Thomas Eniyan Olumesan Vs Ayodele Ogundepo (1996)

LAWGLOBAL HUB Lead Judgment Report

IGUH, JSC.

This is an appeal against the decision of the Court of Appeal, Ibadan Division dated 9th day of March, 1993 dismissing the appellant’s appeal in a dispute concerning title to land situate at Ibadan.

The respondent, as plaintiff, had in the Ibadan Judicial Division of the High Court of Justice, Oyo State instituted an action against the defendant, who is now the appellant, claiming as follows:

“1. The plaintiff’s claim against the defendant is for the sum of N 10,000.00 (Ten thousand Naira) being damages for trespass when the defendant unlawfully entered the land in the possession of the plaintiff situate at Lagos – Ijebu Road, near Niger West, Challenge Area, Ibadan sometime in 1987 which trespass is still continuing.

2. Perpetual injunction restraining the defendant, his servants or agents from entering the land in dispute or from committing further acts of trespass thereon.”

The defendant, in his Statement of Defence, counter-claimed against the plaintiff as follows:-

“(i) Declaration of Titleship/Ownership of the land Verged RED on Survey Plan No. RADS/OY/651/89 drawn by A.A. Adeyemi, Licensed Surveyor, and Survey Plan No. ISO/OY/121 /88 drawn by F.U. Iyawe, Licensed Surveyor, both survey plans covering the SAME LAND (that is the LAND-IN-DISPUTE).

(ii) Court’s Confirmation Order of the Grant of the Certificate of occupancy, dated 25/8/88 and Registered as an Instrument No. 47, Page 47, Volume 2869 in the Land Registry at Ibadan, to which was attached survey plan No. ISO/OY/121/88 drawn by F.U. Iyawe, Licensed Surveyor, the defendant having been in effective prior possession before the grant.

(iii) A perpetual Injunction restraining the plaintiff from ever going unto the land or laying any claim unto the land.”

At the subsequent trial, both parties testified on their own behalf and called witnesses. The learned trial Judge, Adekola, J. (as he then was) in a reserved judgment at the conclusion of trial on the 18th day of July, 1990 found for the plaintiff holding that he had established a better title to the land in dispute than the defendant. Consequently, he awarded to the plaintiff against the defendant the sum of N 2,000.00 being general damages for trespass. He also granted perpetual injunction against the defendant as claimed. The defendant’s counterclaim was dismissed in its entirety.

Being dissatisfied with the said judgment of the trial court, the defendant, who hereinafter will be referred to as the appellant lodged an appeal against this decision of the Court of Appeal on the 20th day of July, 1990. Conditions of appeal were given on the 16th of August, 1990 and the appellant promptly complied with and perfected the said conditions imposed on him on the 24th day of August, 1990. The appellant had originally filed a five ground notice of appeal against the said decision of the High Court. In his brief of argument which was duly filed on the 14th March, 1991, the appellant indicated that he would before the hearing of the appeal seek the leave of court to amend his notice of appeal and proffer arguments in respect of seven additional grounds of appeal, the particulars of which were fully set out. He had proposed to raise arguments at the trial in connection with the said additional grounds of appeal along with the five original grounds of appeal already filed. He then proceeded to present arguments in his brief on the six issues formulated by him as touching on both the original and the additional grounds of appeal.

The respondent, for his own part, adopted the six issues set out in the appellant’s brief for the determination of the court in the appeal and fully replied to them in his respondent’s brief of argument. The appeal, in the mean time, was fixed for the 9th March, 1993 for hearing.

On the 5th March, 1993, an application was duly filed by the appellant to regularise his position by seeking for leave to amend his Notice of Appeal in terms indicated in his brief of argument, to deem his amended notice of appeal which had then been filed as properly filed and served and for leave to file an amended brief of argument.

The relevant paragraphs of the affidavit in support of this application which was sworn to by one Iyadunni Isiaka, Administrative Secretary of Emmanuel Chambers, 80, Fajuyi Road, Ibadan deposed as follows:-

“4. That Mr. R.A. Aladesanmi counsel formerly in the office of Chief Afe Babalola, SAN & Co., formerly handling this appeal had prepared the appellant’s Brief of argument.

