CORAM

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PARTIES

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PHILIP OBIORA

APPELLANTS 

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PAUL OSELE

RESPONDENTS 

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AREA(S) OF LAW

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SUMMARY OF FACTS

The original Appellant was Nicholas Osele on whose demise his son Paul Osele was on 8/6/87 substituted to continue the prosecution of the appeal. Learned Counsel for the Appellant began his arguments in the appeal on 26/4/84, but was held up for many reasons including incomplete or distorted record and/or errors in copying the said record. There were a number of adjournments to rectify all these errors. After the Appellant’s motion to file and argue additional grounds was granted, Counsel on both sides agreed to file and exchange Briefs of Argument whereupon the appeal was adjourned. The Appellant thereupon filed his Brief and served same on the Respondent. On the receipt of the Appellant’s brief, learned Counsel for the Respondent instead of filing the Respondent’s Brief rather filed a motion dated 28/1/85 seeking an Order of the Court of Appeal striking out the Appellant’s brief as not being in conformity with the Rules, and dismissing the appeal for want of prosecution. It is worthy of note that the appeal was originally listed for hearing long before the coming into force of Order 6 of the Court of Appeal (Amendment) Rules, 1984 and was even made part-heard. But due to subsequent applications and the changes in the panel taking the appeal, it was delayed up to the time the provisions of Order 6 became effective. The court granted the Respondent’s prayer that the appeal be dismissed for want of prosecution. Dissatisfied, the Appellant has appealed to this court against the dismissal of his appeal for want of prosecution by the court below.

 

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HELD

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Appeal Allowed

 

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ISSUES

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To entitle the Court of Appeal to dismiss the appellant’s appeal for want of prosecution, what default must the appellant commit?” Where a brief which has not been drawn up elegantly or in full compliance with the guidelines in the Rules of Court, particularly Order 6 Rule 2 of the Court of Appeal Rules has been filed and served, has the Court of Appeal any jurisdiction or power to strike out the brief either suo motu or on application of the respondent and dismiss the appeal for want of prosecution?” was the Court of Appeal entitled to apply the Court of Appeal (Amendment) Rules 1984 Order 6 Rule 3 and invoke the sanction in Order 6 Rule 10 to the instant appeal?

 

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RATIONES DECIDENDI

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BRIEF -WHAT IS A BRIEF

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“What is a brief? I must search for the definition first in the Court of Appeal (Amendment) Rules. 1984 and more especially in Order 6 Rule 2. That Rule provides as follows: “The appellant shall within sixty days of the receipt of the record of appeal from the court below file in the court a written brief, being a succinct statement of his argument in the appeal.” A brief is therefore a succinct statement of the appellant’s or the respondent’s argument in the appeal and by Rule 9(a) of Order 6. “Oral argument will be allowed at the bearing of the appeal to emphasise and clarify the written argument appearing in the briefs already filed. ” Once, therefore, a brief is filed, it constitutes the appellant’s or the respondent’s argument in the appeal and nowhere in the Court of Appeal Rules is any provision made for striking out appellant’s argument in the appeal no matter how inelegantly drafted and presented. Once a brief is drawn up, filed and served by a party, the appeal is argued and the Court of Appeal Rules provide that parties filing briefs should presume that the briefs will be read. (See Order 6 Rule 3(c) of the Court of Appeal (Amendment) Rules 1984).”

 

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FILING OF BRIEFS -WHETHER FILING OF BRIEFS IS ORDERED BY THE COURT

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“It should be observed that the filing of briefs under the Rules is ordered by the Rules (see Order 6 Rule 2) and not by the courts. The court only extend the time prescribed by the Rules in which to file the brief. The Rules do not in anyway curtail the power of the court to order the filing of briefs in exercise of the court’s inherent power or jurisdiction (see section 6(6)(a) of the Constitution of the Federal Republic of Nigeria 1979).”

 

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BRIEF OF ARGUMENT – WHETHER A BRIEF SHOULD BE DISCARDED, WHERE A COUNSEL LACKS THE NECESSARY SKILL IN THE FORMULATION OF THE APPELLANT’S BRIEF

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“I agree with learned counsel for the appellant that the Court of Appeal (Amendment) Rules 1984 never made provision for striking out a brief filed by the appellant on the ground of want of form. Therefore, the purported exercise of the powers of dismissal for want of prosecution in this matter by the Court of Appeal under Harder 6 Rule 10 merely because the brief was not in the form set out by the rules was a wrongful exercise of power and occasioned a serious miscarriage of justice. There is no doubt that the brief of 16th April, 1985 filed on 8th of July, 1985 needed a lot of improvement to bring it up to standard. The appellant’s counsel appears to have a lot of material but the arrangement and presentation in the brief is unintelligible. Be that as it may, it is his oral argument in the appeal that he has put down in writing and the court has to make the best out of it in the interest of justice. There is no doubt that what may be described as the failure of appellant’s counsel to master the art of drawing up a brief in consonance with the guidelines set out in the Rules irritated the learned Justices of the Court of Appeal. Judges should not lose their temper with counselor litigants no matter how irritable they may be so that the composure required to administer justice may not depart from the temple of justice. If counsel lacks the necessary skill in the formulation of the appellant’s brief, the appellant’s case should be judged by the merit of the brief. The brief should not be thrown out to enable the appellant suffer the sanction of failing to file a brief.”

