Nkechinyere Onyenwaku U. & Anor V. Anthony Nnadi & Ors (2016)

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HELEN MORONKEJI OGUNWUMIJU, J.C.A.

The facts that led to this application are as follows:
The plaintiffs appealed to the High Court Enugu against the decision of Udi Magistrate Court refusing the plaintiffs claim for possession of a premises situate at Ukaka Ngwo. The High Court delivered its judgment setting aside the judgment of the Magistrate Court and granted the claim of the plaintiffs. The applicant appealed against the judgment. The applicant was served the record of appeal on 22nd January, 2008 at 1.45pm by a chief Bailiff of the High Court Mr. Cosmas Ani. The High Court had granted the applicant a stay of execution of its judgment. The applicant did not file a brief of argument and the appeal was struck out on the application of the respondents? counsel. This is a motion on notice filed on 31/5/11 brought pursuant to Or 7 R 10 (1) & (2); Or 4 R 4 of the Court of Appeal Rules 2011 and S.24 (4) of the Court of Appeal Act, 2004. The prayers sought are stated below:
?a) An order relisting the above appeal struck-out on the 15th day of October, 2008, by this Honourable Court for the failure of the

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defendant/appellant/applicant to file her Brief of Argument.
b) For the leave of this Honourable Court granting the defendant/appellant/applicant permission to file her Brief of Argument on time.
c)An order deeming the defendant?s/appellant?s/applicant?s Brief of Argument filed out of time, as properly filed having paid all necessary fees and penalty.

The only ground for bringing the application is stated below:
I. To re-list this appeal struck-out by this Honourable Court on the 15th day of October, 2008 for failure of the defendant/appellant/applicant to file Her Brief of Argument on time.
One Mr Ken .C. Okagwu a legal practitioner swore to an affidavit of 15 paragraphs in support of the motion. The appellant?s brief filed on 18/12/2008 was also exhibited as Exh A. The respondent filed a 20 paragraph counter affidavit on 21/1/13.

In the light of the fact that this is a highly contested motion, parties were ordered to file written addresses. The applicants filed further affidavit on 28/5/13 and written address on 28/6/13. The respondents filed written addresses on 28/10/13.

?The appellant in her

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written address settled by Chief Emeka Onyemelukwe dated the 27th day of June, 2013 and filed the 28th day of June, 2013 identified one issue for determination as follows:
Whether an appeal struck out for failure of an appellant to file brief of argument on time tantamount to a dismissal of the appeal.

The respondent in their written address settled by Alh. Abdulaziz C. Ogbui dated the 14th day of June, 2013 and filed on the 17th day of June, 2013 formulated one issue for determination as follows:
Whether this honourable Court has the jurisdiction to relist an appeal struck out or dismissed for failure to file brief of argument.

After careful consideration of both Written Addresses and arguments of counsel, I shall adopt the sole issue submitted for determination.
Learned appellant?s counsel submitted that by Order 17 Rule 10 of the Court of Appeal Rules 2007, where an appellant fails to file his brief within the time stipulated in the rules or within the time as extended by the Court, the respondent may apply to the Court for the appeal to be dismissed for want of prosecution. He submitted further that where the respondent fails

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to file his brief, he will not be heard in oral argument. However, where an appellant fails to file a reply within the time specified in Rule 5, he shall be deemed to have conceded all the new points or issues arising from the respondent?s briefs.

Counsel argued that there is a distinction between striking out of an appeal and dismissal of an appeal. He continued that Order 17 Rule 5 gives two conditions under which a respondent may apply for the dismissal of an appeal for want of diligent prosecution as follows:
1. Where the appellant fails to file his brief within time stipulated in Order 7 Rule 2 i.e 45 days.
2. Or, where the time has been extended for the appellant to file his brief, yet the appellant had not met the time.