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SPDC (Nig) Ltd & Ors V. Agbara & Ors (2020) LLJR-SC

SPDC (Nig) Ltd & Ors V. Agbara & Ors (2020)

LAWGLOBAL HUB Lead Judgment Report

CHIMA CENTUS NWEZE, J.S.C. 

What prompted the forensic hostilities between the parties was the application of the first to the third appellants in Appeal No. SC.731/2017. Hereinafter, they shall, simply be referred to as ‘the applicants’. In the said application, filed on July 24, 2019, they beseeched the Court of the following reliefs:

  1. An Order setting aside the Ruling of this Honourable Court delivered in this appeal (Appeal No. SC.731/2017) on 11th January,2019 pursuant to the application filed by the appellants/applicants on 16th July, 2018;
  2. In the alternative to (1) (Supra), an Order setting aside, ex debito justiciae, the order of dismissal of appellants’/applicants’ appeal (Appeal No. SC.731/2017) as contained in the Ruling of this Honourable Court delivered on 11th January, 2019;

​3. In the alternative to (1) and (2) (Supra), an order setting aside the Ruling of this Honourable Court delivered on 11th January, 2019 in this appeal (Appeal No. SC.731/2017, dismissing appellants/applicants’ application filed on 16th July, 2018, particularly, prayers 1, 2 and 3 on the body of the said application, which were also dismissed while this Honourable Court considered and dealt with only prayer 4 on the body of the said application;

  1. An order of this Honourable Court granting appellant/applicants extension of time to appeal to this Honourable Court on grounds of law against the decision of the Court of appeal, Port Harourt Judicial Division (lower Court) in Appeal No. CA/PH/396/2012 between SPDC of Nigeria and Ors v. Chief Isaac Osaro Abara and Ors delivered on June, 2017, coram, Gumel, Akeju and Jumbo-Ofo, JJCA;
  2. An order of this Honourable Court granting extension of time to the appellants/applicants to seek leave to appeal to this Honourable Court on grounds other than grounds of law against the decision of the Court of Appeal, Port Harcourt Judicial Division (lower Court) in Appeal No. CA/PH/396/2012, between SPDC of Nigeria Ltd and Ors v. Chief Isaac Osaro Agbaro and Ors, delivered on 6th June, 2017, coram: Gumel, Akeju and Jumbo-Ofo, JJCA;
  3. An order of this Honourable Court granting the appellants/applicants leave to appeal to this Honourable Court on grounds other than grounds of law against the decision of the Court of Appeal, Port Harcourt Judicial Division (lower Court) in Appeal No. CA/PH/396/2012 between SPDC of Nigeria Ltd and Ors v. Chief Isaac Osaro Agbara and Ors, delivered on 6th June, 2017, coram, Gumel, Akeju and Jumbo-Ofo, JJCA;
  4. An order of the Honourable Court granting the appellants/applicants an extension of time within which to appeal to this Honourable Court on grounds other than grounds of law against the decision of the Court of Appeal Port Harcourt Judicial Division, (lower Court), in Appeal No. CA/PH/396/2012, between SPDC of Nigeria Ltd and Ors v. Chief Isaac Osaro Agbara and Ors., delivered on 6th June, 2017, coram: Gumel, Akeju and Jumbo-Ofo;JJCA;
  5. An order of this Honourable Court granting leave to the appellants/applicants to raise fresh issues of law, jurisdiction, particularly, the constitutional issue relating to the appellants/applicants’ right to fair hearing, for the first time before this Honourable Court.

The application was supported by a twenty-five paragraph Affidavit and Forty Exhibits. A further Affidavit was equally filed on September 2, 2020 with ten exhibits. Chief Olanipekun, SAN, with Lateef Fagbemi, SAN; Kanu Agabi SAN; Dr Babalakin, SAN, for the applicants, leading Shola Bojuwoye pointed out that the initial exhibits were marked exhibits 1 – 40 while the latter exhibits were marked exhibit 41 – 51. Learned SAN drew attenetion to other processes. He adopted his written submission.

L. E. Nwosu, SAN with L. A. Lawal-Rabana, SAN; K.C.O. Njemanze, SAN; P. O. Okeaya-Inneh, SAN, leading Pauline Abduliman, for the respondents, drew attention to the Preliminary Objection filed on September 22, 2020 in which they prayed for three reliefs. He adopted his written submission with regard to the objection.

