Mr. Dengo Benin & Ors V. Ekeremor Local Government Council (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

EJEMBI EKO, J.C.A. (Delivering the Leading Judgment)

On 14th July, 2010 the High Court of Bayelsa State delivered its judgment in the suit no EHC/2/2010. It was a suit in which the plaintiffs, being staff or employees of Ekeremor Local Government sought inter alia a declaration that as employees of the Local Government they were entitled to be paid in full their salaries and allowances. The plaintiffs in the suit had alleged that for 31 months the Ekeremor Local Government had not been paying to them their salaries at all, or in full.

The parties to the suit no EHC/2/2010 exchanged pleadings. The claimants’ counsel filed and served on the defendant Local Government the written address of the claimants. On 14th July, 2010 the High Court of Bayelsa State (coram: T. Eradiri, J) delivered its judgment for the claimants holding that “upon the unchallenged evidence of the claimants, (he found) their claims duly proved and (entered) judgment as per their writ of summons”.

On 6th December, 2010 Ekeremor Local Government, as the defendant/judgment debtor brought an application for:

An order dismissing and/or striking out or setting aside the proceedings and the judgment entered in favour of the claimants/Respondents in this suit for want of jurisdiction.

The grounds for the application as stated therein are that

1. The suit was statute barred
2. The proceedings and judgment were null and void
3. The honourable court had no jurisdiction to entertain the matter and thus the judgment delivered therein was a nullity
4. The suit was an abuse of court process

The parties exchanged written addresses and the motion was heard on 26th January, 2011.

In the Ruling delivered on 9th February, 2011 the learned trial Judge allowed the application. He further ordered that –

The judgment of this court entered in favour of the Claimants/Respondents on 14.7.2010, and indeed the entire suit and the proceedings are whereby (sic) set aside in their entirety.

The ruling and the orders made therein are the occasion for this appeal. The Notice of Appeal was filed on 16th February, 2011. The filing fee paid was N1,500.00.

The Record of Appeal was compiled and transmitted by the Principal Litigation Officer of the High Court of Bayelsa State. In the Notice of Preliminary objection filed on 27th October, 2011 which was argued in the Respondent’s Brief filed on 27th October, 2011, but deemed filed on 24th April, 2013, the Respondent contends inter alia that the Record of Appeal transmitted 160 days after the notice of appeal was filed is incompetent. The Respondent then urges that the invalid Record of Appeal be struck out.

The argument is predicated on Order 8 Rules 1, 4 and 18 of the Court of Appeal Rules, 2011. They provide:

1. The registrar of the court below shall within sixty days after the filing of a notice of appeal compile and transmit the Records of Appeal to this Court
2. Where at the expiration of 60 days after the filing of the notice of appeal the registrar has failed and/or neglected to compile and transmit the Records of Appeal in accordance with the preceding provisions, it shall become mandatory for the Appellant to compile the records of all documents and exhibits necessary for his appeal and transmit to the court within 30 days after the registrar’s failure or neglect.
3. If the registrar has failed to compile and transmit the Records under Rule 1 and the Appellant has also failed to compile and transmit the Records in accordance with Rule 4, the Respondent may by notice of motion move the court to dismiss the appeal.

There is no doubt that the Records of Appeal compiled and transmitted on 8th July, 2011 by the Principal Litigation Officer of the court below, 160 days after the notice of appeal was purportedly filed was done in breach of Order 8 Rule 1 of the Court of Appeal Rules, 2011. It is therefore incompetent. The registrar of the court below was obligated to compile and transmit the records of appeal within 60 days after the filing of the notice of appeal. The notice of appeal in this case was filed on 16th February 2011. The Records of Appeal being incompetent is hereby struck out.

The effect of the Records of Appeal being incompetent and struck out is that there are no Records of Appeal. The Appellants failed or refused to act under Order 8 Rule 4 to discharge their obligation therein. The appeal has consequently been abandoned and it is hereby dismissed for want of prosecution.