Mmuodili v. Onwuba (2021)

[2021]14NWLR211

Mmuodiliv.Onwuba

1.MR. SIMEON MMUODILI

2.MR. BEN ENUJIOKE

3.MR. GABRIEL AZOTANI

V.

1.CHIEF MICHAEL ONWUBA

2.CHIEF AUGUSTINE OKEKE

3.MR. PATRICK ORAEGBUNAM

(For themselves and on behalf of theother members of Uruowelle family inNkwelle Umunachi)

SUPREME COURT OF NIGERIA

SC. 528/2014

NWALI SYLVESTER NGWUTA, J.S.C. (Presided)

OLUKAYODE ARIWOOLA, J.S.C.

MUSA DATTIJO MUHAMMAD, J.S.C.

JOHN INYANG OKORO, J.S.C.

UWANI MUSA ABBA AJI, J.S.C. (Read the Leading Ruling)

FRIDAY, 18TH DECEMBER 2020

ACTION – Diligent prosecution – Duty on court to ensure mattersare diligently prosecuted.

ACTION – Litigant – Duties of – Duty on to ascertain his instructionsare efficiently and effectively carried out by his counsel.

APPEAL – Dismissal of appeal – Supreme Court – Powers of todismiss appeal for want of diligent prosecution.

APPEAL – Dismissal of appeal – Where appeal dismissed bySupreme Court for want of prosecution – Whether can berelisted – Order 6 rule 3(2), Supreme Court Rules.

APPEAL – Dismissal of appeal – Where appeal dismissed forfailure of appellant to file brief of argument – Whether canbe relisted.

APPEAL – Dismissal of appeal – Where appeal dismissed or struckout – Whether can be relisted.

COURT – Diligent prosecution – Duty on court to ensure mattersare diligently prosecuted.

COURT – Discretion of court – Exercise of – What court considersin exercising discretion in favour of party.

COURT – Duties of court – Domestic issues in lawyer’s chambers- Whether duty of court to resolve.

COURT – Rules of court – Need for parties to comply therewith.

LEGAL PRACTITIONER – Instructions to counsel – Duty on litigantto ascertain his instructions are efficiently and effectivelycarried out by his counsel.

LEGAL PRACTITIONER – Lawyer’s chambers – Domestic issuestherein – Whether duty of court to resolve.

LEGAL PRACTITIONER – Negligence of counsel – Negligenceof one counsel in a chambers – Whether can exculpate thechambers or other counsel therein.

PRACTICE AND PROCEDURE – Appeal – Dismissal of appeal -Supreme Court – Powers of to dismiss appeal for want ofdiligent prosecution.

PRACTICE AND PROCEDURE – Appeal – Dismissal of appeal- Where appeal dismissed by Supreme Court for want ofprosecution – Whether can be relisted – Order 6 rule 3(2),Supreme Court Rules.

PRACTICE AND PROCEDURE – Appeal – Dismissal of appeal- Where appeal dismissed or struck out – Whether can berelisted.

PRACTICE AND PROCEDURE – Appeal – Dismissal of appeal -Where appeal dismissed for failure of appellant to file briefof argument – Whether can be relisted.

PRACTICE AND PROCEDURE – Diligent prosecution – Duty oncourt to ensure matters are diligently prosecuted.

PRACTICE AND PROCEDURE – Discretion of court – Exerciseof – What court considers in exercising discretion in favourof party.

PRACTICE AND PROCEDURE – Dismissal of suit – Dismissal orstriking out of suit for want of diligent prosecution – Order of- Application to set aside and relist suit – Determination of -Relevant considerations – What applicant must show tosucceed.

PRACTICE AND PROCEDURE – Litigant – Duties of – Duty onto ascertain his instructions are efficiently and effectivelycarried out by his counsel.

PRACTICE AND PROCEDURE – Negligence of counsel -Negligence of one counsel in a chambers – Whether canexculpate the chambers or other counsel therein.

PRACTICE AND PROCEDURE – Rules of court – Need for partiesto comply therewith.

Issue:

Whether, in the circumstance of the instant case and thedepositions made in the affidavit in support of the application,the applicants made out a case for a favourable exercise ofdiscretion of the Supreme Court in the interest of justice.

Facts:

On 6th May 2014 the Court of Appeal allowed the respondents’appeal in Appeal No: CA/E/53/2008: Chief Michael Onwuba &Ors. v. Simeon Mmuodili & Ors and set aside the decision of thetrial court in Suit No: A/ 219/ 2002. Being dissatisfied with thedecision of the Court of Appeal, the applicants appealed to theSupreme Court by virtue of the notice and grounds of appeal dated4th August 2014 and filed on 5th August 2014.

The record of appeal was served and transmitted to theSupreme Court on 29th August 2014 but the appellants failed to filethe appellants’ brief within the time provided by the Rules of theSupreme Court. Consequently, the Supreme Court on 18th March2015 dismissed the appeal under Order 6 rule 3(2) of the SupremeCourt Rules, 1985 (as amended).

On 9th March 2018, three years after dismissing the appeal, theapplicants filed an application at the Supreme Court for, inter alia:setting aside of the order made by the Supreme Court on 18th March2015 and relisting of the appeal on the cause list of the SupremeCourt.

The applicants predicated their application on the groundsthat.failure to file the appellants’ brief of argument was occasionedby the mistake/inadvertence/dereliction of counsel, which theapplicants sincerely regretted and for which the innocent applicantsshould not be penalized.

It was stated that the appeal was assigned to one MavisEkwechi, who at the time was counsel in the applicants’ counsel’schambers, to prepare the appellants’ brief and prosecute the appeal,and that the said counsel did not do as instructed until she travelledto the United Kingdom for further studies without handing overthe case file to the management of the office. That.the said counselalso took custody of all processes relating to the appeal and did notcarry any lawyer along until she left Nigeria in December 2015 forfurther studies.

The application was supported by a 17-paragraph affidavit with5 exhibits, which was countered by the respondents’ 28-paragraphcounter-affidavit with 5 exhibits also.

