T. A. Yonwuren V. Modern Signs (Nig.) Ltd. (1985)

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KAZEEM, J.S.C.

In these three applications, the applicants in the main, sought orders directing that the appeals which had previously been dismissed for want of prosecution be re-entered on the cause list for hearing on such terms as the court might consider just in the circumstances.

The second application also sought an order for enlarging the time within which the appellant might file his written brief as required by rules of court; and the third also sought an order of three days’ extension of time in order to regularise the brief already filed by the appellants/applicants three days out of time and for such further order or orders as the court may deem fit to make in the circumstances.

In each case, the appeal had been dismissed by the court by virtue of Order 9 Rule 7 of the Supreme Court Rules, 1977 (hereinafter referred to as the ‘Rules’) for failure to file the briefs within the time provided for under rule 3 of the said Order or within the time extended by the Court. The first appeal was dismissed on Monday the 12th March, 1984, the second on 4th June, 1984 and the third on 21st May, 1984.

The said Order 9 rule 7 provides as follows:

“7. If an appellant fails to file his brief within the time provided for in rule 3 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 the Court.”

Various reasons for the failure to file the briefs were given in the affidavit in support of each application. However, since the applications were similar, and were seeking the same order a full court decided to consolidate the three applications for hearing.

Prior to the hearing of those applications, this court (but not by a full panel) had an occasion to consider a similar application in the case of Chief Iro Ogbu & Ors. v. Chief Ogburu Urum and Anor. (1984) 4 S.C. 1 (hereinafter referred to as the “Iro Ogbu’s case) in which it decided that once an appeal had been dismissed for want of prosecution under Order 9 rule 7 of the Rules, it has no statutory or inherent jurisdiction to grant an application to restore it to the list for hearing. As this decision is very important for the determination of these applications, it is necessary to summarise here the findings in that matter.

In Iro Ogbu’s case, this court held the following views that:-

(i) Neither Order 7 rule 23(2), nor Order 7 Rules 19(1) or 19(4) or Order 10 of the Rules confer jurisdiction on the Supreme Court to relist for hearing any appeal dismissed by the court for want of prosecution for failure to file Briefs within the time stipulated by Order 9 rule 3 and dismissed under Order 9 rule 7 because:-

(a) the applicants’ appeal was not dismissed for non-appearance of appellant to enable the applicant call for the exercise of the power under Order 7 rule 23(2),

(b) the applicants’ appeal was not dismissed for failure to comply with the conditions of appeal to enable the appellant call in aid the exercise of the power under Order 7 rule 19(4); and

(c) the lis is not extant to enable the Court exercise the power under Order 10.

(ii) The procedural jurisdiction of the Court is statutory in the main and in the absence of any provision in the Rules, the Court will be unable to entertain and grant the application.