Ezekiel Nneji & Ors. V. Chief Nwankwo Chukwu & Ors. (1988)

B. WALI, J.S.C.

The Plaintiffs sued the Defendants in the Enugu High Court of Anambra State for trespass to a parcel of land they called ‘Ajamu’, damages and injunction against further trespass. The claims were denied by the Defendants who called the same parcel of land ‘Azu Agu’, and claimed ownership of the same through inheritance patrimonially.

At the end of the trial, judgment was given in Plaintiffs’ favour. The reliefs claimed by Plaintiffs with N300.00 as general damages were also awarded against the Defendants.

Against the judgment the Defendants appealed to the Court of Appeal, Enugu Division and filed the Notice of Appeal on 29th April 1985 at the High Court Registry, Enugu.

The simple facts involved in this appeal are as follows –

The Plaintiffs sued the Defendants in the Court of trial for a declaration of title to a piece of land, injunction and damages for trespass. The trial Court granted all the claims of the Plaintiffs. The Defendants then appealed to the Court of Appeal Enugu. The Notice of Appeal was filed on 29th April 1985.

The Plaintiffs, in their affidavit sworn to on 14th October 1987 gave conflicting dates as regards the actual date the Defendants received the record of appeal from the High Court Registry Enugu. In paragraph 5 of the affidavit, the date of receipt of the record was given as 5th May 1987 while paragraph 6 of the same affidavit sworn to by the same deponent gave the date as 15th July 1987.

The Ruling of the court of Appeal seemed to have accepted 15th July 1987 as the date the Defendants received the record. By the middle of July 1987 the Court of Appeal went on its annual vacation which ended on 31st August 1987.

The Defendants as Appellants, were to file written brief within sixty days of the receipt of the record of appeal, as stipulated in Order 6 Rule 2 of the Court of Appeal Rules, 1981 (as amended by S.L. 26 of 1984). This, according to the Plaintiffs was not done within the time provided for by the Rules (supra). They therefore filed a Motion on Notice dated 13th October 1987 pursuant to Order 6 Rule 10 of Court of Appeal Rules, 1981, praying the Court to dismiss the appeal for want of prosecution. In support of the Motion, the 1st Plaintiff, Ezekiel Nneji, swore to an affidavit, part of which I reproduce hereunder:-

”4. On the 29th day of April, 1985, the Appellants/Respondents filed their Notice and Grounds of Appeal at the High Court Registry Enugu.

5. The record of appeal in this matter is now ready and was received by the Plaintiffs/Respondents/ Applicants from the High Court Registry Enugu on the 5th day of May, 1987.
6. On the 15th day of July, 1987, the Appellants/Respondents also received the record of appeal in this matter from the High Court Registry Enugu.
7. I am informed by C. ATU ESQ. a Counsel in the Chambers of Chike Ofodile S.A.N. our leading Counsel in this case and I verily believe him that the Appellants/Respondents have sixty days within which to file their Brief of Argument after the receipt of the record of appeal from the court below.
8. Sixty days have since elapsed without the Appellants/Respondents filing their Brief of Argument.
9. I am informed by C. ATU ESQ. and I verily believe him that his enquiries at the Court of Appeal Registry Enugu reveal that no brief of argument has been filed by the Appellants/Respondents.
10. The Appellants/Respondents are not eager to prosecute this appeal.”

On the Defendants’ part, Nwankwo Chukwu, a Traditional Ruler and 1st Defendant, swore to a counter-affidavit in part of which he deposed to the following facts –

”3. I have read the affidavit of Ezekiel Nneji sworn to in this Court on the 14th of October 1987 in support of his motion filed on the same day praying the court to dismiss our appeal against the judgment of the High Court of Anambra State in their favour for want of prosecution.

