Appeal Dismissed for Want of Diligent Prosecution: Finality of
IFacts n March, 2013, the Appellants appealed against the judgement of the Court of Appeal delivered on 29th January, 2013. The Record of Appeal was compiled and transmitted to the Supreme Court. The appeal was duly entered in December 2013, a period of nine (9) months in contravention of the provisions of Order 7 Rule 4(1) of the Supreme Court Rules, 1985 (as amended), which enjoins the Registrar of the Court of Appeal to compile and transmit records, within a period of not more than six months from the date of filing the Notice of Appeal.
By the extant Rules of the Supreme Court, the Appellants were duty bound to file their Brief of Argument within ten (10) weeks of receipt of the Record of Appeal i.e. 15th March, 2014. The Appellants however, neither filed their Brief(s) of Argument as expected, nor applied for extension of time to do so. Thus, on 18th February, 2015, the Supreme Court sitting in Chambers, suo motu dismissed the appeal for want of diligent prosecution under Order 6 Rule 3(2) of its Rules of Court.
After a period of two years and three months following the dismissal of the appeal, precisely on 10th May, 2017, the Appellants filed the present application, seeking inter alia, an Order setting aside the decision of the Court dismissing the appeal; an Order restoring the appeal; and an Order for extension of time to file and serve the Appellants’ Brief of Argument, as well as a deeming Order. In the alternative, they sought the Trinity Prayer, for extension of time to seek leave to appeal, leave to appeal the judgement of the Court of Appeal, and extension of time to appeal the said judgement.
Issues for Determination 1. Whether the Supreme Court has jurisdiction to set aside its own judgement, given on grounds of lack of diligent prosecution of appeal.
2. Assuming the Supreme Court has jurisdiction, whether this is an appropriate case, in which the discretion should be exercised in favour of the Appellants.
3. In the alternative, whether this Court has power to grant the trinity prayers sought by the Applicants, as alternative reliefs.
Arguments Counsel for the Appellants considered the Order of the Supreme Court dismissing the appeal for want of diligent prosecution pursuant to Order 6 Rule 3(2) of the Supreme Court Rules, as a “Default Judgementn”, given against them for their failure to take a procedural step (filing of Brief of Argument). Relying on the authority of U.T.C. v PAMOTEI (1989) LPELR-3276(SC), he opined that it was not a judgement on the merits given that the legal rights of the parties, either in law or on the facts, were not determined. Counsel submitted that the effect of such Order of Dismissal which was not on the merits is considered in law to be “a mere striking out”. PANALPINA WORLD TRANSPORT NIG. LTD. v J.B. OLANDEEN & ORS. (2010) 4 CLRN 150. Counsel submitted further that, an Order regarded not to be on the merits, is liable to be set aside on the authorities of MOHAMMED V. v HUSSEINI (1998) 14 NWLR (Pt. 584) 108; EDE v MBA (2011) 18 NWLR (Pt. 1278) 236 at 277.
It was also the case of the Appellants that, there was no application to the Supreme Court to exercise its powers to dismiss the appeal for want of diligent prosecution, on grounds of failure to file the Appellants’ Brief of Argument within the time allowed by the Rules of Court. Implicit in the position of the Appellants, was the fact that the Supreme Court suo motu dismissed the appeal, without affording the Appellants a hearing before making such decision.
Courts Judgement and Rationale Deciding the first issue for determination, the Supreme Court reiterated the importance of adherence to Rules of Court thus - Rules of Court are statutory instruments, deriving their legitimacy and efficacy directly from the Constitution. They are to be obeyed; when they are flouted, the Court cannot remain passive and helpless. It must sanction the non-compliant party, otherwise the purpose of its enactment will be defeated. The party who fails to obey the Rules of Court, must bear the consequences of his failures. OWNERS OF “MV ARABELLA v N.A.I.C. (2008) 4 SC (Pt. 2) 189. The Supreme Court Rules was made by the Chief Justice of Nigeria, pursuant to Section 236 of the 1999 Constitution. Therefore, where some provisions such as Order 6 Rule 5 thereof, set the period for filing briefs as succinct statement of the party’s argument in the appeal; it serves dual purpose in the appeal – an opportunity to present argument in the appeal, as well as setting a time for the presentation of the argument in the appeal. Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 prescribes that a party in litigation be given fair hearing, which includes an opportunity to present his case within a reasonable time. “For Courts of law, time is very important. Because litigants go to Court expecting quick results from fair and expeditious determination of their disputes, so it is imperative for the Court to be in control of time and to manage it prudently, for the purpose of determination of matters before them within a reasonable time.” BRITISH AMERICAN TOBACCO (INVESTMENT) LTD v A-G OGUN STATE (2011) LPELR-3891(CA) per IKYEGH, JCA.
