Adapele v. Akintola (1986)


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10 November 1986

1.
ALHAJI SALAWU LADEJO ADAPELE

                                
(For Himself and on Behalf

    of ADAPELE Family)

2.
NURUDEEN MECHANIC

V.

1.
LASISI AKINTOLA

2.
NIYI AKINTOLA

                                
 (For and on Behalf of

                                
 SALAMI AKINTOLA Family)

COURT OF APPEAL

(IBADAN DIVISION)

CA/I/171/84

UCHE OMO, J.C.A. (Presided)

JOHN HEZEKIAH OMOLOLU-THOMAS, J.C.A.

SYLVESTER UMARU ONU, J.C.A. (Read the Lead Ruling)

THURSDAY, 17TH JULY, 1986

APPEAL – Change of Counsel – Notice of not sent to appellate Court Registrar – Effect.

APPEAL – Dismissal of for want of prosecution – Motion to set aside brought – Competence of Court so to do.

APPEAL – Extension of time – Documents to be filed in support of motion.

Issue:

Are the circumstances of the case such that could require the Court of Appeal to re-list an appeal that has been dismissed for want of prosecution?

Facts:

The appellants/applicants applied to the Court of Appeal for a re-listing of his appeal which had been dismissed for want of prosecution.

In the affidavit in support of the motion, he averred that neither he nor his new counsel was served with the hearing date, but as it turned out, when he changed his counsel, he did not notify the Registrar of the Court of Appeal, nor was a copy of the letter attached to the affidavit.

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It also transpired that the applicant personally collected the record of appeal and handed it to his counsel but the latter did not file any brief.

The respondent however opposed the application both to re-list and for extension of time to file the brief of appeal, on the ground that the Court of Appeal lacked the competence to make the order having become functus officio.

Held (Dismissing the Motion):

1.
Where an applicant requires court to exercise its discretion for a grant of extension of time within which to appeal or within which to apply for leave to appeal, all the documents which it will be necessary for the court to see in order to decide on the application must be exhibited. These normally should include among others, the affidavits of the applicant and/or his counsel; the judgments of the courts below; the exhibits or so much of the exhibits on which the applicant will rely to argue his application, his proposed grounds of appeal; where necessary the record of proceedings as will enable the court to found the substantiality of those grounds of appeal, based solely, or in the main on the evidence giving the brief of the applicant’s argument, and any other document or documents which in the special circumstances of a particular case the court will need to see in order to be able to decide on the matters in contest in the application.

2.
In the instant case, failure of the applicant to attach the letter of change notifying the Registrar of change of counsel to his affidavit is fatal to his case.

3.
The order of the court dismissing the applicant’s appeal for non-prosecution can only be validly set aside if applicant can show to the court’s satisfaction that neither he nor his counsel received the hearing notice or notice of motion.

4.
Failure to effect service of either process of the court on either him or his counsel, would of necessity render the dismissal order of the court a nullity: [Skenconsult (Nigeria) Ltd. v. Godwin Ukey (1981) 1 S.C. 6. referred to.]

5.
In this case there was proper service on the applicant.

6.
The court lacks jurisdiction, statutory or inherent to grant the application to re-list the appeal as the court is functus officio in respect of the application. Neither can Section 16 of the court of Appeal Act apply nor can the inherent jurisdiction of the court be invoked thereby: [Iro Ogbu and Ors. v. Ogburu Urum (1981) 4 S.C. l applied and followed.]

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7.
With regard to applicant’s prayer for an order enlarging the time within which he may file his briefs of argument, this can only be granted were it to be shown that applicant on receipt of the record of appeal caused his briefs of argument to be filed in accordance with the Rules of Court or sought extension of time within which to do so after time had run out, or acted timeously or shown that the judgment obtained thereby is a nullity.

Nigerian Cases Referred to in the Ruling

Azeez v. State (1986) 2 . 541 at 546

Benson v. Nigerian Agip Oil Company Ltd. (1982) 5 S.C. 1

Chinwendu v. Mbamali (1980) 3-4 S.C. 31 at 32

Enemoh & Anor. v. Onokaite & Ors.

