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

LawGlobal-Hub Lead Judgment Report

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.

(iii) The failure by an appellant to file a brief has a far reaching effect and there being a subsisting judgment against the appellant, the dismissal for want of prosecution in such a case under the present Rules in force amounts to an affirmation of the judgment of the court below in respect of which the appeal was brought.

(iv) Any Order of dismissal under Order 9 Rule 7 of the Rules amounts to a final judgment the finality of which is emphasised by Order 7 rule 30 which prevents the Court from reviewing “any judgment once given and delivered by it save to correct any clerical mistake or some error arising from any accidental slip or omission or to vary the judgment or order so as to give effect to its meaning or intention.”

(v) Even if the judgment were not drawn up, signed and sealed, the provisions of Order 7 rule 30 deprives this Court of any jurisdiction to review the judgment of dismissal for want of prosecution.

(vi) The inherent jurisdiction of this Court under Section 6(6)(a) of the Constitution of the Federal Republic, 1979 cannot be invoked to save the situation because there is no lis extant before the court upon which the inherent jurisdiction can operate.

(vii) Sympathy cannot override the clear provision of the Rules and it would be in the interest of all if parties and their counsel endeavour to keep to the time set out in the Rules for the doing of any act or taking of any step.

(viii) In Ratnam v. Cumarasamy (1964) 3 All E.R. 933 at p. 935, Lord Guest observed:

“It must be emphasised and realised that the rules of Court must.

prima facie, be obeyed and, in order to justify a court in extending the time during which some step or procedure required to be taken, there must be some material on which the court can exercise its discretion. If the law were otherwise, a party in breach would have unqualified right to an extension of time that would defeat the purpose of the rules which is to provide a time table for the conduct of litigation.”

(ix) The failure to file briefs by the appellants within the extended time can be likened to an abandonment of their appeal particularly when such failure is coupled with non-appearance in court without excuse at the time of hearing. See the observation of Lawson J. at p. 545 of R. v. Medway (1976) 2 W.L.R. 528.

Carama Lord Widgery C.J., Stephenson L.J. O’Conner, Lawson and Jupp J.J. Also see English Court of Appeal Rules 1968 Rule 10 sub-rule 4.

I shall deal further with certain aspects of the decision in Iro Ogbu’s case later on in this appeal.

Also in Sodeinde Brothers (Nig.) Ltd. v. African Continental Bank Ltd. (1982) 6 SC. 137, the decision in Iro Ogbu’s case was approved and followed by this Court.

It is therefore to be noted that the main purpose of the applications for consideration here was to urge this Court to depart from and overrule the decision in Iro Ogbu’s case. As a matter of fact. learned counsel for the applicants said so specifically in their submissions before this Court. Chief F. R.A. Williams, S.A.N., learned counsel for the applicant in the first application said that the question for consideration was whether the court has jurisdiction to restore to the list an appeal which has been dismissed for want of prosecution under Order 9 rule 7 of the Rules; and that if the decision of this Court in Osita Ikeakwu & 21 ors. v. Chinwuba Nwamkpa (1967) NMLR. 224 at p. 227 was cited to the Court in Iro Ogbu’s case, it would have decided differently. However, Mr. Anyamene, S.A.N., learned counsel for the applicants in the second application said in paragraphs 7 and 8 of his brief thus:

“7. This application for re-entering the appeal is made with full knowledge of the decision of this Court in Chief Iro Ogbu v. Chief Ogburu Urum (1981) 4 SC. 1.

8. The applicants will invite the court to depart from its decision in Chief Ogbu v. Chief Urum cited above and this is the primary reason for making this application, the secondary reason being the hardship which the rigid application of Order 9 Rule 7 has worked on the applicants.”

And Dr. Mowoe learned counsel for the applicant in the third application referred to the posture already taken by this court in the decision of Iro Ogbu’s case and that of Sodeinde Brothers v. African Continental Bank, and then submitted that it was time for the Court to abandon that posture.

Recently, it was decided by this Court with a full panel that although this court has jurisdiction to depart from and overrule its previous decision whether by a full court or not, it will do so rather sparingly; and only when new facts have emerged to show that the previous decision was wrongly decided, or that it was decided per incuriam, or that it was decided, without jurisdiction: See S.C. 144/83 – Paul Odi & Anor. v. Gbaniyi Osafile judgment delivered on 11th January, 1985. It is therefore necessary to ascertain whether learned counsel in these applications have drawn the attention of this court to such new facts that will necessitate a departure from or the overruling of the decision in Iro Ogbu’s case.