In the said objection, they prayed for:

An order dismissing in limine the purported appellants’ motion dated and filed in this Court on 24th day of July 2019 seeking inter alia an order setting aside the Ruling of Honourable Court delivered in this appeal (Appeal No. SC.731/2017) on 11th January 2019 pursuant to the application filed by the appellant/applicant on the 16th July 2018, as the same constituted a scandalous deliberate abuse and ridicule of the integrity, majesty and finality of the Supreme Court.

And for such other order(s) as this Honourable Court may deem fit or proper to make in the circumstance.

The grounds upon which the application was brought are as follows:

  1. Appeal No. SC.731/2017 was commenced by Notice and grounds of Appeal to this Honourable final Court dated and filed on 16th day of June 2017 against the final judgment of the Court below in appeal No. CA/PH/396/2012 which dismissed the applicant’s appeal for:

i) Non-filing of appellant’s primary brief of argument

ii) That appellant lied on oath to various panels of the Court below that they were granted leave by the Honourable Justice Tsamiya led panel of the Court on 9th day of January 2013 to file an amended brief of argument when no such leave was applied for in their motion dated 4th and argued on the 11th January, 2013.

iii) That the appellant after withdrawing their prayer on their motion dated 26-11-2012 to deem their irregular brief as properly filed, on 3-12-2012 failed indeed, to file an appellant’s brief despite being granted seven days from 3-12-2012 and again 14 days on 9-1-2013 to file their appellants’ brief of argument. Neither did the appellants at any time thereafter even apply for extension of the time to file an appellants’ brief.

iv) That the appellants cannot purport to file amended brief of argument when indeed they had not filed any primary brief fit to be amended as they purported to do by obtaining leave under false pretence on oath vide their exhibits 5 and 7, volume 1 on their exhibit list.

v) These uncontroverted and incontrovertible findings of fact were very ably reproduced in the judgment of the Court below attached as exhibit 15 in volume 1 of the applicants’ exhibit reading from the last paragraph copied at page 234 through 246 before coming to the unanimous decision that appellants did not file a primary appellants’ brief of argument and thus dismissed the appeal.

FACTUAL BACKGROUND

The respondents/Objectors painted a picture of their forensic odyssey from the trial Court to this apex Court. It was pointed out that the appellants, aggrieved by the dismissal of their appeal, filed the said Notice and Grounds of appeal dated 16-6-2017. They compiled and transmitted eight volumes of the records of appeal. The appeal was entered in this Court as Appeal No. SC.731/2017.

It was further pointed out that the Court, painstakingly reviewed the findings of facts from the printed records in grounds 2 above. The Court, it was further explained, ably reproduced the sequence of events leading to the conclusion of facts by the Court below in its Ruling of 11-1-2019, exhibit 18 in their volume 1 of the exhibit.

This is especially, so from pages 315 to page 326 where this Court came to the conclusion at last paragraph thus:

There was nothing to indicate in the order made that the appellants were to file an amended appellants’ brief since no brief had been filed by the appellants after withdrawal of prayers two and three of the motion filed on 26 November 2012.

Attention was drawn to page 327 of this Court’s unanimous judgment in exhibit 8 where it stated categorically, thus:

It is erroneous and quite misleading (an indictment by the Supreme Court) to say that the applicants were granted leave to amend the appellant’s brief. Having withdrawn the prayer to deem the brief as duly filed, there was no brief to refer to. This is the reason why the Court granted time within which to file brief.

(Respondents’ Italics) It was further explained that, against the background of the findings in (3) above, as lifted from the printed records by which this Court came to the inevitable conclusion that the appeal fundamentally violated the provisions of Section 233 (3) of the Constitution of the Federal Republic of Nigeria, in so far as leave was not sought and obtained, before it was taken out and entered in the apex Court, it was invalid.

Attention was further drawn to the Court’s specific findings at page 327 of the record, per Akaahs JSC and other Justices on the Panel of the Court.

See also  Trenco (Nig) Ltd V African Real Estate And Investment Company Ltd & Anor (1978) LLJR-SC

Upon the dismissal of the appeal, entered as SC.731/2017 on 11th January 2019, it was explained, the appellants, on 18th January 2019, proceeded to file another application between the same parties, in this same Court. In the said application, they sought inter alia an extension of time within which to appeal against the same judgment of the Court below in Appeal No. CA/PH/396/2012. The appellants, it was pointed out, managed to obtain a substantive Appeal No. SC.42/2019 for that motion and without any records entered in this Court.

