In The Court of Appeal

(Sokoto Judicial Division)

On Monday, the 11th day of January, 2010

Suit No: CA/S/156/M/2009

Before Their Lordships

 Between

 And

AHMAD O. BELGORE J.C.A.  (Delivering the Leading Ruling): By a notice of motion, filed by the respondents herein on the 29th day of February, 2008, this Court was moved on the 11th day of June, 2009 to dismiss the appeal filed by the appellants on the ground of want of diligent prosecution under Order 17, rule 10 of the Court of Appeal Rules, 2007. The motion was granted as prayed and the appeal was accordingly dismissed.

The appellants, by their learned counsel have now brought a motion praying inter alia for-

1. An order re-listing or restoring appeal No. CA/S/95/09 struck out by this honourable court (sic) on 11th June, 2009 for want of diligent prosecution, and 

2. Subject to (1) above, an order granting the Appellants/Applicants extension of time within which to file their Appellants' brief of Argument.

The grounds upon which the application has been brought are stated in the motion and is supported by a 3 - point affidavit stating the reasons for delay in filing Appellants' brief of Argument. The reasons are copiously stated in paragraph 2(1) to (x) of the affidavit in support of the motion. In paragraph 2 (xi), (xii) and (xiii) it is deposed as follows:-

"(xi) That the failure to file the appellants/applicants' brief of argument was not deliberate.

(xii) That the appellants/applicants are desirous of prosecuting the said appeal and undertake to do so without further delay, subject to leave being granted.

(xiii) That since receiving the said records of appeal counsel has immediately set himself earnestly to the task of preparing the appellants/Applicants' brief of argument and would be ready for filing within twenty four hour of the determination of this application in the event the appeal is re-listed and extension of time granted.

The respondents caused a counter-affidavit to be filed in opposition to the motion. It is a 5 - paragraph counter-affidavit stating the reason why the application should not be granted. It is emphasized in paragraph 4 (c) of this counter-affidavit that it was the appeal that was dismissed pursuant to Order 17, rule 10 of the Rules of the Court and that it was not the Notice of appeal that was struck out. It is also deposed in paragraph 4 (f) (g) and (h) as follows:-

"(f) That the applicants were served with the Record of proceedings on the 21st day of November, 2007 before same was transmitted to this Court.

(g) That the Court of appeal, as a matter of practice does not receive Record of Proceedings except same had been served on the parties with proof of service, 

(h) That the proof of service on the applicants is with the Registry of this Court." 

When this motion came up for hearing on the 2nd day of July, 2009, counsel on both sides were directed to file written addresses. Written addresses have been filed and exchanged. The applicants have also filed a written reply on points of law. 

The applicants formulated three issues for determination, namely -

(a) Whether or not the Court of Appeal has jurisdiction to relist or restore Appeal No.CA/S/95/2009 after same was dismissed for want of diligent prosecution under Order 17, rule 10 of the Court of Appeal Rules, 2007 

(b) Subject to resolution of issue (a) above, whether or not the appellants/applicants are entitled to have their Appeal No. CA/S/95/09 re-listed/restored.

(c) Whether or not the appellants/applicants are entitled to an extension of time to file their brief of argument. The respondents on the other hand have identified two issues for determination, viz :-

(a) Whether the Court can go outside their prayers to grant any other relief given the incompetence of their prayer on the motion paper

(b) Whether or not the Court of Appeal has jurisdiction to relist or restore appeal No. CA/S/95/09 after same was dismissed for want of diligent prosecution under Order 17, rule 10 of the Court of Appeal Rules, 2007.

The issues identified by the applicants are more all encompassing and will be followed in this ruling. John C. Shaka Esq., learned counsel for the applicants has argued all the three issues together and it is in like manner that this ruling will treat the issues.

