ALI ALABA INTERNATIONAL LIMITED & ANOR v. STERLING BANK PLC (2018)

In The Supreme Court of Nigeria

On Friday, the 6th day of July, 2018

SC.69/2006

Before Their Lordships

MUSA DATTIJO MUHAMMAD  Justice of The Supreme Court of Nigeria
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN  Justice of The Supreme Court of Nigeria
CHIMA CENTUS NWEZE  Justice of The Supreme Court of Nigeria
AMIRU SANUSI  Justice of The Supreme Court of Nigeria
EJEMBI EKO  Justice of The Supreme Court of Nigeria


Between

1. ALI ALABA INTERNATIONAL LTD
2. ALI USMAN GEIDAM – Appellants

AND

STERLING BANK PLC
(Substituting EQUITORIAL TRUST BANK LTD) – Respondents


………………..A………………..

AMIRU SANUSI, J.S.C. (Delivering the Leading Judgment): This appeal is against the Ruling of the Lagos division of the Court of Appeal (the lower or Court below) delivered on 10th May, 2005 which dismissed the appellants’ appeal against the judgment of the High Court of Lagos State (the trial Court) declaration on the 13th of October, 1999.
FACTS OF THE CASE
The facts of the case culminating into this appeal are simply thus:-
The respondent, as plaintiff at the trial High Court, filed an action against the appellants (defendants) for recovery of the sum of Thirty two million, six hundred and forty-four thousand, nine hundred and thirty two naira, twenty kobo (#32,644,932.20k) which was a sum arising from credit facilities granted to the appellants. The appellants admitted owing the respondent the sum of twenty nine million, eight hundred and seventy five thousand naira, thirty-two kobo only (#29,872,075:32k) with accrued interest. Based on that admission by the appellants/defendants, the trial Court entered judgment against the appellants in favour of the respondent/plaintiff.
Prior to the said judgment, the trial Court made an order of mareva injunction freezing all assets of the appellants. The trial Court also ordered the 1st appellant herein, to procure a bank guarantee in the outstanding sum, pending the final determination of the substantive suit. The Court also ordered the sealing of the 1st appellant’s premises at No.48, Alaba Rago Market along Badagry Express way, Lagos pending the time the substantive suit was finally determined.
Dissatisfied with the judgment of the trial Court, the appellants appealed to the Court below. After entering their appeal, the appellants became lackadaisical and indiligent by not filing their brief of argument to prosecute their appeal which they filed on 19th November, 1999. Thereupon, the Court below invoked the provisions of Order 6 Rule 10 of the Court of Appeal Rules 1981 and dismissed the appellants’ appeal.
Then on 16th December, 2005, the appellants filed an application at the Court below for relisting of the appeal which was earlier dismissed on 10/5/2005 and also applied for extension of time within which to file their brief of argument. Those applications were later withdrawn by the appellants on 18/8/2006 and struck out by the lower Court upon the withdrawal by the appellants/applicants of the said motion.
The appellant later briefed a new counsel who filed an application dated 23rd April, 2007 seeking an order for extension of time to appeal against the decision of Court of Appeal dated 10th May, 2005 dismissing the appellants’ appeal and also seeking extension of time to file their Notice of appeal. The application was graciously granted by the Court below, hence the appellant on 13th December, 2007 filed their Notice of appeal.
Parties thereupon, in keeping and compliance with rules of this Court, filed and exchanged briefs of argument. In the joint appellants brief of argument settled by Dolly Akanimo & Co, the following dual issues were raised for the determination of the appeal by this Court, namely:-
1. Whether the Honourable Court should intervene to restore to a litigant such as the Appellants in the face of a brazen inadvertence, error, mistake or sin of their counsel.
2. Whether the Honourable Court should intervene where the lower Court perpetuates in justice, miscarriage of justice, afortiori injustice to their party.

