IN THE COURT OF APPEAL OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
ON FRIDAY, THE 14TH DAY OF JANUARY, 2022
BEFORE THEIR LORDSHIPS:
JOSEPH SHAGBAOR IKYEGH JUSTICE, COURT OF APPEAL
OBIETONBARA O. DANIEL-KALIO JUSTICE, COURT OF APPEAL
MUHAMMAD IBRAHIM SIRAJO JUSTICE, COURT OF APPEAL
APPEAL NO: CA/L/428/2001
BETWEEN:
NIGERIA POSTAL SERVICE (NIPOST) …………….… APPELLANT
AND
1. BABAJIDE ALABA ODUNLAMI
(TRADING UNDER THE NAME AND STYLE OF
ALABA ODUNLAMI & CO.
2. THE HONOURABLE MINISTER OF COMMUNICATIONS ……………. RESPONDENTS
3. THE HON. ATTORNEY-GENERAL OF
THE FEDERAL REPUBLIC OF NIGERIA
JUDGMENT
(DELIVERED BY MUHAMMAD IBRAHIM SIRAJO, JCA)
This is an appeal against the Ruling of Egbo-Egbo, J., sitting at the Federal High Court Lagos delivered on 25/06/2001 in Suit No FHC/L/786/98. Before that court, the 1st Respondent as plaintiff, instituted a suit against the Appellant and the 2nd and 3rd Respondents, as Defendants. By his Statement of Claim dated 12/10/1998 the plaintiff claimed the following reliefs against the Defendants:
a. A declaration that the agreement contained in the 1st defendant’s letter of instruction dated 2nd of November 1993 and the plaintiff’s acceptance letter of the 3rd of November 1993 is binding on the defendants.
b. A declaration that the defendants are in in breach of the said agreement by virtue of their failure and/or refusal to pay the plaintiff the sums due to him as expenses and recovery commission in this matter.
c. The sum of N10 million (Ten million naira) being special and general damages for wrongful termination of the plaintiff’s contract by the 1st and 2nd Defendants made up as follows:-
i. Loss of commission on recovery - N9,300,000.00
ii. Out of pocket expenses - 246,000.00
iii. General damages - 454,000.00
N10,000,000.00
d. Interest on the said sum at the rate of 21% per annum from the 20th of October 1997 till final payment is made.
IN THE ALTERNATIVE:
The plaintiff claims the sum of N2,746,000.00k (Two Million, Seven
Hundred and Forty-Six Thousand Naira) on a quantum meruit in respect of same and interest on the said sum at the rate of 21% from 19th April 1994 until final payment.
The defendants denied the claim in a Statement of Defence filed on 13/07/2001. Prior to filing a Defence, the Defendants had filed a Motion on Notice seeking for an order dismissing the suit or in the alternative, striking out the suit. The grounds upon which the application was predicated, are that-
i. The action of the plaintiff is statute-barred.
ii. The court has no jurisdiction to entertain the action
iii. The plaintiff’s suit discloses no reasonable cause of action.
iv. The suit is frivolous and constitutes an abuse of process of court.
The plaintiff filed a counter-affidavit in opposition to the motion. After entertaining arguments from learned counsel for the parties, the court, in a considered Ruling, dismissed the preliminary objection and ordered the Defendants to file their Statement of Defence within 14 days.
