Ali Alaba International Limited & Anor V. Sterling Bank Plc (2018)
LAWGLOBAL HUB Lead Judgment Report
AMIRU SANUSI, J.S.C.
This appeal is against the Ruling of the Lagos division of the Court of Appeal (the lower or Court below) delivered on 10th May, 2005 which dismissed the appellants’ appeal against the judgment of the High Court of Lagos State (the trial Court) declaration on the 13th of October, 1999.
FACTS OF THE CASE
The facts of the case culminating into this appeal are simply thus:-
The respondent, as plaintiff at the trial High Court, filed an action against the appellants (defendants) for recovery of the sum of Thirty two million, six hundred and forty-four thousand, nine hundred and thirty two naira, twenty kobo (#32,644,932.20k) which was a sum arising from credit facilities granted to the appellants. The appellants admitted owing the respondent the sum of twenty nine million, eight hundred and seventy five thousand naira, thirty-two kobo only (#29,872,075:32k) with accrued interest. Based on that admission by the appellants/defendants, the trial Court entered judgment against the appellants in favour of the respondent/plaintiff.
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Prior to the said judgment, the trial Court made an order of mareva injunction freezing all assets of the appellants. The trial Court also ordered the 1st appellant herein, to procure a bank guarantee in the outstanding sum, pending the final determination of the substantive suit. The Court also ordered the sealing of the 1st appellant’s premises at No.48, Alaba Rago Market along Badagry Express way, Lagos pending the time the substantive suit was finally determined.
Dissatisfied with the judgment of the trial Court, the appellants appealed to the Court below. After entering their appeal, the appellants became lackadaisical and indiligent by not filing their brief of argument to prosecute their appeal which they filed on 19th November, 1999. Thereupon, the Court below invoked the provisions of Order 6 Rule 10 of the Court of Appeal Rules 1981 and dismissed the appellants’ appeal.
Then on 16th December, 2005, the appellants filed an application at the Court below for relisting of the appeal which was earlier dismissed on 10/5/2005 and also applied for extension of time within which to file their brief of argument. Those applications were later withdrawn by the
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appellants on 18/8/2006 and struck out by the lower Court upon the withdrawal by the appellants/applicants of the said motion.
The appellant later briefed a new counsel who filed an application dated 23rd April, 2007 seeking an order for extension of time to appeal against the decision of Court of Appeal dated 10th May, 2005 dismissing the appellants’ appeal and also seeking extension of time to file their Notice of appeal. The application was graciously granted by the Court below, hence the appellant on 13th December, 2007 filed their Notice of appeal.
Parties thereupon, in keeping and compliance with rules of this Court, filed and exchanged briefs of argument. In the joint appellants brief of argument settled by Dolly Akanimo & Co, the following dual issues were raised for the determination of the appeal by this Court, namely:-
- Whether the Honourable Court should intervene to restore to a litigant such as the Appellants in the face of a brazen inadvertence, error, mistake or sin of their counsel.
- Whether the Honourable Court should intervene where the lower Court perpetuates in justice, miscarriage of justice, afortiori injustice to their party.
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On its part, the respondent in its brief of argument settled by Victor O. Odjemu Esq., postulated sole issue for determination which reads thus:-
“Whether the Appellants’ appeal having been dismissed under the relevant rule of Court by the Court below can be relisted.”
SUBMISSIONS OF COUNSEL ON ISSUES FOR DETERMINATION
ISSUE NO.I
This deals with whether the Court should intervene to restore justice to a litigant such as the appellant in the face of mistake or sin of their counsel.
On this issue the learned counsel for the appellants submitted that it is an established principle of law, that sins of a counsel should not be visited upon a litigant who could not be held responsible for his solicitor’s failure to comply with the conditions of appeal. He stated that the former lawyer one Mr. Adetunji failed to inform the 2nd appellant of his elevation to the Bench in Adamawa State not until the 2nd appellant discovered on its inquiry during which period, the appeal had been dismissed by the Court below pursuant to Order 6 Rule 10 of the Court of Appeal Rules 1981.
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He therefore submitted further, that blunder of counsel handling a case should not be a ground for defeating the justice of the case of the appellants.
He referred to the case of CHIEF MAILAMAI v CHIEF ORBIH (1980)5-7 SC 28 at 34.
He also argued that the mistake of counsel in the circumstances of this case does not amount to a fundamental irregularity that affects the jurisdiction of the Court as would render the proceedings void and that no injustice will be occasioned to the other party. He urged the Court to resolve this issue in favour of the appellant.
ISSUE NO.2
This issue queries whether the Court should intervene where decision of the Court has caused injustice to the third party. The learned counsel to the appellant argued that the appellants’ office premises will remain sealed forever since the tenet of the order of the trial Court reads “until the determination of the substantive suit except the appeal is allowed as the said order has been overtaken by events and truncated by the finality of the dismissal of the appeal”. He argued that order of the trial Court for a bank guarantee for the outstanding judgment sum after making
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an order freezing all the account of the appellant and sealing of their premises, makes it impossible to procure bank guarantee. He argued that it is a miscarriage of justice against a third party who wanted to seek relief from Court, the Court striking out this action could not obtain the bank guarantee as the office of the appellants has been sealed off. He then urged the Court to also resolve this issue in favour of the appellants and to allow this appeal.
As I stated above, in responding to the argument of the learned counsel for the appellants, the learned counsel for the respondent distilled sole issue for determination.