Ibodo & Ors. v. Enarofia & Ors. (1980) 5-7 S.C. 42 at p.57-58

Musa v. Hamza & 6 Ors. (1982) 5 S.C. 172

Nwaora v. Nwakondu & Ors.

Ogbu & Ors. v. Urum (1981) 4 S.C. 1

Scott-Emuakpor v. Ukavbe (1975) 12 S.C. 41 at 47

Skenconsult (Nigeria) Ltd. v. Ukey (1981) 1 S.C. 6

University of Lagos v. Olaniyan (1985) 1 . 156

Yonwuren v. Modern Signs (Nig.) Ltd. (1985) 2 S.C. 66

Nigerian Statutes Referred to in the Ruling

Court of Appeal Act, 1976 Section 16

Nigerian Rules of Court Referred to in the Ruling

        Court of Appeal Rules, 1981

        Order 3 Rules 2; 2(5); 4; 25(2); 26; 27(1), (2) & (3)

Order 6 Rules 2, 10

Supreme Court Rules, 1977

Order 7 Rule 23(3)

Order 9 Rule 3(1)

Appeal:

This was an application seeking a re-listing of an appeal dismissed by the Court of Appeal for want of prosecution. The Court of Appeal dismissed the application.

History of the Case:

Court of Appeal:

Division of the Court of Appeal to which the appeal was brought: Court of Appeal, Ibadan Division

Names of Justices that sat on the appeal: Uche Omo, J.C.A. (Presided); John Hezekiah Omololu-Thomas, J.C.A.; Sylvester Umaru Onu, J.C.A. (Read the Lead Ruling)

Date of Judgment: Thursday, 17th July, 1986

Appeal No.: CA/I/171/84

[1986] 5 .
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High Court:

Name of the High Court: High Court of Oyo State, Ibadan.

Counsel:

O. J. Bamgbose, Esq. – for the Applicant.

O. Akintola, Esq. – appeared in person for himself.

ONU, J.C.A. (Delivering the Lead Ruling): The 1st appellant/defendant/applicant has applied by way of motion on notice under Section 16 of the Court of Appeal Act, 1976, under the inherent jurisdiction and under Order 6 Rule 10 and Order 3 Rules 2(5) and 4 of the Court of Appeal Rules, 1981 respectively for –

(a)
an order setting aside the order made by this Court on the 5th day of March, 1986 dismissing his appeal against the plaintiffs/ respondents for want of prosecution.

(b)
an order enlarging the time within which the appellants/applicants may file a brief of argument and

(c)
an order for leave to argue additional grounds of appeal (the latter being set out in the schedule attached to the motion paper).

In support of his application the appellant/applicant has sworn to a 27 paragraphed affidavit to which are attached his notice of appeal dated 21st May, 1979 and filed on 22nd May, 1979 (exhibit A), a letter addressed to the higher Registrar, High Court Registry, High Court Buildings, Iyaganku quarters, Ibadan written by the last but one of his array of counsel, one Prince F.E.O. Adewuyi dated 8th October, 1979 (exhibit B), an affidavit in support thereof sworn to by the said Prince Adewuyi (exhibit C) and a copy of his brief of argument (exhibit D).

It is pertinent at this juncture to remark that the appellants/applicants (hereinafter in the rest of this ruling referred to as applicant simpliciter) failed to annex to his application a certified copy of the judgment of this court dated 5th March, 1986 dismissing his appeal for want of prosecution and which judgment he now seeks this court’s order to set aside and relist. However, the 2nd plaintiff/ respondent (hereinafter referred to simply as respondent) has attached to his counter-affidavit the enrolment of order of that judgment (exhibit B). I shall come to these points later on in this ruling.

The chequered but rather unfortunate history of this application, confounded and bedevilled apparently due to unstable representation in counsel than anything else, can be better put as set out in the averments of the applicants, salient amongst which are:

“2.             The respondents’ claims (sic) against me in the High Court were as follows:

    “(a)         A declaration of title, under Native Law and Custom, to the parcel of     land situate and lying at Oke-Offa Atipe, Aremo Road, Ode-Aje,         Ibadan.

