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CaseLaw

Obiora V. Osele (1989) CLR 1(f) (SC)

Judgement delivered on January 27th 1989

Brief

  • Appeals
  • Brief writing
  • Defective brief
  • Want of prosecution
  • Ord. 6 Rule 10 Court of appeal rules 1981
  • Court of Appeal (Amendment) Rules 1984

Facts

The appellant was plaintiff in suit No. PHC350/81, he instituted against the respondent as defendant at the High Court of Rivers State in the Port Harcourt Judi¬cial Division claiming:

  • 1
    N20.160.00 as money had and received by the defendant on behalf of the plaintiff for 7 years at N2880.00 per annum -
    • a
      Amount of N5000.00 rent received from the Abandoned Property Implementation Committee as agent of plaintiff;
  • 2
    Mesne profit at the rate of N240.00 per month starting from January, 1982 until the defendant gives up possession of the said plot to the plaintiff;
  • 3
    Order that the defendant effect formal assignment of plot No. 100 Egede Street, Mile 2 Diobu, Port Harcourt to the plaintiff;
  • 4
    Perpetual injunction restraining the defendant from further collecting rents from the said building.

Pleadings were, on the order of the Court, filed and served and the issues joined came up for hearing before Pepple, J. Five witnesses testified for the plaintiff/appel¬lant and 2 witnesses testified for the defence. Counsel then addressed the learned trial Judge before the learned trial judge adjourned to consider the judgment. On the adjourned date, ten days later, i.e. on the 12th day of November, 1982, the learned trial judge delivered a considered judgment in which he dismissed the suit.

Being dissatisfied with the decision, the plaintiff appealed to the Court of Appeal. The notice of appeal was filed on the 10th day of December, 1982. The notice of ap¬peal filed is prolix that it ought not to have escaped adverse comments. Thirteen grounds were filed. Each ground was followed by copious comments in the notice of appeal. With the leave of the Court of Appeal, grounds l4 to 19 were added. The record book shows that the case was listed for hearing on the 5th of December, 1983. On that date, counsel appeared for both parties. But the court adjourned the hearing to the 26th April, 1984. On the 26/4/84, learned counsel for the appellant, Chief Anyaegbunam began argument on the appeal on behalf of the appellant- Ob-jections were taken to grounds 3, 4, 5, 6, 7, 8, 9, 10,11,12 and 13 on the ground of lack of particulars. He conceded grounds 8, 9, 10, 11 and 12. The court struck out grounds 5, 8, 9, 10, 11 and 12.

Counsel argued grounds 2 and 7 together. He made submissions on them. At this stage, the appeal was adjourned to 17/5/1984 for further hearing. On 17/5/84, the court sat and heard another motion for additional grounds of appeal. After hear¬ing counsel on his application for additional grounds which he later withdrew, the court struck out the additional grounds filed on 9/5/84 and adjourned further hear¬ing of the appeal to 24/10/84. On the 24/10/84, in the presence of counsel to the par¬ties, the court adjourned the appeal to 7/11 /84. On 7/11 /84, a motion to file additional grounds of appeal was taken and granted by the court. Respondent's counsel did not oppose the motion. The appellant was given 14 days to file his grounds and it was recorded "parties agree that it is desirable at this stage to file briefs. Appeal ad¬journed 3/4/85". It should be observed that NO ORDER for briefs to be filed was made.

On 3/4/85, the court sat and on the application of counsel to the appellant, adjourned to 8/7/85 for hearing in the cause. Before then, counsel to the respondent drew the court's attention to the pending motion to strike out the brief. On 8/7/85, the court sat and heard the appellant's motion. The proceedings for that day read;

"B.D. Anyaegbunam for Applicant G.N.A. Okafor (Chimoba with him for Respondent

  • i
    Motion to enlarge time to file brief Mr. Okafor does not oppose; Court: Order as prayed. Brief of appellant is deemed to have been property filed;
  • ii
    By Mr. Okafor: Motion to strike out the appeal adjourned to 18/9/85."

On the 18th day of September, 1985, the court sat although differently constituted. Instead of Phil-Ebosie (Presiding Justice), Aseme and Katsina-Alu, J.J.C.A, the coram consisted of Olatawura, Aikawa and Katsina-Alu, JJ.C.A. The court adjourned Mr. Okafor's application. The record reads:

  • "B.D.O. Anyaegbunam (I.N. Okeke with him) for Appellant G.N.A. Okafor for the Respondent
  • Court: This application of Mr. Okafor will be adjourned to 3/10/85 in view of the conflicting views expressed by the panel that granted Mr. Anyaegbunam's ap¬plication for a new brief."

The record does not show any sitting on the 3/10/85. Instead, it showed record of proceedings on 15/1/86 when the court consisted of Aseme, Olatawura and Katsina-Alu, JJ.C.A. On that day, the motion filed by Mr. Okafor was heard. The prayers in the motion paper were for an order:

  • a
    "striking out the brief of argument filed on the appellant's behalf by his coun-sel as not being in conformity with the Rules; and
  • b
    dismissing the appeal for want of prosecution and for such further or other orders as the court may deem fit to make in the circumstances."

Paragraphs 2 and 3 of the supporting affidavit evidence read-

  • 2
    "That on 21/1/85, I received by registered post Brief of Argument filed by plaintiff's/appellant's counsel;
  • 3
    That on perusing the brief, I find that it does not conform with Order 6 of the Court of Appeal Rules 1981 as amended by the Court of Appeal (Amend-ment) Rules 1984 in that -
    • a
      the appellant's brief is not a succinct statement of his argument in the appeal contrary to Order 6 Rule 2 but only a serial discussion of the grounds of appeal filed;
    • b
      the brief does not conclude with a numbered summary of the points to be raised on appeal, contrary to Order 6 Rule 3(d).
    • c
      the brief does not contain the Reasons upon which the argument is founded contrary to Order 6 Rule 3(d);
    • d
      the brief does not set out the issue or issues for determination in the appeal contrary to Orders Rule 3(a)."

    In the Court of Appeal, respondent's counsel. Mr. Okafor's argument was re¬corded as follows:

    • "The appellant's brief is a reproduction of the grounds of appeal and does not give the particulars sic regard (to read "required") Order 6 Rules 2 and 3 of the Court of Appeal Rules 1981. It does not contain the issues arising in the appeal. I ask that the brief be struck out. Since there is no brief, the court has no Juris¬diction and that the appeal be dismissed for want of prosecution."

    Appellant's counsel in reply argued that

    • "the amended brief Is in substantial compliance with Rules and asked for adjournment to supply authorities in support of his contention.”

    The motion was accordingly adjourned for further argument to 29/1/86.

    On the adjourned date, appellant's counsel maintained his argument that issues for determination were raised in each ground and that in any case, no brief can be struck out or dismissed on account of non-compliance with the Rules. He prayed the court to allow the appeal to go on even if it agreed with the objection. The court then reserved its ruling. On the 18th day of March, 1986, Olatawura, J.C.A. read the reserved Ruling dismissing the appeal for want of prosecution. This Ruling was con¬curred in by Aseme and Katsina-Alu, JJ.C.A.

Issues

  • 1
    'To entitle the Court of Appeal to dismiss the appellant's appeal for want...
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