application for striking out or dismissal for non-compliance. Indeed, invariably, in practice, the motion to summarily dismiss or strike out the appeal is withdrawn and struck out and the applicant compensated with costs. This is in accord with the rule that the courts are now expected to do substantial and not technical justice. In such cases the aim of the court ought to lean in favour of the proceeding that will bring about the doing of substantial justice; See Fari Khawan v. Foud Michael Elias (1960) 5 F.S.C, 224: (1960) S.C.N.L.R. 516. To do otherwise, will amount to a wrongful exercise of the court’s discretion: See Walersteiner v. Moir (1974) 3 All E.R.217.”

I must reiterate the fact that our courts have deliberately shifted away from the narrow technical approach to justice which characterized some earlier decisions of courts on the matter. Instead, it now pursues the course of substantial justice. On that board principle, it appears to me that the argument of learned counsel for the appellant that the two applications ought to have been taken together simply because taking the one for extension of time to file the brief first would make it unnecessary to hear the one for dismissal for want of prosecution and thereby lead to want of fair hearing must be rejected as a misconception.

For when we talk of fair hearing between the parties, we must conceive it with reference to the real issues in litigation between the parties. Interlocutory applications and proceedings are but a handmaid and aid to enable the court reach the ultimate goal of doing substantial justice between the parties in the real issues in litigation between them.

As it is so, I cannot conceive it to be right that the proper way to do so in the case on hand was to have taken the application to dismiss the appeal because of mere delay in filing the appellant’s brief and therefore peremptorily drive the appellant from the seat of justice and, if successful, dismiss or strike out the appeal first before considering whether time would be extended for it to file the brief. I may ask, would there have arisen the need to extend time to file a brief in an appeal that had been dismissed or struck out. To hold that learned counsel for the appellant was right in his contention will tantamount to sanctioning injustice through the short-arm of technicality. That is, not our current arm in the administration of justice.

I must therefore resolve the first issue against the defendant appellant.

The second issue relates to computation of time as to when the period of sixty days for an appellant to file his brief in the Court of Appeal should begin to run, whatever from the date of actual receipt of the record of appeal, at appellant’s convenience, or upon receipt of the notice of compilation of the record from the Registrar. Counsel pointed out that from the uncontradicted affidavit of Chike Akosa, learned counsel for the respondent, who was the appellant in the Court of Appeal, the respondent was served with the notice that the record of appeal had been compiled on the 19th day of June, 1989. From the affidavit on behalf of the respondent, the record was paid for some three months after; yet no reason was given for the late payment. Time to file appellant’s brief should have started to run from the date of receipt of a notice from the Registrar that the record had been compiled and not when the appellant decided to go and pay for an collect the record, he submitted. Learned Senior Advocate for the respondent, on the other hand, relying on order 6 rule 2 of the Court of Appeal Rules, 1981 as amended in 1984, submitted that time to file the appellant’s brief ought to start to run from the date of receipt of the record after payment on 18/9/89 and not on the receipt of the Registrar’s notice on the 19th of June, 1989.

This issue turns on the correct interpretation of Orders 6 rule 2 of the Court of Appeal Rules which provides as follows:

“2. 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 the appeal.”

Does this rule mean that if an appellant after due notice of the compilation of the record decides to wait for, say, ten years before going to pay for and collect the record of proceedings, the period of sixty day for him to file his brief starts to run front the date he decided to go and pay for and collect the record Or should it be deemed to have started to run from the date he was duly served with the notice that the record was ready

In order to reach a correct decision on the meaning of order 6 rule 2. I must first ask myself what proper approach I ought to make to its construction. There can be no doubt that if I construe it in isolation and in accordance with the strict words of the rule, it means what the learned Senior Advocate says that it means to wit: that the time started to run when the appellant decided to go and pay for and collect the record. But does this carry out the intendment of the rule Of what use is the service of the Registrar’s notice that the record was ready for collection I must advise myself that it is the law that although rules of procedure are to be interpreted as imperative (for which see Fox v. Wallis (1877) 2 C.P.D. 45: Aspinall v. Gutton (1894) 2 Q.B, 349), yet, it is equally important that such rules, like other statutes, ought to be construed as a whole and not in isolation. Moreover, the choice offered by the conflicting stances of counsel on both sides on the issue appears to me to be a choice between the object of the rules to quicken the pace of appeals and committing matters at the mercy of an appellant who can then decide when to go and pay for and collect the record, after due notice of its compilation. When there is such a choice, the court is expected, in the true spirit of statutory interpretation, to apply a beneficial construction in order to achieve the objective of the rule. See on this Maxwell: On Interpretation of Statutes (12th Edn.) pp.92 – 96. See also: Re Wingham (1949) P.187: Orbit Mining & Trading Co. Ltd. v. Westminster Bank Ltd. (1962) 2 All E.R. 552. P. 561. It appears clear to me that the main purpose of the rules relating to briefs is to quicken the pace of appeals in our courts. As it is so, that construction which is in accord with the very mischief aimed at by the rules must be preferred. To choose the interpretation urged on us by the learned counsel for the respondent is not only to defeat this fundamental purpose of the rules but also to make nonsense of the purpose for which the Registrar has to serve notice of compilation of the record on the parties. Therefore, bearing the above objects in mind and applying the above principles of interpretation, the only conclusion I should reach is that time within which the appellant shall file his brief shall begin to run from the service on him of the Registrar’s notice that the record has been compiled. To hold otherwise will be to enable him benefit from his own default. But this does not mean that I shall automatically allow the appeal; that decision will depend on the next question.

