PATRICK MICHAEL & ORS V BANK OF THE NORTH
May 2, 2025ILODIBE UCHE V. THE STATE
May 2, 2025Legalpedia Citation: (2015-05) Legalpedia (SC) 91631
In the Supreme Court of Nigeria
Fri May 15, 2015
Suit Number: SC. 3/2014
CORAM
PARTIES
ENAYE SISAMI RICHARD ABAH APPELLANTS
ERIBO MONDAY & ORS
RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
This is an appeal against the ruling of the Court of Appeal dismissing the Appellant’s Record of appeal that was transmitted from the Federal High Court to the lower court. After the transmission of the Record of Appeal and filing of briefs of argument, the Appellant’s counsel became aware of the then recent Court of Appeal Practice Direction 2013 hence, filed an application seeking to regularize the said processes which were transmitted and filed outside the time prescribed by the Court of Appeal Practice Direction 2013.The Appellant’s counsel stated that the said lapses occurred due to his inadvertence as he was not aware of the said Practice Direction. The 1st Respondent’s counsel who was also not aware of the said Practice Direction then filed an application to regularize his brief of argument which had been filed in accordance with the Court of Appeal Rules 2011.When the matter came up for hearing, the lower court found out that the motion was defective because the Appellant failed to indicate the suit number of the matter. The Appellant’s counsel consequently sought for the leave of court to withdraw the motion and applied for an adjournment but the 1st Respondent’s counsel opposed the Appellant’s application for adjournment and applied for the dismissal of the appeal under Order 8 Rule 18 of the Court of Appeal Rules, 2011. The lower court dismissed the Appellant’s appeal for failure to transmit the record of appeal within the prescribed time and also dismissed all pending applications. Dissatisfied with the ruling of the lower court, the Appellant has appealed to this court.
HELD
Appeal allowed in part
ISSUES
1. Whether the lower court infringed on the appellant’s fundamental human right to fair hearing?
2. Whether the oral application made by 1st respondent was proper and whether the court has inherent power to strike out or dismiss an appeal for want of diligent prosecution?
RATIONES DECIDENDI
EXERCISE OF DISCRETIONARY POWERS IN THE GRANT OR REFUSAL OF AN ADJOURNMENT – DUTY OF THE COURT TO BALANCE ITS DISCRETIONARY POWER IN GRANTING OR REFUSING AN APPLICATION FOR ADJOURNMENT
“In an application for an adjournment, the court must balance the discretionary power to grant or refuse an adjournment and endeavor to give an appellant the opportunity of obtaining substantial justice in the shape of his appeal being granted a fair hearing on its merits provided always that no injustice is thereby caused to the other party and where the court erred in its balancing exercise, an appellate court is at liberty to interfere. See University of Lagos & Anor. V. M. I. Aigoro (1985) 1 SC 295”. PER J.I.OKORO, J.S.C.
RIGHT TO FAIR HEARING –PRINCIPLES GUIDING THE RIGHT TO FAIR HEARING
“The constitutional right to fair hearing guaranteed by Section 36 (1) of the 1999 Constitution of Nigeria (as amended) is founded upon the twin pillars of natural justice: i.e. audi alteram partem(hear the other side) and nemo judex in causa sua(no one should be a judge in his own cause). See: 7-UPBottling Co. Ltd. Vs Abiola & Sons Ltd. (19951 3 SCN3 37: Deduwa Vs Okorodudu (19761 1 NMLR 237 @ 246”. PER C.C.NWEZE, J.S.C.
COUNSEL –EXTENT OF A COUNSEL’S POWER IN CONDUCTING A CLIENT’S CASE
“When a party briefs counsel to conduct his case for him, counsel is empowered to do those things which the party is supposed to do except where the law demands that a party has to personally sign a document. It is only then that counsel will not be permitted to sign on behalf of his client”. PER J.I.OKORO, J.S.C.
GRANT OR REFUSAL OF AN APPLICATION FOR ADJOURNMENT – THE GRANT OR REFUSAL OF AN APPLICATION FOR ADJOURNMENT IS AT THE DISCRETION OF THE COURT
“It is never in dispute that the granting or refusal of an application for adjournment rests completely with the court or tribunal before which the application is made. It is at the discretion of the court to grant an adjournment.But there must be a ruling on the application and not as was done in this case. Although there is an application for adjournment and an opposition to it, there is no ruling on the face of the record of appeal. The court below ought to have decided it one way or the other before taking further steps in the matter. See FBN Plc V. Assom (2011) LPELR, Bamawo V. Garrick (supra) and Olumesan V. Ogundepo (supra). PER J.I.OKORO, J.S.C.