5. That Mr. L.O. Fagbemi has now taken over the prosecution of the appeal.
6. That the Brief of argument which has been filed gave an indication that additional grounds of appeal would be filed.
7. That however, there is no evidence that leave has been sought.
8. That Mr. L.O. Fagbemi informed me and I verily believe him that having gone through the record of proceedings in this case and the Notice of Appeal, he is of the view that the Amended Notice of Appeal ought to be amended.
9. That Mr. L.O. Fagbemi has now prepared an amended Notice of Appeal. A copy of the said further amended notice of appeal is attached herewith and marked Exhibit ‘A’. Receipt for filing the Notice is attached as Exhibit ‘B’.
10. That what was done in Exhibit ‘A’ was to restructure the original grounds and include additional grounds.
11. That Mr. L.O. Fagbemi informed me and I verily believe him that leave of this court is required to file an Amended Notice of Appeal and a Brief to incorporate the new grounds of appeal contained in the Further Amended Notice of Appeal.
12. That it is in interest of justice to grant this application.”

It is necessary to observe that no counter-affidavit was filed in opposition to this application.

When this application and the appeal came up for hearing on the 9th day of March, 1993, the former application according to the appellant’s brief, had to be withdrawn when the Court of Appeal observed that it was not properly couched, although, the amended notice of appeal had already been paid for and was before the court. The appellant claimed that he was ready and prepared to move his said application to which no counter-affidavit in opposition was filed when, following hints from the court that the prayers were not properly framed, he was obliged to withdraw it. In the circumstance, he had no option than to apply for an adjournment of the appeal to regularise his position by bringing a better worded application.

In response to this application, learned counsel for the respondent applied orally for the dismissal of the appeal for want of prosecution. Learned counsel stressed that no opportunity was offered to the appellant to reply to the respondent’s application for the dismissal of the appeal before the court below granted the same and dismissed the appeal for want of prosecution.

The respondent, for his own part, claimed in his own brief that on the said 9th March, 1993, the appellant withdrew his application and applied for an adjournment to regularise the appeal, admitting that his brief of argument was incompetent. The respondent stated that he opposed the application and asked that the appeal be dismissed on the grounds, apart from the incompetence of the brief, that the conduct of the appellant showed a failure to demonstrate genuine interest in the appeal by failure to do all that were necessary before the hearing date.

He argued that this amounted to an attempt to delay the end of justice and an exhibition of lack of genuine belief in the success of the appeal.

As already stated, the court below without ruling on the appellant’s application for an adjournment and apparently without affording the appellant an opportunity to reply to the respondent’s application for the dismissal of the appeal proceeded peremptorily to dismiss the appeal, upholding the respondent’s submission that the appellant had failed to show genuine interest in the appeal. The court below was of the view that it must be assumed, as submitted by respondent’s learned counsel, that the appellant had no genuine belief in the success of his appeal. Accordingly the appeal was dismissed.

It is against the above decision of the Court of Appeal that the appellant has now appealed to this court.

Both the appellant and the respondent filed and exchanged their respective written briefs of argument. In the appellant’s brief, the under-mentioned issues were submitted for the determination of this court, namely-

“(1) Whether the appellant was accorded hearing or fair hearing before the oral application of the respondent for the dismissal of the appeal (in the Court of Appeal) was granted and the effect of same?

(2) Whether the learned Justices of the Court of Appeal followed or adopted the right procedure in dealing with and dismissing the appeal of the appellants?

(3) Whether in the circumstances of this case, the Court of Appeal ought not to have considered and granted an adjournment to the appellant to regularise his appeal?; and

(4) Whether in the peculiar circumstances of this case, the Court of Appeal was right in dismissing the appellant’s appeal for want of prosecution?”

The respondent, on the other hand, identified three issues in his brief for resolution. These are as follows:

“1 Whether the conduct of the appellant is consistent with a person not pursuing a genuine and bona fide appeal, who is merely stalling for time by not being diligent in prosecuting his appeal and who is asking for adjournment with a view to delaying the hearing of a frivolous appeal?

