In The Supreme Court of Nigeria
Friday, 7th day of September 1990
Before Their Lordships
of the Court
There are two applications before us in this appeal. The first is brought by
the respondent/applicant while the second was filed by 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 –
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.
the appellant has failed to comply with the mandatory pro-visions 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.
3. That the appellant's grounds of Appeal even if allowed, will not adversely affect the decision of the Court of Appeal appealed against.
7 of the affidavit in support of the motion reads as follows –
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) (d)(v) thereof provides that the provisions of rules 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 –
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 Sub-rule (2) of Rule ~
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 in Rule 7
of this Order.
Order 7 rule 7 (1) of the Supreme Court Rules, 1985 provides as follows –
appellant shall, in appeals to which this Rule applies either simultaneously
with filing his Notice of Appeal or within
14 day's thereafter, prepare for the use of the Judges a Record
copies of documents and proceedings which the appellant considers relevant to
copy of the order for leave to appeal (if any); and
(d) a copy of the notice of appeal.
the deposition in paragraph 7 of the affidavit in support of the respondent/applicant’s
motion and the oral argument of learned counsel for the party, the application
is premised on the fact that the
appellant/respondent filed its notice of
appeal on 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 learned counsel 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.,
learned counsel 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
Nl.50 for which a temporary cash receipt was issued. This, therefore,
belies the deposition in paragraph 7 of the affidavit in support of the
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, that is
until the 20th day of February, 1990, before the time to file the record of
appeal would expire.
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.
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.
second application which was filed by the appellant/respondent on the 14th day
of March, 1990 prays
To strike out the motion filed by the respondent/applicant in the above
appeal dated 13th February, 1990 on the following grounds: -
Motion is misconceived
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.
consolidate the two motions namely the appellant's/respondent's Motion dated
the 13th February, 1990 and this Motion for hearing and determination.
leave to make reference to exhibits B, C and D annexed to the affidavit
accompanying the said Motion dated 13th February, 1990 and
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."
Anah learned Senior Advocate, moved the motion for the appellant and placed
emphasis on 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, prayer
No.4 has also been superseded. At the date the appellants' 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.
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 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.
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.
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.
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.
also abide by all the consequential orders in the lead Ruling of my learned
brother, Uwais, J.S.C.
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.
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.
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 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