LEGAL IDEAS FORUM

S.P.D.C.N. LTD. V. AGBARA: On whether appeal dismissed for failure of appellant to file appellant’s brief can be revived. An insight into the decision of the Supreme Court therein.

Citation: (2021) 7 NWLR PT. 1775 AT 356.

PARTIES IN FULL:
THE SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LTD.
SHELL INTERNATIONAL PETROLEUM CO. LTD.
SHELL INTERNATIONAL EXPLORATION AND PRODUCTION BV
V.
CHIEF ISAAC OSARO AGBARA
CHIEF VICTOR OBARI
CHIEF HUMHREY OGIRI
CHIEF F.N OGUSO
CHIEF JOHN OGUSO
CHIEF JOSEPH OGUSO
CHIEF G.O. NNAH
CHIEF GEORGE O. OSARO
CHIEF ADANTA OBELE
MRS. LALEOKA EJI
(for themselves and on behalf of the ancient “Onne Eh Ejama” Stool in Council, Chiefs, Elders, Men, Women and Children of Ejama_Ebuku in Tai Eleme local Government Area of Rivers State)

Courtesy: Moruff O. Balogun Esq.

Summary of fact:
The applicants appealed to the Court of Appeal against the judgment of the Federal High Court in suit No. FHC/PHC/231/2001. The Court of Appeal, relying on Order 19 Rules 2 and 10(1) of the Court of Appeal Rules 2016, held that a combined reading of the provisions of the Rules and its consequences made it compelling to dismiss the applicants appeal for their failure to file a competent brief of argument. Consequently, the Court of Appeal dismissed the appeal.

Dissatisfied, the applicants appealed to the Supreme Court in appeal No. SC. 73 1/2017. The applicants also filed an application at the Supreme Court to, inter alia, regularise their appeal filed out of time and to raise fresh issues. On 11th January 2019, the Supreme Court in its ruling dismissed the application. It also held that the dismissal by the Court of Appeal of the applicants’ appeal for failure to file their brief of argument was in order and that in effect the notice of appeal the applicants filed at the Supreme Court was incompetent. Therefore, the Supreme Court dismissed the appeal.

On 24th July 2019, the applicants filed an application at the Supreme Court seeking, inter alia, an order to set aside the ruling Of the Supreme Court or, in the alternative, an order to set aside the order dismissing the applicants’ appeal in the ruling. The application was supported by a twenty-five paragraphs affidavit and forty exhibits. A further affidavit was also filed with ten exhibits.

The respondents filed a preliminary objection at the Supreme Court seeking an order dismissing the application in limine. The grounds for the preliminary objection included that the appeal was commenced by notice and grounds of appeal against the judgment of the Court of Appeal which dismissed the applicants’ appeal for failure to file appellant’s primary brief of argument.

In determining the application, the Supreme Court considered the provisions of Order 19 Rules 2 and 10 of the Court of Appeal Rules 2016 and Order 8 Rule 16 of the Supreme Court Rules which respectively state as follows:

Order 19 rules 2 and 10 of the Court of Appeal Rules 2016:
2. The appellant shall within forty-five days of the receipt of the record of appeal from the court below file in the court a written brief, being a succinct statement of his argument in the appeal.

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. If the respondent fails to file his brief, he will not be heard in oral argument. Where an appellant fails to file a reply brief within the time specified in Rule 5, he shall be deemed to have conceded all the new points or issues arising from the respondent’s brief.

(2) 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 court may suo motu dismiss the appeal for want of prosecution.”

Order 8 Rule 16 of the Supreme Court Rules:
16.
The court shall not review any judgment once given and delivered by it save to correct any clerical mistakes or some errors arising from any accidental slip or omission, or to vary the judgment or order so as to give effect to its meaning or intention. A judgment or order shall not be varied when it correctly represents what the court decided nor shall the operative and substantive part of it be varied and a different form substituted.”
Held: Unanimously dismissing the appeal:

The following issues were raised and determined by the Supreme Court.

On whether appeal dismissed for failure of appellant to file appellant’s brief can be revived:

The dismissal of an appeal by the Court of Appeal for failure to file appellant’s brief of argument is final and such appeal cannot be revived by the Court of Appeal. It amounts to a dismissal on the merits. In other words, where an appeal is dismissed for failure to file the appellant’s brief, it is a dismissal on the merit. The court, upon making such a dismissal order; becomes functus officio. Accordingly, it lacks the jurisdiction either under the Constitution, the Court of Appeal Act or under its inherent jurisdiction to entertain such an appeal.

The net effect is that an appeal dismissed on the ground of the failure to file appellant’s brief of argument under Order 19 Rule 10 of the Court of Appeal Rules 2016, is final. The court therefore, 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.

In the instant case, when the Court of Appeal held that it would dismiss the applicants’ appeal for their failure to file a competent brief of argument to support or proffer arguments in it and proceeded to dismiss the appeal, the dismissal of the appeal on the ground of the failure to file their brief of argument under Order 19 rule 10(1) of the Court of Appeal Rules 2016, was a final decision of the court. Neither the Court of Appeal nor the Supreme Court had the jurisdiction either under the Constitution, their constitutive Acts – the Court of Appeal Act and Supreme Court Act, or under their inherent jurisdiction, to entertain such a matter or appeal any longer.

