Ashley Agwasim & Anor V David Ojichie & Anor (2004)

LAWGLOBAL HUB Lead Judgment Report

D.O. EDOZIE, JSC.

Although an appreciation of the facts leading to this appeal is not relevant for its determination, it is nonetheless proper to state the facts albeit briefly. The case arose from a road accident that occurred on 31st December 1986, near Okuokoko village along Ughelli/Warri Road. The accident involved the collision of a luxurious bus No. BD 9558A and a Peugeot 504 station wagon No. BD 5316 HA which caused the death of Friday Ojichie, a passenger in the latter vehicle. In consequence of the death of Friday Ojichie, his dependants in a representative capacity as plaintiffs commenced proceedings in the High Court of Delta State holden at Effurum claiming jointly and severally damages in negligence against the 1st and 2nd defendants as the driver and owner respectively of the luxurious bus. The trial court in its judgment delivered on 25/8/97 found negligence directly proved against the 1st defendant and vicariously established against the 2nd defendant and they were accordingly jointly and severally mulcted in damages in the sum of N453,970.00.

Against that judgment, the defendants as appellants lodged an appeal to the Court of Appeal, Benin Division, as per the Notice of Appeal dated 25th August, 1997, and filed the same day. After the settlement of the record of appeal, the Court of Appeal dealt with several interlocutory applications filed by the parties. One of such applications is a motion on notice dated 27/9/98 by the plaintiffs as respondents and applicants in the motion praying for the dismissal of the appeal on the ground that the appellants had defaulted in filing their briefs of argument as required by Order 6 Rule 10 of the Court of Appeal Rules, Cap 62 Laws of the Federation 1990. That motion was heard and granted by the Court of Appeal in its ruling delivered on 25th January, 1999, whereby it dismissed the appellant’s appeal for want of diligent prosecution. Dissatisfied with that ruling, the appellants simultaneously filed two processes. One process is an appeal filed on 10/2/99 by the appellants to the Supreme Court against the said ruling of Court of Appeal delivered on 25th January, 1999. The relief sought in the appeal is that the ruling appealed against be set aside and that the appeal dismissed be heard on its merit. The second process is a Motion on Notice dated 9th February, 1999, filed on 10/2/99 by the appellants before that Court of Appeal seeking, among other things, “an order for restoration/relisting its Appeal No CA/B/83/98 dismissed on the 25th day of January, 1999, for want of diligent prosecution to enable the matter to be heard on merit.”

This motion was heard and struck out by the Court of Appeal in its ruling delivered on 7th July, 1999. Still undaunted, the appellants have on 16th July, 1999, lodged before this court an appeal against the ruling of the Court of Appeal delivered on 7th July, 1999, praying that, that ruling be set aside so that the appeal could be relisted and heard on its merit before the court below. It is that ruling delivered by the Court of Appeal on 7th July, 1999, striking out the motion to relist the appeal dismissed for want of diligent prosecution that is the focus of this appeal.

Learned counsel for the parties filed and exchanged briefs of argument. The respondents’ counsel adopted and relied on his brief. As the appellants’ counsel was absent, the appeal was deemed argued on the brief he had filed. In the appellants’ brief of argument, the sole issue for determination was framed thus:-

“Whether the Justices of the Court of Appeal Benin City properly directed themselves in refusing to restore the appeal inspite of the fact that the appellants applied for the restoration of appeal giving cogent and compelling reasons for their inability to be in court at the time the appeal was dismissed having regard that service of processes is fundamental in any judicial proceedings.”

For the respondents, the issue identified for determination is:-

“Were the learned Justices of the Court of Appeal, Benin Division/ right in striking out the appellants’ motion dated 9/2/99 on 7/7/99.”

In his brief of argument, learned counsel for the appellants submitted that the respondents’ motion for dismissal of the appeal was not served on them before the Court of Appeal proceeded to dismiss the appeal. It was pointed out that the motion on notice was allegedly served on them at Warri instead of through their counsel, Chuks Nwolisa & Co of 95, Ojuelegba Road, Surulere, Lagos, being their correct address for service as indicated in their Notice of Appeal against the judgment of the High Court. It was further pointed out that the said motion on notice did not indicate a hearing date. It was then submitted that failure to give notice of proceedings to the opposing party in a case where service is required is a fundamental omission (except where proceedings are ex-parte) which renders such proceedings void because the court has no jurisdiction to entertain the matter, citing in support of the proposition the following cases:- Sken Consult v. Ukey (1981) 1 S.C. 8, Obimonure v. Erinosho (1966) All NLR 245 Katsina v. Makudawa (1971) NMLR 100.

Learned counsel referred to the affidavit in support of their motion for relisting the appeal dismissed in which it was averred that the appellants’ motion for the dismissal of their appeal was not served on them the appellants before the dismissal of the appeal by the court below. He stressed that on becoming aware of the dismissal of the appeal, the appellants took sufficient, reasonable and diligent steps to restore the appeal for the matter to be decided on merit but that the court below for no good reasons refused to grant their application to relist the appeal for it to be determined on merit. We were therefore urged to allow this appeal and order that the appeal against the judgment of the trial court to be restored for it to be determined on its merit before the Court of Appeal.

Responding to the above submissions, learned counsel for the respondents submitted in his brief of argument that the learned Justices of the Court of Appeal were right in striking out the appellants’ application dated 9/2/99 but filed on 10/2/99 for the relisting of the appeal dismissed for want of prosecution. It was contended that the lower court having dismissed the appeal on 25/1/99 became functus officio and therefore lacked the jurisdiction to entertain the appellants’ motion filed on 10/2/99 for the restoration of the appeal.

It was canvassed that an appeal dismissed under Order 6 Rule 10 of the Court of Appeal Rules, Cap 62 Vol. IV Laws of the Federation, 1990, cannot be restored and relisted as the appellants sought to do and as authority for the proposition, the case of Akanke Olowu & 3 Ors v. Amudatu Abolore & Ors (1993) 6 SCNJ (Pt. 1) I was cited. Furthermore, learned counsel contended in his brief that the court below satisfied itself that the appellants were duly served the motion for dismissal of the appellants’ appeal before proceeding to dismiss it on 25/1/99 on the ground that the appellants had not filed their brief long after the expiration of the period of 60 days limited by the Rules for doing so. It was further argued that the appellants were duly served with the respondents’ motion for the dismissal of the appeal through their address in Warri provided by the appellants from which address they had previously received several processes. We were urged to dismiss the appeal.

As is evident from the submissions of both counsel, it would appear as they conceived it that this appeal rested on service or failure to serve the appellants the respondents’ motion for the dismissal of the appellants’ appeal against the judgment of the trial court. If that were so, one would appreciate with commendation the submissions of learned counsel for the appellants. It seems to me, with respect, that learned counsel has misapprehended the substances of the ruling of the Court of Appeal delivered on 7/7/99, which is the subject matter of this appeal.

For their brevity, I will set out below the proceedings of that court on 7/7/99 leading to the ruling appealed against.