Hrh Eze N. K. Agha & Anor V. The Commissioner for Local Government and Chieftaincy Affairs & Ors (2016) LLJR-CA

LawGlobal-Hub Lead Judgment Report

PETER OLABISI IGE, J.C.A.

By their Motion on Notice dated the 26th day of May, 2014 and filed in the Registry of this Court on 28th day of May, 2014, the Appellants Applicants HRH EZE N. K. AGHA and ISUIKWUATO LOCAL GOVERNMENT pray this Court for the following Orders:-

(a) An Order granting the applicants leave to apply out of time for the restoration of Appeal Number CA/PH/378/2008 which was erroneously dismissed for want of diligent prosecution on 17th March, 2010.

(b) An Order extending the time within which the appellants/applicants shall apply (out of time) for the restoration of Appeal Number CA/PH/378/2008 which was erroneously dismissed for want of diligent prosecution on 17th March, 2010).

(c) An Order restoring Appeal Number CA/PH/378/2008 which was erroneously dismissed for want of diligent prosecution on 17th March, 2010.

(d) An Order granting leave to the Applicants to amend the Notice of Appeal in Appeal No. CA/PH/378/2008 by re-numbering the 1st and 2nd sets of Respondents as the 1st, 2nd, 3rd, 4th, 5th and 6th Respondents, respectively.

(e) An Order amending the numbering of the 1st and 2nd sets of Respondents on the face of the Notice of Appeal to read 1st, 2nd, 3rd, 4th, 5th, and 6th Respondents, respectively.

AND for such further or other Orders as the Court may deem fit to make in the circumstance.

The application is predicated on the following grounds namely:

(i) The appeal was dismissed on 17/3/2010 and the appellants/applicants immediately filed an application to restore the appeal.

(ii) The application could not be heard by the Court until 7/5/2013 when the Court struck it out because the first set of respondents was stated to be also appellants/applicants.

(iii) The applicants filed another motion for the restoration of the appeal but the same was struck out on 27/1/2014 because it was filed out of time as ten days had elapsed before the motion was filed.

(iv) The leave of the Court is necessary for the appeal to be restored. The issue before the Court on 17/3/2010 ought to have been failure to compile and transmit complete Record of Appeal and not failure to the Appellants Brief.

(vi) The 2nd set of Respondents who were aware that the issue at that time was the transmission of complete Record of appeal filed a Motion to dismiss the Appeal for failure to the Appellants Brief which was fixed for 17/3/2010 but filed in 2009.

(vii) The Motion was served on the Applicants on 13/3/2010 while it was stated on record of proceedings of 17/3/2010 that it was served on 2/3/2010.

(viii) The Appellants Counsel wrote for adjournment on 17/3/2010 but his Secretary who came from Aba to deliver the letter ran into some difficulties and could not arrive before the Appeal was mentioned.

(ix) The Notice of Appeal in this matter bears the names of the 1st set of respondents as appellants and leave of Court is required to amend same.

The said Motion is hinged on Orders Rules 1 & 10(1), 8 RULE 20, 6 RULE 15 of the Court of Appeal Rules, 2011 and under the inherent jurisdiction of the Court.

The Motion is supported by 73 paragraph Affidavit Sworn to in this Court on 28th May, 2014 with documents marked as Exhibits A, B, C, D1, D2, D3, E, F, G, K and L attached.

The Motion was duly served on the Respondents. The 4th, 5th and 6th Respondents filed COUNTER AFFIDAVIT sworn to in the Registry of this Honourable Court by the 6th Respondent on 8th day of December, 2014. The said Counter Affidavit had attached to it documents marked as Exhibits R1, R2, R3, R4, R5, R6, R7, R8, R9, R10 and R11 respectively.

This Court ordered that Written Addresses in support or against the Motion be filed and exchanged due to the contentions nature of the application and the Applicant and the 4th– 6th Respondents exchanged Written Addresses. The Written Address of the Applicants was filed on 13th day of January 2016. It was dated 23rd day of December, 2015 while the 4th– 6th Respondents filed their Written Address dated 3rd day of February 2016 on 8th day of February, 2016.

The Appellants/Applicants filed Reply on Points of Law dated the 29th day of February, 2016 on 1st day of March, 2016.

