Chief John Oyegun Vs Chief Francis Nzeribe (2010)

LAWGLOBAL HUB Lead Judgment Report

O. ADEKEYE, J.S.C.

The appellant in this appeal was plaintiff in the suit Hog/42/95 filed in the High Court of Imo State, Oguta Judicial Division. In the considered judgment of that court delivered on 18/12/96, the appellant was directed to pay the sum of N10,525,000.00 (ten million, five hundred and twenty-five thousand) and interest of 5% per annum until the loan is liquidated. Feeling aggrieved by the judgment, the appellant appealed to the Court of Appeal, Port Harcourt Division. The parties in the appeal settled records on 23/3/97 and the appellant had a period of thirty days (30) as from 24/3/93 to fulfill the conditions of appeal. The appellant failed to comply with the conditions precedent to filing the appeal within the statutory period. This prompted the respondent to bring this to the attention of the Registry. The respondent through his counsel about the defendant/appellant’s failure to comply with the conditions of appeal on 23/3/99. The appellant was given the material required to compile his Records of Appeal by the High Court of Oguta Registrar since the 16th of February 1999. A notice of motion for non-compliance was served on the parties. The motion was argued by counsel to both parties on the 27th of November 2000 before the Court of Appeal, Port Harcourt Division. In its Ruling, the Court held that:-

“Having listened to the arguments of counsel for both sides and studied the affidavits, it is clear that the respondent did not comply with any of the conditions of appeal as required in Exhibit A the respondent has not shown any evidence of compliance. Exh. A to the counter-affidavit dated 16th February 1999 shows no compliance at all. The respondent was required to comply with the conditions of appeal within 30 days of March 1999. There is no evidence of extension of time to comply or even an application for extension of time to comply. In the result, this application has merit and the appeal is dismissed under Order 3 Rule 20 of the Court of Appeal Rules. N2000 in favour of the applicant.

Being dissatisfied with the order of court in the above ruling, the defendant initiated a further appeal in this court by filing his Notice and Grounds of Appeal on 20/12/01. After due compliance with the conditions of appeal, both parties exchanged briefs. At the hearing of this appeal on the 27/10/00 the defendant/appellant through his counsel, Osahon Uzamere adopted and relied on the defendant/appellants’ briefs filed on 16/9/02 where in two issues were identified for determination in the appeal as follows:-

(1) Whether the summary dismissal of appellant’s appeal without considering the affidavit evidence in the matter did not amount to a breach of his fundamental rights as enshrined in the 1999 Constitution of the Federal Republic of Nigeria.

(2) Whether, in the circumstance of this case, an order of striking out would have been more appropriate than one of dismissal as was done by the court on this case.

The learned counsel for the respondent adopted and relied on the respondent’s brief deemed properly filed on 27/10/2009. In the respondent’s brief the two issues formulated for determination are:

(1) Whether the Court of Appeal had powers to make the order of 27/11/2000

(2) Whether a party who has failed, refused and neglected to sue the constituted and procedural provisions for enforcing his right of fair hearing would turn round to say that his right of fair hearing has been denied him if the Court of Appeal dismissed his appeal for want of prosecution.

I intend to be guided by the isues raised for determination by the appellants in this appeal.

ISSUE ONE

Whether the summary dismissal of the appellant’s appeal did not amount to a breach of his fundamental rights as enshrined in the 1999 Constitution of the Federal Republic of Nigeria.

The sum total of the grouse of the appellant under the issue is that it was preposterous for the court below to hold that the respondent has not shown any evidence of compliance whereupon the learned justice dismissed the appeal. The appellant submitted that this amounts to consequently shutting out the applicant for ever by way of dismissal from arguing his appeal. This gesture of the court had violated the fundamental rights of fair hearing of the appellant. The counsel went ahead to define section 36 (1) of the 1999 Constitution of the Federal Republic of Nigeria and held that Order 3 Rule 20 (1) of the Court of Appeal Rules is not only inconsistent with the constitutional provisions of fair hearing but also null and void to the extent of that inconsistency. The learned counsel supported this by citing section 1(1)(3) of the 1999 Constitution of the Federal Republic of Nigeria which stipulates that:-

“If any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail and that other law shall to the extent of the inconsistency be void.”