CORAM

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Onyekachi Aja Otisi JCA

James Gambo Abundaga JCA

James Gambo Abundaga JSC

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PARTIES

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DANA STEEL LIMITED (IN RECEIVERSHIP)

APPELLANTS 

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1. CONFIDENCE STEEL COMPANY LIMITED

2. CHIEF ANTHONY OBI

RESPONDENTS 

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AREA(S) OF LAW

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APPEAL, CONSTITUTIONAL LAW, EVIDENCE, JUDGMENT, PRACTICE AND PROCEDURE

 

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SUMMARY OF FACTS

The Appellant/Applicant by his motion on notice dated 3rd day of December, 2021, filed on 6th day of December 2021 is praying this Honourable Court for the following reliefs:

1. AN ORDER of this Honourable Court relisting this appeal which was dismissed on 25th November 2021 for failure to file an Appellant’s Brief of Argument.

2. AND SUCH further or other order(s) as the Honourable Court may deem fit to make in the circumstances.

The Application is predicated on the following grounds:

(i) Counsel personally takes full responsibility for the events leading to the dismissal of this appeal on 25th November, 2021.

(ii) The Appellant’s Brief of Argument was already prepared and sent to Counsel to file ahead of Court’s sitting of 25th November 2021 as well as for Counsel to appear in the matter.

(iii) The Counsel seized with the responsibility of filling the already prepared Brief of Argument failed to do so without informing the Appellant or any other Counsel in the office.

(iv) The Counsel only informed the chambers of Uchechukwu Val Obi SAN (Alliance Law Firm), Solicitors handling this appeal on 26th November, 2021 that he was unable to file the Appellant’s Brief of Argument on 24th November, 2021 with an application for enlargement of time and also failed to appear in Court on 25th November, 2021 because he was so traumatized by the news of his father’s deteriorating ill-health and this affected his mental state.

(v) Due to his unstable mental state, he rushed to Sokoto to see his sick father on 24th November, 2021 when he was supposed to file the Appellant’s Brief of Argument, without informing anyone or making alternative arrangement to have the Brief filed and also appeared in Court on 25th November, 2021 on behalf of the Appellant.

(vi) In the course of his travelling and his mental instability, he lost his GSM Phone and was unable to reach out to anyone until the morning of 26th November, 2021.

(vii) The Court dismissed this appeal on 25th November 2021 for lack of diligent prosecution.

(viii) In the circumstance, an order of this Honourable Court is required to relist this appeal.

(ix) The Appellant is still very desirous of prosecuting this appeal.

(x) The Sin of Counsel ought not to be visited on the Appellant.

 

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HELD

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Appeal dismissed

 

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ISSUES

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Whether the present Court is vested with jurisdiction to grant this application when it has become functus officio after delivering an order of dismissal of the appeal on the 25th day of November, 2021?

 

 

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RATIONES DECIDENDI

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DISMISSAL – WHETHER A COURT CAN SET ASIDE ITS ORDER OF DISMISSAL

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On the import of a dismissal as the one set out in EXHIBIT 1 pursuant to the provisions of Order 19 Rule 10 (2) of the Court of Appeal Rules, 2021, dismissing the Applicant’s appeal, and whether same can be relisted as the Applicant sought to do by this application, the authority on this is the case of Dekit Quarries Ltd & Ors v. AMCON & Anor (2018) LPELR 43736 (CA) at Pp 14 – 26 Paras D -A) Where Per IYIZOBA, JCA stated:

“Paragraphs 8 (3) and (4) of the of the Court of Appeal (FAST TRACK) Directions provides as follows: (3) The appellant must file and serve its brief within 14 days from the transmission of the record of appeal. (4) On default of the filling of the Appellants brief within time, the Court may dismiss the appeal for want of diligent prosecution.” There are similar provisions in the Court of Appeal Rules 2016. Order 19 Rules 10 (1) and (2) provide: (1) “Where an Appellant fails to file his brief within the time provided for in Rule 2 of this Order, 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.. (2) Where the Appellant fails to file his brief within the time provided for in Rule 2 of this Order, or within the time as extended by the Court, the Court may suo motu dismiss the appeal for want of Prosecution.” Provisions similar to the above have received statutory interpretations in many judgments of this Court and the Apex Court especially as it concerns the power of this Court to restore to the cause list or relist an appeal dismissed for failure to file brief of argument. The locus classicus on this issue is the case of OLOWU V ABOLORE (1993) 5 NWLR 225 or (1993) LPELR-2603- (SC) where Karibi Whyte dealt with the matter exhaustively 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 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… This Court has decided several principles in Chukwuka v. Ezulike (1986) 9 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 re-entering an appeal dismissed under Order 8 Rule 16 of the Supreme Court Rules for want of prosecution. Ogbu v. Urum (1981) 4 SC 1; Yonwuren v. Modern Signs (Nig) Ltd (1985) 2 SC. 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 to re-enter the appeal. An appeal dismissed on the ground of the failure to file Appellant’s brief of argument is final. The appeal so dismissed cannot be revived.” In GOVERNOR OF ZAMFARA STATE & ORS V. ALHAJI SULEIMAN MOD’D GYALANGE & ORS (2012) LPELR-9715 (SC), the SC held: “A dismissal of appeal pursuant to Order 17 Rule 10 of the Court of Appeal Rules disposes of the appeal to finality. It cannot be re-listed. See Kraus Thompson Org. v. NIPSS (2004) 17 NWLR (Pt. 901) 44 SC. Note that this Court decided the above case under Order 6 Rule 10 of the Court of Appeal Rules 1981 which is in pari material with Order 17 Rule 10 of the Court of Appeal Rules 2002 under which the appeal herein sought to be re-listed was dismissed. Having dismissed the appeal, the lower Court became functus officio and is not competent to review its order dismissing the appeal. See Onwuchekwa v CCB Nig. Ltd (1999) 5 NWLR (PT. 603) 409 Wherein it was held that the Court of Appeal, having entered a final judgment became functus officio. In my view, an order dismissing an appeal under Order 17 Rule 10 (Supra) is no less final a judgment than one dismissing an appeal on the merit. An Appellant aggrieved in the circumstances can appeal to the Supreme Court, rather than ask the lower Court to re-list the appeal.” Contrary to the contention of learned silk for the Applicants, there are no two schools of thought on this issue. The authorities are consistent that this Court has no jurisdiction to relist an appeal dismissed for failure of the Appellant to file his brief of argument, the Supreme Court by a majority of 6 to 1 held that it has no jurisdiction to set aside the dismissal or to restore the appeal to the cause list. The Court held that the jurisdiction to do so is restricted to cases where the judgment or order is a nullity or where the Court acted under a mistake of fact such as where the brief had in fact been filed within time. Kutigi JSC’s dissenting judgment was based on his reservation that the Court raised the issue suo motu in chambers and without notice to the parties. He had no problem with the usual cases where the dismissal was in open Court after hearing notices had been issued. The point however is that Court do not make laws. They merely interpret law. It is not the function of Courts when construing statutes to supply omissions or fill gaps in the law. Paragraphs 8 (3) and (4) of the Court of Appeal (FAST TRACK) Directions 2014 are very precise, clear and unambiguous. The Appellant must file and serve its brief within 14 days from the transmission of the record of appeal; and on default of filing of the Appellants brief within time; the Court may dismiss the appeal for want of diligent prosecution.” Learned senior advocate had argued that the use of the word “may” suggest that the Court has discretion in the matter. That is absolutely correct but the discretion arises at the point when the Court is deciding whether or not to dismiss the appeal for failure to file the appellant’s brief of argument. Once the discretion is exercised against the Appellant and the appeal is dismissed, that is the end of the road for the Appellant as far as this Court is concerned…” – Per M. S. Hassan, JCA

