IN THE SUPREME COURT OF NIGERIA
ON THURSDAY, THE 30TH DAY OF APRIL 1981
1. CHIEF IRO OGBU
2. NGELE NMALU (Dead)
3. AGWU KALU (Dead)
4 OTUWE AGWU (FOR THEMSELVES AND AS REPRESENTING THE PEOPLE OF ELUGHU NKPORA) ....................................... DEFENDANTS/APPELLANTS/APPLICANTS
1. CHIEF OGBURU URUM
2. CHIEF IFEGWU MBA ................................................ RESPONDENT
BEFORE: Sowemimo, Bello, Obaseki, Nnamani and Uwais, JJ.S.C.
The appellants failed to file their brief argument as required by Order 9, rule 3, of the Supreme Court Rules, 1977. On an application filed on their behalf, however, the appellants were granted an extension of time to enable them to file the brief. The brief was not filed within the time as extended or at any subsequent time. At the hearing of the appeal, neither the appellants nor their Counsel were present when the appeal was called. The learned Counsel for the respondents then made an application that the appeal be dismissed for want of prosecution pursuant to the provisions of Order 9, rule 7, of the Supreme Court Rules. The application was granted and the appeal was dismissed for want of prosecution. On a subsequent application for an order that the appeal be re-entered and for a further enlargement of time within which to file and serve the appellants' brief of argument, as required under Order 9, rule 3 (I), of the Supreme Court Rules-
(1) that the failure by the appellants/applicants to file a brief of argument had far reaching effects and there being a subsisting judgment against the appellants, the dismissal for want of prosecution in such a case under the present Rules in force amounts two an affirmation of the judgment of the Court below in respect of which the appeal was brought;
(2) that any Order of dismissal of an appeal for want of prosecution under Order 9, rule 7, of the Supreme Court Rules, 1977, amounts to a final judgment and that, consequently, the Court lacks inherent jurisdiction and it is unable and incompetent to entertain the application to direct that the appeal be re-entered.
Cases referred to:
(1) Obimonure v. Erinosho (1966) 1 All N.L.R. 250
(2) Ratnam v. Cumarasamy (1964) 3 All E.R. 933, at p. 935.
(3) Regina v. Medway (1976) 2 W.L.R. 528.
(4) R. v. Daniel (1977) 2 W.L.R. 394.
(5) Preston Banking Co. v. William Allsup & Sons (1895) 1 Ch. D. 143.
(6) Thynne v. Thynne (1955) 3 All E.R. 129, at 146.
(7) Ministry of Lagos Affairs, Mines and Power and Another v. Chief Akin-Olugbade & Ors. (1974) 11 S.C. 11.
(8) Owenugbemi Okorodudu and 2 Ors. v. John Anawe Omogbemi and 2 Ors. S.C. 33/1976 of 14/12/77.
(9) The Ampthill Peerage (1977) A.C. 547, at p. 594.
(10) Moore & Anor. v. Assignments Courier Ltd. (1977) 1 W.L.R. 638. at 642.
(11) Evans v. Batlam (1937) A.C. 473, at 480.
(12) Patrick J. Osoba v. The Queen, FSC. 141/1961.
(13) G.B.A. Akinyede v. The Appraiser (1971) 1 All N.L.R. 162, at 165.
(14) Doherty v. Doherty (1964) 1 All N.L.R. 299.
(15) Tunji Bowaje v. Moses Adediwura (1976) 6 S.C. 143, at 147.
(16) Ahmadu v. Salawu (1974) 1 All N.L.R. (Part II) 318, at 324.
(17) Sken Consult (Nigeria) Ltd. and Anor. v. Goldwin Secondy Ukey, S.C. 50/1980 of 16/1/81.
Statutes and Statutory Instruments referred to:
Supreme Court Act, 1960.
The Constitution of the Federal Republic of Nigeria, 1979.
Supreme Court Rules, 1977, Order 9, rule 7.
Mr Chike Ofodile, S.A.N. (Mr P.N. Onyeabor with him for the Applicants).
Chief Bayo Kehinde, S.A.N. (O.J. Idigbe, Esq., with him for the Respondents).
