Appeal’s Dismissal for Failure to File Appellant’s Brief Can be Revisited 

In the Supreme Court of Nigeria

Holden at Abuja

On Friday, the 27th day of January, 2023

Before Their Lordships

John Inyang Okoro

Amina Adamu Augie

Adamu Jauro

Tijjani Abubakar

Emmanuel Akomaye Agim

SC.86/2017

Between

REFUGE HOME SAVINGS & LOANS LIMITED                       APPELLANT

And

ALHAJI UMARU GARKUWA & 12 ORS                   RESPONDENTS

(Lead Judgement delivered by Honourable Adamu Jauro, JSC)

Facts

The 1st – 10th Respondent instituted an action before the High Court of the FCT-Abuja, seeking inter alia, a declaration that the demolition of their shops was unlawful. They also sought compensation for the demolition, as well as loss of earnings. The trial court granted the reliefs in part. Dissatisfied with the refusal of the other reliefs, the 1st – 10th Respondent filed a Notice of Appeal at the Court of Appeal on 5th March, 2010. The record of appeal was however, compiled and transmitted outside the prescribed time. The 1st – 10th Respondent filed an application to regularise the late transmission of the record on 16th November, 2011. Subsequently, they filed their Appellants’ brief of argument on 29th August, 2012, together with a motion for leave to amend their Notice of Appeal. Thereafter, they filed another motion dated 28th June, 2013 for leave to amend their notice of appeal. Both applications to amend their Notice of Appeal were subsequently withdrawn. They later filed a fresh motion for leave to amend their Notice of Appeal on 11th April, 2014. 

Whilst the 1st – 10th Respondent’s applications were still pending before the Court of Appeal, the Appellant filed an application on 3rd December, 2014 seeking the dismissal of the appeal for want of diligent prosecution. The Court of Appeal granted the application and dismissed the appeal, pursuant to Order 8 Rule 18 & Order 18 Rule 10 of the Court of Appeal Rules 2011, to the effect that where an Appellant fails to compile and transmit the records after the failure of the Registrar to do the same, or where an Appellant fails to file his brief within time, the Respondent may apply for the appeal to be dismissed for want of diligent prosecution. Subsequently, the 1st – 10th Respondent filed an application seeking inter alia, an order setting aside the ruling dismissing their appeal; an order to regularise the late transmission of the record of appeal; leave to amend their Notice of Appeal; an order deeming the amended Notice of Appeal filed with the motion as having been properly filed and served, and an order deeming the Appellant’s brief of argument dated 29th August, 2012 as having been properly filed and served. The application though opposed by the Appellant, was granted by the Court of Appeal. Consequently, the Court of Appeal restored the 1st – 10th Respondent’s appeal to its cause list. 

The Appellant was dissatisfied with the decision; hence, it filed an appeal before the Supreme Court. 

Issue for Determination 

The Supreme Court considered the following sole issue submitted by the Appellant, in its determination of the appeal:

Whether the Court of Appeal has the jurisdiction to grant the application of the 1st – 10th Respondent, relisting their appeal which had been dismissed pursuant to Order 8 Rule 18 and Order 18 Rule 19 of the Court of Appeal Rules, 2011.                                                                                                                                  

Arguments

Counsel for the Appellant argued that once a dismissal of an appeal is ordered pursuant to Order 18 Rule 10 of the Court of Appeal Rules 2011, the appeal so dismissed cannot be relisted; and so long as the court below relied on the said provision in dismissing the 1st – 10th Respondent’s appeal, the dismissal was irreversible by the same court. He submitted that the Court of Appeal’s reversal of its order of dismissal of the appeal and its relisting of the appeal amounted to the Court of Appeal sitting on appeal over its own decision. He submitted that the Court of Appeal had become functus officio at the point of the dismissal, and it is only the Supreme Court that could have validly exercised jurisdiction over a complaint against the Court of Appeal’s decision dismissing the appeal. He placed reliance on A. D. H. LTD v AMALGAMATED TRUSTEES LTD (2007) ALL FWLR (PT. 392) 1781. 