The facts leading to this appeal can be summarized thus: By a letter dated 07/11/1993, the 1st Defendant, now Appellant, instructed the 1st Respondent to recover the sum of N43,000,000.00 (Forty-Three Million Naira) from Seal Let limited and N50,000,000.00 from Royal Star Airlines Limited, totaling N93,000,000.00. Before then, the 1st Defendant had, on 17/03/1993, retained the services of the Appellant on an annual fee of 25,000.00 (Twenty-Five Thousand Naira), which the 1st Defendant/Appellant paid to the Plaintiff/1st Respondent. On 18/11/1993, the Plaintiff/1st Respondent accepted the Appellant’s instruction to recover the sum of N93,000,000.00 from the two companies being payment made to them for the hire of Airplanes and the management of an Airline intended to be set up, on the condition that he will be paid 10% of the total amount recovered. The 1st Respondent by his letter of 18/11/1993 also demanded from the Appellant an initial deposit of N500,000.00 (Five hundred thousand naira). The Appellant did not pay the initial deposit but the 1st Respondent commenced the recovery process which led to the recovery of N25,000,000.00, though this fact is disputed by the Appellant. By a letter dated 14/02/1994, the Appellant terminated the instruction given to the 1st Respondent on the ground that the matter had been taken over by the Ministry of Communications. At this point, the 1st Respondent sent his interim bill of N1,000,000.00 for the first N10,000,000.00 that he recovered and N246,000.00 being out of pocket expenses. The 1st Respondent sent another supplementary bill of N1,500,000.00 following the recovery of additional N15,000,000.00. The Appellant reneged in paying the commission despite several reminders by the 1st Respondent and denied any liability to the 1st Respondent by a letter dated 15/12/1997.
The Appellant and 1st Respondent filed and exchanged written Briefs of Argument. The 2nd and 3rd Respondents did not file any process in this appeal. The appeal came up for hearing on 26/10/2021 in the absence of the Appellant’s counsel. Having been satisfied that parties were duly served with hearing notice, the court proceeded with the hearing of the appeal. Lanre Oyetunji Esq., adopted the 1st Respondent’s Brief filed on 27/01/2015. The Appellant’s Brief of Argument and the Reply Brief, respectively filed on 19/12/2014 and 16/02/2015 were deemed as duly argued pursuant to Order 19 Rule 9 (4) of the Court of Appeal Rules, 2016. Three issues were formulated for determination in the Appellant’s Brief of Argument as reproduced below-
1. Whether the case as formulated in the Statement of Claim of the Plaintiff/Respondent is not statute barred regard being had to Section 59(1) of the Postal Service Act No.41 of 1992 and Section 2(a) of the Public Officers’ Protection Act Cap 379, Laws of the Federation of Nigeria 1990. See Grounds 1,2,4,7 & 8.
2. Whether the Federal High Court has the jurisdiction to entertain the Plaintiff/Respondent’s action. See Grounds 3 & 5.
3. Whether the letter dated 15/12/97 marked as Exhibit BO1 attached to the Counter Affidavit marked “without prejudice” is admissible in law and capable of supporting the Plaintiff/Respondent’s case. See Ground 6.”
As I progressed into the preparation of this judgment on the substance of the appeal, I noticed the following statement by learned counsel for the Appellant at page 1, lines 8-10 of the Introductory part of the Appellant’s Brief of Argument, thus:
“There are two Notices of Appeal in the record but the Appellant shall be relying on the one dated 24th August, 2001 and filed on 28/08/2001 which is contained on pages 34-39 of the record.”
With this introduction, learned counsel for the Appellant has clearly exhibited his preference for the original Notice of Appeal filed on 25/08/2001, though dated 24/08/2001. It is on the basis of the original Notice of Appeal aforesaid that the Appellant’s counsel argued this appeal in his Brief of Argument. Upon perusing through the docket of this appeal, however, I find that on realizing that the appeal in question is against an interlocutory decision and was filed more than two months after the Ruling complained of, the Appellant filed an application on 24/10/2001 seeking for 8 reliefs as follows:
1. AN ORDER extending the time within which the Appellant/Applicant may seek leave to appeal against the Ruling of Egbo-Egbo J. delivered on 25th June, 2001 in Suit No FHC/L/786/98.
2. AN ORDER for leave to appeal against the Ruling of Egbo-Egbo J. delivered on 25th June, 2001 in Suit No FHC/L/786/98
3. AN ORDER for enlargement of time within which to appeal against the said Ruling
4. AN ORDER directing a departure from the rules in force in this Honourable Court so that the Appellant herein may be heard on the bundle of papers referred to in the Affidavit in support of this Motion and marked as Exhibit RJ1.
5. AN ORDER giving liberty to the above named Defendant/Respondent to file such additional papers, as he may desire to file in connection with the appeal.