 

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STATUTES – CONDUCT OF COURTS, COUNSELS, AND PARTIES IN INTERPRETING STATUTES

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On the import of a dismissal as the one set out in EXHIBIT 1 pursuant to the provisions of Order 19 Rule 10 (2) of the Court of Appeal Rules, 2021, dismissing the Applicant’s appeal, and whether same can be relisted as the Applicant sought to do by this application, the authority on this is the case of Dekit Quarries Ltd & Ors v. AMCON & Anor (2018) LPELR 43736 (CA) at Pp 14 – 26 Paras D -A) Where Per IYIZOBA, JCA stated:

“…A communal reading of the Court of Appeal (FAST TRACK) Directions 2014 and indeed the Court of Appeal Rules 2016 will reveal that the draftsmen intentionally left these provisions of dismissal for failure to file briefs as is in order to encourage litigants to comply with these time frames. That is why there is no provision for relisting of the appeal. Learned senior Advocate admitted as much. If they had wanted a different outcome, they would have used the word “strike out” instead of “dismiss” or specifically made provision for relisting after dismissal. In CHIME & ANOR V. UDE & ORS (Supra) ONU JSC observed: “It is a cardinal rule of construction that in seeking to interpret a particular Section of a statute or a subsidiary legislation, one does not take the Section in isolation, but one should approach the question of interpretation on the footing that the Section is part of a greater whole. See James Orubu v. National Electoral Commission (1988) 5 NWLR (Pt. 94) 323″ Mr. Badejo SAN being fully aware of the law as stated above tried to fall back on the provision in Order 6 Rule 12 (or 11) of the Court of Appeal Rules 2016 which provides that “an application to set aside any judgment or ruling, shall not be brought unless it is filed within fourteen days from the date of delivery of such judgment or ruling or such longer period as the Court may allow for good cause.” Learned silk described the provision as a profound and far-reaching innovation which allows very clearly an application to set aside the Ruling of this Court dated 29th September, 2017. With respect I disagree with Mr. Badejo. The provision has always been there in other Rules. All that happened was that it limited the time for filling the application to 14 days instead of “a reasonable time” as in earlier Rules. The provision cannot be construed to cover powers to set aside any judgment or ruling whatsoever. The Judgment or ruling referred to must be those in respect of which the Court has jurisdiction to set aside such as judgments that are nullities. I am completely at a loss to see how this general provision could have affected the specific provision in Paragraph 8 (4) of the Court of Appeal (FAST TRACK) Directions 2014 or Order 19 Rule 10 (1) and (2) of the Court of Appeal Rules 2016. Mr. Adeniyi Uthman, counsel to the 1st Respondent was right in his submission that when there is a general law and a specific law on an issue, the general law must give way to the specific law. As pointed out by Kalgo JSC in KRAUS THOMPSON ORG. VS N.I.P.S.S. (SUPRA) in law any specific provision excludes the general one. The provisions of Paragraph 8 (4) of the Court of Appeal (FAST TRACK) Directions 2014 or Order 19 Rule 10 (1) and (2) of the Court of Appeal Rules 2016 are clear, precise and unambiguous. TOBI JSC observed in KRAUS THOMPSON ORG. V. NIPSS that: “Where the provision of a Statute or Rule of Court is clear, the duty of the Court is to interpret the clear provision by giving the plain wordings their ordinary interpretation without more. It is not the function of a Court of law to sympathize with a party in the interpretation of a Statute merely because the language of the Statute is harsh or will