In arguing the motion learned counsel for the applicant submits that by virtue of Section 6(6) (b) of the 1999 Constitution, the Court of Appeal reserves the inherent jurisdiction to entertain and grant this application. He gives what he calls simple and yet fundamental rational for this, namely, that the decision to dismiss an appeal at the instance of a respondent for want of diligent prosecution is clearly not a decision reached on the merit but one reached in default of the appellant taking some procedural steps that he was obliged to take by the Rules of Court to take. He cites Lord Atkins in EVANS V. BARTLAM [1937] AC 473, 480. He also cites the case of NWACHI V. EDE (1974) 4 ECSLR 32/34 and submits that this Court has jurisdiction just like every other Superior Court of record, in all default judgments/orders, for good cause shown, to review its order of dismissal and restore this appeal so that the same may be heard and determined on its merit.

Learned counsel for the applicant further submits that throughout the gamut of the Court of Appeal Rules, 2007, the intention of the legislature can easily be gauged and that is that as much as practicable, every appeal should be determined on its merits. He takes us through some of the provisions of the Rules in order to demonstrate his submission in this behalf. He submits that the Court will relist upon the applicant showing exceptional circumstances. In the instant case, he submits that the exceptional circumstance is that the applicants were not served with the record of appeal at all material times. As to the positive assertion by the respondents that the record was served on the applicants, he submits that there is no such proof since the deponent to the counter-affidavit could neither name the officer who served the record nor could the deponent exhibit the affidavit of service.

It is finally submitted for the applicants that the applicants having shown exceptional circumstances are entitled to have their appeal determined on the merit and that this Court has the jurisdiction to set aside its order of dismissal premised on the default to file brief of argument.

In opposing the application, Victor Olisah Esq., learned counsel for the respondents submits that "the word struck out or dismissed" are not synonymous and cannot be used inter-changeably as they connote different meanings, while one is not in the merit, the other is on the merit. He submits that the Court will not grant a prayer not sought by the parties, citing ADEBAYO V. O.A.U.T.H. C.M.B. (2006) 9 NWLR (Pt. 673) 585/602. It is urged that Prayer (a) of the motion paper be dismissed for incompetence.

As to the issue of jurisdiction it is submitted for respondents that this Court is functus officio after dismissing the appeal under Order 17, rule 10. Reliance is placed on the fact that remedy is provided in the Rules for other areas of non-compliance with the Rules but no such or similar remedy is provided with regard to Order 17 rule 10. To this end, it is submitted for the respondents that the dismissal is final and the appeal cannot be relisted. Learned counsel for the respondents calls in aid the decision of the Supreme Court in AKANKE OLOWU & 3 ORS V. AMUDATU ABOLORE [1993] 5 NWLR 255, from which he quotes the Hon. Justices of that Court copiously where they considered the provision of Order 6 rule 10 of the Court of Appeal Rules, 1981 which is in pari materia with Order 17 rule 10 of 2007 Rules.

Learned counsel then urged that the application be dismissed as being an abuse of the process of the Court.

In OBASI BROTHER MERCHANT CO. LTD V. MERCHANT BANK OF AFRICA SECURITIES LTD [2005] 2 SCNJ 272 the Supreme Court held at page 278 thus:-

"A final judgment is one which decides the right of parties. In other words, it is a decision on the merits of the case where the matter is assiduously canvassed and the rendition of a judgment is based on what is canvassed and agitated before the court by the legal combatants ... it is erroneous to construe a mere striking out of a case on the basis that because the proponent of the action had become lethargic or nonchalant to prosecute a case and the court relying on its inherent powers to strike out the case, it amounts to dismissal on the merit." 

At page 279 of the Report, the Supreme Court further held that -

"It is not in all cases where a matter is dismissed that it completely terminates the case. Indeed where a case is said to have been dismissed in the High Court but the circumstances show that such dismissal could not possibly connote or denote the determination as to put finality to the case, the court views such dismissal as a mere striking out See for example, Order 30, rules 3 and 4 of the Lagos 2004 High Court Rules."

It would seem as if this case is in conflict with the earlier decision of the Supreme Court in OLOWU V. ABOLORE (supra) but the distinction is clear. The decision in OBASI BROTHER V. MERCHANT BANK OF AFRICA concerns the High Court Rules while the decision in OLOWU V. ABOLORE is in respect of the Court of Appeal Rules. 