4. Paragraphs 1-6 of the said affidavit of Ezekiel Nneji are correct.
5. As regards paragraphs 7,8 and 9, I am advised by my counsel that the period of sixty days for filing the appellants’ brief has not run out as the period of vacation does not count in the running of time for the doing of any act prescribed by the Rules of Court.
6. It is not correct that we are not eager to prosecute this appeal.
7. We briefed a Senior Advocate of Nigeria, A.N. Anyamene, Esquire, to prosecute the appeal on our behalf.
8. I know as a fact that the draft of our brief of argument has been completed and is now undergoing vetting and corrections by the said Senior Advocate of Nigeria, having met him two days ago working on the said document.
9. I verily believe that the application by the applicants is intended to embarrass me and my people and our said counsel.
10. I am advised by our said counsel that this court has expressed its desire first to clear the backlog of appeals of four years old or more before taking on appeals entered recently.”

The Motion was argued on 29th October 1987 and on 19th November 1987, it was unanimously dismissed with the following remarks by Ikwechegh, J.C.A. –

”I think that I am safe in saying that the argument that time does not run during the Annual Vacation is an importation by Mr. Anyamene, SAN, from the Supreme Court Rules 1985 into this Court, and one may say it humourously here that the learned Senior Advocate had received no ‘import licence’ from the President of this Court; and he deals therefore in contraband. We wont permit this.

Mr. Ofodile is right and he is on the war path; but would he utterly destroy the hopes of the appellants in this matter

Mr. Anyamene appears to have settled the Brief of the appellants already. Paragraph 8 of the Counter-Affidavit filed by Nwankwo Chukwu reveals this. This is a land matter – a question which evokes much emotion amongst the natives of these parts. To strike out the appeal for this technical reason would be legitimate, but it would hardly produce justice in the situation. It seems to me that it is best to overlook the technicality here; the present apparent victory of the applicants in this matter is only paeudo (sic) and phyrric and may not last. But it would save time and expenditure to let in the respondents – and let them file the Brief, and the Respondents to file theirs, too, and the matter be heard and determined on the merits. This will achieve a just result, and the applicants could be compensated with adequate costs.”

Against the Ruling of the Court of Appeal, the Plaintiffs were granted leave by this Court to appeal, and the Notice and Grounds of Appeal were subsequently filed on 3rd December 1987. The Defendants also cross-appealed. Thereafter, parties filed and exchanged briefs. From now henceforth both the Plaintiffs and Defendants will be referred to as the Appellants and the Respondents respectively, in this Judgment.

In the Appellants’ brief, the following issues were formulated for determination-

1. ”Whether when there is an application for the dismissal of an appeal under ORDER 6 RULE 10 of the Court of Appeal (Amendment) Rules 1984 and there is no application for extension of time by the Appellants can the Court of Appeal suo motu extend the Appellants’ time for the filing of their brief of argument
2. Whether on the affidavit evidence before the court below there were any or sufficient materials justifying the exercise of the Court’s discretion to extend time in favour of the Respondents
3. Whether in view of this court’s decisions in Iro Ogbu vs. Urum (1981) 4 S.C. 1 and Yonwuren vs Modern Signs (1985) 1 N.W.L.R. Pt. 2 Page 244 a dismissal of an appeal for want of prosecution can be regarded as a judgment obtained by technicality”

The Respondents in their brief, formulated the following issues for determination-

”(a) Does time for the filing of briefs run in the court below during its annual vacation

(b) If the answer is in the negative was the court below competent to extend the time for filing the defendants’ brief suo motu

(c) If the court below was competent did it exercise its discretion judiciously”

The issues for determination in this appeal can be narrowed down to the following –

Whether, and having regard to the materials placed before it, the Court of Appeal was right suo motu in exercising its discretionary power to extend the time for the Respondents to file their brief of argument