On its part, the respondent in its brief of argument settled by Victor O. Odjemu Esq., postulated sole issue for determination which reads thus:-
“Whether the Appellants’ appeal having been dismissed under the relevant rule of Court by the Court below can be relisted.”
SUBMISSIONS OF COUNSEL ON ISSUES FOR DETERMINATION
ISSUE NO.I 

This deals with whether the Court should intervene to restore justice to a litigant such as the appellant in the face of mistake or sin of their counsel.
On this issue the learned counsel for the appellants submitted that it is an established principle of law, that sins of a counsel should not be visited upon a litigant who could not be held responsible for his solicitor’s failure to comply with the conditions of appeal. He stated that the former lawyer one Mr. Adetunji failed to inform the 2nd appellant of his elevation to the Bench in Adamawa State not until the 2nd appellant discovered on its inquiry during which period, the appeal had been dismissed by the Court below pursuant to Order 6 Rule 10 of the Court of Appeal Rules 1981.

………………..B………………..

He therefore submitted further, that blunder of counsel handling a case should not be a ground for defeating the justice of the case of the appellants.
He referred to the case of CHIEF MAILAMAI v CHIEF ORBIH (1980)5-7 SC 28 at 34.
He also argued that the mistake of counsel in the circumstances of this case does not amount to a fundamental irregularity that affects the jurisdiction of the Court as would render the proceedings void and that no injustice will be occasioned to the other party. He urged the Court to resolve this issue in favour of the appellant.
ISSUE NO.2
This issue queries whether the Court should intervene where decision of the Court has caused injustice to the third party. The learned counsel to the appellant argued that the appellants’ office premises will remain sealed forever since the tenet of the order of the trial Court reads “until the determination of the substantive suit except the appeal is allowed as the said order has been overtaken by events and truncated by the finality of the dismissal of the appeal”. He argued that order of the trial Court for a bank guarantee for the outstanding judgment sum after making an order freezing all the account of the appellant and sealing of their premises, makes it impossible to procure bank guarantee. He argued that it is a miscarriage of justice against a third party who wanted to seek relief from Court, the Court striking out this action could not obtain the bank guarantee as the office of the appellants has been sealed off. He then urged the Court to also resolve this issue in favour of the appellants and to allow this appeal.
As I stated above, in responding to the argument of the learned counsel for the appellants, the learned counsel for the respondent distilled sole issue for determination.
The issue deals with whether an appeal dismissed under Order 6 Rule 10 of the Court of Appeal Rules 1981, which is in pari-materia with Order 18 Rule 10 of the Court of Appeal Rules 1981 can be relisted.
The learned counsel to the respondent submitted that the appellants’ appeal, having been dismissed under Order 6 Rule 10 of the Court of Appeal Rules 1981 (as amended), cannot be relisted as the dismissal is in law a judgment on merit. He therefore submitted that the appellants’ application to relist the appeal is also incompetent as the Court has become functus officio and lacks jurisdiction to entertain same.
He cited the case of DAKAN V ASALU (2015)13 NWLR (pt.1475)47 at 66 para B-C.
He submitted that it is not only the Court of Appeal that cannot relist the appeal but also the Supreme Court equally lacks the jurisdiction to order a relisting of an appeal dismissed by the Court of Appeal for non- filing of an appellant’s brief of argument. He referred to the case of KRAUS THOMPSON ORGANISATION V NIPSS (2004)17 NWLR (pt.901)44 at page 59 parag D-E. He then urged the Court to resolve this issue in favour of the respondent and dismiss the appeal.
RESOLUTION OF ISSUES RAISED BY LEARNED COUNSEL 
I think the sole issue raised by the learned counsel for the respondent has subsumed the dual issues raised in the appellants’ brief of argument and I shall therefore be guided by it in the resolution and determination of this appeal as it is apt to the issues canvassed in the appeal by learned counsel for the parties.
There is no gainsaying that the appellant’s grudge was the dismissal of his appeal by the lower Court pursuant to Order 6 Rule 10 of the Court of  Appeal Rule 1981 after the learned appellants counsel had earlier wilfully applied to withdraw the appeal. Aggrieved by the order of lower Court striking out the appeal the appellants’ counsel later applied for the relisting of the appeal. It is pertinent to note that right from the outset, the appellant failed to file brief of argument within time and did not also file application for enlargement of time to file their brief out of time despite the chances given to him to do so earlier.
It is well established principle of law that where an appellant fails to file his brief of argument within the time stipulated by Order 6 Rule 10 of the Court of Appeal Rules 1981 or within the time extended in his favour by the Court of Appeal as in this instant case, the respondent may apply to the Court pursuant to Order 6 Rule 2 of the same rules for the said appeal to be dismissed for want of prosecution under the same Rules. See Thomas Eminy Olumesan vs Ayodele Ogundepo (1996)2 NWLR (pt.433)628. In such situation, the appeal is deemed abandoned by the appellant and must therefore be struck out. See Akibu & Ors vs Oduntan & Ors (2000)7 SCNJ 189; Sparkling

………………..C………………..