He observed that the listed respondents in the said SC.42/2019 filed a Preliminary Objection on the same 14th February 2019 against the new application in SC.42/2019 seeking its dismissal as an abuse of Court process.

The appellants/applicants, it was disclosed, upon learning of the Preliminary Objection above, filed the instant motion. Using the very same appeal No SC.731/2017, and their ground xxxiv thereof, they gave notice of the withdrawal of their earlier motion dated and filed on the 18-1-2019, under the said Appeal No. SC.42/2019. The respondents have consented to the withdrawal of the motion.

It was emphasized that Appeal No. SC.731/2017 had ceased to exist following its unanimous dismissal by this Court on 11th January, 2019.

It was pointed out that the true meaning and intent of the applicants’ motion of 24/7/2019, in using the same appeal No. SC. 731/2017, was to, once more, appeal against the decision dismissing the said appeal on 11th January 2019. It was explained that, as at 24th July 2019, when the application, the subject of this objection was filled, there was no appeal known as Appeal No. SC.731/2017, existing in this Court fit to predicate an application of the nature sought to be urged.

The Court, it was pointed out, has no jurisdiction, under Order 8 Rule 16 of its Rules of practice, upon dismissal of any appeal to re-open arguments, or for that purpose, re-hear the same application, re-visit or review its judgment or decision under Section 235 of the Constitution of the Federal Republic of Nigeria 1999 (as amended).

It was pointed out that the judgment of the Federal High Court in suit No. FHC/PHC/231/2001 (FHC/ABJ/57/2010), which CA/PH/396/2012, and the further appeal therefrom as SC. 731/2017, which were dismissed on 11-1-2019, have been executed and part of the Judgment debt paid and shared by the successful plaintiffs.

It was further pointed out that the judgments were registered at the Rivers State High Court pursuant to which a writ of fieri facias was issued by the High Court and execution levied on the principal N1,000,000,000 paid by the Rivers State Government. A certificate of title pursuant thereto has been issued by the Deputy Sherriff and registered, by the Purchaser at the Lands Registry, Port Harcourt. In all, a Garnishee Order Absolute has been made in full execution of the judgments of the trial, intermediate and final Courts of the land.

ISSUES FOR DETERMINATION

Senior counsel to the Objector raised the following issues for the resolution of the Preliminary Objection. They are three issues couched thus

  1. Whether there is a subsisting live appeal to sustain this unanimous decision of this Honorable Court handed down on the 11th, appeal entered as SC.731/2017 with 500,000 costs such that can vest this same apex Court with the jurisdiction changing its verdict and to entertain this application to set aside its decision?
  2. Having arrived at the factual findings from the printed records that the appellants did not file a primary brief of argument and could not have purportedly filed a misleading amended Brief basis upon which their appeal was dismissed at the Court below, does the Supreme Court have the constitutional jurisdiction to entertain an appeal straight from the High Court bypassing the intermediate Court?
  3. Having executed the Judgment of the trial Court after the dismissal of the appeal therefrom to the Court below and this distinguished apex and final Court, can this appeal be relisted for sheer academic purposes?

On his part, Chief Wole Olanipekun, SAN, the distinguished senor counsel for the respondents, urged the Court to answer the question:

Considering the facts and circumstances of this case, whether this Honorable Court will not dismiss applicants’ notice of preliminary objection dated and filed 27th May, 2020?

My Lords, although the Objectors formulated three issues for the resolution of the said Preliminary Objection, I take the humble view that issue two is determinative of the Preliminary Objection. As indicated earlier, it was framed thus:

Issue Two

Having arrived at the factual findings from the printed records that the appellants did not file a primary brief of argument and could not have purportedly filed a misleading amended Brief basis upon which their appeal was dismissed at the Court below, does the Supreme Court have the constitutional jurisdiction to entertain an appeal straight from the High Court bypassing the Intermediate Court?

OBJECTORS’ SUBMISSIONS

Lucius Nwosu, SAN, for the Objectors, noted that this issue raises the question whether this Court can reverse itself. This is in view of its findings of fact, from the records placed before it by the Objectors, that the applicants (respondents to this objection), as appellants, in Appeal No. SC. 731/2017 “did not file an appellants’ primary brief of arguments and therefore cannot mislead the Court by purporting to file an amended brief.”

