Akanke Olowu & Ors V. Amudatu Abolore & Anor (1993)

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KARIBI-WHYTE, J.S.C.

On the 5th December. 1989 the Court of Appeal, on the application of the respondent dismissed the appeal of the appellant for want of prosecution. The specific ground for the application was the failure of the appellant to file his brief of argument under Order 6, rule 10 of its rules 1981.

The respondent to this appeal, who was the appellant in the court below on a motion dated 5th February, 1990 sought to set aside the order of the 5th December, 1989 dismissing the appeal for want of prosecution as aforesaid. Appellant also sought in the same application for an order restoring the appeal on the list.

Appellant to regularize his position sought for an order for enlargement of time within which to file appellant’s brief, and to deem as properly filed the Notice and amended grounds of appeal filed on Tuesday the 23rd day of January, 1990. The 3rd and 4th prayers are not relevant in this appeal. The only prayer in issue is the prayer restoring the appeal on the list for hearing.

The application was heard on Tuesday the 30th October. 1990. Learned counsel to the respondent, the appellant before us opposed the application. He submitted that the court lacked the jurisdiction to relist any appeal struck out or dismissed for failure to file appellant’s brief. He relied on Yonwuren v. Modern signs (Nig) Ltd (1985) 1 NWLR (Pt. 2) 244 for this submission. Mr. Animashaun for the appellant/applicant’s, who is the respondents now before us, submission was that there was no service on the appellant of the motion to dismiss the appeal.

The order to dismiss was therefore a nullity. The court below granted the application to relist the appeal.

In a short ruling which I reproduce in full in the interest of clarity, the court below stated as follows:

“Court: There is both statutory power and inherent power for this court to reenter any appeal struck-out or dismissed: See e.g. Order 3 rule 25(2) of the Court of Appeal Rules. Also Order 3 rule 20(4). There must however be special circumstances shown by the appellant before the court can exercise its discretion in favour of the appellant. The affidavit in support of this application shown substantial reason and exceptional circumstances why I should exercise my discretion in favour of the appellant since there was the death of the counsel formerly handling the case; there was the allegation of non service of part of the process on the appellants counsel. What is more, the appellant acted timeously in bringing this application. There was no counter affidavit to allegations in the affidavit in support of the application. The Supreme Court’s attitude these days is that actions should be heard on merit instead of being sacrificed on the claw of technicalities. The appeal dismissed on 5/12/89 is hereby restored to the court list. Time within which to file the appellant’s brief is extended till today. Brief dated 8th January, 1990 filed is deemed properly filed. Prayer (iv) is struck out as Mr. Animashaun confirms that it had not been included in brief dated 8th January, 1990, N50.00 costs to the respondent.”

It is clear from the ruling that the court below assumed jurisdiction and exercised their discretion to relist the appeal earlier dismissed by them. They relied on the grounds of the death of counsel formerly handling the case, and the allegation on the part of appellant that process was not served on his counsel, as substantial reasons and exceptional circumstances why the court should exercise its discretion in his favour to relist the appeal.

The court added that appellant/applicants acted timeously and that there was no affidavit challenging applicant’s depositions. Umaru Kalgo, Niki Tobi JJ.C.A. agreed entirely with the reasoning and conclusion.

S.B. Candide Johnson, learned counsel to the respondents, now the appellants, dissatisfied with the ruling appealed to this court. There is only one ground of appeal which with the particulars is as follows:

“Grounds of Appeal

1. The learned Court of Appeal erred in law when it held that it had jurisdiction to set aside its earlier order dismissing an appeal for want of prosecution for failure to file Brief and thereafter restore the said appeal to the cause list.

Particulars of Error

(i) The order of dismissal had been made for failure to file a brief and in the face of the proof of service in the court’s file evidencing service on the respondent of the relevant application for dismissal.