6. AN ORDER giving accelerated hearing of the appeal herein and abridging time for filling of briefs of argument.
7. AN ORDER deeming as properly filed the Notice of Appeal already filed at the lower court on the 28th August, 2001.
8. AND FOR SUCH FURTHER ORDER OR ORDERS as this Honourable court may deem fit to make in the circumstances.”
Reliefs 1, 2 and 3 were granted by this court on 13/02/2002. However, instead of granting relief 7 (a deeming order in respect of the Notice of Appeal filed on 28/08/2001), this court ordered the Appellant to file its Notice of Appeal within 7 days of that Ruling. The Appellant filed the fresh Notice of Appeal on 25/02/2002, twelve days after the order, and five days outside the 7 days granted it by this court. Having realized its failure to comply with the Order of 13/02/2002 to file its Notice of Appeal within 7 days, the Appellant filed yet another Motion on Notice on 28/11/2006 seeking for the prayers set out herein below:-
1. AN ORDER extending the time within which the Appellant/Applicant may seek leave to appeal against the ruling of Egbo –Egbo J. delivered on the 25th June, 2001 in Suit No FHC/L/786/98.
2. AN ORDER for leave to appeal against the ruling of Egbo –Egbo J. delivered on the 25th June, 2001 in Suit No FHC/L/786/98.
3. AN ORDER for enlargement of time within to appeal against the said ruling
4. AN ORDER extending the time within the Appellant/Applicant may file the Notice of Appeal against the ruling of Egbo –Egbo J. delivered on the 25th June, 2001 in Suit No FHC/L/786/98.
5. AN ORDER deeming as properly filed the Notice of Appeal dated 18th day of February 2002 but filed on the 25th February 2002.
6. AN ORDER allowing the Appellant/Applicant to file a supplementary record to record of Appeal already filed in this court on 6th December 2004.
7. AN ORDER deeming as properly filed the supplementary record dated 6th day of December, 2004 and filed 6th day of December 2004.
8. AND FOR SUCH FURTHER ORDER OR ORDERS as this Honourable court may deem fit to make in the circumstances.
In the affidavit in support of that application, the deponent, one Femi Aina, a Legal Practitioner in the Law firm of Rotimi Jacobs & Co., deposed to the relevant facts at paragraphs 6-9 of his affidavit, thus:
“1. That the Appellant/Applicant being dissatisfied against the said ruling obtained leave of this Honourable Court on the 13th February 2002 to Appeal and the Appellant was subsequently granted 7 days within which to file the Notice of Appeal.
2. The Counsel for the Appellant who appeared in court on the said 13th February 2002 failed to report to the Head of Chambers and other lawyer in office including myself that the court only granted 7 days within which to file the Notice of Appeal.
3. The said counsel Bayo Omisore Esq. acting under the wrong impression that 14 days was granted to the Appellant to file the Notice of Appeal filed same in the Lower court on the 25th February 2002. Annexed herewith and marked Exhibit “A” is a copy of the Notice of Appeal.
4. Our Chamber did not discover this error not until 20th September 2004 when the appeal came up for hearing and this Honourable court pointed out the error to the lead counsel to the Appellant. Bayo Omisore informed me on 15th November 2004 when I called him in United States where he is presently resident and I verily believe him that he filed the Notice upon a mistaken believe that he had 14 days to do so.”
Those prayers were granted on 15/11/2004 and the Notice of Appeal filed on 25/02/2002 was deemed as properly filed. It goes without saying that before 05/11/2014 when that order was made, the Appellant has no competent Notice of Appeal as the one filed on 28/08/2001 was incompetent having been filed without the leave of this court in that the appeal was against an interlocutory decision. Furthermore, the said Notice of Appeal was filed more than 60 days after the ruling complained of without an order enlarging time for the Appellant to so file. It is therefore very surprising that despite all the strenuous efforts made by the Appellant’s counsel to file a valid Notice of Appeal after the initial incompetent Notice of Appeal, following the grant of leave and an order for enlargement of time, as well as a deeming order with respect to the new Notice of Appeal, in two separate applications, learned counsel would still fall back to argue his appeal on the incompetent Notice of Appeal filed on 28/08/2001. It appears learned counsel for the Appellant has lost track of the applications filed by him and the orders made in his favour. The order made by this court on 05/11/2014 deeming as properly filed and served the Notice of Appeal dated 18/02/2002 but filed on 25/02/2002 is binding on both the Appellant, the Respondents and the court and neither party is at liberty to depart from the said order. It therefore amounts to a disobedience of that order for the Appellant to jettison the Notice of Appeal filed on 25/02/2002 and instead filed Brief of Argument on the incompetent Notice of Appeal that was filed without leave of court on 28/08/2001. See Stanbic IBTC Plc vs. L.T.G.C. Ltd (2019)3 NWLR (Pt.1658) 374.
