Nkechinyere Onyenwaku U. & Anor V. Anthony Nnadi & Ors (2016)
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HELEN MORONKEJI OGUNWUMIJU, J.C.A.
The facts that led to this application are as follows:
The plaintiffs appealed to the High Court Enugu against the decision of Udi Magistrate Court refusing the plaintiffs claim for possession of a premises situate at Ukaka Ngwo. The High Court delivered its judgment setting aside the judgment of the Magistrate Court and granted the claim of the plaintiffs. The applicant appealed against the judgment. The applicant was served the record of appeal on 22nd January, 2008 at 1.45pm by a chief Bailiff of the High Court Mr. Cosmas Ani. The High Court had granted the applicant a stay of execution of its judgment. The applicant did not file a brief of argument and the appeal was struck out on the application of the respondents? counsel. This is a motion on notice filed on 31/5/11 brought pursuant to Or 7 R 10 (1) & (2); Or 4 R 4 of the Court of Appeal Rules 2011 and S.24 (4) of the Court of Appeal Act, 2004. The prayers sought are stated below:
?a) An order relisting the above appeal struck-out on the 15th day of October, 2008, by this Honourable Court for the failure of the
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defendant/appellant/applicant to file her Brief of Argument.
b) For the leave of this Honourable Court granting the defendant/appellant/applicant permission to file her Brief of Argument on time.
c)An order deeming the defendant?s/appellant?s/applicant?s Brief of Argument filed out of time, as properly filed having paid all necessary fees and penalty.
The only ground for bringing the application is stated below:
I. To re-list this appeal struck-out by this Honourable Court on the 15th day of October, 2008 for failure of the defendant/appellant/applicant to file Her Brief of Argument on time.
One Mr Ken .C. Okagwu a legal practitioner swore to an affidavit of 15 paragraphs in support of the motion. The appellant?s brief filed on 18/12/2008 was also exhibited as Exh A. The respondent filed a 20 paragraph counter affidavit on 21/1/13.
In the light of the fact that this is a highly contested motion, parties were ordered to file written addresses. The applicants filed further affidavit on 28/5/13 and written address on 28/6/13. The respondents filed written addresses on 28/10/13.
?The appellant in her
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written address settled by Chief Emeka Onyemelukwe dated the 27th day of June, 2013 and filed the 28th day of June, 2013 identified one issue for determination as follows:
Whether an appeal struck out for failure of an appellant to file brief of argument on time tantamount to a dismissal of the appeal.
The respondent in their written address settled by Alh. Abdulaziz C. Ogbui dated the 14th day of June, 2013 and filed on the 17th day of June, 2013 formulated one issue for determination as follows:
Whether this honourable Court has the jurisdiction to relist an appeal struck out or dismissed for failure to file brief of argument.
After careful consideration of both Written Addresses and arguments of counsel, I shall adopt the sole issue submitted for determination.
Learned appellant?s counsel submitted that by Order 17 Rule 10 of the Court of Appeal Rules 2007, where an appellant fails to file his brief within the time stipulated in the rules 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. He submitted further that where the respondent fails
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to file his brief, he will not be heard in oral argument. However, where an appellant fails to file a reply 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 briefs.
Counsel argued that there is a distinction between striking out of an appeal and dismissal of an appeal. He continued that Order 17 Rule 5 gives two conditions under which a respondent may apply for the dismissal of an appeal for want of diligent prosecution as follows:
1. Where the appellant fails to file his brief within time stipulated in Order 7 Rule 2 i.e 45 days.
2. Or, where the time has been extended for the appellant to file his brief, yet the appellant had not met the time.
Counsel submitted that where any of these conditions arise, the respondent may apply for the dismissal of the appeal but it remains at the justices? discretion to grant or refuse the application for dismissal of the appeal.
Counsel argued further that striking out means the removal by a judge or Court of a case before that Court and the discretionary power to strike out and relist implies
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discontinuance of a suit from the hearing list and placing it in the general list until the application pending before the Court was made and granted. Counsel cited Engr. Hufnagi & Anor V. Alhaji Aiyeleso & Anor (2002) FWLR Pt. 131 Pg. 1840 at 1849.
Counsel set out the guiding principles in dealing with an application to relist as stated in the following cases:Alhaji Opekun V. Alhaji Sadiq & Ors (2003) FWLR Pt 50 Pg.1654 at 1662-3; Adeomi V. Gov. Of Oyo State & Ors (2003) FWLR Pt. 149 Pg.444 at 458-9.
Counsel argued further that a striking out order and a dismissal order cannot be made at the same time as they would be inconsistent with each other but where a motion to relist a suit that has been struck out exists, such motion and the suit are inseparable. Counsel cited Travershima M. Hambe & Ors V. Agber Hueze & Ors (2001) FWLR Pt.42 Pg.1; Union Bank of Nigeria PLC & Anor V. Mrs Jibueze & Anor (2003) FWLR Pt. 151 Pg. 1896 at 1903.
