Thomas Orji V. The State (2019)
LAWGLOBAL HUB Lead Judgment Report
SIDI DAUDA BAGE, J.S.C.
This matter originated from the Chief Magistrate Court of Rivers State holden at Port-Harcourt, coram: Chief Magistrate, Igoniko Emman. The Appellant herein had been charged along with nine (9) others with offences of conduct likely to cause breach of the peace and willful damage. In his Judgment delivered on 23/02/1994, seven (7) out of the ten persons that stood trial were acquitted of the charge and they were accordingly discharged. The Appellant and two others were however each found guilty as charged and were convicted and sentenced to six (6) months imprisonment with hard labour (IMHL) with an option of fine of N250,00 for counts 2,3,4 and 5 of the charge. The three were cautioned and discharged for counts 6th, 7th, 8th and 9th of the charge.
Dissatisfied with the decision of the Chief Magistrate Court, led the Appellant and the other two convicts to appeal to the appellate jurisdiction of the High Court of Rivers State with their Notice of Appeal filed on 8/3/1994.
In its Judgment delivered on 17/7/1996, the High Court sitting as a special appeal cases Court below,
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coram: K.D. Ungbuku, the Chief Judge (of blessed memory) and C.I. Uriri, J. (as he then was) found the appeal incompetent and same was dismissed.
Further aggrieved with the High Court, led to the appeal by the Appellant and two others to the Port-Harcourt division of the Court of Appeal. In its unanimous decision handed down on 25/02/2010, the Court below found the appeal incompetent and unmeritorious. It dismissed same without costs. That dismissal has led to the instant appeal filed on 2nd June, 2014, pursuant to the order of this Court earlier obtained for extension of time to appeal against the division of the Court below.
The Appellant was one of the three Appellants at the Court below. Parties filed and exchanged Briefs of Argument, and the appeal was heard on the following processes: Amended Appellant Brief of Argument filed on 2/12/2014 but deemed properly filed and served on 21/02/2019, Respondent’s Brief of Argument filed on 19/04/2016 but deemed duly filed and served on 21/02/2019.
From the Appellant’s said amended Brief of Argument, the following two issues are distilled for the determination of this appeal.
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Issue 1
Was the lower Court right when it comes to the conclusion that the Appellant did not file a Brief of Argument, the basis on which it refused to hear the appeal on the merit and thereby visiting the sin of the Registry, who misfiled the Appellant’s Brief on the Appellant The sin of Registry issue (Ground 1).
Issue 2
Was the Lower Court not wrong to have dismissed the Appellant’s appeal without a hearing on the merits and on the ground that the Appellant from the other Appellants in the appeal before the Lower Court The dismissal without hearing on the merit issue (ground 2).
On issue one, distilled from Ground 1 of the Notice of Appeal challenging the decision of the Court below in dismissing the Appellant’s appeal based on what the Appellant considered as the manifest error of the Court below Registry, misfiling the Appellant’s Brief of Argument, the Appellant referred to page 129- 130 of the Record for the Judgment of the Court below, inter alia, Learned Counsel contended that the question that begs for answer is whether the Court below was right to have dismissed the Appellant’s appeal as it did without hearing on the merits on
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the basis that the Appellant did not file any Briefs of Argument. He answered in the negative. He submitted that the Court was patently wrong in dismissing the Appellant’s appeal on the ground that the Appellant did not file a Briefs of Argument. Learned Counsel submitted that contrary to the findings of the Court below, the Appellant filed Brief of Argument on 8th June, 1998 and on 18th October, 2010. He referred to the findings in the Judgment of the Court below for the references made by the Court to the process filed by the Appellant as a Briefs of Argument. He contended that from the said references in the Judgment of the Court below to the pages and paragraphs of the Appellant’s Briefs of Argument, the Lower Court was then in error to have held that there was no Appellant’s Brief of Argument upon which the appeal was dismissed. He contended that the said dismissal of the appeal becomes a nullity, in that there was a subsisting appeal which deserved to be heard on merit at the time the dismissal order was made by the Court below. He urged the Court to upturn and set aside the dismissal order of the Court below relying on EDE VS MBA (2011) 18 NWLR (pt. 1278) 236.
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Learned Counsel contended that, assuming without conceding that there was no Appellant’s Brief of Argument filed in the Court’s Record, he submitted that it was an omission, not caused by the Appellant but by the Registry of the Court, which either misfiled the Appellant’s Brief of Argument or did not put same in the Record of the Court.