Having so held, the decisive question in this appeal is whether or not the Court of Appeal was right to have exercised its discretion in favour of the respondent by extending time for it to file the appellant’s brief. Dealing with this issue, the Court of Appeal, per Babalakin, J.C.A. (as he then was) in his lead ruling to which Awogu and Kalgo. J.J.C.A. concurred, held on the affidavit evidence before the Court:

“This is an application for extension of lime to file appellant’s brief because after the receipt of the record of proceedings the counsel who had the record and was preparing the brief of argument was attacked by armed robbers and her properties including the record of appeal were stolen.

The applicant has since obtained a record of appeal from the Court of Appeal and has filed the brief of argument.

The affidavit sworn to by the law clerk who works with the counsel robbed indicated his source of information.

It is my view that the paragraph of the affidavit read together discloses a good ground to grant this application. The Supreme Court has moved from the harshness of Benson’s case relied upon by Mr. Obi to the soft attitude of allowing appeal to be heard on merit: see Nneji v. Chukwu (1988) 3 N.W.L.R. (Part 81) p. 184. Time within which to file the appellant’s brief is extended till today.

Brief filed on 12/3/90 is deemed properly filed and served. I award N50.00 costs in favour of the respondent.

(Sgd)

B.O. BABALAKIN

JUSTICE, COURT OF APPEAL.”

The affidavit of the applicant relied upon was uncontradicted. I am of the clear view that the learned Justices of Appeal exercised their discretion correctly in the matter. I must, therefore, resolve issue No.3 against the appellant.

I do not think that issue No.4 is a proper one for this appeal. This is because it was based on an isolated observation in an isolated statement in the concurring judgment of the learned Justice of the Court of appeal. Although it is permissible or I should say it is the rule that, by virtue of section 258 (2) of the Constitution every Justice of the Court of Appeal or of the Supreme Court is expected to write his own judgment and, often arrive at the same conclusion through different routes, what can form an issue for purposes of an appeal is a fact or law or a combination of them upon which majority of the Justices are ad idem. And as has been stated several times, an issue for purposes of an appeal is not just every slip committed by the Judge whose judgment is appealed from. Rather for purposes of an appeal, it is a proposition of law or off act so cogent, weighty and compelling that a decision on it in favour of a party to the appeal will entitle him to the judgment of the court. See on this: Chukwuma Okwudili Ugo v. Amamchukwu Obiekwe & Anor (1989) N.W.L..R. (Pt. 99) 566, p. 580; Standard Consolidated Dredging Construction Co. Ltd. v. Katonecrest Nig. Ltd. (1986) 5 N.W.L.R. (Pt. 44) 791, p. 799. On a point of principle, this court deals with the ratio decidendi in the judgment appealed from i.e. points upon which the unanimous judgment or the court depended, not on obiter dicta in concurring judgments.

All the relevant issues in the appeal having been resolved against the appellant, the appeal fails and is dismissed with costs of N1,000.00 against the appellant.M. L. UWAIS, J.S.C.: I have had the opportunity of reading in draft the judgment read by my learned brother, Nnaemeka-Agu, J.S.C. I agree with him that the appeal should be dismissed for the reasons which he has ably stated. However, I regret to say that I differ with him on the interpretation to be given to Order 6 rule 2 of the Court of Appeal Rules, Cap. 62 of the Laws of the Federation of Nigeria, 1990.

The Rule provides-

“2. 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.”

These provisions are very clear and in interpreting them they ought, in accordance with the elementary principles of interpretation of statutes, to be given their ordinary meaning. In that con, therefore, time does not start running until the appellant receives the record of appeal. To interpret the receipt of record of appeal to mean the receipt by the appellant of the notice by the Registrar of the High Court that the record had been compiled, is, in my opinion, and with respect, to do violence to the intendment of the Rule. The issuance of a notice by the Registrar that the record of appeal is compiled or is ready for collection by parties is not a provision of the Court of Appeal Rules, but an administrative measure in aid of the Rules. This measure cannot, in my view, be made to supplant the specific provisions of the Rules, which are not ambiguous, that time begins to run when the record of appeal is received by the appellant in a case.

The point has been made by learned counsel for the appellant that record of appeal should be collected within sixty days of the receipt of the Registrar’s notice and that if this proposition is not accepted, the consequence is that the appellant would be at liberty to take as long as he wished before collecting the record and this will lead to inordinate delay in the appeal being heard. I agree that after the receipt of a notice to collect the record of appeal there is no time limit for appellant to comply since the directive by the Registrar to the appellant is not sanctioned by the Court of Appeal Rules. However, there is a way out. The Court of Appeal has the inherent power to deal with such default.

The respondent to the appeal who becomes aware, as in the present case, that the appellant is adopting delaying tactics in the prosecution of his appeal, will be at liberty to apply to the Court of Appeal to strike out the appeal for want of prosecution and depose in the affidavit in support of his application that there has been such a delay. In that event it will be open to the Court of Appeal. if satisfied with the allegation. to exercise its inherent powers and sanctions under Section 6 subsection (6) (a) of the 1979 Constitution to strike out the appeal for want of prosecution without doing violence to the provisions of Order 6 rule 2 of the Court of Appeal Rules.

The foregoing notwithstanding. I agree that the Court of Appeal exercised its discretion properly in taking the application for extension of time to file the appellant’s brief of argument first and granting it in preference to the application to dismiss the appeal for failing to file the brief in time. Accordingly, this appeal fails and it is hereby dismissed with N1,000.00 costs to the respondent.

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SC.157/1990