Philip Obiora V. Paul Osele (1989)
LawGlobal-Hub Lead Judgment Report
On the 1st day of November, 1988, I allowed this appeal after hearing counsel to the parties both on the written briefs and in oral argument, set aside the decision of the Court of Appeal and remitted the case to the Court of Appeal to hear and determine the appeal on its merits. I then reserved the Reasons for my judgment till today and I now proceed to give them.
The short point in this appeal is whether the judgment of the Court of Appeal wherein the appeal to the Court of Appeal was dismissed for want of prosecution can be sustained having regard to the fact that the Court of Appeal had heard in part oral argument from the appellant’s counsel and had before it briefs of the appellant, the quality of the brief notwithstanding.
The appellant was plaintiff in suit No.PHC 350/81, he instituted against the respondent as defendant at the High Court of Rivers State in the Port Harcourt Judicial Division claiming:
(1) N20,160.00 as money had and received by the defendant on behalf of the plaintiff for 7 years at N2,880.00 per annum;
(a) Amount of N5,000.00 rent received from the Abandoned Property Implementation Committee as agent of plaintiff;
(2) Mesne profit at the rate of N240.00 per month starting from January, 1982 until the defendant gives up possession of the said plot to the plaintiff;
(3) Order that the defendant effect formal assignment of plot No.100 Egede Street, Mile 2 Diobu, Port Harcourt to the plaintiff;
(4) Perpetual injunction restraining the defendant from further collecting rents from the said building.
Pleadings were, on the order of the court, filed and served and the issues joined came up for hearing before Pepple, J. Five witnesses testified for the plaintiff/appellant and 2 witnesses testified for the defence. Counsel then addressed the learned trial Judge before the learned trial Judge adjourned to consider the judgment. On the adjourned date, ten days later, i.e. on the 12th day of November, 1982, the learned trial Judge delivered a considered judgment in which he dismissed the suit.
Being dissatisfied with the decision, the plaintiff appealed to the Court of Appeal. The notice of appeal was filed on the 10th day of December, 1982. The notice of appeal filed is prolix that it ought not to have escaped adverse comments. Thirteen grounds were filed. Each ground was followed by copious comments in the notice of appeal. With the leave of the Court of Appeal, grounds 14 to 19 were added. The record book shows that the case was listed for hearing on the 5th of December, 1983. On that date, counsel appeared for both parties. But the court adjourned the hearing to the 26th April, 1984. On the 26/4/84, learned Counsel for the appellant, Chief Anyaegbunam began argument on the appeal on behalf of the appellant. Objections were taken to grounds 3, 4, 5, 6, 7, 8, 9, 10, 11, 12 and 13 on the ground of lack of particulars. He conceded grounds 8, 9, 10, 11 and 12. The court struck out grounds 5, 8, 9, 10, 11 and 12.
Counsel argued grounds 2 and 7 together. He made submissions on them. At this stage, the appeal was adjourned to 17/5/1984 for further hearing. On 17/5/84, the court sat and heard another motion for additional grounds of appeal. After hearing counsel on his application for additional grounds which he later withdrew, the court struck out the additional grounds filed on 9/5/84 and adjourned further hearing of the appeal to 24/10/84. On the 24/10/84, in the presence of counsel to the parties, the court adjourned the appeal to 7/11/84. On 7/11/84, a motion to file additional grounds of appeal was taken and granted by the court. Respondent’s counsel did not oppose the motion. The appellant was given 14 days to file his grounds and it was recorded “parties agree that it is desirable at this stage to file briefs. Appeal adjourned 3/4/85”. It should be observed that NO ORDER for briefs to be filed was made.
On 3/4/85, the court sat and on the application of counsel to the appellant, adjourned to 8/7/85 for hearing in the cause. Before then, counsel to the respondent drew the court’s attention to the pending motion strike out the brief. On 8/7/85, the court sat and heard the appellant’s motion. The proceedings for that day read:
“B.D. Anyaegbunam for Applicant
G.N.A. Okafor (Chimoba with him) for Respondent
(i) Motion to enlarge time to file brief Mr. Okafor does not oppose;
Court: Order as prayed. Brief of appellant is deemed to have been properly filed;
(ii) By Mr. Okafor: Motion to strike out the appeal adjourned to 18/9/85.”
