IN THE SUPREME COURT OF NIGERIA
CITATION: (1990) 9-10 S.C. 81
MUHAMMADU LAWAL UWAIS JUSTICE, SUPREME COURT
SAIDU KAWU JUSTICE, SUPREME COURT
SALIHU MODIBBO ALFA BELGORE JUSTICE, SUPREME COURT
ABDUL GANIYU OLATUNJI AGBAJE JUSTICE, SUPREME COURT
EPHRAIM OMOROSE IBUKUN AKPATA JUSTICE, SUPREME COURT
GOVERNMENT OF ANAMBRA STATE APPELLANT
DR. SAM OJI RESPONDENTS
M.L.UWAIS, JSC. (Delivering the Leading Ruling)
There are two applications before us in this appeal. The first is brought by the respondent/applicant while the second was filed by the appellant/respondent. The first application, which was filed on the 13th day of February, 1990, is for the appeal to be dismissed for want of prosecution on the grounds
1. That the Appellant's said Appeal is an appeal to which rules 6 and 7 of Order 7, Supreme Court. Rules 1985, apply being an appeal against a decision of the Court of Appeal affecting the Revenue of the Government of Anambra State.
2. That the Appellant has failed to comply with the mandatory provisions of Order 7 Rule 7 of the said Rules, having not prepared and lodged with the Registrar of this Court, for the use of the Honourable Justices, the requisite number of records of Appeal, within 14 days of filing of the Notice of Appeal.
3. That the Appellant's grounds of Appeal even if allowed, will not adversely affect the decision of the Court of Appeal appealed against.
Paragraph 7 of the affidavit in support of the motion reads as follows
7. That being dissatisfied with Exhibit 'C', the Appellant by its counsel, Senator N.N. Anah, S.A.N., filed a Notice of Appeal at the Court of Appeal Registry, Enugu on the 18th day of January, 1990. A certified copy of the Appellant's said notice of appeal is attached hereto and marked Exhibit 'D'.
Copy of the Appellant's notice of appeal is exhibited in the affidavit and marked Exhibit D. It is the respondent/applicant's case that the appeal comes under the ambit of Order 7 rules 1(2), 6 and 7 of the Supreme Court Rules, 1985. Order 7 rule 1(2) (d)(v) thereof provides that the provisions of rules 6 and 7 of the Order will apply to decisions of the Court of Appeal in respect of decisions made by the Court of Appeal in cases "affecting the Revenue of the Government of the Federation or of a State,". By Order 7 rule 6 of the Supreme Court Rules, 1985
It shall not be necessary for the Registrar of the Court of Appeal to prepare a Record in respect of an appeal of the type mentioned in Sub-rule (2) of Rule ~ of this Order unless the Court otherwise directs. Accordingly, the Record for the purpose of such appeals shall be prepared in the manner set forth in Rule 7 of this Order.
Now, Order 7 rule 7 (1) of the Supreme Court Rules, 1985, provides as follows
7. (i) The appellant shall, in appeals to which this Rule applies either simultaneously with filing his Notice of Appeal or within 14 day's thereafter, prepare for the use of the Judges a Record comprising
(a) the index;
(b) office copies of documents and proceedings which the appellant considers relevant to the appeal;
(c) office copy of the order for leave to appeal (if any); and
(d) a copy of the notice of appeal.
By the deposition in paragraph 7 of the affidavit in support of the respondent/applicants motion and the oral argument of learned counsel for the party, the application is premised on the fact that the appellant/respondent filed its notice of appeal on the 18th day of January. 1990. If this were correct, then the appellant/respondent was obliged to file the record of appeal within 14 days thereafter,that is on or before the 2nd day of February,1990. The question that arises is: did the appellant/respondent file the notice of appeal on the 18th day of January, 1990, as submitted by learned counsel for the respondent/applicant? It is necessary to examine the notice of appeal filed by the appellant/respondent, (Exhibit D) in order to be able to answer the question. The notice of appeal which was prepared by Senator N.N. Anah, S.A.N, learned counsel for the appellant/respondent, is dated the 17th day of January.,1990 on its last page - page 3. The endorsement at the bottom of page 3 bears the stamp of the Court of Appeal which clearly shows that the notice of appeal was filed on the 6th day of February, 1990, on payment of Nl.50 for which a temporary cash receipt was issued. This, therefore, belies the deposition in paragraph 7 of the affidavit in support of the application to dismiss the appeal for want of prosecution and faults the premise on which the application was brought. Furthermore, the application to dismiss the appeal together with the affidavit in support were filed in the Registry of the Court of Appeal, Enugu, on the 13th day of February, 1990, that is within a week of the notice of appeal being filed. In effect the motion to dismiss the appeal for want of prosecution was prematurely filed because by the date of filing the application, the appellant/respondent had seven more days, that is until the 20th day of February, 1990, before the time to file the record of appeal would expire.
The third ground for bringing the application which is that the grounds of appeal filed by the appellant/respondent "will not adversely affect the decision of the Court of Appeal" was not canvassed by learned counsel for the respondent/applicant. It is for that reason considered as abandoned. However, even if it was not abandoned, the question whether a ground of appeal has merit or not can only be considered at the stage of judgment by the Court after hearing arguments advanced by all the parties in the appeal. It is not therefore a point that can be raised by way of preliminary objection or in an application to dismiss an appeal for want of prosecution, as done by the respondent/applicant.1 The dismissal of an appeal for want of prosecution presupposes that there is a duty which is mandatory for the appellant to perform in order to bring his appeal to the stage of being heard, such as filing a brief of argument or payment of fees, and the appellant has failed, omitted or neglected to perform the obligation. The third ground for bringing this application is clearly untenable.2
It follows, therefore, that for the foregoing reasons, the application by the respondent/applicant is misconceived and is consequently incompetent. In my opinion it should be refused. Accordingly, the application is hereby struck-out.
