The applicants herein as appellants appealed against the decision of the Court of Appeal delivered on 18th February, 1993 to the Supreme Court after obtaining the leave of the former to do so. The leave of the Court of Appeal was obtained on the 10th March, 1993. The Notice of Appeal to the Supreme Court was filed on the 21st April, 1993. A copy of the record of proceedings was transmitted to the Supreme Court on 29lh December, 1993.

By Order 6 Rule 5(l)(a) of the Rules of the Supreme Court, 1985 (as amended) an appellant shall within ten weeks of the receipt of the Record of Appeal file in the Court and serve on the respondent his written brief of argument in the appeal. The appellants, who are now applicants, should therefore have filed their brief of argument on/or before the 14th March, 1994. This, the applicants failed to do. They also failed to apply for extension of time within which to file their said brief of argument. The position remained unchanged until the 8th March, 1995 when the Supreme Court suo motu dismissed their appeal in chambers for want of prosecution under the provisions of Order 6 rule 3(2) of the Rules of the Supreme Court.

On 6th November, 1995 the applicants brought their present application seeking the following orders: -

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• 1
  to set aside its order of the 8th day of March, 1995, made in Chambers dismissing the applicants' appeal and to restore the appeal in Court's Cause List.
• 2
  On the appeal restored to enlarge the time prescribed by rules of court for filing the appellant’s brief subject to payment of the penalty for late filing."

upon the following grounds:

• 1
  The dismissal of the appellants' appeal without any notification to them that the said order was going to be made was in infringement of their fundamental right to fair hearing and contrary to the principles for the administration of justice which rendered the dismissal null and void.
• 2
  The said dismissal of the appellants' appeal in Chambers which thereby confirmed the judgment of the court below in favour of the respondents offended the fundamental principle of justice, namely, awarding to a party in litigation that which he did not ask for, which rendered the same null and void and liable to be set aside by this Court which made it
• 3
  Order 6 rule 3(2) under which the order of dismissal was made is inconsistent with S. 33 of the Constitution and is to that extent null and void.
• 4
  Order 6 rule 3(2) is inconsistent with Order 6 rule 9 as amended in 1991, and is by virtue of the said amendment impliedly repealed to the extent of the inconsistency.
• 5
  The said Order 6 rule 3(2) coming immediately after the rule dealing with application for leave to appeal or extension of time to appeal or to ask for leave to appeal and before the rule dealing with preparation and filing of briefs of argument in appeals is inappropriate for failure to file brief within the prescribed period.
• 6
  The rules of this Court as amended in 1991 having prescribed a penalty in Order 6 Rule 7 for late filing of briefs the said Order 6 rule 3(2) which preceded the rule providing for the said penalty cannot override the later rule as the law-maker could not have intended to provide double sanctions for the same default."

In the affidavit sworn to by the applicants' counsel in support of the application, it was stated, inter alia, that the applicants' counsel was lulled to a false sense of security based on the Rules of the Supreme Court for penalty for late filing of briefs; that the applicants never received any notification of the impending dismissal of the appeal by the Supreme Court and that the late filing of the brief was also due to the misfortune of the applicants' counsel who lost his wife in the process of preparing the brief. The applicants' also filed their brief, paid the penalty for late filing and attached a copy of the brief to their application.