TRANSMISSION OF RECORDS – IMPLICATION OF ORDER 8 RULES 18 OF THE COURT OF APPEAL RULES 2007, ON FAILURE TO TRANSMIT THE RECORDS OF APPEAL
“In The Nigerian Navy & Ors V. Navy Captain D. O. Labinjo (2012) LPELR 7868 (SC) on pages 16 – 19,per Onnoghen, JSC, this court held as follows:
“Apart from there being a motion on notice calling for the striking out of the appeal for want of prosecution which was duly served on the appellants, Order 8 Rules 18 of the Court of Appeal Rules 2007 on which the learned counsel relied in submitting that the filing of a notice of motion for the striking out of an appeal for want of prosecution is mandatory does not support that contention. The rule provides as follows:-“If the registrar has failed to compile and transmit the records under Rule 1 and the appellant has also failed to compile and transmit the records in accordance with Rule 4, the respondent may by notice of motion move the court to dismiss the appeal”
From the above, it is clear and I hereby hold that the filing of a motion on notice as provided supra is permissive not mandatory as the word “may” is used.
It is a general principle of interpretation of statute that the use of the word “may” generally connotes permissive action though in exceptional circumstances it may mean mandatory or compulsory action. However, in the context in which it is used in the rule under reference, it can mean but one thing that is, permissive action…
In fact I hold the considered view that an appellate court, in a situation like the one under consideration in this appeal, has inherent jurisdiction to suo motu list the appeal and summarily dismiss same for want of prosecution without waiting for the respondent to make the application either orally or by way of a motion on notice as the court has the inherent power to do away with frivolous or vexatious appeals so as to decongest its cause list particularly where the appeal is intended to overreach or deny the respondent the enjoyment of the fruits of the judgment in his favour by the lower court”. PER J.I.OKORO, J.S.C.
FAIR HEARING – DUTY OF THE COURT TO GIVE PARTIES BEFORE IT A FAIR HEARING
“In an attempt to ensure the expeditious disposal of matters before it the court must not lose sight of its constitutional duty to give all the parties before it a fair hearing, an opportunity to present their respective cases without let or hindrance”.PER C.C.NWEZE, J.S.C.
APPLICATION FOR ADJOURNMENT- AN APPLICATION FOR ADJOURNMENT MUST BE HEARD AND DECIDED ON THEIR MERITS
“It is trite that every application for an adjournment whether made in writing or orally which is properly submitted before the court must be heard on the merits and decided upon before proceeding further with the case”. PER J.I.OKORO, J.S.C.
EXERCISE OF DISCRETION – DUTY OF COURT TO EXERCISE DUE DISCRETION PROPERLY
“It is a stand that I shall continue to maintain that due discretion should be properly exercised so as not to create absurd situation; in the main. See: University of Lagos v. Aigoro (1985) 1 SC 295”.PER J.A AFOLABI, J.S.C
COURT – DUTY OF THE COURT NOT TO PUNISH ANY LITIGANT ON THE MISTAKE OF COUNSEL
“A court should not punish a litigant based on the mistake or inadvertence of his counsel”. PER J.I.OKORO, J.S.C.
DISMISSAL OF AN APPEAL –THE COURT HAS POWERS TO DISMISS AN APPEAL WHERE AN APPELLANT HAS FAILED TO PROSECUTE SAME DILIGENTLY
“The court has an unfettered inherent jurisdiction to strike out or dismiss an appeal where an appellant has failed to prosecute same diligently”. PER J.I.OKORO, J.S.C.
EXERCISE OF DISCRETION IN THE GRANT OR REFUSAL OF AN APPLICATION –DUTY OF THE COURT TO EXERCISE IT DISCRETION IN GRANTING OR REFUSING AN APPLICATION IN LINE WITH SETTLED PRINCIPLES
“Where, in the exercise of that discretion either to grant or refuse such an application, the court does so judicially and judiciously in tandem with settled principles, even though a higher court would have exercised its discretion differently, it [the higher court] would seldom interfere with that exercise, Odusote v Odusote(1971) 1 All NLR 219; Ariori and Ors v Elemo and Ors 1983 1 SC 12”.PER C.C NWEZE, J.S.C.
DETERMINATION OF AN APPLICATION – DUTY OF A COURT TO DETERMINE AN APPLICATION BEFORE FURTHER STEPS ARE TAKEN IN THE PROCEEDINGS
“Where an application is made to the court, whether oral or in writing, it must be determined one way or the other before further steps are taken in the proceeding”. PER C.C.NWEZE, J.S.C.
CASES CITED
STATUTES REFERRED TO
Constitution of the Federal Republic of Nigeria, 1999 (as amended)Court of Appeal Practice Direction 2013Court of Appeal Rules 2007.