Sowemimo, J.S.C.: I have had the opportunity of reading the draft ruling of my brother Obaseki J.S.C. and I agree with his conclusions that the Court has no inherent jurisdiction to grant the application. According to the notice of motion the application was brought under Order 7, Rule 23 (2) and Order 9, Rule 3 (1). The first arm of the motion deals with an appeal that has been dismissed owing to the non appearance of the appellants. That was not what happened in this matter because the appeal was dismissed for want of due prosecution and in the reasons elaborated by my brother Obaseki, this Court had no jurisdiction inherent or otherwise to grant the application. Application is therefore refused with
N25 costs to the respondents.
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 foundered under the provisions of Order 9, rule 7. It seems to me that on the authority of Obimonure v. Erinosho (1966) 1 All NLR 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.
I agree accordingly that the application should be dismissed with
N25 costs to the Respondents.
Obaseki, J.S.C.: My Lords,
The applicants' counsel has moved this Court in terms of his motion on notice for an order. "(1) That this appeal be re-entered; and
(2) For the enlargement of time within which to file and serve the appellants' brief as required by Order IX, rule 3(1)."
The application is supported by affidavit evidence of 21 paragraphs and a further affidavit evidence of 4 paragraphs sworn by Otuwe Ugwu one of the applicants.
There is a counter-affidavit sworn by one Agwu Kalu Obos a member of the people of Amaeke, Abriba represented by the respondents.
It is common ground among the parties and their counsel that the appeal No. S.C. 18/1980 was listed for hearing before this Court on 24th day of November, 1980; that the appellants defaulted in filing their briefs as required by Order 9, rule 3 of the Supreme Court Rules 1977 within the extended time; and that on the application of respondents' counsel, Chief Bayo Kehinde, SAN., in court at the hearing, the appeal was dismissed for want of prosecution.
It is clear from the facts deposed in the affidavit that the default in filing the brief within the time prescribed by the Rules was as a result of Mr Chike Ofodile, SAN. appellants' counsel's ill-health. Mr Lardner, SAN., holding his brief, obtained an extension of time to file appellants' Brief. Mr Chike Ofodile, SAN., has also accepted responsibility for failure to instruct counsel to file the appellants' Brief of argument within the extended time. When it became apparent that he would be unable on the ground of ill-health to carry out the instructions of his client, what did the appellants do? He was away in London for treatment (i.e. 4000 miles away) at the material time. It was after Mr Lardner successfully argued the motion for extension of time to file appellants' brief that Mr Chike Ofodile returned from London but too ill to undertake the preparation and filing of the brief within the extended time. The appellants must be presumed to know that he would be unable to appear in court when the appeal came up for hearing.
Counsel for the appellants/applicants has invited us to exercise our powers either under Order 7, rule 23(2) or Order 7, rule 19(1) and (4) and as a last resort under Order 10 Supreme Court Rules 1977. The provisions of these rules read as follows:
Order 7, rule 23(2):
"When an appeal has been dismissed owing to non-appearance 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."
Order 7, rule 19(1):
"If 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 to be dismissed either with or without costs and shall cause the appellant and the respondent to be notified of the terms of its order."
"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 direction for good and sufficient cause order that such appeal be restored upon such terms as it may think fit."
"Non-compliance on the part of an appellant or a 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 the appellant or respondent as the case may be to remedy such non-compliance and thereupon the appeal shall proceed. The registrar shall For with notify the Appellant or the respondent as the case may be of any directions given by the court under this rule where the appellant of the respondent was not present at the time when such directions were given."
No case law was cited in support.
Learned Counsel for the respondents submitted that the applicants' case does not come within the cases covered by the rules relied upon by the applicants and that although the ill-health of counsel was a fact that could have weighed heavily on the court, the absence of any provision in the Supreme Court Rules or Supreme Court Act authorising such application as this makes it impossible for the court to exercise any jurisdiction to entertain the application.
I agree with learned Counsel for the respondents that the rules relied upon by the appellants' counsel do not confer the jurisdiction the court is called upon to exercise in this application. The applicants' appeal was not dismissed for non-appearance of the appellants to enable the applicants call for the exercise of the power under Order 7, rule 23(2). Likewise the applicants' appeal was not dismissed for failure to comply with the conditions of appeal to enable the applicants call for the exercise of the power under Order 7, rule 19(4). Finally, the list is not extant to enable the Court exercise the power under Order 10.
Under what rule can the court then act to order the appeal dismissed for want of prosecution to be re-entered? The procedural jurisdiction of this 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.
The main question therefore arises is whether it is competent for this Court to entertain the application.