Learned Counsel referred to the Record on pages 75-87 and 117-122 and contended that the Appellant filed a Brief of Argument on 8/6/1998 and a reply Brief of Argument on 8/10/2000, which Briefs of Argument were duly paid for by the Appellant and acknowledged by the Lower Court’s Registry. He contended that the mix-up and or confusion as regards the processes filed by the Appellant was due to the incompetence and errors of the Registry of the Court below which muddled up the processes filed by the Appellant by misfiling the Appellant’s said Briefs of Arguments. Given the above premises, Learned Counsel submitted that the situation and or circumstances which led to the dismissal of the Appellant’s appeal by the Court below passes for the sin of the Lower Court’s Registry which should not have visited on the
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Appellant. He submitted that the law is settled, that a party to proceedings should not be made to suffer for the errors of the Court Registry of officials, that is, the sin of the Court Registry or officials should not be visited on the Appellant. He relied on COOPERATIVE & COMMERCE BANK (NIG) PLC VS A.G. ANAMBRA STATE (1992) 8 NWLR (pt. 261) 528 at 561 WHICH WAS REFERRED TO IN EDE VS MBA (supra) by this Court. ANYANWOKO VS OKOYE (2010) 5 NWLR (pt. 1188) 497 AT 520; (2010) 182 LRCN 105; FIDELITY BANK PLC VS MONYE (2012) 10 NWLR (pt. 397) 1; (2012)209 LRCN 157; GENERAL ELECTRIC CO. VS AKANDE (2012) 15 NWLR (pt.1327) 593; (2012) LRCN 1.
Learned counsel submitted that the Court below lacked the required competence to dismiss the appeal for want of prosecution when indeed the Appellant had filed his Brief of Argument.
Learned Counsel further submitted that assuming without conceding that the Appellant did not file a Brief of Argument, closer examination of the Grounds of Appeal of the Appellant before the Court below discloses that the appeal has merit. He contended that the Court below ought to have satisfied itself that there was prima facie
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evidence that the appeal lacked merit before proceeding to dismiss same on the ground that the Appellant did not file a Brief of Argument. He submitted that the Court below was in error having failed to satisfy itself prima facie that the appeal lacked merit. He relied on OLOWU VS ABOLORE (1993) 5 NWLR (pt.293) 255; NNEJI VS CHUKWU (1988) 3 NWLR (pt.81) 184.
He urged the Court to resolve the issue in favour of the Appellant by allowing the appeal and set aside the dismissal of the Appellant’s appeal at the Court below,
Issue 2 The dismissal without hearing on merit.
The issue was said to have arisen from Ground 2 of the Notice of Appeal and the issue addresses a procedure adopted by the Court below, in dismissing an appeal on the ground of failure to file a Brief of Argument when the appeal was not heard on the merits. Learned Counsel submitted that, assuming without conceding that there was any blunder by the Appellant in not filing his Brief of Argument at the Court below, it was still not a sufficient reason for the Lower Court to have dismissed the appeal without hearing on the merit, as opposed to an order striking out the appeal.
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He relied on ADERIBIGBE VS ABIDOYE (2009) 10 NWLR (pt.1150) 592; (2009) 173 LRCN 60; AGBAKOBA VS INEC (2008) 18 NWLR (pt.1119) 489; NTUKIDEM VS OKO (1986) 5 NWLR (pt. 45) 909 at 931-932; DANTATA & SAWOE CONST. CO. NIG. LTD VS EGBE (1993) 4 NWLR (pt. 287) 335.
Learned Counsel contended that the issue as to whether the Appellant filed a Brief of Argument in the appeal before the Court below, the basis upon which the Appellant’s appeal was dismissed was raised, suo motu by the Court below without giving the Appellant the opportunity of addressing the Court on whether or not he had, indeed, filed a Brief of Argument. He contended that, had the Court heard from the Appellant on the issue, its attention would have been drawn to the fact that the Appellant filed his Brief of Arguments. He cited AULT & WIBORG (NIG) LTD VS NIBEL IND. LTD. (2010) 11 NWLR (pt. 1220) 486; LONGE vs FBN PLC (2010) 5 NWLR (pt. 1189) 1; (2010) 185 LRCN 33.
Learned Counsel contended that by dismissing the Appellant’s appeal without hearing on the merit as it did especially where the Appellant filed his Brief of Argument, the Court below breached the Appellant’s right to have
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his appeal fully and fairly determined. He submitted that the failure by the Court below to hear the Appellant’s appeal on the merit occasioned a great miscarriage of Justice; hence the dismissal order should be declared a nullity. He urged the Court to resolve this issue in favour of the Appellant and allow the appeal. He further urged the Court to acquit and discharge the Appellant.
From the Brief of Argument filed for the Respondent, the two issues distilled by the Appellant appeared argued together by the Respondent.
