John Chukwuka & Ors. V. Ndubueze Gregory Ezulike (1986)

LawGlobal-Hub Lead Judgment Report

ANIAGOLU, J.S.C. 

A PRELIMINARY OBJECTION has been taken to the motion on notice of the Defendants who, in their application dated 25th August 1986, are seeking for an order of court granting them the following reliefs:

(i) pursuant to Section 31(4) of the Supreme Court Act for an order for extension of time within which to apply for leave to appeal to this court from the judgment of the Court of Appeal delivered herein on the 26th day of March, 1984;

(ii) pursuant to Section 213(3) of the Constitution of the Federal Republic of Nigeria, 1979, for an order for leave to appeal from the judgment aforementioned on questions other than questions of law alone;

(iii) pursuant to Order 31 rule (1) directing a departure from the requirements of paragraphs (a) and (b) of Order 2 rule 31(2) and of Order 6 rule 2(1)(c) of the Supreme Court Rules, 1985;

(iv) directing the Registrar of the Court of Appeal to correct the defective sentence on p.114 lines 30-31 of the Record of Appeal and

(v) for such further or other orders as this Honourable Court may deem fit to make:

The reasons given in the supporting affidavit, sworn to by one Rafiu Azeez-

litigation Clerk in the Chambers of Chief F. R. A. Williams for the Applicants failure to act within time are mainly, contained in paragraphs 6, 7 and 8 of the said affidavit, sworn to by the said Rafiu Azeez, which read as follows:

I am informed by Chief Rotimi Williams and I verily believe that he intended to process the appeal for hearing personally and to prepare the brief or any other relevant papers. I am further informed by Chief Williams and I verily believe that through oversight he did not take necessary steps. It was whilst checking through outstanding appeals before this Court shortly after returning from vacation this year that Chief Williams discovered that nothing has been done about this appeal.

7. I am also informed by Chief Rotimi Williams and I verily believe that upon perusing the Record of Appeal he discovered that although the grounds of appeal raised questions other than questions of law alone no leave to appeal had been sought for or obtained when the Notice of Appeal was filed.
8. To the best of my knowledge information and belief, the Appellants have at all times been anxious to prosecute their appeal and were not aware that there has been anything to be done by them which has been left undone.

The motion was first fixed to be heard in Chambers but it was later ordered to be heard in open Court in order that the Court might have the benefit of oral arguments of Counsel in deciding the legal issues raised in the papers filed.

The preliminary objection was to the effect that the Supreme Court having dismissed the appeal of the Appellants on 12th November. 1985, the Supreme Court was not competent to hear the Appeal a second time and therefore lacked the powers to hear the Appeal again. Therefore, argued Mr. Ezekwe for the Plaintiff, the application of the defendants/applicants asking for extension within which to apply for leave to appeal was an abuse of the process of the Court. The Court, he argued, was functus officio.

The argument of Chief Williams in answer to this preliminary objection ran thus:

The grounds of appeal in support of the Notice of Appeal dated 30th May 1984 filed by the defendants together with the Notice of Appeal were filed without leave of the Court of Appeal or of this Court as required by section 213(3) of the 1979 Constitution. They were invalid. He cited in support of that proposition the decisions of this Court in S. U. OJEME & Ors. v. MOMODU II & Ors. (1981) 3 S.C. 173 at 211 and HARRISON WELLI & Anor. v. CHARLES OKECHUKWU (1985) 2 NWLR 63 at 67. In dismissing Appellants appeal on 12th November 1985 the Supreme Court, he argued, lacked jurisdiction since there was no valid appeal before it. Where a determination is made by a Court without jurisdiction, he continued, it is not necessary to have to do anything about it since it was an act done without jurisdiction. He cited KOFI FORFIE v. SEIFAH (1958) A.C. 59; MACFOY v. U.A.C. LTD. (1962) A. C. 152 at 160. He therefore argued that he was entitled to bring the motion for extension of time as he did and to ignore the determination by the Supreme Court of 12th November 1985 given without jurisdiction.

MR. EZEKWE in reply, drew the Court’s attention to Order 2 Rule 30 and Order 8 Rule 16 of the Supreme Court Rules 1985.

In resolving this matter it is necessary to ascertain:

(a) Why this Court dismissed the appeal on 12th November 1985, and

(b) What was the order of the Court

As was pointed out in paragraphs 6 and 7 of the Applicants’ affidavit of 25th August 1986, Applicants Counsel

(i) Through oversight….did not take necessary steps and

(ii) no leave to appeal had been sought for or obtained.