 (b)
£300 general damages for trespass committed on the said land by the defendants, their servants, agents by entering,

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  operating mechanic repairs and building on the said land between                 March, 1969 and which is still continuing

(d)     injunction restraining the defendants, their agents or persons claiming                     through or under them from further entering or doing anything on the                        said land The rental value of the land is unknown.”

 3.
The learned trial Judge in its (sic) judgment dated 29th March 1979 granted all the claims of the plaintiffs.

 4.
On being dissatisfied with the judgment I lodged an appeal against the same by my notice of appeal dated 21st May, 1979, filed on 22nd May, 1979. I attach hereto a copy of the same marked exhibit ‘A’.

 6.
    
  The record of appeal has been compiled and copies thereof forwarded to the     registry of the Court of Appeal in or about November, 1984.

7.
The late Chief M.F. Agbaje was my counsel for a substantial part of the proceedings in the High Court.

8.
On his death in or about November 1979,1 engaged the services of Chief E. O. Idowu (deceased) who concluded my defence in the High Court.

9.
I subsequently engaged Mr. A. Akinjide as counsel and it was he who filed a notice of appeal on my behalf on 22nd May, 1979.

10.
Later in or about August, 1979, I had cause to change my counsel again and I instructed Prince F. E. O. Adewuyi of Ile-Ife as counsel.

11.
Prince Adewuyi by his letter dated 8th October, 1979 addressed to the Higher Registrar, High Court Registry, High Court Building, Iyaganku Quarters, Ibadan informed the said Registrar that he had been instructed as counsel by me and that all letters and processes issued in respect of the case be addressed to him. I attach herewith a photo copy of the said letter and mark same as Exhibit ‘B’.

12.
On Thursday 10th April, 1986, I met the 2nd respondent in Ibadan township and he informed me that my appeal was dismissed by the Court of Appeal on 5th March, 1986.

   14.
I immediately rushed to the office of my Solicitor Prince F.E.O. Adewuyi in Ife but I was unable to see him until on or about 21st April, 1986.

   16.
Neither myself nor my counsel Chief Adewuyi (as I am informed by him and I verily believe) were served with the hearing notice indicating that the appeal was listed for hearing on 5th March, 1986 or with any notice of motion by the respondents for an order dismissing the appeal for want of prosecution and we were otherwise not aware of the fixture.

17.
I have now engaged the services of Chief Olisa Chukura S.A.N. and I am informed by O.A. Abiose Esq., a counsel in his chambers and I verily believe him that his enquiries at the registry of this court on Friday, 2nd May, 1986 revealed that the hearing notice and notice of motion aforementioned were served on Akinloye Akinjide Esq. (who had long ago ceased to be my counsel) on

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24th February, 1986 and further that Mr. Akinjide returned the said processes to the registry of this court by letter dated 27th February, 1986 on the ground that I had instructed another counsel i.e. Prince Adewuyi for the appeal.

19.
I collected my copy of the record of proceedings at the High Court Registry, Ibadan on 8th January, 1985 and took the same about 2 weeks later to Ife. Since I did not meet Prince Adewuyi in office I delivered the same to a clerk in his office whose name I do not know. I am informed by Prince Adewuyi and I verily believe him that his said clerk at the material time has since left his employment and can no longer be traced.

20.
Thereafter, I made periodic calls to the office of Chief Adewuyi to obtain situation reports about the appeal. I did not meet him on several occasions and on the last occasion he complained that my visits were too frequent and that it (sic) should stop until he gets (sic) in touch with me.

21.
I am now informed by O.A. Abiose, Esq. and I verily believe him that my appeal was dismissed for want of prosecution as a result of my failure to file a brief of arguments in compliance with the Rules of this honourable court with which I am unfamiliar.

22.
I am also informed by Prince Adewuyi and I verily believe him that he was also not aware (until after his enquiry as to the reason for the appeal being dismissed) that I had collected and deposited my copy of the record of proceedings at his office and it was only after I confirmed the fact to him that he made a search and discovered the record in his office. I attach hereto an affidavit sworn to by Prince Adewuyi confirming the above mentioned fad and mark same as exhibit ‘C’.

