Daewoo (Nig) Ltd V. Alamina & Anor (2022)

LAWGLOBAL HUB Lead Judgment Report

IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C. 

The instant appeal is a natural fall-out of the decision of the Court of Appeal, Port-Harcourt, Judicial Division, coram Ejembi Eko, JCA (as he then was), Modupe Fasanmi and Stephen J. Ada, JJCA, delivered on January 27th, 2014 in appeal No. CA/PH/295/2013. By the decision in question, the Court below dismissed the Appellant’s appeal challenging the decision of the Rivers State High Court in suit No. NHC/91/2000 delivered on March 8th, 2013.

BACKGROUND FACTS

The facts and circumstances surrounding the appeal are not at all far-fetched. They are deducible from the record of appeal, evidently transmitted from the Court below to this Court on October 6th, 2021.

Indeed, the genesis of the appeal is traceable to September 23rd, 1991. That was the fateful day one Siyeofori A lamina was killed while fishing in Ogu Creek, in Ogu lobolo Local Government Area of Rivers State, in an accident allegedly caused by the Appellant’s speed boat, SLUDGE 1.

​Series of efforts were made by the respective parties with a view to amicably diffusing tension arising from the circumstances leading to the untimely death of the deceased person. Most particularly, on September 23rd, 1999, one Mr. HT Minakiri wrote letters to the Appellant and various other organizations (including the Ijaw Freedom Fighters, Ijaw National Congress, et al), thereby demanding for the payment of damages in the sum of N147,000,000.00 (One Hundred and Forty Seven Million Naira) only to the family of the victim of the accident, the late Mr. Siyeofori Alamina.

On December 20th, 1999, the Appellant, by its letter addressed to the Ijaw National Congress, forwarded to the family of the deceased person (Mr. S. Alamina) an Equity Bank Ltd cheque bearing the sum of one Million Naira. The cheque in question was received and duly acknowledged by one High Chief F.J. Williams on December 21st, 1999.

However, on September 28th, 2000, 9 years after the fateful accident that resulted in the death of the said Mr. S. A lamina, Mr. H T Minakiri (now deceased) deemed it expedient the institute the suit (NHC/91/2000) at the trial High Court vide a writ of summons. Filed along with the writ was a motion Ex parte, thereby praying the trial Court to hear and determine the action under the undefended List procedure. The trial Court granted the motion Ex parte, and accordingly entered the action under the undefended List.

On October 17th, 2000, barely two weeks after entering the suit under the undefended List, the trial Court proceeded to deliver judgment and grant all the reliefs sought by the Respondents (claimants).

Consequent upon the demise of the original claimant (Mr. Minakiri), the 1st Respondent herein filed an application to substitute same, which said application was duly granted by the trial Court on February 29th, 2012.

On March 1st, 2012, the Appellant filed an application (dated 29/02/2012) seeking the trial High Court for the following reliefs:

1. AN ORDER for extension of time within which to apply to set aside and/or vacate the judgment/decision delivered in this matter on the 17th day of October, 2000 for want of jurisdiction and non-service of the originating processes in the matter on the Defendant/Applicant.
2. An ORDER setting aside and/or vacating the judgment/decision delivered in this matter on the 17th day of October, 2000 for want of jurisdiction and non-service of the originating processes in the matter on the Defendant/Applicant.
3. AN ORDER setting aside the aforesaid judgment/decision in this suit delivered on the 17th, day of October, 2000 on the ground that the same was obtained by fraud and/or misrepresentation.
4. AN ORDER striking out the claimant’s writ of summons and other processes in this matter for lack of jurisdiction of the Honourable Court to hear and entertain this matter.
5. AN ORDER for stay of execution of the judgment/decision delivered in this action on the 17th day of October, 2000 by the Honourable Court pending the hearing and determination of this application.
6. AN INJUNCTIVE ORDER restraining the Claimants/Respondents, whether by themselves, their servants, agents and privies from howsoever employing any known means or method of executing or recovering the sums awarded to him in the judgment delivered on 17/10/2000 which is being challenged herein, including the commencement of garnishee proceedings before any superior Court of record in Nigeria in pursuance of the aforesaid judgment of 17/10/2000 pending the hearing and determination of this application.
7. AND for such further or other orders as this Honourable Court may deem it fit to make in the circumstance.