Chief Williams, S.A.N. learned counsel for the applicant in the first application made a number of both written and oral submissions before this court. He submitted that there is a fundamental difference between an appeal that was dismissed and the one that was struck out; that an appeal may be dismissed after it has been heard on the merit, and the court is of the view that the appellant is not entitled to the relief sought; that on the other hand, an appeal may be dismissed under the inherent jurisdiction of the court to prevent an abuse of the process of the court because the court exists for settling genuine disputes, and not to allow an appeal to hang over the head of an opponent. He submitted further that where the court uses its disciplinary power apart from its adjudicative power, the court is entitled to revoke or recall its Order made in exercise of its disciplinary power. He therefore concluded that this court has a discretionary power to recall or set aside an order made in exercise of its disciplinary power if the circumstances of the case so deserve. He conceded that the court has Rules of Court which repeat and codify its disciplinary powers; but he maintained that this court had held before rightly that the existence of Rules does not take away, the exercise of its discretionary powers. He referred to the decision of this court in Osita Ikeakwu & Ors. v. Chinwuba Nwamkpa (1967) NMLR. 224 at p. 227 which deals with the relisting of an appeal that had been struck out; and he said that if that decision had been cited to the court in Iro Ogbu’s case, that case would have been decided differently.

Learned counsel then referred to an Artcile entitled “The Inherent Jurisdiction of the Court” written by Mr. I.H. Jacob, Senior Master of the Supreme Court in England; and published in Vol. 23 of the Current Legal Problems 1970 – a journal of the Faculty of Laws of the University College London. He cited copiously from it particularly from page 32 on “Control over Process”, pages 40-44 dealing with” Abuse of Process”, and pages 50 – 51 relating to “Relations between Inherent Jurisdiction and Rules of Court; and he then made the following submissions:

that once the Court is satisfied that it has inherent powers, those of them put in the Rules should not inhibit the court from exercising those not put in the Rules; that inherent jurisdiction is not a fanciful notion to which a party can resort when he cannot find any other authority to support his case; that it is the very essence that goes to the root of any jurisdiction; that both the Federal Supreme Court and the Privy Council had always made orders in exercise of the inherent jurisdiction of the Court; see Palmer v. Beresford Stooke 14 WACA 333 at 335 and Forfie v. Seifah (1958) A.C. 59 at p. 67; that the Rule of Court is ancillary to inherent jurisdiction and it cannot be used to curtail or inhibit inherent jurisdiction of the court; that even if there is no Order 9 rule 7 it is within the inherent jurisdiction of the court to refuse to allow an appeal to be argued without filing a brief, and even to dismiss the appeal; that inherent jurisdiction is an adjunct to the statutory jurisdiction of the court, and that it is in essence a jurisdiction which is necessary to enable the court to exercise its statutory jurisdiction; and finally that this court is created by the Constitution of Nigeria and given its jurisdiction by that Constitution and that as far as Nigeria is concerned, no Rule of Court can diminish the express or inherent jurisdiction conferred by the Constitution.

On Order 7 rule 30 of the Rules, Chief Williams submitted that it must not be construed in such a way as to curtail or diminish the powers of the court in hearing appeal on its merit; and that Rules of Court which deal with procedure must not be used to override the jurisdiction of the court because both operate in different compartments. Learned counsel then submitted that the two terms “dismissal” and “struck out” are interchangeable where the former is used as “dismissal otherwise than on the merit”, but dismissal on the merit is completely different and can amount to res judicata. To buttress his contention, Chief Williams cited the decision in Onalaja v. Oshinubi 12 WACA. 503 and referred to the Oxford English Dictionary meaning of “Dismiss” and “Strike out” at page 470. Meaning No. 10 and page 1135 Meaning No. 83 respectively; and he finally submitted that whether one strikes out or dismisses a case not on the merits the meaning is the same.

In his own submissions, Mr. Anyamene, S.A.N. learned counsel for the applicants in the second application mainly gave reasons why he was urging this Court to depart from Iro’s Ogbu’s case as follows:-

(i) that filing of briefs is only a matter of procedure, failure of which is not fatal to the case;

(ii) that Order 9 rule 7 of the Rules does not envisage the consequences that a failure to file brief will shut out an appellant from having his appeal heard because the court has the power to waive the requirement of filing a brief which it did in the two election cases of Egemasi v. Agim Duru (1983) 9 Sc. 7-21 and Emeka Ojukwu v. Dr. Edwin Onwudiwe (1983) 11 SC. 198

(iii) that the court can re-enter the appeal under its inherent jurisdiction.

The decisions in NEM General Insurance Co. v. Uchay (1973) 1 N.M.L.R. 170; Olu of Warri v. Esse (1958) 3 FSC. 94 at p. 97 and Osita Ikeakwu v. Chinwuba Nwamkpa (1967) NMLR. 224 at p. 227 were cited in support;

(iv) that on the issue of jurisdiction, a dismissal of an appeal for failure to file a brief is not a final judgment.

Dr. Mowoe for the applicant in the third application associated himself with the submissions of Chief Williams and then reiterated the reasons why the Court should overrule the decision in Iro Ogbu’s case as follows:

(i) Justice, fairplay and/or equity demand that the doors to the highest temple of justice in Nigeria, should not be shut against proper and deserving appellants.