2. If ‘yes’, whether or not the Court of Appeal has materials before it which shows that the appeal of the appellant is prima facie without merits and frivolous and was right in exercising its discretion to dismiss the appeal summarily for want of prosecution?
3. Whether in the light of the realities of this case, the appellant has shown any good ground why the Supreme Court should interfere with the Court of Appeal’s exercise of discretion to dismiss an appeal which is hopeless, frivolous and without any merits.”

I have closely examined the two sets of issues formulated in the respective briefs of the parties and it is clear to me that the four issues raised in the appellant’s brief are sufficiently comprehensive for the determination of this appeal. I shall therefore adopt, in this judgment, the set of questions formulated in the appellant’s brief for my consideration of this appeal.

The appellant’s argument in respect of the first issue is that not having been offered any opportunity by the court below to reply to the respondent’s application for the dismissal of his appeal before the same was dismissed, he was given no hearing, much less, a fair hearing in the matter of the respondent’s said application. He cited, in support, the decisions of Alhaji Sulaimon Mohammed & Another v. Lasisi Sanusi Olawunmi (1990) 2 NWLR (Pt. 133) 458 at page 485 and Yaya Adigun and others v. Attorney-General of Oyo State (1987) 1 NWLR (Pt.53) 678 at pages 707-709. He stressed that it is the principle of lack of fair hearing that is the main basis of the appellant’s complaint in this appeal. He submitted that the Court of Appeal was in gross error by failing to rule on the appellant’s application for an adjournment before proceeding summarily to grant the respondent’s application for the dismissal of the appeal without affording the appellant an opportunity to reply to the latter application.

The respondent, in his reply, argued that the appellant could not be heard to say that he was not given a fair hearing in that the appellant was given an opportunity to file his brief of argument in the appeal but he failed or neglected to file a proper brief before the court. He submitted that the appellant after the withdrawal of his application which, inter alia, was for leave to amend his notice of appeal rendered the hearing of his appeal that day impossible as a result of which the Court of Appeal dismissed the same for want of prosecution. Relying on the decision in Onifade v. Olayiwola (1990) 7 NWLR (Pt.161) 130 at page 168 A – D, it was submitted on behalf of the respondent that since the appellant failed to establish any prejudice to himself by this dismissal, such as that the appeal had a chance of succeeding, there could be no question of denial of fair hearing as the appellant complains.

There can be no doubt that where an appellant fails to file his brief within the time provided for by Order 6 Rule 2 of the Court of Appeal Rules, 1981 or within such time as is extended by the court below, the respondent may apply to the court for the appeal to be dismissed for want of prosecution pursuant to the provisions of Order 6 Rule 10 of the Court of Appeal Rules. The position in the present case was however different. It was not that of failure to file the appellant’s brief of argument. It was a case where the appellant had promptly and duly filed his brief of argument on the 14th March, 1991 as required by the Rules. In that brief, as aforesaid, it was indicated that he would before the hearing of the appeal seek the leave of court to amend his notice of appeal to enable him proffer arguments in respect of seven new or additional grounds of appeal not contained in his original notice of appeal. He had advanced full arguments in respect of the said seven additional grounds of appeal in the brief which he had filed to cover the issues arising therefrom. These issues were fully replied to by the respondent in his own brief of argument.

The appellant’s application with a view to regularising his position, as indicated in his brief, was duly filed and served on the 5th March, 1993, four days to the hearing date of the appeal. This application, apparently following hints from the court below that the prayers were improperly couched, was withdrawn when it came up to be heard on the 9th March, 1993.

The same was dismissed by the Court of Appeal whereupon learned counsel for the appellant applied for an adjournment to regularise the appeal in the interest of justice.

From the record of proceedings, it is quite clear that when learned counsel for the respondent was called upon to reply to the appellant’s application for an adjournment, he made no reply thereto. Instead, he made a fresh oral application for the dismissal of the appeal for want of prosecution on grounds, firstly, that there was no competent appellant’s brief in the appeal and, secondly, that it must be assumed the appellant had no genuine belief in the success of his appeal.