ALSO TAKE NOTICE that the Defendant/Applicant may seek the following alternative prayers:-

1. AN ALTERNATIVE ORDER that the writ of summons and other originating processes be served on the Defendant/Applicant so that she can enter appearance in the matter and deliver her notice of intention to defend the suit together with an affidavit disclosing defence on the merit
2. AN ALTERNATIVE ORDER removing the matter forth with from the undefended list and transferring it to the general cause list for it to be heard on the basis of pleadings and viva voce evidence of the parties and their witnesses.
3. A FURTHER ALTERNATIVE ORDER striking out the name of the 2nd claimant in this suit as it is a non-juristic legal persona that can neither sue nor be sued eo nomine.

That application was predicated upon a total of ten grounds and 23 affidavits sworn to by one Jude Umahi, the Assistant Administration manager of the Appellant.

​The Appellant’s application seeking to set aside the default judgment in-question was argued by the respective parties and ruling delivered by the trial Court on March 18th, 2013, thereby resulting in dismissing the Appellant’s application.

Not unnaturally, the Appellant was utterly dissatisfied with the said ruling of the trial Court, thus appealed to the Court below. That appeal was dismissed for want of prosecution; thus leading to the instant appeal.

On 11/10/2021, when the appeal at long last came up for hearing before us, the learned counsel addressed the Court and adopted the submissions contained in their respective briefs of argument. Thus, warranting the Court to reserve judgment to today.

The Appellant’s brief of argument settled by Tayo Oyetibo SAN on 25/3/2014, spans a total of 40 pages. At pages 8- 10 of the said brief, 5 issues have been couched for determination:

1. WHETHER THE COURT OF APPEAL WAS RIGHT IN LAW IN DISMISSING THE APPELLANT’S APPEAL, SUO MOTU, FOR WANT OF PROSECUTION PURSUANT TO ORDER 18 RULE 10 OF THE COURT OF APPEAL RULES 2011 WHEN THE APPELLANT HAD BEFORE THE COURT AN APPLICATION FOR LEAVE TO AMEND ITS NOTICE OF APPEAL BY FILING ADDITIONAL GROUNDS OF APPEAL AND THERE WAS NO APPLICATION FROM THE RESPONDENTS SEEKING THAT RELIEF. (GROUNDS 1 AND 4)
2. WHETHER HAVING REGARD TO SECTION 36 (1) OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA 1999 (AS AMENDED), THE COURT OF APPEAL WAS RIGHT IN LAW IN DISMISSING THE APPELLANT’S APPEAL PURSUANT TO ORDER 18 RULE 10 OF THE COURT OF APPEAL RULES 2011, WITHOUT FIRST AFFORDING THE APPELLANT AN OPPORTUNITY OF BEING HEARD AND MAKING REPRESENTATION RESPECT THEREOF. (GROND 2)
3. WHETHER THE COURT OF APPEAL WAS RIGHT IN LAW IN REFUSING THE APPELLANT’S PRAYERS FOR AMENDMENT OF ITS NOTICE OF APPEAL ON THE GROUNDS THAT THE APPELLANT HAS NOT FILED ITS BRIEF NOR APPLIED FOR EXTENSION OF TIME TO FILE THE BRIEF, WITHOUT CONSIDERING THE PRAYERS IN QUESTION ON THEIR MERITS. (GROUNDS 3 AND 5)
4. WHETHER THE COURT OF APPEAL WAS RIGHT IN LAW IN SUO MOTU, DISMISSING THE APPELLANT’S APPEAL, PURSUANT TO ORDER 18 RULE 10 OF THE COURT OF APPEAL RULES 2011, ON A DAY FIXED FOR THE HEARING OF ALL PENDING MOTIONS, WHEN THERE WAS NO PENDING APPLICATION FROM THE RESPONDENTS FOR THE DISMISSAL OF THE APPEAL. (GROUNDS 6)
5. WHETHER THE DECISION OF THE COURT OF APPEAL DISMISSING THE APPELLANT’S MOTION DATED 4TH JULY, 2013 WAS NOT A NULLITY FOR FAILURE TO CONSIDER, AT ALL, PRAYERS 3 AND 4 OF THE APPLICATION (GROUND 7)