A Notice of Appeal is the originating process of an appeal and therefore the root and foundation of any appeal. It is the Notice of Appeal that gives jurisdiction to this court to hear an appeal. This is trite. See Iwunze & Ors. vs. Okenwa & Anor (2015) LPELR-24905 (CA); Ombugadu vs. CPC & Ors (2012) LPELR-8606 (CA); EFCC vs. Okoh (2021) LPELR-54855 (CA); Raji vs. UNILORIN & Ors (2018) LPELR-44692 (SC). In the instant appeal, the extant valid Notice of Appeal is the Notice of Appeal dated 18/02/2002, filed on 25/02/2002 and deemed to have been properly filed by an order of this court made on 05/11/2014. It is similarly settled that where no Brief of Argument has been filed in respect of an appeal by the Appellant, that appeal is deemed abandoned. See Aderigbigbe vs. Abidedoye (2009) LPELR – 140 (SC); Akibu & Ors vs. Oduntan (2007) 7 SCNJ 189. In the instant appeal, the Appellant’s Brief of argument was filed to complement an incompetent Notice of Appeal filed on 28/08/2001. Conversely, the extant valid Notice of Appeal filed on 25/02/2002 is not supported by a Brief of Argument. This is the situation in this appeal. It is an elementary principle of law that appeals are argued on Briefs which normally contained arguments based on issues distilled from the grounds of appeal. A Notice of Appeal without a Brief is bare and unsupportive. See Animashaun vs. The State (2010) LPELR-9022 (CA).
Now, Order 19 Rule 2 of the Rules of this court provides that within forty-five days of the receipt of the Record of Appeal, an Appellant shall file his written brief, which shall be a succinct statement of his argument in the appeal. Order 19 Rule 10 makes provision for consequences of failure by the Appellant to file Brief of Argument. It provides that where an Appellant fails to file his Brief within the time provided for in Rule 2 of this order or within the time as extended by the court, the Respondent may apply to the court for the appeal to be dismissed for want of prosecution or the court may suo motu dismiss the appeal. An appeal dismissed on the ground of failure to file an Appellant’s Brief of Argument is final and therefore cannot be revived. See Dakan & Ors vs. Asalu & Ors (2015) LPELR-24687 (SC); SPDC (Nig.) Ltd & Ors vs. Agbara & Ors (2020) LPELR-52233; Ecobank Nig Plc vs. Rubicon Enery Services Ltd & Ors (2021) LPELR-53401 (CA); Eneh vs. NDIC (2018) LPELR 44902 (SC); Tsokwa vs. U.T.C. (Nig.) Ltd (2007) 7 NWLR (Pt. 666) 654.
The combined effect of the provisions of order 19 Rules 2 and 10 (1) & (2) of the Court of Appeal Rules, 2016 is that this appeal ought to be dismissed for failure of the Appellant to file Brief of Argument in support of its extant and valid Notice of Appeal. I hereby dismiss the appeal for the aforesaid reason. Consequently, the interlocutory ruling of the Federal High Court, Lagos, delivered on 25/06/2001 in Suit No. FHC/L/786/98 is affirmed. No order is made as to costs.
MUHAMMAD IBRAHIM SIRAJO
JUSTICE, COURT OF APPEAL
APPEARANCES:
Appellant not represented though served with hearing notice via email.
Lanre Oyetunji for the 1st Respondent.
2nd & 3rd Respondents not represented.
CA/L/428/2001 M.I. SIRAJO, JCAPage
