Peak Merchant Bank Limited V. Venture Trust Company Limited (2006)

LawGlobal-Hub Lead Judgment Report

RAPHAEL CHIKWE AGBO, J.C.A.

The respondent, as plaintiff at the High Court of Lagos State had obtained a money judgment against the appellant, then defendant. Not being satisfied with the judgment of the court below, the appellant filed this appeal.

The Court of Appeal fixed the appeal for hearing on 16th September, 2004. Hearing notices issued on the parties. In the interim, on 13th August, 2004, the appellant filed a motion on notice dated 29th July, 2004 seeking a departure from the rules to enable the appeal be argued and determined on the record of appeal compiled by the appellant and marked exhibit A. The application also contained a prayer for an order to deem as properly filed, the appellant’s brief of argument already filed and served. The respondent on 14/9/04 also filed a motion on notice dated 13/9/04 seeking an order of court deeming a bundle of documents marked exhibit C.O.I. as supplementary record of appeal for the purpose of hearing and determining the appeal. Both motions were set down for hearing on 16th September, 2004.

On 16th September, 2004 when the case was called up, the parties were absent and unrepresented. The proceedings of this court for that day are very short and bear reproduction:

“No appearance for the party: Both parties were served. Appellant was served on 14/9/04 respondent served on 10/9/04.

Court: Applications dated 13/9/04 and 29th July, 2004 respectively by respondent and the appellants are struck out for failure of the respective applicants to be in court. The appeal is fixed for hearing today and the appellant has not filed its brief consequently the appeal is dismissed for want of prosecution.”

The appellant has filed this application praying this court to re-list on the cause list, this appeal dismissed by this court for want of prosecution. The application is supported by a 17-paragraph affidavit, which bears reproduction:

“I TAOFEEQ, Male, Muslim, Nigerian Citizen of 31 Isaac John Street, Fadeyi, Lagos do make Oath and say as follows:-

1. That I am Litigation Clerk in the law film of Taiwo Shittu & Co. solicitors to the appellant/applicant.
2. That by virtue of my position I am conversant with the facts of this case.
3. That I have the consent and authority of the appellant to depose to this affidavit.
4. That I am informed by Mr. Lekan Awogbemila counsel handling this matter and I verily believe him that when the matter came up on 24th March, 2004 for argument of the motion for stay of execution, the court was of the view that counsel should prosecute the appeal proper instead of the interlocutory application.
5. That the matter was subsequently adjourned to the 23rd of September, 2004 so that counsel may have time to compile record and file briefs of argument.
6. That as a result of the paragraph 5 above the appellant/applicant compiled the record of appeal and filed a motion on notice dated 29th July, 2004 along with appellant’s brief of argument in apparent compliance with court directive.
7. That I am informed by Mr. Lekan Awogbemila of counsel and I verily believe him that he travelled to Abuja on the 13th of September, 2004 and only saw the hearing notice served on the chambers with the respondent motion dated 13th September, 2004 on the 21st of September, 2004 when he came back from Abuja.
8. That when the hearing notice bringing forward the hearing date to 16th of September, 2004 was served on the 14th September, 2004 I received the process and simply put it on Mr. Awogbemila’s table but did not read it properly to see that it was to bring the date forward.
9. That I am informed by Mr. Lekan Awogbemila counsel and I verily believe him that on getting to the court on 22nd September, 2004 the Registrar informed him that the appeal has been dismissed for non appearance of the counsel on the 16th September, 2004 and for lack of diligent prosecution.
10. That non-appearance of the counsel handling the matter or any other counsel was neither deliberate nor intentional.
11. That Mr. Taiwo Shittu, the other counsel in the chambers was on leave at the material time.
12. That the appellant had its brief of argument in the court’s file on the fateful day the appeal was struck out by the Honourable Court.
13. That there has not been an undue delay in making this application as I have been ill since the last week of September 2005 and I am the only person that can positively depose to what happened.
14. That the respondent will not be prejudiced if this application is granted.
15. That it would be in the interest of justice if the matter is re-listed and respondent ordered to file its brief of argument.
16. That the appellant is ready, willing and above to prosecute this matter to its logical conclusion.
17. That I make this affidavit in good faith.”