The Court was therefore faced with not only a failure of the Applicants to take necessary steps to perfect their appeal, but also, a failure to seek leave of the Court. In the first one, the appeal was incompetent: in the second one, the grounds of appeal were also incompetent and an appeal based on them was not a valid appeal and the Court would not have jurisdiction having regard to several decisions of this Court, to entertain such an appeal.

In respect of the first one the Court could dismiss the Appeal; in respect of the second, the appeal could be struck out. There was, therefore, a mixture of reasons, one for which the appeal could be dismissed and the other for which the purported appeal could be struck out. It therefore depended on which reason the Court based its ruling. As it turned out after hearing Counsel for the parties, the Court dismissed the appeal implying that that Order was based upon the failure of the Applicants to take necessary steps in the appeal.

The signed drawn up Order of the Court reads:

UPON READING the Record of Appeal herein and there being no briefs filed and parties absent and unrepresented:

IT IS ORDERED that this appeal be dismissed for want of prosecution pursuant to Order 6 Rule 9(1) of the Supreme Court Rules 1985 with no order as to costs.

In the above:

(a) briefs were not filed;

(b) parties and Counsel were absent; and. therefore.

(c) there was a want of prosecution of the appeal.

Under the Rules the appeal could be dismissed for failure to file brief; or for non-compliance with the conditions of appeal; or for want of prosecution.

(See: Order 6 Rule 9(1), Order 8 Rule 8(1) and Order 8 Rules 8(3) respectively).

BIRKETT v. JAMES (1978) A.C. 297 has given detailed analysis of principles for a dismissal of an action for want of prosecution. It is clear from the rightly entitled to dismiss the appeal.

There is one other point. Obviously mindful of the old doctrine: interest reipublicae ut sit finis litium’, the Supreme Court Rules have provided, in Order 8 Rule 16, that: The Court shall not review any judgment once given and delivered by it save to correct any clerical mistake or some error arising from any accidental slip or omission or to vary the judgment or order so as to give effect to its meaning or intention. A judgment or order shall not be varied when it correctly represents what the Court decided nor shall the operative and substantive part of it be varied and a different form substituted.

The above Order 8 Rule 16 has identical wordings with Order 7 Rule of the 1977 Rules of the Supreme Court under which CHIEF IRO OGBU and Ors. v. CHIFF OGBURU URUM And Anor. (198l) 4 S.C. 1 was decided. In IRO OGBU (supra) this Court (per Obaseki. J.S.C.) at p.9 stated as follows:

I am aware that since the order of dismissal was delivered by the court, the judgment has been drawn up, signed and sealed.

Even if it were not drawn up, signed and sealed, the provision of Order 7 rule 30 deprives this Court of any jurisdiction to review the judgment of dismissal for want of prosecution. The inherent jurisdiction of this Court under section 6(6)(a) of the Constitution cannot be invoked to save the situation.

This Court is therefore unable and incompetent to entertain this application to direct that the appeal be re-entered. Sympathy cannot override the clear provisions of our Rules and it would be in the interest of all if parties and their counsel endeavour to keep to the times set out in the Rules for the doing of any act or taking of any step.IRO OGBU (supra) was approved and followed in SODEINDE BROTHERS (NIG.) LTD v. A. C. B. LTD (1982) 6 S. C. 137. But IRO OGBU (supra) was still being pursued angrily by some Counsel with the drawn dagger of an assassin. The Court, in a final bid to settle the issue, in T. A. YONWUREN v. MODERN SIGNS (NIG.) LTD; JOHN ENEMOH & OPA v. NWANNOLI NWAKONOBI (1985) 2 S.C. 86 (Consolidated) empanelled a full Court which returned the same verdict that this court has no jurisdiction. inherent or pursuant to the 1977 Supreme Court Rules, to reenter an appeal dismissed under Order 9 Rule 7 of the 1977 Rules – a fortiori to re-enter an appeal dismissed under Orders Rule 16 of the 1985 Rules.

Chief Williams ingenious argument in the present matter was another way subtle and penetrating of resurrecting the old tirade against IRO OGBU (supra) and YONWUREN (supra). But I should think that the time has come when the tired bones of IRO OGBU (supra) which underwent ceremonial interment on 3rd April 1981, should be allowed to rest in perfect peace, within their congenial surroundings.