On the 18th day of September, 1985, the court sat although differently constituted. Instead of Phil-Ebosie (Presiding Justice), Aseme and Katsina-Alu, JJ.C.A., the coram consisted of Olatawura, Aikawa and Katsina-Alu, JJ .C.A. The court adjourned Mr. Okafor’s application. The record reads:
‘B.D.O. Anyaegbunam (I.N. Okeke with him) for Appellant
G.N.A. Okafor for the Respondent.
Court: This application of Mr. Okafor will be adjourned to 3/10/85 in view of the conflicting views expressed by the panel that granted Mr. Anyaegbunam’s application for a new brief.”
The record does not show any sitting on the 3/10/85. Instead, it showed record of proceedings on 15/1/86 when the court consisted of Aseme, Olatawura and Katsina-Alu, JJ.C.A. On that day, the motion filed by Mr. Okafor was heard. The prayers in the motion paper were for an order:
“(a) striking out the brief of argument filed on the appellant’s behalf by his counsel as not being in conformity with the Rules, and
(b) dismissing the appeal for want of prosecution and for such further or other orders as the court may deem fit to make in the circumstances.”
Paragraphs 2 and 3 of the supporting affidavit evidence read
“2. That on 21/1/85, I received by registered post the Brief of Argument filed by plaintiffs/appellant’s counsel.
- That on perusing the brief, I find that it does not conform with Order 6 of the Court of Appeal Rules 1981 as amended by the Court of Appeal (Amendment) Rules 1984 in that-
(a) The appellant’s brief is not a succinct statement of his argument in the appeal contrary to Order 6 Rule 2 but only a serial discussion of the grounds of appeal filed;
(b) the brief does not conclude with a numbered summary of the points to be raised on appeal, contrary to Order 6 Rule 3(d);
(c) the brief does not contain the Reasons upon which the argument is founded contrary to Order 6 Rule 3(d);
(d) the brief does not set out the issue or issues for determination in the appeal contrary to Order 6 Rule 3(a).”
In the Court of Appeal, respondent’s counsel, Mr. Okafor’s argument was recorded as follows:
“The appellant’s brief is a reproduction of the grounds of appeal and does not give the particulars (sic) regard [to read “required”] Order 6 Rules 2 and 3 of the Court of Appeal Rules 1981. It does not contain the issues arising in the appeal. I ask that the brief be struck out. Since there is no brief, the court has no jurisdiction and that the appeal be dismissed for want of prosecution.”
Appellant’s counsel in reply argued that:
“the amended brief is in substantial compliance with Rules and asked for adjournment to supply authorities in support of his contention.”
The motion was accordingly adjourned for further argument to 29/1/86.
On the adjourned date, appellant’s counsel maintained his argument that issues for determination were raised in each ground and that in any case, no brief can be struck out or dismissed on account of non-compliance with the Rules. He prayed the court to allow the appeal to go on even if it agreed with the objection. The court then reserved its ruling. On the 18th day of March, 1986, Olatawura, J .C.A. read the reserved Ruling dismissing the appeal for want of prosecution. This Ruling was concurred in by Aseme and Katsina-Alu, JJ.CA.
The learned Justices of the Court of Appeal adverted their minds to the fact that the Court of Appeal (Amendment) Rules 1984 did not provide any sanction for filing a brief whose format was not in strict compliance with the Rules. They however did not advert their minds to the fact that this appeal was listed for hearing long before the rules for filing briefs came into force and that the Court of Appeal (Amendment) Rules 1984 excluded all cases listed for hearing before December, 1984 from the operation of the Rules. Thus, Olatawura, JCA. in his lead judgment observed:
“What is in issue here is the provision of our rules dealing with briefs. The forms and contents of a brief are contained in Order 6 Rule 3 of the Rules of this Court: The mandatory provisions are 3(a), (b), (c) and (d), for the purpose of this ruling, I will set out Rule 3(a), (c) and (d). They are as follows:
3(a) The brief, which may be settled by court, shall contain an address or addresses for service and shall contain what are, in the appellant’s view, the issues arising in the appeal as well as any points taken in the court below which the (sic) appeal (read appellant) wishes to abandon and any point not taken in the court which he intends to seek leave of the court to argue at the hearing of the appeal;
(c) The parties shall assume that the briefs will be read and considered in conjunction with the documents admitted in evidence as exhibits during the proceedings in the court below, and, wherever necessary, reference shall also be made to all relevant documents or exhibits on which they propose to rely in argument;
(d) All briefs shall be concluded with a numbered summary of the points to be raised and the reasons upon which the argument is founded.
In so far as the record of this court is concerned, there is still on record.
(i) the brief filed on 28-11-84;
(ii) the additional brief filed along with the motion dated 12th March, 1985; and
(iii) yet another additional brief filed on 29/4/85…
Now to the kernel of this application. In the affidavit of the plaintiff/appellant in support of the motion, the appellant deposed in paragraph 3 of the affidavit as follows:
“3. That I am advised by my counsel, B.D.O. Anyaegbunam Esq. that it is necessary to file fresh brief in order to comply fully with requirements of the rules of practice and I verily believe him.
If learned Counsel is aware of this requirement, he cannot now be heard to say he has complied substantially with the said rule.
Pages 1-3 are a reproduction of the grounds of appeal which are 10 in number. On pages 4-10 learned Counsel raises issues or questions for determination under each ground of appeal, then pages 10-22 deal with arguments and under the heading ‘Conclusion’ the learned Counsel said:
‘In view of the foregoing submissions, I urge the Honourable Court of Appeal to allow the appeal, set aside the judgment of trial Judge Honourable Mr. Justice Barclay B. Pepple at Port Harcourt High Court and dated 12th day of November, 1982 and to enter judgment for the plaintiff/appellant as claimed.’
I cannot see the difference between what counsel regarded as his conclusion and the relief claimed on page 80 under the notice and grounds of appeal… I cannot but share the view of Mr. Okafor as to the embarrassment caused by what learned counsel for the appellant called a brief. What Mr. Anyaegbunam called a brief, quite apart from the fact that the rule makes no provision for “appellant additional brief’ falls far short of what Order 6 Rule 2 requires and is a mutilation of Rule 3(a) and (b) of the same Order. The Order for filing briefs came into effect on 1st September, 1984.”
It appears the learned Justice did not advert fully to the provisions of sub-paragraph 2 of paragraph 1 referred to by counsel as section 1(2) of the Court of Appeal (Amendment) Rules 1984 which reads: “These Rules shall come into force on the 1st day of September, 1984 and shall apply to all appeals except those which have been listed for hearing on or before the 31st day of December, 1984.”
Since the matter in the instant appeal was listed before the Court of Appeal as has been shown above, before 31st December, 1984, the matter on appeal is excepted from the operation of the provision of Order 6 of the Court of Appeal Rules 1981 as amended. Even if the provisions of Order 6 applied, the provisions of Rule 9(a) ought to have been invoked by the court. It reads:
“Oral argument will be allowed at the hearing of appeal to emphasize and clarify the written argument appearing in the briefs filed in court.”
It ought, in my respectful view, to have been obvious to the learned Justices of the Court of Appeal that even if the appellant and his counsel had been absent, the appellant having filed his brief, this case should have been treated as having been argued under the provisions of Rule 9 (a) of Order 6 and not under Rule 10 of Order 6, the provisions of which are very clear. The Rule, Rule 10 of Order 6, provides sanction only for failure of the appellant to file his brief. It reads:
“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. If the respondent fails to file his brief, he will not be heard in oral argument except by leave of the court. Where an appellant fails to file a reply brief within the time specified in Rule 5, he shall be deemed to have conceded all the new points or issues arising from respondent’s brief.” (Italics mine)
Olatawura, J.C.A. was, with respect, fully aware of the prayers in the motion moved by Mr. G.N.A. Okafor and this is borne out by his observation and conclusion in his lead judgment which reads:
“The order sought by Mr. Okafor is a dismissal of the appeal for want of prosecution. The issues arising from an appeal are the major complaints which the appellant thinks have been improperly or insufficiently treated by the trial Judge. These issues must flow from the grounds of appeal. Consequently, an issue which has no bearing with the ground of appeal cannot be resolved in an appeal as the grounds of appeal form the basis of the complaints.
Ademola, J.C.A. has dealt with the requirements of Order 6 in Archbode Engineering Limited v. Water Resources Hydro Technique Wassertechnick, AG & Anor.(1985)3 N.W.L.R. (Pt.12) 300. I will uphold the objection of Mr. Okafor and grant the prayer that the appeal be dismissed for want of prosecution. The appeal is hereby dismissed for want of prosecution.”
Although Aseme, J.C.A. concurred in the Order of Dismissal for want of prosecution, he was fully aware that the Rules of Court did not provide an order of dismissal for want of prosecution as sanction for filing a brief which the court considers not strictly in the form ordered by the Rules. This is borne out by his observation in his Ruling which reads:
“It would seem that although there is sanction imposed for non-filing of briefs, no of briefs, no sanction is imposed for briefs which do not conform with Order 6 Rule 3. We therefore took the view that as rules of court must be obeyed, a brief that does not comply with the provisions of Order 6 Rule 3 is in law no brief at all as it defeats the very purpose for which the rules were made, that is, to enhance quick disposal of the appeal. Bearing in mind that blunders in the application of the Rules of procedure could be expected, distinction must be drawn between defiance to file a brief and filing a brief which does not conform with Order 6 Rule 3.” (Italics mine)
The three Justices of the Court of Appeal expressed disapproval of the conduct of appellant’s counsel in failing to take a hint from the Bench. Dissatisfied with the order of dismissal of the appeal for want of prosecution, the appellant brought the instant appeal to this Court on 4 grounds. These 4 grounds of appeal with some of their particulars read:
“(1) The learned Justices of the Court of Appeal acted without jurisdiction by ordering the filing of brief as a condition for the hearing of the appeal when it is mandatory that Order 6 of the Court of Appeal (Amendment) Rules does not apply to appeals listed for hearing on or before 31st day of December, 1984.
(a) The appeal was listed for hearing on 5th day of December, 1983; after this date, several other steps were taken towards the hearing of the appeal on 26th April, 1984and 17th May, 1984;
(b) The Court of Appeal (Amendment) Rules, 1984 came into force on 31st September, 1984 after the appeal had been listed for hearing and had been part heard (as the records of the Court will reveal);
(c) The Order 6 Rule 3 of the Court of Appeal Rules 1984 under which the Court of Appeal dismissed the appellant’s appeal does not apply to the appellant’s appeal since the appellant’s appeal is expressly excluded from complying with Order 6 Rule 3 as stipulated under section 2 (Paragraph 2) Court of Appeal (Amendment) Rules 1984;
(2) The Honourable trial Justices of the Court of Appeal erred and misdirected themselves in holding that respondent’s counsel could raise preliminary objection against the brief approved by the order of the court on 8th July, 1985 as having been duly filed and served by relying on the application dated 28th January, 1985 when the brief he was to attack was never in existence. The brief was dated 15th April, 1985 and filed on 8th July, 1985.
(a) The learned trial Justices failed to realise that the application of the respondent’s counsel dated 28th January 1985 as brought against the previous appellant’s brief dated 4th December, 1984;
(b) The respondent’s counsel consented to the order of the court made on 8th July, 1985 approving the appellant’s brief dated 16th April, 1985 as having been duly filed and served;
(3) The Honourable Justices of the Court of Appeal erred and misdirected themselves in dismissing the appeal on the ground of want of prosecution when in fact, the appellant had been prosecuting his appeal as far back as 5th day of December, 1983.
(a) The appellant’s brief approved on 8th July, 1985 as having been duly filed and served was before the court and no valid objection has been raised against it.
(c) There is no provision under the Court of Appeal Rules stipulating that whenever the appellant failed to comply with any arm of the provision for filing of the briefs that the appeal shall be dismissed (The appellant’s brief dated 16th April, 1985 is still before the court)
(4) The learned Justices of the Court of Appeal have not exercised their discretionary power judicially by refusing to allow the appeal to go on in the interest of Justice.
(a) The Honourable Justices of the Appeal ought to have exercised their discretion in favour of the appellant and waive the compliance with any part of the Rule as provided in Order 6 Rule 11 of the Court of Appeal (Amendment). Rules, 1984 and/or Court of Appeal Rules 1981 Order 7 Rule 3 since the brief dated 16th April, 1985 and filed on 8th July, 1985 had substantially complied with the Rules of the Court;
(b) The appeal ought not to be dismissed under Order 6 Rule 10 for want of prosecution since the appellant complied with Order 6 Rule 2. The former applies where no brief was filed.
In his brief of argument, the appellant formulated 4 issues or questions for determination in this appeal. They are:
(1) whether the Court of Appeal has the jurisdiction to dispense with the compliance with the mandatory section 1(2) of the Court of Appeal (Amendment) Rules 1984 in the instant appeal by ordering the filing of brief on 7th November, 1984 in an appeal listed for hearing on 5th day of December, 1983 and had been part-heard before the order for filing briefs was made by the Court of Appeal
(2) whether the entertainment of preliminary objection to the hearing of the appeal without compliance with the provisions of Order 3 Rule 15(1) Court of Appeal Rules 1981 is proper exercise of judicial power and whether the application filed on 28th January, 1985 will validly be used in attacking the brief filed on 8th July, 1985 and thereby consider the application as having complied with Order 3 Rule 15(1) of the Court of Appeal Rules 1981
(3) whether the Court of Appeal was right in dismissing the appeal for want of prosecution since Order 6 of the Court of Appeal (Amendment) Rules 1984 never made any provision (for such dismissal) and whereas a brief had been properly filed
(4) whether the dismissal of the appellant’s appeal by the Court of Appeal does not amount to wrong exercise of judicial discretion therefore resulting in miscarriage of justice And also whether it is correct to say that the brief of 16/4/85 did not contain issues arising from the appeal
The respondent appears to have adopted the appellant’s formulation of issues for determination in this appeal.
I have, in the opening paragraphs of these Reasons for Judgment, set out what I consider the main issue for determination. I will like to put the question in another way and ask:
“To entitle the Court of Appeal to dismiss the appellant’s appeal for want of prosecution, what default must the appellant commit”
A subsidiary question for determination is this:
“where a brief which has not been drawn up elegantly or in full compliance with the guidelines in the Rules of Court, particularly Order 6 Rule 2 of the Court of Appeal Rules has been filed and served, has the Court of Appeal any jurisdiction or power to strike out the brief either suo motu or on application of the respondent and dismiss the appeal for want of prosecution”
“was the Court of Appeal entitled to apply the Court of Appeal (Amendment) Rules 1984 Order 6 Rule 3 and invoke the sanction in Order 6 Rule 10 to the instant appeal
Chief B. D. O. Anyaegbunam, learned Counsel to the appellant submitted that the instant appeal was one of the appeals excluded from the operation of the Court of Appeal (Amendment) Rules 1984 by section 1(2) thereof.
He further submitted that even if the Rules applied to the hearing of the appeal he has filed and served the appellant’s amended brief in the time extended by the court and that the brief dated 10th November, 1984 and filed on 28th November, 1984 (see page 92 of the record) to which the objection of the respondent by his motion dated 28th January, 1985 related had been superseded by the brief dated 16th April, 1985 and deemed to have been properly filed by order of the court made on 8th July, 1985.
He then submitted that more importantly was the failure of the Justices of the Court of Appeal to direct their minds to the fact that the appeal was part-heard orally on the 26th April, 1984 before the court consisting of Phil-Ebosie, Aseme and Aikawa, JJ.C.A. He therefore submitted that there is no want of prosecution to warrant dismissal either under the inherent powers of the court or under Order 6 Rule 10 of the Court of Appeal (Amendment) Rules. He then cited Olajide Olaore & ors. v. Titus Adigun Oke (1987) 12 S.C.1.
Mr. G.N. Okafor, learned Counsel for the respondent submitted, while conceding that the instant appeal was listed for hearing before the Court of Appeal (Amendment) Rules, 1984 came into operation and was therefore excepted from its operation that in a proper case such as this instant appeal where parties were consenting the court could make order for filing briefs. The Rules did not prohibit the making of an order for filing of briefs on the request and with the consent of parties, he submitted with emphasis.
In respect of issue No.2, learned Counsel for the respondent submitted that his motion to strike out the original brief was valid and subsisting for the purpose of striking out the subsequent briefs which he regarded as amendment to the original brief.
On issue No.3, learned Counsel for the respondent contended that the brief of 16/4/85 was not in conformity with the Rules and said, according to his brief:
“As stated in the affidavit in support of the motion to dismiss the appeal (page 106), the appellant’s brief was defective in many respect so-much so that the respondent did not know how to answer it hence the objection.
The greatest fault of the appellant’s brief in the respectful submission of the respondent is that it is not a succinct statement of his argument in the appeal.
In Blacks Law Dictionary “succinct” is defined as “brief, precise, exact.” The appellant’s brief was none of these, hence it was embarrassing to answer.”
The submissions of counsel to the appellant are no doubt formidable and the respondent’s counsel’s submissions though attractive and ably presented, are no answers to the points of law made by appellant’s counsel.
I have perused the record of proceedings in the court below and I cannot but agree with respondent’s counsel that the briefs filed by the appellant deserve to undergo very considerable improvement. They were drawn up by counsel and it appears from the opportunity given to counsel by the Court of Appeal to re-write the brief that what he presented on the 16th of April, 1985 was his best at the time.
What is a brief I must search for the definition first in the Court of Appeal (Amendment) Rules. 1984 and more especially in Order 6 Rule 2. That Rule provides as follows:
“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 the appeal.”
A brief is therefore a succinct statement of the appellant’s or the respondent’s argument in the appeal and by Rule 9(a) of Order 6.
“Oral argument will be allowed at the bearing of the appeal to emphasise and clarify the written argument appearing in the briefs already filed. ”
Once, therefore, a brief is filed, it constitutes the appellant’s or the respondent’s argument in the appeal and nowhere in the Court of Appeal Rules is any provision made for striking out appellant’s argument in the appeal no matter how inelegantly drafted and presented.
Once a brief is drawn up, filed and served by a party, the appeal is argued and the Court of Appeal Rules provide that parties filing briefs should presume that the briefs will be read. (See Order 6 Rule 3(c) of the Court of Appeal (Amendment) Rules 1984).
On issue No.1, whether the Court of Appeal had jurisdiction to order the filing of brief in the instant appeal, having regard to section or paragraph 1(2) of the Court of Appeal (Amendment) Rules 1984, the obvious answer is that the court cannot bring this appeal within the operation of the Court of Appeal (Amendment) Rules 1984. It should be observed that the filing of briefs under the Rules is ordered by the Rules (see Order 6 Rule 2) and not by the courts. The court only extend the time prescribed by the Rules in which to file the brief. The Rules do not in anyway curtail the power of the court to order the filing of briefs in exercise of the court’s inherent power or jurisdiction (see section 6(6)(a) of the Constitution of the Federal Republic of Nigeria 1979). In this matter, no order for the filing of briefs was made by the court. Parties however agreed to file briefs. In my view, the court, being vested with jurisdiction to hear and determine the appeal had inherent jurisdiction to order the parties to file briefs to expedite hearing if it desired. The Court of Appeal never, despite agreement of counsel to file briefs, made order.
The Court of Appeal therefore erred in law to have regarded the briefs filed as briefs filed pursuant to the provisions of the Court of Appeal (Amendment) Rules 1984. Arguments in the appeal having been heard on the 26th day of April, 1984, the appeal became part-heard and the invocation of Order 6 Rule 10 to dispose of the appeal was a serious and grievous error in law which pointed to inadvertence of the minds of the learned Justices of the Court of Appeal to section 1(2) of the Court of Appeal (Amendment) Rules, 1984.
On issue No.2, Order 3 Rule 15(1) of the Court of Appeal Rules 1981 prescribes that a respondent intending to rely upon a preliminary objection to the hearing of the appeal shall give the appellant three days notice thereof before the hearing, and the contention of the appellant-is that the respondent did not give any notice of preliminary objection. Although there was notice of objection dated 28th January, 1985 that objection was to the brief filed in November, 1984 which was later superseded by the brief filed and approved by the court on the 8th day of July, 1985. There is much force in this argument that notice of objection to the appeal was not given as required by the Rules. An objection to one specified document cannot be taken as an objection to another document bearing a totally different date.
The contention of learned counsel to the respondent that the brief filed on the 8th July, 1985 is an amended version of the original brief filed in November, 1984, in my view, rather than destroy lends weight to the strength of the appellant’s argument and shows a total absence of objection to the brief filed on the 8th day of July, 1985. I agree with counsel for the appellant that there is no objection validly made to the brief filed by the appellant on the 8th of July, 1985. It was not in the circumstances, a proper exercise of judicial power to use the motion (objection) filed on the 29th January, 1985 to invoke the powers of the Court of Appeal under Order 6 Rule 10 to dismiss the appeal for want of prosecution. It is observed that despite the oral disparagement of the brief filed on the 8th of July, 1985, no order was made by the court striking out the brief.
I now go on to deal with issues numbers 3 and 4. I agree with learned counsel for the appellant that the Court of Appeal (Amendment) Rules 1984 never made provision for striking out a brief filed by the appellant on the ground of want of form. Therefore, the purported exercise of the powers of dismissal for want of prosecution in this matter by the Court of Appeal under Harder 6 Rule 10 merely because the brief was not in the form set out by the rules was a wrongful exercise of power and occasioned a serious miscarriage of justice. There is no doubt that the brief of 16th April, 1985 filed on 8th of July, 1985 needed a lot of improvement to bring it up to standard. The appellant’s counsel appears to have a lot of material but the arrangement and presentation in the brief is unintelligible. Be that as it may, it is his oral argument in the appeal that he has put down in writing and the court has to make the best out of it in the interest of justice. There is no doubt that what may be described as the failure of appellant’s counsel to master the art of drawing up a brief in consonance with the guidelines set out in the Rules irritated the learned Justices of the Court of Appeal. Judges should not lose their temper with counselor litigants no matter how irritable they may be so that the composure required to administer justice may not depart from the temple of justice. If counsel lacks the necessary skill in the formulation of the appellant’s brief, the appellant’s case should be judged by the merit of the brief. The brief should not be thrown out to enable the appellant suffer the sanction of failing to file a brief.
What is dismissal for want of prosecution under Order 6 Rule 10 in an appeal before the Court of Appeal Simply, it is dismissal of the appeal for failure -to set out the appellant’s argument in the appeal in writing called brief within the time ordered by the Rules. In the circumstances of the instant appeal, is that a fair judgment to deliver I say no. The answer must be in the negative.
The principle of dismissal for want of prosecution is not new. In the trial courts, the powers to dismiss an action for want of prosecution are often invoked if the plaintiff defaults in filing his statement of claim and there is prolonged or inordinate and inexcusable delay in the prosecution of the action or if the plaintiff does not issue his summons for direction within the specified time. (See page 431 – The Supreme Court Practice 1979 White Book. Note 25/1/3A under Order 25 Rule 1). The principle is that it is the duty of the plaintiff’s or appellant’s counsel in the instant appeal to get on with the case since public policy demands that the business of the courts should be conducted with expedition. It is a notorious fact that there is congestion of cases in most of the courts in Nigeria and this principle of pursuing claims and appeals expeditiously is designed to bring relief to and decongest the courts.
The principle can only be applied in appropriate cases, and I must say that this instant appeal is not one of the appropriate cases for the application. In the case of Olajide Olaore & ors. v. Titus Adigun Oke (1987) 12 S.C.1, this Court was called upon to deal with a similar mailer as is now before this court. The appeal was one of those excepted from the operation of the Court of Appeal (Amendment) Rules 1984 but the Court of Appeal having ordered briefs to be filed proceeded to dismiss the appeal under Order 6 Rule 10 for want of prosecution on failure of the appellants or their counsel to appear and their failure to file brief. The appeal to this court was allowed, the order of dismissal for want of prosecution set aside and in its stead, an order striking out the appeal for non-appearance of the appellants substituted. This was because the appellants were absent when the Court of Appeal made its order.
In conclusion, it is clear from the Ruling of Olatawura, J.C.A. (concurred in by Aseme and Katsina-Alu, JJ.C.A.) that the brief of 8th July, 1985 set out issues or questions for determination in the appeal and the appellant’s argument under each ground. Although these were inelegantly set out, they are the most indispensable parts of a brief.
Looking at the matter from every angle whether from the exercise of the inherent powers of the court or from the application of the Court of Appeal (Amendment) Rules, the order of dismissal for want to prosecution cannot be justified
It was for the above reasons that I allowed the appeal, set aside the order of dismissal made by the Court of Appeal and remitted the case to the Court of Appeal for the appeal to be heard on its merits.
UWAIS, J.S.C: This appeal was allowed on the 1st day of November, 1988 and we reserved our reasons for the judgment till today. The following are my reasons.
Having read in draft the reasons for judgment read by my learned brother Obaseki, J.S.C. I entirely agree with them. As it was for the same reasons that I agreed on the 1st November, 1988 that the appeal should be allowed and the case be remitted to the Court of Appeal so that it might be determined by that court on its merits; I do not wish to add anything. I therefore, adopt the said reasons for judgment as mine.