Issue No. 1 is argued at pages 10-18 of the brief. In the main, it’s submitted that the Court of Appeal had no jurisdiction to dismiss an appeal pursuant to Order 18 Rule 10 of the Court of Appeal Rules, 2011. Further submitted, that the Court below was wrong in dismissing the Appellant’s appeal pursuant to Order 18 Rule 10 (supra), when the Appellant had before that Court an application seeking an amendment of its notice of appeal. The cases of OBOMHENSE VS. ERHAHON (1993) 7 NWLR (pt. 303) 22; AJUWA VS. SPDC NIGERIA LTD (2011) 18 NWLR (pt. 1279) 797 @ 834-837; NNEJI VS. CHUKWU (1988) 3 NWLR (pt. 81) 184, have been cited and relied upon in support.

The Court is urged to so hold, and set aside the decision of the Court below, as it is allegedly unjustifiable in law.

Issue No. 2 is argued at pages 18-24 of the brief, to the conclusive effect that the decision of the Court below thereby dismissing the Appellant’s appeal was taken suo-motu in contravention of Section 36 (1) of the 1999 Constitution as amended. Thus, the said decision must be declared a nullity. See ADIGUN VS. AG OYO STATE (1987) NWLR (pt. 53) 678.

The Court is urged to nullify the said decision by which the Appellant’s appeal was dismissed.

Issue No. 3 is argued at pages 24—29 of the brief, to the conclusive effect that the amendment being sought by the Appellant relates to grounds 2, 3 and 5 of the notice of appeal, thereby raising jurisdictional issues relating to the judgment of the trial Court. That, if the Court below had not taken irrelevant matters, it would undoubtedly have granted the application based on settled principles.

The Court is urged to resolve the issue in favour of the Appellant.

Issue No. 4 was argued at pages 30—33 of the brief, to the conclusive effect that it’s clear from the supplementary record, that the business of the Court below on 27/01/2014 was the hearing of all pending applications. There was no pending application before the Court as at that date seeking dismissal of the appeal pursuant to Order 18 Rule 10 of the Court of Appeal Rules (supra).

The Court is urged to so hold.

Lastly, issue No. 5 is argued at pages 34-38 of the brief. In the main, it’s submitted that the Court below was wrong in failing or neglecting to consider prayers 3 and 4 of the Appellant’s motion without giving any reason whatsoever. See GENERAL ELECTRIC CO. VS. AKANDE (2012) 16 NWLR (pt. 1327) 593 paragraphs E-H; COOKEY VS. FOMBO (2005) 15 NWLR (pt. 947) 182 @ 200 paragraph D.

It was postulated, that the failure of the Court below to consider prayers 3 and 4 of the motion in-question was a grave violation of the Appellant’s right to fair hearing guaranteed under Section 36 (1) of the 1999 Constitution, as amended. The Court is urged to so hold.

Conclusively, the Court is urged upon to allow the appeal.

Contrariwise, the 1st and 2nd Respondent’s brief was filed on 24/05/2017 and settled by I.E Oguaju-Dike Esq. It spans a total of 26 pages. At pages 5-10 of that brief, a preliminary objection has been raised and duly argued, thereby urging upon the Court to hold that grounds 3, 4 and 5 of the notice of appeal are incompetent, and invalid, thus ought to be struck out as the Court lacks jurisdiction to determine same.

At page 10 of the brief, two issues have been raised.

1. Whether the Court of Appeal in the exercise of its Constitutional, statutory and inherent powers, has the jurisdiction to dismiss an appeal that is not being diligently prosecuted by the Appellant.
2. Whether a party who was given an opportunity to be heard, but failed, refused and/or neglected to avail himself of that opportunity can be heard to complain of breach of fair hearing guaranteed under the Constitution of the Federal Republic of Nigeria, 1999 (As Amended).