(ii) Appeals in the highest/last court in Nigeria should be won or lost on merit not by default.

(iii) This Honourable Court, which is the LAST hope of an appellant should feel perfectly free to do what justice, equity and good conscience call for and should not be hampered by rules of court or lack of rules of court.

(iv) Rules of Court or absence of rules of courts should not pose any impediment to this Honourable Court’s dispensation of justice without fear or favour, ill will or affection.”

In reply, learned counsel for the respondents in the three applications (Messrs. T.A. Molajo and G.N.A. Okafor and Chief Ororho respectively) made various submissions supporting the decision in Iro Ogbu’s case and Sadeinde Bros. v. A.C.B; and they emphasized the points decided in those cases. They therefore submitted that in so far as the appeal in each case was dismissed for want of prosecution by virtue- of Order 9 rule 7 of the Rules, this Court has no statutory or inherent jurisdiction to relist the appeal for hearing; and the court was urged to dismiss the applications.

Let me examine the points made by learned counsel in their submissions to see whether or not they have succeeded in convincing the court that the Iro Ogbu’s case was wrongly decided. Chief Williams had given the impression in his submissions that the Iro Ogbu’s Case was decided per incuriam in that it did not take cognizance of the decision in Ikeakwu’s Case (supra) which was not cited before it in that matter; and Mr. Anyamene said that the Ikeakwu’s case is an authority for the proposition that this court has an inherent jurisdiction to entertain an appeal whether or not the lis is extant. But because of the importance that learned counsel had attached to the decision of this Court in Osita Ikeakwu & Ors. v. Chinwuba Nwamkpa (1967) NMLR. 224 at p. 227, I have decided to set out the facts as well as the decision in the matter in full as follows:-

“In that appeal the appellants were defendants in the High Court. There, the respondents obtained judgment against them for damages for trespass on certain fishponds and an injunction to restrain further fishing there without respondent’s consent.

The appellants had pleaded that the title to the fish ponds had been awarded them by the judgment of the Resident, Onitsha Province, given on appeal in Native Court Suit 83/1945. The High Court, presided over by Betuel J. held that the Resident’s judgment was given without jurisdiction because the Resident had earlier struck out the appeal, and that the appeal had therefore come to an end since there was no specific provision in the Native Courts Ordinance or Regulations made thereunder for relisting an appeal that had been struck out. It was submitted for the respondents and accepted by the Lower Court that the order of the Resident striking out the appeal therefore had the effect of an order dismissing the appeal. For the appellants, it was submitted that since the Resident only struck out the appeal he had not determined it on the merits and that it was open to the appellants to start again before the Resident by applying for leave to appeal out of time as they did, or to apply by correct procedure for it to be relisted.

The respondents relied on judgments given in their favour in other suits which were instituted later than No. 83/1945, but the Resident’s judgment in No. 83/1945 was the latest in time, and the appellant relied on it as res judicata. The issue was whether that judgment was a nullity.”

Brett, J.S.C. while delivering the judgment of the court observed:

“All appellate jurisdiction is statutory and the power to adjudicate on an appeal, by allowing or dismissing it, includes the power to decline to adjudicate on the merits where an appeal is not properly before the Court. This Court frequently exercises such a power. In such a case the usual course is to strike out the appeal, and although an order striking out an appeal has for some purposes much the same effect as an order dismissing it, it does not thereby become a decision on the merits and docs not necessarily preclude a subsequent decision on the merits if the matter can he re-opened by an appropriate procedure.

When an appeal is struck out the position is as it would have been if no appeal had been brought that is to say, the effective judgment is that appealed against, not a judgment of the appeal court and there seems to be nothing contrary to general principle in holding that it is still possible to appeal against the effective judgment, if a proper procedure is followed and if the limits of time for taking any particular step arc not exceeded. Either an application to relist or a fresh notice of appeal, with an enlargement of time if necessary, would be a form of procedure known to the law, and we do not attach as much importance as Betuel J., did to the absence of express statutory provision for the relisting of an appeal that has been struck out.

Section 37 of the Native Courts Ordinance empowered an appeal tribunal to grant an extension of time for bringing an appeal, and if Mr. Beaumont had jurisdiction to entertain the matter at all he had jurisdiction to grant an extension of time. Provided nothing is done which is contrary either to any express requirement of the law or to the principles of natural justice, we do not consider that the Courts should treat decisions given under the Native Courts Ordinance as invalid merely because of any informalities of procedure, and in our view Mr. Beaumont had jurisdiction to grant leave to appeal on the merits. If it is once accepted that he acted within his jurisdiction, his decision must be treated as binding.”

In the above case it is to be noted in the first place, that an appeal was first struck out by the Resident’s Court for non appearance of the appellant; and there was no specific provision in the Native Court Ordinance or the Regulations made thereunder for such appeals to be relisted for hearing.