The issue deals with whether an appeal dismissed under Order 6 Rule 10 of the Court of Appeal Rules 1981, which is in pari-materia with Order 18 Rule 10 of the Court of Appeal Rules 1981 can be relisted.
The learned counsel to the respondent submitted that the appellants’ appeal, having been dismissed under Order 6 Rule 10 of the Court of Appeal Rules 1981 (as amended), cannot be relisted as the dismissal is in law a judgment on merit. He therefore submitted that the appellants’ application to relist the appeal is also incompetent as the
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Court has become functus officio and lacks jurisdiction to entertain same.
He cited the case of DAKAN V ASALU (2015)13 NWLR (pt.1475)47 at 66 para B-C.
He submitted that it is not only the Court of Appeal that cannot relist the appeal but also the Supreme Court equally lacks the jurisdiction to order a relisting of an appeal dismissed by the Court of Appeal for non- filing of an appellant’s brief of argument. He referred to the case of KRAUS THOMPSON ORGANISATION V NIPSS (2004)17 NWLR (pt.901)44 at page 59 parag D-E. He then urged the Court to resolve this issue in favour of the respondent and dismiss the appeal.
RESOLUTION OF ISSUES RAISED BY LEARNED COUNSEL
I think the sole issue raised by the learned counsel for the respondent has subsumed the dual issues raised in the appellants’ brief of argument and I shall therefore be guided by it in the resolution and determination of this appeal as it is apt to the issues canvassed in the appeal by learned counsel for the parties.
There is no gainsaying that the appellant’s grudge was the dismissal of his appeal by the lower Court pursuant to
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Order 6 Rule 10 of the Court of Appeal Rule 1981 after the learned appellants counsel had earlier wilfully applied to withdraw the appeal. Aggrieved by the order of lower Court striking out the appeal the appellants’ counsel later applied for the relisting of the appeal. It is pertinent to note that right from the outset, the appellant failed to file brief of argument within time and did not also file application for enlargement of time to file their brief out of time despite the chances given to him to do so earlier.
It is well established principle of law that where an appellant fails to file his brief of argument within the time stipulated by Order 6 Rule 10 of the Court of Appeal Rules 1981 or within the time extended in his favour by the Court of Appeal as in this instant case, the respondent may apply to the Court pursuant to Order 6 Rule 2 of the same rules for the said appeal to be dismissed for want of prosecution under the same Rules. See Thomas Eminy Olumesan vs Ayodele Ogundepo (1996)2 NWLR (pt.433)628. In such situation, the appeal is deemed abandoned by the appellant and must therefore be struck out. See Akibu & Ors vs Oduntan & Ors (2000)7 SCNJ 189; Sparkling
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Breweries Ltd & Ors Vs Union Bank of Nigeria Ltd (2001)7 SCNJ 321.
My lords, it will not be out of place to refer to this Court’s decision in Akanke Olowu & Ors V Amudatu Abolore (1993)5 NWLR (pt.255) where this Court per Karibi-Whyte JSC had this to say.
“It has no inherent jurisdiction to set aside an order of dismissal properly made in the valid exercise of its jurisdiction and re-enter the appeal. An appeal dismissed on the ground of the failure to file appellant’s brief of argument is final. The appeal so dismissed can not be revived.”
This Court in the above mentioned case further held that once the Court of Appeal has dismissed an appeal for want of diligent prosecution due to appellant’s failure to file his brief of argument, that Court becomes functus officio on that matter.
It is noted by me, that the learned counsel for the appellants vehemently argued or pleaded with this Court to relist or re-enter his appeal in spite of his glaring failure to file brief of argument on behalf of his clients timeously but is now hiding or also hid behind what he termed “as mistake or sin of counsel”, which according to him
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attributed to the failure on their part to file brief of argument within time or to seek extension of time to file same. With due respect to the learned appellants’ counsel, rules of Court are sacrosanct. They were not made or promulgated for fun. They are meant to be obeyed or complied with to their letters always. The rules of the Court below clearly spelt out the time within which to file briefs of argument by parties and had yet given the party yet another chance to apply for extension of time where it fails to file brief within the stipulated period. The reasons given which was attributed to the failure of appellants to file appellants brief of argument in the appeal, namely, the “mistake or sins of counsel”, do not appear sound, tenable, or cogent at all. The learned appellants’ counsel seems to be trying to whip up sympathy. With due respect to the learned counsel for appellants, sympathy can not override the clear and unambiguous provisions of the rules of Court.
It will always serve the interest of justice and even the interest of parties too, if learned counsel always endeavour to comply with the prescribed time set out by the rules
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within which some acts should be done or any step should be taken for the smooth administration of justice and NOT to act towards stultifying the administration of justice. See the case of Kraus Thompson Organisation vs National Institute for Policy and Strategic Studies (2004)17 NWLR (pt.901)44.
Thus, in view of the decisions in plethora of decided authorities of this Court, failure to file brief of argument by the appellants in this case has given the Court below the power to dismiss the appeal. In this situation the Court below becomes functus officio and lacks the jurisdiction to revive or re-enter the appeal as clearly provided by the provision of Order 6 Rule 10 of the Court of Appeal Rules, 1981. This Court also lacks jurisdiction to re-enter or relist the case which was earlier dismissed under the aforementioned rules since the dismissal of the case by the lower Court is final. I resolve the sole issue in favour of the respondent.
On the whole, I adjudge this appeal to be devoid of any merit. It is therefore accordingly dismissed. Cost of #200,000 awarded against the appellants in favour of the respondent.
SC.69/2006