In his argument, learned Counsel for the Appellants submitted that since the power of the Court of Appeal to enlarge time for doing any thing under the Court of Appeal Rules, 1981, is statutory, extension of time ought not to be granted as a matter of course but on proper application by a party. He also argued that no material was put before the Court of Appeal upon which it could exercise its discretion in the Respondents’ favour and submitted that in the circumstance, it ought to have dismissed the Respondents’ appeal pending before it. He referred to and cited the following decided cases and Rules of the Court of Appeal to support his submissions – National Bank of Nigeria Ltd. v. Are Bros. Ltd. (1977) 6 S.C. 97; Ratnam v. Cumarasamy (1964) 3 ALL E.R. 933 at 935; Revici v. Prentice Hall Incorporated & Ors. (1969) 1 ALL E.R. 772 at 774; Williams v. Hope Rising Voluntary Funds Society (1982) 1 S.C. 145 at 152-153; Bank of Baroda v. Mercantile Bank Ltd. (1987) 3 N.W.L.R. (Pt. 60) P. 233 at 239 and 242; T.O.S. Benson v. Nigerian Agip Oil Co. Ltd. (1982) 5 S.C.1; Balarabe Musa v. Hamza; Ikenye v. Ofunne (1985) 2 N.W.L.R. 1 at 13; Onibudu v. Akibu (1982) 7 S.C. 60 at 61,62 and 89; Oyeyipo v. Oyinloye (1987) 1 N.W.L.R. (PT. 50) 356 at 369; Yonwuren v. Modern Signs (1985) 1 N.W.L.R. (PT2) 244 at 258; or 3 R4(1); or 6 R 9(1) and or6 R 10 of the Court of Appeal Rules, 1981 (as amended). These submissions in the brief were orally elaborated on by the learned counsel for the Appellants, at the end of which this Court considered it unnecessary to call upon learned counsel for the Respondents to reply.

Order 6 Rule 10 of the Court of Appeal Rules, 1981 (as amended) under which the Motion was brought in the Court of Appeal by the Appellants provides that –

”10. Where an appellant fails to file his brief within the time provided for in rule 2 above, or within the time 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 except by leave of the Court. Where an appellant fails to file a reply brief within the time specified in rule 5, he shall be deemed to have conceded all the new points or issues arising from the Respondent’s brief.”

The provision of the Rule (supra) invests the Court of Appeal with a discretionary power to grant an application brought pursuant to that Rule, and the court in my view can only embark upon that exercise when it is satisfied that from the materials placed before it, the appeal prima facie lacks merit.

This appeal is not against the decision of the Court of Appeal in the substantive appeal which is still pending before it; it is rather an interlocutory appeal against the decision of the Court of Appeal, Enugu for refusing to dismiss the appeal for the Respondents’ failure to file their brief within the time stipulated in Order 6 Rule 2 of the Court of Appeal Rules, 1981, but instead exercised its discretion and extended the time suo motu, for the Respondents to file their brief.

On the question relating to the exercise of the discretionary power by the Court of Appeal for non compliance on the part of an appellant with the Rules or with any rule of practice for the time being in force in that Court, Order 7 Rule 3 provides that –

”Non compliance on the part of an appellant with these Rules or with any Rule of practice for the time being in force shall not prevent the further prosecution of the appeal if the Court considers that such non-compliance was not wilful, and that it is in the interest of justice that such non-compliance be waived.

The Court may in such a manner as it thinks fit, direct the appellant to remedy such non-compliance, and thereupon the appeal shall proceed.”

In determination of cases, a court aims at achieving substantial justice for the parties; mere technicalities should not therefore deter it from doing that. In University of Lagos & Anor. v. Aigoro (1985) 1 S.C. 265 Bello, J.S.C. (as he then was) though the facts involved in that case are not similar to the facts in this appeal, considered the question of use of discretionary powers by the Court and summarised the guiding principles at page 271 as follows –

”It is well settled that if a judicial discretion has been exercised bona fide uninfluenced by irrelevant considerations and not arbitrarily or illegally by the lower court the general rule is that an appeal court will not ordinarily interfere. But there are exceptions to this rule. It is in this area that one cannot lay down a hard and fast rule as to the exercise of judicial discretion, for a moment one does that the discretion of the Judge is fettered.” See Jones v. Curling 13 QBD 263. The guiding principle in this respect is that the discretion, being judicial, must at all times be exercised not only judicially but also judiciously on sufficient grounds.”