But in our own Rule, there is specific provision for relisting such appeals for hearing even though they might have been dismissed and not struck out for non appearance of the appellants. This is provided for in Order 7 rule 23 thus:

“23(1) Subject to the provisions of Order 9 Rule 6(6) of these Rules, if the appellant fails to appear when his appeal is called on for hearing and has not taken action-under Rule 22 of this Order, the appeal may be dismissed with or without costs.

(2) When an appeal has been dismissed owing to the nonappearance of the appellant the Court may, if it thinks fit, and on such terms as to costs or otherwise as it may deem just, direct the appeal to be re-entered for hearing.”

Another rule similar to this which empowers the court to relist an appeal dismissed for non-compliance with conditions of appeal is Order 7 rule 19 which provides thus:

“19(1)11 the appellant has complied with none of the requirements of Rules 9 and 10 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 on its order.

(2) Where an appeal has been dismissed under paragraph (1) of this Rule, a respondent who has given notice under Rule 13 of this Order may give notice of appeal and the provisions of Rule 18 of this Order shall apply as if the appeal were brought under that Rule.

If the respondent alleges that the appellant has failed to comply with a part of the requirements of Rules 2, 9 or 10 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. Any such application may be made to the Court and the Court may in

its discretion for good and sufficient cause order that such appeal be restored upon such terms as it may think fit.”

Secondly, this court took the view in Ikeakwu’s case that there was provision in Section 37 of the Native Courts Ordinance which empowered an appeal tribunal to grant an extension of time for bringing an appeal; and that the Resident (Mr. Beaumont) who later allowed the appeal must have exercised that power. Hence Betuel J. was held to be wrong in saying that the Resident acted without jurisdiction in allowing the appeal. Under our Rules Order 1 rule 5 gives the court such power of enlargement of time thus:

“5. The Court may enlarge the time provided by these Rules for the doing of anything to which these Rules apply, or may direct a departure from these Rules; any other way when this is required in the interest of justice.”

However, the appeals dismissed in this case were not dismissed because the court failed to exercise its power to enlarge the time within which the appeals could be brought.

Thirdly the reason for giving the decision in Ikeakwu’s Case is contained in these observations of Brett, J.S.C. that:

“When an appeal is struck out the position is as it would have been if no appeal had been brought, that is to say, the effective judgment is that appealed against, not a judgment of the appeal court. and there seems to be nothing contrary to general principle in holding that it is still possible to appeal against the effective judgment, if a proper procedure is followed and if the limits of time for taking any particular step are not exceeded. Either an application to relist or a fresh notice of appeal, with an enlargement of time if necessary, would be a form of procedure known to the law”

But that was not the situation when the appeals that gave rise to these applications were dismissed. The dismissal of those appeals for want of prosecution brought finality to the proceedings and the effective judgments were the judgments of the Court of Appeal which were appealed against.

Moreover once the appeals were dismissed. and the orders have been drawn up, signed and sealed, the court became functus officio and those judgments could not be reviewed again. That is the essence of Order 7 rules 29 and 30 of the Rules which provides as follows:

“29(1)Every judgment of the Court shall be embodied in an order.

(2) A sealed or certified copy of the order shall be sent by the Registrar to the court below.

(3) Interlocutory orders shall be prepared in like manner.

30. The Court shall not review any judgment once given and delivered by it save to correct any clerical mistake or some error arising from any accidental slip or omission, or to vary the judgment or order so as to give effect to its meaning or intention. A judgment or order shall not be varied when it correctly represents what the Court decided nor shall the operative and substantive part of it be varied and a different form substituted.

Fourthly, the elections cases of Egemansi and Ojukwu mentioned by Mr. Anyamene cannot in my view be regarded as an exercise of the Court’s inherent jurisdiction to hear the appeals in those cases without the filing of briefs. Rather, because of the special nature of the case which required accelerated hearing, the court exercised its power to waive compliance with Order 9 rule 7 in accordance with the provisions of Order 9 rule 8 which says:

8. The Court may, where it considers the circumstances of an appeal to be exceptional, or that the hearing of an appeal must be accelerated in the interest of justice, waive compliance with the provisions of Order 9, in so far as they relate to the preparation and filing of Briefs of Argument, either wholly or in part, or reduce the time limits specified in the Order, to such extent as the Court may deem reasonable in the circumstances of the case.”

On the issue of the exercise of inherent jurisdiction on which learned counsel heavily relied, I think it is pertinent to refer to the important points made by Mr. Jacob in his article on the matter. Inter alia, he said:

(a) “The inherent jurisdiction of the court is a concept which must be distinguished from the exercise of judicial discretion.

(b) It may be exercised in any given case, notwithstanding that there are Rules of Court governing the circumstances of such case. The powers conferred by Rules of Court are, generally speaking, additional to, and not in substitution of, powers arising out of the inherent jurisdiction of the Court.

The terms “inherent jurisdiction of the Court” is not used in contradistinction to the jurisdiction conferred on the Court by statute.

