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:-

1. Whether the Lower Court infringed on the appellant’s fundamental human right to fair hearing.
2. 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.