He noted that this Court had invalidated the appellants’ Notice and Grounds of Appeal filed on June 16, 2017. The appellant, he contended, would seem to be urging this Court to now ignore this development and permit them to amend their invalid Notice of appeal of June 16, 2017.

He canvassed the view that the consequence of non-filing of appellants’ brief at the lower Court means that its dismissal was a dismissal on the merit. He further pointed out that the appellants did not file their primary brief of argument within seven days and fourteen days periods, respectively, granted by the Court below.

He also pointed out that the appellants’ counsel never applied for an extension of time within which to comply with either of the two orders to file their brief. Hence, the order dismissing their appeal was on the authorities, a dismissal on the merit, Olowu v. Abolore (1993) 5 NWLR (pt. 293) 255; Chukwuka v. Ezulike (1986) 5 (pt 45) 892. He noted that the applicants are essentially alleging that this apex Court merely struck out appeal No. SC.731/2017 and did not dismiss it. The appellants, he further pointed out, maintained that the appeal was not decided on the merit — a submission which is contrary to the authorities of this Court in this regard, citing Ali Alaba Int’l and Anor v Sterling (2018) LPELR-44903 (SC).

In his submission, the applicants were very deliberate when they filed an irregular brief which they deceptively, did not attach as exhibit to their motion but expressly withdrawn on December 3, 2012 in Court. He urged the Court to uphold the preliminary objection and dismiss this appeal.

APPELLANTS’ SUBMISSION

On his part, Chief Wole Olanipekun, SAN, for the appellants, submitted that it is not the argument of the applicants herein that the instant appeal was dismissed because the respondents did not file their brief of argument for the determination of substantive appeal in SC.731/2017.

On the contrary, he noted, all the arguments made by the applicants in the said issue above are with respect to the non-filing of brief of argument at the lower Court, which issue forms the crux of the substantive appeal yet to be determined by the Court.

He asserted that the applicants/objectors have failed to answer the question, whether this Court in an interlocutory decision, validly affirmed or set aside the decision of the lower Court that respondents did not file a primary brief of argument at the Court of Appeal? The respondents, he pointed out, answered in the negative. He contended that dismissing the appeal at its interlocutory stage would only amount a breach of fair hearing.

He submitted that an application for leave to appeal is an appeal. He supported this statement by stating that under Order 1 Rule 2, an application for leave to appeal will be regarded as an appeal and an applicant in such an application can also be regarded as an appellant.

In his view, the applicants’ argument herein that there is no appeal and that the respondents are not appellants cannot stand and same is contrary to the provision of Order 1 Rule 2 of the Rules of this Court and judicial decisions of this Court.

See also  Jimoh Awopejo & Ors V. The State (2001) LLJR-SC

He took the view that an appeal dismissed without a hearing on the merit can be re-filed. In his submission, this is because when an application or an appeal, as the case may be, is found to be incompetent for any reason, it cannot be dismissed, not having proceeded to hearing on merits. At best he maintained, it will be struck out. Otherwise, the order of dismissal will be taken as striking out order liable to be set aside to allow for relisting or fresh application on same subject, PDP and Anor v Asadu (2016) 9-10 SC 137.

He further canvassed the view that where an applicant’s application was dismissed, this final Court has a wide discretionary and inherent power to consider such an application. However, this would only be done if the applicant is able to satisfy this Court to exercise its discretion in his favour and set aside its order of dismissal. It is only after this is done that the application can be heard.

​He explained that this Court can set aside its earlier decision in respect of an application for trinity prayers where an earlier application has been dismissed for incompetence. He noted that the proper thing for the applicant to do was to lean on the side of caution and apply that earlier orders be set aside, so as not run the risk of the application being held to be premature.

He contended that, contrary to the case made out in the preliminary objection, there is nothing illegal or impermissible in the appellants’ motion. In his submission, it is permitted and encouraged by extant decisions of this Court. He observed that if the appellants were well – guided to follow the Courts directions in PDP and Anor v Asadu (supra), it will be easy to come to a conclusion that refusing the applicants’ preliminary objection, especially, in the light of prayers two and three of the appellants’ motion, when cross referenced with this Court’s decision in Ibe v Onuorah (supra at paragraph 2.4 herein), that an order of dismissal of an incompetent appeal is deemed to be a clerical error for a striking out order. He urged the Court to dismiss the preliminary objection and allow this appeal.