This Court in dismissing the appeal for want of prosecution acted under the provision of Order 9, rule 7 Supreme Court Rules 1977 which reads:
"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." (Italic is mine).
The filing of briefs is an important innovation in our Rules of Court. It's dominance in appeal proceedings cannot be over-emphasised and an examination of Order 9, rule 6(1) and rule 6(5) will bring out its full force and effect. Order 9, rule 6(1) reads:
"Oral argument will be allowed at the hearing of the appeal to emphasize and clarify the written argument appearing in the briefs already filed in court." (Italic is mine).
Unless written briefs of arguments are filed, there can be nothing to emphasise and clarify in oral argument.
Where briefs have not been filed, Order 9, rule 6(5) makes it quite clear that "save with leave of the court, no oral argument will be heard on behalf of any party for whom no briefs have been filed."
Where briefs have been filed, the absence of the parties or their counsel does not attract any sanction of the court and the appeal will be treated as having been duly argued and will be considered as such for purpose of the judgment. See Order 9, rule 6(6).
The failure by the appellant to file a brief therefore had 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.
Under Order 7, rule 23(1), Supreme Court Rules 1977, the court is empowered to dismiss an appeal for non-appearance when it is called for hearing and the appellant fails to appear. In the event of such dismissal, the court may on (a proper application) being satisfied direct the appeal to be re-entered under Order 7, rule 23(2).
Before taking action under this Rule, the Court must have regard to the provisions or Order 7, rule 22 and Order 9, rule 6(6) to which that rule is made subject.
It appears from a consideration of the Rules that any order of dismissal under Order 9, rule 7 Supreme Court Rules amounts to a final judgment the finality of which is emphasised by Order 7, rule 30 which provides that:
"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."
I am aware that since the order of dismissal was delivered by the court, the judgment has been drawn up, signed and sealed.
Even if it were not drawn up, signed and sealed, the provision of Order 7, rule 30 deprives this Court of any jurisdiction to review the judgment of dismissal for want of prosecution. The inherent jurisdiction of this Court under section 6 (6)(a) of the Constitution cannot be invoked to save the situation. This Court is therefore unable and incompetent to entertain this application to direct that the appeal to be re-entered. Sympathy cannot override the clear provisions of our Rules and it would be in the interest of all if parties and their counsel endeavour to keep to the times set out in the Rules for the doing of any act or taking of any step. Counsel for the appellants has stretched himself to accept responsibility for the situation the appellants found themselves in.
It is on record that the Court granted accommodation to the appellants when the poor state of counsel's health was brought to the notice of this Court and time to file their brief extended. When at the hearing counsel's health had not revived sufficiently to enable him take on the onerous task of preparing and filing the Briefs of argument and attend court, why did the appellants fail to attend and explain to the Court? Counsel's acceptance of responsibility cannot and did not explain the appellants' absence from the Court and failure to keep the Court properly informed of counsel's difficulties to enable the Court give him further accommodation. At that stage, in my view, counsel has no blame and it was not the effect of his omission that was visited on the appellants.
Finally, 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 requires 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 which would defeat the purpose of the rules which is to provide a time table for the conduct of litigations." (See Ratnam v. Cumarasamy (1964) 3 All ER 933 at 935 per Lord Guest).
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.
