The Nigeria Navy & Ors Vs Navy Captain D. O Labinjo (2012)

LAWGLOBAL HUB Lead Judgment Report

WALTER SAMUEL NKANU ONNOGHEN, J.S.C.

This appeal is against the decision of the Court of Appeal, Holden at Lagos in appeal No. CA/L/364/2004 delivered on the 13th day of May, 2008 in which the court dismissed the appeal of the appellants for want of diligent prosecution.

The respondent was a serving officer in the Nigerian Navy of the rank of Captain. Sometime in 2001 he was indicted and charged before a general court martial and tried and convicted for the offence of disobedience of orders contrary to Section 57 of the Armed Forces Decree NO 105 of 1993; conduct prejudicial to good order and service discipline contrary to Section 103 (1) of the Armed Forces Decree NO 105 of 1993; scandalous conduct contrary to Section 91 of the Armed Forces Decree 105 of 1999 all as amended. He was sentenced accordingly which sentence was duly confirmed by the appropriate authority as a result of which respondent applied to the Federal High Court for judicial review by way of a declaration that the trial was null and void for gross irregularities and breach of fundamental rights of the respondent. He also requested that he be restored to his pre-trial position in the Navy with payment of arrears of salaries and allowances which reliefs were granted in a judgment delivered on the 3rd day of May, 2004.

Appellants were not satisfied with the decision and consequently appealed to the lower court vide a notice of appeal filed on 31st May, 2004 and followed same up with an application filed on 19th August, 2004 praying for departure from the rules of court which was subsequently fixed for hearing on the 29th day of May, 2005 but adjourned to 8th December, 2005 for appellants to produce clearer copies of the record as those exhibited were found by the court to be illegible. Following the failure of appellants to file more legible copies, the motion was again adjourned to 22nd March, 2006 and many other subsequent adjournments until the 12th day of May, 2008 when it was struck out for want of diligent prosecution. On that day, neither the appellants nor their counsel were in court nor was any letter written to excuse their absence despite service of a hearing notice on them. The appeal itself was subsequently dismissed also for want of diligent prosecution resulting in the instant appeal, the issue for the determination of which has been formulated by learned counsel for the appellants, C. I OKPOKO ESQ in the appellants brief filed on 19th January, 2010 as follows:

“Whether the learned Justices of the Court of Appeal were right in dismissing the appellants’ appeal’.

In arguing the issue, learned counsel submitted that the lower court haven struck out the motion for departure from the rules lacked the jurisdiction to dismiss the appeal without giving appellants the opportunity to put forward their case, thereby violating their right to fair hearing as contained in Section 36 of the 1999 Constitution.

It is the further submission of counsel that by the provisions of Order 8 Rules 10(1) (2) and (3) of the Court of Appeal Rules, 2007, the appeal had not been entered at the time the lower court purported to dismiss it, relying on Ezomo vs A-G of Bendel State (1986) 4 NWLR (Pt. 36) 448 at 469; that a grant of the application for departure would have resulted in the appeal being entered before the lower court and since it was not so granted, there was no appeal strictly so called to be dismissed by the lower court; that by the operation of Order 8 Rule 13 and the decision in Ugo vs Obiekwe (1989) 1 NWLR (Pt. 99) 566 at 582, the respondent ought to have filed a formal application before the lower court praying for dismissal of the appeal which would have put appellants on notice of same; that the decision of the lower court in the circumstance in which it was rendered is a nullity as same was reached in excess of jurisdiction, relying on A-G of Anambra State vs Okafor (1992) NWLR (Pt. 224) 396 at 429.

Finally, learned counsel urged the court to allow the appeal.

On his part, learned counsel for the respondent AKIN KEJAWA ESQ in the respondents brief filed on 9th March, 2010 submitted that Order 8 Rules 10(1) (2) and (3) of the Court of Appeal Rules, 2007 are not relevant to the case as they relate to the duties of the registrar of the court below after compilation of the record of appeal; that the issue before the court is on failure of appellants to compile record in accordance with Order 8 Rule 10 (4) of the Court of Appeal Rules, 2007.

It is the further submission of counsel that the lower court was right in dismissing the appeal under Order 8 Rules 10 (4) and (18) of the Court of Appeal Rules, 2007; that by the provisions of Order 8 Rules 10 (1), (4) and (18) of the Court of Appeal Rules 2007, the lower court is clothed with the jurisdiction to dismiss an appeal for want of prosecution following failure to compile and transmit record of appeal, relying on Uwechia vs Obi & ORS, (1973) ALL NLR (Reprint) 78; Obiamalu vs Nwosu (1973) ALL NLR (Reprint) 83; Ajayi vs Omoroqbe (1993)6 NWLR (Pt.301) 512.

On the sub-issue of non filing of motion for an order dismissing the appeal for want of prosecution, learned counsel referred the court to page 1229 Vol. III of the record and submitted that as far back as 19th October, 2006 the respondent had filed such a motion and same was served on appellants. It is the further submission of counsel that filing of a motion for dismissal is not a mandatory provision but permissive as the word ‘may’ is used in Order 8 Rule 18 of the Court of Appeal Rules, 2007 and that the purpose of Order 8 Rule 18 is to enable the court decongest the cause list. Finally counsel urged the court to dismiss the appeal.

It is not disputed that between the filing of the notice of appeal and the time the appeal was dismissed for want of prosecution is four good years and that within that time, appellants failed and/or neglected to file legible copies of record of appeal to enable the appeal be heard and determined.

It should also be noted that appellants failed and or neglected to attend court on the date their motion was fixed for hearing despite being served with a hearing notice neither did their counsel deem it courteous to write to the court to excuse their absence. However, appellants are not complaining about the striking out of their motion for departure from the rules. Their complaint is that they were denied fair hearing in that they were not given notice of any intention by the respondent to apply to the court for the appeal to be dismissed for want of prosecution after their motion for departure was struck out.

The question is whether the submission is supported by the facts. The answer is clearly in the negative. It is clear at page 1229 of the record that as far back as the 19th of October, 2006 the respondent had filed a motion on notice praying the court for an order striking out the appeal for want of prosecution. Appellants have not denied being served with the said notice of motion as contended by learned counsel for the respondent.