RESOLUTION OF THE ISSUE

My Lords, what yielded the evidently, rancorous submissions of very senior counsel in these proceedings was the Judgement of the lower Court delivered on June 6, 2017. Speaking for the Court, Gumel, JCA, had this to say:

A careful perusal of the proceedings of this Court on 9th January, 2013, contained at page 2831 of Vol 7 of the record of appeal does not at all support the brief of the appellants that this Court had granted them leave to amend their brief of argument. The amended brief of the appellants was therefore filed without having filed their main or original brief in the first instance. In the absence of any clear or proper order of this Court sought and obtained, the amended appellants’ brief sought to be relied (sic) by them to prosecute this appeal can be said not to have been fully and duly regularized and as such it is not a proper or valid process before this Court and therefore it ought to be discarded or disregarded. To that extent, it is more or less as if it had never been filed before the Court at all.

(page 246 of the record; per Gumel, JCA; italics supplied for emphasis)

Citing and relying on Order 19 Rules 2 and 10 (1) of the Court of Appeal Rules, 2016, Gumel, JCA, who wrote and read the leading judgement, further held thus:

A combined reading of these provisions of the Rules of this Court and its consequences makes it compelling to dismiss this appeal for failure of the appellants to file a competent brief of argument to support or proffer arguments in it. It is beyond arguments or per adventure that appeals in this Court are heard and determined only on briefs of argument. In view of all the foregoing, the notice of preliminary objection against the competence of the appellants’ amended brief of argument is hereby upheld. To the extent there is no competent brief of the appellants (sic) this appeal is dismissed…

(page 247 of the record; italics supplied for emphasis)

Dissatisfied with this reasoning, the appellants approached this Court. As indicated above, one of the most astute doyens of the Nigerian Bar, Chief Wole Clanipekun, SAN, contended that all the arguments made by the applicants/ Objectors in the said issue above are with respect to the non-filing of brief of argument at the lower Court. This was in response to the submission of Lucius Nwosu, SAN, one of the leading advocates in Petroleum Law in Nigeria, that the consequence of non-filling of appellants’ brief at the lower Court means that its dismissal was a dismissal on the merit.

At the time of hearing the appeal before the lower Court, the applicable Rules were the Court of Appeal Rules, 2016. Order 19 Rules (2) and (10) make these provisions:

19 (2) The appellant shall within forty-five 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.

19(10) where an appellant fails to file his brief within the time provided for in Rule 2 of this Order, 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.

Like its earlier and latter counterparts, the provisions of Order 19 Rules (2) and (10) (supra) have always been taken for granted by counsel. This is notwithstanding the wealth of judicial authorities which interpreted them. In 2015, this Court was confronted with this same problem. That was in the case of Dakan and Ors v Asalu and Ors (2015) LPELR – 24687 (SC) where Order 6 Rule 10 of the Court of Appeal Rules fell for interpretation.

Dealing with the justification of the said provision, this Court explained that:

Designed as a provision for the enhancement of case management, Order 6 Rule 10 (supra) imposes a tri-partite obligation on the part of the appellant, the duty to get on with his appeal since it has always been the demand of public policy that the business of the Court should be conducted with expedition and dispatch, Olowu and Ors v. Abolore and and Anor (Supra) at 270, citing Obiorah v. Osele (1989) 1 NWLR (pt. 97) 279, also, Governor of Anambra State v. Orji (1990) 5 NWLR (pt. 150) 349, 350.

Against the background of the congestion of cases at the lower Court, the corresponding obligation on respondents, of ensuring that indolent appellants pursue their appeals expeditiously, is to ginger the Court into exercising its power of purging its docket of stale appeals by their dismissal for want of diligent prosecution, Obiorah v Osele (1989) LPELR -2189 (SC) 28, A-D; Babayagi v. Bida (1998) LPELR-699 (SC) 19-20, G-A; and Akujinwa and Ors v. Nwaonuma and Ors (1998) LPELR -391 (SC) 26, B-C; Chime v. Ude (1996) 7 NWLR (pt 461) 379. The Court, on the other hand, is empowered to dismiss such dead appeals as prayed under the above provision, Akujinwa and Ors v. Nwaonuma and Ors (supra); State v Nnolim and Ors (1994) LPELR – 3222 (SC) 20, A-C so as to bring relief to, and decongest, its Cause List, Obiorah v. Osele (Supra).