In Regina v. Madway (1976) 2 WLR 528, where the Court of Appeal in England consisting of five judges (Lord Widgery, CJ., Stephenson LJ., O'Connor Lawson and Jupp JJ.) dealt with an application for leave to withdraw notice of abandonment of leave to appeal, the application was dismissed for lack of jurisdiction to grant such leave. Lawson, J., reading the judgment of the court in which he reviewed all the previous authorities, said at page 545:
"The answer to the first question which we have to decide depends upon whether alongside the jurisdiction which undoubtedly as all authorities show, exists to give leave to withdraw an abandonment where it is shown that circumstances are present which enable the court to say that the abandonment should be treated as a nullity, there co-exists an inherent jurisdiction, in other special circumstances, enabling the court to give such leave. We are satisfied and hold that there is no such jurisdiction. In our judgment, the kernel of what has been described as the "nullity test" is that the court is satisfied that the abandonment was not the result of a deliberate and informed decision; in other words, that the mind of the applicant did not go with his act of abandonment. In the nature of things, it is impossible to foresee when and how such a state of affairs may come about, therefore it would be quite wrong to make a list under such heading as mistake, fraud, wrong advice, misapprehension and such like, which purports to be exhaustive of the types of case where this jurisdiction is exercised. Such headings can only be regarded as guidelines, the presence of which may justify its exercise. As we have said at the outset, the jurisdiction of this court and of its predecessor is based upon statute and we have been referred to and found no authority to support the existence of a parallel inherent jurisdiction. Indeed the authorities to which we have been referred with the possible exception of Lord Reading CJ's observation in Rex v. Pitman (1916) 12 CR App R 14, support only the proposition that the inherent jurisdiction to regulate proceedings before the court can come into operation where in cases of statutory jurisdiction there is a lis extant before the court upon which that inherent jurisdiction can operate. It follows that we hold that Reg. v. Wilkinson (unreported) May 20, 1975 and all such other cases as may be cited in support of the existence of such parallel inherent jurisdiction were wrongly decided." (Italic is mine)
It is to be observed that the English Court of Appeal Rules 1968 deal with abandonment in Rule 10. Sub rule 4 of the said rule 10 stipulates:
"where an appeal or an application for a leave to appeal is abandoned, the appeal or application shall be treated as having been dismissed or refused by the Court."
There is therefore the same consequence for abandonment of appeal in England as for failure of appellant to file brief within the time fixed by the rules or extended by this Court in Nigeria.
As the jurisdiction of this Court is based upon statute, (the 1979 Constitution, The Supreme Court Act 1960 and Supreme Court Rules 1977) the inherent jurisdiction to regulate proceedings before this Court arises only where there is a lis extant before this Court upon which the inherent jurisdiction can operate. Resort cannot therefore, in this application, be made to section 6(6)(a) of the Constitution, which provides that:
"The judicial powers vested in accordance with the foregoing provisions of this section.
(a) shall extend, notwithstanding anything to the contrary in this Constitution, to all inherent powers and sanctions of a court of law,"
as authority for the exercise of jurisdiction to set aside an order of dismissal of an appeal for want of prosecution (failure to file brief of argument).
This Court, in my view, has no inherent jurisdiction to grant the application.
I have, in the course of writing this ruling, had cause to examine a few more authorities on the question posed in this application. These are:
(1) R v. Daniel (1977) 2 WLR 394 (1977) 1 All ER 620 CA
(2) Preston Banking Co. v. William Allsup & Sons (1895) 1 Ch D at 143
(3) Thynne v. Thynne (1955) 3 All ER 129 at 146
(4) Ministry of Lagos Affairs, Mines & Power and Another v. Chief Akin-Olugbade & Ors. (1974) 11 S.C. 11
(5) Owenugbemi Okorodudu & Ors. v. John Anewe Omogbemi & 2 Ors. S.C.33/1976 of 14/12/77
(6) The Ampthill Peerage (1977) AC 547 at 594
(7) Moore & Anor. v. Assignments Couriers Ltd. (1977) 1 WLR 638 at 642
(8) Evans v. Batlam (1937) AC 473 at 480.
The dicta and ratio decidendi in all the cases have not supported a view that in such application as is before this Court the Court in the absence of any provision in the Rules of the Supreme Court empowering it to make such orders can grant the order in exercise of its inherent jurisdiction. The contrary view appears to me to be the law. The U.S. Supreme Court Rule Order 14 (3) has no equivalent in our Rules. That Rule gives the Supreme Court of U.S. power to re-enter the appeal dismissed for want of prosecution.
In conclusion, I would adopt with approval, what this Court said in the case of the Ministry of Lagos Affairs, Mines and Power and Another v. Chief O.B. Akin-Olugbade and Another (1947) 11 sc. 11 at page 19:
"Since the 1963 Constitution abolished (see s. 120) any further appeal from the Supreme Court which is now the final court of appeal, there is no reason why we should continue to regard it as the equivalent of the English Court of Appeal. Its relative equivalent is either the House of Lords as the final court of appeal for British courts or her Majesty's Committee of the Privy Council as the final court of appeal for colonial courts. It is, therefore, necessary to construe our O. 7,r. 29 in the light of this changed constitutional situation, so as to achieve a result which is in consonance with the law and with commonsense. For, were we to accept the submission of counsel for the applicants that we can exercise jurisdiction to entertain these motions to look into complaints about the law or the fact in the judgment of this court and every disaffected litigant could bring further appeals, as it were, ad infinitum. That is a situation that must not be permitted.
