ZAMFARA STATE ENVIRONMENTAL SANITATION AGENCY (Z.E.S.A ) V. ALHAJI BASHIR ADAMU

CORAM

MUHAMMED LAWAL SHUAIBU JCA

EBIOWEI TOBI JCA

VICTORIA TOOCHUKWU NWOYE JCA

PARTIES

ZAMFARA STATE ENVIRONMENTAL SANITATION AGENCY (Z.E.S.A )APPELANT(S)

APPELLANTS 

ALHAJI BASHIR ADAMU (Carrying on Business in the name & style of Ocean trees enterprises)RESPONDENT(S)

RESPONDENTS 

AREA(S) OF LAW

APPEAL, PRACTICE AND PROCEDURE, ADMINISTRATIVE LAW, CONSTITUTIONAL LAW, CIVIL PROCEDURE, JUDICIAL DISCRETION

SUMMARY OF FACTS

This case involves an application filed by the Zamfara State Environmental Sanitation Agency (Z.E.S.A.) seeking to restore an appeal that was previously dismissed by the Court of Appeal. The original appeal, CA/S/72/2022, was dismissed on March 12, 2024, due to the Appellant’s failure to file a Brief of Argument within the stipulated time. The Appellant now seeks several orders from the Court, including an extension of time to seek leave to restore the appeal, setting aside the previous dismissal, restoring the appeal to the cause list, and extending time to file the Brief of Argument.

The Appellant claims that the failure to file the Brief of Argument was due to counsel’s error, specifically the inadvertent withdrawal of a pending application during the hearing on March 13, 2024. The Appellant also contends that they were not served with a hearing notice for the hearing scheduled on March 13, 2024.

The Respondent opposed the application, arguing that the dismissal of the appeal was a final decision, and that the Appellant’s application, filed nine months after the dismissal, demonstrated an unwillingness to prosecute the appeal.

HELD

1.The application was dismissed for lack of merit.

2.The Court held that when an appeal is dismissed pursuant to the Court’s Rules, that decision is final, and the Court becomes functus officio and cannot relist or re-enter the appeal on its cause list.

3.The Court found that the Appellant had not made out a case for the granting of the prayers sought in the application.

4.Costs of N200,000 were awarded against the Applicant in favor of the Respondent.

ISSUES

1. Whether the Applicant had given cogent reason(s) to justify the exercise of the Court’s discretion in its favor?

RATIONES DECIDENDI

DISMISSAL OF APPEAL FOR WANT OF PROSECUTION – CONSEQUENCE OF FAILURE TO FILE BRIEF OF ARGUMENT WITHIN STIPULATED TIME:

“By virtue of Order 19 Rule 10 of the Rules, where the Appellant fails to file his brief within the time provided in Rule 2 of the order or within the time as extended by the Court, the Respondent may apply to the Court for an appeal to be dismissed for want of prosecution. The consequence of an Appellant’s failure to file his brief of argument on time, or within the time extended by the Court, if any, is that the appeal is liable to be dismissed.” – Per MUHAMMED LAWAL SHUAIBU, J.C.A.

DISMISSAL OF APPEAL – WHETHER COURT HAS DISCRETION WHEN CONDITIONS FOR DISMISSAL ARE MET:

“In UMEZINNE V. A.G. FEDERATION (2019) 11 NWLR (PT. 1683) 358 at 379, the Supreme Court has held that once the conditions for the application of Order 17 Rule 10, which is similar to Order 19 Rule 10 of the Court of Appeal Rules 2021, have been met, the Court has no discretion.” – Per MUHAMMED LAWAL SHUAIBU, J.C.A.

INHERENT JURISDICTION – POWER OF APPELLATE COURT TO DISMISS APPEAL SUO MOTU:

“And notwithstanding the power of enabling the Respondent to move the Court to dismiss an appeal for nondiligent prosecution, an appellate Court 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 or notice, as the Court has inherent power to do away with frivolous and vexatious appeals so as to decongest its cause list.” – Per MUHAMMED LAWAL SHUAIBU, J.C.A.

FINALITY OF DECISION – EFFECT OF DISMISSAL OF APPEAL BY APPELLATE COURT:

“Furthermore, when an appeal is dismissed by the appellate Court pursuant to its Rules, that decision is a final decision and the Court has become functus officio and cannot relist or re-enter the appeal on its cause list. NIGERIA AIRWAYS LTD V. LAPITE (1990) 7 NWLR (PT. 163) 392 and CHUKWU V. STATE (2019) 12 NWLR (PT. 687) 508 at 525.” – Per MUHAMMED LAWAL SHUAIBU, J.C.A.