Breweries Ltd & Ors Vs Union Bank of Nigeria Ltd (2001)7 SCNJ 321.
My lords, it will not be out of place to refer to this Court’s decision in Akanke Olowu & Ors V Amudatu Abolore (1993)5 NWLR (pt.255) where this Court per Karibi-Whyte JSC had this to say.

“It has no inherent jurisdiction to set aside an order of dismissal properly made in the valid exercise of its jurisdiction and re-enter the appeal. An appeal dismissed on the ground of the failure to file appellant’s brief of argument is final. The appeal so dismissed can not be revived.”
This Court in the above mentioned case further held that once the Court of Appeal has dismissed an appeal for want of diligent prosecution due to appellant’s failure to file his brief of argument, that Court becomes functus officio on that matter.

It is noted by me, that the learned counsel for the appellants vehemently argued or pleaded with this Court to relist or re-enter his appeal in spite of his glaring failure to file brief of argument on behalf of his clients timeously but is now hiding or also hid behind what he termed “as mistake or sin of counsel”, which according to him attributed to the failure on their part to file brief of argument within time or to seek extension of time to file same. With due respect to the learned appellants’ counsel, rules of Court are sacrosanct. They were not made or promulgated for fun. They are meant to be obeyed or complied with to their letters always. The rules of the Court below clearly spelt out the time within which to file briefs of argument by parties and had yet given the party yet another chance to apply for extension of time where it fails to file brief within the stipulated period. The reasons given which was attributed to the failure of appellants to file appellants brief of argument in the appeal, namely, the “mistake or sins of counsel”, do not appear sound, tenable, or cogent at all. The learned appellants’ counsel seems to be trying to whip up sympathy. With due respect to the learned counsel for appellants, sympathy can not override the clear and unambiguous provisions of the rules of Court.
It will always serve the interest of justice and even the interest of parties too, if learned counsel always endeavour to comply with the prescribed time set out by the rules within which some acts should be done or any step should be taken for the smooth administration of justice and NOT to act towards stultifying the administration of justice. See the case of Kraus Thompson Organisation vs National Institute for Policy and Strategic Studies (2004)17 NWLR (pt.901)44.
Thus, in view of the decisions in plethora of decided authorities of this Court, failure to file brief of argument by the appellants in this case has given the Court below the power to dismiss the appeal. In this situation the Court below becomes functus officio and lacks the jurisdiction to revive or re-enter the appeal as clearly provided by the provision of Order 6 Rule 10 of the Court of Appeal Rules, 1981. This Court also lacks jurisdiction to re-enter or relist the case which was earlier dismissed under the aforementioned rules since the dismissal of the case by the lower Court is final. I resolve the sole issue in favour of the respondent.
On the whole, I adjudge this appeal to be devoid of any merit. It is therefore accordingly dismissed. Cost of #200,000 awarded against the appellants in favour of the respondent.
MUSA DATTIJO MUHAMMAD, J.S.C.: I entirely agree with the reasoning and conclusion of my learned brother AMIRU SANUSI JSC that this appeal is devoid of any merit and has failed.
The principle is trite that the dismissal of an appeal for appellants’ failure to file their brief of argument is a decision on the merit and once pronounced the Court is functus officio, devoid of any jurisdiction to revisit the order let alone vary same. See Akanke Olowu & ors V. Amudatu Abolore (1993) 5 NWLR (Pt 293) 255, Kraus Thompson Organisation V. N.I.P.S.S. (2004) 17 NWLR (Pt 901) 44, First bank of Nigeria Plc V. T.S.A Industries (2010) 15 NWLR (Pt 1216) 247. In Tsokwa V. U.T.C. (Nig) Ltd (2000) 7 NWLR (Pt 666) 654 at 667, this Court in interpreting Order 6 Rule 10 of Court of Appeal Rules 2002 which is in pari materia with the 1981 rules of the same Court, particularly held thus:-
“…There is no provision in Order 6 enabling the relisting an appeal dismissed for failure to file an appellant’s brief of argument under Order 6 Rule 10. Therefore an appeal dismissed on the ground of the failure to file an appellant’s brief of argument is final. The appeal so dismissed cannot be revived.”