The Court may exercise its inherent jurisdiction even in respect of matters which are regulated by statute or by rule of court, so long as it can do so without contravening any statutory provision.

The Superior Courts of criminal law have exercised inherent jurisdiction from the earliest times to punish for contempt of court committed in the face or presence of the court and of its process, and by way of regulating the practice of court and preventing the abuse of its process by staying an action shown to be vexatious and frivolous. Hence, the main methods by which the inherent jurisdiction of the court may be exercised are by coercion and the regulation of its process.

(e) Under its inherent jurisdiction the court has power to control and regulate its process and proceedings, and it exercises this power in a great variety of circumstances and by different methods ……. The exercise of this power has been pervasive throughout the whole legal machinery and has been extended to all stages of proceedings, pre-trial, trial and post-trial. Indeed, it is difficult to set the limits upon the power of the court in the exercise of its inherent jurisdiction to control and regulate its process, for these limits are coincident with the needs of the Court to fulfil its judicial functions in the administration of justice.

(f) Under its inherent jurisdiction, the court may dismiss an action for want of prosecution; not only by analogy with the limitation of statutes, where the action has been allowed to be dormant for a period exceeding the relevant limitation period: (See KraKaner v. Kartz (1954) 1 W.L.R. 278 or (1954) 1 All E.R. 244; but also where it is satisfied that by reason of prolonged or inordinate delay which is inexcusable, the defendant has suffered or is likely to suffer prejudice or that it is no longer possible to have a fair trial between the parties – See Allen v. Sir Alfred McAlpine & Sons Ltd. (1968) 2 QB 229 (1) and Supreme Court Practice 1970 Para. 25/1/3A et. seq.

(g) The court can exercise its inherent jurisdiction by summary process, even where there are Rules of Court under which it can exercise an equally effective jurisdiction. It may be useful at this stage therefore to define more precisely the relation, as well as the difference, between the inherent jurisdiction and the Rules of Court.

The powers of the court under its inherent jurisdiction are complementary to its powers under Rules of Court; one set of powers supplements and reinforces the others. The inherent jurisdiction of the court is a most valuable adjunct to the powers conferred on the court by the Rules. The usefulness of the Rules of Court is that they regulate with some precision the circumstances in which the court can apply coercive measures for disobedience of or non-compliance with the requirements of the rules or orders of the court. These measures are simply convenient and effective to uphold the authority of the court in cases in which there are no aggravating circumstances accompanying such disobedience or non-compliance.

On the other hand, where the usefulness of the powers under the Rules ends, the usefulness of the powers under inherent jurisdiction begins. This is shown in three important respects in which the powers arising out of the inherent jurisdiction differ from those conferred by Rules of Court. First, perhaps by their very nature, they are wider and more extensive powers, permeating all proceedings at all stages and filling any gaps left by the Rules and they can be exercised on a wider basis, for example, by enabling the court to admit evidence by affidavit or otherwise in order to examine all the circumstances appertaining to the merits of the case. Secondly, they can be invoked in respect of persons who are not themselves actual litigants in pending proceedings.

Thirdly, they can be used to punish the offender by fine or imprisonment.”

It is to be noted that the writer has made some points in the Article which are relevant for our consideration in this matter namely:

(i) that the court may exercise its inherent jurisdiction even in respect of matters which are regulated by statutes or by rules of courts so long as it can do so without contravening any statutory provision;

(ii) that the main methods by which the inherent jurisdiction of the court may be exercised are by coercion and the regulation of its process.

It seems clear that we are not concerned here with the exercise of the coercive powers of the Court to punish for contempt; nor are we considering matters relating to control of the court’s process which are considered to be vexatious and are tantamount to an abuse of the process of the court. But we are dealing with matters relating to the proceedings of the court which are already regulated by Rules of Court. The Chief Justice of Nigeria had made those rules in exercise of the powers conferred upon him by section 216 of the Constitution 1979 read along with section 274 thereof relating to existing laws. There is nothing in those rules which authorizes the relisting of or hearing of an appeal, which has been dismissed for want of prosecution by virtue of Order 9 rule 7 of the Rules. But the rules provide that by a dismissal in such a case, the appeal had been brought to finality and the judgment could no longer be reviewed save in certain cases which are not applicable here.

See Order 7 rule 30 of the Rules. These are the provisions which Mr. Jacob in his Article said must not be contravened by the exercise of the inherent jurisdiction of the Court.

I am therefore of the opinion that no inherent jurisdiction can be exercised to revive the appeals that were dismissed for want of jurisdiction. It should be remembered that all those issues were canvassed before this Court in Iro Ogbu’s Case and they were thoroughly considered therein. No new facts have therefore emerged, in my view, from the submissions of learned counsel for the applicants in the three applications to show that the decision in fro Ogbu’s Case was either wrongly decided; or that it was rendered per incuriam. In the circumstances, I find no merit in the three applications which are hereby dismissed with costs assessed at N25.00 in favour of the respondents in each application.