‘The appellant’s application for an adjournment was not ruled upon but the respondent’s latter application for the dismissal of the appeal for want of prosecution was granted. The court below in granting the respondent’s application held that the appellant had failed to take proper steps to demonstrate that he had genuine interest in the appeal and that it must be assumed he had no genuine belief in the success of the appeal.

It was no where indicated in the record of proceedings that the appellant was accorded the opportunity of meeting the new development which clearly affected his constitutional right of appeal. The Court of Appeal instead of calling on the appellant to reply to the new development involved in the respondent’s application seemed to be in a haste to dismiss and did infact dismiss the appeal even without ruling on the application of the appellant for an adjournment.’The appellant’s application for an adjournment was not ruled upon but the respondent’s latter application for the dismissal of the appeal for want of prosecution was granted. The court below in granting the respondent’s application held that the appellant had failed to take proper steps to demonstrate that he had genuine interest in the appeal and that it must be assumed he had no genuine belief in the success of the appeal. It was no where indicated in the record of proceedings that the appellant was accorded the opportunity of meeting the new development which clearly affected his constitutional right of appeal. The Court of Appeal instead of calling on the appellant to reply to the new development involved in the respondent’s application seemed to be in a haste to dismiss and did infact dismiss the appeal even without ruling on the application of the appellant for an adjournment.

It is a basic principle of law that where a person’s legal rights or obligations are called into question, he should be accorded full opportunity to be heard before any adverse decision is taken against him with regard to such rights or obligations.

Put differently, it is an indispensable requirement of justice that an adjudicating authority, to be fair and just shall hear both sides, giving them ample opportunity to present their case. See Gukas v. Jos Int. Breweries Ltd. (1991) 6 NWLR (Pt.199) 614 at page 623 and Alhaji Mohammed and Another v. Lasisi Olawunmi (1990) 2 NWLR (Pt.133) 458 at page 485. Accordingly, a hearing can only be said to be fair when, inter alia, all the parties to the dispute are given a hearing or an opportunity of a hearing. If one of the parties is refused or denied a hearing or is not given an opportunity of being heard, such hearing cannot qualify as a fair hearing under the audi alteram partem rule. See Aladetoyinbo v. Adewunmi (1990) 6 NWLR (Pt.154) 98; Otapo v. Sunmonu (1987) 2 NWLR (Pt.58) 587 etc.

In the present case, it is crystal clear that the Court of Appeal was in grave constitutional error when it failed to hear the appellant on the respondent’s application for the dismissal of the appeal for want of prosecution before it proceeded to grant the application. Without doubt, such conduct on the part of the court below constitutes a definite infringement of the appellant’s right of fair hearing entrenched in section 33(1) of the 1979 Constitution which not only entails the right to hear a party on any issue which could be resolved to his prejudice but also to ensure that the hearing is fair and in accordance with the audi alteram partem and nemo judex in causa sua principles.

In Alhaji Mohammed and Anor v. Lasisi Olawunmi, supra, a motion for stay of proceedings was filed before the trial court. The respondent in that application raised a preliminary objection to the motion. The said preliminary objection was dismissed by the trial court which proceeded to grant the motion for stay of proceedings without calling on the respondent, as in the present case, to reply to the application.

On appeal, this court held that the application for stay having been granted without hearing both parties, the appellants were entitled to complain that they were not given a hearing, much less, a fair one.

Learned counsel for the respondent has submitted that since the appellant failed to establish any prejudice to himself by the dismissal of his appeal, such as that the appeal had a chance of succeeding, there is no denial of fair hearing. The straight answer to this submission is that the right to fair hearing is a fundamental constitutional right guaranteed by the 1979 Constitution and its breach in any trial nullifies, without doubt such trial. In the second place, the law is settled that it is unnecessary for any person alleging a denial of fair hearing to establish any injury or prejudice to himself before he may invoke his right to fair hearing. See Yaya Adigun v. Attorney-General, Oyo State and Ors. (1987) 1 NWLR (Pt.53) 678 at pages 707-708. In the present case, however, there can be no doubt that the appellant suffered definite injury or prejudice as a result of the failure by the court below to afford him a hearing. This is because his appeal was dismissed as a result and his constitutional right of appeal was thus denied him. In my view, the first issue which must be resolved in the appellant’s favour is enough to determine this appeal. I will however consider the other issues canvassed in this appeal.