In determining the application, the Supreme Court consideredOrder 6 rule 3(2) of the Supreme Court Rules, 1985 (as amended),which provides as follows:

“Where the appellant has failed to file a brief withinthe period prescribed by this Order and there is noapplication for extension of time within which tofile the brief, the court may, subject to the proviso torule 9 of this Order, proceed to dismiss the appeal inchambers without hearing argument.”

Held (Unanimously dismissing the application):

1 . On Powers of courts to strike out or dismiss mattersfor want of diligent prosecution –

Courts in Nigeria have the inherent powers tostrike out matters before them for want of diligentprosecution. The power to dismiss for want ofdiligent prosecution, though allowed by the Rules ofcourt should be sparingly used. In the instant case,the appellants/applicants’ appeal was dismissedfor want of diligent prosecution pursuant to Order6 rule 3(2) of the Supreme Court Rules and asreflected on and contained in the Supreme Court’sorder of 18/3/2015 as exhibit 5 in the appellants/applicants’ motion on notice. Although the case hasnot been heard on the merit, the order contemplatesa dismissal for failure to file a brief within the periodprescribed. [Unilag v. Aigoro (1985) 1 NWLR (Pt. 1)143 referred to.] (P. 230, para. E-G)

2 . On Whether appeal dismissed or struck out can berelisted –

An appeal dismissed or struck out can be relisted.Nonetheless, it was not done under Order 6 rule 3(2) of the present Supreme Court Rules. [Olowu v.Abolore (1993) 5 NWLR (Pt.293) 255 distinguished](P.230, para. H)

3.On Whether Supreme Court can relist appeal dismissedfor failure to file brief of argument –

The Supreme Court has no power under its Rulesof practice, the Supreme Court Act, or under itsinherent jurisdiction to re-enter an appeal dismissedfor want of prosecution pursuant to Order 6 rule3(2) of the Supreme Court Rules. Where an appealhas been dismissed under Order 6 rule 3(2) of theSupreme Court Rules, the Supreme Court hasno jurisdiction to set aside that order and restorethe appeal to the cause list. [Chime v. Ude (1996) 7NWLR (Pt. 461) 379; Oyeyipo v. Oyinloye (1987) 1NWLR (Pt. 50) 356; A.-G., Fed. v. The Punch (Nig.)Ltd. (2019) 15 NWLR (Pt. 1694) 40 referred to.] (Pp.231, paras. D-E; 231-232, H-A)

4.On Conditions for relisting matter struck out ordismissed for want of diligent prosecution –

There can be occasions and circumstances thatthe court may, in exercising its jurisdiction andin applying Rules of court, lean towards doingand achieving substantial justice to the parties,considering together the reasons as may beproffered by the applicant’s affidavit. Thus, a partyapplying that his matter struck out or dismissed forwant of diligent prosecution be relisted must fulfillthe following conditions –

There must be good reasons for being absent(a)at the hearing.

That there has not been undue delay inbringing the application as to prejudice the(b)respondent.

That the respondent will not be prejudicedor embarrassed if the order for rehearing is(c)made

That the applicant’s case is not manifestly(d)unsupportable.

That the applicant’s conduct throughoutthe case is deserving of sympathetic(e)consideration.

All of the foregoing matters ought to be resolvedin favour of the application of the applicantbefore the judgment should be set aside. It is notenough that some of them can be so resolved. Inthe instant application, the respondents were ableto demonstrate by the hearing notice exhibitedthat it was served on the appellants/applicantsor their supposed counsel, yet none showed up atthe appointed time of hearing the appeal nor feltburdened to file brief. The facts of the case revealedthat neither the appellants/applicants nor theircounsel had any intention of diligently prosecutingthe appeal. The two therefore must suffer theconsequences. It was therefore clear that theappellants/applicants had not satisfied the SupremeCourt by their application that the dismissed/struck out appeal for want of diligent prosecutioncould be relisted for hearing. The appellants/applicants’ application dated 1/3/2018 and filed on9/3/2018 was accordingly refused and dismissed. [S& D Construction Ltd. v. Ayoku (2011) 13 NWLR (Pt.1265) 487 referred to.] (Pp. 232-233, paras. E-B)

Per ABBA AJI, J.S.C. at page 233-234, paras. B-A:

“It is crystal apparent that the appellants/applicants have not neared meeting all theseconditions simultaneously to warrant grantingtheir application for relisting of the dismissedappeal. Besides, the appeal is not wholly basedon recondite issues of law alone but mixed lawand facts.

Thus, the appellants/applicants approachedthis court to have their dismissed appealrelisted. In their deposed affidavit, especiallyfrom paragraphs 5-16 thereto, the reasonsfor the failure were listed with accompanyingexhibits 1-5. Thorough and scrupulousexamination of the stated reasons by theappellants/applicants are at best domesticmatters, negligence on the part of the counseland unconcern of the appellants themselves.The reasons given, to my mind and assessment,are either extemporaneously prevaricated oran appeal to the conscience of this court. InChime v. Ude (1996) 7 NWLR (Pt.461) 422, itwas held the court has no business in resolvingdomestic issues in the Chambers. Additionally,all Counsel in the Chambers work togetherconcertedly and the negligence of one cannotbe for all. Since there were other Counsel inthe Chambers, the absence of Mavis cannotbe a sin to exculpate the Chambers or othercounsel therein.

Furthermore, juxtaposing and scaling/weighingthe appellants/applicants’ affidavit with thatof the respondents, the respondents’ affidavitis substantially more credible, overwhelmingand weightier, for the pendulum of justice totilt against the appellants/applicants.

The appellants/applicants’ counsel hasalluded also that the mistake they committedin the chambers should not be visited on theappellants. This has become a cliché now thatboth counsel and litigants hide under! Everycase therefore must be sifted and discernedto apportion the blame on whosoever hasblundered. Where there is clear evidence ofconnivance and conspiracy between the counsel and the litigant, both must bear the brunt.Besides, since the chambers has admittedlyconfessed that the mistake and inadvertencewas by it, if there was no connivance by theappellants/applicants, they are at liberty to suethe Chambers for damages in negligence.”