 

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PRINCIPLE OF DISMISSAL FOR WANT OF PROSECUTION – INSTANCES WHERE THE POWER TO DISMISS AN ACTION FOR WANT OF PROSECUTION IS INVOKED

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“The principle of dismissal for want of prosecution is not new. In the trial courts, the powers to dismiss an action for want of prosecution are often invoked if the plaintiff defaults in filing his statement of claim and there is prolonged or inordinate and inexcusable delay in the prosecution of the action or if the plaintiff does not issue his summons for direction within the specified time. (See page 431 – The Supreme Court Practice 1979 White Book. Note 25/1/3A under Order 25 Rule 1). The principle is that it is the duty of the plaintiff’s or appellant’s counsel in the instant appeal to get on with the case since public policy demands that the business of the courts should be conducted with expedition. It is a notorious fact that there is congestion of cases in most of the courts in Nigeria and this principle of pursuing claims and appeals expeditiously is designed to bring relief to and decongest the courts.”

 

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BRIEF OF ARGUMENT – WHETHER A DEFECTIVE BRIEF MAY BE REGARDED AS NO BRIEF

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“A bad, faulty and/or inelegant Brief will surely attract some adverse comments from the courts but it will be stretching the matter too far to regard such defective Brief as no Brief. A faulty Brief is a Brief which is faulty. One cannot close ones eyes to the fact of its existence.”

 

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BRIEF OF ARGUMENT- WHETHER THE DISMISSAL OF A PARTY’S BRIEF ON GROUNDS THAT IT IS BAD, INELEGANT AND FAULTY IS APPROPRIATE

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“Times without number the Supreme Court has had to deal with bad, inelegant and faulty Briefs but I do not remember one instance where the Supreme Court dismissed a party’s appeal simply because the Brief filed was faulty or bad – adverse comments yes, but dismissal no. Thus in Atipioko Ekpan & Anor. v. Chief Agunu Uyo & Ors. (1986) 3 N.W.L.R (Pt.26) 63 at 76 Obaseki J.S.C. delivering the lead judgment was forced to observe at p. 76. “The format for the briefs of arguments which the appellants and the respondents are enjoined to file should follow the guidelines laid down in the Supreme Court Rules 1985 particularly Order 6 Rule 5(1). The Roles of Court made to regulate the practice and procedure in the various courts in Nigeria have not been made for or to be only in the statute books. They are made for the benefit of the courts on the one hand, and the legal practitioners and litigants in our courts on the other hand; being guidelines for steps to be taken in any proceeding they must be followed. “After the above observation, stricture, reprimand and rebuke Obaseki J.S.C. went on to consider the appeal on its merits and in the end allowed same at pp.83/84. This is how it should be, because the dictates of justice weigh in the balance, much more than rules of practice and procedure. In Engineering Enterprise of Niger Contractors Co of Nigeria Ltd. v. A.G. Kaduna State (1987) 2 N.W.L.R.(Pt.57) 381 the Brief of Argument filed by the Appellant was really no Brief. It was so deficient and faulty in every respect that Eso, J.S.C. at p.395 was forced to observe:- “I find myself painfully constrained to refer to what he has termed “Appellant’s Brief of Argument” in this Court. Indeed it is so bewildering that such a Brief should be filed by any lawyer in this Court in such a matter of this nature that has invited a full lead judgment and fully well considered dissenting judgment….” At p.396 Eso J.S.C. continued: “It is to be noted that all the Brief has said is to reproduce just a little portion of the dissenting judgment…. The Rules require that the Brief….shall be a succinct statement of his argument in the appeal and shall contain the issues arising in the appeal….. Briefs are not written merely for the purpose of summarising the judgments of the lower courts. Pausing here for a moment, all Mr. Ijaodola has done, was with respect, to have summarised the dissenting judgment of the Court of Appeal. And nothing more!”

 

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JUSTICE -WHETHER THE SPIRIT OF JUSTICE RESIDES IN RULES OF COURT, IN FORMS AND FORMALITIES, OR IN TECHNICALITIES.

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“The point is that the spirit of justice does not reside in Rules of Court, in forms and formalities, nor in technicalities. These should all aid not defeat justice. I therefore feel constrained to observe that the decision of the Court of Appeal in Archbode Engineering Ltd. v. W.R.H. T. W. Ag. (1985) 3 N.W.L. R. (Pt.12) 300 at p. 305 on which Olatawura J .C.A. relied has been implicity over ruled by the two Supreme Court decisions (Ekpan v. Uyo and Engineering Enterprise v. A. G. Kaduna) one in 1986 the other in 1987 considered above. 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. That would be wrong. Even in 1984 before Ademola J.C.A. decided Archbode Engineering Ltd. supra this court in Ketu v. Onikoro (1984) 10 S.C.265 per Obaseki J.S.C. at p. 267 after observing:- “Further, the Appellant’s brief is no brief. They have not in the brief given a succinct statement of their argument and totally failed to set out the issues for determination in this appeal as required by Order 9 rule 3(1) of the Supreme Court Rules 1977,” still considered the appeal on its merits and found that “On the merit, there is no substance in the appeal.” The appeal was then dismissed not because the Brief filed “was deemed to be no Brief but rather because the appeal itself was unmeritorious.”

 

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CASES CITED

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Not Available

 

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STATUTES REFERRED TO

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Constitution of the Federal Republic of Nigeria 1979|Court of Appeal (Amendment) Rules 1984|Court of Appeal Rules 1981 as amended|

 

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