24.
I am informed by O.A. Abiose Esq., and I verily believe that having read the record of proceedings, he considers it necessary to urge three additional grounds of appeal on my behalf as set out in the schedule attached to the motion paper.

25.
The said grounds of appeal are not contained in my notice of appeal and the leave of this honourable court is required in order that arguments be heard in support thereof.

26.
The brief of argument in support of all my grounds of appeal has been settled and a copy thereof is attached hereto and marked exhibit ‘D’ (Italics mine)

In exhibit C referred to in paragraph 22 above, Prince Franklin Okikiade Adewuyi, the last but one counsel the applicant engaged to handle his case, deposed inter alia, as follows:

” 1.
I was instructed as counsel by the applicant in this suit on or aboutJuly, 1979. This was after the judgment of the High Court and after A. Akinjide Esq. then representing the applicant had filed a notice of appeal to the Court of Appeal on behalf of the applicant.

2.
By my letter dated 8th October, 1979 1 informed the Higher Registrar of the High Court, Ibadan of my instructions by the applicant with a further request that all processes in the matter should be served on me on behalf of the applicant. At that time

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the record of the proceedings in the High Court had not been compiled.

3.
On 21st April, 1986, the applicant called to see me in my chambers at Ile-Ife to inform me that he had received information from the 1st respondent that this appeal had been dismissed.

4.
I immediately called at the registry of Court of Appeal Ibadan wherein I confirmed that the appeal was dismissed for want of prosecution on 5th March, 1986 for the failure of the applicant to file a brief of arguments.

5.
Since 1 was not aware that the record of appeal had been compiled and copies thereof forwarded to the Court of Appeal, I approached the applicant and he informed me and I verily believe that he had collected his own copy of the record of proceedings on or about 8th January, 1985 and that he delivered the same to my office in Ile-Ife two or three weeks later.

6.
Since I had never had cause to disbelieve the applicant before, I made a search for the said copy of the records in my office and discovered it is a file completely unrelated to the applicant’s appeal.

7.
Hitherto I was not aware that the applicant’s copy of the records had been left at my office.

8.
This was because late in 1984 to about April, 1985, I being a political office holder was required by the N.S.O., the Police authorities to report at Eleiyele Police Headquarters, Ibadan at one time and later periodically whilst investigations were (sic) being conducted into my past as Chairman of the Nigeria Cocoa Board.

8(a)
That I stopped going to N.S.O. Headquarters, Ibadan on 2013/86.

9.
During the period I was unable to attend to work in my chambers effectively and was away therefrom most of the time.

10.
The applicant has now informed me and I verily believe him that he delivered his copy of the records to my office during this period. This fact never came to notice.

11.
The failure of the applicant to file a brief of arguments within the time prescribed by the rules of court is through no fault of his but mine.

      (Italics mine)

The respondent in full challenge of the application, filed a counter-affidavit of 30 paragraphs. After confirming, inter alia, as correct paragraphs 1, 2, 3, 4, 5, 6, 7, 8 and 9 respectively of the applicant’s affidavit, he deposed as follows:

“5.      That the purport of Mr. Adewuyi’s letter to the Registrar High Court, Ibadan was to keep him informed of any matter regarding the compilation of the record of appeal.

6.
That Prince Adewuyi ought to write to the Higher Registrar Court of Appeal to let him know that he was the one handling the said appeal and not Akinloye Akinjinde Esq. as contained in the notice of appeal filed by the appellant.

7.
That Prince Adewuyi failed to write to the Higher Registrar Court of Appeal intimating him that he was the counsel handling the

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said appeal and that all other future correspondence regarding the appeal to be directed to him.

8.
That because of the failure (sic) of Prince Adewuyi to inform the Higher Registrar of the Court of Appeal Ibadan, the Registrar sent hearing notice regarding the appeal to the counsel, Akinloye Akinjide Esq. who settled the appeal and filed the notice of appeal for the appellant/applicant.

10.
That by paragraph 19 of his affidavit the appellant/applicant personally collected his own copy of the record of proceeding on 8th January, 1985 from the High Court.

11.
That the appellant/applicant having collected the record of proceedings in connection with the appeal, the letter written by. Prince Adewuyi i.e. exhibit B is valueless since there is no further information to communicate to him by the Registrar High Court, Ibadan.

