Egevafo Ekpeto & Ors V. Ikono Wanogho & Ors (2001)

LawGlobal-Hub Lead Judgment Report

AKAAHS, J.C.A. 

The applicants brought this motion pursuant to section 16 Court of Appeal Act; section 33 of the Constitution of the Federal Republic of Nigeria 1999 and the inherent jurisdiction of this Honourable Court praying for the following relief namely:-

“An order restoring/relisting this appeal No. CA/B/109/99 struck out/dismissed on 10/2/2000 for lack of diligent prosecution.”

The grounds upon which the application has been brought are:

1. The order was made in the absence of the appellants.
2. As at the time the order was pronounced the appellants’ brief of argument and motion for extension of time had been filed.

The motion is supported by a 21-paragraph affidavit and 5 annexures marked Exhibits A, B, C, D and E. The application was opposed. To this end, Mr. Peter Oniovwiona Wanogho, the principal partner in the Law firm of P. O. Wanogho and Associates deposed to a 16-paragraph counter-affidavit. This prompted Mr. A. O. Giwa learned counsel for the applicants to depose to another 7 paragraphs reply to the Counter-affidavit. Paragraphs 4, 5a, 5b, 6a, 6b, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18 and 19 of the affidavit in support contain the following averments:-

“4 That on 10/2/2000, I got to the Court of Appeal Benin, before the Court sat.

5(a) That I wrote my name on the attendance register for members of the bar.

5(b) Indeed, I wrote it twice because I was appearing in two matters that day i.e. this appeal listed as No.4 and CA/B/247/98 which was listed as No. 13. A copy of the register of the court on which Counsel were requested to put down their names is annexed herewith and marked Exhibit “A”.

6. That thereafter, I went to the Registry of the court within the precincts of the Court and delivered two processes to the Assistant Chief Registrar of the court in charge of filing processes for filling i.e.

(a) Motion in this case for extension of time within which to file the appellants brief and to deem the brief attached as duly filed (15 copies).

(b) Twenty-one copies of the brief of argument itself.

7. The Assistant Chief Registrar, Mr. A. K. Lawal, took the processes from me and initiated them well before the Court started to sit.
8. That thereafter I carried the processes to the cashier and paid for them. The front pages of the motion is annexed herewith as Exhibit “B” and the brief as Exhibit “C” while the receipt is Exhibit “D”.
9. That while the cashier was endorsing the processes. I came back to the open court. The court had still not sat. I looked out for Counsel for the respondent Mr. P. O. Wanogho but he was outside the court room and standing by the car park.
10. That I went to the car park and inform Mr. Wanogho who is also a member of the respondent family, that I was filing a motion for extension of time and the brief and I asked him what to do in the circumstance with his motion to dismiss the appeal for want of diligent prosecution. He informed me that he would ask for an adjournment to enable him study whatever I had filed. At this point, court was announced to our hearing and it convened.
11. I then left for the cashier’s cubicle/office and collected the endorsed copies to Mr. Lawal who signed same and gave five copies to the messenger to take to the open court.
12. He gave me two copies after I signed that I was going to serve. The messenger took the five copies to the court in the company of one of the appellants, Chief Joshua E. Ozero though not a named appellant but one of those represented.
13. That I endorsed the original which was with the Registrar to the effect that I would serve the respondents, thereafter, I noticed that the cashier omitted to endorse one of the two I had. Thinking that my case being No.4 on the cause list, it would not have reached my turn so soon, I stopped by the cashier’s desk for her to endorse the omitted ones.
14. Meanwhile, the messenger had long sent the five copies to the court room and handed them over to Alhaji Bako and the Judges support staff/clerks.
15. That I then rushed into the court myself. At the stage I got into the court, I met that the court was already writing the ruling dismissing the appeal for failing to file the brief.
16. That I immediately enquired from Mr. Wanogho (Counsel for the respondent), what transpired in my absence and he told me the case was called and that he informed the court that I was filing papers in the Registry. He did not tell me then that he had moved his motion to dismiss the appeal. It was later at Oleh High Court he told me that when he told the court that I was filling papers in the registry, the court asked him if he was also appearing for my clients, the appellants. He was left with no option according to him but to move his motion briefly in terms of the motion paper.
17. That I apologised to the court profusely for coming late into court and sought to explain that I had already filed a motion for extension of time and the appellants’ brief.
18. That thereafter, I waited till the court rose and applied for a record of proceedings and the order which are annexed herewith and marked as Exhibit E.
19. That I filed the motion and the brief before the court sat and before the case was called and before the order was written and/or read out and pronounced, but the brief and motion were not in their Lordship’ files”.