Learned Counsel referred to the contention of the Appellant that he was visited with the sin of the staff of the Registry of the Court below in dismissing the appeal, when it was the registry’s staff that misfiled the Appellant’s Brief of Argument. He submitted that the contention was misplaced as the Appellant was accorded the opportunity to present and argue his case which he did not seize. He contended that it is the duty of a party to present his case before the Court and if he fails in this regard, he cannot be heard to argue that he was denied fair hearing. He relied on CHAMI VS UBA PLC (2010) 6 NWLR (pt.1191) 474 at 497.<br< p=””
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He referred to pages 129-130 of the Records for the findings of the Court below on the way the processes were handled by the Appellant. He contended that the confusion came about because the Appellant failed to properly guide the Registry as to which of the three separate appeals was being argued, instead he proceeded as if there was just one appeal that was coming up for hearing. He contended further that the proper procedure would have been for the Appellant’s Counsel to properly make an application to Court to consolidate the hearing of the three separate appeals etc. He referred to page 123 of the Record to show that the Appellant failed to do the needful by not informing the Court below that the hearing was for the three separate appeals but proceeded as if it was only one appeal that was being argued. He relied on AKPAN VS BOB (2010) 17 NWLR (pt. 1223) 421 at 467; (2011) 193 LRCN 78. He submitted that the two issues distilled and argued are incompetent having been distilled from incompetent Grounds of Appeal hence he urged the Court to strike out the said issues.
Learned Counsel conceded that generally, the Court will not visit the sins,
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inadvertence, fault or mistake of Counsel on a litigant, but contended that there are exceptions to the rule. He relied on ERINFOLABI VS OKE (1995) 5 NWLR (pt. 395) 296 at 303; MOSHESHE GENERAL MERCHANT LTD. VS NIGERIA STEEL PRODUCTS LTD (1987) 2 NWLR (pt.55) 110.
He submitted that the appeal lacks merit and should be dismissed. He urged the Court to dismiss the appeal and affirm the Judgment of the Court below.
Having gone through the Record of this appeal, including the Notice and Grounds of Appeal, I am convinced that the main issue for the determination of this appeal, as arisen from the Grounds of Appeal could be framed as follows:
“Whether the Court below was right to have dismissed the Appellant’s appeal for want of diligent prosecution when the said appeal was not heard on the merits.”
From the Notice of Appeal filed by the Appellant in this Court, the decision complained of reads thus:
“The whole Judgment of the Court of Appeal dated 25th February, 2010 dismissing Appellant’s appeal for being incompetent.”
In the Judgment of the Court below the following findings, inter alia, were made:
“Before being called upon to attend to the Notice of Preliminary Objection of the Respondent, I shall comment briefly on the Brief of
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Argument of the Appellants settled by their Learned Counsel for the determination of the appeal. It has been observed that the Record of this appeal and indisputably, the Appellants, namely Clement Nwaoha. Thomas Orji and Kemka Chukwu, filed separate Notice of Appeal all dated 20/9/1996. Under normal circumstance the processes for the purpose of this appeal should clearly reflect the name of the Appellants. In Appellants’ Brief of Argument dated 3/6/1998 and filed on 8/6/1998, it is only the name of “Thomas Orji” that appears. In the reply Brief Learned Counsel reacting and replying the Respondent’s Brief filed on 18/10/2000, singled out “Clement Nwaha” as the Appellant and yet in another reply Brief filed on 18/10/2000 it was “Thomas Orji” who appears as the Appellant.
Further confusion ensued. In his Notice of Preliminary Objection, set out above already, the Appellant/Respondent therein is “Kemka Chukwu” for whom no Brief was filed, although he filed a Notice of Appeal.
The quagmire the parties have found themselves is
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due to the inelegant handling of this matter…
In the light of all these observations, I have made above and the lack of clear, precise, plain and unambiguous Brief of Argument by a particular Appellant in this appeal. I adjudge this appeal as most incompetent and unmeritorious and it is accordingly dismissed without costs, in the circumstance, in favour of the Respondent.”
See pages 129-131 of the Record.
As clearly shown from the above findings of the Court below and its conclusion, there is no doubt that the appeal was not considered on its merit.
Contrary to the contention of the Learned Appellant’s Counsel, the Court below did not base its decision to dismiss the appeal on failure of the Appellant to file his Brief of Argument. Indeed, it was mainly based on the inelegant way the appeal was handled by the parties. References were made to the Brief of Argument filed by the Appellant before the Court below. Therefore, the reason given for dismissing the appeal by the Court below was not for failure to file Brief of Argument. The Appellant’s Brief of Argument is on pages 75 to 88 of the Record, which was settled by the Appellant’s Counsel
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Obulor Collins N. Esq, filed 8/6/1998. While the purported Respondent’s Brief of Argument was filed on 6/10/2000 and Appellant’s Reply Brief of Argument to the Respondent’s Brief of Argument was filed on 10/11/2000. (See pages 90-122 of the Record)/ on 11/01/2010, the Court below took the appeal and Judgment was reserved to 25/2/2010 with an order for the issuance of hearing notice on the Respondent who was neither present in Court nor represented by Counsel.