With the guiding principles (supra) the question I shall ask myself and try to answer in this appeal is –

“Did the Court of Appeal exercise its discretion both judicially and judiciously in refusing to dismiss the appeal but instead thereof extended suo motu, the time for the respondents to file their brief”

It is not in dispute that the Respondents filed their Notice and Grounds of Appeal within time. So also was it settled by the Court of Appeal that the Respondents received the record of appeal on 15th July 1987. It is also an undisputed fact that the Court of Appeal was on annual vacation from 15th July 1987 to 31st August 1987; and from the papers filed in this appeal, it shows that the Respondents’ brief in the substantive appeal has already been settled. In addition to these, the Court of Appeal is also seized of the record of proceedings of the trial Court. These are therefore sufficient materials upon, which it could proceed to consider the application.

Learned counsel for the Respondents tried to urge upon this Court in the cross appeal that time for filing brief does not run during the annual vacation of the Court of Appeal, though such vacation has never been sanctioned either by the Court of Appeal Act 1976, the Court of Appeal Rules, 1981 or any subsequent practice direction by the Hon. President of that Court. He cited the Statutory Instrument No. 18 of 1985 applicable to the Supreme Court and the practice in some of the High Courts in the States of the Federation and also the courts in some other commonwealth countries in support of that submission.

The attitude of this Court has always been that whenever it is possible to determine a case on its merit, the court should not cling to mere legal technicalities to refuse a complainant, (be it the appellant or the respondent) the opportunity of being heard for fear that such attitude might cause a temporary delay in disposal of the case. In National Employers Mutual General Insurance Association Ltd. v. J. O. Vehay (1973) 1 N.W.L.R. 170 at 175, Dr. Okonjo v. Mudiaga Odje & Ors 1985) 10 S.C. 267, Joseph Afolabi & Ors. v. John Adekunle & Anor. (1983) 8 S.C. 98 and Onyema Oke & Ors. v. Amos Eke & Ors. (1982) 12 S.C. 218 at 228 (authorities cited by learned counsel for Respondents), this Court applied its discretionary powers to relax the strict application of procedural law to enable it hear and decide the appeal in each case on its merit. Also in Obadiaru v. Grace Uyigue & Anor. (1986) 3 S.C. 39, the Supreme Court waived the requirement of Order 2 Rule 30 of the Supreme Court, Rules 1985 and proceeded to hear and determine the appeal on its merit. Irikefe, C.J.N., said at page 40-

”However in the interest of justice and in order to save such time as would have been wasted by striking this appeal out hereby, we have decided to deem this as an application for leave to file the

notice and grounds, again out of time and this time before us so that this appeal may be properly pending before us. We have accordingly waived the requirement that the notice be filed in the court below, that is, at the Court of Appeal. By doing this, we now have a situation where this appeal is now before us.”

The Supreme Court, in Nofiu Surakatu v. Nigerian Housing Development Society Ltd. & Anor. (1981) 4 S.C. 26 reviewed its decisions in Moses v. Ogunlabi (1975) 4 S.C. 81 and Adis Araba v Adeyemi (1976) 12 S.C. 51 and then proceeded to follow the Privy Council decision in Kojo Pan v. Atta Fua P. C. NO. 48 of 1925 and applied the provisions of Order IX of the Supreme Court Rules which is in pari materia with the present Order 7 Rule 3 of the Court of Appeal Rules, 1981, to remedy non compliance with the Rules in order to do substantial justice on what might have been a mere technicality.

See also paragraph 61.02 of page 764 of Aguda – Practice and Procedure of the Supreme Court, Court of Appeal and High Courts of Nigeria where the author, in considering Order 7 Rule 3 of the Court of Appeal Rules, 1981 stated thus –

“This Order is very wide in its application in that it gives the Court wide powers to waive the compliance by the appellant with any of the Rules in the interest of justice. See Aminu Akindele Ojora and Ors. v. Lasisi Ajibola Odunsi (1964) N.M.L.R. 12.”-