In this connection, we would draw attention to the unreported case of Patrick J Osoba v. The Queen F.S.C. 141/1961 decided by this Court on May 19, 1961 which, though a criminal case, was probably the first of its kind to be brought asking the Federal Supreme Court to review an earlier decision. In refusing to entertain the motion, the Federal Supreme Court said, inter alia:
"Mr Khamiatta has suggested that as a result of section 110 of the Constitution of the Federation the Court has an inherent power to prevent a miscarriage of justice by making whatever order justice may require even at this stage, but the Court is not entrusted by the Constitution with any general supervisory functions, and in the exercise of its appellate jurisdiction it is bound by the ordinary restrictions on the setting aside of a judgment once pronounced and perfected. We will decide what powers the Court possesses in relation to a judgment obtained by fraud, such as we said to have occurred in Flower v. Lloyd, when the case arises.
This is not such a case, and no circumstances are alleged which would justify the Court either in treating its previous decision as a nullity or in assuming power to set it aside."
My Lords, the application is therefore incompetent and I hereby dismiss it with costs to the respondents fixed at
N25. (Twenty-five Naira).
Nnamani, J.S.C.: My Lords, I had read before now in draft the ruling just delivered by my learned brother, my Lord Obaseki, J.S.C., and I agreed with him that this Court is incompetent to entertain the applicants' application.
It is only the obvious sympathy which the circumstances surrounding this application have evoked, and the seemingly helpless situation which has arisen in the face of the provisions of our law that move me to add a few remarks.
Learned Counsel for the applicants, Mr Chike Offodile, S.A.N., accepted full responsibility for the delay in filing the applicants' brief. This is as it should be. The reason for this delay was of course counsel's ill-health and the almost mandatory period of convalescence imposed on him by his Doctors. It has always been the attitude of this Court not to punish applicants for the inadvertence, or negligence, or mistake of counsel or, as in this case, the inability of counsel to carry out his duties. The Court normally leans over to accommodate such applicants in the interest of justice. (See: G.B.A. Akinyede v. The Appraiser (1971) 1 All Nigerian Law Reports 162 at p. 165; Doherty v. Doherty (1964) 1 All Nigerian Law Reports 299; Tunji Bowaje v. Moses Adediwura (1976) 6 S.C. 143 at 147; Alhmadu v. Salawu (1974) 1 All Algerian Law Reports (Part II) 318 at 324. That was certainly one of the reasons for the grant by this Court of an extended period of 1 month to enable the applicants file their brief of argument. I am almost certain that in accord with this attitude if an application for a further extension of time within which to file the brief of argument been brought to this Court before the 24th November, 1980 it would have received sympathetic consideration. But the responsibility for the predicament now facing the applicants cannot be placed at the door of Mr Offodile alone. The applicants share a substantial part of it. They knew that their counsel was still in relatively poor health even after his return from London and yet they made no alternative arrangements to ensure that the order of this Court was complied with. Worse still they failed to appear in this Court on the fateful 24th November, 1980, when the order of dismissal of their appeal was made.
The order of dismissal of the appellant's appeal pursuant to Order 9, rule 7 of the Supreme Court Rules, 1977, being a final judgment, this Court cannot review it or set it aside except on any of the grounds set out in Order 7, rule 30 to which reference has been made in the leading ruling. This Court would also have inherent jurisdiction to set it aside if it could be shown that it was obtained by fraud. If there was a fundamental defect which goes to the issue of jurisdiction and competence of this Court on the day it made its order, it would also set aside its judgment. (See the decision of this Court in SC. 50/1980; Sken Consult (Nigeria) Ltd. & Anor. v. Godwin Sekondy Ukey delivered on 16-1-81). In the instant application none of these matters arise having regard to the circumstances of this case.
It seems to me too that there appears to be no rule of law or procedure on which this Court can base its jurisdiction to accommodate the applicants. Order 7, rule 23(2) and Order 7, rule 19 (4) are clearly inapplicable. The combined effect of Order 7, rule 30 and Order 9, rule 7 in this case is that there is no appeal now before this Court. Section 22 of the Supreme Court Act (Act No. 12 of 1960) which deals with the general powers of the Supreme Court cannot avail the applicants as that section applies only when there is an appeal extant. Learned Counsel for the applicant also relied on Order 10 of the Supreme Court Rules. This order deals with waiver of non-compliance with the rules in the interest of justice. I am of the view that the order is inapplicable in the instant case in which an order has already been made dismissing the applicant's appeal. It would have availed the applicants if the appeal was still extant and it is called in aid because there is some rule of practice which the applicants have not complied with but which they desire the Court to waive so that prosecution of the appeal can proceed.