Per NGWUTA, J.S.C.: at page 236, paras. A-E:

“I see no good reasons in the applicants’supporting affidavit. For instance MavisEkwechi had the mandate of her Head ofChambers to prosecute the appeal. In thenormal course of practice she had to reporton the status of the appeal to the Head ofChambers or to someone empowered to takeher report. She did not report anyone and noone cared.

The appeal was dismissed in chambers on 18 thMarch, 2015 and the motion to relist was notfiled until 9 th March, 2018, three whole yearsafter the appeal was dismissed.

In my view granting the order herein soughtwill not only embarrass but will prejudice therespondents.

The reference to the applicant’s case in theabove cited decision relates the applicant’scase in the motion for an order to re-list, anddoes not relate to the case in appeal.

In my view the applicant’s case is manifestlyunsupportable nor has the conduct of theapplicants in not seeking information on thestatus of their appeal deserve any sympatheticconsideration.

The applicant would have had a sympatheticconsideration if, prior to the date of dismissalof their appeal, they had filed a motion forextension to file their brief even if this fact wasnot known to the court when the appeal wasdismissed. This brings the application outsidethe contemplation of some the cases relied onby the applicants.”

5.On Whether Supreme Court can relist appeal dismissedfor failure to file brief of argument –

An appeal dismissed by the Supreme Courtpursuant to Order 6 rule 3(2) of the Supreme CourtRules for want of prosecution cannot be restoredto the cause list except where the appellant is ableto show special or exceptional circumstances topersuade the Supreme Court to bend backwardsto re-list the appeal. Such dismissal is final. Inthe instant case, the affidavit in support of theappellants’ application disclosed no special orexceptional circumstance to warrant the grant oftheir application. The appellants’ application wastherefore dismissed. [Oyeyipo v. Oyinloye (1987) 1NWLR (Pt. 50) 356; Chime v. Ude (1996) 7 NWLR(Pt. 461) 379; Yonwuren v. Modern Signs (Nig.) Ltd.(1985) 1 NWLR (Pt. 2) 244; Chukwuka v. Ezulike(1986) 5 NWLR (Pt. 45) 892; SEC v. Okeke (2018) 12NWLR (Pt. 1634) 462 referred to; Akiti v. Oyekunle(2018) 8 NWLR (Pt. 1620) 182 distinguished]. (P.232, paras. A-D; 237, paras. C-E)

Per OKORO, J.S.C. at page 237-238, para. F-C:

“I must say that the case of Mrs. Linda Akitiv. Prince Oladimeji Oyekunle (2018) 8 NWLR(Pt. 1620) 182 cited by the appellants is noton all fours with the facts of this case. Whathappened in that case was captured by mylearned brother, Sanusi, JSC at page 197 asfollow:

“In the instant application an averment wasmade in the supporting affidavit to the motionto the effect that there exists an applicationfiled on 26 th June 2016 for extension of timeto compile and transmit record of appeal inthis instant appeal. In other words before the dismissal of the appellant’s/applicant’s appealin the chambers by this court on 13/7/2016,unknown to this court at the time, the appellanthad taken steps to regularize his appealalthough that fact was unfortunately notmade known to this court before it proceededto dismiss the appeal during chambersproceedings. That piece of evidence deposedin the supporting affidavit was not denied bythe respondent in his counter-affidavit. Tomy mind, that deposition by the applicantamounts to special circumstance since thecourt ought not to have dismissed the appeal,if it has known of the existence of a pendingapplication for extension of time to regularizeappeal…”

Without much ado, the above was thecircumstance in the case of Akiti v. Oyekunle(supra) which is distinguishable from the factsof the instant application. Bending backwardstherefore, to accommodate this appeal onthe strength of the instant application wouldamount to eroding the already establishedposition of the law in this court.”

6.On Duty on parties to comply with rules of court –

Rules of court are meant to be complied with. Theyare made to be followed. They regulate mattersin court and help parties to present their case forpurpose of a fair and quick trial. It is the strictcompliance with these rules of court that makes forquicker administration of justice. Rules of court arehandmaids of law in the quest for doing substantialjustice to the parties in contention. They have to beobeyed for the timely and efficient administrationof justice. [Oforkire v. Maduike (2003) 5 NWLR(Pt. 812) 166; Solanke v. Somefun (1974) 1 SC 141referred to.] (P.231, paras. B-D)

7.On Duty on parties to obey rules of court –

Rules of court must prima facie be obeyed. Not onlymust the rules be prima facie obeyed, if there is non-compliance with them, it must be explained and ifnot, unless it is of a minimal kind, no indulgenceof the court can be granted. Obedience to theSupreme Court Rules cannot be treated with anylesser sanctity and enforcement, since they too mustbe obeyed. [Chime v. Ude (1996) 7 NWLR (Pt. 461)379 referred to.] (P. 231, paras. D-F)

8.On What court considers in exercising its discretion infavour of party –

In exercising a court’s undoubted discretion infavour of a party seeking the court’s indulgence,the court will always examine dispassionatelyall the facts and circumstances of the case beforereaching a decision as to the merit or otherwiseof the application before it. [Ogunpehin v. NucleusVenture (2019) 16 NWLR (Pt. 1699) 533 referredto.] (P.234, paras. A-B)

9.On Duty on court to ensure matters are diligentlyprosecuted –

The courts in the land, at every level, are heavilycongested. The courts have a duty to ensure thatmatters are pursued diligently and with dispatchand in the overall interest of justice. [Ogunpehin v.Nucleus Venture (2019) 16 NWLR (Pt. 1699) 533;Iroegbu v. Okwordu (1990) 6 NWLR (Pt. 159) 643referred to.] (P.234, paras. B-C)

10.On Duty on litigant to ascertain his instructions areefficiently and effectively carried out by his counsel –

A litigant who has briefed counsel in a matter is notat liberty thereafter to go to sleep without makingthe effort to ascertain at regular intervals that his instructions are being carried out efficiently andeffectively. [Iroegbu v. Okwordu (1990) 6 NWLR (Pt.159) 643 referred to.] (P.234, paras. C-D)

