Peak Merchant Bank Limited V. Venture Trust Company Limited (2006)

LawGlobal-Hub Lead Judgment Report

RAPHAEL CHIKWE AGBO, J.C.A.

The respondent, as plaintiff at the High Court of Lagos State had obtained a money judgment against the appellant, then defendant. Not being satisfied with the judgment of the court below, the appellant filed this appeal.

The Court of Appeal fixed the appeal for hearing on 16th September, 2004. Hearing notices issued on the parties. In the interim, on 13th August, 2004, the appellant filed a motion on notice dated 29th July, 2004 seeking a departure from the rules to enable the appeal be argued and determined on the record of appeal compiled by the appellant and marked exhibit A. The application also contained a prayer for an order to deem as properly filed, the appellant’s brief of argument already filed and served. The respondent on 14/9/04 also filed a motion on notice dated 13/9/04 seeking an order of court deeming a bundle of documents marked exhibit C.O.I. as supplementary record of appeal for the purpose of hearing and determining the appeal. Both motions were set down for hearing on 16th September, 2004.

On 16th September, 2004 when the case was called up, the parties were absent and unrepresented. The proceedings of this court for that day are very short and bear reproduction:

“No appearance for the party: Both parties were served. Appellant was served on 14/9/04 respondent served on 10/9/04.

Court: Applications dated 13/9/04 and 29th July, 2004 respectively by respondent and the appellants are struck out for failure of the respective applicants to be in court. The appeal is fixed for hearing today and the appellant has not filed its brief consequently the appeal is dismissed for want of prosecution.”

The appellant has filed this application praying this court to re-list on the cause list, this appeal dismissed by this court for want of prosecution. The application is supported by a 17-paragraph affidavit, which bears reproduction:

“I TAOFEEQ, Male, Muslim, Nigerian Citizen of 31 Isaac John Street, Fadeyi, Lagos do make Oath and say as follows:-

1. That I am Litigation Clerk in the law film of Taiwo Shittu & Co. solicitors to the appellant/applicant.
2. That by virtue of my position I am conversant with the facts of this case.
3. That I have the consent and authority of the appellant to depose to this affidavit.
4. That I am informed by Mr. Lekan Awogbemila counsel handling this matter and I verily believe him that when the matter came up on 24th March, 2004 for argument of the motion for stay of execution, the court was of the view that counsel should prosecute the appeal proper instead of the interlocutory application.
5. That the matter was subsequently adjourned to the 23rd of September, 2004 so that counsel may have time to compile record and file briefs of argument.
6. That as a result of the paragraph 5 above the appellant/applicant compiled the record of appeal and filed a motion on notice dated 29th July, 2004 along with appellant’s brief of argument in apparent compliance with court directive.
7. That I am informed by Mr. Lekan Awogbemila of counsel and I verily believe him that he travelled to Abuja on the 13th of September, 2004 and only saw the hearing notice served on the chambers with the respondent motion dated 13th September, 2004 on the 21st of September, 2004 when he came back from Abuja.
8. That when the hearing notice bringing forward the hearing date to 16th of September, 2004 was served on the 14th September, 2004 I received the process and simply put it on Mr. Awogbemila’s table but did not read it properly to see that it was to bring the date forward.
9. That I am informed by Mr. Lekan Awogbemila counsel and I verily believe him that on getting to the court on 22nd September, 2004 the Registrar informed him that the appeal has been dismissed for non appearance of the counsel on the 16th September, 2004 and for lack of diligent prosecution.
10. That non-appearance of the counsel handling the matter or any other counsel was neither deliberate nor intentional.
11. That Mr. Taiwo Shittu, the other counsel in the chambers was on leave at the material time.
12. That the appellant had its brief of argument in the court’s file on the fateful day the appeal was struck out by the Honourable Court.
13. That there has not been an undue delay in making this application as I have been ill since the last week of September 2005 and I am the only person that can positively depose to what happened.
14. That the respondent will not be prejudiced if this application is granted.
15. That it would be in the interest of justice if the matter is re-listed and respondent ordered to file its brief of argument.
16. That the appellant is ready, willing and above to prosecute this matter to its logical conclusion.
17. That I make this affidavit in good faith.”

The respondent filed no counter-affidavit. The averments contained therein are uncontradicted. The court must therefore deem them to be true and act on them. – See the Honda Place Ltd. v. Globe Motors Holdings (Nig.) Ltd. (2005) 7 SC (Pt. 111) 182 at 189; (2005) 14 NWLR (Pt. 445) 273, Nwabuoku v. Ottih (1961) 2 SCNLR 232, Alagbe v. Abimbola (1978) 2 SC 39 at 40.

In urging the application, Mr. Awogbomila for the applicant argued that this court in dismissing the appeal for want of prosecution acted per incuriam. The appellant was not out of time as the appeal was yet to be entered. The court never said the dismissal was made pursuant to Order 6 rule 10 of the Court of Appeal Rules, 2002 nor did the facts of the case bring it within the ambit of the said Order 6 rule 10. He argued that the court does not become functus officio unless there is a judgment on the merit or the appeal is dismissed pursuant to the provisions of Order 6 rule 10 of the Court of Appeal Rules. He relied on Olowu v. Abolore (1993) 5 NWLR (Pt. 293) 255; Akujinwa v. Nwaonuma (1998) 13 NWLR (Pt. 583) 632 and C.C.B. (Nig.) Ltd. v. Onwuchekwa (2000) 3 NWLR (Pt. 647) 65 at 73.

The respondent’s counsel Mr. Ekwueme on the other hand argued strenuously that the appeal was dismissed because of the failure of the appellant to file its brief and that fact brought the dismissal within the ambit of Order 6 rule 10 of the Court of Appeal Rules. That being so, the decision can only be challenged by appealing against it to the Supreme Court as the Court of Appeal lacks the competence to relist appeals dismissed pursuant to the provisions of Order 6 rule 10. He relied for his submissions on Kraus Thompson Org. v. N.I.P.S.S. (2004) 17NWLR (Pt. 901) 44, Akujinwa v. Nwaonuma supra, Babayagi v. Bida (1998) 2 NWLR (Pt. 538) 367 at 373 and Omoyinmi v. Ogunsiji (2001) 7 NWLR (Pt. 711) 149 at 153.

In dealing with this application, the first question that comes to mind is, when can this court dismiss an appeal for want of prosecution? We shall first of all have recourse to the extant rules of the court and that is the Court of Appeal Rules, 2002. The provisions of the said rules relevant to the issue at hand are Order 3 rule 20 sub-rules 1, 3 and 4; Order 6 rule 2; and Order 6 rule 10. These provisions are reproduced hereunder:

“Order 3 rule 20

(2) If the appellant has not complied with any of the requirements of rules 10 and 11 of this Order, the Registrar of the court below shall certify such fact to the court, which shall thereupon order that the appeal be dismissed either with or without costs, and shall cause the appellant and the respondent to be notified of the terms of its order.