The said Written Addresses were duly adopted on 2nd day of March, 2016 by the Applicants Learned Counsel and the Learned Counsel to the 4th – 6th Respondents. The Learned Counsel to the 1st, 2nd and 3rd Respondents J. C. Ikedieze Senior State Counsel Ministry of Justice Abia State informed this Court that the 1st, 2nd and 3rd Respondents filed no Counter Affidavit and that they are NOT opposing the Appellants/Applicants Motion.

K. E. Ogbonna Esq. for the Appellants/Applicants stated that the Motion seeks to restore Appeal No. CA/PH/378/2008 which K. E. Ogbonna Esq. said:

¦ was erroneously dismissed on 17th day of March, 2010 for failure to file Brief of Argument while the issue before the Court at the material time was complaint and transmission of complete Record of Appeal to the Court.

The Learned Counsel K. E. Ogbonna Esq. also states:

The applicants are also asking for Leave to amend the Notice of Appeal.

He relied on the grounds for the application as well as the 73 paragraph Affidavit in support with the Exhibits therewith attached. He narrated the facts leading to the dismissal of the appeal. He formulated three Issues for determination viz:

1. Whether an Appeal dismissed for want of diligent prosecution can be restored.
2. Whether the Court has inherent powers to set aside its own Order/Decision.
3. Whether the present matter is appropriate one for the Court to restore the Appeal.
4. Whether a Notice of Appeal can be amended.

The Learned Counsel to the 4th – 6th Respondents too set out what he considered to be the background facts leading to the dismissal of Appellants appeal for want of diligent prosecution. The 4th -6th Respondents Learned Counsel thereafter sought for determination of five issues on the Motion to relist or restored the dismissed appeal back to the Cause List of this Court thus:

1. Whether this Court can restore appeal dismissed under ORDER 17 RULES 10 of 2007 COURT OF APPEAL RULES.
2. Whether the contention of incomplete record by Applicants is proper.
3. Whether Applicants have been diligent in prosecuting the Appeal filed on 10/8/2005.
4. Whether the Court of Appeal was misled into dismissing appeal NO. CA/PH/378/2008 on 17/3/2010 as alleged by Applicants.
5. Whether the Court can Amend the Notice of Appeal.

I am of the firm opinion that this motion can be determined on the four Issues formulated by the Applicants Learned Counsel. Applicants argued Issues 1 and 2 together.

I believe it is right or proper to take Issues 1, 2 and 3 together.

ISSUES 1, 2 AND 3

1. Whether an Appeal dismissed for want of diligent prosecution can be restored.
2. Whether the Court has inherent powers to set aside its own Order/Decision/Judgment.
3. Whether the present matter is appropriate one for the Court to restore the Appeal.

The Learned Counsel to the Applicants K. E. Ogbonna Esq. submitted that an appeal dismissed for want of diligent prosecution can be restored by the Court and that the Court has the Inherent Powers or jurisdiction to set aside is Orders, Judgment or decision. That in this Case the Appellants/Applicants Case having not been heard on the merit, it would not matter whether the words struck out or the word dismissed was used in disposing of Appellants Appeal. That in Cases like this, the appeal of the appellant could be restored by this Court.

That Courts of record have inherent jurisdiction to set aside its judgments or decisions in appropriate cases or under certain circumstances. He relied on the cases of CHIEF OZO NWANKWO ALOR & ANOR. VS. C. NGENE & ORS. (2007) 149 LRCN 1523 at 1538 and TOMTEC NIGERIA LTD. V. FHA (2007) 179 LRCN 1 at 22-23.

That the 4th – 6th Respondents knew at the times they filed application for dismissal of the Appellants appeal that the Applicants were complaining of incomplete Appeal Record. That the said Respondents deceived this Court when they told the Court that Applicants failed to file Brief of Argument. That this Court was misled into dismissing the appeal erroneously for failure to file Brief of Argument.

According to Applicants if any Order ought to have been made at all on 17/3/2013 it should have been an order striking out or dismissing the appeal for non compilation and transmission of complete Record of appeal relying on paragraph 20 – 47 of the Affidavit in Support of the Motion.