In opposing the application the respondents’ Counsel averred in paragraphs 5, 6(a), 6(b), 7, 8, 9, 10, 11, 12 and 13 of the 16 paragraph counter-affidavit as follows:-

“5. That in further answer to paragraph 10 of the supporting affidavit that is vehemently denied, I hereby state that on 10/2/2000, it was the motion to dismiss the appeal dated 29/6/99 but filed on 30/6/99 that was listed for hearing in the cause list of this honourable court. It is true that the deponent to the affidavit met me and informed me that he intended to file a motion for extension of time within which to file the brief in this appeal, within the precinct of this Honourable Court before the court sat on 10/2/2000 and he, deponent informed me that he would ask for adjournment. There was no time, I informed the deponent that I will apply for adjournment when my motion was listed for hearing without a counter-affidavit or motion for extension of time.

6(a) That in further reply to paragraph 16 of the affidavit in support of the motion which is vehemently denied, I hereby state that as at 10.47 a.m. on 10/2/2000 when neither the deponent nor his clients were present in court, this honourable court allowed me to move the motion filed on 30/6/2000. As at the time the deponent entered the court hall, this honourable court had already completed writing the ruling and was only considering the issue of cost. The deponent neither showed the motion he purportedly filed on 10/2/2000 that was not in the court file to the court nor to myself. I did not at any time discuss with the deponent when the proceedings were on in court on 10/2/2000 and/or thereafter.

(b) That after on 10/2/2000, at the premises of the Oleh High Court, the deponent who is senior to me at the bar met me and was bullying me that why should I move my motion on 10/2/2000 without telling the Court that he was around but I told the deponent that the court allowed me to move the motion since I cannot represent my clients and the deponent’s clients in one suit.

7. That in further answer to paragraph 17 of the affidavit in support of the motion, I hereby state that the deponent did not show any motion to this honourable court before this honourable court delivered its ruling of 10/2/2000. The deponent only explained to court that he was in the court registry filing process after the court had delivered its ruling of 10/2/2000
8. That in further answer to paragraph 19 of the supporting affidavit that is denied, I hereby state that the deponent did not file any motion before the court sat on 10/2/2000. The deponent was in the registry filing the motion as at the time the court was sitting hence the deponent was not in court.
9. That in further answer to paragraphs 20 and 21 of the supporting affidavit, I hereby state that there is no evidence before the court on 10/2/2000 or thereafter to show that the surviving 3rd appellant was ill any time. The application is brought in bad faith.
10. That the appellants/applicants have never been diligent in pursuing their appeal. The judgment on appeal was delivered on 7/6/94 and the applicant did nothing to transmit the records of appeal from the lower court to this honourable court until March, 1999 (a period of five(5) years).
11. That after the transmission of the records of appeal from the lower court to this honourable court the applicants did nothing after the expiration of the statutory period allowed the applicants by Rules of this honourable court within which to file the appellant’s brief of argument. That on 30/6/99, the respondents filed a motion to dismiss the suit.
12. That on 17/8/99, the applicants filed a motion asking for three (3) reliefs including extension of time within which to “file the appellants brief in line with amended grounds of appeal”. The motion that was originally fixed for 27/10/99 was granted on 25/11/99 and the motion filed on 30/6/99 to strike out the appeal was adjourned to 10/2/2000 for hearing should the applicants fail to file their brief.
13. That between 25/11/99 and 10/2/2000 in further demonstration of the applicants’ lack of diligence in pursuing the appeal, the applicants did not only fail to file their appeal but waited till 10/2/2000 to file another motion for extension of time long after the time granted on 25/11/99 had again expired”.

As I stated earlier, this counter-affidavit prompted applicants’ Counsel to depose to a further 7 paragraphs affidavit which he headed “reply to counter affidavit” in which he stated that he had already filed the brief and a motion but the court ignored him and proceeded to dismiss his appeal.

In arguing the application, learned Counsel for the applicants Mr. Giwa submitted that even though the appeal was dismissed based on Order 6 rule 10 Court of Appeal Rules, it contemplates the principle of fair hearing. He conceded that he was not in court when Counsel for the respondents applied to the court to dismiss the appeal under Order 6 rule 10 but contended that the brief of argument and the motion for extension of time had been filed in the registry of the court at 10.00am on 10/2/2000 before the ruling was delivered. He also conceded in his oral submission that the motion and the brief were not in the Court’s file on 10/2/2000 at the time the court pronounced the ruling.

He however, cited Jideonwo v. Chukwuma (2000) 1 NWLR (Pt.641) 397 at 405; and Ekiyor v. Bomor (1997) 9 NWLR (Pt.519) 1 at 11 & 15 to urge us to grant the application.

Mr. Wanogho, learned Counsel for the respondents opposed the application and submitted that the application is frivolous and has no basis in law and therefore should be dismissed. He placed reliance on the counter-affidavit and contended that this court has no jurisdiction to revive and/or relist an appeal dismissed under Order 6 rule 10 citing Babayagi v. Bida (1998) 2 NWLR (Pt.538) 367 at 373; Akujinwa v. Nwaonuma (1998) 13 NWLR (Pt.583) 632 and Ichado v. Apeh (1992) 8 NWLR (Pt.260) 506 at 511 – 512 to buttress his argument.