I would therefore hold, and hereby hold, that this Court was functus officio after its order of 11th November 1985 dismissing the appeal. The preliminary objection raised by Mr. Ezekwe, of Counsel, was well founded, and consequently the motion of the Applicants dated 25th August 1986 is hereby dismissed with N25.00 costs to the Respondent.

UWAIS, J.S.C.: I have read in draft the ruling read by my learned brother Aniagolu, J.S.C. and I entirely agree that the preliminary objection raised, by Chief Ezekwe, learned Counsel for the respondent is well founded and that the applicants motion is nil abuse of the process of the Court and that it should be dismissed.

By Order 6 rule 9 subrule (1) of the Supreme Court Rules, 1985, if an appellant fails to file his brief within time or within time enlarged by the Court, the appeal may be dismissed for want of prosecution. Such a dismissal, where the appeal lacks merit is final. The exact provisions are as follows:

(1) If an appellant fails to file his Brief within the time provided for in Rule 5 above, or within the time as extended by the Court the respondent may apply to the Court for the appeal to be dismissed for want of prosecution.

If the respondent fails to file his Brief, he will not be heard in oral argument except by leave of the Court. A dismissal of an appeal under this Rule whether on the application of the respondent or not, where the appellant fails to file his brief shall amount to a dismissal on the merit.

Provided that such dismissal on the merit shall be only where the Court is satisfied, prima facie, on the papers before it that the appeal has no merit (emphasis mine)

Now the applicants had earlier brought an appeal before this Court. They failed to file brief within the prescribed period and the appeal was dismissed on the 12th November, 1985, pursuant to Order 6 rule 9 Sub-rule (1) quoted above. It has since been decided by this Court (even under the provisions of Order 9 rule 7 of the Supreme Court Rules, 1977, which were less stringent than the present Order 6 rule 9 (1)) that a dismissal for want of prosecution following the failure of the appellant to file a brief is final and the appeal so dismissed cannot be revived – Chief Iro Ogbu Ogbu & Ors. v. Chief Ogburu Urum & Anor (1981) 4 S.C. 1; Sodeinde Brothers (Nig.) Limited v. African Continental Bank (1982) 6 SC 137 and T. A. Yonwuren v. Modern Signs (Nig.) Limited (1985) 1 NWLR 245.

In his reply, Chief Williams, learned Senior Advocate for the applicants, has not directly answered the objection raised. Instead he argued that the dismissal of the appeal on the 12th November, 1985 was wrong and that the appropriate order that should have been made by this Court is an order striking out the appeal. His reason for so arguing being that looking at the grounds of the appeal filed, the appeal was incompetent since the grounds involved questions of fact or mixed law and fact and that no leave was obtained in accordance with the provisions of section 213 subsection (3) of the 1979 Constitution. He argued further that where no such leave was obtained, the Court lacked jurisdiction and appeal should have been struck out but not dismissed. He relied in support of the submission of the following decisions of this Court Ojemen v. Chief Momodu II & Ors. (1983) 1 S.C.N.L.R. 188 at pp.203-205 and Welli & Anor v. Charles Okechukwu (1985) 2 NWLR 63 at p 67 and the Privy Council decisions in Kofi Fortie v. Seifah. (1958) A.C. 59 at p. 67 and McFoy v. U. A. C Limited. (1962) A.C. l52 at p.100.

In effect Chief Williams, is asking us to review the decision of 12th November, 1985 which dismissed the appeal; and if we agree to do so we should take the appeal; as struck-out, in which case we should be able to grant his application for, inter alia, leave to appeal out of time, This, if accepted, is indeed a circuitous way to go about dealing with the application. There is no appeal in this Court against the decision of 12th November, 1985, and it is obvious that there cannot be such an appeal since no jurisdiction has been conferred upon this Court to sit on appeal over its own decision, no matter how manifestly wrong that decision may be see Paul Cardoso v. John Bankole Daniel and 11 Ors. (1986) 2 NWLR 1 at p.28 where I observed as follows:

Furthermore this Court cannot sit on appeal over its own judgment. Its appellate jurisdiction is limited, as per Section 213 subsection (2) of the Constitution of the Federal Republic of Nigeria, 1979, to hearing appeal from the Court of Appeal only and no more, No matter how defective ex facie the reasons for judgment are. I do not see how a different panel from the original can hold the reasons given on 12th December, 1975, void and of no effect

In addition, by Order 8 rule 16 of the Supreme Court Rules. 1985 –

The Court shall not review any judgment once given and delivered by it save to correct any clerical mistake or some error arising from any accidental slip or omission, or to vary the judgment or order so as to give effect to its meaning or intention. A judgment or order shall not be varied when it correctly represents what the Court decided nor shall the operative and substantial part of it be varied and a different form substituted.