SOWEMIMO, C.J.N. (Presiding): The arguments, addressed to the Court in three applications by the appellants/applicants and respondents, were on the basis that the ruling in Suit No. SC.18/80, Chief Iro Ogbu & Ors. v. Chief Ogburu Urum & Anor was wrongly decided. I refer to the relevant portions of the judgments of my learned brothers, Bello and Uwais, JJ.SC.:-

“Justice Bello, J.S.C.

I agree that there are no provisions in the Supreme Court Act 1960 and in the Supreme Court Rules 1977 permitting this Court to set aside its judgment and to re-enter for hearing an appeal that has been dismissed for want of prosecution under Order 9 rule 7 of the said Rules. I consider it pertinent to point out that when an appeal has been dismissed owing to the failure of the appellant to perfect the conditions of appeal or owing to the non appearance of the appellant or respondent, the Court is empowered in proper cases to set aside its judgment and to order the appeal to be restored and re-entered for hearing: Order 7 rule 19(4); Order 7 rule 23(2) and Order 7 rule 25(3) of the said Rules.

No such provisions were made for an appeal that has been dismissed for want of prosecution under Order 9 rule 7.

I have also considered whether the Court has inherent jurisdiction to set aside its judgment of dismissal of an appeal founded under the provisions of Order 9 rule 7. It seems to me that on the authority of Obimonure v. Erinosho (1966) 1 All N.L.R. 250, the inherent jurisdiction of a Court to set aside its judgment or order is limited to judgments or orders which are nullities. The issue of nullity does not arise in the case in hand.”

“Justice Uwais, J.S.C.

Be that as it may, Mr. Ofodile indicated at first that he brought his application under Order 7 rule 23(2) and Order 9 rule 3(1) of the Supreme Court Rules, 1977. However, on realising that Order 7 rule 23(2) is unapplicable, he sought to invoke Order 7 rule 19 and Order 10 of the Supreme Court Rules, 1977.

Chief Kehinde, on the other hand, opposed the application and submitted that there is no provision in the Supreme Court Rules, 1977 which allows for the re-instatement of appeal once it

is dismissed for want of prosecution.

The instances which this Court can in its discretion restore appeals which had been dismissed are specifically provided under the Supreme Court Rules 1977. Such instances include the non-compliance with conditions of appeal (Order 7 rule 19(4), the non-appearance of an appellant at the hearing of the appeal (Order 7 rule 23(1)) and the non-appearance of a respondent at the hearing of the appeal (Order 7 rule 25(1) Although Order 9 rule 7 provides for the dismissal of appeal on the failure of appellant to file brief timeously, the Rules remain silent on whether such dismissal could specifically be set-aside. There is, however, the rubric ‘Miscellaneous’ under Order 10 of the Rules which states:

‘Non-compliance on the part of the appellant or respondent 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 interests of justice that such non-compliance be waived. The Court may in such manner as they think right, direct that the appellant or the respondent as the case may be to remedy such non-compliance, and thereupon the appeal shall proceed……’

I agree that the provisions of Order 10 are wide enough to embrace the circumstances of Order 9 rule 7. However, the provisions will only come into play when they are raised at the opportune moment. In this case at the time when application to dismiss the appeal was made by the respondents on 24th November,1980. Once the appeal is dismissed it seems to me that this Court becomes functus officio and has no power under Order 10 to re-list the appeal.”

May I refer, in this respect, to the provisions of Order 9 rules 7 and 8.

May I also refer to a portion of an article written by I.H. Jacob, on behalf of the Faculty of Laws, University College, London , Volume 23, and titled “Current Legal Problems 1970”, which reads:-

“In many spheres of the administration of justice, the High Court of Justice in England exercises a jurisdiction which has the distinctive description of being called ‘inherent’. The inherent jurisdiction of the court may be invoked in an apparently inexhaustible variety of circumstances and may be exercised in different ways. This peculiar concept is indeed so amorphous and ubiquitous and so pervasive in its operation that it seems to defy the challenge to determine its quality and to establish its limits. Yet there are insistent questions about inherent jurisdiction which demand and deserve an answer, such as, what is its nature, its juridical basis, its limits, its capacity to diversify, and its claim to viability. An attempt to provide some answers may help to throw a little light upon an important, though perhaps somewhat uncharted, area of English procedural law.

Nature of Inherent Jurisdiction

To understand the nature of the inherent jurisdiction of the court, it is necessary to distinguish it first from the general jurisdiction of the court, and next from its statutory jurisdiction.

The term ‘inherent jurisdiction of the court’ does not mean the same thing as ‘the jurisdiction of the court’ used without qualification or description: the two terms are not interchangeable, for the ‘inherent’ jurisdiction of the court is only a part or an aspect of its general jurisdiction. The general jurisdiction of the High Court as a superior court of records is, broadly speaking unrestricted and unlimited in all matters of substantive law, both civil and criminal, except in so far as that has been taken away in unequivocal terms by statutory enactment. The High Court is not subject to supervisory control by any other court except by due process of appeal, and it exercises the full plenitude of judicial power in all matters concerning the general administration of justice within its area. Its general jurisdiction thus includes the exercise of an inherent jurisdiction.