That on the day the 4th-6th Respondents application came up for hearing, somebody was sent to Court with a letter and to file Counter Affidavit against the application of 4th– 6th Respondents for dismissal of the appeal pointing out that as at 17/3/2010 the Appellants could not have filed their Brief of Argument on an incomplete record of appeal.

The Learned Counsel to the Applicants at the penultimate paragraph of his Address on page 5 thereof argued thus:

It is unfortunate that the person who came to Court on 17/3/2010 with Letter for Adjournment and the Proposed Counter Affidavit? to the aforesaid Notice of Motion of the 4th – 6th Respondents Exhibits A and B attached to the present application, had a hitch on the way and arrived Court late (on 17/3/2010) after the appeal had been dismissed. The said Exhibits A and B could have explained the true position to the Court on 17/3/2010.

The Learned Counsel to Applicants acknowledged the need for parties in an appeal especially Appellant to ensure that record of appeal properly so called is transmitted to the Court of Appeal. He relied on the Case of J. A. ADERIBIGBE & ANOR VS. T. ABIBOYE (2009) 173 LRCN 20 at 79. That that was what the Appellants were trying to ensure in this case. He relied on the case of Chief Thomas Ekpemupolo & Ors. V. Godwin Edremoda & Ors. (2009) 176LRCN 235 at 266. That Appellate Court cannot hear the Appeal on incomplete record. To the Applicants this Court acted erroneously in dismissing the appeal. He urged the Court to resolved the Issues in favour of Applicants and restored the appeal as order 8 Rule 20 enabled this Court under 2007 Rules to restore the appeal even if the word dismissal was used.

The Learned Counsel to the 4th – 6th Respondents O.M. NWOGU EKEH Esq. in response to the above submissions submitted that this Court lacks the jurisdiction to restore appeal no. CA/PH/378/2008 dismissed on 17/3/2010 under Order 17 Rule 10 of the 2007 Court of Appeal Rules. That the decision reached under order 17 Rule 10 of the Court of Appeal Rules 2007 is a final decision as per Exhibit R11, the Order of this Court, Certified True Copy thereof, attached to 4th -6th Respondents Counter Affidavit. He relied on the Case of:

1. ASALU VS. DAKAN (2006) ALL FWLR (PART 325) 90 at 101 C- F per MAHMOUD MOHAMMED, JSC and
2. FBN V. TSA INDUSTRIES (2012) ALL FWLR (PT. 657) 614 at 635 G – H per ODILI, JSC.

That Order 6 Rule 10 of 2002 Rules under which FBN V. TSA INDUSTRIES Supra was decided was in pari material with Order 17 Rule 10 of 2007 Rules under which appeal No. CA/PH/378/2008 was dismissed. That the Order for dismissal cannot be revisited.

That the decision appeal against in CA/PH/378/2008 by Applicants was delivered in HS/2/M/2002 on 11th July 2005 but that Notice of Appeal was filed on 10th August 2005. That the Appellants did not heed the Letter of Registrar of Court below asking them to come for settlement of Record leading to Exhibit R1 to 4th – 6th Respondents Counter Affidavit written by Registrar Isuikwuato on 4/4/2008 inviting parties a second time to come for settlement of Record of Appeal. That by Order 3 Rule 8 (2) of Court of Appeal Rules 2002 applicable when record was to be complied (the Registrar of Court below has discretion to determine documents that would form the record of appeal if the parties did not honour Registrars invitation. That the Registrar has 60 days under Order 8 Rule 1 of 2007 Rules to compile record failing which the Appellant must compile record within 30 days. That the duty lied on Appellants to timeously assist the Registrar of Court below to prepare complete record. That the case file and record of appeal have left the High Court to Court of Appeal when the Appellants were busy writing to the High Court. That they never complained of incomplete record of appeal that was taken to Court of Appeal and that the Applicants did not file any Motion in this Court for Additional record. That the Appellants were just employing delay tactics of incomplete record so as to continue to receive salary as a traditional Ruler and thus frustrate 4th – 6th Respondents from reaping the fruit of judgment delivered in their favour since 11/7/2005. That our court frowns on such attitude. That the Applicants were never diligent in the prosecution of their appeal. That they abandoned the appeal and resorted to excuses.