cause hardship. That is not the function of the Court. That is rather the function of the legislature.” Mr. Badejo in his response to 2nd Respondent’s written address talked about the harshness of the provision and cited a number of cases where such sentiments were expressed by the Supreme Court and suggested that these sentiments laid the foundation for the introduction of Order 6 Rule 12 of the Court of Appeal Rules 2016. As I said earlier Order 6 Rule 12 has no bearing whatever on the rules in question. The provisions for dismissal for failure to file briefs of argument were deliberately with full knowledge and understanding of the consequences inserted in all the previous Court of Appeal Rules and the 2016 Rules. In spite of the recommendation of Uwais ON in KRUS THOMPSON ORG. V. NIPSS to the Honourable President of the Court of Appeal that Order 6 (10) be amended to have the appeal struck out instead of dismissal, nothing has changed. The provisions still retain dismissal as the consequence of failure to file the Appellant’s brief. The 2016 Rules even went further to stamp their approval and confirm the stand that such dismissals are final and subject only to appeals to a higher Court. Under Order 8 Rule 20 of the Court of Appeal Rules 2011, an appellant whose appeal has been dismissed for failure to compile records may apply by notice of motion that the appeal be restored, and the Court may at its discretion for good and sufficient cause order that such appeal be restored upon such terms as it deems fit. Order 8 Rule 20 was completely omitted in the 2016 Rules. This has obliterated any doubt about any change in the law. The law remains the same and the noose has further been tightened around necks of defaulters. The provisions are clear and unambiguous. The Courts must interpret the law as is. The law remains the same that an appeal dismissed by this Court as a result of failure of the Appellant to file his brief of Argument within time and from the 2016 Rules to compile records is a final judgment and cannot be revisited by the same Court. In ASALU & 2 ORS V. FATAI SULE DAKAN (2006) ALL FWLR (PT. 325) 90 at 101 B-H the Apex Court held that: “An appeal which is dismissed on the grounds that the Appellant failed to file his brief of argument within the time limited for so doing is final and the appeal so dismissed cannot be revived. The Court which dismissed it becomes functus officio on that matter. In such a case, the Court of Appeal, has no inherent jurisdiction to set aside an order of dismissal made pursuant to Order 6 Rule 10 of the Court of Appeal Rules….” At 102 D-E “Sympathy cannot override the clear provisions of the Rules of Court and it is in the interest of parties and their counsel to endeavor always to comply with the prescribed times set out in the rules for doing of any act or taking any step.” Having come to the conclusion that this Court has no jurisdiction to entertain this application, it is pointless considering the second issue i.e. whether the applicants have disclosed sufficient reasons and shown good cause entitling them to an order setting aside the Ruling dated 29th September, 2017. All the reasons given and the averments in the various affidavits are matters that should have been brought to the attention of this Court on 19th September, 2017 when the Appeal came up for hearing and it was discovered that the Appellant’s brief had not been filed. That is when this Court could have exercised its discretion to extend time to enable the Applicants file their brief. But the Applicants were at that time more interested in moving their application for injunction; totally oblivious of the consequence of failure to file their brief within the time prescribed in the Court of Appeal (FAST TRACK) Directions 2014…” – Per M. S. Hassan, JCA

 

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DISMISSAL – THE EFFECT OF A COURT’S EXERCISE OF ITS POWER OF DISMISSAL FOR LACK OF DILIGENT PROSECUTION

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On the import of a dismissal as the one set out in EXHIBIT 1 pursuant to the provisions of Order 19 Rule 10 (2) of the Court of Appeal Rules, 2021, dismissing the Applicant’s appeal, and whether same can be relisted as the Applicant sought to do by this application, the authority on this is the case of Dekit Quarries Ltd & Ors v. AMCON & Anor (2018) LPELR 43736 (CA) at Pp 14 – 26 Paras D -A) Where Per IYIZOBA, JCA stated:

“…Legal Practitioners must endeavor to study and familiarise themselves with these Fast Track Practice Directions and generally all Rules of Courts in order to avoid the unhappy situation in which the applicants find themselves.”

See also the authority of Rini v. Koto & Ors (2021) LPELR 55651 (CA) at Pp 37-39 Paras C -A where this Court Per Yargata Byenchit Nimpar, JCA reaffirmed the provisions of the law as follows:

“…By the said Order 19 Rule 10 (1) of the Court of Appeal Rules, 2016 the Court is empowered to dismiss such application in order to de-congest its Cause List, see the case of STATE V NNOLIM AND ORS (1994) LPELR-3222 (SC) 20, A-C which stated the rationale for the above rule. Where an Appellant fails to prosecute within the time prescribed or as extended by the Court, the Court shall dismiss it and such a dismissal order terminates the life of the appeal, which is, in consequence, delisted from the cause list. No Court has the jurisdiction to resuscitate or revive it thus making it final. I therefore, hold that a dismissal under Order 19 Rule 10 (1) of the Court of Appeal Rules, 2016 is final and this Court has no power to re-list the appeal so dismissed. See the case of A.G. OF THE FEDERATION & ORS V. PUNCH (NIG) LTD & ANOR (2019) LPELR-47868(SC) where the Supreme Court held thus: “…an appeal dismissed by the Court of Appeal on the ground of the failure to file an Appellant’s brief of argument is final and such appeal cannot be revived by the Court of Appeal; See Olowu v. Abolore [1993] 5 NWLR (pt.293) 255; Babayagi v. Alhaji Bida [1998] 1-2 SC 108; [1998] 7 NWLR (pt. 538) 367. Put simply, it amounts to a dismissal on the merits, UBA Plc v Ajileye [1999] 13 NWLR (pt. 633) 116, 126; Olowu v. Abolore (supra); Kraus Thompson Org v N.I.P.S.S. (supra); Babayagi v Bida (supra). On its part, the Court, upon making such a dismissal order, becomes functus officio, Orobator v. Amata [1981] 5 SC 276; Nwaora v Nwaukobu [1985] 2 SC 86, 167; Yonwuren v Modern Sign Ltd [1985] NWLR (pt. 2) 244, 245; Chukwuka v Ezulike [1986] 5 NWLR (pt. 45) 892. Accordingly, it lacks the jurisdiction either under the Constitution; its constitutive Act [the Court of Appeal Act] or under its inherent jurisdiction to entertain such an appeal any longer, Chukwuka v Ezulike (supra); Ogbu v Urum [1981] 4 SC 1; Yonwuren v Modern Signs (Nig) Ltd [1985] 2 SC 86; [1985] 1 NWLR (pt 110) 483. ” Per NWEZE, J.S.C.” – Per M. S. Hassan, JCA

 

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DISMISSAL – WHETHER THE ORDER OF DISMISSAL CAN BE REVERSED AS PROVIDED IN THE RULES OF COURT

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The order of this Court dismissing this Appeal as I have stated is under the provisions of Order 19 Rule 10 (2) of the Rules of this Court, 2021 which is final and does not provide for the relisting of the Appeal. – Per M. S. Hassan, JCA

 

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DISMISSAL – THE EFFECT OF A DISMISSAL FOR WANT OF DILIGENT PROSECUTION

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Judicial pronouncements, as have been expounded by my learned Brother, make it clear that, in line with the provisions of the Rules of this Court, once an appeal has been dismissed by this Court for want of prosecution, due to Appellant’s failure to file a brief of argument, the Court is functus officio on the matter; Kraus v National Institute of Policy and Strategic Studies (2004) 5 S.C. (Pt.1) 16; Asalu & Ors v. Dakan & Ors (2006) LPELR-573(SC); Babayagi v. Bida (1998) LPELR-699(SC), (1998) 2 NWLR (PT.538) 367; Olowu v. Abolore (1993) 5 NWLR (Pt. 293) 255 at 277. The order of dismissal cannot be revived by this same Court. – Per O. A. Otisi, JCA

 

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RULES OF COURT – WHETHER SYMPATHY CAN OVERRIDE THE CLEAR PROVISIONS OF RULES OF COURT

