Enaye Sisami Richard Abah V Eribo Monday & Ors (2015)
LAWGLOBAL HUB Lead Judgment Report
JOHN INYANG OKORO, J.S.C.
This is an appeal against the ruling of the Court of Appeal sitting in Abuja wherein the Lower Court dismissed the Appellant’s appeal No.CA/A/370/2013 on the 12th day of December, 2013. The facts leading to this appeal are as summarized below:-
Record of appeal in the dismissed appeal was transmitted from the trial Federal High Court to the Lower Court on the 10th day of July, 2013. Appellant’s brief of argument and Reply brief were filed on 31st July, 2013 and 13th September, 2013 respectively.
After the transmission of the Record of Appeal and the filling of briefs aforesaid, the Appellant’s counsel became aware of the then recent Court of Appeal Practice Direction 2013 and hence filed an application on 4/11/13 inter alia, seeking to regularize the said processes which were transmitted and/or filed outside the time prescribed by the said Court of Appeal Practice Direction 2013. The Appellant’s counsel in paragraphs 10 and 11 of the affidavit in support of the said motion on notice stated that the said lapses occurred due to his inadvertence as he was not aware of the said Practice Direction. The 1st Respondent’s counsel who was also then not aware of the said Practice Direction followed suit by filling an application to regularize his brief of argument which had been filed in accordance with the Court of Appeal Rules 2011.
On 12th December, 2013 when the matter came up for hearing before the Lower Court, the said court observed that the motion was defective as the appellant failed to indicate the suit number of the matter in the trial Federal High Court with respect to prayer No. 1 dealing with the Record of appeal and hence, the appellant’s counsel sought for the leave of the court to withdraw the said motion. Appellant’s counsel applied for an adjournment to enable him take steps to regularize the said processes.
The 1st respondent’s counsel opposed the appellant’s application for adjournment and instead applied for the dismissal of the appeal under Order 8 Rule 18 of the Court of Appeal Rules, 2011. The 1st respondent’s counsel made the application orally. At this time there was pending in the Lower Court an application for stay of further proceedings of the matter at the trial Federal High Court filed by the appellant.
The Lower Court nevertheless dismissed the Appellant’s appeal for failure to transmit record of appeal within the prescribed time pursuant to Order 8 Rules 4 and 5 of the Court of Appeal Rules, 2011. The Lower Court also dismissed all the pending applications.
The appellant being dissatisfied with the ruling of the Lower Court, filed an appeal against same to this court. The Notice of appeal was filed on 24/12/13 and contains three grounds of appeal, out of which the appellant has distilled two issues for determination. The two issues are as follows:-
- Whether the Lower Court infringed on the appellant’s fundamental human right to fair hearing.
- Whether in the peculiar circumstances of this case, the Lower Court had the jurisdiction to have dismissed the appellant’s appeal.
In this appeal, the learned counsel for the 1st respondent has adopted the two issues nominated by the appellant for the determination of this appeal. The other respondents did not file any brief in this appeal.
Arguing the 1st issue, the learned counsel for the appellant submitted that in view of the fact that it was the inadvertence of counsel which led to the dismissal of the appeal, such inadvertence should not be visited on the appellant. That by the premature dismissal of the appeal, the Lower Court visited the mistake of counsel on the appellant and deprived him of his right to fair hearing preserved by Section 36(6) of the Constitution of the Federal Republic of Nigeria,1999 (as amended). He argued that the failure of the court below to invite the appellant to argue his pending motion before striking them out amounted to denial of fair hearing. He cited and relied on the following cases:
Ceekay Traders Ltd V. G. M. Coy. Ltd. (1992) 2 NWLR (Pt.222) 132 at 147 – 148, Obombense V. Evhamson (1993) 7 NWLR (Pt.303) 22, Etim V. Registered Trustees (2004) 11 NWLR (Pt.883) 79.
Learned counsel also complained that his application for adjournment was never ruled upon before the Lower Court dismissed the appeal. This, he submitted breached the appellant’s right to fair hearing, relying on the cases of Bamawo V. Garrick (1995) 6 NWLR (Pt.401) 356 and Olumesan V. Ogundepo (1996) 2 NWLR (Pt.433) 625.
It is also counsel’s submission that failure to determine all pending applications before dismissing the appeal was a breach of appellant’s right to fair hearing citing the cases of FAAN V. WES Nig. Ltd (2011) 8 NWLR (Pt.1249) 219 at 237, General Electric Co. V. Akande (2012) 16 NWLR (Pt.1327) 593 at 611 amongst other authorities. He urged the court to resolve this issue in favour of the appellant.