The second issue poses the question whether the Court of Appeal adopted the right procedure in dealing with and dismissing the appeal of the appellant. The contention of the appellant is that the Court of Appeal was in error to have refused to rule on the application of the appellant for an adjournment before it granted the respondent’s application for the dismissal of the appeal. The respondent, on the other hand, contended that the appellant’s appeal was frivolous, vexatious, hopeless and lacked merit, that it was such that it could not possibly succeed and that the court below rightly dismissed it.’

The first point that must be made is that the appellant’s appeal was never argued before the Court of Appeal. It was terminated on a technical ground and was not dismissed on the merits. It cannot therefore be said, and indeed, I am unable to identify with any degree of certainty, any issues which justifies the hard adjectives used by the respondent to describe the appellant’s appeal.

In the second place, the court below summarily dismissed the appeal of the appellant for want of prosecution without first ruling on the appellant’s earlier application for an adjournment to regularise his appeal. With profound respect, it is my view that the manner adopted by the court below in dismissing the appellant’s appeal summarily was irregular and constituted a grave error of procedure. l agree with Mr. Fagbemi that the rule as to priority of hearing of two opposing applications, such as an application for an adjournment and a counter application for dismissal is that the court ought to take the course which will best ensure the doing of substantial justice to the parties where the facts and circumstances of the case so warrant and there are no inhibiting factors against such a course of action. In the circumstances of the present case, it seems to me that the application which ought to have been heard first and ruled upon was that seeking for an adjournment of the appeal to enable the appellant to regularise his appeal. That was the earlier of the two applications before the court. It was also properly made in the course of the proceedings. In my view the court below was in error by failing to take the application for an adjournment first and to rule thereupon before dealing with the application for the dismissal of the appeal particularly as this procedure would have given the appeal a possible chance of being considered and disposed of on the merits rather than on a technicality.

See Nalsa & Team Associates v. N.N.P.C. (1991) 8 NWLR (Pt. 212) 652 at pages 667-668; Vice Chancellor A.B.U. Zaria v. Ado (1986) 3 NWLR (Pt.31) 684 etc.

However, whether the application for an adjournment would be granted or refused is a totally different matter. What seems to me important in the situation is that the application for an adjournment having been made, the same ought first to have been addressed, considered and ruled upon one way or the other before the application for dismissal would be taken. Even where the application for the adjournment was heard and refused, the power of the court to dismiss the appeal ought not to be exercised still unless the appellant was given the opportunity and he refused to proceed with his appeal. The appellant must have been given the opportunity to proceed with his appeal, failing which the Court of Appeal, may, in its discretion, make whatever appropriate orders it may deem fit in the circumstances.

It was therefore the duty of the Court of Appeal before deciding to dismiss the appellant’s appeal to have disposed of the application for an adjournment properly made to it by the appellant by ruling that the same was either granted or refused. If it was refused, it was the further duty of the court below to give the appellant an opportunity to decide whether or not to go on with his appeal. This, the Court of Appeal failed to do. It is therefore my view that the dismissal of the appellant’s appeal in the circumstances explained above without giving him an opportunity to proceed with the appeal if he so desired is, with great respect, a grave procedural error which, without doubt, occasioned a miscarriage of justice and constituted a definite breach of the audi alteram partem rule. See too Ceekay Traders Limited v. General Motors Co. Ltd. (1992) 2 NWLR (Pt.222) 132 at pages 147-148, 156-157; Albert Ilona and Another v. Ojugbeli Dei & Another (1971) NMLR 5 at 7-8 and Harrods Limited v. Anifalaje (1986) 5 NWLR (Pt.43) 603. It is my considered opinion therefore that issue number two must again be resolved in favour of the appellant.

