Olajide Olaore & Ors. V. Titus Adigun Oke (1987)

LawGlobal-Hub Lead Judgment Report

CRAIG, J.S.C. 

On the 12th of October 1987, after hearing oral arguments from learned Counsel the court allowed this appeal and adjourned till today 4th December 1987 to give reasons for the judgment. I now give my reasons for agreeing that the appeal be allowed.

The scope of this appeal falls within a narrow compass and it is whether an appeal can be determined by an order made under a rule of court which was not in existence at the time that the order was made.

The undisputed facts of this case are that when this matter came up before the lower court at one of the preliminary hearings, the presiding Justice made the following order:-

“Chief A.M.O. Akande for Appellant

K. S. Sofola for Respondent

Court: In view of the new grounds of appeal now filed which are very detailed, the parties agree to file brief of argument and exchange same in this appeal which is now fixed for 13th March 1985.

(SGD.) ADENEKAN ADEMOLA.”

The appeal eventually came up for hearing before a different panel presided over by Nnaemeka-Agu J.C.A., (as he then was). On that day neither the appellant nor his counsel was present and what is more, no brief of argument had been filed as agreed by the parties. The Respondent’s Counsel therefore applied that the appeal be dismissed under Order 6 Rule 10 of the Court of Appeal (Amendment) Rules 1984.

The Court acceded to the request and accordingly dismissed the appeal. The appellants have appealed to this Court against that order, and in the only ground of appeal filed they complained that:

“The learned Justices of Appeal erred in law in making an order for the dismissal of the appeal for want of prosecution, on the grounds that brief of argument have not been filed by the appellant as agreed by the parties, when by and under section 1(2) of the Court of Appeal (Amendment) Rules 1984, the parties are not by law enjoined or obligated to file such or any brief of argument nor does any provision of the law or Rules of Court allow for the filing of brief of argument by agreement of parties.”

In his brief of argument, the appellants’ Counsel stated that he did not understand the order made by the Court to mean that he was to file a brief of arguments. According to him, he thought that what the Court said was that his grounds of appeal were so detailed that there was no need to file any brief. Counsel then submitted that as at 30th May 1984, when the appeal was listed for hearing, the Court of Appeal (Amendment) Rules 1984 which made the filing of briefs mandatory were not then in force, and the lower Court was in error to have dismissed the appeal for failure to file briefs.

Counsel then formulated one issue for determination and that is:-

Whether or not, having regard to Section 1(2) of the Court of Appeal (Amendment) Rules 1984, the order of dismissal made by the Court of Appeal should be set aside and the substantive appeal remitted to that Court for a hearing of the appeal on the merits.”