Appeal dismissed under the court of appeal rules for failure to file brief of argument cannot be relisted

ATTORNEY-GENERAL OF THE FEDERATION & ORS v. THE PUNCH NIGERIA LIMITED & ANOR CITATION: (2019) LPELR- 47868(SC)

In the Supreme Court of Nigeria
ON FRIDAY, 14TH JUNE, 2019
Suit No: SC.53/2007

Before Their Lordships

OLABODE RHODES-VIVOUR, JSC
OLUKAYODE ARIWOOLA, JSC
CHIMA CENTUS NWEZE, JSC
PAUL ADAMU GALUMJE, JSC
SIDI DAUDA BAGE, JSC

Between
1. ATTORNEY-GENERAL OF THE FEDERATION
2. INSPECTOR-GENERAL OF POLICE
3. COMMISSIONER OF POLICE LAGOS STATE
4. STATE SECURITY SERVICE
5. CHIEF OF ARMY STAFF -Appellant(s)
And

1. THE PUNCH NIGERIA LIMITED
2. BOLA BOLAWOLE
(EDITOR PUNCH NEWSPAPERS) -Respondent(s)

LEAD JUDGMENT DELIVERED BY OLU ARIWOOLA J.S.C.
FACTS OF THE CASE
This is an appeal against the ruling of the Court of Appeal, Lagos Division, dismissing appellants’ appeal against the decision of the Federal High Court, Lagos, handed down on July 29, 1994.

On June 14, 1994, the respondents obtained leave of the trial Court to enforce their fundamental rights, pursuant to Section 42 (1) and (2) of the 1979 Constitution as amended by Decree No.107 of 1993, Order 1 Rule 2(1), (3) and (6) and Order 4 of the Fundamental Rights (Enforcement Procedure) Rules, 1979 and under the inherent jurisdiction of the Court as preserved by Section 6 (b) of the 1979 Constitution, as amended. Applicants thereafter sought declaratory reliefs, injunctive reliefs, mandatory orders and damages. After series of adjournments, the trial Court heard the application, granted the declaratory reliefs, awarded the sum of N25million damages against the appellants for the illegal and unconstitutional sealing up, invasion and subsequent stoppage and/or disruption of lawful activities of the 1st respondent, and the sum of N100, 000 as damages for unlawful detention of the 2nd applicant/respondent. Dissatisfied, the appellants appealed to the Court of Appeal.

On August 10, 1994, the appellants filed an appeal at the Court of Appeal. On 4, June, 1999, the respondents filed an application before the Court of Appeal, praying for an order dismissing the appeal of the appellants for want of diligent prosecution, as no further step had been taken after the appeal was filed by the appellants. The application was heard and the appeal was dismissed on March 18, 2004. Appellants’ application before the Court of Appeal, praying for an Order setting aside the Order of dismissal was dismissed.Dissatisfied with the decision of the Court of Appeal, the appellant appealed to the Supreme Court.

ISSUES FOR DETERMINATION
The Court determined the appeal on a sole issue formulated by the Appellant, as follows:
“Whether the Court below was right in dismissing the appellants’ application to set aside its ruling dismissing the appellants’ appeal.”

APPELLANT’S COUNSEL SUBMISSION
Submitting on the lone issues, the Appellant submitted that where there are two competing applications pending before the court, one constructive and the other destructive, the court will hear the constructive application first. He relied on AG, Federation Vs. AIC Ltd (1995) 2 NWLR (Pt.378) 388 at 397. He contended that on December 3, 2003 when the matter came up for hearing in the court, the appellants’ counsel was in court but counsel did not represent the respondents. The two pending applications were then adjourned to March 18, 2004 for hearing. However, on March 18, 2004 the respondents’ counsel was in court but appellants were neither in court nor represented by counsel. The respondents’ counsel then moved their application for dismissal and the court granted it.

Learned counsel contended that the appellants’ application for leave to amend was still pending before the court and was yet to be moved when the appeal was dismissed, hence the application brought by the appellants for an order to set aside the Order dismissing the appeal to enable the appellants move their pending application for leave to amend their Notice of Appeal. He submitted that the dismissal of the appellants’ appeal whilst their application for leave to amend their Notice and Grounds of Appeal was pending before the Court of Appeal amounts to miscarriage of justice and breach of their right to fair hearing.