The respondent filed no counter-affidavit. The averments contained therein are uncontradicted. The court must therefore deem them to be true and act on them. – See the Honda Place Ltd. v. Globe Motors Holdings (Nig.) Ltd. (2005) 7 SC (Pt. 111) 182 at 189; (2005) 14 NWLR (Pt. 445) 273, Nwabuoku v. Ottih (1961) 2 SCNLR 232, Alagbe v. Abimbola (1978) 2 SC 39 at 40.

In urging the application, Mr. Awogbomila for the applicant argued that this court in dismissing the appeal for want of prosecution acted per incuriam. The appellant was not out of time as the appeal was yet to be entered. The court never said the dismissal was made pursuant to Order 6 rule 10 of the Court of Appeal Rules, 2002 nor did the facts of the case bring it within the ambit of the said Order 6 rule 10. He argued that the court does not become functus officio unless there is a judgment on the merit or the appeal is dismissed pursuant to the provisions of Order 6 rule 10 of the Court of Appeal Rules. He relied on Olowu v. Abolore (1993) 5 NWLR (Pt. 293) 255; Akujinwa v. Nwaonuma (1998) 13 NWLR (Pt. 583) 632 and C.C.B. (Nig.) Ltd. v. Onwuchekwa (2000) 3 NWLR (Pt. 647) 65 at 73.

The respondent’s counsel Mr. Ekwueme on the other hand argued strenuously that the appeal was dismissed because of the failure of the appellant to file its brief and that fact brought the dismissal within the ambit of Order 6 rule 10 of the Court of Appeal Rules. That being so, the decision can only be challenged by appealing against it to the Supreme Court as the Court of Appeal lacks the competence to relist appeals dismissed pursuant to the provisions of Order 6 rule 10. He relied for his submissions on Kraus Thompson Org. v. N.I.P.S.S. (2004) 17NWLR (Pt. 901) 44, Akujinwa v. Nwaonuma supra, Babayagi v. Bida (1998) 2 NWLR (Pt. 538) 367 at 373 and Omoyinmi v. Ogunsiji (2001) 7 NWLR (Pt. 711) 149 at 153.

In dealing with this application, the first question that comes to mind is, when can this court dismiss an appeal for want of prosecution? We shall first of all have recourse to the extant rules of the court and that is the Court of Appeal Rules, 2002. The provisions of the said rules relevant to the issue at hand are Order 3 rule 20 sub-rules 1, 3 and 4; Order 6 rule 2; and Order 6 rule 10. These provisions are reproduced hereunder:

“Order 3 rule 20

(2) If the appellant has not complied with any of the requirements of rules 10 and 11 of this Order, the Registrar of the court below shall certify such fact to the court, which shall thereupon order that the appeal be dismissed either with or without costs, and shall cause the appellant and the respondent to be notified of the terms of its order.

(3) If the respondent alleges that the appellant has failed to comply with a part of the requirements of rules 2, 10 or 11 of this Order, the court, if satisfied that the appellant has so failed, may dismiss the appeal for want of due prosecution or make such other order as the justice of the case may require.

(4) An appellant whose appeal has been dismissed under this rule may apply by notice of motion that his appeal be restored and any such application may be made to the court which may in its discretion for good and sufficient cause order that such appeal be restored upon such terms as it may think fit.”

Order 6 rules 2 and 10

“2. The appellant shall within sixty 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 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 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.”

These provisions are self-explanatory. While this court is empowered to relist appeals dismissed for want of prosecution made pursuant to Order 3 rule 20(1) and (3) by the provisions of Order 3 rule 20(4), it is not so empowered in relation to dismissals for want of prosecution made pursuant to the provisions of Order 6 rule 10 – See Omoyimi v. Ogunsiji supra, Olowu v. Abolore supra, Akujinwa V. Nwaonuma supra.

It is to be noted that the provisions in Order 3 rule 25(1) and (2) of the Court of Appeal Rules, 1981 as amended is not replicated in the Court of Appeal Rules, 2002. They are reproduced hereunder:

“Order 3 rule 25

“(1) If the appellant fails to appear when his appeal is called in for hearing and has not taken action under rule 24 of this order, the appeal may be struck out or dismissed with or without costs.