The third issue is whether in all the circumstances of this case, the Court of Appeal ought not to have considered and granted the adjournment applied for by the appellant to regularise his appeal. The appellant’s answer to this issue is in the negative, whilst the respondent contends that the Court of Appeal, having exercised its discretion judiciously in dismissing the appeal, ought not to have granted the adjournment sought.

In this regard it must be restated that the grant or refusal of an adjournment is entirely within the discretion of the court. A court is not bound to grant every application but may refuse an unreasonable application. An appellate court would not generally question the exercise of discretion by a lower court merely because it would have exercised this discretion in a different way if it had been in the position of the lower court. However, such an exercise of discretion would be questioned if, as a result of such exercise, injustice is meted out to either of the parties or, if the discretion is wrongly exercised in that due or sufficient weight was not given to relevant or important considerations. See Solanke v. Ajibola (1968) 1 A11 NLR 46; Awani v. Erejuwa II (1976)11 S.C. 307; Saffiedine v. Commissioner of Police, Western Nigeria (1965) 1 A11 NLR 54 etc.

In the present case, what was in controversy between the parties is land which, without doubt, is of unquestionable importance in this country. There is no evidence from the record of proceedings that the appellant had at any other time previously applied for an adjournment of the case before the court below.

There is also no evidence that the application was made in bad faith or that it constituted a definite attempt to delay the hearing of the appeal as suggested by the respondent. It became necessary following the unexpected withdrawal of the appellant’s application for leave to amend his original notice of appeal. The judgment of the trial court in the suit was delivered on the 18th July, 1990. Only two days after, the appellant filed his notice of appeal against the said judgment on the 20th July, 1990.

Conditions of appeal were given on the 16th August, 1990 and these were duly perfected by the appellant on the 24th August, 1990 – seven days thereafter. The records were before the Court of Appeal late in 1990 and the appellant’s brief was duly filed on the 14th March, 1991. It cannot in the circumstances be seriously suggested that the appellant had exhibited any conduct which could be described as delaying tactic in the appeal. It seems to me that the appellant found himself in an unexpected and unenviable situation where he needed an adjournment to regularise his appeal. I think he ought, in the interest of justice to have been obliged to enable the court determine the appeal which concerned land on its merits. See Usikaro v. Itsekiri Communae Lands Trustees (1991) 2 NWLR (Pt. 172) 150 at page 173 and 180.

In this regard, it must be borne in mind and it is a well established principle of law that all discretions must be exercised according to common sense and according to justice and, at times, it may be necessary to lean backward over to ensure that parties are not punished for the negligence, inadvertence or error of their counsel. See: Anisuaba v. Emodi (1975) 2 S.C. 9 at 13. It is clear that because of the failure by the Court of Appeal to grant the appellant’s application for an adjournment, injustice was meted out to him as his appeal was thereby summarily dismissed because only of the inadvertence on the part of his counsel. It is my view that the Court of Appeal was in the particular circumstances of this case, in error to have failed to grant the adjournment applied for by the appellant and as a result of which he suffered injustice by the dismissal of his appeal without any hearing.

The last issue poses the question whether in the particular circumstances of this case, the court below was right in dismissing the appellant’s appeal for want of prosecution. It is the appellant’s case that the Court of Appeal was in error by dismissing the appeal in disregard of established facts which clearly showed that the appellant had been most keen and serious in the prosecution of the appeal. For the respondent, it was argued that the appeal was, in the main, dismissed because the court accepted the contention of learned counsel for the respondent to the effect that the appellant had no genuine belief in the success of this appeal.

It seems to me quite clear from the record of proceedings that the Court of Appeal dismissed the appeal on two grounds. The first is the court’s assumption that the appellant had no genuine belief in the success of his appeal. The second reason is that the appellant’s brief of argument was incompetent.

I have already observed with regard to the first stated reason that there is no evidence whatever from the record of proceedings in proof of the assumption by the court below that the appellant had no genuine belief in the success of his appeal. On the contrary notice of appeal against the High Court judgment was filed on the 20th July, 1990, only two days after the delivery of the judgment appealed against. Conditions of appeal imposed on the 16th August, 1990 were promptly perfected by the appellant seven days thereafter. The records transmitted expeditiously to the Court of Appeal by the end of 1990 and the appellant’s brief was duly filed since the 14th March, 1991.

