Olajide Olaore & Ors. V. Titus Adigun Oke (1987)
LawGlobal-Hub Lead Judgment Report
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.”
In his own brief, the Respondent’s Counsel presented three issues for determination and these are:-
“1. Whether the Appellants were obliged to file a written brief of argument parties having consented so to do.
- Whether the failure of the Appellants to file their brief coupled with their non-appearance in court is not an abandonment of the appeal.
- Whether the Court of Appeal’s order dismissing the appeal for want of prosecution in the circumstances of this case was a proper exercise of its judicial discretion.”
Counsel submitted that, the order to file briefs was binding on the Appellants, and, coupled with the fact that they were absent at the hearing, the order dismissing their appeal was quite justified.
At this stage, it is necessary to examine the record of the lower Court and find out whether the Presiding Justice had made a binding order on the parties to file briefs of arguments.
The notes of the Court for that day (26/11/84) were as follows:-“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.”
Those notes show firstly
that the appellants have filed new grounds of appeal:- in my opinion, this observation does not constitute an order of the Court.
Secondly, the notes also recorded the fact that:
The parties have agreed to file and exchange briefs:- this also is not an order of Court as we know it.
In its basic form, an order issued by a Judge is usually a positive command directing a party to perform certain acts, (or to refrain from doing some acts) and specifying the mode and time within which such acts shall be performed. In the instant case, there was no such directive in regard to the filing of briefs and I hold that the parties were not ordered to file any briefs.
In my view, the only effective order made by the Court on the 26/11/84, was that which adjourned the appeal till the 13th March 1985.
When the appeal came up on the 13th March 1985, it was before a different panel and as previously stated, the Appellants were absent. The Respondent’s Counsel asked the Court to dismiss the appeal for failure of the Appellants to file their briefs. Regrettably, Counsel did not inform the Court of Appeal that the Court did not make a formal order directing briefs be filed.
However, on the strength of Counsel’s submissions, the Court proceeded to dismiss the appeal. The proceedings of that day which are very short, are as follows:-
“HON. JUSTICE Philip NNAEMEKA-AGU, PRESIDING JUSTICE
HON. JUSTICE UTHMAN MOHAMMED, JUSTICE COURT OF APPEAL
HON. JUSTICE WRIS LEGBO, JUSTICE COURT OF APPEAL
Olajide Olaore & Ors. vs. Titus Adigun Oke, and their Counsel absent K.S. Sofola (O.Debayo- doherty with him) for the Respondent. Sofola: This date was fixed in the presence of parties and their counsel on the 26/11/84. There was also an order for briefs to be filed and exchanged during the period. I apply that the appeal be dismissed with substantial costs under 0.6 r 10 of the Court of Appeal Rules.
This appeal came up on 14/2/84 and was adjourned to 30/5/84 because appellant’s Counsel was not ready to go on. On 30/5/84 the appeal could not go on and had to be adjourned with N50.00 costs against the appellants. This appeal came up again on 26/1/84 when the parties were ordered to file their briefs and have them duly exchanged before today. Now no appellant’s brief has been filed. Furthermore appellants and their counsel are absent. The learned counsel for the Respondent has applied that the appeal be dismissed under 0.6 r 10. It appears to me that the application is well founded. I therefore dismiss the appeal for failure of the Appellants to file their brief as ordered by this Court on 26/11/84.
I assess costs of this appeal at N200.00 in favour of the Respondent.
(SGD) PHILIP NNAEMEKA-AGU,
JUSTICE, COURT OF APPEAL.”
Order 6 rules 2 and 10 under which the appeal was dismissed read as follows:-
“Order 6 r.2: The appellant shall within sixty days of the receipt of the record of appeal from the court below file in the Court a written brief, being a succinct statement of his argument in appeal”
“Order 6 r. 10: Where an appellant fails to file his brief within the time provided for in rule 2 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………………….”
The question which calls for decision is whether the lower Court was right in using the provisions of Order 6 r10 of the Court of Appeal (Amendment) Rules 1984 to determine the appeal.
Section 1(2) of that enactment, provides that:
“1(2) These Rules shall come into force on the 1st day of September 1984, and shall apply to all appeals in the Court of Appeal except those which have been listed for hearing on or before the 31st day of December 1984.” (Italics is mine).
The proceedings of the lower Court show that the appeal was set down for hearing on the 26th November 1984, and it is obvious that none of the provisions of the Court of Appeal (Amendment) Rules would apply to the appeal before it.
From the proceedings of the 13th March 1985 wherein the order of dismissal was made, it was apparent that the lower court had before it facts which revealed:
- That the appellant and his counsel were absent from the court and could not therefore go on with the appeal.
- That on two previous occasions when the appeal had been fixed for hearing, the appellants had applied for adjournment.
- That the appellants had failed to file their brief as ordered by the court on 26/11184.
In respect of grounds (1) and (2) above, the Court had the power to strike out or to dismiss the appeal for non-appearance under Order 3 r.25 of the Court of Appeal Rules. That Rule states as follows:-
“If the Appellant fails to appear when his appeal is called on for hearing……………the appeal may be struck out or dismissed with or without costs.”
With regard to ground 3 above, the court could, under its inherent powers, strike out the appeal for the appellant’s failure to comply with any orders made by the Court. But the lower Court did not dismiss the appeal for the reasons stated in grounds 1 & 2 above, it did so because, as stated in its judgment:
“The learned Counsel for the Respondent has applied that the appeal be dismissed under Order 6 r.10.
It appears to me that the application is well founded.
I therefore dismiss the appeal for failure of the Appellants to file their brief as ordered by this Court on 26/11/84.”.
But none of these reasons is applicable to the facts of this case. In my judgment, and for the reasons already stated, Order 6 r.10 of the Court of Appeal (Amendment) Rules 1984 did not apply to this appeal at the time that it came up for hearing and the appeal should not have been dismissed for failure to comply with that Rule, Furthermore, I am of the view that the lower Court has not made any binding order to file briefs, and the order dismissing the appeal on this ground is also wrong.
It is for these reasons that I allowed the appeal on the 12th day of October 1987.The appeal therefore succeeds and it is allowed. The order of the Court of Appeal dismissing the appeal is hereby set aside. In its place, it is ordered that the appeal before the lower Court shall be struck out. There will be no order as to costs in this Court but the order of costs made by the Court of Appeal shall stand.
ESO, J.S.C.: I have had a preview of the Reasons for judgment given by my learned brother Craig J.S.C. I will adopt the reasons for allowing the appeal on 12th October, 1987.
UWAIS, J.S.C.: I have read in advance the reasons for judgment read by my learned brother Craig, J.S.C. As it was for the same reasons that I allowed the appeal on 12th October, 1987 and substituted an order striking out the case, I have nothing to add. I adopt the said reasons for judgment as mined.
KAWU, J.S.C.: When this appeal came up for hearing on the 12th of October, 1987, we heard learned counsel’s submissions and arguments and allowed the appeal. We then indicated that we would, today, give our reasons for doing so. I have had the privilege of reading, in draft, Reasons for Judgment just delivered by my learned brother, Craig, J.S.C. I entirely agree with his reasons and will respectfully adopt them as mine. It was for those reasons that I allowed the appeal on the 12th day of October, 1987.
I abide by the orders made in the lead reasons, including the order as to costs.