Whether Appeal Dismissed for Want of Diligent Prosecution Can be Relisted

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In the Supreme Court of Nigeria Holden at Abuja On Friday, the 18th day of December, 2020 Before Their Lordships

Nwali Sylvester Ngwuta

Olukayode Ariwoola

Musa Dattijo Muhammad

John Inyang Okoro

Uwani Musa Abba Aji

Justices, Supreme Court


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SC.528/2014

Between

1. Mr. Simeon Mmuodili

2. Mr. Ben Enujioke

3. Mr. Gabriel Azotani Appellant/Applicants

And

1. Chief Michael Onwuba

2. Chief Augustine Okeke

3. Mr. Patrick Oraegbunam

(For themselves and on behalf of

the other members of Uruowelle

family in Nkwelle Umunachi) Respondents

(Lead Judgement delivered by Honourable Uwani Musa Abba Aji, JSC)

Facts

The Appellants lodged an appeal to the Supreme Court against the decision of the Enugu Judicial Division of the Court of Appeal on 5th August, 2014. The record of appeal was served and transmitted on 29th August, 2014, but the Appellants failed to file their Appellants’ Brief of Argument within the time allowed by the Supreme Court Rules. On 18th March, 2015, the appeal was dismissed under Order 6 Rule 3(2) of the Supreme Court Rules, 2008 (as amended) for lack of diligent prosecution. Dissatisfied with the dismissal of the appeal, the Appellants filed an application on 9th March, 2018 seeking inter alia that the appeal be relisted, and the trinity prayers in respect of some of their grounds which are grounds of mixed law and facts.

Issue for Determination

In determining the application, the Apex Court considered the issue below:

Whether in the circumstance of this case and the depositions made in the Affidavit in support of the application, the Applicants have made out a case for a favourable exercise of discretion in the interest of justice.

Arguments

In the affidavit in support of the application, counsel for the Applicants stated that when the law firm received the Record of Appeal, a counsel was assigned to prepare the Appellants’ Brief of Argument. However, the said counsel travelled to the United Kingdom for further studies without handing over the case file to the management of the office, and the firm was not aware that the Brief of Argument had not been filed. It was stated that the Appellants’ failure to file the brief was occasioned by mistake/inadvertence/dereliction of counsel which the Appellants regretted, and for which they should not be penalised.

Counsel submitted on behalf of the Appellants, that the Supreme Court has the discretion to relist an appeal that has been dismissed. He argued that the court can set aside its order dismissing an appeal for want of diligent prosecution, relying on the case of OLOWU v ABOLORE (1993) 5 NWLR (Pt. 293) 255. He submitted further that, based on the fact deposed in the affidavit, it was apparently the mistake or inadvertence of counsel that caused the sanction meted out against the Appellants, and that the mistake of counsel cannot be visited on the litigant. He relied on the case of NTUKIDEM v OK (1986) 5 NWLR (Pt. 45) at 922, and urged that the appeal be heard on the merit as leave for extension of time was also sought.

The Respondents opposed the application; counsel demonstrated that hearing notice was served on the Appellants or their counsel but neither of them showed up at the appointed time of hearing the appeal, nor felt the burden of filing a Brief of Argument. He contended that where an appeal has been dismissed under Order 6 Rule 3(2) of the Supreme Court Rules, same cannot be relisted unless the court acted under a mistake of fact. He stated that inadvertence of counsel cannot save a litigant where the failure is domestic, as decided in CHIME v UDE (1996) 7 NWLR (Pt. 461) at 422. He also contended that by virtue of the abolition of Section 233(3) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), the Supreme Court cannot grant an appeal involving both questions of mixed law and facts. He relied on the case of SHITTU v PEUGEOT AUTOMOBILE LTD (2018) 15 NWLR (Pt. 1642) at 209–210 and urged the court to dismiss the application.

Court’s Judgement and Rationale

The Supreme Court prefaced the determination of the appeal by quoting the provisions of the relevant Order 6 Rule 3(2) of the Supreme Court Rules, which provides that: “ Where the Appellant has failed to file a brief within the period prescribed by this Order and there is no application for extension of time within which to file the brief, the Court may, subject to the proviso to rule 9 of this Order, proceed to dismiss the appeal in chambers without hearing argument.” Considering the foregoing provision, Their Lordships opined that the courts in Nigeria have the inherent powers to strike out matters before them for want of diligent prosecution. However, the power to dismiss for want of diligent prosecution, though allowed by the Rules of Court, should be sparingly used – LAGOS v AIGORO (1985) 1 All NLR (Pt. 1) PG.58 at 69.