12.
That by paragraph 19 of his affidavit, the appellant/applicant deposited the record of proceedings in connection with the appeal two weeks later in Prince Adewuyi’s office though he did not meet him.

13.
That by paragraph 20 of his affidavit the appellant met his solicitor Prince Adewuyi after several calls who told him not to bother to come to him until he got in touch with him.

14.
That paragraph 10 of exhibit C is false because the applicant informed Prince Adewuyi that he had deposited the record of proceedings and he actually saw the record of proceedings of the appeal at the time he advised the applicant to stop coming until he got in touch with him.

16.
That Prince Adewuyi was not detained and he was working effectively in his chambers between January, 1985 and March, 1986.

17.
The hearing notice were (sic) issued in connection with this appeal on 23rd day of October, 1985 informing the counsel that appeared on the notice of appeal that the appeal will be heard on the 5th day of March, 1986.

18.
That 1 hereby exhibit the hearing notice as exhibit A.

19.
That the appellant was duly served with the hearing notice through his solicitor Akinloye Akinjide esq., who filed the notice of appeal for him.

20.
That if Prince Adewuyi had notified the Registrar, Court of Appeal that he was the one handling the appeal the hearing notice would have been sent to him.

22.
That on enquiry from the Court of Appeal Registry I found that the appellant/applicant did not file his brief of argument and consequently I filed a motion to dismiss the appeal for want of prosecution sometime in February, 1986.

23.
That the appellant did not file his brief of argument for about 12 months after collecting the record of appeal.

24.
That on the 5th day of March, 1986, when the appeal, as well as the motion to dismiss the appeal for want of prosecution came up

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for hearing, there was no application for extension of time within which to file the brief of argument of the appellant/applicant.

25.
That eventually the appeal was dismissed by the Court of Appeal on the 5th March, 1986 for want of prosecution and the order of dismissal for want of prosecution had been drawn up.

26.
That I hereby exhibit the Order of Dismissal of the said appeal for want of prosecution as exhibit B.

  1.        That as far as the said appeal is concerned the Court of Appeal is functus      officio.”

    (Italics mine)

I will first of all deal with the letter (exhibit B). Prince Adewuyi, former .solicitor to applicant averred in paragraphs 1 and 2 of his affidavit he wrote to the Higher Registrar of the High Court Ibadan informing him (the Higher Registrar) of his instructions by the applicant with a further request that all processes in the matter should thenceforth be served on him instead of Akinbye Akinjide Esq. If in fact Mr. Adewuyi wrote exhibit B to the Higher Registrar, High Court, Ibadan but wrote none similarly couched to the Higher Registrar, Court of Appeal, the points made by the respondent in paragraphs 6-8 of his counter-affidavit that failure to notify the Higher Registrar, Court of Appeal is fatal to the applicant’s application cannot hold. This is because the change of address as shown on exhibit B if embodied in the compiled record of proceedings which was forwarded to the Court of Appeal on 24th November, 1984, a copy of which applicant personally collected from the High Court Registry on 8th January, 1985 would be enough notice to the Higher Registrar, Court of Appeal. Nor do I agree with the respondent that because applicant personally collected the record of proceedings exhibit B ipso facto became valueless as asserted in respondent’s counter-affidavit in paragraph 11 and argued forcefully before us. The question to ask really and for which an answer ought to be provided however is, was/is exhibit B so embedded or formed part of the record of proceedings which the trial court considered before dismissing the applicant’s case for non prosecution on 5th March, 1986?

First, the record of proceedings itself or part thereof has not been exhibited before this court. Failure of applicant to exhibit it with this application, in my view, is fatal see Ukpe Ibodo & Ors. v. Iquase Enarofia & Ors. (1980) 5 -7 SC. 42.