That this Court was not misled into dismissing the appeals as there was no Counter Affidavit against the application filed by 4th – 6th Respondents to dismiss the Applicants appeal. That their failure so to do and their failure to be in Court or through their Counsel is a proof of their delay tactics. That the Applicants Exhibited unsworn document as Counter Affidavit they intend to file. That no Counter Affidavit was filed and that this Court saw evidence of service on the Applicants before the dismissal of their appeal.

That the failure of Appellants to utilise Order 10 Rule 10 of Court of Appeal Rules 2007 weigh heavily against them as they failed to file Appellants Brief of Argument upon service on them 4th – 6th Respondents application to dismiss the appeal. He urged the Court to dismiss the application.

There is no doubt that in appropriate and deserving cases, a Court can invoke its inherent jurisdiction or powers to set aside its own judgment or order where it is made without jurisdiction or where the Order or decision is afflicted by other virus capable of rendering the decision or order ineffective, null and void. See the Case DOMINIC & ANOR. VS. NWAGBARA NWODO MBA & ORS. (2011) P8 NWLR (PART 1278) 236 at 278 A – E per NGWUTA, JSC who said:

In appropriate and deserving cases, the Court can invoke its inherent powers to set aside its own judgment. See Ogbu v. Urum (1981) 4 SC 1; Tom v. Ameh (1992) 1 NWLR (Pt. 217) 306; Olorunfemi v. Asho (2000) 2 NWLR (Pt. 643) 143.

This Court, in Alao v. A.C.B. Ltd. (supra), stated five (5) conditions under which the Court can set aside its judgment or order. They are:

(1) When the judgment was obtained by fraud.

(2) When the judgment is a nullity such as when the Court itself was not competent.

(3) When the Court was misled into giving judgment under a mistaken belief that the parties have consented to it.

(4) When the judgment was given without jurisdiction.

(5) Where the procedure adopted was such as to deprive the decision or judgment of the character of a legitimate adjudication.

(See also Skenconsult (nig.) Ltd. v. Ukey (1981) 1 SC 6; Ojiako v. Ogueze (1962) 1 All NLR 58; (1962) 1 SCNLR 112; Igwe v. Kalu (2002) 14 NWLR (Pt. 787) 435 at 453 454 SC.

Now, do the facts of this application fall within any of the five stated conditions for the Court to set aside its Judgment or Order?

The question asked by my Lord in the above just quoted decision of the apex court in the land is apposite here also. Can this Court set aside its Order or Decision dismissing the Applicants Appeal on 17th day of March, 2010 for want of diligent prosecution for failure to file Appellants Brief of Argument within time stipulated by virtue of ORDER 17 RULE 10 of the Court of Appeal Rules 2007? The provisions of the said Rule are as follows:

Order 17 Rule 10:

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. 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 respondents brief.

And what does Order 17 Rule 2 entails? It says

The Appellant shall within forty-five days of the receipt of the Appeal from the Court below file in the court a written brief, being succinct statement of his argument in the appeal.

The provisions of the above Quoted Rules have received enormous judicial interpretation in this Court and by the Supreme Court. Suffice it to refer to the following authorities viz:

(1) GUFFANTT NIGSERIA PLC VS. F. A. VAZUZ (2012) 5 NWLR (PART 1288) 458 at 474 C.D per JAURO JCA who said:

The next aspect to be considered is the contention of the 2nd set of respondents to the effect that once an appeal has been dismissed this Court lacks the power to restore same. In support of the contention reference was made to the cases of Ogbu v. Orum (supra); Olowu v. Aboloye (supra) and Yonwuren v. Modern Signs Nig. Ltd. (supra). The aforementioned authorities classified dismissal of an appeal for want of prosecution into 3 or 4 categories, namely dismissal for non-compliance, failure to transmit record, absence of appellant and failure to file in brief of argument. The appeal can be restored in all the other categories of dismissal for good reason shown except where the dismissal was on grounds of failure to file the appellants brief of argument.

(2) BISHOP C.A. AJAYI VS MRS DOLAPO AKINBOBAMI & ORS (2012) 6 NWLR (PART 1297) 481 at 483 H to 484 A-B per IYIZOBA JCA who said:

In the case of Ekpeto v. Wanogho (supra), the Supreme Court in interpreting Order 6 Rule 19 of the Court of Appeal Rules, 1981 which is in pari material with Order 17 Rule 10, 2007 Rules, held that the Court of Appeal lacks the jurisdiction to re-list an appeal dismissed under Order 6 Rule 10 as there are no provisions in the Rules giving the Court that power.