My learned brother, Obaseki J.S.C. has in the leading ruling drawn attention to the importance which attaches to the filing of briefs having regard to the provisions of order 9 of the Supreme Court Rules, 1977. I agree with him. Nevertheless, I am of the view that in the wider interests of justice, and in order to ensure that appeals are as much as possible disposed of on their merits, it may be desirable to make analogous provisions to Order 7, rule 23 (2), Order 7, rule 19 (4) and Order 7, rule 25 of the Supreme Court Rules, 1977 so as to reduce the rigour of order 9, rule 7. If such provisions were available, the application before this Court carrying with it as it does as an annexure the brief of argument of the applicants/appellants (showing a determination of their part to prosecute their appeal) would, I assume, have had a fair chance of success.
I see no alternative open to me but to dismiss this application, and I hereby dismiss it with
N25 costs to Respondents.
Uwais, J.S.C.: I have had the privilege of reading in draft the ruling of my learned brother, Obaseki, J.S.C. and I agree with the reasons which he has given for dismissing the application. The applicants were defendants in a land action brought against them in the High Court, Umuahia by the respondents. Judgment was given against the defendants and being dissatisfied with the decision they appealed to the Federal Court of Appeal which dismissed the appeal.
They next appealed to this Court. The appeal was set for hearing on 25th August, 1980. By the hearing date the applicants had defaulted to file their brief in accordance with Order 9, rule 3(1) of the Supreme Court Rules, 1977 and there were before the Court a motion filed by the applicants for extension of time within which to file brief as well as a motion by the respondents for the appeal to be dismissed for want of prosecution in view of the applicants' default to file brief. The applicants' motion was first considered and it was granted. They were allowed and extension of 30 days to file the brief. Consequent to the grant of the motion the respondents withdrew their application to dismiss the appeal for want of prosecution.
It was Mr H.A. Lardner, S.A.N. holding the brief of Mr C Ofodile, S.A.N that moved the applicants' motion for enlargement of time as the latter was away to Britain for medical treatment. A new date for the hearing the applicants' appeal was fixed for 24th November, 1980. When the appeal came up for hearing on the said date there was again no brief filed by the applicants. What is more the applicants were absent in court and they were not represented by any counsel. The respondents therefore applied through their counsel that the appeal be dismissed for want of prosecution as provided by Order , rule 7 of the Supreme Court Rules, 1977. This time the appeal was accordingly dismissed.
Mr Ofodile, who by 29th December, 1980 had recovered from his illness and had returned to Nigeria filed an application on that day asking firstly, for the appeal to be re-entered and secondly for an enlargement of time within which to file and serve the appellants' brief as laid down by Order 9, rule 3(1). The affidavit in support of the application shows that the deponent-Otuwa Agwu (one of the appellants and applicants) was in Court on 25th August, 1980 when the enlargement of time was granted to the appellants. According to his affidavit he went back to Onitsha after the application was granted and informed the clerks of Mr Ofodile of the extension granted. He was informed by one of the clerks that Mr Ofodile was not expected to return to Nigeria before the end of 30th September, 1980 by which date the enlargement of time would have expired. All the same the applicants took no further action and were of course absent in court on 24th November, 1980 when the appeal was to be heard. Mr Ofodile in his submissions before us tried to put the blame on himself for the omissions of the applicants. I do not see how it can be claimed that he was responsible for the failure to file the brief since he was not in the country when the order was made and he did not return until the time given had expired. What is baffling is why did the appellants not ask Mr Lardner or any counsel for that matter to file the brief since they knew in good time that Mr Ofodile would not be available to do so. There is no explanation proffered and it therefore seems to me that if there was anyone to blame it is the appellants for not showing diligence in the prosecution of their appeal.
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 inapplicable 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 reinstatement of appeal once it is dismissed for want of prosecution.
The instances when 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 timorously, 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 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 funtus officio and has no power under Order 10 to re-list the appeal.
I accordingly agree that the application be refused. I shall dismiss it with
N25 costs to the respondents.