In this latter case, the Supreme Court enjoined those who seek its aid in similar circumstances with no lesser clarity when it stressed at pages 57-58 thus:

     “It cannot be over emphasised that where an applicant requires court to exercise its discretion for a grant of extension of time within which to appeal or within which to apply for leave to appeal, all the documents which it will be necessary for the court to see in order to decide on the application must be exhibited. These normally should include among others, the affidavits of the applicant and/or his counsel; the judgments of the courts below; the exhibits or so much of the exhibits on which the applicant will rely to argue his application, his proposed grounds of appeal; where necessary, the record of proceedings as will enable the court to found the substantiality of those grounds of appeal, based solely, or in the main on the evidence giving the brief of

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the applicant’s argument, and any other document or documents which in the special circumstances of a particular case the court will need to see in order to be able to decide on the matters in contest in the application.”

Secondly, if as averred by the respondent the only information relating to service of processes in the record of proceedings is that contained in exhibit A (the notice of appeal) naturally, the only inference one would arrive at is, that since the Registrar of the Court of Appeal was not notified that Prince Adewuyi was the one now handling the appeal, service of the hearing notice to applicant through the applicant’s counsel, would be deemed to be proper. This would have the effect of nullifying the effect of the applicant’s assertion in paragraph 17 of his affidavit wherein he avers:

“I have now engaged the services of Chief Olisa Chukura S.A.N. And I am informed by A.O. Abiose Esq. a counsel in his chambers and I verily believe him that his enquiries at the registry of this court on Friday 2nd May, 1986 revealed that the hearing notice and notice of motion aforementioned were served on Akinloye Akinjide Esq. (who had long ceased to be my counsel) on 24th February, 1986 and further that Mr. Akinjide returned the said processes to the registry of this court by letter dated 27th February, 1986 on the ground that I had instructed another counsel i.e. Prince Adewuyi for the appeal.”

The above averment gives rise to the following postulations:-

Firstly, but for the respondent who annexed to his counter-affidavit a photostat copy of the hearing notice (exhibit A) dated 2nd October, 1985 addressed to the applicant, care of his solicitor, Akinloye Akinjide & Co., there is nothing further to vouch for the authenticity of the assertion. The mere assurance of Mr. O.A. Abiose Esq. without more as deposed that he made enquiries on the service of the hearing notice (exhibit A) and notice of motion and their return by a covering letter to the registry of this court by Mr. Akinjide had instructed another counsel i.e. Prince Adewuyi, can at best constitute no more than a conjecture. Neither has Mr. Abiose himself sworn to an affidavit to verify the former facts, the applicant exhibited the letter of 27th February referred to above nor has Mr. Akinloye Akinjide or a staff of the Registry of this court been made to swear- to an affidavit admitting or denying as much of the latter facts. Surely, Mr. Akinloye Akinjide has not yet been declared dead. Furthermore, neither the Higher Registrar of the High Court nor a staff (e.g. the bailiff responsible for the service thereof) has been made to swear to an affidavit of the incorporation of exhibit B in the record of proceedings of the appeal dismissed on 5th March, 1986 to ensure that the averment in respect thereof is fool-proof.

It is for the above reasons that I am satisfied and so express my complete agreement with the respondent that the applicant was duly served with the hearing notice through applicant’s solicitor, Akinloye Akinjide Esq., who filed exhibit A in the first place. Further, I am satisfied that if Mr. Adewuyi had notified the Registrar of the Court of Appeal (or even the Registrar, High Court) that he was handling the appeal and not Mr. Akinjide, the hearing notice (exhibit A, attached to respondent’s counter-affidavit would have been sent to him.

Now to applicant’s prayer for setting aside the order made by this court on 5th March, 1986. On his own admission applicant had collected his record of

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proceedings relating to his appeal from the High court Registry, Ibadan on 8th January, 1985. His appeal, he averred, was dismissed for want of prosecution, having failed to file his briefs of argument following the effluxion of time extending to over 12 months. The order of this court dismissing the applicant’s appeal for non-prosecution can be validly set aside if applicant can show to this court’s satisfaction that neither he nor his counsel received the hearing notice or notice of motion. Failure to effect service of either process of this court on either him or his counsel, would of necessity render the dismissal Order of this court as exemplified on exhibit B attached to the counter-affidavit of respondent, a nullity – see Skensconsult (Nigeria) Ltd. v. Godwin Ukey (1981) 1 SC. 6. But has applicant been able to show that the service of either process was not made on him or his counsel? I think not.

In the first place, I am satisfied that there are enough facts disclosed to this court that there was proper service on the applicant.

Secondly, in paragraph 20 of his affidavit, applicant deposed that after he had left his record of proceedings he collected on 8th January, 1985 from the High Court registry, Ibadan with Prince Adewuyi’s former clerk, he thereafter made periodic calls to Prince Adewuyi to obtain situation reports about the appeal; that on the last of his several fruitless visits Prince Adewuyi complained that his visits were too frequent and that they should stop as he would himself get in touch with him (applicant). However, Prince Adewuyi has not confirmed all these points in his affidavit (exhibit C) in support of applicant’s. Nor has he corroborated in exhibit C the points made by the applicant that his clerk misplaced the record of proceedings, what name the defaulting clerk bore and when he left his services.

Thirdly, there does not appear to be any merit in the applicant’s averment that the period of inaction on applicant’s part, if I may be permitted the use of those words, his counsel, Prince Adewuyi did not work in his chambers at all. In other words, he did not aver that he (Prince Adewuyi) closed down his chambers completely. And if as he deposed to in paragraphs 19 and 20 of the affidavit (ibid) he made periodic calls on him after depositing the record of proceedings with his clerk, then the last sentence in paragraph 20 to the effect that “I did not meet him on several occasions and the last occasion he complained that my visits were too frequent and that it (sic) should stop until he gets in touch with me” ought clearly to fall to the period after 8th January, 1986. This has been contradicted by the averment of Prince Adewuyi at paragraphs 10 and 11 (ibid) in exhibit C wherein he asserts that –

“10.     The appellant has now informed me and I verily believe that he delivered his copy of the records to my office during this period. This fact never came to my notice.

  1.      The failure of the applicant to file a brief of arguments within the time prescribed by the rules of court is through no fault of his but mine.”

This is because apart from other apparent conflicts one can discern from the two affidavits namely, that of applicant and Prince Adewuyi, are the mandatory provisions of Order 6 Rule 2 of the Court of Appeal Rules, 1981 as amended, requiring the applicant within sixty days of the receipt of the records of appeal from the court below, to file in this court, a written brief. Nothing of the sort was done from 8th January, 1985 until the appeal was dismissed for want of prosecution on 5th March, 1986 over twelve months later. I am therefore satisfied

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H

that the applicant has not given good and substantial reasons for failing to file his brief of argument within the time ordered by the rules. The applicant has also not shown vigilance see Chief T.O.S. Benson v. Nigerian Agip Oil Company Ltd. (1982) 5 SC. 1; Alhaji Abdulkadir Balarabe Musa v. Auto Hamza & Six Others (1982) 5 SC. 172 and the University of Lagos v. C.I.O. Olaniyan (1985) 1 . 156. This court, in my view, lacks jurisdiction, statutory or inherent to grant the application sought. Hence, I agree with learned counsel for respondent that this court is functus officio in respect of this application since neither can Section 16 of the Court of Appeal Act apply nor can the inherent jurisdiction of the court be invoked thereby. In the case of Chief Iro & Ors. v. Chief Ogburu Urum (1981) 4 SC 1, where a similar application was brought pursuant to Order 7 Rule 23(3) and Order 9 Rule 3(1) of the former Supreme Court Rules of 1977 (in pari materia with Order 3 Rule 25(2) and Order 6 Rule 10 Court of Appeal Rules, 1981 (as amended) for –

(1)
the appeal to be re-entered and

(2)
the enlargement of time within which to file and serve the appellant’s brief it was held (per Uwais, JSC) inter alia at page 23 –

    “… In this case … Once the appeal is dismissed it seems to me that this court   becomes functus officio and has no power under Order 10 to re-list the     appeal.”