Issue No. 1 is argued al pages 10-16, of the brief. In a nutshell, it is submitted that the Court below possesses power and jurisdiction under the Constitution and the enabling statute to dismiss the appeal that has been abandoned by the appellant for want of diligent prosecution, primarily to decongest its cause list.

Further submitted, that the Appellant filed the appeal on 19/03/2013 against the ruling dated 18/03/2013 refusing to set aside its judgment, delivered on 17/10/2000. The record of appeal was transmitted to the Court below on 09/05/2013.

​It is argued, that the Appellant was not prudent enough to file brief thereof. That the application on (04/7/2013) was a deliberate and grand design to frustrate the Respondents from reaping and enjoying the fruits of their judgment of over 17 years.

Issue No. 2 was argued at pages 16-24 of the brief. In the main, it is argued that it’s apparent from the circumstances of the case, that the Appellant’s action and conduct at the Court below was in flagrant disregard and breach of the express mandatory provisions of Order 18 Rule 2 of the Court of Appeal Rules, 2011. That the Appellant was given an ample opportunity by the Court below to be heard on Order 18 Rule 10, but the Appellant declined to address the Court on such fundamental issue.

Conclusively, the Court is urged to dismiss the appeal for lacking in merits and affirm the judgment of the Court below.

DETERMINATION OF THE RESPONDENTS’

PRELIMINARY OBJECTION

As alluded heretofore, the Respondents have raised and argued a preliminary objection at pages 5-10 of the brief thereof.

The preliminary objection exclusively challenges the competence of Grounds 3, 4 and 5 of the Notice of Appeal vis-a-vis issues 3 and 5 of the Appellant (pages 24-29 and 34-38 of the Appellant’s Brief) respectively.

Jurisprudentially, the fundamental objective of a notice of preliminary objection is to accord the adversary party an opportunity of reacting to the objection with a view avoiding any unwholesome surprise:CHIEF AGBAKA VS. CHIEF AMADI (1998) NWLR (pt. 572) 16 @ 25; OGIDI (DECEASED) & 7 ORS VS. EGBA & 5 ORS (1999) 6SCNJ 157; ABUBAKAR VS. JOSEPH (2008) 13 NWLR (pt. 1104) 307; (2008) 34 NSC QR (pt. 11) 11195.

Remarkably, the procedure for raising a preliminary objection to grounds of appeal has been reiterated in a plethora of formidable authorities. See NSIRIM VS. NSIRIM (1990) 3 NWLR (pt. 138) 285 @ 296, et al. Fundamentally, for a preliminary objection to be validly raised and considered, the Respondent must first and foremost file a motion on which the objection is based.

In the instant case, the Respondents’ objection exclusively challenges Grounds 3, 4 and 5 of the Notice of Appeal. Thus, presupposing the fact that the rest of the Appellant’s grounds are competent.

In the circumstance, the Respondents’ preliminary objection ought to be, and same is hereby discountenanced.

DETERMINATION OF THE APPEAL ON THE MERITS

Having accorded a critical, albeit dispassionate, consideration upon the nature and circumstances surrounding the appeal, the submissions contained in the briefs of argument vis-a-vis the record of appeal as a whole, I am inclined to adopt the five issues raised and argued by the Appellant for the determination of the appeal, anon.

ISSUE NO. 1

The first issue raises the question of whether the Court below was right in law in dismissing the Appellant’s appeal (CA/PH/295/2013) suo-motu for want of prosecution, pursuant to Order 18 Rule 10 of the Court of Appeal Rules 2011, when the Appellant had before the Court an application for leave to amend its notice of appeal by filing additional grounds. The first issue was distilled from ground 1 of the notice of appeal.

It is trite, on the face of the records of appeal that the motion filed by the Appellant on 04/07/2013 prayed for a total of 4 reliefs.

On 27/01/2014, when the motion came up for hearing, Oyetibo, SAN submitted thus:

Motion filed on 4/7/2013. It has 4 prayers. Prayers seek amendment of Notice of Appeal. Amended Notice of appeal is Exh. DNL7. We seek a deeming order. See ERISI V. IDIKA (1987) 4 NWLR (pt. 66) 503 at 514 517.