11.On Whether duty of court to resolve domestic issues inlaw chambers –

The court has no business in resolving domesticissues in the chambers. [Chime v. Ude (1996) 7NWLR (Pt.461) 379 referred to.] (P.233, paras. D-E)

12.On Whether negligence of one counsel in a chamberscan exculpate the chambers or other counsel therein –

All counsel in a chambers work together concertedly,and the negligence of one cannot be for all. Wherethere are other counsel in a chambers, the absenceof one counsel cannot be a sin to exculpate thechambers or other counsel therein. [Chime v. Ude(1996) 7 NWLR (Pt.461) 379 referred to.] (P.233,paras. D-E)

Nigerian Cases Referred to in the Ruling:

A.-G., Federation v. Punch (Nig.) Ltd. (2019) 15 NWLR (Pt.1694) 40

Akiti v. Oyekunle (2018) 8 NWLR (Pt. 1620) 182

Chime v. Ude (1996) 7 NWLR (Pt. 461) 379

Chukwuka v. Ezulike (1986) 5 NWLR (Pt. 45) 892

Ede v. Mba (2011) 18 NWLR (Pt. 1278) 236

Iroegbu v. Okwordu (1990) 6 NWLR (Pt. 159) 643

Iyalabani Co. Ltd. v. Bank of Baroda (1995) 4 NWLR (Pt.387) 20

Ntukidem v. Oko (1986) 5 NWLR (Pt. 45) 909

Oforkire v. Maduike (2003) 5 NWLR (Pt. 812) 166

Ogunpehin v. Nucleus Venture (2019) 16 NWLR (Pt. 1699) 533

Olowu v. Abolore (1993) 5 NWLR (Pt. 293) 255

Oyeyipo v. Oyinloye (1987) 1 NWLR (Pt. 50) 356

S & D Constructions Ltd. v. Ayoku (2011) 13 NWLR (Pt.1265) 487

Security and Exchange Commission v. Okeke (2018) 12NWLR (Pt. 1634) 462

Shittu v. Peugeot Automobile Ltd. (2018) 15 NWLR (Pt. 1642) 195

Solanke v. Somefun (1974) 1 SC 141

University of Lagos v. Aigoro (1985) 1 NWLR (Pt. 1) 143

Yonwuren v. Modern Signs Ltd. (1985) 1 NWLR (Pt. 2) 244

Nigerian Statutes Referred to in the Ruling:

Constitution of the Federal Republic of Nigeria (SecondAlteration) Act 2010

Constitution of the Federal Republic of Nigeria (1999), (asamend), S. 233

Supreme Court Act, 1960

Nigerian Rules of Court Referred to in the Ruling:

Supreme Court Rules, 1985, (as amended), O.6 3(2)

Supreme Court Rules, 2008, O.6 3(2) (as amended)

Application:

This was an application by the applicants whereby theysought, among other orders, for an order setting aside the order ofthe Supreme Court dismissing their appeal for failure to file brief ofargument and an order relisting the appeal on the cause list of thecourt. The Supreme Court, in a unanimous decision, dismissed theapplication.

History of the Case:

Supreme Court:

Names of Justices that sat on the appeal: Nwali SylvesterNgwuta, J.S.C. (Presided); Olukayode Ariwoola, J.S.C.;Musa Dattijo Muhammad, J.S.C.; John Inyang Okoro,J.S.C.; Uwani Musa Abba Aji, J.S.C. (Read the leadingRuling)

Application No.: SC. 528/2014

Date of Ruling: Friday, 18th December 2020

Names of Counsel: Dr. Onyechi Ikpeazu, SAN (withhim, Tobechukwu Nweke, Esq; Julius Mba, Esq; EmekaChinoba, Esq and Ajobi Obiora, Esq) – for the Appellants/Applicants.

O. C Ugolo, Esq – for the Respondents.

Counsel:

Dr. Onyechi Ikpeazu, SAN (with him, Tobechukwu Nweke,Esq; Julius Mba, Esq; Emeka Chinoba, Esq and Ajobi Obiora,Esq) – for the Appellants/Applicants.

O. C Ugolo, Esq – for the Respondents.

ABBA AJI, J.S.C. (Delivering the Leading Ruling): Theappellants/applicants vide a motion on notice dated 1/3/2018 andfiled on 9/3/2018 against the respondents, sought for:

1.An order setting aside the order made by the SupremeCourt on 18th March, 2015, dismissing this appealunder Order 6 rule 3(2) of the Supreme Court Rules,2008 (as amended).

2.An order relisting this appeal on the cause list of thishonourable court.

3.An order of this honourable court extending the timewithin which the appellants may seek leave to appealagainst the judgment of the Court of Appeal, EnuguDivision in CA/E/53/2008: Chief Michael Onwuba &Ors. v. Simeon Mmuodili & Ors delivered on 6th May,2014 to the Supreme Court on grounds other than lawalone namely grounds i, ii, iii, iv, v, vi, vii, viii, x, xi,xii and xiv as contained in the appellants’ notice ofappeal, a copy of which is delivered with the affidavitin support as exhibit 3.

4.An order of this honourable court granting leave to theappellants/applicants to appeal against the judgment ofthe Court of Appeal, Enugu Division in CA/E/53/2008:Chief Michael Onwuba & ors. v. Simeon Mmuodili &Ors delivered on 6th May, 2014 to the Supreme Courton grounds other than law alone namely grounds i, ii,iii, iv, v, vi, vii, viii, x, xi, xii and xiv as contained inthe appellants’ notice of appeal.

5.An order of this honourable court extending the timewithin which the appellants may appeal against thejudgment of the Court of Appeal, Enugu Divisionin CA/E/53/2008: Chief Michael Onwuba & Ors. v.

Simeon Mmuodili & Ors delivered on 6th May, 2014to the Supreme Court on grounds other than law alonenamely grounds i, ii, iii, iv, v, vi, vii, viii, x, xi, xii andxiv as contained in the appellants’ notice of appeal

6.An order of this honourable court deeming as properlyfiled and served, the appellants’ notice of appealalready filed and transmitted to this court which containnot just a ground of law but grounds other than law, acopy of which has been delivered with the affidavit insupport as exhibit 3.