In response, the learned counsel for the 1st respondent submitted that the ratio decidendi of the ruling of the court below was not on the mistake or inadvertence of counsel but on the failure of the appellant (himself) to comply with Order 8 Rules 4 and 5 of the Court of Appeal Rules, 2011. It is his submission that the appellant’s counsel cannot assume the responsibility of the appellant as stated in the said Rule of Court and be heard to argue that the sins or inadvertence of counsel was being visited on the appellant. On the motions struck out, learned counsel submitted that having dismissed the appeal, all pending motions could not stand alone as you cannot put something on nothing and expect it to stand. It is his contention that as at the time the appellant withdrew his application to regularize his processes, there was nothing left for the court to adjudicate upon or adjourn.
Learned counsel further argued that the appellant, who had an opportunity to be heard by the Lower Court, but deliberately or inadvertently refused to present his case, cannot be allowed to cry wolf or denial of fair hearing. He cited the cases of Ogunyemi v. Ejide (2008) 7 WRN 192 at 196, Zakari V. Alhassan (2002) 14 NWLR (Pt.786) 52 and Kuusu V. Udom (1990) 1 NWLR (Pt.127) 421 at 445.
Finally on this issue learned counsel submitted that the cases of Ceekay Traders Ltd. V. GM Coy. Ltd (supra), FBN PLC V. Assom (supra) are not applicable in this case. He urged this court to resolve this issue against the appellant.
In his reply brief, learned counsel responded that whenever the law expects a party to do an act, it is expected that counsel employed by the party is equally in a position to perform that act. He urged the court to ignore the argument of the 1st respondent on that aspect of the issue.
Both the appellant and the 1st respondent to this appeal agree that all necessary process in this appeal, i.e. transmission of record, appellant’s brief, respondents’ brief and appellant’s reply brief were filed at the Lower Court within time based on the Court of Appeal Rules, 2011 in the erroneous belief that the said rules of court governed the proceedings. It is also agreed that on becoming aware of the Practice Direction for Election Appeals at the Lower Court, which had abridged time for the filing of processes, both the appellant’s and respondents’ counsel filed applications to regularize the processes. Unfortunately, the appellant’s counsel failed to state the suit number of the suit at the Federal High Court appealed against in the first prayer of the motion which made the Lower Court to adjudge the said motion incompetent. An application to withdraw same was granted. Having struck out the said motion, I agree with the learned counsel for the 1st respondent that all the pending processes i.e. the record and briefs of both parties were irregular. The record of proceedings show that the appellant’s counsel applied for an adjournment to enable him regularize those processes. The learned counsel for the 1st respondent opposed the application. I have perused the entire gamut of the record and I am unable to find where the court below ruled whether to grant or refuse the adjournment. It is trite that every application for an adjournment whether made in writing or orally which is properly submitted before the court must be heard on the merits and decided upon before proceeding further with the case. It is never in dispute that the granting or refusal of an application for adjournment rests completely with the court or tribunal before which the application is made. It is at the discretion of the court to grant an adjournment. But there must be a ruling on the application and not as was done in this case. Although there is an application for adjournment and an opposition to it, there is no ruling on the face of the record of appeal. The court below ought to have decided it one way or the other before taking further steps in the matter. See FBN PLC V. Assom (2011) LPELR, Bamawo V. Garrick (supra) and Olumesan V. Ogundepo (supra).
Again, in an application for an adjournment, the court must balance the discretionary power to grant or refuse an adjournment and endeavor to give an appellant the opportunity of obtaining substantial justice in the shape of his appeal being granted a fair hearing on its merits provided always that no injustice is thereby caused to the other party and where the court erred in its balancing exercise, an appellate court is at liberty to interfere. See University of Lagos & Anor. v. M. I. Aigoro (1985) 1 SC 295.
In Abiodun Adenike Odusote V. Olaitan Olaniji Odusote (1971) ALL NLR 221 at 225-226, Udo Udoma, JSC (of blessed memory) sermonized on this issue as follows:-
“On the question of the exercise of discretion in granting application for adjournment, it is pertinent to quote a passage in the judgment of Lord Wright L. J. in Evans V. Bartham (supra) to which our attention was drawn by the learned counsel for the appellant. In his judgment, Lord Wright said at page 487:
“A judge’s order fixing the date of trial or refusing to grant an adjournment is a typical exercise of purely discretionary powers, and would be interfered with by the Court of Appeal only in exceptional cases, yet it may be reviewed by the Court of Appeal. Thus in Maxwell V. Keun (1928) 1 KB 645, the Court of Appeal reversed the trial judge’s order refusing to the plaintiff an adjournment. That was a pure matter of discretion on the facts.” Atkin L. J. said at page 653:
“I quite agree the Court of Appeal ought to be very slow indeed to interfere with the discretion of the learned judge on such a question as an adjournment of a trial, and it very seldom does so but on the other hand, if it appears that the result of the order made below is to defeat the right of the parties altogether, and to do that which the Court of Appeal is satisfied would be an injustice to one or other of the parties, then the court has power to review such an order and it is, to my mind, its duty to do so.”
