Zhao Jianan & Anor V. Ma’aji Mairiga (2016)

LawGlobal-Hub Lead Judgment Report

MOHAMMED MUSTAPHA, J.C.A. 

This application was brought pursuant to Orders 18 Rules 2 & 10(1) and 8 Rule 11(a) of the Court of Appeal Rules 2011 and the inherent jurisdiction of this Court.

It is for an order of this Court dismissing this appeal for lack of diligent prosecution and such orders as the Court may deem fit to make in the circumstances.
The grounds for the application are:
1. The Appellants are not diligent in the prosecution of the appeal as they have failed/neglected to file their Briefs of Argument within the time provided for under Order 18 Rule of the Court of Appeal Rules, 2011.
2. The Appellants are not diligent in the prosecution of this appeal as they have not deposited any sum as required by Order 8 Rule 11 for the due prosecution of the appeal.

The application is supported by an 11 paragraphs affidavit deposed to by Abdulkareem Taiye Ibrahim with a letter that accompanied the compiled records of appeal dated 31st December, 2015 attached as Exhibit A, along with written submissions of learned counsel for the applicant.
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In opposition the respondent filed a 19 paragraphs

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counter affidavit with a letter from P. Atayi Esq., of counsel to the respondent dated 27th June 2016 attached as exhibit.

The said letter complains of failure of the trial Court to make the record available to the respondent/appellant.

I have carefully gone through the application along with the grounds, and the affidavit in support of the application as well as the counter affidavit, including the respective exhibits accompanying the affidavit and the counter affidavit, and submissions of learned counsel.

It is clear from the record that this appeal was filed on the 2nd of November, 2015, vide a notice and grounds of appeal and dated 16th of October, 2015 on the following grounds shorn of their particulars:

GROUND ONE:
The learned trial judge erred in law by denying the Defendants fair hearing and thereby occasioned a miscarriage of justice.

GROUND TWO:
The learned trial judge misdirected himself by descending into the arena, made a case for the Claimant and on the strength of that case, made a generous award of exemplary or punitive damages and thereby occasioned a miscarriage of justice.
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GROUND THREE:<br< p=””

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The learned trial Court erred in law by assuming jurisdiction in this matter and holding that the 2nd Defendant/Appellant is a necessary party and vicariously liable for the acts of the 1st Defendant/Applicant.

The record of appeal was transmitted to this Court on the 31st day of December, 2015; the appellants are required by the rules of this Court to file their briefs within 45 days, but they have clearly failed or neglected to do so as required.

The respondent contend at Paragraph 4 of the counter affidavit that they ‘mobilized’ the appeals unit of the Industrial Court at Paragraph 4 of the counter affidavit, without giving details of when or how, and at Paragraphs 6, 7, 8, 9 and 10 contended to the effect that sometime in January, 2016 learned counsel was told the records had been transmitted, but did not include the handwritten portions of the trial judge’s writing; and he was asked to wait for it to be proof read.

Tired of waiting, he complained several times got only promised, no details of what he did or didn’t do was stated; and finally he wrote Exhibit A to the Chief Registrar of the trial Court on the 27th June 2016, only three

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days before the appeal itself was taken on the 30th June 2016.

Clearly nothing in the affidavit or even Exhibit A shows any sign of seriousness on the part of the respondent/appellant to prosecute the appeal; the appellant’s effort at putting the blame on the registry of the trial Court for failure to transmit the record on time rings hollow, because there is nothing to show that after filing the record and grounds of appeal he did any of the things he claims to have done, assuming those things are even enough to help him.

Even the letter of complaint to the Chief Registrar of the trial Court was written on the 27th of June, 2016, when indeed this application to dismiss was filed on the 25th of April, 2016.

“Where the Court has discretion to dismiss an appeal for want of diligent prosecution, the Court of Appeal can look into the conduct of the party in breach of the rule right from when the writ was issued as the appeal in law is a continuation of the original cause of action. It is the totally of the conduct of the party in breach of the rules that the Court will take into consideration in exercising its discretion”. PER OLATAWURA, J.S.C. in

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FAWOLE AJAYI & ANR V. EGIEROBO OMOROGBE (1993) LPELR-290-SC.
From the totality of the conduct of the appellant he had not been diligent, to say the least, and this Court does not indulge non diligent prosecutors who have flouted the avowed rules of this Court with reckless abandon; no Court exercises its discretion just because it is asked to or on a whim, “Judicial discretion would mean that they were to act according to the rules of reason and justice, not according to private opinion and according to law and not humour.” Per Mohammed JSC;OLUMEGBON & ORS V. KAREEM (2002) LPELR-2624SC.

Order 18 Rule 2 of the rules of this Court state as follows:
“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”

This application is accordingly granted as prayed, appeal no. CA/A/816/2015 is dismissed for non diligent prosecution.
No order as to costs.

Other Citations: (2016)LCN/8949(CA)