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it must be emphasized that an attempt to elicit sympathy from the Court cannot becloud the importance of compliance with unambiguous provisions in the Rules of Court. In Registered Trustees of Tipping Trailers Owners Union & Anor v. Nigerian Union of Mine Workers (2013) LPELR-20200(CA) at pages 12-14, a similar argument was considered, and the Court, per Otisi, JCA, expressed the view:

“The applicants in the supporting affidavit seek to bring to the fore the fact that the failure to file the Appellants’ Brief within time was the fault of Counsel, resulting from series of person of bereavements of the Counsel. It is a well- worn legal position that the fault or sin of Counsel cannot be visited on his client. However, I will respectfully, refer to the observations of Iguh JSC, in his concurring judgment in BABAYAGI VS. ALHAJI BIDA (supra) where he said at page 379:

“Learned counsel for the Appellant tried in his brief of argument to enlist the sympathy of this Court by arguing that the Court below was wrong in dismissing the appeal instead of striking it out as the Appellant might not have been aware that his counsel would not be attending Court to oppose the application. I need only restate that sympathy cannot override the clear provisions of the Rules of Court and that it would be in the interest of the parties and their counsel to endeavour always to comply with the prescribed times set out in the Rules for the doing of any act or taking any step”

It is not necessary to over flog the issue. The Applicants herein failed to file their Brief of Argument within the prescribed time, from 2009 – 2012, when the matter was finally struck out or dismissed. An Order made by the Court in that circumstance, brings the appeal to an end. It cannot be revived.” – Per O. A. Otisi, JCA

 

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DISMISSAL – WHERE A COURT EXERCISES DISCRETION TO DISMISS AN APPEAL FOR WANT OF DILIGENT PROSECUTION

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I will however say something that is not new but to emphasize the need for practitioners to take the Rules of Court seriously because they are not made for the fun of it but to be obeyed to the letter. See: Asuquo V. Udoaka (2021) LPELR-57428 (SC) P. 11 Paras D-G, Sharing Cross Educational Services Ltd V. Umaru Adamu Enterprises Ltd & Ors (2020) LPELR-49567 (SC) Pp. 3- 4 Paras E-A, Ogunpehin V. Nucleus Venture (2019) LPELR- 48772 (SC) Pp. 24-25 Para E.

Now, Order 19 Rule 10(1) and (2) of the Court of Appeal Rules, 2021 provides:

(1) Where an Appellant fails to file his brief within the time provided for in Rule 2 of this Order, 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. Where an Appellant fails to file a reply brief within the time specified in Rule 5, he shall be deemed to have conceded all the new points or issues arising from the Respondent’s brief.

(2) Where an Appellant fails to file his brief within the time provided for in Rule 2 of this Order, or within the time as extended by the Court, the Court may, suo motu dismiss the appeal for want of prosecution.

Under Order 19 Rule 10(1), the Court may dismiss an appeal on the application of the Respondent where there is a default in compliance. And under Order 19 Rule 10(2) the Court may do so suo motu.

In either of the two situations, the Appellant can only find respite where the Court decides to be magnanimous enough to exercise her discretion not to dismiss the appeal; but once the Court decides to dismiss, it becomes functus officio.

The Court will be acting in want of jurisdiction where it decides to revisit her decision for whatever reason no matter how well founded or established.

This issue has been over-flogged by this Court and the Appellate Court. Herein lies the admonition that Rules of Court are meant to be obeyed. The Appellant could have been saved the quagmire it now finds itself in if it had kept faith with obedience to Rules of Court. It cannot choose to treat the Rules with disclaim and taunt this Court with an application it knows very well the Court has no jurisdiction to grant. – Per J. G. Abundaga, JCA

 

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CASES CITED

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STATUTES REFERRED TO

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1. Court of Appeal (Civil Procedure) Rules, 2021

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