See Evans V. Bartham (1937) A. C. 473.
In this case, the refusal to grant the adjournment, apart from the fact that the court below failed to rule on the application for adjournment, it had the effect of terminating the appellant’s appeal completely without offering them the opportunity of being heard on the merit. This is more so when the processes were filed, though out of time. It is my view that the Lower Court ought to have ruled on the application before taking further steps in the matter. Unfortunately, the further step taken was to dismiss the Appeal. By this singular act, the appellant was denied his right to be heard in his appeal before the court. It has been held in quite a number of cases in this court that a court should not punish a litigant based on the mistake or inadvertence of his counsel. In this country which we at this time are trying to transit from analog processes to digital, it is not unlikely that the Practice Direction did not receive wide circulation as at the time it was published. That is why both the learned counsel for the appellant and respondent were unaware of its existence and that was why they filed their processes as governed by the Court of Appeal Rules, 2011,. Both counsel also filed motions to regularize these processes filed on the wrong rules to buttress the fact that the said Practice Direction may not have been widely publicized. I am aware that ignorance of the law is not an excuse but in circumstance such as availed itself in this case, the court below ought to have exercised its discretion and lean towards doing substantial justice. The dismissal of the appellant’s appeal by the court below was therefore rash and did in fact deny the appellant the right to be heard on the merit. The argument of the 1st respondent’s counsel that it was the appellant who was expected to transmit record and not his counsel is of no moment. When a party briefs counsel to conduct his case for him, counsel is empowered to do those things which the party is supposed to do except where the law demands that a party has to personally sign a document. It is only then that counsel will not be permitted to sign on behalf of his client. The rules did not say that appellant must transmit the record personally. The process of the transmission of the record conducted by his counsel cannot be said to be against the rules. Thus the 1st respondent’s counsel’s argument that the mistake or inadvertence of counsel does not avail the appellant did not fly at all. Accordingly, I resolve the first issue in favour of the appellant.
On the second issue, the learned counsel for the appellant submitted that there was no valid application for the dismissal of the appeal by the 1st respondent as the 1st respondent did not file any motion on notice seeking to dismiss the appeal for the appellant’s failure to compile and transmit the record of appeal within the prescribed time. It is his view that Order 8 Rule 18 of the Court of Appeal Rules, 2011 relied upon by the 1st respondent stipulates that such an application must be made by Notice of Motion. He contends that where the law stipulates that an act be done in a particular manner, that manner and no other can be followed in the doing of such act. He cited the following cases:
Ajuta II V. Ngene (2002) 1 NWLR (Pt.748) 278, Inajoku V. Adeleke (2007) 4 NWLR (Pt.1025) 427, Kayode V. State (2008) 1 NWLR (Pt.1068) 281 and Okereke V. Yar’adua (2008) 12 NWLR (Pt.1100) 95.
Learned counsel for the appellant also submitted that the fact that the Lower Court held that it has inherent jurisdiction under Order 8 Rules 4 and 5 of the Court of Appeal Rules, 2011 to strike out an appeal for non-compliance with the requirements of compilation of record, this cannot save the situation. According to him, this is because the Lower Court did not strike out the appeal but rather it dismissed it. Also, that Order 8 Rules 4 & 5 of the Court of Appeal Rules, 2011 have no application to the appeal before the Lower Court because it was an appeal against interlocutory decision which is regulated by the Court of Appeal Practice Direction, 2013.
Learned counsel further opined that even if the court below had inherent power to strike out an appeal under Order 8 Rules 4 and 5 of the Court of Appeal Rules, 2011, such inherent power cannot be converted to an order dismissing the appeal. He urged the court to resolve this issue in favour of the appellant.
In response, the learned counsel for the 1st respondent submitted that a community reading of the provisions of Section 15 of the Court of Appeal Act, Section 6(6) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), Orders 2, 3 and 9 of the Court of Appeal Practice Direction, 2013, Order 8 Rules 4, 5 & 18 and Order 18 Rule 10 of the Court of Appeal Rules 2011, show that the Lower Court rightly exercised jurisdiction when it dismissed the appeal.
It was further submitted on behalf of the 1st respondent that the court below dismissed the appeal in exercise of its inherent powers. He urged the court to resolve this matter against the appellant.