?Counsel posited that the appeal at hand was struck out and not dismissed pursuant to Order 17 Rule 10 and that the respondents cannot then be found contending that a striking out order
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amounts to a dismissal. Counsel cited Transbridge Co. Ltd V. Survey International Limited (1986) 4 NWLR Pt. 37 Pg. 516 at 569, Kraus Thompson Org V. NIPSS (2004) 17 NWLR Pt.901 Pg.44.
Learned respondents? counsel submitted that the directions in Order 17 Rule 2 of the Court of Appeal Rules 2007, the appellant is to file a written brief within 45 days of the receipt of the record of appeal. Counsel argued that the appellant received the record of appeal on 22nd of January, 2008 and her case was struck out on 15th October, 2008 which counsel argued was clearly more than 45 days from the receipt of the record of appeal by the appellant.
Counsel further submitted that the consequence of failure to file briefs of argument as provided in Order 17 Rule 10 of the Court of Appeal Rules 2007 is that the appeal be dismissed. Counsel argued that where an appeal is struck out as in the instant case, it amounts to a dismissal and that the Court can suo motu dismiss an appeal. He cited Kraus Thompson Org. V NIPSS (Supra); Asalu V. Dekan (2006) ALL FWLR Pt.325 Pg. 90, 101; Babayagi V. Bida (1998) 7 NWLR Pt. 538 Pg. 367, (1998) 1-2 SC 108 Pg.114-116; Akujinwa
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V. Nwaonuma (1998) 11-12 SC 112 Pg. 116, 117 and 122.
RESOLUTION
The judgment of the High Court was given against the applicant on 5/4/05. Notice of appeal was filed on 13/4/05. Records were served on the applicant on 22/1/08. Meanwhile on 23/5/05 the Court granted the applicant stay of execution of the judgment pending appeal. The respondents applied under Or. 17 R. 2 of the Court of Appeal Rules 2007, the extant rules when the appeal application was heard, to have the appeal dismissed for failure to file brief within the stipulated time of 45 days provided by Or. 17 R. 2 of the 2007 Rules.
The consequence of failure to obey Or. 17 R. 2 is stated in Or. 17 R. 10 which said order provides as follows:
Where an appellant fails to file his brief within the time provided for in Rule 2 of this order, or within 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 within the time specified in Rule 5, he shall be deemed to have conceded all the points or
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issues arising from the respondents brief.
In Kraus Thompson Organisation V. National Institute for Strategic Studies (NIPSS) supra cited by Respondent?s counsel also reported in (2004) 5 SCNJ 71, the Supreme Court interpreted Or. 6 R. 10 of the Court of Appeal Rules 1984 which provision is in pari materia with Or. 17 R. 10 of the 2007 Rules. The Supreme Court held that on the wordings of the said rule, even though sympathy was expressed for an appellant who would be shut out of the adjudicatory process, the apex Court had no choice but to dismiss the appeal. The Court held that:
1. It is clear from Order 6 Rule 10 of the Court of Appeal Rules that failure on the part of an appellant to file his brief within time will be visited with the sanction of dismissal of the appeal on the application of the respondent. The failure to file a brief by an appellant within the prescribed or extended time can be likened to an abandonment of his appeal particularly when such failure is coupled with non-appearance in Court without excuse at the time of hearing.
2. Under Order 6 Rule 10 of the Court of Appeal (Amendment) Rules 1984 an appeal could be
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dismissed for failure of the appellant to file his brief with the time provided for in Rule 2 thereof or within the time as extended by the Court, or for non-compliance with the conditions of appeal, or for want of prosecution.
3. An appeal which is dismissed under Order 6 Rule 10 of the Court of Appeal Rules cannot be relisted. Once an appeal is dismissed under Order 6 Rule 10, the Court of Appeal has no jurisdiction to revive the appeal by re-entering or re-listing same.
In Asalu V. Dakan (2006) 5 SCNJ 377, the Supreme Court quoted with approval the concurrent opinion of Belgore JSC (as he then was) in Kraus Thompson V. NIPSS supra to the effect that once the Court of Appeal has dismissed the appeal for want of prosecution due to the appellant?s failure to file his brief of argument, the Court is functus offficio in the matter and cannot restore or relist the appeal. The Supreme Court was emphatic that neither that Court nor this Court was imbued with requisite jurisdiction to restore an appeal dismissed pursuant to the Or. 6 R. 10 now being interpreted in Or. 17 R. 10 of the Court of Appeal Rules 2007.