7.An order of this honourable court extending the timewithin which the appellants/applicants may file theappellants’ brief of argument in this appeal, timeallowed having elapsed.

8.An order of this honourable court deeming as properlyfiled and served, the appellants’ brief of argument filedseparately, appropriate fees having been paid.

Grounds for the Application are:

1.The judgment against which the appeal lies wasdelivered by the Court of Appeal, Enugu Division inAppeal No: CA/E/53/2008: Chief Michael Onwuba& Ors. v. Simeon Mmuodili & Ors on 6th May, 2014allowing the appeal and setting aside the decision ofthe trial Court in Suit No: A/ 219/ 2002.

2.Being dissatisfied with the decision of the Court ofAppeal, the appellants lodged an appeal by virtue ofthe notice and grounds of appeal dated 4th August, 2014and filed on 5th August, 2014 complaining fourteen(14)grounds.

3.The record of appeal was served and transmitted tothis honourable court on 29th August, 2014 but theappellants failed to file the appellants’ brief within thetime provided by the Rules of this court for the reasonthat:

When the record of appeal was received by theappellants’ counsel, the appeal was assigned toMavis Ekwechi who at the time was counselin Ikpeazu Chambers to prepare the appellants’brief and prosecute the appeal. Disappointedly,(i)the said counsel did not do as instructed until she travelled to the United Kingdom for furtherstudies without handing over the case file to themanagement of the office.

The said counsel also took custody of allprocesses relating to the appeal and did notcarry any lawyer along until she left Nigeria in(ii)December, 2015 for further studies.

The office was not aware that the appellants’(iii)brief was not filed.

Sometime in February 2017 or thereabout,our head of Chambers, Dr. Onyechi IkpeazuOON, SAN saw Chief Ugochukwu UgoloSAN, learned counsel for the respondents atthe Nnamdi Azikiwe Airport, Abuja. ChiefUgolo SAN told our head of Chambers thathe filed a motion to strike out the appeal. Ourhead of Chambers expressed some surprise and(iv)undertook to sort out the file and avert to him.

Our head of Chambers eventually confirmedthe aberration which was occasioned by the(v)conduct of Mavis Ekwechi Esq.

It was on 15th March, 2017, that Dr. IkpeazuSAN asked for the case file to confirm the statusof the appeal and the lawyers in chambersransacked the office in search of the file untilsame was found dumped in the shelve meant(vi)for finished files without a brief inside.

4.Being that the said Mavis Ekwechi who had at the timemarried a Scottish had become incommunicado afterthe marriage, Julius Mba of counsel was asked to makeenquiries from the registry of this court to ascertainif an appellants’ brief had been filed but his enquiriesrevealed that not only was the brief not filed, but thatthe appeal was dismissed in chambers on 18th March,2015.

5.Failure to file the brief was occasioned by themistake/inadvertence/dereliction of counsel which theappellants sincerely regret and for which the innocentappellants should not be penalized.

6.No date was communicated to the appellants’ counselfrom the Supreme Court for the appeal until the appealwas dismissed in chambers and as such the appellantshad no opportunity of being heard before the appealwas dismissed.

7.The appellants’ brief of argument has been prepared byDr. Ikpeazu SAN and has been filed with the ferventbelief that the Supreme Court will in the overridinginterest of justice graciously restore this appeal andgrant the other prayers sought herein shun of the sinsof counsel in the law firm engaged by the appellants.

8.The subject matter of the appeal is a vast ancestralparcel of land, the ownership of which is being disputedby members of Umueze village, Umunnachi, andmembers of Nkwelle village, Umunnachi, AnambraState and it will serve the best interest of justice forthe Supreme Court to finally resolve on the meritthe dispute which has intermittently robbed thesecommunities of tranquility and decent co-existence.

9.The appellants are desirous of prosecuting the appealand are anxious to have the apex court address theissues which they have presented for the determinationof the Supreme Court.

10.The appellants’ notice of appeal was filed within timebut while ground ix is a ground of law, other groundsnamely grounds i, ii, iii, iv, v, vi, vii, viii, x, xi, xii, xiiiand xiv may involve mixed law and facts for whichleave of the Supreme Court is required.

11.The appellants are out of time to seek leave to appeal onthose grounds other than law and to file the appellants’brief of argument due to the mistake/omissions ofcounsel as stated above and thus require the prayerssought herein to regularize the notice of appeal andappellants’ brief.

12.The respondents will not be prejudiced by the grant ofthis application.

The application is supported by a 17-paragraph affidavit with5 exhibits, which was countered by the respondents 28-paragraphcounter-affidavit with 5 exhibits also. In arguing the application,the appellants/applicants in their written address dated 1/3/2018 and filed on 9/3/2018, distilled for determination the issue:

“Whether in the circumstance of this case and thedepositions made in the affidavit in support of theapplication, the applicants have made out a case fora favourable exercise of discretion of this honourablecourt in the interest of justice.”

The respondents on the other hand presented their writtenaddress dated 12/12/2019 and for determination formulated these 3issues:

1.Whether an appeal dismissed pursuant to Order 6 rule3(2) of the Supreme Court Rules, 1985 can be re-listed.

2.Whether the inadvertence of counsel can avail anappellant whose appeal has been dismissed underOrder 6 rule 3(2) of the Supreme Court Rules.

3.Whether the Supreme Court can grant this applicationin view of the fact that section 233(3) of the 1999Constitution has been abolished by the Constitution ofthe Federal Republic of Nigeria (Second Alteration)Act, 2010 which commenced on 29th November, 2010.

It is submitted by the learned senior counsel to the appellants/applicants that this court has discretion to relist an appeal that hasbeen dismissed. He relied on Olowu v. Abolore (1993) 5 NWLR(Pt. 293) 255; S & D Construction Ltd. v. Ayoku (2011) 13 NWLR(Pt. 1265) 487. In Ede v. Mba (2011) 18 NWLR (Pt. 1278) 236at 278, the additional authority submitted by the learned seniorcounsel, it was argued that the Supreme Court can set aside itsorder dismissing an appeal for want of diligent prosecution.

