CASE IDENTIFICATION
EDITORIAL SUMMARY
Editorial — not part of the judgment as delivered
Facts of the Case
This is a ruling on two applications brought before the Supreme Court in an appeal from a decision of the Court of Appeal.
The first application was filed by the respondent/applicant on 13 February 1990, seeking to dismiss the appeal for want of prosecution. The application was premised on the grounds that the appeal was one affecting the revenue of the Government of Anambra State, to which Order 7 Rules 6 and 7 of the Supreme Court Rules, 1985 applied, and that the appellant had failed to comply with the mandatory provision of Order 7 Rule 7 by not preparing and lodging the requisite number of records of appeal within 14 days of filing the notice of appeal.
The second application was filed by the appellant/respondent on 14 March 1990, seeking to strike out the respondent’s application and, in the alternative, for an extension of time within which to prepare the records of appeal.
The Court considered both applications and delivered a consolidated ruling.
Issues for Determination
ISSUE 1: Whether the respondent’s application to dismiss the appeal for want of prosecution was competent, having been filed before the expiration of the time prescribed for the appellant to file the record of appeal.
ISSUE 2: Whether the appellant was entitled to an extension of time within which to prepare and file the record of appeal.
Decision / Holding
The Supreme Court held that the respondent’s application to dismiss the appeal for want of prosecution was misconceived and incompetent because it was filed prematurely, before the time allowed for the appellant to file the record of appeal had expired. The application was accordingly struck out. The Court granted the appellant’s application for extension of time to file the record of appeal, enlarging the time by 14 days from the date of the ruling.
Ratio Decidendi / Principles
APPELLATE PRACTICE — Dismissal for Want of Prosecution — Nature and Effect “The dismissal of an appeal for want of prosecution presupposes that there is a duty which is mandatory for the appellant to perform in order to bring his appeal to the stage of being heard, such as filing a brief of argument or payment of fees, and the appellant has failed, omitted or neglected to perform the obligation.” Per Uwais, JSC, in Govt of Anambra State v. Oji (1990) NLC-341989(SC) at p. 6; Paras A–C.
APPELLATE PRACTICE — Merits of Grounds of Appeal — When Considered “The question whether a ground of appeal has merit or not can only be considered at the stage of judgment by the court after hearing arguments advanced by all the parties in the appeal. It is not therefore a point that can be raised by way of preliminary objection or in an application to dismiss an appeal for want of prosecution.” Per Uwais, JSC, in Govt of Anambra State v. Oji (1990) NLC-341989(SC) at pp. 5–6; Paras E–A.
APPELLATE PRACTICE — Premature Application to Dismiss Appeal for Want of Prosecution “At the time the application to dismiss the appeal for want of prosecution was filed, the appellant still had 7 days within which to take steps to effectively prosecute its appeal. So the application to dismiss for want of prosecution was misconceived and must be struck out.” Per Agbaje, JSC, in Govt of Anambra State v. Oji (1990) NLC-341989(SC) at p. 9; Paras C–E.
Obiter Dicta
The Court observed that the application to dismiss the appeal was premature because the notice of appeal was filed on 6 February 1990, not on 18 January 1990 as alleged by the respondent. The endorsement on the notice of appeal clearly showed the filing date. Consequently, the time for filing the record of appeal would expire on 20 February 1990, and the respondent’s application filed on 13 February 1990 was filed seven days before the deadline.
The Court also noted that the application for extension of time by the appellant was itself premature when filed, but by the date of hearing, no record of appeal had been filed, and the application was granted to avoid unnecessary delay in bringing the appeal to fruition.
Orders of Court
- The respondent/applicant’s application to dismiss the appeal for want of prosecution was struck out as misconceived and incompetent.
- The appellant/respondent’s application for extension of time to file the record of appeal was granted.
- Time was enlarged by 14 days from the date of the ruling (7 September 1990) for the appellant to prepare and file the record of appeal.
- No order was made as to costs; each party was to bear its own costs.
APPEARANCES
Counsel for the Appellant(s)
Senator N.N. Anah, S.A.N.
Counsel for the Respondent(s)
Not stated in the judgment (referred to as "learned Counsel for the respondent")
Amicus Curiae
None
JUDGMENTS / OPINIONS OF THE COURT
Authoritative judicial text as delivered
Lead / Majority Opinion
— (DELIVERED BY MUHAMMADU LAWAL UWAIS, J.S.C. (DELIVERING THE LEAD RULING): )
There are two
applications before us in this appeal. The first is
brought by the respondent/applicant while the
second was filed by
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the appellant/respondent. The first application,
which was filed on the 13th day of February, 1990,
is for the appeal to be dismissed for want of
prosecution on the grounds-
“1. That the appellant’s said appeal is an appeal to
which Rules 6 and 7 of Order 7, Supreme Court
Rules 1985, apply being an appeal against a
decision of the Court of Appeal affecting the
revenue of the Government of Anambra State.
- That the appellant has failed to comply with the
mandatory provisions of Order 7 Rule 7 of the said
Rules, having not prepared and lodged with the
Registrar of this Court, for the use of the
Honourable Justices, the requisite number of
records of appeal, within 14 days of filing of the
notice of appeal.
