ONUORA MBA v. UDEOZOR CHIGHO MBA
April 11, 2025MR. FELIX OLUSEGUN OROGUN & ANOR V FIDELITY BANK PLC
April 11, 2025Legalpedia Citation: (2018) Legalpedia (SC) 16111
In the Supreme Court of Nigeria
HOLDEN AT ABUJA
Thu Apr 12, 2018
Suit Number: SC. 708/2014
CORAM
PARTIES
CLEMENT NWAOHA APPELLANTS
COMMISSIONER OF POLICE RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
ACTION, APPEAL, COURT, CRIMINAL LAW AND PROCEDURE, PRACTICE AND PROCEDURE
SUMMARY OF FACTS
The Appellant had been charged along with nine (9) others with offences of conduct likely to cause breach of the peace and wilful damage at the Chief Magistrate Court of Rivers State holden at Port-Harcourt. Seven (7) out of the ten persons that stood trial were acquitted of the charge and were accordingly discharged. The Appellant and two others were however found guilty as charged and were convicted and sentenced to six (6) months imprisonment with hard labour (IMHL) with an option of fine of N250.00 for counts 2, 3, 4 and 5 of the charge. The three were cautioned and discharged for counts 6th, 7th, 8th and 9th of the charge by the trial Magistrate. Dissatisfied with the decision of the said Chief Magistrate court, the Appellant and the other two convicts appealed to the High Court of Rivers State where their appeal was found incompetent and same was dismissed. Further aggrieved, with the decision of the High Court, an appeal was made to the Court of Appeal. The Court of Appeal also found the appeal to be incompetent and unmeritorious and also dismissed it. The Appellant not relenting has appealed to the Supreme Court.
HELD
Appeal Allowed In Part
ISSUES
Whether the court below was right to have dismissed the appellant’s appeal for want of diligent prosecution when the said appeal was not heard on the merits.”
RATIONES DECIDENDI
DISMISSAL OF ACTION- EFFECT OF A DISMISSAL OF AN ACTION
“Generally, the law is trite that when an action is dismissed, unless the Rule of Court permits, such action cannot be re-opened. The dismissal is ordinarily conclusive of the matter or issues decided therein and remain so until the judgment is set aside on appeal. See; Nigeria Airways Ltd Vs. F. A. lapite (1990) NWLR (Pt.163) 392; (1990) 11-12 SC 60; (1990) LPELR -1998.”
DISMISSAL OF AN APPEAL- STATUS OF AN APPEAL DISMISSED BY A COURT OF APPEAL
“However, when an appeal is dismissed by a court of appeal, pursuant to its Rules, that decision is a final decision and the court becomes functus officio and cannot relist or re-enter the appeal on its cause list. See; First Bank of Nigeria Plc Vs. T. S. A Industries Ltd (2010) 15 NWLR (Pt.1216) 247. In the same vein, by the same Rules of the Court of Appeal, an appeal may be dismissed for want of prosecution where the appellant fails to file his brief of argument within time and extension of time was not granted so to do. See; Akanke Olowu & Ors Vs. Amudatu Apolore & Anor (1993) 5 NWLR (Pt.293) 255-384; (1993) 6 SCNJ 1; (1993) LPELR 2603; Shehu Babayope Vs. Alhaii Ndasadu Bida (1998) LPELR – 699.”
DISMISSAL OF AN APPEAL- GROUNDS FOR DISMISSING AN APPEAL
“In Philip Obiora Vs. Paul Osele ((12989) 1 NWLR (Pt.97) 276, (1989) 1SCNJ 213, this court, per Oputa, JSC stated as follows:
“…….. The aim of the whole exercise is to do justice between the parties by hearing their appeals on the merits inspite of any mistake made by counsel in the preparation and prosecution of the appeals…. The mere fact that a brief filed by an appellant did not comply with the rules made under Order 6 of the Court of Appeal Rules does not mean that the appellant has filed no brief. The court cannot in these circumstances deem a brief filed as no brief.”
DISMISSAL OF AN APPEAL – WHETHER AN APPEAL CAN BE DISMISSED ON GROUNDS OF INELEGANT BRIEF
“In Chief Thomas Ekpemupolo & Ors Vs. Godwin Edremoda & Ors (2009) 4 SCM 63; (2009) 8 NWLR (Pt.1142) 166; (2009) LPELR 1089, on whether an appeal can be dismissed on ground of inelegant brief, this court, per Ogbuagu, JSC opined as follows:
“It has been stated and restated by the two appellate courts and held by them in a line of decided authorities, that an inelegant or bad or defective brief need not be struck out (how much more dismissing an appeal on that ground). That the court should make the best that it can out of it”
See; also Chinweze & 2 Ors Vs Mrs. Veronica Masi & Anor (1989) 1 NWLR (Pt.97) 245; (1989) SCNJ148; Gbafe Vs. Prince Gbafe & 3 Ors (1996) 6 NWLR (Pt.455) 417; (1996) 6 SCNJ 167 at 178.”
INCOMPETENT APPEAL- STEP A COURT SHOULD TAKE WHEN AN APPEAL IS INCOMPETENT
“Ordinarily, when an application or an appeal, as the case may be, is found to be incompetent for any reason, it cannot be dismissed, not having proceeded to hearing on merits. At best, it will be struck out. Otherwise, the order of dismissal will be taken as a striking out order liable to be set aside, to allow for relisting or fresh application on same subject. This is the justice of the matter and fairness to the parties concerned.”
BRIEF OF ARGUMENT – WHETHER AN INELEGANT BRIEF OF ARGUMENT SHOULD BE CONSIDERED BY AN APPELLATE COURT
“This court has in a number of decided cases held that a brief of argument, even though inelegant and faulty is still a brief, and argument built on it, will still be taken into consideration in the appeal in order to do substantial justice to the parties. See Akpan v The State (1992)6 NWLR (Pt.248)439, Jeric (Nig.) Ltd v UBN PLC (2000) 4 NWLR (Pt.691) 447, Fasanya v Adekoya (2000) 15 NWLR (Pt.689) 122”.
BRIEF OF ARGUMENT – DUTY OF A COURT WHEN A BRIEF OF ARGUMENT IS INELEGANTLY DRAFTED
“A brief cannot be deemed to be unmeritorious if the merits of the appeal based on the arguments advanced are not considered by the court. The best the court can do in the circumstance is to strike out the brief and allow the party affected to file a more coherent brief based on the notice of appeal filed. If a brief is inelegantly drafted or defective, the court should try to make the best out of it to decide the appeal on the merits instead of striking out the appeal. See: Philip Obiora v. Paul Osele (1989) 1 NWLR (Pt.97) 276: Chief Thomas Ekpemupolo & Ors v. Gowin Edremoda & Ors (2009) 8 NWLR (Pt. 1142) 166: Oloruntoba-Oju v. Abdul-Raheem (2009) 13 NWLR (Pt.1157) 83”.
CASES CITED
STATUTES REFERRED TO
Court of Appeal Rules|