His submission is that based on the facts deposed in theaffidavit, it was apparently the mistake or inadvertence of counselthat propelled the sanction meted out against the appeal of theappellants and that it is trite that the mistake of counsel cannot bevisited on the litigant. He placed reliance on Iyalabani Co. Ltd. v.Bank of Baroda (1995) 4 NWLR (Pt. 387) 20.Thus, he urged thatthis appeal be heard on the merit as decided in Ntukidem v. Oko(1986) 5 NWLR (Pt. 45) at 909, leave for extension of time havingbeen sought. He therefore urged that the application be grantedsince the appellants/applicants have shown good and substantialground to be entitled to the application.

The respondents’ learned senior counsel on the other hand hassubmitted that where an appeal is dismissed under Order 6 rule 3(2) of the Supreme Court Rules, 1985, same cannot be relistedunless the court acted under a mistake of fact. He cited in supportChime v. Ude (1996) 7 NWLR (Pt. 461) at 379. Oyeyipo & Anor v.Oyinloye (1987) 1 NWLR (Pt. 50) at 356. He equally submitted thatthe inadvertence of counsel cannot save a litigant where the failureis domestic as decided in Chime v. Ude (supra) at 424-425. It wasalso submitted that by virtue of the abolition of section 233(3) ofthe 1999 Constitution (as amended) by the second Alteration, theSupreme Court cannot grant an appeal involving both questionsof mixed law and facts. He similarly relied on Shittu v. PeugeotAutomobile Ltd. (2018) 15 NWLR (Pt. 1642) at 195-210. Hetherefore prayed for the dismissal of the application.

The appellants’ issue for determination shall be used inconsidering this application since it is encompassing.

Order 6 Rule 3(2) of the Supreme Court Rules provides:

3(2) Where the appellant has failed to file a brief withinthe period prescribed by this order and there is noapplication for extension of time within which to filethe brief, the court may, subject to the proviso to rule 9of this order, proceed to dismiss the appeal in chamberswithout hearing argument.

It is without argument that the courts in Nigeria have theinherent powers to strike out matters before them for want of diligentprosecution. The power to dismiss for want of diligent prosecution,though allowed by the rules of court should be sparingly used. SeeUniversity of Lagos v. Aigoro (1985) 1 All NLR (Pt. 1) Pg. 58 at Pg.69; (1985) 1 NWLR (Pt. 1) 143.

By Order 6 rule 3(2) of the Supreme Court Rules, theappellants/applicants’ appeal was “dismissed” for want of diligentprosecution as reflected on and contained in this court’s order of18/3/2015 as exhibit 5 in the appellants/applicants’ motion onnotice. Although the case has not been heard on the merit, the aboveorder contemplates a dismissal for failure “to file a brief within theperiod prescribed”.

It is without gainsaying that this court has decided in Olowu& Ors v. Abolore & Anor (1993) LPELR- 2603(SC); (1993) 5NWLR (Pt. 293) 255 as quoted and relied upon by the appellants/applicants’ learned senior counsel, that an appeal dismissed/ struckout can be relisted. Nonetheless, it was not done under Order 6rule 3(2) of the Supreme Court Rules. Therein, this Court held, PerAdolphus Godwin Karibi-Whyte, J.S.C that:

“an appeal struck out by virtue of the non-appearancein rule 25, sub-rule may be relisted and entered forhearing on the application of the appellant”.

It is deducible therefore that the facts, circumstances and therules in the present case differ with that of Olowu & Ors v. Abolore& Anor (supra).

In Solanke v. Somefun (1974) 1 SC 141, Sowemimo, JSC (ashe then was) opined:

“Rules of court are meant to be complied with …Rules of court are made to be followed. They regulatematters in court and help parties to present their casefor purpose of a fair and quick trial. It is the strictcompliance with these rules of court that makes forquicker administration of justice.”

See also Per Tobi, JSC in Oforkire & Anor v. Maduike & Ors.(2003) LPELR-2269 (SC); (2003) 5 NWLR (Pt. 812) 166 (Pp. 15-16, Paras. E-C). Similarly, Per Sylvester Umaru Onu, JSC in Chime& Anor v. Ude & Ors (1996) LPELR-848 (SC); (1996) 7 NWLR(Pt. 461) 379 added that

“Rules of court, must prima facie be obeyed … not onlymust the rules be prima facie obeyed but that if thereis non-compliance with them, it must be explained andif not, unless it is of a minimal kind, no indulgence ofthe court can be granted … obedience to the SupremeCourt Rules cannot be treated with any lesser sanctityand enforcement since they too must be obeyed.”

The application and enforceability of Order 6 rule 3(2) of theSupreme Court Rules came to the judicial gallery and fore in Chime& Anor v. Ude & Ors (1996) LPELR- 848 (SC), (1996) 7 NWLR(Pt. 461) 379 wherein Ogundare, JSC, hammered the nail on thehead thus:

“The appellants appeal having been dismissed underRule 3(2) of Order 6, this court has no jurisdiction toset aside that order and restore the appeal to the causelist … Consequently, this application must thereforefail and it is accordingly refused.”

Again, this court has decided in several applications comingbefore it that it has no power under its rules of practice, the SupremeCourt Act, 1960 or under its inherent jurisdiction to re-enter anappeal dismissed for want of prosecution. See Per Karibi-Whyte

J.S.C. in Oyeyipo & Anor v. Oyinloye (1987) LPELR- 2883(SC);(1987) 1 NWLR (Pt. 50) 356.