ERROR OF COUNSEL – DISTINCTION BETWEEN PROCEDURAL ERRORS AND STRATEGIC ERRORS:

“It is not all errors of counsel that cannot be visited on litigants. It is only errors of procedure in the conduct of the case, but not errors based on decisions taken by counsel, like in this case.” – Per EBIOWEI TOBI, J.C.A.

EXCEPTION TO THE RULE THAT ERRORS OF COUNSEL SHOULD NOT BE VISITED ON CLIENT:

“There are exceptions to the rule that inadvertence or error of counsel should not be visited on the litigant. In ASORE v. LEMOMU (1994) 7 NWLR (pt. 356) 284, cited with approval in OKWELUME v. ANOLIEFO (1996) 1 NWLR (pt. 425) 468 at 481, it was held that the failure or inadvertence of counsel to file a notice of appeal within 30 days was fatal.” – Per EBIOWEI TOBI, J.C.A.

FAILURE OF STRATEGY OR TACTIC – ACCOUNTABILITY FOR COUNSEL’S STRATEGIC DECISIONS:

“Where there has been a failure of strategy or tactic on the part of the counsel, as in the instant case, the litigant, his client, cannot escape such blunders committed by his counsel; for if the strategy had worked, both the counsel and his client would take full credit. Accordingly, they must also take full responsibility for the failure of the strategy: BELLO AKANBI v. ALAO (1989) ALL NLR 424 at 440; 401, 444. Neither mischief, ineptitude, nor strategic blunders are envisaged by the rule that inadvertence of counsel should not be visited on the litigant, his client. The rule cannot be applied to foist injustice on another party: AKANBI v. ALAO (supra).” – Per EBIOWEI TOBI, J.C.A.

INAPPLICABILITY OF RULE PROTECTING LITIGANTS FROM COUNSEL’S ERRORS IN CASES OF ABUSE:

“Nor will the rule apply in a clear case of abuse of the Court’s process, as in the instant case. It is unjust to grant this application. Accordingly, the application is hereby refused.” – Per EBIOWEI TOBI, J.C.A.

BINDING EFFECT OF COUNSEL’S DECISIONS – RESPONSIBILITY OF LITIGANT WHO ENGAGES COUNSEL:

“It was learned counsel’s decision to withdraw the pending application, which made the appeal become bare, that necessitated invoking Order 19 of our Rules. If a litigant decides to take a counsel, he is bound by the decisions made by his counsel in the conduct of the case.” – Per EBIOWEI TOBI, J.C.A.

ABUSE OF THE PRINCIPLE THAT COURTS DO NOT USUALLY VISIT COUNSEL’S SINS ON CLIENTS:

“It is fast becoming the practice for litigants to rely on the fact that the Courts would not usually visit the sins of counsel on their clients, to justify indolence, failure to follow up on the prosecution of their matters in Court, and the use of the Court’s process to frustrate the opposing party.” – Per EBIOWEI TOBI, J.C.A.

FACTORS CONSIDERED BY COURT IN EXERCISING DISCRETION:

“In exercising its undoubted discretion in favour of a party seeking the Court’s indulgence, the Court will always examine dispassionately all the facts and circumstances of the case before reaching a decision as to the merits or otherwise of the application before it.” – Per EBIOWEI TOBI, J.C.A.

DUTY OF LITIGANT TO MONITOR CASE – RESPONSIBILITY TO ENSURE EFFECTIVE REPRESENTATION:

“It is no longer news that the Courts in the land, at every level, are heavily congested. The Courts have a duty to ensure that matters are pursued diligently and with dispatch, and in the overall interest of justice. A litigant who has briefed counsel in a matter is not at liberty thereafter to go to sleep without making the effort to ascertain at regular intervals that his instructions are being carried out efficiently and effectively.” – Per EBIOWEI TOBI, J.C.A.

RATIONALE FOR DISMISSING APPEALS SUO MOTU – DECONGESTION OF CAUSE LIST AND PREVENTION OF ABUSE:

“Indeed, in Nigerian Navy v. Labinjo (supra), this Court held that an appellate Court has inherent jurisdiction to suo motu list an appeal and summarily dismiss the same for want of prosecution without waiting for the respondent to make an application either orally or by way of a motion on notice. The rationale being that the Court has the inherent power to do away with frivolous or vexatious appeals in order to decongest its cause list. The Court will exercise such power where the appeal is intended to overreach or deny the respondent the fruits of the judgment in his favour by the lower Court.” – Per EBIOWEI TOBI, J.C.A.

CASES CITED

STATUTES REFERRED TO

1.Constitution of the Federal Republic of Nigeria, 1999 (as amended), Sections 6 and 36

2.Court of Appeal Act, Cap 136 Laws of the Federation of Nigeria, 2004, Section 15

3.Court of Appeal Rules, 2021, Order 6 Rules 1, 9(1) and (2), Order 19 Rules 2 and 10

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