- That the appellant’s grounds of appeal even if
allowed, will not adversely affect the decision of the
Court of Appeal appealed against.”
Paragraph 7 of the affidavit in support of the Motion
reads as follows-
“7. That being dissatisfied with Exhibit ‘C’ the
appellant by its Counsel, Senator N.N. Anah, S.A.N.,
filed a notice of appeal at the Court of Appeal
Registry, Enugu on the 18th day of January, 1990.
A certified copy of the appellant’s said notice of
appeal is attached hereto and marked Exhibit ‘D’ “.
Copy of the appellant’s notice of appeal is exhibited
in the affidavit and marked Exhibit D. It is the
respondent/applicant’s case that the appeal comes
under the ambit of Order 7 Rules 1(2),6 and 7 of
the Supreme Court Rules, 1985. Order 7 Rule 1(2)
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(d) (v) thereof provides that the provisions ofRules
6 and 7 of the order will apply to decisions of the
Court of Appeal in respect of decisions made by the
Court of Appeal in cases “affecting the revenue of
the government of the federation or of a state,”. By
Order 7 Rule 6 of the Supreme Court Rules, 1985–
“It shall not be necessary for the registrar of the
Court of Appeal to prepare a record in respect of an
appeal of the type mentioned in subrule (2) of Rule
1 of this order unless the court otherwise directs.
Accordingly, the record for the purpose of such
appeals shall be prepared in the manner set forth
inRule 7 of this Order.”
Now, Order 7 Rule 7 (1) of the Supreme Court
Rules, 1985 provides as follows –
“7. (1) The appellant shall, in appeals to which this
rule applies either simultaneously with filing his
notice of appeal or within 14 days thereafter,
prepare for the use of the Judges a record
comprising –
(a) the index;
(b) office copies of documents and proceedings
which the appellant considers relevant to the
appeal;
(c) office copy of the order for leave to appeal (if
any); and
(d) a copy of the notice of appeal.”
By the deposition in paragraph 7 of the affidavit in
support of the respondent/applicant’s Motion and
the oral argument of learnedCounsel for the party,
the application is premised on the fact that the
appellant/respondent filed its notice of appeal on
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the 18th day of January. 1990. If this were correct,
then the appellant/respondent was obliged to file
the record of appeal within 14 days thereafter, that
is on or before the 2nd day of February, 1990. The
question that arises is: did the
appellant/respondent file the notice of appeal on
the 18th day of January, 1990 as submitted by
learnedCounsel for the respondent/applicant? It is
necessary to examine the notice of appeal filed by
the appellant/respondent, (Exhibit D) in order to be
able to answer the question. The notice of appeal
which was prepared by Senator N.N. Anah, S.A.N.,
learnedCounsel for the appellant/respondent, is
dated the 17th day of January, 1990 on its last
page – page 3. The endorsement at the bottom of
page 3 bears the stamp of the Court of Appeal
which clearly shows that the notice of appeal was
filed on the 6th day of February, 1990, on payment
of N1.50 for which a temporary cash receipt was
issued. This, therefore, belies the deposition in
paragraph 7 of the affidavit in support of the
application to dismiss the appeal for want of
prosecution and faults the premise on which the
application was brought. Furthermore, the
application to dismiss the appeal together with the
affidavit in support were filed in the registry of the
Court of Appeal, Enugu, on the 13th day of
February, 1990, that is within a week of the notice
of appeal being filed. In effect the motion to dismiss
the appeal for want of prosecution was prematurely
filed because by the date of filing the application,
the appellant/respondent had seven more days,
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that is until the 20th day of February, 1990, before
the time to file the record of appeal would expire.
The third ground for bringing the application
which is that the grounds of appeal filed by the
appellant/respondent “will not adversely affect the
decision of the Court of Appeal” was not canvassed
by learned Counsel for the respondent/applicant. It
is for that reason considered as abandoned.
However, even if it was not abandoned, the
question whether a ground of appeal has merit or
not can only be considered at the stage of
judgment by the court after hearing arguments
advanced by all the parties in the appeal. It is not
therefore a point that can be raised by way of
preliminary objection or in an application to dismiss
an appeal for want of prosecution, as done by the
respondent/applicant.
The dismissal of an appeal
for want of prosecution presupposes that there is a
duty which is mandatory for the appellant to
perform in order to bring his appeal to the stage of
being heard, such as filing a brief of argument or
payment of fees, and the appellant has failed,
omitted or neglected to perform the obligation. The
third ground for bringing this application is clearly
untenable.
It follows, therefore, that for the foregoing
reasons, the application by the
respondent/applicant is misconceived and is
consequently incompetent. In my opinion it should
be refused. Accordingly, the application is hereby
struck out.
The second application which was filed by the
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appellant/respondent on the 14th day of March,
1990 prays as follows-
“1. To strike out the Motion filed by the
respondent/applicant in the above appeal dated
13th February, 1990 on the following grounds:-
(i) The Motion is misconceived
(ii) The decision of the court below did not affect
the revenue of Anambra State but the fundamental
right of the plaintiff/respondent to a fair hearing
and the applicable rules therefore are not Rules 6
and 7 of Order 7 of the Supreme Court Rules 1985
but Order 7 Rules 1-4 of the same rules.