Generally, the law is trite that when an action is dismissed, unless the Rule of Court permits, such action cannot be re- opened. The dismissal is ordinarily conclusive of the matter or issues decided therein and remain so until the Judgment is set aside on appeal. See; NIGERIA AIRWAYS LTD. VS F. A. LAPITE (1990) NWLR (pt. 163) 392; (1990) 11-12 SC.60; (1990) LPELR 1998.
However, when an appeal is dismissed by a Court of Appeal, pursuant to its Rules, that decision is a final decision and the Court becomes functus officio and cannot relist or re-enter the appeal on its cause list. See; FIRST BANK OF NIGERIA PLC VS T.S.A. INDUSTRIES LTD. (2010) 15 NWLR (pt.1216) 247; (2010) 187
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LRCN 1. In the same vein, by the same Rules of the Court of Appeal, an appeal may be dismissed for want of prosecution where the Appellant fails to file his Brief of Argument within time and extension of time was not granted so to do. See:AKANKE OLOWU & ORS. VS AMUDATU ABOLORE & ANOR. (1993) 5 NWLR (pt.293) 255-384; (1993) 6 SCNJ 1; (1998) LPELR 2603; SHEHU BABAYAGI VS ALHAJI NDASADU BIDA (1998) LPELR 699; (1998) 55 LRCN 2959.
As I earlier stated, there is no doubt that the Court below did not dismiss the appeal before it for failure to file Appellant’s Brief of Argument. There is also no indication that the appeal was dismissed pursuant to Order 6 Rule 10 of the Court of Appeal Rules, but due to the inelegant handling of the matter.
In PHILIP OBIORA VS PAUL OSELE (1989) 1 NWLR (pt.97) 276; (1989) 1 SCNJ 213, this Court, per Oputa, JSC stated as follows:
The aim of the whole exercise is to do justice between the parties by hearing their appeals on the merit in spite of any mistake made by Counsel in the preparation and prosecution of the appeals… The mere fact that a Brief filed by an Appellant did not comply with
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the rules made under Order 6 of the Court of Appeal Rules does not mean that the Appellant has filed no Brief. The Court cannot in these circumstances deem a Brief filed as no Brief.”
In Chief THOMAS EKPEMUPOLO & ORS VS GODWIN EDREMODA & ORS. (2009) 4 SCM 63; (2009) 8 NWLR (pt. 1142) 166: (2009) LPELR 1089; (2009) 176 LRCN 235, on whether an appeal can be dismissed on ground of inelegant Brief, this Court, per Ogbuagu, JSC opined as follows:
“It has been stated and restated by the two appellate Courts and held by them in a line of decided authorities that an inelegant or bad or defective Brief need not be struck out (how much more dismissing an appeal on that ground). That the Court should make the best that it can out of it.”
See also CHINWEZE & 2 ORS. VS MRS. VERONICA MASI & ANOR. (1989) 1 NWLR (pt.97) 245; (1989) SCNJ 148; GBAFE VS PRINCE GBAFE & 3 ORS. (1996) 6 NWLR (pt. 455) 417; (1996) 6 SCNJ at 178; (1996) 39 LRCN 1109.
Ordinarily, when an application or an appeal, as the case may be, is found to be incompetent for any reasons, it cannot be dismissed, not having proceeded to hearing on merits. At best, it will be
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struck out. Otherwise, the order of dismissal will be taken as a striking out order liable to be set aside, to allow for relisting or fresh application on same subject. This is the justice of the matter and fairness to the parties concerned.
In the instant matter, the Court below, for whatever reason, adjudged the appeal incompetent, yet dismissed same. This order, with respect, is most inappropriate and erroneous, to say the least. There is no doubt that on the above authority, the Court below, with respect was wrong and not justified to have dismissed the appeal on the grounds stated by it. I therefore have no hesitation in stating that by dismissing the appeal for the reasons stated by the Court below, without considering the appeal on merits, the Appellant can be said to have suffered substantial injustice or a miscarriage of justice. The Appellant was not given fair hearing, as constitutionally guaranteed and he is entitled to redress.
In the final analysis, this appeal deserves to be allowed in part. Not having been heard on merits, the order dismissing the appeal by the Court below is set aside.
Accordingly, this appeal succeeds, in part,
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and it is so allowed.
Appeal allowed in part.
The appeal is hereby remitted to the Court below to be heard on merit on the Briefs filed by the parties.
SC.710/2014