Although the submissions by learned counsel for the Appellants have some merits I do not consider it expedient in the given circumstance that ends of justice would be met if this prayer to dismiss the appeal is granted. Apart from the fact that both brief of argument and the record of trial court’s proceedings are now before the Court of Appeal, and because of the special circumstance in this case, to wit the records were served on the Respondents’ counsel on 15th July 1987, the time the Court of Appeal started its annual vacation which ended on 31st August 1987, it would only be fair and equitable if strict compliance with Order 6 Rule 2 of the Court of Appeal Rules 1981 was waived to enable the appeal be decided on its merit, as done by the Court of Appeal. The common practice in the Supreme Court and in some of the High Courts is that during annual vacation time does not run. There is nothing in the Court of Appeal Rules or in any practice direction issued by the learned President of that Court indicating that the practice in the Court of Appeal is the same as it is in the Supreme Court and or in some of the High Courts, though one may genuinely be tempted to assume so. This not withstanding, the submission by the learned counsel for the Respondents in his cross appeal that this Court should import the practice obtainable in other courts to interprete the Rules of the Court of Appeal on this issue, particularly when those courts are operating within an enabling provision, which is inadvertently missing in the Court of Appeal Rules, though plausible as it seems to be, shall not be apposite.

The court must balance the application of its discretionary power to grant or refuse an application to dismiss an appeal for non compliance with the Rules of that court with its duty of giving an appellant the opportunity of obtaining substantial justice by granting him a fair hearing in the appeal when that is considered expedient on the face of the materials before it. See Collins v. Vestry of Paddington (1880) 5 QBD. 308 at 381 where Thesiger, L. J. said on the exercise of judicial discretion by the Court-

“…………….each party has a right to have the dispute determined upon on merits, and courts should do everything to favour the fair trial of the questions between them”

See further Ojikutu v. Odeh (1954) 14 W.A.C.A. 640.

In my view the Appellants are not in any way prejudiced by the action of the Court of Appeal and they have been adequately compensated by the award of costs.

The suit on which the parties went to court was over a parcel of land in Anambra State. In Ntukidem v. Oka (1986) 5 N.W.L.R. (Pt. 45) 909, where the appeal also involved a dispute over a parcel of land situate in Anambra State, Aniagolu, J.S.C., in his concurring judgment said at p.922-

“Any person who is acquainted with land dispute in this country, and especially in the Eastern States, knows the level of tensions generated by land disputes and how easily the whole thing can degenerate into riots and inter-communal village wars in which, more often than not, innocent lives are lost. This emphasizes the utmost necessity of hearing those cases on their merits and satisfying the parties that the merits of their contentions have been gone into, critically analysed, and justly decided upon. Anything short of this is an invitation for trouble. But this is not to say that the Courts must shy away from firm and courageous determination of cases before them for fear of intimidatory violent reactions. What it all means is that every effort must painstakingly be made to do justice. A snappy short-cut decision, bereft of an examination of the merits of the case, often settles nothing but rather exacerbates the conflict.”

For the fore-going reasons I shall dismiss both the appeal and the cross appeal by the Appellants and the Respondents respectively. They are hereby dismissed. The consequential orders made by the Court of Appeal in its Ruling dated 19th November 1987 are hereby affirmed. Parties are to bear their own costs in the appeals.

It appears to be desirable that the Hon. President of the Court of Appeal should do something to bring into conformity, the practice in the Court of Appeal with the practice now prevailing in the Supreme Court and some of the High Courts in the Federation vis-a-vis the computation of time for filing briefs during annual vacation. The vacation should also be given a legal backing.

K. ESO, J.S.C.: I have had the privilege of a preview of the judgment which has just been delivered by my learned brother Wali, J.S.C. and I am in agreement with his reasonings for dismissing the appeal of the Appellants, the Cross Appeal by the Respondents and all the orders contained in the judgment of my learned brother Wali, J .S.C.

S. KAWU, J.S.C.: I have had the privilege of reading in draft the lead judgment of my learned brother, Wali, J.S.C. which has just been delivered. For the reasons stated in the said judgment, I am also of the view that the appeal lacks merit. I think the Court of Appeal properly exercised its discretionary powers under Order 7 Rule 3 of the Court of Appeal Rules, 1981 (as amended) when it refused to dismiss the respondents’ appeal in that Court. In the circumstances, I too will dismiss both the appeal and the cross-appeal with no order as to costs.

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SC.213/1987