Notwithstanding that Omoleye, JCA in the order struck out the appeal for want of diligent prosecution, the striking out is deemed dismissal as provided for in Order 17 Rule 10. There being no provision in the Rules giving us the power to relist the appeal, the motion to relist this appeal is hereby refused and is dismissed.

(3) GOVERNOR OF ZAMFARA STATE & ORS. V. ALH. SULEIMAN MOHD GYALANGE & ORS (2013) 8 NWLR (PART 1357) 462 AT 473 H to 476 per MUKHTAR J.S.C who eloquently went through the memory lane and held as follows:

The application for relisting of appeal having been filed in 2009, it is the 2007 Rules that was applicable, and so the application was properly brought under the said rules.

Perhaps I should reproduce the rules that precede the said Rule 20 above i.e. Rules 18 and 19 at this juncture. They read as follows:

18. 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.
19. Where an appeal has been dismissed under Rule 18 of this Order, a respondent who has given notice under Order 9 may give notice of appeal and the provisions of Order 11 Rule 6 shall apply as if the appeal were brought under that rule.

Rule 18 supra is about the circumstances that with lead to the dismissal of an appeal, which according to Rule 20 may be revived by way of a motion on notice. It is also instructive to note that the entire Order 8 is to do with compilation and transmission of records and the consequence upon the failure to comply with the Rules, i.e. non-compliance, in particular Rule (1) which reads:

The registrar of the Court below shall within sixty days after the filing of the notice of appeal compile and transmit the record of appeal to the Court.

In other words, the dismissal that will ensue under this order is as a result of the failure to compile and transmit records, and so such dismissal may be remedied by virtue of the provision of Rule 20 supra, and not where an appeal is dismissed for lack of diligent prosecution i.e. failure to file an appellants brief of argument within time. It is on record that the genesis of the appeal at hand was the result of the dismissal of the appeal before the Lower Court, on the application for an order striking out this appeal for lack of diligent prosecution for the failure and refusal of appellant to file appellants brief within time, which accords with the provision of Order 17 Rule 10 of the Court of Appeal Rules of 2007, which reads as follows:

10. 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 he heard in oral argument¦

The application having been moved by the respondent/applicant, even though in the absence of the appellant, who had been duly served, was granted by the learned Court of Appeal in the following terms:

Facts deposed to in the affidavit in support of this application have not been implicating traversed and/or denied. It remains that appellants have failed to file their brief within the time required by or rules or every (sic) seek extension of time to do so. The appeal appears abandoned as same is not diligently being prosecuted. It is accordingly dismissed for want of diligent prosecution (sic) to the Order 17 Rule 10 of the Rules of this Court.

How then, can the learned Counsel for the appellants pretend or seek to mislead the Court that the dismissal of the appeal was done under Order 8 Rule 18, which may necessitate a relisting under Rule 20 of the Court of Appeal Rules of 2007? I think this is a misconception for one cannot compare the enormity of the failure to file a brief of argument within the time provided by the rules, (unless where there is an application for extension of time) with that to the non-compilation and/or transmission of records, which forms part of the preliminary processes of the appeal. At any rate, as I have already posited, the application for dismissal was brought in accord with the provision of Order 17 Rule 10 supra, which is a replica of the provision of Order 6 Rule 10 of the Court of Appeal Rules of 1981 which reads thus:

Where an appellant fails to file his brief within the time provided for in Rule 2 above, 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 except by leave of Court¦

The effect of a dismissal pursuant to this latter provision of 1981 has been dealt with in a plethora of authorities, a locus classicus of which is Akande Olowu & Ors. v. Amudatu Abolore (1993) 5 NWLR (Pt. 293) 255 at p. 277, where karibi Whyte, JSC, thrashed out the issue of whether the Court can restore an appeal dismissed pursuant to Order 17 Rule 10, (i.e. does the Court have jurisdiction to do so) thus:

It is well settled that the exercise of appellate jurisdiction is statutory. A Court cannot exercise jurisdiction to hear an appeal unless such jurisdiction is conferred by the Constitution or enabling statute. Hence, in the instant case the jurisdiction to relist an appeal dismissed under Order 6 Rule 10 should be found in the rules of the Court. I have not been lucky to discover any in the Rules¦

This Court has decided several principles in Chukwuka v. Ezulike (1986) 12 SC (Reprint) 170; (1986) 5 NWLR (Pt. 45) 892. It was held there that it has no jurisdiction under the 1979 Constitution, the Supreme Court, 1985, or under its inherent jurisdiction or powers to entertain an application for re-entering an appeal dismissed under Order 8 Rule 16 of the Supreme Rules for want of prosecution. Ogbu v. Urum (1981) 4 SC 1; (1981) 4 SC (Reprint) 1; Yonwuren v. Modern Signs (Nig.) Ltd. (1985) 2 SC 86; (1985) 2 SC (Reprint) 68; (1985) 1 NWLR (Pt. 110) 483.

It was also held that it has no inherent jurisdiction to set aside an order of dismissal properly made in the valid exercise of its jurisdiction and to re-enter the appeal. An appeal dismissed on the ground of the failure to file appellants brief of argument is final. The appeal so dismissed cannot be revived.

Most recently the hope of any Appellant whose appeal is dismissed for failure to file Appellants Brief to have it restored or relisted has been completely fore closed in the cases of FATAYI SULE DAKAN & ORS. VS. ALHAJI LASISI ASALLU & ORS (2015) 7 SCM 1 at 13C 1 to 14 AA H per NWEZE, JSC who had this to say:

Counsel for the Appellants, in paragraph 3, 01 of the brief, canvassed the view that once an appeal has been dismissed for want of prosecution for non-filing of the appellants brief, it operates as a dismissal on the merit. This is unanswerable. In the words of Order 6 Rule 10 of the Court of Appeal Rules, 1981:

10. Where an appellant fails to file his brief within the time provided for in Rule 2 of this Order; 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.

An appeal dismissed on the ground of failure to file appellants brief of argument if final. The appeal so dismissed cannot be revived.

Designed as a provision for the enhancement of case management, Order 6 Rule 10 (supra) imposed a tri-partie obligation: on the part of the appellant, the duty to get on with his appeal since it has, always, been the demand of public policy that the business of the Court should be conducted with expedition and dispatch, Olowo and Ors. V. Abolore and Anor. (supra) at 270, citing Obiorah v. Osele (1989) 1 NWLR (Pt. 97) 279; also, Governor of Anambra State v. Orji (1990) 5 NWLR (Pt. 150) 349, 350.

Against the background of the congestion of cases at the Lower Court, the corresponding obligation on respondents, of ensuring that indolent appellants pursued their appeals expeditiously, was to ginger the Court into exercising its power of purging its docket of stale appeals by their dismissal for want of diligent prosecution, Obiora v. Osele (1989) LPELR 2189 (SC) 2S, A- D; Babayagi v. Bida (1989) LPELR 688 (SC) 19-20, G -A; Akujinwa and Ors. v. Nwaunuma and Ors. (1998) LPELR 391 (SC) 26, B-C; Chime v. Ude (1996) 7 NWLR (Pt. 461) 379. The Court, on the other hand, was empowered to dismiss such dead appeals as prayed under the above provision, Akujinwa and Ors. v. Nwaunuma and Ors. (supra); State v. Nnolirn and Ors. (1994) LPELR 3222 (SC) 20, A-C so as to bring relief to, and decongest, its Cause List, Obiora v. Osele (supra).

That was the rationale for the above rule for the dismissal of an appeal inter alia where an appellant failed to file his brief of argument within the time prescribed or as extended by the Court, Akande, Olowo and Ors. v. Amudatu Abolore and Anor. (supra), page 272. Such a dismissal order terminated the life of the appeal, which was, in consequence, delisted from the cause list. No court had the jurisdiction to resuscitate or revive it, Kraus Thompson Organisation v. N. L.P.S.S. (2004) 5 SC (Pt. 1) 16 because such an appeal dismissed on the ground of the failure to file an appellants brief of argument was final and thus could not be revived, Tsokwa v. U.T.C. (Nig.) Ltd. (2000) 7 NWLR (Pt. 666) 654, 661.