By another extension, this court, Per Ariwoola, JSC, in A.-G., of The Federation & Ors v. Punch (Nig.) Ltd. & Anor (2019)LPELR-47868(SC) (Pp. 14-24, paras. E-C); (2019) 15 NWLR (Pt.1694) 40; considered whether an appeal dismissed under the Courtof Appeal Rules for failure of the appellant to file brief of argumentcan be relisted, and concluded inter alia that:

… it is clear that the appeal of the appellants wasdismissed pursuant to Order 6 rule 10 of the Court ofAppeal Rules for failure to file the brief of argumentwithin the prescribed time and there was no applicationfor extension of time to file the said brief out of time.The appeal was therefore properly dismissed and thedismissal order is final and irreversible. The courtbelow no longer had competence or jurisdiction onthe appeal, that had become spent by the order ofdismissal. The court below had become functus officioon the matter. It can neither set aside its order nor relistthe already dismissed appeal. It is no longer on thecause list of the court.”

There can be occasions and circumstances that the court may,in exercising its jurisdiction and in applying Rules of court, leantowards doing and achieving substantial justice to the parties,considering together the reasons as may be proffered by theappellant’s affidavit. Thus, Per Adekeye, JSC in S & D ConstructionCo. Ltd v. Ayoku & Anor (2011) LPELR-2965 (SC); (2011) 13NWLR (Pt. 1265) 487 (Pp. 28-29, paras. F-E) conditioned it thus:

“A party applying that his matter struck out or dismissedfor want of diligent prosecution be relisted must fulfillthe following conditions –

There must be good reasons for being absent at(a)the hearing.

That there has not been undue delay in bringing(b)the application as to prejudice the respondent.

That the respondent will not be prejudiced or(c)embarrassed if the order for rehearing is made

That the applicant’s case is not manifestly(d)unsupportable.

(e)That the applicant’s conduct throughout the case is deserving of sympathetic consideration…

All of these matters ought to be resolved in favour ofthe application of the applicant before the judgmentshould be set aside. It is not enough that some of themcan be so resolved.”

It is crystal apparent that the appellants/applicants have notneared meeting all these conditions simultaneously to warrantgranting their application for relisting of the dismissed appeal.Besides, the appeal is not wholly based on recondite issues of lawalone but mixed law and facts.

Thus, the appellants/applicants approached this court to havetheir dismissed appeal relisted. In their deposed affidavit, especiallyfrom paragraphs 5-16 thereto, the reasons for the failure werelisted with accompanying exhibits 1-5. Thorough and scrupulousexamination of the stated reasons by the appellants/applicants areat best domestic matters, negligence on the part of the counsel andunconcern of the appellants themselves. The reasons given, to mymind and assessment, are either extemporaneously prevaricated oran appeal to the conscience of this court. In Chime & anor v. Ude &Ors. (1996) LPELR-848 (SC); (1996) 7 NWLR (Pt. 461) 379 it washeld the court has no business in resolving domestic issues in thechambers. Additionally, all counsel in the chambers work togetherconcertedly and the negligence of one cannot be for all. Since therewere other counsel in the chambers, the absence of Mavis cannotbe a sin to exculpate the chambers or other counsel therein.

Furthermore, juxtaposing and scaling/weighing the appellants/applicants’ affidavit with that of the respondents, the respondents’affidavit is substantially more credible, overwhelming andweightier, for the pendulum of justice to tilt against the appellants/applicants.

The appellants/applicants’ counsel has alluded also that themistake they committed in the chambers should not be visited onthe appellants. This has become a cliché now that both counseland litigants hide under! Every case therefore must be sifted anddiscerned to apportion the blame on whosoever has blundered.Where there is clear evidence of connivance and conspiracybetween the counsel and the litigant, both must bear the brunt.Besides, since the chambers has admittedly confessed that themistake and inadvertence was by it, if there was no connivance by
the appellants/applicants, they are at liberty to sue the chambers fordamages in negligence.

Per Kekere-Ekun, JSC, in Ogunpehin v. Nucleus Venture(2019); (2019) 16 NWLR (Pt. 1699) 533 LPELR-48772 (SC) (Pp.19- 21, paras. A-C) lamentably observed that the court in exercisingits undoubted discretion in favour of a party seeking the court’sindulgence, the court will always examine dispassionately all thefacts and circumstances of the case before reaching a decision asto the merit or otherwise of the application before it. It is no longernews that the courts in the land, at every level, are heavily congested.The courts have a duty to ensure that matters are pursued diligentlyand with dispatch and in the overall interest of justice. A litigant,who has briefed counsel in a matter, is not at liberty thereafter to goto sleep without making the effort to ascertain at regular intervalsthat his instructions are being carried out efficiently and effectively.It is my considered view that the lower court was right not to furtherindulge them. See also Nnaemeka-Agu, JSC, in Iroegbu v. Okwordu(1990) 6 NWLR (Pt. 159) 643 at 669.

In the instant application, the respondents were able todemonstrate by the hearing notice exhibited that it was servedon the appellants/applicants or their supposed counsel, yet noneshowed up at the appointed time of hearing the appeal nor feltburdened to file brief. The facts of this case reveal that neitherthe appellants/applicants nor their counsel had any intention ofdiligently prosecuting the appeal. The two therefore must suffer theconsequences.

It is therefore clear that the appellants/applicants have notsatisfied this court by their application that the dismissed/struckout appeal for want of diligent prosecution can be relisted forhearing. The appellants/applicants’ application dated 1/3/2018 andfiled on 9/3/2018 is hereby refused and dismissed. I order costs ofN500,000.00 against the appellants/applicants.

NGWUTA, J.S.C.: I read in draft the lead ruling just deliveredby my learned brother, Abba Aji, JSC and I entirely agree with thereasoning leading to the dismissal of the motion.

In ground 8 of the 12 grounds of upon which the motion waspredicated, it was stated:

“8. The subject matter of the appeal is a vast ancestral parcel of land, the ownership of which is beingdisputed by members of Umueze village, Umunnachi,and members of Nkwelle village, Umunnachi,Anambra State and it will serve the best interest forjustice for the Supreme Court to finally resolve on themerit the dispute which has intermittently robbed thesecommunities of tranquility and decent co-existence.”

The conduct of the applicants could not reflect more than apassing interest in the ancestral land in dispute.

Between 29th August, 2014 when the record of appeal wastransmitted to the court and December, 2015 when counsel assignedto the case left Nigeria, the applicants, it would appear, did not goto their counsel to check on the status of the appeal.