Moreover, the term ‘inherent jurisdiction of the court’ is not used in contradistinction to the jurisdiction conferred on the court by statute. The contrast is not between the common law jurisdiction of the court on the one hand and its statutory jurisdiction on the other, for the court may exercise its inherent jurisdiction even in respect of matters which are regulated by statute or by rule of court, so long as it can do so without contravening any statutory provision. There is, nevertheless, an important difference between the nature of the inherent jurisdiction of the court and its statutory jurisdiction. The source of the statutory jurisdiction of the court is of course the statute itself, which will define the limits within which such jurisdiction is to be exercised, whereas the source of the inherent jurisdiction of the court is derived from its nature as a court of law, so that the limits of such jurisdiction are not easy to define, and indeed appear to elude definition.”

The above observation made by Jacob is interesting and useful.

“Dismissal” is an English word and the meaning attached to it in England has been set out in Jowitts Dictionary of English Law 1959. The publishers of the book refer to its object: “has been to produce a really comprehensive lexicon covering English Law from the earliest times to the present day, giving a definition and an explanation of every legal time, old and new.” In commonwealth jurisdiction like Nigeria, the word “Dismissal” retains its meaning with an invigoration and insaturated avarice for technicality.

It may bear an extreme meaning in Nigeria parlance, when its meaning to failure to take “due prosecution” attaches to failure or lateness in filing brief. Allowance must, however, be made to dexterity. While it is to be discouraged, the observance of a rule of court in its breadth may be, in a proper and genuine case, the courts in Nigeria will not beat back an attempt at reoriginating a lost cause.

The peculiar circumstances in this appeal, Suit No. SC.55/83, T.A. Yonwuren v. Modern Signs (Nig.) Ltd., are that the appellant collected the record of proceedings, delivered it to the chambers of his legal practitioner, and it was mis-placed. When the appeal came on the list for disposal, for the purpose of dismissing it for want of due prosecution, the legal practitioner representing the appellant appeared. On the other hand, the respondent also appeared. It comes for a decision whether the situation, as disclosed, creates a situation of want of due prosecution, because briefs were not filed or of non-appearance of an appellant.

The Court decided to dismiss the appeal, for want of due prosecution.

The present application for re-listing, in exercise of inherent jurisdiction, is hereby dismissed, on the genuine merit, with N25.00 costs to the respondent.

In Suit no. SC.104/83, John Ememoh & Anor. v. Chief Daniel O. Onok-pile & Ors. which was argued along with this as a separate motion, the appellant/applicant appeared in Court after filing his brief out of time, and the respondent filed his brief of reply within the prescribed time. The appellant/applicant asked for:

(1) re-listing/re-placing on the cause list, his appeal which was dismissed for want of due prosecution under Order 9 rule 7 of the Supreme Court Rules, 1977;

(2) three days’ extension for filing his brief, which though had been filed out of time, to bring his appeal within the prescribed time.

In an affidavit evidence, especially paragraph 9, the appellant/applicant swore –

“9. That on 21/5/84 when this appeal came up for hearing before this Honourable Court, the Court raised the point that the brief filed in support of our appeal was filed on Monday, 21st November, 1983 and that the last day for filing same was Wednesday, 16th November, 1983. That meant that our brief was filed nearly three (3) days out of time because documents due for filing on Saturday, 19th November, 1983 could properly be filed on Monday, 21st November, 1983 since this Honourable Court’s Registry did not open on Saturday, 19th November, 1983 and Sunday, 20th November, 1983.

The Court did not allow the appellant/applicant’s legal practitioner to argue the appeal, because of the breach of Order 9 rule 7, nor did it grant him extension of time.

Surely, learned counsel for the appellant/applicant ought to realise that this Court is governed by Rules of the Supreme Court of Nigeria, 1977. He cannot be let-in to argue an appeal which was not properly before the Court.

The judgment dismissing the appeal stands, and the application in this case is hereby dismissed, with N25.00 costs to the respondent.

In Suit No. SC.130/83, Udealo Nwaora v. Nwannoli Nwakonobi & Ors., Mr. A.N. Anyamene, S.A.N., as counsel for appellant/applicant, asked that the appeal be re-entered for re-hearing, and an order enlarging the prescribed time for filing of brief be extended. There is nothing stated on the heading of the motion that the application is being made under any Order of Court. On the face of the motion itself, it would appear that the application for extension of time was to enable the counsel for appellant/applicant to file his brief out of prescribed time, or as extended. Paragraph 12 of the affidavit evidence in support reads –

“12. The financial circumstances of myself and members of my community were so bad. We were unable to raise any money immediately.