In its ruling in this matter which has given birth to this appeal, the Lower Court states as follows:
“Court: In this matter, it is clear that the appellant failed to compile Record of Appeal and transmit same within the period stipulated by this court’s Rules. By Order 8 Rule 4 & 5, this court has inherent jurisdiction to strike out an appeal for non-compliance with compilation of Record of Appeal.
This appeal deserve to be dismissed for such non-compliance and it is hereby so dismissed.
All pending motions in this appeal are similarly hereby dismissed.”
It is quite clear from the record of appeal that before the court below made its ruling dismissing the appeal, the learned counsel for the 1st respondent had made an oral application for the appeal to be struck out. The contention of the appellant is that the application ought to have been made by Notice of Motion and in writing. Order 8 Rule 18 of the Court of Appeal Rules 2011 under which the application was made states:
“18. If the Registrar has failed to compile the records under Rule 1 and the appellant has also failed to compile and transmit the records in accordance with Rule 4, the respondent may by notice of motion move the court to dismiss the appeal.”
The use of the word “may” in the above provision seems to give the respondent a discretion whether to apply orally or by way of Notice of motion. This is so because it is opposed to the use of the word “shall” which connotes mandatoriness. Apart from this application by the 1st respondent, the court has an unfettered inherent jurisdiction to strike out or dismiss an appeal where an appellant has failed to prosecute same diligently. This has been the position of this court in quite a number of its pronouncements. Thus, in The Nigerian Navy & Ors V. Navy Captain D. O. Labinjo (2012) LPELR 7868 (SC) on pages 16 – 19, per Onnoghen JSC, this court held as follows:
“Apart from there being a motion on notice calling for the striking out of the appeal for want of prosecution which was duly served on the appellants, Order 8 Rules 18 of the Court of Appeal Rules 2007 on which the learned counsel relied in submitting that the filing of a notice of motion for the striking out of an appeal for want of prosecution is mandatory does not support that contention. The rule provides as follows:-
“If the registrar has failed to compile and transmit the records under Rule 1 and the appellant has also failed to compile and transmit the records in accordance with Rule 4, the respondent may by notice of motion move the court to dismiss the appeal.”
From the above, it is clear and I hereby hold that the filing of a motion on notice as provided supra is permissive not mandatory as the word “may” is used. It is a general principle of interpretation of statute that the use of the word “may” generally connotes permissive action though in exceptional circumstances it may mean mandatory or compulsory action.
However, in the con in which it is used in the rule under reference, it can mean but one thing, that is, permissive action…
In fact I hold the considered view that an appellate court, in a situation like the one under consideration in this appeal, has inherent jurisdiction to suo motu list the appeal and summarily dismiss same for want of prosecution without waiting for the respondent to make the application either orally or by way of a motion on notice as the court has the inherent power to do away with frivolous or vexatious appeals so as to decongest its cause list particularly where the appeal is intended to overreach or deny the respondent the enjoyment of the fruits of the judgment in his favour by the Lower Court.”
I have quoted the above judgment in extenso to underscore the position I have taken on the two pronged issues making up issue No. 2 to wit: whether the oral application made by 1st respondent was proper and whether the court has inherent power to strike out or dismiss an appeal for want of diligent prosecution. By the rules of stare decisis and precedent, I am bound to follow this decision. See also Enwezor V. Onyejakwe (1964) 1 All NLR 14, Chinwe V. Ude (1996) 7 NWLR (Pt.461) 379, Akujinwa V. Nwaonuma (1998) 13 NWLR (Pt.583) 632.
The learned counsel had argued that the court below lacked the jurisdiction to make the order. That is not correct in view of the position of this court in Nigerian Navy V. Navy Capt. D. O. Labinjo (supra) and other cases cited in that respect. As it turns out, this issue does not avail the appellant.
Be that as it may, in view, of the position I have already taken in issue one in this appeal and having regard to the peculiar facts and circumstances of this case, this appeal succeeds in part. According, the order of dismissal of the appeal entered by the Lower Court on 12/12/13 is hereby set aside. In its place, I hereby make an order striking out the said appeal.
The appellant’s counsel has prayed this court to invoke Sections 22 and 26 of the Supreme Court Act to hear and determine this appeal. This request or prayer cannot be granted. The reason is that the appeal has just been struck out. I do not know what the appellant intends to do hereafter. The appeal is yet to be revived or relisted. As at now, there is nothing upon which to invoke Sections 22 or 26 of the Supreme Court Act. The request is accordingly refused. I make no order as to costs.
Appeal allowed in part.
SC.3/2014
