Kraus Thompson Organisation V. National Institute For Policy And Strategic Studies (2004)

LAWGLOBAL HUB Lead Judgment Report

TOBI, J.S.C.

The matter in the High Court had to do with transaction in foreign currency in respect of outstanding payments for the supply of books, journals and/or periodicals. On 13th May, 1996, judgment was given in favour of the appellant by the trial Judge. The respondent filed an application for an order inter alia, to set aside the judgment of 13th May, 1996 on the ground that the court lacked jurisdiction to entertain the claim. The application was dismissed.

Dissatisfied with the ruling of the trial Judge, the respondent went to the Court of Appeal. As the respondent failed to file its brief of argument within time, the appellant filed an application to dismiss or strike out the appeal for want of diligent prosecution. The appeal was struck out. The respondent filed an application to re-list the appeal struck out on the ground that at the time the appeal was struck out, its counsel was in the Court of Appeal registry filing its brief and an application for extension of time to file same. The Court of Appeal duly re-listed the appeal. That is the cause of this appeal.

Briefs were filed and duly exchanged. Appellant formulated two issues for determination:

“i. Whether the Court of Appeal has jurisdiction to re-list for hearing on its merit an appeal struck out on the appellant, as respondent’s application for want of diligent prosecution arising from failure to file its brief within the time allowed by the rules.

ii. Whether failure by the appellant to file a counter affidavit to the respondent’s application to re-list the appeal struck out was sufficient to accept as unchallenged the reason for failure to file the brief timeously and to ground the re-listing of the appeal struck out.”

The two issues formulated by the respondent are virtually the same as those formulated by the appellant. I expected the respondent to therefore adopt those formulated by the appellant. A little change in language towards the end of issue No.2 by the respondent cannot make any reasonable difference. I will therefore take it that the parties in this appeal are in agreement in respect of the two issues.

Taking issue No.1, learned counsel for the appellant, Mr. J. Odubela, called in aid the case of Attorney-General of Lagos State v. Dosunmu (1989) 3 NWLR (Pt. 111) 552, 557 – 558 and Government of Kwara State v. Gafar (1997) 7 NWLR (Pt. 511) 51 at 53 to 54 and submitted that the Court of Appeal lacked jurisdiction to re-list the appeal. Relying on Order 6 rule 10 of the Court of Appeal Rules, learned counsel submitted that the only remedy available as consequence for failure to file brief within time under the rule, is one of dismissal of the appeal. On the effect of dismissal of an appeal, learned counsel cited Eronini v. Iheuko (1989) 2 NWLR (Pt. 101) 46 at 50; Fadare v. Odeyale (1995) 5 NWLR (Pt. 395) 375; Babayagi v. Bida (1998) 2 NWLR (Pt.538) 367 at 369 and Akunjinwa v. Nwaonwna (1998) 13 NWLR (Pt. 583) 632.

On issue No.2, learned counsel submitted that failure on the part of the appellant to file a counter-affidavit to the respondent’s application to re-list the appeal struck out is not sufficient to accept as unchallenged the reason for failure to file the brief timeously and to ground the re-listing of the appeal struck out. He cited Ajomale v. Yadaut (No. 2) (1991) 5 NWLR (Pt. 191) 266 at 266 and 270; Badejo v. Federal Minister of Education (1996) 8 NWLR (Pt. 464) 15 at 20 and Folorunso v. Shaloub (1994) 3 NWLR (Pt. 333) 413 at 417. He urged the court to allow the appeal.

Learned counsel for the respondent, Mr. Jide Olasite, submitted that Order 7 rule 3 of the Court of Appeal Rules confers wide powers/jurisdiction on the court to ameliorate non-compliance with any of H its rules, such as Order 6 rule 2 or Order 6 rule 10. He cited Ojonye v. Ibrahim (2002) 1 NWLR (Pt. 747) 166 at 178; Nneji v. Chief Chuhwu (1988) 3 NWLR (Pt. 81) 184; Ayinla v. Adigun (1986) 3 NWLR (Pt. 30) 511 and Surakatu v. Nigeria Housing Development Society Ltd. (1981) 4 SC 26 (1981) NSCC 92 at 96. He also cited Halsbury’s Laws of England, Third Edition, Vol. 9, page 249 on the consequence of striking out a suit.

On issue No.2, learned counsel submitted that by the arguments at page 9, paragraphs 5.02 and 5.03, the appellant has conceded the issue of filing a counter-affidavit. Taking the merits of the argument, learned counsel submitted that since there was no misdirection by the Court of Appeal in making the finding that counsel for the respondent was in the registry at the material time. this court should hold that the Court of Appeal was right when it came to the conclusion that the appellant did not file a counter-affidavit to challenge the evidence of the whereabouts of counsel at the material time. He urged the court to dismiss the appeal.

Order 6 rule 10 of the Court Appeal Rules reads in part:

“Where an appellant fails to file his brief within the time provided for in rule 2 of this Order, or within the period as extended by the court the respondent may apply to the court for the appeal to be dismissed for want of prosecution … ”

It is clear from the above that failure on the part of an appellant to file brief within time will be visited with the sanction of dismissal of the appeal on the application of the respondent. In Ogbu v. Urum (1981) 4 SC 1, the Supreme Court held that the failure to file briefs by the appellants within the extended time can be likened to an abandonment of their appeal particularly when such failure is coupled with non-appearance in court without excuse at the time of hearing.