The Court addressed the implicit allegation by the Appellants of denial of fair hearing, stating that Order 6 Rule 5(1) enjoins the Appellant to file its brief within ten weeks of receipt of the Record of Appeal. The Record was transmitted on 31st December, 2013 and the Appellant had up to 15th March, 2014 to file its Brief of Argument, but it failed to do so until the appeal was dismissed on 18th February, 2015. A party who has been afforded an opportunity to present a succinct statement of his argument in the appeal, but who fails to utilise the opportunity, cannot be heard to complain that he was denied his right to fair hearing. OBA JACOB OYEYIPO & ANOR. v CHIEF J.O. OYINLOYE (1987) 1 NWLR (Pt. 50) 356.
On the nature and effect of the Order made by the Supreme Court when it dismissed the appeal for want of diligent prosecution, Their Lordships held that Order 6 Rule 3(2) of the Supreme Court Rules, provides sanction against an Appellant who failed, neglected or refused to file his Brief of Argument within 10 weeks of receipt of the Record of Appeal as provided for in Order 6 Rule 5(1). The sanction under this provision is distinct from that provided for under Order 6 Rule 9, which gives the Respondent an opportunity to apply to the Court for the appeal to be struck out where the Appellant fails to file and serve his brief within the time stipulated in Rule 5. Order 6 Rule 3(2) deals with a completely different situation, where the initiative is taken by the Court itself. This provision relates to where the Appellant is in default, and neither party makes any move, the Court may dismiss the appeal for want of prosecution. The Court will normally take the initiative where the appeal has become dormant and the parties have lost interest in it, and there is need to decongest the cause list of such deadwoods. Further, where an appeal is dismissed under Rule 3(2) of Order 6, the Supreme Court does not have jurisdiction to set aside that Order and restore the appeal to the cause list. CHIME v UDE (1996) 7 NWLR (Pt. 461) 379.
By the extant Rules of the Supreme Court, an appeal dismissed as in this instance, cannot be relisted or restored to the cause list. The Order dismissing an appeal for failure to file Brief of Argument, is an Order on the merits and the Supreme Court by a dint of Order 6 Rule 16, Supreme Court Rules, 1985 (as amended), cannot review its own Judgement or Order, except under the “Slip Rule” or under its inherent powers to set aside its Judgement or Order that is manifestly a nullity - ALLI v AYINDE (2010), All FWLR, (Pt. 540) 1315. It follows that the submission of the Appellants that the judgement was not on the merits, but a procedural step which can be set aside, does not address the effect of Order 6 Rule 3(2) vis-à-vis Order 8 Rule 16 of the Supreme Court Rules, which provides for instances when an Order of the Court can be varied.
The Appellants did not bring the present application under the “Slip Rule” or any of the exceptions, for variation under Order 8 Rule 16. It is also not the prayer of the Appellants that the Court should exercise its inherent powers to set aside the Oder for being a nullity, made ultra vires or without jurisdiction. MENAKAYA v MENAKAYA (2001) 16 NWLR (Pt. 738) 203. Based on the foregoing, Their Lordships reasoned that there was no cause shown to grant the application sought by the Appellants.
Application Refused.
Representation: Fidelis Oditah, QC, SAN with Onyeka Enunwa, Esq. for the Applicants
Olumide Akinnimi, Esq. with Oluwaseun Senawa, Esq. and T.B. Daniel-Kalio, Esq.. for the Respondent.
Reported by Optimum Publishers Limited (Publishers of Nigerian Monthly Law Reports (NMLR))
“.... AN APPEAL DISMISSED AS IN THIS INSTANCE, CANNOT BE RELISTED OR RESTORED TO THE CAUSE LIST. THE ORDER DISMISSING AN APPEAL FOR FAILURE TO FILE BRIEF OF ARGUMENT, IS AN ORDER ON THE MERITS, AND THE SUPREME COURT BY A DINT OF ORDER 6 RULE 16, SUPREME COURT RULES, 1985 (AS AMENDED), CANNOT REVIEW ITS OWN JUDGEMENT OR ORDER, EXCEPT UNDER THE “SLIP RULE” OR UNDER ITS INHERENT POWERS TO SET ASIDE ITS JUDGEMENT OR ORDER, THAT IS MANIFESTLY A NULLITY”