Indeed, in 2006, in an appeal involving the same parties Asalu and Ors. v. Dakan and Ors. (2006) LPELR 573 (SC) 19, C-D, (2006) 8- 9 SCM, 86 this Court had intoned magisterially that; ¦ an appeal dismissed by the Court of Appeal for failure to file appellants Brief of arguments is final and such appeal cannot be revived by the Court of Appeal, [italics supplied for emphasis]; Olowu v. Abolore (1993) 5 NWLR (Pt. 293) 255; Babayagi v. Alhaji Bida (1998) 1 – 2 SC 108; [1998] 7 NWLR (Pt. 538) 367. Put simply, it amounted to a dismissal on the merits, UBA Plc v. Ajileye [1999] 13 NWLR (Pt. 633) 116, 126; Olowu v. Abolore (supra); Kraus Thompson Org. v. N.L.P.S.S. (supra); Babayagi v. Bida (supra). On its part, the Court, upon making such a dismissal order, became functus officio,; Orobator v. Amata (1981) 5 SC 276; Nwaoru v. Nwaukobu (1985) 2 SC 86, 167; Yonwuren v. Modern Sign Ltd. (1985) NWLR (Pt. 2) 244, 345; Chukwuka v. & Ezelike (1986) 5 NWLR (Pt. 45) 892.

Accordingly, it lacked the jurisdiction either under the Constitution; its Constitutive Act [the Court of Appeal Act] or under its inherent jurisdiction to entertain such an appeal any longer, Chukwuka v. Ezufike (supra); Ogbu v. Urum (1981) 4 SC 1; Yonwuren v. Modem Signs (Nig) Ltd. (1985) 2 SC 86; [1985] 1 NWLR (Pt. 110) 483. The net effect was that an appeal dismissed on the ground of the failure to file appellants brief of argument under the said Rule was final, Tsokwa v. U.T.C. (Nig.) Ltd. (supra); Asalu and Ors. v. Dakan and Ors. (supra).

Even if it can be said that this court possesses the powers or even jurisdiction to restore the appeal the application of the Appellant is quite unworthy and not meritorious as the Affidavit in support of the motion is full of nauseating depositions designed to mislead and pool wool over the face of this court but the Court can thoroughly read between the lines.

Throughout the length and breath of their longish but impactless Affidavit the Applicants did not point to any application or Motion before the Court of appeal either at Port Harcourt while the appeal was pending in that Division or when same was before this Division intimating the court of any incomplete record of appeal or most appropriately any application for compilation of Additional or supplementary record of appeal to the record of appeal already transmitted to this court (Port Harcourt) Division.

The only inference on can draw is that the Applicants were caught in their own trap of try to delay the hearing of the appeal CA/PH/378/2008 for reasons best known to them.

What is certain, significant and incontrovertible is the evidence that there was a record of appeal already entered in the appeal of the Applicants in this Court.

Whether the record was complete or incomplete is the business of the appellants to draw attention to it as permitted by the Court of Appeal Rules 2007 applicable in this Court as at 17/3/2010 when the appeal was justifiable dismissed for lack of diligent prosecution.

The presumption in the absence of any complain of incomplete record to this court by the Appellants or their Counsel, is that the record of appeal before this Court was proper and complete and the time within which the Appellants were expected to file their Brief of Argument would start to run from the date the appeal was entered in this Court. See Order 4 Rule 10 of 2007 Rules which provides:

10. An appeal shall be deemed to have been entered in the Court when the record of proceedings in the Court below has been received in the Registry of the Court.

The disastrous consequence of the failure of Appellants to file their brief at the expiration of their 45 days to do so is the punishment of Dismissal for want of diligent prosecution for Their unexplained failure to file Appellants Brief of Argument as at 17/3/2010.

The appellants rights to fair hearing was not in any way breached nor was it infringed upon by this Court. It was when liberty was taken for granted and Appellants were shown to have been dilatory and lackadaisical in the prosecution of their appeal that this court on 17/3/2010 terminated the appeal for want of diligent prosecution, that is for failure to file Appellants Brief of Argument.