Whilst one may express sympathy for the appellant/applicant, the point has to be resolved according to Rules of Court. No brief has been filed in this appeal within the prescribed time, no extension has been asked for or granted, under Order 9 rule 7. The appeal stands dismissed, for want of due prosecution.

In Suit No. Sc. 104/83, John Ememoh & Anor. v. Chief Daniel O. Onokpite & Ors., Mr. T.A. Molajo, counsel for the respondent, in opposition to the application, referred to Order 7 rule 30, which provides as follows:-

“30. The Court shall not review any judgment once given and delivered by it save to correct any clerical mistake or some error arising from any accidental slip or omission, or to vary the judgment or order so as to give effect to its meaning or intention.

judgment or order shall not be varied when it correctly represents what the Court decided nor shall the operative and substantive part of it be varied and a different form substituted.”

He submitted that any departure from that rule does not give any jurisdiction to the Court. Exceptions, he submitted, should not be allowed to take over the Rules of this Court. He referred to the exceptions in the Rule quoted above. It is his submission, that in the absence of any expressed provisions outside those provided for in Order 7 Rule 19(4), the Court has no jurisdiction to review its judgment. The Court has the jurisdiction to raise non-compliance with its Rules; it has no power to set aside its judgment (Order 9 rule 7) unless the judgment is a nullity.

In conclusion, learned counsel stated that no appeal can be restored after it has been dismissed on the merit, for breach or non-compliance with relevant Rules of Supreme Court, 1977.

In Suit No. SC.130/83 between Udealo Nwaora v. Nwannoli Nwakonobi & Ors. Mr. G.N.A. Okafor, learned counsel for the respondents, in opposition to Mr. Anyamene, S.A.N., submitted that since the applicants have concluded that the previous case was rightly decided, there was no need, therefore, for this Court to set aside the decision. In reference to inherent jurisdiction, it is his submission that it does not arise for application in this appeal.

May I draw attention to the views expressed by my learned brother, late Idigbe, J.S.C., in suit No. SC. 57/80 – Bashir Alade Shitta-Bey v. Federal Public Service Commission:-

“……………………………………

From the above judgment, the appellant appealed to the Federal Court of Appeal (hereinafter referred to simply as ‘the Court of Appeal’); and their Lordships in that Court (Coker, Wali and Uthman Muhammed, JJ .C.A.) on the 12th day of June, 1980 dismissed the appeal for almost exactly the same reasons which formed the basis of the order of dismissal, of the application, by the Court of first instance. Again, I think it is desirable to refer to certain passage in the lead judgment of Uthman Muhammed, J.CA. in the Court of Appeal with whom Wali, J.CA. found himself ‘in complete agreement’ and Coker, J.CA. ‘reluctantly in agreement’, After stating, in his judgment, that ‘the issue of the applicant’s status as a public officer if distinguished from those situations of ordinary master and servant relationship raised varied opinions, ‘His Lordship, Uthman Muhammed, J.C.A. referred to a passage in the opinion of Lord Reid in Ridge v. Baldwin (1963) 2 All E.R. at 66, and continued and adopted it:-

(a) ‘….when one refers to this classification it would appear that the appellant would fall in the second category, that is, those holding office at pleasure. But here in Nigeria the Public Service Commission (i.e. the respondent) promulgated a procedure which would guide it in performance of its statutory duty. It would seem that the regulations, not being statutory provisions, (sic) is not a public right….The Constitution of the Federation of Nigeria has not specified (i.e. imposed) these limitations….I agree with the learned Chief Judge that you cannot impose on a master the servant he does not want….in my view, submitted that the appellant has no legal right to be appointed a Civil Servant……….Certainly this is the gist of the whole application. Needless to ask whether the applicant has a legal right to be reinstated or employed as a legal adviser in the Federal Ministry of Justice….”

This appeal was dismissed, for want of due prosecution because no brief of appellant was filed.

Suit No. SC 104/83, John Ememoh & Anor. and Chief Daniel O. Onokpite & Ors. – Chief Ororho, in his submission in opposing Dr. Mowoe, said that he filed his reply brief in time and that he took preliminary objection to the hearing of the appeal, because the appellant’s brief in the case was not filed within the prescribed period, and this amounts to non-compliance with Order 9 rule 7.

Inherent jurisdiction of the Court should not be used so as to defeat the expressed Rules and Practice of the Supreme Court of Nigeria, 1977.

The appeal was dismissed on the 21st day of May, 1984, for want of due prosecution under Order 9 rule 7 of the Supreme Court Rules, 1977, because the appellant failed to file his brief of argument within eight weeks as required by Order 9 Rule 3(1). There is no power in this Court to set aside the order of the dismissal properly made by this Court when it came before it for hearing.

I have had the privilege of reading, in draft, the judgment of my learned brother, Oladiran Kazeem, J .S.C. and I agree entirely with his reasonings as set out succinctly and meticulously. To set it clearly, the three motions are hereby dismissed with costs.

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SC.55/1983 (CONSOLIDATED)