………………..D………………..

It is for the foregoing and the fuller reasons in the lead judgment that I find the instant appeal unmeritorious. I dismiss same and abide by the consequential orders made in the lead judgment.
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.: The issue in this appeal is a very narrow one. It is, as distilled by learned counsel for the respondent, whether the appellant’s appeal having been dismissed under the relevant rule of Court by the Court below, can be relisted.
The appellants’ appeal at the Court below was dismissed under Order 6 Rule 10 of the Court of Appeal Rules 1981, as amended, for failure to file their brief of argument within the time stipulated by the rules and within the time extended for them to do so.
Order 6 Rule 10 provides:
“Where an appellant fails to file his brief within the time provided for in Rule 2 of this Order, or within the time as extended by the Court, the respondent may apply to the Court for the appeal to be dismissed for want of prosecution.”
There are numerous decisions of this Court on the effect of an appeal dismissed under this section. In Kraus Thompson Organisation Vs N.I.P.S.S (2004) 17 NWLR (Pt 901) 44 @ 58 C – E: 59 E- F: 54-64 H-A it was held that when an appeal is dismissed under Order 6 Rule 10, its life terminates and it is removed from the cause list. It was held that the rule does not give the Court any discretion. Once the respondent makes an application thereunder, the appeal must be dismissed. It was further held that the dismissal is fatal, as the Court has no jurisdiction to resuscitate or revive it. See also: Ogbu Vs Urum (1981) 4 SC 1 @ 9: Olowu vs Abolore (1993) 5 NWLR (Pt. 293) 255: Dakan vs Asalu (2015) LPELR – 24637 (SC) @ 21 A-E: Governor of Zamfara State & Ors Vs Gylang & Ors (2013) NWLR (Pt.1357) 462.
The Court below lacked jurisdiction to relist the appeal. This Court therefore lacks jurisdiction to do what the lower Court had no jurisdiction to do.
My learned brother, AMIRU SANUSI, JSC has said it all in the leading judgment, with which I fully concur. This appeal is devoid of merit. It is hereby dismissed. I abide by the order for costs.
CHIMA CENTUS NWEZE, J.S.C.: I had the advantage of reading, before now, the leading judgment which my Lord, Sanusi, JSC, just delivered. I agree with His Lordship that, being unmeritorious, this appeal deserves to be dismissed.
My Lords, this Court had the opportunity of dealing, extensively, with the nuances of the provisions of Order 6 Rule 10 of the Court of Appeal Rules, 1981 in Dakan and Ors v Asalu and Ors (2015) LPELR – 24687 (SC). At pages 21, the Court, first, set out the provisions thus:
In the words of Order 6 Rule 10 of the Court of Appeal Rules, 1981:
10. Where an appellant fails to file his brief with the time provided for in Rule 2 of this Order, or within the time extended by the Court, the respondent may apply to the Court for the appeal to be dismissed for want of prosecution…
An appeal dismissed on the ground of failure to file appellant’s brief of argument is final. The appeal so dismissed cannot be revived.

From pages 21 -24; A -B, the Court [per Nweze, JSC] proceeded thus:
Designed as a provision for the enhancement of case management, Order 6 Rule 10 (supra) imposes a tri-partite obligation: on the part of the appellant, the duty to get on with his appeal since it has, always, been the demand of public policy that the business of the Court should be conducted with expedition and dispatch, Olowu and Ors v Abolore and Anor (supra) at 270, citing Obiorah v. Osele [1989] 1 NWLR (pt 97) 279; also, Governor of Anambra State v Orji [1990] 5 NWLR (pt 150) 349, 350.
Against the background of the congestion of cases at the lower Court, the corresponding obligation on respondents, of ensuring that indolent appellants pursue their appeals expeditiously, is to ginger the Court into exercising its power of purging its docket of stale appeals by their dismissal for want of diligent prosecution, Obiora v Osele(1989) LPELR -2189 (SC) 28, A-D; Babayagi v Bida (1998) LPELR-699 (SC) 19-20, G-A; Akujinwa and Ors v Nwaunuma and Ors(1998) LPELR -391 (SC) 26, B-c; Chime v Ude [1996] 7 NWLR (pt 461) 379. The Court, on the other hand, is empowered to dismiss such dead appeals as prayed under the above provision, Akujinwa and Ors v Nwaunuma and Ors (supra); State v Nnolim and Ors (1994) LPELR -3222 (SC) 20, A-C so as to bring relief to, and decongest, its Cause List, Obiora v Osele (supra).