Consequently, it is clear that we cannot, by the submissions made by Chief Williams, hold that the decision of this Court of 12th November, 1985 is a nullity by virtue of the appeal itself being incompetent and this Court lacking in jurisdiction. However, this is not to say that the Court cannot in a subsequent and different case depart from its decision in a previous case, if the principle laid down for such departure apply Akinsanya v. U.B.A. Limited (1986) 4 NWLR 273 at p. 323. But that is not the same as setting-aside or declaring a nullity the decision in the previous case.

For the foregoing reasons and those contained in the ruling read by my learned brother, Aniagolu, JSC. I too will hold that we are functus officio grant the application. Accordingly, it is dismissed with N25.00 costs to the respondent.

KAZEEM, J.S.C.: I have had the privilege of reading in draft, the ruling just read by my learned brother Aniagolu, J.S.C., and I entirely agree with his reasons and conclusions. However, these are my own views on the matter. This is an application by the Appellants seeking the following prayers namely:

(i) an order for extension of time within which to apply for leave to appeal to this Court from the judgment of the Court of Appeal delivered on 26th March, 1984;

(ii) an order for leave to appeal from the judgment aforementioned on questions other than questions of law alone;

(iii) directing a departure from the requirements of certain rules of this Court; and

(iv) directing the Registrar of the Court of Appeal to correct the defective sentence on page 116 lines 30 to 31 of the Record of Appeal.

The application was made ostensibly to regularize the original Notice of Appeal filed in the matter on 30th May, 1984 which was said to contain grounds of appeal on questions other than question of law for which leave of this Court or the Court below was not previously obtained. In that case the appeal was said to be invalid. But as a matter of fact, the appeal had previously come before this court as Appeal No. SC.18/1985 on 12th November, 1985 when no brief was filed by the Appellants and the time within which to do so had already expired. As a result of that lapse, the appeal was dismissed on that day for want to prosecution pursuant to Order 6 rule 9(1) of the Supreme Court Rules, 1977.

Precisely for the above reason, the Respondent filed a Notice of preliminary objection to the hearing of this new application by the Appellants. In support of that application, Mr. Ezekwe learned Counsel for the Respondents cited two previous decisions of this Court namely; Chief Iro Ogbu & Ors. v. Chief Ogburu Urum (1981) 4 S.C. 1 and Yonwuren v. Modern Signs Ors. (1985) 2 S.C. 86; and submitted that once the appeal had previously been dismissed for want of prosecution under Order 9 rule 7 of the 1977 Supreme Court Rules, it cannot be revived again; and there was nothing before the court to which the application for extension of time within which to seek leave can be attached. Learned Counsel also referred us to the provisions of Order 8 rule 16 of the 1985 Rules which forbid the review of any judgment of this Court unless to correct clerical mistakes or slips.

In reply, Chief F. R. A. Williams, S.A.N. learned Counsel for the Appellants referred to the original Notice of Appeal filed on 30th May, 1984 and said that it contained grounds of mixed law and facts and fact simpliciter. He then submitted that in so far as leave of this court or the court below was not obtained before filing it, the appeal was therefore a nullity. He submitted further that in such cases, this court always held that it had no jurisdiction to entertain the appeal. Hence he urged the court to pronounce that appeal a nullity. The decisions in Ojeme v. Momodu (1983) 1 SCNLR 192 at page 203 – 205: and Welli v. Okechukwu (1985) 2 NWLR 63 at p.67 were cited in support of those submissions. It was further argued that although the appeal was dismissed for failure to file a brief, none could have been filed because there was no appeal before the court: and the Court could not have dismissed an appeal which it had no jurisdiction to entertain. Relying on the decisions of the Privy Council in Forfie v. Seifar (1958) A.C. 59 at p.62, and McFoy v. U.A.C. (1962) A. C. at 152 p.160, learned counsel submitted that a Court has an inherent jurisdiction to set aside its judgment which it gave without jurisdiction; and he urged us to set aside the order made on 12th November, 1985, dismissing the appeal.