Between December, 2015 when counsel left Nigeria andFebruary, 2017 when learned silk for the applicants was informedof the motion to dismiss the appeal, the applicants were still in theirslumber.

The appeal was dismissed pursuant to Order 6 rule 3(2) of thecurrent Supreme Court Rules, hereunder reproduced:

Order 6 rule 3(2)

“Where the appellants has failed to file a brief withinthe period prescribed by this order and there is noapplication for extension of time within which tofile the brief, the court may, subject to the proviso toRule 9 of this Order, proceed to dismiss the appeal inchambers without hearing argument”.

In S & D Construction Company Limited v. Chief Bayo Ayoku& Anor (2011) 6 – 7 SC (Pt. II) 1 & 1; (2011) 13 NWLR (Pt. 1265)487. The Supreme Court listed five conditions which a party whosecase was struck out or dismissed for want of diligent prosecutionmust fulfilled in order to have the matter re-listed for hearing on themerit. These are:-

There must be good reasons for the default;

1.There must not be undue delay in bringing theapplication as to prejudice the respondent;

2.The respondent will not be prejudiced or embarrassedif the order is made;

3.The applicant’s case is not manifestly unsupportable;

4.That the applicant’s conduct throughout the case isdeserving of sympathetic consideration.

I see no good reasons in the applicant’s supporting affidavit.For instance Mavis Ekwechi had the mandate of her head ofchambers to prosecute the appeal. In the normal course of practiceshe had to report on the status of the appeal to the head of chambersor to someone empowered to take her report. She did not reportanyone and no one cared.

The appeal was dismissed in chambers on 18th March, 2015and the motion to relist was not filed until 9th March, 2018, threewhole years after the appeal was dismissed.

In my view granting the order herein sought will not onlyembarrass but will prejudice the respondents.

The reference to the applicant’s case in the above cited decisionrelates the applicant’s case in the motion for an order to re-list, anddoes not relate to the case in appeal.

In my view the applicant’s case is manifestly unsupportablenor has the conduct of the applicants in not seeking information onthe status of their appeal deserve any sympathetic consideration.

The applicant would have had a sympathetic consideration if,prior to the date of dismissal of their appeal, they had filed a motionfor extension to file their brief even if this fact was not known to thecourt when the appeal was dismissed. This brings the applicationoutside the contemplation of some of the cases relied on by theapplicants.

Rules of court are handmaids of law in the quest for doingsubstantial justice to the parties in contention. They have to beobeyed for the timely and efficient administration of justice.

For the above and the fuller reasons in the lead ruling, I alsoorder that the application filed on 9th March, 2018 be and is herebydismissed. I adopt the order as to costs.

HON. JUSTICE OLUKAYODE ARIWOOLA, J.S.C.: I hadthe privilege of reading in draft the lead judgment of my learnedbrother, Abba Aji, J.S.C. just delivered. I am in agreement with thereasoning therein and conclusion arrived thereat, that the appeal isunmeritorious and should be dismissed. I too will dismiss it.

Appeal dismissed.

I abide by the consequential orders including order on cost.

M.D. MUHAMMAD, J.S.C.: Being privy of the reasoning andconclusion in the lead ruling of my learned brother, Uwani MusaAbba Aji JSC, just delivered, I adopt the said ruling in dismissingthe unmeritorious application. I abide by the order on costs madein the lead ruling.

OKORO, J.S.C.: I had the privilege of reading before now theruling just delivered by my learned brother, Uwani Musa Abba-Aji, JSC and I entirely agree that the appellants’ application is notmeritorious and deserves to be refused.

The position of the law as correctly stated by my learnedbrother is that on appeal dismissed by this court pursuant to Order6 rule 3(2) of the rules of this court for want of prosecution cannotbe restored to the cause list except where the appellant is able toshow special or exceptional circumstances to persuade this courtto bend backwards to re-list the appeal. See the cases of Oyeyipo& Ailor v. Oyinloye (1987) 1 NWLR (Pt. 50) 356 at 372; Chimev. Ude (1996) 7 NWLR (Pt. 461) 379; Yonwuren v. Modern SignsLtd. (1985) 1 NWLR (Pt. 2) 244; John Chukwuka & Ors v. Ezulike(1986) 5 NWLR (Pt. 45) 892; Security and Exchange Commissionv. Okeke (2018) 12 NWLR (Pt.1634) 462 at 481. Following from along line of authorities, such dismissal is final.

I must say that the case of Mrs. Linda Akiti v. Prince OladimejiOyekunle (2018) 8 NWLR (Pt. 1620) 182 cited by the appellant isnot on all fours with the facts of this case. What happened in thatcase was captured by my learned brother, Sanusi, JSC at page 197as follow:

“In the instant application an averment was made inthe supporting affidavit to the motion to the effect thatthere exists an application filed on 22nd June 2016 forextension of time to compile and transmit record ofappeal in this instant appeal. In other words beforethe dismissal of the appellant’s/applicant’s appeal inthe chambers by this court on 13/7/2016, unknownto this court at the time, the appellant had takensteps to regularize his appeal although that fact wasunfortunately not made known to this court before it proceeded to dismiss the appeal during chambersproceedings. That piece of evidence deposed in thesupporting affidavit was not denied by the respondentin is counter-affidavit. To my mind, that deposition bythe applicant amounts to special circumstance sincethe court ought not to have dismissed the appeal, if ithas known of the existence of a pending applicationfor extension of time to regularize appeal…”

Without much ado, the above was the circumstance in thecase of Akiti v. Oyekunle (supra) which is distinguishable from thefacts of the instant application. Bending backwards therefore, toaccommodate this appeal on the strength of the instant applicationwould amount to eroding the already established position of the lawin this court.

From the foregoing, I am of the view that the affidavit insupport of the appellants’ application has disclosed no special orexceptional circumstance to warrant the grant of their application.It deserves to be refused and is hereby refused by me. Applicationdismissed. I abide by the order as to costs made in the lead ruling.

Application dismissed.

Leave a Reply

Your email address will not be published. Required fields are marked *