(pages 21 et seq; per Nweze, JSC)

Turning to the rationale of the above rule, the Court intoned that:

That is the rationale for the above rule for the dismissal of an appeal inter alia where an appellant fails to file his brief of argument within the time prescribed or as extended by the Court, Akande, Olowu and Ors v. Amudatu Abolore and Anor (supra), page 272. Such a dismissal order terminates the life of the appeal, which is in consequence, delisted from the cause list. No Court has the jurisdiction to resuscitate or revive it, Kraus Thompson Organisation v. N.I.P S.S. (2004) 5 SC (pt.1) 16 because such an appeal dismissed on the ground of the failure to file an appellant’s brief of argument is final and thus cannot be revived, Tsokwa v. U.T.C. (Nig.) Ltd (2000) 7 NWLR (pt. 666) 654, 651.

See also  A.C. Abuah V. Legal Practitioners Committee (1962) LLJR-SC

(pages 21 et seq; per Nweze, JSC; italics supplied for emphasis)

Continuing, the Court observed that:

Indeed, in 2006, in an appeal involving the same parties – Asalu and Ors v. Dakan and Ors (2006) LPELR -573 (SC) 19, C-D this Court had intoned magisterially that: …an appeal dismissed by the Court of Appeal for failure to file appellants’ Brief of Arguments is final and such appeal cannot be revived by the Court of Appeal, (italics supplied for emphasis); Olowu v. Abolore (1993) 5 NWLR (pt.293) 255; Babayagi v. Alhaji Bida (1998) 1-2 SC 108; (1998) 7 NWLR (pt. 538) 367. Put simply, it amounts to a dismissal on the merits, UBA Plc v. Ajileye (1999) 13 NWLR (pt 633) 115, 126; Olowu v. Abolore (supra); Kraus Thompson Org v N.I.P.S.S. (supra); Babayagi v. Bida (supra). On its part, the Court, upon making such a dismissal order, becomes functus officio, Orobator v. Amata (1981) 5 SC 276; Nwaora v. Nwaukobu (1935) 2 SC 86, 167; Yonwuren v Modern Sign Ltd (1985) NWLR (pt. 2) 244, 245; Chukwuka v Ezulike (1986) 5 NWLR (pt. 45) 892.

(ibid; per Nweze, JSC)

The Court proceeded to locate its pronouncement within the purview of the Constitution and other extant sources of the Court’s jurisdiction. Listen to this:

Accordingly, it lacks the Jurisdiction either under the Constitution; its constitutive Act (the Court of Appeal Act) or under its inherent jurisdiction to entertain such an appeal any longer, Chukwuka v Ezulike (supra); Ogbu v Urum (1981) 4 SC 1; Yonwuren v Modern Signs (Nig) Ltd (1985) 2 SC 86; (1985) 1 NWLR (pt 110) 483. The net effect is that an appeal dismissed on the ground of the failure to file appellants’ brief of argument under the said Rule is final, Tsokwa v. U.T.C (Nig.) Ltd. (supra); Asalu and Ors v Dakan and Ors (supra).

As such, the Court cannot conjure any juridical powers under its inherent jurisdiction to set aside such an order of dismissal properly made in the valid exercise of its jurisdiction and re-enter the appeal, Babayagi v. Alhaji Bida (supra). The answer to the question posed in this appeal, therefore, is that the lower Court erred in law when on December 3, 2002, it granted the respondents’ application for leave to argue additional Grounds of Appeal. As noted above, since the appeal had been dismissed, Original Notice of Appeal was interred with it. So it was thus illogical to favour the respondents with an order to argue additional Grounds of Appeal since that Court, having dismissed the appeal, lacked the jurisdiction to resuscitate or revive it by exhuming it in any guise, Kraus Thompson Orgenisation v. N.I.P.S.S. (Supra).

A fortiori, having become functos officio, Orobator v. Amata (supra); Nwaora v Nwaukobu (supra); Yonwuren v Modern Sign Ltd (supra); Chukwuka v Ezulike (supra), the lower Court was equally, in grave error when it purported to enter an order extending the time within which the respondents could file a Brief of argument in these proceedings. By its dismissal order of November 17, 1994, which snuffed life out of the respondents’ appeal and interred it (the said appeal) in the said proceedings of November 17, 1994, there were no more proceedings in respect of which the respondents could ‘file a Brief’ because of the finality of the order, Tsokwa v. U.T.C. (Nig.) Ltd (supra); Asalu and Ors v. Dakan and Ors (supra).