(2) When an appeal has been stuck out owing to the non-appearance of the appellant the court may, if it thinks; fit, and on such terms as to costs or other wise as it may deem just, direct the appeal to be re-entered for hearing.”

The effect is that this court has lost the statutory power to strike out or dismiss an appeal where the appellant fails to appear in court on the date his appeal is set down for hearing.

But that is not the end of the matter. Dismissal for want of prosecution is one of the tools courts of record use in the control of proceedings in those courts. It is part of the powers that inhere on those courts. S. 6(6)(a) of the Constitution of the Federal Republic of Nigeria, 1999 provides that

“(6) The judicial powers vested in accordance with the foregoing provisions of this section –

(a) shall extend, notwithstanding anything to the contrary in this constitution, to all inherent powers and sanctions of a court of law.”

These inherent powers exercisable by the courts include the power to strike out a case that is vexatious or frivolous – Enwezor v. Onyejekwe (1964) 1 All N.L.R. 14; power to grant leave to amend the grounds of appeal – Okoronkwo v. IGP (1957) 2 FSC 9; power to prevent abuse of its process – Onalaja v. Oshinubi 12 WACA 503; power to strike out or dismiss proceedings for want of diligent prosecution – Chime v. Ude (1996) 7 NWLR (Pt. 461) 379; Akujinwa v. Nwaonuma supra. A dismissal made under the inherent jurisdiction of the court is not a dismissal on the merits and can be set aside by the court upon application by the party affected – See Akujinwa v. Nwaonuma.

Did this court dismiss this appeal pursuant to the provisions of Order 6 rule 10 of the Court of Appeal Rules? If by the express words of the court the judgment is made pursuant to the provisions of statute, there can be no room for any other interpretation. Where no direct reference is made to the statute but the facts clearly bring the order of court within the ambit of statute, the court must conclude that the order was made pursuant to the provisions of the statute. In the instant case, the order of court being sought to be set aside did not expressly tie the order to the provisions of Order 6 rule 10 of the Court of Appeal Rules. The facts must therefore be examined vis-‘E0-vis the Order 6 rule 10 to determine whether or not the order of court was made pursuant thereto.

Order 6 rule 10 applies where

(a) an appeal has been entered i.e. to say the record of proceedings in the court below has been received by the Registry of the court – See Order 1 rule 21(1) Court of Appeal Rules, 2002. This is so because it is only when an appeal is entered that the court is fully seised of the whole proceeding between the parties thereto See Order 1 rule 21(2) Court of Appeal Rules.

(b) The appellant has failed to file his brief of argument within sixty days of his receipt of the record of appeal See Order 6 rule 2 Court of Appeal Rules or within the time as extended by the court.

In the instant case, as at 16th September, 2004, the date the appeal was set down for hearing by this court, there were pending before the court, two applications by both parties seeking departure from the rules to enable the parties argue the appeal on the bundles of documents they had put together. These applications were struck out. The Registry of this court had not received from the court below, the record of proceedings in that court as provided for in Order 1 rule 21 of the rules of this court. In other words, the appeal had not been entered. It is correct that as at 16-9-2004 when the appeal was dismissed, the appellant had not filed its brief of argument. It had infact filed its brief of argument on 13/8/04 albeit irregularly and thereafter sought leave of court to regularize same. That prayer was not granted, because the appeal had not been entered, the time set out in Order 6 rule 2 had not started running. The appellant was therefore not out of time. The conditions precedent for the court’s exercise of its statutory right to dismiss the appeal for want of jurisdiction had not been met at the time it dismissed the appeal. The court was clearly exercising its inherent jurisdiction to dismiss the appeal for want of prosecution, the case having been fixed for hearing and the appellant failing to appear in court and proffering no reasons for the failure.

As I had stated earlier, the respondent did not challenge the content of the affidavits in support of this application. It contented itself with challenging the competence of this court to grant the prayers sought. I had earlier set out the affidavit evidence. They make out good grounds for setting aside the earlier judgment of this court. Plausible reason for the delay in bringing the application has been placed before the court. This application is allowed. The judgment of this court in this appeal on 16th September, 2004 is hereby set aside. The appeal is hereby ordered to be relisted on the court’s cause list.

There should be no order as to costs.

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Other Citations: (2006)LCN/2026(CA)