Alhaji Lasisi Asalu & Ors V. Fatal Sule Dakan & Ors (2006)

LAWGLOBAL HUB Lead Judgment Report

MOHAMMED, J.S.C.

This is an appeal against the ruling of the Court of Appeal, Ibadan Division delivered on 23/11/2000, refusing to set aside a ruling earlier delivered by that court on 17/11/1994, dismissing an appeal for want of prosecution.

The appellants were the plaintiffs in an action filed by them at the High Court of Justice of Ogun State sitting at Abeokuta in Suit No. HCL/27/80 against the respondent as defendant. At the end of the hearing of the action by the trial High Court, judgment was delivered on 6/11/1985. The appellants who were not happy with the judgment, appealed against it to the Court of Appeal Ibadan. Their learned counsel perfected all the conditions of appeal given at the registry of the trial court where the notice and grounds of appeal were filed. However, nearly 10 years after filing the appeal, by a motion dated 14/10/1994, filed at the Court of Appeal, the respondents prayed the court to dismiss the appellant’s appeal for want of prosecution. The motion No. CA/1/108/90, was opposed by the appellants. After hearing the parties on the respondents’ application on 17/11/1994, the Court of Appeal in its ruling delivered the same day, granted the reliefs sought by the respondents and dismissed the appellants’ appeal for want of prosecution. No further action was taken by the appellants to appeal against the decision of the Court of Appeal dismissing their appeal until Appeal, the appellant prayed for:

The appellants’ motion was supported by a 18 paragraph affidavit to which a number of document were exhibited. In opposing the motion, the respondents filed a 14 paragraph counter affidavit. Upon hearing the learned counsel of the parties in support of and in opposing the motion, the Court of Appeal in its ruling delivered on 23/11/2000, came to the conclusion that the real issue for determination in the application was whether the Court of Appeal has power to set aside its previous decision dismissing the appellant’s appeal for want of prosecution. This issue was resolved against the appellants’, leading to the dismissal of their application. Part of this ruling at page 76 of the record states:-

“The position of the law therefore is that this court lacks the power to review any of its judgment, ruling or order. See Chukwuka & Ors. v. Ezulike (1986) 5 NWLR (Pt.45) 892; Olowu v. Abolore (1993) 5 NWLR (Pt.293) 255. The only exception to this rule however, is in respect of appeal dismissed by this court for non compliance with the condition of appeal under Order 3 Rule 20(4). In such cases, this court is allowed under Order 3 rule 20(4), upon a motion by the appellant and for good cause, to restore the dismissed case unto the cause list. See Olowu v. Abolore supra.

As the appeal in the instant case was not dismissed by this court for non-compliance with the conditions of appeal under Order 3 rule of the Court of Appeal Rules, but that it was dismissed for want of prosecution, the applicants are not entitled to the relief provided in Order 4 Rule 20(4) of the Court of Appeal Rules. In the result, there is totally no merit in the application and I accordingly dismiss it with N3000.00 costs to the respondents”.

It is against this decision of the Court of Appeal that the appellants have now appealed to this court upon seven grounds of appeal from which their learned counsel formulated the following four issues appellants’ brief of argument.

1. Whether the appellants settled the Record of Appeal only at the High Court Registry and thereafter did nothing.
2. Whether the Court of Appeal can dismiss an appeal twice or whether two unrelated appeals can be dismissed or disposed of at different times a single appeal. And whether it was necessary for the court to make a pronouncement on an issue raised before it.
3. Whether the service of record of Appeal on an appellant is not a condition precedent to the exercise of the power of the Court of Appeal to dismiss an appeal filed by an applicant in pursuance of Order 6 Rule 10 of the Court of Appeal Rules, 1981 and whether any exercise of power to dismiss without the service of a Record of Appeal on an appellant is not nullity.
4. Whether the only option to the appellant at the Court of Appeal was to lodge an appeal to the Supreme Court against the ruling of the Court of Appeal dated 17th November, 1994″.