The legal position is that an appeal dismissed under Order 6 rule 10 Court of Appeal rules 1981 as amended in 1984 cannot be revived or relisted by the Court of Appeal as it is rendered functus officio. See: Olowu v. Abolore (1993) 5 NWLR (Pt.293) 255; Babayagi v. Bida (1998) (supra); Akujinwa v. Nwaonuwa (supra). See also the decision of this court in U.B.A. Plc. v. Ajileye (1999) 13 NWLR (Pt.633) 116 and Jideonwo v. Chukwuma (supra). In U.B.A. Plc. v. Ajileye (supra) at page 124, this court held following the view of Karibi- Whyte, JSC in Olowu v. Abolore (supra) that “it is however doubtful if this court can exercise the power to set aside the order of dismissal of the appeal even if the order was made in error”.

In Olowu v. Abolore (supra) Karibi-Whyte, JSC had stated at page 270:-

“Stricto sensu an appellate court does not exercise any jurisdiction other than that conferred by statute. It does not exercise any inherent powers other than those of courts of record. The exercise of appellate jurisdiction is statutory. In this case, it is limited to that prescribed by the Court of Appeal Act, 1976 and Court of Appeal Rules, 1981 as amended in 1984.”

The reliance which learned Counsel for the applicants placed on Jideonwo v. Chukwuman (supra) and Ekiyor v. Bomor (supra) to urge us to grant the application to restore or relist the appeal are of no assistance. Ba’aba, JCA held in Jideonwo v. Chukwuman relying on the dictum of Obaseki, JSC in Obiora v. Osele (1989) 1 NWLR (pt.97) 279 which Karibi-Whyte, JSC echoed in Olowu v. Abolore (supra) held that this court which is bound by the decision of the Supreme Court cannot vary its decision to relist an appeal which has been dismissed by this court. Also in Ekiyor v. Bomor (supra), the Supreme Court did not make a pronouncement that the Court of Appeal could set aside its order dismissing the appeal where there is a breach of the rule of fair hearing, What the Supreme Court decided is that there was a breach of the rule of natural justice audi alteram partem when the plaintiff’s motion to dismiss defendant’s appeal was granted without considering the counter-affidavit which had been brought to the notice of the court and this led to a miscarriage of justice. Where such a situation occurs, it will lead to setting aside of the order of dismissal by the appellate court. To my mind the court which will exercise jurisdiction to set aside the order of dismissal of the appeal is not the Court of Appeal but the Supreme Court.

I deem it necessary to draw a distinction between an appeal dismissed under Order 3 rule 20(1) Court of Appeal Rules for non-compliance with conditions of appeal and an appeal dismissed under Order 6 rule 10 for want of diligent prosecution of the appeal. If the appeal is dismissed under Order 3 rule 20(1), the appellant may apply by notice of motion to have the appeal restored. Order 3 rule 20(1) & (4) provides:-

“(1) If the appellant has not complied with any of the requirements of rules 10 and 11 of this Order, the Registrar of the court below shall certify such fact to the court, which shall thereupon order that the appeal be dismissed either with or without costs, and shall cause the appellant and the respondent to be notified of the terms of the order.

(4) An appellant whose appeal has been dismissed under this rule may apply by notice of motion that his appeal be restored and any such application may be made to the court which may in its discretion for good and sufficient cause order that such appeal be restored upon such terms as it may think fit.”

Thus, a dismissal of an appeal under Order 3 rule 20(1) is tantamount to striking out of the appeal which can be restored but where the appeal is dismissed under Order 6 rule 10, the court becomes functus officio and the dismissal order can be set aside only by the Supreme Court. Consequently this court has no power to restore or relist the appeal which was dismissed on 10/2/2000 and the application is hereby struck out.

I find it necessary to comment on the reply to the counter-affidavit. It is most unsavory. Even if this court ignored Counsel when he wanted to arrest the ruling dismissing the appeal from being delivered, it is not in good taste to begin to name individual Justices and the role they played in the ruling.

If the standard of practice is to be enhanced, Counsel should not be encouraged to be sloppy in filing of processes. It is to be observed that learned Counsel for the appellants was heard on 25/11/99 and his motion asking for extension of time to file the appellant’s brief was granted. Before this time, the respondent had filed his application to dismiss the appeal dated 30/6/99. This motion was kept pending when time was extended for the appellants’ Counsel to file his brief was granted.

I leave the issue of fair hearing of this application to be determined by the Supreme Court at the appropriate time. Suffice it to say that this court lacks jurisdiction to restore or relist this appeal which was dismissed under Order 6 rule 10 Court of Appeal Rules. I award N2000 as costs against the applicants/appellants in favour of the respondents.

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Other Citations: (2001)LCN/0947(CA)