Consequently, the applicants’ notice of appeal in SC. 731/2017 was incompetent and their appeal at the Supreme Court was, accordingly, dismissed. It was an abuse of court process for the applicants by their instant application to seek to revive the dismissed appeal.

On effect of dismissal of appeal for failure of appellant to file brief of argument:

The dismissal of an appeal where an appellant fails to file his brief of argument within the time prescribed or as extended by the court 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 because such dismissal on the ground of the failure to file an appellant’s brief of argument is final and thus the appeal cannot be revived.

On aim of and duties imposed by Order 19 Rule 10 of Court of Appeal Rules 2016:

The provision of Order 19 Rule 10 of the Court of Appeal Rules 2016, formerly Order 6 Rule 10 of the Court of Appeal Rules 1981, is designed for the enhancement of case management, and imposes a tri-partite obligation:
(a) 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;
(b) The respondents, have the corresponding obligation of ensuring that indolent appellants pursue their appeals expeditiously, by gingering the court into exercising its power of purging its docket of stale appeals by their dismissal for
want of diligent prosecution. This is against the background of decongesting the Court of Appeal of cases;
(c) The court is empowered to dismiss such dead appeals under the provision to bring relief to and decongest its cause list.

On time limit for filing of appellant’s brief:
By virtue of Order 19 Rules 2 and 10(1) of the Court of Appeal Rules 2016, the appellant shall within forty-five days of the receipt of the record of appeal from the lower court, file in the court a written brief, being a succinct statement of his argument in the appeal. Where an appellant fails to file his brief within the time provided for in Rule 2 of the 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.

On whether court can suo motu dismiss appeal where appellant fails to file brief of argument:

By Order 19 Rule 10(2) of the Court of Appeal Rules 2016, where the appellant fails to file his brief within time, the court may suo motu dismiss the appeal for
want of prosecution.

On discretion of court where appellant fails to file brief of argument within time and to apply for extension of time to file:

Where an appellant fails to file his brief within the time allowed by the rules of court and fails to apply for extension of time to file his brief, the court has no discretion but to dismiss the appeal. Such a dismissal is a dismissal on the merit. In other words, once an appellant fails to file his brief within forty-five days of receipt of the record from the trial court, as provided for in Order 19 Rule 2 of the Court of Appeal Rules 2016, formerly Order 6 Rule 2 of the Court of Appeal Rules, 1981 (as amended) or within such time as may be extended by the court, Order 19 Rule 10(1), which is in pari materia with Order 6 Rule 10(1) of the Court of Appeal Rules, 1981 (as amended), provides that upon the application of the respondent, the appeal will be dismissed. Where Order 6 Rule 10(1) is invoked, the court has no discretion in the matter.

In the instant case, the Supreme Court in its ruling of 11th January 2019 held that the Court of Appeal was right to have dismissed the applicants’ appeal for their failure to file their brief. The Supreme Court refused to entertain the attempt by the applicants’ motion of 24th July 2019 to revive the dismissed appeal.

On power of the Supreme Court to review its decision:

By virtue of Order 8 Rule 16 of the Supreme Court Rules, the court shall not review any judgment once given and delivered by it save to correct any clerical mistakes or some error arising from any accidentał slip or omission, or to vary the judgment or order so as to give effect to its meaning or intention. A judgment or order shall not be varied when it correctly represents what the court decided nor shall the operative and substantive part of it be varied and a different form substituted. The Supreme Court becomes functus officio on matters already decided by it. Such matters can only be reviewed under Order 8 Rule 16 of the Supreme Court Rules.

On limit of power of the Supreme Court to review its previous decision:

The power of the Supreme Court to review its previous decision is provided in Order 8 Rule 16 of the Supreme Court Rules. The power is limited to clerical mistakes, accidental slips or omissions. The rule also provides that a judgment or order shall not be varied when it correctly represents what the court decided nor shall the operative part of it be varied and a different form substituted. The court cannot under the guise of inherent powers alter or add to a clear and unambiguous judgment once given. The law does not permit the Supreme Court to have a double say in the same matter. It either allows or dismisses an appeal and not both on the same issue. The inherent powers under section 6(6) of the
Constitution
cannot be invoked to reverse a decision already given by the Supreme Court.

In the instant Case, a critical examination of the grounds for the application revealed that the applicants were, in the main, seeking a review of a final decision of the Supreme Court given on the merits.

Counsel:
Chief Wole Olanipekun, SAN; Prince L. Fagbemi, SAN; Chief Kanu G. Agabi, SAN; Dr. O. Babalakin, SAN (with them, Shola Bojuwoye,Esq.)- for Appellants/ Respondents.

L. E. Nwosu, SAN; R. A. Lawal-Rabana, SAN; K. C. O. Njemanze, SAN; A. O. Okeaya-Inneh, SAN (with them, P. Abulime, Esq.)- for Respondents/Applicants.

Courtesy:
Moruff O. Balogun Esq.
Ijebu Ode, Ogun State.
08052871414

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