………………..E………………..

That is the rationale for the above rule for the dismissal of an appeal inter alia where an appellant fails to file his brief of argument within the time prescribed or as extended by the Court, Akanke Olowu and Ors v. Amudatu Abolore and Anor (supra), page 272. Such a dismissal order terminates the life of the appeal, which is, in consequence, delisted from the cause list. No Court has the jurisdiction to resuscitate or revive it, Kraus Thompson Organisation v. N.I.P.S.S. [2004] 5 SC (pt.1) 16 because such an appeal dismissed on the ground of the failure to file an appellant’s brief of argument is final and thus cannot be revived, Tsokwa v. U. T. C. (Nig.) Ltd[2000] 7 NWLR (pt. 666) 654, 661.
…in 2006, in Asalu and Ors v Dakan and Ors (2006) LPELR -573 (SC) 19, C-D this Court had intoned magisterially that: …an appeal dismissed by the Court of Appeal for failure to file appellants’ Brief of Arguments is final and such appeal cannot be revived by the Court of Appeal, [italics supplied for emphasis]; Olowu v. Abolore [1993] 5 NWLR (pt.293) 255; Babayagi v. Alhaji Bida [1998] 1-2 SC 108; [1998] 7 NWLR (pt. 538) 367. Put simply, it amounts to a dismissal on the merits, UBA Plc v Ajileye [1999] 13 NWLR (pt 633) 116, 126; Olowu v. Abolore (supra); Kraus Thompson Org v N.I. P.S.S. (supra); Babayagi v Bida (supra). On its part, the Court, upon making such a dismissal order, becomes functus officio, Orobator v. Amata [1981] 5 SC 276; Nwaora v Nwaukobu [1985] 2 SC 86, 167; Yonwuren v Modern Sign Ltd [1985] NWLR (pt. 2) 244, 245; Chukwuka v Ezulike [1986] 5 NWLR (pt. 45) 892.
Accordingly, it lacks the jurisdiction either under the Constitution; its constitutive Act [the Court of Appeal Act] or under its inherent jurisdiction to entertain such an appeal any longer, Chukwuka v Ezulike (supra); Ogbu v Urum[1981] 4 SC 1; Yonwuren v Modern Signs (Nig) Ltd [1985] 2 SC 86; [1985] 1 NWLR (pt 110) 4831. The net effect is that an appeal dismissed on the ground of the failure to file appellants’ brief of argument under the said Rule is final, Tsokwa v. U. T. C. (Nig.) Ltd (supra); Asalu and Ors v Dakan and Ors (supra).
As such, the Court cannot conjure any juridical powers under its inherent jurisdiction to set aside such an order of dismissal properly made in the valid exercise of its jurisdiction and re-enter the appeal, Olowu v. Abolore(supra); Babayagi v. Alhaji Bida (supra)…

