Nigeria Telecommunications Ltd V. Mrs. Bibiana Sani (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOHAMMED LAWAL GARBA, J.C.A. (Delivering the Leading Judgment)

This appeal is from the decisions of the FCT High court in Suit No.FCT/HC/CV/848/01 contained in the ruling and judgment both delivered on the 19/3/03. In the ruling, the Appellant’s application for extension of time to file its statement of defence to the claims against it by the Respondent was refused and the judgment was entered in favour of the Respondent.

Being dissatisfied with the decisions, the Appellant filed a notice of appeal against them. For their brevity, I can afford to set out the grounds of appeal without their particulars and they are as follows:

“1. GROUND ONE

The learned trial Judge erred in law in entertaining the Plaintiffs claim against the Defendant when it was apparent that he lacked jurisdiction to adjudicate on the claims against the Defendant before him, which error has occasioned a miscarriage of justice.

2. GROUND 2

The judgment of the learned trial judge is against the weight of evidence.

3. GROUND 3

The judgment of the court is in want of fair hearing.”

From these grounds, the learned counsel who settled the Appellant’s brief of argument filed on the 2/7/04 in line with the Rules of the court, raised three (3) issues which he said arise for determination in the appeal. They are thus:-

“1. Whether by the provision of S.230(1)(s) of the 1979 Constitution (as amended by Decree 107 of 1993) now S.251(1)(R) of the 1999 Constitution of the Federal Republic of Nigeria, the trial Court has jurisdiction to hear the case (relates to ground 1).

2. Whether the trial court exercised its discretion judiciously and judicially in refusing the application of the Appellant for extension of time (ground 3).
3. Whether from the evidence before the trial court, the Respondent is entitled to judgment as contained in the statement of claim.”

There is no record that the Respondent though served with all the processes of the appeal including the Appellant’s brief of argument, had filed a brief of argument in the appeal. Consequent upon the failure by the Respondent to file a brief of argument within the period of time prescribed by the Rules of court, the court granted an application by the Appellant for the appeal to be heard on the Appellants brief of argument alone on the 8/6/10. On the 17/1/11 when the appeal was called up in Court for oral hearing, the Respondent was absent and not represented by Counsel who the record of service by the Bailiff of the Court, showed was duly served with the hearing notice of the appeal on the 10/1/11. There was no communication from the learned Counsel for the Respondent; G. N. Bako Esq. to the Court to excuse the absence from Court on that day and there was no record of any step taken by him to show that he intended to file a brief of argument for the Respondent in the appeal. Mr. Samuel Zibiri, Esq. leading Paul Golu, Esq., learned Counsel for the Appellant then adopted the Appellant’s brief of argument as the submissions in support of the appeal and urged us to allow it, set aside the decisions of the FCT High Court and strike out the suit of the Respondent for want of jurisdiction.

From the above account of the absence of a brief of argument from the Respondent to respond to or answer the submissions contained in the Appellant’s brief of argument in support of the appeal, the appeal is uncontested and unchallenged. The legal effect or consequence of failure by a party to a dispute or a Respondent in an appeal to react to the issues in dispute or file a Respondent’s brief in an appeal is that such a party or Respondent is deemed to have conceded and admitted the issues or the appeal. See:

UGBOAJA v. SOWEMIMO (2008) 10 MJSC. 105;

FBN v AKINYOSOYE (2005) 5 NWLR (918) 340,

ERAVWODOKE V. U.B.T.H.M.B. (1993) 2 NWLR (227) 590. However in an uncontested appeal such as the present one where the Respondent did not file a brief of argument and so deemed to have in law conceded or even admitted the issues canvassed by the Appellant, the latter is not automatically to succeed on such concession or and admission. The Appellant is to succeed on the strength of his own case not on the failure or option, by the Respondent not to challenge the appeal and the Court is still under a duty to consider whether the appeal is sustainable in law. This is the position of the law stated by the court in the case of JOHN HOLT VENTURES LTD V OPUTA(1996) 9 NWLR (470) 101 at 112 when it held that:-