See also T .A. Yonwuren v. Modern Signs (Nig.) Ltd. etc. (1985) 2 SC. 66 whose facts are similar to some extent with those in the present application except that in the application in hand, the applicant’s counsel did not appear at the dismissal of the appeal for want of prosecution on 5th March, 1986. In Yonwuren’s Case (supra) Sowemimo, C.J.N. after deliberating on what constitutes statutory or inherent jurisdiction in applications of this kind observed at page 92 thus:

“The peculiar circumstances in this appeal, suit No. SC.55/83:

T.A. Yonwuren v. Modern Signs (Nig.) Ltd., are that the appellant collected the record of proceedings delivered it to the chambers of his legal practitioner, and it was misplaced. When the appeal came on the list for disposal for the purpose of dismissing it for want of due prosecution, the legal practitioner representing the appellant appeared. On the other hand, the respondent also appeared. It comes for a decision whether the situation as disclosed, creates a situation of want of due prosecution because briefs were not filed or non- appearance of an appellant.

The Court decided to dismiss the appeal for want of due prosecution. The present application for re-listing, in exercise of inherent jurisdiction, is hereby dismissed.

……..

See also the sister consolidated Rulings of John Enemoh & Anor. v. Chief Daniel Onokpite & Ors. and Udealo Nwaora v. Nwannoli Nwakonobi & Ors. (supra) where the Supreme Court arrived at the same conclusions and with which I am bound. Our Rules of Court, like the former Supreme Court Rules, make no provisions for re-listing appeals dismissed for want of prosecution. Cf. Order 3 Rules 26 and 27(1), (2) and (3) Court of Appeal Rules (ibid) respectively.

To cap it all, exhibit B attached to the respondent’s counter-affidavit has put the matter beyond any doubt wherein it is stated:

460
.
10 November 1986
(Onu, J.C.A.)

A

B

C

D

E

F

G

H

“AND AFTER HEARING Niyi Akintola Esquire of counsel for the Applicants and the appellant being absent and not represented but duly served

IT IS ORDERED:

1.
that the application be and is hereby granted; and

2.
that the appeal be and is hereby dismissed for want of prosecution with N60.00 (Sixty Naira) costs to the 2nd applicant/respondent. “

    (Italics mine)

With regard to applicant’s prayer for an order enlarging the time within which he may file his briefs of argument, this can only be granted were it to be shown that applicant on receipt of the record of appeal on 8th January, 1985 caused his briefs of argument to be filed in accordance with the rules of this court or sought extension of time within which to do so after time had run out, or acted timeously or further still, shown that the judgment obtained thereby is a nullity.

Before us, learned Counsel for the applicant, O.J. Bamgbose Esq., submitted that the applicant’s former counsel returned the hearing notice (exhibit A attached to respondent’s counter-affidavit) whereas the applicant himself remained unaware of the hearing date. Had the applicant been aware of the hearing date, he contended, the situation would have been different.

I am satisfied having regard to all I have stated herein-before that notice of the appeal was duly communicated to the parties thereto and that the order of dismissal of applicant’s appeal on 5th March, 1986 as contained in exhibit B attached to respondent’s counter-affidavit, is not vitiated by any purported failure to notify him. The case of L. Scott-Emuakpor v. Ukavbe (1975) SC. 41 at 47, Skensconsidt Nig. Ltd. v. Godwin Ukey (supra) and Azeez v. The State (1986) 2 . 541 at 546 relied upon by learned counsel for applicant are, in my view, not helpful to the applicant’s prayer.

In the result, the application for an order enlarging the time within which applicant may file briefs of argument is hereby refused.

The application for relisting the appeal and for enlarging the time within which applicant may file briefs of argument having both failed, the ancillary order sought for the applicant to argue additional grounds of appeal must perforce fail. It is accordingly refused see Ukpe Ibodo v. Iquase Enarofia (supra) and Mogo Chinwendu v. Nwanegbo Nbamali (1980) 3-4 SC. 31 at 32.

This application is therefore refused in its entirety and it is accordingly dismissed with N30.00 costs to the respondent.

OMO, J.C.A. (Presiding): I entirely agree with the ruling just delivered by my learned brother, Onu J.CA. which I have had the opportunity of reading in draft.

Application is hereby dismissed with costs as assessed by him.

OMOLOLU-THOMAS, J.CA.: I have read the draft of the Ruling of my Learned Brother Onu, J .C .A .just read and I am in agreement that the application ought to be refused. I order accordingly, with costs as assessed in the lead ruling.

Application dismissed.

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