Indeed, the lower Court’s said order of December 3, 2002, for extension of time, a futile attempt to exhume the bones of the appeal which ‘underwent ceremonial interment,’ Chukwuka and Ors v Ezulike and Ors (supra) at 1351, in the earlier proceedings of November 17, 1994. The latter proceedings (of November 17, 1994), having effectively, delisted the respondents’ appeal from its Cause List, that Court could no longer resuscitate the same appeal by its order of December 3, 2012 for extension of time within which to file the respondents’ brief and leave to file and argue additional Grounds Of Appeal, Kraus Thompson Organisation v. N.I.RS.S. (supra); U. T. C. (supra); Asalu and Ors v Dakan and Ors (supra); Tsokwa v. U.T.C. (Supra); Abolore (supra); Babayagi v. Ahaji Bida (supra).

(pages 23 – 25 Dakan and Ors v Asalu and Ors; per Nweze, JSC; italics supplied for emphasis).

​Against the above background, I would like to invite the the lower Court, per Gumel, JCA, to repeat his conclusion in the said judgement. As indicated above, citing and relying on Order 19 Rules 2 and 10 (1) of the Court of Appeal Rules, 2016, His Lordship, Gumel, JCA, held that:

A combined reading of these provisions of the Rules of this Court and its (sic) consequences makes it compelling to dismiss this appeal for failure of the appellant to file a competent brief of argument to support or proffer arguments in it. It is beyond arguments or per adventure that appeals in this Court are heard and determined only on briefs of argument. In view of all the foregoing, the notice of preliminary objection against the competence of the appellants’ amended brief of argument is hereby upheld. To the extent there is no competent brief of the appellants (sic) this appeal is dismissed.

(page 247 of the record; Italics supplied for emphasis)

In effect, when His Lordship, Gumel, JCA, held that he would “dismiss this appeal for failure of the appellants to file a competent brief of argument to support or proffer arguments in it” and proceeded to dismiss the said appeal, that appeal, dismissed on the ground of the failure to file appellants’ brief of argument under the said Rule was a final decision of that Court, Tsokwa v. U.T.C. (Nig.) Ltd(supra); Asalu and Ors v Dakan; and Ors (supra).

Neither the lower Court nor this Court has the jurisdiction either under the Constitution; their constitutive Acts (the Court of Appeal Act and Supreme Court Act) or under their inherent jurisdiction to entertain such a matter or appeal any longer, Chukwuka v Ezulike (supra): Ogbu v. Urum (1981) 4 SC 1: Yonwuren v Modern Signs (Nig) Ltd (1985) 2SC 86; (1985) 1 NWLR (Pt. 110) 483.

That explains why Akaahs, JSC, speaking for this Court in SC.731/2017 in SC.731/2017 SPDC Ltd and Ors v. Chief Issac Asaro Agbara and Ors, on January 11, 2019 held that:

The Notice of Appeal in SC.731/2017 between SPDC and Ors v. Chief Isaac Asaro Agbara and Ors is incompetent and is hereby struck out by virtue of Order 8 Rule 7 of the Supreme Court Rules. Appeal No. SC.731/2017 is accordingly dismissed

The motion filed on 16 July, 2018 has no leg to stand on and is hereby dismissed…

(page 330 of the record)

From all I have said above, the motion of July 24, 2019 was a “a futile attempt to exhume the bones of the appeal which underwent ceremonial interment,” at the lower Court on June 5, 2017 and confirmed by this Court on January 11, 2019, Chukwuka and Ors v. Ezulike and Ors (Supra) at 1351.

My Lords, against the above background, I hold that this conclusion obviates the need for any further voluble comments in this Ruling, Onyemeh and Ors v. Egbuchulam and Ors (1996) 5 NWLR (pt 448) 255; (1996) 4 SCNJ 237; AGF v ANPP and Ors (2003) 12 SCNJ 67, 81 -82. This must be so for a Preliminary Objection is a pre-emptive strike: its resolution obviates the need for the dissipation of precious judicial time in the determination of the application.

Application dismissed. Parties to bear their respective costs.


SC.731/2017

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