Godwin Chime & Anor V. Nelson Ude & Ors (1996)

LAWGLOBAL HUB Lead Judgment Report

OGUNDARE, J.S.C.

The appellants, who are applicants in the application before us, being dissatisfied with the judgment of the Court of Appeal given on 18/1/93 appealed to this Court after obtaining the leave of the Court of Appeal so to do. The record of appeal was received in this Court on 8/12/93.

By the rules of this Court, they had ten weeks within which to file their briefs of argument, that is, the appellants should have filed their brief of argument on/or before 16/2/94. They did not do so neither did they apply for extension of time within which to do so. On 8th of March, 1995, this Court sitting in Chambers, suo motu dismissed the appeal for want of prosecution pursuant to Order 6 rule 3(2) of the rules of the court.

On 6th November, 1995 the appellants brought their present application seeking the following orders:-

“(a) to set aside its order of the 8th day of March, 1995, made in Chambers dismissing the applicants appeal and to restore the appeal in Court’s Cause List.

(b) On the appeal restored to enlarge the time prescribed by rules of court for filing the appellants brief subject to payment of the penalty for late filing.”

upon the following grounds:-

“1. The dismissal of the appellants appeal without any notification to them that the said order was going to be made was in infringement of their fundamental right to fair hearing and contrary to the principles for the administration of justice which rendered the dismissal null and void.

2. The said dismissal of the appellants appeal in Chambers which they confirmed the judgment of the court below in favour of the respondents offended the fundamental principle of justice, namely, awarding to a party in litigation that which he did not ask for, which rendered the same null and void and liable to be set aside by this Court which made it.
3. Order 6 rule 3(2) under which the order of dismissal was made is inconsistent with S. 33 of the Constitution and is to that extent null and void.
4. Order 6 rule 3(2) is inconsistent with Order 6 rule 9 as amended in 1991, and is by virtue of the said amendment impliedly repealed to the extent of the inconsistency.
5. The said Order 6 rule 3(2) coming immediately after the rule dealing with application for leave to appeal or extension of time to appeal or to ask for leave to appeal and before the rule dealing with preparation and filing of briefs of argument in appeals is inappropriate for failure to file brief within the prescribed period.
6. The rules of this Court as amended in 1991 having prescribed a penalty in Order 6 Rule 7 for late filing of briefs the said Order 6 rule 3(2) which preceded the rule providing for the said penalty cannot override the later rule as the law-maker could not have intended to provide double sanctions for the same default.”

Upon the application coming before us for hearing, the respondents were absent and were not represented by counsel. On being satisfied that their counsel was served, we proceeded to hear arguments from learned counsel to the applicants.

Mr. Ebue learned counsel moved the Court in terms of the motion and relied on the affidavit in support of the application and also on the brief of argument he annexed to the motion papers.

In the affidavit in support of the application sworn to by learned counsel for the appellants, Mr. Ebue deposed inter alia as follows:-

“3. That I did not file the appellants brief within ten weeks from the receipt of the copy of the record of proceedings transmitted to this Court and had not filed it by the 8th of March, 1995, when this Court dismissed my clients appeal in Chambers, for want of prosecution.

X X X X X

10. That as the appellant won in the trial Court but the decision was reversed by the Court of Appeal, I had, inspite of all I had been through, to take my time in preparing the appellants brief knowing that this Court is the Court of last resort in the land.
11. That I was lulled to a false sense of security by the provision of the rules of this Court for payment of N5 for everyday I was out of time in filing the appellants brief.
12. That the draft of the appellant brief was in its final stage of preparation when I received through the post the ruling of this Court dismissing my Clients appeal for want of prosecution.
13. That I verily believe that the dismissal of my clients appeal suo motu by the Court in Chambers was a breach of the fundamental rule of natural justice of hearing a party before an order is made against him and of the provisions of the Constitution and was not in accord with notable pronouncements of this Court in regard to Courts making an order against a party without giving him notice that the order was going to be made.
14. That I verily believe that this Court was influenced by its decisions in Chief Ogbu Vurum (sic) (1981) 4 SC 1 and other appeals which were made before the amendments to the rules of this Court made in October, 1991 vide G.N. No. 111 of 1991.
15. That I verily believe that the facts and circumstances of the said cases referred to in 14 supra are different from the facts and circumstances of the instant case in that in the said cases applications for dismissal for non-prosecution were made by the respondents in the presence of the appellants who had prior notice of the hearing date.
16. That I have prepared a brief of argument in respect of this application. The same is attached hereto and marked Exhibit A.
17. That I have also prepared the appellants brief in the substantive appeal which I shall file, paying any penalty required, the same day the instant application is granted and the appeal restored.”

Notwithstanding the averment in paragraph 17 above the appellants filed a brief on 6/12/95 at a time when the appeal had not been restored to the Court’s List. In the applicants brief which contains the arguments in support of this application, the following two questions are set down as calling for determination: