Sodeinde Brothers (Nigeria) Ltd V. African Continental Bank Ltd (1982)
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G. IRIKEFE, J.S.C.
This appeal was dismissed by this court on 10th May, 1982 for want of prosecution, the actual default relied upon for dismissal being the fact that the appellant/company had not filed its brief within time as stipulated by the rules of this court (Supreme Court Rules – 1977).
The company has now moved that notwithstanding the order of 10th May, 1982 aforesaid, the appeal should again be re-entered. Mr. Kehinde Sofola, SAN., on being told that this application would appear to be on all fours with the decision of this court in Ogbu v. Urum (1981) 4 S.C. p. 1 submitted that the instant application could be distinguished from the facts upon which this court relied in the Ogbu case aforesaid. Alternatively he submitted that on the basis of the following cases:- (a) U.B.A v. Nworah (1978) 11 & 12 S.C. p.1 at p.10; Ojikutu v. Odeh (1954) 14 WACA 640 at 641, Ikwere v. The State (1981) 9 S.C. p.4, Ogunmola v. Igbo (1941) 7 WACA p. 137, we should hold that Ogbu v. Urum was wrongly decided and accordingly afford him an opportunity of having the matter argued afresh before a full court. Mr. Aguda for the respondents opposed the application.
It is plain beyond argument that all the authorities relied upon by Mr. Sofola, barring one, predate the rules of court (Supreme Court Rules 1977) upon which the decision in Ogbu v. Urum was anchored. To that extent the said authorities would not appeal to be helpful in regard to the line of action being urged upon us by learned counsel. The only other case falling within the rules, that is Ikwere v. The State was a criminal case which was merely struck out and as such is not directly relevant to the application before us.
It is significant that this matter was struck out on 10th May, 1982 soon after the coming into force of practice directions issued by the Chief Justice of Nigeria on 26th April, 1982, designed no doubt, to put at rest the laxity in the approach of litigants to appeals pending before this court.
No ground has been shown for reversing the said decision of 10th May, 1982, assuming that this could be done, which clearly cannot be done by a panel such as this with equal and concurrent jurisdiction with the former panel. Equally, no valid grounds have been shown to persuade me that Ogbu v. Urum was wrongly decided to enable this panel recommend that this is a fit and proper matter for further argument before a full panel of this court. In the result, this application is refused.
It is dismissed with N25 costs in favour of the respondent.
M. BELLO, J.S.C.: The appellant’s appeal was dismissed on 10th May, 1982 for want of prosecution under Order 9 rule 7 because he had failed to file Brief within time as required by Order 9 rule 3 of the Supreme Court Rules, 1977.
He now applies for an order to re-store the appeal and to have it re-listed for hearing on the merit. The respondent opposes the application. This court has consistently decided since Ogbu v. Chief Urum (1981)4 S.C.1 that we have no power to restore an appeal that has been dismissed for want of prosecution under Order 9 rule 7.
With regard to the informal application for this matter to be referred to a full court for a re-consideration of the decision in Ogbu v. Chief Urum, learned counsel has not shown to my satisfaction any decision of this court which is in conflict with Ogbu’s case.
I agree the application should be dismissed with N25 costs to the respondent.