The learned counsel to the respondents however perceived the case from a different angle and saw only one issue arising for determination in the appeal from the judgment of the Court of Appeal against which the court refused to set is own decision dismissing the appellants’ appeal. The issue in the respondents’ brief of argument is –

“Whether it was right for the Court of Appeal to refuse to set aside its own decision in this case made on 17th November, 1994 dismissing an appeal to it from the High Court of Ogun State for want of prosecution.”

From the four issues put forward for determination in this appeal by the appellants, it appears the appellants are more concerned with or worried about the decision of the Court of Appeal of 17th November, 1994, dismissing their appeal for want of prosecution, rather than the refusal by the court to set aside the decision. In other words, questions relating to settlement of record of appeal raised in issue one, the dismissal of their appeal raised in issue two, the service of the record of appeal raised three and the option open to the appellants after the dismissal of their appeal, are matters principally traceable to the decision of the Court of Appeal of 17th November, 1994, dismissing the appellants’ appeal which is not on appeal. The present appeal however is only against the decision of the Court of Appeal of 23rd November, 2000, in which it refused to set aside its own decision of 17th November, 1994 to restore the appeal to the cause list.

It is now well settled that issues for determination formulated in any appeal must be related to or arise not only from the grounds of appeal filed by the appellant but also must be traced to the judgment or decision being appealed against. See Western Steel Works v. Iron & Steel Workers Union (1987) 1 NWLR (Pt.490 284 at 304; Oyesoh v. Nnebedum (1992) 3 NWLR (Pt.229) 315 and Olowosago v. Adebanjo (1988) 9 S.C. 87; (1988) 4 NWLR (Pt.88) 275.

The law is also trite although an appeal court should be wary of formulating or introducing new issues for determination in an appeal before it, where the issues presented by the parties are not appropriate or are inadequate having regards to the grounds of appeal, the appeal court may in appropriate cases, having regard to the circumstances, identify relevant issues taking extreme caution not to go outside the grounds of appeal filed or issues not canvassed by the parties in their respective briefs of argument. See Oloriode v. Oyebi (1984) 1 SCNLR 390; S.C. 1 and Oloba v. Akereja (1988) 7 S.C. (Pt.1) 1; (1988) 3 NWLR (Pt.84) 508. Although generally, an appellate court will rely on the issues for determination formulated by an appellant in the determination of an appeal, failure of the Court of Appeal or this court to be bound by the issues formulated by the parties where the courts regard such issues as being inappropriate having regard to the grounds of appeal filed, ahs been held not to amount to any injustice or denial of fair hearing. See Kotoye v. Saraki (1994) 7 NWLR (Pt.357) 414 at 456.

In the present case, s none of the issues formulated by the appellants addressed the real issue in this appeal, I shall fall to the issue identified in the respondents’ brief of argument which to me is the only issue for determination. The issue is whether it was right for the v to have refused o set aside it own decision given on 17th November, 1994, dismissing the appellants’ appeal for want of prosecution.

However, before proceeding to deal with the only issue for determination, the facts of the case as revealed by the parties in their affidavit in support of the application to set aside the decision of the court below of 17/11/94 and the counter affidavit opposing the application may be briefly state. The facts which are hardly in dispute are that the appellants as plaintiff instituted an action in Suit No. HCL/27/80 at the High Court of Justice of Ogun State, Abeokuta against the respondents. The action which involved a land dispute was determined by the trial High Court in its judgment delivered on 6/11/1985, dismissing the appellant’s claims and the respondent’s counter claim for forfeiture. The appellants promptly appealed against the decision of the trial court to the Court of Appeal and according to them complied with the conditions of appeal issued by the Registrar of the trial court but that the appellant up to the 17th day of November, 1994 were yet to be notified by the trial court that the records were ready. The story on the compilation of the record from the side of the respondents is quite different. According to them, the record of appeal was ready for collection by the parties since 3/4/1986 but that the appellants refused to take any step to collect the record and to enable them file the Appellant’s Brief of Argument. On these facts, the respondents’ application under Order 6 rule 10 of the Court of Appeal Rules to dismiss the appellants who regarded this ruling the Court of Appeal as a nullity, refused to appeal against it. Instead, the appellants applied to the court to set aside the ruling and restore their appeal. The dismissal of the appellants’ motion to restore their appeal resulted in their final appeal to this court.