The Appellant’s appeal in this case, was dismissed for want of diligent prosecution under Order 6 Rule 3(2) of the Supreme Court Rules, though the case had not been heard on the merit. In OLOWU v ABOLORE (supra) cited by the Appellant, the Apex Court was faced with the question of relisting an appeal as in this instance, and the court decided that an appeal that has been dismissed or struck out can be relisted. However, there is a distinction between that decision and the present case. In that case, the decision was not made under Order 6 Rule 3(2) of the Supreme Court Rules, as in this present case. The OLOWU’S case was decided on Rule 25(1) which provides that “an appeal struck out by virtue of the non-appearance in Rule 25, sub-rule (1) may be relisted and entered for hearing on the application of the Appellant.”

Rules of court must prima facie be obeyed, and if there is non-compliance with them, it must be explained; failure of which no indulgence can be granted by the court, safe for where it is of a minimal kind. Obedience to the Supreme Court Rules cannot be treated with lesser sanctity and enforcement, since they too must be obeyed. The application and enforceability of Order 6 Rule 3(2) of the Supreme Court Rules came to the fore of the judicial gallery in CHIME v UDE (supra), where the learned Justices held succinctly that the Supreme Court lacks the jurisdiction to set aside and restore an appeal that was dismissed under Order 6 Rule 3(2) of the Supreme Court Rules.

In the more recent decision of A-G OF THE FEDERATION & ORS v PUNCH (NIG) LTD & ANOR. (2019) LPELR-47868(SC), the Supreme Court reiterated this position of law, when it decided an appeal filed before it in respect of an order of dismissal made by the Court of Appeal for failure to file Brief of Argument. The Apex Court held that “The appeal was properly dismissed, and the dismissal order is final and irreversible. The court below no longer had competence or jurisdiction on the appeal, that had become spent by the order of dismissal. The Court below had become functus officio on the matter. It can neither set aside its order, nor relist the already dismissed appeal. It is no longer on the cause list of the court.”

The above notwithstanding, the Supreme Court noted that there are occasions and circumstances in which the court may, in exercising its jurisdiction and in applying the Rules of Court, lean towards doing and achieving substantial justice to the parties, considering together the reasons as may be proffered by the Appellant’s affidavit. This was the position in S&D CONSTRUCTION CO. LTD v AYOKU & ANOR. (2011) LPELR-2965(SC), where the following conditions were listed for a party applying that his matter that has been struck out or dismissed for want of diligent thus – (i) there must be good reasons for being absent at the hearing; (ii) there has not been undue delay in bringing the application as to prejudice the Respondent; (iii) the Respondent will not be prejudiced or embarrassed if the order for rehearing is made; (iv) the Applicant’s case is not manifestly unsupportable; and (v) the Applicant’s conduct throughout the case is deserving of sympathetic consideration.

Applying the conditions above to the instant case, the Supreme Court held that the Appellants did not near meeting all the conditions, to warrant the grant of the application to relist the dismissed appeal. More so, the appeal is not wholly based on recondite issues of law alone, but on mixed law and facts. The Court found that the reasons for the Appellants’ want of diligent prosecution relates to domestic matters, negligence on the part of counsel and unconcerned attitude of the Appellants themselves. The court does not have any business resolving domestic issues in the chambers. All counsel in the chambers work together concertedly and the negligence of one counsel cannot be for all, since there were other counsel in the chambers – CHIME v UDE (supra). The court observed that it has become cliché for counsel and litigant to hide under the principle that the mistake of counsel should not be visited on the litigant; where there is a clear evidence of connivance and conspiracy between the counsel and the litigant, both must bear the brunt.

Application Dismissed.

Representation

Dr. Onyechi Ikpeazu, SAN with Tobechukwu Nweke, Esq.; Julius Mba, Esq.; Emeka Chinoba, Esq.; and Ajobi Obiora, Esq. for the Appellants.

O. C. Ugolo, Esq. for the Respondents.

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