We made offer to deposit the judgment debt in interest yielding (sic) in the name of Deputy Chief Registrar of this Court within 30 days. Prayer for stay of execution was refused by Court below. Order Nisi; paragraphs 15-18 support affidavit. Order Nisi was obtained when this matter is pending in this Court.

Record was transmitted on 9/5/2013. This application was filed on 4/7/2013. There was an application filed on 21/3/2013 in this Court we were here on 11/4/2013. The Order Nisi was made on 15/4/2013.

Relief for stay of conditional stay(sic) was in this Court when the order Nisi was made. FIDELITY BANK PLC V. OKWUOWULU (2013) 6 NWLR (1349) 197 AT 213 —4

However, on the part thereof, Lamikanra, SAN of Respondents’ counsel, vehemently objected to the application. He accordingly submitted:

We urge dismissal. The Court lacks jurisdiction to entertain this application. The application is incompetent for prayer’s 3 & 4 aim at stay of execution of the judgment of 17/10/2000. There is no appeal against this judgment. Jurisdiction therefore cannot be invoked in respect of prayers 3 4,

2 Proceeding sought to be stayed is the garnishee proceeding at the Court below.

3. The judgment debtor is not a party in garnishee proceeding. The contest is between judgment debtor and the garnishee, the bank. The garnishee is not before this Court. There is no appeal against the Order Nisi UBA V. EKANEM (2010) 6 NWLR (pt. 1190) 207 AT 221-225; PURIFICATION TECH V. AG LAGOS (2004) 9 NWLR (pt. 879) 600 at 665 — the fact that there is motion for stay of execution does not preclude motion for garnishee proceedings, which is between judgment creditor and the garnishee. See also DENTON WEST V. MUOMA (2008) 6 NWLR (pt. 1083) 402 at 418.

Appellants are not desirous of perusing the appeal against the order refusing to set aside the judgment delivered 2000 on the undefended list procedure. There was prayer for extension of time within which to apply for order setting aside the judgment. The Court below refused the application. Hence this appeal.

The Court has a duty to enforce its own judgment. This Court does not have power to prevent Court below from exercising its own Constitutional powers. The appellate jurisdiction of this Court has not been invoked. NELSON’S LAW OF INJUNCTIONS 6th ed. vol. 2 pt. 163; PALANIANNAL VS. PALLIAPALA YAN (1981) M. L. J. 147 at 152.

Application be refused, especially prayers.

Contrariwise, Oyetibo, SAN replied on points of law:

Application to set aside judgment is a challenge to the judgment. The refusal gives right of appeal OKAFOR V. EZENWA (1992) 4 ALL NWLR (237) 611 at 6170

Judgment debtor is a party to garnishee proceedings by reason of service on him of the order Nisi pursuant to Section 83 (2) Sheriff & Civil Process Act. Payment of judgment debt supported order nisi – TOTAL NIG, LTD V. ELECTRICAL & MECH CO. LTD (1972) 8-9 SC44 at 52 (Reprint).

The power of this Court is vested by Order 4 Rule 11 Rules of this Court. The lower Court no longer has jurisdiction.

The Court below proceeded to deliver its ruling consequent upon the submissions of the respective learned senior counsel, to the conclusive effect:

RULING

This appeal from which this interlocutory application emanates was filed on 19/3/2013. The appeal is against the refusal of the Court below to set aside the judgment delivered on 17/10/2010 on the undefended list. The refusal to set aside the said judgment, as rightly submitted by Mr. Oyetibo, SAN for the applicant is an appealable decision by virtue of Section 315 of the 1999 Constitution, as amended.

The records of appeal, in the appeal against the refusal to set aside judgment on the undefended list, was transmitted to this Court on the 9/5/2013. Up till this moment, the Appellant has not filed his brief of argument, and there is no application for extension of time within which to file the Appellant’s brief Order 18 Rule 2 of the Rules of this Court enjoins every appellant to file his brief within 45 days after the receipt of the Record of appeal.

This appellant/applicant are now in violation of Order 18 Rule 2 directive,

The Appellant/Applicant is playing games. The name of the game is delay. He has been at this since 2000. He waited till 2013 to apply for the judgment on the undefended list to be set aside.

