Consortium M.c. 3632 Lot 4, Nigeria V. National Electric Power Authority (1992)

LawGlobal-Hub Lead Judgment Report

NNAEMEKA-AGU, J.S.C. 

On 17th December, 1984, the plaintiff obtained a final award from a panel of three arbitrators against the defendant in arbitral proceedings arising out of a contract. An application by the defendant in suit No.M/44/85 to set aside the final award or remit it to the arbitrators for consideration was dismissed by Famakinwa, J., on the 29th of January, 1987.

Dissatisfied with the decision of the High Court on the matter the defendant appealed to the Court of Appeal. Because the defendant/appellant failed to file its brief within time, the plaintiff/respondent filed a motion to dismiss the appeal for want of prosecution. That application is one of the two applications which have led to this appeal.

This interlocutory appeal is against two rulings made by the Court of Appeal, Lagos Division on the 13th day of March, 1990 in the suit. The first ruling related to the application, dated the 29th day of November, 1989,by the present appellant to dismiss the appeal of the defendant/respondent for want of prosecution of its appeal before the court. The motion was fixed for hearing on the 1st of February, 1990. On the day of hearing the respondent (appellant) filed a motion dated 30th January, 1990, for extension of time to file its brief. Both motions had to be adjourned to the 13th of March, 1990, for hearing.

On the date fixed for hearing, the court heard the appellant’s motion for extension of time to file its brief of argument first and granted it. Learned counsel for the respondent (appellant in this court) says that he asked for the motion to dismiss the appeal for want of prosecution to be taken first, but that the court refused. This is not borne out by the record of proceedings for that day: however that would have made no difference to the conclusion I shall reach below. What is material is that in its first ruling, the Court granted the defendant’s application for extension of rime to the date of hearing for the appellant to file, its brief. The brief had, in fact, been filed the previous day. Then the court heard the application to dismiss the appeal for want of prosecution, then dismissed it with N50.00 costs to the defendant. These two rulings form the bases of this appeal by the plaintiff (hereinafter to be referred to as the appellant). The defendant shall hereinafter be referred to as the respondent

The appellant filed its brief. The respondent filed no brief, but applied orally and was granted leave to argue the appeal without a brief. From appellant’s six grounds of appeal, learned counsel on its behalf formulated the following issues for determination, namely:

“Question 1

What is the proper procedure for taking and considering the two separate applications – the first, to dismiss an appeal for want of prosecution by reason of failure to file an Appellant’s Brief and the second for extension of time to file his brief

Question 2

When does the time for filing an appellant’s brief underOrder6 rule 1 of the Court of Appeal Rules 1981 (as amended in 1984) begin to run – and end

Question 3

Did the learned Justices of the Court of Appeal judicially exercise their discretion in granting the application of the applicant/appellant therein for an extension of time to file its brief and dismissing the prior application of the Respondent therein to dismiss the appeal for want of prosecution

Question 4

Was the Hon. Justice F.G. Awogu, Justice of the Court of Appeal right or justified to castigate the conduct or leading counsel fort the respondent in the Court of Appeal for-