I adopt my above reasoning and conclusion as my contribution in this judgment. It is for these, and the more elaborate, reasons in the leading judgment that I, too, shall enter an order dismissing this appeal foe being unmeritorious. Appeal dismissed.
EJEMBI EKO, J.S.C.: The honourable, AMIRU SANUSI, JSC, obliged me, in draft, the judgment just delivered in this appeal. It represents my views on the issues in the appeal. I will, however, add a few words in my concurrence.
The appellants, upon their admission that they owed the respondent the sum of N29,872,075.37, were ordered by the High Court of Lagos State to pay the said sum to the respondent bank, as the plaintiff. They exercised their right of appeal, guaranteed by the Constitution, and appealed the decision to the Court of Appeal. They filed their Notice of Appeal on the 19th November, 1999 against the decision.
The appellant’s invocation or exercise of their right of appeal triggered off two other rights their right to the fair hearing of their appeal and the right that the appeal would be heard within a reasonable time both of which are guaranteed by Section 36(1) of the Constitution. The former, that is the right to fair hearing, being a private right of sole benefit to the litigant can be waived by the litigant himself: ARIORI v. ELEMO (1983) LPELR 552 (SC). The right to speedy trial is rather complex, as it does not lie within the powers of the appellants to compromise. The Full Panel of this Court in ARIORI v. ELEMO (supra) had held that the right to speedy trial is a fundamental right existing for the benefit of both the litigants and the public. Apart from the right to ask for reasonable adjournments, the litigant does not enjoy the right to unduly delay proceedings and comprise the public right to speedy trial or determination of any cause before the Court. Thus as Eso, JSC stated in ARIORI v. ELEMO (supra): a speedy trial is valuable and it will be zealously guarded by the Courts with resolute courage so that in the protection of personal rights the administration of justice is not defeated. The Courts, as stated in the English case: VINOS v. MARKS & SPENCER (2001) 3 ALL E.R. 784, have no residual powers to excuse the dilatory litigant.

………………..F………………..

The main issue in this appeal is: whether the Court of Appeal (the lower Court) was right in dismissing the appeal of the appellants for obvious dilatory tactics? The appellants filed their appeal under the Court of Appeal Rules 1981. Order 6 Rule 10 of the said Court of Appeal Rules, 1981 (in pari materia with Order 18 Rule 10 (1) of the Court of Appeal Rules, 2011 and Order 19 Rule 10 (1) of the Court of Appeal, 2016) provided inter alia:
10 (1). Where an Appellant fails to file his brief within the time provided for in Rule 2 of this Order, or within the time as extended by the Court, the Respondent may apply to the Court for the appeal to be dismissed for want of prosecution.
Rule 2 of the said Order 6 enjoined the appellant to file in the lower Court “a written brief, being a succinct statement of his argument in the appeal” within “forty-five days of the receipt of the Record of Appeal from” the High Court. Order 6 Rule 10(1) of the said 1981 Rules of the lower Court provided sanction for the failure of the appellant to file his brief of argument within 45 days of his receipt of the Record of Appeal from the High Court.
There is no dispute that the appellants were in receipt of the Record of Appeal transmitted from the High Court of Lagos State and that they failed to file their brief of argument within the period of 45 days stipulated by Order 6 Rule 2. On 10th May, 2005 their appeal, pursuant to Order 6 Rule 10(1), was dismissed. They applied, on 16th December, 2005, to relist the appeal and for extension of time within which to file their brief of argument. The appellants, wallowing in indiligence and dilatory tactics, withdrew, on 18th August 2006, the motion they filed on 16th December, 2005 and it was struck out. Upon extension of time within which to appeal the order dismissing their appeal for want of diligent prosecution the appellants filed, on 13th December, 2007, the Notice of Appeal the subject of this appeal.
Order 6 Rule 1 of the 1981 Rules of the lower Court, no doubt, prescribed time-table for filing of appellant’s brief of argument. The appellants did not heed to this time-table provided by the Rules of the lower Court. The only anchor they fasten their argument on, for this appeal, is that the error or blunder of their counsel should not be visited on them. I ask: who engaged the said counsel for them? Is it enough for the appellants to blame the counsel of their own choice without going further to show the efforts they made, themselves, to follow up and ensure that their counsel dutifully carried out their instructions to appeal and file brief of argument in time?
From JESUS UNION KINGDOM v. OGISI (2010) 4 NWLR (pt. 1189) 91 at 102; AKINRIBOYA v. AKINSOLE (1998) 3 NWLR (pt. 540), 101 at 177; UNIVERSITY OF LAGOS v. AIGORO (1985) 11 SC 152; (1985) 1 NWLR (pt. 1) 143; AHMADU v. SALAWU (1974) 11 SC 43, I should think that a time has come for defaulting litigants, relying on error or blunders of their counsel, to be told, and I hereby tell the appellants herein, that it is not enough for them to rely on the error or blunder of the counsel of their own choice, when they are in default of statutorily prescribed time-table for taking steps in litigation; they must show what efforts they made themselves to follow up on the counsel in order that their counsel carried out their instructions within the time prescribed. The rules of the Court must, prima facie be obeyed and/or complied with: RATNAM v. CUMMARASAMY, (1964) 3 ALL E.R 933 at 935: (1965) 1 WLR 8; cited with approval in WILLIAMS v. HOPE RISING VOLUNTARY FUND SOCIETY (1982) 1 – 2 SC 145 at 152 – 153; J.I.C v. R.L. IMPORT & EXPORT (1988) 7 SCNJ 93 at 106.
The Court strictly construe Rules of Court prescribing time- table for taking steps in litigation. Order 3 Rule 15 (1) of the Court of Appeal Rules, 2002 prescribed 3 clear days before the hearing of an appeal within which the respondent shall give notice of his preliminary objection to the hearing of the appeal. In DORNIER AVIATION NIG. AIEP LTD v. CAPT. TUNDE OLUWADARE (2007) 7 NWLR (pt. 1033) 336 the Court of Appeal per K. M. O. Kekere-Ekun, JCA (as she then was) in construing the said Order 3 Rule 15(1), held; citing EMIR OF KANO v. AGUNDI(2006) 2 NWLR (pt. 965) 572 at 587 and OFORKIRE v. MADUIKE (2003) 5 NWLR (pt. 812) 166 at 178, that the provision is mandatory and failure to comply with it is fatal to the objection. I adopt herein also the statement I made in NESTOIL LTD & ANOR v. FIDELIS ONUOHA (2011) LPELR – 4590 (CA), that is –