I think that it is relevant at this stage to note that there is no substantive application before this court to set aside the order of dismissal of the appeal for want of prosecution made on 12th November, 1985. The submission now made urging us to do so only emanates from a reply to the preliminary objection taken by the Respondents to the hearing of the application for extension of time within which to apply for leave to appeal. Howbeit, it is not disputed that in an appropriate case based on an application before this court, it has an inherent jurisdiction to set aside a judgment which is a nullity: See Obimanure v. Erinosho (1966) 1 All NI.R 250: and Skenconsult (Nig.) Ltd. & Anor. v. Godwin S. Ukey (1981) 1 S.C. 6 at pages 25 – 27. But it is a different matter whether the judgment of dismissal of 12th November, 1985 or the appeal purportedly filed on 10th May, 1984 was a nullity or whether a judgment dismissing an appeal for want of prosecution which was given on 12th November, 1985, can now be set aside.

Firstly in my view, the judgment of 12th November, 1985 cannot by any stretch of imagination be regarded as a nullity in that it was given in pursuance of the power conferred on this court under Order 6 rule 9 (1) of the 1985 Supreme Court Rules. Moreover, ground 3 in the Original Notice of Appeal filed by the Appellants on 30th May, 1984 was couched as a ground of error of law with the particulars of the error given therein. The question as to whether or not that ground was in fact a proper ground of law could not have been determined until the matter was brought before the court attention for consideration. That of course was never done on 12th November, 1985 when the appeal was dismissed for want of prosecution for failure to file a brief by the Appellants. In so far as that was not done at that time, the appeal in my view was prima facie competent, and the contention of learned Counsel for the Appellants that it was a nullity seems to me untenable.

Secondly the issue as to whether a judgment of dismissal of appeal under Order 6 rule 9(1) of the 1985 Rules for want of prosecution for failure to file a brief can be set aside, and the appeal relisted for hearing, has been fully considered and decided in the cases of Iro Ogbu & Ors. v. Chief Ogburu Urum (1981) 4S.C. 1 and the Consolidated Cases of Yonwuren v. Modern Signs & Ors. (1985) 2 S.C. 86. In those cases, this Court had firmly held that a judgment of dismissal for want of prosecution cannot later be set aside; nor can the appeal be relisted for hearing.

In 1981, the matter was first considered and determined by a full Court in Iro Ogbu Case; but it was again raised in 1985 in Yonwuren Case when this Court was urged to depart from its decision in Iro Ogbu’s Case. And after considering all the submissions made by learned Counsel in the three applications (one of which was brought by Chief Williams) I came to the conclusion in the lead Ruling that no inherent jurisdiction could be exercised to revive the appeals that were dismissed for want of prosecution: and that no new facts had emerged from the submissions of learned Counsel for the applicants in the consolidated applications to show that the decision in Iro Ogbu’s Case was either wrongly decided, or that it was rendered per incuriam.

It is however relevant to note that although the decision in Yonwuren’s Case was made under Order 9 rule 7 of the 1977 Rules, the provisions of that Rule are in pari materia with those Of Order 6 rule 9(1) of the 1985 Rules under which the appeal in this matter was dismissed for want of prosecution.

The present submissions by Chief Williams seems to me to be a subtle attempt to re open the matter and in effect to urge this Court to depart from the decision in Yonwuren’s Case which received the concurrence of a full court. In the circumstances, I cannot find anything in the submissions to make this Court depart from its decision in Yonwuren’s Case.

Hence for the above reasons and for the further reasons contained in the lead Ruling of my learned brother Aniagolu, J.S.C. with which I entirely agree, the preliminary objection is hereby upheld and the substantive application for extension of time within which to seek leave is mis-conceived. Accordingly, I will also dismiss the application with N25.00 costs to the Respondents.

KAWU, J.S.C.: I had read in draft the lead Ruling of my learned brother Aniagolu, JSC which has just been delivered. I entirely agree with the Ruling and will respectfully adopt it as mine. The provisions of Order 8 Rule 16 of the Supreme Court Rules 1985 make it absolutely clear that this Court became functus officio after its order of 12th November, 1985 dismissing the appeal. In my view there is merit in the preliminary objection raised by Mr. Ezekwe and it is hereby upheld. The applicant’s motion dated 25th August, 1986 is hereby dismissed with N25.00 costs to the Respondent.

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SC.173/1986