On 18/3/2013 the application to dismiss the 2000 judgment was refused. The Record in the interlocutory appeal was transmitted since 9/5/2013. He filed this application for leave to amend notice of appeal on 4/7/2013 — 46 days after the Record was transmitted. He has no prayer for extension of time within which to file his brief. Equity follows the law and it assists or aids only the vigilant and not the indolent.

The conduct of the applicant does not warrant the grant of this application is hereby dismissed in its entirety.

By dint of Order 18 Rule 10, read with Order 18 Rule 2, of the Rules of this Court 2011 the appeal is hereby dismissed for want of prosecution.

The foregoing findings and conclusive order thereby dismissing the Appellant’s application in-question represent the unanimous decision of the Court below. It is obvious, the decision of the Court below is cogent, unassailable and duly supported by the circumstances surrounding the appeal on the Records.

By virtue of the provision of Order 18 Rule 10 of the defunct Court of Appeal Rules, 2011:

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. If the respondent fails to file his brief, he will not be heard in oral argument.

Undoubtedly, Rule 10 (supra) is predicated upon the provision of Rule 2 of Order 18 of the Court of Appeal Rules, 201 1 which provided:

The Appellant shall within forty-five 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.

The foregoing provisions of Order 18 Rule 2 (supra) are unequivocal, and clearly provided for the time limit within which the Appellant in the present appeal ought to have filed the written brief of argument thereof. The duty to file written brief imposed upon the Appellant within 45 days after the record of appeal was served on him was rather imperative. That’s to say, time began to run for the Appellant to file his brief from the day the record of appeal was served thereupon. See CONSORTIUM M.C. VS. NEPA (1992) 6 NWLR (pt. 246) 132; et al.

As aptly found by the Court below at page 388 of the Record of Appeal:

The Record in the interlocutory appeal was transmitted since 9/5/2/13. He filed no brief. He filed this application for leave to amend the notice of appeal on 4/7/2013 — 46 days after the Record was transmitted. He has no prayer for extension of time within which to file his brief. Equity follows the law and it assists or aids the vigilant and not the indolent.

I cannot agree more with the foregoing finding of the Court, which said finding is unassailably cogent and duly supported by the record and the trite principles of law in regards thereto. And I so hold.

In the circumstance, the first issue ought to be, and it is hereby resolved against the Appellant.

ISSUE NO. 2

The second issue raises the question of whether having regard to Section 36 (1) of the 1999 Constitution as amended, the Court below was right in law in dismissing the Appellant’s appeal pursuant to Order 18 Rule 10 of the Court of Appeal Rules 2011, without first affording the Appellant an opportunity of being heard and making representation thereon. The second issue is distilled from ground 2 of the notice of appeal.

​Instructively, it’s a trite constitutional doctrine that in the determination of the civil rights and obligations thereof, a person shall be entitled to a fair hearing within a reasonable time by a Court of law or tribunal established by law in such a manner as to secure its independence and impartiality. See Section 36(1) of the Constitution of Federal Republic of Nigeria, 1999 as amended.

Undoubtedly the provision of Section 36 (1) of the 1999 Constitution, supra, has been a subject of interpretation over the years by this apex Court in a plethora of formidable authorities. That provision has always been recognized and upheld by this Court to formidably protect all the parties to a case, whether as plaintiffs, defendants, appellants or respondents, as the case may be. Thus, it would be reprehensibly oppressive to interpret the provision as merely conferring a protection on just one of the parties to a case. This is absolutely so, because the fundamental and most onerous duty of a Court of law or Tribunal, is to administer justice between the respective parties to a dispute in any given case without fear or favour, affection or ill-will. Thus, one-sided justice would amount to an injustice. As aptly once pontificated over three decades ago by this Court:

The law is made to ensure justice. Rules of Court are hand maids of justice. It is only by orderly administration of law and obedience to the rules that legal justice can be attained. When a particular decision is against all known rules; against all known principles, then it is certainly not made in the interest of justice.

See WILLOUGHBY VS. INTERNATIONAL MERCHANT BANK (NIG) LTD (1987) 1 NWLR (pt. 48) 105 per Oputa, JSC @ 131 paragraph H.

In the case of ENEKEBE VS. ENEKEBE (1964) ALL NLR 102 @ 107, Bairamian, JSC quoted with approval the apt observation of Lord Simon in CHARLES OSENTON VS. JOHNSTON (1942) AC 130 @ 138:

The appellate tribunal is not at liberty merely to substitute its own exercise of discretion for the discretion already exercised by the Judge. In other words, appellate authorities ought not to reverse order merely because they would themselves have exercised the original discretion, had it attached to them in a different way. But if the appellate tribunal reaches the clear conclusion that there has been a wrongful exercise of discretion in that no weight or sufficient weight, has been given to relevant consideration such as those urged before us by the appellant, then reversal of the order on appeal may be justified.

See also SOLANKE VS. AJIBOLA (1968) ALL NLR 46.

In the instant case, I am unable to appreciate let alone uphold, the Appellant’s argument urging upon us to interfere with and set aside the unassailable findings of the Court below, to the conclusive effect that the Appellant’s appeal ought to be dismissed for having been deemed abandoned. And I so hold.

In the circumstance, the second issue ought to be, and it is hereby resolved against the Appellant.

ISSUES 3, 4, & 5

As copiously alluded to above, the third issue raises the question of whether the Court below was right in law in refusing the Appellant’s prayers for amendment of the notice of appeal on the grounds that the Appellant had neither filed its brief nor applied for extension of time to file a brief, without considering the prayers in-question on their merits. The third issue is distilled from grounds 3 and 5 of the notice of appeal.

​The fourth issue raises the question of whether the Court below was right in law in, suo-motu, dismissing the appeal pursuant to Order 18 Rule 18 of the Court of Appeal Rules, 2011, ​on a day fixed for the hearing of all pending motions, when there was no pending application from the Respondents for dismissal of the appeal. The issue is distilled from ground 6 of the notice of appeal.

Lastly, the fifth issue raises the question of whether the decision of the Court below dismissing the Appellant’s motion, dated 04/07/2013, was not a nullity for failure to consider prayers 3 and 4 of the application. The issue is distilled from ground 7 of the notice of appeal.

It is submitted by the Appellant that in dismissing the Appellant’s appeal, the Court below basically gave two reasons in coming to that decision:

1. That time within which to file appellant’s brief had expired; and
2. There was no prayer for extension of time within which to file the brief.

Allegedly, the Court below had relied on wrong and unrecognizable reasons in law in dismissing the Appellant’s application. See Order 6 Rule 4 Court of Appeal Rules; AKERE VS. GOVERNMENT OF OYO STATE (2012) NWLR (pt.134) 240 @267 paragraph G. et al.

​Indeed, it’s trite that a refusal by a Court of trial or appellate Court, to hear and determine an interlocutory application pending the hearing and determination of the case or appeal, may result in denial of fair hearing of the Appellant contrary to Section 36 (1) of the 1999 Constitution (supra). This trite general doctrine has been reiterated in a plethora of decisions by this Court. Most particularly, in the case of OBOMHENSE VS. ERHAHON (1993) 7 NWLR (pt. 303) 22, where the Court below declined to rule on an oral application for adjournment and proceeded to dismiss the appeal, it was held by this Court that such conduct had amounted to a breach of fair hearing of the Appellant. Thus, justifying the setting aside of the judgment upon the breach. Likewise, in the case of EKE VS. OGBONDA (2006) LPELR-1075 (SC), this Court cited with approval OBOMHENSE VS. ERHAHON (supra) and ONYEKWULUJE VS. ANIMASHAUN (1996) 3 NWLR (pt. 439) 637 @ 644, and accordingly aptly held:

It is indeed a cardinal principle of administration of justice to let a party know the fate of his application whether properly or improperly brought before the Court.

Per Mohammed, JSC (as he then was) @ 23—24 paragraphs G-A.

​In the instant case, it’s obvious on the face of the record of appeal (pages 386-388), that the judgment appealed against by the Appellant was delivered on 17/10/2000 on the undefended list. For reasons best known to the Appellant, the record of appeal was not transmitted to the Court until twelve years and ten months after the delivery of the judgment in-question, By virtue of the provisions of Order 18 Rule 2 of the Court of Appeal Rules, 2011, the Appellant had only 45 days from that date (09/5/2013) to file the brief thereof. That he did not do. Instead, the Appellant filed the application on 04/07/2013, thereby seeking to amend the notice of appeal.