Justice in the law Courts is governed by

………………..G………………..

and administered in accordance with Rules of procedure known to the counsel and their clients. It is trite that rules of Court are meant to be complied with by all, including the judge presiding in the Court. The purpose of the Rules of Court providing time table for conducting proceedings is for orderliness and certainty in the manner the proceedings will be, and are, conducted, it ensures quick dispensation of justice. Any person who fails to act within the proper time for doing things in the Court of law ought to suffer. See RATNAM v. CUMARASAMY – – Our Apex Court has held in a number of cases that strict compliance with the rules of Court makes administration of justice quicker. See SOLANKE v. SOMEFUN (1974) 1 ALL NLR 586 at 592 and F.B.N. v. ABRAHAM(2008) 36. 2 NSCQR 1058 at 1076.
The Rules prescribing time-table for doing things in the Court in course of litigation, like Order 6 Rule 2 for which sanction for default is provided in Order 6 Rule 10(1) of the 1981 Rules of the lower Court, are adjuncts of Section 36 (1) of the 1999 Constitution, as amended, that provides inter alia as a fundamental right, that “in the determination of his civil rights and obligations a person shall be entitled to fair hearing within a reasonable time by a Court. The appellant, not being the only person or party entitled to the valuable speedy trial cannot compromise that right, which in one breadth is his right and in another breadth the duty he owes to the respondent, the Court and the public. By correlation the appellant’s right to speedy trial is also the duty he owes to the respondent to ensure that his appeal is heard and determined within a reasonable time. That is the reason for the sagacity of the statement of Eso, JSC, that the valuable fundamental right shall be zealously guarded by the Courts with resolute courage so that the protection of personal right in administration of justice is not defeated.
The consequence that befalls the appellant who fails to file his brief of argument within the time prescribed by the rules of the appellate Court is an order dismissing the appeal for want of diligent prosecution. Such order dismissing the appeal for want of prosecution is final: OGBU v. URUM (1981) 4 SC 1 at 7-9.
The dilatory conduct of these appellants deserves their being damnified in huge costs to indemnify the respondent for the costs he had thrown away in defending the appeal. I have no basis, however, to exercise the discretion, which of course, I must exercise judicially and judiciously. It is sad that these appellants get away so lightly, considering the reprehensible manner of dilatory litigation.
Appeal dismissed.

Appearances

Daniel Akanimo-For Appellants

AND

V.O. Odjemu with him, Nathaniel Egbet and E.E. Maga.-For RespondentAPPEALDEBT RECOVERYJUDGMENT & ORDER

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