The appellant being desirous to proffer arguments in respect of certain additional grounds of appeal he had set out in his brief and had indeed argued and the respondent had in fact replied to the new issues in his own brief, had on his own and without any prompting from any quarters filed an application on the 5th March, 1993 to regularise his position. This application, when it came up to be heard along with the appeal on the 9th March, 1993 was discovered to have been improperly framed and was as a result withdrawn. Speaking for myself, it seems to me difficult in these circumstances to suggests with any degree of seriousness that the appellant had not been serious in the prosecution of his appeal or that he had exhibited no genuine belief in the success thereof. No doubt, his learned counsel did not file the application in issue early enough as he ought to have done. It was only filed and served four days to the hearing date of the appeal and this seems to be the one single and isolated act of inadvertence committed by learned counsel for the appellant all through the prosecution of the appeal.

In this regard, it has to be restated that although blunders may occur from time to time, it may amount to injustice to insist that because a blunder during interlocutory or in the course of proceedings has been committed, the party blundering must necessarily incur the penalty of not having the dispute between him and his adversary determined upon the merits. See Ojikutu v. Odeh (1952)14 WACA 640. The extreme measure of the imposition of such penalty by the court needs only arise in cases where having regard to all the circumstances of the case, it is in the best interest of justice so to order.

In the present case, it cannot be said that the appellant’s conduct by not filing his application for leave to regularise his appeal early enough amounted, on the particular facts of the case, to any blunder on his part. It was a case of an isolated act of inadvertence on the part of the appellant’s counsel. Considered against the background of the appellant’s exhibition of vigour and unmistakable seriousness in the prosecution of his appeal right from the moment his appeal was filed up to the 5th March, 1993, it cannot be said that the above conduct, without more, amounted conclusively to calculated attempt to delay the end of justice. It did not also amount to lack of genuine belief in the success of his appeal as suggested by the respondent.

I will now turn to the alleged incompetence of the appellant’s brief. The Court of Appeal treated this brief as incompetent as a result of which it proceeded to dismiss the appeal. The court below pronounced the appellant’s brief as incompetent by reason of the fact that it incorporated argument on grounds in respect of which leave had not been obtained.

With profound respect to the court below, it cannot be the law that once a brief which covers argument flowing from issues arising from the original grounds of appeal incorporates further argument on issues arising from additional grounds of appeal in respect of which no leave to file the same has been obtained, such an appellant’s brief ipso facto becomes incompetent. I am in full agreement with the learned counsel for the appellant that it is only so much of the argument in the appellant’s brief that was not anchored on the original grounds of appeal that may be treated as going to no issue and therefore to be discountenanced. See Momodu v. Momoh (1991) 1 NWLR (Pt. 169) 608 at page 620-621 and Okonji v. Njokanma (1991) 7 NWLR (Pt.202) 131 at page 153.

Accordingly, notwithstanding the admission of appellant’s learned counsel to the effect that the appellant’s brief was incompetent, the court below was entitled in law to examine the records and to hold that the entire appellant’s brief was not altogether incompetent. It was also entitled to call on the appellant to argue such competent issues that were distilled from the original grounds of appeal filed. This the Court of Appeal failed to do. Instead, it proceeded to dismiss the appeal summarily and I entertain no doubt that this was a grave error of law on the part of the court below. Accordingly the fourth issue is hereby resolved in favour of the appellant.

The conclusion I finally reach is that this appeal must succeed and it is hereby allowed. The judgment and orders of the court below given on the 9th March, 1993 dismissing the appellant’s appeal for want of prosecution are hereby set aside. In substitution thereof, the appellant’s application for an adjournment of the appeal in order to regularise his position is hereby allowed. The appeal is remitted to the court below for hearing de novo on its merits before another panel of justices of that court. The appellant is entitled to the costs of this appeal in the sum of N1000.00 in this court and N500.00 in the court below.

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Other Citation: (1996) LCN/2741(SC)