As aptly alluded to by the Court below at page 38 of the Record:

Order 18 Rule 2 of the Rules of this Court enjoins every appellant to file his brief within 45 days after the receipt of the Record of appeal. This appellant/application is now in violation of Order 18 Rule 2 directive.

The unapologetic attitudinal disposition of the Appellant did not in any way help matters. As aptly alluded to by the Court below (page 387 of the Record):

In this application, there is no prayer for extension of time within which the Appellant would file his brief Mr. Oyetibo SAN when asked if there is such prayer for extension of time within which to file Appellant’s Brief says that it would be presumptuous to do so in view of the prayers for amendment of the Notice of Appeal. These are two different scenarios.

The sanction for violating the directive in Order 18 Rule 2 is in Order 18 Rule 10 of the same Rules. It is an Order dismissing the appeal for want of prosecution.

I cannot agree more with the foregoing unassailable findings of the Court below.

As copiously alluded to above, in the course of the hearing of the said motion (04/7/2013) Lamikanra, SAN of Respondent’s learned counsel vehemently objected to the application:

We urge dismissal. This Court lacks jurisdiction to entertain this application. The application is incompetent …

Appellants are not desirous of pursuing the appeal against the order refusing to set aside the judgment delivered 2000 on the undefended list procedure…

Replying on points of law Oyetibo, SAN posited that as the application to set aside the vexed judgment was a challenge to the judgment, the refusal gives right of appeal. He cited and relied upon OKAFOR VS. EZENWA (supra).

The learned silk further posited, that a judgment debtor is a party to garnishee proceedings by reason of service on him of the order Nisi pursuant to Section 83 (2) of the Sheriffs and Civil Process Act: TOTAL NIG. LTD VS. ELECTRICAL & MECH CO. (supra) @ 52. And that the power of this Court is as vested by Order 4 Rule 11 Rules of the Court. Thus, the Court below no longer has jurisdiction.

In view of the circumstances surrounding the motion (04/7/2013) under discussion vis-a-vis the eloquent respective submissions of the learned silk, I am unable to appreciate let alone uphold the Appellant’s argument, that the right to fair hearing thereof has been breached by the refusal of the Court below to grant prayers 3 and 4 for stay of execution of the judgment of the trial Court.

​Undoubtedly, it’s so obvious on the face of the record of appeal, that the Appellant was solely the architect of the travail thereof. For reasons best known thereto, the Appellant has failed to live up to expectation and dictates of the law. It has not disposed itself to a reasonable degree of vigilance in the prosecution of the case thereof both at the Courts below and this Court. Yet, the biblical truism is that the fundamental condition precedent upon which the Almighty God graciously accorded man liberty is eternal VIGILANCE. Thus, the well-cherished equitable doctrine VIGILANTIBU ET NON DORMIENTIBUS JURA SERVENIAM. That’s to say, the laws aid the vigilant, not the indolent. Thus, in my view the legendary William Shakespeare could not have been more correct when he lyrically philosophized:

The enemy increases every day, we, at the height are ready to decline.

There is a tide in the affairs of men, which taken at the flood, leads on to fortune;

Omitted, all the voyage of their life is bound in shallows, and in miseries.

See JULIUS CAESER (properly pronounced KAISAR) ACT IV, SCENE 3; AROMIRE VS. AJOMAGBERIN (2011) LPELR- 3809 (CA), per Saulawa, JCA (as he then was).

In the circumstances, issues 3, 4 and 5 ought to be, and are hereby resolved against the Appellant.

Hence, having resolved all the five issues against the Appellant, the appeal resultantly fails, and it is hereby dismissed by me,

The ruling delivered by the Court of Appeal Port-Harcourt Judicial Division on January 27th, 2014, thereby dismissing the Appellant’s appeal No. CA/PH/295/2013, is hereby affirmed.

The Respondents shall be entitled to N5,000,000.00 as costs against the Appellant.

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SC.48/2014