?The argument of the applicant
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here has been that the ruling of this Court on 15/10/08 was that the appeal be struck out which means that it can be relisted. I do not think so, given the position of the authorities on this point. No matter the language or phrase used by this Court in determining a motion to strike out under that order, since the consequence of failure to file brief within time has been stipulated strictly by the rules and so interpreted, the order of strike out amounts to a dismissal of the appeal. This has been the position as far back as 1981 when Obaseki JSC held inOgbu V. Urum (1981) 4 SC 1 as follows:
?… The provision of Order 7 Rule 30 (of the Supreme Court Rules 1977) deprives this Court of any jurisdiction to review the judgment of dismissal for want of prosecution. The inherent jurisdiction of this Court under Section 6(6) (a) of the Constitution cannot be invoked to save the situation. This Court is therefore unable and incompetent to entertain this application to direct that the appeal be re-entered. Sympathy cannot override the clear provisions of our Rules and it would be in the interest of all parties if parties and their counsel endeavour to
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keep to the times set out in the Rules for the doing of any act or taking of any step.?
I concede that an order of dismissal and order to strike out are quite different things. The issue here is that an appeal may be struck out for a variety of reasons after it has been entered and even after parties have joined issues and filed briefs etc where the Court believes that there is want of diligent prosecution on the part of the appellant. In that circumstance, the following situations would be considered by the Court in the exercise of its discretion to re-list the appeal that has been struck out for want of diligent prosecution.
1. Reasons for failure to appear when the case is heard.
2. Whether there was undue delay in making the application for relisting.
3. Whether the other party would be prejudiced or embarrassed by an order to relist so as to render it inequitable to reopen the case.
4. Whether the applicant?s case is manifestly unsupportable.
Where an appeal has been struck out for reasons outside failure to file brief within time, it may be restored by the Court.
?However, my humble view is that in the
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specific situation of failure to file brief within time as stipulated by the rules, the decision law is clear and firm, to the effect that this Court is completely without jurisdiction to relist. Whatever phrase is used in the order of this Court, the prouncement of the supreme Court on this issue makes it clear
In Kraus Thompson V. NIPSS supra and the later case of Asalu V. Dakan supra almost all the Supreme Court Justices expressed sympathy for an appellant where appeal would be dismissed due to the harshness of that order. The Supreme Court had relied on a plethora of previous authorities on this point. Viz Ogbu V. Urum (1981) 4 SC 1; Babayagi V. Alh Bida (1998) 2 NWLR Pt. 538 Pg. 367; Nneji V. Chukwu (1988) 3 NWLR Pt. 81 Pg. 184; Nwugha V. Nwala (1992) 2 NWLR Pt. 225 Pg. 610; Olowu V. Abolore (1993) 5 NWLR Pt. 293 Pg. 255; Onumajuru V. Akanihu (1994) 3 NWLR Pt. 334 Pg. 620; The State V. Nnolim (1994) 5 NWLR Pt. 345 Pg. 394; Olumesan V. Ogundepo (1996) 2 NWLR Pt. 433 Pg. 628; Chime V. Ude (1996) 7 NWLR Pt.461 Pg. 379 to insist that the Apex Court was not at liberty to relist the appeal.
Both Niki Tobi JSC and M.L Uwais CJN commended Or. 6 R. 9
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of the 1985 Supreme Court Rules which stipulates the consequence of a strike out rather than a dismissal of an appeal where the brief was not filed within time. Uwais CJN observed that the Supreme Court had to depart from the harshness of the 1977 and 1985 Supreme Court Rules in this regard.
The extant rules of the Court of Appeal in the 2011 Rules. Or. 18 R. 2 and R. 10 of the 2011 Rules state as follows:
2. 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.
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 his 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.
?It is apparent that the 2011 Rules have
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retained the strictness and be it ?harshness?of the 1984 Rules interpreted in Kraus Thompson V. NIPSS etc. The rules have even gone a step further to stipulate that this Court can suo motu dismiss the appeal for want of prosecution on the basis of failure to file appellant?s brief within time. This cannot but be so in the circumstances in which the penultimate Court of the land has presently found itself. In recent times, this Court has been inundated with appeals that are abandoned immediately records are transmitted. The alarmingly large number of abandoned appeals shows that the appeals were filed not for the purpose of getting justice from this Court but for reasons on which I do not wish to speculate. It must be remembered that the jurisprudence of appellate jurisdiction is the presumption that the parties have actually had their day at the trial Court where they?ve called witnesses and tendered documents to prove their cause or defend any cause against them.
The appellate jurisdiction is primarily to correct any miscarriage of justice by the lower Court. If the party calling for a review of the judgment of the trial Court
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is apparently unwilling or unable to prosecute the appeal timeously as provided by the rules, then in my humble view, the rules of Court sanctioning such tardiness cannot be harsh enough.
This Court cannot review the previous decision of this Court ?striking out? this appeal for failure to file brief not only because the striking out tantamount to a dismissal but because it has no jurisdiction to do so.
Application Dismissed. N50,000 costs to the respondents against the applicants.
Other Citations: (2016)LCN/8593(CA)