The second application which was filed by the appellant/respondent on the 14th day of March, 1990 prays as follows-
1. To strike out the motion filed by the Respondent/Applicant in the above appeal dated 13th February, 1990 on the following grounds: -
i. The Motion is misconceived.
ii. The decision of the Court below did not affect the Revenue of Anambra State but the fundamental right of the plaintiff/respondent to a fair hearing and the applicable Rules therefore are not Rules 6 and 7 of Order 7 of the Supreme Court Rules 1985 but Order 7 Rules 1-4 of the same Rules.
2. To grant the Appellant/Applicant an extension of time within which to prepare the records of Appeal and forward the same to the Court in the most unlikely event of the above objection not being sustained by the Court.
3. Any such further order and/or orders as it may seem proper to the Court to make in the interest of justice.
4. To consolidate the two motions namely the Appellant's/Respondent's Motion dated the 13th February, 1990 and this Motion for hearing and determination.
5. For leave to make reference to Exhibits B, C and D annexed to the affidavit accompanying the said Motion dated 13th February, 1990 and
6. For any such further order and/or other orders as it may seem fit and proper for the Court to make in the interest of justice."
Senator Anah, learned Senior Advocate, moved the motion for the appellant and placed emphasis on prayer No.2 which asks for extension of time within which to prepare the record of appeal. Learned counsel for the respondent did not oppose the prayer. It is to be observed that prayer No.1 has been overtaken by events following our refusal to grant the respondent's application. Similarly, prayer No.4 has also been superseded. At the date the appellants' application was filed, (that is the 14th day of March, 1990) the appellant was not late in filing the record of appeal, for the time to do so was to expire on the 20th day of March, 1990. The application, like that made by the respondent/applicant, is premature. However, as at the date of hearing the application, namely the 18th day of June, 1990, no record of appeal had been filed, I am of the opinion that the application for extension of time to file the record should be granted in order to avoid unnecessary delay in bringing the appeal to fruition. Accordingly, the application for enlargement of time for the appellant to file the record of appeal is hereby granted. Time is enlarged by 14 days from today. There is no order as to costs as each party is to bear its costs.
S. KAWU, JSC.: I have had the advantage of reading in draft the Ruling of my learned brother, Uwais, JSC., which has just been delivered. I entirely agree with the Ruling and for the reasons given in the said Ruling, I too will refuse the respondent/applicant's application to dismiss the appeal for want of prosecution. I will grant the appellant's application for enlargement of time within which to file the record of appeal, and accordingly time is extended by 14 days from today. I make no order as to costs.
S.M.A. BELGORE,JSC.: This appeal is certainly a quasi-academic exercise even though based on strong point of law. The timeous application by respondent for enlargement has cured the blemish of technicality delaying justice. I agree with the conclusion of my learned brother, Uwais, JSC. and will also grant the application for extension of time. I also make no order as to costs.
A.G.O. AGBAJE,JSC.: I have had the opportunity of reading in draft the lead Ruling just delivered by my learned brother, Uwais, JSC. I agree with him and the reasons he gave that the application to dismiss the appellant's appeal for want of prosecution was misconceived at the time it was filed. This is so because at the time the application to dismiss the appeal for want of prosecution was filed, the appellant still had 7 days within which to take steps to effectively prosecute its appeal. So the application to dismiss for want of prosecution was misconceived and must be struck out.
I agree too with my learned brother, Uwais, JSC., that the application now brought by the appellant for an extension of time within which to prosecute its appeal has merit and should be granted.
I also abide by all the consequential orders in the lead Ruling of my learned brother, Uwais, JSC.
E.O.I. AKPATA, JSC.: I am in full agreement with the decisions reached by my learned brother, Uwais, JSC., in respect of the two applications. As the application of the respondent was premature and therefore not competent, it is needless resolving the question whether or not the decision of the Court of Appeal was a decision affecting the revenue of the Government of Anambra State. In effect, whether or not Order 7 of the Supreme Court Rules, 1985, applies to the appellant's appeal does not call for a decision.
There is however, the application of the appellant for extension of time within which to prepare records of appeal pursuant to Order 7 of the Supreme Court Rules, 1985. The application is made subject to in the most unlikely event of the above objection (to the respondent's application) not being sustained. In essence, therefore, since the application of the respondent has been rejected, although not on the ground of the objection raised by the appellant, there is no valid contention that Order 7 applies to the appeal and that the appellant should have prepared and lodged with the Registrar of this Court the record of appeal within 14 days of filing of the notice of appeal.
My order therefore is that the appellant is at liberty to prepare and lodge with the Registrar of this Court the requisite number of records of appeal within 14 days from today, purely on the assumption that the appeal is governed by Order 7 Rules 6 and 7 of the Supreme Court Rules, 1985. In effect, the appellant will be doing so ex cautella abundanti. The application of the respondent is struck out. I also make no order as to costs
Senator N.N Anah, SAN, (with him, C.C. Eze -Awochikwa), for the Appellant
S.I. Chime for the Respondent.