In OLOWU V. ABOLORE (supra), the Supreme Court held, per KARIBI-WHYTE, JSC at pages 277 - 278 thus : -

It is well settled that the exercise of appellate jurisdiction is statutory. A court cannot exercise jurisdiction to hear an appeal unless such jurisdiction is conferred by the constitution or some enabling statute. Hence in the instant case the jurisdiction to relist an appeal dismissed under Order 6 rule 10 should be found in the Rules of the Court. I have not been lucky to discover any in the rules. Mr. Candide-Johnson has in the appellants brief of argument submitted that Order 9 rule 7 of the Supreme Court Rules 1977 and Order 6 rule 9(1) (excluding the proviso and its legal effect) of the Supreme Court Rules 1985, are replicas of Order 6 rule 10 of the Court of Appeal Rules 1981 which is the relevant rule in the instant appeal. 

This court has decided several principles in CHUKWUKA V. EZULIKE (1986) 5 NWLR (Pt. 45) 892. It was held there that it has no jurisdiction under the 1979 Constitution, the Supreme Court Act, 1960 and the Rules of the Supreme Court 1985, or under its inherent jurisdiction or powers to entertain an application for entering an appeal dismissed under Order 8 rule 17 of the Supreme Court Rules for want of prosecution: Ogbu V. Urum (1981) 4 S.C. 1; Yonwuren V. Modern Signs (Nig) Ltd (1985) 2 S.C. 86; (1985) 1 NWLR (Pt 110) 483. It was also held that it has no inherent jurisdiction to set aside an order of dismissal properly made in the valid exercise of its jurisdiction and re-enter the appeal. An appeal dismissed on the ground of the failure to file appellants brief of argument is final. The appeal so dismissed cannot be revived.

I have already in this judgment referred to Order 6 rule 10 of the Court of Appeal Rules (1981) and pointed out the differences. It seems to me that there was no intention to give powers to the court to relist an appeal dismissed under Order 6 rule 10, hence no provision was made for it. Since Order 3 rule 20 (3) (4) and Order 3 rule 25 (2) provided for an appeal dismissed or struck out respectively, the omission to make a similar provision with respect to failure to file appellants brief inevitably suggests that there was a deliberate omission to make the provision. It is not the function of the court when construing statutes to supply omissions therein: See Customs V. Barau (1982)10 S.C. 48.  Contributing, KAWU, JSC held at p. 278 that:-

The application to dismiss the appeal for failure on the part of the appellant to file his brief was brought under Order 6 rule 10 of the Court of Appeal Rules (1981) as amended. Under that Order, there is no provision for relisting an appeal dismissed. It follows therefore that the Court of Appeal had no jurisdiction to set aside its order dismissing the respondents' appeal. 

In his own contribution, BELGORE, JSC (as he then was) held at PP. 278 - 279 that -

Once the Court of Appeal has dismissed the appeal for want of prosecution due to appellant's failure to file Brief of Argument, that court is functus officio on that matter. (See Orobator V. Mrs. Mercy Amata (1981) 5 S.C. 276; Nwaora V. Nwaukobu (1985 2 S.C. 86 -167; Yonwuren V. Modern Sign Ltd (1985) NWLR (Pt. 2) 244 at 245. If before the judgment of dismissal was entered and the appellant prayed for extension of time to file his brief, that will be a different matter governed by Order 3 rule 41 (1) Court of Appeal Rules. However, this issue has nothing to do with application of enlargement of time but with a matter dismissed for want of prosecution for which there is no remedy again in the Court of Appeal."

OLATAWURA, JSC at PP. 279 -280 contributed thus:-

"It is clear and from the set up of the courts, that quite apart from minor corrections due to slips, no court can sit on an appeal on its own judgment. A careful reading of this applicable rule is Order 6 rule 10 of the Court of Appeal Rules already set out above gives no such power. It permits of one order and that is the dismissal of the appeal for failure to file the briefs.