- To grant the appellant/applicant an extension of
time within which to prepare the records of appeal
and forward the same to the court in the most
unlikely event of the above objection not being
sustained by the court.
- Any such further order and/or orders as it may
seem proper to the court to make in the interest of
justice.
- To consolidate the two Motions namely the
appellant’s/respondent’s Motion dated the 13th
February, 1990 and this Motion for hearing and
determination.
- For leave to make reference to Exhibits B, C and
D annexed to the affidavit accompanying the said
motion dated 13th February, 1990 and
- For any such further order and/or other orders
as it may seem fit and proper for the court to make
in the interest of justice.”
Senator Anah, learned Senior Advocate, moved the
motion for the appellant and placed emphasis on
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prayer No.2 which asks for extension of time within
which to prepare the record of appeal. Learned
counsel for the respondent did not oppose the
prayer. It is to be observed that prayer no.1 has
been overtaken by events following our refusal to
grant the respondent’s application. Similarly,
prayerNo.4 has also been superseded. At the date
the appellant’s application was filed, (that is the
14th day of March, 1990) the appellant was not
late in filing the record of appeal, for the time to do
so was to expire on the 20th day of March,
1990.The application, like that made by the
respondent/applicant, is premature. However, as at
the date of hearing the application, namely the
18th day of June, 1990, no record of appeal had
been filed. I am of the opinion that the application
for extension of time to file the record should be
granted in order to avoid unnecessary delay in
bringing the appeal to fruition. Accordingly, the
application for enlargement of time for the
appellant to file the record of appeal is hereby
granted. Time is enlarged by 14 days from today.
There is no order as to costs as each party is to
bear its costs.”
Concurring Opinion(s)
— SAIDU KAWU, J.S.C.:
I have had the advantage
of reading in draft the ruling of my learned brother,
Uwais, J.S.C. which has just been delivered. I
entirely agree with the ruling and for the reasons
given in the said ruling, I too will refuse the
respondent/applicant’s application to dismiss the
appeal for want of prosecution. I will grant the
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appellant’s application for enlargement of time
within which to file the record of appeal, and
accordingly time is extended by 14 days from
today. I make no order as to costs.
— SALIHU MODIBBO ALFA BELGORE, J.S.C.:
This appeal is certainly a quasi-
academic exercise even though based on strong
point of law. The timeous application by respondent
for enlargement has cured the blemish of
technicality delaying justice. I agree with the
conclusion of my learned brother, Uwais, J.S.C.
and will also grant the application for extension of
time. I also make no order as to costs.
— ABDUL GANIYU OLATUNJI AGBAJE, J.S.C.:
I have had the opportunity of
reading in draft the lead ruling just delivered by my
learned brother, Uwais, J.S.C. I agree with him and
the reasons he gave that the application to dismiss
the appellant’s appeal for want of prosecution was
misconceived at the time it was filed. This is so
because at the time the application to dismiss the
appeal for want of prosecution was filed, the
appellant still had 7 days within which to take steps
to effectively prosecute its appeal. So the
application to dismiss for want of prosecution was
misconceived and must be struck out.
I agree too with my learned brother, Uwais,
J.S.C. that the application now brought by the
appellant for an extension of time within which to
prosecute its appeal has merit and should be
granted. I also abide by all the consequential orders
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in the lead ruling of my learned brother, Uwais,J.S.C.
— EPHRAIM OMOROSE IBUKUN AKPATA, J.S.C.:
I am in full agreement with the
decisions reached by my learned brother, Uwais, J
.S.C., in respect of the two applications. As the
application of the respondent was premature and
therefore not competent, it is needless resolving
the question whether or not the decision of the
Court of Appeal was a decision affecting the
revenue of the government of Anambra State. In
effect, whether or not Order 7 of the Supreme
Court Rules 1985 applies to the appellant’s appeal
does not call for a decision.
There is however, the application of the appellant
for extension of time within which to prepare
records of appeal pursuant to Order 7 of the
Supreme Court Rules 1985. The application is made
subject to “in the most unlikely event of the above
objection (to the respondent’s application) not
being sustained.” In essence, therefore, since the
application of the respondent has been rejected,
although not on the ground of the objection raised
by the appellant, there is no valid contention that
Order 7 applies to the appeal and that the appellant
should have prepared and lodged with the registrar
of this court the record of appeal within 14 days of
filing of the notice of appeal.
My order therefore is that the appellant is at
liberty to prepare and lodge with the registrar of
this court the requisite number of records of appeal
within 14 days from today, purely on the
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assumption that the appeal is governed by Order 7
Rules 6 and 7 of the Supreme Court Rules 1985. In
effect the appellant will be doing so ex cautella
abundanti. The application of the respondent is
struck out. I also make no order as to costs.
Respondent’s application dismissed.
Appellant’s application granted in part.
Dissenting Opinion(s)
None
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