The argument of the Appellant that they sent someone to come down to this court from Aba on 17/3/2010 and to file counter Affidavit cannot be countenanced. The Appellants Learned Counsel stated that he was served on 13/3/2010 with the application to dismiss the appeal which was clearly more than 2 days interval. There was nothing before this court on 17TH March, 2010 challenging or controverting the Affidavit in support of the application of the 4th-6th Respondents seeking for the dismissal of the Appellants appeal.

The dismissal was not and is not erroneous as the Applicants uncharitably insinuated against this court. It was the Appellants that failed in their duty of doing the needful to prosecute their appeal diligently.

This Court has no constitutional or statutory appellate jurisdiction over its own judgment. The Order/decision of this court made on 17th day of March, 2010 in Appeal No. CA/PH/378/2008 dismissing the Appellants/Applicants appeal for want of prosecution under Order 17 Rule 10 of Court of appeal Rules 2007 for the failure of the Appellants/Applicants to file their Brief of Argument as required by Order 17 Rule 2 of the said Rules of this court (now repealed) is final and same cannot be revisited. This Court is functus officio, See POLYTECHNIC IDAH VS ENGR. AKOH SAMUEL ONOJA (2012) 12 NWLR (PART 1313) 72 at 91 B per OKORO JCA now JSC who said:

It is trite that where a Court has disposed of a matter before it, such a Court becomes functus officio as far as that matter is concerned. The said Court ceases to have Jurisdiction in respect of the matter. It cannot assume an appellate status over its own decision but can only do so if there is a statutory provision in that regard. See Alhaji Chief A.R.O. Sanusi v. Alhaji Ibrahim Ayoola & 2 Ors. (1992) 9 NWLR (Pt. 265) 275; Akinyede v. The Appraiser (1971) 1 All NLR 162.

Issues 1, 2 and 3 are hereby resolved against the Appellants/Applicants.

ISSUE 4

Whether a Notice of appeal can be amended.

The Appellant RELIED ON Order 6 Rule 15 OF THE Court of Appeal Rules 2011 to contend that this court has powers to grant leave to amend Notice of Appeal. The Respondent argued the contrary. It is not possible in this case to grant any leave to amend an appeal already dismissed.

See the case of FATAYI SULE DAKAN & ORS. VS. ALHAJI LASISI ASALU & ORS (2015) ALL PWLR (PART 799) 1055 at 1070 D -G per NWEZE, JSC who said:

As such, the Court could not conjure any juridical powers under its inherent jurisdiction to set aside such an order of dismissal properly made in the valid exercise of its jurisdiction and re-enter the appeal, Olowu v. Abolore; Babayagi v. Alhaji Bida. The answer to the question posed in this appeal therefore is that the Lower Court erred in law when on 3 December 2002, it granted the respondents application for leave to argue additional grounds of appeal. As noted above, since the appeal had been dismissed, the original notice of appeal was interred with it. So it was thus illogical to favour the respondents with an order to argue additional grounds of appeal. Since the Court, having dismissed the appeal lacked the jurisdiction to resuscitate or revive it by exhuming it in any guise. Kraus Thompson Organisation v. N.I.P.S.S.

A fortiori having become functus officio, Orobator v. Amatu; Nwaoru v. Nwankobu; Yonwuren v. Modern Sign Ltd.; Chukwuka v. Ezulike, the Lower Court was equally in grave error when it purported to enter an order extending the time within which the respondents could file a brief of argument in these proceedings. By its dismissal Order of 17 November 1994, which snuffed life out of the respondents appeal and interred it, the said appeal in the said proceedings of 17 November 1994, there were no more proceedings in respect of which the respondents could file a brief because of the finality of the Order, Tsokwa v. U.T.C. (Nig.) Ltd.; Asalu and Ors. v. Dakan and Ors.

This Court can under its Rules grant leave to amend only a competent Notice of appeal. The appeal here was already determined or disposed of on 17/3/2010 and it is dead as dodo. There is no live in the appellants/Applicants application. A dead person cannot receive or be put on drips.

Issue 4 is hereby resolved against the appellants/Applicants.

Consequently the Appellants/Applicants Motion dated the 26th day of May 2014 and filed on 28th day of May, 2014 is devoid of any merit and the same is hereby dismissed in its entirety with costs of N50,000 (Fifty Thousand Naira) to the 4th – 6th Respondents.

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Other Citations: (2016)LCN/8664(CA)