RESPONDENT’S COUNSEL SUBMISSION
On the lone issue, the aespondent submitted that the court’s conclusion on its ruling of March 18, 2004, was made pursuant to the respondents’ application dated June 3, 1999, which had prayed for the dismissal of the appellants’ appeal under Order 6 Rule 10 of the Court of Appeal Rules, 2002 for failure to file appellants’ brief of argument.

Respondent submitted that the appeal was entered on July 8, 1996. But the application of the respondents, which sought an order for dismissal of the appeal was filed almost four years thereafter, in June 1999 after the appeal had been entered. Yet the said application could not be heard until March 8, 2004, again five years after it was filed. He submitted that the Court of Appeal had given undue indulgence to the appellants for five years with the hope that they would file their brief of argument but they never did. He submitted that the Court of Appeal was correct and right in the entire circumstances of the appeal to refuse to set aside their Order made on March 18, 2004 dismissing the appeal under Order 6 Rule 10 of the Court of Appeal Rules, 2002.

It was further submitted that the consideration of the Court of Appeal might have been different if there had been a Motion on Notice for extension of time to file a brief of argument and a deeming order sought for an already filed brief of argument. He submitted that the appellants had abandoned their appeal and the Court of Appeal was right in dismissing it.

RESOLUTION OF ISSUES
In resolving the sole issue, the Court stated that by virtue of the Court of Appeal Rules 2002 that was then applicable to the matter, Order 6 Rule 2 of the said Rules provides that: “The appellant shall within sixty 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 appeal.”

The Court stated that it is equally clear on the record that the appeal was entered on July 8, 1996, but the appellants did not file their brief of argument as required by the rules, within sixty days from the date the appeal was entered on July 8, 1996. And there was no application by them for enlargement of time to file the said brief out of time and by virtue of Order 6 Rule 10 of the Court of Appeal Rules “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.”

The court noted that when the respondents filed an application on June 4, 1999 praying for an order of the court dismissing the appeal for want of diligent prosecution, the appellants were duly notified of the said respondents’ application but the court was unable to deal with the application until March 18, 2004, indeed five years after it was filed in court. Also, that on December 3, 2003 when the matter came up and the two pending applications were listed for hearing, the appellants were adequately represented in Court by their counsel — Mr. Okpoko who sought an adjournment, according to him, to consider their position in the matter.

The two applications were accordingly adjourned to March 18, 2004 and hearing notice was ordered to issue on the respondents. However, when the matter again came up on March 18, 2004, the appellants whose counsel had sought an adjournment was absent and not represented and there is nothing on record to show why the appellants were not in court and not represented by any counsel.

The respondents’ counsel then proceeded with their application for an Order dismissing the appeal pursuant to Order 6 Rule 10 of the Court of Appeal Rules, 2002. The Court of Appeal having found that indeed the appeal had been entered since July 8, 1996 when the appellants were granted departure from the rules as sought, they were yet to file their brief of argument, the appeal was dismissed pursuant to Order 6 Rule 10 of the Rules of the Court.

The Court held that the Court of Appeal was very correct in granting the prayer of the respondents for the dismissal of the appeal for failure to file brief of argument to show their diligence in pursuing their appeal relying on Kraus Thompson Organization Vs. N.I.P.S.S (2004) 17 NWLR (Pt.901) 44 where the same Order 6 Rule 10 of the Rules of the Court of Appeal was considered by this Court. Relying on Shehu Babayagi Vs. Aihaji Bida (1998) 2 NWLR (Pt.538) 367, the Court held that the appeal was therefore properly dismissed and the dismissal order is final and irreversible. The Court of Appeal no longer had competence or jurisdiction on the appeal that had become spent by the order of dismissal. The Court of Appeal had become functus officio on the matter and it can neither set aside its order nor relist the already dismissed appeal.

The Court agreed with the Court of Appeal that even where the Court had granted the appellants’ prayer for leave to amend, there being no application for enlargement of time to file the brief of argument after the prescribed time had lapsed with the respondents’ application to dismiss the appeal pursuant to Order 6 Rule 10 of the Rules of the Court, the appeal would have still been dismissed.

HELD
In conclusion, the Court found the appeal lacking in merit and consequently dismissed it.
Appearances:
C. I. Okpoko SAN (Asst. Director) with him, H. U. Chime, Esq. CSC and Alo Akinde, Esq. SSC -For Appellant
Clement Onwuenwunor, Esq. with him, Gerald Ogokeh, Esq. – For Respondent
Compiled by LawPavilion