In response to the Appellant’s submissions, counsel for the 1st – 10th Respondent submitted that the Court of Appeal rightly set aside its initial order dismissing the 1st – 10th Respondent’s appeal, when it became clear to it that the order was made without jurisdiction. He argued that the Appellant’s application seeking the dismissal of the appeal was wrongly granted, as an appeal cannot be dismissed for failure to file brief, when the record of appeal had not been transmitted and the appeal has not been entered. He submitted that while a court is not permitted to sit on appeal over its decisions, a court is not completely powerless to review and ex debitio justiciae set aside its null orders, and that it was for this reason that upon the application of the 1st -10th Respondent, the court below immediately appreciated that its order dismissing the appeal was incongruous and was made without jurisdiction, and held that good and substantial reasons had been disclosed to warrant the setting aside of the same. He cited the case of OKAFOR v ATTORNEY-GENERAL AND COMMISSIONER OF JUSTICE (1991) 6 NWLR (PT. 200) 659. 

The 11th and 12th Respondent did not file any brief of argument, although they were served with all the processes in the appeal.

Court’s Judgement and Rationale

In determining the appeal, the Court reproduced Order 8 Rule 18 of the Court of Appeal Rules, 2011 which deals with dismissal of an appeal for failure to compile and transmit the record of appeal and Order 18 Rule 10 of the Court of Appeal Rules, which makes provision for dismissal of an appeal for failure to file Appellant’s brief within the period prescribed by the Rules. The Court held that as a follow up to Order 8 Rule 18, Order 8 Rule 20 provides that where an appeal is dismissed for failure to compile and transmit record of appeal, the Court of Appeal has the discretion to restore and relist the appeal upon application by the Appellant, upon terms as the court may deem fit. Conversely, there is no such provision in relation to an appeal dismissed for failure to file Appellant’s brief pursuant to Order 18 Rule 10 of the Court of Appeal Rules 2011. Such dismissal is a dismissal on the merit, it is final, and the lower court is rendered functus officio in that it cannot restore the appeal, except under exceptional circumstances, such as where the order is a nullity, or made where there was a pending application for extension of time to file Appellant’s brief. 

The Apex Court further held that the power for the dismissal of an appeal on the ground of failure to file Appellant’s brief, can only arise where the appeal has been entered. It is after the entry of the appeal, that time begins to run for filing the Appellant’s brief. The necessary implication of this is that, it is only when the record of appeal has been regularised and the Appellant has failed to file his brief within the 45 days prescribed under the Court of Appeal Rules, that the Respondent can then apply for the dismissal of the appeal for failure to file Appellant’s brief under Order 18 Rule 10(1) of the 2011 Rules. The Court found that in the instant case, at the time of the dismissal of the appeal for the purported failure to file the Appellants’ brief, the 1st – 10th Respondent as Appellants had a pending application to regularise the late compilation and transmission of their record of appeal. The application was yet to be heard, by the lower court. In essence, as at the time the court made the order of dismissal of the appeal, the record was not yet regularised and the appeal had not yet been entered. There was therefore, no basis for the lower court to dismiss the 1st -10th Respondents’s appeal for failure to file Appellants’ brief pursuant to Order 18 Rule 10 of the Court of Appeal Rules 2011, as the court was not yet imbued with the requisite jurisdiction to do so by reason of non-entry of the appeal. In other words, the order dismissing the appeal was a nullity.

The Court held that although a court generally lacks the power to revisit its order and after rendering its ruling, order or judgement, the court becomes functus officio and such an order can only be set aside on appeal. However, in certain instances, a court has the jurisdiction to set aside its own decision ex debitio justiciae. This power or jurisdiction may be exercised, where for instance, the judgement, ruling or order sought to be set aside is null and void ab initio, or there was a fundamental defect in the proceedings which vitiates and renders the same incompetent and invalid. The Court referred to UWEMEDIMO v MOBIL PRODUCING  (NIG.) UNLTD (2019) 12 NWLR (PT. 1685) 1. 

The Supreme Court held that the Court of Appeal was right to set aside its order of 12/2/2015 dismissing the appeal and to restore the appeal pursuant to Order 8 Rule 20 of the Court of Appeal Rules 2011, upon realising that it made the said order without jurisdiction, as its power to dismiss the Appeal for failure to file Appellant’s brief was yet to arise at the time it made the order. 

Appeal Dismissed. 

Representation

Sylvester Okojie with Chris Ebare, for the Appellant.

Dr George Ogunyomi with Mr Ifeanyi Ndumnego and Miss Nguerese Tine Tur for the 1st – 10th Respondent.

F. S. Jimoh for the 11th and 12th Respondent. 

Reported by Optimum Publishers Limited, Publishers of the Nigerian Monthly Law Report (NMLR)(An affiliate of Babalakin & Co.)