Following the Supreme Court authority in OLOWU V. ABOLORE (supra), this Court in a similar situation in JIDEONWO V. CHUKWUMA [2000] NWLR (Pt. 641) 397 at 406 held thus:-

"In any event, the applicant is by his application praying for the re-listing of an appeal dismissed by this Court. In other words, the applicant, in effect, is asking us to vary the decision of this court. I am afraid, going by the decision of the Supreme Court of Nigeria, above, which is binding on this Court, I hold that this Court lacks the inherent or statutory jurisdiction to relist this appeal. It appears to me from the submission of the Learned Counsel for the applicant that he is in fact challenging the jurisdiction of this Court in dismissing the appeal at the time it did hence the applicant ought to have applied for the dismissal to be set aside for having been made without jurisdiction." In the light of the foregoing, it is crystal clear that a dismissal under Order 17, rule 10 of the Court of Appeal Rules, 2007 is final and this Court has no power, inherent or statutory to re-enter the appeal so dismissed. This is the main difference between Order 17, rule 10 of the Rules of this Court and similar provisions in the various Rules of the High Courts in Nigeria.

Apart from the principle of stare decisis which makes the decision of the Supreme Court binding on this Court, we are equally bound by our own decision in JIDEONWO V. CHUKWUMA (supra) and we have no reason to depart from the same.

In sum, this application fails and it is accordingly hereby dismissed.

Each party shall bear his own costs.
HON. JUSTICE MUSA DATTIJO MUHAMMAD J.C.A: I read before now the leading ruling of my learned brother Belgore JCA. I entirely agree with his lordship that the instant appeal that was dismissed for want of diligent prosecution by this Court cannot be relisted by the same Court following a subsequent application in that regard. The authorities here are legion and include OGBU VS URUM (1981) 4 SC 1 AND YONWUREN VS MODERN SIGNS (NIG) LTD. 1985 1 NWLR (PT. 110) 483. For the fuller reasons contained in the leading ruling, I also find the instant application unmeritorious. I dismiss the application and abide by the order on costs made in the leading ruling. 

MASSOUD ABDULRAHMAN OREDOLA, J.C.A: I had a preview of the ruling just delivered by my learned brother, Belgore, JCA, and I am in full agreement with his reasoning and conclusions reached therein. My noble Lord and brother has commendably and admirably well, set down the facts which form the backbone of this matter. I do not intend to repeat the same. I shall by way of emphasis only, make the following comments and observations in this concurring ruling.

Prosecution of appeals before appellate courts should not be regarded or treated by litigants as a game of hide and seek, where one party can go into hiding only to re-emerge at his own convenience. It is never done and it has been frowned upon and visited with befitting requisite sanctions. Thus, the position is now settled, that the Court of Appeal lacks competence or jurisdiction to re-list, restore or re-enter an appeal which has been previously struck out or dismissed for want of diligent prosecution, under Order 17 Rule 10 of the Court of Appeal Rules, 2007. This is moreso, because under such a given circumstance, the dismissal is final and the appeal is incapable of being re-listed, re-visited or resurrected. What is more, public policy demands that there should be an end to litigation.

Indeed, an appellant who decides to go to sleep at that point in time, cannot nudge the Court into wakefulness and action whenever he rouses his slumber. The world has moved and unfortunately, there is no going back. Time waits for no one. Equity afterall, aids the vigilant and not the indolent. Additionally, rules of court are meant to be complied with at all times and at times at the sufferance of fatal consequences for breaches in the event of wilful non - compliance. 

In CHIME V. UDE (1996) 7 NWLR (Pt. 461) 379. The Supreme Court held that it has no jurisdiction to re-enter an appeal which has been dismissed for want of diligent prosecution, since under such circumstances, the dismissal is final. An appellant who fails and or refuses to file his brief of argument can be regarded, treated or deemed as having abandoned his appeal and the same shall be dismissed for want of diligent prosecution as in the instant case. Like an action which is statute barred, the situation or position is irredeemable or implacable.

In view of the above and for the reasons given in the lead ruling of my learned brother, Belgore, JCA, the application fails and is hereby dismissed. I also abide by the order regarding costs made therein.

 Appearances